Chamberlain v. University of Rochester

Full title: ROYAL L. CHAMBERLAIN, Plaintiff, v. UNIVERSITY OF ROCHESTER, RETIREMENT…

Court: United States District Court, W.D. New York

Date published: May 26, 2004

01-CV-6090 (CJS) (W.D.N.Y. May. 26, 2004)

Opinion

01-CV-6090 (CJS).

May 26, 2004

Royal L. Chamberlain, Pro se, Rochester, New York, for the Plaintiff.

Todd R. Shinaman, Esq., Ryan T. Jenny, Esq., Nixon Peabody LLP, Rochester, New York, for the Defendant.

DECISION AND ORDER

CHARLES SIRAGUSA, District Judge

INTRODUCTION

This was an action pursuant to the Employee Income Retirement Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., in which the plaintiff, Royal L. Chamberlain ("plaintiff"), alleged inter alia that the defendant University of Rochester ("defendant") terminated his employment in order to deprive him of retirement benefits. By Decision and Order filed on July 24, 2002, the Court granted summary judgment for defendant and dismissed the action. Now before the Court is plaintiff's motion [#40] to set aside the judgment on the grounds of fraud on the court, pursuant to Federal Rule of Civil Procedure 60(b)(3). For the reasons that follow, the application is denied.

BACKGROUND

The facts of this case were set forth in detail in the Court's Decision and Order granting summary judgment, and need not be repeated here in their entirety. It is sufficient to note that plaintiff worked for the defendant as a medical photographer for approximately 20 years, until defendant terminated his employment on April 19, 2000. Defendant alleged that prior to 1999, plaintiff, in the course or his employment, had made certain comments to women which had upset them or made them feel uncomfortable. These consisted primarily of comments complimenting them on their clothing and appearance. Plaintiff acknowledges that he did frequently compliment women on their clothing. Defendant also alleged that plaintiff had on one occasion made unspecified "crude and insensitive" comments over the telephone to a female medical patient, who had called to schedule a series of dermatological photographs of her vaginal area. Defendant claimed to have become aware of the incident after the woman's physician learned of plaintiff's alleged comments and called defendant to complain. Plaintiff denied that he said anything improper to the patient.

In 1999, plaintiff's immediate supervisor, William Smith, directed him to refrain from making any further comments to women about their appearance. Plaintiff admitted that Smith had also cautioned him in 1994 or 1995 about making comments to women about their appearance.¹ Plaintiff indicated that, subsequent to Smith's 1999 direction to refrain from making any compliments to women, Smith told him he could compliment women that he knew well enough to call by name, such as plaintiff's daughter, who also worked at the University. (Plaintiff's Response to Defendant's Statement of Facts, ¶ 6).

1 "Bill Smith came to me and said, `The woman did not like your comment' and something to the effect of, `Be very careful about the comments you make.'" (Plaintiff's Deposition, p. 36).

In April 2000, plaintiff again made comments to a female employee about her appearance, although he admittedly did not know her well. Specifically, he told her, "I've noticed over the past couple of months that you wear very attractive outfits to work . . . the gray and white combination you are wearing today looks quite nice, and I remember that yesterday you were wearing a beige sweater with a red stripe which was exceptionally attractive." (Plaintiff's Deposition, pp. 84-85, 92-97). Plaintiff indicated that he had considered complimenting the woman the previous day, but had refrained because he believed it would have violated Mr. Smith's warning. He stated that he decided to compliment her the following day, since he felt he knew her slightly better after a brief conversation with her that day. The female employee, however, indicated that she did not know plaintiff, or anything about him, other than that he frequently stared at her, and that his comments made her feel uncomfortable. The female employee mentioned plaintiff's comments to a co-worker, who then contacted one of plaintiff's supervisors

The University investigated the incident, and as part of that investigation, took statements from women who apparently had regular interaction with plaintiff. Several women commented that they believed plaintiff was odd or eccentric, but that his compliments did not offend them. One woman reportedly complained that plaintiff stared at her chest while speaking to her. During the investigation, plaintiff's supervisors also heard allegations regarding two other incidents involving plaintiff, one involving a female medical student who had allegedly complained to a faculty member that plaintiff always seemed to be outside her apartment whenever she left the building, and another involving a university employee who had complained that on one occasion while she was riding her bicycle, plaintiff, who was driving his car, followed her to her home and reprimanded her for having cut him off in traffic. Plaintiff adamantly denies the first allegation, and he acknowledges that the second incident occurred, although he denies he knew the woman on the bicycle was a university employee.

On April 19, 2000, defendant terminated plaintiff's employment, citing "significant performance problems" involving "appropriate interactions with women." At that time plaintiff was eight months shy of his 55^th birthday, and accordingly, he did not become eligible to participate in the defendant's employee benefit retirement plan. Plaintiff subsequently commenced this action, claiming that defendant had terminated him in order to prevent him from receiving retirement benefits in violation of ERISA, 29 U.S.C. § 1140.² In granting summary judgment for defendant, the Court noted that on a motion for summary judgment, such claims are analyzed using the three-step burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973):

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1998) (citation omitted).

2 Section 510 of ERISA, 29 U.S.C. § 1140, provides that "[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."

Applying that standard to the facts of the instant case, this Court then stated:

In the instant case, defendant concedes, for purposes of this motion, that plaintiff has established a prima facie case. Moreover, it is clear that defendants have articulated a legitimate, nondiscriminatory reason for terminating plaintiff's employment, namely, that he made remarks to women in a manner which upset them, and he refused to stop when directed to do so by his supervisors. Accordingly, the issue before the Court is whether or not plaintiff has met his burden at the third step of the McDonnell Douglas analysis.

* * *

Plaintiff primarily offers two pieces of circumstantial evidence [to show that the defendant's proffered reason for terminating him is false, and that the real reason was to prevent him from receiving retirement benefits]. First, he notes that he was terminated some four months after inquiring about his benefits, and seven months prior to those benefits vesting. Second, he contends that the University, by terminating his employment prior to vesting, realized a savings of approximately $500,000. As to the first, the timing of the University's decision clearly was precipitated by plaintiff's own actions, namely, his comments to the female employee in April 2000. As to the second, it is well settled that "mere cost savings and proximity to benefits are [not] sufficient per se to create a genuine issue of fact requiring a trial." Dister, 859 F.2d at 1117 n. 1. In Dister, the Second Circuit held that "no ERISA cause of action lies where the loss of pension benefits was a mere consequence of, but not a motivating factor behind, a termination of employment." Dister, 859 F.2d at 1111.

Plaintiff also contends that defendant failed to follow its Corrective Discipline Policy, Policy 154. In that regard, he indicates that, although the University warned him not to make comments to women, it did not warn him of the consequences if he continued. Moreover, he contends that the University never attempted less drastic measures, such as requiring him to attend counseling or education classes. However, Policy 154 does not require the measures plaintiff suggests. Policy 154, by its terms, is a guideline, and contains the statement that "the decision to use or not to use progressive discipline is solely within the discretion of the University." Even so, the policy indicates that an employee may be discharged "when prior steps (above) to correct misconduct have failed or when misconduct is so serious that immediate termination is appropriate." (emphasis in original). One of the "prior steps (above)" referred to is verbal warning, and plaintiff had received verbal warnings not to comment to women about their appearances. Plaintiff's decision to continue making such comments would also fit under Policy 154's list of misconduct generally warranting severe discipline, including termination, which includes "[i]nsubordination (willful refusal to perform an assigned duty or to comply with an instruction)."

Plaintiff also indicates that the University does not have any "policy or rule proscribing compliments in the workplace." However, this argument is disingenuous, since it is clear that the University terminated plaintiff not simply because he complimented female employees, but because he did it in a way, often accompanied by staring, which made several women uncomfortable. Moreover, regardless of any general rule regarding compliments, plaintiff ignored his supervisors' specific directions to refrain from making such comments. Plaintiff's deposition testimony, describing his thought processes on the day before and the day of his comments to the young lady in April of 2000, indicate that it was clear to plaintiff, or reasonably should have been clear to him, that his comments to the young lady were in violation of his supervisor's instructions. In that regard, it is apparent that plaintiff did not know the young lady any better on the day he made the comments than he had the previous day when he decided to refrain from making the comments to avoid violating his supervisor's direction.

* * *

Plaintiff further contends that the University has given "inconsistent" reasons for his termination. In this regard, the Court notes that essentially every person involved in plaintiff's termination and the grievance process has indicated that plaintiff was terminated pursuant to Corrective Discipline Policy 154, based upon a "pattern of inappropriate interactions with women." Plaintiff, however, points to the deposition testimony of Adam Anolik, a member of the third-stage grievance committee, in which he uses the term "sexual harassment." Plaintiff's argument, essentially, is that termination for "sexual harassment" would presumably require a greater level of misconduct than he displayed, suggesting pretext. The Court believes that plaintiff is misconstruing Anolik's testimony, which actually indicates that plaintiff was the person who first used the term sexual harassment by telling the grievance panel "that his behavior was misconstrued as being sexual harassment." However, viewing the evidence in the light most favorable to plaintiff, Anolik's testimony does indicate that subsequent to plaintiff's use of the term sexual harassment, the grievance panel did refer to plaintiff's behavior as sexual harassment, as opposed to "inappropriate interactions with women." The Court finds, however, that this fact does not in any way suggest that the reason given for plaintiff's termination is false. Rather, the record contains overwhelming evidence that the University terminated plaintiff's employment because of his comments to women and his refusal to obey his supervisor's instructions to stop making such comments. Such a minor inconsistency, if indeed there is any inconsistency, does not raise a triable issue of fact. See, Dister, 859 F.2d at 1116 (Holding that, to defeat a motion for summary judgment, inconsistencies as to the employer's reason must be "material," not "minor."). The fact that certain members of the third grievance panel may have referred to plaintiff's conduct by a different term does not raise a triable issue of fact as to the reason he was fired.

As additional evidence of pretext, plaintiff contends that John Davidson [plaintiff's immediate supervisor] denies authorship of certain documents bearing his signature [relating to the fact that he had reprimanded plaintiff for allegedly having made inappropriate comments to the female dermatology patient]. However, Davidson's deposition testimony does not deny that he issued the letter, but only that someone else prepared it for his signature: "It was prepared by Val Bartlett as I have said for my signature to Bill Passalacqua documenting the incident."(Davidson Deposition, p. 77).

Considering all of the foregoing, the Court finds that plaintiff has not come forward with evidence sufficient to raise a triable issue of fact as to whether or not the University's proffered reason for terminating his employment is false. Moreover, even assuming, arguendo, that plaintiff had raised a triable issue of fact as to the falsity of the proffered reason, the Court would still find, for the reasons discussed above, that plaintiff has failed to produce evidence which would allow a jury to find that the University acted with the specific intent to interfere with his receipt of ERISA benefits. Having considered the totality of the circumstances, the Court does not believe that this is a situation, such as that described in Reeves, where plaintiff's prima facie case, combined with his evidence challenging the University's proffered reason, would allow a jury to conclude that the University unlawfully interfered with plaintiff's benefits.

Decision and Order [#38] (emphasis added). On July 24, 2002, the Court entered judgment for defendant. Plaintiff did not appeal the Court's determination.

More than eighteen months later, on February 17, 2004, plaintiff, who had formerly been represented by counsel but who was now proceeding pro se, filed the subject motion to set aside the judgment. As discussed earlier, plaintiff is moving pursuant to Rule 60(b)(3), on the grounds of "fraud on the court." Rule 60(b) states, in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court.

(Emphasis added). Regarding the last sentence of Rule 60(b), which refers to independent actions to set aside judgments, plaintiff states in his notice of motion that he "had expected to file this motion as an independent action in order to comply with his understanding of Rule 60(b); however, a representative of the Court Clerk's Office advised filing as a continuation of the existing action, and allow the Court to rule whether or not independent filing would be required."

In support of the application, plaintiff alleges that, in its submissions to the Court in support of the motion for summary judgment, defendant:

1) falsely stated that the female dermatology patient's physician had filed a complaint against him as a result of plaintiff's alleged comments to the patient. In support of this argument, plaintiff indicates that in January 2003, he wrote to the physician who had allegedly complained to the university, informing her that he had been terminated, and asking her if she had in fact "filed a complaint against him." According to plaintiff, the physician responded by indicating that she had not filed a complaint against plaintiff.

2) falsely stated that the female dermatology patient subsequently agreed to be photographed by a female photographer, and that no records were kept of the photography session because the patient was fearful of plaintiff. Plaintiff theorizes that such a claim must be false, because the defendant would presumably have kept at least a consent form concerning the photography session.

3) misrepresented that John Davidson had written certain documents pertaining to the incident with the female dermatology patient, when Valerie Bartlett, actually prepared the documents. Plaintiff contends that although the documents were signed by Davidson, they must have been written by Bartlett, because the handwriting on one of the envelopes containing a document, purportedly written by Davidson, appears similar to Bartlett's handwriting.

4) falsely stated that a Dr. Richeson had complained to John Davidson about plaintiff allegedly "stalking" a female medical student. In support of this claim, plaintiff cites alleged inconsistencies in Richeson's and Davidson's deposition transcripts, purportedly indicating that in fact Richeson had never informed Davidson that plaintiff was "stalking" the female student.

5) falsely stated that plaintiff followed a university employee named Shannon Taggert in his car. In this regard, plaintiff alleges that defendants confused the incident where plaintiff allegedly used his car to follow an unidentified female employee riding a bicycle, with an incident that took place after he was terminated, in which he had a discussion with a female employee named Shannon Taggert while the two were walking on defendant's campus.

6) misrepresented that plaintiff was terminated for failing to follow orders, as opposed to committing sexual harassment. Plaintiff alleges that defendant actually terminated him for violating defendant's sexual harassment policy, but now contends otherwise, since it now realizes that his conduct did not rise to the level of sexual harassment as outlined in that policy.

7) misrepresented that the decision to terminate his employment was made by William Passalacqua, Peggy Lee, and John Davidson, when in fact the decision was made by Passalacqua alone. In this regard, plaintiff cites to deposition testimony which he contends suggests that it was Passalacqua and Lee who made decision to terminate him, and that Davidson was not involved in the decision. Since Passalacqua was a financial administrator, plaintiff speculates that defendant terminated his employment for purely financial reasons.

Plaintiff and counsel for the defendant appeared before the undersigned for oral argument of the motion on May 20, 2004. The Court has thoroughly considered the parties' submissions and comments made at oral argument.

ANALYSIS

A motion pursuant to Rule 60(b)(3) must be made "not more than one year after the judgment, order, or proceeding was entered or taken." Accordingly, plaintiff's application under Rule 60(b)(3) must be denied as untimely. As plaintiff suspected, and notwithstanding whatever he may have been told by a representative of the court clerk's staff, he should have filed an independent action, rather than making a motion under Rule 60(b)(3), since such independent actions are not subject to the time restrictions set forth in Rule 60(b). King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002), cert. denied. 537 U.S. 960, rehearing denied, 637 U.S. 1098 (2002). However, such an independent action would be doomed to fail in any event, since plaintiff's allegations do not approach the level required to establish fraud on the court. Id. ("The type of fraud necessary to sustain an independent action attacking the finality of a judgment is narrower in scope than that which is sufficient to relief by timely motion under Rule 60(b)(3) for fraud on an adverse party.") (citation and internal quotation marks omitted). As the Second Circuit has stated, "fraud upon the court as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication." Gleason v. Jandrucko, 860 F.2d at 559. As another court has observed,

[f]raud upon the court . . . embraces only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases. Examples of conduct that meet the definition of fraud upon the court include bribery of a judge, jury tampering, or hiring an attorney for the sole purpose of improperly influencing the judge.

U.S. v. Bennett, No. S197CR639(SAS), 2004 WL 736928 at *2 (S.D.N.Y., Apr. 5, 2004) (citations and internal quotation marks omitted). On the other hand,

[a]fter-discovered evidence of alleged perjury by a witness is simply not sufficient for a finding of "fraud upon the court." Similarly, allegations of nondisclosure during pretrial discovery do not constitute grounds for an independent action. . . . Absent the type of fraud which subverts the integrity of the court itself, or is perpetrated by officers of the court, the requisite interference with the judicial machinery cannot be established and an independent action for fraud on the court therefore will not lie. In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant.

Gleason v. Jandrucko, 860 F.2d at 559-560. "In practice, this means that even fairly despicable conduct will not qualify as fraud on the court." 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 60.21[4][c] (3d ed. 2004).

In the instant case, plaintiff's claims do not amount to "fraud on the court," since he is essentially alleging only that defendant's employees lied about the reasons that plaintiff's employment was terminated. Moreover, the alleged fraudulent statements did not affect the Court's decision to grant summary judgment. As noted above, several of the alleged false statements pertained to the incident involving the female dermatology patient, while others involved alleged an alleged stalking incidents. However, defendant did not indicate that it terminated plaintiff because of those alleged incidents.³ Rather, defendant claims to have terminated plaintiff for making comments to female employees after he had been warned against doing so. Thus, plaintiff's assertion that "these fabricated allegations constituted cornerstones of the Defendant's case" is incorrect. As for plaintiff's claim that defendant wrongly terminated him under its sexual harassment policy, and that it was Passalacqua and Lee, not Davidson, who made the decision to terminate him, plaintiff made the very same arguments in opposition to defendant's summary judgment motion. See, e.g., Pl. Memo of Law in Opposition to Summary Judgment Motion [#24], p. 18 ("[Plaintiff's] comments are not sexual harassment as a matter of law and raise a genuine issue of material fact concerning witness credibility."); Pl. Response to Def. Stmt. of Facts [#23], ¶ 10 ("Plaintiff . . . was terminated by Passalacqua and Lee. Davidson has denied involvement in the decision."). These arguments are therefore barred by res judicata, and cannot be re-litigated here. Weldon v. U.S., 70 F.3d 1, 5 (2d Cir. 1995) (Affirming grant of summary judgment against a plaintiff asserting an independent action for fraud on the court, noting that "[the plaintiff] may not relitigate . . . the claims of misrepresentation that she could have litigated, and to a great extent did litigate, in [the first action]. Only if [plaintiff] had had no opportunity to litigate the allegations of fraud on the court could this action go forward.") Accordingly, the Court finds that plaintiff's submissions fail to state a claim for fraud on the Court.

3 Passalacqua indicated that he had heard a report of an alleged stalking incident, and that it concerned him enough that it caused him to review other incidents involving plaintiff. Passalacqua Dep. 96. However, Passalacqua indicated that he had no details about the incident. Id. at 97. Moreover, Passalacqua clearly indicated that the reason plaintiff was terminated was because of a perception that plaintiff had exhibited a pattern of refusing to abide by his supervisor's wishes that plaintiff stop making comments to women about their appearance. See, e.g., Passalacqua Dep. 22, 32-33, 106, 110.

CONCLUSION

For the foregoing reasons, plaintiff's motion [#40] to set aside the judgment pursuant to Federal Rule of Civil Procedure 60(b)(3) is denied.

SO ORDERED.