Boyle v. Merrill Lynch
Filing
44
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 31 Defendant's Motion for Summary Judgment and dismissing the Plaintiff's Complaint in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 3/18/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JAMES P. BOYLE,
DECISION AND ORDER
No. 10-CV-6520(MAT)
Plaintiff,
-vsMERRILL LYNCH,
Defendant.
________________________________
INTRODUCTION
Plaintiff James P. Boyle (“Boyle” or “Plaintiff”), represented
by counsel, brings this action pursuant to the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12201 et seq. (“ADA”), and
the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.
(“HRL”), alleging that his former employer, Merrill Lynch (“Merrill
Lynch” or “Defendant”) discriminated against him, subjected him to
a hostile work environment, failed to accommodate his disability,
retaliated against him, and constructively discharged him because
of his disability (Dkt. No. 1).
Defendant moves for summary judgment, pursuant to Rule 56 of
the Federal Rules of Civil Procedure (“Rule 56”), seeking dismissal
of Plaintiff’s complaint in its entirety.
motion.
Plaintiff opposes the
For the reasons set forth below, Defendant’s motion is
granted, and Plaintiff’s complaint is dismissed in its entirety
with prejudice.
BACKGROUND
The following facts are gleaned from the parties’ submissions
(Dkt. Nos. 32, 33, 34, 38, 39), including their respective Local
Rule 56.1 Statements. Unless otherwise noted, the facts below are
undisputed.
Plaintiff’s Employment History at Merrill Lynch
Plaintiff worked as a financial advisor (“FA”) for Merrill
Lynch
in
Rochester,
New
York
from
January
1985
until
his
resignation in July 2009. Prior to his resignation, Plaintiff had
been in negotiations with a competitor firm, Brighton Securities.
In a letter dated May 20, 2009, Brighton Securities extended to
Plaintiff an offer of employment, including a $100,000 signing
bonus, which he accepted in June 2009, before resigning from
Merrill Lynch on July 2, 2009.
Plaintiff’s Depression
In 1997, Plaintiff was diagnosed with depression with paranoid
features by Dr. Katherine Flannery, who treated Plaintiff from
December 1996, through December 1998.
In May 1997, while using
the Merrill Lynch office copy machine to make copies of personal
notes, Plaintiff left a piece of paper in the copy machine that
referenced
Plaintiff’s
his
desire
to
then-manager
commit
Mary
suicide.
Kennemur
Shortly
thereafter,
(“Kennemur”)
met
with
Plaintiff to discuss the note. At that meeting, Plaintiff signed a
form
authorizing
Merrill
Lynch’s
Employee
(“EAP”) to consult with Dr. Flannery.
-2-
Assistance
Program
Following his meeting with Kennemur, Plaintiff met once with
a psychiatrist of Defendant’s choosing, took a five week leave of
absence, and continued to consult with the EAP on a monthly basis
for approximately
Plaintiff
received
one
year.
From
treatment
from
1999 through
a
number
of
August
mental
2006,
health
providers, but he did not receive sustained treatment from any one
individual because he could not find a provider with whom he felt
comfortable.
From August 2006, through July or August 2009, Plaintiff
treated with psychiatrist Dr. Brenda Bremer.
Dr. Bremer never
spoke to anyone at Merrill Lynch about Plaintiff and never provided
Merrill Lynch with any documentation regarding his condition. At
the time she
diagnosed
stopped
treating
Plaintiff with
major
Plaintiff
depressive
in
2009,
disorder;
Dr.
Bremer
dysthymic
disorder; personality disorder, not otherwise specified, with selfdefeating narcissistic traits.
Plaintiff did not submit any
medical information to Defendant regarding his depression, claiming
that he did not do so because he believed that his managers were
aware of his depression.
However, his managers (Jeffrey Adams
(“Adams”), Chandler Root (“Root”), and Michael Fullen (“Fullen”))
all testified that they were unaware Plaintiff suffered from
depression.
Plaintiff’s Phone Conversations With Sears
In December 2007, Plaintiff called Merrill Lynch Division
Diversity Manager Todd Sears (“Sears”) to complain about Merrill
-3-
Lynch’s refusal to mediate with him in 2005 with respect to a FINRA
claim that, according to Plaintiff, resulted in the unlawful
debiting of his paycheck.
Plaintiff did not identify himself, but
Sears learned Plaintiff’s identity either through caller ID or
through documentation later provided to him by Plaintiff.
During
this call, Plaintiff informed Sears that he had a disability.
Sears, in turn, referred Plaintiff to resources on Merrill Lynch’s
intranet site and suggested that he reach out to Chris Fossil
(“Fossil”), the head of the company’s internal network focused on
employees with disabilities.
When Plaintiff called Sears a second time, he told Sears that
he had attempted to contact Fossil, who had not returned his calls.
Plaintiff reiterated the FINRA mediation issue which he believed
had not been resolved in a fair manner. The parties dispute the
substance of the ensuing conversation.
According to Defendant,
just before the end of the call, Plaintiff informed Sears that he
had a gun in his desk.
Sears then ended the conversation and told
Plaintiff that he would need to bring Plaintiff’s statements to the
attention of the Human Resources department (“HR”). Plaintiff
denies telling Sears that he had a gun in his desk. According to
Plaintiff, he conveyed to Sears that Merrill Lynch should have a
policy that relates to due process. In so doing, he referenced the
Second Amendment (of the United States Constitution) in the context
of defending oneself because of the right to bear arms.
-4-
Following
the
second
conversation
with
Plaintiff,
Sears
contacted both HR and Root, Plaintiff’s then-manager and the
director of the complex where Plaintiff worked. On December 20,
2007,
Plaintiff
met
with
Root,
Fullen
and
Joanne
McGinlay
(“McGinlay”) of HR, at which time Plaintiff denied owning a gun or
implying that he had one.
Plaintiff insisted that he was merely
invoking his right to bear arms as an example in the context of
explaining why he needed to defend himself against Merrill Lynch
for debiting his paycheck and refusing to mediate with him with
respect to the FINRA claim.
Following the meeting, Plaintiff was provided with a “Meeting
Summary Follow-Up” dated January 22, 2008 (“the Memo”), instructing
Plaintiff to be mindful of the language he used in the workplace.
The Memo reminded Plaintiff that he could pursue concerns about the
mediation issue related to the FINRA claim with Defendant’s EDR
Program, and it provided Plaintiff with resources for any concerns
he had related to disability-based discrimination.
Re-Assignment of Accounts in 2008 and 2009
Pursuant to Merrill Lynch’s redistribution policy, when an FA
leaves Merrill Lynch, his or her accounts are redistributed to
other FAs based on their ranking.
FAs have the discretion to
accept or reject accounts distributed to them pursuant to this
policy.
Plaintiff asserts that accounts were distributed without
conforming to the company’s redistribution policy. He also claims
-5-
that management has the discretion to assign accounts to specific
FAs and bypass the company policy.
In 2008 and 2009, William Page (“Page”), a Merrill Lynch
service
support
supervisor
in
Rochester,
was
distributing accounts left by departing FAs.
responsible
for
Page claims he
redistributed accounts, including several to Plaintiff, pursuant to
the redistribution policy.
In July 2008, Jeffrey Adams (“Adams”) became Plaintiff’s
manager, and, at some point thereafter, Plaintiff asked Adams to
review how client accounts had been re-assigned to him because he
felt it was not being done correctly. Adams was not directly
involved in reassigning accounts to Plaintiff, and instructed
either his administrative manager or client relationship manager to
investigate Plaintiff’s concerns.
During the time Adams was
Plaintiff’s manager, Plaintiff claims he received four accounts
that he considered to be “troubled.” Although Plaintiff could have
rejected the accounts, he chose not to do so.
Creation of Teams of FAs
In January or February 2009, Plaintiff met with Adams to
discuss Plaintiff’s business plan for 2009. Plaintiff asked if
Adams would help him form a team with one or more other FAs but did
not explain to Adams why he wanted to be on a team. It was the
responsibility of the FAs to find colleagues who were interested in
forming a team with them.
After FAs had agreed to work together as
a team, they would submit a proposed team agreement addressing
-6-
various issues to management.
When Plaintiff asked Adams for help
forming a team, Adams informed Plaintiff that it was his own
responsibility to speak to other FAs about forming or joining a
team.
After Plaintiff’s discussion with Adams in January or
February 2009, the two had no further discussions about forming a
team before Plaintiff resigned in July 2009.
The Anonymous Call from a “Client” in June 2009
In June 2009, Page and Adams learned from a client associate
that someone claiming to be a client of Plaintiff’s had called
Merrill
Lynch
in
regards
to
a
packet
that
he
had
received
requesting that he move his account to Brighton Securities because
Plaintiff was leaving Merrill Lynch.
Adams was unable to confirm
that the caller indeed was a Merrill Lynch client. He and Page
spoke to Plaintiff about the incident on or about June 12, 2009.
Plaintiff
denied
that
he
had
plans
to
leave
Merrill
Lynch.
Plaintiff requested that Adams reveal the identity of the caller,
but Adams was unable to do so because the call had come in
anonymously.
At the time of his conversation with Page and Adams, he had
already received an offer of employment with a $100,000 signing
bonus from Brighton Securities, and he had committed to joining
that firm. According to Plaintiff, although he had committed to
joining Brighton Securities prior to leaving Merrill Lynch, he did
not enter into an actual agreement of employment with Brighton
Securities until after he submitted his resignation to Merrill
-7-
Lynch on July 2, 2009.
Plaintiff later learned through his own
investigation that the anonymous caller was a manager and part
owner of Brighton Securities who did not want Plaintiff to join the
firm.
Plaintiff’s Resignation and the EEOC Charge
On July 2, 2009, Plaintiff submitted his resignation letter to
Merrill Lynch. Through its attorneys, Merrill Lynch sent Plaintiff
a letter dated July 7, 2009, reminding him of his obligations under
his employment agreement with Merrill Lynch.
On September 10, 2009, Plaintiff filed an administrative
charge with the Equal Employment Opportunity Commission (“EEOC”)
alleging
against
that
him,
constructively
Merrill
Lynch
subjected
discharged
him
had
discriminated
to
him,
a
on
hostile
the
basis
and
retaliated
environment,
of
his
and
alleged
disability. This civil action followed.
DISCUSSION
I.
Defendant’s Motion for Summary Judgment
Pursuant to Rule 56, a court shall grant a motion for summary
judgment if the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A plaintiff
can defeat a motion for summary judgment by “com[ing] forward with
evidence to allow a reasonable jury to find in his favor” on each
of the elements of his prima facie case.
Inc., 270 F.3d 94, 101 (2d Cir. 2001);
See Lizardo v. Denny’s,
Celotex Corp. v. Catrett,
477 U.S. 317, 325-27 (1986). The court must draw all factual
-8-
inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions, in the light most favorable
to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Celotex Corp., 477 U.S. at 322.
However, a
nonmovant benefits from such factual inferences “only if there is
a ‘genuine’ dispute as to those facts.”
372, 380 (2007) (quotation omitted).
that
“conclusory
statements,
Scott v. Harris, 550 U.S.
The law is well established
conjecture,
or
speculation”
insufficient to defeat a motion for summary judgment.
City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
cannot
survive
summary
judgment
simply
by
are
Kulak v.
The nonmovant
proffering
“some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or
presenting
evidence
that
“is
merely
colorable,
or
is
not
significantly probative.” Savino v. City of New York, 331 F.3d 63,
71 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 249-50 (citation
omitted)).
Rather, he must “set out specific facts showing a
genuine issue for trial.” Anderson, 477 U.S. at 248, 250.
II.
Administrative Exhaustion with Respect to Plaintiff’s ADA
Claims
It is well-settled that an ADA plaintiff must exhaust his
administrative remedies before commencing an action in federal
court. J.C. v. Regional School Dist. 10, Bd. of Educ., 278 F.3d
119, 124 (2d Cir. 2002). Defendant argues that Plaintiff failed to
exhaust his ADA claim because, in his EEOC complaint, he did not
-9-
assert that Merrill Lynch failed to provide him with reasonable
accommodations for his disability.
No. 39,
Dkt. No. 33, Ex. J; Dkt.
Ex. J.
Plaintiff concedes that he did not set forth a claim for
failure to provide reasonable accommodations, but argues that a
failure to accommodate claim is “reasonably related” to the claims
that were included in the EEOC charge because “[he] explicitly
referred in his EEOC complaint to denial of his requests for
assistance” and because “[h]is EEOC complaint also names Jeff Adams
as a prime discriminator.”
Dkt. No. 37 at 9.
“The exhaustion
requirement is relaxed under the ‘reasonably related’ doctrine if,
inter alia, the conduct complained of would fall within the scope
of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.” Mathirampuzha v. Potter, 548
F.3d 70, 76 (2d Cir. 2008) (citation omitted).
While
the
record
reflects
that
Plaintiff
did
refer
to
“requests for assistance” in his EEOC charge (Dkt. No. 39, Ex. J at
3),1 he did not indicate what his requests were or situate his
requests in the context of a need for accommodating a disability.
Similarly, although Plaintiff’s EEOC charge mentions his thenmanager Adams several times, it does not do so in reference to
Adams’s failure to accommodate Plaintiff’s disability. Plaintiff
specifically references Adams in the following contexts in his EEOC
charge: the assignment of troubled accounts to Plaintiff; the
1
The Court refers to the CM/ECF pagination here.
-10-
anonymous
call regarding
Securities;
and
the
Plaintiff’s
departure
of
employment
with Brighton
Plaintiff’s
assistant.
Accordingly, Plaintiff’s failure to accommodate claim cannot be
considered “reasonably related” to the conduct complained of in the
EEOC charge. See Matirhampuzha, 548 F.3d at 76 (finding that
retaliation and hostile work environment claims were not reasonably
related to EEO complaint, which only referenced one instance of
defendant acting aggressively toward plaintiff; “[n]owhere did the
plaintiff assert or imply a retaliatory motive for [defendant]’s
conduct, nor did he indicate that he had been verbally harassed in
the past, denied lunch breaks and assistance in performing his work
duties, or otherwise subjected to a hostile work environment”). The
Court therefore finds that the ADA claim is unexhausted.
II.
Timeliness of Plaintiff’s ADA and HRL Claims
For purposes of the ADA, a charge of discrimination must be
filed with the EEOC within 300 days of the alleged discrimination.
See 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a);
Harris v. City
of New York, 186 F.3d 243, 247 n. 2 (2d Cir. 1999). With regard to
the HRL, the applicable statute of limitations is three years.
Greene v.
Trustee
of
Columbia
Univ.,
234
F.Supp.2d
368, 377
(S.D.N.Y. 2002) (citing N.Y. CIV. PRAC. L. & R. § 214).
Applying these limitations periods, the Court finds that the
only timely claims for ADA purposes are those arising on or after
November 14, 2008. The only timely claims for for HRL purposes are
those arising on or after September 20, 2006.
-11-
The Court notes
that this date takes into account the tolling period from September
9, 2009 (when the EEOC charge was filed), to August 31, 2010 (when
the Right to Sue Letter was issued). See DeNigris v. New York City
Health and Hospitals Corp., 861 F.Supp.2d 185, 192 (S.D.N.Y. 2012)
(three-year limitations period is tolled “for the period between
the filing of an EEOC charge and the issuance by the EEOC of a
right-to-sue letter.”) (citation omitted)).
Defendant has characterized a portion of Plaintiff’s argument
as suggesting that his timely constructive discharge and failure to
accommodate claims save all of his untimely ADA and HRL claims. See
Dkt. No. 37 at 9-11.
However, it appears to the Court that
Plaintiff has conceded the timeliness issue but asserts that the
evidence from the time-barred actions is admissible to prove
discrimination, retaliation, failure to accommodate, hostile work
environment, and constructive discharge. Id. at 10-11 (citing cases
standing for proposition that there is no statute of limitations on
evidence). The cases Defendant cites in opposition to Plaintiff’s
argument deal with “[t]he continuing violation exception[,]” which
“applies when there is evidence of an ongoing discriminatory policy
or practice, such as use of discriminatory seniority lists or
employment tests.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d
708, 712 (2d Cir. 1996). If the plaintiff can show a continuing
violation, he is entitled to have the court consider all relevant
actions allegedly taken pursuant to the employer’s discriminatory
policy or practice, including those that would otherwise be time
-12-
barred.” Id. This theory, however, requires that the employer have
a
discriminatory
policy
or
mechanism.
Lukasiewicz-Kruk
v.
Greenpoint YMCA, 404 F. App’x 519, 520 (2d Cir. 2010). “[M]ultiple
incidents of discrimination, even similar ones, that are not the
result of a discriminatory policy or mechanism do not amount to a
continuing violation.” Lambert v. Genesee Hosp., 10 F.3d 46, 53
(2d Cir. 1993), abrogated on other grounds, Kasten v. Saint–Gobain
Performance Plastics Corp., 131 S. Ct. 1325, 1336 (2011); see also
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time barred,
even
when
they
are
related
to
acts
alleged
in
timely
filed
charges.”).
Here, there is no allegation of a discriminatory policy or
mechanism in place at Merrill Lynch, and there is no basis in the
record for inferring the existence of such a policy. Based on this
record, Plaintiff cannot avail himself of the continuing violation
theory. Plaintiff’s constructive discharge and remaining failure to
accommodate
claims
cannot
save
the
remainder
of
Plaintiff’s
untimely claims. The issue of whether the evidence of the untimely
claims is admissible as background in support of Plaintiff’s timely
claims is moot, given that this Court is dismissing Plaintiff’s
complaint.
-13-
III. Plaintiff has Failed to Establish a Prima Face Case with his
Respect to His Remaining Failure to Accommodate Claim
Plaintiff’s only surviving failure to accommodate claim is
that Adams refused to help him form a team with other FAs in
February 2009. Because “the legal standards for discrimination and
retaliation claims under the [New York State] Human Rights Law are
analytically
identical
to
claims
brought
under
the
ADA,”
Plaintiff’s failure to accommodate, discrimination, hostile work
environment, and retaliation claims under the ADA and HRL are
subjected to the same analysis. Parinello v. Bausch & Lomb, 2013 WL
1680152, at *13 (W.D.N.Y. Apr. 17, 2013). To establish a reasonable
accommodation claim under the ADA, a plaintiff must show that
“(1) [he] is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of his
disability; (3) with reasonable accommodation, [he] could perform
the essential functions of the job at issue; and (4) the employer
has refused to make such accommodations.”
Graves v. Finch Pruyn &
Co., Inc., 457 F.3d 181, 184 (2d Cir. 2006) (citations omitted).
Even assuming arguendo that Plaintiff meets the first two
elements, Defendant argues, he has failed to establish that working
on a team of other FAs was needed for him to perform the “essential
functions”
of
his
job
as
an
FA.
As
an
initial
matter,
the
undisputed evidence in the record shows that while Plaintiff told
Adams he wished to work on a team, he did so only in the context of
explaining his business plan and goals for the upcoming year.
-14-
Plaintiff did not inform Adams that working on a team with other
FAs was necessary for him to do his job as an FA. However, the law
is clear that “‘it is the responsibility of the individual with a
disability
to
inform
the
employer
that
an
accommodation
is
needed.’” Graves, 457 F.3d at 184-85 (quoting 29 C.F.R. pt. 1630,
app. at 363 (2003); citing Flemmings v. Howard Univ., 198 F.3d 857,
861 (D.C. Cir. 1999) (“An underlying assumption of any reasonable
accommodation claim is that the plaintiff-employee has requested an
accommodation . . . .”). Furthermore, while the record shows that
Plaintiff disclosed his depression to some of his managers between
1997 and 2009, there is no evidence to suggest that Adams, in
particular, knew or should have known of Plaintiff’s depression in
February 2009, in the context of Plaintiff’s specific need for a
team-setting accommodation in order for him to perform his job as
an FA.
Nonetheless, Plaintiff points to Dr. Bremer’s testimony that
“making it possible for Plaintiff to work as a part of a team may
have lessened the effect of Plaintiff’s disability on his ability
to function in the workplace[.]”
Dkt. No. 39, Ex. 4 at 60.
While
this may have been true, the law certainly “does not obligate [an]
employer to meet the personal preferences of disabled employees.”
Raffaele v. City of New York, 2004 WL 1969869, at *17 (E.D.N.Y.
Sept. 7, 2004).
Moreover, Plaintiff has ignored Dr. Bremer’s
testimony indicating that, given Plaintiff’s mental issues and his
“difficulty getting along with other people[,]” “he might have had
-15-
difficulty relating effectively” if he worked on a team.
Id.
Plaintiff also neglects to mention that, when asked during her
deposition if she “ever discuss[ed] with [Plaintiff] a request he
made to Merrill Lynch to work as a part of a team of brokers rather
than as an isolated individual[,]” Dr. Bremer replied, “I don’t
remember him bringing that up.”
Id. at 59.
As a final matter, the Court notes Plaintiff’s heavy focus on
Defendant’s purported “duty” to engage in an interactive process
with him concerning his disability-related needs.
11-14.
Because,
however, the
Court
finds
Dkt. No. 37 at
plaintiff
has
not
established a prima facie case of discrimination under the ADA, it
need not discuss the sufficiency of the interactive process.
See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d at 100-01
(2d Cir. 2009) (noting an insufficient interactive process, without
more, does not establish a prima facie case of discrimination under
the ADA).
IV.
Plaintiff has Failed to Establish a Prima Facie Case of
Disability Discrimination
There are four elements that a plaintiff must show to make out
a prima facie case of discrimination under the ADA: “(1) his
employer is subject to the ADA; (2) he was disabled within the
meaning of the ADA; (3) he was otherwise qualified to perform the
essential
functions
accommodation;
and
of
(4)
his
he
job,
with
suffered
-16-
or
adverse
without
reasonable
employment
action
because of his disability.”
Giordano v. City of New York, 274 F.3d
740, 747 (2d Cir. 2001) (quotation and citation omitted).
For purposes of this motion for summary judgment, Defendant
concedes that Plaintiff is subject to the ADA and HRL, is disabled
within the meaning of the ADA and the HRL, and that was qualified
to perform his job as an FA.
Defendant, however, asserts that
Plaintiff cannot establish that Merrill Lynch subjected him to any
adverse employment action because of his disability.
Dkt. No. 35
at 13.
To constitute an adverse employment action in violation of
the ADA, there must be a “materially adverse” change in working
conditions. Patrolmen’s Benevolent Ass’n of City of New York v.
City of New York, 310 F.3d 43, 51 (2d Cir. 2002), cert. denied, 538
U.S. 1032 (2003).
A materially adverse change “must be more
disruptive than a mere inconvenience or an alteration of job
responsibilities.”
Crady v. Liberty Nat’l Bank and Trust Co., 993
F.2d 132, 136 (7th Cir. 1993) (quoted in Galabya v. New York City
Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Examples of
materially
adverse
employment
actions
include
“termination
of
employment, a demotion evidenced by a decrease in wage or salary,
a
less
distinguished
significantly
title,
diminished
a
material
material
loss
of
responsibilities,
indices . . . unique to a particular situation.”
Id.
benefits,
or
other
“The key .
. . is that the plaintiff must show that the [employer’s action]
-17-
created a ‘materially significant disadvantage.’” Galabya, 202 F.2d
at 64 (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379,
382 (8th Cir. 1994)).
Plaintiff counters that he suffered the following adverse
employment actions: (1) Fullen, the Administrative Manager in
charge of Risk and Compliance, questioned Plaintiff about some of
his trades; (2) Adams failed to meet with Plaintiff in a one-on-one
setting for the first three months after Adams began working as
Plaintiff’s
manager
in
July
2008;
(3)
Adams
refused
to
help
Plaintiff form a team of FAs in 2009; (4) Plaintiff was assigned
troubled accounts in 2008 and 2009; (5) Merrill Lynch management
failed to inform Plaintiff at the same time as other FAs that his
assistant was out sick one day in January 2009, and who would
replace his assistant when she left Merrill Lynch in February 2009;
and (6) Plaintiff was constructively discharged.
With respect to the first five complained-of actions set forth
in the preceding paragraph, Plaintiff has not shown that any of
these incidents negatively affected his pay, benefits, or position
as an FA at Merrill Lynch. Therefore, they do not constitute
adverse actions.
Furthermore, the fact that he allegedly was
subjected to what he deems excessive scrutiny about some of his
accounts is not sufficient, in and of itself, to constitute an
adverse action. See Hill v. Rayboy-Brauestein, 467 F. Supp.2d 336,
355 (S.D.N.Y. 2006) (collecting cases). Additionally, the Court
-18-
notes
that
experienced
the
on
slights
the
part
or
inconsiderate
of
management
behavior
with
Plaintiff
respect
to
the
particular actions set forth at (2) and (5), do not, as a matter of
law,
constitute
adverse
employment
actions.
See
Kaplan
v.
Multimedia Entertainment, Inc., No. 03-CV-0805C(F), 2008 WL 686774,
at *5 (W.D.N.Y. Mar. 10, 2008) (petty slights, minor annoyances,
and lack of good manners are not actionable “adverse actions”)
(citing
Burlington N. & Sante Fe Ry. Co., 548 U.S. 53, 126 S. Ct.
2405, 2415 (2006)).
Plaintiff fares no better with his sixth allegation, namely,
that
he
suffered
an
adverse
employment
action
when
he
was
constructively discharged from Merrill Lynch. He maintains that
beginning in 1997, he endured a hostile work environment as a
result of his depression, and that he was eventually forced to
resign.
As discussed infra, however, Plaintiff is unable to
establish a successful constructive discharge claim, and thus
cannot rely upon same to establish that he was subjected to an
adverse employment action. See Delashmutt v. Wis-Pak Plastics,
Inc., 990 F. Supp. 689, 697 (N.D. Iowa 1998) (“[I]f [plaintiff]
cannot prove retaliation, because she cannot prove any adverse
employment action, then she necessarily cannot prove her employer
made her working environment so intolerable as to establish any
independent constructive discharge claim.”) (footnote omitted).
-19-
IV.
Hostile Work Environment and Constructive Discharge Claims
Plaintiff argues that he was subjected to a hostile work
environment, beginning in 1997 up through his resignation in 2009,
because of his depression.
He claims that “representatives of
defendant frequently urged him to quit his job”, and he eventually
did so because of this alleged harassment.
Dkt. No. 37 at 15-18.
Although the Second Circuit has not determined whether the ADA
gives rise to a cause of action for hostile work environment, see
Bonura v. Sears Roebuck & Co., 62 F. App’x 399, 400 n.3 (2d Cir.
2003), cert. denied, 540 U.S. 1113 (2004), district courts in this
Circuit have held that such claims are cognizable. See, e.g.,
Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y.
1997) (analyzing ADA hostile work environment claim under the same
standard as Title VII hostile work environment claim); Hudson v.
Loretex Corp., No. 95–CV–844 (RSP/RWS), 1997 WL 159282, at *2-3
(N.D.N.Y. Apr. 2, 1997) (same).
A plaintiff opposing summary judgment on a hostile work
environment claim must produce evidence from which a reasonable
trier of fact could conclude “(1) that the workplace was permeated
with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of [his] work environment, and
(2) that a specific basis exists for imputing the conduct that
created the hostile environment to the employer.”
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Mack v. Otis
Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (quoting Richardson
v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 436 (2d Cir.
1999)). “The sufficiency of a hostile work environment claim is
subject to both subjective and objective measurement: the plaintiff
must demonstrate that [he] personally considered the environment
hostile, and that the environment rose to some objective level of
hostility.”
Leibovitz v. New York City Transit Auth., 252 F.3d
179, 188 (2d Cir. 2001) (citations omitted). “Courts look at all
circumstances to ascertain whether an environment is sufficiently
hostile or abusive to support a claim.” Id. (citations omitted).
Factors
to
be
considered
include
“the
frequency
of
the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s performance.”
Id. (citation omitted).
The isolated incidents that fall within the relevant statute
of limitations period which constitute the allegedly hostile work
environment are as follows:
(1) Defendant assigned him four
troubled accounts; (2) Defendant refused to provide him information
related to an anonymous caller who suggested that Plaintiff was
leaving Merrill Lynch to work for a competitor; and (3) Defendant
prevented Plaintiff from taking his rolodex and from soliciting
Merrill Lynch clients after his resignation. Plainly, none of these
incidents approaches conduct that could be deemed “harassment”,
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much less anything that is so “extraordinarily severe” as to
“create an objectively hostile or abusive work environment—an
environment
that
a
reasonable
person
would
find
hostile
or
abusive.” Harris, 510 U.S. at 21. In particular, with regard to the
assignment of the four troubled accounts, Plaintiff had the option
to decline them, but he did not do so. Notably, the substance of
the anonymous phone call regarding Plaintiff’s plans to relocate to
a competing firm was true. Plaintiff’s assertion that Merrill Lynch
“harassed” him by preventing him from poaching their clients after
he made the decision to move to a competing firm is, frankly,
preposterous.
While
Plaintiff
alleges
that
these
incidents
negatively affected his mental well-being (Dkt. No. 37 at 18), a
reasonable person could not find the complained-of conduct to be
hostile or even offensive.
Plaintiff’s related constructive discharge claim also fails.
To establish a constructive discharge, an employee bears a heavy
burden and must show that his employer deliberately made his
working conditions so intolerable that he was forced to resign.
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73
(2d Cir. 2000). The Second Circuit has held that a “constructive
discharge” cannot be established simply through evidence that the
“employee was dissatisfied with the nature of his
assignments,”
“the employee feels that the quality of his work has been unfairly
criticized,” or “the employee’s working conditions were difficult
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or unpleasant.”
Stetson v. NYNEX Service Co., 995 F.2d 355, 360.
Therefore, “a claim of constructive discharge must be dismissed as
a matter of law unless the evidence is sufficient to permit a
rational trier of fact to infer that the employer deliberately
created working conditions that were ‘so difficult or unpleasant
that a reasonable person in the employee’s shoes would have felt
compelled to resign.’”
Id. at 361 (quotation omitted).
Plaintiff claims that “representatives of defendant frequently
urged him to quit his job.”
Dkt. No. 37 at 17.
Even assuming this
was true, he has not cited any relevant authority for his assertion
that such conduct “is sufficient in and of itself to establish
constructive discharge.”
Dkt. No. 37 at 17.
Moreover, Plaintiff
has identified only two time-frames (December 2007, and sometime in
2008) in which
“representatives of defendant” allegedly told him
to quit his job. Both of these time-frames are too remote from
Plaintiff’s resignation in July 2009, for any rational trier of
fact to conclude that his eventual resignation was motivated at all
by these alleged statements.
Plaintiff also asserts that he resigned on July 2, 2009 “at
the suggestion of [his psychiatrist] Dr. Bremer in light of his
deteriorating mental health.”
Dkt. No. 37 at 18.
However, there
is no other evidence in the record to corroborate this statement.
In fact, it is contradicted by Dr. Bremer’s deposition testimony
that she had only “vague memories of talking about the potential
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for looking for work elsewhere.” Moreover, Dr. Bremer could only
recall
one
occasion
on
which
the
issue
was
discussed
with
Plaintiff, who told her that he did not believe it was in his best
interest to resign.
Dkt. No. 39, Ex. 4 at 55-56. In any event, the
evidence that Plaintiff was actively engaged in negotiations with
a rival firm for nine months prior to his resignation, that he
waited until he had secured an offer that included a $100,000
signing bonus before accepting, and that he accepted the offer
before he tendered his resignation at Merrill Lynch completely
undercuts his claim that his employment at Merrill Lynch was so
“intolerable”
so
as
to
constitute
a
constructive
discharge.
See Wagner v. Sanders Assocs., Inc., 638 F.Supp 742, 746 (C.D. Cal.
June 25, 1986) (“The undisputed fact that [plaintiff] remained in
his new position for several months before resigning goes a long
way toward destroying his assertion that the transfer created an
intolerable situation. This Court must therefore conclude that on
facts which
are
constructively
not
in
discharged
genuine dispute,
and
cannot
[plaintiff]
state
any
was
claim
not
for
constructive discharge.”).
VI.
Retaliation Claim
To plead a claim for retaliation under the ADA, a plaintiff
must allege that: 1) the employee engaged in an activity protected
by the ADA; 2) the employer was aware of the activity; 3) an
employment action adverse to the plaintiff occurred; and 4) a
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causal connection existed between the protected activity and the
adverse action. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183
F.3d 155, 159 (2d Cir. 1999) (citations omitted). The Court assumes
for purposes of this motion that Plaintiff meets the first two
elements of the prima facie inquiry. However, he cannot meet the
remaining prongs by showing that he suffered an adverse employment
action causally connected to any protected activity.
Plaintiff’s retaliation claim is based upon the following
alleged adverse actions: (1) Defendant accused him of making
reference to “getting a gun” and assigned him troubled accounts
after he contacted Merrill Lynch’s Bank Division Diversity Manager
in December 2007; (2) Adams refused to help him form a team in
2009; and (3) Defendant sent him a letter on July 7, 2009,
following
his
resignation,
reminding
Merrill
Lynch
him
of
his
customer
duties
records
and
obligations
regarding
and
information.
“Actions are materially adverse if they are harmful
to the point that they could well dissuade a reasonable worker from
making or supporting a charge of discrimination [or retaliation].”
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal
quotation marks omitted). The second contention is plainly not
adverse. As discussed above, the onus was on the employee–not the
manager–to form a team of FAs at Merrill Lynch, if the employee
wanted to be part of an FA team. The fact that the reminder from
Merrill Lynch came after his resignation prevents it from being
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considered an adverse action that occurred during his employment at
Merrill Lynch. Moreover, it is not adverse. With regard to the
troubled accounts, as stated above, Plaintiff had the ability to
decline the assignment but did not.
Finally, with respect to the alleged accusation of having a
gun, Plaintiff completely mischaracterizes the Memo, which simply
reminded Plaintiff to be aware of the language he used in the
workplace. This cannot reasonably be deemed a reprimand or threat
of disciplinary action. Even if Plaintiff had been reprimanded for
stating he had a gun at work, this would not, standing alone, be
sufficient to conclude he suffered an adverse employment action.
Although reprimands and excessive scrutiny of an employee can
contribute to a finding that an adverse employment action has taken
place, see Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002),
“courts in this circuit have found that reprimands, threats of
disciplinary
action
and
excessive
scrutiny
do
not
constitute
adverse employment actions in the absence of other negative results
such as a decrease in pay or being placed on probation.” Uddin v.
City of N.Y., 427 F.Supp.2d 414, 429 (S.D.N.Y. 2006) (quotation
omitted); see also Weeks v. New York State, 273 F.3d 76, 86
(2d Cir. 2001) (“It hardly needs saying that a criticism of an
employee
(which
is
part
of
training
and
necessary
to
allow
employees to develop, improve and avoid discipline) is not an
adverse employment action.”), abrogated on other grounds, National
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R.R. Passenger Co. v. Morgan, 122 S. Ct. 2061, 2069-73 (2002).
Here,
it
is
undisputed
that
the
Memo
issued
in
regards
to
Plaintiff’s statement that he had a gun was not accompanied by any
demotion or decrease in pay. Therefore, it cannot as a matter of
law constitute an adverse employment action.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion for
Summary Judgment is granted. Plaintiff’s Complaint is dismissed in
its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 18, 2014
Rochester, New York
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