United States District Court, E.D. New York
May 25, 2004.
JEFFREY KENDALL, Plaintiff,
WILLIAM J. FISSE, LAURIE LEDFORD, GILBERT SUTCLIFFE, LAWRENCE PHILLIPS, CITIBANK, N.A., CITIGROUP, INC., and CITICORP, INC., Defendants.
The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge
MEMORANDUM AND ORDER
Jeffrey Kendall ("Kendall" or "Plaintiff") filed the present
action against William J. Fisse ("Fisse"), Laurie Ledford
("Ledford"), Gilbert Sutcliffe ("Sutcliffe"), Lawrence Phillips ("Phillips"), Citibank, N.A. ("Citibank"), Citigroup,
Inc., and Citicorp, Inc. (collectively, "Defendants") for (1)
employment discrimination pursuant to the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq; New York
State Human Rights Law ("NYSHRL"), N.Y. McKinney's Exec. Law
§ 296; and New York City Human Rights Law ("NYSHRL"), New
York City Admin. Code § 8-107; (2) breach of employment contract;
and (3) improper termination to avoid providing employee benefits
as provided in § 510 of ERISA (29 U.S.C. § 1140). Before this
Court are Defendants' motions for (a) summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure, (b)
attorney's fees and costs, and (c) sanctions against Plaintiff
pursuant to Rule 11(c) of the Federal Rules of Civil Procedure,
as well as Plaintiff's letter request (which this Court construes
as a motion) for sanctions against Defendants and/or their
counsel. For the reasons stated below, Defendants' motion for
summary judgment is GRANTED and their motion for attorney's fees,
costs, and sanctions is DENIED. Plaintiff's motion for sanctions
is also DENIED. BACKGROUND*fn1
In approximately June 1996, Plaintiff began his employment as a
"Lead Consultant" in the Human Resources Department of Citibank's
New York Consumer Bank ("NYCB").*fn2 In this position,
Plaintiff reported directly to William Fisse, then Director of
Human Resources for NYCB. Plaintiff alleges that in September
1996, he began having health problems. (Compl. ¶ 32.) Shortly
thereafter, Plaintiff contends, he discussed his health problems with Fisse. (Compl. ¶ 33.)
Plaintiff alleges that Fisse reacted in an unsupportive manner,
distancing himself from Plaintiff and "start[ing] a campaign of
both questioning [Plaintiff] about his personal affairs, his
marriage and his health." (Pl.'s Opp'n to Defs.' Summ. J. Mot.
("Pl.'s Opp'n") at 8; Compl. ¶¶ 35-36.)
In April 1997, Plaintiff was transferred to the Long Island
Region of NYCB, where he worked in the position of
Generalist.*fn3 In August 1997, Fisse was formally
transferred out of NYCB and did not thereafter supervise Kendall.
Kerry Piercy served as Fisse's interim replacement until February
1998, when Laurie Ledford was appointed as Director of Human
Resources for NYCB. In approximately September 1998, NYCB's Long
Island and Queens business regions were consolidated and one
Generalist position (Plaintiff's) was eliminated. In November
1998, Plaintiff received a notice of job discontinuance and was
Plaintiff remained in his position during a "notice period"
through February 5, 1999. After that date, he was placed on
salary continuation and received his full salary and medical
insurance coverage for six months (through August 6, 1999).
Plaintiff never applied for disability benefits, even though he
was eligible to do so through February 5, 1999.
On August 18, 1999, Plaintiff applied for Social Security
Disability Insurance ("SSDI"), stating in his application that he
"became unable to work because of [his] disabling condition on November 15, 1998." (Decl. of Joseph
Baumgarten ("Baumgarten Decl.") Ex. 15.) Plaintiff also stated
that he "worked from 1984 through November, 1998 when [he] was
laid-off rather than be placed on disability leave." (Id.) After
evaluating his disability claim, the Social Security
Administration (SSA) determined that Plaintiff had become
disabled under SSA rules on November 15, 1998 and was eligible
for SSDI benefits beginning May 1999. (Baumgarten Decl. Ex. 16.)
SSA thereafter began to pay Plaintiff disability benefits.
I. Summary Judgment Standard
Summary judgment is proper "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 a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The court's
function is not to resolve disputed issues of fact, but only to
determine whether there is a genuine issue to be tried. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir.
1988). It is well-established that "summary judgment may be
appropriate even in the fact-intensive context of discrimination
cases." Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d
Cir.), cert. denied, 534 U.S. 993 (2001); Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). The party seeking summary judgment has the burden of showing
that no genuine factual dispute exists. See Cronin v. Aetna
Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the movant
has made a showing that there are no genuine issues of material
fact to be tried, the burden shifts to the nonmoving party to
raise triable issues of fact. See Anderson, 477 U.S. at 250.
Mere conclusory allegations will not suffice. Instead, the
nonmoving party must present "significant probative supporting
evidence" that a factual dispute exists. Fed.R.Civ.P. 56(e);
Anderson, 477 U.S. at 249.
A genuine issue for trial exists if, based on the record as a
whole, a reasonable jury could find in favor of the nonmoving
party. Id. at 249. In conducting its analysis, the court must
draw all reasonable inferences and resolve all ambiguities in the
nonmoving party's favor, and construe the facts in the light most
favorable to the nonmoving party. Anderson, 477 U.S. at
254-255; Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir.
1995). However, the court should grant summary judgment where the
nonmoving party's evidence is merely colorable, conclusory,
speculative, or not significantly probative. See Parker v.
Chrysler Corp., 929 F. Supp. 162, 165 (S.D.N.Y. 1996).
II. Plaintiff's ADA Claims
A Plaintiff seeking to bring an action under the ADA in New
York State must file a charge with the Equal Employment
Opportunity Commission ("EEOC") within 300 days of the alleged
discriminatory act. 42 U.S.C. § 12117(a), incorporating 42 U.S.C. § 2000e-5(e)(1) (2004). See also Butts v. City of N.Y. Dep't
of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). The
statute of limitations begins to run when the employee receives
notice of an allegedly discriminatory decision not when the
employee is actually impacted by it. Del. State Coll. v. Ricks,
449 U.S. 250 (1980); Miller v. ITT Corp., 755 F.2d 20, 24 (2d
In the present case, it is undisputed that Plaintiff received a
job discontinuance notice sometime in November 1998, and that
Plaintiff believed that he would not be offered another job at
Citibank. (Baumgarten Decl., Ex. 4 at 47-48, 71-72, 709-10.)
Plaintiff's EEOC charge was not filed until November 5, 1999,
well beyond the 300 day statute of limitations. (See Baumgarten
Decl., Ex. 2.) Therefore, Plaintiff's ADA claims are time-barred
and must be dismissed in their entirety.
III. Plaintiff's State and City Claims
When Plaintiff commenced this action on August 25, 2000, he was
a domiciliary of California. (See Baumgarten Decl. Ex. 3, ¶ 1.)
Thus, this Court continues to have jurisdiction over Plaintiff's
NYSHRL and NYCHRL claims by virtue of diversity of citizenship.
28 U.S.C. § 1332.
A cause of action brought under NYSHRL and NYCHRL is subject to
a three year statute of limitations. See N.Y. CPLR § 214(2)
(2004); N.Y.C. Admin. Code § 8-502(d) (2001); Quinn v. Green Tree Credit Corp.,
159 F.3d 759, 765 (2d Cir. 1998). Because the instant action was filed on
August 25, 2000, any incidents of discrimination alleged to have
occurred prior to August 25, 1997 would ordinarily be
time-barred, unless Plaintiff was subjected to a `continuing
violation' of such a character as to extend the limitations
"The continuing-violation exception `extends the limitations
period for all claims of discriminatory acts committed under an
ongoing policy of discrimination even if those acts, standing
alone, would have been barred by the statute of limitations.'"
Quinn, 159 F.3d at 765 (emphasis in original) (citations
omitted). However, multiple and even similar discriminatory acts
that are not the result of a discriminatory policy do not amount
to a continuing violation. Id. A continuing violation may be
found to exist, however, where a plaintiff can prove that the
employer has permitted 1) related and 2) repeated instances of
discrimination to continue unremedied so as to amount to a
discriminatory policy or practice, and 3) the circumstances are
such that the plaintiff was not obligated to have sued earlier.
Berry v. Board of Supervisors of La. State Univ., 715 F.2d 971,
981 (5th Cir. 1983); Quinn, 159 F.3d at 765; Johnson v. Nyack
Hosp., 891 F. Supp. 155, 165 (S.D.N.Y. 1995); Dodson v. N.Y.
Times Co., No. 97 CIV 3838, 1998 WL 702277, at *3-4 (S.D.N.Y.
Oct. 7, 1998); McKenney v. Off-Track Betting Corp.,
903 F. Supp. 619, 622 (S.D.N.Y. 1995); Riedenger v. D'Amicantino,
974 F. Supp. 322, 326 (S.D.N.Y. 1997). Here, Plaintiff's complaint points to similar acts of
discrimination occurring with sufficient frequency to satisfy the
first two prongs of the Berry test.*fn4 For example,
Plaintiff alleges that from September 1996, when he informed
Fisse of his health problems, to November 1998, the date of his
termination, Plaintiff's supervisors at NYCB continually made
inappropriate comments and asked unduly probing questions with
respect to his disability; distanced themselves personally and
professionally from Plaintiff; spoke inappropriately about
Plaintiff's health condition with his clients; "chastised"
Plaintiff for "acting strange and for discussing his health" with
co-workers; demoted Plaintiff in retaliation for a complaint
Plaintiff made about mistreatment; and eventually terminated
Plaintiff on the basis of his disability. (Compl. ¶¶ 33-36,
41-47, 50, 53-58, 61-62, 65, 67-70, 75.)
As to the final prong of the Berry test, however, this Court
cannot find, as a matter of law, that the circumstances
surrounding this alleged discrimination were such that a
"reasonable person in the plaintiff's position would not have
sued earlier." Johnson, 891 F. Supp. at 165. Here, Plaintiff
alleges that in April 1997, "Fisse demoted Plaintiff from Lead
Human Resources Consultant to Generalist in only the Long Island
region of the bank." (Pl.'s Rule 56.1(b) Statement ¶ 8.) Such an
overt act, in combination with the alleged discriminatory statements and
conduct described above, would have been sufficient to warrant
the commencement of litigation. See Johnson, 891 F. Supp. at
166. No reason has been advanced as to why Plaintiff's claims of
discrimination were not asserted until August 2000. Accordingly,
this Court holds that the continuing violation doctrine does not
apply, and that Plaintiff's complaints relating to Fisse's
conduct toward him before August 1997 are time-barred.
Nevertheless, Plaintiff's claim that he was unlawfully terminated
is timely under NYSHRL and NYCHRL.
C. Plaintiff's Discriminatory Termination Claim
To make out a prima facie case of unlawful termination under
NYSHRL and NYCHRL, Plaintiff must establish: (1) that Defendants
are subject to NYSHRL and NYCHRL; (2) that he suffers from a
disability within the meaning of NYSHRL and NYCHRL; (3) that he
is otherwise qualified to perform the essential functions of his
job, with or without reasonable accommodation; and (4) that
Defendants took adverse employment action against him because of
his disability. See Giordano v. City of New York,
274 F.3d 740, 747 (2d Cir. 2001); Woolley v. Broadview Networks, Inc.,
No. 01 CIV 2526, 2003 WL 554754, at *8 (S.D.N.Y. Feb. 26, 2003);
Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144,
147 (2d Cir. 1998); Torrico v. Int'l Bus. Mach. Corp., No. 01
CIV 841, 2004 WL 439493, at *12 (S.D.N.Y. March 9, 2004). Defendants do not dispute that they are subject to the NYSHRL and
NYCHRL,*fn5 nor, for purposes of this motion, that Plaintiff
suffers from a disability within the meaning of NYSHRL and
NYCHRL. (Defs.' Mot. at 10-11.)*fn6 Moreover, it is beyond
dispute that Defendants' discharge of Plaintiff constitutes an
adverse employment action.*fn7 The principal issues for the Court to decide are whether Plaintiff
was otherwise qualified to perform the essential functions of his
job, with or without reasonable accommodation, and, if so,
whether Defendants discharged Plaintiff because of his disability
rather than on account of some nondiscriminatory reason.
1. Plaintiff's Qualification to Perform the Essential
Functions of His Job With or Without Reasonable Accommodation
Defendants argue that Plaintiff "has repeatedly stated in sworn
testimony that, given his alleged condition, he was incapable of
performing as a human resources professional at the time of his job discontinuance." (Defs.' Mot.
at 11.) Defendants also contend that Plaintiff "readily admitted
that there was no reasonable accommodation that would allow him
to perform his job." (Id. at 12.) To support these propositions,
Defendants cite to several statements made by Plaintiff in
depositions in 2001, e.g.:
Q: Do you believe you can't work?
* * *
Q: At any time since you received the job
discontinuance from Citibank, have you felt well
enough to be able to work?
* * *
Q: . . . [A]t any time since you left Citibank, . . .
have you ever felt that you might be well enough,
mentally and physically, to work if you were provided
with an accommodation, that is being able to work at
home or any other kind of accommodation? . . .
Q: Sitting here today, can you think of any kind of
accommodation, whether it is working at home or any
special assistance, with which you could feel that
you could work?
A: No, because if you can't remember, I mean, how do
(Baumgarten Decl., Ex. 4 at 146, 442, 448-49) (emphasis added.)
Defendants' reliance on these statements is misplaced.
Plaintiff made all of these statements during two depositions in
June 2001, and the statements focus only on the time period
following his job termination. Plaintiff's deposition testimony
does not indicate that he perceived himself as suffering from
physical and/or mental disabilities that made him incapable, even
with reasonable accommodation, of performing as a human resources
professional at the time of (or any time prior to) his job
discontinuance. In fact, his deposition testimony indicates otherwise: ". . . had
I gotten an accommodation and/or been able to go out on
disability, what kind of condition would I be in today? You never
know. I could have gotten different medical treatment." (Id. at
720.) Such a statement indicates that a triable issue remains as
to whether or not Plaintiff was qualified to perform his job at
NYCB with reasonable accommodation.
Having been classified as disabled by the SSA, however,
Plaintiff has the burden, even at the summary judgment stage, of
explaining the inconsistency between this classification and the
prima facie requirement that he be able to perform the essential
functions of his job, at least with a reasonable accommodation.
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 798, 807
(1999); see also Disanto v. McGraw Hill, 220 F.3d 61, 65
(2d Cir. 2000); Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 8 (2d Cir. 1999); Parker v. Columbia Pictures
Indus., 204 F.3d 326 (2d Cir. 2000); Nodelman v. Gruner & Jahr
USA Publ'g, No. 98 CIV 1231, 2000 WL 502858, at *7-9 (S.D.N.Y.
April 26, 2000); Felix v. N.Y. City Transit Auth., 154 F. Supp.2d 640,
651-52 (S.D.N.Y. 2001). Defendants persuasively argue
that Kendall "does not even attempt to offer an explanation.
Indeed, he readily conceded that he is and has been totally and
completely disabled and unable to work" since November 15, 1998.
(Defs.' Mot. at 12.)
Plaintiff asserted in his SSDI application on August 18, 1999
that he was "unable to work because of [his] disabling condition
on November 15, 1998," and he affirmed in deposition testimony
that SSA classified him as permanently disabled in 1999, dating
to November 15, 1998. (Baumgarten Decl. Ex. 15; Ex. 4 at 143-44.)
Yet Plaintiff now asserts, without citing to any evidentiary
support, that "the facts show that Kendall was qualified for the
position for which he was hired and later from which he was
discharged."*fn8 (Pl.'s Opp'n at 34.)
Plaintiff has failed to explain this inconsistency between the
statements in his SSDI application and his claim that he was
qualified to perform the essential functions of his job with or
without reasonable accommodation. Absent such an explanation,
there is no basis for a reasonable juror to conclude that
Plaintiff could perform the essential functions of his job at
NYCB. Defendants are therefore entitled to summary judgment
dismissing Plaintiff's discriminatory termination claim.
IV. Plaintiff's Breach of Contract Claim
Count One of Plaintiff's Complaint alleges that on May 9, 1996,
Plaintiff and Citigroup entered into "an agreement" that included
an implied covenant of good faith and fair dealing, and that
Citigroup breached the agreement and covenant by discontinuing
Plaintiff's job. (Compl. ¶¶ 95-100.) Under New York law, absent a
contrary contractual provision, employment is "presumed to be a
hiring at will which may be freely terminated by either party at any time for any
reason or even for no reason." Murphy v. American Home Prod.
Corp., 58 N.Y.2d 293, 300 (1983). No implied obligation of good
faith and fair dealing exists with respect to an at-will
employment contract. Id. at 304-05. Therefore, under New York
law, "absent a constitutionally impermissible purpose, a
statutory proscription, or an express limitation in the
individual contract of employment, an employer's right at any
time to terminate an employment at will remains unimpaired."
Id. at 305.
The parties dispute whether such an agreement exists. At
Plaintiff's deposition, Plaintiff's counsel clarified that the
May 9, 1996 "agreement" referred to in the Complaint is actually
the combination of a job offer letter and a verbal agreement with
respect to a "standard relocation package." (Baumgarten Decl. Ex.
4 at 193-94.) Plaintiff's counsel specifically stated that "[i]t
is not like he got some contract that laid everything out. . . .
This [May 9, 1996 letter] appears to encapsulate in sum and
substance the agreement between Mr. Kendall and Citibank, but
this is not a contract. That is all I have. That is all I know of
other than what Mr. Kendall testified about." (Id.) At that same
deposition, Defendants' counsel asked Plaintiff whether he
received any booklets or packages, in addition to the May 9, 1996
letter, before entering into employment with Citibank. (Id. at
191-93.) Plaintiff responded, "[n]o. I mean I don't remember. The
only thing I can tell you is I knew it came with whatever the
relocation package said I was going to get. That is the only
other type of compensation I can remember was included." (Id. at 193.) In his Opposition Brief,
Plaintiff argues, without citing to evidentiary support, that he
and Citibank had entered into an "explicit contract." (Pl.'s
Opp'n ¶ 40.)
As Defendants persuasively argue, the "purported May 9, 1996
`agreement' was simply an offer letter that did not purport to
employ Kendall for a definite duration." (Defs.' Mot. at 20.)
Additional support for Defendants' argument comes from the
Citibank Management Guide to U.S. Human Resources Policy, which
expressly preserves the at-will employment relationship with
respect to Citibank employees: "[t]his guide should not be
construed as a guarantee of continued employment. Employment with
the corporation is on an `at-will' basis. . . ." (Baumgarten
Decl. Ex. 5 at i.)*fn9
The Court agrees with Defendants. Because Plaintiff was an
at-will employee, Citibank was entitled to terminate him at any
time for a legitimate, nondiscriminatory reason. Accordingly,
Plaintiff's breach of contract claim must be dismissed.
V. Plaintiff's ERISA Claim
Count Four of Plaintiff's Complaint alleges that "[b]y
improperly terminating Kendall, Citigroup refused to pay Kendall
proper severance, caused him to forfeit his benefits, this action
of defendants constituting a violation of ERISA [sic]." (Compl. ¶ 118.) Plaintiff claims that because Defendants violated ERISA,
Plaintiff is entitled to "severance, reinstatement in the
retirement plan and statutory damages, including attorney's fees,
and costs." (Id. ¶ 119.) Although Plaintiff's Complaint is vague,
Plaintiff presumably sought to raise a claim under § 510 of
ERISA, 29 U.S.C. § 1140, which prohibits the discharge of a
benefit plan participant "for the purpose of interfering with the
attainment of any right to which such participant may be entitled
under the plan." "To prevail in a claim under § 510 of ERISA, a
plaintiff must show that his employer had the specific intent to
engage in conduct prohibited by that section; if loss of benefits
was merely a consequence of, as opposed to a motivating factor
behind, the termination, then plaintiff's claim will fail."
Brink v. Union Carbide Corp., 41 F. Supp.2d 406, 416-417
(S.D.N.Y. 1999), aff'd, 210 F.3d 354 (2d Cir. 2000).
Plaintiff acknowledged during his deposition that he had
received proper severance payments. (Baumgarten Decl., Ex. 4 at
444-446.) Moreover, there is no evidence whatsoever that there
was any intent on Defendants' part "1) to deprive [Plaintiff] of
benefits, or even 2) that any decision-maker knew where
[Plaintiff] stood vis-a-vis retirement benefits, then, or in the
future."*fn10 Brink, 41 F. Supp.2d at 417. Plaintiff must
prove more than the simple fact that his termination precluded
him from vesting into a pension plan; he must also show that
Citibank had an unlawful purpose in firing him. Id., Dister v. Continental Group, Inc.,
859 F.2d 1108, 1111 (2d Cir. 1988). Because there is no genuine issue of
material fact with respect to Plaintiff's ERISA claim,
Defendants' motion for summary judgment is granted.
VI. Attorney's Fees, Costs, and Sanctions
Defendants claim that they are entitled to attorney's fees and
costs pursuant to 42 U.S.C. § 12205 and Christianburg Garment
Co. v. EEOC, 434 U.S. 412, 422 (1978), as Plaintiff's action was
"frivolous, unreasonable and groundless." (emphasis in
original) (Defs.' Mot. at 23.) Additionally, they claim that
attorney's fees are an appropriate sanction, since Plaintiff and
his attorney have acted in bad faith, engaged in deceitful
conduct, and demonstrated disdain for the judicial process.
(Defs.' Mot. at 23-25.) Plaintiff, in turn, asserts that this
Court should sanction Defendants and/or their counsel for
dishonest conduct. (Letter from Ruth Pollack to Judge Johnson of
4/9/03 at 3).
This Court finds that neither attorney's fees, costs, nor
sanctions are appropriate in this case. Plaintiff's action was
not sufficiently "frivolous, unreasonable, or groundless" to
merit the award of attorney's fees and costs to Defendants under
42 U.S.C. § 12205 or Christianburg. Additionally, neither party
has sufficiently demonstrated that the other "has `acted in bad
faith, vexatiously, wantonly, or for oppressive reasons'" that
would warrant the imposition of a sanction. Chambers v. NASCO,
Inc., 501 U.S. 32, 45-46 (1991). The specific acts misconduct
alleged by both parties did not result in a substantially
increased expenditure of time and services, nor was it of much relevance to the legal and factual issues before
this Court. Cf. Rybner v. Cannon Design, Inc., 1996 WL
470668, at *6 (S.D.N.Y. Aug. 20, 1996); Tedesco v. Mishkin,
629 F. Supp. 1474, 1486 (S.D.N.Y. 1986). Accordingly, Defendants'
application for attorney's fees and costs, and Defendants' and
Plaintiff's applications for sanctions, are DENIED.
For the reasons stated herein, Defendants' motion for summary
judgment is GRANTED and their motion for attorney's fees, costs,
and sanctions is DENIED. Plaintiff's motion for sanctions is also