Campbell v. Cellco Partnerships et al
Filing
60
OPINION AND ORDER. For the foregoing reasons, defendant's motion for partial summary judgment is granted. The Clerk of the Court is directed to close this motion [docket #33]. A conference is scheduled for February 15 at 4:00 p.m. in Courtroom 15C. (Signed by Judge Shira A. Scheindlin on 2/7/2012) (rjm)
UNITED STATES DISTRICT COURT USOC SDNY
SOUTHERN DISTRICT OF NEW YOI ~OCUJ\'f.ENT
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PATRICK CAMPBELL,
.
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Plaintiff,
OPINION AND ORDER
- against
10 Civ. 9168 (SAS)
CELLCO PARTNERSHIP d!b!a!
VERIZON WIRELESS, INC.,
Defendant.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Patrick "Tony" Campbell brings this diversity action against Cellco
Partnership, d/b/a Verizon Wireless, Inc. (hereinafter "Verizon"),l alleging claims
of racial discrimination and retaliation under the New York State Human Rights
Law ("NYSHRL,,)2 and the New York City Human Rights Law ("NYCHRL,,).3
The action was initially filed against Verizon and Patrick Devlin as an
individual, but on December 30, 2010, the parties stipulated to the voluntary
dismissal of Devlin pursuant to Fed. R. Civ. P. 41(a)(1)(ii).
2
NY. Exec. Law § 296, et seq.
3
N.Y.C. Admin. Code § 8-107(1)(a).
1
Campbell is an African-American and a citizen of New York.4 Verizon is a
Delaware corporation, with its principal place of business in New Jersey.5 Verizon
now moves for partial summary judgment dismissing plaintiff’s discrimination
claims under Rule 56(c) of the Federal Rules of Civil Procedure. For the following
reasons, defendant’s motion is granted and the discrimination claims are dismissed.
II.
BACKGROUND 6
A.
Undisputed Facts
Plaintiff began his career at Verizon in 2000 as a store manager.7
Beginning in 2001, plaintiff received both negative and positive feedback on his
performance appraisals. The positive comments included compliments in 2002
that he was the “hardest working store manager”8 and in 2004 on his “year over
4
See Amended Complaint (“Am. Compl.”) ¶ 1.
5
See id. ¶ 2.
6
The following facts are derived from the Amended Complaint and
from the parties’ Rule 56.1 statements and supporting documents. The facts are
undisputed unless otherwise noted; where disputed, they are construed in the light
most favorable to the plaintiff. See, e.g., Federal Ins. Co. v. American Home
Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).
7
See Am. Compl. ¶ 10.
8
Campbell’s Answer to Defendant’s Rule 56.1 Statement of Material
Facts (“Pl. 56.1”) ¶ 7.
2
year growth.”9 The negative feedback focused on his brash management style,
including a comment in 2001 that plaintiff “must observe staff and give positive
feedback” and a “Final Written Warning” in 2002 for using “abusive and
threatening language toward an employee.”10 In 2006, plaintiff’s supervisor told
him that his staff found him “unapproachable.”11 When he challenged these
complaints about his management ability in an email sent to the Human Resources
Department (“HR”), plaintiff was told that the concerns raised by his colleagues
were a “consistent theme that we have heard over time.”12
In 2005, plaintiff applied for, but was not awarded, the position of
District Manager (“DM”) for Verizon’s Manhattan stores; instead, he became the
DM of the Westchester/Putnam Zone.13 In 2006, plaintiff began reporting to Kevin
Zavaglia (a Caucasian)14 and, in April of 2006, plaintiff became the DM of the
9
Id. ¶ 14.
10
Verizon’s Rule 56.1 Statement of Undisputed Facts (“Def. 56.1”) ¶ 7.
11
Id. ¶ 19.
12
4/28/06 Email from Annette Lowther (an HR employee) to Campbell
(4:47 PM), Ex. 2 to Declaration of Lisa E. Dayan, defendant’s counsel, in Support
of Motion for Partial Summary Judgment (“Dayan Decl.”).
13
See Def. 56.1 ¶ 16. The position of Manhattan DM was given to
Frank Campbell, a Caucasian unrelated to plaintiff. See Pl. 56.1 ¶ 15.
14
See Def. 56.1 ¶ 18.
3
Brooklyn and Queens Zone.15 John McCarthy (a Caucasian), replaced plaintiff as
DM of the Westchester/Putnam Zone.16 In January 2008, Patrick Devlin (a
Caucasian) was hired as Regional President17 and, in March 2008, Devlin
interviewed plaintiff for the Director of Regional Sales position — the supervisor
of the DM’s18 — but hired Michael Scribner (an African-American) for the
position instead. That same month, plaintiff’s staff tampered with the Net
Promoter Scores (“NPS”) in order to increase the customer service ranking for
their stores.19 Scribner spoke to plaintiff about this incident and was “very angry
and yelling.”20 Plaintiff’s performance appraisal for 2008 was “largely positive,”
but included familiar concerns “voiced by some of the members of Tony’s team
about the means in which he communicates with them.”21
15
See id. ¶ 22.
16
See id. ¶ 23. Plaintiff alleges that McCarthy was an employee used by
defendant to “take care of any messy situation” including taking “action to squelch
[] union activity.” Am. Compl. ¶¶ 34-35.
17
See Def. 56.1 ¶ 24.
18
See id. ¶ 25.
19
See id ¶ 30. NPS are customer satisfaction surveys. Plaintiff’s staff
allegedly “fill[ed] out [the] customer surveys themselves.” Id.
20
Pl. 56.1 ¶ 30. While plaintiff pleads a hostile work environment
claim, this is the only instance of any such hostility evident in the record.
21
Def. 56.1 ¶ 32.
4
In 2009, plaintiff accepted a transfer to the position of DM of Zone 9,
in Manhattan.22 In early 2009, after Circuit City filed for bankruptcy, Verizon laid
off its “lowest performing employees” and froze hiring.23 From January to June
2009, plaintiff “consistently ranked in the lower half of the DM’s” on the sales
score cards.24 Citing his lack of “necessary skills to manage the Manhattan
stores”25 and “complaints about [p]laintiff from members of his staff,”26 Scribner
transferred plaintiff from his position as DM of Manhattan, Zone 9, back to DM of
Brooklyn and Queens, where he replaced Tomas Cain (a Caucasian).27 Khurram
Zyed (an Arab-American) replaced plaintiff as DM of Manhattan, Zone 9.28
For the first three months as DM of Queens and Brooklyn, plaintiff
ranked eleventh out of sixteen DM’s in July 2009, thirteenth out of sixteen DM’s
in August 2009, and eleventh out of sixteen DM’s in September 2009.29 Plaintiff
22
See id. ¶ 35.
23
Id. ¶ 59.
24
Id. ¶ 69.
25
Id. ¶ 72.
26
Id. ¶ 70.
27
See id. ¶ 72.
28
See id. ¶ 73.
29
See id. ¶ 77.
5
made informal complaints about being understaffed,30 but he “never made a written
request to the Incentive Review Board (IRB) for quota relief.”31 During this time
Scribner “received more complaints from members of [p]laintiff’s staff,”32 but
plaintiff “was not disciplined in any way at the time . . . .”33
In the middle of September 2009, Scribner emailed Marielena
McDonald (an HR employee) seeking to demote plaintiff.34 Scribner attached a
letter outlining his reasons, which included complaints about plaintiff’s
management style and that his NPS scores were the “lowest;” and that his “Year
over Year growth” was the lowest of all DM’s in the same portion of the New
York Metro Area.35 Scribner’s request was denied. However, Nancy Percent (an
HR employee) expressed “concern that nothing more formal was ever delivered to
30
See id. ¶ 64.
31
Id.
32
Id. ¶ 78.
33
Pl. 56.1 ¶ 78.
34
See 9/18/09 Email from Scribner to McDonald (10:33 AM), Ex. 12 to
Declaration of Lisa E. Dayan, defendant’s counsel, in Support of Motion for
Summary Judgment (“Dayan Decl.”).
35
Def. 56.1 ¶ 82.
6
Tony” even though she had “heard about these concerns for months.”36
Around the same time, Devlin and his supervisor, David Small, paid a
surprise visit to one of plaintiff’s stores.37 After an employee was unable to answer
questions about the store’s NPS, plaintiff was placed on an NPS specific
Performance Improvement Plan (“PIP”).38 While Devlin was copied on the letter
discussing the NPS PIP, it was sent by Scribner.39 Plaintiff met with Scribner in
October 2009 to discuss the NPS PIP but he refused to sign it.40 After that
meeting, plaintiff met with Lambert to complain about racial discrimination.41
This was the first time plaintiff lodged an official complaint with Lambert.42
In mid-October 2009, Scribner (in consultation with plaintiff,
Lambert, and McDonald), drafted an Overall 30-day PIP for plaintiff.43 During
36
9/29/09 Email from Percent to Eileen Lambert (an HR employee)
(5:25 PM), Ex. 12 to Dayan Decl.
37
See Def. 56.1 ¶ 88.
38
See id. ¶ 93.
39
See Letter from Scribner to Campbell, Ex. 9 to Dayan Decl.
40
See Def. 56.1 ¶ 95.
41
See id. ¶ 96.
42
See id.
43
See id. ¶¶ 100-103.
7
this time, Scribner accepted the position of Director for the Northeast Area44 and
McCarthy was hired as Scribner’s replacement.45 On October 30, 2009, McCarthy
and Lambert placed plaintiff on the Overall 30-day PIP.46 In November 2009,
plaintiff was “given a Final Written Warning for divulging confidential
information” about another employee’s demotion.47 At the end of November, the
30-day PIP was extended another thirty days.48 Plaintiff ranked first out of sixteen
DM’s in November 200949 and fifteenth out of sixteen DM’s in December 2009.50
In December 2009, plaintiff’s Performance Appraisal ranked him as
“developing,” the lowest possible score.51 Plaintiff was warned that he would be
placed under a Final PIP because he had “failed to reach [his] sales quota and . . .
his growth performance was the lowest in the region.”52 Plaintiff met at least some
44
See Deposition of Michael Scribner (“Scribner Dep.”) at 82:8-9.
45
See Def. 56.1 ¶ 107.
46
See id. ¶ 109.
47
Id. ¶ 110.
48
See id. ¶ 112.
49
See Pl. 56.1 ¶ 112.
50
See Def. 56.1 ¶ 115.
51
Id. ¶ 118.
52
Id. ¶¶ 119-120.
8
of his Management by Objective (“MBO”) goals each quarter of 2009,53 but the
MBO metric is not “a measure of overall performance” and does not “measure a
DM in comparison with his/her peers in the Region.”54 In his Affidavit, McCarthy
explains that “a DM could have been doing very poorly and below the region
average . . . but still get the full MBO payment goal by showing 3% improvement
over his/her own score . . . even if [those] results were still below the regional
average.”55
In January 2010, plaintiff went on leave to care for his sick father and
was not placed on the Final PIP until he returned in April 2010.56 The letter
placing plaintiff on the Final PIP cites his Zone’s performance in the first three
months of 2010 — the time he was on leave.57 On August 2, 2010, plaintiff was
terminated for failing to meet the goals that were set in the Final PIP.58
53
See Defendant’s Reply in Further Support of Motion for Partial
Summary Judgment (“Def. Reply”) at 10.
54
12/06/11 Affidavit of John McCarthy, Verizon Director of Retail
Sales for the New York Metro Area, in Support of Defendant’s Motion for
Summary Judgment (“McCarthy Aff.”) ¶ 29.
55
Id. ¶ 30.
56
See Def. 56.1 ¶ 121.
57
See 4/21/10 Letter from McCarthy to Campbell, Ex. 15 to Dayan
58
See Def. 56.1 ¶¶ 124-125.
Decl.
9
B.
Disputed Facts
1.
Plaintiff’s Version
Campbell does not deny the general time line of events, but
characterizes most of the transfers and PIPs as part of “Devlin’s discriminatory
plot” to have him terminated.59 However, some events occurred before Devlin was
hired as Regional President in January 2008. Plaintiff states that the “Final Written
Warning” he received in 2002 was given after he notified HR about employees in
his Zone attempting to unionize.60 Plaintiff states further that his transfer from
Westchester to Queens in April 2006 was “retaliation for [his] . . . refusal to take
action against union activities and because he was black . . . .”61 Plaintiff argues
that the decision not to promote him to DM of Manhattan in 2005 was motivated
by “discriminatory animus against” him,62 because, although he had been
characterized as “highly promotable,” the position was given to Frank Campbell (a
Caucasian).63 Plaintiff states generally that “Devlin passed him over for promotion
59
Pl. 56.1 ¶ 133.
60
See id. ¶ 14.
61
Am. Compl. ¶ 29.
62
Pl. 56.1 ¶ 15.
63
Id.
10
at least nine times,”64 but does not specify these particular instances.
Plaintiff states that he was not hired for the position of Director of
Regional Sales in 2008 because, when asked about integrity during his interview
with Devlin, he stated that “a white Verizon Wireless employee had less integrity
than [he] did.”65 Plaintiff claims that Devlin took offense at this remark and
withheld the position from him, which he views as discriminatory.66
Campbell claims that during the time he was DM of Manhattan, Zone
9, the reductions of staff in his zone “were more extreme”67 than in other New
York Metro Zones. Plaintiff also states that his two “top producing stores” were
taken away from him, thereby hurting his quota,68 and that his poor performance as
DM of Manhattan, Zone 9 was caused by Devlin’s “plan to realign the borough by
taking away lucrative stores” from his supervision.69
Plaintiff does not deny that his sales numbers were low, but he blames
his low sales numbers on the quota system, which he claims was manipulated by
64
Id. ¶ 127.
65
Id. ¶ 27.
66
See id.
67
Id. ¶ 62.
68
Id. ¶ 67
69
Id. ¶ 69.
11
Devlin and applied “discriminatorily based on [plaintiff’s] race.”70 Plaintiff states
that Devlin ordered his transfer back to Queens,71 and that the number of
employees reporting to him in Queens was unfairly reduced after his transfer to
that Zone.72 Plaintiff also claims that his “movement to and from Manhattan was
‘rigged’” by Devlin.73
According to Plaintiff, Devlin ordered that he be placed on the NPS
PIP in retaliation for a prior complaint of discrimination, but he does not specify
when this complaint was lodged.74 Plaintiff claims that the NPS PIP was “ordered”
by Devlin “for discriminatory reasons.”75
Even though October 2009 was the first time plaintiff lodged a formal
complaint of race discrimination with Lambert, plaintiff states that he also
complained to McDonald in June 2009 and directly to Scribner.76 Plaintiff states
70
Am. Comp. ¶ 47.
71
See Pl. 56.1 ¶ 74.
72
See id. ¶ 77.
73
Id. ¶ 72
74
See id. ¶ 91.
75
Id. ¶¶ 89, 93.
76
See id. ¶ 96.
12
that “he raised allegations of discrimination against senior managers,”77 and that he
“never received a disciplinary action . . . until after he made race complaints in
June 2009.”78
Plaintiff claims that he was not given a true opportunity to succeed
and that by the time he was placed on the PIPs, Verizon “had decided . . . that
[p]laintiff would either accept a demotion or be fired.”79 As evidence, plaintiff
points to the fact that he consistently met his MBO quotas80 and that the
performance of his stores during the first quarter of 2010 was incorporated into the
decision to place him under the Final PIP even though he was on leave during this
time.81 He also states that he was not permitted to make a lateral transfer because
of the PIPs he was placed on.82
2.
Defendant’s Version
Defendant provided evidence that Frank Campbell was promoted to
DM of Manhattan in 2005 over plaintiff because he had more seniority, having
77
Id. ¶ 109.
78
Id. ¶ 123.
79
Id. ¶ 124.
80
See id. ¶ 119.
81
See id. ¶ 121.
82
See Deposition of Tony Campbell (“Pl. Dep.”) at 396:19-23.
13
worked for Verizon since 1996.83 Furthermore, defendant provided an email
wherein Lowther stated that plaintiff was transferred from Westchester to Queens
in order to allow him to “start fresh with a new management team and
employees.”84 Regarding the 2008 Director of Regional Sales position, defendant
provided evidence that Scribner was employed by Verizon longer than plaintiff85
and that Devlin formed a “poor” impression of plaintiff during the interview.86
Verizon addressed four additional promotions: in 2008, Thomas Varghese (an
Indian-American) was promoted to Director of Indirect Sales (he had five years of
relevant experience compared to less than two for plaintiff;87 in June 2010, Frank
Campbell was promoted to Director of Telesales (plaintiff did not apply for this
position);88 in May 2009, James Clifford was promoted to Director of Business
Sales (plaintiff did not apply for this position);89 and in April 2010, Guiseppe
83
See McCarthy Aff. ¶ 6.
84
4/28/06 Email from Lowther to Campbell (4:47 PM), Ex. 2 to Dayan
Decl.
85
See Scribner Dep. at 8:3 (stating that he has been employed by
Verizon for “[t]hirteen and a half years.”).
86
Deposition of Patrick Devlin (“Devlin Dep.”) at 101:25.
87
See McCarthy Aff. ¶ 5.
88
See id. ¶ 6.
89
See id. ¶¶ 8-9.
14
Salonna was promoted to Director of Indirect Distribution (plaintiff did not apply
for this position).90
Contrary to plaintiff’s assertion that his Manhattan stores lost more
employees than other New York Metro Zones, Verizon provided an affidavit
stating that during this time “22 Manhattan employees were laid off, 11 from Zone
8 and 11 from Zone 9.”91 Verizon also stated that “quotas are assigned to stores,
not individual DM’s.”92 Thus, even if, as plaintiff asserts, his best stores were
taken away from him, this would not hinder his ability to meet his overall quota.
During his deposition, Devlin testified that it was Scribner who
decided to transfer plaintiff from Manhattan to Queens and merely informed
Devlin of his choice.93 Defendant provided substantial evidence showing that
Devlin had no influence over the quota system and that the quotas were formulated
by Verizon’s finance division.94 Defendant provided additional evidence that
90
See id. ¶¶ 10-11.
91
Id. ¶ 15.
92
Def. 56.1 ¶ 67.
93
See Devlin Dep. at 251:22-24.
94
See 9/20/11 Affidavit of Betty Simon, Verizon Associate Director of
Operations in the Northeast Area, in Support of Defendant’s Motion for Summary
Judgment (“Simon Aff.”) ¶ 16; 9/21/11 Affidavit of Russell Herman, Verizon
District Manager in the New York Metro Area, in Support of Defendant’s Motion
for Summary Judgment (“Herman Aff.”) ¶ 16.
15
Devlin was not involved in setting the number of employees for plaintiff’s stores.95
Devlin further testified that the decision to discipline plaintiff over the
NPS tampering incident was “up to Mike Scribner and the HR Department;”96
Scribner testified to the same in his deposition.97 Defendant acknowledged that
plaintiff complained to Lambert in October 2009, but stated that his complaints
were non-specific and therefore HR was unable to investigate further.98 After
Scribner’s request to have plaintiff demoted, HR “recommended that [plaintiff] be
placed on a written [Performance Improvement Plan].”99
Defendant disputes that the Final PIP was extended another month as
a means to discriminate against plaintiff. According to Verizon, to be “taken off a
PIP requires consistent improvement,”100 which plaintiff failed to show, ranking
fifteenth out of sixteen DM’s in December 2009.101 Furthermore, McCarthy and
95
See 10/18/11 Affidavit of Peter Deane, Verizon Manager of Sales
Operations for the New York Metro Region, in Support of Defendant’s Motion for
Summary Judgment (“Deane Aff.”) ¶ 19.
96
Devlin Dep. at 248:15-16.
97
See Scribner Dep. at 6:22.
98
See Def. 56.1 ¶ 99.
99
Id. ¶ 86.
100
Id. ¶ 117.
101
See id. ¶ 115.
16
Lambert could not have known of plaintiff’s sales for the month of November until
December — after they had decided to extend the PIP.102
III.
LEGAL STANDARDS
A.
Summary Judgment
Summary judgment is appropriate “if 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.”103 “For summary judgment purposes, a ‘genuine issue’ exists
where the evidence is such that a reasonable jury could decide in the non-moving
party’s favor.”104 “‘A fact is material when it might affect the outcome of the suit
under governing law.’”105
In a summary judgment setting, “[t]he burden is on the moving party
to demonstrate that no genuine issue respecting any material fact exists.”106 “When
102
See id. ¶ 113.
103
Fed. R. Civ. P. 56(a).
104
Sanchez v. Connecticut Natural Gas Co., 421 Fed. App’x 33, 34 (2d
Cir. 2011) (quoting Nabisco, Inc. v. Warner–Lambert Co., 220 F.3d 43, 45 (2d Cir.
2000)).
105
Carter v. Incorporated Village of Ocean Beach, 415 Fed. App’x 290,
292 (2d Cir. 2011) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
202 (2d Cir. 2007)).
106
Mavrommatis v. Carey Limousine Westchester, Inc., No. 10 Civ.
3404, 2011 WL 3903429, at *1 (2d Cir. Sept. 7, 2011) (citing Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)).
17
the burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence . . . on an essential element
of the nonmovant’s claim.”107 In turn, to defeat a motion for summary judgment,
the non-moving party must raise a genuine issue of material fact. The non-moving
party “‘must do more than simply show that there is some metaphysical doubt as to
the material facts,’”108 and cannot “‘rely on conclusory allegations or
unsubstantiated speculation.’”109
In deciding a motion for summary judgment, a court must “‘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.’”110 However,
“‘[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’”111
107
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009).
108
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
109
Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010)).
110
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting
Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
111
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
(emphasis removed).
18
“‘The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.’”112
Summary judgment may be proper even in workplace discrimination
cases, which tend to be very fact-intensive, because “‘the salutary purposes of
summary judgment—avoiding protracted, expensive and harassing trials—apply
no less to discrimination cases than to other areas of litigation.’”113 However,
“‘[b]ecause direct evidence of an employer’s discriminatory intent will rarely be
found,’ motions for summary judgment in employment discrimination actions
should be evaluated with caution.”114 Nonetheless, a plaintiff bringing a workplace
discrimination claim must make more than conclusory allegations in order to
defeat a motion for summary judgment.115 It is incumbent upon courts to
“distinguish between evidence that allows for a reasonable inference of
112
Brod, 653 F.3d at 164 (quoting Wilson v. Northwestern Mut. Ins. Co.,
625 F.3d 54, 60 (2d Cir. 2010)).
113
Hongyan Lu v. Chase Inv. Servs. Corp., 412 Fed. App’x 413, 415 (2d
Cir. 2011) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)).
Accord Abdu–Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
114
Gear v. Department of Educ., No. 07 Civ. 11102, 2011 WL 1362093,
at *2 (S.D.N.Y. Mar. 30, 2011) (quoting Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997)).
115
See id.
19
discrimination and evidence that gives rise to mere speculation and conjecture.”116
And “[a]lthough claims under the NYCHRL are ‘more liberally construed than
claims under Title VII and the NYSHRL, the NYCHRL does not alter the kind,
quality or nature of evidence that is necessary to support or defeat a motion for
summary judgment under Rule 56.’”117
B.
NYCHRL
Campbell brings his discrimination claims under the NYSHRL and
the NYCHRL. The NYCHRL provides, in relevant part, that
[i]t shall be an unlawful discriminatory practice . . . [f]or an
employer or an employee or agent thereof, because of the actual
or perceived age, race, creed, color, national origin, gender,
disability, marital status, partnership status, sexual orientation or
alienage or citizenship status of any person, to refuse to hire or
employ or to bar or to discharge from employment such person or
to discriminate against such person in compensation or in terms,
116
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999). Accord
Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.
2003) (“‘[P]urely conclusory allegations of discrimination, absent any concrete
particulars,’ are insufficient” to satisfy an employee’s burden on a motion for
summary judgment) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)
(alteration in original)). Accord Jenkins v. New York State Banking Dep’t, Nos. 07
Civ. 6322, 07 Civ. 11317, 2010 WL 2382417 (S.D.N.Y. Sept. 30, 2010).
117
Ballard v. Children’s Aid Soc’y, 781 F. Supp. 2d 198, 211 (S.D.N.Y.
2011) (quoting Deshpande v. Medisys Health Network, Inc., No. 07 Civ. 375, 2010
WL 1539745, at *22 (E.D.N.Y. Apr. 16, 2010)) (quotation marks omitted). Accord
Julius v. Department of Human Res. Admin., No. 08 Civ. 3091, 2010 WL 1253163,
at *5 (S.D.N.Y. Mar. 24, 2010).
20
conditions or privileges of employment.118
Courts have previously interpreted the NYCHRL as being coextensive with Title
VII and the NYSHRL, but by enacting the Local Civil Rights Restoration Act of
2005 (“Restoration Act”),119 “the New York City Council . . . rejected such
equivalence.”120 The City Council’s passage of the Restoration Act “confirm[ed]
the legislative intent to abolish ‘parallelism’ between the [NYCHRL] and federal
and state anti-discrimination law.”121 The NYCHRL must be construed
“independently from and ‘more liberally’ than [its] federal and state
counterparts.”122 As a result, although interpretations of similar laws may be used,
they act only as “a floor below which the City’s Human Rights law cannot fall.”123
Under the Restoration Act, the NYCHRL “explicitly requires an
118
N.Y.C. Admin. Code § 8-107(1)(a).
119
N.Y.C. Local Law No. 85 (2005).
120
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.
2009). Accord Buckman v. Calyon Sec. (USA) Inc., No. 09 Civ. 6566, 2011 WL
4153429, at *7 (S.D.N.Y. Sept. 13, 2011).
121
Loeffler, 582 F.3d at 278 (quoting Williams v. New York City Hous.
Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009)).
122
Id.
123
Id. (emphasis removed). Because of this, if plaintiff’s claims fail
under the NYCHRL they necessarily fail under the NYSHRL.
21
independent liberal construction analysis in all circumstances, even where [s]tate
and federal civil rights laws have comparable language.”124 However, for both
discrimination and retaliation claims under the NYCHRL, courts continue to apply
the three-step, burden-shifting framework that the Supreme Court articulated in
McDonnell Douglas Corp. v. Green.125 Under the NYCHRL, unlike Title VII,
courts must address the “‘uniquely broad and remedial’ purposes [of the
NYCHRL], which go beyond those of counterpart [s]tate or federal civil rights
laws.”126 That said, a plaintiff must still demonstrate “by a preponderance of the
evidence that [he] has been treated less well than other employees” due to unlawful
discrimination.127
Under the McDonnell Douglas framework, an employee initially bears
the burden of producing evidence sufficient to support a prima facie case of
discrimination.128 Such evidence need be no more than “minimal” or “de
124
Williams, 872 N.Y.S.2d at 31.
125
See 411 U.S. 792, 802-03 (1973).
126
Williams, 872 N.Y.S.2d at 31 (quoting the Restoration Act, N.Y.C.
Local Law No. 85).
127
Id. at 39.
128
See McDonnell Douglas, 411 U.S. at 802.
22
minimis.”129 Once the plaintiff demonstrates a prima facie case, the burden shifts
in the second step to the defendant to articulate a legitimate, nondiscriminatory
reason for the differential treatment.130 “[T]he defendant must clearly set forth,
through the introduction of admissible evidence, the reasons for” its actions.131 If
the explanation is legitimate and nondiscriminatory, the burden shifts back to the
plaintiff in the third step to demonstrate that the defendant’s proffered explanation
is merely a pretext for discrimination.132 “[P]laintiff bears the burden of proving
not just pretext, but racial discrimination . . . and thus the burden of pointing the
court to the existence of evidence that would raise a disputed issue of material fact
on this score.”133
Notably, in order to raise an issue of fact that is sufficiently material
to defeat a motion for summary judgment, the plaintiff must produce enough
evidence to support a rational finding that the defendant’s explanation for the
129
See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.
2005).
130
See Ruiz v. County of Rockland, 609 F.3d 486, 492 (2d Cir. 2005).
131
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
132
See Patterson v. County of Oneida, New York, 375 F.3d 206, 221 (2d
Cir. 2004). See also Beachum v. AWISCO New York, 785 F. Supp. 2d 84, 93-94
(S.D.N.Y. 2011).
133
Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 561 (S.D.N.Y.
2005).
23
adverse action is actually a pretext to disguise discrimination.134 He is required to
do “more than cite to [his] mistreatment and ask the court to conclude that it must
have been related to [his] race.”135
“The factfinder’s disbelief of the reasons put forward by the defendant
. . . may, together with the elements of the prima facie case, suffice to show
intentional discrimination.”136 The factfinder may disbelieve the defendant’s
explanation either because the facts underlying the explanation are false or because
the explanation is weakened by inconsistencies or logical flaws.137 Therefore, the
plaintiff can survive summary judgment if he produces facts sufficient to permit a
reasonable factfinder to disbelieve the defendant’s explanation in favor of the
plaintiff’s explanation that discrimination occurred. The plaintiff can sustain this
burden by proving that “the evidence in plaintiff’s favor, when viewed in the light
most favorable to the plaintiff, is sufficient to sustain a reasonable finding that [the
134
See Weinstock, 224 F.3d at 42. See also Mavrommatis, 2011 WL
3903429, at *2; Ochei v. Coler/Goldwater Mem’l Hosp., 450 F. Supp. 2d 275, 283
(S.D.N.Y. 2006).
135
Lizardo v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001).
136
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Accord
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2000).
137
See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d
Cir. 2001) (stating that summary judgment for defendant was improper where the
defendant’s stated reasons for its actions lacked credibility due to inconsistencies).
24
adverse employment decision] was motivated at least in part by . . .
discrimination.”138
1.
Statute of Limitations
Campbell’s NYSHRL and NYCHRL claims are subject to a threeyear statute of limitations.139 Plaintiff commenced this action on December 8,
2010. Therefore, claims regarding events that occurred prior to December 8, 2007
are time barred unless he can show that they were part of a “continuing violation.”
The continuing violation doctrine — which provides an exception to the general
rule barring recovery for acts occurring outside the statute of limitations — is most
often applied to Title VII claims, but has been applied to NYCHRL and NYSHRL
claims as well.140
Under the continuing violation exception, where a “plaintiff has
experienced a ‘continuous practice and policy of discrimination, . . . the
commencement of the statute of limitations period may be delayed until the last
138
Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 114 (2d Cir. 2007).
139
N.Y. C.P.L.R. § 214(2) (McKinney 2003) (NYSHRL claims); N.Y.C.
Admin. Code § 8–502(d) (NYCHRL claims).
140
See Williams, 872 N.Y.S.2d at 35; Burmudez v. City of New York, 783
F. Supp. 2d 560, 574 (S.D.N.Y. 2011); Drew v. Plaza Constr. Corp., 688 F. Supp.
2d 270, 278-79 (S.D.N.Y. 2010).
25
discriminatory act in furtherance of it.’”141 The Supreme Court, in National R.R.
Passenger Corp. v. Morgan, identified the following discrete acts: “termination,
failure to promote, denial of transfer, [and] refusal to hire . . . .”142 Because each
such incident “constitutes a separate actionable ‘unlawful employment
practice,’”143 the Supreme Court refused to apply the continuing violation
exception to discrete, time-barred incidents, even where those incidents were
related to actionable ones.144
In Williams v. New York City Housing Authority, a New York
appellate court addressed the continuing violation doctrine in the context of the
NYCHRL, stating “the Restoration Act’s uniquely remedial provisions are
consistent with a rule that [does not] penalize[] workers who hesitate to bring an
action at the first sign of what they suspect could be discriminatory trouble . . . .”145
However, in applying the continuing violation doctrine, the Williams court found
the plaintiff’s sexual harassment claims to be time barred because the pre-
141
Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (quoting
Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992) (alteration in original)).
142
536 U.S. 101, 114 (2002).
143
Id.
144
See id.
145
872 N.Y.S.2d at 35.
26
limitation-period conduct was not sufficiently “joined to actionable conduct within
the limitation period . . . .”146
2.
Failure to Promote
The courts have yet to establish a test for analyzing failure to promote
claims under the NYCHRL. To establish a prima facie case of discrimination for
failure to promote under Title VII a plaintiff must show that: “1) [he] ‘is a member
of a protected class;’ 2) [his] job performance was satisfactory; 3) [he] applied for
and was denied promotion to a position for which [he] was qualified; and 4) the
position ‘remained open and the employer continued to seek applicants.’”147 While
bearing in mind the more liberal standards of the NYCHRL, I use this test as a
guide in analyzing plaintiff’s failure to promote claims.
3.
Hostile Work Environment
“To make out a successful hostile work environment claim, a plaintiff
must show that ‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that . . . alter[s] the conditions of the victim’s employment.’”148
146
Id. at 41.
147
Campbell v. Alliance Nat’l, Inc., 107 F. Supp. 2d 234, 242 (S.D.N.Y.
2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000)).
148
Fleming v. MaxMara USA, Inc., 644 F. Supp. 2d 247, 262 (E.D.N.Y.
2009) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
27
In keeping with the more lenient interpretation of the NYCHRL, the Williams court
held that a plaintiff is no longer required to show “severe and pervasive” conduct
to establish a hostile work environment claim under the NYCHRL.149 The
NYCHRL, though, is not a “‘general civility code’”150 and “petty slights and trivial
inconveniences”151 are not actionable under the NYCHRL. In determining whether
a claim of hostile work environment survives summary judgment, the relevant
consideration is whether there is a triable issue of fact as to whether the plaintiff
“has been treated less well than other employees because of [his race].”152 “‘Under
the [NYCHRL], liability should be determined by the existence of unequal
treatment and questions of severity and frequency reserved for consideration of
damages.’”153
4.
Discriminatory Discharge
Because McDonnell Douglas addressed a failure to hire claim,
149
See 872 N.Y.S.2d at 38.
150
Id. at 40 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81 (1998) (discussing Title VII)).
151
Id. at 41.
152
Id. at 39.
153
Selmanovic v. NYSE Group, Inc., No. 06 Civ. 3046, 2007 WL
4563431, at *4 (S.D.N.Y. Dec. 21, 2007) (quoting Farrugia v. North Shore Univ.
Hosp., 820 N.Y.S.2d 718, 725 (Sup. Ct. N.Y. Co. 2006)).
28
“discharge cases do not fit as neatly under the wording of [its] prima facie case
formula.”154 Courts have adopted various formulations of the fourth prong of the
McDonnell Douglas prima facie case, ranging from a requirement that the plaintiff
show he was replaced by someone outside his protected class,155 to the Second
Circuit’s requirement that the plaintiff produce evidence that “creates an inference
of discrimination.”156
Under the Second Circuit’s requirements a plaintiff makes out a prima
facie case of discriminatory discharge under Title VII if he: “(1) belongs to a
protected class, (2) was qualified for the position he held, (3) experienced an
adverse employment action, and (4) the adverse employment action occurred under
circumstances that give rise to an inference of discrimination.”157 “An inference of
discriminatory intent may be derived from a variety of circumstances, including . .
154
Lex Larson, Employment Discrimination § 8.08[4]. The original
McDonnell Douglas test required a plaintiff in a failure to hire case to show: “(i)
that he belongs to a racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that, despite his qualifications,
he was rejected; and (iv) that, after his rejection, the position remained open and
the employer continued to seek applicants from persons of complainant’s
qualifications.” 411 U.S. at 802.
155
See, e.g., Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th
Cir. 1977).
156
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
157
See Ruiz, 609 F.3d at 491-92.
29
. ‘more favorable treatment of employees not in the protected group; or the
sequence of events leading to the plaintiff’s discharge.”158
While some cases have held that “[a] prima facie case of race
discrimination under the NYCHRL contains the same elements as those required
under Title VII,”159 treating these statutes identically ignores the effect of the
Restoration Act. No court has articulated what supports an inference of
discriminatory intent under the more liberal NYCHRL, but that must wait for
another day. Where, as here, the employer has offered admissible evidence to
support a legitimate, nondiscriminatory reason for its actions, courts need not tarry
over the question of whether the plaintiff has made out a prima facie case.160
IV.
DISCUSSION
A.
Failure to Promote
The crux of plaintiff’s failure to promote claim is that he was treated
158
Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (quoting
Chambers, 43 F.3d at 37).
159
Fleming, 644 F. Supp. 2d at 268.
160
See Bennett v. Health Mgmt. Sys., Inc., — N.Y.S.2d —, 2011 WL
6347918, at *6 (1st Dep’t Dec. 20, 2011) (“Where a defendant in a discrimination
case has moved for summary judgment and has offered evidence in admissible
form of one or more nondiscriminatory motivations for its actions, a court should
ordinarily avoid the unnecessary and sometimes confusing effort of going back to
the question of whether a prima facie case has been made out in the first place.”).
30
unfairly by Devlin and other employees who were controlled by Devlin. Plaintiff
states that Devlin withheld promotions that were awarded to non-AfricanAmerican employees, but he only submits evidence that he applied for two of these
positions.161 For the following reasons, plaintiff’s failure to promote claims are
dismissed.
1.
2005: DM of Manhattan Zone 9 Position
In 2005, plaintiff was not awarded the position of DM of the
Manhattan Zone.162 Instead, Frank Campbell was given the position 163 and plaintiff
became DM of the Westchester/Putnam Zone.164 This claim falls outside of the
three-year statute of limitations and is therefore time barred because it is not part of
a continuing violation.
Failure to promote is a “discrete act” as defined by the Supreme Court
in Morgan165 and, therefore, is not governed by the continuing violation exception.
Even under the more lenient NYCHRL, the 2005 failure to promote claim is not
connected to claims of actionable conduct that occurred during the limitations
161
See Pl. 56.1 ¶¶ 15, 26.
162
See id. ¶ 15.
163
See Def. 56.1 ¶ 16.
164
See id. ¶ 15.
165
536 U.S. at 114.
31
period.166 The decision to award the position to Frank Campbell was not made by
Devlin or anyone under his control, as it was not until three years later that Devlin
was hired as Regional President. Because of this, the 2005 failure to promote
claim is dismissed as time barred.
2.
2008: Director of Regional Sales Position
It is undisputed that plaintiff is a member of a protected class and that
he applied for, but was denied, the promotion to Director of Regional Sales.
However, the position was awarded to Scribner, who is a member of the same
protected class as plaintiff, which “undercuts [his] claim of racial
discrimination.”167 Furthermore, defendant’s stated reason for not awarding the
position to plaintiff — his inferior performance during the interview — 168
“constitutes a legitimate, non-discriminatory reason.”169 “‘There is nothing
unlawful about an employer’s [sic] basing its hiring decision on subjective criteria,
166
See Williams, 872 N.Y.S.2d at 35.
167
Horsford v. Salvation Army, No. 99 Civ. 5721, 2001 WL 1335005, at
*5 (S.D.N.Y. Oct. 29, 2001) (citing McCulley v. Southern Conn. Newspapers, Inc.,
98 F. Supp. 2d 216, 223 (D. Conn. 2000)).
168
See Devlin Dep. 108:13-18.
169
Bielinski v. Hotel Pierre, 591 F. Supp. 2d 541, 551 (S.D.N.Y. 2008).
32
such as the impression an individual makes during an interview.’”170 Plaintiff fails
to set forth any evidence that he was denied the 2008 promotion to Director of
Regional Sales for racially discriminatory reasons.
3.
Other Positions Generally
Campbell lists generally “six other director positions” that he was not
awarded.171 However, it is undisputed that plaintiff did not apply for these
positions.172 Campbell claims that he was unable to apply because the positions
were not posted, but defendant submits evidence that at least three of the positions
were posted.173 If plaintiff “was qualified for the position . . . [y]et he never
applied . . . [he] was never rejected under circumstances that would give rise to an
inference of racial discrimination.”174
B.
Discriminatory Transfer
In April 2006, plaintiff was transferred to Brooklyn and McCarthy
170
Tucker v. New York City, 376 Fed. App’x 100, 102 (2d Cir. 2010)
(quoting Byrnie, 243 F.3d at 104.).
171
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
172
See id.
173
See McCarthy Aff. ¶¶ 6, 9, 11.
at 4.
174
Fraser v. Fiduciary Trust Co. Int’l, No. 04 Civ. 6958, 2009 WL
2601389, at *8 (S.D.N.Y. Aug. 25, 2009).
33
replaced him in Westchester. Plaintiff claims that this transfer was made in
retaliation for his failure to quell certain union activity, but he does not provide any
evidence to connect this transfer to later actions that occurred within the limitations
period. While McCarthy did eventually become plaintiff’s supervisor and was
responsible for placing plaintiff on the Final PIP, plaintiff does not present facts
that connect his 2006 transfer to any allegedly discriminatory treatment that
occurred during the limitations period. For this reason, plaintiff’s discriminatory
transfer claim is a discrete act, not connected to actionable conduct that occurred
during the limitations period, and is therefore time barred.
In July 2009, Campbell was transferred from Manhattan, Zone 9 to
Queens.175 From the beginning of 2009, plaintiff’s sales numbers placed him
consistently in the bottom half of the DM score card for all DM’s in the New York
Metro Area.176 Because the primary mechanism for evaluating a DM’s
performance was the score card,177 his steadily poor performance was a legitimate
basis for removing him from the “visible” Manhattan Zone.178
175
See Def. 56.1 ¶ 72.
176
See id. ¶ 69.
177
See McCarthy Aff. ¶ 29.
178
Am. Compl. ¶ 19.
34
Plaintiff emailed McDonald in June 2009, complaining generally that
his transfer to and from Manhattan, Zone 9 was “rigged,”179 and states that he
complained to McDonald in a phone conversation about “race discrimination,”180
but provides no evidence to support this allegation. Without more, he has failed to
offer sufficient evidence from which a reasonable juror could conclude that
defendant’s strong showing of legitimate business justification was a pretext.
C.
Hostile Work Environment
In March 2008, it was discovered that employees in one of plaintiff’s
stores had tampered with the NPS ratings.181 Plaintiff testified that Scribner was
very upset over this incident and told plaintiff “he wouldn’t take a fall for
somebody else’s failure to perform . . . .”182 Plaintiff stated that Scribner “felt
comfortable enough to raise his voice and shout at [him] . . . because [they were]
the same complexion . . . .”183 In his deposition testimony, however, plaintiff also
stated that Scribner yelled at other employees over the same incident and that these
179
6/23/09 Email from Campbell to McDonald (2:16 PM), Ex. 8 to Pl.
180
Pl. 56.1 ¶ 72.
181
See Def. 56.1 ¶ 30.
182
Pl. Dep. at 44:5-6.
183
Id. at 45:14-18.
56.1.
35
employees were white, African-American, and Asian.184 Thus, the record does not
support an inference that Scribner’s shouting was racially motivated. Nor is there
any allegation that plaintiff’s supervisors or fellow employees ever made any
discriminatory remarks to, or about, plaintiff.
Plaintiff alleges, without any factual support, that Devlin adjusted his
sales quota, making it impossible for him to succeed, and transferred him to
Manhattan during the economic downturn to ensure that he would fail. In addition
to Verizon’s evidence showing that Devlin had no influence over the quotas,185 and
that it was Scribner who transferred plaintiff to Manhattan,186 there is no evidence
to connect these claims to racial animus. Where there is no evidence of racial
animus, a hostile work environment claim must fail.187
Plaintiff claims that Zone 9 was understaffed as part of the plot to
have his management of this region fail, but defendant provides evidence that, in
184
See id. at 46:4-47:4.
185
See Simon Aff. ¶ 16; Herman Aff. ¶ 16; Scribner Dep. 158:10-19.
186
See Scribner Dep. 109:13.
187
See, e.g., Woods v. Enlarged City School Dist. of Newburgh, 473 F.
Supp. 2d 498, 520-21 (S.D.N.Y. 2007) (granting defendant summary judgment on
hostile work environment claims because “[o]f the approximately two hundred
specific incidents of alleged harassment, only one has racial overtones whatsoever”
and that was “clearly insufficient, standing alone, to sustain a hostile work[]
environment claim”).
36
light of the economic climate, almost all Zones were understaffed.188 This fails to
give rise to an inference of a hostile work environment. Furthermore, plaintiff
provides no evidence that the months his headcount was under the budgeted
amount, it was racially motivated, especially in light of defendant’s evidence that
Zones managed by Caucasian, African-American, and Asian employees were
understaffed more often than plaintiff’s Zone.189
Plaintiff has not raised a triable issue of fact as to whether he was
“treated less well than other employees because of [his race].”190 In fact, the record
is devoid of any evidence connecting his treatment to race. As such, his hostile
workplace claim fails.
D.
Discriminatory Discharge
Finally, plaintiff claims that he was unfairly placed on PIPs that were
not appropriately administered and that this led to his termination. Because “[t]he
188
See Deane Aff. ¶¶ 22, 25, 27, 30, 33, 36 (showing the number of
employees reporting to each DM in the New York Metro region, January - June
2009).
189
See id. Plaintiff’s Zone was understaffed four out of six months from
January to June 2009, whereas the Zone managed by Angelo Demonte (Caucasian)
was understaffed all six months; the Zone managed by Chris Syed (Asian) was
understaffed five out of the six months; and Brian Weatherly (African-American)
was understaffed all six months.
190
Williams, 872 N.Y.S. 2d at 39.
37
prima facie case method established in McDonnell Douglas was ‘never intended to
be rigid, mechanized, or ritualistic,’”191 “‘[w]here the defendant has done
everything that would be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no longer relevant.’”192
Therefore, under the McDonnell Douglas test, the burden shifts to the defendant to
produce a legitimate, nondiscriminatory reason for its actions.193
1.
Verizon’s Business Justifications
Verizon has provided legitimate business justifications for its
decisions to place Campbell on the NPS PIP, the 30-day Overall PIP, and the Final
PIP, and to terminate his employment. To satisfy its burden, “the defendant must
simply present clear and specific non-discriminatory reasons for its actions.”194
Plaintiff was placed on the NPS PIP after a surprise visit to one of his stores by
Devlin and Small revealed that one of plaintiff’s employees was unfamiliar with
191
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
192
Bennett, 2011 WL 6347918, at *5 (quoting Aikens, 460 U.S. at 715).
193
See Parrilla v. City of New York, No. 09 Civ. 8314, 2011 WL 611849,
at *11 (S.D.N.Y. Feb. 16, 2011).
194
Bernard v. J.P. Morgan Chase Bank, N.A., No. 08 Civ. 4784, 2010
WL 423102, at *6 (S.D.N.Y. Feb. 5, 2010).
38
NPS.195 After a meeting with plaintiff, Devlin was unimpressed with plaintiff’s
understanding of NPS196 and Devlin instructed Scribner to “look into it.”197 NPS
reflects customer satisfaction and is “[g]iven high importance”198 at Verizon.
Therefore, placing plaintiff on an NPS-specific PIP was a legitimate response.
The primary mechanism for evaluating a DM’s performance was the
score card.199 Thus, plaintiff’s steadily poor performance in 2009 200 was a
legitimate basis for placing him on the 30-day Overall and Final PIPs. After
plaintiff failed to meet the goals established in the Final PIP, he was terminated.201
Because Verizon had legitimate business reasons for each of these actions, the
burden shifts back to the plaintiff to show that the reasons offered are pretextual.
2.
Evidence of Pretext
Pretext can be shown “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
195
See Def. 56.1 ¶¶ 87, 89.
196
See id. ¶ 90.
197
Devlin Dep. at 243:18-19.
198
Def. 56.1 ¶ 91.
199
See McCarthy Aff. ¶ 29.
200
See Def. 56.1 ¶ 69.
201
See id. ¶ 125.
39
that the employer’s proffered explanation is unworthy of credence.”202 Plaintiff
has not provided any evidence to support his contention that Verizon’s decision to
terminate him was “more likely motivated by discrimination” rather than by his
failure to meet the sales quotas.
Plaintiff counters defendant’s reason with evidence that he received
bonuses for his performance under the MBO rubric, which could cast doubt over
defendant’s explanation. However, defendant offered evidence that the MBO
metric compares plaintiff only to his own prior performance, making it possible to
receive MBO bonus payments while still failing to meet the sales quotas.203
Additionally, “plaintiff offers no evidence of a causal connection to
race, and [his] conclusory statements are not enough to overcome the defendant’s
non-discriminatory explanation”204 that plaintiff’s placement on PIPs and his
ultimate termination resulted from his failure to meet his sales quotas. Plaintiff’s
argument that the sales quotas were formulated unfairly to discriminate against him
based on his race is similarly unavailing. Campbell provides no evidence to
support the allegation that Devlin adjusted the sales quotas to ensure that plaintiff
202
Burdine, 450 U.S. at 256.
203
See Def. Reply at 9 (citing McCarthy Aff., ¶ 6).
204
Jenkins, 2010 WL 2382417, at *8.
40
would not meet them. By contrast, defendant provides two affidavits from
employees who were involved in the quota-setting process, explaining the process
by which quotas are established and stating that Devlin took no part in it.205
The record provides no evidence that African-American employees
were treated differently than others.206 While plaintiff claims that he was the only
DM in the New York Metro Area to have been placed on a PIP, Verizon provided
evidence that Betty Simon (a Caucasian) was also placed on a PIP in 2004.207
Plaintiff’s argument, therefore, is unavailing.
Plaintiff states that other DM’s ranked lower than he did in any given
month, but defendant provides evidence that Campbell’s DM score card ranking
was tenth or lower for eleven months in 2009, more often than any other DM in the
same region.208 Given that plaintiff was placed on a series of PIPs outlining
205
See Simon Aff. ¶ 16; Herman Aff. ¶ 16
206
See Ochei, 450 F. Supp. 2d at 284 (where plaintiff did not allege
differential treatment of black nurses, the court held “the conclusory allegations set
forth in the complaint of race discrimination are insufficient to support a finding of
race discrimination”).
207
See Def. 56.1 ¶ 105. Because Simon’s PIP was not signed, plaintiff
argues that there is no proof that the PIP was actually implemented, but plaintiff
was placed on three separate PIPS, none of which he signed. See Exs. 9, 14, 11 to
Dayan Decl.
208
See Def. Reply at 7.
41
performance goals, which he failed to meet, plaintiff s claim of discriminatory
discharge is not persuasive. "In the absence of evidence of disparate treatment,
plaintiff must submit some evidence that creates a genuine issue as to whether
plaintiffs termination was motivated by racial bias or animus.,,209 Plaintiff has
offered no such evidence.
V.
CONCLUSION
F or the foregoing reasons, defendant's motion for partial summary
judgment is granted. The Clerk of the Court is directed to close this motion
[docket # 33]. A conference is scheduled for February 15 at 4:00 pm in Courtroom
15C.
SO ORDERED:
Dated:
209
New York, New York
February 7, 2012
Woods, 473 F. Supp. 2d at 525-26.
42
Appearances
For Plaintiff:
Derek S. Sells, Esq.
The Cochran Firm
233 Broadway, 5th Floor
New York, NY 10279
(212) 553-9120
For Defendant:
Raymond G. McGuire, Esq.
Lisa E. Dayan, Esq.
Kauff, McGuire & Margolis, LLP
950 Third Avenue, 14th Floor
New York, NY 10022
(212) 644-1010
43
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