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August 16, 2000


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.


A. The Facts

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 basis.

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

3. The Incident

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. (Id.).

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. (Id.).

4. Plaintiff's Discharge

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 ...

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