Opinion
No. 03 Civ. 2698 (LTS)(RLE).
August 21, 2006
VLADECK, WALDMAN, ELIAS ENGELHARD, P.C. By: Anne L. Clark, Esq. New York, NY, Attorneys for Plaintiff.
EPSTEIN BECKER GREEN, P.C. By: Barry L. Asen, Esq. John H. Pope, Esq. New York, NY.
Melissa L. Weiss, Esq. OPPENHEIMERFUNDS, INC. New York, NY, Attorney for Defendant.
OPINION AND ORDER
Before the Court is the motion of Defendant OppenheimerFunds, Inc. ("Defendant" or "OFI") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the complaint in this employment discrimination action. Plaintiff Joseph Krist ("Plaintiff') asserts that Defendant violated the federal Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-34 ("ADEA"); Section 290 of the New York Executive Law (McKinney 1993 Supp. 2001) ("Executive Law"); and the Administrative Code of the City of New York § 8-107, et seq. ("City Code"), in connection with the termination of his employment. Plaintiff also asserts that Defendant violated the Executive Law and City Code by failing to make a reasonable accommodation of his disabilities. The Court has subject matter jurisdiction of Plaintiff's ADEA claim pursuant to 28 U.S.C. § 1331, and has supplemental jurisdiction over the Executive Law and City Code age and disability discrimination claims pursuant to 28 U.S.C. § 1367.
The Court has considered thoroughly all submissions in connection with the instant motion. For the following reasons, Defendant's motion for summary judgment is granted with respect to Plaintiff's age discrimination claim. The Court declines to exercise supplemental jurisdiction over the remaining state and local law claims, which are accordingly dismissed without prejudice.
BACKGROUND
The following facts are undisputed unless characterized otherwise. Plaintiff was employed by OFI from 1989 until his position was terminated on July 26, 2002. (Pl.'s S.D.N.Y. Local Civil Rule 56.1 Statement ("Rule 56.1 Stmt.") ¶¶ 78, 98, 219; Def.'s Rule 56.1 Stmt. ¶ 78.) During the time relevant to this action, Plaintiff worked as a Senior Municipal Bond Analyst on the Municipal Bond Team ("MBT"), a part of OFI's Fixed Income Department. (Pl.'s Rule 56.1 Stmt. ¶¶ 1, 98; Def.'s Rule 56.1 Stmt. ¶ 1.) The Fixed Income Department was supervised by Jerry Webman ("Webman"). (Pl.'s Rule 56.1 Stmt. ¶ 16; Def.'s Rule 56.1 Stmt. ¶ 16.) Plaintiff's duties included analyzing municipal bonds and making recommendations to Merrell Hora ("Hora"), the portfolio manager and head of the MBT, analyzing and reporting on new bonds, and monitoring corporate activity that could potentially have an impact on current investments. (Pl.'s Rule 56.1 Stmt. ¶¶ 19, 87, 100-101.) In addition to Plaintiff and Hora, three other individuals were employed in the MBT — Mark Paris, Brian Reid, and Heidi Heikenfeld. (Pl.'s Rule 56.1 Stmt. ¶¶ 35, 157; Def.'s Rule 56.1 Stmt. ¶ 35.)
Prior to the tragedy of September 11, 2001, OFI's Manhattan office was located in tower two of the World Trade Center. (Pl.'s Rule 56.1 Stmt. ¶ 5; Def.'s Rule 56.1 Stmt. ¶ 5.) Although Plaintiff and several other OFI employees were present on that day, fortunately, no OFI employee was seriously injured during the buildings' collapse. (Pl.'s Rule 56.1 Stmt. ¶¶ 6, 9; Def.'s Rule 56.1 Stmt. ¶¶ 6, 9.) Plaintiff alleges that the trauma he experienced on September 11th resulted in two medical conditions. First, Plaintiff suffered from depression and anxiety, which were eventually diagnosed as symptoms of Post Traumatic Stress Disorder. (Pl.'s Rule 56.1 Stmt. ¶¶ 122, 128.) Second, Plaintiff began experiencing stomach pain and other discomforts in October 2001. (Id. ¶ 125.) Upon examining Plaintiff in January 2002, his doctors determined that one of Plaintiff's major internal organs was perforated or damaged and required immediate surgery. (Id. ¶¶ 14, 139; Def.'s Rule 56.1 Stmt. ¶ 14.) During the procedure, surgeons discovered that, in fact, Plaintiff's intestine had ruptured and a portion of it was removed. (Pl.'s Rule 56.1 Stmt. ¶ 140.)
Following the initial operation, Plaintiff took a paid medical leave of absence, from January 17, 2002 to February 15, 2002. (Id. ¶¶ 15, 141, 143; Def.'s Rule 56.1 Stmt. ¶ 15.) Once it was determined that Plaintiff was sufficiently recovered to work from home, OFI allowed him to do so, with the consent of his physician. (Pl.'s Rule 56.1 Stmt. ¶¶ 18, 144-45; Def.'s Rule 56.1 Stmt. ¶ 18.) Plaintiff was, however, informed that he would be required to return to work in the office once his condition stabilized. (Pl.'s Rule 56.1 Stmt. ¶ 19; Def.'s Rule 56.1 Stmt. ¶ 19.) This arrangement continued from February 19, 2002 until April 23, 2002, when Plaintiff underwent a second operation. (Pl.'s Rule 56.1 Stmt. ¶¶ 20, 149; Def.'s Rule 56.1 Stmt. ¶ 20.) Following the second operation, Plaintiff took another paid medical leave until May 28, 2002, after which time he resumed working from home. (Pl.'s Rule 56.1 Stmt. ¶¶ 21-22; Def.'s Rule 56.1 Stmt. ¶¶ 21-22.)
In May 2002, Webman and Leonard Darling, OFI's Chief Investment Officer, decided to move the Manhattan-based MBT ("Manhattan MBT") to the OFI office in Rochester, New York, where the team would merge with the Rochester-based MBT ("Rochester MBT") under the supervision of Ronald Fielding ("Fielding"), OFI's Senior Vice President and portfolio manager of the Rochester MBT. (Pl.'s Rule 56.1 Stmt. ¶¶ 23, 26; Def.'s Rule 56.1 Stmt. ¶¶ 23, 26.) Defendant claims that the merged unit was to be run in the "Rochester style," which utilized a different approach to investing and managing the teams, and required frequent travel to construction projects and conferences around the country. (Pl.'s Rule 56.1 Stmt. ¶¶ 27-32; Def.'s Rule 56.1 Stmt. ¶¶ 27-32.) Defendant further asserts that Fielding, the new group leader, required all group members to work out of the same office space. (Def.'s Rule 56.1 Stmt. ¶¶ 61, 63.) At the time Webman announced the merger to the Manhattan MBT, OFI planned to evaluate each team member individually as a prospect for the move to the Rochester group, which would be effective on July 1, 2002. (Pl.'s Rule 56.1 Stmt. ¶¶ 33-35, 155, 156; Def.'s Rule 56.1 Stmt. ¶¶ 33-35.) Plaintiff alleges that Webman made the following remarks to Fielding concerning certain younger members of the group, prior to the commencement of the interviews: Webman described Heikenfeld as a "young, bright analyst" with a "striking figure," Reid as "an attractive young analyst that we'd like to keep in the company somewhere," and Paris as "eager," and having a "fairly high energy level." (Pl.'s Rule 56.1 Stmt. ¶¶ 168-70.)
On June 10, 2002, Fielding began interviewing the MBT members to assess their potential in the Rochester environment. (Id. ¶ 179.) During Plaintiff's interview, Fielding expressed doubts concerning Plaintiff's prospects for the move to Rochester. (Id. ¶¶ 38-39; Def.'s Rule 56.1 Stmt. ¶¶ 38-39.) Plaintiff was the only member of the Manhattan MBT as to whom Fielding expressed uncertainty concerning prospects of employment in Rochester. (Pl.'s Rule 56.1 Stmt. ¶¶ 167-70, 181.) However, following the interviews of the Manhattan MBT members, Craig Dinsell ("Dinsell"), OFI's Executive Vice President for Human Resources, decided that all members of the Manhattan MBT would be extended the same three-month conditional offer of employment. (Id. ¶ 40; Def.'s Rule 56.1 Stmt. ¶ 40.) The three-month evaluation period was instituted to determine the Manhattan MBT members' potential to adapt to the new management style in Rochester. (Pl.'s Rule 56.1 Stmt. ¶¶ 35, 155, 184; Def.'s Rule 56.1 Stmt. ¶ 35.) Each member of the Manhattan MBT was given the option of joining the Rochester group for the three-month conditional period, searching for other positions within OFI's New York office, or resigning with a severance package. (Pl.'s Rule 56.1 Stmt. ¶¶ 35-37; Def.'s Rule 56.1 Stmt. ¶¶ 35-37.)
On June 5, 2002, Plaintiff notified Amy Adamshick ("Adamshick"), Relationship Manager in OFI's Human Resources Department, that he would be physically unable to make the move to Rochester on July 1. (Pl.'s Rule 56.1 Stmt. ¶¶ 42-43; Def.'s Rule 56.1 Stmt. ¶¶ 42-43.) Plaintiff alleges that he requested permission to do his trial period from Manhattan, first working from home and then from OFI's Manhattan offices. (Affirmation of Joseph Krist in Opp'n to Def.'s Mot. for Summ. J. ("Krist Affirmation") ¶ 8.) Plaintiff again wrote to Adamshick on June 10, informing her that he would be unable to begin in Rochester on July 1, and asking about his available options. (Pl.'s Rule 56.1 Stmt. ¶ 45; Def.'s Rule 56.1 Stmt. ¶ 45.) One of the options presented to Plaintiff was that he start disability leave on reduced compensation until he had recovered from his operation, at which time he could begin his three-month trial period in the Rochester office. (Pl.'s Rule 56.1 Stmt. ¶¶ 62-64; Def.'s Rule 56.1 Stmt. ¶¶ 62-64.)
Plaintiff asserts that he did not believe he had been offered a delayed start-date option; Defendant asserts that Plaintiff rejected that option. (Pl.'s Rule 56.1 Stmt. ¶ 65; Def.'s Rule 56.1 Stmt. ¶ 65.) In any event, it is undisputed that Plaintiff sought other employment within OFI's New York offices. (Pl.'s Rule 56.1 Stmt. ¶ 65; Def.'s Rule 56.1 Stmt. ¶ 65.) To that end, OFI's Human Resources personnel gave Plaintiff an Open Job Report listing vacant positions in New York. (Pl.'s Rule 56.1 Stmt. ¶ 66; Def.'s Rule 56.1 Stmt. ¶ 66.) Plaintiff interviewed with Angelo Manioudakis for a position as Senior High-Grade Investment Analyst. (Pl.'s Rule 56.1 Stmt. ¶¶ 69-70, 218; Def.'s Rule 56.1 Stmt. ¶¶ 69-70.) This position included analyzing corporate investment-grade taxable bond issues. (Pl.'s Rule 56.1 Stmt. ¶¶ 70-71; Def.'s Rule 56.1 Stmt. ¶¶ 70-71.) Plaintiff also interviewed with Digby Clements for a position as a Fixed Income Product Manager, a position which required a background in marketing and sales of taxable bonds. (Pl.'s Rule 56.1 Stmt. ¶¶ 74-75; Def.'s Rule 56.1 Stmt. ¶¶ 74-75.) Plaintiff alleges that Webman told him he was qualified for each of the positions. (Krist Affirmation ¶ 13.) Plaintiff was not hired for either position. Defendant claims that the persons hired for the positions were more qualified than Plaintiff and had the necessary educational background, experience, and training for the jobs. (Def.'s Rule 56.1 Stmt. ¶¶ 71-73, 75-77.) OFI terminated Plaintiff's employment on July 26, 2002. (Pl.'s Rule 56.1 Stmt. ¶ 78; Def.'s Rule 56.1 Stmt. ¶ 78.) Plaintiff was forty-six years old at the time of his termination. (Pl.'s Rule 56.1 Stmt. ¶¶ 4, 157; Def.'s Rule 56.1 Stmt. ¶ 4.)
Of Plaintiff's Manhattan MBT colleagues, Brian Reid, a thirty-year old male, declined the move to Rochester and was hired in OFI's New York office as a High-Yield Analyst with the Fixed Income High-Yield team, a position for which he had acquired experience at a previous job. (Pl.'s Rule 56.1 Stmt. ¶¶ 81-83; Def.'s Rule 56.1 Stmt. ¶¶ 81-83.) Heidi Heikenfeld, a twenty-three year old female, was offered a position as a Junior Analyst on the New York Global Equity Team. (Pl.'s Rule 56.1 Stmt. ¶¶ 84-85; Def.'s Rule 56.1 Stmt. ¶¶ 84-85.) The other members of the Manhattan MBT, Paris and Hora, also declined to make the move to Rochester, though neither sought a position within OFI's New York office. (Pl.'s Rule 56.1 Stmt. ¶¶ 86-88; Def.'s Rule 56.1 Stmt. ¶¶ 86-88.)
DISCUSSION
Summary judgment is to be granted in favor of a moving party where 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 moving party bears the burden of establishing that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is considered material to summary judgment "if it `might affect the outcome of the suit under the governing law,'" and an issue of fact is a genuine one where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson, 477 U.S. at 248). The Second Circuit has explained, however, that "[t]he party against whom summary judgment is sought . . . `must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Plaintiff's Age Discrimination Claims
Because Plaintiff has not proffered any direct evidence of discrimination, his claims of age discrimination arising under the ADEA, the Executive Law, and City Code are analyzed under the three-step burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). In the context of a motion for summary judgment, a plaintiff must first establish a prima facie case of discrimination by showing that (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position; and (4) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Id. at 802.
The same analytical framework is used to determine liability with respect to Plaintiff's age discrimination claims under the ADEA, the Executive Law and, the City Code. See Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000); Song v. Ives Labs. Inc., 957 F.2d 1041, 1046-47 (2d Cir. 1992).
Once the plaintiff has made out a prima facie case, the burden shifts to the employer to offer some legitimate, nondiscriminatory rationale for its actions. McDonnell Douglas, 411 U.S. at 802. An employer sustains its burden "by producingany evidence of nondiscriminatory reasons, whether ultimately persuasive or not." Weeks v. New York State Div. of Parole, No. 00 CV 5865(SJ), 2002 WL 32096593, at *4 (E.D.N.Y. Nov. 25, 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). "The employer need not prove by a preponderance of the evidence that the reasons for his actions were not discriminatory, but may simply `present clear and specific reasons for the action.'" Gibbs v. Consol. Edison Co. of New York, Inc., 714 F. Supp. 85, 89 (S.D.N.Y. 1989) (citation omitted). If the employer meets its burden, the plaintiff is required to show that the defendant's stated reason is a pretext for prohibited discrimination. Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005).
The parties do not dispute that, Plaintiff has satisfied the first three prongs of his prima facie case; namely that (1) Plaintiff, who was forty-six at the time of his termination (Pl.'s Rule 56.1 Stmt. ¶¶ 4, 157; Def.'s Rule 56.1 Stmt. ¶ 4), is a member of the protected class, (2) his OFI employment with the Manhattan MBT was terminated and he was not offered another position within OFI, and (3) that he was qualified for his position with the Manhattan MBT. Thus, the only remaining issue in dispute concerning Plaintiff's initial burden is whether the circumstances surrounding his termination support an inference of age discrimination. Plaintiff asserts that the requisite discriminatory animus can be inferred from Webman's alleged remarks to Fielding concerning younger Manhattan MBT members prior to the interviews for the Rochester move, and the allegedly more favorable treatment of younger Manhattan MBT members in connection with transfers to other New York City-based positions with OFI. While there is a legitimate issue as to whether the facts cited by Plaintiff are sufficient to make out this element of Plaintiff's prima facie case, the burden on Plaintiff at this initial stage is slight (see, e.g., Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003)) and the Court will assume for purposes of this motion practice that Plaintiff has proffered a prima facie case of age discrimination.
OFI has responded to Plaintiff's allegation of age discrimination by proferring non-discriminatory reasons for his termination and for its decisions not to hire him for the two New York City positions for which he applied. OFI's evidentiary proffer is, in essence: that OFI made a corporate decision to eliminate the Manhattan MBT and that members of that group would, generally from July 1, 2006, be required to work in Rochester, New York; that Plaintiff did not accept the standard offer of a three-month Rochester-based trial period with the group; that Plaintiff accepted its offer of an opportunity to seek alternative New York-based employment; and that, when Plaintiff failed to secure an alternative position within the time allotted, OFI terminated his employment. OFI further proffers that the persons ultimately selected for the positions for which Plaintiff interviewed were better qualified than Plaintiff for those jobs. Defendant also asserts that many of the individuals involved in the adverse employment decisions were older than Plaintiff. (See Def.'s Rule 56.1 Stmt. ¶ 94.)
Plaintiff's burden now is to rebut Defendant's tender of non-discriminatory reasons, showing that they are pretexts for prohibited discrimination. Plaintiff relies on the elements of his prima facie case, including the alleged remarks by Webman and the success of the two younger members of the MBT in securing New York City-based positions with OFI. The Court, having carefully considered the record and construing all facts in the light most favorable to Plaintiff, finds that no rational jury could find that Plaintiff has sustained his burden of showing pretext.
Stray Remarks
Webman's alleged remarks favoring the retention of younger members of the Manhattan MBT are too attenuated from the challenged employment decisions to support an inference of discriminatory animus. Such remarks are characterized as `stray remarks' where such nexus is lacking. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). To determine whether a remark is indicative of discriminatory animus, the court considers
(1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decision making process.
Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 523 (S.D.N.Y. 2004).
Webman's alleged remarks concerning the younger members of the MBT were made to Fielding, who later actually extended an offer of continued MBT employment to Plaintiff. There is no evidence that either Webman or Fielding was involved in the subsequent decisions not to offer Plaintiff the positions for which he interviewed or to terminate his OFI employment. Accordingly, these `stray remarks,' even if construed as indicative of some age based animus or favoritism on Webman's part, are insufficient to raise a genuine factual issue as to whether OFI's proffered reasons are pretextual. Because the remarks lack a sufficient nexus with OFI's decision whether to offer Plaintiff either of the New York-based positions for which he interviewed or whether to terminate his OFI employment, they provide no probative evidence of discriminatory animus on Defendant's part, and therefore, do not support an inference of pretext.
Denial of Positions Sought; Less Favorable Treatment
Plaintiff next alleges that Defendant's proffered reasons for denying him the New York City-based positions and terminating his employment were pretextual because he was qualified for the positions he sought and because younger persons were successful in securing alternative positions. In a case where the plaintiff claims that failure to hire constituted an adverse employment action, he has the burden of presenting evidence that the position was filled by an applicant of lesser qualifications or that the employer continued to conduct interviews with persons whose qualifications were similar to plaintiff's. Morales v. Human Rights Div., 878 F. Supp. 653, 659 (S.D.N.Y. 1995). Webman's alleged statement that Plaintiff was qualified for the positions for which he interviewed does not support a rational inference that Plaintiff was denied alternative jobs on account of age-based prejudice. OFI has proffered the undisputed affidavits of the persons who made the hiring decisions, attesting in detail to the superior qualifications of the applicants who were hired for the positions. Plaintiff has failed to present sufficient evidence that the positions he interviewed for were subsequently filled by less qualified candidates, or that Defendant continued to interview applicants with qualifications similar to Plaintiff's after he was denied the positions, to raise a genuine issue of material fact as to pretext.
Plaintiff's invocation of the success of his former colleagues Reid and Heikenfeld is similarly unavailing to raise a genuine issue of material fact. OFI has proffered evidence that both individuals possessed appropriate qualifications for their new positions. Plaintiff did not apply for either position and has not provided the Court with any evidence that he was qualified for the positions that Reid and Heikenfeld obtained. Thus, the evidence that other members of the Manhattan MBT were successful in obtaining positions in the New York office is, in and of itself, insufficient to support an inference of pretext.
Plaintiff has failed to present evidence sufficient to support an inference that Defendant's proffered reasons for terminating his employment and denying him the alternative positions for which he applied were pretexts for age discrimination regarding his termination. As such, Plaintiff has failed to proffer evidence of a genuine issue of material fact in connection with his age discrimination claims. Accordingly, the Court, having carefully considered the record and all of the parties' arguments, grants Defendant's summary judgment motion as to Plaintiff's first, second, and third causes of action.
Plaintiff's Disability Discrimination Claims
Plaintiff also claims that Defendant discriminated against him on the basis of his disability, violating the Executive Law and the City Code by failing to offer a reasonable accommodation for his disability. Because Plaintiff's so federal claim is being dismissed and his disability discrimination claims are asserted exclusively under state and local law, the Court declines to exercise its supplemental jurisdiction of Plaintiff's disability claims pursuant to 28 U.S.C. § 1367(c).
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted as to Plaintiff's claims of age discrimination under the ADEA, the New York Executive Law, and the City Code. Plaintiff's first, second, and third causes of action are, accordingly, dismissed. The Court declines to exercise its supplemental jurisdiction of Plaintiff's disability discrimination claims under the New York Executive Law and the City Code, Plaintiff's fourth and fifth causes of action. There being no claims remaining for trial, the Clerk of Court is respectfully requested to enter judgment and close this case.SO ORDERED.