Opinion
Index No. 52248/2020 Motion Sequences No. 1 2
04-24-2023
JON WHITE, Plaintiff, v. SCRIPPS MEDIA, INC., NEXSTAR MEDIA GROUP, INC., TRIBUNE MEDIA COMPANY, CHRISTOPHER TZIANABOS, and MICHAEL SCHWARTZ and BART FEDER, Defendants.
Unpublished Opinion
DECISION AND ORDER
JANET C. MALONE, J.S.C.
New York Human Rights Law makes clear that "[i]t shall be an unlawful discriminatory practice [f]or an employer . . . because of an individual's age . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment (Executive Law § 296 [1][a]).
At age 63, Plaintiff Jon White ("White") was placed on a Performance Improvement Plan and subsequently terminated from his employment as an account executive at WPIX television station on November 21, 2019. On February 13, 2020, White commenced this age discrimination action against Defendants Tribune Media Company and Nexstar Media Group, Inc. (individually, "Tribune Media" and "Nexstar" and collectively, "Nexstar Defendants"); and Defendants Christopher Tzianabos, Michael Schwartz, and Scripps Media, Inc. (individually, "Tzianabos", "Schwartz" and "Scripps", and collectively, "Scripps Defendants").
White's complaint alleges Defendants discriminated against him on the basis of his age and that Schwartz aided and abetted Tzianabos in discriminating against White, in violation of New York State Human Rights Law (NYSHRL) and New York City Human Rights Law(NYCHRL). See Complaint [NYSCEF Doc. No. 1] at ¶¶ 1; 60-64; 65-68; 69-73).
The second and fourth causes of action alleged against Defendant Bart Feder were discontinued with prejudice (Stipulation of Discontinuance dated February 19, 2021 at NYSCEF Doc. No. 37); and the fifth cause of action against Defendant Scripps Media, Inc. alleging age discrimination and wrongful termination from employment in violation of the Westchester County Human Rights Law, was discontinued with prejudice (Stipulation dated May 6, 2020 at NYSCEF Doc. No. 15).
Now, upon Notices of Motion filed on June 28, 2021 with New York State Courts Electronic Filing system (NYSCEF), Nexstar Defendants and Scripps Defendants move separately for an order granting them summary judgment pursuant to CPLR R. 3212, dismissing White's action in its entirety.
The Court sincerely apologizes for the delay in issuing this Decision and Order.
Nexstar Defendants move to dismiss Plaintiff's action with prejudice (Notice of Motion, NYSCEF Doc. No. 42)
Nexstar Defendants argue, inter alia, that White is unable to establish a prima facie case of discrimination because his placement on the Performance Improvement Plan (PIP) by Nexstar Defendants on July 24, 2019 was not an adverse employment action and his placement on the PIP did not give rise to an inference of discrimination since Tribune Media had a legitimate nondiscriminatory reason for placing White on the PIP; White has no evidence that his age was the reason Tribune Media placed him on the PIP. In support of their motion, Nexstar Defendants submitted a Statement of Material Facts, Memorandum in Support, Affidavit of Courtney Williams, Affirmation of Alison L. Tomasco, Esq. with Exhibits A-Q; Reply Memorandum of Law, Reply Affirmation of Alison L. Tomasco, Esq. with Exhibits R-S (NYSCEF Doc. Nos. 42-63 and 147-150). White opposes Nexstar Defendants' motion claiming, inter alia, that his placement on the PIP was an adverse employment action and he was placed on a PIP under circumstances giving rise to an inference of discrimination. White's opposition is supported by a Memorandum of Law, Response to Statement of Material Facts, Affirmation of Heather R. Gushue, Esq., with Exhibits 1-25 (NYSCEF Doc. Nos. 91-118).
Nexstar Defendants only submitted "relevant pages" from the deposition transcripts of White, Tzianabos, Schwartz, and Williams (Exhibits B-D at NYSCEF Doc. Nos. 48-51).
Scripps Defendants argue, inter alia, that White cannot establish a prima facie case that his termination occurred under circumstances giving rise to an inference of discrimination; and even if White can carry his prima facie burden, Scripps Defendants have a nondiscriminatory reason for terminating White's employment; White cannot prove that Schwartz' and Tzianabos' reasons for placing White on the PIP and Scripps Defendants' reasons for extending him on the PIP were a pretext for intentional discrimination; and that the aiding and abetting claim against Schwartz should be dismissed. Scripps Defendants submit a Memorandum of Law, Statement of Material Facts, Affirmation of Amanda L. Van Hoose Garofalo, Esq. with Exhibits A-G, Affidavit of Michael Schwartz with Exhibits A-E, Affidavit of Michelle Zackay with Exhibit A, Reply Statement of Material Facts, Reply Affirmation of Amanda Van Hose Garogalo with Exhibit A. See NYSCEF Doc. Nos. 64-85 and 151-154. White opposes Scripps Defendants' motion arguing that he established his prima facie case of age discrimination; that Scripps failed to present a legitimate, independent, and nondiscriminatory reasons for placing White on the First PIP, the PIP Extension, and terminating his employment, which was pretextual, as White's age was the reason for his employment termination. White's opposition is supported by a Memorandum of Law, Response to Statement of Material Facts and Affirmation of Heather R. Gushue, Esq., with Exhibits 11-25 (NYSCEF Doc. Nos. 119-146).
White's deposition transcript is submitted in four (4) parts (NYSCEF Doc. Nos. 68-71).
Schwartz's Affidavit simply identifies Exhibits A_E (NYSCEF Doc. No. 78).
The motions are joined for purposes of this decision and after reading the papers and considering the arguments adduced, Nexstar Defendants' motion is granted in part and denied in part, and the Scripps Defendants' motion is denied in its' entirety as set forth herein.
The parties violated 22 NYCRR 202.8-g by not setting forth short and concise statements of the material facts as to which it is contended that there exists a genuine issue to be tried. For example, the Nexstar Defendants submitted a 17-page Statement of Undisputed Material Facts (NYSCEF Doc. No. 43), White a 20-page Response to Nexstar (NYSCEF Doc. No. 91); the Scripps Defendants a 25-page Statement of Undisputed Material Facts (NYSCEF Doc. No. 66), White a 29-page Response to Defendants Scripps (NYSCEF Doc. No. 119), and the Scripps Defendants submitted a Reply to White's Response to Defendant' Statement of Undisputed Material Facts (NYSCEF Doc. No. 152). These submissions contain inappropriate and gratuitous arguments to buttress moving and opposing arguments.
In 2010, Tribune Broadcasting Company, LLC, a subsidiary of Tribune Media, owned WPIX television station. (Aff. of Courtney Williams dated June 26, 2021 at ¶3, at NYSCEF Doc. No. 45). On January 11, 2010, White, then 52-years-old, was hired at WPIX as a new business account executive, and in 2011, his title changed to account executive. (White Tr. at 23:4 -27:2, at NYSCEF Doc. No. 142). By 2019, White was an account executive responsible for new business sales, digital sales, managing a list of existing accounts, maintaining an agency list, and meeting combined new business and digital revenue goals quarterly (Exhibit 1 Account Executive Job Description/Requirements at NYSCEF Doc. No 94) .
Schwartz, the local sales manager was White's immediate supervisor at WPIX and responsible for managing White's advertising sales, participating in and discussing his annual reviews, reviewing his written self-reflections, giving him input (Schwartz Tr. at 24:17-19 [NYSCEF Doc. No. 73]); and Tzaniabos, senior sales director at WPIX, supervised Schwartz and oversaw management of White's account list (Tzianabos Tr. at 19:20-20:3; 20:15- 20 [NYSCEF Doc. No 72]; NYSCEF Doc. No 142 at 21:15-20).
Schwartz's date of birth is October 22, 1973 and he was 47 years old when White was terminated (See Schwartz Tr. at 26:1-11, NYSCEF Doc. No. 73) .
Between 2014 and 2018, White received glowing annual job performance evaluations from Schwartz, Tzianabos and Debbie Presser (Presser) . As examples:
Tzianabos' date of birth is January 9, 1965 and he was 54 years old when White was terminated (NYSCEF Doc. No. 72 at 11:17-18).
White also reported to Local Sales Manager, Debbie Presser, however, White has not asserted any claims against Presser (see NYSCEF Doc. No. 142 at page75, lines 14-17).
2014: Schwartz, wrote in White's performance evaluation, "[Y]ou are an amazing new business and digital salesmen. The results have been above expectations" (see Exhibit 2 [NYSCEF Doc. No. 95] Bates Stamp ND_000268). Schwartz also wrote: "We want you to aspire to be more of transactional AE with heavy digital & new business[.]"
2015: Presser, a sales manager who was also supervised by Tzianabos, said White"[c]ontinues to thrive at new business and transaction business at traditional agencies." (Id. at Bates Stamp ND_000272).
2016: Schwartz wrote: "You are a leader amongst the AE's and they look to you for digital, new business development" (Id. at Bates Stamp ND_000276).
2017: Schwartz wrote: "You had a banner year….It was a great 2017, keep the fire burning!" (Id. at Bates Stamp ND_000001).
2018: While Schwartz rated White's performance as a "Successful Year" (see Id. At Bates Stamp ND_000003), commenting that White's "results were good this year after a banner 2018", Schwartz wanted White to "concentrate on spending more time closing new business on air for 2019" (Id.).
It is unclear what the notation "2018 Goals (inactive)" meant in 2019 (Bates Stamp ND _000003-4).
Tzianabos described White's 2018 performance as in the "acceptable range" (NYSCEF Doc. No. 72 at 143:8-14,), giving White a $10,000 raise in his base salary because White did a "good work" although Tzianbos told White he needed to continue to bring in new business (Id. at 81:8-83:1). Despite Schwartz' rating White's 2018 performance a "successful year," in or about late 2018, Tzianabos discussed White's new business sales with Schwartz (Id. at 145:12-147:11).
The "WPIX Commision (sic) Structure" effective on or about January 10, 2019, for traditional account executives Derek Tauber, Brittany Nacca, Jamie Pressman, Conor Teehan, Dianna Jane, Colin MacCourtney, Vincent Mondano, and Jack Moore ("Younger Account Executives"), who were younger than White, had their new business and digital quarterly goal set at $145,000 for 2019, while White's Commision(sic) Structure Effective January 2019 and signed after the Younger Account Executives, had White's goal for new business plus digital quarterly revenue set at $170,000 (see Exhibit 3, [NYSCEF Doc. No. 96] Younger Account Executive's WPIX Commision (sic) Structure Effective January 2019) and Exhibit 4 [NYSCEF Doc. Nos. 97 and 125] White's Commision (sic) Structure Effective January 2019); see also NYSCEF Doc. No. 73]at 121:4-126:11; Doc. No. 142 at 39:25-41:14; Exhibits 5, 6, 7, 8 at NYSCEF Doc. Nos. 98, 99, 100, 101] Jon White / 1Q, 2Q, 3Q, and 4Q 2019 Goals).
Derek Tauber's WPIX Commision (sic) Structure reflected a job title of "New Business AE" (see NYSCEF Doc. No. 96 at Bates Stamp ND_000250) and his performance goals were not listed in this document. However, his performance goals were new business and quarterly for $195,000 (See NYSCEF Doc. No. 98 at Bates Stamp Scripps 000612).
On or about January 31, 2019, White informed Schwartz that he was having knee replacement surgery on February 25, 2019, and later that day, Schwartz advised Tzianabos about White's surgery and that White would be "out fully for three days and claims he can work from home for the following 2(sic) weeks rehabbing" (Exhibit 22 Email Threads, Bates Stamp SCRIPPS 000315 at NYSCEF Doc. Nos. 115 and 143). On February 4, 2019, White asked WPIX's technology department to install certain programs on his home laptop effective February 25, 2019, as he would be working from home for a few weeks (Id. at Bates Stamp SCRIPPS 000322). Tzianabos paused action on White's request because Tzianabos had not approved White's request and White had not memorialized a work from home plan for Schwartz's and Tzianabos's review or approval (Id. at Bates Stamp SCRIPPS 000321). White had knee surgery on February 25, 2019 and returned to work on or about March 18, 2019, using vacation and sick time and floating holidays to cover his medical absence, but did not have a plan to accommodate his physical therapy and his ambulation once he returned to work (Exhibit 9 White's Days Off at NYSCEF Doc. No. 130; NYSCEF Doc. No. 142 at 100:15-103:24).
On April 2, 2019, Schwartz emailed Tzianabos and White, with the subject "JW - March Performance Report," informing White that "$0 New Business cannot happen!" (Exhibit N at NYSCEF Doc. No. 60). White responded to Schwartz and Tzianabos with the subject "New Biz", reminding Schwartz that he was "out of action for a bit in Q1 due to a knee replacement - Q2 will see additional new revenue" and that "April New Biz includes PSEF LI - Digital (Weather.com) + (sic) Cochran Law Digital (OTT)". (Id.) Tzianabos replied on April 3, 2019, suggesting a meeting with Schwartz and White" (Id.). When Schwartz and Tzianabos met with White, Tzianabos explained to White that they understood he had knee surgery, but business does not get closed in a month, and he therefore had nothing in the "funnel that closed for the month of March (NYSCEF Doc. No. 72 at 243:16-245:2).
Thereafter, Schwartz, Presser and Tzianabos met to discuss White's performance; and agreed that White needed structure and tangible goals to help him succeed and achieve his new business goals (Id. at 149:6- 150:11; NYSCEF Doc. No. 73 at 149:14-150:16). Schwartz raised the trios' concerns about White with Tribune Media's Director of Human Resources, Courtney Williams (Williams), without advising Williams that White had been out of work for approximately three weeks of the first quarter of 2019 due to him having knee surgery (NYSCEF Doc. No. 73 at 151:2-16; Williams Tr. at 69:11-72:3, NYSCEF Doc. No. 74).
Despite being a 30-year veteran of the media sales industry and employee at WPIX for almost 10 years without ever being placed on a PIP (NYSCEF Doc. No.73 at 157:22-24), on July 24, 2019, Nexstar, Schwartz (and Williams) placed White on a PIP for a 90-day term (First PIP) because of "[White's] performance continuing to fall below expectations over the past six months." The PIP also stated, "[t]his plan will address your ongoing performance issues, expectations, and possible next steps if you do not meet the required performance objectives." Under the PIP, White was expected to have 20 new business prospects per week, hit his new business goals monthly, close a minimum of three new accounts per quarter, and use Jim Doyle & Associates ("Doyle") for support and assistance. Additionally, Schwartz met with White on a weekly basis during the term of the PIP, to ensure White met the expectations of the PIP (see NYSCEF Doc. No. 142 at 224:7 - 13; Doc. No. 73 at 195:3-15). The PIP also faulted White for not" [being] in the office for the meetings with Pat Norris March 4th through March 8th (sic)" when White was at home recovering from knee surgery or working from home (Exhibit Q PIP dated July 24, 2019 at NYSCEF Doc. No. 63).
The PIP is signed by White and the "Manager".
The "Midyear Check-In 2019" for the first half of 2019, indicated that White did a "[g]ood job with upselling and renewing accounts . . . in the first half of 2019 . . . you have been placed on a PIP to get you re-focused. Expectations are[:] Sell 3 New advertisers to the PIX11 suite of offerings per quarter, utilize Doyle, prospect 20 new clients per week, contribute at least 2 calls when Doyle comes to town and hit your new business goals monthly" (Exhibit 2 at Bate Stamps ND_000005 - ND_000006, NYSCEF Doc. No. 123). Under "2019 Goals" White was to "[d]evelop additional knowledge and sales expertise for online / digital products . . .Midyear: Demonstrating expertise with CTV", "[i]ncrease performance as a traditional AE with heavy focus on digital and new business Midyear: Success with sales for CTV . . . Category: 2019 Goals" (Id.)
The Midyear Check-In is dated "01/01/2019 - 12/31/2019", however, White's employment was terminated on November 21, 2019.
Approximately two months into White's PIP, Nexstar acquired Tribune Media and Scripps acquired WPIX from Nexstar on September 19, 2019. Scripps took full operational control of WPIX with White, Schwartz and Tzianabos maintaining their respective positions as when WPIX was owned by Tribune Media (NYSCEF Doc. No. 45, at ¶¶ 6-8). During the transition of Scripps' acquiring WPIX, Michelle Zackay (Zackay), Regional Director of Human Resources (HR) for Scripps, provided HR support to Williams. Zackay also discussed White's performance on the PIP with Tzianabos and Schwartz in October 2019, sharing Scripps Process for managing underperforming employees. However, due to the transition, Zackay did not want to terminate White, but extend the PIP expiring in October 2019; however, it was Tzianabos who wanted White terminated (Zackay Tr. at 12:7- 13:16; 17:7- 20:5; 38:18-39:15; 40:4-41:14; 42:23-45:23; 47:9- 49:19; 49:20- 52:13, [NYSCEF Doc. No. 75]).
On October 22, 2019, Scripps Defendants drafted the PIP that was extended to November 21, 2019 (Exhibit 15 Extension of Performance Improvement Plan dated October 22, 2019 at NYSCEF Doc. No. 136). During the extension period, White was to (i) achieve new business goals above and beyond digital billing from current advertisers of $55,000 per month calculated by monthly prorating White's quarterly combined new business and digital performance goal of $170,000 (NYSCEF Doc. No. 72 at 299:13 -301:14; NYSCEF Doc. No. 73 at 205:10- 206:23); and (ii) close a minimum of four new accounts, three that remained from the initial 90-day PIP plus one additional account (NYSCEF Doc. No. 142 at 240:8-12; Doc. No. 73 at 206:11-18; Doc. No. 72 at 303:18-304:9). Under the PIP extension, White continued to have weekly meetings with Schwartz during which Schwartz would go over White's sales plan and "try to get [White] in the right direction . . . have him go after the right accounts versus the wrong accounts. . . when it comes to new business" (NYSCEF Doc No. 73 at 214:17-215:15; Doc. No. 142 at 243:4-7). White failed to close the requisite four new business accounts during the PIP extension, instead closing only three (NYSCEF Doc. No. 73 at 218:4- 10). On November 21, 2019, Scripps terminated White's employment although it appears it was Tzianabos intention to terminate White in or about October 2019 (NYSCEF Doc. No. 73 at 225:17-226:22; NYSCEF Doc. No. 75 at 59:23- 64:8; 67:2-69:8).
Party Arguments
White
White contends there was no need to place him on the First PIP because he met his new business and digital performance goal for the second quarter of 2019, and his second quarter sales were $174,482, in excess of his combined new business and digital performance goal of $170,000 (See NYSCEF Doc. No. 154). White also contends that the PIP goal of closing three accounts in a quarter was unattainable and by adding the additional requirement that he close a fourth new account during the extended PIP, meant Defendants never intended for White to succeed, which was echoed by Tzianabos in his statement that "business, it doesn't get booked in the month. It gets booked prior to the month and [] so [White] had nothing in the funnel that closed for the month of March" (NYSCEF Doc. No. 72 at 243:22-244:21).
His placement on the PIP shows that he was treated less favorably than younger executives whose performances were similar to or worse than his and were not placed on a PIP. White contends that in evaluating the performance of younger account executives, Defendants included revenue from inherited accounts while removing revenue he generated from inherited accounts for new business and digital sales (NYSCEF Doc. No. 105). White "believed if it was an existing account that started doing digital business then that should be counted as new business" (NYSCEF Doc. No. 74 at 78:14-79:11).
White also claims that for more than two years, during the monthly sales meetings, Tzianabos made one to two statements that would reference a movie or other situation, and say "Jon, I expect you are the only one to remember this." Tzianabos initiated a push-up/planking contest on the sales floor and would invite or challenge other account executives to participate but never invited or challenged White, the oldest account executive on the team. He also commented on White's limping upon his return from knee surgery. (NYSCEF Doc. No. 142 at 107:25-113:10).
Finally, White contends that Schwartz intentionally or recklessly aided and abetted Tzianabos in age discriminating against him by providing assistance to Tzianabos in placing White on the initial and PIP Extension and in terminating his employment, causing him, inter alia, monetary damage (NYSCEF Doc. No. 142 at 277:2-280:19).
Nexstar Defendants
Nexstar Defendants contend that White was placed on the initial PIP by Tribune Media for unsatisfactory job performance regarding his new business; and that after months of coaching from Schwartz, White's new business sales showed no improvement. In or about May 2019, White identified the fewest number of prospects and also had the fewest meetings held with prospective clients compared to the other account executives during that same time period. Out of his $100,000 new business targets for the first and second quarters of 2019, White generated only $960 and $7,555 in new business. Despite the clear goals set by the First PIP, White failed to generate three new business accounts. In the third quarter of 2019, White brought in $0 of new business and his business prospecting numbers were the lowest of all of the account executives. Nexstar Defendants further contend that between April 1 and July 8, 2019, White had the lowest number of new business prospects of all the account executives under Schwartz. (See Nexstar Statement of Material Facts at ¶¶66-69 at NYSCEF Doc. No. 43).
Nexstar Defendants further claim that Tribune Media's goal of placing White on the First PIP was to improve his performance and avoid termination, and White being 62 at the time he was placed on the PIP does not prove age discrimination (e.g., Williams v. Brooklyn Union Gas Co., 819 F.Supp. 214, 225 (E.D.N.Y. 1993) ("[P]laintiff's age, standing alone, is insufficient to satisfy his burden of proof.") White's age discrimination claims rest upon pure speculation, as he provided no competent evidence of any age discrimination by the decision-makers like Schwartz and Tzianabos. Schwartz and Tzianabos for whom White admits he did not have any animosity towards, treated White favorably over the years; Tzianabos gave White a $10,000 raise in 2018, accommodated White's request to work from home following his knee surgery; and invited White on golf outings and to after work events (see NYSCEF Doc. No. 142 at 67:25-69:10; 71:23-73; 102:24-103:19 and Doc. No. 72 at 81:8-83:1, 127:11-24).
Moreover, while Tzianabos was the Director of Sales at WPIX, in February 2018, 35-year-old Schuyler Sauter's employment was terminated and in December 2018, 29-year-old Brittany Nacca, who struggled meeting her new business revenue goals, was placed on a PIP and her employment was terminated in March 2019 (Statement of Material Facts and Plaintiff's Response NYSCEF Doc. Nos. 43 and 91, at ¶¶ 93-94). See, Cobb v. Frontier Communs. of Rochester, Inc., 2010 U.S. Dist. LEXIS 80465, at *15 (W.D.N.Y. Aug. 10, 2010) (fact that younger employees who were also terminated based on performance undermined plaintiff's allegation that age was considered in decision-making process); Hammer v. FedEx, 2008 U.S. Dist. LEXIS 41689, at *10-11 (E.D.N.Y. May 28, 2008) ("Plaintiff's argument that he was 'set up' for termination as a result of his age simply cannot reasonably be accepted" where defendants terminated far younger employees for the same act); see also, Affidavit of Courtney Williams at NYSCEF Doc. No. 45.
White does not dispute that Schuyler Sauter (Sauter) was placed on a PIP qualifying that Sauter did not report to Schwartz (Nexstar Defendants and White's Statements of Material Facts, [NYSCEF Doc. Nos. 43 and 91], at ¶93).
Nexstar Defendants further argue that absent from White's claim of discrimination is competent evidence that he was treated less favorably than other similarly situated, younger employees. Rather, White speculates that younger account executives - Tauber, Jane, and Pressman - were treated more favorably. (NYSCEF Doc. No. 142 at 265:5-266:7). Simply stating that he felt that Tauber received more social opportunities because of "his age and success", that he's the "golden child", and that Jane had an "account agency list that she inherited in terms of some rulings on what was considered 'new business' and what we paid out. They basically wanted her to succeed, so they made sure she had a very good agency list and [she] was, . . .pretty much . . . another golden child in comparison . . . there was favored nation status for her and not for me" (Id. at 266:8- 267:11). As for Pressman, who White "liked . . . very much" and did not want "to say anything negative about," he testified "I have a feeling that there were certain account executives that management wanted to succeed and wanted to take care of financially, and she fits into that [] group" (Id. 267:12-268:12). White's "feelings" do not prove that similarly situated, younger account executives were treated more favorably and, in light of the terminations of Sauter and Nacca for poor performance, he cannot prove age animus. Tihan v. Apollo Mgt. Holdings, L.P., 2021 N.Y. Misc. LEXIS 334, at *30 (granting summary judgment, noting that "Plaintiff's 'feeling' that his reviews were discriminatory is insufficient").
White's only purported "evidence" of age discrimination is the allegation that Tzianabos excluded him from planking and push-up contests, and that Tzianabos made two separate innocuous comments: that White was "still limping" after his surgery and that White would be "the only one to remember" (along with Tzianabos) a particular movie or scenario. Setting aside the fact that the alleged push-up challenges and a remark about one's limp post-surgery have nothing to do with one's age, as well as the fact that Tzianabos' alleged comment that White would know a movie implies that Tzianabos knew the movie, too. Defendants don't deny Tzianabos made these statements, only that they were not age related. (NYSCEF Doc. No. 142 at 107:25-121:12). Nexstar Defendants argue that White's allegations are insufficient to establish a prima facie case of discrimination and these allegations are similar to Tihan, where the court granted summary judgment on the plaintiff's discrimination claims finding that "stray remarks such as [this], even if made by decisionmaker, do not, without more, constitute evidence of discrimination. . . . the NYSHRL and the NYCHRL are not "general civility code[s] for the American workplace." Instead, these actions constitute "petty slights and trivial inconveniences," which are not actionable. Tihan, 2021 N.Y. Misc. LEXIS 334, at *33-34.
Prior to White's termination in November 2019, White did not have any financial problems and was "able to get by with the amount that [he] was making." (NYSCEF Doc. No. 142 at 285:18-286:9. Thus, White does not, and cannot, attribute any lost wages to the Nexstar Defendants because his salary and benefits never changed once he was placed on the First PIP by Tribune Media. See Lefort v. Kingbrook Jewish Med. Ctr., 203 A.D.3d 708, 710 (2d Dept. 2022).
Finally, no employment decisions concerning White were made by Nexstar Defendants on or after September 19, 2019, when WPIX was owned and operated by Scripps; that it was Scripps who terminated White's employment on November 21, 2019 (NYSCEF Doc. Nos. 43 and 91 at ¶103).
Scripps Defendants
Scripps Defendants argue that before putting White on the First PIP on July 24, 2019, concerted efforts were made by Nexstar Defendants in the first two quarters of 2019 to encourage White to improve his poor new business sales. White failed to meet the expectations of an account executive despite Scripps Defendants repeated communication with him about his poor sales performance, which White was advised could not be tolerated. White was offered weekly report-outs to Schwartz regarding sales activities, one-on-one meetings with Tzianabos; and the utilization of an outside sales consultant. Scripps Defendants did not want to terminate White's employment, so the First PIP was extended thirty days. White knew he would be terminated if he failed to achieve the goals of the PIP Extension, so when White fell short of the requirements, he was terminated.
Scripps produced its anti-harassment and anti-discrimination policy as well as testimony that employees and supervisors are required to participate in trainings to prevent discrimination and harassment in the workplace (NYSCEF Doc. Nos. 76; 72 at 29:22- 30:6; 73 at 37:21-38:8; 75 at 15:23-16:10).
Scripps Defendants maintain that White cannot show that he was terminated under an inference of age discrimination under NYSHRL and NYCHRL; assuming arguendo, even if White could meet his burden Scripps Defendants have shown a legitimate business reason to terminate White for failing to meet the goals set forth in the First PIP and PIP Extension; and that White cannot show that that the reasons offered by Scripps Defendant were pretextual.
Analysis
NYSHRL and NYCHRL both prohibit discrimination in employment on the basis of age (Gregorian v. New York Life Ins. Co., 211 a.d.3d 711, 712 (2d Dept 2022) (internal citations omitted) and are worded similarly, however, their analysis must not be conflated (Golston-Green v. City of NY, 184 A.D.3d 24, 34 [2d Dept. 2020]) (the Supreme Court erred in analyzing the plaintiff's state and city claims together).
NYSHRL
For White to show intentional discrimination in violation of NYSHRL by Nexstar Defendants and Scripps Defendants, White must establish that (1) he is a member of a protected class due to his age, (2) he was qualified to hold the position of account executive at WPIX, (3) he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." See Ayers v Bloomberg, L.P., 203 A.D.3d 872, 874 (2d Dept. 2022) citing Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004). If White is able to carry his burden, the burden then shifts to employers Nexstar Defendants and Scripps Defendants "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision." Ferrante v. Amer. Lung Ass'n, 90 N.Y.2d 623, 629 (1997); see also see also, McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). To prevail on their motions for summary judgment under NYSHRL, Nexstar Defendants and Scripps Defendants must demonstrate either White's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of triable issue[s] of fact as to whether the explanations were pretextual (Lefort v Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708, 710 [2d Dept 2022]) (internal quotations omitted) citing Reichman v City of New York, 179 A.D.3d 1115, 1117 (2d Dep't 2020), quoting Langton v Warwick Val. Cent. Sch. Dist., 144 A.D.3d 867, 869); see also, Gregorian v. NY Life Insurance Company 211 A.D.3d 711, 712 (2d Dept. 2022); Ferrante v. Amer. Lung Ass'n, 90 N.Y.2d 623,629 (1997), and White's Memorandum of Law [NYSCEF Doc. No. 92] at Pg.1.
Under NYSHRL and NYCHRL an "'employer' is defined as having four or more employees, however, under the NYCHRL, a supervisory or other employee may be held individually liable regardless of whether he or she was an owner or had the authority to make personnel decisions (see Villar v. City of New York, 135 F.Supp.3d 105, 143 (S.D.N.Y. 2015) ("The NYCHRL . . . provides a broader basis for direct individual liability than the NYSHRL because it applies to employees regardless of ownership or decision making power." (internal quotation marks and citation omitted)); Zhang v. Jenzabar, Inc., 12-CV-2988 (RRM) (RER), 2015 U.S. Dist. LEXIS 41254, 2015 WL 1475793, at *13 (E.D.N.Y. Mar. 30, 2015) (permitting plaintiff's discrimination claim under the NYCHRL to proceed against a defendant that was not her employer).
Nexstar Defendants
Courts routinely hold that performance improvement plans, or negative reviews or scrutiny, are not adverse employment actions. E.g., Tihan v. Apollo Mgt. Holdings, L.P., 2021 N.Y. Misc. LEXIS 334, at *26 (Sup Ct., N.Y. Cnty., Jan. 27, 2021) (holding that "[a]n employee's placement on a PIP does not qualify as an adverse employment action since the goal of a PIP 'was to improve …performance and avoid…termination'", noting that "plaintiff's placement on a PIP is not an adverse employment action where, despite the fact that he could be terminated if he did not comply, the material terms of his employment did not change") (internal quotations and citations omitted); see also, Watkins v. NY City Health & Hosps. Corp., 2018 N.Y. Misc. LEXIS 2091, at *12-13 (Sup Ct., N.Y. Cnty., May 11, 2018); Szarzynski v Roche Labs., Inc., 2010 U.S. Dist LEXIS 17883, at *23-24 [WDNY Mar. 1, 2010, No. 07-CV-6008]), (it is essential to distinguish "material adversity" from trivial harms". . ."[t]here is no bright-line rule as to what constitutes an adverse employment action. . . to qualify as materially adverse a change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities'").
Under the Age Discrimination in Employment Act (ADEA), which is not as liberally construed as the NYSHRL and NYCHRL, an employee's placement on a PIP that directly leads to his or her termination can be viewed as an adverse employment action . See Gonzalez v. Carestream Health, Inc., 2016 WL 2609808, (W.D.N.Y. 2016) (finding that placement on a PIP constitutes an adverse employment action under the more stringent ADEA).
Here, although White found the timetable within which he was to perform under the First PIP unattainable, and had the added work responsibility of prospecting new advertisers 20 times a week While on the PIP (NYSCEF Doc. No. 73 at 175:19-22), White has not established that there was a change in his compensation or in terms, conditions, or privileges of his employment (Executive Law § 296 [1][a]); therefore, White has not shown that his placement on the First PIP by Nexstar Defendants was an adverse employment action. Nexstar Defendants' motion for summary judgment on the first cause of action alleging a violation of NYSHRL is granted.
Scripps Defendants
Scripps Defendants argue that White "falls short of the fourth element of his prima facie burden in connection with his claim of age discrimination under NYSHRL . . . Specifically, [White] cannot prove that [Scripps] Defendants terminated his employment under circumstances giving rise to an inference of discrimination[,]"conceding that White has met his prima facie burden on the first three prongs of intentional discrimination under NYSHRL, including that his employment termination was an adverse employment action (see Scripps' Memorandum in Support at pg. 5, NYSCEF Doc. No. 65).
Based on Scripps Defendants' concession, the fourth prong, White need only show whether the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Twenty (20) days before White was placed on the First PIP by Tribune Media, Schwartz and Tzianabos, and three (3) months before being placed on the PIP Extension by Scripps Defendants, White received favorable reviews, and accolades for his digital sales performance, (Exhibit 23 at Bates Stamp SCRIPPS 000404and 000406 [NYCEF Doc. No. 116]; see also Exhibit 2 White's Annual Review [NYSCEF Doc. Nos. 95]; NYSCEF Doc. No. 72 at 81:20-83:1). See, Barone v. Emmis Communications Corp., 151 A.D.3d 523 (1st Dept. 2017)(finding that plaintiff raised an issue of fact as to pretext where plaintiff had prior favorable performance reviews before her vacation).
Further, White argues he met five out of the six expectations placed upon him in the First PIP, and it should not have been extended (NYSCEF Doc. No. 142 at 247:13-248:13; Doc. No. 139 at Bates Stamp Scripps 000040-42) which is substantiated by Williams who testified that if White had made sufficient performance improvements, he would not have to meet 100% of the expectations placed on him in the First PIP in order to be taken off of it (NYSCEF Doc. No. 74 at 91:12-92:3). This raises a triable of fact issue as to whether Scripps Defendants' decision to place White on the PIP Extension, including deciding to terminate his employment, was pretextual. Moreover, White's argument that closing three accounts in a quarter was already difficult and by adding a fourth account to close during the PIP Extension period, raises the issue of whether White was set up to fail and/or the PIP extension was a pretext to terminate White after the merger, since Zackay's testimony shows that the decision to terminate White was made by Tzianabos prior to November 21, 2019, the conclusion date of the PIP extension. Grella v St. Francis Hosp., 149 A.D.3d 1046, 1048 (2d Dept. 2017)(While the evidence may have revealed triable issues of fact as to whether Shuman's performance warranted negative employment evaluations, or placement on the FPPE in the first instance, "the question is not whether the decision was correct or wise, but whether the reason for the decision was a pretext for discrimination"); see also, Forrest v Jewish Guild for the Blind, 3 N.Y.3d at 306; Santiago-Mendez v City of New York, 136 A.D.3d 428, 429 (1stDept. 2016)(finding "that the adverse action was made under circumstances giving rise to an inference of discrimination"). Finally, White showed he closed three of four accounts under the PIP Extension, which according to Williams should have been sufficient to prevent his termination.
White has carried his burden under NYSHRL, showing that the circumstances surrounding his termination give rise to an inference of discrimination. Gregorian v. New York Life Ins. Co., 211 A.D.3d 711, 713(2d Dept. 2022) (summary judgment denied where plaintiff set forth a prima facie case of age discrimination). Further, the nondiscriminatory reasons adduced by Scripps Defendants for Schwartz and Tzianabos placing White on the First PIP and PIP Extension, and Scripps termination of White's employment, raise issues of fact and credibility for the jury to determine. Id. (finding that plaintiff submitted evidence that he met all of the requirements in his final warning letter, except one thus raising a triable issue of fact that he terminated for reasons unrelated to that unmet requirement); Bilitch v. New York City Health and Hospitals Corp., 148 A.D.3d 999 (2d Dept. 2021).
Scripps Defendants' motion for summary judgment on the first cause of action alleging a violation of NYSHRL is denied.
NYCHRL
Nexstar Defendants and Scripps Defendants
Claims under the NYCHRL must be analyzed under both McDonnell Douglas Corp. v Green analysis and the "newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing a summary judgment motion" Sanderson-Burgess v City of New York, 173 A.D.3d 1233, 1235 (2d Dep't. 2019) quoting Persaud v Walgreens Co., 161 A.D.3d 1019, 1020 (2d Dept. 2018). "The NYCHRL is [to be] construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" Lefort v. Kingsbrook Jewish Medical Center, 203 A.D.3d at 708 (internal quotations and citations omitted); see also, Albunio v City of NY, 16 N.Y.3d 472, 477-478 (2011), Administrative Code § 8-130 and Administrative Code § 8-107 [7]). "[A] plaintiff need not establish that she or he was subjected to a materially adverse change to terms and conditions of employment, but only that she or he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic." See Golston-Green, 184 A.D.3d 24, 38 (2d Dept. 2020) (internal quotations omitted). "Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes-McDonnell Douglas, mixed motive, direct evidence, or some combination thereof" Bilitch v. NY City Health & Hosps. Corp., 194 A.D.3d 999, 1002 (2d Dept. 2021) (internal quotations and citations omitted).
"The NYCHRL is to be construed more broadly than its state and federal counterparts," Rodriguez v. Verizon Telecom, No. 13cv6969 (PKC) (DF), 2014 U.S. Dist. LEXIS 167833, 2014 WL 6807834, at *20 (S.D.N.Y. Dec. 3, 2014), such that a plaintiff need only show that he or she was treated "less well [by the defendant] than other similarly situated employees, at least to some degree for discriminatory reasons," Id. (citation omitted); accord Philip v. Gtech Corp., No. 14cv9261 (PAE), 2016 U.S. Dist. LEXIS 94777, 2016 WL 3959729, at *29-30 (S.D.N.Y. July 20, 2016) (explaining that the NYCHRL allows [*25] for a "simplified" discrimination inquiry).
"A showing of disparate treatment--that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group--is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case" Diaz v. Minhas Construction Corp., LLC, 188 A.D.3d 812, 814 (2d Dept. 2020) (internal quotation and citation and quotations omitted). "Whether two employees are similarly situated ordinarily presents a question of fact for the jury" (Id. quoting Graham v. Long Is. R.R., 230 F.3d 34, 39 [2d Cir. 2000]). "When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances" (Id. at quoting Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001)(internal quotation marks omitted)).
The testimony shows that Tauber, Jane and Pressman were treated differently in how their performance was evaluated in meeting their new business and digital quarterly goal. White argues that Defendants included revenue from inherited accounts in evaluating the performance of Tauber, Jane, and Pressman while removing revenue White generated from inherited accounts for new business and digital sales since Nexstar Defendants admits that they did not have a written policy concerning the treatment of inherited accounts (NYSCEF Doc. No. 105; Doc. No. 72:99:24-102:5).
Further, it is alleged that the Younger Account Executives, who did not meet their new business goals over a similar amount of time as White were not placed on a PIP. (Exhibit 5 at NYSCEF Doc. No. 26, Exhibit 11, at NYSCEF Doc. No. 132, Exhibit 12 at NYSCEF Doc. No. 133, ); and Exhibit A, at NYSCEF Doc. No. 154). Moreover, on March 28, 2019, Schwartz told White he ranked number six on a team of nine, but those account executives ranking lower than White were not placed on a PIP (NYSCEF Doc. 59).
Therefore, based on the foregoing, Nexstar Defendants and Scripps Defendants have failed to show under NYCHRL "that there is no evidentiary route that could allow a jury to believe that discrimination played a role in [the] challenged actions" (Gregorian v NY Life Ins. Co., 211 A.D.3d at 712 quoting Ellison v Chartis Claims, Inc., 178 A.D.3d 665, 668(2d Dept 2019); see also, Moise v Uptown Communications & Elec., Inc., 134 A.D.3d 782, 783 (2d Dep't 2015); Bennett v. Health Management Sys., Inc. 92 A.D.3d 29, 43 (1st Dept. 2011) ("Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons.")
Nexstar Defendants' and Scripps Defendants' motions for summary judgment on the third cause of action alleging a violation of NYCHRL are denied.
Aiding and Abetting
White pleads that Schwartz knowingly or recklessly aided and abetted Tzianabos in discriminating against him by helping Tzianabos in placing White on the First PIP and PIP Extension and in ultimately terminating White's employment in violation of NYSHRL and NYCHRL, (NYSCEF Doc. No. 1, at ¶¶69-73). Scripps Defendants seek dismissal of these claims, arguing that even if White's age discrimination claims remain, White's claims against Schwartz should be dismissed because they are premised on the allegedly discriminatory actions that gave rise to the age discrimination claims against Schwartz (NYSCEF Doc. No. 65 at 19-20); see also, NYSCEF Doc. No. 142 at 277:2- 22.
White contends that the aiding and abetting allegations against Schwartz are not based on the discriminatory actions that gives rise claims against Schwartz. Rather, his aiding and abetting claims against Schwartz relate to Schwartz assisting Tzianabos in Tzianabos' discrimination against White (Plaintiff's Memorandum of Law in Opposition, NYSCEF Doc. No. 120 at 20-21).
"It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under [Executive Law § 296], or to attempt to do so" (Executive Law § 296 [6]); see, Ananiadis v Mediterranean Gyros Prods., Inc., 151 A.D.3d 915, 917 (2d Dep't 2017). "Under the aiding and abetting language of N.Y. Exec. Law § 296(6), a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the New York Human Rights Law, N.Y. Exec. Law § 296." Patane v Clark, 435 F.Supp.2d 306, 2006 U.S. Dist. LEXIS 42581 (S.D.N.Y. 2006), aff'd in part and rev'd in part, 508 F.3d 106, 2007 U.S. App. LEXIS 27391 (2d Cir. N.Y. 2007)(emphasis added). Further, under the NYCHRL, a supervisory or other employee may be held individually liable regardless of whether he or she was an owner or had the authority to make personnel decisions (see Villar v. City of New York, 135 F.Supp.3d 105, 143 (S.D.N.Y. 2015) ("The NYCHRL . . . provides a broader basis for direct individual liability than the NYSHRL because it applies to employees regardless of ownership or decision making power." (internal quotations and citations omitted)); Zhang v. Jenzabar, Inc., No. 12-CV-2988 (RRM) (RER), 2015 U.S. Dist. LEXIS 41254, 2015 WL 1475793, at *13 (E.D.N.Y. Mar. 30, 2015) (permitting plaintiff's discrimination claim under the NYCHRL to proceed against a defendant that was not her employer).
As it remains to be determined by a jury whether Tzianabos discriminated against White, whether Schwartz aided and abetted Tzianabos in such discrimination against White also remains to be determined, Scripps Defendants' motion to dismiss the second and fourth causes of action is denied.
Nexstar Defendants' and Scripps Defendants' remaining contentions have been considered and deem them to lack merit or to be moot in light of the foregoing.
Accordingly, it is hereby
ORDERED, that Nexstar Defendants' motion for summary judgment dismissing the First Cause of Action alleging a violation of New York State Human Rights Law is granted; and it is further
ORDERED, that Nexstar Defendants' motion for summary judgment dismissing the Third Cause of Action alleging a violation of New York City Human Rights Law is denied; and it is further
ORDERED, that Scripps Defendants' motion for summary judgment dismissing the First Cause of Action alleging a violation of New York State Human Rights Law is denied, and it is further
ORDERED, that Scripps Defendants' motion for summary judgment dismissing the Third Cause of Action alleging a violation the Third Cause of Action alleging a violation of New York City Human Rights Law is denied; and it is further
ORDERED, that Scripps Defendant' motion for summary judgment on the Second Cause of Action and the Fourth Cause of Action against Michael Schwartz for aiding and abetting in discrimination is denied; and it is further
ORDERED, that due to this action being discontinued against Bart Feder, the caption is amended as follows:
[INTENTIONALLY LEFT BLANK]
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER
JON WHITE, Plaintiff, - against
SCRIPPS MEDIA, INC., NEXSTAR MEDIA GROUP, INC., TRIBUNE MEDIA COMPANY, CHRISTOPHER TZIANABOS, and MICHAEL SCHWARTZ, Defendants.
Index Number 52248/2020
And it is further
ORDERED, that the parties shall appear for a settlement conference on May 31, 2023 at 11:15a.m. via Microsoft Teams Click here to join the conference; and it is further
ORDERED, that relief requested that has not been addressed, is denied.
This constitutes the Decision and Order of the Court.