Opinion
99 Civ. 11875 (GEL)
August 13, 2001
Francis D. Burke, Mangines Burke, Bridgeport, CT for plaintiff David A. Collings.
Todd H. Girshon, of counsel Scott T. Baken, Jackson Lewis Schnitzler Krupman, New York, N.Y. for defendant Industrial Acoustics. Co., Inc.
OPINION AND ORDER
On December 8, 1999, Plaintiff David Collings, who was formerly employed by Defendant Industrial Accoustics Company, Inc. ("IAC") as its Vice President of Research and Development, commenced this employment discrimination action. In his complaint, Collings, who was 64 years old at the time he was terminated, alleges, among other things, that IAC terminated his employment on December 5, 1998, in order to replace him with a younger employee. Consequently, Collings asserts age discrimination claims arising under the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. L. § 296. IAC moves for summary judgment, or in the alternative, to strike Collings' demands for punitive damages and certain other remedies. The motions will be, for the most part, denied
I. IAC's Motion for Summary Judgment
In support of its motion for summary judgment, IAC makes several arguments that Collings claims should be dismissed without a jury trial. First, it argues that as a matter of law, Collings' allegations cannot satisfy the prima facie standard necessary to state an age discrimination claim under the ADEA because he was not qualified to be the "Director of Research and Development," supposedly a new position created in the wake of a reduction of force in the fall of 1998, and because he was not replaced by an individual who was "substantially younger" than he. Alternatively, IAC contends that it had legitimate, non-discriminatory reasons for terminating Collings. The Court will consider those arguments in turn. A. Collings' Prima Facie Case
Claims asserted under the NYHRL and the New York City Human Rights Law are subjected to the same burden-shifung analysis as ADEA claims. See e.g., Shannon v. Firemans Ins Co., No. 00 Civ. 1528(SAS), 2001 WL 637371, at *2 n. 6 (S.D.N Y June 8, 2001).
In its reply brief, IAC argues that several paragraphs of its Statement of Material Facts Not in Dispute in Support of Defendant's Motion for Summary Judgment should be deemed admitted, because Collings, in attempting to rebut them, did not comply with the plain requirements of Local Rule 56.1(d) by making denials without citations to evidence of record. (Def's Reply Mem. at 2-5.) Without considering whether Collings failed to comply with his obligations under Local Rule 56.1(d), the Court notes that Collings provided ample evidentiary citations in his opposition brief, and it was therefore not unduly burdened in evaluating his submissions. Accordingly, because the rule exists for the Court's convenience, Rodgriguez v. Schneider, 95 Civ. 4083(RPP), 1999 U.S. Dist. Lexis 9741, at *4 n. 3. (S.D.N.Y. June 28, 1999), the Court will decline IAC's invitation to elevate the form of Collings' papers over the substance of his arguments.
To establish the existence of a prima facie case, an age discrimination plaintiff need only make a "minimal" showing that he (1) was 40 years or older at the time he was allegedly discriminated against. (2) was qualified for the position at issue, and (3) was subjected to an adverse employment action at the expense of a "substantially younger" individual. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313(1996); James v. New York Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir. 2000). It is not disputed that Collings satisfies the first element. IAC argues, however, that he has not presented sufficient evidence of the other two elements to create an issue of fact for trial.
First, IAC contends that, because of an organizational restructuring that made Research and Development a subgroup within the Sales Department, its director consequently needed to possess sales and marketing experience. Collings, IAC argues, lacked the requisite business and social skills necessary to perform the new responsibilities. (Def's Mem. Supp. Summ. J. at 5.) However, assuming for purposes of this phase of the burden-shifting framework that the foregoing was a bona fide qualification for the new position, Collings has adduced sufficient evidence to support a jury finding either that he had the requisite experience or, alternatively, that his sales and marketing skills were not inferior to those of Jonathan Weinstein, the younger IAC employee who was selected as Director of Research and Development For example, Collings testified at his deposition that, during his tenure as Vice President, he provided "indirect" support to the Sales Department by authoring "proposals on specific jobs" for which IAC had competed (P. Ex. 9 at 19-21) and would sometimes "meet up with customers in support of specific projects." (Id. at 166.) Similarly, Weinstein testified that during the course of sales calls on which he accompanied Collings, he observed that Collings, although "not the best public speaker in the world," had "interface[d] well" and was "very good technically." (P. Ex. 8 at 29.) By comparison, Weinstein, who had formerly been a product manager, was described by Robert Schmitt, the President and Chief Executive Officer of IAC, as follows:
As product manager, Weinstein's responsibilities included "selling the product, going out speaking with customers, determining what their needs are and essentially conceiving and designing a system that will satisfy them, satisfy those needs." (Girshon Aff. Ex. F at 10.)
[Weinstein] was not a natural salesman. He is in my view a natural engineer, natural RD guy, but he is good enough through the 99 percent perspiration, able to make his way as a salesman, but it was a struggle for him and he knew it. He and I discussed it several times. And he made it work because he was committed to making it work, but it was not his natural spot.
(P. Ex. 7 at 188.)
Thus, the record contains evidence that Collings had some relevant sales and marketing experience that a jury could find qualified him to assume the enhanced customer contact that would be required of the Director of Research and Development. Moreover, given Schmitt's less-than-ringing endorsement of Weinstein's sales skills, it would be reasonable for a jury to find Collings no less qualified for the new position than Weinstein. Collings has therefore met his minimal burden of demonstrating that he was qualified to assume sales and marketing responsibilities.
IAC also contends that Collings, who had mostly worked on specialized, made-to-order products for IAC's customer base, was unqualified to oversee the development of standardized products that IAC began to emphasize following its reduction in force and concomitant corporate restructuring. (Def.'s Mem. Supp. Summ. J. at 5.) However, both Schmitt and Weinstein testified during their depositions that Collings, during his 12-year tenure as Vice President of Research and Development, had overseen the development of both specialized and standardized products (P. Ex. 7 at 83-84, P. Ex. 8 at 115.) Consequently, to the extent that expertise in standardized products was a bona fide qualification for the position of Director of Research Development, Collings has satisfied his minimal burden of demonstrating that he had the requisite experience in developing standardized products.
Second, IAC argues that Jonathan Weinstein, who was 52 years old at the time of his appointment as Director of Research and Development, was not "substantially younger" than Collings for purposes of establishing aprima facie case. (Def's Mem. Supp. Summ. J. at 7-8.) The Second Circuit has held, however, that a plaintiff who was more than eight years older than the person hired to fill a position he sought satisfied his prima facie burden of proving that the other employee was substantially younger. Tarshis v. The Riese Organization, 211 F.3d 30, 38 (2d Cir. 2000) (holding that "[a] difference of eight years between the age of the person discharged and his replacement . . . is not insignificant.") Moreover, Collings notes that in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308(1996), the very case in which the Supreme Court established the "substantially younger" standard, the Court reversed summary judgment for a defendant which had successfully argued below that the plaintiff, a member of the protected age class (56 years old), could not state an ADEA claim because he had been replaced by another member of the protected class (40 years old). Id. at 309-12. Although the Court did not explicitly hold that the sixteen-year age difference between the two employees satisfied the new "substantially younger" test, it presumably would not have remanded the case for further proceedings if it believed that the 16-year age difference could not as a matter of law be found substantial" for purposes of establishing a prima facie case. Accordingly, the twelve-year gap between Collings and Weinstein falls well within the established parameters within which a jury could find that an ADEA plaintiff was replaced by someone "substantially younger," and thus infer, absent proof of non-discriminatory reasons for replacing him, that he was discriminated against because of his age.
Consequently, Collings has set forth a prima facie case of age discrimination.
B. Legitimate. Non-Discriminatory Reasons Proffered By IAC
Moving to the next phase of the burden-shifting framework, IAC also contends that it had legitimate, non-discriminatory reasons from terminating Collings from his position as Vice President of Research and Development and hiring a substantially younger worker for the newlycreated (although seemingly identical) position of Director of Research and Development. The Court will consider IAC's proffered reasons in turn.
First, as stated above, IAC argues that as part of its reduction in force, it determined that it would be economically advantageous for the company to shift from the development of specialized products to more standardized ones. It also decided to include the Research and Development division within the Sales Department, therefore supposedly necessitating a director with sales and marketing experience. In light of those strategic decisions, IAC contends, Schmitt decided that Collings did not fit within the new corporate framework. (Def's Mem. Supp. Summ. J at 10.) However, as demonstrated above, there is ample evidence of record suggesting that Collings not only had the requisite sales and marketing experience that would have been necessary for him to serve as Director of Research and Development, but also had worked extensively on projects involving the types of standardized products that IAC would now be producing. Accordingly, a reasonable jury could find that these alleged reasons for Collings' termination were either false or pretextual.
Second, IAC contends that Schmitt selected Weinstein instead of Collings because he believed that Collings was deficient with regard to "communication skills, growth ability, [and] leadership ability (Def's Mem. Supp. Summ. J at 10; Girshon Aff. Ex. D at 117.) However, Schmitt did not explain the criteria he employed in evaluating Collings' abilities in those vaguely stated areas; instead, his deposition testimony consists of little more than conclusory statements about why he decided to terminate Collings:
In my judgment, Dave did not do well in those considerations. That's based on many years of experience personally with Dave interacting with Dave. When he was involved in both special projects — products as a project engineer as well as vice-president of research and development I interacted with Dave extensively throughout those years and had a very firm grasp of what I felt was his inability and unsuitability to fit the type of organization I was putting together.
(Girshon Aff Ex. D at 117-118.) The Second Circuit has held that a proffered non-discriminatory reason for terminating an employee "must be clear and specific. Were vague or conclusory averments of good faith sufficient to satisfy the employer's burden . . . employees seeking to demonstrate pretext would be unfairly handicapped." Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985). Schmitt's supposed reasons for terminating Collings could certainly be found by a jury to refute any inference of age discrimination, but they are far too inchoate to compel summary judgment. Accordingly, at this stage of the proceedings, the Court cannot conclude that LAC has demonstrated legitimate, non-discriminatory reasons for releasing Collings.
IAC also argues that because Schmitt was the only individual in the corporate hierarchy who was responsible for the decision to terminate Collings, his testimony cannot be contradicted by employees who were outside of the decision making process. (Def's Reply Mem. at 8-10.) If this were true, however, it would be virtually impossible for a plaintiff to prevail in an age discrimination case when an adverse employment action was taken based on a single supervisor's evaluation. But it is not. Testimony from others that could undermine the foundation and credibility of the evaluation can persuade a factfinder to reject the decisionmaker's account of his reasons for acting.
Third, IAC argues that it selected Weinstein to be Director of Research and Development because he "had superior technical and interpersonal skills relative to" Collings. (Def's Mem. Supp. Summ. J. at 10; Girshon Aff. Ex. E at 228-29.) However, assuming that such vague and conclusory explanations could support summary judgment, Collings has produced sufficient record evidence to permit a jury to find that the proffered explanations were either false or pretextual. For example, both Schmitt and Weinstein admitted that Collings was superior to Weinstein with regard to a number of technical skills. (P. Ex. 7 at 230; P. Ex. 8 at 37.) Additionally, as stated above in Section A, Schmitt's admission that Weinstein was not a "natural" salesman could lead a reasonable jury to infer that his interpersonal skills may not have been superior to Collings'.
Consequently, Collings has demonstrated that genuine issues of material facts exist concerning whether IAC's asserted legitimate, non-discriminatory reasons for terminating him were either false or pretexts for discriminating against him because of his age.
C. Affirmative Evidence of Discrimination Adduced by Collings
In addition to illustrating that genuine issues of material fact exist regarding whether IAC's stated reasons for terminating him were pretextual (which alone "may — or may not — be sufficient," depending on the circumstances, to support an inference of prohibited discrimination and defeat IAC's motion for summary judgment, Fisher v. Vassar College, 114 F.3d 1332, 1333 (2d Cir. 1997) (en banc)), Collings also points to evidence affirmatively suggesting that IAC sought to terminate managerial employees who were older than 40 years of age.
For example, Collings cites evidence that the overall age of the restructured company's senior management decreased significantly following the reduction in force. Notably, Collings argues that fourteen out of the sixteen senior positions eliminated by IAC in December 1998 had been held by employees who were over age 40. As a consequence, the average age of IAC management decreased after the downsizing from 56.43 to 46.33. (P. Mem. Opp. at 6-7; Girshon Ex. M.) IAC counters both by questioning the reliability of Collings' data and by pointing to statistics of its own, which purport to illustrate that over the period during which the reduction in force was implemented, the percentage of employees in the 40-49, 50-59 and over 60 age groups increased throughout the company. (Girshon Aff Ex. M.)
IAC's arguments about the probative force of Collings' statistical analysis go primarily to the weight of the evidence, and not to its admissibility, and are therefore appropriately made to a jury, which may well accept them. But Collings' rather straightforward counting of the ages of the senior executives at IAC before and after the purge that claimed his job is sufficient to establish that a genuine issue of material fact exists as to whether IAC actively engaged in a campaign to eliminate older managerial employees.
Collings also suggests that an IAC advertisement placed in the wake of the company's downsizing further bolsters his theory that the company discriminated against older employees. The advertisement, which was posted on IAC's website and run in newspapers such as The New York Times, touted IAC as providing its employees with "an opportunity to learn noise control engineering in a fast paced, young TQM organization with excellent growth potential." (P. Ex. 3.) IAC correctly points out that taken in isolation, such an excerpt cannot support an inference of age discrimination. However, when considered in combination with other evidence — such as the possibility that IAC's proffered reasons for terminating Collings were either false or pretextual — a reasonable jury could infer that IAC's reference to a "fast paced, young . . . organization" suggests a company that does not hold older employees in high regard and, perhaps, actively discriminates against them with respect to their terms and conditions of employment.
Collings has therefore adduced sufficient evidence to permit a reasonable factfinder to determine that he was let go because of his age. Consequently, IAC's motion for summary judgment is denied.
II. JAC's Motion to Strike Collings' Demand For Punitive Damages
IAC has also moved to strike Collings' prayer for punitive damages. (Def's Mem. Supp. Summ. J. at 16-17.) In his opposition brief, Collings concedes that punitive damages are not available under either the ADEA or the NYHRL, and the Court will therefore strike the demand to the extent Collings seeks punitive damages under those statutes. However, he seeks to preserve his punitive damages demand by requesting leave to amend the First Amended Complaint to allege a claim of age discrimination under the New York City Human Rights Law ("NYCHRL"), which does allow plaintiffs to obtain punitive damages from private employers. (P. Mem. Opp. Summ. J. at 29 n. 4.) IAC opposes Collings' motion on the grounds that it would be unduly prejudicial to be forced to defend against an NYCHRL claim at a such a late date in the proceedings. (Def.'s Reply Mem. at 16-17.)
In pertinent part, the statute reads as follows:
Except as otherwise provided by law, any person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction for damages, including punitive damages
New York City Administrative Code, § 8-502(a). Cf. Katt v. City of New York, ___ F. Supp.2d ___, 2001 WL 709265 (S.D.N.Y. 2001) (NYCHRL does not permit punitive damages against municipalities).
Under Fed.R.Civ.P. 15(a), leave to amend a complaint "shall be freely given when justice so requires." The Second Circuit has recognized, however, that leave may be denied when the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the defendant. Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000), cert denied, 121 S.Ct. 1362(2001);Cresswell v. Sullivan Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).
Collings does not explain why he has waited until this stage of the proceedings to seek leave to assert the NYCHRL claim. Neither, however, does IAC explain why it would be prejudiced by having to defend against that claim, which is virtually identical to the ADEA and NYHRL claims that have been pending from the beginning of the case. Considering that federal, state and city age discrimination claims are all evaluated under the same burden-shifting framework, permitting Collings leave to amend will not fundamentally alter his theory of liability or the proof that he will need to present to the jury Moreover, IAC had ample Opportunities to move to strike Collings' punitive damages demand; having failed to do so until now, it has had every opportunity to obtain discovery about Collings' punitive damages theory, which has remained active since he first filed a complaint on December 8, 1999.
Of course, Collings will only be permitted to present punitive damages proof that has been timely disclosed to IAC in accordance with the requirements of the Federal Rules of Civil Procedure, the Local Rules of this District and this Court's Individual Practices.
Accordingly, Collings shall have leave to file an amended complaint within 30 days that asserts an age discrimination claim against IAC under the NYCHRL, that may include a demand for punitive damages.
III. IAC's Motion To Strike Collings' Demand For Liquidated Damages
Next, IAC moves to strike Collings' demand for liquidated damages under the ADEA, which, IAC concedes, are available for a willful violation of that statute. See, e.g., TWA v. Thurston, 469 U.S. 111, 127-28(1985). IAC principally contends that there is no evidence to support Collings' theory that IAC knowingly or recklessly disregarded whether its conduct toward him was prohibited by the ADEA (Def's Mem. Supp. Summ. J. at 17-18.) For example, it cites to a portion of Collings' deposition, in which he testified that "I don't think their causing me harm was the intent of the action. . . ." (Girshon Aff. Ex. C at 200.)
Collings also testified, however, that "one or more individuals in the company . . . were quite willing to cause harm to me in the interest of whatever their own agenda was." (P. Ex. 9 at 200.) More importantly, it is not clear why Collings' subjective beliefs or opinions about IAC's intentions are relevant to a jury's determination of wilfulness. At the summary judgment stage, at any rate, the issue is whether there is enough evidence to raise a genuine issue as to whether LAG wilfully violated the statute.
Gollings points to sufficient evidence to meet that standard. For example, he points to Schmitt's testimony that he and other IAC officers were aware of the ADEA and its prohibition against using age as a factor in taking adverse employment actions against individuals 40 years of age or older. (P. Ex. 7 at 218-19.) He also notes a waiver form presented to him by IAC at the time of his termination, which would have allowed him to receive a lump-sum payment in exchange for surrendering his right to sue IAC under a variety of statutes, including the ADEA, the NYHRL and the NYCHRL. (P. Ex. 2 at 3-4.) Consequently, a reasonable jury could conclude that IAC was aware of the pertinent statutes prohibiting age discrimination, but nevertheless elected to discriminate against certain protected employees, including Collings, on the basis of their age. IAC's motion to strike Collings' liquidated damages demand is therefore denied.
IV. IAC's Motion To Strike Collings' Demand For Back And Front Pay
Citing Collings' supposed failure to mitigate compensatory damages sustained as a result of the alleged age discrimination, IAC also moves to strike his prayer for back and front pay. In support of the motion, it principally argues that he failed to "use reasonable efforts to seek other suitable employment," or to follow up adequately on any leads that transpired during his post-termination job search. (Def's Mem. Supp. Summ. J. at 18-20.)
As Collings notes, however, determining whether an employment discrimination plaintiff has acted reasonably to mitigate damages is an issue for the finder of fact. See e.g., Sharkey v. Lasmo, 214 F.3d 371, 374 (2d Cir. 2000). Here, there is evidence from which a jury could conclude that Collings, having failed to find a job comparable to that which he held at IAC, decided to start his own consulting business. (See e.g., Girshon Aff Ex. C at 52, 55, 57-60, 63-64.) It is for the jury to determine whether Collings' apparent decision to turn to running a home business constituted a reasonable attempt at mitigation. See e.g., Carden v. Westinghouse Elec. Corp., 859 F.2d 996, 1004-05 (3d Cir. 1988) (holding that operating a home business could be a reasonable mitigation effort). Accordingly, IAC's motion to strike Collings' demand for back and front pay is denied.
CONCLUSION
For the foregoing reasons, IAC's motion for summary judgment is denied. IAC's motions to strike Collings' demand for liquidated damages, back pay and front pay are denied. IAC's motion to strike Collings' demand for punitive damages under the ADEA and the NYHRL is granted; however, Collings shall have leave to amend his complaint within 30 days to assert an age discrimination claim against IAC, including a demand for punitive damages, under the NYCHRL.
SO ORDERED