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GAMBELLO v. TIME WARNER COMMUNICATIONS
February 15, 2002
CARL GAMBELLO, PLAINTIFF,
TIME WARNER COMMUNICATIONS, INC., A DIVISION OF TIME WARNER, INC., TIME WARNER, INC, STEVEN MCPHIE, AND LARISSA HERDA, DEFENDANTS.
The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Carl Gambello brings this action against defendants
Time Warner Telecom, Inc., successor in interest to Time Warner
Communications, Inc. ("TWTC"), Stephen McPhie, and Larissa
Herda,*fn1 alleging 1) discrimination on the basis of age in
violation of the Age Discrimination in Employment Act of 1967
("ADEA"), as amended, 29 U.S.C. § 621 et seq., and the New
York State Human Rights Law ("HRL"), New York State Executive
Law §§ 290 et seq.; 2) breach of contract; and 3)
misrepresentation. Defendants move for summary judgment pursuant
to Fed.R.Civ.P. 56(b) to dismiss plaintiffs claims in their
entirety, and for sanctions pursuant to Fed.R.Civ.P. 11.
Unless otherwise indicated, the following facts are
1. Hiring: Plaintiff worked for Manhattan Cable Television,
the predecessor to Time Warner Cable, from 1980 until 1988,
eventually becoming Vice-President of Corporate Development. He
voluntarily left Manhattan Cable when it de-emphasized its
telecommunications business, and he began working as an
independent consultant. From July 1993 until December 1993,
plaintiff worked as an independent consultant for Time Warner
AxS of New York City ("TWAxS"), which is owned by TWTC. As an
independent consultant, plaintiff assessed the feasibility of
TWAxS entering the telecommunications market in New York City
and negotiated franchise agreements with the City which allowed
TWAxS to sell telecommunications services in New York City.
Following the granting of a franchise agreement in December,
Barry Rosenblum, the President of Time Warner Cable of New York
City,*fn2 and Eric Tveter, the General Manager of TWAxS meet
with plaintiff twice in mid-January 1994 to discuss hiring
plaintiff for the position of Director of Sales and Marketing
for TWAxS. Gambello Aff. ¶¶ 2-5; Gambello Depo. 137-40.
At the meetings, plaintiff claims that Rosenblum and Tveter
said that the position would start as a Director position, but
that over time it could develop into a Vice-President position
if business volume warranted. He testified as follows:
Q. What was said in the course of that meeting?
A. . . .They talked about this position if there's
was a significant amount of sales to be done to
cable customers and others could start a director's
spot, but then over time become a — become a VP
spot and they asked me to consider all of the
factors. . . .
Q. Did they discuss what it would take for this
director's position to become over time a VP spot?
A. They talked about business volume warranting that
kind of thing, because in their mind they
visualized an extensive sales staff reporting into
either a manager or a director and the director
evolving, because of the span of control to a
vice president spot.
Gambello Depo. 139-41, 145.
At the meeting, plaintiff also claims that he:
said that this is the company that I would like to
retire from. I have no interest in going somewhere
else, so when I said that, there seemed to be a
general sense that this was something that was
doable, as long as performance warranted that kind of
thing. You never get guarantees, but you can
recognize when people agree with what you are saying.
Id. 145-46. Plaintiff claims that, while neither Rosenblum nor
Tveter said anything, Rosenblum nodded his head "in approval."
Id. In response to a Request for Admission, plaintiff admits
that his "employment was not of a specific duration." Margolis
Exhibit I. Both Rosenblum and Tveter deny that they promised
plaintiff either that he could work until he retired or that he
would become a Vice-President. Rosenblum Depo. 41, 60-61; Tveter
Aff. ¶ 7.
Finally, plaintiff claims that he:
Q Let me stop you for a second. Did you use the term
bridging of service?
Q In the meeting with them?
Q Can you explain what you meant by bridging of
A Well, building on the eight years that I had so
that I would become qualified just about immediately
Q So you wanted your approximately eight years of
prior employment with Manhattan Cable —
Q To count toward your pension benefits with Time
Q Is that entirely what you meant by bridging of
Gambello Depo. 141-42. Rosenblum and Tveter told him that he
could bridge his service from Manhattan Cable. Plaintiff claims
that he would not have gone to work for TW AxS had these
"representations" not been made. Gambello Aff. ¶ 8.
On January 17, 1994, plaintiff signed an employment
application and began work. Plaintiff was 53 years old. The
employment application states that
I understand that nothing contained in this
employment application or in the granting of any part
of the employment process, is intended to create an
employment contract between the companies and myself.
If I am employed, either the companies or I may
terminate my employment at anytime and for any
Gambello Depo. Exhibit 7. Plaintiff also received an Employee
Handbook, which states that employment can be terminated with or
without cause, and with or without notice, at the option of
either the company or the employee. The handbook also stated
that "work rule violations are usually addressed by the
following progressive disciplinary procedures: 1) First Step:
Verbal Warning; 2) Second Step: Written Warning; 3) Third Step:
Suspension or Performance Improvement Plan; 4) Fourth Step:
Termination. However, the outlined disciplinary procedures are
not intended to be all inclusive. Circumstances surrounding the
violations are a factor in determining appropriate discipline."
A non-exhaustive list of major work rules violations does not
include failure to meet sales predictions. Gambello Depo. 204,
206, Exhibits 9,10.
2. Employment and Termination: At TWAxS, plaintiff reported
to Tveter. His responsibilities involved the sale and marketing
of dedicated services, which provide a fixed bandwidth of
telecommunications connectivity between two specified points.
Plaintiffs duties also included ensuring compliance with
franchises, providing communication services to customers,
identifying buildings that represented significant sales
opportunities, developing job descriptions for sales executives
and engineers, and developing the business brochure. In 1994 and
1995, TWAxS was engaged in the construction and preliminary
marketing of a network to prepare for the installation of a
switch which, unlike dedicated services, permits connectivity
between any two points. With the installation of a network and a
switch, TWAxS would be able to compete with local telephone
service providers such as NYNEX. Gambello Depo. 221; Tveter Dec.
¶ 9-10. Plaintiff admits that, since TWAxS was in the process of
installing a network and switch, TWTC had low sales expectations
in 1994 and
1995, but that sales expectations would increase once a network
and switch had been installed. Gambello Depo. 231-32, 240.
In 1994 and 1995, plaintiff received annual evaluation scores
of 3.68 and 3.7, respectively, on a scale of 4 from Tveter. A
score of 3 is described as "Meets Requirements. Performance is
consistently at an expected level of competency. Occasionally
performs above expected levels." A score of 4 is described as
"Exceeds Requirements. Performs above expected levels with
consistently high quality results." On the 1995 evaluation,
Tveter notes that the "network is nearly ready and now the real
challenge begins." Gambello Aff. Exhibits A, B.
By late 1995 or early 1996, the switch had been installed, and
Plaintiff began selling switch services on a flat rate basis.
The switch never became fully operational during Plaintiffs
tenure so TWAxS could not sell services on a usage basis.
Plaintiff and Tveter set a sales/revenue growth budget for 1996
of $3,781,452. The actual 1996 revenue growth was $1,457,389.
This shortfall, $2,324,063, was the greatest shortfall in the
nation. New York's actual revenue was significantly lower than
much smaller markets, including Charlotte, Raleigh, and
Rochester, and San Antonio. San Antonio ...