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noting that "`[d]ifficult or unpleasant' working conditions are not sufficient to sustain a claim of constructive discharge"
Summary of this case from Chase v. Kaufmann's and May Department StoresOpinion
Docket No. 98-CV-0662E(H).
December 8, 2000
Richard H. Wyssling, Esq., c/o Wyssling Montgomery, Buffalo, NY., Attorney[s] For The Plaintiff[s].
James N. Schmit, Esq. and Judy S. Hernandez, Esq., c/o Damon Morey, Buffalo, NY., Attorney[s] For The Defendant[s].
MEMORANDUM AND ORDER
Plaintiff, an African-American male, filed this action October 14, 1998 claiming that defendant Graphics Controls Corporation ("GCC") discriminated against him on the basis of his race and his color with respect to salary promotion, training and opportunity for career advancement and, thereafter, constructively discharged him, such discrimination being in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Presently before the undersigned is GCC's motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Such motion will be granted.
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 a judgment as a matter of law." FRCvP 56(c). The "party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists" and that party's "burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). However, in an action which turns on the intent of a parts as employment discrimination claims often do — Gallo v. Prudential Residential Servs., L.P, 22 F.3d 1219, 1224 (2d Cir. 1994) —, and "[b]ecause employers rarely leave a paper trail — or `smoking gun' — attesting to a discriminatory intent," — Hollander v. American Cyanamid Co., 895 F.2d 80, 86 (2d Cir. 1990) —, this court must be mindful of its duty to believe all evidence submitted by the nonmovant and to draw "all justifiable inferences in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This heightened scrutiny does not mean that this Court should abstain from granting summary judgment where a litigant has not satisfied the usual requirements of summary judgment because the "salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
The parties' submissions reveal the following facts. Early in January 1992 plaintiff began his employment at GCC, a manufacturer of — inter alia — medical products, in the full-time, hourly position of Customer Service Representative II in GCC's Industrial Products Division at an annual rate $20,500. Statement of Undisputed Material Fact ("Statement") ¶ ¶ 2; 14. In December 1992 plaintiff received a positive review resulting in a pay increase to $21,623 beginning January 1, 1993. Id. ¶ 15. In January 1993 plaintiff was promoted to the position of Customer Service Representative I and received a pay increase to $22,384. Id. ¶ 16. That same year plaintiff bid on a job posted at GCC for the position of Account Marketing Representative ("AMR") in the Marketing Department of GCC's Medical Products Division and was awarded such position July 26, 1993. Id. ¶ ¶ 17-18. Simultaneous with this promotion, plaintiff received a seven percent pay increase and such was further increased in December 1993 by an additional three and one-half percent. Id. ¶ ¶ 19-20. In January 1995 plaintiff received another pay increase, which raised his annual salary to $24,814. Id. ¶ 21. This rate was increased, after receiving an "administrative adjustment" in May 1995 to $28,337. Id. ¶ 22; Plaintiff's Response ¶ 5. On July 31, 1995, plaintiff received a title change to Pricing Administration Specialist ("PAS") and his status was changed from hourly to salaried employment. Statement ¶ 24. In December 1995 plaintiff received a commendable performance review resulting in a pay increase to $29,187. Id. ¶ 25. Sometime during September 1996, GCC reorganized plaintiff's department and informed plaintiff that his position was to be eliminated at the end of the year. Id. ¶ ¶ 27, 29. Further and although there were alternate positions available for bidding by plaintiff at GCC, he did not bid on any of these positions and left GCC's employ at the end of 1996. Id. ¶ 36. It is also pertinent to note that plaintiff and all other AMRs originally worked under the supervision of Brian Stelley but that, after the Marketing Department had undergone a restructuring in early 1994, all AMRs were to assigned particular product lines. Taylor Aff. ¶ 10; McKnight Dep. at 33, 35, 40. At that time, plaintiff was assigned to the Neurology Products group and his immediate supervisor became Elton Barber. Taylor Aff. ¶ 10; McKnight Dep. at 35, 40.
At some time during late 1994 or 1995, plaintiff became aware that John Foster, a white male and a Senior Account Marketing Representative ("Senior AMR"), received pay at an annual rate of $36,110. Foster, who had previously received an annual pay rate of $42,000 as an Associate Product Manager, had been demoted to the position of Senior AMR February 14, 1994 after GCC concluded that he was not performing satisfactorily. Statement ¶ ¶ 42-43, 45; Taylor Aff. ¶ ¶ 16-17. In late December 1994 Foster's position was reclassified as an Account Marketing Specialist ("AMS"). Taylor Aff. Ex. L. During the same period Theresa Hart, a white female, successfully bid for a promotion to the part-time position of Associate Product Manager at GCC effective December 1994 and her rate of pay was based on a full-time annual pay rate of $41,085. Statement ¶ 49; Taylor Ex. K. Prior to this time Hart had been employed as a Senior AMR at GCC since July 1989 and had four more years of seniority than plaintiff in the AMR position. Statement ¶ 48. Her annual rate of pay had also been $28,902. Taylor Aff. Ex. K. Similarly, Tracy Penhollow, a white female, had been employed by GCC in its Medical Products Division since 1988 and was promoted to the title of AMR in mid-1992 at an annual pay rate $20,748 and was later promoted to the title of Senior AMR in May 1993 at an annual pay rate of $23,849. Taylor Ex. I. After receiving a pay increase to $24,922 annually in January 1994, Penhollow became an AMS in December 1994 at an annual rate of $28,300 and found herself promoted to the title of Senior PAS in July 1995. Ibid. Penhollow's salary in December 1996 was $31,986. Ibid.
As pointed out by plaintiff and as borne out by the facts above, by the end of 1994 plaintiff was non-salaried and earning $24,814 as an AMR, Foster was a salaried employee earning $36,110 as an AMS, Penhollow was a salaried employee earning $28,300 as an AMS and Hart was a part-time Associate Product Manager whose salary was based on a full-time rate of $41,085. Plaintiff's Mem. of Law at 4; see also Taylor Aff. Exs. B, F, I, K, L. The reclassification of Foster's and Penhollow's positions, moreover, was the result a desire on the part of Mary Millitello, who was GCC's Marketing Manger of its Medical Products division, to reorganize and restructure GCC's Medical Products Marketing Department in 1994. McKnight Aff. ¶ 4, 7; Millitello Aff. ¶ 7, 9. However, and for reasons not altogether clear, plaintiff's reclassification to a PAS and status as a salaried employee did not occur until the middle of 1995. Statement ¶ 24. When Foster left the employment of GCC in Spring 1996, Foster's duties as an AMS were temporarily divided between plaintiff and three other Marketing Department employees without a commensurate increase in pay. Compl. ¶ 17; McKnight Dep. at 93.
Plaintiff filed a complaint October 31, 1996 alleging intentional discrimination on the basis of his race, color and sex with the New York State Division of Human Rights ("DHR") in violation of Article 15 of New York's Executive Law and of Title VII. Id. ¶ 3. After the DHR had conducted its investigation of plaintiff's allegations, it issued a determination that there was "no probable cause" to believe that GCC had engaged in the claimed conduct. Id. ¶ ¶ 4-5. The Equal Employment Opportunity Commission issued plaintiff his right-to-sue letter July 22, 1998 whereupon plaintiff filed the instant action. Id. ¶ ¶ 8-9.
Preliminarily, this Court notes that the record is conspicuously devoid of evidence that even inferentially supports plaintiff's constructive-discharge claim. To establish a claim for constructive discharge, GCC must have deliberately made plaintiff's "working conditions so intolerable that [he] is forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (citing Young v. Southwestern Savings and Loan Assn., 509 F.2d 140, 144 (5th Cir. 1975)). "[D]ifficult or unpleasant" working conditions are not sufficient to sustain a claim of constructive discharge. Id. (citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). Moreover, "a constructive discharge cannot be proven merely by evidence that [plaintiff] disagreed with [GCC's] criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for [GCC]." Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993). Accordingly and because there is no support for any allegation — if made — that plaintiff's workplace was permeated with intolerable working conditions such that a reasonable person similarly situated would have felt compelled to resign, plaintiff's constructive discharge claim must fail.
Title VII provides, in relevant part, that it is unlawful 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, conditions, or privileges of employment, because of such individual's race, [or] color." 42 U.S.C. § 2000e-2(a). Title VII claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. In order to show discriminatory treatment, "plaintiff must establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., __U.S.__, 120 S.Ct. 2097, 2106 (2000). To establish a prima facie case of intentional discrimination made actionable under Title VII, plaintiff must show (1) that he is a member of a protected class, (2) that he was performing his job in a satisfactory manner or was qualified for the position sought, (3) that he suffered an adverse or detrimental employment decision made by his employer and (4) that the adverse employment decision was made under circumstances giving rise to an inference of discrimination based on his membership in a protected class. See, e.g., Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). Once a prima facie case has been established, defendant then has the burden of articulating a "legitimate, nondiscriminatory reason" for the allegedly discriminatory employment action. Ibid. "This burden is one production, not persuasion; it `can involve no credibility assessment.'" Ibid. (quoting St. Mary's Honor Center, Inc. v. Hicks, 509 U.S. 502, 509 (1993)). If defendant carries this burden, all presumptions disappear and plaintiff must present evidence which proves "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, plaintiff need not prove the falsity of the proffered reasons but rather only demonstrate that defendant's "explanation is unworthy of credence." Reeves, at 2106 (citing Burdine, at 256).
GCC argues that plaintiff has failed to "meet his burden of proof with respect to each and every allegation of discrimination." GCC's Mem. of Law at 2. In particular, GCC states that plaintiff has failed to establish a prima facie case of intentional discrimination "with respect to his allegations of differential treatment in salary, promotion, travel or training." Id. at 10. Furthermore, GCC states that — even assuming plaintiff has established a prima facie case of discrimination — it has articulated legitimate, non-discriminatory reasons for its employment decisions. GCC's Mem. of Law at 22. The undersigned agrees.
Because plaintiff's claims are premised on disparate treatment based on race and color, the last element of his prima facie case — i.e., showing that an adverse employment decision was made under circumstances giving rise to an inference of discrimination based on his membership in a protected class — "may be proven by showing that a [person] similarly situated was treated differently." Shumway, at 63. "To be `similarly situated,' the individuals with whom [plaintiff] attempts to compare [himself] must be similarly situated in all material respects." Id. at 64 (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). In the instant action, plaintiff argues that, "for the purposes of evaluating his Title VII claim, between 1994 and 1996 he was `similarly situated' to Tracy Penhollow, John Foster, and Theresa Hart until her December 1994 promotion" and that GCC's "own records demonstrate [that plaintiff] consistently earned the lowest salary of the AMRs in his department." Plaintiff's Mem. of Law at 5, 15. An analysis of these records, however, does not support the notion that circumstances exist which give rise to an inference of discrimination based on plaintiff's membership in a protected class. Similarly, plaintiff claims that, during his tenure at GCC, he performed "virtually identical tasks to those performed by John Foster, notwithstanding technical differences in their job titles, and minimal differences in their job descriptions." McKnight Aff. ¶ 15. Once again, the instant record does not support such comparison.
While it may be true that plaintiff, Penhollow, Hart (until her promotion to Associate Product Manager) and Foster performed similar duties — McKnight Aff. ¶ ¶ 6, 15; Foster Aff. ¶ ¶ 8-9, 15, 16; Plaintiff's Mem. of Law at 15-16 —, there remain important and palpable differences existing among such individuals such that they cannot be said to be similarly situated. During the time in question, it is uncontested that plaintiff never shared the same title at any one time as Penhollow, Hart or Foster. Statement ¶ ¶ 38, 48; McKnight Dep. at 43, 64. Furthermore, it is uncontested that, after early 1994, each worked in different Marketing Department product groups and did not share the same immediate supervisor. Taylor Aff. ¶ 10; McKnight Dep. at 33, 35, 40. Insofar as Penhollow and Hart are concerned, both were employed at GCC in the Medical Marketing Department prior to plaintiff, both were already Senior AMRs before plaintiff even attained the title of AMR and, a fortiori, both had more experience as AMRs. Furthermore, it is undisputed that the position of Senior AMR involved travel as part of the job description, which the AMR position held by plaintiff did not. Compare Taylor Aff. Ex. O (Senior AMR job description listing "travel in the field" as a "functional" responsibility) with Taylor Aff. Ex. R (AMR job description detailing no such responsibility). Such differences did not change when Penhollow was reclassified as an AMS in 1994 and later promoted to Senior PAS. Insofar as Foster is concerned, it is notable that, not only was he never classified as an AMR, he was actually demoted from Associate Product Manager to Senior AMR. Indeed, the fact that Foster was demoted is of significant importance to the instant action because plaintiff does not dispute that, according to GCC practice, it was company policy to minimize the impact of demotions. Statement ¶ 46; McKnight Aff. ¶ 35 (admitting that plaintiff "was familiar with [GCC's] policy concerning demotions, and assumed that his salary in the new position would be generally comparable to his prior salary"). The result of such practice was to place Foster's annual rate of pay at the maximum for his pay grade which was also significantly higher than that received by all other Senior AMRs, including Penhollow who, in 1996, earned $7,810 less than Foster, despite the fact that she had greater experience as a Senior AMR. See Taylor Aff. Exs. G, I, L. Consequently, plaintiff's assertion that Penhollow, Hart or Foster was similarly situated to him in all material respects is simply unsubstantiated and must fail.
Plaintiff's reliance on Johnson v. Zema Systems Corp., 170 F.3d 734 (7th Cir. 1999), is unavailing because a proposition for which it stands is not inapposite to the aforementioned analysis. In Johnson, the court noted that the employer-defendant named therein may not insulate itself from Title VII liability by "providing different job titles to each of its employees." Id., at 743. Similarly-situated analysis should take into account how an employer's treatment of a plaintiff fares vis-a-vis that of his or her colleagues. Id., at 744. Stated differently, intermediate managerial positions should, for example, be compared with other intermediate managerial positions. In the instant action, each of Penhollow, Hart and Foster had a different job description with greater responsibilities than did plaintiff. For example, a Senior AMR could recommend additional staffing in the Marketing Department and had supervisory authority over certain employees, whereas an AMR could not and had no such authority. See Taylor Aff. Exs. O, R. Similarly, an AMS had the discretion to exercise supervisory authority that a PAS simply did not possess. Id. Indeed, when Hart was promoted to Associate Product Manager in 1994, her previous position went unfilled and its outstanding duties were divided between Penhollow and Foster — and not plaintiff — in their new roles as AMSs. Taylor Ex. M. In addition, plaintiff's argument that his position was identical to Foster's is belied by his own submissions. Plaintiff has, for example, proffered an affidavit from Foster which indicates that Foster had computer related responsibilities that plaintiff did not. Foster Aff. ¶ ¶ 11-12. Regardless of whether plaintiff, or Foster, feels that such duties were not indicative of any real differences which existed between such parties, these duties were exclusively and explicitly part of Foster's job description and, being so, undermine any assertion that such parties were similarly situated. See Goenaga, at 18 (noting that a plaintiff "cannot meet" the burden of establishing an inference of discrimination on an impermissible basis "through reliance on unsupported assertions").
Turning directly to plaintiff's allegation that GCC discriminated against him on the basis of race and/or color with respect to salary, promotions, training and opportunity for career advancement, plaintiff has not met his burden of establishing an inference of discrimination because, as indicated previously, he has not been able to establish that he is similarly situated to either Penhollow, Hart or Foster, such comparisons forming the basis of his claims. Instrumental in establishing such inference with regard to pay is some showing that plaintiff was performing substantially the same work as those white employees. Aman Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3rd Cir. 1996) (citing Hohe v. Midland Corp., 613 F. Supp. 210, 214 (E.D. Mo. 1985)). Plaintiff has made no such showing. Moreover, the fact that the positions held by Penhollow and Foster were "upgraded" or reclassified at the end of 1994 and that they were then placed in salaried job titles, while plaintiff had to wait until the middle of 1995 to be similarly reclassified and salaried, is immaterial in light of this Court's determination that such parties were not similarly situated to plaintiff either prior to or after such reclassification. Insofar as plaintiff claims that he was denied travel opportunities and, what plaintiff believed to be, the concomitant opportunity for career advancement, plaintiff's claims fail because he has not shown himself to be similarly situated to those persons whose job description required travel. See McKnight Dep. at 102-107; Militello Aff. ¶ 42. Finally and insofar as plaintiff claims the denial of training opportunities — more specifically, computer training opportunities —, the record offers no support. In support of such claims, plaintiff only proffers the conclusory allegation that "other employees in his department received computer training while he did not." Plaintiff's Response ¶ 16. Such subjective belief, without more, is insufficient to meet his burden of demonstrating circumstances giving rise to an inference of discrimination based on his membership in a protected class.
Plaintiff's complaints regarding promotions, or the lack thereof, are also unavailing for another reason. "[T]he Supreme Court provided a framework for a prima facie claim based on an alleged discriminatory failure to promote as follows: plaintiff must allege that (1) [he] is a member of a protected class; (2) [he] `applied and was qualified for a job for which the employer was seeking applicants'; (3) [he] was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications." Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2nd Cir. 1998) (citing McDonnell Douglas, at 802). While such standards are to be flexibly applied, a plaintiff must still allege, inter alia, "the specific positions to which [he] would have applied had the alleged discriminatory practices not existed." Id., at 711. In the case at hand, plaintiff has not revealed the existence of any position for which he had, or would have, applied and was, or expected to be, subsequently rejected. See McKnight Aff. ¶ 41 (stating that, with respect to a position that became open in the Marketing Department prior to termination, plaintiff "did not bid on the new position"); McKnight Dep. at 140 (stating that, while there were a variety of positions which became open at GCC in late 1996, plaintiff "did not bid on any other positions in the company"). Relatedly and because plaintiff has not revealed the existence of any position for which he had, or would have, applied, it is impossible for this Court to ascertain whether he would have been qualified for such position and whether he suffered an adverse employment decision in the form of a rejection. Accordingly, plaintiff has not met his burden of establishing an inference of impermissible discrimination with respect to his claim of failure to promote.
While not expressly set forth in plaintiff's Complaint, to the extent that plaintiff's allegations can be construed as asserting a claim for unlawful termination, the undersigned notes that the record is bereft of any indication that plaintiff has questioned GCC's rationale for reorganizing plaintiff's department in 1996 and its basis for eliminating his position therein. Rather, plaintiff has described the impact of such reorganization as affecting "whether [p]laintiff would have been able to successfully bid on any available positions." Plaintiff's Mem. of Law at 18. Nevertheless, whether plaintiff could move into another position is irrelevant to whether the actual elimination of plaintiff's job was proper. The issue is not whether plaintiff might have been employed in some other position; it is whether plaintiff's employment was terminated for some unlawful and invidious purpose. For example, an inference of discrimination may be raised by demonstrating that "plaintiff's position remained open after he was discharged, or that he was replaced by someone outside his protected class." Tarshis v. Riese Organization, 211 F.3d 30, 36 (2nd Cir. 2000). Neither has been alleged in the instant case. Indeed, it is relevant to note here that such restructuring also led to the elimination of Barber's position, plaintiff's supervisor and a white male. Consequently and because plaintiff does not argue that his actual termination was unlawful and the evidence does not support such an inference of discrimination, any claim for unlawful termination must fail.
Even if this Court were to assume, arguendo, that plaintiff can make out a prima facie case that GCC discriminated against him on the basis of his race and color with respect to salary, promotion, training and career advancement, summary judgment will still be proper because GCC has articulated legitimate, nondiscriminatory reasons for its employment decisions. Specifically and as indicated above, GCC has provided evidence that plaintiff's annual rate of pay was within the range established for his grade level, that plaintiff regularly received annual and interim raises totaling over 40 percent of his initial annual rate of pay, that plaintiff chose not to bid for positions that were known to be available, that plaintiff's position did not require travel and, to the extent that plaintiff did travel, such travel was entirely discretionary and that plaintiff received the appropriate amount of training required for his position at GCC. Plaintiff has proffered nothing in response which suggests that such explanations are unworthy of credence. Insofar as plaintiff claims constructive discharge and/or unlawful termination, GCC has also articulated a legitimate, nondiscriminatory reason for plaintiff's "resignation" — i.e., plaintiff's position was eliminated due to the decline in sales of the product line with which he was associated. Again, plaintiff has proffered nothing suggesting such explanation is unworthy of credence.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted, that plaintiff's Complaint is dismissed and that this case shall be closed.