(W.D.N.Y. 1991) (granting summary judgment to employer and finding no
indirect proof of causal nexus where there was seven-month gap between
protected activity and adverse employment action).
Notwithstanding Williams' apparent failure to state a prima facie claim
for retaliatory discharge, the court will again take up a limited
analysis of whether Williams has shown that Dictaphone's proffered
reasons for firing him are a mere pretext for retaliatory animus. See
infra Discussion, Part IV, B, 2.
2. Dictaphone's Proffered Reasons and Williams' Showing of Pretext
a. Communication with Kamenir.
Kamenir enumerates many instances where Williams failed to communicate
with him appropriately. As a general matter, Kamenir believes that
Williams inappropriately addressed important issues by calling Kamenir in
the evening and leaving messages on his voicemail. See Item 33, Exh. 7,
p.90 (stating that Williams constantly "hid behind voicemail"). For his
part, Williams denies that he ever failed to communicate with Kamenir
appropriately. Williams insists that he followed standard operating
procedure at Dictaphone whenever he communicated with Kamenir via
voicemail. Item 26, Williams, ¶ 80-82, 86.
Kamenir also related an incident in August 1996 where Williams failed
to give more than one day's notice of his inability to attend a training
session in Philadelphia. See Item 18, Exh. 12; and Item 33, Exh. 7, pp.
30-33. Here, Williams maintains that he first told Kamenir in July 1996
that he would probably not attend the training session in August due to
ongoing medical problems. See Item 26, Williams, ¶¶ 83-85. Williams
then met with his doctor in early August and was instructed not to attend
the training session. Immediately thereafter, Williams states that he
informed Kamenir that he would not be able to attend. See id.
Finally, Kamenir states that Williams took medical leave in December
1996 and completely failed to keep Kamenir up to date on the dates of his
sick leave. Kamenir alleges that Williams knew on December 5, 1996, that
he was going to have major surgery on December 11, 1996. Yet, Kamenir
claims, Williams failed to inform Kamenir of that fact until December
10, 1996. See Item 18, Exh. 22.*fn12 Williams vigorously disputes this
version of the facts. First, Williams states that he advised Kamenir in
early December 1996 that his surgery was imminent. At that time, Williams
told Kamenir that he would advise him of the specific date as soon as it
was set. Next, Williams maintains that his doctor confirmed his surgery
date on December 6, 1996. Immediately thereafter, Williams called Kamenir
and left a message that his surgery would be on December 11. Williams
avers that by calling Kamenir on December 6, he gave Kamenir as much
advance notice as possible. See Item 26, Williams, ¶¶ 87-90.
b. Client Relations.
Kamenir's complaints regarding client relations arise from two
incidents. The first incident occurred in the fall of 1996 and concerned
a Dictaphone customer by the name of Practicare Medical Management
("Practicare"). Practicare accused Dictaphone salesman Scott McKeon of
forging the signature of a Practicare employee on a purchase order.
Williams was responsible for resolving the situation. Kamenir questioned
the way in which Williams handled the dispute and suggested that Williams
had covered up for McKeon's fraud. See Item 16, ¶¶ 47-48; Item 18,
Exh. 14. Williams denies that there was a forgery or a cover-up. Item
26, McKeon Affidavit. Furthermore,
Williams insists that the problem with Practicare was resolved to "all
parties [sic] satisfaction" once Williams returned from sick leave in
early 1997. Item 26, Williams, ¶ 98.
The second incident concerned Williams' alleged failure to handle a
billing complaint from a Buffalo law firm. Item 18, Exh. 15. Williams
maintains that his failure to timely respond to this customer's complaint
was due to the fact that he was out on medical leave at the time that the
customer raised the complaint. See Item 26, Williams, ¶ 98. In any
event, Williams argues that it was clearly Kamenir's responsibility to
handle this complaint because Regional Vice Presidents were obligated to
act in place of District Managers who were out on leave. Id. 99.
c. Sales figures.
As set forth supra, Williams attained only 71 percent of his
year-to-date sales quota for the month of April 1996; 23 percent for
May; 26 percent for July; 48 percent for August; 21 percent for
September; and 59 percent for October. See Item 18, Exh. 18; and Item
28, Exh. 1, p.86. In addition, Williams reached only 74 percent of his
year-to-date sales quota as of May 1996. Finally, Williams finished 1996
by reaching only 49 percent of his sales quota for the year. See Item
18, Exh. 3, p.51. After being placed on a Work Plan and Improvement
Plan, Williams failed to improve his sales figures significantly. Item
33, Exh. 7, pp. 37, 47-50, 99-101, 118-19. As a result of his continued
poor performance, Kamenir contacted Williams by a letter dated March 6,
1997. In that letter, Kamenir set forth Williams' sales figures for
November and December 1996, and January and March 1997. In each of those
four months, Kamenir reported that Williams was well under quota. See
Item 18, Exh. 23.
On June 10, 1997, Kamenir sent Williams a letter in which he summarized
his review of Williams' progress. Item 18, Exh. 21. In that letter,
Kamenir noted that Williams had attained less than 15 percent of his
year-to-date quota for May 1997. Id.*fn13 Kamenir warned Williams that
he faced imminent discharge if he did not immediately improve his
district's performance. By June 1997, Kamenir determined that Williams'
sales figures had not improved. As a result, Kamenir fired Williams in
July 1997. See Item 19, ¶ 26.
Williams insists that there were many factors that led to his low sales
figures and that Kamenir was well aware of all of them. According to
Williams, these factors were as follows: (1) jury duty from late May
until early July of 1996; (2) "back-dated" sales from 1996 that were
counted towards the final quarter of 1995; (3) a serious illness that
forced Williams to miss many days of work throughout 1996, undergo
surgery in December 1996, and take over six weeks of sick leave; and (4)
the difficulties associated with 1996 being a "rebuilding" year for
Dictaphone — requiring Williams to spend time learning about
Dictaphone's new products. See Item 26, Williams, ¶ 27-32, 64,
70-71, 76a, 111-17, 121-22; Item 33, Exhs. 33 and 48.
In the end, Williams insists that Kamenir's complaints about Williams'
communication skills were a mere pretext for age discrimination. Williams
also argues that Kamenir's dissatisfaction with his client relations was
pretextual because such complaints have no basis in fact. Finally,
Williams insists that Kamenir's alleged disappointment with his sales
is pretextual since Kamenir unreasonably failed to consider the many
extenuating circumstances that affected his performance.
Yet, it is not enough simply for Williams to show that Kamenir's
proffered reasons for firing him are arguably false. Rather, Williams must
show that Kamenir's proffered reasons are a pretext for discriminatory
animus. Thus, in order to make a showing of pretext, Williams would need
to point to some form of substantial evidence to support a reasonable
inference in his favor — either some direct evidence of Kamenir's
age bias or indirect evidence of that bias — e.g., that Kamenir
excused comparable issues for District Managers who were outside of the
Here, the court notes Williams' reliance on a recent Supreme Court
decision. In Reeves v. Sanderson Plumbing Products, Inc., ___ U.S. ___,
120 S.Ct. 2097, 2000 WL 743663 (June 12, 2000), the Supreme Court
clarified the nature of a plaintiffs ultimate burden in an age
discrimination case.*fn14 Writing for a unanimous court, Justice
O'Connor outlined "the evidentiary burden borne by plaintiffs who attempt
to prove intentional discrimination through indirect evidence:"
[In St. Mary's Honor Center] . . . we reasoned that
it is permissible for the trier of fact to infer the
ultimate fact of discrimination from the falsity of
the employer's explanation. Specifically, we stated:
The factfinder's disbelief of the reasons put
forward by the defendant . . . may, together with
elements of the prima facie case, suffice to show
Thus, a plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's
asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully
Reeves, 2000 WL 743663, at *9 (citation omitted).
However, the Court in Reeves went on to add that:
This is not to say that such a showing [of falsity or
pretext] by the plaintiff will always be adequate to
sustain a jury's finding of liability. Certainly there
will be instances where, although plaintiff has
established a prima facie case and set forth
sufficient evidence to reject the defendant's
explanation, no rational factfinder could conclude
that the action was discriminatory.
Id. In citing to decisions such as St. Mary's and Burdine, the Court in
Reeves has reiterated and clarified settled standards of law. In this
order and opinion, the court has recognized these same standards of law.
See supra Discussion, Part I, A.
Further, the court finds that Reeves is not factually on point with the
present case since there are substantial differences in the quantity and
quality of proof presented by the respective plaintiffs. In Reeves, the
Court found that the plaintiff, as part of his prima facie case, had
proffered substantial evidence to support a jury's inference that the
proffered reasons were false and that the plaintiffs firing had actually
been the result of discriminatory animus. Yet in this case, the court has
already found that the evidence supporting Williams' prima facie claims
is quite thin. Moreover, Williams has not effectively rebutted
Dictaphone's position that he persistently failed to achieve his
year-to-date quota. As a result, the court has concluded that Williams
has failed to establish prima facie claims of discriminatory and
retaliatory firing. See supra Discussion, Part IV, B, 1.
In addition, the court also notes here that Williams has submitted no
direct evidence of Kamenir's alleged discriminatory age bias. Indeed, at
his deposition, Williams stated that he had a conversation with Kamenir
in the summer of 1996, in which Kamenir said to him that he "didn't
realize [that Williams was] that old." Item 18, Exh. 3, p.98. Yet this
isolated, "stray" remark does not raise an issue of fact regarding
Kamenir's age bias. See Layaou v. Xerox Corp., 999 F. Supp. 426, 433
(W.D.N.Y. 1998) (holding that allegedly discriminatory remark was
non-probative because it was not contemporaneous with the adverse
decision and was totally unrelated to the decisional process) (citation
and quotation omitted).
Finally, the court finds that Williams' reliance on Carlton adds little
to this court's analysis. There, the court of appeals seems to anticipate
the language of Reeves by holding that:
At [the third stage of the McDonnell Douglas
burden-shifting framework], the burden shifts back to
the plaintiff to offer proof "through presentation of
his own case and through cross-examination" that would
allow a rational factfinder to conclude that the
proffered reason was not the true reason for the
adverse employment action, and that age was. To meet
this burden, the plaintiff may rely "on the evidence
constituting the prima facie case, together with
supportable inferences to be drawn from the false or
erroneous character of the employer's proffered reason
for the adverse action."
Carlton, 202 F.3d at 135 (citation omitted). Further, the court finds
that Carlton differs critically from this case in terms of its facts. In
that case, the plaintiff was replaced by a much younger person at a
salary of about $10,000 less than what the plaintiff was earning. In this
case, there was no replacement for Williams, since his job was in effect
abolished by consolidating the Buffalo office with the Cleveland office.
Furthermore, Williams alleges that there was a general culture of age
bias at Dictaphone in and around 1996 and 1997. In support of this
position, Williams submits proof that Regional Vice Presidents Barbara
Bilka and Anthony Procops both stated that Dictaphone was attempting to
phase out its older District Managers. See Item 18, Exh. 3, pp. 88-89
(Bilka); Item 26, McKeon Aff., ¶ 7 (Procops). In addition to this
proof, Williams provides allegations that unnamed senior executives
admitted in 1995 and 1996 that Dictaphone planned on getting rid of its
senior people. See Item 18, Exh. 3, pp. 134-35. By making these
allegations, however, Williams does not advance his case. None of the
Dictaphone executives who allegedly made these comments to him was
involved in the decision to fire him. Rather, it was Kamenir who made
that decision. See Item 16, ¶ 68 and Item 18, Exh. 3, p.121. A
plaintiffs claim of discrimination is not substantiated where plaintiff
submits proof of a discriminatory comment that was made by a person not
involved in the adverse decision. See Kirsch v. Fleet Street, Ltd.,
148 F.3d 149, 162 (2d Cir. 1998) ("stray remarks . . . by persons who are
not involved in the decision making process" do not support an inference
of impermissible discrimination).
In light of the foregoing analysis, the court finds that Williams has
failed to proffer evidence that would allow a reasonable factfinder to
infer that either discriminatory or retaliatory intent motivated the
decision to fire him in July 1997.
For the reasons stated herein, the court finds that plaintiff Williams
has failed to carry his initial burden of showing that he suffered
adverse employment actions as a result of discriminatory or retaliatory
intent. As such, the court grants defendant Dictaphone's motion for
summary judgment (Item 116).