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dismissing claim of retaliation where plaintiff offered only conclusory allegations that defendant's stated reason for adverse actual was pretext for retaliation
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No. 93 Civ. 8027 (LTS)(HBP).
March 7, 2005
HUGH WYATT, New York, New York, Plaintiff Pro Se.
Joseph Baumgarten, Esq., Laurie S. Leonard, Esq., PROSKAUER ROSE LLP, New York, New York, Attorneys for Defendants Zuckerman, Browne, Willse and Daily News, L.P.
OPINION AND ORDER
Plaintiff Hugh Wyatt ("Plaintiff"), a former reporter and columnist for the New York Daily News (the "Daily News") commenced this action in 1993, following the acquisition of theDaily News by defendant Daily News, L.P. ("DNLP"). Plaintiff charges DNLP and defendants Mortimer Zuckerman ("Zuckerman"), co-publisher of the Daily News and a limited partner in DNLP, and Daily News editors James Willse ("Willse") and Arthur Browne ("Browne"), with violating his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("section 1981"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343.
Plaintiff's complaint, which was filed on his behalf by counsel, seeks monetary and declaratory relief for alleged racial and age discrimination and retaliation in connection with DNLP's failure to continue Plaintiff's Daily News employment following its acquisition of the paper. Plaintiff's counsel was permitted to withdraw from the representation in 1999, and Plaintiff was granted permission to proceed pro se in 2000. The case was thereafter transferred to the docket of the undersigned.
Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing Plaintiff's claims. Defendant Willse also moves to dismiss the complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. The Court has reviewed carefully the motion papers and Plaintiff's extensive opposition papers. For the following reasons, Defendants' motions are granted and the action will be dismissed in its entirety.
BACKGROUND
The following facts are undisputed except to the extent characterized as allegations or assertions. Plaintiff, who is of African-American and Native American descent, was employed by theDaily News from 1965 to 1993. Starting with the paper as a copy boy, he rose to the positions of reporter, health affairs editor, and music columnist. He was recognized with various awards by outside organizations in the 1970s and 1980s. Daily News Executive Editor Michael J. O'Neill wrote memoranda commending Wyatt's work in 1976 and 1977, Assistant Editor Bill Brink wrote letters commending Wyatt's work in 1976 and 1979, City Editor Dick Oliver wrote such a memorandum in 1980, and Executive Editor Gil Spencer wrote a favorable letter supporting Wyatt's efforts to syndicate his music column in 1989. (Aff. of Hugh Wyatt at ¶¶ 31-32 and Exs. 9-11, 15 and 16 thereto.) Defendant DNLP acquired the Daily News from the bankruptcy estate of its previous owner, Maxwell Newspapers, Inc. ("Maxwell"), in January 1993.
Plaintiff alleges that he was the victim of pervasive racial discrimination throughout his tenure with the Daily News. In his papers in opposition to the instant motion, he recounts allegedly racially-motivated incidents in the 1960s and 1970s not involving any of the defendants named in the current action. He further alleges generally that the editors on the City Desk, under whom he worked in his capacity as health affairs editor and reporter, used racially derogatory language regarding African-Americans and Hispanics and consistently rejected or downplayed stories about persons of color, at least ones presenting such persons in a positive light, but Plaintiff's only specific example of such a story dates from 1968. (See Wyatt Aff. ¶ 17.) He identifies only two News staffers (neither of whom is named as a defendant here) who allegedly used the derogatory language in the 1960s and 1970s and one (not named as a defendant here) who allegedly used such language in 1981. (Id. ¶¶ 9-20.)
In 1982, Plaintiff and another Daily News reporter commenced an action in federal court against New York News, Inc., and Tribune Co., Inc., the then-owners and publishers of the Daily News, charging those entities with engaging in racially discriminatory employment practices, including pay disparities and discriminatory editorial policies. No individual defendants were named in the complaint in that action, and Wyatt and his co-plaintiff were the only individuals mentioned in the body of the complaint. Plaintiff alleges that the lawsuit was settled in 1987 under an agreement providing that "I was allowed to work outside of the office and I was not beholden to a time clock." (Wyatt Aff. ¶ 50.) He also alleges that the settlement provided that he "was to be compensated for my syndicated music columns as white syndicated columnists were." (Id. ¶ 54.) However, Plaintiff proffers no documentation of the alleged settlement agreement's terms other than a 1987 letter, apparently from his own lawyer, reading in pertinent part as follows:
Complaint, dated May 17, 1982, in Wyatt v. New York News Inc., No. 82 Civ. 3662 (S.D.N.Y.), annexed to Defs' Not. of Mot. as Ex. H.; see also Amended Complaint dated September 16, 1985, annexed to Defs' Not. of Mot. as Ex. I.
The things that were mentioned, and became part of our settlement agreement with the News, were that they would engage in a vigorous campaign to get your column syndicated beyond the 'in-house' syndication that presently exists. Also, that you would receive the perks that go with a column in the News similarly situated to yours. I presume those perks are not having to sign in and sign out, and an expense account. They never disagreed with the idea of your picture being on your column. Nothing was said about any particular amounts of perks; like trips and that sort of thing.
Ex. 24 to Wyatt Aff.
On September 16, 1983, Plaintiff's union, the Newspaper Guild, filed a grievance on his behalf against New York News, Inc., alleging that Plaintiff had been demoted from health affairs editor to general assignment reporter and that such demotion was discriminatory, made in retaliation for his federal discrimination lawsuit and complaint to the federal Equal Employment Opportunity Commission, and violative of the governing labor agreement. The matter went to arbitration; the arbitrator upheld the grievance and ordered Plaintiff reinstated to his former position on the ground that, by failing to respond timely to the grievance, the paper was deemed, under a term of the labor agreement, to have admitted the allegations of wrongdoing. (Opinion and Award in Matter of the Arbitration Between New York News, Inc. and Newspaper Guild of New York, AAA Case No. 1330 1550 82 (February 9, 1984), Ex. 21 to Wyatt Aff.)
Plaintiff alleges that unspecified "virulent acts of harassment" against him following the commencement of his federal court action and "intensified" after the 1987 settlement. (Wyatt Aff. ¶ 43.) Characterizing "management's" actions as taking on "a decidedly more retaliatory tone" after 1987, Plaintiff asserts that editors James Willse and Arthur Browne, Deputy Managing Editor Fran Wood, and Associate Entertainment Editor Kate McMahon were "the major architects of this crusade," the specific elements of which are not proffered. (See id. ¶ 46.) According to Plaintiff, Willse and Browne had been "named in [his] 1981 suit," and Wood and McMahon had joined theDaily News prior to the alleged 1987 settlement of Plaintiff's prior federal court litigation. (Id.)
As noted above, no individuals were named as defendants in the prior litigation that is documented in the record on this motion.
Plaintiff alleges that, between 1987 and 1992, Browne and McMahon, contrary to the terms of the alleged settlement, "constantly made negative references to my not being in the office in a 9:00 a.m. to 5:00 p.m. context," Willse "shunned" Plaintiff, and Browne rarely spoke to Plaintiff but "continually hovered about my desk, looking at me menacingly while ostensibly discussing 'black issues' with white employees." (Id. ¶ 50.) Plaintiff further asserts that, during the same period, Willse demanded that Plaintiff reveal his sources for investigative articles but did not make similar demands of white investigative reporters. Plaintiff neither provides specific examples of such demands, however, nor identifies any allegedly similarly-situated white reporters who were treated differently in this regard. (See id. ¶ 52.) Plaintiff alleges that this conduct on Willse's part was retaliatory. Plaintiff further alleges, without specification of stories or incidents that, between 1983 and 1992, Willse turned down countless exclusive stories Plaintiff had suggested or had written concerning African-American subjects, except to the extent the stories portrayed African-Americans in a negative light. According to Plaintiff, "[w]hile Mr. Willse never used the word nigger, he demonstrated a cold, unapproachable stance toward me and other persons of color." (Id. ¶ 53.)
When pressed in his deposition for examples of specific disparaging comments Willse allegedly made, Wyatt's responses were similarly conclusory:
Q. . . . What were the racially disparaging comments?
A. The specific things I can't refer to now except in a general tone. This was his tone when he spoke.
* * *
[T]he tone is a kind of — he speaks like a cop, for one thing, a hard-core cop in a ghetto, the way he talks to people, people of color. . . . He talked like a cop, he walked like a cop and he acted as if he was a cop, especially when he spoke to people of color.
This, in my opinion, counselor, is about as disparaging as you can get. Now, he is not uttering these letters, but his tone, his manner, his demeanor to me suggests something worse than disparaging. So the word 'disparaging' stands.
Dep. of Hugh Wyatt ("Wyatt Dep.") at 157-59, Ex. 37 to Wyatt Aff. Wyatt denied that Willse used "racially derogatory" language to him, and disclaimed any knowledge of Willse using such language to anyone else. Wyatt Dep. at 274.
Following the alleged 1987 settlement, Plaintiff complained to Willse about not being paid for syndication of his column. Plaintiff alleges that Willse refused to meet with him on this issue from 1989 to 1993. Wyatt also complained during this period about Willse's refusal to authorize expense reimbursements above an average level of $100 per week. Plaintiff asserted in his correspondence with Willse that Willse's predecessor had authorized the $100 level of reimbursements as part of the settlement. Plaintiff has proffered correspondence from Willse in which Willse approved certain types of expenses, required that other types be approved in advance by Browne or McMahon, and referred to cost-cutting measures "across the department." (See Wyatt Aff. ¶¶ 54-56; Exs. 26-29 to Wyatt Aff.) Plaintiff also alleges that Willse edited his work "excessive[ly]," criticized his work harshly and, in an allegedly unusual move, wrote Wyatt's column during the 1990 newspaper strike (Willse was the paper's Executive Editor at the time). (Wyatt Aff. ¶ 57.)
McMahon was Associate Entertainment Editor of the Daily News. McMahon, plaintiff alleges, engaged in retaliation against him after 1987 by turning down most of his stories, particularly those involving black protagonists. Plaintiff further alleges that McMahon's qualifications were inferior to his own but she nonetheless edited his work "excessive[ly]." (Wyatt Aff. ¶ 60.) McMahon complained about his absence from the office during regular business hours. Wyatt characterizes McMahon's attitude as "hostile" and asserts that she "openly and consistently made pejorative comments about this aspect of the settlement agreement, making comments such as 'Where were you? . . . this settlement thing.'" (Id.)
Wyatt's affidavit does not identify any such stories and, in his deposition, he testified that he "can't remember" any such stories. Wyatt Dep. at 407, Ex. 37 to Wyatt Aff.
Wood was Deputy Managing Editor-Features of the Daily News. Plaintiff is critical of Wood's qualifications for that position. (See id. ¶ 66.) Plaintiff alleges that Wood "shunned" him from 1987 to 1993, while maintaining friendly relationships with white reporters. Plaintiff also alleges that he initiated a confrontation with her regarding "Japanese and racial bashing," to which she "reacted disdainfully." (Id. ¶ 63.) The only specific evidence of communication from Wyatt to Wood regarding a Japanese matter, however, is a 1990 letter from Wyatt to Wood in which he asserts that another editor had "ripped off" a story that Wyatt had submitted to the paper on behalf of a "Japanese correspondent." (Ex. 30 to Wyatt Aff.)
Browne was Managing Editor of the Daily News. According to Plaintiff, Browne "routinely excessively used the word black." At his deposition, Plaintiff was unable to specify particular contexts or timing of such remarks:
Wyatt Dep. at 275.
It was just routinely when I sat in the city room and he would walk around as the city editor or the metropolitan editor and he would engage in conversations with people. When he would speak to white reporters, he would arrogantly — he's extremely arrogant, he would just black this, black that and I would turn around, I'm trying to write and do something. He would — he was very, very careful about what he was saying but just enough to irritate me.
(Wyatt Dep. at 278. See also id. at 279 (no recollection of particulars or frequency of such occasions).)
In late 1992, New DN Company ("New DN"), defendant DNLP's corporate general partner, agreed to purchase substantially all of the assets of the Daily News from the bankruptcy estate of Maxwell Newspapers, Inc. (Aff. of Mortimer Zuckerman ¶ 2.) In December 1992, in contemplation of the acquisition, New DN devised a process for review and evaluation of the staff of theDaily News, in order to make performance-based determinations as to which Newspaper Guild-represented employees of Maxwell would be offered employment with the new entity. New DN requested that existing Daily News supervisors and managers prepare written evaluations of the Guild-represented employees who worked under their supervision. Evaluations relating to staff of the Editorial Department, in which Wyatt was employed, were reviewed by Harrison Rainie, a senior editor of U.S. News World Report, who ranked the employees on a scale of "A" (highest) to "D" on the basis of the evaluations and presented the rankings to defendant Zuckerman in a December 31, 1992, memorandum. (Zuckerman Aff.; Ex. B to Decl. of Harrison Rainie.)
The review and evaluation process were described in a December 3, 1992, memorandum from a Fred Drasner to those who were to oversee the process. The memorandum, which recited that Drasner had concluded "that the existing workforce of the newspaper needs to be reorganized and streamlined if it is to become an economically viable organization," included an instruction that
You should stress to everyone involved in the process that our sole objective is to identify the most talented and effective performers on the Daily News staff. You should stress that there can be no favoritism and no bias based on an employee's prior involvement in union activities. Similarly, while I trust everyone knows that an employee's race, gender, age, or other protected characteristics should have absolutely no bearing on how that person is evaluated, you should stress that point as well. (Ex. A to Rainie Decl.) Rainie's notes of a November 30, 1992, meeting with Zuckerman reflect a similar focus on merit and performance. (Rainie Decl. ¶ 6 and Ex. D thereto.)
McMahon, who was then the Associate Entertainment Editor, and Wood, who was then the Deputy Managing Editor-Features, evaluated Wyatt and the other Features section reporters in this process. (Decl. of Kate McMahon ¶¶ 1-2; Decl. of Fran Wood ¶¶ 1-2.) Wood and McMahon were among Wyatt's supervisors. (Wyatt Aff. ¶ 51.)
McMahon's December 6, 1992, evaluation rated Wyatt "Unsatisfactory" in every performance area other than "writing" and "ability to meet deadlines." In those two areas, she put Wyatt in the second-lowest performance category — "Needs Improvement." McMahon rated Wyatt "Unsatisfactory" overall. In the "Additional Comments" section of the form, McMahon wrote:
Hugh Wyatt deserved to be fired years ago. He is a liability in every sense of the word. He should not be rehired under any circumstances (Wyatt has only remained on staff this long due to an out of court settlement with the company).
(Ex. 30 to Wyatt Aff.) Wood's December 6, 1992, evaluation of Wyatt rated him "Unsatisfactory" in every performance area and included the following under "Additional Comments":
As previously noted, Wyatt alleges that there was a 1987 settlement but offers no admissible evidence as to its terms. He cites only the vague hearsay letter from his lawyer as support for his assertions in his affidavit as to the terms of the settlement. There is no further evidence in the record, other than Wyatt's own conclusory assertions as to his understanding of the terms of the settlement, as to its terms.
Wyatt spends an hour or two in the office early many mornings, but is almost always gone by 9 and can only be reached by phone during the day. He produces one weekly column — a compilation of reviews of jazz albums — which he says takes him nearly a week to do because he must spend many hours listening to the albums. Moreover, the column has little value to the paper. While Wyatt appears to be fairly conversant with his subject matter, his writing is convoluted and his copy is so riddled with errors the copydesk has had to insist he leave the album covers with them to check spellings and other information. He rarely suggests story ideas, is resistant to assignments and the rare story he does do takes him a minimum of a week to turn around. Wyatt is virtually useless as a News reporter.
(Ex. 30 to Wyatt Aff.) Plaintiff alleges that McMahon and Wood were "ill-suited to evaluate" him, as neither "had knowledge of jazz," and both had, in Plaintiff's view, inferior journalistic qualifications. (See Wyatt Aff. ¶¶ 64-66.) Plaintiff attributes their selection as his evaluators to "the retaliatory proclivities of management" and, contrasting their negative evaluations with Plaintiff's perception of the import of former Executive Editor Gil Spencer's 1989 "To Whom it May Concern" letter in support of Plaintiff's syndication efforts, asserts: "It is difficult to rationalize such a precipitous fall from grace other than to conclude the obvious: these evaluations were used as a reprisal for the 1987 settlement." (Wyatt Aff. ¶¶ 65, 68.)
Ex. 16 to Wyatt Aff.
As noted above, Rainie was assigned to review the evaluations and rank the employees. He ranked Wyatt and five other Features employees in the lowest group, "D." Based on this ranking, Wyatt was not offered employment with DNLP. (Rainie Decl. ¶¶ 4-5 and Exs. B and C thereto.) Rainie asserts that "Neither Wyatt's race nor his age were factors in my decision to place him on the 'D' list of reporters or the decision not to offer him employment (which was itself a function of his placement on the 'D' list). Nor were any prior complaints of discrimination by Wyatt against the former owner of the Daily News a factor in the decision whether to offer him employment with DNLP. DNLP's hiring decisions were all based on merit." (Rainie Decl. ¶ 6.) Plaintiff does not allege that Rainie engaged in any overtly discriminatory conduct toward him. Rather, he acknowledges that Rainie "did not know me professionally" and further alleges, without evidentiary support, that
His close friendship with former editor Sam Roberts, who was one of the editors I named in my 1981 discrimination suit against the Daily News, was known. He was also known for his unfriendliness to minorities. . . . I believe he obtained information from Mr. Willse and cohorts in deciding my fate.
(Wyatt Aff. at ¶ 62, n. 4.)
As noted above, no individuals were named as defendants in Wyatt's earlier discrimination lawsuit. Willse denies that he participated in the decision not to offer employment to Wyatt. (Decl. of James Willse, ¶ 6.) Browne denies that he played any role in the decision not to offer employment to Wyatt, and also denies that he consulted with Wood or McMahon about their evaluations of Wyatt. (Decl. of Arthur Browne, ¶ 2.)
Prior to Thanksgiving 1992, Rainie was aware of a "Willse concern about losing good young folks." Rainie proffered in his deposition that he thought Willse "was generally concerned about the attrition in the newsroom, that some talented people had left because of the struggles related to the [earlier Newspaper Guild] strike, related to the [Maxwell] bankruptcy, related to the confusion over whether the paper would survive and who was going to be its owner." (Tr. of Dep. of H. Rainie at 98, annexed to Rainie Decl. as Ex. E.)
Plaintiff alleges, without evidentiary support, that a "union activist" had "indicated" that "Mr. Zuckerman stated during the purchase negotiations that he didn't 'give a damn' that . . . Hugh Wyatt [was] in a 'protected class.'" (Wyatt Aff. ¶ 71.) Zuckerman denies making such a comment. (Tr. of Zuckerman Dep., at 83-84, annexed to Wyatt Aff. as Ex. 33.)
Characterizing the DNLP transition as "racially devastating" but without proffering specific statistics concerning any of the employee groups involved, Wyatt alleges that all of the Daily News's black male reporters were "fired" in the transition process, that no blacks were continued in the Arts and Entertainment unit, and that "most" of the reporters who were "terminated" were black. He also alleges that "most" of the reporters "terminated" in 1993 were over the age of 45, and that a "substantial number" of the terminated Maxwell employees were over the age of 50. (Wyatt Aff. ¶¶ 69-70.) It is undisputed that Wyatt was 49 at the time DNLP declined to offer him employment. Wyatt alleges that he was replaced by "a younger white male named Mr. Gene Santorro." (Id. ¶ 70.) Defendants deny that Wyatt was replaced and proffer evidence that Santorro was an independent contractor who began working for the Daily News in June 1993, several months after the events at issue here. (Aff. of Jeffrey Zomper, ¶¶ 3-4; Wood Decl. ¶ 3.)
In connection with the anticipated transition of the Daily News from Maxwell to DNLP, DNLP offered a Voluntary Buy-Out Program to Newspaper Guild-represented Maxwell employees. A list of the eligible and ineligible job titles and the ages of individuals in those titles was provided as part of the employee communications package in connection with the offer. (Aff. of Carole O'Blenes ¶¶ 4-6 and Ex. 1 thereto.) According to O'Blenes, the list was prepared in order to comply with the requirements of the federal Older Workers Benefit Protection Act of 1990 in connection with the solicitation of releases. (Id. ¶ 5.)
It is undisputed that Wyatt did not receive a severance payment in connection with the DNLP acquisition and the termination of his Maxwell employment with the Daily News. It is also undisputed that Wyatt was offered a severance payment in excess of $67,000, subject to his execution of a release of certain claims against Maxwell, the Newspaper Guild and DNLP regarding severance, including any such claims relating to retaliation, and that Wyatt refused to sign such a release. (See, e.g., Ex. 35 to Wyatt Aff.)
Although Wyatt asserts that all other "dismissed" employees were paid severance and that he was denied such payment for discriminatory and/or retaliatory reasons, it is sufficient for purposes of the instant motion practice to note the following undisputed facts. In 1997, Wyatt commenced a separate action in New York State Supreme Court against DNLP, alleging that he had been denied severance in breach of the relevant agreement between DNLP and his union. (Ex. C to Baumgarten Aff.) In an April 1999 written opinion, Justice Louise Gruner Gans denied Wyatt's motion for summary judgment in that action and granted DNLP's cross-motion to dismiss the complaint. Justice Gans held that Wyatt had no right to collect severance pay from DNLP pursuant to the collective bargaining agreement that had been in force between Maxwell and the Newspaper Guild, and further held that the release condition that Wyatt claims in this litigation is retaliatory is in fact consistent with the terms under which DNLP agreed to pay severance to Wyatt and others pursuant to a post-acquisition settlement of severance-related disputes among the Newspaper Guild, Maxwell and DNLP. Wyatt v. Daily News, L.P., Slip Op., Index No. 108263/97 (S. Ct. N.Y. Co. April 2, 1999) (Ex. G. to Baumgarten Decl. at 8-9.)
In or about May 1993, Wyatt filed a written complaint with the New York State Commission on Human Rights and the federal Equal Employment Opportunity Commission (a copy of which is annexed to the complaint in this action), charging DNLP and Maxwell with race and age discrimination in connection with the termination of his Daily News employment and retaliation in connection with the withholding of severance pay.
The complaint in this action was filed on November 22, 1993. Willse has never been served with the summons and complaint. (Willse Decl. ¶ 2.)
DISCUSSION
Defendant Willse's Motion to Dismiss The Complaint Pursuant to Fed.R.Civ.P. 5
"If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or its own initiative after notice to the plaintiff, shall dismiss the action. . . ." Fed.R.Civ.P. 4(m). Defendant Willse denies that he was ever served with the summons and complaint, and the Court's docket in this action reflects no proof of service on Willse. Plaintiff, who was represented by counsel during the first six years of this litigation and entered his appearance pro se in 2000, has proffered no explanation as to why Willse was not served. Willse's motion is hereby granted, and the complaint is dismissed as against him, pursuant to Rule 5 of the Federal Rules of Civil Procedure.
Motion for Summary Judgment
A grant of summary judgment is appropriate only when the moving party can demonstrate that 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Parties' evidentiary submissions in support of and in opposition to a summary judgment motion must show facts that would be admissible in evidence. Fed.R.Civ.P. 56(e). To determine whether there is a genuine issue of material fact, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "[W]here the party opposing summary judgment is proceeding on a pro se basis, the Court must read the party's papers liberally and interpret them 'to raise the strongest arguments that they suggest.'" Saldana v. Local 32B-32J Serv. Employees Int'l Union, No. 03 Civ. 1853 (DF), 2005 WL 66895, at *2 (S.D.N.Y. Jan. 12, 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
However, "if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). Although summary judgment should be granted sparingly in employment discrimination claims, mere conclusory allegations are insufficient to defeat the motion. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[T]he opposing party must provide 'concrete particulars' showing that a trial is needed, and '[i]t is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to th[e] motion.'" R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984), quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978).
Title VII and ADEA Claims against Zuckerman and Browne
Title VII and ADEA prohibit, respectively, racial and age discrimination by "employers," a term the statutes in relevant part define to mean a person having 15 or more employees during the relevant period and any agent of such a person (Title VII) or a person having 20 or more employees during the relevant time period and any agent of such a person (ADEA). Notwithstanding the statutes' references to "agents," even "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Nor is there individual liability under the ADEA. See Storr v. Anderson School, 919 F. Supp. 144, 146-47 (S.D.N.Y. 1996);Targare v. NYNEX Network Sys. Co., 921 F. Supp. 1146, 1151 (S.D.N.Y. 1996); Falbaum v. Pomerantz, 891 F. Supp. 986, 991 (S.D.N.Y. 1995) ("Congress intended to hold employers, but not individual employees, liable for acts of discrimination in employment"). Plaintiff has proffered no evidence that either Zuckerman or Brown was his employer within the meaning of these civil rights statutes. Accordingly, Defendants' motion for summary judgment is granted with respect to Plaintiff's Title VII and ADEA claims as against Zuckerman and Browne. Plaintiff's Claim Regarding Severance is Precluded by the State Court Decision
42 U.S.C.A. § 2000e(b) (West 1994).
29 U.S.C.A. § 630(b) (West 1999).
Dismissal of the Title VII and ADEA causes of action as against Willse would have been appropriate on this ground, as well.
As noted above, Justice Gans held in Plaintiff's state court action against DNLP that Plaintiff had no valid claim against DNLP to the payment of severance under the collective bargaining agreement between Maxwell and the Newspaper Guild, and that the Maxwell-DNLP-Newspaper Guild settlement providing for severance payments required the execution of a release in a prescribed form. Here, Plaintiff asserts that he was entitled to receive a severance payment from DNLP without releasing his retaliation claims in connection with severance pay, and that Defendants' failure to pay him severance unconditionally was motivated by retaliation for his earlier civil rights claims. Defendants argue that Plaintiff's claim of retaliatory denial of severance is precluded by Justice Gans' holding in Wyatt's state court case.
Collateral estoppel bars the "relitigation of an issue of law or fact that was raised, litigated, and actually decided by a judgment in a prior proceeding between the parties, if the determination of that issue was essential to the judgment, regardless of whether or not the two proceedings are based on the same claim." N.L.R.B. v. United Tech. Corp., 706 F.2d 1254, 1260 (2d Cir. 1983); see also U.S. v. Hussein, 178 F.3d 125, 129 (2d Cir. 1999); Gramatan Home Inv. Corp. v. Lopez, 46 N.Y.2d 481, 485 (1979). Collateral estoppel comes into play when the same issue is raised between the same parties in a subsequent litigation, regardless of the nature of the underlying claims.See Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).
Plaintiff's claim in the instant action that he was wrongfully denied a severance payment, like that in his earlier state court litigation, is premised in the first instance on the notion that he was entitled to receive severance from DNLP. This issue was clearly litigated before the state court; Justice Gans held that Plaintiff had no such severance entitlement directly under the Newspaper Guild's collective bargaining agreement with Maxwell, and that he had no right to receive such a payment pursuant to the subsequent three-way settlement agreement absent execution of a release in the prescribed form. These decisions were essential to her final determination dismissing the complaint. See Wyatt v. Daily News L.P., Slip Op., Index No. 108263/97 (S. Ct. N.Y. Co. April 2, 1999). Plaintiff is thus precluded from relitigating his entitlement to severance directly under the collective bargaining agreement, or to severance under the subsequent settlement without executing the release, which he has refused to sign. Plaintiff has proffered no other legal or evidentiary basis upon which a rational factfinder could conclude that he was entitled to a severance payment. Accordingly, his retaliation claim regarding the payment of severance is precluded and must be dismissed.
Section 1981 Claims Against Zuckerman and Browne 42 U.S.C. section 1981 prohibits the public and private impairment of the rights of all persons in the United States "to make and enforce contracts . . . as is enjoyed by white citizens." The statute's reference to making and enforcing contracts includes "the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C.A. § 1981 (West 2003). In order to sustain a section 1981 cause of action against an individual, the evidence must be sufficient to demonstrate that the defendant "intentionally cause[d] an infringement of rights protected by § 1981." O'Connor v. 11 W. 30 St. Rest. Corp., Nos. 94 Civ. 2951 (LMM), 93 Civ. 8895 (LMM), 1995 WL 354904, at *7 (S.D.N.Y. June 13, 1995). The plaintiff must also show a causal link between the individual actor and the allegedly discriminatory act(s). See Kim v. Dial Serv. Int'l, Inc., No. 96 Civ. 3327 (DLC), 1997 WL 5902, at *7 (S.D.N.Y. Jan. 8, 1997). See also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (personal involvement in discriminatory activity must be established to find individual liability under section 1981).
Here, although it is undisputed that Zuckerman made the final decisions as to who would be offered DNLP employment, it is also undisputed that Zuckerman's decisions regarding the hiring of Newspaper Guild-represented employees in connection with the DNLP transaction were made based on Rainie's rankings, which were in turn based on the supervisors' evaluations. The only basis for inference of a discriminatory animus on Zuckerman's part that Plaintiff even seeks to proffer is Plaintiff's own account of a statement purportedly heard by a "union activist" in connection with the negotiation of the Daily News acquisition transaction, to the effect that Zuckerman had said that he did not care that Wyatt was in a "protected class." (Wyatt Aff. ¶ 71.) This alleged statement is inadmissible hearsay; accordingly, even when viewed in the light most favorable to Plaintiff the record provides no basis upon which a rational factfinder could conclude that Zuckerman personally and intentionally caused an infringement of Wyatt's section 1981-protected rights.
Wyatt's evidence against Browne in this regard is also non-existent. Browne denies any involvement in the decision not to hire Wyatt. Wyatt's proffer in this connection consists solely of a conclusory assertion that Rainie's ranking of Wyatt was influenced by Willse and his "cohorts" (presumably including Browne), and conclusory assertions that Browne was a racist. Even when viewed in the light most favorable to Plaintiff, these assertions provide no basis upon which a rational factfinder could conclude that Brown personally and intentionally caused an infringement of Wyatt's section 1981-protected rights in connection with the decision not to offer Wyatt DNLP employment. In any event, as explained below, Plaintiff has failed to offer sufficient evidence to frame a genuine issue of material fact as to the merits of any of his claims.
Accordingly, Defendants' summary judgment motion will be granted insofar as Plaintiff asserts section 1981 claims against Zuckerman and Browne.
Merits of Discrimination and Retaliation Claims
In his complaint in this action, Plaintiff asserts that DNLP's failure to hire him, and the denial of severance pay, constituted prohibited disparate treatment on the basis of race and color, as well as retaliation for his earlier discrimination complaints, in violation of Title VII and section 1981. He further contends that the failure to hire was age-based and thus violative of ADEA. In his Second Cause of Action, Plaintiff asserts that "Defendant [DNLP's] purportedly neutral programs and the acts, practices and policies set forth therein undertaken pursuant to those programs" had an adverse disparate impact on "plaintiffs such as Wyatt, including Mr. Wyatt on the basis of his race and color, in violation of Title VII" and that, because "[d]efendants had full knowledge of the disparate impact of their policies and practices" they "acted intentionally in violation of Section 1981."
The Court will first examine the viability of Plaintiff's disparate treatment claims. The same legal standards, derived from the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), apply to the analysis of Plaintiff's claims under Title VII, ADEA and section 1981. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 567 (2d Cir. 2000) (Title VII); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (ADEA); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1997) (§ 1981). To make out a prima facie case of prohibited discriminatory treatment on the basis of race or age, Plaintiff must show: (1) that he is a member of a protected class, (2) that he suffered an adverse employment action, (3) that he was qualified for the position, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). A plaintiff's prima facie case on a retaliation claim must show "(1) participation in a protected activity that is known to the defendant, (2) an employment decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse decision." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999). The Second Circuit has described the burden of establishing a prima facie case as "minimal." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).
Here, it is undisputed that Plaintiff is of African-American and Native American descent and was over the age of 40; the protected class membership prong of his prima facie case for race and age discrimination is therefore met. It is also undisputed that he made complaints of age discrimination to the Equal Employment Opportunity Commission and in federal civil rights litigation prior to the action complained of here and that persons acting on DNLP's behalf were aware of the prior litigation. The first prong of his prima facie case for retaliation is thus met as well. The second prong of each of the tests is also satisfied: Plaintiff suffered an adverse employment action in that DNLP decided not to hire him in connection with its acquisition of the Daily News business. As to the third prong of the race and age discrimination claim, the Court will assume, on the basis of Plaintiff's long tenure with DNLP's predecessors and his proffers concerning past commendation of his work, that plaintiff was at least minimally qualified for continuation of his position. The Court will also assume for purposes of this discussion, based on Plaintiff's conclusory proffers concerning DNLP's failure to rehire significant numbers of black and older reporters and Browne's acknowledgment in his deposition that "virtually all, if not all, of the black male reporters were not offered employment," and Rainie's note regarding Willse's "concern about losing good young folks" that plaintiff has proffered sufficient indicia of circumstances giving rise to an inference of discrimination to meet the requisites of a prima facie case. As to the final element of the retaliation prima facie case, the connection to Plaintiff's early 1980s civil case and alleged 1987 settlement is far more attenuated, but the Court will again assume for purposes of analysis that the requisite showing of a causal connection has been met.
Tr. of Dep. of A. Browne at 67, Ex. 25 to Wyatt Aff.
Ex. E to Rainie Decl. at 98.
Once a plaintiff has proffered his prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action.McDonnell Douglas, 411 U.S. at 802. Here, Defendants have tendered specific, detailed evidence, in admissible form, of the objective review and evaluation process that they contend led to the decision not to rehire Plaintiff and numerous other employees. Defendants' evidence indicates that the decision not to offer DNLP employment to Plaintiff was based on negative evaluations on numerous job-related criteria by two of his supervisors and Plaintiff's ranking, in light of those evaluations, in relation to other reporters in his area. Wood and McMahon (the evaluators), Rainie (who prepared the rankings and participated in the final decision making process with Zuckerman) and Zuckerman all deny, furthermore, that the decision with respect to Plaintiff was based on Plaintiff's race, age, or prior protected activity. (Rainie Decl. ¶ 6; McMahon Decl. ¶ 4; Wood Decl. ¶ 4; Zuckerman Aff. ¶ 4.) Defendant's evidence further shows that DNLP decided not to offer more than a third of the pre-existing employees (99 of 257) DNLP employment, and that less than half of the group of Features reporters, with which Wyatt was evaluated, was selected for continuation (only 8 of the 17 Features reporters were to be offered DNLP employment; those not rehired included reporters who had been given "C" and "B" rankings as well as those who, like Wyatt, had been ranked "D"). (See Rainie Decl. and Exs. B and C thereto.)
Once the defendant proffers a nondiscriminatory explanation for the adverse employment action, the plaintiff has the burden of proffering evidence showing that the reason is false and merely a pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). See also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).
In response to Defendants' proffer, Plaintiff offers principally his own conclusory statements regarding his perceptions of Willse's "tone" and race bias, Browne's race bias and "excessive" use of the word "black," Wood's alleged reaction to what Plaintiff characterizes as a complaint regarding "Japanese-bashing", and descriptions of specific incidents of racial confrontation that allegedly involved persons who did not take part in the challenged evaluation process and which occurred at least one, and in some instances more than two, decades before the DNLP acquired the Daily News business.
Plaintiff has also proffered his own assessment of his talents and qualifications, as well as his opinions as to the qualifications of Wood and McMahon to evaluate his work. Such conclusory statements and subjective opinions of his own and others' qualifications are insufficient to create a triable issue of fact as to whether DNLP's decision not to offer him employment was the product of intentional discrimination. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (evidence of poor business judgment on employer's part generally insufficient to establish genuine issue of fact as to employer's motivations); Walters v. Columbia Presbyterian Hosp., No. 89 Civ. 1326 (MBM), 1990 WL 43932 (S.D.N.Y. April 9, 1990) ("[A]n employer is allowed to misjudge the worth of its employees, so long as its evaluation is not based upon a discriminatory purpose." (citing Burdine, 450 U.S. at 258-59).).
Plaintiff's conclusory statements regarding "excessive" editing and oversight of his work, and his perception that such conduct was motivated by discriminatory or retaliatory bias, are similarly insufficient to permit a rational trier of fact to conclude that the decision not to offer Plaintiff DNLP employment was the product of racial bias or retaliation. See Ralkin v. New York City Transit Auth., 62 F. Supp. 2d 989, 997-98 (E.D.N.Y. 1999) (plaintiff opposing summary judgment motion cannot rely on unsupported assertions); Rookard v. Kateri Residence, Inc., No. 98 Civ. 8301 (BSJ), 2001 WL 180119 (S.D.N.Y. Feb. 22, 2001) (conclusory allegations unsupported by concrete facts insufficient to support claim). Browne's acknowledgment that "virtually all if not all" of the "black male reporters" were not offered reemployment is also insufficient to rebut Defendants' evidence as to the legitimate, nondiscriminatory reason for not offering Wyatt a position. To the extent the "black male reporter" template is intended to suggest gender-related bias, it is irrelevant to Plaintiff's claims of race and age discrimination. To the extent it is intended to suggest racial bias, it has little, if any probative value in the absence of information concerning the demographics of the entire employee group, which included women as well as persons working in other job titles. (See Rainie Exs. B and C.) Much of the remainder of his proffer consists of inadmissible hearsay and/or irrelevant statements attributed to others (such as commendations allegedly received in the 1970s and 1980s from outside groups and former supervisors, the "union activist's" alleged report of Zuckerman's comment in the DNLP acquisition negotiations, and allegations concerning Willse's later conduct as an employee of the Newark Star Ledger) and is insufficient to meet his burden in responding to a motion for summary judgment. See Fed.R.Civ.P. 56(e); Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986).
Plaintiff's age, the testimony concerning Rainie's knowledge of Willse's "concern" regarding the loss of "good young folks," and Plaintiff's conclusory statements regarding the ages of others who were not offered DNLP employment, are likewise insufficient to support a reasonable factfinder's rejection of Defendants' proffered reasons for the hiring decision here at issue. Furthermore, Defendants' proffer as to the reason for preparation and distribution of a list of job titles and ages in connection with the Voluntary Buy-Out Program is entirely consistent with the provisions of the Older Workers Benefit Protection Act. See 29 U.S.C.A. § 626(f)(1)(H) (West 1999); O'Blenes Aff. ¶¶ 5-6. Accordingly, Plaintiff has failed to rebut as pretextual Defendants' proffer of a legitimate, nondiscriminatory reason for the decision not to offer him employment with DNLP.
Plaintiff's effort to show that the evaluation-based termination decision was a pretext for retaliation fails as well. His factual proffer is again conclusory, consisting in the main of allegations that editorial and supervisory decisions he perceived as unfavorable to him were retaliatory, and statements regarding alleged breaches and criticism by Wood, McMahon and Willse of "settlement agreement" provisions of which Plaintiff has produced absolutely no admissible proof. In the absence of any proof that Wyatt's alleged settlement agreement permitted him to be absent from the office during normal business hours on a regular basis, Wood's criticism of his performance in this regard in her evaluation, and Plaintiff's general allegations that she and McMahon criticized his work schedule, are of no probative value on the issue of pretext. Nor would McMahon's evaluation comment that Wyatt "deserved to be fired years ago[,] . . . is a liability in every sense of the word . . . [and] has only remained on staff this long due to an out of court settlement with the company" be sufficient to support a rational fact finder's conclusion that Defendant's proffered reasons were pretexts for discrimination. To the extent that the statements suggest a belief on McMahon's part that Wyatt had contractual rights arising against the former owners from his prior litigation, they are, in the context of McMahon's negative evaluations of Wyatt's relevant skills, merely indicative of the supervisor's belief that DNLP was not obligated to take Wyatt on and that taking him on would not benefit the new company.
McMahon Decl. Ex. A; Wyatt Aff. Ex. 30.
As noted above, Plaintiff also asserts in his complaint that facially "neutral policies" of the Defendants have had a disparate impact on Wyatt and similarly situated employees, in violation of Title VII and section 1981. The Court reads this as a race-focused disparate impact claim. For the reasons outlined above in connection with Plaintiff's disparate treatment claims, Plaintiff's proof is entirely insufficient to make out a prima facie disparate impact case.
CONCLUSION
For the foregoing reasons, Defendants' motion pursuant to Rule 5 of the Federal Rules of Civil Procedure to dismiss the complaint as against Defendant Willse is granted, and Defendants' motion for summary judgment dismissing the complaint is granted in its entirety.
The Clerk of the Court is respectfully requested to enter judgment in Defendants' favor and close this case.
SO ORDERED.