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United States District Court, Southern District of New York

August 12, 2003


The opinion of the court was delivered by: John Martin, District Judge


This is an action for damages alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"),*fn1 the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), the New Jersey Conscientious Employee Protection Act (N.J.S.A. 34:19-3A et seq.) ("NJCEPA") and for fraudulent misrepresentation under state law.*fn2 Defendants have moved for summary judgment seeking to dismiss these claims. [ Page 2]


Corey Cagle ("Plaintiff"), an African American, was hired by the Unisys Corporation ("Unisys") on June 3, 1996 as an Associate Account Representative in its Computer System Group. Initially, Cagle was required to work at the company's Berkeley Heights, New Jersey office where he received classroom and on-the-job training.

In January 1997, Cagle joined the company's Eastern Financial Area Computer System Group which was based in New York City. At that time, Cagle was also promoted to the position of Account Representative with an annual salary of $33,000 and thereafter qualified to receive incentives for meeting certain business objectives.

In August 1997, Angelo Calicchia was promoted to Acting Sales Manager and given responsibility for the supervision of the sales team consisting of Cagle, Lehneis and Lewis. Following his promotion, Calicchia asked the team to work out of the company's New York City offices. Cagle moved to the New York offices in late October, only after Calicchia had several discussions with him about it.

Since. he became Cagle's direct supervisor in 1997 until Cagle's termination in 1998, Calicchia consistently noted problems with Cagle's job performance. Calicchia was concerned that Cagle delegated too many potential deals to Value Added [ Page 3]

Resellers and focused too much on smaller deals. He also noted that Cagle's written work and his forecast of potential sales were often inaccurate. Finally, Calicchia observed that Cagle did not appear to work as diligently as his peers, that he was often the last to arrive to work and the first to leave, and that he continued to work from home more frequently than his peers, although he had been advised that working from home was discouraged.

In February 1997, Cagle and his Caucasian co-workers, Kirk Lehneis and Karin Lewis, were assigned performance objectives for the year. They were each evaluated against these objectives in January 1998.

Cagle's evaluation stated that he had "met" requirements. In the company's personnel data base, Cagle received an overall performance rating of "Medium" for 1997. Cagle generated approximately $157,000 in revenue in 1997.

Lehnais' evaluation stated that he "did not meet requirements." Lehnais nevertheless received an overall performance rating of "High" for 1997 in the company's personnel data base. Lehnais generated $48,000 in sales in 1997, but forecasted, in October 1997, that a sale for $300,000 would be made in 1998. As predicted, the sale was made in January 1998. In November 1997, Lehnais received a lump sum bonus for his work in generating business from a key client and from the banks [ Page 4]

assigned to him.

Lewis' evaluation stated that she "did not meet requirements." In the company's personnel data base, Lewis received an overall performance rating of "Medium" for 1997. Lewis generated $64,000 in sales that year.

In January 1998, Cagle was given a salary increase of $3,000. Lehnais and Lewis were each given a salary increase of $6,000.

On February 3, 1998, at the Unisys sales meeting in Philadelphia, Cagle did not attend the Business Partner Session. When Calicchia asked Cagle to explain his absence, Cagle responded that he had decided to skip the session because he had heard that it would be boring and did not think it was mandatory and that Calicchia should "just give [him] a negative mark for attendance."

That month, Calicchia met with Cagle to help him prepare for a sales presentation he was to give to senior management in March. According to Calicchia, Cagle's sales forecasts were inaccurate and his presentation was ready only after substantial revisions. After their meeting, Calicchia informed Cagle that he was unhappy with Cagle's work. In late February of 1998, Cleeland, Calicchia's supervisor, also told Cagle that he was concerned with Cagle's work to date.

Cagle claims that he made a verbal complaint about [ Page 5]

discrimination in February 1998 "in a way that was intended to bring about more equal treatment, without, hopefully, generating retaliation against [him]. He did not want to antagonize his supervisors. He made his complaints verbally and discreetly." Plaintiff does not provide further detail about this complaint so that it is not even clear to whom he made it, though he claims that "instead of correcting the disparity, he was being placed under greater scrutiny and was being subtly criticized, ostracized and, in other respects, treated less favorably than Lehneis and Lewis." Defendants' managers deny knowledge of any discrimination claims made by Cagle at this time.

Despite having been informed of concerns about his work, Cagle arrived late for work on March 3 and 4 and gave a poor sales presentation to senior management on March 4. The senior management present at the sales meeting were disappointed with the quality of Cagle's presentation and became concerned with his overall work performance. They determined that Cagle should be placed on the company's Corrective Action Plan ("CAP").

After the presentation, Calicchia spoke with Cagle about the problems with his presentation and his work in general. Calicchia also met with Cagle on April 2, 1998 and informed him of the need for improvement in his work. Cagle's notes of that meeting state, in part: "I was reinformed by you, your position with regard to working from home, time spent within the Wall [ Page 6]

Street Office, where my time is spent with regards to larger opportunities, my effort with regards to covering my territory and completing area review forms."

Notwithstanding this meeting, Cagle left a message for Calicchia the next day informing him that he would be leaving the office early that day. On April 7, Cagle left a message for Calicchia informing him that he would be arriving late because he needed to pick up a prescription.

On April 15, 1998, Cagle was placed on a 75-day CAP in order to encourage improvement in his work. At that time, Cagle was advised of deficiencies in his work, given goals to achieve by an established time line and provided a schedule for periodic counseling and review. He was also advised that failure to show improvement in his job performance could result in termination of his employment at Unisys. Cagle's CAP goals included achieving second quarter order and revenue quotas, closing at least one new deal, finding at least three new business prospects worth more than $50,000 and completing a daily activity diary.

During his 75-day CAP period, Cagle booked a total of $1,000 in orders as against his CAP quota of $200,000. Although Cagle identified. an $80,000 order for Industrial Bank of Japan in April, he did not receive credit for that order because it had actually been booked by another department in 1997. Cagle had also forecasted three other orders totaling $115,000 for the [ Page 7]

second quarter, but these did not materialize.

Cagle also did not achieve his second quarter revenue quota of $175, 000, even when he was given revenue credit of $24,000 for the 1997 Industrial Bank of Japan sale for which he had been ineligible for order credit. Cagle had projected revenue in excess of $200,000 for the second quarter, none of which materialized beyond the $24,000 noted above.

Cagle did not close any new business deals and did not find a single new business prospect worth more than $50, 000. In fact, between April 15 and June 15, Cagle placed only six sales calls.

Cagle did complete his daily diaries, which listed substantial time spent reviewing annual reports from potential customers in his territory. Still, on May 15, Calicchia found 13 unopened envelopes containing annual reports on Cagle's desk, which had been postmarked at least two weeks earlier.

Overall, Cagle's work showed little improvement and he seemed to make little effort to achieve his CAP goals.

Cagle's attendance also did not improve. He took a one-week vacation from May 18-22, even though he was behind in achieving his CAP goals. Cagle worked from home on May 15, the Friday before his. vacation, on May 26, the day after Memorial Day, and on May 29, a Friday. Cagle also worked from home on June 4, 9, 10, and 12.

On June 5, 2002, Cagle sent an e-mail to Calicchia, Cleeland [ Page 8]

and others involved in the CAP process in which he stated, in part:

I must say that I am very concerned that the decision to place me in the CAP, together with the decision to give me a customer base that does not generate the some [sic] opportunity for success as that given to my colleagues, are cause for serious concern. I regret having to place this matter in the stark, matter-of-fact terms, however given the serious implications of the CAP, I have no viable alternative but to express my concerns directly.
To be perfectly clear, I am concerned that the decision to give me a compromised territory/customer base will not generate the expected sales and that the decision to place me in the CAP so soon after the successful year I had in 1997 are discriminatory decisions.
Based upon the preceding, I respectfully request an enlargement of my territory/customer base to include less impacted industries and/or customers and either an extension of time within the CAP or, better still, cessation of the CAP until such time as I have had an equal opportunity to prove my sales and marketing abilities or the lack thereof.
Calicchia responded to Cagle's e-mail on June 10, explaining in detail that Cagle's customer territory was suitable and that the CAP would remain in effect. On June 22, Cagle responded to Calicchia's e-mail stating that his placement in the CAP was a surprise to him and arguing that his work performance was up to par:

I have not sat around and done nothing with my territory, as the picture the Corrective [ Page 9]
Action Program and your note dated 6/10 may paint, but have aggressively tried to mine it for new opportunities. I feel this statement is backed by a strong 1997 performance review, completion of 1997 strategic objectives . . . and never being reprimanded with regards to my attitude, hustle and dedication to my job.
Cagle once again requested "immediate cessation" of the CAP and/or expansion of his sales territory. Cagle added that if his "requests [were] not acceptable then perhaps the next best alternative would be some sort of negotiated severance agreement." Calicchia did not respond to this e-mail as he and Catherine March, the Unisys employee relations consultant in charge of Cagle's CAP, concluded that Cagle's termination was "inevitable" in light of his failure to meet his CAP objectives and therefore "further response to his June 22 e-mail was unnecessary."

Cagle's position at Unisys was terminated on June 30, 1998.


A. Summary Judgement Standard

Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions . . ., together with the affidavits, . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). A dispute regarding a material fact is genuine if the evidence is [ Page 10]

such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 So. Ct. 2505, 2514 (1986).

B. Race Discrimination Claim

Cases brought under Title VII and Section 1981 require the presentation of proof in a three step evidentiary framework.*fn3 See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). Under this analysis, the plaintiff must present a prima facie case of discrimination. If the plaintiff meets this burden, the burden shifts to the defendant who must articulate a legitimate, nondiscriminatory reason for its adverse employment decisions. Once the defendant has stated such a reason, the presumption of discrimination falls out of the case and the burden reverts to the plaintiff to prove by a preponderance of the evidence that the defendant's proffered reasons are merely a pretext for discrimination. To do so, the plaintiff must show "both that the [stated] reason was false, and that discrimination was the real reason" for the employer's action. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225 (2d Cir. 1994) (quoting St. Mary's Honor Ctr. v. Hicks, [ Page 11]

509 U.S. 502, 113 S.Ct. 2742, 2752 (1993)). Notwithstanding this burden shifting analysis, the ultimate burden of proving discrimination remains at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.

In order to make out a prima facie case of discrimination, a plaintiff must show: (1) that he belonged to a protected class, (2) that he was qualified for the position, and /or that his job performance was satisfactory, (3) that he was discharged, and (4) that after his discharge the position remained open and the employer sought applicants with qualifications similar to plaintiff's. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829 (1985).

Defendants argue that Plaintiff's race discrimination claims must be dismissed because Plaintiff was disciplined and eventually discharged because of his poor job performance and that Plaintiff has failed to meet his burden of showing that this stated legitimate nondiscriminatory reason is pretextual.

Defendants concede, for the purposes of this motion, that Plaintiff has established a prima facie case of discrimination. Since Defendants have articulated legitimate, nondiscriminatory reasons for their actions, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1825 (1973), the presumption of discrimination falls out of the case and the burden reverts to Plaintiff to prove by a preponderance of the evidence that the [ Page 12]

Defendants' proffered reasons are pretextual and that race was the motivating factor for Defendants' employment actions. At this stage, the Court must examine "the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves).

Were I the trier of fact here, I would find that Defendants' employment actions with respect to Plaintiff were done, not on the basis of race, but because of Plaintiff's deficient job performance and poor work ethic. Notwithstanding this factual determination, Defendants' motion for summary judgment must be denied with respect to Plaintiff's race discrimination claims because the record contains evidence from which a jury could conclude that Cagle was discriminated against on the basis of his race.

As the Second Circuit has often observed:

a plaintiff charging discrimination against an employer rarely comes to court with a "smoking gun." See Rosen, 928 F.2d at 533; see also Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988). Simply stated, a victim of discrimination is "seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen, 928 F.2d at 533.
Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992).

In this case, evidence of intentional race discrimination is [ Page 13]

found in the fact that in January 1998, Plaintiff, whose job performance was rated as having "met" objectives, received a lower salary increase than his white peers whose performance "did not meet objectives." This fact gives rise to an inference of discrimination that is strong enough to permit a jury to conclude that Defendants' proffered nondiscriminatory reasons were simply a pretext for discrimination.

Defendants argue that the disparity in salary increases amongst peers here was "justified by the performance limitations which [Cagle] earlier had exhibited." Cagle's salary increase was lower than his co-worker's because "his contribution was viewed less favorably." While the Defendants are certainly free to make this argument at trial, this very subjective justification for the disparate treatment of Plaintiff, does not, as a matter of law, overcome the inference of discrimination arising from the fact that Plaintiff received $3,000 less in salary increases than his white peers.

Plaintiff has shown sufficient evidence from which a reasonable jury could find that Defendants' proffered nondiscriminatory reasons were false and that Plaintiff's race had motivated Defendants' actions.

C. Retaliation Claims

In order to make out a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a protected activity; [ Page 14]

(2) the employer was aware of that activity; (3) the employer took adverse action against the plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action. Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001). Making an internal complaint is a protected activity. Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 65 (2d Cir. 1992).

Once the plaintiff has made out a prima facie case of retaliation, the burden shifts to the employer to demonstrate that it had a legitimate, nondiscriminatory reason for its action. Id. at 625. If a defendant makes this showing, "the "presumption [of retaliation] completely drops out of the picture [and] the employer will be entitled to summary judgment . . . unless plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.'" Oqbo v. New York State Dep't of Finance, NO. 99 Civ. 9387, 2001 WL 986546, *4 (S.D.N.Y. Aug. 28, 2001) (quoting James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2000). See also Raniola. 243 F.3d at 625 ("The burden shifts, therefore, back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation.").

Defendants argue that Plaintiff's retaliation claims must be dismissed because Plaintiff has failed to state a prima facie [ Page 15]

claim and has failed to show that Defendants' legitimate non-discriminatory reasons for Plaintiff's termination are pretextual.

Plaintiff claims that Defendants retaliated against him after he made a verbal complaint about discrimination in February 1998 and again after he sent two e-mails in June 1998 to his supervisor and various Unisys executives, complaining of discriminatory treatment. Defendants acknowledge that Plaintiff wrote two such e-mails in June 1998, but deny knowledge of the verbal complaint Plaintiff claims to have made in February 1998.

Plaintiff has failed to present a prima facie case of retaliation with respect to his alleged February 1998 verbal complaint. Plaintiff has made only vague allegations of a complaint made "verbally and discreetly" sometime in February 1998. Plaintiff claims he referenced the complaint in the following handwritten note which was attached to his CAP documents: "Because of the prior conversations on 2/26/98, 3/26/98 on [sic] 4/2/98, I view the Corrective Action Program as a suprise [sic]." Plaintiff, however, has not even indicated to whom he made this verbal complaint. These allegations do not establish that the claim was made or that even if it was made, that Defendants were aware of it. Plaintiff's vague and conclusory statements about the alleged February 1998 complaint do not create a question of material fact on this issue that [ Page 16]

would defeat Defendant's motion for summary judgment. See Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985); Kulak v. City of New York, 88 F.3d 63, 70 (1996).

While Plaintiff's June 22 e-mails to management are the type of protected activity that can give rise to a claim of retaliation, there is no evidence that "a causal connection existed between the plaintiff's protected activity" and his termination on June 30, 1998. To the extent that one can infer causation by the temporal proximity of the e-mails and Plaintiff's termination, that inference is undercut by the fact that Plaintiff was already in the CAP program and that he clearly had not met his assigned goals.

The evidence that Plaintiff received a lower salary increase than his white peers may support an inference that Defendant discriminated against him by placing him in the CAP program and assigning him unrealistic goals because they wanted to terminate him because of his race. However, there is no evidence that, after this process had begun, his June e-mails had any impact on the decision to terminate his services.

D. New Jersey Claims

Plaintiff attempts to assert claims against Defendant under the New Jersey Law Against Discrimination and the New Jersey Conscientious Employee Protection Act. However, the law of New York and not New Jersey is applicable here. [ Page 17]

A federal court applies the choice of law rules of its forum state. See Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989) ("A federal court sitting in diversity or adjudicating state law claims that are pendent to a federal claim must apply the choice of law rules of the forum state."). New York's choice of law rules apply the state interest test in employment discrimination cases. Robins v. Max Mara, U.S.A., Inc. 923 F. Supp. 460 (S.D.N.Y. 1996). "Under that test, controlling effect is given `to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.'" Id. at 465 (quoting Babcock v. Jackson, 12 N.Y.2d 473, 481 (S.D.N.Y. 1996)). Although Plaintiff is a New Jersey resident, the alleged discriminatory acts giving rise to Plaintiff's cause of action occurred during his employment in New York. New York is thus "`intimately concerned with the outcome of the . . . litigation.'" Id. Accordingly, Plaintiff's New Jersey law claims are dismissed.

E. Fraudulent Misrepresentation

Plaintiff alleges that Defendants made various fraudulent representations on which he relied to his detriment. Under New York law, at-will employees, such as Plaintiff, cannot recover for wrongful termination, nor can they evade this bar by suing in tort. See Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, [ Page 18]

297, 300-02 (1983); Ullmann v. Norma Kamali, Inc., 616 N.Y.S.2d 583, 584 (1st Dep't. 1994). In addition, Plaintiffs cannot masquerade a breach of contract claim as a fraud claim. See Saleemi v. Pencom Sys., Inc., No. 99 Civ. 667, 2000 WL 640647, at *4-5 (S.D.N.Y. May 17, 2000). At-will employees can, however, recover for fraudulent statements that induce them into accepting positions of employment by showing: (1) a material false representation; (2) scienter; (3) reasonable reliance; (4) damages; and, relevant here, (5) that the fraudulent misrepresentation was collateral or extraneous to the employment agreement. See Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19-20 (2d Cir. 1996); Stewart v. Jackson & Nash. 976 F.2d 86, 88-90 (2d Cir. 1992).

Here the complaint fails to allege any damages other than those that flow from the termination of Plaintiff's employment. This is not sufficient to sustain a claim under the above standards. [ Page 19]


For the foregoing reasons, Defendants' motion for summary judgment on Plaintiff's race discrimination claim is denied. Defendants' motion for summary judgment is granted on the retaliation claim, the New Jersey law claims and the fraudulent misrepresentation claim and these claims are dismissed.*fn4


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