Weber v. FUJIFILM Med Sys USA Inc et al
RULING GRANTING IN PART AND DENIED IN PART re 254 MOTION for Summary Judgment filed by FUJIFILM Corp, 253 MOTION for Summary Judgment filed by FUJIFILM Holdings Amer Corp, 252 MOTION for Summary Judgment filed by FUJIFILM Med Sys USA Inc, Hiroaki Tada. Signed by Judge Janet Bond Arterton on 2/24/12. (Torday, B.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
John J. Weber,
Civil No. 3:10cv401 (JBA)
FUJIFILM Medical Systems U.S.A., Inc., Hiroaki
Tada, FUJIFILM Holdings America Corporation,
and FUJIFILM Corporation,
February 24, 2012
RULING ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
On July 21, 2010, Plaintiff John J. Weber filed a Third Amended Complaint against
FujiFilm Medical Systems U.S.A., Inc. (“FMSU”), Hiroaki Tada, FujiFilm Holdings
American Corporation (“HLUS”), FujiFilm Holdings Corporation (“FH”),1 and FujiFilm
Corporation claiming a variety of causes of action as the result of his termination from
FMSU. Defendants FMSU and Tada [Doc. # 252], HLUS [Doc. # 253], and FujiFilm
Corporation [Doc. # 254] move for summary judgment in their favor on Plaintiff’s Third
Amended Complaint. For the reasons that follow, Defendants’ motions for summary
judgment will be granted in part and denied in part.
In 1986, Mr. Weber joined Pyne Corporation as Vice–President and Chief Financial
Officer; Fuji Photo Film Co., Ltd. acquired Pyne Corporation in December 1986 and
changed its name to Fuji Medical Systems U.S.A., Inc. (Sakurai Dec. [Doc. # 252–8] ¶ 3.)
The Court dismissed [Doc. # 200] the Third Amended Complaint as to Defendant
FH on February 4, 2011 for lack of personal jurisdiction.
Fuji Medical Systems U.S.A., Inc. changed its name to FMSU in 2000. (Oakley Dec.
[Doc. # 252–12] ¶ 6.) At the time of his hiring, Mr. Weber and Pyne entered into an
Employee Agreement that provided:
Should the Company determine that the Executive’s services are no longer
required for reasons other than normal retirement, death, physical or mental
disability or cause, defined as wilful malfeasance which would tend to have
a material adverse effect on the Company, such termination shall be deemed
to be termination without cause, and the Executive shall be entitled to receive
his full base salary and any and all benefits at the rate then in effect for a
period of one year following such termination.
(Employment Agreement, Ex. H to Murphy Dec. [Doc. # 252–3] at 2.) Mr. Weber testified
during his deposition that he held various positions with FMSU, including Executive Vice
President and Senior Vice President of Operations. (Weber Dep., Ex. B to Murphy Dec. at
Hiroaki Tada, President of FMSU from April 2008 through March 2010, testified
during his deposition that at some point during his tenure he “believe[d] that we needed to
raise the level of management in the company, so therefore, in order for that to happen we
were gonna have to ask Mr. Weber to leave at sometime in the future.” (Tada Dep., Ex. C
to Murphy Dec. at 100:14–17.) Mr. Tada also testified that he understood that “there was
too much power” given to Weber in that most of the decision making was going through
only him. (Id. at 45:1–18.) Mr. Tada decided to take sales responsibility away from Weber
at an unspecified point in time because he “didn’t see that there was . . . a strategy for sales”
and was concerned about inadequacies in the collection and recording of budget and
customer data. (Id. at 82:18–83:18.) He also testified that FMSU “needed to make an
organizational change” because of concerns that “[i]t was an operation which was based on
just doing day–to–day operations based on that day’s sales and reacting to that information
that came in on that day.” (Id. at 211:6–13.)
On October 15, 2008, HLUS informed FMSU that a corporate compliance audit
would be conducted to ensure that FMSU was adhering to HLUS policies. (Audit Notice,
Ex. A to File Dec. [Doc. # 252–10].) Mr. Tada testified that the audit was performed so that
Fuji Medical Japan would be able to meet the Japanese Sarbanes–Oxley requirements. (Tada
Dep. at 264:10–15.) Mr. Weber states in his affidavit, however, that while he was “told the
purpose of the KPMG review was to assess FMSU’s compliance with the Japanese
Sarbanes–Oxley Act (“JSOX”), FMSU was not subject to JSOX and even companies subject
to it were not expected to be compliant until March 31, 2009.” (Weber Aff., Ex. 1 to Pl.’s
Loc. R. 56(a)1 Stmt. ¶ 24.)
The KPMG audit report (“Report”) found: “In general, the internal controls appear
weak and in need of significant improvements. Based on the findings, there is a lack of
effective management oversight at FMSU.” (KPMG Report, Ex. K to Murphy Dec. at 4.)
The Report additionally found that “[m]anagement at FMSU was aware of non–compliance
with certain company policies and effectively condoned the non–compliance by
non–action”; that “[t]he company is at risk of business disruption”; that “[t]he internal
control environment at FMSU appears weak and immature and in need of significant
improvements”; and that “[b]ased on the findings of this report, FMSU’s current internal
control environment will not pass the scrutiny and internal control requirements under
JSOX.” (Id. at 4–5.)
Ryutara Hosoda, President of HLUS, testified that he had “a very strong
understanding that after reading the KPMG Report there [were] managerial issues at
FMSU,” but also testified that “I haven’t said anything that it was Mr. John Weber’s fault”
and that “there is no . . . person that I could say this person is to blame.” (Hosoda Dep., Ex.
29 to Pl.’s 56(a)2 Stmt. at 137:10–138:21.) Mr. Hosoda also testified that the KPMG Report
revealed that there “were a lot of problems with [FMSU’s] operational processes” and that
Mr. Tada had the responsibility to make sure that these operational processes were
corrected. (Id. at 88:7–25.)
Mr. Tada testified that the there were “a lot of points in the KPMG audit that meshed
with the thoughts that I had about what I had witnessed in the company” including
undocumented loans made by FMSU. (Tada Dep. at 263:9–24.) After the KPMG audit, Mr.
Tada took action in response to points in the Report, including creating a “database of who
was receiving advance pay,” going through all checks written by FMSU employees, including
John Weber, before those checks went out, and lowering the limits on corporate credit cards.
(Id. at 269:1–20.) Mr. Tada also testified that after the KPMG Report, he placed Mr. Weber
in charge of “compliance issues for FMSU.” (Id. at 307:10–13.)
FMSU prepared a response to the KPMG audit Report (“Response”), which was
coordinated by Gehr Brown and contributed to by other Fuji personnel including Peter
Guyton, Steve Wobschall, Keith Roth, and Ken Ostrowsky; Mr. Weber reviewed the
response and “helped author certain pieces.”2 (Weber Dep. at 98:7–100:11.) Mr. Tada
Defendants refer to the Response as “Weber’s Response,” however nothing in the
Response indicates that it was authored or coordinated by Weber (see Response, Ex. L to
Murphy Dec.) and Weber testified that Gehr Brown coordinated its preparation (Weber
Dep. at 98:7–100:11). Mr. Tada, however, identified the Response as “comments from John
testified that upon reading the Response, “on almost all the items I remembered not being
satisfied with the answers.” (Tada Dep. at 265:22–266:2.)
FMSU acquired Empiric Systems, LLC (“Empiric”) in either October 2006 or
October 2008.3 (File Dec. ¶ 7; Pl.’s 56(a)2 Stmt. ¶ 55.) On October 1, 2009, Empiric and
FMSU filed Articles of Merger with the North Carolina Secretary of State, merging Empiric
into FMSU, with FMSU as the surviving entity; Mr. Weber signed the document as “EVP.”
(Articles of Merger, Ex. C to File Dec.) On October 14, 2009, Jonathan File sent an email to
Mr. Tada, attaching the Articles of Merger and informing Mr. Tada that he “was not aware
of the merger,” that he did not think that Empiric and FMSU had signed a plan of merger
agreement, that he did not think that the Empiric and FMSU members and directors had
approved the merger, and that Weber did not have authority to sign the document.
(10/14/2009 File E–mail, Ex. B to File Dec.) Mr. File states in his declaration that “Mr.
Weber’s unauthorized actions by signing the ‘Articles of Merger’ document violated the
Standards of Business Conduct and Compliance with Law Program.” (File Dec. ¶ 13.)
Although he could not recall exactly what provision of the standard business and ethics
policy Mr. Weber violated in executing the merger, Mr. Tada testified during his deposition
that “for a person who doesn’t have the authorization to do something where he merged two
companies into one is [a] violation.” (Tada Dep. at 310:10–311:24.)
Weber” during his deposition. (Tada Dep. at 265:13–21.)
Jonathan File, former General Counsel of HLUS, states in his affidavit that FMSU
acquired Empiric in October 2006, however Plaintiff claims in his 56(a)2 Statement that the
acquisition took place in October 2008.
On October 14, 2009, Mr. Tada e–mailed Mr. Weber, asking him to “explain the
background” of the merger. (10/14/2009 Tada E–mail, Ex. M to Murphy Dec.) In response,
Weber forwarded to Tada an e–mail from Jim Morgan, director of marketing at FMSU,
which told Weber that as part of the Empiric acquisition “the realty company wants an
official filing with the North Carolina Secretary of State that indicates Empiric LLC is now
FMSU.” (10/14/2009 Weber E–mail, Ex. N to Murphy Dec.) Mr. Weber wrote the following
to Tada: “Jim Morgan sent this to me and Rick Rohan on 9/14/09 (attached) so that we could
register the merger of FMSU and Empiric and change the name on the door to FMSU.
Apparently the merger documents have not yet been prepared or received board approval.
Not sure why I can’t sign as E.V.P. of FMSU. I spoke to Rick Roahan and he will look in to
it and clean it up. It looks like I made a mistake and jumped the gun. I will let you know
what Rick says. I’ll also contact Jonathan, if you wish.” (Id.)
On October 27, 2009, Mr. Tada e–mailed Mr. File about a meeting scheduled for 3:00
p.m. that afternoon with Mr. Weber “about mis–filing at State of NC.” (10/27/2009 Tada
E–mail to File, Ex. O to Murphy Dec.) Hisanori Makaya sent an e–mail to Tada on October
27, describing the plan for the meeting: “we would like to have an inquiry held for John
Weber as soon as possible, attended by the President of HLUS, HLUS legal, and the
President of FMSU. Only after this will a decision be made regarding whether he will be
retired or dismissed, and when to make this announcement.” (10/27/2009 Makaya E–mail,
Ex. 43 to Pl.’s 56(a)2 Stmt.)
The October 27 meeting took place at HLUS’ corporate headquarters in Valhalla,
New York and was attended by Mr. File, Mr. Hosoda, Mr. Tada, and Mr. Weber. (Weber
Dep. at 140:8–141:2.) Weber testified that during the meeting, Mr. File said that the purpose
of the meeting was to discuss the Empiric filing, and that “he considered it to be a serious
violation of . . . the contract administration policy . . . which could lead to criminal charges,
both to me and the company, for filing a false statement.” (Id. at 142:2–10.)
FMSU terminated Mr. Weber’ employment on December 14, 2009; Mr. Weber
testified: “I was told I was terminated with cause,” and that Mr. Tada told him that “the main
reason was the Empiric North Carolina filing” and also “mentioned” the KPMG audit report.
(Weber Dep. at 79:9–24.) Mr. Tada testified that Weber’s severance agreement indicated
that he was being terminated for cause because the Empiric merger “was a major compliance
violation.” (Tada Dep. at 117:25–118:11.)
Mr. Weber claims that the Empiric merger and the KPMG audit report were pretext
for his termination, and that he was instead fired as part of a “Fuji Tokyo” plan to transition
from American managers to younger Japanese managers. (Pl.’s 56(a)2 Stmt. ¶¶ 74–75.) He
points to several documents in the record in support of his claim:
(1) A November 2007 FMSU audit including the comment: “We believe that it is now
the time to reevaluate whether John Weber and his old team would be enough to handle the
change in the profit structure.” (Nov. 2007 Audit, Ex. 18 to Pl.’s 56(a)2 Stmt.)
(2) A July 14, 2009 memorandum from Mr. Nakamura to Mr. Komori and Mr.
Takahashi, which responded to Mr. Komori’s question: “I heard that the top American staff
member is a cancer. Any update?” (7/14/2009 Nakamura Memo, Ex. 22 to Pl.’s 56(a)2
Stmt.) Mr. Nakamura’s answer stated: “Concentration of authority in J. Weber is more
intense and broad–ranged than initially anticipated. In addition, internal rules were never
documented and he had to be consulted for every little decision in the previous structure,
making the company’s operation very time–consuming. However, removal of J. Weber’s
authority is progressing in the manner shown below, and we are planning to have him resign
by the time of completing accounting settlement for this year–end (around May 2010) at the
(3) A July 28, 2009 memorandum written by Mr. Tada stated that the tasks assigned
to him as the head of FMSU were to “[r]ecover the control over management from American
staff members to Japanese staff members, and create the management foundation for future
progress within two years.” (7/28/09 Tada Memo, Ex. 20 to Pl.’s 56(a)2 Stmt.)
(4) Mr. Tada’s handwritten notes from October 25 and 26, 2009, which note: “[This
person/these people] over here, there’s no telling what [he/she/they] will do when
emotional.” (10/25/09 Tada Notes, Ex. 23 to Pl.’s 56(a)2 Stmt.)
(5) An October 24, 2009 memorandum written by Mr. Tada entitled “Merger with
Empiric,” which, in addressing the problems with the Empiric merger, notes: “The
possibility also cannot be denied that there was less attention paid than usual, because at the
time pressure was starting to be applied towards resignation by the end of this year (with the
target of mid–November) as one of the measures for returning FMSU management, which
was largely dominated by Americans, to the Japanese, after receiving approval from the
president.” (10/24/2009 Tada Memo, Ex. 25 to Pl.’s 56(a)2 Stmt.)
(6) A December 2, 2009 memorandum written by Mr. Tada entitled “JW
Countermeasure” includes notes that “JW’s contribution over his twenty–three years of
service is appreciated; however, the company must overhaul its management approach and
improve the overall level in order to ensure future advancement in FMSU,” and that Tada
himself “will also be resigning at the end of March to leave the task to the younger
generation.” (12/2/2009 Tada Memo, Ex. 24 to Pl.’s 56(a)2 Stmt.)
(7) An October 29, 2009 e–mail from Mr. Tada to managing director Takahashi, with
the subject line “FW: Meeting on Empiric Merger into FMSU Attorney Client Privileged,”
which reads: “I am sorry to trouble you with this issue. The condition for rebuilding the
FMSU management base is his retirement, and so if this is resolved, I am prepared for some
amount of confusion, but reforms with the new head of HR can proceed. Until now, it felt
as though we were parachuting solo in the middle of enemy camp, not even just landing in
the face of the enemy, but we will finally have the strong ally needed for reformation in the
new HR director.” (10/29/2009 Tada E–mail to Takahashi, Ex. 26 to Pl.’s 56(a)2 Stmt.)
Reassignment of Weber’s Duties, Other Terminations, and New Managers
During his time at FMSU, Weber’s “sales responsibility” was taken away and given
to Mr. Tada, and his regulatory, “ordered through receipt” (“OTR”),4 commercial, human
resources, and marketing responsibilities were also taken away.
(Weber Dep. at
Manfred Richter, who is not Japanese, took over Mr. Weber’s OTR
responsibilities. (Id. at 107:16–22.) Mr. Richter reported to Mr. Tada. (Id.) During his
deposition, Weber was uncertain of who took over his regulatory responsibilities; he did not
believe it was Mr. Hishinuma, but stated that it was another person of Japanese origin. (Id.
at 107:10–15.) After Mr. Weber was terminated, some of his financial responsibilities were
assigned to Mr. Nagasawa, who was hired as treasurer for FMSU in June or July 2009, and
was of Japanese origin and under 40 years of age. (Id. at 133:6–23; Tada Dep. at 102:7–18,
Mr. Weber testified that ordered through receipt is “the whole process of taking an
order, billing and collecting.” (Weber Dep. at 106:16–20.)
104:18–104:24.) Keith Roth, FMSU’s Controller, also took over a portion of Mr. Weber’s
financial responsibilities after he was terminated; Mr. Roth is a Caucasian American citizen.
(Oakley Aff. ¶¶ 9–10.)
Mr. Tada testified during his deposition that no other FMSU employees who were
involved in the Empiric merger were terminated after the merger.
(Tada Dep. at
319:6–321:24.) In the several years before and after Mr. Weber’s termination, FujiFilm
subsidiaries terminated other executives near or over the age of 60 who were of
non–Japanese origin, including Albert Aerts, Ed Carhart, Joseph Convery, Jonathan File, and
Stan Freimuth. (3/8/2011 Tuttle Letter, Ex. F to Cortese–Costa Cert.) Albert Aerts was
terminated on March 17, 2010 due to “restructuring,” at which point he was 61. (Exs. F, G
to Cortese–Costa Cert.) Ed Carhart was terminated on April 7, 2010 due to “restructuring,”
at which point he was 58. (Id.) Joe Convery was terminated on May 5, 2008 due to
“reduction in force,” at which point he was 65. (Id.) Jonathan File was terminated on
December 30, 2009 due to “restructuring,” at which point he was 59. (Id.) Stan Freimuth
was terminated on January 24, 2007 due to “position elimination,” at which point he was 61.
(Id.) After Mr. File was terminated, Mr. Sano, who worked in Japan, took over his job
duties, and according to Mr. Hosoda, “would be made available . . . from Japan.” (Hosoda
Dep. at 30:24–32:18.)
The Friendship, Commerce, and Navigation Treaty
All Defendants argue that Plaintiff’s national origin and ancestry claims in Counts
Thirteen through Sixteen are barred by the Friendship, Commerce, and Navigation Treaty
(“FCN Treaty”) between the United States and Japan. Plaintiff argues that the FCN Treaty
does not apply to American subsidiaries and that, in any event, the Treaty would not bar his
national origin discrimination claims in this case.
Article VIII(1) of the FCN Treaty authorizes “companies of either Party [the U.S. and
Japan], to engage, within the territories of the other Party . . . executive personnel . . . of their
choice.” Treaty of Friendship, Commerce and Navigation, U.S.–Japan, art. VIII(1), Apr. 2,
1953, 4 U.S.T. 2063. Under the Treaty, Japanese companies “have the right to choose
citizens of their own nation as executives because they are such citizens.” Fortino v. Quasar
Co., 950 F.2d 389, 393 (7th Cir. 1991) (quoting MacNamara v. Korea Air Lines, 863 F.2d
1135, 1144 (3d Cir. 1988)). However, while the FCN Treaty allows a Japanese company to
exercise a preference for Japanese citizens, it does not permit discrimination on the basis of
national origin in violation of Title VII. Id. at 392. The Seventh Circuit in Fortino found the
“Summary judgment is appropriate where, construing all evidence in the light most
favorable to the non-moving party,” Pabon v. Wright, 459 F.3d 241, 247 (2d Cir. 2006), “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law,” Fed. R. Civ. P. 56(c)(2). An issue of fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is “genuine” if “a reasonable jury could
return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Unsupported allegations do not create a material issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
distinction between citizenship and national origin particularly muddled with respect to the
Especially in the case of a homogenous country like Japan, citizenship and
national origin are highly correlated; almost all citizens of Japan were born
there. But to use this correlation to infer national–origin discrimination
from a treaty–sanctioned preference for Japanese citizens who happen also
to be of Japanese national origin would nullify the treaty. . . . The exercise of
a treaty right may not be made the basis for inferring a violation of Title VII.
. . . That right would be empty if the subsidiary could be punished for
treating its citizen executives differently from American executives on the
ground that, since the former were of Japanese national origin and the latter
were not, it was discriminating on the basis of national origin.
Id. at 392–93. Fortina held that the defendant, Quasar Co., did not violate Title VII by
exhibiting a preference for executives with Japanese citizenship over those with U.S.
citizenship because “there is no evidence of discrimination here save what is implicit in
wanting your own citizens to run the your foreign subsidiary.” Id. at 393.
The Seventh Circuit declined to separate the close correlation between national
origin and citizenship in the absence of evidence that suggested the discrimination suffered
by the plaintiffs was based strictly on national origin rather than citizenship. Judge Posner
gave examples of the type of evidence that would have satisfied this inquiry: evidence that
if plaintiff Fortino had Japanese relatives he would not have been fired or evidence of
favoritism shown by Quasar to Japanese–American employees over other American
employees. Id. The FujiFilm entities’ counsel relied at oral argument on this segment of
Fortino, claiming that the record in this case does not support Mr. Weber’s distinction
between citizenship and national origin because he “admits and acknowledges that he does
not know of any Japanese Americans who were favored.” Although Defendants are correct
that nothing in the record supports a claim that Japanese Americans were favored over Mr.
Weber, Plaintiff does point to evidence in the record that supports an inference that
Defendants’ decision to terminate Mr. Weber was based on national origin rather than an
FCN–protected desire to choose Japanese citizens for leadership positions.
Some of the documents in the record display nothing more than a FujiFilm
preference for having Japanese citizens run its subsidiaries: the July 28, 2009 Tada
memorandum discussing “[r]ecover[ing] the control over management from American staff
members to Japanese staff members” (7/28/09 Tada Memo) and the October 24, 2009 Tada
memorandum discussing “measures for returning FMSU management, which was largely
dominated by Americans, to the Japanese, after receiving approval from the president”
(10/24/2009 Tada Memo) could suggest that FujiFilm merely intended to choose citizens of
Japan as its executives, activity expressly protected by the FCN Treaty. See Fortino, 950 F.2d
However, other documentary evidence could allow reasonable jurors to infer a
pattern of more invidious discrimination by FujiFilm executives on the basis of national
origin. An October 29, 2009 e–mail from Mr. Tada discusses “enemy camp,” which could
support the inference that FujiFilm was not acting on a mere preference for Japanese
citizens, but was motivated by a more discrete animus towards those of American national
origin: “Until now, it felt as though we were parachuting solo in the middle of enemy camp,
not even just landing in the face of the enemy, but we will finally have the strong ally needed
for reformation in the new HR director.” (10/29/2009 Tada E–mail.)
handwritten notes from October 25 and 26, 2009, depending on the translation used, display
a similar use of disparaging language that could support an inference of national origin
discrimination beyond a mere citizenship preference; Mr. Tada, according to one
translation, writes: “These people over here, there’s no telling what they will do when
emotional.” (10/25/09 Tada Notes.)
This evidence, suggestive of discriminatory intent beyond the preferences permitted
by the FCN Treaty, was wholly lacking in Fortino, and thus the record here does not
undisputedly demonstrate that Japanese citizenship, or lack thereof, “was the real source of
the ‘prejudice’” against John Weber. 950 F.2d at 393. In Fortino, the only evidence of
discrimination was that during a Quasar reorganization, three American executives of
non–Japanese origin were discharged where all of the Japanese citizen executives kept their
jobs. Id. at 392. Mr. Weber does not rely exclusively on evidence of preference towards
Japanese citizens, as did the plaintiffs in Fortina, but instead points to written evidence in
the record of hostile language such as “enemy camp” and “these people over here” that could
lead a reasonable juror to infer that Defendants’ decision to replace Mr. Weber was not
based solely on a desire for an influx of Japanese citizen leadership, but an animus towards
those of American national origin and ancestry. The FCN Treaty therefore does not bar Mr.
Weber’s discrimination claims on summary judgment.
Non–Discriminatory Reasons for Termination, Pretext, and Animus
Defendants also argue that they are entitled to summary judgment in their favor on
Plaintiff’s Title VII (Count Thirteen), CFEPA (Count Fourteen), and ADEA (Count Fifteen)
claims because Mr. Weber’s employer, FMSU, terminated him for legitimate,
non–discriminatory business reasons and Weber is unable to demonstrate that the given
reasons for his discharge were pretext. Plaintiff argues in response that there is direct
evidence of discriminatory animus, and under the appropriate mixed–motive analysis for
his Title VII claim, Defendants are unable to show that they would have made the same
decision in the absence of their discriminatory motive. Plaintiff also argues that even if the
mixed–motive analysis is not applied,6 he can establish a prima facie case of discrimination
and that Defendants’ proffered reasons for his discharge were pretext.
Title VII and CFEPA
There are two frameworks by which to analyze Title VII and CFEPA7 disparate
treatment claims: if a plaintiff can produce direct evidence of discrimination, then the
“mixed–motive” analysis articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
applies; if a plaintiff proffers only indirect evidence of discrimination, then the “pretext”
analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973) applies. Ames
v. Cartier, Inc., 193 F. Supp. 2d 762, 767 (S.D.N.Y. 2002). Under McDonnell Douglas, a
plaintiff has the burden of proving the elements of a prima facie case of discrimination, at
which point the burden shifts to the employer to rebut the presumption of discrimination
by producing evidence of a legitimate, non–discriminatory reason for the challenged action.
411 U.S. 792, 802–05 (1973). If the employer is able to meet its burden, the employee may
still prevail if he or she is able to establish that the non–discriminatory reason articulated for
the employment decision was pretext. Id. at 804–05.
Although Plaintiff argues that the mixed–motive analysis applies to his Title VII
claims, his counsel agreed at oral argument that this analysis does not apply to his ADEA
claims, which must be analyzed under the McDonnell Douglas burden–shifting framework.
Although, as discussed below, the Supreme Court held in Gross v. FBL Financial
Services, 557 U.S. 167, 129 S. Ct. 2343, 2352 (2009), that the mixed–motive analysis does not
apply to ADEA claims, neither Connecticut courts nor the Second Circuit have yet addressed
the impact of Gross on CFEPA claims. See Herbert v. Nat’l Amusements, Inc., — F. Supp. 2d
—, 2011 WL 2457552, *10 (D. Conn. 2011). The Court will therefore apply the mixed
motive analysis to Mr. Weber’s CFEPA claims.
Under the mixed–motive analysis, “a plaintiff must demonstrate that ‘a prohibited
discriminatory factor played a motivating part in a challenged employment action.’ Once
the plaintiff has established that fact, the burden then ‘shifts to the employer to prove by a
preponderance of the evidence that it would have made the same decision anyway.’” Ames,
193 F. Supp. 2d at 767 (quoting Raskin v. Wyatt, 125 F.3d 55, 60 (2d Cir. 1997)). To meet
his or her burden, a plaintiff must prove that the employment decision “was made at least
in part because of the illegitimate factor.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181
(2d Cir. 1992). “[T]o survive a motion for summary judgment, a plaintiff must adduce
sufficient direct evidence of discrimination that, if believed, would permit a reasonable jury
to conclude that a discriminatory factor did, in fact, play a motivating role in the plaintiff's
termination.” Ames, 193 F. Supp. 2d at 767. Considering the issue in the context of whether
a plaintiff is entitled to a jury instruction regarding a mixed–motive discharge, the Second
Circuit has addressed the types of evidence relevant to whether an employer had a mixed
motive: “[If] the plaintiffs nonstatistical evidence is directly tied to the forbidden animus,
for example policy documents or statements of a person involved in the decisionmaking process
that reflect a discriminatory or retaliatory animus of the type complained of in the suit, that
plaintiff is entitled to a burden–shifting instruction.” Fields v. N.Y. State Office of Mental
Retardation & Developmental Disabilities, 115 F.3d 116, 122 (2d Cir. 1997) quoting
Ostrowski v. Atlantic Mut. Ins. Cos, 968 F.2d 171, 182 (2d Cir. 1992) (alterations in original)).
As discussed above, there is documentary evidence in the record from which a
reasonable juror could conclude that discriminatory factors played a role in Defendants’
decision to discharge Mr. Weber. The memoranda discussing the plan to recover control
over management from American staff members—which on their own would not be enough
to demonstrate improper discriminatory motive in this context—taken together with Mr.
Tada’s e–mails describing “the enemy” and “these people” could reflect a discriminatory
animus towards employees of American national origin.
As “policy documents or
statements of a person involved in the decisionmaking process that reflect a discriminatory
animus,” Fields, 115 F.3d at 122, these e–mails satisfy Mr. Weber’s burden to adduce
evidence that would permit a reasonable jury to conclude that national origin and ancestry
discrimination played a motivating role in his termination. See Ames, 193 F. Supp. 2d at 767.
With Plaintiff having satisfied this mixed–motive burden, Defendants have not
shown that the undisputed facts demonstrate that they would have made the same decision
to terminate Weber regardless of his national origin or ancestry. In fact, in their Reply,
Defendants focus only on the pretext argument, arguing that Mr. Weber’s errors in the
Empiric merger and the findings of the KPMG audit were the reason for his firing; they do
not point to any evidence in the record that shows that they would have decided to fire him
after those events even if he had not been American. Although the record reveals several
major missteps by Mr. Weber in the Empiric merger, and the results of the KPMG audit
would give a company cause for concern, to survive summary judgment, Mr. Weber need
only “adduce sufficient direct evidence of discrimination that, if believed, would permit a
reasonable jury to conclude that a discriminatory factor did, in fact, play a motivating role
in the plaintiff's termination.” Ames, 193 F. Supp. 2d at 767. He has met this burden, and
Defendants have not met their burden to show that they would have made the same decision
to terminate Weber in the absence of national origin considerations.
Although the mixed–motive analysis can apply to Title VII claims for which there
is direct evidence of discriminatory animus, it is inapplicable to ADEA claims. Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010) (citing Gross v. FBL Fin. Servs.,
557 U.S. 167, 129 S. Ct. 2343 (2009)). Instead, “‘a plaintiff bringing a disparate treatment
claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was
the ‘but–for’ cause of the challenged adverse employment action’ and not just a contributing
or motivating factor.” Id. at 106 (quoting Gross, 129 S. Ct. at 2352).
Mr. Weber points to evidence from which a reasonable juror could conclude that
Defendants acted with discriminatory intent with respect to age, including the 2007 FMSU
audit questioning “whether John Weber and his old team would be enough to handle the
change in the profit structure” (Nov. 2007 Audit), and Mr. Tada’s statement of intent “to
leave the task to the younger generation” (12/2/2009 Tada Memo). Defendants, however,
point to Mr. Weber’s “management errors, excesses and misfeasance” (FMSU Mem. Supp.
[Doc. # 252–1] at 22), as shown by the KPMG Audit and his mishandling of the Empiric
filing, as evidence of a legitimate, non–discriminatory reason for their decision to terminate
performance–related reasons for terminating Mr. Weber, the Court must determine whether
Mr. Weber “has raised sufficient evidence upon which a reasonable jury could conclude by
a preponderance of the evidence that [his] age was a ‘but for’ cause” of Defendants’
termination decision, i.e. whether a reasonably jury could infer from the evidence that the
non–discriminatory reasons for firing Mr. Weber were pretextual. Gorzynski, 596 F.3d at
107. In Gorzynski, plaintiff Diane Gorzynski received a negative performance evaluation
prior to her termination, however the Second Circuit held that “the evaluation occurred
under circumstances suggesting discriminatory motives” where her evaluator had been
supervising her for only a week, she had never previously had a disciplinary write–up, a
contemporary anonymous evaluation gave her a much higher review, and the evaluator that
gave her a negative evaluation gave another employee a much more favorable evaluation
even though he had been “written up and verbally counseled on numerous occasions
throughout the preceding year.” Id. at 107–08. The Second Circuit also held that evidence
of Ms. Gorzynski’s satisfactory performance during a probationary period prior to her
termination, defendant Jet Blue’s “questionable” investigations of complaints about Ms.
Gorzynski, and the fact that “other younger employees were not disciplined for violating
numerous policies” was sufficient evidence that age discrimination, rather than defendant
Jet Blue’s proffered non–discriminatory justifications, were a but–for cause of Ms.
Gorzynski’s termination. Id. at 108–09.
Mr. Weber points to evidence in the record that could similarly give rise to a
reasonable inference that Defendants’ reaction to the KPMG audit and Empiric filing
“occurred under circumstances suggesting discriminatory motives.” More than a year before
the KPMG audit and almost two years before the Empiric filing, Mr. Tada began questioning
the abilities of “Mr. Weber and his old team.” (Nov. 2007 Audit.) Mr. Tada later expressed
a desire to leave the task of overhauling FMSU’s management approach “to a younger
generation.” (12/2/2009 Tada Memo.) No other FMSU employees involved in the Empiric
filing were terminated (Tada Dep. at 319:6–321:24), and around the time FMSU terminated
Mr. Weber’s employment, other FujiFilm subsidiaries fired executives near or over the age
of 60 (see Exs. F, G to Cortese–Costa Cert.). A reasonable juror could infer from this
evidence that Defendants’ proffered non–discriminatory reasons for firing Mr. Weber were
pretext, and that but–for Mr. Weber’s age, he would not have been fired. Defendants are
therefore not entitled to summary judgment on Mr. Weber’s ADEA claims.
Defendants argue that they are entitled to summary judgment on Mr. Weber’s claims
under 42 U.S.C. § 1981 in Count Sixteen of his Third Amended Complaint because he has
not demonstrated that he suffered a discriminatory act motivated by a discriminatory
animus towards a minority group. Mr. Weber’s counsel asserted at oral argument that a
white male can bring a Section 1981 claim asserting his own right not to be discriminated
against as a white person, without tying his claim to the rights of any minority group.
Burbank v. Office of the Attorney General, 240 F. Supp. 2d 167 (D. Conn. 2003),
expressly refutes Plaintiff’s argument, explaining that “[a] non–minority plaintiff may bring
a § 1981 action only under certain circumstances.” Id. at 175 (collecting cases). “The
threshold showing is that a non–minority plaintiff was ‘punished for trying to vindicate the
rights of minorities protected by [the statute].’ . . . Accordingly, a non–minority plaintiff may
bring a § 1981 claim if the discrimination against him was motivated by animosity towards
the race of a third party who is a member of a racial minority group.” Id. (quoting Sullivan
v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969)). Nothing in the record here suggests
that the discrimination against Mr. Weber was motivated by animosity towards a racial
minority group, nor does Mr. Weber claim that the discrimination was so motivated.
Defendants are therefore entitled to summary judgment in their favor on Mr. Weber’s claims
under 42 U.S.C. § 1981, and Count Sixteen of the Third Amended Complaint is dismissed.
Breach of Contract and the Covenant of Good Faith and Fair Dealing
FMSU moves for summary judgment in its favor on Plaintiff’s claims for breach of
contract (Count One) and breach of the implied covenant of good faith and fair dealing
(Count Two), asserted only against Defendant FMSU. It argues that because it terminated
Weber for cause—“specifically, Weber’s long–term reckless management of FMSU, as
revealed by the 2009 KPMG Audit, and his intentional disregard of the Company’s
Standards of Business Conduct and Compliance with Law Program arising out of the
Empiric Filing”—it did not breach its employment agreement with him or act in bad faith.
(FMSU Mem. Supp. at 29–30.) Mr. Weber responds that FMSU’s breach and its bad faith
conduct are demonstrated by evidence that its plan to terminate him arose before the KPMG
audit and Empiric merger and was motivated by discriminatory animus.
FMSU had decided to phase out Mr. Weber and his “old team” as early as 2007: “We
believe that it is now the time to reevaluate whether John Weber and his old team would be
enough to handle the change in the profit structure.” (Nov. 2007 Audit.) As discussed
above, a reasonable juror could conclude based on the evidence in the record that FMSU
acted with discriminatory intent in terminating Mr. Weber, and used his poor job
performance as pretext. A reasonable juror could also therefore conclude that FMSU did not
terminate Mr. Weber for cause, but instead acted in bad faith. FMSU’s motion for summary
judgment on Counts One and Two is accordingly denied.
Defendants move for summary judgment in their favor on Mr. Weber’s defamation
claim (Count Six), asserted against FMSU, Mr. Tada, and HLUS, arguing that the allegedly
defamatory statements were not made by Mr. Tada, that the statements are true, and that
the statements are subject to the intra–corporate privilege. Mr. Weber argues that he was
defamed when FMSU falsely published its official notice of termination and that Mr. Weber
had been terminated for cause, and that these statements are not subject to the privilege
because they were made with malice.
“To establish a prima facie case of defamation, the plaintiff must demonstrate that:
(1) the defendant published a defamatory statement; (2) the defamatory statement identified
the plaintiff to a third person; (3) the defamatory statement was published to a third person;
and (4) the plaintiff's reputation suffered injury as a result of the statement.” Cweklinsky v.
Mobil Chem. Co., 267 Conn. 210, 217 (2004). Defamatory statements include those charging
“improper conduct or lack of skill or integrity in one’s profession or business and . . . of such
nature that [they are] calculated to cause injury to one in his profession or business.” Miles
v. Perry, 11 Conn. App. 584, 601 (1987). Here, Mr. Weber claims that the statements made
by Mr. Tada and others that Weber had been terminated for cause were defamatory. There
exists in the record sufficient evidence from which a reasonable juror could conclude that
these representations that Weber was terminated for cause were both false and damaging to
Mr. Weber’s professional reputation.
There nonetheless exists a qualified privilege with respect to defamation for
“intracorporate communications in the context of employment decisions.” Gambardella v.
Apple Health Care, Inc., 291 Conn. 620, 630 (2009). This privilege does not apply, however,
where “the holder of the privilege acted with malice in publishing the defamatory material.”
Id. “[M]alice is not restricted to hatred, spite or ill will against a plaintiff, but includes any
improper or unjustifiable motive.” Id. There is evidence in the record that Mr. Weber was
not, in fact, fired for cause, but as part of a pattern of discriminatory animus. Evidence of
this animus precludes summary judgment on Mr. Weber’s defamation claim because it may
demonstrate “improper or unjustifiable motive” in connection with his termination and the
subsequent publication that he had been fired for cause. Defendants’ motion for summary
judgment on Count Six is therefore denied.
Excess Benefit SERP Claims
FMSU moves for summary judgment in its favor on Mr. Weber’s claims in
connection with the “excess benefit SERP” he claims FMSU owed him, arguing that “[n]ot
a single document or witness corroborates Weber’s claim that FMSU misrepresented his
SERP benefit.” (FMSU Mem. Supp. at 33.) Mr. Weber’s counsel agreed at oral argument
that Counts Seven (breach of excess benefit SERP), Eight (breach of the implied covenant
of good faith and fair dealing), Nine (misrepresentation), Ten (promissory estoppel), and
Twelve (ERISA) each require evidence of the existence of the alleged excess benefit SERP,
however Weber argues that such a SERP does exist, as does his right to payment under that
Weber claims that the following pieces of evidence support his claim that an excess
benefit SERP existed at FMSU: 1) a chart of limitations for an unspecified SERP benefit for
the years 1997 through 2008 (Ex. 49A to Pl.’s 56(a)2 Stmt.); 2) a statement in his own
affidavit that he requested payment of benefits due under the excess benefit SERP (Weber
Aff. ¶ 51); and 3) the affidavit of Charles Leslie, former President of FMSU, in which he
identifies “an additional retirement benefit for highly paid executives” that was approved in
1994 and which was paid to him upon his retirement in 1997 (Leslie Aff., Ex. 2 to Pl.’s 56(a)2
Stmt. ¶¶ 10–11). However, the 1994 SERP retirement benefit to which Mr. Leslie refers in
his affidavit was amended by the FMSU board of directors in 2006 to provide a single
lump–sum distribution of the participants’ grandfathered account upon retirement. (Dec.
9, 2006 Unanimous Written Consent of the Board of Directors, Ex. A to Kawaguchi Dec.,
Ex. 2 to FMSU’s 56(a)1 Stmt.) Mr. Weber received this lump–sum payment on February 16,
2007. (Ex. U to Murphy Dec.) The undisputed facts demonstrate that Mr. Weber received
the payment to which he was entitled under the FMSU SERP retirement benefit, and nothing
in the record could allow a reasonable jury to infer that another “excess benefit SERP”
existed. FMSU is therefore entitled to summary judgment on Mr. Weber’s excess benefit
SERP claims; Counts Eight, Nine, Ten, and Twelve are dismissed.
Connecticut Payment of Wages Law
Mr. Weber claims in Count Eleven of his Third Amended Complaint that FMSU
violated the Connecticut payment of wages law by failing to pay him all or part of his 2009
annual bonus. (3d Am. Compl. ¶ 118.) FMSU argues that it is entitled to summary
judgment in its favor on this count because the FMSU bonus policy provides that bonuses
paid to eligible employees are discretionary and are paid only if the employee is employed
on the date the bonuses are paid out, and that this discretionary bonus does not constitute
“wages” under the Connecticut Payment of Wages Law. Weber argues in opposition that
FMSU relies on the MBO Policy, which did not apply to Weber as a senior executive, and
that senior executives were entitled to a pro rata share of their annual bonus upon
termination. Weber also argues that executive bonuses can be classified as wages under
Connecticut law because they are not discretionary.
The Connecticut payment of wages law defines “wages” as “compensation for labor
or services rendered by an employee, whether the amount is determined on a time, task,
piece, commission, or other basis of calculation.” Conn. Gen. Stat. § 31-71a(3). “[B]onuses
that are awarded solely on a discretionary basis, and are not linked solely to the ascertainable
efforts of the particular employee, are not wages under § 31-71a(3).” Ass’n Res., Inc. v. Wall,
298 Conn. 145, 174 (2010) (quoting Weems v. Citigroup, 289 Conn. 769, 782 (2008)). In
support of his argument that the executive bonuses at FMSU were not discretionary, Mr.
Weber relies entirely on the deposition testimony of Teresa Oakley that she had been told
by Mr. Weber that executive bonuses were different from the MBO program and were
“based on ratings and individual versus company performance.” (Oakley Dep., Am. Ex. 11
to Pl.’s 56(a)2 Stmt. at 78:3–79:20.) Ms. Oakley’s testimony on this matter, however, consists
entirely of inadmissible hearsay as she is only relating what she was told by Mr. Weber.
Accordingly, Mr. Weber does not point to any admissible evidence upon which a reasonable
juror could rely to conclude that his 2009 annual bonus was not discretionary and thus
constituted a wage under Conn. Gen. Stat. § 31-71a(3). FMSU’s motion for summary
judgment on Mr. Weber’s Connecticut payment of wages law claim is therefore granted.
Tortious Interference With Contractual Relations and Business
Defendants HLUS and FujiFilm Corporation move for summary judgment on Mr.
Weber’s tortious interference with contractual relations (Count Two) and tortious
interference with business expectancy (Count Three) claims, asserted only against HLUS and
FujiFilm Corporation, arguing that there are no facts that support claims that these
Defendants acted out of malice or for any wrongful purpose and that as parent corporations
of FMSU, they had an interest in FMSU’s business dealings and executive leadership and any
purported interference is therefore privileged.
To succeed on a claim for interference with contractual relations or business
expectancy, Mr. Weber must establish: 1) the existence of a contractual or business
relationship; 2) the defendants’ knowledge of that relationship; 3) the defendants’ intentional
and tortious interference with that relationship; and 4) actual loss suffered by Mr. Weber
that was caused by the defendants’ conduct. Rioux v. Barry, 283 Conn. 338, 351 (2007)
(elements for intentional interference with contractual relations); Hi–Ho Tower, Inc. v.
Com–Tronics, Inc., 255 Conn. 20, 27 (2000) (elements for intentional interference with
business expectancy). “A defendant is guilty of tortious interference if he has engaged in
improper conduct. . . . [T]he plaintiff [is required] to plead and prove at least some improper
motive or improper means.” Biro v. Hirsch, 62 Conn. App. 11, 21 (2001) (alterations in
original) (citations omitted).
As discussed above, there is evidence in the record here that could allow a reasonable
juror to conclude that HLUS and FujiFilm Corporation acted with an improper
discriminatory motive in directing the termination of Mr. Weber from FMSU.
Communications to and from Mr. Tada and HLUS and FujiFilm Corporation personnel
refer to Mr. Weber as an American “cancer” (7/14/2009 Nakamura Memo), refer to the
removal of Mr. Weber’s authority (id.), and state that Mr. Tada had been tasked with
recovering control from American staff members (7/28/09 Tada Memo). When coupled
with Mr. Tada’s references to “these people over here” and “enemy camp,” these
communications could lead a reasonable juror to infer that HLUS and FujiFilm Corporation
were motivated by discriminatory animus. There is therefore sufficient evidence for a jury
to conclude that HLUS and FujiFilm Corporation acted with malice or wrongful purpose.
Ordinarily, an entity that is directly or indirectly a party to a contract cannot be held
liable for tortious interference with that contract, absent allegations of willful misconduct
or lack of good faith. Boulevard Assocs. v. Sovereign Hotels, Inc., 72 F.3d 1029, 1036 (2d Cir.
1995). Given the evidence of bad faith discriminatory intent on the part of HLUS and
FujiFilm Corporation, this privilege does not protect these Defendants from liability for
tortious interference with contractual relations. HLUS’s and FujiFilm Corporation’s motion
for summary judgment on Counts Two and Three of the Third Amended Complaint are
Defendants move for summary judgment in their favor on Mr. Weber’s civil
conspiracy claim (Count Five), asserted against all Defendants, because he does not link his
civil conspiracy theory of liability to any substantive tort. Mr. Weber responds that he
asserts three substantive tort claims in his Third Amended Complaint: defamation (Count
Six), tortious interference with contractual relations (Count Three), and tortious
interference with business expectancy (Count Four).
“[C]ivil conspiracy is not an independent cause of action. ‘Rather, the action is for
damages caused by acts committed pursuant to a formed conspiracy rather than by the
conspiracy itself. . . . Thus, to state a cause of action, a claim of civil conspiracy must be
joined with an allegation of a substantive tort.’” Master–Halco, Inc. v. Scilla & Natarelli, LLC,
739 F. Supp. 2d 109, 113 (D. Conn. 2010) (quoting Macomber v. Travelers Prop. & Cas.
Corp., 277 Conn. 617, 636 (2006)). In his civil conspiracy count, Mr. Weber refers to the
specific tort claims in his Third Amended Complaint. (See Third Am. Compl. ¶¶ 89–92.)
Defendants’ counsel claimed at oral argument that even if Mr. Weber’s tort claims remain
for adjudication, the civil conspiracy count must nonetheless be dismissed because according
to the Connecticut Supreme Court’s decision in Macomber, civil conspiracy may not be pled
as a stand–alone claim. Macomber, however, does not set out the form in which civil
conspiracy must be pled, but only requires that such a claim “be joined with an allegation
of a substantive tort.” 277 Conn. at 636. Mr. Weber has joined his civil conspiracy claim
with his substantive tort claims, and as discussed above, these tort claims remain for
adjudication. Defendants’ motion for summary judgment on Count Five is denied.
For the reasons stated above, Defendants’ motions [Doc. ## 252, 253, 254] are
GRANTED in part and DENIED in part. Counts Seven, Eight, Nine, Ten, Eleven, Twelve,
Fifteen, and Sixteen of Plaintiff’s Third Amended Complaint are dismissed. All other counts
remain for adjudication.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 24th day of February, 2012.
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