Opinion
98-CV-0782E(F)
June 3, 2002
MEMORANDUM and ORDER
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") August 26, 1998 alleging that defendant American Express Financial Advisors ("AEFA") had discriminated against her and subjected her to a hostile work environment on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 ("Title VII"), her age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 ("ADEA") and her disabilities in violation of the Americans with Disabilities Act of 1990 42 U.S.C. § 12112-12117 ("ADA"). The EEOC — rather precipitously — issued plaintiff a right-to-sue letter September 2, 1998. Plaintiff commenced this action December 2, 1998 and filed an Amended Complaint February 24, 2000 raising eight causes of action — viz., (1) age discrimination in violation of the ADEA, (2) sex discrimination in violation of Title VII, (3) disability discrimination in violation of the ADA, (4) retaliation in violation of the ADA, ADEA and Tile VII, (5) age discrimination in violation of New York's Human Rights Law, N.Y. Exec. Law §§ 290-301 ("HRL"), (6) sex discrimination in violation of the HRL, (7) disability discrimination in violation of the HRL and (8) retaliation in violation of the HRL. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(4) and 1367. Defendant filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("FRCvP") June 25, 2001, seeking, inter alia, to dismiss plaintiff's Title VII and ADEA claims on the basis that they are untimely. Oral argument on defendant's motion for summary judgment was had September 14, 2001 and such has thereafter been before this Court for disposition.
Plaintiff subsequently withdrew her third and seventh causes of action alleging disability discrimination in violation of the ADA and the HRL respectively and her Title VII and ADEA causes of action to the extent that they raised a failure to promote claim. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 1, n. 1.
Inasmuch as this Court will be granting defendant's motion for summary judgment dismissing plaintiff's Title VII and ADEA claims on the basis that they are untimely and will be declining to exercise supplemental jurisdiction over plaintiff's HRL claims, this Court will not address defendant's alternative grounds for summary judgment because such would constitute an "advisory opinion" and such grounds are more properly addressed by a New York State court should plaintiff decide to file a HRL action therein pursuant to 28 U.S.C. § 1367(d).
Pursuant to FRCvP 56(c), summary judgment "shall be rendered forthwith if 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." The party moving for summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) — however, the opposing party may not rest upon conclusory statements in her pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable *** or is not significantly probative ***, summary judgment may be granted." Anderson, at 247-250. Furthermore, summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323.
Plaintiff, a female born September 8, 1933, became associated with AEFA as a Personal Financial Planner/Financial Advisor ("Financial Advisor") in its Buffalo office in 1985. Def.'s Statement of Undisputed Facts ("Statement") 661, 28; Pl.'s Statement of Disputed Facts ("Response"); Krieger Aug. 20, 2001 Aff. 662-3, 5 and Ex. A; M. Lurz Aff. 66 and Ex. A. In addition to her position as a Financial Advisor, which she retained throughout her tenure with AEFA, plaintiff became a Field Trainer in 1987, then a Qualified Training Manager in 1988 and finally a District Manager in 1989. Statement 6629-30, 32-33; Response; Krieger Aug. 20, 2001 Aff. 666-7, 9, 16 and Ex. B; M. Lurz Aff. 668, 10 and Exs. B and D. In 1994 AEFA decided to restructure its field sales operations as a result of which the duties of a District Manager — the position then held by plaintiff in addition to her position as a Financial Advisor — were to be changed and therefore offered a transition package from December 1994 through December 31, 1996 to District Managers who did not want to continue as District Managers after the duties of such position were changed. Statement 6636, 47; Response 6636, 47; Krieger Aug. 20, 2001 Aff. 621; M. Lurz Aff. 6615-16; Anderson Aff. 663-5. Bluhm Aff. Tab F (Memorandums dated Dec. 9, 1994 and Oct. 18, 1996 regarding restructuring and transition packages). During this period AEFA prepared transition packages for six district managers in the Upstate New York Market Group — viz., (1) plaintiff, (2) Michele Alesci, (3) Gerald Randisi, (4) Jeff Miller, (5) Susan Steindorf and (6) Martin Zaklikowski — Alesci, Miller and Steindorf accepted the transition package and resigned their District Manager positions; plaintiff, Randisi and Zaklikowski did not. Statement 6637, 43, 47; Response 647; M. Lurz Aff. 617 and Ex. G; Bluhm Aff. 666-7, Ex. C and Tabs A-E; Anderson Aff. 665-6. No District Manager in the Upstate New York Market Group was offered a transition package after December 31, 1996. Bluhm Aff. 68; Anderson Aff. 66. On October 29, 1997 AEFA notified plaintiff that she would be terminated from her position as a District Manager but not from her position as a Financial Advisor — for allegedly violating certain of AEFA's policies unless she tendered her resignation before November 18, 1997. Statement 6658-59; Response; Krieger Aug. 20, 2001 Aff. 6639, 41 and Ex. 25 (Oct. 29, 1997 Termination Letter); M. Lurz Aff. 6649-51 and Ex. DD (Oct. 29, 1997 Termination Letter). Plaintiff inquired as to whether she would be given a transition package; however she was told that such was no longer available. Krieger Aug. 20, 2001 Aff. 650 and Ex. 28 (June 8, 2001 Letter from Harvey P. Sanders, Esq. supplementing Pl.'s Resp. to Def's Interrog. No. 19).
AEFA had been known as IDS Financial Services, Inc. prior to January 1, 1995.
Plaintiff states that it "is not an undisputed material fact that American Express began its restructuring of its field sales operations in late 1994. Defendant has offered no evidence of this restructuring. Further, Plaintiff would have no idea of when this restructuring began." Response 636. However, defendant has offered admissible evidence that it did begin its restructuring in late 1994 and plaintiff has offered no evidence to the contrary. Furthermore, the only relevance to such is background as to why transition packages were offered.
Plaintiff alleged in her August 20, 2001 Affidavit that, upon information and belief, Gerald Gortner had been offered a transition package in July 1997 — Id. at 652 — however, she has offered no evidence in support of such belief and she had previously alleged that he had been offered a transition package "in or about 1995/1996." Disare June 22, 2001 Aff. Ex. I. (Pl.'s Resp. to Def.'s Interrog. No. 18).
Plaintiff ceased working for defendant as a Financial Planner November 22, 1997 because she became totally disabled as a result of a motor vehicle accident. Statement 6664-67; Response; M. Lurz Aff. 652; Krieger Aug. 20, 2001 Aff. 6625-26.
Plaintiff filed charges with the EEOC and subsequently commenced this action alleging that defendant had subjected her to a hostile work environment and discriminated against her on the basis of her sex and her age by, inter alia, terminating her position as a District Manager and denying her a transition package, in violation of Title VII and the ADEA respectively. Title VII states that it
"shall be an unlawful employment practice for an employer — (1) *** to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's *** sex ***; or (2) to limit, segregate, or classify [its] employees *** in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [her] status as an employee, because of such individual's *** sex ***." 42 U.S.C. § 2000e-2(a).
The ADEA states that it
"shall be unlawful for an employer — (1) *** to discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's age; [or] (2) to limit, segregate, or classify [its] employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [her] status as an employee, because of such individual's age ***." 29 U.S.C. § 623(a).
Under both Title VII and the ADEA, a claimant must file a charge of discrimination with the EEOC within 300 days of the occurrence of the allegedly discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2); Flaherty v. Metromail Corp., 235 F.3d 133, 137, n. 1 (2d Cir. 2000); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 326-329 (2d Cir. 1999); Ford v. Bernard Fineson Development Center, 81 F.3d 304, 307-312 (2d Cir. 1996). Plaintiff filed her charge with the EEOC August 26, 1998; therefore any allegations of discrimination occurring prior to October 30, 1997 are untimely under both Title VII and the ADEA. Defendant seeks summary judgment dismissing plaintiff's Title VII and ADEA claims on such basis because she has no evidence of having been discriminated against on or after October 30, 1997.
In response to defendant's assertion that her Title VII and ADEA claims must be dismissed because her EEOC charge was untimely, plaintiff raised three arguments — viz., (1) her termination did not become effective until November 18, 1997, (2) she was denied a transition package after October 29, 1997 and (3) the hostile work environment continued after October 29, 1997. Therefore she contends that she can avail herself of the continuing violation theory to salvage such claim. This Court will address plaintiff's arguments seriatim.
Plaintiff first argues that, although she was informed October 29, 1997 that she was to be terminated as a District Manager unless she chose to resign by November 18, 1997, her wrongful discharge claim is nevertheless timely because the decision to terminate her did not become final until November 18, 1997. "The 300-day period, in the case of a discriminatory discharge, starts running on the date when the employee receives a definite notice of the termination, not upon his discharge." Miller v. Intern. Tel. Tel. Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, 474 U.S. 851 (1985). See also, Chardon v. Fernandez, 454 U.S. 6, 7-8 (1981); Delaware State College v. Ricks, 449 U.S. 250, 256-262 (1980); Flaherty, at 137. Accordingly, plaintiff's wrongful discharge claim is untimely.
Plaintiff's second argument is that she was denied a transition package which had been offered to similarly situated men. Plaintiff alleges that when she was terminated as a District Manager, she should have been offered a transition package because,
"[u]pon information and belief, male District Managers have been offered transition packages to step down form [sic] these positions. At no time was plaintiff ever offered such a package. Indeed after she was informed about her termination, plaintiff asked whether she would be offered such a package and was told it was no longer available." Am. Compl. 619.
As the plaintiff tacitly admitted in her Amended Complaint, transition packages were only offered to District Managers who voluntarily chose to step down from these positions, not to District Managers who were terminated. Furthermore, plaintiff subsequently admitted during discovery that she had been informed in December of 1996 "that transition packages would only be available until December 31, 1996." Krieger Aug. 20, 2001 Aff. 621. See also Response 647. Finally, plaintiff admitted that it was on and not subsequent to October 29, 1997 that she had requested and been denied a transition package; therefore such claim is untimely. Disare June 22, 2001 Aff. Ex. K (June 8, 2001 Letter from Harvey P. Sanders, Esq. supplementing Pl.'s Resp. to Def.'s Interrog. No. 19).
Plaintiff's third and final argument is that she continued to be subjected to a hostile work environment subsequent to October 29, 1997 and can therefore avail herself of the continuing violation doctrine to salvage her hostile work environment claim. Although plaintiff had checked the continuing action box in her EEOC charge and had alleged that AEFA "has continued to discriminate against me since October 29, 1997" and that AEFA last discriminated against her in August of 1998 — i.e., the month in which she filed such charge —, she did not allege in either the seven-page statement submitted with her EEOC charge or her Amended Complaint that she had been subjected to a hostile work environment after her removal as District Manager October 29, 1997. Therefore such claim is not before this Court. Inasmuch as this Court will be dismissing plaintiff's Title VII and ADEA claims — the only ones over which it had original jurisdiction after plaintiff voluntarily dismissed her ADA claims —, this Court declines to exercise supplemental jurisdiction over plaintiff's remaining HRL pursuant to 28 U.S.C. § 1367(c)(3) and will therefore dismiss them without prejudice.
Plaintiff had actually left AEFA November 22, 1997 after she was involved in a motor vehicle accident which left her "completely disabled." Krieger Aug. 20, 2001 Aff. 626.
Plaintiff's original Complaint contained no factual allegations but simply referred to the seven-page statement she had submitted with her EEOC charge, which was attached as an exhibit to the Complaint.
Plaintiff first alleged that she had been subjected to a hostile work environment after her termination as District Manager in her August 20, 2001 Affidavit wherein she stated that "[b]etween October 1997 and November 1998, Mark Lurz and/or Anthony Scott continued to harass me by asking about my retirement plans and interfering with my work." Id. at 684. However, earlier in that same affidavit, plaintiff had stated that she had been disabled since November 22, 1997. Id. at 626.
Citing Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993), defendant erroneously argues that this Court must dismiss plaintiff's state law claims because failure to file a timely EEOC charge "deprives a district court of subject matter jurisdiction ***." Def.'s Mem. of Law. in Supp. of Mot. for Summ. J. at 19, n. 11. However, as correctly noted by plaintiff, the Second Circuit Court of Appeals subsequently clarified that its reference to "jurisdiction" in Butts was mere dicta and that the filing of a timely EEOC charge is a waivable precondition to filing a Title VII action and that the failure to do so does not deprive a district court of subject matter jurisdiction. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 44, n. 10 (citing Francis v. City of New York, 235 F.3d 763, 766-768 (2d Cir. 2001)).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted, that plaintiff's federal claims are dismissed with prejudice, that this Court declines to exercise supplemental jurisdiction over plaintiff's state claims, that plaintiff's state claims are dismissed without prejudice and that this case shall be closed in this Court.