South v. CNA Financial Corp.
OPINION & ORDER re: 48 MOTION for Summary Judgment filed by Continental Insurance Company. Defendant Continental Casualty Company's motion for summary judgment is granted with respect to South's employment discrimination and hostil e work environment claims under the ADEA and NYSHRL. This Court declines to exercise supplemental jurisdiction over South's NYCHRL, which are dismissed without prejudice. The Clerk of Court is directed to terminate all pending motions and mark this case as closed. (Signed by Judge William H. Pauley, III on 2/28/2017) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONTINENTAL CASUALTY COMPANY, :
CHRISTOPHER A. SOUTH,
OPINION & ORDER
WILLIAM H. PAULEY III, District Judge:
Plaintiff Christopher A. South, an attorney, brings this employment discrimination
action in connection with his termination from Defendant Continental Casualty Company
(“CNA”). Specifically, South alleges violations of the Age Discrimination in Employment Act
of 1967 (“ADEA”), 29 U.S.C. § 621, Section 296 of the New York State Human Rights Law
(“NYSHRL”), and Title VIII of the New York City Administrative Code (“NYCHRL”). With
discovery complete, CNA moves for summary judgment dismissing the action. For the reasons
that follow, CNA’s motion is granted with respect to the ADEA and NYSHRL claims. South’s
NYCHRL claims are dismissed without prejudice to refiling in state court.
CNA is a large property and casualty insurance organization with staff counsel
offices that service CNA’s insureds. (See Pl. Counter Statement of Undisputed Facts (“56.1”),
ECF No. 64, at ¶¶ 3, 10.) In 1996, CNA hired South as a litigator in its NYC staff counsel
office. South spent 18 years in the NYC staff counsel’s office until his termination in September
2014 at the age of 60. (56.1, ¶¶ 10, 123.) In 2000, CNA discontinued its pension plan for newly
hired attorneys, but continued the participation of all incumbent attorneys, including South.
(56.1, ¶¶ 17–18.) South contends that the discontinuation of the plan was a motivating factor for
eliminating the older attorneys at CNA. (See Declaration of Christopher South, dated July 15,
2016 (“South Decl.”), ECF No. 65, at ¶ 4.)
In 2001, CNA appointed Charles Siegel as the Managing Trial Attorney for its
New York office. (56.1, ¶ 12.) Four years later, CNA reorganized its attorney staffing by
establishing the Major Case Unit (“MCU”) to handle complex and high value cases. (56.1,
¶¶ 69, 72.) The MCU, consisting of certain CNA executives and management-level employees,
designated attorneys from each staff counsel office to handle MCU cases. (56.1, ¶ 73.)
Generally, those attorneys were viewed as the most capable of handling major cases. (See 56.1,
¶ 79.) Siegel had no authority to select attorneys for MCU and needed authorization to assign an
MCU case. (56.1, ¶¶ 75–76.) Despite his years of experience, CNA did not designate South as
an MCU attorney. Non-MCU approved attorneys, like South, handled the mine-run cases with
reserve value below $150,000. MCU and non-MCU attorneys had the same pay grades. (56.1,
When MCU was first established, non-MCU attorneys continued to handle some
MCU cases that they had worked on before the reorganization. (56.1, ¶ 87.) Overwhelmed by
the number of MCU cases in the New York office, Siegel sought to use Service Center attorneys,
like South, to handle MCU matters. (56.1, ¶ 93.) But Siegel’s efforts were rebuffed: CNA
declined to authorize South to work on MCU matters. (56.1, ¶ 85.) MCU supervisors reviewed
South’s work on Service Center cases that were reclassified to MCU and found some of his work
to be inadequate. (56.1, ¶ 78, 135.)
During his tenure, South earned mostly average performance reviews. For
example, in 2009, South received a “Meets Expectations” rating. (56.1, ¶ 23.) As part of that
review, Siegel explained to South that he needed to “be more proactive in his reporting . . . to be
more customer focused and . . . develop his skills with technology.” (56.1, ¶¶ 25–26.) South
responded to that criticism and earned an “Exceeds Expectations” rating in 2010. (56.1, ¶ 27.)
However, in 2011, South dropped back to “Meets Expectations.” (56.1, ¶ 28.)
In 2011, CNA reiterated the need for staff counsel offices to ensure that MCU
matters were handled exclusively by MCU-designated attorneys. (56.1, ¶ 88.) CNA directed
Siegel to reassign MCU matters from Service Center attorneys and recognized that this
realignment might require additional MCU attorneys in the New York office. (56.1, ¶¶ 88–89.)
Nevertheless, Siegel continued to use Service Center attorneys on MCU cases by assigning the
MCU cases to himself and then working with Service Center attorneys, like South. (January 29,
2016 Deposition of Charles Siegel, at 67:10–25.)
In 2012, Siegel rated South as “Meet[ing] Expectations.” (56.1, ¶ 29.) South
disagreed and ranked himself as “Far Exceeds Expectations” in his self-evaluation. (56.1, ¶ 31.)
Once again, Siegel noted problems in some of South’s files that were transferred to MCU and
commented that South needed to be more proactive. (56.1, ¶¶ 30, 31.)
In 2013, at South’s mid-year review, Siegel was critical, noting
I am concerned about the total analysis of your files via your reporting. You need
to expand your analysis to address all aspects and issues of the case and be proactive
in obtaining information . . . . [Y]ou need to reach out to all witnesses and find out
what they know. . . . You can’t wait for the information to come to you.
(56.1, ¶ 32.) In other sections of the review, Siegel reiterated the need for South to be proactive
and develop better client relationships. (56.1, ¶¶ 33–34.) And again, South rejected Siegel’s
criticism with a pejorative term and asserted that he was the “[b]est trial attorney” in the New
York office. (56.1, ¶ 35, 36.)
Aside from formal job evaluations, Siegel met with South to discuss his
performance. (56.1, ¶ 37.) For example, Siegel expressed concern over South’s failure to
question a plaintiff at deposition about any prior criminal history. (56.1, ¶ 38.) On another
occasion, South failed to respond to a default judgment motion and treated it as a nullity. (56.1,
¶ 39.) Siegel learned of the default when opposing counsel contacted him. (56.1, ¶ 39.) In
addition, CNA clients, such as its HealthPro department, provided feedback on South,
commenting that he was an “okay attorney” but that they had to “stay on top of him to report
back,” and that he would “go with the flow instead of pushing a case.” (56.1, ¶ 42.)
In December 2013, Siegel issued performance deficiency letters to South and two
other attorneys in the New York office, one age 64 and the other age 56. (56.1, ¶¶ 45, 48.)
Siegel’s letter to South summarized South’s failure to draft initial status updates and investigate
cases thoroughly. (See 56.1, ¶¶ 50–55.) In one case South took 5 months to prepare an initial
report, and in another, South took two years to implead a third party for indemnity. (56.1, ¶ 5052.) CNA gave South forty-five days to improve. (56.1, ¶ 56.) Thereafter, South responded
with near-weekly emails summarizing his performance and explaining why he disagreed with
Siegel’s assessment. (Rule 56.1, ¶ 57.)
Ultimately, South’s 2013 year-end performance review dropped to “Partially
Meets Expectations.” (56.1, ¶ 23.) In that evaluation, Siegel noted that MCU asked that some of
South’s cases be evaluated for transfer (56.1, ¶ 60), that his reporting was sporadic (56.1, ¶¶ 60–
61), and that his claims’ partners complained about his issue recognition and reporting (56.1,
South did not challenge any of Siegel’s comments in the 2013 performance
review. At deposition, South acknowledged that he did not believe they were attributable to his
age, rather he maintained that some comments were intended to create a record of subpar
performance for future disciplinary action. (56.1, ¶¶ 66–67.)
By 2014, the MCU caseload had increased considerably, while the Service Center
caseload had declined. (56.1, ¶¶ 96–99.) The need for additional MCU attorneys was obvious.
A CNA executive explained to Siegel that he would need to implement a reduction in force
(“RIF”) of Service Center attorneys in order to hire MCU-attorneys. (56.1, ¶ 101.) In February
2014, Siegel began rating attorneys in multiple categories, including technical knowledge,
technical skills, customer focus, professional integrity, focus on results, analyzes/solves
problems, and teamwork and collaboration. (56.1, ¶ 102.) Among the 17 attorneys in the New
York office, South received the lowest overall ranking. (56.1, ¶ 103.)
While CNA wanted to initiate the RIF in June 2014, Siegel put it off because he
had not hired MCU-approved replacements. (56.1, ¶ 114.) South’s 2014 mid-year evaluation
offered similar critiques as his 2013 year-end review. (56.1, ¶ 68.) By August 2014, Siegel
hired three new MCU-approved attorneys. (56.1, ¶ 125.) Thereafter, updating his prior
evaluations of all attorneys in the New York office, Siegel rated South as one of three attorneys
with the lowest overall scores. (56.1, ¶¶ 115–18.) CNA terminated South and two other
attorneys on September 15, 2014. (56.1, ¶ 123.)
After the RIF, Siegel promoted a 59-year old attorney within the New York office
to Assistant Managing Trial Attorney. (56.1, ¶ 129.) Siegel had given that attorney the highest
rating in the August 2014 evaluations. (56.1, ¶ 119.)
Summary judgment is appropriate only where all of the submissions taken
together “show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the
burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In making that determination, the Court must “construe all
evidence in the light most favorable to the nonmoving party, drawing all inferences and
resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.
Once the moving party has asserted facts showing that the non-movant’s claims
cannot be sustained, the opposing party must “set out specific facts showing a genuine issue for
trial,” and cannot “rely merely on allegations or denials” contained in the pleadings. Fed. R. Civ.
P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). But “only admissible
evidence need be considered by the trial court in ruling on a motion for summary judgment, and
a district court deciding a summary judgment motion has broad discretion in choosing whether to
admit evidence.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013) (citations and internal
quotations omitted). “A party may not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment,” as “[m]ere conclusory
allegations or denials cannot by themselves create a genuine issue of material fact where none
would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citations omitted). In
addition, self-serving, conclusory affidavits, standing alone, are insufficient to create a triable
issue of fact and to defeat a motion for summary judgment. See BellSouth Telecommunications,
Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996).
Employment Discrimination Claims
Employment discrimination claims under the ADEA, the NYSHRL, and the
NYCHRL are subject to the McDonnell Douglas burden-shifting standard. Brennan v. Metro.
Opera Ass’n, Inc., 192 F.3d 310, 316-17 & n.2 (2d Cir. 1999); Arnow v. Aeroflot Russian
Airlines, 980 F. Supp. 2d 477, 486 (S.D.N.Y. 2013) (“Courts in this Circuit also analyze
NYSHRL and NYCHRL discrimination claims under the McDonnell Douglas burden-shifting
framework described above.”). Under this standard, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. Delaney v. Bank of Am. Corp., 766 F.3d 163,
168 (2d Cir. 2014). To establish a prima facie case for age discrimination under the ADEA and
NYSHRL, a plaintiff must prove (1) that he was a member of a protected class, (2) that he was
qualified for the position, and (3) that he experienced an adverse employment action,1 (4) under
circumstances giving rise to an inference of discrimination. Leibowitz v. Cornell Univ., 584
F.3d 487, 498 (2d Cir. 2009). “The burden of proof that must be met to establish a prima facie
case is minimal.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 199 (2d Cir.1999). “[A]
plaintiff must come forward with some evidence, beyond merely stating that he is a member of a
protected class who suffered an adverse employment decision.” Williams v. Palladia, Inc., No.
07-CV-7720 (CM), 2009 WL 362100, at *7 (S.D.N.Y. Feb. 10, 2009). But “[g]enerally, a
plaintiff’s replacement by a significantly younger person is evidence of age discrimination.”
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000).
If this burden is met, the defendant must then “articulate some legitimate,
nondiscriminatory reason for its action.” Delaney, 766 F.3d at 168. If the defendant meets its
burden, then “the plaintiff can no longer rely on the prima facie case, but must prove that the
For NYCHRL claims, a plaintiff need not establish an adverse employment action. Instead, the plaintiff
need only show that he was “treated differently from others in a way that was more than trivial, insubstantial or
petty.” Williams v. Regus Mgmt. Grp., LLC, 836 F. Supp. 2d 159, 173 (S.D.N.Y. 2011).
employer’s proffered reason was a pretext for discrimination.” Delaney, 766 F.3d at 168
(citations and internal quotations omitted).
Under the final step of the McDonnell Douglas analysis, the burden shifts back to
the plaintiff to prove that the legitimate, non-discriminatory reason for termination was mere
pretext. At this stage, courts “analyze NYCHRL claims separately and independently from any
federal and state law claims.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,
109 (2d Cir. 2013). For ADEA and NYSHRL claims, the “plaintiff must show that age was a
‘but-for’ cause of the employer’s action.” Chapotkat v. Cty. of Rockland, 605 F. App’x 24, 26
(2d Cir. 2015); Delaney, 766 F.3d at 168. This condition “is not equivalent to a requirement that
age was the employer’s only consideration, but rather that the adverse employment action would
not have occurred without it.” Delaney, 766 F.3d at 169 (brackets omitted). Ultimately, to resist
summary judgment on ADEA and NYSHRL claims, “a plaintiff must demonstrate that a
reasonable jury could conclude by a preponderance of the evidence that the employer’s
explanations are pretextual and that, but for the plaintiff's age, the employer would not have
taken the action it did.” Chapotkat, 605 F. App’x at 26 (citing Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 107 (2d Cir. 2010) (finding that a plaintiff must “raise sufficient evidence
upon which a reasonable jury could conclude by a preponderance of the evidence that . . . age
was a ‘but for’ cause of [the] decision to fire [the plaintiff.].”).
By contrast, “the NYCHRL requires showing that age was only a ‘motivating
factor,’ rather than the ‘but for cause,’ of an adverse employment action.” Weiss v. JPMorgan
Chase & Co., No. 06-CV-4402, 2010 WL 114248, at *4 (S.D.N.Y. Jan. 13, 2010); Teasdale v.
New York City Fire Dep’t, FDNY, 574 F. App’x 50, 51 (2d Cir. 2014) (“[Defendant] is entitled
to summary judgment on this basis only if the record establishes as a matter of law that
discrimination played no role in its actions.”). While “interpretations of analogue state and
federal statutes may ‘be used to aid in interpretation of [the NYCHRL]’ to the extent such
interpretations serve as ‘a floor below which’ the NYCHRL cannot fall,” Curry v. Fed. Express
Corp., 2016 U.S. Dist. LEXIS 51018, *13 (S.D.N.Y. Mar. 16, 2016) (citation omitted), claims
under the NYCHRL are construed “broadly in favor of discrimination plaintiffs, to the extent
that such a construction is reasonably possible,” Albunio v. City of New York, 16 N.Y.3d 472
(N.Y. 2011), and “‘more liberally’ than their federal and state counterparts,” Loeffler v. Staten
Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009).
In the end, “‘[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff.’” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The defendant “will be entitled to
summary judgment . . . if the record establishes as a matter of law that discrimination played no
role in its actions.” Mihalik, 715 F.3d at 110 n.8 (emphasis added) (citation and internal
Federal and State Age-Based Discrimination Claims
The record here does not support an inference of discrimination for the ADEA or
NYSHRL claims because South was not replaced by a younger attorney as “no new employees
were hired to assume [his] duties.” Kirkland v. New York City Transit Auth., No. 11-CV-4038
(PAC), 2015 WL 5164827, at *11 (S.D.N.Y. Sept. 3, 2015). The RIF eliminated only Service
Center employees, who are not similarly situated with MCU attorneys. The new hires were
MCU attorneys, a position for which South was never approved. (56.1, ¶¶ 85–86; 96–99.)
Even assuming South established a prima facie case for discrimination—which he
did not—CNA rebutted the presumption of discrimination. “[A] RIF constitutes a legitimate,
nondiscriminatory reason for termination of employment.” Delaney, 766 F.3d at 168. And an
employee’s performance and ranking can provide a legitimate, nondiscriminatory reason for
selection in an RIF. See Delaney, 766 F.3d at 169 (“Delaney was ranked 136th among all other
BoA sales personnel and had the worst performance of employees in his group at his level.”).
Here, CNA experienced a reduction in Service Center cases and an increase in MCU cases.
(56.1, ¶¶ 96–99.) Faced with the need to eliminate Service Center employees in order to take on
additional MCU employees, Siegel ranked his employees and terminated those with the lowest
ranking. (56.1, ¶¶ 100-01.) South was among the three lowest-rated attorneys and was
terminated. (56.1, ¶ 118.)
South contends that the creation of the MCU and subsequent RIF were mere
pretext for discrimination. He believes that the MCU was created and utilized as “the vehicle by
which work was taken away from . . . older attorneys and given to younger attorneys who were
new hires,” at least in part to eliminate employees on CNA’s discontinued pension plan. (See
56.1, ¶ 134; South Decl. ¶ 4.) South’s pension plan was discontinued in 2000, 14 years prior to
his termination. (56.1, ¶¶ 17–18, 123.) The MCU was established in 2005, nine years prior to
South’s termination. (56.1, ¶¶ 69, 123.) But no facts support the allegation that the RIF was the
culmination of a 14-year long discriminatory plan.2 Indeed, South’s selection for the RIF was
entirely separate from the fact that he was not approved for MCU work: Siegel and Brian
The ages of CNA new hires outside of the New York office further undermine any notion of
discrimination. (See Declaration of Stephen Perry, dated August 1, 2016, ECF No. 72, ¶¶ 2–3, Ex. A; Declaration
of Shelly Liapes, dated July 28, 2016, ¶¶ 2–3, Ex. A.)
Granstrand, who selected attorneys for the RIF, played no role in the creation of the MCU or
selection of its attorneys. (56.1, ¶¶ 75–76.)
Moreover, the age of the attorneys selected for an RIF is insufficient to establish
discrimination. See Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 115
(S.D.N.Y. 2009) (“Even if [plaintiff] were the oldest nursing assistant at the time of her
termination, that fact, standing alone, would not provide a sufficient basis to infer that
[defendant] has a bias against older employees.”). This is particularly true where the age
demographics of the remaining attorneys belie an inference of discrimination. See Deebs v.
Alstom Transp., Inc., 346 F. App’x 654, 657 (2d Cir. 2009) (“[T[he reduction in force left a
considerable number of ADEA-protected employees in their jobs, while claiming the jobs of a
number of younger employees, facts which the district court correctly found were highly
indicative of a lack of discriminatory intent.”).
As an initial matter, the New York office had an older workforce, with only one
attorney outside of the ADEA’s protected age class. 29 U.S.C. § 631(a). After the RIF, four of
the seven remaining Service Center employees were over the age of 55, with the entire group
ranging from 41 to 65 years old. (56.1, ¶ 127.) Similarly, after the RIF, seven of the eight
MCU-approved attorneys were over 40 and two were older than Plaintiff. (56.1, ¶ 127.) See
Colon v. Trump Int’l Hotel & Tower, No. 10-CV-4794 (JGK), 2011 WL 6092299, at *7
(S.D.N.Y. Dec. 7, 2011) (“[T]he fact that four of the other five Assistant Housekeeping
Managers were in the plaintiff’s protected age group and remained on the job after the plaintiff's
termination undermines her claim that she was terminated because of her age.”); Vormittag v.
Unity Elec. Co., No. 12-CV-4116 (RJD), 2014 WL 4273303, at *4 (E.D.N.Y. Aug. 28, 2014)
(dismissing age discrimination claims of plaintiff who was 62-years old at time of RIF, noting
that defendant “ha[d] an older workforce” and “only twenty-eight” of the 150 eligible employees
“were under forty and nine were fifty-five or older”); Deebs v. Alstom Transp., Inc., 550
F.Supp.2d 385, 391 (W.D.N.Y.2008), aff’d 346 F. App’x 654 (2d Cir.2009) (demographics did
not imply age discrimination when, after RIF, majority of workforce remained over forty).
Any inference of age discrimination is further undermined by the promotion of
Jack Cohen. Cohen was one of the older attorneys in the New York office at 58 years old, yet
he received the highest rating in the office during the RIF-ratings. (56.1, ¶ 127.) One year after
the RIF, at 59 years old, he was promoted to Assistant Managing Trial Attorney. (56.1, ¶ 129.)
And “[c]ourts draw an inference against discrimination where the person taking
the adverse action is in the same protected class as the effected employee.” Baguer v. Spanish
Broad. Sys., Inc., No. 04-CV-8393 (RJS), 2010 WL 2813632, at *11 (S.D.N.Y. July 12, 2010).
At the time of Plaintiff’s termination, Siegel, who ranked the attorneys for the RIF and was in the
same pension plan as South, was 63 years old. (56.1, ¶ 6.) Granstrand, who played a role in the
RIF but had no knowledge of the attorney’s ages, was 59 years old. (56.1, ¶¶ 7, 120.)3 See Shai
Ben-Levy v. Bloomberg L.P., No. 11-CV-1554, 2012 WL 2477685, (S.D.N.Y. June 26, 2012).4
Additionally, “[w]hile evidence of direct discriminatory comments are not
necessary to sustain case alleging discrimination, the absence of such comments may be
South denies Granstrand’s knowledge solely by citing “Plaintiff’s testimony.” However, South presents no
personal knowledge to support this assertion and his own testimony on the matter is insufficient. See Twomey v.
Quad/Graphics, Inc., No. 13-cv-1109 (RA), 2015 WL 5698002, at *10 (S.D.N.Y. Sept. 28, 2015) (finding no pretext
where decision-maker testified “that he did not know the ages of Plaintiff . . . terminated during [RIF]” and rejecting
plaintiff’s denial because he “failed to point to any evidence—direct or circumstantial—in the record that would
refuse [the] assertion”); Deebs v. Alstom Transp., Inc., 346 F. App’x 654, 656 (2d Cir. 2009) (rejecting plaintiff’s
reliance on “their own deposition testimony” as “self-serving”). What is more, South fails to provide pin cites,
instead citing to deposition transcript as a whole. But “facts submitted by either party . . . ‘must be followed by
citation to evidence which would be admissible.’ Local Rule 56.1(d). If they are not, they risk being disregarded.”
Hill v. Bloomberg L.P., No. 14-CV-9809 (CM), 2016 WL 1665599, at *1 (S.D.N.Y. Apr. 20, 2016). Nevertheless,
this Court conducted in its own review of the record for this motion.
The management-level CNA employees who implemented and ran the MCU, but were not involved in
termination decisions, were 58 and 66 at the time of the RIF. (56.1, ¶¶ 9, 70).
considered by the court.” Francis v. Pactiv Corp., No. 04-CV-0417 (WDW), 2007 WL 879672,
at *13 (E.D.N.Y. Mar. 21, 2007); see also Tojzan v. New York Presbyterian Hosp., No. 00-CV6105 (WHP), 2003 WL 1738993, at *4 (S.D.N.Y. Mar. 31, 2003) (explaining that plaintiff’s
admission that no employee commented on his age undermined age discrimination claim). South
points to several incidents that he claims support an inference of discrimination, yet fails to point
to a single fact tying the incident to age-based discrimination.
For instance, in 2005, he claims that Siegel “threw [him] under the bus during a
call” by failing to stand up for South when his report was described as “terrible.” (56.1, ¶ 135.)
Yet South acknowledges that he “ha[d] no idea” if it was because of his age. (56.1, ¶ 136.) In
2007, Siegel told one of South’s peers who was not selected for the RIF that his presentation on
an MCU case “made him look like a deer in the headlights,” and later took the case away from
that attorney. (56.1, ¶ 138.) At that same meeting, a CNA executive in charge of the MCU
walked away from South after asking him a question, while South was in the midst of
responding. (56.1, ¶ 139.) Again, however, South admits that neither Siegel nor the CNA
executive made any reference to age (56.1, ¶ 140), and points to no other evidence suggesting
discrimination. While this treatment may be impolite, anti-discrimination statutes “do not set
forth a general civility code for the American workplace.” Lorquet v. Century 21 Dep’t Stores,
LLC, No. 15-CV-5965 (WHP), 2016 WL 4530904, at *2 (S.D.N.Y. Aug. 4, 2016).
Rather, the evidence suggests the opposite. South acknowledges that neither
Siegel nor anyone in a managerial position, ever made derogatory or negative comments
concerning Plaintiff’s age (56.1, ¶¶ 152–53), and that he never complained to Human Resources
about discrimination, despite routine meetings to discuss benefits and company policies (56.1,
¶ 144.) See Osborne v. Literacy Partners, Inc., No. 04-CV-6652 (DAB), 2007 WL 2298354, at
*6 (S.D.N.Y. Aug. 9, 2007) (“That [plaintiff] never saw the need to file an internal complaint . . .
signifies that she did not believe that discrimination was a substantial problem while she worked
Nor does South’s selection for the RIF raise an inference of discrimination. It is
well established that “[a] plaintiff is not entitled to a trial based on pure speculation, no matter
how earnestly held.” Ali v. Mount Sinai Hosp., 1996 U.S. Dist. LEXIS 8079, at *22–23
(S.D.N.Y. Jun. 12, 1996). This Court has no doubt that South believed he was the best attorney
in the New York office. (See 56.1, ¶¶ 35–36.) But his performance reviews leading up to the
RIF remained consistent and the comments in his December 2013 performance deficiency letter
were the same deficiencies leading to South’s low rating in February and August 2014. (See
56.1, ¶¶ 51, 54, 55, 103, 108.) “Without more . . . [plaintiff’s] disagreement with [manager’s]
assessment of his performance simply does not evidence discriminatory intent.” Hill v.
Bloomberg L.P., No. 14-CV-9809 (CM), 2016 WL 1665599, at *10 (S.D.N.Y. Apr. 20, 2016);
Hu v. UGL Servs. Unicco Operations Co., No. 13-CV-4251 (LGS), 2014 WL 5042150, at *6
(S.D.N.Y. Oct. 9, 2014) (“[a] plaintiff’s subjective disagreement with his reviews is not a viable
basis for a discrimination claim.”).
In the end, South has failed to meet his burden under the ADEA and NYSHRL:
No reasonable jury could find that age was the but-for cause of his determination. Accordingly,
CNA is entitled to summary judgment on the ADEA and NYSHRL claims.
Hostile Work Environment
To establish a hostile work environment claim under the ADEA or NYSHRL, a
plaintiff must “produce enough evidence to show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Rivera v.
Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). Unlike the ADEA and
NYSHRL, “the NYCHRL allows liability to attach for harassing conduct that does not qualify as
‘severe or pervasive . . . ,’ [rather] the primary issue for a trier of fact in harassment cases . . . is
whether the plaintiff has proven by a preponderance of the evidence that he has been treated
less well than other employees because of a protected characteristic.” Petrisch v. HSBC Bank
USA, Inc., No. 07-CV-3303 (KAM), 2013 WL 1316712, at *17 (E.D.N.Y. Mar. 28, 2013).
Nevertheless, “the NYCHRL is not a general civility code and when the conduct alleged is far
from a borderline violation of the NYSHRL, then the plaintiff has failed to state a claim under
the NYCHRL, as well.” Erasmus v. Deutsche Bank Americas Holding Corp., No. 15-CV-1398
(PAE), 2015 WL 7736554, at *7 (S.D.N.Y. Nov. 30, 2015) (internal citations and quotation
A defendant may raise an affirmative defense against hostile work environment
claims under the ADEA where “(a) . . . the employer exercised reasonable care to prevent and
correct promptly any . . . harassing behavior, and (b) . . . the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998).5 “One
way for employers to demonstrate that they exercised reasonable care is to show that they had an
anti-harassment policy in place.” Finnerty v. William H. Sadlier, Inc., 176 F. App’x 158, 162
(2d Cir. 2006). “Once an employer has satisfied its initial burden of demonstrating that an
employee has completely failed to avail [him]self of the complaint procedure, the burden of
This defense is not available under the NYCHRL, see Zakrzewska v. New Sch., 14 N.Y.3d 469, 479 (N.Y.
2010) (“[T]he plain language of the NYCHRL precludes the Faragher–Ellerth defense.”), and “it is unclear that the
Faragher/Ellerth defense applies to claims brought under the NYSHRL,” see Gorman v. Covidien, LLC, 146 F.
Supp. 3d 509, 521 (S.D.N.Y. 2015).
production shifts to the employee to come forward with one or more reasons why the employee
did not make use of the procedures. The employer may rely upon the absence or inadequacy of
such a justification in carrying its ultimate burden of persuasion.” Leopold v. Baccarat, Inc, 239
F.3d 243, 246 (2d Cir. 2001).
Here, Plaintiff received a copy of CNA’s Human Resources Policy Manual,
which contains harassment policies and provides a mechanism to report harassing behavior.
(56.1, ¶¶ 15–16.) In particular, CNA’s “Harassment-Free Workplace” policy provides that
employees who believe they were subjected to inappropriate or unfair conduct can contact
Human Resources or CNA’s Compliance Hotline. (56.1, ¶ 15.) And CNA’s “Open-Door”
policy provides that employees may report any workplace issues to another CNA manager,
Human Resources, Employee Relations, a member of the Law Department, a member of
Corporate Investigations, or the Compliance Hotline. (56.1, ¶ 15.)
Over the course of his employment, South met with Human Resources multiple
times to discuss benefits and company policies. (56.1, ¶ 144.) However, despite these “routine
meetings” with Human Resources, South never complained about discrimination to anyone.
(56.1, ¶ 144.) South admits he failed to utilize CNA’s anti-harassment policies and provides no
rationale for this failure. Accordingly, no reasonable juror could find that CNA failed to exercise
reasonable care in preventing and correcting promptly harassing behavior or that South acted
reasonably in failing to take advantage of CNA’s anti-harassment policies.
Even if South utilized CNA’s anti-discrimination policies, the conduct he
complains of did not create a hostile work environment. South’s claim is centered on four facts:
(1) Siegel asked South to leave a room during a client meeting and, thereafter, removed South
from the client’s case, (2) Siegel referred to MCU-designated attorneys as “elite,” (3) a CNA
executive asked that South be removed from MCU matters, and (4) Siegel commented to South
that he was not qualified to handle MCU cases because of his mishandling of such cases in the
past. (56.1, ¶¶ 148–51.)
But “a hostile work environment is actionable . . . only when it occurs because of
. . . [a] protected characteristic.” Bliss v. MXK Rest. Corp., No. 16-CV-2676, 2016 WL
6775439, at *2 (S.D.N.Y. Nov. 14, 2016). Siegel’s one time reference to MCU attorneys as elite
makes no reference to age. The only link between Siegel’s description of MCU-attorneys and
South’s age is South’s allegation that older attorneys were not approved to handle MCU matters.
But that mischaracterizes the record. (See 56.1, ¶ 127.) South similarly fails to show the
remaining allegations have any relation to his age. South admits that he was not subject to
insults because of his age and that no one at CNA ever made derogatory comments about his age.
(56.1, ¶¶152–53.) No other facts support South’s harassment allegations.6 (56.1, ¶ 154.)
Moreover, “[c]lose monitoring and mild rudeness is typically not so severe as to
be abusive, particularly in a situation such as this, where there is no indication that the behavior
was linked to plaintiff’s [protected class].” Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556,
580 (S.D.N.Y. 2009). Three of South’s instances of “harassment” are focused on his
performance and his removal from cases, not his age. But criticism of his performance is
insufficient for a hostile work environment claim.
Although South admitted no other facts support his harassment allegations, South’s declaration and
memorandum rely on two additional allegations: an instance in which an email was not circulated recognizing that
South won a defense verdict after a jury trial and a requirement that he send “weekly reports” summarizing his
performance. (South Decl., ¶¶ 7, 10.) However, South provides no support for the former statement and South’s
own admission contradicts the latter. (See 56.1, ¶ 57.)
In the end, even if South could connect these discrete instances to his age, they
still fail to give rise to a claim of a hostile work environment. Accordingly, his hostile work
environment claims under the ADEA and NYSHRL are dismissed.
Having dismissed all of South’s federal claims, this Court must consider whether
to exercise supplemental jurisdiction over South’s remaining NYCHRL claims. “[A] district
court[ ] may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court
has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c).
“Discrimination claims brought under the NYCHRL are evaluated under a more
permissive standard than analogous federal claims.” Johnson v. IAC/Interactive Corp., 2 F.
Supp. 3d 504, 518 (S.D.N.Y. 2014). And “[i]n this circuit, ‘courts regularly decline jurisdiction
over NYSHRL and NYCHRL claims once the federal employment claims have been
dismissed.’” Morant v. Physicians Affiliate Grp. of N.Y., P.C., No. 14-CV-0067, 2014 WL
3964153, at *2 (S.D.N.Y. Aug. 13, 2014) (quoting Harris v. NYU Langone Med. Ctr., No. 12CV-0454 (RA), 2014 WL 941821, at *2 (S.D.N.Y. Mar. 11, 2014)); Charley v. Total Office
Planning Servs., Inc., No. 14-CV-85 (NRB), 2016 WL 4705164, at *5 (S.D.N.Y. Aug. 23, 2016)
(“[D]istrict courts frequently decline to exercise supplemental jurisdiction over state employment
discrimination causes of action when the federal claims have been resolved . . . and the record in
this case is not so voluminous that judicial economy counsels in favor of retaining jurisdiction.”
(internal citations omitted)). Accordingly, this Court declines to exercise supplemental
jurisdiction over South’s NYCHRL claim, which is dismissed without prejudice.
Defendant Continental Casualty Company’s motion for summary judgment is
granted with respect to South’s employment discrimination and hostile work environment claims
under the ADEA and NYSHRL. This Court declines to exercise supplemental jurisdiction over
South’s NYCHRL, which are dismissed without prejudice. The Clerk of Court is directed to
terminate all pending motions and mark this case as closed.
Dated: February 28, 2017
New York, New York
WILLIAM H. PAULEY III
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