Rich v. Associated Brands, Inc.
Filing
143
DECISION AND ORDER GRANTING Defendants' 132 Motion for Summary Judgment; DISMISSING the complaint; DIRECTING the Clerk of Court to close this case. Signed by William M. Skretny, Chief Judge on 11/10/2012. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL N. RICH, JR.,
Plaintiff,
v.
DECISION AND ORDER
08-CV-666S
ASSOCIATED BRANDS, INC.,
Defendant
and ASSOCIATED BRANDS INC.,
Intervenor-Defendant.
I. INTRODUCTION
Plaintiff Michael N. Rich, Jr., commenced this action in 2008 seeking damages for,
among other things, employment discrimination based on disability. Presently before this
Court is Defendants’ Motion for Summary Judgment dismissing the complaint. This Court
has considered the submissions and finds oral argument unnecessary. For the reasons
that follow, Defendants’ motion is granted.
II. FACTUAL BACKGROUND
Plaintiff filed his employment discrimination complaint pro se in September 2008
against his Medina, New York employer, Defendant Associated Brands, Inc. (Compl. ¶ 2.)
This Defendant moved to dismiss the complaint on the ground that suit based on the
alleged discriminatory actions, which ended with Plaintiff’s termination in July 2004, was
time barred. (Docket No. 6.) This Court granted the motion and dismissed the complaint.
(Docket Nos. 15, 16.)
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Plaintiff appealed the Decision and Order granting the motion to dismiss as well as
the denial of his subsequent motion for reconsideration. (Docket Nos. 18-21.) The Second
Circuit affirmed this Court’s dismissal of those claims based on alleged discriminatory acts
occurring between July 1, 2002 and July 9, 2004. (Second Circuit Mandate at 4, 6, Docket
No. 26.) The Court further determined, however, that based on a liberal reading of the pro
se complaint, a failure to hire claim that was not time barred and a state law breach of
contract claim could also be discerned. (Id. at 5-6.) These two claims were remanded to
this Court for consideration.
Following remand, Medina Defendant Associated Brands, Inc., answered the
complaint. (Docket No. 27.) This Defendant is owned by Ontario-based Defendant
Associated Brands Inc. (these two entities are nominally distinguished by the lack of
comma in the latter’s name). (Defs’ Mem of Law in Support of Motion to Intervene, Docket
No. 77-1 at 4.) Because Defendants were not sure which entity was the intended
defendant, both moved to intervene. (Id.) The Ontario-based parent company was
permitted to intervene as of right in September 2011. (Decision and Order of Magistrate
Judge Foschio, Docket No. 117 at 8.) Plaintiff also moved to amend his complaint, and
that motion was partially granted to the extent that Plaintiff sought “to assert factual
allegations regarding the circumstances under which the original separation agreement
and the July 7, 2004 separation agreement were drafted.” (Id. at 6.) Plaintiff’s Motion for
the Appointment of Counsel was also granted in September 2011. (Docket Nos. 99, 118.)
Despite Judge Foschio’s order and the assignment of counsel, however, no amended
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complaint was filed.1
Defendants now move for summary judgment dismissing the complaint.2
III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A court’s function on a
summary judgment motion “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609
F.3d at 545. “A dispute regarding a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’ ” Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248), cert denied 540
U.S. 811 (2003). Further, 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.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d
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Although a docum ent which bears the words “2 nd Am m ended Com plaint [sic]” appears am ong
the exhibits to Plaintiff’s opposing declaration, it is partially illegible, and it is unclear if it is only an excerpt
of a docum ent. (Docket No. 140.)
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In support of this m otion, Defendants subm itted the Declaration of Mary Lou Rue, Declaration of
Sue Barlow with Exs. A-C, Declaration of Attorney Joshua Feinstein, Esq., with Exs. A-JJ, and a
supporting Mem orandum of Law. (Docket No. 132.) Defendants also filed a Statem ent of Undisputed
Facts (Docket No. 134.) Plaintiff opposed the m otion with the Attorney Affidavit of Catherine Creighton,
Esq., with Exs. A-C (Docket Nos. 137, 139-2, 3), a Mem orandum of Law in Opposition (Docket No. 139), a
Response to Defendants’ Statem ent of Undisputed Facts (Docket No. 139-1), Plaintiff’s Declaration in
Opposition with Exs. A-M (Docket No. 140), and Docket No. 138 consists of ‘Exhibits B-J to Plaintiff’s
Affidavit.’ Defendants replied with Feinstein’s Reply Declaration with Exs. A-D (Docket No. 141) and a
reply Mem orandum of Law (Docket No. 142).
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Cir.2003).
A.
Failure to Hire
Plaintiff’s failure to hire claim is subject to the burden-shifting analysis found in
McDonnell Douglas Corp. v Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973);
see McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Under this
analysis, a plaintiff must first establish a prima facie case of discrimination. McBride, 583
F.3d at 96.
Here, Plaintiff failed to establish such a claim. Plaintiff contends that Defendants
failed to hire him in August 2007 because he had a disability. (Compl. ¶ 19.23.) By his
own admission, however, he never applied for a specific position. (Pl’s Mem of Law at 69, Docket No. 139 (referencing “any position which opened up,” “any available job,” and
“that he applied for unspecified jobs”); Pl’s Dep at 60, 62, 111, Creighton Aff, Ex. A, Docket
No. 139-3 (“any future positions that were open,” “any position that opened up”).) Courts
in this Circuit “generally require that the plaintiff establish that []he applied for the specific
position but did not receive an offer.” Gaffney v. Dep’t of Info. Tech. and Telecomm., 536
F.Supp.2d 445, 459-60 (S.D.N.Y. 2008); Brown v. Coach Stores, Inc., 163 F.3d 706, 710
(2d Cir. 1998); Bernstein v. The MONY Group, Inc., 228 F.Supp.2d 415, 419 (S.D.N.Y.
2002). “[M]erely asserting that on several occasions she or he generally requested
promotion” or a new position is insufficient to establish a prima facie case of a
discriminatory failure to hire or promote. Brown, 163 F.3d at 710 (noting that to hold
otherwise would unfairly burden employers with the responsibility of keeping track of not
only who actually applied, but those persons who may have generally expressed an
interest); see Kinsella v. Rumsfeld, 320 F.3d 309, 314-15 (2d Cir. 2003); Bernstein, 228
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F.Supp.2d at 419; Meyers v. Medco Health Solutions, Inc. No. 09-CV-09216, 2012 WL
4747173, *14 (S.D.N.Y. Oct. 4, 2012). This cause of action must therefore be dismissed.
B.
Breach of Contract
Plaintiff contends that Defendants breached a written agreement entitled “Original
Separation Agreement” allegedly entered into on June 14, 2004. (Pl’s Mem of Law at 4-6;
see Feinstein Decl. Ex. FF.) This agreement entitled Plaintiff to monthly consulting fees
which Defendants have not paid. (Pl’s Mem of Law at 4; Feinstein Decl. Ex. FF.) Although
the only copies in the record of the document purportedly constituting this agreement are
unsigned, Plaintiff asserts that he and Jim Holland, the Associated Brands Toronto-based
Director of Finance, did sign the agreement in June 2004 and that the signed copy must
be in Defendants’ possession. (Pl’s Mem of Law at 4-6; see Feinstein Decl. ¶ 34 Exs. GG,
HH.)
This theory is raised for the first time following remand. In his original complaint, as
well as his argument on appeal, there was no mention of a purported signed June
agreement. (Compl. ¶¶ 19.18-19.23; Pl’s Appellate Br at 11-15, Feinstein Decl Ex. DD,
Docket No. 132-10.) Instead, Plaintiff alleged that in June 2004 he “delivered a memo to
Associated Brands Director of Finance, which [wa]s a request for a meeting due to
intentional retaliation to me.” (Compl. ¶ 19.18 (capitalization altered).) He further asserted
that he received an oral promise in July 2004 that a new agreement providing for consulting
fees and additional benefits was forthcoming:
The Medina Vice President of Finance told me not to worry. He said I would
receive immediately a second separation agreement in the mail which will
include dates of health insurance coverage for both me and my wife. He
also said in the presence of the [manager] of Medina Human Resources that
if I sign the second separation agreement “the consulting agreement and
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benefits would come later.”
(Compl. ¶ 19.20 (capitalization altered, emphasis added).) Plaintiff further alleged that he
“waited and never received the 3rd Separation Agreement agreed to after the 2nd agreement
was voided due to errors.” (Id. (capitalization altered).) Notably, the document which
Plaintiff now asserts is the “original” agreement is subtitled “3rd Separation Agreement.”
(Feinstein Decl. Ex. FF.) Plaintiff specifically alleged in his complaint that, as of August
2007, “Associated Brands never gave me a signed benefits and consulting agreement as
verbally discussed and agreed to with the Medina VP of Finance in August (per my phone
call to him).” (Compl. ¶ 19.23 (capitalization altered, emphasis added).) Plaintiff further
asserted on appeal, through counsel, that “Associated Brands was aware of the terms [of,
among other things, a consulting agreement] which [Plaintiff] had repeatedly presented to
them in writing, and had insisted upon, and that Associated Brands orally agreed to and
promised him these benefits.” (Pl’s Appellate Br at 32 (emphasis added).)
“A party's assertion of fact in a pleading is a judicial admission by which it normally
is bound throughout the course of the proceeding.” Bellefonte Re Ins. Co. v. Argonaut Ins.
Co., 757 F.2d 523, 528 (2d Cir.1985); see Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 105-06 (2d Cir. 2011), cert denied 132 S. Ct. 1744 (2012). Because Plaintiff’s
current contention that a written agreement providing consulting fees was signed by the
parties in June 2004 is belied by his prior factual assertions that only an oral promise to
that effect ever existed, the Court may properly disregard this new claim. Rojas, 660 F.3d
at 105-06 (new allegations contradicted by prior judicial admission may properly be
rejected after consideration of the record); Jeffreys v. City of New York, 426 F.3d 549, 554
(2d Cir. 2005). The breach of contract cause of action is therefore also dismissed.
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IV. CONCLUSION
For the reasons stated above, even considering the record in a light most favorable
to Plaintiff, Defendants are entitled to summary judgment. Defendants’ motion is granted
and the complaint is dismissed.
V. ORDERS
IT HEREBY IS ORDERED that Defendants’ Motion for Summary Judgment (Docket
No. 132) is GRANTED and the complaint is dismissed;
FURTHER, that the Clerk of Court shall close this case.
SO ORDERED.
Dated: November 10, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge
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