Opinion
06 Civ. 2037 (RMB).
February 12, 2007
Ray Pomroy represented by Avi Lew.
Conopco represented by Barry Lewis Asen, Barry A. Cozier, Ronald M. Green.
DECISION AND ORDER
I. Introduction
On or about February 3, 2006, Ray Pomroy ("Plaintiff") filed a complaint ("Complaint") in New York State Supreme Court, New York County, alleging that his (former) employer Conopco, Inc. a/k/a Unilever ("Conopco" or "Defendant") engaged in "unlawful age discrimination," and specifically that Plaintiff's "age was a determining factor" in Defendant's decision to require Plaintiff to relocate to Chicago or "be terminated from his employment," in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. CLS Exec. § 290 et seq. (Complaint at 4, 8.) Plaintiff also claims that after he "inform[ed] Conopco's managers that there were problems with unequal treatment of older employees," Defendant "retaliated against Plaintiff' by "depriving him of pension entitlements in various ways," "depriving him of accrued vacation time," "reneging on its commitment to obtain, at its expense, a `green card' for Plaintiff," "refusing to pay for his house closing," "reneging upon the promised customary farewell celebration or other considerations afforded to departing long-tenured employees," and "failing seasonably to provide subsequent versions of a proper severance agreement," in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq ("ADEA"). (Complaint at 7, 9.)
On or about March 15, 2006, Defendant removed the action to this Court. (See Notice of Removal, dated March 15, 2006.) On or about May 12, 2006, Defendant submitted an answer and counterclaims, alleging that "Plaintiff breached his agreement[s] with Defendant by not returning [a] $75,000 advance" for Plaintiff's relocation to Connecticut, and "by not paying Defendant the remaining $10,250 balance" on an interest-free car loan. (See Defendant's Answer and Counterclaims at 8.)
On or about October 16, 2006, Defendant moved for summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that (1) "Plaintiff's age discrimination claim . . . is not actionable under the New York State Human Rights Law" because Plaintiff "was employed and resided in Connecticut, . . . the challenged decision was made in Connecticut," and "the alleged discriminatory decision did not have any impact on [Plaintiff] in New York" (Defendant's Memorandum of Law in Support of its Motion for Summary Judgment ("Def. Mem."), at 10, 11, 15); (2) Plaintiff "cannot establish aprima facie retaliation case because he was not `subjected to an adverse employment action.' He received the benefits to which he was entitled under Defendant's policies and practices." (Def. Mem. at 18.) Conopco also argues that "Defendant has articulated a legitimate, non-retaliatory reason for each of its challenged five decisions," which were (a) that the calculation of Plaintiff's pension "was a neutral decision that adhered to Company policy"; (b) "[c]onsistent with its written vacation policy, Defendant paid Plaintiff $12,144.25 in accrued vacation pay"; (c) "Defendant could not sponsor Plaintiff for a green card as a matter of law"; (d) Defendant's "relocation policy did not require Defendant to pay [Plaintiff's] home closing costs"; and (e) "Defendant was not required to pay for Plaintiff's trip to Brazil," particularly where "travel expenses were being reduced [and] the Brazil trip would have cost more than $5000." (Def. Mem. at 21-22.) And, Defendant argues that (3) it "is entitled to summary judgment on its breach of contract counterclaims because Plaintiff has conceded that he breached two agreements with Defendant." (Def. Mem at 10, 17, 24.)
On or about November 16, 2006, Plaintiff filed an opposition, stating (1) "Plaintiff has withdrawn his New York State Human Rights Law [age discrimination] claim without prejudice to renew it in the event that evidence becomes available to him"; (2) "Plaintiff has presented evidence sufficient to create a genuine triable issue" regarding "the retaliation to which Plaintiff was subjected," and that in addition to the five allegedly retaliatory actions cited by Defendant (See (a) through (e), above), "Defendant retaliated against Plaintiff by [(f)] withholding the promised revised draft of the severance agreement — thereby inducing Plaintiff to miss the 300 day deadline to file his [age discrimination] claim" with the U.S. Equal Opportunity Employment Commission ("EEOC"). (See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Opposition"), at 1, 7-8, 12.) Plaintiff also argues (3) "Defendant is not entitled to summary judgment on its breach of contract counterclaims" because the "$75,000 was a Cost of Living Adjustment (COLA) to which [Plaintiff] was entitled," and the amount due on Plaintiff's car loan "is more than offset by the amounts that Defendant owes Plaintiff." (Opposition at 18.)
In a letter to the Court, dated November 21, 2006, Plaintiff states that he "reluctantly . . . withdraws, with prejudice, the NYSHRL claim," adding, "Defendant's counsel insists that we do so or he will proceed with the motion for sanctions pursuant to Rule 11" of the Federal Rules of Civil Procedure. (Plaintiff's letter to the Court, dated Nov. 21, 2006, at 1-2 (emphasis added).)
On or about November 29, 2006, Defendant filed a reply. (See Defendant's Reply Memorandum of Law in Support of Its Motion for Summary Judgment ("Reply").)
In a letter to the Court dated February 6, 2007, Plaintiff submitted two documents "recently prepared and based on newly discovered evidence," in support of a purported new claim that, after Plaintiff retired, Defendant "delay[ed] the pension payments that were due to [Plaintiff] by a period of several months." (Plaintiff's letter, dated February 6, 2007, at 1.) By letter dated February 9, 2007, Defendant opposed the submission, arguing that "Defendant would be prejudiced if Plaintiff's submission is considered" because "Plaintiff did not provide this information to Defendant during discovery, which closed on or about October 5, 2006, or even in his opposition to Defendant's summary judgment motion," and "Plaintiff has not provided an adequate reason as to why he could not make this information . . . available before discovery ended." (Defendant's letter, dated February 9, 2007, at 1.) Because Plaintiff's new claim is untimely and because Plaintiff's opposition papers failed to support this claim in any way, the Court is not considering the claim. See United States v. Barnes, 158 F.3d 662, 672 (2d Cir. 1998) ("[n]ormally, we will not consider arguments raised for the first time in a reply brief, let alone at or after oral argument").
The parties waived oral argument.
For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part.
II. Background
In early December of 2003, Plaintiff's supervisor, Gregory Polcer ("Polcer"), informed Plaintiff that "[a]s part of an HPCNA reorganization . . . [Plaintiff's] Skin Care Team duties in Greenwich were being reassigned . . . he was being transferred from Greenwich to Chicago, and would continue to head the Chicago-based Hair Care and Deodorant Supply Chain Teams." (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11.) Plaintiff claims "that he asked Polcer to permit him to commute from Connecticut to Chicago because certain younger HPCNA employees commuted to long-distance locations, but Polcer would not agree." (Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Stmt. ¶ 13.) Polcer told Plaintiff that he "would have to leave HPCNA if he refused to relocate to Chicago." (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11.)
Plaintiff declined to commute to Chicago. (Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Stmt. ¶ 13.) Instead, he sought information about his retirement options. (Def. 56.1 Stmt. ¶ 14; Pl. 56.1 Stmt. ¶ 14.) On December 7, 2003, Plaintiff sent a letter entitled "Retirement Package" to Michael Clementi, Director of Human Resources for HPCNA in Greenwich ("Clementi"), and Diane Shriver, Unilever Canada's Director of Human Resources in Toronto, Canada ("Shriver"), which stated, "I should note the decision to leave [Conopco] was prompted by the Business's decision not to afford me the same opportunity as other younger level 4 employees to work but commute from a distant location. This left me no option but to opt for retirement." (Def. 56.1 Stmt. ¶¶ 14, 15; Plaintiff's letter to Clementi and Shriver, dated December 7, 2003 ("December 7, 2003 Letter"), attached as Exhibit "L" to the Declaration of Martin R. Lee in Opposition to Defendant's Motion, dated November 15, 2006 ("Lee Declaration"), Bates Stamp RP 1131.) The December 7, 2003 Letter also listed items that Plaintiff wished to be included in his retirement package. (See December 7, 2003 Letter, Bates Stamp RP 1131.)
A few days after sending the December 7, 2003 Letter, Plaintiff met with Shriver and Clementi to discuss his retirement package. (See Plaintiff's email to Nigel Hurst, dated March 17, 2004, attached as Exhibit "L" to the Lee Declaration ("March 17, 2004 Email"), Bates Stamp RP 1173.) During this meeting, Plaintiff was informed that "incorrect earnings data had been used in prior calculations" of his pension, and the revised estimates for his pension were lower than those Plaintiff had previously received. (See Email from Shriver to Plaintiff, dated March 25, 2004, attached as Exhibit "L" to the Lee Declaration, Bates Stamp RP 1177.) Also, Shriver showed Plaintiff two pension estimates, one "for September 24, 2004 at age 56.5918," and the other being "the ESTIMATED pension at December 31, 2005. 2 more years of service, age 57.863" (emphasis in original). (Email from Simon Chan, Pension and Benefits Administrator, to Michael Clementi, dated December 12, 2003, attached as Exhibit "M" to the Lee Declaration, Bates Stamp D 2675.) Plaintiff claims he was "led to believe" by these pension estimates that Defendant would "bridge" Plaintiff's pension by two years, i.e. that Defendant would credit Plaintiff for two years of employment more than he actually had worked for the purposes of calculating his pension. (Pl. 56.1 Stmt. ¶ 36.)
On December 13, 2003, Plaintiff sent a resignation letter to Polcer and to Nigel Hurst, Senior Vice President, Human Resources for HPCNA ("Hurst"), stating "I have decided to move on to a different phase of my life and leave the business." (Plaintiff's letter to Hurst and Polcer, dated December 13, 2003 ("December 13, 2003 Letter"), attached as Exhibit "A" to the Declaration of Gregory F. Polcer, dated October 12, 2006.) The December 13, 2003 Letter also stated, "I have heard the pension and conditions of retirement presented by Diane and Mike on Friday. . . . I am disappointed that items, which were confirmed as being granted, were withdrawn. . . . I have asked for some clarification on pension options." (December 13, 2003 Letter.)
Thereafter, Plaintiff sent a series of emails to Shriver, Clementi, Hurst, and Michelle Partridge, Manager of Pensions and Benefits for Unilever Canada ("Partridge"), expressing frustration with "the process of finding out what my retirement pension will be," and asking "how the figures in the [pension] calculation were derived." (See, e.g., Plaintiff's email to Hurst, dated February 3, 2004, attached as Exhibit "L" to the Lee Declaration, Bates Stamp 1139.) On March 15, 2004, Shriver emailed Plaintiff, stating, among other things, that his pension "will not be bridged." (Email from Shriver to Plaintiff, dated March 15, 2004, attached as Exhibit "L" to the Lee Declaration ("March 15, 2004 Email"), Bates Stamp RP 1167.)
On March 30, 2004, Partridge sent Plaintiff a spreadsheet showing the calculation of his pension which was estimated at $159,000 per year. (See Email from Partridge to Plaintiff, dated March 30, 2004, attached at Exhibit "L" to the Lee Declaration, Bates Stamp RP 1194.) Plaintiff claims that on March 31, 2004, he spoke with Partridge regarding this spreadsheet, and that she told him "as they were finalizing my pension figures someone (I guess Diane) thought they were too high and changed them." (Email from Plaintiff to Martin Lee, dated March 31, 2004, attached as Exhibit "L" to the Lee Declaration ("March 31, 2004 Email"), Bates Stamp RP 1200.) Plaintiff also alleges that after he told Partridge that certain figures used to calculate his pension were incorrect, she altered the pension calculation which increased Plaintiff's pension "by almost $4000 per annum." (Plaintiff's Declaration in Opposition to Defendant's Motion for Summary Judgment ("Pl. Decl."), ¶ 43.) Plaintiff's final pension amount was $163,689.12 per year. (Letter from Partridge to Plaintiff, dated May 3, 2004, attached as Exhibit "D" to the Declaration of Michele Partridge, dated October 12, 2006 ("May 3, 2004 Letter").)
On March 31, 2004, Plaintiff formally retired from Conopco. (Pl. 56.1 Stmt. at 10.)
In April of 2004, Plaintiff relocated to Canada. (Pl. 56.1 Stmt. at 11.)
On or about January 20, 2005, Plaintiff filed charges with the EEOC and the New York State Division of Human Rights. (Complaint at 1.) In a letter dated December 5, 2005, the EEOC issued to Plaintiff a Notice of Right to Sue. (See Notice of Right to Sue, dated December 5, 2005, attached as Exhibit "2" to Complaint.)
Plaintiff included an age discrimination charge pursuant to New York State Human Rights Law in the Complaint (see Complaint ¶ 50), but did not include a Title VII or ADEA age discrimination charge, presumably because they would have been untimely. See Ruhling v. Tribune Co., No. 04 Civ. 2430, 2007 U.S. Dist. LEXIS 116, at *24 (E.D.N.Y. Jan. 3, 2007) ("[u]nder Title VII and the ADEA, a plaintiff must file an administrative charge with the Equal Employment Opportunity Commission (`EEOC') within 300 days after a claim accrues").
III. Legal Standard
"Summary judgment is appropriate only where the parties' submissions show 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." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). "Of course, in ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant." Id. "[A]n extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (internal citations omitted). However, "summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Id.
Further, "even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[T]he test for summary judgment is [ultimately] whether the evidence can reasonably support a verdict in plaintiff's favor." James v. New York Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).
"Plaintiff's employment discrimination claims are subject to the burden-shifting analysis outlined in McDonnell-Douglas v. Green, 411 U.S. 792, 807 (1973)." Sgarlata v. Viacom, Inc., Nos. 02 Civ. 7234 03 Civ. 5228, 2005 U.S. Dist. LEXIS 4435, at *10 (S.D.N.Y. Mar. 22, 2005). "[T]he employee bears the initial burden of producing evidence sufficient to support a prima facie case of discrimination [or retaliation]." Id. The burden then "shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse employment action." Farias v. Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001). "[O]nce an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Jute v. Hamilton Sundstrandt Corp., 420 F.2d 166, 173 (2d Cir. 2005).
IV. Analysis
1. Plaintiff's Age Discrimination Claim
Pursuant to Plaintiff's November 21, 2006 letter to the Court withdrawing "with prejudice [his] NYSHRL claim," Plaintiff's age discrimination claim is dismissed. See Federal Rule of Civil Procedure 41(a)(2); Eastman Mach. Co. v. Diamond Needle Corp., No. 99 Civ. 450E(F), 2000 U.S. Dist. LEXIS 18766, at *3-4 (W.D.N.Y. Dec. 18, 2000).
2. Plaintiff's Retaliation Claim
Plaintiff argues that he "has presented evidence sufficient to create a genuine triable issue" as to all six (allegedly retaliatory) actions taken by Defendant: (a) miscalculation of Plaintiff's pension; (b) underpayment for Plaintiff's accrued vacation days; (c) refusal to sponsor Plaintiff for a green card; (d) refusal to pay Plaintiff's home closing costs; (e) refusal to pay expenses for Plaintiff's 2004 trip to Brazil; and (f) actions allegedly taken "to induce Plaintiff to refrain from timely filing his EEOC claim." (Opposition at 7-8.) Defendant argues that Plaintiff "cannot establish a prima facie retaliation case or show that Defendant's reasons for these decisions are pretexts for retaliation." (Def. Mem. at 2.)
In order to establish a prima facie case of retaliation, a plaintiff must show "[1] that he engaged in protected participation or opposition under Title VII or the ADEA, [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action." Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).
Title VII states that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title." 42 U.S.C. § 2000e-3(a); see also 29 U.S.C. § 623(d). "[O]pposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection, . . . [it] includes activities such as making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (internal citations omitted).
Plaintiff has established a prima facie case of retaliation. His complaint to Polcer that, while he was not being allowed to commute from Connecticut to Chicago, "certain younger HPCNA employees commuted to long-distance locations," and his December 7, 2003 Letter which stated that Plaintiff's "decision to leave [Conopco] was prompted by the Business's decision not to afford me the same opportunity as other younger level 4 employees," may be considered "protected participation or opposition" under Title VII. (Def. 56.1 Stmt. ¶¶ 13, 15; Pl. 56.1 Stmt. ¶¶ 13, 15); see Kessler, 461 F.3d at 205. And, communication of Plaintiff's statements to Polcer, Shriver, and Clementi, all senior-level employees of Defendant, is sufficient to show that Defendant knew of Plaintiff's protected activity. See Ghirardelli v. McAvey Sales Serv., 287 F. Supp. 2d 379, 388 (S.D.N.Y. 2003) (because "a senior official at the company" knew of Plaintiff's discrimination complaint, "a reasonable jury could find there was sufficient evidence to support the conclusion that [Defendant] had been put on notice"). Defendant's alleged retaliatory actions, including miscalculation of Plaintiff's pension, underpayment for Plaintiff's accrued vacation days, and refusal to pay Plaintiff's home closing costs, qualify as adverse employment actions. See Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d at 209 ("[w]hether [an action] is materially adverse . . . should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances . . . the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination"). Finally, the relatively brief period of time between Plaintiff's (initial) allegations of age discrimination on December 5 and December 7, 2003 and the adverse employment actions, which Plaintiff first learned about from Shriver and Clementi on December 12, 2003, establishes a causal connection. See Rivera v. Potter, No. 03 Civ. 1991, 2005 U.S. Dist. LEXIS 1416, at *20 (S.D.N.Y. Jan. 31, 2005) ("[o]ne of the primary means of establishing an inference of retaliatory motive for an adverse employment decision is to show temporal proximity").
Plaintiff's complaints to the EEOC and New York State Division of Human Rights on January 20, 2005 were filed after the alleged retaliatory actions occurred.
(a) Calculation of Plaintiff's Pension
Plaintiff argues that at the December 12, 2003 meeting with Shriver and Clementi, "I was shown a sheet that . . . indicated a pension after adding two more years of service," but in the March 15, 2004 Email Shriver "retaliatorily withdrew the bridging." (Pl. Decl. ¶¶ 29, 37.) Plaintiff also argues that Defendant incorrectly capped Plaintiff's "notional salary," i.e., the salary figure used to calculate Plaintiff's pension, and then "ignore[d] plaintiff's contention that his pension was being miscalculated." (Pl. Decl. ¶¶ 25, 30; Opposition at 11.)
Defendant counters with some evidence that its calculation of Plaintiff's pension was "a neutral [non-discriminatory] decision that adhered to Company policy" (Def. Mem. at 18) because "the Unilever Canada pension system does not permit bridging" and because Plaintiff was "treated consistently with other retirees whose notional salaries were capped." (Declaration of Diane Shriver Bailey, dated October 12, 2006, ¶¶ 3-4.) This satisfies Defendant's burden of articulating a legitimate, non-discriminatory reason for its actions. See Farias v. Instructional Sys., 259 F.3d at 98.
Plaintiff's rebuttal is principally a document he received at the December 12, 2003 meeting which was prepared by Simon Chan, a Pension and Benefits Administrator for Unilever Canada, and which contained pension estimates. (See Email from Simon Chan to Michael Clementi, dated December 12, 2003, attached as Exhibit "M" to the Lee Declaration ("Chan Document"), Bates Stamp D 2675.) The Chan Document estimates Plaintiff's pension for "December 31, 2005. 2 more years of service, age 57.863." (Chan Document, Bates Stamp D 2675.) Plaintiff claims he was "led to believe" that Defendant would bridge his pension. (Pl. 56.1 Stmt. ¶ 36.) Plaintiff also submitted an email, dated March 31, 2004, from Plaintiff to his (own) attorneys, recounting an alleged conversation with Partridge during which Partridge allegedly informed him that "someone" thought his pension figures were too high "and changed them." (See March 31, 2004 Email, Bates Stamp RP 1200.) Partridge confirmed in her deposition that "[t]he numbers we used to calculate [Plaintiff's] pension were incorrect [on] December 2, 2003," which "resulted in him receiving an estimate of a potential wrong pension number" and, when asked if Plaintiff "was correct that his pension calculation should have been higher than it was," she answered "yes." (September 15, 2006 Deposition of Michele Partridge, at 100:3-6, 10-11; 102:19-22.)
Simon Chan stated in a sworn declaration that "my notation concerning 12/31/05 was simply an estimated projection of what [Plaintiff's] annual pension would be if he retired on that date. . . . I did not engage in any analysis of any sort of `bridged' pension." (Declaration of Simon Chan, dated October 13, 2006, ¶ 3.)
The Court finds there is an issue of fact for a jury to decide as to whether there was a proposal to pay Plaintiff for two years more than he actually worked which was abandoned in retaliation for Plaintiff's complaints of age discrimination, and whether Defendant's miscalculation of Plaintiff's pension was an act of retaliation for complaining of age discrimination. See Petrosino v. Bell Atlantic, 385 F.3d 210, 225-26 (2d Cir. 2004) ("[Defendant's] argument is not without appeal, but on review of a motion for summary judgment, we cannot ourselves resolve the parties' factual disagreement. . . . [W]e must assume that a factfinder will credit [Plaintiff's] version of events"); see also Belfi v. Prendergast, 191 F.3d at 135; Parrish v. Sollecito, 253 F. Supp. 2d 713, 716 (S.D.N.Y. 2003).
(b) Payment for Plaintiff's Accrued Vacation Days
Plaintiff claims that in retaliation for his complaints of age discrimination, "Plaintiff was not given all of his ten days accrued vacation pay from 2003," valued at approximately $1,000 per day. (Opposition at 16; Def. 56.1 Stmt. ¶ 26.) Plaintiff argues that he "was promised ten days carryover vacation pay and that this was memorialized in a letter from the Company to Plaintiff." (Opposition at 17; see Memo from Clementi to Plaintiff, dated April 12, 2004, attached as Exhibit "M" to the Lee Declaration ("April 12, 2004 Memo"), Bates Stamp D 310.) Defendant counters with a legitimate, non-discriminatory reason, i.e. that "[u]nder Unilever's vacation policy, employees are entitled to carry over only five vacation days from a prior year" and that Defendant "paid Plaintiff all of his accrued vacation pay." (Def. Mem. at 7; see Unilever Vacation Policy ("Vacation Policy"), attached as Exhibit "B" to the Declaration of Michael Clementi, dated October 12, 2006 ("Clementi Declaration"), at IV(F)); see Farias v. Instructional Sys., 259 F.3d at 98.
The April 12, 2004 Memo stated that Defendant would pay "for outstanding accrued and carryover vacation of 10 days," if Plaintiff were to sign the revised "Agreement and General Release" ("Agreement") drafted on or about May 1, 2004 by Defendant. (See April 12, 2004 Memo, Bates Stamp D 310; Agreement and General Release, dated May 1, 2004, attached as Exhibit "J" to the Lee Declaration.) According to the April 12, 2004 Memo, the payment for ten vacation days was a "one-time agreement . . . in addition to the normal standard and enhanced [retirement] packages," agreed upon at a March 26, 2004 meeting between Plaintiff, Hurst, and Shriver. (April 12, 2004 Memo, Bates Stamp D 310.) Defendant did not pay Plaintiff for all 10 carryover days, but instead "paid Plaintiff . . . $12,144.25, which consisted of 7 1/2 accrued vacation days in 2004 and five carryover days from 2003." (Def. 56.1 Stmt. ¶ 53; see Pl. 56.1 Stmt. ¶ 53.) This amount was consistent with Defendant's policy regarding compensation of employees' vacation days. (See Vacation Policy at IV(F)); see also Cronin v. ITT Corp., 737 F. Supp. 224, 231 (S.D.N.Y. 1990) (granting Defendant summary judgment on Plaintiff's retaliation claim where Plaintiff "did not receive [a] special award simply because he did not sign the Separation Agreement").
Plaintiff does not provide any support for his conclusory argument that Defendant's refusal to compensate Plaintiff for an additional five vacation days violated Defendant's policy and/or was "further evidence of the retaliation directed toward Plaintiff." (Opposition at 17); see Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) ("[t]he party opposing summary judgment may not rely simply on conclusory statements").
(c) Refusal to Sponsor Plaintiff for a Green Card
Plaintiff claims that Defendant "reneg[ed] on its commitment to obtain, at its expense, a `green card' for Plaintiff." (Complaint ¶ 43.) Plaintiff argues that he wished to obtain Permanent Employment Certification because "as a British subject I [otherwise] could not have done any consulting" in the United States. (See August 22, 2006 Deposition of Raymond Pomroy ("Pl. Dep."), at 598:22-24.)
Defendant provides a legitimate, non-discriminatory reason for refusing to sponsor Plaintiff for a green card after his retirement (see Farias v. Instructional Sys., 259 F.3d at 98), namely that U.S. law allows such sponsorship only for full-time employees and "prohibits an employer from sponsoring a consultant." (Def. Mem. at 8); see 20 C.F.R. § 656.3 (2007).
Plaintiff presents no evidence to rebut Defendant's argument.See Jute v. Hamilton Sundstrandt Corp., 420 F.3d at 173.
(d) Refusal to Pay Plaintiff's Home Closing Costs
Plaintiff claims that he "was not reimbursed for his home closing costs as he was promised by the Defendant" in retaliation for his complaints about age discrimination. (Opposition at 17.) Defendant articulates a legitimate, non-discriminatory reason in response, namely that it "opted not to pay Plaintiff's home closing costs because [Plaintiff] declined to sign the Agreement and General Release." (Def. 56.1 Stmt. ¶ 61); see Farias v. Instructional Sys., 259 F.3d at 98.
The April 12, 2004 Memo stated that Defendant would "assist in the relocation from Connecticut to Canada during 2004" if Plaintiff were to sign the Agreement. (April 12, 2004 Memo, Bates Stamp D 310.) Compensation for Plaintiff's relocation costs was agreed to by Hurst and Shriver at a March 26, 2004 meeting with Plaintiff, "in addition to the normal standard and enhanced [retirement] packages." (April 12, 2004 Memo, Bates Stamp D 310.) Defendant's refusal to pay Plaintiff's home closing costs because Plaintiff was unwilling to sign the Agreement does not establish retaliation. See Cronin v. ITT Corp., 737 F. Supp. at 231. Plaintiff does not provide any support for his argument that Defendant acted in retaliation. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d at 18.
It is undisputed that Plaintiff received $167,286 from Defendant for relocation costs, despite not signing the Agreement. (See Def. Mem. at 22.)
(e) Refusal to Pay Expenses for Plaintiff's 2004 Trip to Brazil
Plaintiff claims that "the Chairman of the Global Skin Supply Chain invited [P]laintiff to attend a meeting and sought the opportunity to provide [P]laintiff with a `proper farewell'" but Defendant "did not allow this." (Pl. 56.1 Stmt. ¶ 42.)
Defendant articulates a legitimate, non-discriminatory reason for refusing to fund Plaintiff's trip to Brazil, namely that "HPCNA had been reducing its travel expenses to save money [and] paying for him to travel to Brazil just to say goodbye was extremely expensive." (Def. Mem. at 8); see Farias v. Instructional Sys., 259 F.3d at 98.
Plaintiff fails to rebut Defendant's proffered reason. See Jute v. Hamilton Sundstrandt Corp., 420 F.3d at 173. In fact, Plaintiff acknowledges in his deposition that he had been informed by Polcer in "early 2003" that "the company put an embargo on travel and travel expenses and asked us to cut back significantly on our travel." (Pl. Dep. at 122:18-21.)
(f) Actions Taken Allegedly To Delay Plaintiff's EEOC Claim
Plaintiff argues that Defendant retaliated by "delaying the transmission of the promised revised draft severance agreement [which] induced Plaintiff to refrain from filing an EEOC [discrimination] charge until after the deadline had expired." (Opposition at 16.)
"Under Title VII and the ADEA, a plaintiff must file an administrative charge with the Equal Employment Opportunity Commission (`EEOC') within 300 days after a claim accrues."Ruhling v. Tribune Co., 2007 U.S. Dist. LEXIS 116, at *24. "[D]iscrete discriminatory acts are not actionable if time-barred even when they are related to acts alleged in timely filed charges." AMTRAK v. Morgan, 536 U.S. 101, 113-14 (2002). Defendant's alleged discriminatory act occurred on December 5, 2003, when Plaintiff was advised that he would be required to relocate to Chicago or retire, even though younger employees were allegedly allowed to commute. (See Complaint ¶¶ 49, 52; Pl. Decl. ¶ 7.) The 300-day period ended October 1, 2004, three months and twenty days before Plaintiff filed his EEOC claim on January 20, 2005. (See Complaint at 1.)
Defendant articulates a legitimate, non-discriminatory reason for the delay in Plaintiff's receipt of the revised draft of the Agreement, namely that "[o]n or about May 11, 2004, the [Agreement] was sent to [Plaintiff's] home in Connecticut, but he had already relocated to Canada," and "[f]rom May through October 2004, Plaintiff's counsel wrote one letter to Defendant's in-house counsel inquiring about the proposal's status, and did nothing else." (Reply at 5); see Farias v. Instructional Sys., 259 F.3d at 98. Defendant also argues that "[a] reasonable employee . . . would have filed an EEOC charge long before receiving the third proposal." (Reply at 6.)
Plaintiff's claim that Defendant mailed the Agreement "to an address which the [D]efendant knew to be incorrect" is speculative. (Opposition at 15); see McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006) ("speculation alone is insufficient to defeat a motion for summary judgment"). Also, Plaintiff provides no support for the proposition that he was prevented from filing an EEOC claim on time. Plaintiff's conclusory and speculative argument that Defendant withheld the Agreement "until, in their perception, [Plaintiff] had lost his right to proceed before the EEOC" (Opposition at 15), is insufficient. See Schwapp v. Town of Avon, 118 F.3d at 110 ("a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment").
3. Defendant's Counter-Claims
Defendant claims that, in September of 2001, Plaintiff received "$75,000 for relocation costs when he transferred from Canada to Stamford, Connecticut, and that he did not repay Defendant despite the agreement's provision that he would be required to do so if he left Defendant's employment for any reason within three years." (Def. Mem. at 24; see Agreement dated Sept. 6, 2001, attached as Exhibit "C" to the Clementi Declaration ("Relocation Agreement") ("[i]f Mr. Pomroy for any reason leaves the employment of the Company within three years of the date of the Payment, Mr. Pomroy agrees to immediately repay the Company").) Defendant also claims that Plaintiff "received a $15,000 car loan from Defendant, and the agreement provided that the unpaid balance [$10,250] would be due immediately if he left Defendant's employment for any reason." (Def. Mem. at 24; see Loan Agreement, dated Oct. 24, 2002, attached as Exhibit "D" to the Clementi Declaration ("Loan Agreement") ("[t]he unpaid balance due under this Loan will be due in full upon the termination of my employment").)
Plaintiff argues (without support) that he "has not paid defendant th[e] $75,000 because in actuality this $75,000 was a Cost of Living Adjustment (COLA) to which he was entitled," and that Plaintiff has not repaid the $10,250 balance on the car loan "because that amount is more than offset by the amounts that defendant owes plaintiff." (Opposition at 18.)
"[A]n action for breach of contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages." First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998). Plaintiff acknowledges that he entered into the Relocation Agreement, and that he has not repaid the $75,000 he received pursuant to that Agreement. (Opposition at 18.) Plaintiff fails to cite to "any evidence in the record from any source from which a reasonable inference could be drawn in favor of" his argument that the $75,000 was a Cost of Living Adjustment that was not repayable upon the termination of his employment. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Plaintiff also acknowledges that he received $15,000 pursuant to the Loan Agreement, dated October 24, 2002, and he has not repaid $10,250, but he argues that this debt is "more than offset by the amounts that defendant owes plaintiff." (Opposition at 18.) "Offset claims do not bar summary judgment on . . . payment obligations unless such obligations and the offset claims involve contractually `dependent' promises."Toussaint v. James, No. 01 Civ. 10048, 2003 U.S. Dist. LEXIS 12940, at *23 (S.D.N.Y. July 25, 2003); see also Greenblatt v. Prescription Plan Servs. Corp., 783 F. Supp. 814, 823 (S.D.N.Y. 1992) ("where a counterclaim presents an independent, unliquidated claim and presents no issue of fact as to the plaintiff's claim, the entry of summary judgment . . . is not only proper but is required").
Accordingly, Defendant is entitled to summary judgment with respect to both of its breach of contract claims.
V. Conclusion and Order
For the reasons set forth above, (1) Plaintiff's claim of age discrimination under the New York State Human Rights Law is dismissed with prejudice, (2) Defendant's motion for summary judgment is granted as to Plaintiff's retaliation claim, except with respect to the issue of Plaintiff's pension calculation, and (3) Defendant's motion for summary judgment is granted as to Defendant's counterclaims.
The parties and counsel are directed to appear at a scheduling/settlement conference with the Court on Wednesday, February 21, 2007, at 9:30 a.m. in Courtroom 14A of the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, NY, 10007. The Court directs the parties to engage in good faith settlement negotiations prior to the conference.