Wilkins v. Time Warner Cable, Inc.Wilkins v. Time Warner Cable, Inc.
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Joseph Wilkins (“Plaintiff’) brought this employment discrimination action against his former employer, Defendant Time Warner Cable, Inc. (“Defendant”). Dkt No. 1 (“Complaint”). Presently before the Court is Defendant’s Motion for Summary Judgment and Plaintiffs Cross-Motion to amend the Complaint. Dkt. Nos. 24 (“Motion”); 31 (“Cross-Motion”). For the following reasons, Plaintiffs Cross-Motion is granted and Defendant’s Motion is granted in part and denied in part.
II. BACKGROUND
A. Plaintiffs Employment
Defendant is a cable, telephone, and internet services provider. Dkt. Nos. 24-14 (“SMF”) ¶ 3; 32 (“Response SMF”) ¶3. Plaintiff began working for a predecessor of Defendant in June 1983, and worked for Defendant or its predecessors continuously until April 2010. SMF ¶ 1; Resp. SMF ¶¶ 1, 35, 37. Plaintiff states that he worked as a Direct Sales Representative (“DSR”) from 1983 until around 2005,
Plaintiff was amongst the oldest and longest-tenured salespeople at his workplace. Id. at 186:7-8; see also Resp. SMF ¶ 33. For the last six or seven years of Plaintiffs employment, his supervisor and most other employees referred to him as “Grandpa” or “Grandpa Joe,” a nickname that Plaintiff told others they could use. Compl. ¶¶ 15-16; SMF ¶33; Resp. SMF ¶ 33.
B. Cessation of Employment
1. The Edwards Meeting
According to Plaintiff, on April 1, 2010, his supervisor, William Edwards (“Edwards”), requested a meeting on April 2 at 9:00 a.m. Resp. SMF ¶ 37. Although Edwards arrived at the office at 9:30 a.m., he did not meet with Plaintiff until 11:50 a.m., explaining to Plaintiff that there were “too many people in the office.” Id. ¶ 38. Edwards took Plaintiff outside the building, where he told him that the MDU specialist position would be changing and that Plaintiff should retire. Resp. SMF ¶40. Edwards would not tell Plaintiff exactly what changes would happen, but told Plaintiff his position would be eliminated and that, within three days, Plaintiff would need to get “all new buildings” — i.e., Plaintiff would lose all his sales accounts and would need to find new ones. Resp. SMF ¶¶ 15, 41; Dkt. No. 30-2 (“Wilkins Declaration”) ¶ 7; see also SMF ¶ 15. Edwards also told Plaintiff that he “didn’t fit in anymore.” Resp. SMF ¶ 15. Plaintiff told Edwards that he did not want to retire. Id. ¶ 43.
Defendant acknowledges that Edwards told Plaintiff that the MDU job would be changing, but contends that Edwards told him no plan was in place for what changes would be made and that Edwards did not tell Plaintiff his position would be eliminated. SMF ¶¶ 9,15.
2. The Keib Meeting
Defendant maintains an “Open Door Policy,” which provides that “employees should feel comfortable bringing their concerns about work related situations to the attention of management.” SMF ¶ 4; Dkt No. 24-13, Ex. I (“Open Door Policy”).
After the conversation with Edwards, Plaintiff sought a meeting with John Keib (“Keib”), the “President of the Northeast Region.” Resp. SMF ¶44. Keib’s secretary informed Plaintiff that Keib was available for a “quick meeting” around 4:15 p.m. Id. Plaintiff met with Keib as arranged and told him that he had spoken
When Plaintiff arrived for the April 13 meeting, he waited two hours before Keib’s secretary informed him that Keib was not there and could not meet with him. Resp. SMF ¶ 50. Plaintiff felt humiliated. Wilkins Decl. ¶ 10. Keib’s secretary told Plaintiff that she would set up another meeting and then call Plaintiff. Resp. SMF ¶ 50. Plaintiff never heard from Keib after that. Id. ¶ 51. He called three times to set up another meeting, but was told each time that Keib was not available. Id. ¶ 52.
S. The HR Meeting
Plaintiff had previously decided to use some vacation time he had accrued, but first needed the signature of Edwards or a Human Resources (“HR”) representative. Id. ¶ 53. As of April 2010, Edwards had not signed Plaintiffs vacation time request. Id. Following the April 2 meeting with Edwards, Plaintiff called Edwards several times and left messages regarding both his desire not to retire and approval of his vacation time request. Id. ¶ 54. Edwards never responded to those calls. Id. Plaintiff then went to HR for approval of his vacation time request. Id. ¶ 55. While meeting with the HR representative, Plaintiff mentioned that it was possible he would have to retire. Id. ¶ 55. As he was about to leave the HR meeting, the HR representative told him that if he was going to retire, he would need to create a letter stating his intention to do so. Id. ¶ 56. Plaintiff asked her if he could retract the letter if he did not end up retiring, and she said he could. Id. ¶ 57. With the HR representative’s assistance, Plaintiff drafted a letter stating that he intended to retire after April 29, 2010, which was the end of his planned vacation. Id. ¶¶ 7, 57; SMF ¶ 7; Dkt No. 24-8, Ex. B (“Retirement Letter”).
Plaintiff states that he intended to keep his job or switch to a different full-time position by speaking with Keib and/or Edwards. Resp. SMF ¶¶ 58-59. However, neither Keib nor Edwards met with Plaintiff after he signed the letter. Id. ¶¶60, 62.
C. Exit Interview and Benefits
Plaintiff maintains that every employee who leaves Defendant has an exit interview. Resp. SMF ¶ 64. According to Plaintiff, his exit interview was scheduled for April 30, but when Plaintiff arrived Edwards was not there and his administrative assistant told Plaintiff that he had called to say he was not coming. Id. ¶ 63; Wilkins Deck ¶ 14. An exit interview was therefore never held. Resp. SMF ¶ 63.
According to Defendant, an exit interview was conducted with Plaintiff on or about April 16, after Plaintiff had signed the Retirement Letter. Dkt No. 24-7 (“Petitto Declaration”) ¶ 7. As evidence of this interview, Defendant submits a copy of an email from an HR manager to Plaintiff congratulating him on his retirement and informing him that Defendant’s “exit ‘interview’ is now done electronically so [she] will send [him] that link in a separate email.” Dkt No. 24-8, Ex C. The email includes as an attachment a generic, two-page information sheet entitled “Benefits Information for Separating Employees.”
Plaintiff states that he was never trained to use his office email account, and that it was common knowledge at his office that he did not know how to use it. Wilkins Deck ¶ 18. He therefore never received the exit interview email or the benefits information sheet. Id. Furthermore, he was on vacation at the time the email was sent to him. Id.
After his employment ended, Plaintiff received medical and pension benefits. SMF ¶ 8; Resp. SMF ¶8. He did not receive any severance pay. Resp. SMF ¶ 8.
D. Post-Employment Events
Plaintiff contends that, after his departure, the MDU specialist position was changed to require the salesperson to also perform physical installations in addition to sales. Resp. SMF ¶¶ 14-15. Another employee of Defendant, William Holbert (“Holbert”), sought to fill the position vacated by Plaintiff but was told that he was “too old.” Id. ¶ 65. Defendant eventually filled the position with two individuals who were significantly younger than Plaintiff: Jeffrey Sydney (twenty-eight years younger) and Stephen Capousis (nineteen years younger). Resp. SMF ¶ 66.
Defendant contends that Plaintiff was employed as a DSR in 2010, and that Defendant did not eliminate any DSR positions in 2010, but rather hired three additional DSRs to service MDUs. SMF ¶ 14. Defendant states that Plaintiffs job responsibilities were assumed by Jeffrey Sydney, who was over forty years old, and that two of the additional DSRs hired in 2010 were also over the age of forty. SMF ¶ 15. ■
E. Procedural History
Plaintiff filed a complaint with the New York State Division of Human Rights in May 2010 and filed this action on June 20, 2011, bringing claims for violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461, breach of contract, and attorneys’ fees. Compl. ¶¶ 4-5, 27-38. Defendant filed its Motion and supporting Memorandum on March 18, 2013. Mot.; Dkt No. 15 (“Memorandum”). Plaintiff then filed his Response and Cross-Motion, and Defendant filed a Reply. Cross-Mot.; Dkt Nos. 30-1 (“Response”); 33 (“Reply”). On June 14, Plaintiff moved pursuant to Federal Rule of Civil Procedure 56(d) to reopen discovery and depose Holbert. Dkt. No. 34 (“56(d) Motion”). After the Court granted Plaintiffs 56(d) Motion and the deposition was conducted, Plaintiff filed an amended Statement of Material Facts and Defendant filed a supplemental Memorandum. Resp. SMF; Dkt. No. 48 (“Supplemental Memorandum”).
III. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) instructs a court to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Although “[fjactual disputes that are irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict
The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
IV. ADEA
A. Legal Standard
Plaintiff alleges age-based disparate treatment in violation of the ADEA. Compl. ¶¶ 27-30. ADEA discrimination claims proceed according to the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green,
B. Discussion
1. Prima Facie Case
Defendant does not dispute that Plaintiff is a member of a protected class by virtue
a. Adverse Employment Action
The ADEA prohibits an employer from, inter alia, “diseharg[ing] any individual” over the age of 40 “because of such individual’s age.” See 29 U.S.C. §§ 623(a)(1), 631. “The ‘discharge’ element of an ADEA claim may be either an actual termination of the plaintiffs employment by the employer or a ‘constructive’ discharge.” Kirsch v. Fleet St., Ltd.,
In this ease, Plaintiff proceeds on a constructive discharge theory, alleging that his April 2 meeting with Edwards and subsequent actions by Defendant forced him to resign. See Resp. at 5-7. According to Defendant, Plaintiff was not terminated, but voluntarily resigned from his position. See Dkt. No. 6 (“Answer”) ¶ 30; SMF ¶ 1. Defendant further argues that because Plaintiff offers proof of only the possibility of future changes in his employment, and those changes did not occur before he resigned, he cannot show that his working conditions prior to his resignation were sufficiently intolerable to constitute a constructive discharge. See Mem. at 13-14.
It is well established that a change in title or loss of pay may support a claim of constructive discharge. See, e.g., Scott v. Harris Interactive, Inc.,
Here, Plaintiffs supervisor told Plaintiff that his position would be significantly-changed such that his compensation would decrease, and that he should retire. Resp. SMF ¶¶ 40-47. The only alternative his employer offered him was part-time employment, which would prevent him from receiving benefits, id. ¶47, and presumably would offer significantly less compensation. Based on this evidence, a rational factfinder could determine that Plaintiff, although he resigned before the anticipated changes to his position took place, was constructively discharged.
b. Inference of Discrimination
Defendant argues that even if Plaintiff suffered a constructive discharge, it did not occur under circumstances giving rise to an inference of age-based discrimination. Mem. at 15-16; Supplemental Mem. at 1-5. But Plaintiff has provided ample evidence of discriminatory intent, including that Plaintiffs position was filled by two individuals who were significantly younger than him,
2. Articulated Nqn-Discriminatory Reason
Confident in its contention that no adverse action occurred and therefore Plaintiff has not made out a prima facie case, Defendant maintains that it “is not required to offer a legitimate business reason” for its actions. Reply at 6. The Court has already determined that Plaintiff has made out a prima facie case. By declining
8. Vicarious Liability
Defendant argues that because Plaintiff did not suffer a tangible employment action and failed to take advantage of Defendant’s well-established anti-discrimination policies, it is entitled to summary judgment based on the Faragher/Ellerth affirmative defense
a. Applicability
i. Constructive Discharge
“Against employee claims of hostile work environment and constructive discharge, the employer may have recourse to the so-called Faragher/Ellerth affirmative defense.” Ferraro v. Kellwood Co.,
Both Faragher and Ellerth involved Title VII disparate treatment claims in which the alleged adverse employment action was a hostile work environment. Faragher,
Here, Plaintiff has brought neither a hostile work environment claim, nor a compound hostile-environment constructive discharge claim. Rather, he asserts that direct notice of impending and inevitable adverse changes in the terms and conditions of his employment compelled him to resign; no hostile work environment claim is at issue. His claim therefore appears closer to a pure constructive discharge claim than the claims at issue in Faragher, Ellerth, and Suders. See Scott,
Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee’s decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects .... But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis ... calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. Absent an official act of the enterprise, as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force.
Suders,
ii. ADEA
Plaintiff asserts that the Faragher/Ellerth defense does not apply to age discrimination claims. Resp. at 11. The defense is derived from the inclusion of an employer’s agents in the definition of “employer” in Title VII of the Civil Rights Act. See Ellerth,
b. Waiver
Plaintiff argues that Defendant cannot raise the Faragher/Ellerth defense now because it did not raise it in its Answer. Resp. at 10-11. Defendant concedes that it did not specifically plead the defense in its Answer, but argues that it may nevertheless raise it in support of its Motion because: (1) “Plaintiff has cited no precedent in this circuit requiring [Defendant] to plead the defense with specificity”; (2) Plaintiffs constructive discharge theory was not apparent based on the face of the Complaint, and Defendant therefore did not have a reason to assert the defense until the filing of Plaintiffs Response; and (3) the Court should exercise its discretion to allow Defendant to raise the defense because “in the event that [the Motion] is denied, [Defendant] can move to amend its answer to raise the defense.” Reply at 6 n. 2. Each of these arguments fails, and the Court finds that Defendant has waived the defense.
“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.... ” Fed. R. Civ. P. 8(c). “It is a frequently stated proposition of virtually universal acceptance by the federal courts that a failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of that defense and its exclusion from the case-” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed.2013); see also Travellers Int’l, A.G. v. Trans World Airlines, Inc.,
Defendant asserted several affirmative defenses in its Answer, but did not specifically raise the Faragher/Ellerth defense or otherwise reference the issue of vicarious liability. Answer ¶¶ 4CM8.
First, Although the Complaint does not utilize the phrase “constructive discharge,” it does state that Defendant “forced [Plaintiff] to retire” and “forced [him] out of his job.” Compl. at 1, ¶23. Such language constitutes a constructive discharge allegation. See Kirsch,
The Court also finds that allowing Defendant to raise the Faragher/Ellerth defense at this stage would prejudice Plaintiff because he can no longer conduct discovery as to the defense. See Resp. at 11. Reopening discovery would further delay resolution of this case, and Defendant has not provided a sufficient explanation as to why that delay would not be undue. Accordingly, the Court finds that Defendant has waived the Faragher/Ellerth defense.
c. Application to this Case
Even if Defendant could raise the Faragher/Ellerth defense, it would not entitle it to summary judgment because Defen
First, whether Defendant exercised reasonable care to prevent and promptly correct any discriminatory behavior is a disputed issue of fact. “An employer may demonstrate the exercise of reasonable care, required by the first element, by showing the existence of an anti-harassment policy during the period of the plaintiffs employment, although that fact alone is not always dispositive.” Ferraro,
Second, Defendant has not shown that Plaintiff unreasonably failed to take advantage of available preventive or corrective opportunities. Plaintiff met with Keib and expressed his desire to keep his job.
For all these reasons, the Faragher/Ellerth defense does not entitle Defendant to summary judgment on Plaintiffs ADEA claim.
V. ERISA
Plaintiff alleges that Defendant violated ERISA by constructively discharging him in order to avoid giving him the severance benefits to which he would have been entitled had he been formally discharged. Resp. at 11-13; Compl. ¶¶ 24, 34.
A. Legal Standard
ERISA § 510 provides that “[i]t shall be unlawful for any person to discharge ... or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled” under ah employee welfare or benefit plan. 29 U.S.C. § 1140.
B. Discussion
1. Prima Facie Case
A plaintiff establishes a prima fa-cie case of unlawful termination under ERISA by showing that she: (1) belongs to a protected group, i.e., is an employee protected by ERISA; (2) was qualified for her position; and (3) was discharged (4) under circumstances that give rise to an inference of discrimination. See Dister,
The parties neglected to discuss or even mention the McDonnell Douglas framework in relation to Plaintiffs ERISA claim. However, Defendant’s arguments can be characterized as challenges to the first, third, and fourth elements of the prima facie case.
a. Plaintiffs rights under ERISA
Defendant’s severance pay plan provides that an employee is eligible for severance benefits if, inter alia, the employee “is terminated ... because of cost-cutting measures, structural changes (including outsourcing) or lack of work as determined in the discretion of the Administrator....” Plan § 2.1(a). Plaintiff contends that his discharge constitutes a cost-cutting measure or structural change, and therefore should have entitled him to benefits under the plan had he been formally, rather than constructively, discharged. See Resp. at 13.
Defendant first argues that because Plaintiff voluntarily resigned, he was not terminated and therefore would not qualify for severance pay. Mem. 17; Reply at 8. However, as discussed supra, Plaintiff has provided sufficient evidence for a reasonable factfinder to decide that Plaintiff was compelled to resign. See supra Part IV. B.l.a.
Defendant also argues that even if Plaintiff was constructively discharged, he is ineligible for benefits because constructive discharge is not listed in the Plan. Resp. at 8. This argument confuses § 510 with § 502(a)(1)(B). “An ERISA Section 502(a)(1)(B) claim is essentially the assertion of a contractual right under an employee benefit plan.” Russell v. Northrop Grumman Corp.,
b. Discharge
Defendant’s assertion that Plaintiff was not constructively discharged also challenges the third element of Plaintiffs prima facie case. However, for the reasons discussed supra in the context of the ADEA claim, Plaintiff has produced evidence from which a reasonable factfinder could determine that he was constructively discharged. See supra Part IV.B.l.a. Accordingly, Plaintiff has met his burden as to the discharge element of the prima facie case.
c. Intent
Finally, Plaintiff has met his de minimis burden of showing that Defendant specifically intended to interfere with his severance benefits rights. Plaintiff has alleged that, by constructively rather than formally discharging him, Defendant avoided paying - him severance -benefits. Resp. at 13-14. He has also alleged that Defendant’s agents avoided meeting with him to discuss his job situation, see supra Part IV.B.3.C, creating a possible inference that Defendant deliberately sought to keep Plaintiff unaware that, by resigning, he would forfeit his severance pay rights.
In the context of Plaintiffs ADEA claim, Defendant maintains that because Plaintiff retired voluntarily, and therefore was not constructively discharged, Defendant “is not required to offer a legitimate business reason.” Reply at 6. Although Defendant does not articulate its ERISA arguments in terms of the McDonnell Douglas analysis, it appears to similarly rely on its argument that no constructive discharge occurred and therefore refrains from articulating a legitimate reason for its actions. See generally 7-10. Accordingly, Defendant has not rebutted Plaintiffs ERISA § 510 prima facie case, and is not entitled to summary judgment on this claim.
VI. BREACH OF CONTRACT
Plaintiff also alleges that Defendant’s failure to provide severance benefits breached its contract with him. Compl. ¶ 32. Defendant argues that ERISA preempts this claim. Mem. at 21-24; Reply at 8-9.
A. Legal Standard
ERISA § 514 provides that ERISA’s provisions “supersede any and all State laws insofar as they ... relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc.,
B. Discussion
Plaintiffs breach of contract claim clearly “relates to” the Plan and is therefore preempted by ERISA. See Paneccasio,
Although, as discussed supra, Plaintiff’s § 510 claim survives the Motion, see supra Part V, a § 502(a)(1)(B) claim would fail. Before bringing an ERISA action for benefits in federal court, a plaintiff must exhaust any administrative remedies provided by the relevant plan. See Burke v. PriceWaterHouseCoopers LLP Long Term Disability Plan,
VII. ATTORNEYS’ FEES
The Complaint includes two causes of action, for attorneys’ fees. Compl. ¶¶ 35-38. However, the Complaint does not cite the correct statutory provisions for fees under the ADEA and ERISA, see id., and Defendant has moved for summary judgment on this basis, Mem. at 24-25. Plaintiff has therefore cross-moved to amend the Complaint to cite the correct statutory provisions. Cross-Mot.; Dkt. No. 31-1 ¶¶ 35-38.
Pursuant to Federal Rule of Civil Procedure 15(a)(1) a party may, within certain defined time periods, amend a pleading as a matter of course. If amendment as a matter of course is not permitted, a pleading may be amended only if the opposing party consents in writing or the court grants leave. See Fed. R. Civ. P. 15(a)(2). Generally, a court “should freely give leave when justice so requires.” Id. However, Federal Rule of Civil Procedure 16(b)(3)(A) requires the issuance of scheduling orders that “must limit the time to ... amend the pleadings.” Such scheduling orders “may be modified only for good cause.” Fed. R. Civ. P. 16(b)(4). Thus, when a motion to amend is made after a scheduling order’s deadline for doing so has expired, “the lenient standard under Rule 15(a) ... must be balanced against ... Rule 16(b).” Grochowski v. Phoenix Constr.,
Here, although Plaintiff filed his Cross-Motion after the pleading amendment deadline, see Dkt. No. 14, there is good cause to grant it. Plaintiff does not seek to allege any new facts or claims; the amendment merely corrects a technical error in response to Defendant’s Motion. Furthermore, because the Complaint gave Defendant sufficient notice that Plaintiff is seeking attorneys’ fees, see Compl. ¶¶ 36, 38, the amendment will not cause prejudice. Plaintiffs Cross-Motion is therefore granted.
VIII. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion (Dkt. No. 24) for summary judgment is GRANTED in part and DENIED in part; and it is further
ORDERED, that Defendant’s Motion (Dkt. No. 24) for summary judgment is GRANTED as to Plaintiffs breach of contract claim. Defendant’s Motion (Dkt. No.
ORDERED, that Plaintiffs Cross-Motion (Dkt. No. 31) to amend the Complaint is GRANTED. Plaintiff shall, within fourteen (14) days of the date of this Memorandum-Decision and Order, file and serve the signed amended pleading in accordance with the Local Rules; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Notes
. Multi-Dwelling Unit means a property containing multiple residential units, such as an apartment building. Dkt No. 26 at 17:14-20.
. Defendant maintains that Plaintiff was always employed in the DSR position, including during 2005 to 2010. SMF ¶ 5.
.Defendant also maintains anti-discrimination policies which prohibit unlawful discrimination and harassment based on age. SMF ¶ 4. Plaintiff received a copy of both the anti-discrimination and open door policies during his employment. SMF ¶ 4; Resp. ¶ 4.
. To satisfy the intent element of an ADEA prima facie case, a plaintiff does not need to show that he was replaced by an employee outside the protected class. O'Connor v. Consol. Coin Caterers Corp.,
. In his Complaint, Plaintiff also alleged that Edwards and most co-employees referred to him as "grandpa.” Compl. ¶¶ 15-16. Plaintiff subsequently admitted that he told others to use that nickname and did not consider it discriminatory. Resp. SMF ¶ 33. While this admission may render the use of the grandpa appellation less offensive, it does not make it irrelevant. That Defendant allowed and encouraged the continued use of such a term, even at the behest of Plaintiff, might be deemed relevant in determining whether Plaintiff was constructively discharged because of his age. See Tomassi v. Insignia Fin. Grp., Inc.,
. This affirmative defense was set forth in Faragher v. City of Boca Raton,
. Several other districts courts have applied the defense to ADEA claims. See, e.g., Stofsky v. Pawling Cent. Sch. Dist.,
. In its Answer, Defendant pleaded that “Plaintiff has failed to mitigate his damages.” Answer ¶ 46. At least one Court of Appeals has found a general failure to mitigate damages defense to include Faragher/Ellerth. Howard v. City of Robertsdale,
A plaintiff whose employment has been terminated or reduced by unlawful discrimination is entitled to back pay, see 29 U.S.C. § 626(b); 29 U.S.C. § 216(b), subject to the plaintiff's duty to mitigate damages from unemployment by using "reasonable diligence in finding other suitable employment,” Ford Motor Co. v. E.E.O.C.,
On the other hand, in a hostile work environment action, lost wages and back pay are unavailable absent a constructive discharge or hostile work environment so severe that it causes a plaintiff to miss work. See, e.g., Betts v. Costco Wholesale Corp.,
In sum, even if a hostile work environment plaintiff could reasonably be expected to interpret a failure to mitigate damages defense as an invocation of Faragher/Ellerth, the same cannot be said of a constructive discharge plaintiff.
. Defendant asserts that if its Motion is denied, it can move to amend its answer to raise the defense. Reply at 6 n. 2. Although leave to amend a pleading should be given freely when justice so requires, Fed. R. Civ. P. 15(a)(2), it is appropriate for leave to be denied where the proposed amendment would cause undue delay or prejudice to the opposing party. Foman v. Davis,
. In support of its Faragher/Ellerth argument, Defendant states that Plaintiff never complained of "age discrimination.” Mem. at 15. Defendant may be confusing Faragher/Ellerth with the standard for engaging in protected activity under a retaliation claim. See Ramos v. City of New York, No. 96 CIV. 3787,
. Plaintiff's deposition testimony creates further fact questions as to whether he took reasonable steps to express his concerns to HR, and whether Defendant’s complaint procedures were adequate. When questioned why he did not inquire further regarding his benefits during the April 14 meeting with an HR representative, Plaintiff explained that that particular HR representative was known to be dealing with serious personal problems. Specifically, her husband had been in an accident and required care twelve hours a day, and she needed to support her two minor children. Wilkins Dep. at 116:20-25, 120:10-17. Plaintiff appears to have been embarrassed to raise his comparatively less serious life problems with this particular HR representative. See id. In light of Plaintiff’s claim that this was his only meeting with HR regarding his retirement, a reasonable factfinder could determine that Defendant’s failure to provide a more formal, impersonal HR meeting was unreasonable, and that Plaintiff's failure to more forcefully raise his concerns at this meeting was reasonable.
. The Complaint alleges that Defendant "forced [Plaintiff] to retire and is now refusing to provide him with the severance package due to a person laid off, through no fault of his own, by Defendant,” and that "Defendant has violated Plaintiff’s rights by not providing him the severance package he earned with his twenty-seven years of service.” Compl. at 1, ¶ 24. The Fourth Cause of Action alleges that "Defendant violated ERISA by not providing Plaintiff the severance package offered in its handbook due to his age.” Compl. ¶ 34. In its Memorandum, Defendant treated this claim as one brought under ERISA § 502(a)(1)(B), which provides a cause of action "to recover benefits due” to a participant under the terms of the applicable benefits plan. Mem. at 18 (citing 29 U.S.C. § 1132(a)(1)(B)). Defendant argues that the Complaint did not plead a § 510 claim, and that Plaintiff first invoked § 510 in his Response. Reply at 7. Federal Rule of Civil Procedure 8(a)(2) requires that a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2) does not require a plaintiff to "pin [his] claim to a precise legal theory,” nor to provide "an exposition of his legal argument.” Skinner v. Switzer,-U.S. -,
. Defendant also argues that Plaintiffs ADEA claim contradicts his assertion that he should have received severance pay. Mem. at 21; Reply at 7. Even if Defendant did terminate Plaintiff because of his age, Defendant argues, termination for age does not entitle an employee to severance under the Plan. See Mem. at 21; Reply at 7. However, the relevant inquiry for a § 510 claim is not whether Plaintiff was entitled to benefits under the Plan's terms, but whether Plaintiff could have become entitled to severance benefits absent interference by Defendant. See Russell,
. Factual determinations as to intent are inappropriate on summary judgment, and whether Plaintiff suffered adverse action because of his age or his severance benefits rights remains a question for the factfinder. However, because Defendant has implied that Plaintiff’s ERISA claim is inconsistent with his ADEA claim, see, e.g., Mem. at 21, the Court notes that, as a matter of law, nothing precludes Plaintiff from succeeding on both his ADEA and ERISA claims. To succeed on his ADEA claim, Plaintiff must prove that age was the "but-for” cause of his constructive discharge, i.e., that he would not have been constructively discharged absent age-based animus. See Gross,