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United States District Court, E.D. New York

May 25, 2004.


The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge


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 terminated.

  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 Cir. 1985).

  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

  A. Jurisdiction

  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.

  B. Timeliness

  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 period.

  "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?
A: Yeah.
* * *
Q: At any time since you received the job discontinuance from Citibank, have you felt well enough to be able to work?
A: No.
* * *
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? . . .
A: No.
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 you perform?
(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 DENIED.


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