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United States district Court, S.D. New York

February 27, 2004.


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 Page 2 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 a research Page 3 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. ¶¶ 14, 21.

  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 Page 4 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 Page 5 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. Page 6

  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 Page 7 October 2001, Luxenberg became manager of LAP. See Def. 56.1 ¶ 13.


  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 trial.'" Page 8 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 Page 9 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)). Page 10

  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 Cir. 1999).

  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, Page 11 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 Page 12 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 Page 13 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 Page 14 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 finding of Page 15 pretext.*fn8

  1. Guardian's Proffered Reasons for Terminating Luxenberg Are Not Inconsistent

  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 Page 16 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 the department.").

  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 pretext.

  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, Page 17 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 pretext.

  2. The Court Cannot Evaluate Business Judgment Absent Proof of Discrimination

  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 Page 18 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, Page 19 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 animus Page 20 on Guardian's part, Luxenberg's retaliation claim fails as a matter of law.


  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).


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