United States district Court, S.D. New York
February 27, 2004.
LAWRENCE LUXENBERG, Plaintiff, -against-, THE GUARDIAN LIFE INSURANCE COMPANY, THE GUARDIAN LIFE INSURANCE OF AMERICA SEVERANCE PLAN, and THE SEVERANCE COMMITTEE OF THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA SEVERANCE PLAN, Defendants
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
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.
I. FACTUAL BACKGROUND
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.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary
judgment "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An
issue of fact is `genuine' if `the evidence is such that a jury could
return a verdict for the nonmoving party.'" Gayle v. Gonyea,
313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it `might
affect the outcome of the suit under the governing law.'" Id.
In determining whether a genuine issue of material facts exists, the
court must construe the evidence in the light most favorable to the non
moving party and draw all reasonable inferences in that party's
favor. See Niagara Mohawk Power Corp. v. Jones Chem., Inc.,
315 F.3d 171, 175 (2d Cir. 2003). "Although the moving party bears the
initial burden of establishing that there are no genuine issues of
material fact, once such showing is made, the non movant must
*set forth specific facts showing that there is a genuine issue for
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000) (quoting Anderson, 477 U.S. at 256).
However, the non moving party may not "rest upon . . . mere
allegations or denials." St. Pierre v. Dyer. 208 F.3d 394, 404
(2d Cir. 2000). "Statements that are devoid of any specifics, but replete
with conclusions, are insufficient to defeat a properly supported motion
for summary judgment." Bickerstaff v. Vassar Coll.,
196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non
moving party is merely colorable, or is not significantly probative,
summary judgment may be granted.") (internal quotation marks, citations,
and alterations omitted).
"`The salutary purposes of summary judgment avoiding
protracted, expensive and harassing trials apply no less to
discrimination cases than to . . . other areas of litigation.'"
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985)). Summary judgment is only appropriate if the plaintiff has failed
to produce sufficient evidence for a rational juror to find in his favor.
See Windham v. Time Warner. Inc.. 275 F.3d 179, 187 (2d Cir.
2001). Courts within "the Second Circuit have not hesitated to grant
defendants summary judgment in such cases where . . . plaintiff has
offered little or no evidence of
discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996
WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652
(2d Cir. 1997). Indeed, "[i]t is now beyond cavil that summary judgment
may be appropriate even in the fact intensive context of
discrimination cases." Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment
in employment discrimination cases where the employer's intent is
genuinely at issue and circumstantial evidence may reveal an inference of
discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d
Cir. 1999). This is so because "[e]mployers are rarely so cooperative as
to include a notation in the personnel file that the firing is for a
reason expressly forbidden by law." Bickerstaff, 196 F.3d at
448 (internal quotation marks and citation omitted, alteration in
original). But even where an employer's intent is at issue, "a plaintiff
must provide more than conclusory allegations of discrimination to defeat
a motion for summary judgment." Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997). "Mere conclusory allegations, speculation
or conjecture will not avail a party resisting summary judgment."
Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94
(2d Cir. 2003) (quoting Cifarelli v. Village of Babylon,
93 F.3d 47, 51 (2d Cir. 1996)).
B. Retaliation Claims
The ADEA prohibits an employer from retaliating against an employee
who has complained of discrimination. See
29 U.S.C. § 623(d) (2003). Retaliation claims brought under the NYCHRL
are analyzed in the same manner as those brought pursuant to the ADEA.
See Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 317 (2d
To establish a prima facie case of discriminatory
retaliation, a plaintiff must demonstrate that: (i) he engaged in a
protected activity; (ii) the employer was aware of his participation in
the protected activity; (iii) the employer took an adverse employment
action against the employee; and (iv) a causal connection existed between
the employee's protected activity and the adverse employment action taken
by the employer. See Reed v. A.W. Lawrence & Co. Inc..
95 F.3d 1170, 1178 (2d Cir. 1996). The plaintiff may establish a causal
connection by "showing that the protected activity was closely followed
in time by the adverse action." Cifra v. GE, 252 F.3d 205, 216
(2d Cir. 2001) (quoting Reed. 95 F.3d at 1178). However, "temporal
proximity must be very close."' Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks
omitted). Additionally, "[w]here timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before the
plaintiff had ever engaged in any protected activity,
an inference of retaliation does not arise." Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (affirming
summary judgment where adverse employment actions began five months
before the filing of an EEOC complaint).
Pleading a prima facie case creates a presumption of
retaliation and the "defendant then has the burden of pointing to
evidence that there was a legitimate, non retaliatory reason for
the complained of action." Quinn v. Green Tree Credit
Corp., 159 F.3d 759 (2d Cir. 1998); see also Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). "If the
defendant bears its burden of production, the presumption drops out of
the analysis and the defendant `will be entitled to summary
judgment . . . unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination.'"
Farias, 259 F.3d at 98 (quoting James v. New York Racing
Ass'n., 233 F.3d 149, 154 (2d Cir. 2000)) (ellipsis in original).
At that point, "the test for summary judgment is whether the evidence
can reasonably support a verdict in the plaintiff's favor."
James. 233 F.3d at 157.
A plaintiff may attempt to prove retaliation "`by showing that the
employer's proffered explanation is unworthy of credence.'" Reeves
v. Sanderson Plumbing Prods. Inc.. 530 U.S. 133, 143 (2000)
(quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981)). However, "rejection of the
employer's legitimate, nondiscriminatory reason for its action does
not compel judgment for the plaintiff . . . and proof that
`the employee's proffered reason is unpersuasive, or even obviously
contrived, does not necessarily establish that the plaintiff's proffered
reason is correct.'" Id. at 146 (quoting St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 524 (1993)) (emphasis and ellipsis in
original). Furthermore, "the final burden rests on the plaintiff to prove
not only that the proffered nondiscriminatory reason was pretextual but
also that defendant [retaliated] against the plaintiff."
Slattery, 248 F.3d at 91.
Luxenberg alleges that Guardian retaliated against him as a result of
the August 27 letter accusing Guardian of age discrimination. Defendants
concede, for purposes of this motion, that based on these allegations,
Luxenberg has established a prima facie case of retaliatory
discharge. See Defendant The Guardian Life Insurance Company of
America's Memorandum of Law in Support of its Motion for Summary Judgment
("Def. Mem.") at 6. Defendants proffer two legitimate, non
retaliatory reasons for terminating plaintiff: (1) the Fund's poor
performance, and (2) plaintiff's deteriorating work habits. Id.
at 8. Thus, the central issue is whether there is sufficient evidence to
support a reasonable inference that Guardian retaliated against Luxenberg
for complaining of age discrimination in the August 27 letter.
Luxenberg argues that he can support that inference by showing that there
was temporal proximity between his protected activity and his
termination, and that Guardian's proffered reasons for terminating him
were pretextual. See Plaintiff's Memorandum of Law in
Opposition to Defendant the Guardian Life Insurance Company of America's
Motion for Summary Judgment ("Pl. Mem.") at 1.
A. Temporal Proximity
In support of his retaliation claim, Luxenberg relies on the temporal
proximity between his attorney's August 27 letter complaining of age
discrimination and his termination on October 2. 2001, a thirty
six day period. See Pl. Mem. at 12; Def. 56.1 ¶¶ 32, 50. It
is unnecessary, however, to decide whether this time period establishes
the requisite causal connection because this case falls squarely under
the Slattery exception.*fn7
Luxenberg complains of various employment actions that
were taken well before the date of his protected activity. For
example, he was removed as the Fund's lead manager five months before the
August 27 letter was sent. See Def. 56.1 ¶¶ 6-7. Indeed, on
July 20, 2001, Luxenberg's previous attorney complained that Luxenberg
had been constructively discharged and attempted to negotiate a severance
package on his behalf. See Pl. 56.1 ¶ 17b; Alterman Dec.
¶ 4. Furthermore, upon Goldman's arrival in July 2001, Luxenberg's
remaining duties were essentially eliminated, and he was assigned no new
work after July 23, 2001. Given that significant adverse employment
actions pre-dated Luxenberg's complaint of age discrimination, temporal
proximity cannot establish a causal nexus. See Slattery, 248
F.3d at 95.
B. Evidence of Pretext
Luxenberg attempts to meet his burden of proving retaliatory motive
by showing that Guardian's articulated reasons for firing him
poor Fund performance and deteriorating work habits were merely a
pretext for retaliatory action. See Pl. Mem. at 13-22. He
advances the following arguments in support of this theory: (1) Guardian
offers two "wholly divergent" reasons as to why Luxenberg was terminated
are wholly divergent; and (2) poor Fund performance does not constitute a
valid reason for termination. See id. Neither reason supports a
1. Guardian's Proffered Reasons for Terminating Luxenberg Are
Luxenberg claims that pretext is evident from the fact that Guardian
offers two "wholly divergent" reasons for Luxenberg's termination
poor performance of the Fund and plaintiff's deteriorating work
habits following Goldman's arrival. See Pl. Mem. at 17-22.
Guardian's October 2, 2001 termination letter gave only poor Fund
performance as the reason for Luxenberg's termination. See
10/2/01 Letter from Kevin T. Reynolds to Daniel J. Alterman, Ex. V to
the Supplemental Declaration of Nina Koenigsberg ("Koenigsberg Dec.").
This reason is reiterated in the Position Statement Guardian filed with
the Equal Employment Opportunity Commission ("EEOC") in response to
Luxenberg's Charge of Discrimination. See Position Statement
of Respondent, Ex. TT to Koenigsberg Dec., at 2 ("All actions taken with
respect to Mr. Luxenberg were based on his poor performance in managing
Guardian's mutual funds."). However, Luxenberg's poor work performance
is also mentioned in
the Position Statement. See id. at 5 ("Unfortunately, the
situation dragged on until it became untenable. Mr. Luxenberg began
reporting to the office for only a few hours a day, thus subtly
undermining Mr. Goldman's authority and creating a morale problem within
Luxenberg contends that Guardian's failure to include both reasons in
its October 2, 2001 termination letter violated its "clear duty
to set forth complete and accurate reasons for its actions." Pl. Mem. at
18. However, offering differing reasons for discharge at various times
does not necessarily raise an inference of unlawful motive. The fact that
only one reason was stated in Luxenberg's October 2, 2001 termination
letter (poor Fund performance), while a second reason (the "untenable and
unworkable situation" created by Luxenberg) was mentioned nine months
later in the course of EEOC proceedings, is simply not indicative of
Moreover, the two proffered reasons are not inconsistent. Luxenberg was
removed as lead manager of the Fund due to the Fund's poor performance.
He was not fired at that point, but was permitted to continue working as
a research analyst. On July 20, 2001, Luxenberg's then attorney
informed Jones of his position that Luxenberg was constructively
discharged, and inquired about a severance package. Jones communicated
these facts to Goldman on July 23, 2001, and,
because he believed that Luxenberg was in the process of resigning,
Goldman did not assign any further work to him. As a result, Luxenberg
did not contribute to the team Goldman was in the process of assembling.
By September 2001, Goldman had concluded that there was no role for
Luxenberg on his new team. On September 26, 2001, Goldman notified two
Guardian executives, Greaney and Reynolds, that Luxenberg's presence was
unnecessary and disruptive. Reynolds subsequently communicated this
information to Sargent, who stated that he terminated Luxenberg because
of his poor performance in managing the Fund and his
inappropriate behavior following Goldman's arrival. See Def.
56.1 ¶ 52. Thus, the allegedly "wholly divergent'" reasons proffered
by Guardian are perfectly consistent and do not support a finding of
2. The Court Cannot Evaluate Business Judgment Absent Proof of
Luxenberg's second argument is that poor performance of the Fund
cannot justify his termination. See Pl. 56.1 ¶¶ 6a-6e,
7a-7g, 10f, 52b-52q; Pl. Mem. at 21. However, "[t]he court's role is
to prevent unlawful [employment] practices, not to act as a
superpersonnel department that second guesses employers' business
judgments." Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.
2001). "Federal Courts are not in the business of adjudicating whether
employment decisions are prudent or fair. Instead, our sole concern is
whether unlawful discriminatory
animus motives a . . . decision." Id.
Five months before he engaged in any protected activity, Guardian
considered terminating Luxenberg based on the Fund's poor performance.
The fact that Guardian did not immediately terminate Luxenberg as a
result of the Fund's performance does not invalidate that reason. The
decision to terminate an employee for poor fund performance, whether
novel or unprecedented in a firm's history, is the type of business
judgment that courts cannot second guess.
C. Even If Plaintiff Has Demonstrated Pretext, He Has Not
Produced Sufficient Evidence of Retaliation
Assuming, arguendo, that Luxenberg can show that Guardian's
two proffered reasons were false, "the final burden rests on the
plaintiff to prove not only that the proffered . . . reason was
pretextual but also that defendant [retaliated] against the plaintiff."
Slattery, 248 F.3d at 91. "[T]he test for summary judgment is
whether the evidence can reasonably support a verdict in plaintiff's
favor." James. 233 F.3d at 157.
Luxenberg claims "it is reversible error to require more than a
prima facie case together with sufficient evidence to
disbelieve [an] employer's justification." Pl. Mem. at 14. This is an
overstatement of the law. In Reeves., the Supreme Court stated:
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 discriminated.
This is not to say that such a showing by the
plaintiff will always be adequate to sustain a
jury's finding of liability. Certainly there will
be instances where, although the 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. For instance,
an employer would be entitled to judgment as a
matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the
employer's decision, or if the plaintiff created
only a weak issue of fact as to whether the
employer's reason was untrue and there was
abundant and uncontroverted independent evidence
that no discrimination had occurred.
Reeves, 530 U.S. at 148. Applying Reeves to the
summary judgment context, the Second Circuit affirmed a grant of summary
judgment in an employer's favor, noting that a prima facie
case, along with evidence of pretext, can sometimes be enough to get to
the jury, but "in other circumstances, a prima facie case,
combined with falsity of employer's explanation, will not be
sufficient." James. 233 F.3d at 155-56.
Even if Guardian's stated reasons for terminating Luxenberg are false,
there is simply no other evidence to support a finding of retaliation.
For the reasons discussed above, temporal proximity, on which plaintiff
primarily relies, does not establish causation, nor does it support an
inference of discrimination. Without any other evidence of retaliatory
on Guardian's part, Luxenberg's retaliation claim fails as a matter
For the forgoing reasons, defendants' motion for summary judgment is
granted and plaintiff's retaliation claim is dismissed. Guardian's
request for costs and fees incurred in connection with this motion is
denied. A conference is scheduled for March 5, 2004, at 10:45 a.m. The
Clerk of the Court is directed to close this motion (docket # 17).