Opinion
O1-CV-570A(F).
April 27, 2004
MORIARTY DEE, Attorneys for Plaintiff, ROBERT B. MORIARTY, ESQ., of Counsel, Buffalo, New York.
JACKSON LEWIS LLP, Attorneys for Defendant, JOSEPH A. SACCOMANO, ESQ. and JONATHAN M. KOZAK, ESQ., of Counsel White Plains, New York.
REPORT and RECOMMENDATION
JURISDICTION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on November 29, 2001 for determination of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A), (B), and (C), including all dispositive and non-dispositive motions. It is presently before the court on the Defendant's motion for summary judgment filed October 21, 2002 (Docket No. 10).
BACKGROUND
Plaintiff commenced this action on August 10, 2001, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. Plaintiff, a native of the former Soviet republic of Azerbaijan who speaks with a distinct accent, contends that he was discriminated against on the basis of his national origin in that he was not promoted to positions for which he was qualified, and his employment was terminated after he made known his intention to file a formal claim of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Docket No. 1 at 4-5). Plaintiff alleged that he timely filed a charge of discrimination with the EEOC and the New York State Division of Human Rights ("NYSDHR"), and received a notice of his right to sue on June 30, 2001.Defendant filed an answer to the Complaint on September 21, 2001, asserting, inter alia, that Plaintiff was terminated from his employment in good faith and on the basis of legitimate, nondiscriminatory business reasons unrelated to Plaintiff's national origin (Docket No. 2). Defendant moved for summary judgment on October 1, 2002, arguing that Plaintiff had failed to establish a prima facie case of discrimination (Docket No. 18). Plaintiff filed a response to the motion on October 24, 2002 (Docket No. 15). Defendant then filed a reply on November 8, 2002, including an affidavit with exhibits (Docket No. 16), objections to Plaintiff's statement of facts pursuant to Rule 56 (Docket No. 17), and a memorandum of law (Docket No. 18). Oral argument was deemed unnecessary. For the following reasons, Defendant's motion for summary judgment should be GRANTED.
In its answer, Defendant states that it was incorrectly named and that the corporation is "Moore North America, Inc." (Docket No. 2).
FACTS
This factual statement is taken from the pleadings and papers filed in the action.
In support of its motion for summary judgment, Defendant offered deposition testimony of the Plaintiff, a former supervisor and the company comptroller in addition to Plaintiff's personnel records (Docket No. 13, Exhs. C — L, P — R). Plaintiff was employed by Defendant as a software engineer in 1995. He worked on various projects, including the development of an internet greeting card software application program. When Defendant developed a new unit to market this technology, the lead position was given to a Michael Butler, "an employee without a distinguishable ethnic background." Plaintiff's Memorandum of Law at 3. Plaintiff stated that, over time, he made it known to his supervisors that he was interested in management positions, but he never directly applied for a specific position (Docket No. 13, Exh. C, "Dorfman Dep." at 49-50). During the course of his employment, Plaintiff received grade level promotions and pay raises. Id. at 114-116. However, Plaintiff was not given a management position and believed that he was "not really given an opportunity to leverage all this experience and contribute." Id. at 45. Plaintiff discussed his dissatisfaction with his supervisor at the time, Jeffrey Gebhart, and Mr. Gebhart promised Plaintiff that he would be given more responsibility, but "it did not materialize into reality." Id. at 46. In late 2000, Plaintiff spoke to his supervisor Ken Greulich and the head of Moore Interactive, Eric Smith, about his desire to move into a management position with Moore. Plaintiff was promised the position of "new channel development," but the position was never created. Id. at 80. Finally, on or about January 3, 2001, Plaintiff contacted the Human Resources department by e-mail and complained about his lack of opportunity for promotion. Id. at 85-86. In his e-mail, Plaintiff made no specific mention of national origin discrimination, but stated that he believed he had "not been given an equal opportunity to grow the level of my responsibilities and ability to contribute to the decision making process, in some cases in spite of the promises." (Docket No. 13, Exh. K (emphasis in original)).
On January 5, 2001, a directive was issued by management that required Mary McCafferty, comptroller for Moore Interactive, and Jeffrey Gebhart, manager of Moore Interactive, to downsize the Moore Research Center as part of a corporate reorganization and reduction in force (Docket Item 16, Exh. A, ¶ 2). Plaintiff's division, Moore Interactive, was to be merged with another division, Moore Response Marketing. Jeffrey Gebhart was to be the general manager of Moore Interactive, Moore Interactive's unprofitable businesses were to be abandoned, and all production equipment was to be transferred from Grand Island, New York to a Moore facility in Milwaukee, Wisconsin (Docket No. 13, Exh. D "Gebhart Dep." at 82-83; Exh. E "McCafferty Dep." at 21-22). Consistent with the directive, on January 8, 2001, Gebhart and McCafferty made the decision to lay off Plaintiff along with 18 other Moore employees, including Plaintiff's supervisor. They considered the employees' salaries, skills, and their function in the company with respect to the directives from management for the downsizing (McCafferty Dep. at 26, 34). Ms. McCafferty justified Plaintiff's termination by explaining that Plaintiff was not involved with business-generating clients, but in the development of new clients (McCafferty Dep. at 39). Neither McCafferty nor Gebhart spoke with Claudia Lisman, Defendant's manager for Human Resources, prior to making their personnel decisions (Docket Item 16, Exh. C, ¶ 6). They were unaware that Plaintiff had complained he was discriminated against or intended to file a complaint with the EEOC (Docket Item 16, Exhs. A, B, ¶¶ 4, 5, 6). Likewise, Ms. Lisman stated that she did not speak with Gebhart or McCafferty about Plaintiff's perceived discrimination concerns (Docket No. 16, Exh. C, ¶ 6).
On January 8 or 9, 2001, Plaintiff had not received a reply to his e-mail and spoke directly with Claudia Lisman of the Human Resources department. He expressed his feeling that his lack of promotion was based on his national origin and told her that he intended to file a complaint with the EEOC (Dorfman Dep. at 85-87). On January 11, 2001, the employees were notified that Moore Research Center would be closed and that many employees would be laid off. Plaintiff was notified later that day that his position was terminated. Id. at 89-92.
DISCUSSION
1. Motion for Summary Judgment
The standard of review on a motion for summary judgment is well established. Summary judgment will be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 331 (1986). The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). The movant may discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case on an issue on which the non-movant has the burden of proof. See Celotex, supra, at 323.
If the moving party meets its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rattner v. Netburn, 930 F.3d 204, 209 (2d Cir. 1991). The nonmoving party may not rest upon unsubstantiated allegations, conclusory assertions or mere denials, but must set forth and establish specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). A metaphysical or other whimsical doubt concerning a material fact does not establish a genuine issue requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986). If there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. Chambers, supra, at 37.
Courts analyze employment discrimination claims under Title VII using the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff successfully establishes a prima facie case of discrimination, the burden shifts to the defendant to proffer a legitimate non-discriminatory reason for the adverse employment action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). Once the employer articulates a non-discriminatory reason, the burden shifts back to the plaintiff to prove that the reason is pretextual. Hicks, 509 U.S. at 511. The plaintiff bears the ultimate burden of proving that defendant intentionally discriminated against him. Hicks, 509 U.S. at 509-511; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
Here, Plaintiff has failed to sustain his burden of establishing a prima facie case of discrimination. To establish a prima facie case of discrimination for a failure to promote under Title VII, a plaintiff must show that (1) he is a member of a protected class, (2) his job performance was satisfactory, (3) he applied for and was denied promotion to a position for which he was qualified, and (4) the position remained open and the employer continued to seek applicants. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000). In the context of a Title VII claim of failure to promote, the Second Circuit requires that a plaintiff "allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998); see also Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003).
Here, Plaintiff has failed to establish a prima facie case of discrimination for failure to promote. He merely states that he repeatedly asked for management opportunities, and contends that there was no formal application process. With two exceptions, Plaintiff has failed to identify a specific position with Moore for which he applied and was denied. First, he states that a position was created in the summer of 1999 and was filled by Michael Butler, an individual "without any distinguishable ethnic background." Plaintiff's Memorandum of Law, Docket Item No. 15, p. 10. However, having filed his charge with the EEOC on January 16, 2001, any claim with regard to the Butler position is untimely. Discrete acts of discrimination such as termination, failure to promote, denial of a transfer or refusal to hire, are not actionable if timebarred. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). This position was filled prior to the 300-day "look back" period from the filing of Plaintiff's EEOC charge on January 16, 2001. See Carter v. New York, 2004 WL 615137, *8 (N.D.N.Y. March 22, 2004). Accordingly, Plaintiff may not rely on the Defendant's failure to promote him to this position to state a claim for failure to promote. Additionally, Plaintiff admits that the position of "new channel development" which he sought was never created. Plaintiff has failed to allege with specificity any other positions for which he applied and was denied promotion. Without the allegation of a specific position, it is impossible for the court to ascertain whether Plaintiff would have been qualified for the position and whether he suffered an adverse employment action in the form of a rejection. See McKnight v. Graphic Controls Corp., 2000 WL 1887824, *6 (W.D.N.Y. December 11, 2000).
Even if it could be said that Plaintiff has stated a prima facie case of discrimination for failure to promote, Defendant has presented evidence, including performance evaluations and testimony of one of Plaintiff's supervisors, that there were legitimate non-discriminatory concerns regarding Plaintiff's management skills. Jeffrey Gebhart, who was Plaintiff's manger in 1998, testified that Plaintiff had not "developed his people and team building skills" and was not ready for a managerial position (Gebhart Dep. at 103). In addition, Plaintiff's performance evaluations from 1996, 1997 and 1998 indicate that Plaintiff's supervisors were concerned about his ability to lead and motivate others (Docket No. 13, Exh. R). In contrast, there is no proof of any discriminatory animus on the part of Defendant, only Plaintiff's "speculation" that his ethnic heritage was the reason he was not placed in a managerial position (Dorfman Dep. at 62). This subjective belief, and Plaintiff's dissatisfaction with the pace of his career progress, is not enough to raise an issue of discrimination sufficient to defeat the motion for summary judgment. See Shabat v. Blue Cross Blue Shield of the Rochester Area, 925 F. Supp. 977, 987 (W.D.N.Y. 1996), aff'd, 108 F.3d 1370 (2d Cir. 1997).
Additionally, Plaintiff has failed to state a prima facie case of retaliatory discharge. To establish such a case, a plaintiff must show (1) that he was engaged in protected activity, (2) the employer was aware of the activity, (3) the employer took adverse employment action against the plaintiff, and (4) a causal connection exists between the protected activity and the adverse action. See Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001).
Here, the record indicates that Plaintiff was laid off during a corporate restructuring and reduction in force in which 18 other employees from his unit were terminated, and a total of approximately 120 Moore employees were laid off. There is nothing in the record to establish a causal connection between Plaintiff's EEO activity and his termination. A causal connection may be shown indirectly by (1) evidence that the adverse employment action followed closely after the protected activity or (2) evidence of similar treatment of other employees, or directly through evidence of retaliatory animus toward the plaintiff. Monahan v. United Techs. Corp., Pratt Whitney Div., 113 F.3d 1229, 1997 WL 279887, *2 (2d Cir. 1997). The evidence indicates that the termination decisions were made prior to Plaintiff's conversation with Ms. Lisman about alleged discrimination, or perhaps on the same day, January 8 or 9, 2001. Even if this conversation occurred on January 8, 2001, Lisman, Gebhart and McCafferty all averred that they did not communicate regarding Plaintiff's concerns. Plaintiff has not rebutted this testimony. Thus, there is nothing in the record to attribute a discriminatory animus to the decisionmakers. See McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. 1997); Foster-Bey v. Potter, 296 F. Supp.2d 195, 209 (D.Conn. 2003). Further, assuming that Plaintiff has made out a prima facie case of retaliation, Defendant has presented a legitimate nondiscriminatory reason for Plaintiff's termination. The three employees from Plaintiff's group who were retained following the reduction in force serviced existing revenue-generating clients that the company could not afford to se, while Plaintiff was not involved with existing clients. (McCafferty Dep. at 35-37, 39). As with his claim for failure to promote, Plaintiff has presented only his speculation and subjective belief that his position was eliminated based on his national origin. This showing is insufficient to defeat Defendant's motion for summary judgment. Shabat, 925 F. Supp. at 987.
CONCLUSION
The Defendant's motion for summary judgment should be GRANTED (Docket No. 10) and the complaint dismissed.Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.