The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
Lawrence Luxenberg filed this action against his former employer,
Guardian Life Insurance Company of America ("Guardian"), as well as
Guardian's Severance Plan and Severance Committee. Luxenberg alleges that
Guardian: (1) discriminated against him on the basis of age in violation
of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
et sea. and the New York City Human Rights Law ("NYCHRL"); (2)
unlawfully retaliated against him by terminating his employment in
response to his complaint of age discrimination, in violation of the ADEA
and NYCHRL; and (3) violated the Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. § 1000 et seq., by denying him
severance pay. Luxenberg voluntarily dismissed
his age discrimination claims. Guardian now moves for summary
judgment on plaintiff's retaliation claim, contending that Luxenberg has
not produced sufficient evidence in support of his claim.*fn1 For the
reasons stated below, Guardian's motion for summary judgment is granted.
Guardian hired Luxenberg as a securities analyst in May 1983. He was
promoted several times. See Defendants' Statement of Undisputed
Material Facts Pursuant to Local Civil Rule 56.1 ("Def. 56.1") ¶¶ 1-3.
Specifically, in April 1998, Luxenberg was promoted to co lead
manager of Guardian's flagship mutual fund, the Guardian Park Avenue Fund
("the Fund"), and in March 2000, Luxenberg was promoted to lead manager.
See id. ¶¶ 2-3. Under Luxenberg's management, the Fund
performed well until September 2000. See id. 1 4.
Between September 2000 and March 2001, the Fund experienced a downturn
and underperformed its benchmark, the S&P 500 Index, by approximately
twenty percent. See id. ¶ 5. Citing the poor performance of
the Fund, on March 26, 2001, Joseph Sargent, Guardian's then President
and Chief Executive Officer, and Frank Jones, Guardian's then Chief
Investment Officer, removed Luxenberg as lead manager. He was retained as
analyst because Guardian wanted Luxenberg to remain part of the
Fund's investment team, even after the hiring of a new lead manager.*fn2
Id. ¶¶ 6-8; 4/14/03 Deposition of Lawrence Luxenberg
("Luxenberg Dep."), Ex. A to 8/28/03 Declaration of Edward Cerasia II,
attorney for defendants ("Cerasia Dec."), at 67-68. See Def.
56.1 ¶ 8. In June 2001, Guardian hired a new manager for the Fund,
Richard Goldman, who began work on July 23, 2001. See id. ¶¶
On July 20, 2001, Luxenberg told Jones to expect a call from his then
attorney, Ron Geffner. See id. ¶ 17. Geffner called
later that day and told Jones that, in his view, Luxenberg had been
constructively discharged*fn3 and that Luxenberg wanted to negotiate an
"amicable separation" from Guardian. See id.; Plaintiff's
Statement of Undisputed Material Facts Pursuant to Local Civil
Rule 56.1 ("Pl. 56.1") ¶ 17b. Jones referred
Geffner to Douglas Kramer, head of Guardian's Human Resources
Department, with whom Geffner tried to negotiate a severance package.
See Def. 56.1 ¶ 117c.
Jones immediately notified Sargent of Geffner's telephone call, and
thereafter was not involved in the details of Luxenberg's separation
because he believed it had become a legal issue. See Def. 56.1
¶ 17d; Pl. 56.1 ¶ 19. Nonetheless, Jones was under the impression
that Guardian was interested in providing Luxenberg with a severance
package. See Pl. 56.1 ¶ 18b.
On Goldman's first day of work, Jones told him that Luxenberg was
leaving and that it was just a matter of working out the details.
See id. Given this information, Goldman did not see a long
term role for Luxenberg on his investment team. See
Def. 56.1 ¶¶ 23-25. After Goldman began managing the Fund, Luxenberg
was given very little, if any, work to do. See 4/29/03
Deposition of Richard Goldman ("Goldman Dep."), Ex. F to Cerasia Dec., at
93-96; 9/25/03 Declaration of Lawrence Luxenberg ¶¶ 19-21; see
also Pl. 56.1 51 21b, 26a.
On August 27, 2001, Luxenberg's new attorney, Daniel Alterman, wrote to
Sargent claiming that Luxenberg had been relieved of his position as Fund
manager because of his age.*fn4
See Def. 56.1 ¶ 32; Luxenberg Dep. Ex. 14, Ex. B to
Cerasia Dec. (the "August 27 letter"). Additionally, Alterman noted that
"[Luxenberg] cannot resign if he wishes to preserve the deferred
compensation to which he is entitled. Ironically . . . if our client
were [sic] terminated, he would not lose the deferred compensation he has
earned." See Def. 56.1 ¶ 32. Sargent forwarded this letter
to Guardian's legal department.*fn5 See id. 5 35. In a
conversation following Guardian's receipt of the letter, Alterman
reiterated to Jones that plaintiff felt that he had been constructively
discharged. See 9/25/03 Declaration of Daniel Alterman
("Alterman Dec."), attorney for plaintiff, ¶ 4.
Guardian claims that from August through September 2001, Luxenberg
"showed up for work late, often stayed only a few hours, and did no
productive work." Def. 56.1 ¶ 29. Luxenberg strenuously denies these
allegations, stating that he was present at the office "except when
absent for scheduled meetings and conferences, a previously scheduled two
week August vacation and religious observances." See
Pl. 56.1 ¶ 29a. Luxenberg further notes that Jones and Goldman did
not assign him any work after July 23, 2001. See id. ¶ 29d.
Upon finalizing his restructuring plans in late September 2001, Goldman
decided that he did not want four employees, including Luxenberg, as part
of the Fund's new investment team.*fn6 See Def. 56.1 ¶ 44.
On September 26, 2001, Goldman met with two Guardian executives, Kevin
Reynolds and Thomas Greaney, and informed them that "the situation with
Mr. Luxenberg had become terrible." Goldman complained that Luxenberg
worked only limited hours and that Luxenberg's presence was undermining
Goldman's new team. See Def 56.1 ¶ 46. Reynolds reported
these observations to Sargent, who subsequently terminated Luxenberg on
October 2, 2001. See id. ¶ 50. At the time of his
termination, Luxenberg was forty six years old.
Notably, beginning in June 2001, Luxenberg began setting up an outside
hedge fund, Lexington Avenue Partners ("LAP"), in the event he was
terminated by Guardian. See Def. 56.1 ¶ 11, Pl. 56.1 ¶
12c. From July through September 2001, plaintiff viewed potential office
space, spent $10,000 in legal fees, and worked on a marketing
presentation for LAP. See Def. 56.1 ¶ 12. Luxenberg's name
did not appear in any LAP documents until after he was terminated from
Guardian, although he was the only investor in LAP prior to October 2,
2001. See Pl. 56.1 ¶ 12b; Luxenberg Dep. at 228.
Immediately after his termination in
October 2001, Luxenberg became manager of LAP. See Def.
56.1 ¶ 13.