Trane v. Northrop Grumman Corporation
DECISION AND ORDER: Defendant's motion for summary judgment, Dkt. 23 is granted. Ordered by Judge William F. Kuntz, II on 3/9/2015. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
11-CV-4040 (WFK) (AKT)
-againstNORTHROP GRUMMAN CORPORATION,
WILLIAM F. KUNTZ, II, United States District Judge:
Plaintiff John Trane ("Plaintiff') brings this suit against Northrop Grumman Systems
Corporation ("Defendant") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000 et
seq., the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq., and New York State
Executive Law §296, alleging (1) discrimination based on national origin and disability, and
(2) retaliation for complaints of discrimination. Plaintiff alleges that he was given negative
evaluations, transferred to a program intended to make it impossible to fulfill his responsibilities
adequately, and eventually terminated because of Defendant's employees' animus against his
Iranian national origin, their resentment at making reasonable accommodation for his disability,
and in retaliation for Plaintiffs complaints regarding said discrimination. Defendant's motion
for summary judgment is before this Court. As discussed below, Plaintiff has failed to provide
evidence showing that Defendant's non-discriminatory and non-retaliatory reasons for negatively
evaluating, transferring, and terminating Plaintiff are pretexts. Plaintiff has also failed to show
that discrimination was a motivating factor in Defendant's termination of his employment. For
these reasons and others explained below, Defendant's motion for summary judgment is
FACTUAL AND PROCEDURAL HISTORY
The events recounted below are undisputed or described in the light most favorable to
Plaintiff, the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d
On November 17, 2008, Plaintiff began his employment with Defendant as a Level 4
Reliability Electrical Engineer. Dkt. 31 (Affidavit of Jason D. Burns in Support of Defendant's
Motion for Summary Judgment) ("Burns Aff."), Ex. 13 (Defendant's Records Data concerning
Plaintiff); Dkt. 1 ("Complaint") at ifl 5. Upon hiring Plaintiff, Wayne Anstey ("Anstey") told
Plaintiff that Stanley Mum ("Mum") would be Plaintiffs manager and that Plaintiff would be
working on the U.S. Navy EA-6B aircraft, of which Anstey was the Functional Manager. Dkt.
34 ("Trane Deel."), Ex. 6 (Deposition of John Trane Part I) ("Trane I") at 40; Dkt. 24,
(Memorandum of Law in Support of Motion for Summary Judgment) ("SJ Motion") at 6.
Within the first few weeks of Plaintiffs employment with Defendant-that is, in November or
December of 2008-Murn (the Lead Engineer on the EA-6B aircraft project, see SJ Motion at 6)
inquired about Plaintiffs accent and questioned his national origin in the presence of another
employee, Frank Perazzo. Plaintiff responded that he was oflranian descent. Trane I at 52-55.
After this incident, Perazzo talked about Plaintiffs Iranian descent on multiple occasions. Trane
I at 61. On a separate occasion at an unspecified time, Defendants' employees Thomas Hanft
("Hanft") and Michael Jordan ("Jordan") questioned Plaintiff about the origin of his last name
and his national origin, to which Plaintiff again responded that he was of Iranian descent. Trane
I at 83-85. Apart from the above incidents, Plaintiff does not allege any references or
discussions, derogatory or neutral, of his national origin while he was in Defendant's employ.
Trane I at 85-87.
On December 31, 2008, Plaintiff received an evaluation of his work performance to date,
which was graded on a scale of 1 ("needs improvement") to 4 ("outstanding"). Plaintiff received
a performance grade of 2 ("meets performance requirements"). Bums Aff. Ex. 19 (Plaintiffs
2008 performance evaluation). However, in or around February 2009, Plaintiff began to have
conflicts with co-workers and managers. Mum expressed concerns about Plaintiff sending out
emails to improperly broad distribution lists, about Plaintiff leaving work early, and about the
inadequacy of Plaintiffs work. Dkt. 26 ("Mum Deel.") at iii! 9-17; Burns Aff. Ex. 18 (Notes
prepared by Wayne Anstey entitled "Personnel Discussions - John Trane level 4 R&M Manager)
at 1. After these complaints, Anstey spoke with Timothy Grevstad from Human Resources and
Rich Leyble (Plaintiffs immediate supervisor) and decided to speak with Plaintiff about
Plaintiffs performance. Bums Aff. Ex. 18 at 1. Before speaking to Plaintiff, Anstey spoke with
Frank Perazzo and asked for his opinion of Plaintiffs work. Perazzo said Plaintiff was seldom at
his desk after 4:00 p.m., could be arrogant with co-workers and suppliers, and was a satisfactory
but not outstanding engineer. Id. at 2. After these discussions, Anstey did in fact speak with
Plaintiff in February 2009 regarding his performance. Trane I at 145-147.
In April 2009, Plaintiff had a disagreement with Jordan via email in which Jordan
claimed that Plaintiffs email contained a "misrepresentation." Hanft responded to the emails
stating that it was more of a "miscommunication" and that both Plaintiff and Jordan were correct.
Trane Deel., Ex. 2 (Email chain between John Trane and various employees of Defendant). Also
in April 2009, Hanft asked Mum to review Plaintiffs emails because Hanft had concerns about
the distribution list, about Plaintiffs unclear conclusions, and about Plaintiffs failure to copy
Mum. Burns Aff., Ex. 20 (Email string dated April 30, 2009); Burns Aff., Ex. 22 (Email dated
April 30, 2009). Mum met with Plaintiff to discuss those concerns and reported to Grevstad and
Anstey that Plaintiff responded belligerently. Burns Aff. Ex. 22. On or about May 22, 2009,
Plaintiff and Anstey had a subsequent meeting in which the subject of Plaintiff being transferred
to another program was raised. Plaintiff refused. Burns Aff. Ex. 18 at 5-6; Dkt. 32 (Opposition
Memorandum to Motion for Summary Judgment) ("Opp. Memo") at 4-5.
In June 2009, Plaintiff was injured in a car accident and did not return to work until
August 2009, at which point he used a walker and was only medically permitted to work ten to
sixteen hours per week. Opp. Memo at 5-6. At some unspecified point following Plaintiffs
return to work, he entered a conference room with his walker; Hanft and Joel Silber ("Silber"),
another employee, then began to laugh. Opp. Memo at 6. After his return to work, Plaintiff was
transferred to a new program to accommodate his need for reduced hours. SJ Motion at 3-4.
In January 2010, Plaintiff received a midyear evaluation rating for 2009 of 1 ("needs
Burns Aff., Ex. 29 (Plaintiffs mid-year 2009 performance evaluation).
Plaintiff responded by sending a letter to Michael Riley ("Riley"), his new Functional Manager,
calling Jordan (who had prepared the evaluation) a liar, rude, and unprofessional. Burns Aff.,
Ex. 17 (Defendant's internal Human Resources investigation file concerning Plaintiff); Burns
Aff., Ex. 29. Plaintiff also stated that Jordan was extremely curious about Plaintiffs last name
and its origin, and that Hanft and another person (identified in Plaintiffs opposition papers as
Silber) had laughed at Plaintiffs use of a walker. Burns Aff., Ex. 17. On March 25, 2010, Riley
and Stephen Maniscalco ("Maniscalco") (the Reliability and Maintanability ("R&M") Group
Manager) met with Plaintiff to give him his full-year review for 2009. Dkt. 28, ("Riley Deel.")
Plaintiff again received a rating of 1. Riley Deel. at
final 2009 performance evaluation).
Burns Aff. Ex. 30 (Plaintiffs
On or about March 26, 2010, Plaintiff filed Equal
Employment Opportunity Commission charges alleging discrimination based on national origin
and retaliation. Complaint at
On April 19, 2010, Riley and Maniscalco gave Plaintiff an
official Warning Letter and a Corrective Action Plan, which included goals and deadlines crafted
with Plaintiffs input. Riley Deel.
Burns Aff., Ex. 31 (Warning Letter to Plaintiff dated
April 19, 2010); Burns Aff. Ex. 32 (Plaintiffs Corrective Action Plan dated April 19, 2010).
In August 2010, Plaintiff was given a midyear evaluation for 2010 with a rating of 1.
Burns Aff., Ex. 38 (Plaintiffs draft mid-year 2010 performance evaluation); Burns Aff., Ex. 39
(Plaintiffs mid-year 2010 evaluation). In September 2010, Defendant terminated Plaintiffs
employment. Complaint at ~63.
Plaintiff filed his Complaint on August 22, 2011. He alleges four causes of action based
on discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§2000 et seq., the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq., and New York
State Executive Law §296. Complaint at ~75-84. Plaintiff initially made an "aider and abettor"
claim under New York State Executive Law §296, but has since withdrawn it. See Complaint at
83-84; Opp. Memo at 1.
On March 22, 2013, Defendant filed a motion for summary judgment, Plaintiff filed a
memorandum in opposition, and Defendant filed a reply to Plaintiffs memorandum. See SJ
Motion; Opp. Memo; Dkt. 35 (Defendant's Reply Memorandum of Law In Further Support of
its Motion for Summary Judgment) ("Reply").
Summary judgment is appropriate where "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The movant must show absence of a genuine issue for trial by citation to materials in
the record, including depositions, affidavits, declarations, and electronically stored information.
Fed. R. Civ. P. 56(c)(l)(A). Affidavits and declarations, whether supporting or opposing a
summary judgment motion, "must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated." Fed. R. Civ. P. 56(c)(4); see also Patterson v. Cnty of Oneida, New York, 375 F.3d 206,
219 (2d Cir. 2004).
"In determining whether summary judgment is appropriate, [the] Court will construe the
facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant." Brodv. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (internal quotation marks and citations omitted). The role of the district court is not to weigh
the evidence and determine the truth of the matter, but rather to perform "the threshold inquiry of
whether there is the need for a trial[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986). The district court reviews the movant's support for its claim that the record "could not lead
a rational trier of fact to find for the non-moving party." Lovejoy-Wilson v. NOCO Motor Fuel,
Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
If the moving party fulfills its preliminary burden, the burden shifts to the non-movant to
raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(l). The non-movant
must come forward with "specific facts showing that there is a genuine issue for trial." Cityspec,
Inc. v. Smith, 617 F. Supp. 2d 161 (E.D.N.Y. 2009) (Wexler, J.) (quoting Matsushita, 475 U.S. at
5 86). "The mere existence of a scintilla of evidence" in support of the non-movant will be
insufficient to defeat a summary judgment motion. Anderson, 477 U.S. at 252. Rather, the nonmoving party must make a showing sufficient to establish the existence of each element
constituting its case. See Celotex Corp. v. Catrett, 4 77 U.S. 317, 322-323 (1986) ("[A] complete
failure of proof concerning an essential element of the non-moving party's case necessarily
renders all other facts immaterial."). Conclusory statements, devoid of specifics, are insufficient
to defeat a properly supported motion for summary judgment. See Bickerstajfv. Vassar Coll.,
196 F.3d 435, 452 (2d Cir. 1999); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Summary judgment is a "drastic" measure that poses particular problems in the context of
discrimination, where an employer's intent is at issue and explicit documentation of
discriminatory intent is rarely discovered. Gallo v. Prudential Residential Serv., 22 F.3d 1219,
1224 (2d Cir. 1994). Nevertheless, "[i]t is now beyond cavil that summary judgment may be
appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta
Airlines, Inc., 239 F.3d 456, 465 (2d Cir. 2001).
Discrimination under the Title VII of the Civil Rights Act of 1964 and New
York State Executive Law §296.
The Court reviews discrimination claims under Title VII of the Civil Rights Act and
under New York Executive Law §296 identically. Hyek v. Field Support Servs., Inc., 461 F.
App'x 59, 60 (2d Cir. 2012). Such claims generally fall under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805 (1973). See also Lam
v. Sephora USA Inc., 488 F. App'x 487, 489 (2d. Cir. 2012); Brown v. City ofSyracuse, 673 F.3d
141, 150 (2d Cir. 2012); Meiri v. Dacon, 759 F.2d 989, 994-995 (2d Cir. 1985). Under this
framework, a plaintiff must make a prima facie showing of discrimination by showing ( 1) that he
belonged to a protected class; (2) that he was qualified for the position he occupied; (3) that he
was subject to an adverse employment action; and (4) the circumstances surrounding the adverse
action give rise to an inference of discrimination. Meiri, 759 F.2d at 995-996. The burden of
making a prima facie showing is a light one. Id. at 996 n.10.
After the plaintiff makes a prima facie case, the burden shifts to the defendant to show a
non-discriminatory reason for the plaintiffs termination. If the defendant successfully makes
such a showing, then the plaintiff has the burden of showing that the defendant's nondiscriminatory reasons were pretexts for discrimination. Lam, 488 F. App'x at 1 (citing
Patterson, 375 F.3d 206 (2d Cir. 2004)). Conclusory allegations of discrimination are
insufficient to show that a defendant's non-discriminatory reasons are pretexts and avoid
summary judgment. Meiri, 759 F.2d at 998; Delaney v. Bank ofAm. Corp., 766 F.3d 163, 170
(2d Cir. 2014) (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)).
However, if the plaintiff alleges that the defendant terminated his employment for a
combination of permissible and impermissible reasons, then the Court applies the "mixedmotive" framework established in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-245 (1989)
(superseded on other grounds). In a Price Waterhouse inquiry, Plaintiff must make a threshold
showing that his national origin was a "motivating" or "substantial" factor in Defendant's
employment decision. Lam, 488 F. App'x at 491 (citing Raskin v. Wyatt, 125 F.3d 55, 60 (2d Cir.
1997). Plaintiffs initial burden in a mixed-motive inquiry is heavier than his initial burden of
making a prima facie showing of discrimination under the McDonnell Douglas framework. See de
la Cruz v. N. YC. Human Res. Admin. Dept. ofSoc. Servs., 82 F.3d 16, 23 (2d Cir. 1996); Raskin,
125 F.3d at 60-61 (citing Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992))
(the plaintiff must initially present "evidence of conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the alleged discriminatory
attitude."). If the plaintiff meets this heavier initial burden, the defendant must then show that it
would have taken the same action absent the impermissible factor. Lam, 488 F. App'x at 2; see
also Fields v. N. Y State Office of Mental Retardation & Developmental Disabilities, 115 F .3d
116, 119-120 (2d Cir. 1997).
Discrimination under the Americans with Disabilities Act and New York
State Executive Law §296.
To establish a prima facie case of unlawful discrimination on the basis of disability under
the Americans with Disabilities Act ("ADA"), a plaintiff must show that (1) the defendant is an
employer subject to the ADA; (2) the plaintiff was disabled within the meaning of the ADA or
perceived to be so by his employer; (3) the plaintiff was otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodation; and (4) the plaintiff
suffered an adverse employment action because of his disability. Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 132 (2d Cir. 2008); Lewis v. Livingston Cnty. Ctr. for Nursing & Rehabilitation,
30 F. Supp. 3d 196, 208 (W.D.N.Y. 2014) (Wolford, J.). The Court reviews New York State
Executive Law §296 claims under the same standards as ADA claims. Gill v. Maul, 876
N.Y.S.2d 751, 753 (3d Dep't 2009). Furthermore, the Court reviews ADA claims under the
same burden-shifting framework established for Title VII cases in McDonnell Douglas Corp.,
411 U.S. at 802-805: once the plaintiff makes aprimafacie case for unlawful disability
discrimination, the defendant must provide a non-discriminatory reason for the adverse event,
upon which showing the plaintiff must show that the purported non-discriminatory reasons are
pretextual. Klaper v. Cypress Hills Cemetery, 10-CV-1811, 2014 WL 1343449, at *5 (E.D.N.Y.
Mar. 31, 2014) (Garaufis, J.) (citing McBride v. Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d
Cir. 2009)); see also Sista v. CDC !xis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
The Second Circuit has applied the Price Waterhouse "mixed-motive" framework to
ADA claims in the past. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 336 (2d Cir.
2006). However, the Supreme Court's subsequent holding that the "mixed-motive" framework
does not apply to discrimination claims under the Age Discrimination in Employment Act may
mean that the Second Circuit precedent applying the "mixed-motive" framework to ADA claims
is no longer valid. See Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 180 (2009); see also
Wesley-Dixon v. Warwick Valley Cent. School Dist., 586 F. App'x 739, 745 n.3 (2d Cir. 2014)
(citing Gross, 557 U.S. 167; Lewis v. Humboldt Acquisition Corp., 681F.3d312, 321 (6th Cir.
2012)). The Court will not decide that question here: as discussed below, Plaintiff cannot avoid
summary judgment under either framework.
Retaliation under the Title VII Civil Rights Act, the Americans with Disabilities Act,
and New York State Executive Law §296.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) he was engaged in an activity protected under Title VII; (2) the defendant was aware of his
participation in the protected activity; (3) the defendant took adverse action against the plaintiff;
and (4) a causal connection existed between the plaintiffs protected activity and the adverse
action taken by the defendant. Gordon v. NYC. Bd. of Educ., 232 F .3d 111, 116 (2d Cir. 2000)
(citing Cosgrove v. Sears, Roebuck & Co. 9 F.3d 1033, 1039 (2d Cir. 1993)). As in the case of a
discrimination claim under Title VII or the ADA, once the plaintiff establishes a prima facie
case, the defendant must provide a legitimate, non-retaliatory reason for the adverse action.
After that, the plaintiff must show that the reason is pretextual. Zann Kwan v. Anda/ex Grp.
LLC, 737 F.3d 834, 844-846 (2d Cir. 2013); Univ. of Tex. Sw. Med. Ctr. v Nassar, 133 S.Ct.
2517, 2534 (2013) (holding that the "mixed-motive" framework does not apply to retaliation
cases under Title VII). The Court analyzes ADA retaliation claims under the same standard as
Title VII retaliation claims. Treglia v. Town of Manlius, 313 F.3d 713,719 (2d Cir. 2002).
Furthermore, New York state law claims for retaliation for protected activity related to national
origin and disability discrimination are analyzed under the same standard as Title VII and ADA
retaliation claims. See Rodas v. Town of Farmington, 918 F. Supp.2d 183, 192 (W.D.N.Y. 2013)
(Telesca, J.) (aff'd on appeal, 567 F. App'x 24 (2d Cir. 2014)); Treglia, 313 F.3d at 719.
I. National Origin and Disability Discrimination Claims
Plaintiff asserts that the McDonnell Douglas burden-shifting framework applies to his
national origin discrimination claims. Opp. Memo. 11-12. He also asserts that the more lenient
mixed-motive framework applies. Opp. Memo. 12-13. Regardless of the framework used,
Plaintiff fails to demonstrate that a rational trier of fact could find that Defendant unlawfully
discriminated against him based either on national origin or on disability. The Court first
analyzes Plaintiffs national origin and disability claims under the McDonnell Douglas
framework. Title VII claims for national origin discrimination and ADA claims for disability
discriminations have differing standards for establishing a prima facie case. However, the
second and third steps of the McDonnell Douglas burden-shifting framework-the defendant's
burden to show non-discriminatory reasons and the plaintiffs subsequent burden to show that
those reasons are pretextual-are identical for Title VII and ADA claims. See, e.g., Meiri, 759
F.2d at 994-995; Klaper, 2014 WL 1343449 at *5. In this case, since the Court (as discussed
below) assumes arguendo that Plaintiff has established a prima facie case for both national
origin and disability discrimination, the Court analyzes the second and third McDonnell Douglas
steps of the national origin and disability claims together.
After reviewing Plaintiffs claims under McDonnell Douglas, the Court analyzes those
claims under the Price Waterhouse mixed-motive framework.
Plaintiff fails to show that Defendant's non-discriminatory reasons for
any of the adverse employment actions are pretexts under the McDonnell
Plaintiff has the burden of establishing a prima facie case of discrimination. This burden is
minimal. Meiri, 759 F.2d at 996 n.10. As Defendant has produced evidence of non-discriminatory
reasons that Plaintiff cannot show are pretextual, the Court will assume without deciding that
Plaintiff has successfully established aprimafacie case. Plourde v. Snow, 02-CV-5532, 2006 WL
4510754, at *11 n.9 (E.D.N.Y. June 14, 2006) (Feuerstein, J.),.
Defendant argues that Plaintiff's negative evaluations and termination were the result of
Plaintiff's poor performance and behavior at work from the start of his employment, and not the
result of discrimination by Defendant. In support, Defendant offers voluminous depositions,
affidavits, and declarations from co-workers and supervisors attesting to Plaintiff's mediocre or
unsatisfactory job performance, his combative behavior to co-workers and suppliers, and his
unwillingness to accept corrections about the appropriate email distribution lists. See, e.g., Dkt. 30
("Maniscalco Deel.") at ~~5, 8-9, 11-18, 21-23 (describing Plaintiff's work and evaluations thereof,
and management's attempts to help improve it, from November 2009 to September 2010); Riley
Deel. at ~~5, 15-28, 31-33 (describing Plaintiff's work and evaluations thereof, and management's
attempts to help improve it, from June 2009 to September 2010); Mum Deel.
that, according to Mum's observations, Plaintiff lacked the necessary skills for the job, did not
understand the military aspects of his analysis, used email disruptively, refused to copy Mum on
emails despite directives from managers to do so, and yelled and pointed his finger at Mum); Dkt.
27 ("Jordan Deel.")
7-12, 16-17 (stating that Plaintiff's work from late 2008 through June
2009 was poor); Bums Aff. Ex. 2, ("Kossowsky Deposition") at 12-14, 20, 34-35, 41-43, 46-47
(stating that Plaintiff's work had significant flaws, that his response to criticism was uneven, and
that the engineer who replaced him had superior technical skill); Bums Aff. Ex. 3, ("Silber
Deposition") at 12-13, 17-18, 21 (stating that Plaintiff's work was technically unsound and
"unacceptable"); Bums Aff. Ex. 6, ("Hanft Deposition") at 35-37 (describing disagreements with
Plaintiff over copying Mum on emails); Dkt. 36 (Reply Affidavit of Jason D. Bums in Further
Support of Defendant's Motion for Summary Judgment), Ex.1 ("Jordan Deposition") at 19-21, 31,
37-38, 54-56 (stating that Plaintiff was disruptive, did not work well with others, delayed the
gathering of data, and missed an important correlation between WRA7 and WRA9 failures).
Additionally, Defendant offers emails documenting complaints of Plaintiffs work
performance and attempts to help him improve it. See Bums Aff., Ex. 20 (April 30, 2009 email
from Mum criticizing Plaintiffs analysis, failure to copy Mum, and use of mass distribution lists,
which Mum reviewed at Hanft's request), Ex. 23 (May 8, 2009 emails between Mum and Anstey
concerning Plaintiffs trip to a supplier without notifying Mum), Ex. 25 (email from John Koch to
management concerning planned meeting with Plaintiff to discuss reporting responsibilities), Ex.
33 (email from Riley regarding Plaintiffs persistent failure to add a financial goal to his
Performance Management Process, a.k.a. "PMP"). Furthermore, Defendant has provided copies of
detailed performance reviews, all of which (except the late 2008 review) are negative. Bums Aff.,
Exs. 19, 29, 30, 38, 39. Defendant further states that Plaintiffs transfer to the AEW program was a
reasonable accommodation of his disability and not, as Plaintiff alleges, an attempt to set Plaintiff
up to fail. Riley Deel.
Bums Aff., Ex. 27 (healthcare provider statement that Plaintiff could
only work 10 hours a week).
In response to Defendant's evidence, Plaintiff offers his own disagreements with the
charges of poor performance, calling them "false and unsubstantiated." Opp. Memo at 14; see also
Bums Aff., Ex. 42 (Plaintiffs October 2010 letter to the EEOC providing his account of events).
Plaintiff also suggests that the timing of the adverse events is suspicious: his 2008 review was
satisfactory, and problems arose only after other employees inquired about his national origin.
Opp. Memo at 14. Two months after Plaintiffs return to work after his car accident, Plaintiff was
transferred to a new group; after this, he contends, he was deliberately overloaded with an
unreasonable amount of work for his reduced hours despite repeatedly informing supervisors of
this fact. Id. at 17; see also Bums Aff., Ex. 42. Plaintiff has also claimed that Defendant had a
financial motive to give him spurious negative reviews because Defendant could have gotten
government funding for a full-time employee in Plaintiffs stead. Id. Furthermore, Plaintiff
claimed that in his 2010 review, he received a rating of 1 ("needs improvement") on a project he
had done no work on in 2010 (the "French Garmin" project) and a rating of 2 ("meets
requirements") on two projects he claimed he had also done no work on; this, he implied,
invalidates the review. Id. The reference to the French Garmin project was removed from the
2010 review on September 13, 2010. Bums Aff., Ex. 39 (Plaintiffs mid-year 2010 performance
evaluation). Plaintiff also references a specific disagreement with Jordan. Opp. Memo at 5.
Plaintiff notes that Hanft agreed with Plaintiffs conclusion that there was no statistical correlation
· between WRA7 and WRA9 failures; however, Plaintiff fails to note that Hanft also agreed with
Jordan and that the statistical correlation was not the sole issue. Trane Deel., Ex.2 (April 2009
emails between Plaintiff, Jordan and Hanft); Jordan Deposition at 54-55. Plaintiff suggests that
this dispute shows that Jordan was being discriminatory in his negative observations of Plaintiffs
Plaintiffs response is insufficient to permit a rational trier of fact to conclude that
Defendant's non-discriminatory reasons are pretexts. Conclusory allegations of pretext and illicit
motives are insufficient to defeat a summary judgment motion. Meiri, 759 F.2d at 998; Delaney,
766 F.3d at 170. As such, Plaintiffs unsupported assertions that the documented criticisms of his
performance are "false and unsubstantiated" cannot defeat a summary judgment motion. Nor can
his unsubstantiated assertion that Defendant set him up to fail by transferring him to a new group
and giving him an unreasonable amount of work after his disability. Plaintiff points out that
Defendant's employees learned of his national origin between the 2008 review and the complaints
regarding Plaintiffs performance. However, Plaintiff had been working for Defendant for less
than two months at the time of the 2008 review. Bums Aff., Ex. 13 (Defendant's Records Data
concerning Plaintiff), Ex. 19 (Plaintiffs 2008 performance evaluation). The fact that his review
after more than six months of work was less satisfactory than his review after less than two months
of work does not show that Defendant's proffered nondiscriminatory reasons are pretexts. Nor do
Defendant's employees' inquiries about Plaintiffs name show that Plaintiffs subsequent negative
reviews, transfer, or termination occurred for discriminatory reasons. In particular, Plaintiffs own
statement that he heard nothing derogatory about people of Iranian descent while in Defendant's
employ weighs against inferring that Defendant's non-discriminatory reasons are pretextual. Trane
I at 86-87.
Similarly, the fact that Plaintiff was transferred to a new group after returning to work from
his accident is insufficient to permit a trier of fact to find that Defendant's stated reasons for the
transfer, the negative reviews, or the termination, were pretextual. Plaintiffs statement that he was
deliberately overloaded with work upon his transfer for discriminatory reasons is unsupported.
Indeed, Plaintiff in his deposition suggests that he is unsure of exactly when he first complained
about his workload being unreasonable for his hours; there is no evidence of Plaintiff raising this
complaint before he was given a warning and placed on probation in April 2010. See, e.g., Trane I
at 107-113; Trane Deel., Ex. 7 (Continued Deposition of Trane) ("Trane II") at 204; Bums Aff.,
Ex. 17 (February 1, 2010 letter of complaint from Plaintiff), Ex. 34 (Notes from probation review
meeting of June 21, 2010); Trane Deel., Ex.4 (Email from John Trane on June 22, 2010); Riley
Even after his June 21, 2010 complaint (see Bums Aff., Ex. 34; Trane Deel., Ex. 4),
when asked if the workload needed to be adjusted, Plaintiff did not respond. Bums Aff. Ex.
37(Email string dated May 17, 2010 and June 22, 28, and 29, 2010).
Finally, the existence of errors in Plaintiffs performance reviews does not support a
finding that the stated reasons for the negative ratings are pretextual.
Nor does Plaintiffs
disagreement with Jordan, in which Hanft attempted to support both Jordan and Plaintiff, show that
Jordan's criticisms of Plaintiffs performance were discriminatory. Therefore, Plaintiff fails to
avoid summary judgment for the Defendant under the McDonnell Douglas framework.
B. Plaintiff fails to show that discriminatory reasons were a motivating
factor in adverse actions under the Price Waterhouse mixed-motive
Plaintiffs evidence of discriminatory motives consists of ( 1) his statement describing
inquiries by some of Defendant's employees regarding his name in early 2009, which he concedes
were not derogatory; (2) his statement describing one occasion on which Plaintiff entered a
conference room with his walker and Hanft and Silber began to laugh; and (3) Plaintiffs
unsupported assertions that his transfer and his negative reviews were done out of bias against his
national origin or disability. See Opp. Memo at 3, 6-8. The individuals who inquired about
Plaintiffs name or laughed at him were identified as Mum, Frank Perazzo, Hanft, Silber, and
Jordan. Id. at 3, 6. Of those five individuals, only Jordan had any involvement in Plaintiffs
negative reviews in 2009 (though not in 2010). Bums Aff., Ex. 17 (Plaintiffs February 1, 2010
letter to Michael Riley), Ex. 29 (Plaintiffs 2009 midyear performance evaluation), Ex. 30
(Plaintiffs 2009 full-year performance evaluation); Jordan Deposition at 121-122. Additionally,
none of those individuals have any alleged or conceded involvement in Plaintiffs probation or
termination. See, e.g., Bums Aff., Ex. 42 (Plaintiffs October 25, 2010 letter to the EEOC, wherein
he provides his own account of his termination and describes Riley and Maniscalco making the
decisions involved); Jordan Deposition at 122-123; Mum Deel. at 20; Riley Deel. at i/i/21, 32;
Maniscalco Deel. at i!i!l 2, 22.
Thus, Plaintiff fails to show that any of the decision-makers involved in his negative
reviews or termination were biased against his national origin or disability. All he can provide are
a few ambiguous inquiries into his name and an ambiguous incident involving two people laughing
when he entered a room. Only one person involved in these incidents gave Plaintiff negative
reviews in 2009, and none had any alleged or conceded input into his 2010 reviews, his probation,
or his termination. This evidence is insufficient to meet the heavier initial burden, under the
mixed-motive framework, to show that discriminatory reasons were a motivating or substantial
factor in the employment decision. See, e.g., Lam, 488 F. App'x at 490 (finding that the
defendant's store manager's statement that the United States "belongs to the Americans and Puerto
Ricans" did not show that the store manager was biased against the Senegalese plaintiff, nor did it
permit the inference that the plaintiffs termination was based on his national origin); Raskin, 125
F .3d at 61-63 (finding that inquiries about age from a person involved in the employment decisionmaking process were insufficient to establish that age discrimination was a motivating or
substantial factor in employment decision). As such, Plaintiff cannot avoid summary judgment
under the mixed-motive framework any more than he can under the McDonnell Douglas
framework. The Court therefore GRANTS the Defendant's motion for summary judgment on
Plaintiffs discrimination claims.
Like discrimination claims under Title VII and the ADA, retaliation claims are analyzed
under the McDonnell Douglas three-step burden-shifting framework. Zann Kwan, 737 F.3d at
844-846. The mixed-motive framework does not apply to retaliation claims. See Nassar, 133
S.Ct. at 2534. As with Plaintiffs discrimination claims, the Court will assume without deciding
that Plaintiff has established a prima facie case of retaliation and will move on to the question of
whether a rational trier of fact could find Defendant's proffered non-retaliatory reasons to be
Plaintiffs argument that Defendant's non-retaliatory justifications are pretexts relies on
( 1) the notion that Plaintiff only received criticisms and negative reviews after an alleged (but
undocumented) complaint of discrimination in early 2009, while his 2008 performance review
was satisfactory, and (2) his assertion that Defendant's employees' negative comments regarding
his work are false. Opp. Memo at 21-22. However, Plaintiffs 2008 review, as stated before,
only covered the first few weeks of his employment with Defendant; the fact that this review was
slightly more positive than the later ones, which concerned much longer periods, is not sufficient
to show that Defendant's reasons for the later negative reviews are pretextual. Furthermore,
temporal proximity by itself is insufficient to show that Defendant's non-retaliatory reasons are
pretextual. See, e.g., Garone v. United Parcel Servs., OO-CV-6722, 2001 WL 984914, at *4
(E.D.N.Y. July 12, 2001) (Glasser, J.) (citing Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 312313 (S.D.N.Y. 2000) (Buchwald, J.)). Plaintiffs assertion that negative comments regarding his
work are false is, once again, insufficient to show that Defendant's reasons are pretexts. As
such, the Court GRANTS summary judgment on Plaintiffs retaliation claim.
The Court Exercises Jurisdiction Over Plaintiffs' State Law Claims
When the federal claims are dismissed in an action with state law claims based on
supplemental jurisdiction, the state claims should be dismissed as well. 28 U.S.C. § 1367(c)(3);
see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); In re Merrill Lynch Ltd P'ships
Litig., 154 F.3d 56, 61 (2d Cir. 1998). "In the usual case in which all federal-law claims are
eliminated before trial, the balance of factors . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims." Kolari v. New York-Presbyterian Hosp., 455
F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
However, in a case where the state law claims are part of the same case or controversy as the
federal claims and are analyzed identically, federal district courts will exercise their jurisdiction
over the state law claims and grant summary judgment on those claims as well.
Matthews v. Corning, 08-CV-6323, 2014 WL 74999457, at *20 (W.D.N.Y. Dec. 31, 2014)
(Wolford, J.). This is just such a case. Therefore, the Court GRANTS the Defendant's motion
for summary judgment on the Plaintiffs New York state law claims.
For the reasons stated above, Defendant's motion for summary judgment, Dkt. 23, is
HON. WILLIAM F.
United States Distri 1 Judge
Dated: March (,' 2015
Brooklyn, New York
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