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explaining that the plaintiff did not contest that "the management disciplinary committee who decided to fire him did not know his age"
Summary of this case from Shands v. Lakeland Cent. Sch. Dist.Opinion
01 Civ. 1050 (GEL)
December 18, 2002
Attorney for Plaintiff: Andrew Chin
Attorney for Defendant: Matthew T. Miklave, Epstein, Becker Green, PC, New York, NY,
OPINION AND ORDER
Walter Strycharz brought this complaint against his former employer, Bell Atlantic Corporation, now Verizon, alleging that he was fired in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"), the Employee Retirement Income Security Act, 29 U.S.C. § 1140 ("ERISA"), and the Racketeering and Corrupt Organizations Act, 18 U.S.C. § 1964 ("RICO"). He also asserts various pendent state law claims. Defendant now moves for summary judgment on all claims. The motion will be granted.
BACKGROUND
Except where noted, the following facts are undisputed by the parties. Strycharz was employed by defendant from 1980 until he was fired in 1999. When he was fired, he was 55 years old and a "Specialist" in the Operations Assurance Unit.
On June 8, 1999, Strycharz sent a joke with sexual content by company e-mail from his office computer to a number of present and former Verizon employees, in violation of various company policies contained in Verizon's employee handbook. Strycharz acknowledged, in writing, receipt of that handbook on September 3, 1997. One of the recipients of Strycharz's email informed his supervisor of the transmission. That supervisor reported Strycharz's e-mail to Corporate Security, whose subsequent investigation revealed that Strycharz's computer contained five other e-mails, apparently sent and/or received by Strycharz, whose transmission Verizon found to be in violation of the published company policy.
During the investigation, Strycharz was interviewed by Corporate Security. He admitted that he sent the e-mails and jokes found on his computer, and that he had created two group mailing lists for the purpose of distributing such material. He further acknowledged in a June 18, 1999, letter that a "series of inappropriate jokes were exchanged" and that his "misuse of the corporation's email was inexcusable." (Trafimow Aff. Ex. 8). He reiterated these sentiments in writing when he responded to Corporate Security's reporting of the results of its investigation, stating that "I truly regret my misuse of the company e-mail system . . . . I take full responsibilit[y] for my actions . . . ." (Id. Ex. 10).
In his deposition and moving papers, however, Strycharz states that he made these admissions only because he was led to believe that his own interest would be best served by confessing to all of the alleged misdeeds, whether or not they were actually true. He now claims that others had access to his computer and that the only improper transmission he himself made was the single e-mail that triggered the investigation in the first place.
The results of Corporate Security's investigation were turned over to Verizon's Management Discipline Committee. Verizon asserts, and Strycharz does not deny, that, in accordance with Verizon's usual practice, the members of that committee were not provided with information about Strycharz's age or seniority. (Davies Aff. ¶ 9). indeed, the memorandum supplied to the committee refers to Strycharz only as "Employee #1." (Davies Aff. Ex. B). The committee recommended firing Strycharz, as well as another employee who had been found, as a result of the same investigation, to have sent "sexually inappropriate" e-mail. (Def. Mem. at 9; Davies Aff. ¶ 12). in accordance with this recommendation, Strycharz was fired on September 24, 1999.
Verizon argues that summary judgment is appropriate because Strycharz has failed to produce any evidence establishing the elements of a prima facie case of age discrimination under the ADEA or of a violation of§ 510 of ERISA, and even if he had, he has failed to provide any evidence rebutting Verizon's assertion of a legitimate, nondiscriminatory, reason for firing him. Verizon also argues that Strycharz has failed to establish the elements of a RICO claim, and challenges both the timeliness and sufficiency of Strycharz's pleading of his state law claims.
Strycharz responds that genuine issues of material fact exist with respect to whether he actually engaged in the conduct which Verizon claims caused his dismissal and whether the one e-mail transmission he still admits having made in fact violated Verizon's policy. He also argues that a genuine issue of material fact exists as to whether his alleged misconduct was simply a pretext for a discriminatory dismissal, pointing to (1) the fact that Verizon chose not to discipline several employees who engaged in similar conduct (the recipients of Strycharz's e-mails), or two employees who engaged in even "more heinous" conduct — "cut[ting] a customer's phone line off" and "slashing the tires of eight (8) company vehicles" (Pl. Mem. at 4) — and (2) the fact that Verizon, in April 2001, offered Strycharz a new job, allegedly at a lower salary and carrying no pension credit for his earlier service. Strycharz does not respond to Verizon's various motions for summary judgment on the RICO and state law claims.
DISCUSSION
I. Summary Judgment Standard
When adjudicating a motion for summary judgment, a court must resolve all ambiguities in favor of the nonmoving party, although "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Summary judgment is then appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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).
To establish a genuine issue of material fact, the opposing party "`must produce specific facts indicating' that a genuine factual issue exists." Scotto, 43 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir. 1996) (quoting Liberty Lobby, 477 U.S. at 252).
II. ADEA and ERISA
To establish a claim of age discrimination under the ADEA, a plaintiff must first establish a prima facie case by showing "(1) that he was withing the protected age group; (2) that he was qualified for the position; (3) that he was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination."Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (quoting Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993)). If that prima facie case is established, the resulting presumption of discrimination can be rebutted if the defendant offers a legitimate, nondiscriminatory reasons for the plaintiff's dismissal. Id. Once the employer "articulates a non-discriminatory reason" for its actions,Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) (en banc), "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Assn., 233 F.3d 149, 154 (2d Cir. 2000). The elements of a prima facie case under § 510 of ERISA are distinct from the ADEA elements, but the same structure of burden-shifting based on defendant's proffer of nondiscriminatory reasons for its actions applies. Dister v. Continental Group, Inc. 859 F.2d 1108, 1111 (2d Cir. 1988).
Because the Court finds that there is no evidence suggesting that the stated reason for Strycharz's dismissal — the apparent transmission of inappropriate e-mails over the company s computer system in knowing violation of established company policy — was pretextual, there is no need to consider whether Strycharz made out a prima facie case of either age discrimination or of an ERISA violation.
The record is clear that Strycharz was dismissed because his employer concluded that he had disseminated off-color e-mails in violation of clearly-announced company policy. He has supplied absolutely no evidence that this was pretextual. He provides no evidence or even allegation that any employee who was younger or had a different pension status who engaged in similar conduct was not fired. Nor does he contest Verizon's evidence that the members of the management disciplinary committee who decided to fire him did not know his age or pension status, or even his identity. The only facts Strycharz cites that are even relevant to these claims are the facts of his age and his impending change in retirement status.
That Verizon did not fire some people who engaged in other kinds of misconduct that Strycharz not unreasonably believes was worse than his does not affect the analysis. Verizon, like many companies, might well be characterized on the basis of this record as being overly concerned about the risk or being sued or embarrassed over accusations of sexual harassment. But federal anti-discrimination laws do not require Verizon to agree with Strycharz's assessment of the relative seriousness of various violations of company policy. The evidence in the record, statistically sparse but uncontradicted, shows that Verizon reacted consistently to the kind of behavior Strycharz engaged in, dismissing at least one under-40 employee for similar conduct, and rationally distinguishing senders from recipients of offensive e-mails.
Nor does the fact that Verizon offered Strycharz a new job more than nineteen months after his dismissal help establish that the dismissal was pretextual. Strycharz offers no factual or logical basis for the considering the offer to be probative of Verizon's earlier motivation for dismissing him. To the contrary, that Verizon offered a job to an individual who was more than a year older than when he was fired in September 1999 tends to refute any inference of age discrimination, and Strycharz fails to produce any evidence supporting his claim that the offer did not carry with it credit towards a pension based on Strycharz's earlier service.
Strycharz's belated denial of most of the conduct that Verizon accused him of, even if accepted as true, as the Court must in considering a motion for summary judgment for the defendant, similarly has no effect on analysis of the discrimination claims under the ADEA and ERISA. Strycharz told Verizon's investigator that he did send all of the e-mails at issue, Verizon believed this admission, and it fired him because of that belief, and not because of his age or pension status. There is no factual dispute that Strycharz made this admission and that his admission was corroborated by evidence from Strycharz's computer. Strycharz offers no evidence that the committee did not believe his admission or had reason to disbelieve it.
Even if Strycharz's testimony and submissions are read to assert that a company investigator deliberately tricked him into a false confession, he neither alleges nor provides any evidence that the investigator engaged in this coercive behavior because of Strycharz's age or pension status. On the contrary, Strycharz states that this was the investigator's standard modus operandi (Def. Mem. at 3-4), thus undermining any charge that he was singled out for a discriminatory reason.
Because the defendant has supplied a legitimate, nondiscriminatory reason for dismissing Strycharz, and Strycharz has failed to present any evidence in rebuttal or any evidence suggesting a discriminatory motive, Verizon's motion for summary judgment on the ADEA and ERISA claims must be granted.
III. RICO and State Law Claims
Strycharz's complaint asserts a variety of other causes of action, and in Opposition to Verizon's motion vaguely states that he opposes summary judgment on those claims as well. (Def. Mem. at 4). But Strycharz makes no attempt to defend those claims, and thus must be taken to have abandoned them. At any rate, they are meritless. His RICO claim fails because neither his complaint nor the evidence contains any hint of any criminal conduct by Verizon at all, let alone of RICO predicate acts. His state tort claims are all governed by New York's one-year statute of limitations for intentional torts, CPLR § 215(3); Gallagher v. Directors Guild of America, Inc., 533 N.Y.S.2d 863, 864-65 (1st Dep't 1988), and are therefore time-barred. His state contract claims fail because Strycharz has presented no evidence that the alleged oral agreement modifying his at-will employment status had set a definite term of employment, as is required under New York law to overcome the presumption of at-will employment. De Petris v. Union Settlement Ass'n, 86 N.Y.2d 406, 410 (1995). Accordingly, all of these claims must be dismissed.
CONCLUSION
For the reasons stated, defendant's motion for summary judgment is granted in its entirety.
SO ORDERED.