Schlosser v. Time Warner Cable Inc. et al

Filing 65

OPINION & ORDER re: 51 MOTION for Summary Judgment filed by TWC Administration L.L.C., Time Warner Cable Inc. Accordingly, Time Warner's motion for summary judgment is granted. The Clerk of Court is directed to terminate the motion pending at ECF No. 51 and mark this case as closed. (As further set forth in this Opinion & Order.) (Signed by Judge William H. Pauley, III on 6/6/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ROBERT SCHLOSSER,
:
Plaintiff,
:
-against:
TIME WARNER CABLE INC. and
TWC ADMINISTRATION LLC,
:

14cv9349
OPINION & ORDER

Defendants.
:
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WILLIAM H. PAULEY III, United States District Judge:
Defendants Time Warner Cable Inc. and TWC Administration LLC (“Time
Warner”) move for summary judgment dismissing this action. For the reasons that follow, Time
Warner’s motion is granted.
BACKGROUND
Plaintiff Robert Schlosser brings this employment discrimination action, pursuant
to the Age Discrimination in Employment Act (“ADEA”) and the New York City Human Rights
Law (“NYCHRL”), asserting that Time Warner refused to hire him on the basis of his age after
laying him off from his previous position.
I.

Schlosser’s Tenure as Direct Sales Manager
In August 2006, Time Warner hired Schlosser as a Direct Sales Manager for its

College Point, New York residential sales department. In that capacity, he was responsible for
managing Direct Sales Supervisors and Direct Sales Representatives who promoted Time
Warner’s products. (Statement of Material Facts (“SMF”), ECF No. 55, at ¶¶ 1–2.) During the
course of his employment, Schlosser directly supervised seven Direct Sales Supervisors, each of

whom oversaw a team of approximately 10–12 Direct Sales Representatives. (SMF ¶ 3.) In
total, Schlosser managed 75 to 90 employees during the relevant period. (SMF ¶ 4.)
In September 2009, a Direct Sales Supervisor emailed Schlosser informing him
that one of Schlosser’s Direct Sales Representative teams had allegedly engaged in sales fraud.
(SMF ¶ 5.) A subsequent investigation validated those suspicions and revealed that widespread
sales fraud had occurred under Schlosser’s watch. (SMF ¶ 6.) Time Warner consequently
terminated that entire sales team and its supervisor. (SMF ¶ 7.)
In November 2009, following the sales fraud investigation, Time Warner issued a
Final Written Warning to Schlosser, admonishing him for his purported failure to implement
measures that could have prevented the sales fraud. The Final Written Warning also cited his
inability to be “‘locked in’ to the overall detail” expected of successful managers; his lack of
“self-accountability and supervisor accountability” and “core managerial and leadership
behaviors”; his failure to adequately track or report his team’s sales on a regular basis; and his
difficulty analyzing, interpreting, and managing sales data, preparing reports, and implementing
company policy and procedure. (SMF ¶¶ 11–15.)
By year end, Schlosser’s performance review reflected many of the same issues
memorialized in the Final Written Warning. As a result, Schlosser received an overall rating of
“Partially Meets Expectations,” and average reviews in sub-categories titled “Excellence” and
“Integrity.” (SMF ¶ 17.) Time Warner’s year-end evaluation identified a litany of performance
issues: that Schlosser failed to meet or exceed his sales goals; that his supervisory
accountabilities were compromised; that he was perceived as unapproachable due to his harsh
and abrupt demeanor; that the security teams at two of Time Warner’s facilities had filed

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complaints against him; and that he was slow and inaccurate in reporting his team’s sales
metrics. (SMF ¶¶ 18–22.)
In 2010, Time Warner reduced its residential sales group from six regions to two,
eliminating the College Point, New York sales department, and obviating the need for a Direct
Sales Manager. (SMF ¶ 24.) As a result, Time Warner laid Schlosser off and gave him a
severance and benefits package. (SMF ¶¶ 25, 29.) At the time of his termination, Schlosser was
56 years old. (SMF ¶ 27.) Despite losing his position in a company reorganization, Time
Warner told Schlosser that he could apply for any other open positions at the company. (SMF ¶
27.) Time Warner informed Schlosser that it would consider prior performance and skill sets in
determining his eligibility for such positions. (SMF ¶ 28.)
II.

Concierge Sales Manager Position
Nearly a year later, Schlosser applied for a Sales Manager position in the

Concierge Sales Group. (SMF ¶ 30.) The position required exceptional skills and abilities—
more so than those required for ordinary Direct Sales Manager, Direct Sales Supervisor, or
Direct Sales Representative positions—since the Concierge Department catered to, and regularly
interfaced with, Time Warner’s best and most loyal customers. (SMF ¶¶ 31–33, 35.)
Ultimately, Time Warner declined to interview Schlosser based on his poor performance as a
Direct Sales Manager, opting instead to hire a candidate with a stronger record of performance
from a department similar to the Concierge Sales Group. (SMF ¶ 36–37.)
III.

Territory Sales Representative Position
Over the next eighteen months, Schlosser applied for seven other job postings at

Time Warner, both in and out of the Concierge Sales Group, and for supervisory and entry-level
sales positions. (SMF ¶¶ 38, 48.) In August 2012, Schlosser interviewed for a Territory Sales
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Representative position, an entry level job in the Concierge Sales Department similar to the
Direct Sales Representative job in the Residential Sales Department. (SMF ¶ 39.) However,
Schlosser interviewed poorly. (SMF ¶ 40.) Coupled with his previous performance issues and
Time Warner’s concern that hiring a former manager into an entry level position could
potentially disrupt the sales force, Time Warner declined to offer Schlosser the position. (SMF
¶¶ 40–42.)
Time Warner also opted not to interview him Schlosser for several other positions
based on his past disciplinary, supervisory, and performance issues. (SMF ¶¶ 45–46.) Since
2011, Time Warner hired at least 140 individuals aged 40 years or older for sales positions to
which Schlosser had applied. (SMF ¶ 50.) But of the twenty-nine individuals who were hired
into those positions during the relevant period, twenty-six were younger than Schlosser.
(Counterstatement of Material Facts (“CSMF”), ECF No, 57, at ¶ 50.)
STANDARD
I.

Summary Judgment
Summary judgment is appropriate where the pleadings, depositions, admissions,

and affidavits show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The movant has the burden
of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The court must assess all evidence in the light most favorable to the nonmovant, and draw all reasonable inferences in favor of that party. Amnesty America v. Town of
West Hartford, 361 F.3d 113, 122 (2d Cir. 2004).
The “mere existence of a factual dispute between parties does not preclude
summary judgment when the dispute is not genuine or when the disputed facts are immaterial. A
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disputed fact is immaterial when the outcome of the case remains the same regardless of the
disputed issue.” AIU N. Am., Inc. v. Caisse Franco Neerlandaise de Cautionnements, 72 F.
Supp. 2d 350, 353 (S.D.N.Y. 1999). Moreover, a court must grant summary judgment for a
defendant where the plaintiff’s evidence is “merely colorable, conclusory, speculative, or not
significantly probative.” Morris v. Ales Grp. USA, Inc., 2007 WL 1893729, at *3 (S.D.N.Y.
June 29, 2007) (internal quotation marks and citations omitted). In order to survive summary
judgment, the facts and evidence offered by plaintiff must be “material and of a substantial
nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural,
speculative, nor merely suspicions.” Morris, 2007 WL 1893729, at *3.
II.

McDonnell Douglas
Employment discrimination claims are subject to several burden-shifting analyses

under the McDonnell Douglas framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–805 (1973). To establish a prima facie case of employment discrimination, the plaintiff
bears the burden of producing evidence that (1) he was a member of a protected class; (2) he was
qualified for the job to which he applied; (3) he was rejected for the position; and (4) the
circumstances surrounding that action raised an inference of age discrimination. Skalafuris v.
City of New York Dept. of Corrections, 2010 WL 4273286, at *3 (S.D.N.Y. Oct. 28, 2010).
Once a prima facie case is established, the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for not hiring the plaintiff. Cretella v. Liriano, 633 F.
Supp. 2d 54, 72 (S.D.N.Y. 2009). After a non-discriminatory reason is proffered, the
“presumption of discrimination arising with the establishment of the prima facie case drops from
the picture.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). At this point, the
plaintiff “may offer evidence that the defendant’s ostensibly legitimate reasons were not
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genuinely held but were merely a pretext for discrimination.” Zahorik v. Cornell Univ., 729 F.
2d 85, 92 (2d Cir. 1994).
DISCUSSION
I.

ADEA
A. Prima Facie Claim of Age Discrimination
As an initial matter, the parties do not appear to contest two of the four factors of

the prima facie test—that Schlosser, 56 years old at the time of his termination, is a member of a
protected class, and that he was rejected for the positions to which he applied. Time Warner,
however, contends that the absence of two other factors—circumstances giving rise to an
inference of discrimination, and Schlosser’s lack of qualifications for each position—warrant
summary judgment.
Schlosser relies principally on two facts in his attempt to raise an inference of age
discrimination. First, he contends that after being told that his Direct Sales Manager position
would be eliminated due to a restructuring, his position was re-posted for other applicants and
eventually filled by an employee who was substantially younger. (Plaintiff’s Memo. of Law in
Opposition to Summary Judgment (“Opp.”), ECF No. 56, at 15.) That argument, however, is
belied by the record. His former Direct Sales Manager position in the Residential Sales
department was never re-posted. Rather, the undisputed fact is that Schlosser applied for a
“Sales Manager Position” within Time Warner’s “newly-created ‘Concierge’ sales group.”
(SMF ¶ 30.)
Schlosser argues that the managerial position in the Concierge Sales Department
was the “exact position” he previously held because “it [] had the same reporting structure” and
“was called a ‘direct sales manager’ position.” (CSMF ¶ 34.) But that is an immaterial dispute
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of fact. The Concierge Sales Manager position required the candidate to interface with a
different clientele, undertake different responsibilities, and manage varying expectations.
Indeed, Schlosser does not dispute that “[e]mployees in the Concierge group required a different
(and stronger) set of abilities than the average [Direct Sales Manager], DSS, or DSR in
residential sales.” (SMF ¶¶ 30–32.) The positions were materially different in all but name.
The second fact that Schlosser raises to establish an inference of age
discrimination is that twenty-six of twenty-nine open positions to which he applied were filled by
individuals who were substantially younger than him. This argument has more traction. The
ADEA “prohibits discrimination on the basis of age and not class membership[;] the fact that a
replacement is substantially younger than the plaintiff is a far more reliable indicator of age
discrimination than is the fact that the plaintiff was replaced by someone outside the protected
class.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). Courts have
inferred age discrimination in cases where the age gap between a plaintiff and his replacement,
or others hired by the defendant, is as little as three years to as many as twenty-three years. See
D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193 (2d Cir. 2007) (hiring a 47-year old applicant
and 42-year old applicant over a 50-year old applicant); Balut v. Loral Elec. Sys., 166 F.3d 1199
(2d Cir. 1998) (replacing 57-year old employee with a 47-year old employee); Framularo v. Bd.
of Educ. of the City of Bridgeport, 549 F. Supp. 2d 181 (D. Conn. 2008) (plaintiff was between
seven and twenty-three years older than selected applicants).
Here, the record indicates that twenty-six of twenty-nine individuals hired to
positions for which Schlosser applied were substantially younger—at least eleven were between
the ages of 25 and 35; six were between the ages of 36 and 41; seven were between the ages of
42 and 45; and five were 50 years or older. (Declaration of Patricia L. Boland, ECF No. 58, Ex.
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M, Chart of Individuals Chosen; Ex. N, at TWC000499–TWC000764.) At the time Schlosser
applied for these positions, he was between 56 and 58 years old. Accordingly, the age gaps
between Schlosser and the other hired applicants support an inference of age discrimination.
Schlosser also has demonstrated enough to establish that he was qualified for
every position. There is no material dispute that Schlosser met the minimum education and
experience requirements for each position. Based on his experience and qualifications as a
former manager, he was qualified for the entry or mid-level positions to which he applied. At
this juncture in the McDonnell Douglas analysis, Schlosser has “done enough to satisfy his
minimal burden.” Jimenez v. City of New York, 605 F. Supp. 2d 485, 521 (S.D.N.Y. 2009);
Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (the qualification
requirement is “minimal” and “de minimis”). That Schlosser interviewed poorly—or that prior
performance issues later disqualified him from consideration—are issues to be considered in
determining whether Time Warner had a non-discriminatory basis to make an adverse
employment decision, not in ascertaining whether Schlosser has established a prima facie case.
B. Non-Discriminatory Reason Not to Hire
Under the second phase of the McDonnell Douglas framework, Time Warner
must demonstrate that its refusal to hire Schlosser was based on a non-discriminatory reason.
Time Warner “need not persuade the court that it was actually motivated by the proffered
reasons. It is sufficient if [Time Warner’s] evidence raises a genuine issue of fact as to whether
it discriminated against [Schlosser].” Cooper v. State of Connecticut Pub. Defender’s Office,
280 Fed. Appx. 24, 25 (2d Cir. 2008) (citations omitted). “To accomplish this, [Time Warner]
must clearly set forth, through the introduction of admissible evidence, the reasons for

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[Schlosser’s] rejection. The explanation provided must be legally sufficient to justify a judgment
for [Time Warner].” Cooper, 280 Fed. Appx. at 25.
Time Warner’s non-discriminatory reason rests soundly on Schlosser’s poor
performance as Direct Sales Manager. Schlosser’s Final Written Warning and his mediocre
2009 performance review suggest a reasonable, legitimate basis to doubt whether Schlosser was
the best candidate for any of the positions to which he applied. Notwithstanding his experience
and qualifications, Time Warner had no obligation to hire, let alone interview, him for any of the
positions. Here, the company’s decision not to hire is rooted, in part, in the sales fraud incident
that occurred under his watch as supervisor, and other performance issues relating to his inability
to hit sales figures, untimely and inaccurate sales reporting, complaints about him filed by
security teams from two of Time Warner’s facilities, and a general reluctance to be held
accountable. (SMF ¶¶ 11–22, 36, 42, 45, 47.) This evidence sufficiently rebuts the presumption
raised by Schlosser’s prima facie claim.
C. Non-Discriminatory Reason Is Not Pretext
Once an employer has articulated a non-discriminatory reason for the adverse
employment action, it is entitled to summary judgment unless the employee can point to
evidence reasonably supporting a finding of prohibited discrimination. See James v. New York
Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000). In other words, Schlosser must put forward
evidence that these non-discriminatory reasons served as “mere pretext for actual
discrimination.” Weinstock, 224 F.3d at 42. The evidence must “support a rational finding that
the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more
likely than not [discrimination] was the real reason for the [employment action].” Weinstock,
224 F.3d at 42.
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The record is devoid of any evidence to show that Time Warner offered
pretextual, non-discriminatory reasons to conceal the sole, but-for reason it refused to hire
Schlosser—his age. Schlosser claims that Time Warner’s reliance on his previous performance
issues—in spite of his thirty-nine years of experience and his “far superior” qualifications—
constitutes pretext. But the documentary evidence in the record dispels any notion that
Schlosser’s age was the sole, controlling reason why he was not hired. Schlosser’s Final Written
Warning and previous performance review sufficiently substantiate Time Warner’s view that
Schlosser was not the best candidate for the positions to which he applied. Setting aside the
supervisory and managerial shortcomings memorialized in both the Final Written Warning and
performance review, Schlosser was generally perceived by others at the company as
“unapproachable to speak with” due to his harsh demeanor. (SMF ¶ 20.) That fact only bolsters
Time Warner’s non-discriminatory, discretionary decision not to hire Schlosser.
Moreover, Schlosser claims that he was never given a fair interview for the
Territory Sales Representative position—namely because it lasted for no more than thirty
minutes and because he was never asked about his real estate experience. (CSMF ¶ 40.) But of
the little that can be gleaned from the interview—that Schlosser’s answers “did not help [the
interviewer] visualize [that] he would be successful in the concierge’s position” (Declaration of
J. Scott Carr, ECF No. 52, Ex. G, Shakhmurov Deposition, at 24:14–25:13)—Time Warner
concluded that the position was not an appropriate fit for Schlosser. Coupled with Schlosser’s
prior performance issues, and Time Warner’s judgment that hiring a former supervisor into an
entry-level position could create issues within the ranks (SMF ¶ 47), Time Warner reasonably
opted to pass on Schlosser. The combination of reasons underlying Time Warner’s decision at
the very least demonstrates that age was not the but-for reason Schlosser was not hired.

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Schlosser characterizes the various reasons underlying Time Warner’s refusal to
hire him as “shifting explanations” that constitute pretext. The Second Circuit has held that
“[i]nconsistent or even post-hoc explanations for [an adverse employment] decision may suggest
discriminatory motive.” Weiss v. JPMorgan Chase & Co., 332 Fed. Appx. 659, 663 (2d Cir.
2009). But Time Warner’s explanations here, at their core, relate to one thing: Schlosser’s poor
performance as Direct Sales Manager. See McGuire-Welch v. House of the Good Shepherd,
2016 WL 6581286, at *6 (N.D.N.Y. Nov. 4, 2016) (“evidence does not show that defendants’
reason for terminating shifted or was inconsistent.”). After interviewing for the Territory Sales
Representative position, Schlosser was told that the company was “very impressed with his
background, but they decided to go in another direction” (Opp. at 18); interviews for other
positions fell through because he was “being investigated by Time Warner” (Opp. at 18); he was
foreclosed from other positions because of past performance issues (Opp. at 19); and finally, he
was disqualified from certain entry-level positions because Time Warner believed that would be
“disruptive for the sales group.” (Opp. at 19.)
At the heart of each of those reasons is Time Warner’s concern about hiring a
former employee with a record of poor supervisory, managerial, and performance issues. There
is no genuine issue regarding Schlosser’s previous performance. Schlosser does not dispute that
he was given a poor performance evaluation as Direct Sales Manager, nor does he object to the
substance or accuracy of that evaluation. Moreover, the Final Written Warning he received
memorialized a serious issue with Schlosser’s performance—namely that he mismanaged his
sales team through a failure to safeguard against sales fraud. (SMF ¶ 11.) The evaluation also
noted that Schlosser was not “’locked in’ to the overall detail” expected of a successful manager,
and that Schlosser exhibited a lack of “self-accountability and supervisor accountability” and
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“core managerial and leadership behaviors.” (SMF ¶ 12–13.) Thus, the varying reasons
proffered by Time Warner are threaded together by one undisputed fact—Schlosser’s
performance. Singh v. Air India Ltd., 108 Fed. Appx. 9, 10 (2d Cir. 2004) (company’s reasons
for termination “were related. That different [defendant] managers provided different but
consistent economic explanations for [plaintiff’s] termination does not demonstrate that the
company’s explanation was pretextual.”); Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d
Cir. 2001) (“variations” regarding elimination of position relate to “the same theme rather than
separate inconsistent justifications.”).
II.

NYCHRL
As an initial matter, it appears that Time Warner did not seek dismissal of the

NYCHRL claim in its moving brief. Having failed to raise them at the outset, the arguments
Time Warner raises belatedly in its reply brief are effectively waived. Rosario v. New York City
Dept. of Homeless Servs., 2008 WL 449675, at *8 (S.D.N.Y. Feb. 19, 2008); Fisher v. Kanas,
487 F. Supp. 2d 270, 278 (E.D.N.Y. 2007).
But assuming, arguendo, that Time Warner’s NYCHRL arguments are not
waived, Time Warner fails to establish that there is no dispute of material fact under relevant
law. The NYCHRL “requires that courts give the statute an independent and more liberal
construction than its federal and state counterparts.” Sotomayor v. City of New York, 862 F.
Supp. 2d 226, 257 (E.D.N.Y. 2012). The NYCHRL’s elements differ materially from those
under the ADEA. For example, a “plaintiff need not show that an employment action was
materially adverse” and must “simply how that she was treated different from others in a way
that was more than trivial, substantial, or petty.” Sotomayor, 862 F. Supp. 2d at 258. Moreover,
the “inference of discrimination prong of the prima facie case is satisfied if a member of a
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protected class was treated differently than a worker who was not a member of that protected
class.” Sotomayor, 862 F. Supp. 2d at 258 (alterations omitted).
Most importantly, the “‘but-for’ causation standard does not apply to age
discrimination claims brought under the NYCHRL. Rather, the NYCHRL requires only that a
plaintiff prove that age was ‘a motivating factor’ for an adverse employment action.” Weiss v.
JPMorgan Chase & Co., 2010 WL 114248, at *1 (S.D.N.Y. Jan. 13, 2010). Accordingly,
Schlosser is required under the NYCHRL to “prove by a preponderance of the evidence that his
age was a ‘motivating factor’ in” Time Warner’s decision not to hire him. Weiss, 2010 WL
114248, at *4.
While the record evidence falls short of raising a genuine dispute regarding
whether age was a but-for cause of Time Warner’s refusal to hire Schlosser, it is sufficient for
purposes of asserting a claim under the NYCHRL. Here, Schlosser was rejected repeatedly from
both managerial and entry level positions, most of which were offered to applicants substantially
younger than Schlosser. His sole interview appears to have been given on the basis of a
“formality” without much regard for his qualifications. And while the brevity and substance of
that interview do not create a factual dispute as to whether his age was the controlling reason
why he was not hired, they may create a genuine dispute when analyzed under the NYCHRL’s
liberal standard—that Schlosser’s age was in part, a motivating factor, underlying Time
Warner’s decision to pass on him. See Gorman v. Covidien, LLC, 2015 WL 7308659, at *12
(S.D.N.Y. Nov. 19, 2015).
Having dismissed Schlosser’s federal claim, however, this Court declines to
exercise jurisdiction over his NYCHRL claim. That claim is dismissed without prejudice to refiling it in state court.
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CONCLUSION
Accordingly, Time Warner’s motion for summary judgment is granted. The
Clerk of Court is directed to terminate the motion pending at ECF No. 51 and mark this case as
closed.
Dated: June 6, 2017
New York, New York
SO ORDERED:

_____________________________
WILLIAM H. PAULEY III
U.S.D.J.

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