The opinion of the court was delivered by: Chin, District Judge.
In this employment discrimination case, plaintiff Lawrence J.
Connell alleges that defendant Consolidated Edison Company of New
York, Inc. ("Con Edison") unlawfully terminated his employment
because of his age. Defendant moves for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Defendant
presents compelling evidence that Connell was terminated not
because of his age — he was only forty-three years old at the
time of his discharge — but because he and three other
supervisory employees engaged in inappropriate conduct toward a
co-worker who had reported an environmental infraction. Indeed,
the record shows that all four employees were discharged for
violating Con Edison's strict policy against retaliating against
employees who raise environmental concerns. On the record before
the Court, no reasonable jury could conclude that defendant
discharged plaintiff because of his age. Accordingly, defendant's
motion is granted and the complaint is dismissed.
Construed in the light most favorable to plaintiff, the facts
are as follows:
1. Plaintiff's Employment with Defendant
Plaintiff was nineteen years old when Con Edison, one of the
nation's largest energy companies, hired him as a general utility
worker. (Pl. Dep. at 24). In 1992, plaintiff was promoted to a
supervisory position within the Bronx Customer Service Department
("CSD"). (Id. at 26-28). As part of a company-wide
reorganization plan in 1996, defendant transferred him to the
Bronx Gas Distribution Services ("GDS"), a department within CSD.
Plaintiff's responsibilities at GDS included supervising
installation or replacement of gas meters on a non-emergency
In 1997, Connell received an incentive award of $8,500 based on
positive performance evaluations he received from his
supervisors. Minto Soares, Vice President of CSD, and Anthony
Codner, General Manager of GDS, both approved the award.
2. Defendant's Environmental Awareness Program
On April 21, 1995, in connection with a criminal proceeding
arising out of an explosion of an asbestos-insulated steam pipe
in or around Gramercy Park, Judge John S. Martin of this Court
appointed a monitor,
Mitchell Bernard, Esq. (the "Monitor"), to oversee Con Edison's
environmental activities. (Cowie Aff. ¶¶ 4-5; Sobin Aff., Ex. B
at 131, 134-35). In the Monitor's first report issued in October
1995, he criticized the actions of certain supervisors who had
attempted to intimidate an union employee who had raised
environmental concerns. As a direct result of that report,
defendant pledged to this Court that it would not tolerate
intimidation or mistreatment of employees who reported
environmental violations. (Cowie Aff. ¶ 7). Defendant revised its
Code of Conduct to institute a "no retaliation policy" and
distributed notices throughout the company publicizing the change
in 1996. (Sobin Aff., Exs. D, E). Defendant also developed new
procedures to properly handle hazardous materials and appointed
environmental ombudsmen to its local offices to oversee the
policy changes. (Codner Aff. ¶¶ 12-13). Defendant assigned Kevin
Kelly to act as GDS's ombudsman.
On March 17, 1997, operating supervisor James Murphy found an
improperly disposed of mercury thermostat in the closet. (Sobin
Aff., Ex. C at 179). That same evening, Joseph Miller, an
operating supervisor assigned to the night shift, found the
thermostat in the drawer of a desk shared by all the operating
supervisors. Following defendant's recently revised procedure on
handling hazardous materials, Miller placed the thermostat into a
double zip lock bag, disposed of the thermostat into the
appropriate container, and filled out the necessary paperwork.
(Codner Aff. ¶ 12; Miller Aff. ¶ 8). On March 18, 1997, Miller
sent an e-mail to his supervisor Edward Gaibrois and to Kelly
informing them of his actions. (Miller Aff. ¶ 13; Id., Ex. A).
That morning, Gaibrois called a meeting of operating supervisors,
including Murphy and plaintiff, to express his concern over a
violation of the company's procedure on the disposal of hazardous
materials. Following the meeting, Murphy called Miller at home to
express his disapproval of Miller's actions in reporting the
finding of the thermostat to supervisors. (Miller Aff. ¶ 16).
When Miller came to work that evening, he found a shovel with a
tag that had his name on it on the operating supervisors' desk.
(Id. ¶ 17). Miller felt that the shovel was left as a message
to him that someone either "wanted to `bury' [him]" or wanted him
to go back to the construction department where he used to work.
On March 21, 1997, plaintiff, Murphy, George Kurschner, and
several other operating supervisors were in the office when
plaintiff sent an anonymous e-mail ("March 21st E-mail") to
Miller. (Pl. Dep. at 181). Plaintiff admitted that he logged onto
the computer, with Kurschner's help, using the Bronx Control
Center's ("BCC") password in an attempt to disguise his identity.
(Id. at 189-90). The e-mail read:
Now that you've solved the case of the missing
paperwork for the thermostat we have bigger and
better things for you to tackle. Save the whales,
once saved check for mercury and paperwork.
(Miller Aff., Ex. B). The return address read "From ECGOP.BX."
Miller called Kelly informing him of the March 21st E-mail,
Murphy's phone call, and the shovel incident. Miller asked Kelly
to put a stop to what Miller considered to be harassing behavior
by his co-workers. (Miller Aff. ¶ 25).
On March 24, 2000, plaintiff approached Miller after learning
that Miller had reported the March 21st E-mail to supervisors.
Miller informed plaintiff that Kelly had begun an investigation
into the identity of the person who had sent the e-mail. (Pl.
Dep. at 213; Miller Aff. ¶ 27). When Miller found out that it was
plaintiff who had sent him the e-mail, he offered to ask Kelly to
stop the investigation because he considered plaintiff to be a
friend. Plaintiff told Miller that if he thought the e-mail
constituted harassment, he should let the investigation continue.
(Pl. Dep. at 310).
GDS also began an internal investigation into Miller's
allegations of harassment by his co-workers. (Codner Aff. ¶ 14).
During a March 27, 1997 interview by Kelly and John Hettrich,
General Manager of Bronx Operation Services, plaintiff admitted
receiving the BCC's password from Kurschner and sending the March
21st E-mail. (Pl. Dep. at 213-14).
In April 1997, GDS asked defendant's Auditing Department ("AD")
to review Miller's allegations of harassment. (Amrhein Aff. ¶
7).*fn1 Defendant assigned Joseph Donner, an auditor, to
investigate the case. In Donner's initial memo to Soares, he
concluded that a "concerted effort by a number of GDS supervisors
to harass Miller" had occurred because Miller had reported the
finding of the thermostat. (O'Brien Aff., Ex. A). In a follow-up
report to Soares, Donner confirmed his previous findings.
Codner, Janis Amrhein, Human Resources Manager, and Marilyn
Benetatos, then-Manager of Organization Development, discussed
the appropriate course of action to take with respect to the four
supervisors — Joseph DeStafano, Murphy, Kurschner, and plaintiff
— accused of having harassed Miller. (Codner Aff. ¶ 17; Cowie
Aff. ¶ 10). The group recommended to Soares that the four
supervisors be suspended. (Amrhein Aff. ¶ 10; Codner Aff. ¶ 19).
After review of all the evidence, Soares concluded that the four
individuals had harassed Miller because he had reported the
environmental violation to his supervisors. In accordance with
defendant's "no ...