Gunn v. UPS (United Parcel Service)
Filing
33
ORDER granting 30 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendant's motion for summary judgment. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/22/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-6951 (JFB)(SIL)
_____________________
JAMES GUNN,
Plaintiff,
VERSUS
UNITED PARCEL SERVICE, INC.,
Defendant.
MEMORANDUM AND ORDER
August 22, 2016
JOSEPH F. BIANCO, District Judge:
James Gunn (“Gunn” or “plaintiff”),
proceeding pro se, filed this action against
United Parcel Service, Inc. (“UPS” or
“defendant”) on November 26, 2014, alleging
age discrimination in violation of the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff
has been a delivery truck driver for defendant
since his early forties. He alleges that
defendant denied him a promotion because of
his age.
Defendant moves for summary judgment
on three grounds: (1) that the Labor
Management Relations Act (“LMRA”), 29
U.S.C. § 185(a), preempts plaintiff’s claim
because his case is substantially dependent
upon an interpretation of his collective
bargaining
agreement
(“CBA”);
(2)
that plaintiff’s claim is time-barred based on
the statute of limitations; and (3) that
plaintiff’s claim fails on the merits. For the
reasons that follow, the Court grants plaintiff’s
motion. Although plaintiff’s claim is not
preempted, it is both untimely and meritless.
First, the claim is time-barred because the
alleged discriminatory conduct occurred more
than 300 days before plaintiff filed a charge of
discrimination with the Equal Employment
Opportunity Council (“EEOC”). Second, even
if plaintiff’s claim is timely, it fails as a matter
of law because there is no evidence that
defendant did not promote plaintiff because of
his age.
I.
BACKGROUND
A.
Facts
The following facts are taken from the
parties’ depositions, affidavits, and exhibits
as well as defendant’s Local Rule 56.1
statement of facts.1
1.
amount of time UPS expects) or if he is
“under allowed” (i.e., faster than the amount
of time expected). (Id. ¶¶ 38–39.) An
employee may fail the evaluation if his routes
are “over allowed” (i.e., slower than the
amount of time expected). (Id. ¶ 37.) If the
employee does fail, he must return to his parttime job and wait one year to reapply for the
full-time position. (Id. ¶ 17.)
The Parties
In September 2006, defendant hired then
forty-year-old plaintiff as a part-time loader
and unloader in its Nassau, New York
facility. (Def.’s 56.1 ¶¶ 1–2.) Two years later,
plaintiff picked up work as a part-time driver.
(Id. ¶¶ 3, 23.) Throughout his tenure, he has
been a member of the local union, and the
terms and conditions of his employment are
governed by a CBA and a supplemental
agreement (hereinafter, the “Supplemental
Agreement”). (Id. ¶¶ 4–5.)
2.
Plaintiff’s first attempt started on
April 30, 2012. (Id. ¶ 27.) The attempt was
short-lived because plaintiff hit a parked car
less than two weeks later. (Id. ¶ 29.) As a
result, plaintiff failed to complete the
probationary period, and defendant returned
him to his position as a part-time loader and
unloader (hereinafter, the “May 2012
Decision”) until the one-year waiting period
elapsed. (Id. ¶ 31.)
Plaintiff’s Promotion Attempts
On three occasions, plaintiff attempted to
become a full-time package car driver. (Id. ¶¶
27, 32, 55.) At UPS, a part-time employee
may submit his name for consideration on a
part-time to full-time driving list. (Id. ¶ 12.)
If selected, that employee must complete a
probationary period, in which he must work
forty days as a driver in a seventy-day period.
(Id. ¶¶ 13–15.)
Plaintiff tried again for a promotion in
June and July 2013 (hereinafter, the “July
2013 Decision”). (Id. ¶ 32.) At that time, he
reported to three individuals, including center
manager Robert Truman, who was also over
forty years old. (Id. ¶¶ 33–34.) During this
attempt, plaintiff was “over allowed” on
fourteen out of a possible fifteen days. (Id. ¶
41; Gunn Dep. at 58.) In addition, plaintiff
did not park his vehicle correctly, use safety
techniques, or scan all of his packages for
delivery. (Def.’s 56.1 ¶¶ 43–46.) In light of
these performance problems, defendant
decided that plaintiff did not complete the
UPS management then decides whether
the part-time employee has met the standards
to become a full-time driver. (Id. ¶ 16.)
Management considers whether the applicant
completed his routes at “scratch” (i.e., the
1
At the outset the Court notes that plaintiff failed to
comply with Local Civil Rule 56.1, which required him
to oppose defendant’s Rule 56.1 Statement with
“correspondingly numbered paragraph[s].” Instead,
plaintiff submitted an opposition letter and
documentary evidence in support, including portions of
the CBA and various e-mails. Plaintiff’s failure to
comply “permits the court to conclude that the facts
asserted in [defendant’s] statement are uncontested and
admissible.” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d
412, 418 (2d Cir. 2009). However, district courts retain
broad discretion to overlook a party’s non-compliance
and “‘conduct an assiduous review of the record.’”
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.
2001) (quoting Monahan v. N.Y.C. Dep’t of Corrs., 214
F.3d 275, 292 (2d Cir. 2000)), abrogated on other
grounds by Gross v. FBL Fin. Servs., 557 U.S. 167
(2009). In light of plaintiff’s pro se status, the Court will
do so here. See Hayes v. Cnty. of Sullivan, 853 F. Supp.
2d 400, 406 n.1 (S.D.N.Y. 2012). Accordingly, the
Court will only admit the facts in defendant’s Rule 56.1
Statement that are supported by admissible evidence
and not controverted by other admissible evidence in the
record. See Jessamy v. City of New Rochelle, 292 F.
Supp. 2d 498, 505 (S.D.N.Y. 2003).
2
probationary period and returned him to his
prior part-time position once again. (Id. ¶ 47.)
Following this failure, however, plaintiff’s
union filed a grievance, which ultimately
gave plaintiff an opportunity to file his third
attempt without having to wait one year. (Id.
¶¶ 54–55.)
2013 meeting between Truman and various
employees, including plaintiff, at which
Truman allegedly asked the employees for
their ages and then stated the following: “I
like the young drivers. . . . Sorry[,] Jim.”
(Pl.’s Opp’n Ltr. at 4.) When asked about this
comment during his deposition, plaintiff
testified that “it wasn’t a comment to [him],
it was a comment that [Truman] made about
his appreciation for . . . the younger drivers.”
(Gunn Dep. at 155.) Truman denies that he
made this comment. (Truman Aff. ¶ 32; Gunn
Dep. at 155.)
However, plaintiff fared no better in his
final attempt, which took place around
December 2013 (hereinafter, the “December
2013 Decision”). (Id. ¶ 41; Gunn Dep. at
151–52.) Although plaintiff’s delivery times
improved, they were not consistently at
“scratch” or “under allowed.” (Def.’s 56.1 ¶
57.) Additionally, he still failed to scan all
packages for delivery, which could have
resulted in thousands of dollars in damages.
(Id. ¶¶ 62–63.) In another incident, a
supervisor caught plaintiff using his cell
phone while driving. (Id. ¶ 67.) On two
occasions, plaintiff did not take the mandated
one-hour lunch as required by the
Supplemental Agreement. (Id. ¶¶ 58–59.)
Despite these issues, he declined additional
help. (Id. ¶ 69.) As a result, plaintiff failed to
complete the probationary period and was
sent back to his part-time position again. (Id.
¶ 70.)
Plaintiff also attaches a letter written by
Owen Pettit (hereinafter, the “Pettit Letter”),
who identified himself as a package car driver
who worked in a different location than
plaintiff. Pettit’s letter states that plaintiff’s
“age definitely would have counted against
him.” (Pl.’s Opp’n Ltr. Ex. B at 35–36.)
However, the letter does not describe any
comments or incidents in support of this
statement, and Pettit acknowledges that he is
“not familiar with all the facts in [plaintiff’s]
case.” (Id. at 35.)
Separately, and contrary to plaintiff’s
assertions, the record reflects that, between
2012 and 2015, defendant promoted at least
sixteen drivers over forty years old to the
package car driver position and denied
promotions to at least four drivers younger
than forty years old. (Siotta Aff. ¶ 10; Truman
Aff. ¶ 31.)
Since the December 2013 Decision,
plaintiff has not attempted to become a fulltime package car driver. (Id. ¶ 77.) In his
deposition testimony, plaintiff stated that he
wants to become a full-time driver “on [his]
terms.” (Gunn Dep. at 172–73.) Nevertheless,
plaintiff is still a UPS employee and may
reapply for the package car driver position.
(Def.’s 56.1 ¶ 78.)
3.
4.
EEOC Filing
On June 27, 2014, plaintiff filed a charge
with the EEOC2 alleging age discrimination
Alleged Discrimination
In support of the alleged age
discrimination, plaintiff points to an October
2016 Ltr. at 2 (“Our counsel at the time contacted UPS
in February, 2014.”).) However, plaintiff does not state,
2
Plaintiff states that by February 2014, he retained
counsel who contacted the EEOC. (See Pl.’s Jan. 15,
3
occurring in June and December 2013.3
(Compl. ¶ 5; Brochin Aff. Ex. E, EEOC
Charge, at 116.) The EEOC dismissed the
charge and issued plaintiff a Notice of Right
to Sue on August 29, 2014. (Compl. at 8.)
B.
otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at
247–48 (emphasis in original).
The Second Circuit has also made clear,
summary judgment is still available “even in
the fact-intensive context of discrimination
cases.” Abdu–Brisson v. Delta Air Lines, Inc.,
239 F.3d 456, 466 (2d Cir. 2001); Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir. 1985)
(noting that “the salutary purposes of
summary judgment—avoiding protracted,
expensive and harassing trials—apply no less
to discrimination cases than to . . . other areas
of litigation”). Additionally, the Court
recognizes that direct evidence of
discrimination is rare and plaintiffs must
often resort to circumstantial evidence to
establish an employer’s hidden motives. See
Holtz, 258 F.3d at 69. However, “the mere
incantation of intent or state of mind [cannot]
operate as a talisman to defeat an otherwise
valid motion.” Meiri, 759 F.2d at 998.
Procedural History
Plaintiff
filed
this
lawsuit
on
November 26, 2014. Defendant moved for
summary judgment on February 16, 2016.
Plaintiff submitted his opposition on
March 16, 2016, and defendant replied on
March 31, 2016. The Court has fully
considered the arguments and submissions of
the parties.
II.
STANDARD OF REVIEW
To prevail on summary judgment, the
moving party must “show[] that there is no
genuine dispute as to any material fact.” Fed.
R. Civ. P. 56(a). A dispute is genuine only if
the evidence “might affect the outcome of the
suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In reviewing the evidence, the Court
must “assess the record in the light favorable
to the non-movant and . . . draw all reasonable
inferences in [his] favor.” Del. & Hudson Ry.
Co. v. Consol. Rail Corp., 902 F.2d 174, 177
(2d Cir. 1990).
Finally, the Court is mindful of plaintiff’s
pro se status. Accordingly, the Court must
construe his submissions liberally and
interpret them “‘to raise the strongest
arguments that they suggest.’” Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d
Cir. 2014) (per curiam) (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
However, plaintiff is not excused from “the
usual requirements of summary judgment.”
Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348
(S.D.N.Y. 2002). Thus, “conclusory
statements, conjecture, or speculation . . . will
not defeat summary judgment.” Kulak v. City
of N.Y., 88 F.3d 63, 71 (2d Cir. 1996).
Once the moving party has met this initial
burden, the opposing party “‘must come
forward with specific facts showing that there
is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(emphasis in original) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)). Put differently,
“the mere existence of some alleged factual
dispute between the parties will not defeat an
Plaintiff’s deposition testimony, however, states that
the discrimination occurred in July 2013. (Gunn Dep. at
197–99.)
3
and the Court is not aware of, the content of that
communication.
4
III.
A.
DISCUSSION
would necessarily be barred as a matter of
labor policy merely because it tangentially
involved a CBA.”).
LMRA Preemption
The Court will first address defendant’s
argument that the LMRA preempts plaintiff’s
claim. Specifically, defendant argues that the
resolution of the ADEA claim is
“substantially
dependent”
upon
an
interpretation of the CBA. If true, the United
States Supreme Court has determined that
such a claim is preempted by the LMRA.
However, the Court finds that the CBA is
only tangentially related to plaintiff’s ADEA
claim and, thus, there is no preemption by the
LMRA.
1.
2.
Application
Although “[t]he boundary between claims
requiring ‘interpretation’ of a CBA and ones
that merely require such an agreement to be
‘consulted’ is elusive,” the result here is
straightforward: the LMRA does not apply.
See Wynn v. AC Rochester, 273 F.3d 153, 158
(2d Cir. 2001) (per curiam). Plaintiff testified
that he wants to become a full-time driver “on
[his] terms,” thereby bypassing the
requirements of the CBA. (Gunn Dep. at
172–73.) Although plaintiff attached pages of
the CBA to his opposition letter, merely
referencing the CBA does not transform an
ADEA claim into an LMRA claim. Vera, 335
F.3d at 114 (“Not every suit concerning
employment or tangentially involving a CBA
. . . is preempted by section 301.”). In fact, as
the following exchange demonstrates,
plaintiff is alleging unfair treatment based on
his age:
Legal Standard
Section 301 of the LMRA governs suits
between an employer and a labor
organization for a breach of a CBA. See 29
U.S.C. § 185(a) (2012). Therefore if the
analysis of a state law claim is “substantially
dependent” upon the interpretation of a CBA,
“that claim must either be treated as a § 301
claim or dismissed as pre-empted by federal
labor-contract law.”4 Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 220 (1985) (citation
omitted). The goal is to promote uniformity,
“lest common terms in bargaining
agreements be given different and potentially
inconsistent interpretations in different
jurisdictions.” Livadas v. Bradshaw, 512 U.S.
107, 122 (1994). Thus, if a claim merely
references a CBA and does not interpret its
terms, section 301 does not apply. Vera v.
Saks & Co., 335 F.3d 109, 114–15 (2d Cir.
2003) (per curiam); accord Cameron v.
Idearc Media Corp., No. 08-12010-LTS,
2011 WL 4054864, at *8 (D. Mass. Sept. 9,
2011) (“Not every claim under the ADEA
Q: So what you’re seeking is
for UPS to breach the
Collective
Bargaining
Agreement?
A: I am either looking for
financial [sic] or to be put on
in a different building,
because I don’t think I’m
going to be treated fairly . . .
.
***
Q: But you understand that
To file a lawsuit under the LMRA, “the employee must
exhaust grievance procedures provided by the relevant
collective bargaining agreement.” Dougherty v. Am.
Tel. & Tel. Co., 902 F.2d 201, 203 (2d Cir. 1990).
4
5
[UPS is] bound by the
Collective
Bargaining
Agreement?
the LMRA is inapplicable.
A: I understand that they are
bound by the Collective
Bargaining Agreement, but .
. . I guess I can’t see them
allowing me [to go full time].
They’re going to throw up . .
. road blocks, whether it’s to
help somebody else out or . .
. just not work me.
Defendant argues that plaintiff’s claim is
barred by the statute of limitations. The Court
agrees.
B.
1.
Timeliness
Legal Standard
To assert an ADEA claim in New York, a
would-be litigant must file an administrative
charge within 300 days of the alleged
discriminatory conduct.5 Hodge, 157 F.3d at
166. This filing deadline acts as a statute of
limitations and starts to run when a “discrete
discriminatory act” occurs. See O’Grady v.
Middle Country Sch. Dist. No. 11, 556 F.
Supp. 2d 196, 199 (E.D.N.Y. 2008). If the
litigant misses the deadline, the claim is timebarred and should be dismissed unless there
are grounds for equitable tolling. See id.
(Gunn Dep. at 172–73.) Put another way,
plaintiff is challenging defendant’s decisionmaking, not the meaning of the CBA or the
lawfulness of its terms.
The decisions cited by defendant are
distinguishable because, unlike the instant
case, they require an explicit interpretation of
a CBA. See, e.g., Avedisian v. Quinnipiac
Univ., 387 F. App’x 59, 62 (2d Cir. 2010)
(requiring an application of a CBA where a
professor alleged that a university violated
the tenure review process outlined in the
agreement); Parker v. Metro. Transp. Auth.,
97 F. Supp. 2d 437, 447–48 (S.D.N.Y. 2000)
(applying a preemption analysis under the
Railway Labor Act, an analogue of the
LMRA, because the complaint required the
interpretation of various terms in the CBA);
Cameron, 2011 WL 4054864 at *1, *7
(concluding that the LMRA preempted an
ADEA claim, in part, because the plaintiff
argued that the defendant had no authority to
eliminate under-performing sales employees
based on an interpretation of a CBA). Thus,
2.
Application
Plaintiff filed his EEOC complaint on
June 27, 2014. Thus, in order to comply with
the 300-day window, the alleged
discriminatory conduct must have taken place
on or after August 31, 2013. However,
plaintiff contends that he was discriminated
against in July 2013.6 Therefore, plaintiff’s
claim did not occur within the 300 days
allowable and is, thus, untimely.7
Plaintiff challenges this conclusion,
arguing that the alleged discrimination
“continued into December 2013” and thus
took place within the 300-day window. (See
5
6
Generally, the filing deadline is 180 days from the
alleged discrimination. See 29 U.S.C. § 626(d)(1)(A).
However, in a “deferral state” like New York, where
local agencies are authorized to address discrimination,
an ADEA plaintiff has 300 days to file an EEOC charge.
Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164,
166 (2d Cir. 1998).
While the Complaint and the EEOC charge state that
the discrimination occurred in June 2013 (Compl. ¶ 5;
EEOC Charge at 116), plaintiff testified that the
discrimination occurred in July 2013. (Gunn Dep.
at 197–99.)
7
Plaintiff does not challenge the May 2012 Decision,
which is also time-barred.
6
Pl.’s Opp’n Ltr. at 5.) In support of this
argument, plaintiff notes that the Complaint
alleges that “[i]n December 2013 UPS
wrongfully ended [plaintiff’s] probationary
driving position yet again.” (Compl. ¶ 8.)
that occurred in June 2000, which would be
timely. Id. at 315. The court concluded that
the deposition testimony trumped any
contradictory allegations made pre- and postdeposition. Id. at 316. In reaching this
conclusion, the court relied on Second Circuit
precedent establishing “the increased
reliability of deposition testimony” and stated
that the timing of contradictory allegations
does not matter. Id. (citing Better Env’t, Inc.,
96 F. Supp. 2d at 168). As the court further
explained, the fact that the high school
student did not discuss the June 2000 incident
at her deposition “indicates that she did not
consider it to have been relevant to her
claims.” Id. at 315–16.
The Second Circuit has repeatedly
recognized that a party cannot defeat
summary judgment “‘simply by submitting
an affidavit [or letter] that contradicts the
party’s previous sworn testimony.’” See, e.g.,
Moll v. Telesector Res. Grp., Inc., 760 F.3d
198, 205 (2d Cir. 2014) (quoting In re
Fosamax Prods. Liab. Litig., 707 F.3d 189,
193 (2d Cir. 2013) (per curiam)). To hold
otherwise “‘would greatly diminish the utility
of summary judgment as a procedure for
screening out sham issues of fact.’” Palazzo
v. Corio, 232 F.3d 38, 43 (2d Cir. 2000)
(citing Perma Research & Dev. Co. v. Singer
Co., 410 F.2d 572, 578 (2d Cir. 1969)). Thus,
the Court will not “simply disregard
plaintiff’s earlier sworn testimony in favor of
inconsistent post hoc statements prepared for
purposes of this lawsuit.” See Better Env’t,
Inc. v. ITT Hartford Ins. Grp., 96 F. Supp. 2d
162, 168 (S.D.N.Y. 2000).
Here, when asked at his deposition when
he thought the discrimination occurred,
plaintiff replied that it occurred in July 2013.
(Gunn Dep. at 198–99 (“Q: So which
decision do you think -- which decision to
return you to [your workstation] do you think
was based on your age? A: I think, uhm, it
was July of 2013.”); see also Caesar Aff. ¶ 6.)
Accordingly, the Court will not consider the
December 2013 Decision. See McCullough v.
Burroughs, No. 04-CV-3216 (FB)(LB), 2008
WL 2620123, at *4 n.6 (E.D.N.Y. June 30,
2008).
The fact that the Complaint pre-dates the
deposition does not change this outcome. The
court in AB v. Rhinebeck Central School
District considered a similar situation and
held that when “[f]aced with deposition
testimony that contradicts an affidavit and a
complaint, this court must accept [the party’s]
sworn testimony.” 361 F. Supp. 2d 312, 316
(S.D.N.Y. 2005). In that case, a high school
student filed a sexual harassment lawsuit in
May 2003. Id. at 313–14. At her deposition,
she based her claim on two incidents that
occurred before January 1999. Id. at 315. The
school district moved for summary judgment
because the three-year statute of limitations
barred any events prior to May 2000. Id. at
314–15. Plaintiff argued in response that her
affidavit and complaint detailed an incident
Nor can plaintiff connect the July 2013
and December 2013 Decisions under the
continuing violation exception. A continuing
violation occurs “when there is evidence of
an ongoing discriminatory policy or practice,
such as use of discriminatory seniority lists or
employment tests.” Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 713 (2d Cir.
1996). Thus, if a plaintiff files a timely EEOC
charge “as to any incident of discrimination
in furtherance of an ongoing policy of
discrimination,” all claims are timely “even if
they would be untimely standing alone.” Chin
v. Port Auth. of N.Y. & N.J., 685 F.3d 135,
155–56 (2d Cir. 2012) (internal quotation
7
marks and citation omitted). However, this
exception is inapplicable to “discrete acts” of
discrimination, such as a failure to promote.
Id. at 156 (citing Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114 (2002)). Here,
plaintiff’s theory is that he was not promoted
because of his age. Therefore, each allegation
is a discrete act that falls outside of the
continuing violation exception.
defendant
employer
or
members of the prospective
defendant
labor
organization[; and]
(5) A statement disclosing
whether
proceedings
involving
the
alleged
unlawful
employment
practice
have
been
commenced before a State
agency charged with the
enforcement
of
fair
employment practice laws
and, if so, the date of such
commencement and the
name of the agency.
Moreover, any argument that plaintiff’s
attorney filed a timely EEOC charge in
February 2014 is meritless. (See Pl.’s Jan. 15,
2016 Ltr. at 2 (“Our counsel at the time
contacted UPS in February, 2014. This
disputes their claim of EEOC not being filed
in a timely manner [sic].”).) As alluded to
above, the EEOC enforces the provisions of
the ADEA through a series of interpreting
regulations, which require a prospective
plaintiff to file a “charge.” According to
EEOC regulations, a “charge” must be “in
writing” and “name the prospective
respondent and . . . generally allege the
discriminatory act(s).” 29 C.F.R. § 1626.6
(2016). The charge should also contain the
following:
Id. § 1626.8(a)(1)–(5). Essentially, “‘notice
to the EEOC must be of a kind that would
convince a reasonable person that the
grievant has manifested an intent to activate
the [ADEA’s] machinery.’” Holowecki v.
Fed. Exp. Corp., 440 F.3d 558, 566 (2d
Cir. 2006) (quoting Bihler v. Singer Co., 710
F.2d 96, 99 (3d Cir. 1983)). That has not
happened here. There is no indication that this
February 2014 communication was in writing
or that it contains the information specified in
sections 1626.6 and 1626.8. Additionally,
plaintiff’s deposition testimony references
only the formal EEOC charge filed in June
2014. (See Gunn Dep. at 212–13.) Therefore,
this February 2014 communication does not
constitute an EEOC charge for the purposes
of the timeliness inquiry under the ADEA.
(1) The full name, address
and telephone number of the
person making the charge;
(2) The full name and
address of the person against
whom the charge is made;
(3) A clear and concise
statement of the facts,
including pertinent dates,
constituting the alleged
unlawful
employment
practices;
Finally, plaintiff has not identified any
reason why his claim should be subject to
equitable tolling. That doctrine “allows
courts to extend the statute of limitations
beyond the time of expiration as necessary to
avoid inequitable circumstances.” Johnson v.
Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996).
However, it is only available in “‘rare and
exceptional’” cases—for example, where the
(4)
If
known,
the
approximate number of
employees of the prospective
8
defendant engaged in misleading conduct or
where the plaintiff suffered from a mental
condition that prevented him from complying
with the filing process. Zerilli-Edelglass v.
N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir.
2003) (quoting Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (per curiam)). No such
showing has been made here. Accordingly,
the Court dismisses plaintiff’s ADEA claim
as untimely.
C.
When a plaintiff presents no direct
evidence of discriminatory treatment based
on his age, the Court reviews his ADEA
claim under the burden-shifting framework
established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–05 (1973).8 A plaintiff establishes a
prima facie case of age discrimination under
the ADEA by showing “(1) that []he was
within the protected age group, (2) that []he
was qualified for the position, (3) that []he
experienced adverse employment action, and
(4) that such action occurred under
circumstances giving rise to an inference of
discrimination.” Gorzynski, 596 F.3d at 107.
Although the burden to survive a summary
judgment motion is “de minimis,” a plaintiff
must provide “‘admissible evidence
show[ing] circumstances that would be
sufficient to permit a rational finder of fact to
infer a discriminatory motive.’” Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203–04 (2d
Cir. 1995) (quoting Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994)).
Merits Analysis
Finally, even if plaintiff’s claim was
timely, it would still fail on the merits. The
record is devoid of any evidence showing that
defendant failed to promote plaintiff because
of his age. Thus, summary judgment is
warranted.
1.
Legal Standard
The ADEA prohibits discrimination
against employees over forty years old
because of their age. 29 U.S.C. § 623(a)(1).
The purpose of the statute is to prevent an
employer from “rely[ing] on age as a proxy
for an employee’s remaining characteristics,
such as productivity.” Hazen Paper Co. v.
Biggins, 507 U.S. 604, 611 (1993). The
plaintiff bears the burden of proving that “age
was the ‘but-for’ cause of the challenged
employer decision.” Gross, 557 U.S. at 175–
76, 178 (replacing the mixed-motives
analysis, which allowed a plaintiff to show
that an employer used both permissible and
impermissible considerations in the adverse
employment decision, with the “but-for”
rule).
Once a plaintiff establishes a prima facie
case of discrimination, “the burden of
production [shifts] to the defendant, who
must proffer a ‘legitimate, nondiscriminatory
reason’ for the challenged employment
action.” Woodman v. WWOR–TV, Inc., 411
F.3d 69, 76 (2d Cir. 2005) (citing Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87,
91 (2d Cir. 2001)). If defendant articulates a
legitimate,
nondiscriminatory
reason,
plaintiff must then prove that defendant’s
articulated reasons are pretextual. See id. at
76. “In short, the ultimate burden rests with
the plaintiff to offer evidence ‘sufficient to
support a reasonable inference that prohibited
Although the Supreme Court “has not definitively
decided whether the evidentiary framework of
McDonnell Douglas . . . utilized in Title VII cases is
appropriate in the ADEA context,” Gross, 557 U.S.
at 175 n.2, the Second Circuit has applied McDonnell
Douglas to post-Gross ADEA cases. See, e.g.,
8
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106
(2d Cir. 2010) (holding that the Supreme Court’s
decision in Gross did not disturb “the [McDonnell
Douglas] burden-shifting framework for ADEA cases
that has been consistently employed in [the Second]
Circuit”).
9
[age]
discrimination
occurred.’”
Id.
(alteration in original) (quoting James v. N.Y.
Racing Ass’n, 233 F.3d 149, 156 (2d Cir.
2000)).
2.
light of the legitimate issues with his
performance. Without evidence of a
discriminatory intent, the Court will not
second-guess that decision. “[I]t is not the
role of federal courts to review the
correctness of employment decisions or the
processes by which those decisions are
made.” Sassaman v. Gamache, 566 F.3d 307,
314 (2d Cir. 2009); see also Dorcely v.
Wyandanch Union Free Sch. Dist., 665 F.
Supp. 2d 178, 193 (E.D.N.Y. 2009) (“[T]he
employer’s burden of showing a legitimate
nondiscriminatory reason for its actions is not
a particularly steep hurdle. It is not a court’s
role to second-guess an employer’s personnel
decisions, even if foolish, so long as they are
nondiscriminatory.”).
Application
Under the first step of the McDonnell
Douglas analysis, plaintiff has not made out
a prima facie case. He failed to complete the
probationary period and thus was not
“qualified” for the package car driver
position. See Plaisner v. N.Y.C. Human Res.
Admin., No. 87 Civ. 4318, 1989 WL 31495,
at *4 (S.D.N.Y. Mar. 30, 1989) (“If a
probationary employee does not perform his
responsibilities satisfactorily during his
probationary period, then the employee is not
qualified to hold that position.”), aff’d, 888
F.2d 1376 (2d Cir. 1989); Lewis v. Jefferson
Parish Hosp. Serv. Dist. No. 2, 562 F. App’x
209, 211–12 (5th Cir. 2014).
Under the third step, the burden now
shifts to plaintiff, who must show that
defendant’s reasons are pretextual. Even
though plaintiff was “over allowed,” he
argues that his failure was due to “many
contributing factors”—for instance, he was
“not consistently on the same route” and “not
consistently worked.” (Pl.’s Opp’n Ltr. at 2.)
Plaintiff also alleges that some days were just
“[n]on scratchable.” (Id. Ex. O, Log of
Attempted Days, at 56–60.) Plaintiff further
argues that defendant frequently altered his
duties, pressuring him to help out other
drivers. (Gunn Dep. at 70–72.)
However, even if the Court assumes that
plaintiff demonstrated a prima facie case and
reaches the second step of the analysis,
defendant has articulated a legitimate,
nondiscriminatory reason for denying
plaintiff a promotion. Leading up to the July
2013 Decision, plaintiff was consistently
“over allowed” on his route, failed to work
safely, and failed to scan multiple packages.
(Gunn Dep. at 58, 82–83, 129–130.) Nor did
his performance improve in December 2013
where he repeated the same mistakes. (See,
e.g., Def.’s 56.1 ¶¶ 57, 62–63.) Moreover,
plaintiff failed to follow the Supplemental
Agreement and take the mandated one-hour
lunch break. (Gunn Dep. at 125–26.) He also
continued to work unsafely and inefficiently,
using his cell phone while driving a UPS
vehicle and forgetting to scan multiple
packages. (Id. at 132–33, 141–42.)
These purported explanations for his
under-performance, however, do not provide
evidence of age discrimination. The court
reached a similar conclusion in Robinson v.
Zurich North America Insurance Co.,
recognizing that courts cannot operate as
“employment appeals boards” when “there is
simply no evidence that the employment
decision at issue, whether correct or incorrect,
was motivated by a discriminatory purpose.”
892 F. Supp. 2d 409, 431 (E.D.N.Y. 2012). In
Robinson, an insurance auditor complained
of age discrimination, among things, after she
Thus, the record demonstrates that
defendant chose not to promote plaintiff in
10
young drivers.” Truman denies making this
statement (Truman Aff. ¶ 32), but even if he
had, plaintiff admitted that “it wasn’t a
comment to [him], it was a comment that
[Truman] made about his appreciation for . . .
the younger drivers.” (Gunn Dep. at 155.)9
Moreover, since the comment was allegedly
made in October 2013, the Court will not
infer a causal connection between the
comment and the December 2013 Decision.
At best, Truman’s comment was a stray
remark made over the course of plaintiff’s
lengthy employment. See Danzer v. Norden
Sys., 151 F.3d 50, 56 (2d Cir. 1998) (“[S]tray
remarks, even if made by a decisionmaker, do
not constitute sufficient evidence to make out
a case of employment discrimination.”).
Accordingly, plaintiff has failed to put forth
evidence from which a rational jury could
conclude that “age was the ‘but-for’ cause of
the challenged employer decision.” See
Gross, 557 U.S. at 178.
was fired by her employer. Id. at 412. In
particular, she argued that she received
inadequate training and an increased
workload. Nevertheless, the court concluded
that “there [wa]s simply not a single piece of
evidence
that
defendants’
adverse
employment actions were a pretext for . . . age
discrimination.” Id. at 431. The court also
noted that the relevant decision-makers were
within the protected class age, and the
insurance auditor was hired when she was
over forty years old. Id. at 432. The court also
found “no evidence that younger employees
not in the protected class were treated more
favorably.” Id.
Likewise here, plaintiff has not provided
any evidence of preferential treatment for
younger drivers. In a four-year period,
defendant promoted at least sixteen drivers
within the protected class age. (Siotta Aff. ¶
10; Truman Aff. ¶ 31.) Moreover, defendant
hired plaintiff when he was forty years old.
See Vinokur v. Sovereign Bank, 701 F. Supp.
2d 276, 288 (E.D.N.Y. 2010) (“[C]ourts in
this Circuit have recognized that any
inference of age discrimination is undercut
where, as here, a plaintiff is over 40 years old
when []he is hired.” (internal quotation marks
and citations omitted)). It is also telling that
Truman, the relevant decision maker, was
over forty years old. (Truman Aff. ¶ 2.) See
also Drummond v. IPC Int’l Inc., 400 F.
Supp. 2d 521, 532 (E.D.N.Y. 2005) (noting
the “well-recognized inference against
discrimination [that] exists where the person
who participated in the allegedly adverse
decision is also a member of the same
protected class”).
Plaintiff’s remaining arguments, which
rely on the Pettit Letter, the reference to
“intimated” witnesses, and the allegations
that plaintiff was “set up to fail,” are
meritless.
As a threshold matter, defendant does not
have any record of an employee named
“Owen Pettit.” (Def.’s Reply Br. at 5 n.5.)
Additionally, the Pettit letter contains
inadmissible conclusions. Though Pettit
asserts that plaintiff’s “age definitely would
have counted against him” (Pl.’s Opp’n Ltr.
Ex. B at 35–36), he fails to describe specific
instances of age discrimination. Finally, he
concedes that he is “not familiar with all the
facts in [plaintiff’s] case.” (Pl.’s Opp’n Ltr.
Ex. B at 35.)
Moreover, plaintiff’s case relies heavily
on an October 2013 meeting, in which
Truman allegedly stated that he “likes the
Next,
Plaintiff’s reliance on self-serving allegations that
Truman berated him about his incompetence are also
unavailing, as it is clear from plaintiff’s e-mail to his
plaintiff
alleges
that
several
attorney (Pl.’s Opp’n Ltr. Ex. L at 49), that Truman’s
comments concerned performance-related criticisms,
not plaintiff’s age.
9
11
witnesses—namely,
current
UPS
employees—are available to support his case
but were too “intimidated” to sign affidavits.
(Pl.’s Opp’n Ltr. at 5.) However, defendant
served plaintiff with a Notice to Pro Se
Litigants, which informed him that he “must
submit evidence, such as witness statements
or documents, countering the facts asserted
by the defendant and raising issues of fact for
trial.” Moreover, the Second Circuit has
recognized, “[t]he assertion that trial will
bring forth evidence is not sufficient to defeat
summary judgment.” Portee v. Deutsche
Bank, No. 03 Civ. 9380(PKC), 2006 WL
559448, at *8 (S.D.N.Y. Mar. 8, 2006).
summary judgment on the merits is proper in
this case.
IV.
CONCLUSION
For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment. The Clerk of the Court shall enter
judgment accordingly and close the case. The
Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken
in good faith, and thus in forma pauperis
status is denied for purposes of an appeal. See
Coppedge v. United States, 369 U.S. 438,
443–45 (1962).
Finally, Plaintiff’s assertion that he was
“set up to fail” is likewise without merit.
(Pl.’s Opp’n Ltr. at 3.) Plaintiff bases this
conclusion on (1) an article detailing
defendant’s
supposed
history
of
discrimination, and (2) an e-mail from an
individual named Bryan Kelly. (Id. at 3–4.)
First, although the article states that age
discrimination is a “common UPS lawsuit,”
this broad statement provides no evidentiary
support to plaintiff. (Id. Ex. N at 55.) Second,
the Bryan Kelly e-mail supports defendant’s
position, not plaintiff’s. Kelly stated the
following: “Regardless of the circumstances
of your case, making book at UPS is
something that very few trainees do. I trained
countless drivers and only a handful made it.”
(Id. Ex. E at 40.) Accordingly, the fact that
plaintiff tried and failed to complete the
probationary period, standing alone, does not
indicate that defendant discriminated against
him based upon his age.
SO ORDERED.
JOSEPH F. BIANCO
United States District Judge
Dated: August 22, 2016
Central Islip, New York
* * *
Plaintiff proceeds pro se. Defendant is
represented by Heather Weine Brochin,
Jessica Megan Arnold, and Michael Dell,
Day Pitney LLP, One Jefferson Rd.,
Parsippany, NJ 07054.
In sum, even if the Court credited all of
plaintiff’s evidence, there is no basis from
which a rational jury could conclude that age
was the “but for” cause—or even a
motivating factor—in defendant’s failure to
promote plaintiff either in July or December
2013. See Gross, 557 U.S. at 178. Thus,
12
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