Case Information
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
BRUCE WILLIAMS,
Plaintiff, v. 5:19-CV-0557
(GTS/ATB) PMA COMPANIES, INC.; PMA MANAGEMENT
CORP.; PMA MANAGEMENT CORP OF NEW
ENGLAND; and JAMES WALSH,
Defendants.
__________________________________________
APPEARANCES: OF COUNSEL: THE LAW OFFICES OF WYATT TIMOTHY J. BROCK, ESQ. & ASSOCIATES, PLLC TREVOR BRICE, ESQ.
Counsel for Plaintiff BENJAMIN J. WYATT, ESQ. 17 Elm Street Suite C211
Keene, NH 0341
BOND, SCHOENECK & KING, PLLC ROBERT A. LaBERGE, ESQ. Counsel for Defendants ADAM P. MASTROLEO, ESQ. One Lincoln Center
Syracuse, NY 13202
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed by Bruce Williams (“Plaintiff”) against PMA Companies, Inc. (“PMA”), PMA Management Corporation (“PMAMC”), PMA Management Corporation of New England (“PMAMCNE”), and James Walsh (collectively “Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 32.) For the reasons set forth below, Defendants’ motion is granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff’s Claims
Generally, in his Complaint, Plaintiff asserts four claims: (1) a claim that all Defendants discriminated against him based on his age in violation of New York State Human Rights Law Section 296; (2) a claim that Defendants PMA, PMAMC, and PMAMCNE (collectively “the PMA Company Defendants”) discriminated against him based on his age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et. seq.; (3) a claim that all Defendants retaliated against him in violation of New York State Human Rights Law Section 296, in that the PMA Company Defendants unlawfully coerced, intimidated and threatened him, and/or interfered with his exercise of enjoyment of his rights by subjecting him to adverse actions including termination of his employment, and that Defendant Walsh aided, abetted, incited, coerced, and/or compelled such retaliatory or discriminatory conduct; and (4) a claim that the PMA Company Defendants retaliated against him in violation of the ADEA, 29 U.S.C. § 621 et. seq. (Dkt. No. 1 [Pl.’s Compl.].)
B. Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported with accurate citations by Defendants in their Statement of Material Facts and expressly admitted or denied without appropriate record citations by Plaintiff, in his response thereto. ( Compare Dkt. No. 32, Attach. 8 [Defs.’ Rule 56.1 Statement] with Dkt. No. 44, Attach 2 [Pl.’s Rule 56.1 Resp.].)
1. PMAMC and PMAMCNE are third-party administrators which provide claims administration and risk management services for self-insured clients, unbundled clients and self- insured groups in the areas of workers' compensation, commercial auto, commercial property, and general liability.
2. PMAMC has offices across the United States. Its largest claims office is located in DeWitt, New York, where PMAMC has more than 89 employees (the “DeWitt Office”).
3. Plaintiff was hired by PMAMC in March 2003 to serve as a Client Services Manager in the claims area.
4. In May 2008, Plaintiff was promoted to the position of Assistant Vice President of
Claims and assumed responsibility for managing the DeWitt Office.
5. In June 2009, PMA purchased a small third-party administrator located in Wallingford, Connecticut. Shortly thereafter, PMAMCNE was formed. Plaintiff subsequently was asked to manage that office as well and received a correspondingly substantial salary increase.
6. Even after Plaintiff assumed these additional responsibilities in New England, and at all times during his employment, Plaintiff's principal work location and his primary responsibility continued to be the DeWitt Office.
7. In 2018, PMA, PMAMC and PMAMCNE had a procedure for requesting and approving work-from-home arrangements. That procedure had three steps.
8. First, an employee who wanted to work from home would initiate the request with his or her supervisor. Second, if the supervisor was supportive of the request, he or she would submit the request to Human Resources. Third, and finally, Senior Vice President of Human Resources and Facilities for PMA, Andrew McGill, would consider and approve or deny the request. This procedure required the completion of a written form that was ultimately submitted to Human Resources.
9. According to PMA’s Employee Handbook, “All remote work location requests must be approved, in advance, by the Senior Vice President, Human Resources and Facilities Management.”
10. Todd Jacobson, who at the relevant time was the Assistant Vice President of Claims for the Midwest region for PMAMC, did not work remotely in 2018 or at any time relevant to this lawsuit. [1]
11. In 2018 and at all times relevant to this lawsuit, Michelle James was not employed by PMAMC or PMAMCNE.
12. Rather, Ms. James is employed by Pennsylvania Manufacturers' Association Insurance Company, which is a different company than PMAMC or PMAMCNE with different leadership.
13. Ms. James was permitted to work remotely, and her home is located within the area of her responsibility.
14. Ms. James’ work-from-home arrangement was warranted based on extenuating personal circumstances.
15. Plaintiff has no firsthand knowledge of Ms. James or Linda Rice’s working arrangements or the basis of those arrangements.
16. Plaintiff and his wife purchased a home in Myrtle Beach, South Carolina, in June 2018. This was at the same time that Plaintiff's wife stopped working at her job as a preschool teacher in North Syracuse, New York.
17. At some point during the summer of 2018, Plaintiff asked Defendant Walsh for permission to perform at least some of his Assistant Vice President responsibilities (located in New York and New England) remotely.
18. In considering Plaintiff's request, Defendant Walsh spoke to his boss, Frank Altiere.
19. Mr. Altiere immediately informed Defendant Walsh that he was not in favor of the request, explaining his philosophy that the leaders of the organization needed to be present and visible in the office and should be able to walk around an office and meet with their teams.
20. Mr. Altiere was also concerned about PMAMC’s operation in New York at that particular time due to issues with the performance of the offices under Plaintiff’s control.
21. In particular, Mr. Altiere was concerned about unnecessary fines and turnover in the office, as well as about an issue in which Plaintiff was insubordinate by refusing to follow a directive from Defendant Walsh in 2017.
22. In accordance with PMA's established procedure, Defendant Walsh also spoke to Mr. McGill about Plaintiff's remote-work request.
23. Mr. McGill had the final say over whether any remote-work request would be granted.
24. Mr. McGill likewise was not in favor of Plaintiff’s remote-work request. 25. Following Defendant Walsh’s discussions with Mr. Altiere and Mr. McGill, Plaintiff’s remote-work request was not approved.
26. On Tuesday and Wednesday, August 28 and 29, 2018, PMAMC held an off-site strategic planning meeting at Normandy Farm Hotel and Conference Center in Blue Bell, Pennsylvania.
27. In attendance were most of PMAMC's senior leadership team, including Plaintiff, Mr. Walsh, and Mr. Altiere.
28. On the morning of Wednesday, August 28, Plaintiff and Mr. Walsh spoke about Plaintiff's remote-work request before the start of the meeting.
29. After Plaintiff was informed that the request would not be approved, a heated discussion ensued.
30. Mr. Walsh stated that he understood from this conversation that Plaintiff was resigning his employment and providing his two weeks’ notice. [2]
31. Defendant Walsh immediately advised Mr. Altiere, who was also at this offsite meeting, that Plaintiff had become upset and had resigned.
32. Defendant Walsh also immediately reported this incident by telephone to PMA Human Resources Manager, Christine Kilgarriff.
33. Ms. Kilgarriff, in turn, immediately reported Plaintiff's resignation to Mr. McGill [2] Although Plaintiff disputes this fact, the Court notes that the fact states Defendant Walsh’s subjective understanding, and it does not state that Plaintiff in fact resigned from his position.
by contemporaneous email at 8:24 a.m., stating that Plaintiff “ended up quitting and said that he would work only until September 15th after learning that his remote work request was denied.”
34. The next day (Wednesday, August 29), Mr. McGill spoke to Plaintiff by telephone.
35. Mr. McGill took contemporaneous notes during this conversation.
36. Mr. McGill stated that he understood from this conversation that Plaintiff was resigning his employment. [3]
37. Neither Mr. McGill, nor Defendant Walsh, ever told Plaintiff he was being “fired”
or “terminated” during any of their discussions with him on or after August 28, 2021.
38. Mr. McGill felt that the length of Plaintiff’s transition period should be kept to a minimum.
39. Mr. McGill thereafter consulted Defendant Walsh, John Santulli (President and Chief Operations Officer of the PMA Companies), Vincent Donnelly (PMA Companies' Chief Executive Officer), and Mr. Altiere about the length of Plaintiff's transition period.
40. Mr. Santulli is 66 years old, Mr. Donnelly is 68 years old, and Mr. Altiere is 65 years old.
41. It was determined as a result of these discussions that the end date of Plaintiff’s transition period would be September 21.
42. This decision was made no later than the close of business on Thursday, August 30. [4]
43. Accordingly, at Mr. McGill’s request, Ms. Kilgarriff finalized and submitted human resources paperwork, confirming that Plaintiff’s pay would continue through September 21, 2018, his official last day of employment.
44. On Friday, August 31, 2018, Defendant Walsh called Plaintiff to discuss the transition of his duties and to advise him of the end date of this transition period.
45. After Defendant Walsh had informed Plaintiff that September 21 would be his last day, Plaintiff stated he believed he was being treated differently because of his age.
46. Plaintiff also stated during this call that he was not “voluntarily” resigning from his position with PMAMC.
47. Defendant Walsh immediately contacted Human Resources to report that Plaintiff had made this assertion about age discrimination during their telephone conversation.
48. After receiving this allegation of discrimination, Ms. Kilgarriff and Kyleen Hastie, another member of the Human Resources Department, reached out to Plaintiff the following week to obtain information about his allegation.
49. During a telephone call on Thursday, September 6, 2018, Plaintiff confirmed that he had said to Defendant Walsh during their telephone call on August 31 that he believed that he had been treated differently because of his age.
50. Ms. Kilgarriff and Ms. Hastie took contemporaneous notes during this conversation.
51. Within two weeks of Plaintiff’s last day of employment with Defendants, he began working for Superior Medical Consulting, where he has continued working to the present.
52. Plaintiff’s new position is fully remote.
53. Plaintiff traveled to Myrtle Beach on September 29, 2018.
54. Plaintiff spent four weeks in Myrtle beach, from September 29, 2018, through the end of 2018.
55. Plaintiff spent four months at his home in Myrtle Beach in 2019 following his separation from PMAMC.
56. Plaintiff listed his home in New York for sale on September 20, 2018, prior to the end date of his employment with PMAMC and PMAMCNE.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, is assumed in this Decision and Order, which is intended primarily for the review of the parties.
C. Parties’ Briefing on the Defendants’ Motion for Summary Judgment Generally, in support of their motion for summary judgment, Defendants assert the following three arguments: (1) Plaintiff’s arguments concerning the denial of his remote-work request fail as a matter of both law and fact in that (a) the denial of his remote-work request was not an “adverse employment action,” (b) the denial of his remote-work request did not occur under “circumstances giving rise to an inference of discrimination” in that he has failed to identify a similarly situated comparator, and (c) he cannot show that his remote-work request would have been granted “but for” his age; (2) Plaintiff’s arguments concerning his separation from employment fail as a matter of both law and fact in that (a) the competent evidence confirms that he resigned from employment on August 28, 2018, (b) irrespective of whether his resignation is perceived as “voluntary” or “involuntary,” he cannot establish a prima facie case of age discrimination or retaliation because of his lack of evidence establishing that his working conditions were “so intolerable, difficult, or unpleasant” that “a reasonable person would have felt compelled to resign,” and Defendants did not change any of Plaintiff’s working conditions, much less change them in a deliberate manner designed to force him to resign, (c) Plaintiff’s retaliation claim must be dismissed because his allegedly protected activity occurred after the challenged employment action took place, and (d) he cannot sustain his ultimate burden of proof establishing that “but for” his age and/or alleged protected activity, that his employment would not have ended on September 21, 2018; and (3) Plaintiff’s claims against Defendant Walsh should be dismissed in that (a) the record evidence confirms that Defendant Walsh did not have the authority to implement either of the challenged employment decisions in this case, and (b) Plaintiff has failed to show that Defendant Walsh has any individual liability under New York State law as an “aider and abettor.” ( See generally Dkt. No. 32, Attach. 9.)
Generally, in opposition to Defendants’ motion, Plaintiff asserts the following three arguments: (1) he has put forward sufficient facts for a reasonable jury to conclude that he was discriminatorily subjected to adverse actions due to his age because (a) he was subjected to a harassing and hostile work environment in the form of rumors and Defendant Walsh’s verbal harassment on August 28, 2018, (b) he was denied an employment benefit (i.e., remote work) that was provided to multiple younger colleagues, (c) he was terminated because Defendant had no good-faith basis to believe that Plaintiff resigned, and, even if Defendant Walsh was not the final decisionmaker in Plaintiff’s termination, Defendants are still liable under a “cat’s paw” theory of liability, and (d) in the alternative, even if Defendants’ false assertion that Plaintiff resigned were taken as true, then Defendants should have permitted him to rescind his resignation due to Defendants’ normal practice of permitting satisfactory employees to rescind their resignation; (2) whether Plaintiff was terminated is a factual dispute that a jury must decide and therefore summary judgment is inappropriate; and (3) Plaintiff was retaliated against, including being terminated, for engaging in a protected activity through (a) raising protected concerns in the conversation in which he first requested to work remotely, (b) further raising age-discrimination concerns on August 28, 2018, after Defendant Walsh denied Plaintiff’s work request and a verbal altercation ensued, (c) expressing protected-discrimination concerns to Mr. McGill when he refused to discuss his concerns and instructed Plaintiff not to report to work, (d) expressing protected-discrimination concerns to Defendant Walsh on August 31, 2018, and (e) expressing protected-discrimination concerns to Ms. Hastie and Ms. Kilgarriff on September 6, 2018. ( See generally Dkt. No. 34, Attach. 1.)
Generally, in reply to Plaintiff’s opposition, Defendants repeat the following three arguments asserted in their memorandum of law: (1) Plaintiff did not suffer an “adverse employment action” sufficient to support a claim of age discrimination; (2) Plaintiff failed to show that, “but for” his age or alleged protected activity, his request to work remotely would have been granted and his opposition arguments ignore and utterly fail to satisfy his burden; and (3) Plaintiff failed to show that “but for” his age or allegedly protected activity, his employment would not have ended on September 21, 2018. ( See generally Dkt. No. 35, Attach. 1.) II. RELEVANT LEGAL STANDARDS
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant].”
Anderson v.
Liberty Lobby, Inc.
,
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant.
Anderson
,
[5]
As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.”
Kerzer v. Kingly Mfg.
,
[6] Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching number paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute. Of course, when
a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there
has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted
automatically.”
Champion v. Artuz
,
For these reasons, this Court has often enforced Local Rule 56.1 (previously Local Rule 7.1[a][3]) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement. [7]
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).
[8]
Stated another way, when a non-movant fails to oppose a legal argument
[7]
Cusamano
,
[8]
See
,
e.g.
,
Beers v. GMC
, 97-CV-0482,
III. ANALYSIS
A. Plaintiff’s Federal Law Claims
1. Plaintiff’s ADEA Discrimination Claim After careful consideration, the Court finds that Defendants’ motion on Plaintiff’s ADEA discrimination claim should be granted for the reasons stated in Defendants’ memoranda of law. See, supra , Part I.C. of this Decision and Order. To those reasons, the Court adds the following analysis.
The ADEA makes it “unlawful for an employer . . . to discharge any individual . . .
because of such individual’s age.” 29 U.S.C. § 623(a). To establish a
prima facie
case of age
discrimination, the plaintiff must show four things: (1) that he was within the protected age
group; (2) that he was qualified for his position; (3) that he experienced an adverse employment
action; and (4) that the action “occurred under circumstances giving rise to an inference of
0745,
Defendants do not appear to dispute that Plaintiff has shown the first two of these elements. The undisputed evidence indicates that Plaintiff was born in 1956 and was thus 62 years old at the date of the actions relevant to his claims. (Dkt. No. 32, Attach. 7, at 14 [Pl.’s Dep.].) There is also no indication in the admissible evidence presented that Plaintiff was not qualified for his position, nor have Defendants made any assertion of that nature. As a result, the only two factors in contention are (a) whether Plaintiff experienced an adverse employment action, and (b) whether any such actions occurred under circumstances giving rise to an inference of discrimination.
a.
Adverse Employment Action
“An actionable adverse employment action is a ‘materially adverse change in the terms
and conditions of employment.’”
Kairam v. West Side GI, LLC
,
As to Defendants’ denial of Plaintiff’s request for remote work, such denial is not an
adverse employment action because it did not change the terms and conditions of Plaintiff’s
employment; it merely required him to continue to work from the DeWitt office (and travel to
the other offices) as he had been doing.
See Dowrich-Weeks v. Cooper Square Realty, Inc.
, 535
F. App’x 9, 11-12 (2d Cir. 2013) (finding that a denial of the ability to “take advantage of an
alternative work schedule that allowed periodic work from home” was not an adverse
employment action);
Wheeler v. Bank of New York Mellon
, 16-CV-1176,
To the extent that Plaintiff argues he was somehow denied a guaranteed condition of his employment because the employment handbook contains a procedure for allowing employees to work from home, that argument is baseless. The fact that Defendants, in their discretion, might require or allow some employees to work remotely does not make the ability to work remotely a condition of Plaintiff’s employment. Of particular note, nothing in the handbook provision indicates that the ability to work remotely is a “benefit” of Plaintiff’s employment as he asserts; rather, the provision is clear that the ability to work remotely is at the sole discretion of Defendants. (Dkt. No. 32, Attach. 2, at 11 [stating that “PMA reserves the sole right to determine what positions and/or employees may be required to work from a remote location,” that employees must submit a request for remote work to their manager that must be approved by the Senior Vice President, Human Resources and Facilities Management, and that “[w]orking remotely, whether necessitated by a business need or at the voluntary request of an employee may be rescinded at any time and is solely the discretion of PMA”].)
As to the alleged termination of Plaintiff’s employment, it is well established that
termination is an adverse employment action.
Kairam
,
As to Plaintiff’s argument that Defendants subjected him to a hostile work environment,
the Court finds this argument unpersuasive. To the extent that the creation of a hostile work
environment can be considered an adverse employment action for the purposes of a disparate
impact claim,
[9]
a plaintiff must show that “the complained-of ‘misconduct in the workplace was
so severe as to alter the terms and conditions of the plaintiff’s employment.’”
Paul v.
Postgraduate Ctr. for Mental Health
,
Plaintiff argues that Defendants created a hostile work environment through the following actions: (a) Defendant Walsh asked him his age and how long he planned to continue working at the time Plaintiff made his request for remote work; (b) Defendant Walsh spread false rumors that his request to work remotely was so that he could live in his “supposed retirement home”; (c) Defendant Walsh and other supervisors “strung [him] along for months about his remote work request and [gave him] indications that the remote request would be granted”; (d) Defendant Walsh became very angry, yelled at and insulted Plaintiff, and ordered him to leave the meeting on August 28, 2018; and (e) Defendants revoked his email access on August 28, 2018, after the meeting and he was told to stay home and was not permitted to report to work after that date. (Dkt. No. 34, Attach. 1, at 11-12 [Pl.’s Opp’n Mem. of Law].) Such facts (many of which are disputed) are insufficient for a reasonable factfinder to conclude that Plaintiff was subjected to a hostile work environment.
Notably, although revoking email access and preventing Plaintiff from reporting to work
certainly alter the conditions of his employment and interfere with his job performance,
undisputed evidence shows that a termination form was submitted for Plaintiff, effective on
August 28, 2018 (although it was noted that Plaintiff should be paid through September 21,
2018). (Dkt. No. 32, Attach. 4, at 2, 7.) Although it is disputed when Plaintiff became aware of
the fact that he would no longer be employed by Defendants, the admissible evidence shows that
the decision to end Plaintiff’s employment (whether because he was fired or because he
resigned) was made by August 30, 2018. (Dkt. No. 32, Attach. 2, at 15.) With that in mind, a
single age-related comment, rumors by Defendant Walsh that Plaintiff wanted to work from his
“retirement home,” the fact that he had to wait for a response on his remote-work request, and a
single instance of being yelled at or insulted (without any evidence of a physical altercation,
threat of physical violence, or even the specifics of what “insults” were made) do not rise to
level of the conduct that has been found to be sufficient to constitute a hostile work environment.
See Chukwuka v. City of New York
,
As to Plaintiff’s alternative argument that, even if he was not terminated by Defendants,
he was constructively discharged, the Court finds that, accepting all of Plaintiff’s evidence, a
reasonable factfinder could conclude that he was constructively discharged. “An employee is
constructively discharged when his employer, rather than discharging him directly, intentionally
creates a work atmosphere so intolerable that he is forced to quit involuntarily.”
Rother v. NYS
Dep’t of Corrs. and Community Supervision
,
However, as noted previously, undisputed evidence shows that Plaintiff’s employment
was internally terminated by Defendants effective August 28, 2018, and that such decision was
made by August 30, 2018. (Dkt. No. 32, Attach. 4, at 2, 7.) Because Plaintiff was either
terminated or resigned by that date, Defendants’ actions following that date are irrelevant to the
inquiry.
Rother
,
However, there is a genuine dispute of material fact as to whether Plaintiff resigned at all. A reasonable factfinder could conclude that Plaintiff was essentially forced to resign by Defendant Walsh’s conduct if, as Plaintiff argues, Defendant Walsh fabricated a rumor that Plaintiff had resigned, and then spread that rumor to Mr. Altiere and Ms. Kilgarriff (who in turn forwarded that rumor to Mr. McGill), such that, only a few days later, the decision to end Plaintiff’s employment was made effective; [10] reasonable employees facing such a situation would be hard-pressed to expect that they could continue working when their employer has already made the decision to end their employment. As a result, there is a genuine dispute of material fact as to whether Plaintiff was constructively discharged.
Lastly, Plaintiff argues that, even if he were to be found to have voluntarily resigned, it
was an adverse action for Defendants to fail to allow him to rescind his resignation. The only
authority Plaintiff cites for this proposition is an out-of-circuit Circuit-court case.
[11]
However,
multiple district courts within the Second Circuit have found that a defendant’s refusal to rescind
a plaintiff’s voluntary resignation does not constitute an adverse employment action in a
discrimination case.
Haggerty v. Kaycan, Ltd.
, 19-CV-0507,
In sum, as to Plaintiff’s discrimination claim, there is at least a genuine dispute of material fact as to whether he can show the existence of an adverse action based on termination or constructive discharge, as well as a genuine dispute of material fact as to whether Plaintiff’s employment was in fact terminated as opposed to him having resigned.
committee for the fulltime position).
[11] The Court notes that this case was related to a retaliation claim, not a discrimination
claim, and, as will be discussed later in this Decision and Order, the standard for what constitutes
an adverse employment action under retaliation claims is different than the standard for
discrimination claims. Additionally, this case does not stand for the proposition that recission of
a resignation will always be an adverse employment action, but rather that it depends on the
specific facts of the case and whether the failure to accept the recission was retaliatory.
Porter v.
Houma Terrebonne Housing Auth. Bd. Of Comm’rs
,
b. Inference of Discrimination However, even if genuine disputes of material fact exist as to whether Plaintiff suffered an adverse action, the Court finds that summary judgment must be granted on Plaintiff’s discrimination claim because he has not shown that any such adverse action creates an inference of discrimination under the circumstances.
“A plaintiff can raise an inference of age discrimination by showing that [he] (1) was
similarly situated to other younger employees, and (2) was treated less favorably than those
employees.”
Ehrbar v. Forest Hills Hosp.
,
Here, Plaintiff alleges that younger employees were permitted to work remotely, while
his request to work remotely was denied. However, as discussed above, the Court finds that the
denial of an ability to work remotely was not an adverse action because it did not change the
terms and conditions of his employment or deny him any benefit. As a result, whether or not
Plaintiff was treated differently with respect to the denial of his remote work request, such
treatment cannot constitute an inference of discrimination to support his claim because it must be
the
adverse employment action
that “occurred under circumstances giving rise to an inference of
discrimination.”
Lively
,
“Stray age-related remarks are insufficient to raise an inference of discriminatory motive
unless they ‘(1) [were] made repeatedly, (2) drew a direct link between [discriminatory]
stereotypes and the adverse employment decision, and (3) were made by supervisors who played
a substantial role in the decision to terminate.’”
Lively
,
told at least Mr. Altiere that Plaintiff was purchasing a home that Plaintiff planned to retire to,
such comment does not suggest that any of Defendants’ actions were motivated by age-related
discriminatory animus; indeed, there is no evidence that such comment indicated to Mr. Altiere
that Plaintiff was intending to retire in the near future, merely that he was purchasing a home he
was planning to live in when he retired. There is also no evidence to support Plaintiff’s
subjective belief that Defendant Walsh was spreading rumors of Plaintiff’s impending
retirement, given that, as already noted, there is no evidence he mentioned anything about
Plaintiff retiring to anyone but Mr. Altiere in the comment noted above. Plaintiff has failed to
show that these two comments were anything more than isolated remarks, and thus they do not
rise to the level of creating an inference of discrimination based on age.
See Chowdhury v.
Sadovnik
, 17-CV-2613,
Additionally, Plaintiff alleges in his Complaint that he was replaced by an individual who
was more than five years younger than him. (Dkt. No. 1, at ¶ 101; Dkt. No. 34, Attach. 1, at 9
[Pl.’s Opp’n Mem. of Law].) John Santulli testified at his deposition that, following Plaintiff’s
departure, his position was first temporarily filled by Defendant Walsh and then “split up” into
two director/manager-level positions, one for Syracuse and one for Wallingford. (Dkt. No. 34,
Attach. 4, at 116 [Santulli Dep.].) Defendant Walsh affirmed that he replaced Plaintiff such that
“[a]ll of his management team reported directly to [Defendant Walsh]” until changes to the
regions were made “some months after [Plaintiff’s] departure, and Todd Gancarz was made the
Director of Claims for the White Plains and Syracuse offices, while David Alofs was made the
Director of Operations Claims for the New England office. (Dkt. No. 32, Attach. 7, at 262-66
[Walsh Dep.].) Defendant Walsh also testified that, at some point he did not recall exactly, Mr.
Gancarz was promoted to Plaintiff’s old position.
[13]
(
Id.
at 267.) However, even assuming that
Mr. Gancarz eventually fully replaced Plaintiff, the evidence is insufficient to create an inference
of discrimination. Under the law of the Second Circuit, an employer’s knowledge that there is
an age discrepancy between a discharged employee and his replacement (i.e., that the employer
knows that the replacement employee is significantly younger than the discharged employee)
can support an inference of discriminatory intent.
Woodman v. WWOR-TV, Inc.
,
Additionally, as Defendants argue, at least three factors exist in this case that undermine
any inference of age discrimination. First, Plaintiff was within the protected age class when he
was promoted to his position as Assistant Vice President.
See Bruder v. Jewish Bd. Of Family
and Children’s Services
, 10-CV-5951,
Based on the above, the Court finds that, although questions of fact exist as to the occurrence of adverse employment actions, Plaintiff has not established that a reasonable factfinder could conclude that the circumstances create an inference of discrimination, and therefore Plaintiff has not established a prima facie case for discrimination under the ADEA. The Court therefore finds that summary judgment is appropriate on this claim.
2. Plaintiff’s ADEA Retaliation Claim After careful consideration, the Court finds that Defendants’ motion on Plaintiff’s ADEA retaliation claim should be denied for the following reasons.
“The ADEA also includes an antiretaliation provision that makes it ‘unlawful for an
employer to discriminate against any of [its] employees . . . because such individual . . . has
opposed any practice made unlawful by [the ADEA].’”
Lively
,
Here, it is undisputed that, at some time before Plaintiff ceased working for Defendants, he reported to Defendant Walsh and others (such as Ms. Kilgarriff and Ms. Hastie) that he believed he was being discriminated against based on his age. As a result, the first two elements of Plaintiff’s retaliation claim are not in dispute.
a.
Adverse Employment Action
For the purposes of a retaliation claim, “an adverse employment action is any action that
‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’”
Vega
,
As an initial matter, there is a genuine dispute of material fact as to
when
Plaintiff first
reported that he felt he was being discriminated against based on his age. Plaintiff argues that he
first raised concerns to Defendant Walsh at the time he presented Defendant Walsh with his
request to work remotely that considering his age in relation to that request or insinuating he was
in the process of retiring was discriminatory based on his age; he alleges that he again raised
these concerns to Defendant Walsh on August 28, 2018, to Mr. McGill on August 29, 2018 (at
which time he told Mr. McGill he believed Defendant Walsh had discriminated against him by
bringing up his age and denying his remote work request and had retaliated against him by
harassing him in response to his raising those protected concerns), to Defendant Walsh on
August 31, 2018, and to Ms. Kilgarriff and Ms. Hastie on September 6, 2018 (at which time he
told them that he believed the denial of his remote work request and the “apparent initiative to
push me out of the Company” was due to his age). (Dkt. No. 34, Attach. 5, at ¶¶ 26-31, 39-42,
53, 64-66, 68-69 [Pl.’s Aff.].) Defendants, on the other hand, argue that the first time Plaintiff
told anyone with Defendants that he was being discriminated against because of his age was
during his conversation with Defendant Walsh on August 31, 2018. (Dkt. No. 32, Attach. 1, at
¶¶ 37, 45-46 [Walsh Decl.]; Dkt. No. 32, Attach. 4, at ¶¶ 12-13 [Kilgarriff Decl.]; Dkt. No. 32,
Attach. 5, at ¶¶ 3-4 [Hastie Decl.].) Because retaliation cannot occur before protected concerns
are communicated, there is a genuine dispute of fact as to what alleged actions would qualify as
adverse employment actions for the purposes of Plaintiff’s retaliation claim.
See James v.
Annucci
, 17-CV-0843,
Additionally, as discussed above in relation to Plaintiff’s discrimination claim, there is a genuine dispute of material fact as to whether he suffered an adverse action at all. Specifically, each side has adduced contrary admissible evidence on the issue of whether Plaintiff was fired/constructively discharged or whether he resigned. [15] Thus, multiple issues of fact must be resolved before a conclusion can be reached as to whether Plaintiff has shown that he suffered an adverse employment action for the purposes of his retaliation claim.
b.
Causal Connection
In retaliation cases, “[c]ausation can be demonstrated ‘indirectly by showing that the
protected activity was followed closely by discriminatory treatment, through other evidence such
as disparate treatment of fellow employees who engaged in similar conduct, or directly through
evidence of retaliatory animus directed against a plaintiff by the defendant.’”
Benson
, 2017 WL
11576213, at *7 (quoting
De Cintio v. Westchester Cnty. Med. Ctr.
,
In this case, the alleged termination/constructive discharge occurred soon after the
alleged protected activity. Plaintiff made his complaints of age discrimination at some point
between July 2018 (when Plaintiff asserts he made his first notification that he felt discriminated
against in conjunction with Defendant Walsh’s disputed response to his request for the ability to
work remotely) and August 31, 2018, and his termination was noted to be effective August 28,
2018, although his employment officially ended September 21, 2018. (Dkt. No. 32, Attach. 4, at
3 ¶ 10, and 7; Dkt. No. 32, Attach. 7, at 29 [Pl.’s Dep.].) Such temporal proximity is sufficient at
the
prima facie
case stage to establish that there was a causal connection between Plaintiff’s
report of discrimination and the adverse actions he suffered (again, subject to resolution of
genuine disputes of material fact related to when he made his first report of discrimination and
whether he was terminated or constructively discharged in Plaintiff’s favor).
See El Sayed v.
Hilton Hotels Corp.
,
Because the issues of fact related to whether Plaintiff suffered an adverse action make it impossible for the Court to determine whether he has established (or can establish) a prima facie case, the Court finds that summary judgment on Plaintiff’s retaliation claim under the ADEA inappropriate.
B. Plaintiff’s State Law Claims
As an initial matter, the Court notes that the standards of review for claims of
discrimination and retaliation under the NYSHRL is “virtually identical” to the standards applied
above as to Plaintiff’s federal law claims.
Langella v. Mahopac Cent. Sch. Dist.
, 18-CV-10023,
1. Plaintiff’s NYSHRL Discrimination Claim For the same reasons as discussed above in Part III.A.1. of this Decision and Order, the Court finds that Plaintiff’s claim for age discrimination under the NYSHRL must be dismissed.
2. Plaintiff’s NYSHRL Retaliation Claim For the same reasons as discussed above in Part III.A.2. of this Decision and Order, the Court finds that Plaintiff’s claim for retaliation based on age under the NYSHRL must, as a general matter, survive summary judgment.
However, in addition to seeking summary judgment on Plaintiff’s state law retaliation
claim as a general matter, Defendants also specifically seek summary judgment on the state law
claims against Defendant Walsh based on liability as an “aider and abettor” on the theory that,
even if he were not the ultimate decisionmaker in terminating Plaintiff (if it were found that
Defendants terminated him rather than that Plaintiff resigned), his improper discriminatory and
retaliatory animus caused the adverse employment action. (Dkt. No. 32, Attach. 9, at 30-31
[Defs.’ Mem. of Law].) Generally, under the NYSHRL, “an individual is properly subject to
liability for discrimination when that individual qualifies as an ‘employer,’” but a coworker who
“lacks the authority to either hire or fire the plaintiff may still be held liable as an aider-abettor
under NYSHRL § 296(6) if he actually participates in the conduct giving rise to a discrimination
claim.”
Comerford v. Vill. Of N. Syracuse
, 18-CV-1143,
Defendants’ arguments on this issue are undermined by genuine disputes of material fact that have already been identified (i.e., arguments that Defendant Walsh did not participate in any discriminatory or retaliatory conduct related to Plaintiff and did not mention Plaintiff’s age, retirement plans, or protected activity in discussions related to Plaintiff’s remote work request and his eventual separation from employment). Because Defendant Walsh’s role and actions related to the alleged retaliation (as well as the time frame of Plaintiff’s retaliation claim) is disputed, the Court declines to grant summary judgment related to the remaining NYSHRL claim against Defendant Walsh.
ACCORDINGLY , it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 32) is GRANTED in part and DENIED in part ; and it is further
ORDERED that Plaintiff’s age-discrimination claims under the ADEA and the NYSHRL are DISMISSED ; and it is further
ORDERED that SURVIVING Defendant’s motion for summary judgment are Plaintiff’s retaliation claims under the ADEA and the NYSHRL; and it is further
ORDERED that Plaintiff is directed to forward a written settlement demand to defendants no later than October 8, 2021, and the parties are directed to thereafter engage in meaningful settlement negotiations. The parties are directed to jointly file, on or before November 1, 2021 , a status report regarding their settlement discussions and if a settlement conference would be beneficial or a jury trial date should be scheduled.
Dated: September 30, 2021
Syracuse, New York
Notes
[1] Plaintiff testified at his deposition that Mr. Jacobson told Plaintiff that he was working
remotely. (Dkt. No. 32, Attach. 7, at 56-58 [Pl.’s Dep.].) However, Mr. Jacobson stated in a
declaration that he did not ever work remotely (or have approval to work remotely) during the
relevant time period. (Dkt. No. 32, Attach. 6 [Jacobson Decl.]). Because the only evidence
Plaintiff has provided to support his argument regarding Mr. Jacobson working remotely is
hearsay, and because it is clear that Plaintiff could not present that evidence in an admissible
form (given that there is no indication that the alleged conversation was recorded or written and
Mr. Jacobson himself has indicated that his testimony would be different), Plaintiff’s testimony
at his deposition does not create a genuine dispute of material fact.
See Lopez v. Mathely
, 12-
CV-1338,
[3] Although Plaintiff has identified contradictory evidence regarding his intention to resign (Dkt. No. 34, Attach. 2, at 40), he fails to dispute Mr. McGill’s interpretation of the conversation he had with Plaintiff. As indicated above in note 2 of this Decision and Order, the Court stresses that this fact does not state that Plaintiff in fact resigned from his position.
[4] Plaintiff again fails to properly dispute Defendants’ assertion. Instead, Plaintiff disputes not the termination decision, but circumstances of the termination itself. (Dkt. No. 34, Attach. 2, at 46.)
[9]
See Rother v. NYS Dep’t of Corrs. and Community Supervision
,
[10] The Court notes that, even though this theory is based solely on Defendant Walsh’s
alleged disputed conduct and Defendant Walsh was not the ultimate decisionmaker on whether
to formally end Plaintiff’s employment, courts within the Second Circuit have recognized that
some version of a “cat’s paw” theory of liability applies to discriminatory actions taken by a
non-decisionmaker.
See Holcomb.
,
[12] In any event, even if the Court were to consider these comparators, Defendants are correct that no reasonable factfinder could find that they are sufficiently similarly situated. Although Michelle James was also an Assistant Vice President of Claims, the evidence cited by Plaintiff acknowledges that the granting of her request to work remotely was related to “a specific personal situation” she had at that time, and Mr. Carney qualified that it was not true that Ms. James “worked primarily from her home.” (Dkt. No. 34, Attach. 4, at 69 [Carney Dep.]; Dkt. No. 32, Attach. 2, at ¶ 18 [McGill Decl.].) Plaintiff, on the other hand, has not shown that he had any specific personal circumstance requiring him to work from home, merely that he wished to be able to work from his home in Myrtle Beach for part of the year. As to Linda Rice, Plaintiff’s belief that she worked remotely is based on information he allegedly received from Todd Jacobson, and he believed she was also an Assistant Vice President, but he did not know if that was her actual position and he did not know what her duties were in comparison with his own. (Dkt. No. 32, Attach. 7, at 55-56 [Pl.’s Dep.].) Because Plaintiff has not provided any evidence of Ms. Rice’s duties, but merely that she was “a Vice President who managed several offices, similar to me,” he has not shown that Ms. Rice is a sufficiently similar individual for the purposes of comparison. As to Mr. Jacobson, the Court finds that Plaintiff’s argument that Mr. Jacobson worked remotely during the relevant time is unsupported by admissible evidence as discussed above in note 1 of this Decision and Order. As to Vicky Halpen and Karrie Root, Plaintiff does not dispute that both of these individuals were “Senior ACRs”, which, according to the organizational chart provided by Defendants, means they were multiple steps below Plaintiff in terms of structural responsibility and thus not reasonably comparable to Plaintiff. ( See Dkt. No. 35, at 4 [showing that ACRs and Senior ACRs are overseen by Regional Claims Supervisors, who are overseen by an Assistant Claims Manager, who is in turn overseen by the Assistant Vice President].) Lastly, as to Tara Shertenlieb, although she was hired in a Vice President position, it was as a Vice President of Marketing (not
[13] This is at odds with Defendant Walsh’s declaration, in which he states that Defendants did not hire an Assistant Vice President of Claims to replace Plaintiff, but rather “assigned several individuals to assume portions of Plaintiff’s responsibilities with differing titles.” (Dkt. No. 32, Attach. 1, at ¶¶ 49-52 [Walsh Decl.].)
[14] In his Complaint, Plaintiff alleges that he was replaced by an individual who was “more than 5 years younger than [him].” (Dkt. No. 1, at ¶ 101 [Pl.’s Compl.].) In Plaintiff’s counter- statement of material facts, he asserts that Mr. Gancarz is “more than 15 years younger than [him].” (Dkt. No. 34, Attach. 3, at 14.) However, again, there is no evidence of Mr. Gancarz’s date of birth to indicate how much younger than Plaintiff Mr. Gancarz is.
[15] The Court finds that, regardless of when Plaintiff made his first report of age
discrimination to Defendants, the denial of his request to work remotely and the refusal to allow
him to rescind his resignation (should he be found to have made one) do not constitute adverse
employment actions for many of the same reasons discussed above in Part III.A.1.a of this
Decision and Order. Specific to the retaliation standard, neither of these actions would be likely
to dissuade a reasonable worker from making a charge of discrimination. Specifically, the fact
that Defendants have allowed some employees to rescind resignations does not transform their
failure to allow Plaintiff to do so here into an actionable adverse employment action. Indeed,
Plaintiff offers no evidence to support any argument that he knew at the relevant time that
Defendants allowed employees to rescind resignations under certain circumstances, and thus he
has not shown that such past practice would have given him an expectation of being able to
rescind a resignation. Plaintiff’s reliance on
Porter
is unavailing, because Plaintiff has not
shown that there was any basis for finding that “a reasonable employee in [his] shoes might have
legitimately expected that [his] recission of resignation would be accepted.”
Porter
,