Opinion
No. 02-CV-6520 CJS.
July 22, 2004
Michael A. Sciortino, Esq., Matthew J. Fusco, Esq., Chamberlain, D'Amanda, Oppenheimer Greenfield Rochester, NY, for Plaintiff.
Linda T. Prestegaard, Esq., Phillips Lytle LLP, Rochester, NY.
Lucreita C. Clemons, Esq., Richard L. Strouse, Esq., Ballard Spahr Andrews Ingersoll, LLP, Philadelphia, PA, for Defendant.
DECISION AND ORDER
INTRODUCTION
This employment discrimination case is before the Court on defendants' motion seeking summary judgment pursuant to Federal Rule of Civil Procedure 56. Following a thorough review of the papers filed in support of the motion and opposition thereto, and after hearing oral argument, the Court grants defendants' motion.
PROCEDURAL BACKGROUND
In a decision and order (# 18) entered on February 12, 2003, the Court dismissed the complaint in its entirety as to defendants Ann Saunders, and Jill Scolamiero ("Scolamiero"). Further, the Court granted defendant American Red Cross Blood Services, New York-Penn Region's motion to dismiss plaintiff's hostile work environment sexual harassment claim. Finally, the Court granted plaintiff's motion to dismiss her claims under the Americans with Disabilities Act, but denied her application "to keep all related claims open on the Equal Employment Opportunity Commission (`EEOC') file from 05/01/2001 to 06/14/02."Thus, remaining in the case are plaintiff's: (1) first cause of action alleging race-based discrimination under Title VII of the Civil Rights Act of 1964; (2) second cause of action alleging retaliation under Title VII; and (3) third cause of action alleging discrimination under the New York Human Rights Law. All three causes of action stem from her dismissal as an account manager for the American Red Cross ("ARC"), which she claims was the result of racial discrimination and retaliation for having filed a complaint with the EEOC.
FACTUAL BACKGROUND
ARC collects and distributes blood and blood products to approximately 133 hospitals throughout the New York-Penn Region, which encompasses upstate New York and northwestern Pennsylvania. The Region is comprised of four districts: Albany; Buffalo; Rochester; and Syracuse. To produce the blood and blood products provided to its client-hospitals, ARC solicits and recruits community organizations, businesses, high schools, colleges and governmental entities to sponsor blood drives. It also maintains several fixed sites at which individuals can donate blood.
Rochester District of ARC is divided into five territories, three of which are located in Monroe County. ARC also divides donors into four distinct market segments: business donors; community-based donors; high school donors; and college donors. During plaintiff's tenure at ARC, the territories in Monroe County were divided as follows: (1) data businesses and high schools in Monroe County and all market segments in parts of Wayne County; (2) small businesses and community drives in the City of Rochester, and Towns of Irondequoit and Brighton; and (3) small businesses and community drives in the remainder of Monroe County and all colleges in Monroe County.
Plaintiff was hired by ARC to work in the Rochester District as an account manager on June 5, 2000. Account managers work in the Donor Services Department and are primarily responsible for recruiting blood donors. The Donor Services Department provides liaison services between the various sponsor organizations and ARC.
Although plaintiff was hired for the position of account manager with the understanding she would work exclusively in the division of small businesses and community drives in the City of Rochester, and Towns of Irondequoit and Brighton, she claims that she was involved in hosting drives at numerous "data businesses" and not just "small businesses and community drives." Plaintiff's direct supervisor was Gary Colvin ("Colvin"), the District Manager of Donor Services in the Rochester District. Beginning in late 2000, plaintiff alleges that Colvin screamed at her and two of her colleagues during staff meetings. She further claims that Colvin made two comments which are indicative of racial bias. The first was a statement to Lisa Iddings ("Iddings"), another member of management, specifically, "one down, two to go," which he purportedly made after Linda Litwak ("Litwak"), a Caucasian account manager, resigned. The second was a statement that plaintiff claims Colvin made to her, specifically, "that's when I was at the filing cabinets and [Gary Colvin] told me that I was in the position he wanted me to be in. I was down on my knees." Joiner Dep. at 347. Additionally, plaintiff maintains that Colvin mistreated her by ridiculing her, embarrassing her, and slamming his day planner down on a table in her presence, then walking out of the room and slamming the door.
As indicated above, plaintiff and other account managers had the responsibility to organize mobile blood drives. Further, as previously mentioned, in addition to these mobile drives, the Rochester District, as well as other districts within the New York-Penn Region, collected blood from donors at fixed donation sites. The fixed site locations employed telemarketing and direct-mail marketing to eligible donors within ten miles of the site as their means of recruiting donors. ARC also hosted numerous "media drives" which relied on radio and television recruiting. Plaintiff maintains that, as a result of the fixed-site recruiting methods used, she lost potential donors for her mobile drives from the City of Rochester, and outlying towns. However, other account managers, including Caucasian ones, also had their potential donors solicited to fixed donation sites.
To ensure that the fixed donations sites were able to maintain their donor base, ARC had region-wide policies regarding how donors in their database could be recruited by account managers. Under those policies, account managers were not allowed to solicit donors for their community-based blood drives from the donor database using ZIP CodesTM within ten miles of a fixed site. The rule was uniformly enforced by district managers and affected all account managers in any region with territories near or around fixed sites. This policy impacted all of the account managers with territories in or around Monroe County, including plaintiff, and Litwak, Laura Elliott ("Elliott"), Robert Fredericks ("Fredericks"), Lora Pound ("Pound"), Thomas Goskoski ("Goskoski"), Samuel Liotta ("Liotta") and Kristine Flannery ("Flannery"), all of whom were Caucasian.
Defendant alleges that plaintiff frequently violated this policy, commonly referred to as "Zogby." Plaintiff does not dispute this, and she conceded at her deposition that account managers routinely put ZIP CodesTM on their direct mail requests ("DMR") in violation of the policy, in the hope that they would slip through. Joiner Dep. at 245. Plaintiff alleges that when Goskoski submitted DMRs with ZIP CodesTM in violation of the policy, his went through, but when she submitted DMRs, also with ZIP CodesTM in violation of the policy, hers did not. Joiner Dep. at 245-46.
As an incentive to donors, ARC intermittently offered items to individuals who donated at mobile blood drives. These "marketing tools" included things such as T-shirts, baseball caps and calling cards. Generally, they were targeted at specific market segments. For example, T-shirts and baseball caps were routinely offered as incentives at high school blood drives and calling cards were once offered to donors at college blood drives. Because the campaigns were region-wide initiatives, district managers were not permitted to deviate from the campaign. Since she did not have any high schools or colleges in her territory, defendant alleges that plaintiff, as well as Fredericks and Elliott, were not permitted to use the "marketing tools" directed to those particular market segments. Plaintiff disputes this and states that at times she was allowed by Iddings to use items such as T-shirts and gift certificates.
Plaintiff also claims in her affidavit that Fredericks "a white Account Manager, was still allowed to use gift certificates and other support services that were taken away from me." Joiner Aff. ¶ 145. However, this contention about Fredericks is at odds with the following testimony she gave at her deposition:
A. I don't know anything about other account managers.
Q. Okay. So if other account managers said that the same thing happened to them, which you have any information to dispute that?
A. No.
* * *
A. When I first got hired I was allowed on certain drives the giveaway gift certificates to restaurants. All of that was cut out.
Q. Do you have any information that that was not cut out for all account managers?
A. Gary Colvin cut out for all the account managers, but there might have been some accounts that went through for gift certificates.
Q. Do you have firsthand knowledge of that?
A. Firsthand? No.
Q. Have you heard something to that effect?
A. Yeah. I was told that Bob Fredericks still had his certificates and still — everything was still going on. He still had all support he once had. It was all going on.
Q. Are you aware that Bob was taking that money out of his own pocket?
A. I don't know.
Q. Did anybody ever tell you that Bob was paying for it on his own?
A. I don't have any answer for that.
Joiner Dep. at 275-76. Inasmuch as plaintiff's affidavit could be read to dispute her own prior deposition testimony, the Court adopts plaintiff's deposition testimony as is required by Rule 56(e).
In December 2001, plaintiff asked for a transfer to the account manager position for the territory within Monroe County that included big businesses and high schools, a position which had become vacant in November 2001 by the resignation of Litwak. Defendant asserts that plaintiff did not ask for the transfer until almost a month after Litwak's resignation, and only after ARC had hired a replacement. Plaintiff states that she was told her request for a transfer into the new territory was "bad timing."
Laura Elliot was hired as Litwak's replacement.
Until March of 2002, account managers in the Rochester District were given the option of using a cellular telephone unit leased by ARC for work-related purposes. ARC paid directly the cost of the cellular service. Since April 2002, plaintiff and Elliot had cellular phones under this plan. The remainder of the Rochester account managers were reimbursed for the business usage of their personal cellular telephones. In March 2002, the Region decided that it would no longer lease cellular telephone units for most of its nonmanagement employees, including account managers. If non-management employees wanted to have a cellular telephone, they were required to purchase the telephone unit and have the cost of the cellular service billed to them personally. Although not required to have cellular telephones, employees were reimbursed for any business-related calls. Following this Region-wide directive, Colvin told both plaintiff and Elliott to return their region-provided cellular telephone units and to make arrangements to have cellular service billed to them personally. Plaintiff followed Colvin's instructions, while Elliott disobeyed his directive and did not return her telephone unit. However, Colvin had no knowledge that Elliott failed to follow his instructions.
After returning the leased telephone unit to ARC, plaintiff purchased a $160 cellular telephone and requested reimbursement. In May 2002, ARC's District Manager, James Lang ("Lang"), and Scolamiero, Director of Donor Services, met with plaintiff to discuss the purchase. Lang told plaintiff that ARC would not reimburse her for the $160 cellular phone because of its cost. Plaintiff alleges that Scolamiero indicated that, "you don't need a phone, only thing you need is a pager." Joiner Dep. at 201.
Plaintiff also alleges that her cellular telephone bill was $75 per month, which she was told was too expensive, but that, "when I went through and questioned Lora Pound and Laura Elliott both of their monthly payments were a hundred dollars, maybe higher." Joiner Dep. at 205. Plaintiff's allegations concerning Pound's and Elliott's phone bills are inadmissible hearsay, FED. R. EVID. 802, thus, the Court will not consider them for the purposes of this motion, FED. R. CIV. P. 56(e).
Each account manager was assigned an initial monthly goal titled "Required Booking Level" ("RBL"). The RBL represented the number of blood units that the account managers should have scheduled to collect at blood drives in their territories. Account managers were required to schedule blood drives at least two months in advance. ARC built a buffer into the system to aid account managers and address unforeseen circumstances, such as canceled blood drives and snowstorms. That is, account managers were not required to collect the same amount of blood units that they scheduled. They were required to produce only 87% of their RBL on a monthly basis. That number (87% of RBL) was known as a "Productive Goal." Each month, account managers were expected to meet 100% of their Productive Goal. Plaintiff contends that Colvin increased her RBLs, but the increases were made despite obvious errors and discrepancies in the calculation of her RBLs. Plaintiff also alleges that Lang canceled numerous blood drives, which prevented her from obtaining productive units and meeting her goal. Further, she alleges that on April 24, 2001, defendant advised account managers that they were required to have a Productive Goal of 25 units per drive and that all "twenty-five unit drives or lower would be eliminated." Colvin Dep. at 120; Lisa Iddings Memo to Account Managers (Apr. 24, 2001) (attached as Ex. N. to Pl.'s App. to Local Rule 56.1 Statement of Facts). Subsequently, plaintiff, from July 6, 2001 through March 29, 2002, had forty-seven blood drives under twenty-five Productive Goal units. However, plaintiff points out that other account managers had blood drives under the goal of twenty-five productive units during a six month period: Fredericks had seven drives under twenty-five productive units; Litwak had three drives under twenty-five Productive Goal units during a period of nine weeks and three days; Pound had fourteen drives under twenty-five Productive Goal units during a period of six months; and, finally, Goskoski had eight drives over a period of six months with a Productive Goal under twenty-five units.
As to any production shortcomings, plaintiff points to the affidavit of Colleen Griffith. Griffith states that after she was committed to donate blood at one of plaintiff's mobile sites, she was nonetheless contacted by ARC to donate blood at a fixed site. Such subsequent recruitment was in contravention of ARC policy. Plaintiff seems to suggest that this one incident, where one of her donors was solicited to a fixed site during a time period when she should not have been so solicited, is indicative of racial animus on the part of defendant. This conclusion on plaintiff's part is hardly evidentiary proof in admissible form.
District managers assigned RBLs to account managers based on historical data. Among other things, Lang looked at the number of blood units the account manager collected during a given month in the previous year with the goal of increasing the RBL by no more than 5% per month for the current year. As a general rule, the RBLs and Productive Goals of an account manager increased each year. Another measure of productivity considered by ARC was termed "Show Rate." The Show Rate goal required that at least 55% of an account manager's monthly blood drives meet their Productive Goal.
As previously indicated, plaintiff asserts that Colvin increased her RBLs erroneously and miscalculated the figures in relation to the 5% increase. For example, Goskoski and plaintiff both had an RBL for April 2001 of 845. Colvin Dep. at 147-48. Nevertheless, there was a difference of 146 between their calculated RBLs for April 2002. Id. Plaintiff's calculated RBL was 1,016, and Goskoski's was 870. Id. On the subject of RBL's, Pound testified at her deposition that she looked at the RBL's for each of the account managers and noted that the increases for plaintiff were, "second to the bottom." Pound Dep. at 116.
Plaintiff's production goal for fiscal year 2001-2002 (July 2001 to June 2002) was 8,807. The annual goals for the Caucasian account managers were: Frederick 10,638; Litwak/Elliott 10,382; Pound 9,927; and Goskoski 9,337. Clemens Aff. Exs.1-3. For fiscal year 2001-2002, plaintiff collected 7,795 units. Her colleagues collected the following numbers of units: Frederick 12,115; Litwak/Elliott 10,221; Pound 9,759; Goskoski 9,544. Id.
Using each of the measures listed above, RBL, Productive Goal and Show Rate, ARC measured the productivity of all account managers. When account managers fell short, defendant alleges that they were given assistance and guidance to help them get back on track. Plaintiff disputes this latter assertion. In her deposition testimony, plaintiff stated that when she first started with ARC, she was allowed to use Zogby, T-shirts and calling cards to obtain donors. However, at her deposition, plaintiff agreed, that the policy changed and only to those with certain types of clientele were these types of giveaways permitted.
Lang explained that Zogby was a third party ARC used "to call Buffalo." Lang Dep. at 62. Possibly Zogby refers to direct mail and telephone marketing by Zogby International, a corporation with headquarters in Utica, New York. See http://www.zogby.com (Jul. 9, 2004).
In early 2002, ARC began the process of realigning the territories in Monroe County in response to complaints from the Account managers that the territories were not equitably divided. Plaintiff was aware of this process and offered her suggestions for the realignment to members of management. The realignment was a tremendous undertaking since ARC analyzed the potential donor base in every ZIP CodeTM within Monroe County. The process took more time than ARC had allowed, thus, the target date of July 2002 moved to October 2002, and the realignment did not become effective until November 1, 2002. The realignment divided Monroe County into three territories — Central, East, and West — each containing all four market segments.
In August 2002, Lang, who had participated in plaintiff's hiring, Joiner Dep. at 96, assigned plaintiff the West Territory in anticipation of the realignment. Defendant alleges that plaintiff chose the West Territory, but she claims that she requested the East Territory. In any event, plaintiff acknowledges that subsequently she received a notice from Jill indicating she would be assigned to the East Territory. In any event, plaintiff objected to assignment to the West, arguing that, based on her seniority, she should have been allowed to choose her own territory. As it turned out, plaintiff never worked in the West Territory, because she was terminated on October 14, 2002, before the realignment became effective.
Presumably a reference to Jill Scolamiero, Director of Donor Services, though plaintiff does not use Jill's last name in her testimony at this point in the deposition. Joiner Dep. at 210.
In May 2002, after the realignment process had begun, Goskoski, with a territory consisting of all colleges in Monroe County and of small businesses and community drives outside of Rochester, Irondequoit and Brighton, was terminated by ARC for poor performance. Plaintiff asked to be transferred to Goskoski's territory, but maintains that she was told by Lang that no one would be reassigned to Goskoski's territory. Lang, on the other hand, contends that he denied plaintiff's request for assignment to Goskoski's territory, since he believed, using sound business judgment and common sense, it would be unproductive and inefficient to transfer her to a territory that would be non-existent within a few months, given that plaintiff would be transferred again once the realignment was complete. In fact, Liotta was assigned temporarily to Goskoski's territory pending realignment.
On July 18, 2002, Lang placed plaintiff on a performance improvement plan ("PIP") because she failed to meet her Productive Goals in April, May and June 2002. Plaintiff achieved only 67%, 68% and 72% of her Productive Goal in the months of April, May and June 2002, respectively. As with all other account managers, plaintiff was required to meet 100% of her Productive Goal. Lang Dep. at 52. Plaintiff does not dispute that she failed to meet her goals, but rather contends that her failure to meet goals was due to a number of factors allegedly outside of her control.
In that regard, more specifically, plaintiff alleges that she was put on a PIP because of her race and because she exercised her right to file a complaint with the EEOC. Joiner Aff. ¶ 197. However, in her deposition testimony, the following questions were posed and she made the following answers:
As to racial anim us on the part of defendant, plaintiff also raises Scolamiero's deposition testimony relating to Brian Wilmont ("Wilmont"), a former African-American diversity account manager whom plaintiff alleges was employed by defendant for approximately five months, was subsequently disciplined during that period, and terminated after he did not make his "goal." However, neither Scolamiero, nor the other witness plaintiff references, John J. Morgan, defendant's Manager of Employee and Labor Relations in the Human Resources Department, support her suggestion that Wilmont's termination was motivated by race. Morgan establishes only that, to his knowledge, Wilmont was terminated during his probationary period for failure to meet expectations. Morgan Dep. at 75.
Q. The last thing you said was that there were white employees that had declines in production that were not put on PIPs.
A. Yes.
Q. What were you speaking about?
A. I'm referring to all of the account managers in Rochester at the time I was placed on my PIP.
Q. Every single account manager?
A. Yes.
Q. Do you have any personal knowledge of how or what the basis was for a PIP based on productivity?
A. No.
Q. Do you know how the determination is made about whether to place someone on a PIP basis [sic.] on their productivity?
A. No.
Q. So then you don't know whether other account managers had a similar decline as measured by how American Red Cross determines whether productivities declined?
* * *
A. I did know that other account managers had a decline in productivity.
Q. But if you don't know how American Red Cross measured productivity with regard to PIP how can you state that you know other account managers['] productivity declined in the same way yours did?
A. By the computer printouts.
Q. If American Red Cross produced evidence that every account manager who after three months does not meet a certain goal was placed on a PIP would you have any evidence to dispute that?
A. No.
Joiner Dep. at 226-27.
On August 29, 2002, while she was on PIP, Lang issued plaintiff a "First Written Warning" regarding her lack of professionalism in dealing with a colleague, Iddings, which cautioned that any repetition would result in further discipline, including possible termination. Plaintiff admitted in her deposition that her behavior towards Iddings was unprofessional, although at the time she wrote it she did not think so. Joiner Dep. at 312-15.
Though plaintiff disputes the reason for her failure to meet the goals of her PIP, she does not dispute that she was required, among other things, to meet 95% of her Productive Goal in August 2002 and 100% of her Productive Goals in September and October 2002. On September 5, 2002, Lang issued, in writing, a second warning to plaintiff based on her failure to achieve 95% of her Productive Goal in August 2002 as set forth in the PIP. Plaintiff had achieved only 64% of her Productive Goal for the month. The written warning stated that in accordance with the PIP, plaintiff was expected to attain 100% of her Productive Goal in September 2002. The warning explained that plaintiff's continued failure to adhere to the PIP would result in further disciplinary action up to and including termination.
Plaintiff alleges that, during the month of August 2002, she brought in 880 actual productive units, while her goal was 927. She states that Lang canceled three of her twenty-nine scheduled drives and that those three drives could have provided an extra 90 productive units toward her goal. Furthermore, she alleges that out of the twenty-nine account managers in the region during the month of August 2002, only one, an account manager in Syracuse, brought in over 880 actual productive units. She also alleges that in the Rochester district: Fredericks brought in 752 units; Elliott brought in 551 units; Pound brought in 762 units; and Liotta brought in 637 units.
On September 9, 2002, plaintiff requested a leave of absence for medical reasons She was granted that leave, the total duration of which was from September 13, 2002 through October 14, 2002.
Defendant's Statement of Facts ¶ 19 uses the date September 19, 2003, which is obviously a typographical error as plaintiff was terminated on October 14, 2002.
In September 2002, plaintiff attained only 89% of her Productive Goal rather than 100% attainment as required by her PIP. By mid-September, it was clear to Lang that plaintiff was unlikely to meet her PIP goal for September 2002. By October 1, 2002, Lang had decided to terminate plaintiff's employment. Colvin had no involvement in the decisions to place plaintiff on a PIP or to terminate her employment. Since plaintiff was out of work on medical leave at that time, Lang, in accordance with ARC's practices, did not communicate his determination to her until she returned from medical leave October 14, 2002. He did, however, send a letter to plaintiff's home on October 1, 2002, stating that plaintiff should report to his office on October 14, 2002, when she returned from medical leave. When plaintiff did report to him on October 14th, Lang advised plaintiff of his decision to terminate her based upon poor performance. Lang maintains that his decision to terminate plaintiff was made before she filed her lawsuit on October 10, 2002, and that at the time he discharged her, he was unaware of either the lawsuit or the complaint she filed with the EEOC on June 20, 2002.
By letter dated September 10, 2002, addressed to plaintiff with a copy to "American Red Cross, 825 John Street, West Henrietta, NY 14586," the EEOC indicated that it was unable to conclude, based upon its investigation, that there was any statutory violation.
Plaintiff disputes this stating that she spoke with Ed Kelly in the National Human Resources Department for ARC on October 10, 2002, at approximately 3:30 P.M., and during that conversation advised him that she had filed a lawsuit against ARC. The summons was served on Vivian Mistrella at ARC on October 11, 2002.
Following plaintiff's discharge, Felice Edwards, a former employee of ARC, came forward to claim that in January of 2003, while working there, she had occasion to search Iddings' office and discovered files on female African-American employees, including herself, plaintiff, Judy Travis ("Travis"), Carletta Manywether ("Manywether"), and LaRhonda Caldwell ("Caldwell"). In Travis' file, Edwards claims she discovered an e-mail from Iddings to John J. Morgan, defendant's Manager of Employee and Labor Relations in the Human Resources Department, dated September 8, 2000. The e-mail refers to Travis, Edwards and Manywether and, among other things, stated that now that Manywether was gone, Iddings would have to work on getting rid of Travis and Edwards.
SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non — moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds, Connecticut Dept. of Public Safety v. Doe, 538 U.S.1(2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Of course, it is well settled that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted). However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
TITLE VII AND N.Y. HUMAN RIGHTS LAW
Plaintiff asserts a claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), codified in 42 U.S.C. § 2000e et seq. Section 2000e-2(a), states in pertinent part,
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment because of such individual's race, color, religion, sex, or national origin. . . .
Plaintiff also makes a claim under the New York State Human Rights Law, codified at New York Executive Law § 296. That statute makes it an unlawful discriminatory practice
for an employer or licensing agency, because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
N.Y. EXEC. LAW § 296(1)(A). The Court notes that the elements of Title VII and New York Discrimination Law claims are virtually identical. See, Clark v. New York State Electric and Gas Corp., 67 F. Supp. 2d 63 (N.D.N.Y. 1999).
McDONNELL DOUGLAS STANDARD
Discrimination claims under Title VII and New York's Human Rights Law are governed by the three-part analytical framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). See Klausner v. Industrial Risk Insurers, Inc., No. 98 Civ. 1267 (RPP), 1999 U.S. Dist. LEXIS 10219, *10-*11, 1999 WL 476285 at *3 (S.D.N.Y. July 8, 1999) (applying McDonnell Douglas to N.Y. Human Rights Law claim). Under the McDonnell Douglas standard, a plaintiff bears the burden of proof and for a disparate treatment claim must ultimately establish, by a preponderance of the evidence, the following: (1) membership in a protected group; (2) qualification for a position; (3) an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). To establish that the adverse employment action occurred under circumstances giving rise to an inference of discrimination, a plaintiff may demonstrate that "similarly situated" employees who do not share the plaintiff's protected characteristics were treated preferentially. Id.
The adverse employment action which plaintiff alleges on her disparate treatment claim was her termination from ARC.
Likewise, to prove a claim of retaliation for engaging in a protected activity, a plaintiff must prove by a preponderance: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Tomka v. Seiler, 66 F.3d 1295, 1308 (2d Cir. 1995).
As on her disparate treatment claim, plaintiff alleges that the adverse employment action on her retaliation claim was again her termination from ARC.
As to either disparate treatment or retaliation, requirements for establishing a prima facie case are minimal. See Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). If a plaintiff is successful in demonstrating her prima facie case, then the burden shifts to her employer to articulate a legitimate, non-discriminatory purpose for its adverse employment action. Id. at 153 (citing McDonnell Douglas, Corp. v. Greene, 411 U.S. 792, 802 (1973)). The Second Circuit has held that "[a]ny such stated purpose is sufficient to satisfy the defendant's burden of production; the employer does not have to persuade the court that the stated purpose was the actual reason for its decision." Austin v. Ford Model, Inc., 149 F.3d at 153.
Once the employer satisfies its burden, a plaintiff may prevail only if she presents evidence that the employer's proffered reasons are a pretext for discrimination. Id. A plaintiff, to demonstrate pretext, must show both that the proffered reason was false and that discrimination was the real reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515-16 (1993) ("a reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason.").
In applying the McDonnell Douglas criteria to a case under the Age Discrimination in Employment Act, the Supreme Court has held that a plaintiff's prima facie case, combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Justice O'Connor, writing for a unanimous Court, said, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id.
DISCUSSION
Disparate TreatmentPlaintiff argues that her termination by ARC amounted to disparate treatment. Am. Compl. at 4-5. Defendant concedes that, for the purposes of this motion, plaintiff has met the requirement to prove (1) membership in a protected group; (2) qualification for her position; and (3) an adverse employment action. Defendant argues that plaintiff has not shown the fourth prong by evidence of disparate treatment. See Shumway v. United Parcel Services, Inc., 118 F.3d 60, 64 (2d Cir. 1997) ("To establish the fourth element of a prima facie case, [a plaintiff] must show that she was treated differently from `similarly situated' [non-African American employees].").
Plaintiff bases her disparate treatment claim on a number of factual circumstances. They are: (1) the discovery of files and an e-mail relating to African-American employees; (2) the conduct of her immediate supervisor, Gary Colvin; (3) the policy relating to the use of cellular telephones; (3) the recruitment of her donors by fixed site locations; (4) the denial of her requests to transfer; (4) the policy relating to marketing tools; and (5) the unfair application of the PIP. The Court will consider each of her contentions in turn.
Files and the E-Mail Relating to African-American Employees
Edwards' discovery of files relating to three African-American employees in Idding's office, one file of which contained an e-mail purporting to have been authored by Iddings, is proof of racial animus against plaintiff. In response, defendant points out the controversy surrounding the authentication of this e-mail (a denial by Iddings, see Iddings Dep. at 98, and Morgan's claim that it is a fraud, along with Edwards' letter to the U.S. Court of Appeals for the Second Circuit contradicting the manner in which she discovered the e-mail) and urges the Court not to accept it, or Edwards' affidavit. Def.'s Reply Mem. of Law at 6-7. However, the Court need not decide the admissibility of Edwards' affidavit or the authenticity of the e-mail, since the evidence presented does not raise a material issue of fact precluding summary judgment. The e-mail does not refer to plaintiff, and does not involve Lang, the individual who terminated plaintiff. Even if Iddings wrote and sent the email, which she denies, it does not raise an inference of racial discrimination against plaintiff, or discrimination by the employment decision maker at ARC involved with plaintiff's PIP and termination. While plaintiff claims that Iddings was one of her supervisors, her own deposition testimony belies that contention. Joiner Dep. at 100.
Edwards is a former employee of ARC in Rochester and a pro se plaintiff in a law suit filed against ARC, presently on appeal from a judgment dismissing her case entered by the Honorable Michael Telesca, U.S. District Judge, Western District of New York.
Lang testified that he alone made the decision to terminate plaintiff, without anyone having indicated to him that he or she wanted plaintiff fired. Lang Dep. at 26.
As the Supreme Court stated in a sexual harassment case, "stray remarks in the workplace, while perhaps probative of sexual harassment, . . . cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard." Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (internal citation omitted); see also Hines v. Hillside Children's Ctr., 73 F. Supp. 2d 308, 316-17 (W.D.N.Y. 1999) (applying Price Waterhouse in racial discrimination case). Conduct of Immediate Supervisor, Gary Colvin
Plaintiff's discussion of Colvin's treatment of two other women in the office, Pound and Litwak, both of whom were Caucasian, is entirely irrelevant to plaintiff's racial discrimination claim here. See Kelly v. Boeing Petroleum Servs., 61 F.3d 350, 358 (5th Cir. 1995) (acts of unrelated discrimination are irrelevant); see also Simonetti v. Runyon, No. Civ.A.98-2128, 2000 U.S. Dist. LEXIS 11407, *16, 2000 WL 1133066 at *6 (D.N.J. Aug. 7, 2000) ("Plaintiff may not use evidence of one type of discrimination [race, religion] to prove discrimination of another type [disability]."); Rivera v. Baccarat, Inc., No. 95 CIV. 9478 MBM JCF, 1997 U.S. Dist. LEXIS 19911, *4, 1997 WL 777887 at *2 (S.D.N.Y. Dec. 15, 1997) ("Evidence that [other] . . . employees may have been victims of gender bias or sexual harassment has no bearing on the plaintiff's claims of national origin and age discrimination in this case."); Kun v. Finnegan, Henderson, Farabow, Garrett Dunner, 949 F. Supp. 13, 19 (D.D.C. 1996) ("Allegations of race discrimination are not relevant to a claim of national origin discrimination").
Further, plaintiff's argument that Colvin's mistreatment of her by ridiculing her, embarrassing her, and slamming his day planner down on a table in her presence, then walking out of the room and slamming the door, does not support her claim that her termination was the result of racial discrimination. Joiner Aff. ¶ 34. While this conduct on Colvin's part, even if it occurred, may well have been "extremely unprofessional," as plaintiff alleges, see Joiner Aff. ¶ 32, the fact remains that he was not involved in the decision either to place plaintiff on PIP or fire her.
In addition, plaintiff's allegation that Colvin said to her, while she was kneeling near a filing cabinet, that he had her in the position he wanted her, Joiner Aff. ¶ 47, is not evidence of racial animus. In her original complaint filed with the court, at paragraph 19, plaintiff alleged that the comment described above was a sexually derogatory remark made by Colvin to her on May 30, 2001. In its previous Order, the Court dismissed all of plaintiff's claims based on events alleged prior to August 24, 2001 as being outside the 300-day limitations for a Title VII claim. In any event, since plaintiff previously alleged this comment was gender based, her current contention that it was made as a result of her race, Joiner Aff. ¶ 47-49, is suspect.
Finally as to Colvin, plaintiff's contention that the statement, "one down, two to go," which he purportedly made to Iddings after Litwak resigned, was racial, is puzzling at best. In addition to the fact that plaintiff has failed to establish by evidentiary proof in admissible form that Colvin even made this statement, the relevance of the comment is lost on the Court, since it is undisputed that Litwak, although a female, is Caucasian, and plaintiff is suing based upon race not gender.
Cellular Telephone
Plaintiff testified at her deposition that at the time she was told to start billing her telephone service to herself, and submit claims for expenses associated with ARC calls, both her cellular phone and Elliott's were being paid for directly by ARC. Joiner Dep. at 202. Plaintiff testified that Elliott had the billing address changed for her cellular telephone, but that she failed to turn in her phone as required by a voice mail message sent by Gary Colvin. Id. at 202-03. Her testimony revealed, however, that the basis for her conclusion that Elliott failed to turn in the ARC cellular telephone and purchase her own, as evidently required by Colvin's voice mail message, was that Elliott's monthly expense report contained no entry for a telephone in the month in which plaintiff concluded that Elliott would have purchased a replacement telephone. Even viewing this evidence in the light most favorable to plaintiff, the Court can only conclude that ARC told both Elliott and plaintiff to turn in their ARC-supplied cellular telephones and to purchase and expense replacement phones with bills in their own names. Elliott did not do so, Elliott Dep. at 111, but this evidence shows only that Colvin did not enforce his requirement and does not support plaintiff's claim that ARC treated her differently from her Caucasian co-worker.
Recruiting to Fixed Sites
With regard to the issue of recruiting potential donors to fixed sites, Liotta and Fredericks, both of whom, as already indicated, were Caucasian, testified that the fixed sites in Monroe County recruited their donors as well. Liotta Dep. at 42-43; Fredicks Dep. at 78-79. Moreover, Iddings testified that plaintiff was not the only one to complain about having his or her potential donors recruited to a fixed donation site. Iddings Dep. at 98-99. She stated that Caucasian account managers Elliott, Goskoski and Pound also complained about the very same problem. Thus, plaintiff's claim that her potential donors were recruited by fixed sites evidences disparate treatment by ARC is without a basis in fact.
Transfer Requests
Plaintiff alleges that her reasonable requests for transfer to another territory were denied on the basis of race. ARC has offered legitimate, non-discriminatory reasons for the denials, which plaintiff has failed to overcome by evidentiary proof in admissible form. In that regard, her request for transfer into the territory vacated by Litwak's resignation came after Colvin had already hired Elliot.
Further, plaintiff contends that Lang's refusal to transfer her into the territory vacated by Goskoski's termination was racially motivated. However, Lang had a legitimate nondiscriminatory reason for denying plaintiff's request, which she has failed to refute. Specifically, as he explained, in light of the upcoming realignment, since he believed, using sound business judgment and common sense, it would be unproductive and inefficient to transfer her to a territory that would be non-existent within a few months, given that plaintiff would be transferred again once the realignment was complete. Additionally as to her demand, based on her seniority, to be transferred to the East Territory once realignment was complete, as opposed to the West, since Scolamiero eventually granted her request, she suffered no adverse employment action.
Marketing Tools
Plaintiff claims that she was discriminated against based upon her race, because she was denied the use of marketing tools while Caucasian employees were not. On this point she alleges that Goskoski, as previously indicated, a Caucasian, was permitted to recruit donors within ten miles of a fixed site in contravention to ARC's policy on the use of Zogby. However, plaintiff's claim is unsubstantiated since she has failed to present any evidentiary proof in admissible form in support of this contention. Further, Elliott, Liotta and Flannery in fact testified that account managers were not allowed to use Zogby. Liotta Dep. at 37-39; Elliott Dep. at 110, Flannery Dep. at 72-76. Specifically, Liotta testified that ARC had a rule prohibiting the use of ZIP CodesTM on a DMR within a ten mile radius of a fixed donation site. Liotta Dep. at 37. He also stated that "[y]ou could place it [a ZIP CodeTM] on a DMR, but they won't necessarily use it," because of the rule. Id. He further indicated that on the twenty-two to twenty-five DMRs he filled out per month, "[i]f I know I can't use the [ZIP] [C]ode[TM] I do not bother putting the [ZIP] [C]ode[TM] down." Liotta Dep. at 38. Elliott testified that despite the ten-mile-radius rule, she often put ZIP CodesTM on DMRs if she thought "there's a chance that someone is [sic.] not paying attention and it will slip through." Elliott Dep. at 112. However, ARC's failure to catch Elliott does not evidence of discriminatory treatment directed at plaintiff. Finally, Flannery testified that "[c]ertain territories are restricted to only using sponsors['] codes as opposed to [ZIP] [C]odesTM. That's because the [ZIP] [C]odesTM are reserved for use by the fixed sites." Flannery Dep. at 71.
Regarding marketing tools other than Zogby, Elliott and Fredericks testified that they were not allowed to distribute T-shirts, or calling cards, when their territories did not include high schools or colleges. Elliott Dep. at 88-89, 110; see also Fredericks Dep. at 53-55 (in his former territory in the City of Rochester, he did not have access to any marketing giveaways; T-shirts and hats were reserved for high school and college drives).
PIP
Plaintiff maintains that, since Caucasian account managers who failed to meet their Productive Goals for three successive months were not placed on PIP, while she was, this establishes racial discrimination. Her claim in this regard is at odds with the undisputed fact that Goskoski, a Caucasian account manager, was placed on a PIP in March 2002 and subsequently terminated on May 31, 2002 for not meeting his PIP requirements. Lang Dep. at 145; Morgan Aff. ¶ 3; Lang Aff. ¶ 10.
As to plaintiff, Lang initially placed her on PIP based upon her lack of production, and then terminated her only after she failed to meet the expectations of the plan. Plaintiff has not come forward with any evidence inferring that he did either as a result of racial animus. Plaintiff alleges that Lang canceled blood drives which she had scheduled as proof of racial discrimination. However, Lang testified that even if plaintiff had been able to hold every drive scheduled, and none had been canceled, she would still have fallen below goal. Lang Dep. at 141.
While plaintiff compares her production rates to those of other account managers, these comparisons do not support her argument of racial discrimination. In fact, as indicated below, this comparison demonstrates that plaintiff's RBLs were the lowest of all account managers during ten of twelve in fiscal year ("FY") 01-02. Joiner Dep. 297-98. Plaintiff's Productive Goal for the year from July 2001 to June 2002 was 8,807 units. Clemons Aff. Ex. 2 (Rochester District Productive Goals). The totals for all account managers in the Rochester District, and their actual production, were as follows:
Account Manager FY 01-02 Goal FY 01-02 Actual % of Goal
Bob Fredericks 10,638 12,115 113.88% Tom Goskoski 9,337 9,544 102.22% Linda Litwak/Laura Elliot 10,382 10,221 98.45% Lora Pound 9,927 9,759 98.31% Stella Joiner 8,807 7,795 88.51%See Clemons Aff. Exs. 2 3 (attached as Tab V to Def.'s Reply Mem. of Law).
Retaliation
As to this claim, the Court finds that plaintiff has met the very minimal burden of establishing a prima facie case. She has done so by demonstrating that her termination occurred in close proximity to her filing of a complaint with the EEOC and the commencement of this lawsuit. However, as detailed above, the undisputed proof establishes that by October 1, 2002, Lang made the decision to terminate plaintiff and, consistent with ARC policy, on October 1, 2002, sent plaintiff, who was out of work on medical leave, a letter telling her to report to him upon her return. Plaintiff did not even commence this lawsuit until October 10, 2002, the date upon which she claims to have spoken with Ed Kelly at ARC's National Human Resources Department. As to her complaint with the EEOC, plaintiff has presented no evidentiary proof in admissible form that the notification sent to ARC, see n. 9, above, was ever forwarded or communicated to Lang, the decision maker on her termination.
CONCLUSION
Accordingly, defendant's motion (# 28) for summary judgment is granted. The Clerk is directed to enter judgment for defendant and close the case.
IT IS SO ORDERED.