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permitting damages for the medical costs plaintiffs incurred due to the termination of coverage
Summary of this case from Messer v. Board of Education of City of New YorkOpinion
1:00-CV-217 (FJS/RFT)
December 7, 2001
The Towne Law Offices, P.C., Susan F. Bartkowski, Esq., Albany, New York, for Plaintiff.
DeGraff, Foy, Holt-Harris Kunz, Llp, Glen P. Doherty, Esq., Albany, New York, for Defendant.
MEMORANDUM — DECISION AND ORDER
I. INTRODUCTION
Plaintiff brings this action against Defendant alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, as well as violations of the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (McKinney 2001), sounding in employment discrimination, hostile work environment, and quid pro quo sexual harassment. Plaintiff also brings claims sounding in common law assault, and under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") (ERISA amendments) pursuant to 29 U.S.C. § 1161 et seq. Defendant is a national wireless telecommunications company headquartered in Kansas City, Missouri. As part of its national network, Defendant provides digital wireless services in Albany, New York, where Defendant hired Plaintiff as a Direct Account Executive. Plaintiff began employment on April 27, 1998, with the specific responsibilities of prospecting, marketing, selling, and developing direct sales accounts in the Albany area.
Plaintiff's counsel conceded at oral argument that Plaintiff's assault claim was time-barred and, therefore, she withdrew that claim.
It is undisputed that over the course of the eight-month tenure of her employment, Plaintiff consistently failed to meet Defendant's minimum acceptable performance standards as measured by monthly sales/activations. Plaintiff received repeated and escalating documented notification of her performance deficiency and Defendant's likely course of action (i.e. termination) absent improvement. It is also undisputed that Plaintiff failed to report to work as required, with or without notice, on several occasions in November and December 1998.
On December 30, 1998, Defendant decided to terminate Plaintiff's employment. Plaintiff was officially terminated on January 4, 1999, for failure to achieve monthly quotas and for failure to report to work as requested and required.
On March 16, 1999, Plaintiff filed a discrimination charge against "Sprint Communications Company, L.P." with the New York State Division of Human Rights. Defendant filed a response to the charge on May 11, 1999. On November 19, 1999, the New York State Division of Human Rights issued a Notice of Right-to-Sue to Plaintiff. On February 4, 2000, Plaintiff filed the present action.
Pursuant to statute, a jurisdictional prerequisite to bringing a Title VII action is the filing of a discrimination charge with the EEOC naming the defendant. See 42 U.S.C. § 2000e-(5)(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). While a defendant who has not been named may not be sued in federal court, Gallagher v. IBEW, 127 F. Supp.2d 139, 143 (N.D.N Y 2000), the Second Circuit has recognized an "identity of interest" exception to the rule. See Johnson, 931 F.2d at 209. As the Court noted at oral argument, in light of the facts presented on the record, the "identity of interest" exception applies. Therefore, the Court may properly exercise jurisdiction over this matter.
Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court heard oral argument in support of, and in opposition to, this motion on November 9, 2001. At the close of argument, the Court reserved decision. The following constitutes the Court's determination with respect to the pending motion.
II. DISCUSSION
A. Standard of Review
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the non-moving party based on the evidence presented, the legitimate inferences drawn from that evidence in favor of the non-moving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The burden of proof analysis utilized in cases under Title VII finds equal application to claims brought pursuant to the New York Human Rights Law. See N.Y. Exec. Law §§ 290 et seq.; Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996).
To establish a prima facie case of sex discrimination under Title VII, Plaintiff must establish (1) that she belongs to a protected class, (2) that she was qualified for the position held, (3) that she suffered from an adverse employment action, and (4) that the adverse action occurred in circumstances giving rise to the inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). Where Plaintiff is successful in establishing a prima facie case, the burden shifts to Defendant to articulate some legitimate, non-discriminatory reason for the employment action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981). If Defendant satisfies this burden, Plaintiff must then prove, by a preponderance of the evidence, that Defendant's reasons were pretextual. Regardless of the mechanics of the burden shifting, the "ultimate burden" of persuasion remains at all times with Plaintiff. See St. Mary's Honor Ctr., 509 U.S. at 506.
There is no dispute that Plaintiff is a member of a protected class and that she suffered an adverse employment action. There is also no dispute that Plaintiff consistently failed to meet the minimum required sales/activations quotas or that Plaintiff failed to report to work as required. However, that alone does not necessarily serve as a bar to establishing a prima facie case absent a showing of "an absolute . . . lack of qualifications." Burdine, 450 U.S. at 254. Therefore, the core issue in this claim falls under the fourth element, i.e., whether the adverse action occurred in a manner giving rise to an inference of discrimination.
Plaintiff's complaint and oral argument focused on the alleged discriminatory treatment of Plaintiff relative to her male co-workers. Specifically, Plaintiff alleged unfair distribution of leads by Joseph Probst as the basis for the sex discrimination claim. Plaintiff alleged that Probst provided more, and better quality, leads to male co-workers than those he provided to her, specifically pointing to leads awarded to her co-worker Jeffery Bacher. During her deposition testimony, however, Plaintiff conceded that she was unaware of specific leads given to Bacher and that many of the leads Bacher worked off were originated by personal contacts he had outside the company. Similarly, Plaintiff's claims that "large national accounts" were taken from her and that she was excluded from firm-wide golf tournaments were later proven unfounded and effectively minimized by Plaintiff's deposition testimony. In sum, the Court finds that the conclusory allegations of discrimination raised in Plaintiff's complaint and affidavit, which were later qualified and diminished by Plaintiff's testimony at her deposition, are insufficient to raise an inference of discrimination.
Assuming arguendo that the Court were to find that Plaintiff had established a prima facie case, the burden shifts to Defendant to "articulate some legitimate, non-discriminatory reason" for Plaintiff's termination. McDonnell Douglas Corp., 411 U.S. at 802. In the instant case, Defendant maintains that Plaintiff was terminated for failure to meet required minimum sales/activation quotas and for failure to report to work as required and requested. Thus, to prevail, Plaintiff must prove, on the basis of the record before the Court, that Defendant's proffered legitimate, non-discriminatory reasons for Plaintiff's termination are merely a pretext or a sham. See St. Mary's Honor Ctr., 509 U.S. at 506. To prove that these explanations are pretextual, Plaintiff must "`produce not simply "some" evidence, but "sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citation omitted)).
Again, the material facts with respect to Plaintiff's performance are not disputed. In her first three months of employment, Plaintiff did not meet Defendant's minimum acceptable performance standard of forty activations per month. As a result of her failure to meet the established quotas, Plaintiff received notices calling for improved performance; and management arranged for twice-a-day meetings to plan and assess daily progress. In August 1998, then-manager Joseph Probst notified Plaintiff that her monthly quota was reduced to thirty activations. Plaintiff was further advised that she would be excused from the daily meetings upon satisfactory achievement of these goals. Plaintiff had nineteen activations in the month of August. In September 1998, Plaintiff received a written warning for her failure to meet the August monthly quota, stating expressly "failure to show immediate and sustained improvement may subject [Plaintiff] to further corrective action, up to and including termination." Included in the communication was an action plan to assist Plaintiff's efforts.
Plaintiff failed to meet established quotas in September, October, and November 1998. Plaintiff also failed to report for required meetings on November 23 and 24, 1998. On December 3, 1998, Plaintiff met with District Sales Manager Michael Magner, who issued a final written warning concerning Plaintiff's performance, specifically identifying performance deficiencies with respect to Plaintiff's failure to achieve monthly quotas and Plaintiff's failure to report to work when requested or required. The warning explicitly stated that continued deficient performance would result in termination.
On December 24 and 28, 1998, Plaintiff failed to report to work, without notice or explanation. At 10:47 p.m., on December 29, 1998, Plaintiff sent Magner an e-mail stating that she was taking the rest of the week off, indicating that she would return on Monday, January 4, 1999. On December 30, 1998, Defendant decided to terminate Plaintiff's employment. Plaintiff was officially terminated on January 4, 1999, for failure to achieve monthly quotas and for failure to report to work as requested and required.
In the present case, Plaintiff simply refuses to acknowledge the legitimate, non-discriminatory reasons for termination proffered by Defendant; rather, Plaintiff merely reiterates the fact that she was the only female in her department and the conclusory allegations that male co-workers were provided with more and better quality leads — again, an allegation largely refuted in Plaintiff's deposition testimony. In sum, Plaintiff fails to produce sufficient evidence to support a finding that the legitimate, non-discriminatory reasons proffered by Defendant were pretextual and that it is more likely than not that discrimination was the real reason for her termination. Accordingly, the Court grants Defendant's motion for summary judgment with respect to Plaintiff's Title VII sex discrimination claim.
Defendant seeks to rebut this line of argument by citing to the recent Second Circuit decision in Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001), for the proposition that "the fact that both male and female employees are treated similarly, if badly, does give rise to the inference that their mistreatment shared a common cause that was unrelated to their sex." Id. at 254 (citations omitted). Defendant points to the equally accommodating treatment of Jeffery Bacher, a male co-worker who began working for Defendant on the same day as Plaintiff. Like Plaintiff, Bacher failed to meet his quota goals in May, June, July, August, September, October, November, and December of 1998. Similar to Plaintiff, Bacher had numerous warnings and consultations, on the same dates, over the course of the eight months of his employ and was subjected to the same daily regimen of planning and assessment. Defendant terminated Bacher on January 11, 1999 for failure to meet established quotas. While not dispositive, the parallel career trajectory of Bacher is probative of the lack of an inference of discrimination.
C. Hostile Work Environment Claim
The Second Circuit's recent opinion in Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001), following the perceived trend of the Supreme Court in Title VII jurisprudence, see Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), counsels against the classification of the various "means" of sex-based discrimination (i.e. hostile work environment and quid pro quo harassment), in recognition of the fact that such traditional categories do not reflect statutory proscriptions separating "harassment" proper, from other forms of discrimination. Rather, the Second Circuit noted that the Supreme Court has indicated that the limited utility of such traditional classifications is found in that they state factual allegations "about the particular mechanism" by which a defendant discriminates against a plaintiff. Nevertheless, responsive to Plaintiff's complaint setting forth each claim as a distinct cause of action, the Court will address each claim separately.
To maintain a hostile work environment claim, Plaintiff must establish "(1) that the `workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [her] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.'" Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotation and citation omitted).
Because there is no dispute that Joseph Probst was Plaintiff's supervisor, Defendant is presumed absolutely liable for his acts of alleged harassment. See Richardson, 180 F.3d at 441 ("an employer is presumed absolutely liable in cases where the harassment is perpetrated by the victim's supervisor, . . .") (citing Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
In Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), the Supreme Court set forth a non-exclusive list of factors that a court should consider to determine whether a workplace is permeated with discrimination so severe or pervasive as to support a Title VII claim. These factors include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a "mere offensive utterance;" (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson, 180 F.3d at 437 (citing [Harris,] at 23, 114 S.Ct. 367) (other citation omitted). In determining whether a particular workplace is sufficiently hostile to permit an actionable claim, the Court must consider the evidence "cumulatively" to adequately assess the "totality of circumstances." See Richardson, 180 F.3d at 437.
The factual allegations raised in the complaint giving rise to the hostile work environment claim are as follows: instances in which Plaintiff's then-manager Joseph Probst made inappropriate inquiries regarding Plaintiff's "dating and eligibility status," comments with respect to Plaintiff's undergarments, unwelcome touching of Plaintiff's back and shoulders, and an alleged "stalking" incident by Probst. Plaintiff alleges generally that she was subjected to sexually harassing conduct throughout her approximately eight months of employment.
As above, Plaintiff's allegations are substantially diminished by the inconsistencies and modifications in her deposition testimony. Specifically, Plaintiff's deposition testimony reveals that the conversation regarding her "dating and eligibility status" was a single instance which promptly ceased when Plaintiff indicated that she felt the questions were inappropriate. The comments Probst made with respect to Plaintiff's undergarments were described in her deposition testimony as responsive to Plaintiff's raising the issue and in her mind were non-offensive in nature. The touchings are described in the deposition testimony as pats on the back and a single instance where Probst placed his hands on Plaintiff's shoulders. With regard to the "stalking" incident, Plaintiff testified that she thought she saw Probst's car outside of her house on a single occasion.
Based upon the record before it, the Court cannot find that Plaintiff has come forward with sufficient evidence to show that the workplace was permeated with discriminatory conduct so severe or pervasive as to alter the conditions of her employment. Further, it is well-settled that "sweeping allegations unsupported by admissible evidence do not raise a genuine issue of material fact." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997) (citation omitted). Therefore, based upon the totality of the circumstances and drawing all reasonable inferences in Plaintiff's favor, the Court concludes that Plaintiff has failed to establish that she was subjected to a hostile work environment. Accordingly, the Court grants Defendant's motion for summary judgment with respect to Plaintiff's Title VII hostile work environment claim.
D. Quid Pro Quo Sexual Harassment Claim
To establish a prima facie quid pro quo sexual harassment claim, Plaintiff must present evidence that she was subjected to unwelcome sexual advances or conduct and that her reaction and response to such conduct was subsequently used as a basis for decisions affecting the "compensation, terms, conditions or privileges of her employment." See Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). In the context of a "refusal," as opposed to a "submission" case, the gravamen of a quid pro quo claim is that a tangible job benefit or privilege is conditioned on an employee's submission to sexual blackmail and that adverse consequences follow from the employee's refusal. See Carrero v. N.Y. City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989).
The factual allegations supporting the quid pro quo sexual harassment claim are confined to the incident involving Probst's inquiries with regard to Plaintiff's "dating and eligibility status." Even assuming Plaintiff's allegations to be true, the isolated inquiries regarding Plaintiff's "dating and eligibility status" are insufficient to constitute sexual suggestion or proposition. Furthermore, Plaintiff fails to establish any causal connection between the alleged incident and the adverse employment action. Accordingly, the Court finds that Plaintiff's quid pro quo claim fails both as a distinct cause of action and as a factual allegation raising an inference of sex discrimination, see Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001).
E. COBRA Claim
COBRA requires that an employer provide an employee with the option of electing continuation coverage under the same terms of the employer's health plan after some "qualifying event" occurs which would otherwise end the employee's health insurance coverage. See 29 U.S.C. § 1161. Termination of employment constitutes a "qualifying event." See 29 U.S.C. § 1163(2). This continuation period must last for at least eighteen months, see 29 U.S.C. § 1162(2)(A)(i), and the employer may require the employee to pay the premiums during that period. Furthermore, the statute requires that the employer must notify the employee of her right to elect COBRA benefits within fourteen days of the qualifying event (termination). See 29 U.S.C. § 1166(a)(4)(A), and (c). The employee then has sixty days from the date of that notice in which to decide whether or not to elect continuation coverage. See 29 U.S.C. § 1165(1).
Additionally, ERISA provides for civil enforcement actions, stating in pertinent part:
Any administrator (A) who fails to meet the requirements of paragraph (1) or (4) of section 1166 of this title . . . with respect to a participant or beneficiary . . . may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure . . ., and the court may in its discretion order such other relief as it deems proper.29 U.S.C. § 1132(c)(1).
Plaintiff alleges that Defendant was delinquent in providing the continuation notice following her termination and as a result she lost her medical coverage for a period of four months during which time she declined needed treatment and incurred medical expenses for other treatment for a pre-existing back condition.
Pursuant to the statutory framework, notice was required on or before January 18, 1999, within fourteen days of the January 4, 1999 termination. Defendant concedes that the notice was not sent until March 31, 1999. Plaintiff executed the COBRA election document on May 3, 1999, electing coverage back to February 1, 1999, and continuing on for the full eighteen-month period until July 31, 2000.
In view of Plaintiff's subsequent election of coverage for the full eighteen-month period, and Defendant's retroactive application of coverage to February 1, 1999, the Court finds the discretionary award of damages, in the form of a civil penalty, unwarranted.
Beyond the discretionary civil penalty provided under the statute, the Court is unaware, on the basis of the record before it, of any injuries Plaintiff sustained as the result of Defendant's late notice. Accordingly, the Court orders Plaintiff to provide the Court with any relevant submissions on the issue of damages. Specifically, the Court directs Plaintiff to provide any and all itemized medical bills and other expenses, including off-setting reimbursements, for the purposes of calculating appropriate damages. Plaintiff is to file these submissions with the Court no later than thirty days following the date of this Memorandum-Decision and Order. Defendant may file responsive submissions no later than fourteen days after service by Plaintiff.
In a post-argument submission to the Court, Defendant asserts that in response to interrogatories Plaintiff has previously indicated no damages in connection with the COBRA claim.
F. Plaintiff's State Law Claims
As noted above, the burden of proof analysis utilized in cases under Title VII finds equal application to claims brought pursuant to the New York Human Rights Law. See N.Y. Exec. Law §§ 290 et seq.; Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996). Therefore, where, as here, Plaintiff's claims fail as a matter of law under Title VII, the New York State Human Rights Law claims are similarly dismissed with prejudice.
III. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and oral arguments, the applicable law, and for the reasons stated herein, the Court hereby ORDERS that Defendant's motion to for summary judgment is GRANTED with respect to the sex discrimination, hostile work environment, and quid pro quo sexual harassment claims; and the Court further
ORDERS that Plaintiff's state law discrimination claims are DISMISSED WITH PREJUDICE; and the Court further
ORDERS that Plaintiff provide the Court with the necessary submissions on the issue of damages relating to the COBRA claim, specifically, that Plaintiff provide any and all itemized medical bills and other expenses, including off-setting reimbursements, for the purposes of calculating appropriate damages. Plaintiff is to file these submissions with the Court no later than thirty days following the date of this Memorandum-Decision and Order. Defendant may file responsive submissions no later than fourteen days after service by Plaintiff.
IT IS SO ORDERED.