Opinion
93722001.
Decided July 2, 2010.
Plaintiff, an African-American, asserts LSG discriminated against him and harassed him based on his race and then retaliated against him after he complained of the discriminatory and harassing behavior. LSG is a food service company operating nationally, including the City and State of New York, providing prepared foods to airline carriers and operating in New York at, in and around John F. Kennedy International Airport (JFK). Defendant Dennis Mancini, a resident of Long Beach, New York, was an officer (Vice-President, Core Market) of LSG, working daily out of LSG's operation at JFK.
Facts
Plaintiff is possessed of an MBA and over 20 years experience in management and leadership experience, a significant portion of which was in the food industry. In 1997, plaintiff learned of a job opening as an Operations Vice-President at LSG's facilities at J.F.K. International Airport in New York. LSG offered plaintiff a position at an annual salary of $125,000, plus a signing bonus and other benefits. Plaintiff accepted the offer and began employment as Vice-President of Operations/Designate on December 1, 1997. Plaintiff's hire as Vice President of Operations/Designate made him the only African-American Vice President with LSG and the highest ranking African American in the company organizationally. When plaintiff first joined LSG, he was required to participate in an orientation designed to introduce him to the company's operations. Plaintiff completed the orientation in April 1998 and was named Vice-President of Operations (VP/Operations).
On July 13, 1998, Dennis Mancini was appointed Vice-President of Operations for the New York Core Market (VP/Core Operations) with oversight responsibility at JFK and La Guardia Airports. Plaintiff reported directly to Mancini. Around September 1998, plaintiff's duties and responsibilities changed from Consumer Service Center (CSC) No. 420 and # 425 to CSC #1371 and #1378. Incident to the change in duties and responsibilities, plaintiff requested and was allegedly promised a fixed cost-of-living (COLA) adjustment or its monetary equivalent to ease his relocation from Niscayuna, New York to New Rochelle, New York. Plaintiff alleges that LSG management later reversed itself.
In later 1998 and early 1999, plaintiff alleges that LSG treated him differently from the way that other Vice-Presidents of LSG were treated relative to calculation and payment of bonuses. Plaintiff alleges that LSG and Mancini secretly excluded plaintiff from discussions about bonus payments and discretionary incentive pool payment for 1998, while other Vice Presidents, including Kevin Bruce, John Dye, Pepe Pinto, Dave Miller and Dennis Mancini participated in those discussions and decisions which excluded its only African-American. Plaintiff also alleges that he believes that his salary was set lower by LSG relative to what was paid to other non-African American Vice-Presidents. Upon information and belief, plaintiff also alleges that LSG treated plaintiff differently relative to stock option offerings, according plaintiff less value than that provided to other non-African American Vice-Presidents. Plaintiff first discovered this different treatment in or around September 1999. After complaining about the pay disparities, in December 1999, defendants, for the first time, accorded plaintiff the benefit of enrollment in LSG's Executive Deferred Compensation Plan.
Plaintiff submits that throughout his tenure as plaintiff's supervisor, Mancini harassed plaintiff by holding plaintiff to performance standards which were different and more onerous than those to which other Vice-Presidents were subjected; by repeatedly attempting to discredit plaintiff and demeaning plaintiff in the presence of others; by soliciting employees to make negative comments about plaintiff; by placing him under surveillance and closely scrutinizing his movements and activities; by pressuring plaintiff's subordinates to make negative and derogatory reports about plaintiff; by interrupting plaintiff at meetings with plaintiff's subordinates without prior notice to plaintiff. On or about April 14, 1999, plaintiff complained to Kevin Bruce (Group Vice-President, U.S. Core Market) and Michael Kay (Chief Executive Officer of LSG) about Mancini's undermining, demeaning and harassing conduct which plaintiff viewed as racially discriminatory.
Plaintiff complained of discriminatory treatment in a memo to Mancini on January 5, 2000, in which he stated that he had already retained counsel. Plaintiff was advised that the company would investigate his allegations and asked to meet with Human Resources. Plaintiff refused and asserted that his attorney would provide a letter articulating some "issues."
On January 24, 2000, plaintiff's counsel forwarded a demand letter to the company describing plaintiff's allegations. A week later, LSG advised plaintiff that it had initiated an investigation and again asked plaintiff to meet with Human Resources. Plaintiff declined.
On or about March 16, 2000, plaintiff applied for the position of Vice-President of Operations for the Los Angeles Core Market (LAX position). Plaintiff interviewed and was a finalist for the position. While another Operations Vice-President was awarded the job in May 2000, in June 2000, plaintiff was promoted to VP/Core Operations for New York.
Allegedly to remove himself from under the supervision of Mancini, on or about September 2000, plaintiff applied for the open position of Vice-President of Operations for the Florida Core Market, which was at the same level as the LAX position. Plaintiff received the Florida position on October 31, 2000 at a salary of $158,500, and he also received a $20,000 assignment bonus. Plaintiff relocated from New York to Miami, where he would no longer to reporting to Mancini. Plaintiff was provided with relocation assistance, commuting expenses and other benefits.
On or about March 10, 2001, plaintiff filed the instant suit against LSG and Mancini alleging claims of, inter alia, discrimination, harassment, retaliation and fraud under New York State law.
During 2001, the parent company of LSG was acquired by LSG Lufthansa Service Holding AG. In the course of the acquisition, plaintiff received a net distribution of $593,099.06 for his LSG shares. Following the LSG transition, plaintiff was treated as the "incumbent" applicant for the newly-created position of Operations Vice-President for the East Sector (the East Sector VP position), one of only six sectors. Plaintiff was formally offered a promotion to the East Sector VP position, in which he would again be reporting to Mancini. Plaintiff accepted the offer on or about January 28, 2002. In connection with plaintiff's promotion and in response to a request by plaintiff, his salary was increased to $172,000. However, plaintiff's position as Vice-President did not gain his participation in the Core Vice-Presidents' bonus pool. Plaintiff asserts that he was the only African-American Vice-President and the only Vice-President not permitted to share in the discretionary bonus pool.
On June 6, 2003, plaintiff was offered the position of Vice-President of Northeast Sector Operations in connection with a company-wide restructuring. The Northeast Sector VP position would be located in New York. On or about June 10, 2003, plaintiff stated that he would not relocate to New York, and requested a compensation package worth millions of dollars annually in connection with the new position. Mancini countered plaintiff with a 4.0% salary increase and a cost of living allowance, in addition to the previously-offered commuting expenses, relocation assistance and other benefits. Plaintiff responded that he would not discuss the position unless his pending discrimination claims were addressed, despite Mancini's insistence that the reorganization could not proceed without his response. Plaintiff again refused to either accept or decline the position. Thereafter Murray met with plaintiff and advised him that because he refused to accept the Northeast Sector VP position and because the East Sector (where plaintiff was incumbent) was being eliminated, LSG had no choice but to consider plaintiff's employment terminated as of that date. Murray provided plaintiff with a proposed severance agreement that included one year's pay, but plaintiff declined.
In August 2003, the West Sector VP position, based in Los Angeles, became available and LSG offered plaintiff the opportunity to apply for the position. Plaintiff declined the offer.
Analysis
Nettles sues under Executive Law § 296(1)(a) proscribing racial discrimination in employment in New York State. The first cause of action is for race and color discrimination in violation of Executive Law § 296. The second cause of action is for racial harassment in violation of Executive Law § 296. The third cause of action is for retaliation in violation of Executive Law § 296(1)(e) and (7). The fourth cause of action is for fraud. These New York State laws are in accord with the federal standards under title VII of the Civil Rights Act of 1964 ( 42 USC § 2000e et seq.; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21; Ferrante v American Lung Assn., 90 NY2d 623; Quinn v Green Tree Credit Corp., 159 F3d 759 [2d Cir 1998]). The three-step framework established by the Supreme Court in McDonnell Douglas Corp. v Green ( 411 US 792) for cases alleging violations of title VII of the Civil Rights Act of 1964 is relevant here. First, the employee must make a prima facie showing of racial discrimination. Second, once the (former) employee has satisfied his burden, defendant(s) must articulate a clear nondiscriminatory reason for the termination or other action. Third, the former employee must show that the proffered reasons are pretextual.
A plaintiff alleging racial discrimination in employment has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination ( see Ferrante v American Lung Assn., supra). The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" ( id. [citations omitted]). In order to nevertheless succeed on his claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason ( see id. at 629-630).
To prevail on their summary judgment motion, defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual. Furthermore, "[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented" ( Glick Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; see also Zuckerman v City of New York, 49 NY2d 557). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable ( Glick Dolleck v Tri-Pac, 22 NY2d at 441). On a summary judgment motion, the moving party must set forth evidence that there is no factual issue and that it is entitled to summary judgment ( Zuckerman v City of New York, 49 NY2d at 560-562). If the moving party establishes a basis for a grant of summary judgment, the opposing party must present evidence that there is a triable issue ( id.). "It is not the court's function on a motion for summary judgment to assess credibility" ( Ferrante v American Lung Assn., supra). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict" ( see Anderson v Liberty Lobby, Inc., 477 US 242, 255).
Moreover, the facts must be viewed in the light most favorable to the nonmoving party ( see Matsushita Elec. Indus. Co., Ltd. v Zenith Radio Corp., 475 US 574, 587). Although the question of whether discrimination occurred generally presents an issue of fact, summary judgment may be granted in discrimination cases when the defendant demonstrates the absence of a prima facie case, and plaintiff is unable to raise an issue of fact ( see Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 305-306). Defendants have satisfied their burden.
An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation" ( Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000] [citations and internal quotation marks omitted]).
It is not disputed that plaintiff is an African-American man qualified for the job he held at LSG, and that he left defendant's employ. However, plaintiff failed to raise a triable of issue of material fact as to whether any adverse employment action he alleges he suffered occurred under circumstances giving rise to an inference of discriminatory motive. Plaintiff alleges that he was not accorded the same benefits of employment a majority race Vice Presidents, including stock option discretionary bonus pool participation.
Defendants maintain that the evidence demonstrates that any differences between the plaintiff's salary and other comparables was attributable solely to the differences in title and hierarchy within the organization and not to plaintiff's race. Notably, an internal memorandum from Cheryl Flynn regarding plaintiff's allegation that he was denied a fixed versus a declining cost of living adjustment (COLA) provides insight (is instructive). In the memorandum, Flynn notes the following:
"[Plaintiff's] request for a fixed COLA was considered but denied. He was advised that his request could not be granted because under a 1996 amendment to the COLA policy (adopted before [plaintiff] applied for employment with the Company), all new COLAs are required to decline to zero over four years. The only employees with fixed COLAs are certain individuals who had them prior to the policy change in 1996; no individual who is similarly situated to [plaintiff] (in particular, who was hired after the change in COLA policy) has a fixed COLA. Indeed, even [plaintiff's] own manager, New York VP Dennis Mancini, does not have a fixed COLA.
In regard to plaintiff's claim that he was excluded from the "Core VP 1998 bonus pool" and was instead lumped into the "New York Market Poll" and was "falsely" told by Mancini that he would make more money in the "New York Market Pool," Flynn notes the following:
"The investigation shows that bonus pool placement is a function of grade level and reporting relationship. For 1998, [plaintiff] was a grade level 23 executive reporting to Mancini, New York Market VP; Mancini, in turn, was a grade 24, and the VPs of the various other "Core" markets, reported to Core Markets VP Kevin Bruce. Thus, [plaintiff's] grade level and reporting relationship dictated his placement in the New York Market bonus pool. The investigation also establishes that, in fact, [plaintiff's] placement in the New York Market bonus pool inured to his benefit, for various reasons relating to the Company's 1998 financial performance in various markets. In this regard, the evidence actually shows that Mancini, who was [plaintiff's] boss was in the Core VP bonus pool, actually received a smaller 1998 bonus payout than did [plaintiff] as a participant in the New York Market pool."
Plaintiff testified during his examination before trial that while he complains that he was not placed in the VP Discretionary Incentive Pool Payment for 1998 with his "peers," he admits that he arbitrarily defined his "peers" as those holding a different job title, namely that of VP/Core Operations, which was his supervisor's title. Furthermore, plaintiff admits during his deposition that in lieu of participating in the discretionary pool, he was placed in the New York Bonus group and thereby received a substantial bonus.
Thus, although plaintiff has listed a litany of perceived wrongful actions, he has not shown that any of the listed conditions were the result of unlawful employment discrimination or that other employees were treated any better than he was. The record reflects that LSG provided positive performance reviews which were accompanied by substantial bonuses, and successively promoted plaintiff and increased his salary accordingly ( see Figueroa v New York Health Hosp. Corp., 500 F Supp 2d 224 [SD NY 2007] [employer's positive actions toward plaintiff undercut any inference of discrimination]; Crawford-Mulley v Corning, Inc., 194 F Supp 2d 212 [WD NY 2002] [allegation of discrimination animus undercut by employer's earlier favorable actions towards employee], affd 2003 US App LEXIS 739 [2d Cir., 2003]). On this record, plaintiff has not shown pretext.
Plaintiff's opposition, when stripped to its essentials, does not establish racial discrimination. "[I]t is simply not the law that every dispute that arises between people of different races constitutes employment discrimination, or that every wrongful act perpetrated in the course of such a dispute is committed because of race. Simply put, animosity on the job is not actionable; unequal treatment based on racial animus is" ( Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 298).
Harassment
A racially hostile work environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" ( Harris v Forklift Sys., Inc., 510 US 17, 21 [citations and internal quotation marks omitted]). In order to establish a hostile work environment, a plaintiff must show that (1) he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) the harassment was based on a protected characteristic of the employee, such as race or national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily-abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability ( see Mendoza v Borden, Inc., 195 F3d 1238 [11th Cir 1999]). LSG argues that plaintiff cannot establish a hostile working environment because the alleged harassment was not sufficiently severe or pervasive to alter the terms and conditions of plaintiff's employment.
Whether conduct is severe and pervasive involves both a subjective and objective component. Thus, to be actionable, the behavior must result in both an environment "that a reasonable person would find hostile or abusive" and an environment that the victim "subjectively perceive[s] to be abusive" ( Id.). LSG does not argue that plaintiff did not subjectively perceive that the environment was hostile. Rather, LSG contends that the environment was not hostile from an objective standpoint. In evaluating the objective severity of the alleged harassment, the Court considers: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance ( Allen v Tyson Foods, Inc., 121 F3d 642 [11th Cir 1997]).
Plaintiff claims that LSG, by means of plaintiff's direct supervisor, Mancini, harassed him by undermining him, disagreeing with him on business matters, denying him training and unfavorably comparing minority staff members with non-minority staff members. On review of the record, however, there is no evidence that the alleged harassment was related to plaintiff's race and the alleged harassment was not sufficiently severe or pervasive to alter the terms and conditions of plaintiff's employment or to create a discriminatorily-abusive working environment. Complaints concerning business-related disagreements, generalized "undermining," "micro-management" and even open "disrespect," without more, will not withstand summary judgment ( Issac, 2002 WL 31086118; Dunn v City of Tallahassee, 2002 WL 1979128).
Indeed, there is no evidence that any LSG employee ever used any racial epithet to or about plaintiff. This admission by plaintiff undercuts any inference of a racially hostile work environment ( see Singh v State of New York Office of Real Property Serv., 40 AD3d 1354; [dismissing case where plaintiff was unable to offer evidence of discriminatory comments about her race or national origin]; DeMay v Miller Wrubel P.C., 262 AD3d 184 [same]). Defendants contend that the sole instance of racial slurs occurred in 1999 involving a contractor — not an employee of LSG — at an off-site location. Plaintiff states that the individual made three inappropriate comments to others — none of which plaintiff heard — but admits LSG conducted an investigation into the incident, and Mancini recommended the contractor be reassigned but left the matter to plaintiff's judgment. Plaintiff cites no other racial comments during his employment. While deplorable, the use of three epithets over a 5½ year employment history does not satisfy this test. Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive" ( Forrest v Jewish Guild for the Blind, 3 NY3d at 310-11; quoting Harris v Forklift Sys., Inc., 510 US 17, 21, 23). Moreover, the conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so ( see id. at 21).
Of course, even a "mere[ly] offensive" ( id. at 23) racial slur is reprehensible. But it is not actionable. Here, the epithets complained of did not pervade plaintiff's work environment, having allegedly occurred on one occasion over 5½ years. A hostile work environment requires "more than a few isolated incidents of racial enmity" ( Snell v Suffolk County, 782 F2d 1094, 1103 [2d Cir 1986]). "[I]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments" ( Schwapp v Town of Avon, 118 F3d 106, 110 [2d Cir 1997] [citation omitted]; see also Harris, 510 US at 21 ["mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment]" [citation and internal quotation marks omitted]; Brown v Coach Stores, Inc., 163 F3d 706, 713 [2d Cir 1998] [no hostile work environment where supervisor made, on occasion, racist remarks, including one directed at the plaintiff]). Nor has plaintiff shown, or even alleged, that the egregious remarks interfered in any way with his job performance.
Moreover, the use of racial slurs and insults by a supervisor without the knowledge or acquiescence of the employer does not constitute an unlawful discriminatory practice actionable under the State Human Rights Law ( see Matter of General Motors Corp., Fisher Body Div. v State Human Rights Appeal Bd., 54 NY2d 905, affg 78 AD2d 1006 [4th Dept 1980]; see also Hart v Sullivan, 55 NY2d 1011, affg 84 AD2d 865 [3d Dept 1981]). For an "employer cannot be held liable [under state law] for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it" ( Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687, quoting Matter of Totem Taxi, Inc. v New York State Human Rights Appeal Bd., 65 NY2d 300, 305). Plaintiff has failed to offer any evidence that LSG condoned or acquiesced in, the epithets. The record reveals that LSG conducted an investigation into the incident, and Mancini recommended the contractor be reassigned but left the matter to plaintiff's judgment.
There is no evidence that the alleged harassment affected plaintiff's performance or actually altered any aspect of his employment. To the contrary, plaintiff admitted that Mancini deferred to his authority on more than one occasion and when Mancini neglected to consider his opinion in one case, plaintiff had already relinquished his authority over the matter to another LSG employee. Moreover, plaintiff admits he received praise from his superiors for his many accomplishments with the company and positive performance reviews, undercutting any discriminatory animus ( see Figueroa v New York Health Hosp. Corp., 500 F Supp 2d 224 [SD NY 2007] (supervisor's positive actions toward plaintiff undercut any inference of discrimination).
Furthermore, plaintiff's undisputed success at the company, including repeated raises and promotions, undermines his claim of a hostile work environment. Plaintiff claims that his performance "far exceeded" LSG's expectations and that, under his management, the East Sector was the "best performing" sector in the company.
Retaliation
Under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices ( see Executive Law § 296; Administrative Code of City of NY § 8-107[7]). In order to make a prima facie showing of retaliation, Nettles must show: (1) participation in a protected activity known to defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action ( see Francis v Chemical Banking Corp., 62 F Supp 2d 948, 961 [ED NY 1999]).
Plaintiff claims that LSG retaliated against him based on his April 2003, as well as his prior internal complaints about perceived discrimination and harassment. Plaintiff asserts that after his last complaint in April 2003, he was denied the opportunity to make a planned presentation at a meeting, excluded from a meeting, ignored by LSG's chairman, and ultimately constructively discharged. LSG does not dispute that plaintiff's complaints of discrimination and harassment were statutorily protected activity or that LSG was aware of plaintiff' complaints. Thus, for plaintiff to establish a prima facie case of retaliation, he must show that (1) he suffered an adverse employment action and (2) that the action was causally related to the protected activity ( see Maniccia v Brown, 171 F3d 164 [11th Cir 1999]).
Plaintiff contends that defendants engaged in retaliatory conduct against him after he complained that he was being discriminated against. Specifically, the record shows that plaintiff first officially complained of race discrimination on January 5, 2000, when he wrote a memo to Mancini and senior management. In March 2000, plaintiff learned of an open position at Los Angeles International Airport and applied for it. Although considered a finalist, the position was awarded to Rod Evans in May 2000. However, in June 2000, plaintiff was promoted to Vice-President/Core Operations of New York, and on October 31, 2000, plaintiff was again promoted to VP of Operations for the Florida Core Market (equivalent to the LAX) position. Thus, notwithstanding plaintiff's January 2000 complaint, he was thereafter promoted in June 2000, October 2000, and again in January 2002, after he filed the complaint in the instant action, and his compensation and responsibilities significantly increased in connection with each promotion. Furthermore, after plaintiff made another internal complaint on April 29, 2003, less than two months later (in June) LSG offered plaintiff a position as one of four Sector Vice-Presidents in the reorganization, along with an increase in compensation and substantial benefits, which plaintiff declined.
Thus, despite his statements, no evidence has been presented by plaintiff to support his contention that defendants engaged in unlawful retaliatory conduct. The facts do not support plaintiff's assertion that he was paid less than his counterparts and received a lower stock option than his peers.
Based upon the record before the court, plaintiff did not suffer any adverse employment actions. Without an adverse employment action, plaintiff cannot prevail on his claim of retaliation ( see Williams v NYC Housing Auth., 61 AD3d 62(claim for retaliation fails as a matter of law where there is no adverse employment action).
Even assuming, arguendo, that plaintiff did establish an adverse employment action, there is also no showing of a causal connection, to wit, that the decision makers involved in the adverse action were aware of plaintiff's protected conduct, and that the protected conduct and the adverse action were related ( see e.g. Budzanoski, 1996 WL 808066 ["[t]he causal connection may be established by evidence of retaliatory animus, disparate treatment, or a showing of a close temporal proximity' between the adverse employment act and the filing of the claim"]). Here, plaintiff had not shown that he suffered any negative action following his internal complaint. To the contrary, plaintiff admits that he was praised, received positive performance feedback, and continued to progress within the company, receiving several promotions. These admissions and the company's favorable treatment of plaintiff, are fatal to his retaliation claim ( see Budzanoski v Pfiszer, Inc., 245 AD2d 72 [dismissing retaliation claim where plaintiff received salary raises two years after the protected activity]).
Fraud
Plaintiff also alleges fraud as the fourth cause of action. Specifically, plaintiff alleges that defendants committed fraud by inducing him to leave his former position at Beech-Nut Nutrition Company (Beech-Nut), by representing that he would be offered the position of VP/Operations.
He contends that upon arriving to work for LSG, he learned that he was an "Operations Vice-President, Designate." Plaintiff claims that defendants knew of the falsity of their offer, and that he relied upon the misrepresentation and, as a result, suffered damages.
A claim of fraud must satisfy the specificity and particularity requirements of CPLR 3016[b], and allege each essential element of the claim ( Cooper v Peterson, 164 Misc 2d 878). Under New York law, a claim for fraud must allege that (1) the defendant made a material false representation of an existing fact; (2) with knowledge of its falsity and (3) with intent to defraud; as well as that (4) plaintiff reasonably relied upon the misrepresentation and (5) the plaintiff suffered damages due to that reliance ( see Blumenthal-Levy v Coldwell Banker Hunt Kennedy, 2007 WL 677798; Nader v ABC Television, Inc., 2005 WL 2404546; Dooner v Keefe, et. al., 157 F Supp 2d 265 [SD NY 2001]).
Plaintiff failed to establish that LSG made a material false representation when offering plaintiff the position of Operations Vice-President, Designate, rather than VP/Operations. Plaintiff admits that LSG told him that the term "Designate" was attached to him solely during the time that he was transitioning into the company ( see M. Lowenstein Sons, Inc. v Weinbaum, 23 AD2d 831 [finding that plaintiff failed to prove fraud when the representation was promissory in nature and there was no proof of intent to defraud]).
Plaintiff also admits that the company dropped the term "Designate" from his title around April 1998, four months after he was hired and after he completed the company's orientation program. The fact that plaintiff was formally awarded the position of VP/Operations immediately following his preliminary orientation, undercuts the allegation that defendants made a knowingly false representation ( see Cooper, 164 Misc 2d at 883 [dismissing claim of fraud for lack of intent]).
Moreover, plaintiff failed to show that he detrimentally relied on LSG's representation or that he suffered any damages. Damages are measured by the "out-of-pocket" rule, and should reflect the actual pecuniary loss sustained because of defendants' wrongdoing ( Lama Holding Co v Smith Barney, Inc., 88 NY2d 413). Plaintiff does not allege that he received a lower salary during the time when he was referred to as a VP Designate rather than VP/Operations. In fact, he acknowledges that his salary increased substantially as compared to his former salary at Beech-Nut, and that he was offered a cost-of-living assessment. Thus, the fourth cause of action is dismissed.
Accordingly, the motion for summary judgment dismissing the complaint is granted.