Focarazzo v. University of Rochester
Filing
26
-CLERK TO FOLLOW UP-ORDER granting defendant's 15 Motion for Summary Judgment and dismissing the complaint in its entirety, with prejudice. Signed by Hon. David G. Larimer on 5/20/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
MARJORIE A. FOCARAZZO,
Plaintiff,
DECISION AND ORDER
10-CV-6285L
v.
UNIVERSITY OF ROCHESTER,
Defendant.
________________________________________________
Plaintiff Marjorie Focarazzo (“plaintiff”) brings this action against her former employer, the
University of Rochester (the “University”), alleging age-based discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §621 et seq. (“ADEA”) and the New York State
Human Rights Law, N.Y. Exec. Law §290 et seq. (“NYHRL”). Discovery is now completed, and
the University moves for summary judgment dismissing the plaintiff’s claims (Dkt. #15). For the
reasons that follow, the University’s motion for summary judgment is granted, and the complaint is
dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was initially hired by the University in 1998, and worked in several secretarial
positions before being hired in May 2001 as the Administrative Assistant to the Associate Dean for
Academic Affairs for the University’s School of Nursing, Dr. Judith Baggs.
Plaintiff’s performance in this position under Dr. Baggs was generally well-rated, with the
exception of a June 8, 2005 letter to plaintiff memorializing an inappropriate comment she had
allegedly made about a coworker, in which she expressed a wish to “take a contract out on [the
coworker’s] life.” (Dkt. #15-21).
In October 2005, Dr. Kathy Rideout was appointed to the position of Associate Dean for
Academic Affairs, and became plaintiff’s supervisor.
Dr. Rideout evaluated plaintiff’s job
performance positively through May of 2007. However, thereafter, several performance issues began
to emerge. On April 9, 2008, plaintiff abruptly left a meeting with Rideout in which Rideout had
made criticisms of her job performance. Two days later, plaintiff wrote to Rideout to apologize,
explaining that she had needed time to gather her thoughts, and attributing the recent deficiencies
in her job performance to personal problems, which were interfering with her work. (Dkt. #15-7).
On April 28 and April 29, 2008, Rideout wrote letters to plaintiff documenting conversations
between them about plaintiff’s job performance, and listing several recent issues, including
plaintiff’s failure to complete certain advanced preparations for an on-site evaluation visit by an
accreditation agency, failure to attend planning meetings, and frequent, unexplained absences from
her office. (Dkt. #15-8, #15-9). Both letters identified specific actions plaintiff could take to
improve performance in the designated areas (e.g., resume attending meetings, leave an explanation
and anticipated return time when absent from the office, etc.). Id.
On May 28, 2008, Rideout completed a performance evaluation for plaintiff, identifying
plaintiff as “meeting expectations” in all areas of performance except for “Resourcefulness/Results”,
which was rated as “needs improvement.” In written comments, Rideout expressed concern about
plaintiff’s frequent absence from the office, stating that faculty members had complained about
plaintiff’s inaccessibility, plaintiff’s failure to ask for assistance at times when she was unsure what
to do, and referenced the performance issues memorialized in her April 2008 correspondence with
plaintiff. (Dkt. #15-10).
Rideout’s concerns with plaintiff’s unexplained absences from her office apparently
intensified, and on July 17, 2008, Rideout wrote to plaintiff to confirm recent conversations and
request that plaintiff contact her if she was going to be out of the office. Rideout emphasized that
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“respectful collaboration and communication with me are an essential part of your position,” and
warned that “additional performance issues may lead to further corrective action, up to and including
termination.” (Dkt. #15-11).
A week later, on July 24, 2008, Rideout again wrote to plaintiff to confirm a conversation,
and discuss plaintiff’s continued lack of availability and failure to report expected absences, arrange
for coverage during absences, complete projects, and follow up on correspondence. Again, Rideout
warned plaintiff that failure to address these issues might lead to corrective action, up to and
including termination. (Dkt. #15-12).
On January 16, 2009, Rideout wrote to plaintiff that she had “not sufficiently demonstrated
the improvements necessary in [her] job performance to successfully meet the requirements of [her]
position,” and officially terminated plaintiff, citing the concerns raised in previous correspondence.
(Dkt. #15-15).
Although plaintiff characterizes Rideout’s criticisms of her performance as “nitpicky” and
contends that on one occasion, Rideout criticized plaintiff for not attending a meeting when in fact
Rideout had approved plaintiff’ request for time off that day, she generally admits that the letters and
reviews, and the meetings and conduct described therein, took place. (Dkt. #20-2, Dkt. #15-17 at
157:14-18, 162:5-15, 164:12-19).
Following her termination, plaintiff filed an administrative charge with the Equal
Employment Opportunity Commission (“EEOC”), alleging age-based discrimination. The EEOC
issued a 90-day right-to-sue letter on March 19, 2010, and plaintiff timely commenced the instant
action on May 26, 2010, claiming discriminatory termination in violation of the ADEA and NYHRL.
DISCUSSION
I. Summary Judgment in Discrimination Cases
Summary judgment will be granted if the record demonstrates that “there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.
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R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). While courts
should be cautious about granting summary judgment in cases where motive, intent or state of mind
are at issue, a typical facet of discrimination actions, see Montana v. First Federal Savings and Loan
Ass’n of Rochester, 869 F.2d 100, 103 (2d Cir. 1989), “the salutary purposes of summary judgment
– avoiding protracted, expensive and harassing trials – apply no less to discrimination cases than to...
other areas of litigation.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). See also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), quoting St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 524 (1993) (trial courts should not “treat discrimination differently from other ultimate
questions of fact”).
When considering a motion for summary judgment, the Court must draw inferences from
underlying facts “in the light most favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
II.
Plaintiff’s Discriminatory Termination Claim
Plaintiff’s claims of employment discrimination are subject to the familiar burden-shifting
analysis first articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). First, she
must establish a prima facie case of discrimination by demonstrating: (1) membership in a protected
class; (2) satisfactory job performance; and (3) an adverse employment action, occurring under (4)
circumstances giving rise to an inference of discrimination. See Collins v. New York City Transit
Auth., 305 F.3d 113, 118 (2d Cir. 2002). Once plaintiff has established a prima facie case, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. See James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000). The
burden then returns to plaintiff, to supply evidence that the legitimate, nondiscriminatory explanation
offered by defendant for its conduct is a pretext, and that the conduct was actually the result of
discrimination. See St. Mary’s Honor Center, 509 U.S. 502, 508 (1993).
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While granting plaintiff the liberal interpretation and favorable inferences due to her as a
nonmovant, I find that she has nonetheless failed to establish a prima facie case of discrimination,
and/or to rebut the University’s legitimate, nondiscriminatory reason for terminating her
employment.
It is undisputed that plaintiff is over the age of forty, that her termination from employment
constitutes an adverse employment action,1 and that to the extent that plaintiff was replaced by a
thirty-five year old individual outside of the protected class, she was terminated under circumstances
giving rise to an inference of discrimination. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135
(2d Cir. 2000 (“[g]enerally, a plaintiff’s replacement by a significantly younger person is evidence
of age discrimination”); Krupman v. Iona Preparatory Sch., 2011 U.S. Dist. LEXIS 40079 at *6
(S.D.N.Y. 2011) (replacement by a younger employee establishes circumstances giving rise to an
inference of age-based discrimination).
However, plaintiff has not produced evidence sufficient to establish the remaining element
of her prima facie case, that she was performing her job satisfactorily. Significantly, plaintiff does
not deny that her job performance suffered in 2007-2008 and thereafter in the manner and to the
extent described by the University, nor has she adduced any evidence that would otherwise refute
the reasons given by the University for terminating her employment.
Instead, plaintiff alleges that she was performing well and was favorably reviewed up until
some point in 2008, when Rideout, who plaintiff had previously considered to be a “supporter” and
1
Plaintiff does not appear to claim that her more negative performance reviews and/or
letters from Rideout criticizing her performance constitute adverse employment actions. To the
extent that such an argument could be made, it would be without merit, since it is undisputed that
neither the letters nor the performance reviews resulted in any negative changes in plaintiff’s
working conditions, and that plaintiff continued to receive salary raises and full benefits
throughout her employment. See e.g., Zavala v. Cornell Univ., 2013 U.S. Dist LEXIS 64063
(N.D.N.Y. 2013) (negative performance evaluation is only an adverse employment action where
it results in adverse changes in work conditions); Trachtenberg v. Dept. of Educ. of the City of
New York, 2013 U.S. Dist. LEXIS 48410 (S.D.N.Y. 2013) (same); Collier v. City of New York,
2009 U.S. Dist. LEXIS 14814 at *16 (S.D.N.Y. 2009) (written warnings, without additional
work-related repercussions, do not constitute adverse employment actions).
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“confidant,” started to become hypercritical of her performance, “nitpicking [p]laintiff’s every
move.” (Dkt. #1 at ¶12, #15-17 at 163:21-164:8). However, excessive scrutiny by a supervisor is
not an adverse employment action by itself, and plaintiff has produced no evidence to suggest that
Rideout’s criticisms of her performance were motivated in any way by plaintiff’s age, or that
Rideout, who was “about the same age” as plaintiff, treated or assessed younger employees any
differently from plaintiff. (Dkt. #15-18 at 94:10-14). See Novak v. Waterfront Comm’n of N.Y.
Harbor, 2013 U.S. Dist. LEXIS 30130 at *21-*22 (excessive scrutiny and even harsh or undue
criticism by an employer do not constitute an adverse employment action); Graves v. Deutsche Bank
Secs., Inc., 2012 U.S. Dist. LEXIS 174691 at *15-*16 (S.D.N.Y. 2012) (claim of pretext for
discrimination is “strongly undercut” where individual who decided to terminate plaintiff is, himself,
a member of the same protected class); Edwards v. City of New York, 2005 U.S. Dist. LEXIS 34376
at *46-*47, *50 (S.D.N.Y. 2005) (plaintiff’s argument that discrimination is indicated merely by his
membership in a protected class, combined with scrutiny from supervisors, is “the type of groundless
speculation that summary judgment is designed to root out,” and is insufficient to suggest an
inference of discrimination as part of a prima facie case, or to prove pretext).
Plaintiff also cites certain remarks by Rideout to the effect that plaintiff, who while working
at the University had attained a master’s degree and was proceeding with additional master’s-level
work, had become “overqualified” for her position. Plaintiff contends that Rideout’s comments were
“ageist” remarks, suggesting that her termination on performance grounds was pretextual. Although
plaintiff cites no case law for this proposition, it would appear that she is attempting to rely upon the
Second Circuit’s observations that, “a conclusory statement that a person is overqualified may easily
‘serve as a mask for age discrimination.’” Bay v. Times Mirror Magazines, Inc., 936 F. 2d 112, 118
(2d Cir. 1991), quoting Binder v. Long Island Lighting Co., 933 F.2d 197, 192-194 (2d Cir. 1991).
See also Taggert v. Time Inc., 924 F.2d 43, 48 (1991). However, the Second Circuit’s comments
in that vein are of no appreciable relevance here. They were made solely in the context of cases
wherein overqualification is the sole “nondiscriminatory reason” offered by the employer for an
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adverse employment action, and relate to whether employers might use the facially
nondiscriminatory reason of “overqualification” as a euphemistic pretext for refusing to hire older
workers. Id. This holding does not relate, nor has it been applied, to the issue of whether a
supervisor’s stray remarks referencing an employee’s bona fide overqualification for her job
comprise evidence of pretext, where overqualification is neither given by the employer as the
nondiscriminatory reason for its actions, nor suggested by any evidence as having played any role
in them. Here, the University never claimed to have terminated plaintiff’s employment on the basis
of educational overqualification, nor is there any evidence that it did so. Rather, it is undisputed that
plaintiff’s termination was undertaken on the grounds of performance problems, and plaintiff, while
emphasizing that other aspects of her performance were positive, does not deny that the majority of
those performance deficiencies existed. (Dkt. #20-2).
Accordingly, even assuming arguendo that plaintiff could establish a prima facie case of agebased discrimination, neither plaintiff’s characterization of Rideout as “nitpicky” nor Rideout’s
reference to plaintiff’s academic overqualification for her secretarial job provide evidence of pretext
sufficient to foreclose summary judgment, particularly in light of plaintiff’s failure to deny or refute
the substantial evidence of her performance problems beginning in or around 2007 and continuing
through her termination in 2009. See Malacarne v. City Univ. of New York, 2008 U.S. App. LEXIS
17059 at *6-*7 (2d Cir. 2008) (uncontested, documented evidence of poor job performance
overcomes plaintiff’s unsupported allegation that her termination was motivated by discriminatory
animus) (unpublished opinion). See generally Thornley v. Penton Publishing, inc., 104 F.3d 26, 29
(2d Cir. 1997) (satisfactory job performance is determined using the employer’s criteria, and not
some hypothetical objective standard); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (courts
may, and often must, rely upon evaluations completed by supervisors in determining if an
employee’s performance is satisfactory).
It bears repeating that plaintiff’s performance problems did not consist of one or two isolated
incidents, but were raised and documented on numerous occasions over a two-year period. The
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documented instances of poor performance involved serious matters relating directly to plaintiff’s
job duties.
Plaintiff does not dispute that her performance was criticized, and the University appears to
have been lenient and reasonable in its efforts to prod plaintiff to perform as required. Plaintiff
failed to do so, and her employment was therefore terminated. After reviewing all of the evidence,
that action seems appropriate. Even if it were not, plaintiff’s claims must fail because she has not
produced evidence that her performance issues were seized upon as a pretext for age discrimination.
Plaintiff’s speculation that age was a factor is insufficient at this stage of the case to defeat
defendant’s motion for summary judgment.
For the same reasons, plaintiff’s discrimination claims under the NYHRL are dismissed.
See Wanamaker v. Columbian Rope Company, 108 F.3d 462, 467 (2d Cir. 1997) (NYHRL age
discrimination claims are governed by the same standards as those under the ADEA).
CONCLUSION
For the foregoing reasons, the University’s motion for summary judgment (Dkt. #15) is
granted, and the complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
May 20, 2013
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