Opinion
99-CV-0168.
December 28, 2000
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On February 5. 1999, plaintiff John Rizzo ("Rizzo") commenced the instant action against defendant Amerada Hess Corp. (Hess or "the company") pursuant to the Age Discrimination in Employment Act ("ADEA), 29 U.S.C. § 626, et seq., and Article 15 of the New York Human Rights Law "NYHRL"). Hess now moves for summary judgment on all claims against it, pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes. Oral argument was heard on October 13, 2000, in Utica, New York. Decision was reserved.
II. FACTS
This action arises out of the alleged employment discrimination by Hess against Rizzo on the basis of plaintiffs age. At the time of the alleged discrimination, plaintiff was approximately 52 years old. The following are the facts as stated in the light most favorable to plaintiff as the non-moving party.
Rizzo became the manager of a small gas station in Johnstown, New York, in 1973. At that time, the station was owned by, and he was employed by, a company called Conaco. Hess became the owner of this station in 1983. Rizzo was retained by Hess to manage this station, which was classified as an "A" facility. Plaintiff continued to manage this facility until 1998, when the station was closed for remodeling and expansion to a "D" facility.
It is undisputed that Hess categorizes its facilities from "A" to "D" based on the degree of difficulty of operating and managing the facility. The relative degree of difficulty is based on the size of the facility, the number of products sold end services offered, and projected sales volume. The least difficult facility to operate, an "A" facility, is a gas station with a small building for the cash register end a limited number of items, such as cigarettes, candy, and oil. A "B" facility contains a coffee/specialty snack shop located in a small building similar to that of the "A" facility. A "C" facility contains a small convenience store. The most difficult facility to operate, a "D" facility, incorporates a large, full-service convenience store, multiple quick service restaurants (QSRs). end a gas nation designed to handle high volume sales.
Prior to the station's closing, Hess informed Rizzo that he would not be the manager of the new "D" facility. The company gave two reasons for this decision. First, it claims that Rizzo did not meet the company's progressive promotion policy requirements for a manager of a "D" facility. Under this policy, a manager needed to either have managed a "B" or "C" facility, or have prior convenience store and food service experience before being promoted to manage a "D" facility. Second, Hess claims that it had a policy of only promoting managers who exceeded its performance criteria. According to the company, plaintiff lacked the requisite experience for promotion, and he was only marginally meeting Hess's performance criteria for a manager of an "A" facility.
While Hess did not produce any written evidence of these policies, plaintiff's counsel admitted their existence both in Plaintiff's Response to Defendant's Statement pursuant to Local Rule 7.1(A)3) and at oral argument on this motion.
In support of this motion, Hess produced Rizzo's 1995, 1996, and 1998 performance evaluations, which were signed by him. These evaluations identified deficiencies in several management areas. Rizzo flatly denied the accuracy of these evaluations, and noted that he had never been disciplined by Hess for poor job performance, and that he received numerous awards and bonuses for both his and the station's performance.See Rizzo Affidavit at ¶ 6.
Defendant gave the position of manager of the new "D" facility to a younger Hess employee, Julie Kirk ("Kirk"). Unlike Rizzo, she had substantial relevant experience and qualifications, including (1) thirteen years of combined convenience store/food service/gas station management with a prior employer. (2) regional management of five convenience stores; (3) transitional management for poorly performing convenience stores; and (4) extensive retail management and training on topics such as alcohol management, time management, personnel management, budgeting and planning, and food training.
Rizzo nevertheless asserts that Hess's stated reasons are pretextual, and that the true reason he was not promoted to manager of the "D" facility was age discrimination. As proof of such pretext, he produced evidence of contemporaneous statements by his supervisor, Alan Kortokrax ("Kortokrax"), demonstrating discriminatory intent and animus. He produced affidavits from current and former Hess employees stating that Kortokrax told these employees that Rizzo was not promoted to manager of the new "D" facility because "[plaintiff] cannot cut it, he is too old" to manage the new, larger station. See Cady Affidavit at ¶ 5; Brodeur Affidavit at ¶ 3.
In addition, Rizzo claims that he had a lunch meeting with Kortokrax, during which Kortokrax repeatedly attempted to convince him that he was too old to manage the "D" facility. Plaintiff claims that at a subsequent meeting with Kortokrax' boss, Morrison Brooks ("Brooks"), Kortokrax denied attempting to convince plaintiff that he was too old, and falsely claimed that age only came up during the lunch meeting because it was plaintiff's birthday. According to plaintiff, Kortokrax lied to Brooks about his comments in order to "save face" with Brooks. See Rizzo Affidavit at ¶ 8.
Hess denies that plaintiff's age was a factor in its decision to replace him, and asserts that the undisputed evidence demonstrates that it did not promote plaintiff because he was not qualified under its progressive promotion policy to manage a "D" facility. Further, the company claims that Rizzo's employment record demonstrates that he was a marginally competent employee. Defendant also alleges that, notwithstanding the alleged animus of Kortokrax, plaintiff would not have been approved for the position by Brooks because of these performance and qualification issues, and that it was Brooks, not Kortokrax, who had the authority to make the promotion decision at issue in this case.
However, it appears from the record that Kortokrax did have the authority to recommend an employee for the promotion.
Rizzo admits that he did not have the experience required by Hess's progressive promotion policy, but argues that he possessed the basic skills necessary for the position and was capable of managing a "D" facility with proper training. He contends that the defendant denied him such training on the basis of his age, while other similarly-situated employees received such training. The company disputes this assertion.
Following Kirk's promotion to manager of the new Johnstown facility, Rizzo was offered a position as either the assistant manager or senior sales clerk there. He ultimately chose to resign rather than to accept one of these positions. He then timely filed a claim of age discrimination with the Equal Employment Opportunity Commission. Following receipt of a "Right To Sue" letter dated December 23, 1998, he commenced the instant action.
In addition, Hess argues that it did not take any adverse action against Rizzo because it offered him a lateral transfer to a position as a manager of an "A" facility in Schenectady, New York. plaintiff denies ever receiving such an offer. This factual dispute is not significant because, as indicated below, both the alleged discriminatory denial of promotion and the alleged failure to train plaintiff constitute adverse employment action under the ADEA.
III. STANDARD OF REVIEW A. Summary Judgment
A moving party is entitled to summary judgment f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, "if any, 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." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment. all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
The Second Circuit has stressed that motions for summary judgment in employment discrimination cases raise special concerns. "When deciding whether this drastic provisional remedy should be granted in a discrimination case, additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer, when . . . intent is at issue." Gallo v. Prudential Residential Svcs., 22 F.3d 1219, 1224 (2d Cir. 1994). This does not mean that summary judgment is never appropriate in such cases. "[S]ummary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994).
B. Age Discrimination In Employment Act
ADEA claims are analyzed "under the same framework as claims brought pursuant to Title VII." Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). Under this framework, there are two methods by which a plaintiff may prove a case of employment discrimination. First, a plaintiff can produce direct evidence of a stated purpose to discriminate on the basis of age. Such evidence, coupled with an adverse employment decision against a person in a protected age group will establish a prima facie case of age discrimination. See Patrolmen's Benevolent Association of the City of New York, Inc. v. City of New York, 74 F. Supp.2d 321, (S.D.N.Y. 1999) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989); Stanojev v. Ebasco Servs., 643 F.2d 914, 921 (2d. Cir. 1981). Such a showing suffices to shift the burden of persuasion to the defendant to prove by a preponderance of the evidence that it would have taken the same action in the absence of a discriminatory motive. Price Waterhouse, 490 U.S. at 258; Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997).
Rizzo also brings his age discrimination claims under Article 15 of the NYHRL. New York courts require the same standard of proof for claims brought under the NYHRL as those brought under Title VII. See Tomka v. Seiler, 66 F.3d 1295, 1304 n. 4 (2d. Cir. 1995) (citing, e.g. Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937 (1985)). Accordingly, the Court will address Rizzo's ADEA and NYHRL claims simultaneously.
Alternatively, plaintiff can establish the elements of a prima facie case as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and show by a preponderance of evidence that (1) he was within the protected age group; (2) he was qualified for the position he sought or held; (3) he suffered an adverse employment decision; and (4) the decision took place under circumstances giving rise to an inference of age discrimination. See Hollander v. American Cyanamid, 172 F.3d 192, 199 (2d Cir. 1999).
If plaintiff succeeds in establishing a prima facie case under this standard, the burden shifts to the defendant to advance a legitimate, non-discriminatory reason for the adverse employment decision. Gallo v. Prudential Residential Servs, 22 F.3d 1219, 1224 (2d. Cir. 1994). If the defendant comes forward with a non-discriminatory reason, the plaintiff must "show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of beliefand (2) more likely than not the employee's age was the real reason for the discharge." Woroski, 31 F.3d at 108-09 (emphasis in original). At all times during this burden shifting, the ultimate burden of persuasion remains with the plaintiff. Reeves v. Sanderson Plumbing Products, Inc., __ U.S. __, __, 120 S.Ct. 2097, 2106 (2000).
IV. DISCUSSION A. The Prima Facie Case
In analyzing an ADEA discriminatory treatment case, the Court must first determine whether to apply a "pretext" or a "mixed motive" analysis. Price Waterhouse, 490 U.S. at 247; Darbano v. Madison County, 922 F.2d 139, 142 (2d Cir. 1990). See also, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."). If the plaintiff has demonstrated through direct evidence that a discriminatory criterion played a part in the challenged employment decision, then the mixed motive analysis of Price Waterhouse applies. If the plaintiff proffers only indirect, i.e., circumstantial, evidence of discrimination, then the familiar burden shifting framework of McDonnell Douglas applies.
However, the Second Circuit has made clear that the plaintiff's initial burden of production in a Price Waterhouse case is heavier than the de minimus burden under McDonnell Douglas. See Raskin, 125 F.3d at 61 ("[T]o warrant a mixed-motive burden shift, the plaintiff must be able to produce a `smoking gun' or at least a `thick cloud of smoke' to support his allegations of discriminatory treatment.") (quoting Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 124 (2d Cir. 1997).
While this case was briefed under the McDonnell Douglas framework, plaintiff argued strenuously at oral argument that this case involved direct evidence of discrimination. If plaintiff is correct in his assertion that he has produced direct evidence of discrimination in this case, then the burden shifts to the employer to prove by a preponderance of the evidence that "its legitimate reason, standing alone, would have induced it to make the same decision" at the time the decision was made.Price Waterhouse, 490 U.S. at 252. Accordingly, this case will be analyzed under both frameworks.
1. McDonnell Douglas Analysis
To establish a prima fade case of age discrimination under McDonnell Douglas, the plaintiff must show that (1) he was within the protected age group; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) this action occurred under circumstances giving rise to an inference of age discrimination. Burger v. New York Inst. of Tech., 94 F.3d 830, 833 (2d Cir. 1996); Woroski, 31 F.3d at 107. For purposes of this analysis, both the discriminatory failure to promote and the denial of job training qualify as adverse employment actions. See Stephens v. State University of New York at Buffalo, 11 F. Supp.2d 242, 249 (W.D.N.Y. 1998) (denial of training); Raskin, 125 F.3d at 59 (failure to promote).
While the plaintiffs initial burden to establish a prima facie case under McDonnell Douglas has been described by the Second Circuit as de minimus, Raskin, 125 F.3d at 60, it is not non-existent. At the minimum, plaintiff is required to show that he was qualified for the position over which he is suing. In this case, Rizzo has not made such a showing.
Plaintiffs Response to Defendant's Statement pursuant to Local Rule 7.1(A)(3), as well as counsel's admissions at oral argument, yielded the following undisputed facts in this case: (1) Rizzo's experience is limited to managing an "A" facility; (2) Hess has a progressive promotion policy, under which managers of "A" facilities are promoted to manage either a "B" or "C" facility prior to being promoted to manage a "D" facility; (3) Rizzo had no experience managing either a "B" or "C" facility; (4) Hess only promotes managers who are currently exceeding their job performance standards; and (5) Rizzo received performance evaluations in 1995, 1996, and 1998 which indicated that his job performance was either deficient or in adequate in numerous categories. In light of these facts, Rizzo has failed to meet his prima facie burden of demonstrating that he was qualified for the promotion to manage a "D" facility.
Plaintiff attempts to make out a prima facie case by arguing that the facts show that he was capable of managing a "D" facility, notwithstanding his lack of qualifications under the defendant's admitted promotion policy. He offers his own affidavit, as well as the affidavit of one of his former employees, as proof that he could have managed a "D" facility with proper training, this evidence is neither relevant nor persuasive in light of plaintiffs admitted lack of qualifications under defendants admitted promotion policies. Therefore, assuming that plaintiff has not come forward with "direct evidence" of discrimination, he has failed to establish a prima facie case under McDonnell Douglas.
Rizzo also attempts to meet his prima facie burden by asserting that he was denied the training necessary to be qualified to manage a "D" facility. Though a discriminatory denial of job training would be actionable under the ADEA, see Stephens, 11 F. Supp. 2d at 249, he has failed to establish that he was denied any training under circumstances that would support an inference of discrimination. While plaintiff did identify three Hess employees who he contends received training to qualify them to manage "D" facilities, he did not explain how these employees were similarly situated, or what training they received. Neither is there any evidence that plaintiff ever requested training to be qualified to manage a "D" facility. In fact, the type of training, if any, offered by the company to enable a manager to bypass the requirement of managing a "B" or "C" facility before being offered a "D" facility was never identified.
2. Price Waterhouse Analysis
Plaintiff asserted at oral argument that he did not need to make out a prima facie case of discrimination under McDonnell Douglas because he had produced direct evidence of discrimination in this case — i.e., the alleged discriminatory statements of Kortokrax. Direct evidence of discriminatory behavior includes policy documents and evidence of statements and other action by decision makers that reflect a discriminatory attitude. See Raskin, 125 F.3d at 60. If plaintiff has shown direct evidence of a "stated purpose to discriminate on the basis of age." Stanojev, 643 F.2d at 921, then he has made out a prima facie case and the burden of persuasion shifts to Hess to demonstrate by a preponderance of the evidence that it would have made the same decision in the absence of a discriminatory motive.
Hess disputes that Kortokrax's alleged statements constitute direct evidence of discrimination, contending that such statements are merely "stray remarks." An employers discriminatory statements will rise above the level of stray remarks and constitute direct evidence of discrimination when the statements are: (1) made by the decision maker or one whose recommendation is sought by the decision maker; (2) related to the specific employment decision challenged; and (3) made close in time to the decision. See Ross v. Communications Workers of America, 1995 WL 351462, *13 (S.D.N.Y. 1995) (citing Wen-Hsein Lo v. FDIC, 846 F. Supp. 557, 564 (S.D. Tex. 1994); Atkin v. Lincoln Property Co., 991 F.2d 268, 273 (5th Cir. 1993); Turner v. North American Rubber, Inc., 979 F.2d 55, 59 n. 9 (5th Cir. 1992).
Under this standard, it is clear that the statements of Kortokrax are not mere "stray remarks." Brooks, the ultimate decision maker, sought the recommendation of Kortokrax as to who should be promoted to manage the new "D" facility. As such, Kortokrax was clearly someone "whose recommendation [was] sought by the decision maker," Ross, 1995 WL 351462 at 13, and his discriminatory statements are direct evidence that the decision not to promote Rizzo was motivated, at least in part, by age-based animus. See, e.g., Azar v. TGI Friday's, Inc., 945 F. Supp. 485, 499 (E.D.N.Y. 1996) (remarks made by non-decision maker constituted direct evidence of discrimination where speaker was plaintiffs superior who conferred with decision maker "on a regular basis as to the employees' performance, and, with reasonable certainty he advised the General Manager about employee matters such as those involving the plaintiff"); Owens v. New York City Housing Auth., 934 F.2d 405, 410 (2d Cir. 1991) (statements made by individuals with "substantial influence" over plaintiffs employment raise genuine issue of fact on issue of pretext). In addition, Kortokrax's statements reflect a direct correlation between plaintiffs age and the adverse employment decision. Plaintiff has corroborated the statements with the affidavits of disinterested individuals. Such evidence more than constitutes the "thick cloud of smoke" necessary to justify a burden shift under Price Waterhouse.Raskin, 125 F.3d at 61.
Even though Rizzo has come forward with direct evidence of discrimination in this case, Hess is still entitled to summary judgment because again it is undisputed that plaintiff was not qualified for the position at issue in this case, to wit, manager of a "D" facility. As noted above, once a plaintiff has produced direct evidence of discrimination, the burden shifts to the employer to demonstrate by a preponderance of the evidence that it would have taken the same action in the absence of discriminatory animus. Again, the undisputed evidence in this case is that Hess had a progressive promotion policy, and that plaintiff did not meet the criteria for promotion under this policy. In addition, plaintiff has admitted that Hess had a policy of only promoting qualified managers who were exceeding the company's job performance standards. Rizzo's job evaluations, predating the discriminatory statements by Kortokrax, demonstrate that he was not exceeding Hess's job performance standards. Therefore, Rizzo has offered no persuasive evidence in opposition to Hess's showing that he would not have been promoted to manage the new "D" facility, even in the absence of the discriminatory animus of Kortokrax. IV. CONCLUSION
The superior qualifications of Kirk also demonstrate that the decision to promote her would have been made regardless of any age discrimination against plaintiff.
Plaintiff was not qualified for the position of manager of a "D" facility, thus failing to meet one of the standards of a prima facie case under McDonnell Douglas. Because the plaintiff was unqualified for the position he sought, the defendant would have made the same decision to select Kirk in the absence of age discriminatory animus, thus failing to make a prima facie case under Price Waterhouse.
Therefore, it is
ORDERED that
1. Defendant's motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.