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SHARKEY v. LASMO & ULTRAMAR CORP.

January 21, 1998

DANIEL J. SHARKEY, Plaintiff, against LASMO (AUL LTD.) and ULTRAMAR CORPORATION, Defendants.

William C. Conner, Senior United States District Judge.


The opinion of the court was delivered by: CONNER

Conner, Senior D.J.

 Plaintiff Daniel Sharkey brings this action against defendants Lasmo (AUL Ltd.) ("Lasmo") and Ultramar Corporation ("Ultramar") pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Sharkey, a Vice President and Manager for Ultramar Energy Limited ("UEL") during all relevant times, alleges that due to his age, he was denied employment opportunities by defendants at the Lasmo plc companies created through a merger and reorganization involving UEL, and was ultimately terminated. Specifically, Sharkey alleges that he was offered a less favorable employment package than were two younger UEL executives, and that defendants failed to offer him other available positions for which he was qualified, before terminating his employment. Defendant Lasmo now moves for summary judgment pursuant to Fed. R. Civ. P. 56. Both Sharkey and defendant Ultramar oppose Lasmo's motion.

 BACKGROUND

 The facts concerning this action are set forth in the Court's prior Opinion, Sharkey v. Lasmo, 906 F. Supp. 949, 953-54 (S.D.N.Y. 1995), and familiarity with that decision is presumed. The facts pertinent to the instant motion are as follows. Plaintiff was terminated on July 31, 1992, pursuant to a merger and reorganization by Lasmo plc of Ultramar plc and its subsidiaries. Lasmo plc had acquired Ultramar plc and UEL, among others, in late 1991 or early 1992 through a hostile takeover. UEL was an affiliate of defendant Lasmo *fn1" and a subsidiary of Ultramar plc. In 1992, Lasmo plc planned to consolidate various Ultramar plc businesses into a new corporation, namely, defendant Ultramar. *fn2"

 In 1992, Patrick Guarino, Senior Vice President and General Counsel of both Lasmo and Ultramar and Zav Patel, Vice President of Supply for Ultramar Canada, offered executive positions with defendant Ultramar to Sharkey, who was then 59 years old, and to two other UEL Vice Presidents, Patrick McAward, who was 35, and Michael Kuzmin, who was 42. The two younger UEL Vice Presidents were offered substantially more favorable employment than was Sharkey, including (1) a sign-on bonus equivalent to one-half year's salary in the form of restricted stock in defendant Ultramar; (2) stock options in defendant Ultramar; (3) a relocation allowance up to $ 15,000; and (4) an "evergreen" agreement providing for automatic extension of the term of employment so that it would never be less than two years, and two years severance pay upon separation. Sharkey alleges that defendants did not offer him these incentives because defendants did not want to be bound to Sharkey for more than two years, because he was 59 years old. Sharkey also alleges defendants did not believe that he, because of his age, would risk rejecting the offer. Finally, Sharkey alleges that defendants did not offer him other available positions because of his age.

 In April 1993, Sharkey filed an age discrimination charge with a local office of the Equal Employment Opportunity Commission ("EEOC"). When plaintiff filed this charge, he was not represented by an an attorney, and he did not consult with an attorney regarding the charge until well after it had been filed. The charge named defendant Lasmo as a respondent and asserted that "two younger men were offered better terms than [he was] and had the option of staying longer [in Canada] . . . if they wished to [remain]." Sharkey Aff. Ex. D. Sharkey claimed that he had "been discriminated against because of [his] age in violation of Title VII [sic] of the Age Discrimination Act." Id. Sharkey did not mark the box labeled "Continuing Action" on the charge. See id.

 Before filing the charge, Sharkey completed an Intake Questionnaire provided to him by the EEOC. Sharkey's questionnaire claims that he had been discriminated against because of his age. Sharkey Aff. Ex. E, P 2. Additionally, the questionnaire shows that Sharkey had checked the "failure to hire" box, along with boxes labeled "discharge/layoff," "wages," and "involuntary retirement." Id. at PP 5(a), (d), (e), (f). The questionnaire also alleges that Sharkey was not offered a job which was ultimately filled by Roger Rawstron, a "new hire." See id. at PP 6, 8(c) - (d). In an unsworn statement attached to the questionnaire, Sharkey adds that he was "passed over [and] . . . never interviewed for [a] position" which had "opened up" with "Lasmo . . . [for] which [he] was qualified." See Ex. E.

 Sharkey filed a complaint with this Court in June 1994 (the "Complaint" or "Cplt."). The Complaint alleged that Sharkey was "denied employment on the basis of his age," when he was offered a "less favorable" employment package than were the two younger UEL Vice Presidents and "not offered other available positions," in violation of the ADEA. Cplt. at PP 16, 18-19.

 In December 1995, the Court denied motions to dismiss the Complaint and for summary judgment by defendant Ultramar. Sharkey, 906 F. Supp. at 954. Our Opinion was based on the Report and Recommendation of Magistrate Judge Lisa Margaret Smith (the "Report" or "Rpt"). *fn3" In her Report, Judge Smith had recommended denial of Ultramar's motion because, in her opinion, there existed a genuine issue of material fact whether Ultramar or Ultramar Canada, Inc. had made plaintiff the allegedly discriminatory offer of employment and, even if Ultramar Canada had made the offer, a material issue of fact existed as to "whether Ultramar Canada was a totally foreign corporation and therefore exempt from the ADEA." Rpt. at 30, 34. Specifically, Judge Smith concluded that "the trier of fact could reasonably find that defendant Ultramar could . . . be found to bear liability for the alleged discrimatory acts of Mr. Guarino," because "the efforts to staff the new business in Canada were undertaken in the interests of both . . . Lasmo and Ultramar." Rpt. at 30, 32. Upon Ultramar's objections, we reviewed the case de novo pursuant to 28 U.S.C. § 636(b)(1), and adopted Judge Smith's Report in its entirety. Sharkey, 906 F. Supp. at 953-54, 957.

 Defendant Lasmo now moves for summary judgment, asserting that it can not be held liable for the allegedly discriminatory offer, because it was made "for and on behalf of Ultramar . . . and/or Lasmo plc[, Lasmo's parent]," and alternatively, because it is not subject to the ADEA in connection with the offer. D.'s Mem. of Law in Supp. of Mot. for Summ. Jgt. at 4, 6 ("D.'s Mem."). Sharkey opposes the motion, claiming that Lasmo is liable for the offer and for failing to offer Sharkey other available positions for which he was qualified. See Pl.'s Mem. of Law in Opp'n to Mot. for Summ. Jgt. at 9 ("Pl.'s Mem."). Defendant Ultramar also opposes the motion, contending that there exists a material question of fact as to which company made the offer. See Ultramar's Mem. of Law in Opp'n to Mot. for Summ. Jgt. at 3. For the reasons discussed hereinafter, we grant defendant Lasmo's motion in part and deny it in part.

 DISCUSSION

 I. Summary Judgment Standard

 A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts warrant judgment for the moving party. FED. R. CIV. P. 56(c); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment, and "the court is required to resolve all . . . inferences in favor of the party against whom summary judgment is sought." Aetna, 46 F.3d at 202. The court will draw inferences in favor of the nonmoving party, however, only upon determining that such inferences are reasonable in light of the evidence presented. See Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). These inferences are based on the record as a whole. See FED. R. CIV. P. 56(d); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 II. The Offer to Work in Canada

 A. Defendant Lasmo's Liability

 On Ultramar's motion, we held that "an issue of fact exists as to which corporate entity [Ultramar or Ultramar Canada] offered employment to plaintiff," and therefore, that "the trier of fact could reasonably find . . . defendant Ultramar [liable] for the allegedly discriminatory acts of Mr. Guarino." Sharkey, 906 F. Supp. at 954; Rpt. at 32, 34. Lasmo now contends that it can not be held liable for the allegedly discriminatory offer, because it was made "for and on behalf of Ultramar . . . and/or Lasmo plc's Canadian operation," and because it is controlled by Lasmo plc, a foreign company. D.'s Mem. at 4, 6; Lasmo's Reply Mem. on Mot. for Summ. Jgt. at 3 ("Reply"). Sharkey, on the other hand, argues that the offer was made "for and on behalf" of defendants Ultramar or Lasmo for employment at Ultramar, an American corporation. Sharkey also alleges that Lasmo controlled Ultramar at the time the offer was made, and thus stood to profit from the formation of the company. See Sharkey Mem. at 2.

 Lasmo's argument misconstrues our prior ruling. On Ultramar's motion, we did not hold that the offer was made solely "for and on behalf" of Ultramar or Ultramar Canada; rather, we declined to dismiss Ultramar from the case, because the evidence suggested that it could be held liable for Guarino's acts. Because the prior motion was made solely by Ultramar, we were confronted only with the question of Ultramar's liability. In that Opinion, we suggested, however, that the evidence showed that the offer was made on behalf of both defendants. *fn4" See Rpt. at 30. Furthermore, we found that the offer was for work at defendant Ultramar. Rpt. at 3. Given plaintiff's allegations -- that defendant Lasmo controlled defendant Ultramar -- and the undisputed facts -- that at the time of the offer, Guarino was General Counsel of both defendants, and Lasmo plc was in the process of a complex reorganization -- it simply does not follow that because Lasmo may not have made the initial offer, the offer was made solely for the benefit of Ultramar or Ultramar Canada. Considered in the light most favorable to plaintiff, we cannot say as a matter of law that the offer was not made "for and on behalf" of defendant Lasmo.


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