Opinion
02 Civ. 7604 (TPG).
September 12, 2007
OPINION
Plaintiff George Carras brings this action against his former employer MGS 782 Lex, Inc., its former President, Stephano Maraolo, and its former Vice President of Marketing, Agostino Nastasi, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law, New York Executive Law § 296, and the New York City Human Rights Law, New York City Administrative Code §§ 8-107, 8-502.
Defendants move for summary judgment. The motion is granted, and the action is dismissed.
Facts
Plaintiff Carras worked for defendant MGS from 1999 until April 2001, when he was terminated. He was 63 years old at the time of termination.
MGS, which is no longer in business, was an Italian shoe importer and retailer founded and owned by Mario Maraolo — the father of defendant Stephano Maraolo. At all relevant times, Mario Maraolo resided in Italy. Defendant Agostino Nastasi was Vice President of Marketing.
In 1999 Stephano Maraolo joined MGS as its President. This was shortly before the arrival of Carras. Previously MGS had been effectively run by Nastasi and by Alex Aignorn, the company's then CFO. When Maraolo joined MGS, the company was losing money and was in the process of downsizing from twenty retail stores to ten. After a discussion with his father, Maraolo decided to terminate Aignorn because, as a result of the downsizing, Aignorn became overqualified and the company could no longer afford his $275,000 salary.
Stephano Maraolo will hereafter be referred to as "Maraolo." Any reference to Mario Maraolo will include his full name.
But MGS still needed a CFO. This turned out to be Carras, who was hired at a salary of $80,000.
Carras began his employment at MGS in March 1999. At that time, MGS operated nine retail stores. By the time Carras was terminated in April 2001, MGS operated only six retail stores. Throughout the entire period of Carras's employment, MGS was losing money and was continually looking to cut costs. For the duration of Carras's employment, he and Nastasi managed the day-to-day business of the company. Maraolo did not come to the office every day.
In or about June 2000, Carras hired Evan Winegard as MGS's bookkeeper. Winegard was the son of the company's longtime outside accountant.
Six months after Carras hired Winegard, Carras suggested to Maraolo that Winegard should be fired because he did not work full-time. Maraolo did not respond to Carras's suggestion and Winegard was not terminated.
From the time of Winegard's hiring through the time of Carras's termination, the business office of MGS consisted of Carras, Winegard, Nastasi and two others — and Maraolo, although not on a daily basis.
Winegard testified that the atmosphere in MGS's business office was very "open" and that everyone discussed and joked about Carras's age, Maraolo's and Nastasi's Italian ethnicity, and Winegard's deafness and weight. According to Winegard, the discussion and jokes about Carras's age occurred both in and out of Carras's presence and continued when Carras was no longer employed. Winegard also testified that Carras himself often joked about his age. Nastasi denies joking about or discussing Carras's age. Similarly, Carras denies joking about his own age with MGS employees.
Sometime in early 2001, before Carras was terminated, Maraolo proposed an across-the-board ten-percent salary reduction for his senior employees. Maraolo recalls having this discussion with Carras, Nastasi and the General Manager, Rosario Cordaro. Nastasi made it known that he was upset about the proposed reduction. Maraolo's proposal was not implemented until late 2001, months after Carras's termination. Nevertheless, this suggestion appears to have generated repeated discussions about salary reductions among the employees in the business office.
Several weeks before his termination, Carras made his own suggestion about salary reduction. At that time, Carras's salary was $91,000 and Winegard's salary was $65,000. As part of his proposal, Carras offered to take a pay cut to $60,000 and suggested that Winegard's salary be cut in half because, according to Carras, Winegard was only working twenty hours per week.
Shortly before or after the above conversation, Carras also discussed salaries with Nastasi. According to Carras, during that conversation, Nastasi made a comment about his age. Nastasi denies making any comment about Carras's age. Carras has given different accounts of what was said. The complaint states that Nastasi "told Plaintiff that Plaintiff was too old for the job, and Nastasi suggested to Plaintiff that due to his age Plaintiff was not performing at an effective or efficient level" (Compl. ¶ 11). When questioned by defense counsel in his deposition, Carras confirmed the allegation in the complaint:
Q: Do you remember exactly what he said?
A: That's pretty much what he said what's in paragraph 11.
Q: That Mr. Nastasi said due to your age you are not performing at an effective or efficient level. Those were his words?
A: Yes.
(Carras Dep. 42:23-43:5). But at the end of his deposition, when questioned by his own counsel, Carras gave a different version:
Q: Counsel for the Defendants showed you paragraph 11 of the Complaint and I want to just clarify something. This deals with the statement that Nastasi made to you prior to your termination. Is it your recollection that he used the words effective or efficient level?
A: No, not really.
Q: Please describe for me, to the best of your recollection, what it was that Nastasi told you?
A: To the best of my recollection, he was a person that would flare up instantaneously. And he would say, you know, I remember him saying very specifically, "You are an old man. You should go home. Stay home. Sometimes you shouldn't even be spending 50 percent of your time here."
And to correct what I said before, I think he said this to me more than once. But the culmination was when he said, "You are too old. You shouldn't be here." But very emotional conversations.
Q: And did he use the precise language as efficient or effective level?
A: No, I don't think that was in his vocabulary.
Q: What about 50 percent cut?
A: Way back, yes. At one time he said 50 percent cut. He then he said, "You should just go home."
(Id. 80:18-81:24).
Nastasi does not deny that he had discussions with Carras regarding salary reductions and he acknowledges that there were many discussions among MGS's management about cutting costs in the weeks leading up to Carras's termination. But Nastasi denies ever calling Carras an old man.
Also, in the weeks leading up to Carras's termination, Carras had a conversation with Winegard about salaries. Carras told Winegard that both of them would be required to take salary reductions. Winegard indicated that he refused to have his salary reduced. Following that conversation, Winegard arranged to meet Maraolo in a store down the street from MGS's office. At that meeting, Winegard told Maraolo that he would not take a reduction in salary and that Maraolo would have to choose between him and Carras.
Sometime in April 2001, following the series of conversations described above, Maraolo invited Carras to lunch. At that lunch meeting, Maraolo told Carras that he would be terminated. According to Carras, Maraolo said, "I have to let you go because of cost cutting and I have had enough of Agostino [Nastasi]." (Carras Dep. 57:6-8). Carras alleges that in mentioning Nastasi, Maraolo referred to complaints made by Nastasi to Maraolo about Carras's age. Both Maraolo and Nastasi deny that any such complaints were made. There is no direct evidence of such complaints. Carras was not a party to the conversations. Carras is inferring that Nastasi made such complaints, apparently because of the remarks about Carras's age which Carras claims Nastasi made to Carras.
Carras and Maraolo negotiated a severance package that was reduced to a handwritten document entitled, "Terms of Termination," dated April 26, 2001. The document is signed by Maraolo. It states that Carras would be terminated effective April 27, 2001. Carras received four weeks of severance pay, medical insurance coverage until the age of 65, and a contract to be a consultant for MGS for the months of May and June 2001. MGS fully satisfied those terms.
According to Maraolo, MGS no longer needed a CFO with Carras's credentials. After Carras was terminated, Winegard performed both his own and Carras's jobs and, apparently on his own initiative, started using the title CFO. MGS continued to lose money until MGS finally ceased operating sometime in 2002.
Discussion
Summary judgment is granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing that there are no material facts in dispute. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The non-moving party then must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
When considering the motion, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000). If there is no evidence in the record from which a reasonable jury could return a verdict in favor of the non-moving party, the court may properly grant summary judgment.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
The Second Circuit has cautioned that, when reviewing the record in a discrimination case, "the court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant's proffered explanation is a pretext for such discrimination, would be entitled to view the evidence as a whole." Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). Moreover, "an extra measure of caution is merited" when considering a motion for summary judgment in a discrimination action "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions."Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001).
Claims of employment discrimination brought under the ADEA are subject to the same analysis as claims brought under Title VII.Rose v. N.Y. City Bd. of Educ., 257 F.3d 156, 161 (2d Cir. 2001). The federal Title VII analysis also applies to claims of discrimination under the New York State Human Rights Law and the New York City Human Rights Law. Silver v. N. Shore Univ. Hosp., No. 05 Civ. 6844, 2007 U.S. Dist. LEXIS 37251, at *22-23 (S.D.N.Y. May 21, 2007); Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 767 (S.D.N.Y. 2002).
The ADEA provides that, "it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 USC § 623(a)(1). Claims of age discrimination are typically analyzed in one of two ways: (1) under the McDonnell Douglas "pretext" analysis, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or (2) under the Price Waterhouse "mixed-motive" analysis, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Under the more traditional McDonnell Douglas framework, in an unlawful termination case, the plaintiff must first establish a prima facie case of discrimination by showing that (1) he was a member of a protected class; (2) he was qualified for his position; (3) he was terminated; and (4) the circumstances surrounding his termination give rise to an inference of discrimination. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802). The plaintiff has the ultimate burden of proving the elements of his claim by a preponderance of the evidence. Nevertheless, "the showing that plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-204 (2d Cir. 1995).
Second, if the plaintiff establishes a prima facie case of unlawful discrimination, "a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision." Stratton v. Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997). The defendant's burden here is merely one of production — i.e., it is sufficient if the defendant's evidence merely raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the termination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
Third, if the defendant successfully articulates a non-discriminatory reason for the termination, the presumption of discrimination arising with the establishment of the prima facie case drops from the picture. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). "The plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination." Id. The plaintiff's burden here is to produce sufficient evidence to support a finding that the legitimate, non-discriminatory reason proffered by the defendant is false, and that, more likely than not, discrimination was the real reason for his termination. Id. The ultimate question is whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. Id. "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Alternatively, under the Price Waterhouse "mixed motives" framework, if the plaintiff establishes that his age played a "motivating part" in his termination, the burden shifts to his employer to prove by a preponderance of the evidence that it would have made the same decision anyway. Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). Unlike the McDonnell Douglas framework, the plaintiff's initial burden here is not de minimis.
In order to warrant a burden shift, the plaintiff must provide direct evidence of discrimination. The Second Circuit has characterized the kind of evidence necessary to shift the burden as a "smoking gun or at least a thick cloud of smoke." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006). "Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the discriminatory attitude." Raskin, 125 F.2d at 60-61.
If the plaintiff is successful in establishing that discrimination formed a motivating part in his termination, the burden shifted to the defendant is one of persuasion, not production. Rose v. N.Y. City Bd. of Educ., 257 F.3d 156, 161 (2d Cir. 2001). Thus, if the defendant can show that it would have terminated the plaintiff anyway, the defendant automatically prevails. This differs from the burden shifting under the McDonnell Douglas analysis, where, as noted above, if the defendant successfully articulates a non-discriminatory reason for the plaintiff's termination, the defendant merely rebuts the presumption of discrimination that arose from the plaintiff's prima facie case and plaintiff may still prevail if he can show intentional discrimination by a preponderance of the evidence.
Carras suggests that the Court need not engage in the McDonnell Douglas analysis because there is direct evidence showing that age played a motivating factor in Carras's termination. Thus, Carras invites the court to apply the Price Waterhouse framework. But in the alternative, Carras submits that he prevails on theMcDonnell Douglas analysis as well.
With respect to the Price Waterhouse analysis, Carras argues that both Nastasi's comment about his age in the weeks before his termination and the general jokes and comments about his age described by Winegard constitute direct evidence of discrimination.
Courts are often forced to weigh the probative value of verbal comments in discrimination cases. "The more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination."Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007). For example, remarks made by someone other than the decisionmaker may have little probative value with regard to the decisionmaker's motivations. Id.; see also Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992).
The courts in this circuit have referred to these low-probative-value comments as "stray remarks." See, e.g.,Tomassi, 478 F.3d at 115-16; Posner v. Sprint/United Mgmt. Co., 478 F. Supp. 2d 550, 557-58 (S.D.N.Y. 2007). However, the Second Circuit recently clarified that the use of the label "stray remarks" is meant only to recognize that not all remarks are equally probative and that the district court should not be categorical in its analysis of verbal remarks. That is, remarks should not be categorized either as stray or not stray and then disregarded if they fall into the stray category. Tomassi, 478 F.3d at 115-16. Rather, all comments should be considered in the context of all the evidence. Id. at 115. To determine whether a comment is a probative statement evidencing an intent to discriminate, the court considers a number of factors: (1) who made the remark, i.e., whether he was a decisionmaker; (2) when the remark was made in relation to the termination; (3) the content of the remark; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process. Posner, 478 F. Supp. 2d at 557.
There has been elaborate discussion by the parties about the application of these factors. No useful purpose would be served in dealing with all of the detailed arguments. The salient fact is that Stephano Maraolo was the one who terminated Carras. There is no indication that Nastasi had any authority to make such a decision or did in fact make the decision. According to Carras, when Maraolo notified Carras of the termination, Maraolo made the cryptic remark about having "had enough of Agostino [Nastasi]," although Carras quotes Maraolo as saying that the reason for the termination was cost cutting.
Giving Carras a very generous benefit of the doubt for summary judgment purposes, the court finds that there is an issue of fact about whether Nastasi did in fact complain to Maraolo about Carras's age. The court will further assume that there is an issue of fact about whether Maraolo had a mixed motive in letting Carras go — i.e., cost cutting and Carras's age.
However, the evidence is overwhelming to the effect that the age element (assuming there was such an element) was insignificant in comparison with the drastic need for cost cutting. Following the departure of Carras, Winegard, who was receiving a salary of $65,000, performed both his own job and the duties which had been carried out by Carras. Thus, the Carras salary of $91,000 was eliminated. Carras argues that he had offered to have his own salary cut to $60,000, but even a $60,000 salary would have presented a substantial issue. All this must be considered in the context of the fact that the company went entirely out of business the following year because of its deepening financial plight.
Thus defendants have shown conclusively that Carras would have been terminated even if there had been no consideration of his age (if such consideration was a factor).
The same result is reached within the McConnell Douglas framework. The court will assume, for summary judgment purposes, that Carras has made out a prima facie case. However, defendants have surely come forward with the strongest possible showing of cost cutting as a legitimate, non-discriminatory reason for the termination of Carras. There is no evidence whatever that this was a mere pretext.
It would be anomalous indeed to award Carras a judgment for termination on the basis of age discrimination when his employer was financially unable to continue in business and would have had him on the payroll for only about a year longer if he had not been discharged.
Conclusion
Defendants' motion for summary judgment is granted and the action is dismissed.
SO ORDERED.