United States District Court, S.D. New York
June 24, 2005.
FRONTLINE COMMUNICATIONS INTERNATIONAL, INC., Plaintiff,
SPRINT COMMUNICATIONS COMPANY, L.P., Defendant and Third Party Plaintiff, v. JOHN MILLWOOD, Third Party Defendant and Counterclaimant.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Sprint Communications Company, L.P. ("Sprint") moves for
summary judgment on John Millwood's counterclaim for unlawful
retaliation under Title VII of the Civil Rights Act of 1964. For
the reasons that follow, Sprint's motion is granted. BACKGROUND
This action originally involved a contract dispute between
Sprint and several telecommunications resellers. In 2001, the
resellers sued Sprint for adding a surcharge to their bill in
excess of a contractually specified rate. In the course of the
litigation, Sprint brought third-party claims against its former
employee, John Millwood. Sprint alleged that Millwood, who had
signed the contracts with the resellers on Sprint's behalf,
improperly concealed the nature of the resellers' business in
return for bribes and the promise of enhanced commissions.
Millwood filed an answer asserting counterclaims against Sprint
for race discrimination and unlawful retaliation under Title VII
of the Civil Rights Act. Millwood alleged that, after he was laid
off in a business reorganization in late 2001, Sprint failed to
reassign him to an equivalent position because of his race.
Millwood also alleged that Sprint asserted third-party claims
against him in retaliation for his prior complaint of race
After partial summary judgment was granted in favor of the
resellers, see Frontline Comm. Int'l, Inc. v. Sprint Comm.
Co., L.P., 178 F. Supp.2d 432 (S.D.N.Y. 2001), all disputes in
the action except those between Sprint and Millwood were settled.
Sprint moves for summary judgment on Millwood's counterclaims on the ground that Millwood has failed to establish a prima facie
case of discrimination or retaliation. Millwood, in turn,
submitted a motion seeking summary judgment on Sprint's complaint
on the ground that, under the Federal Communications Act,
47 U.S.C. § 201 et seq., Sprint could not lawfully deny to
resellers the contracts that it alleges Millwood improperly
signed on its behalf. Accordingly, Millwood contends, Sprint may
not assert claims against him for signing these contracts.
At oral argument on January 5, 2005, Sprint's motion for
summary judgment on Millwood's discrimination claim was granted.
Decision was reserved on the remaining motions. This opinion
addresses only Sprint's motion for summary judgment on Millwood's
retaliation claim. DISCUSSION
A motion for summary judgment should be granted if the court
determines, from the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, 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; see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material
fact exists when the evidence is such that a reasonable finder of
fact could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Richardson v.
Coughlin, 763 F. Supp. 1228, 1234 (S.D.N.Y. 1991). In deciding
whether a genuine issue exists, the court must "examine the
evidence in the light most favorable to the party opposing the
motion, and resolve ambiguities and draw reasonable inferences
against the moving party." In re Chateaugay Corp., 10 F.3d 944,
957 (2d Cir. 1993). The moving party bears the initial burden of
informing the court of the basis for its motion and identifying
the matter that it believes demonstrates the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 323. Summary
judgment is appropriate if the nonmoving party fails "to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof." Id. Sprint contends that it is entitled to summary judgment because
Millwood has not met his burden of establishing a prima facie
case of retaliation under Title VII of the Civil Rights Act.
Title VII makes it unlawful for an employer to discriminate
against an employee because that employee "has opposed any
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Title VII
is violated when "a retaliatory motive plays a part in adverse
employment actions toward an employee, whether or not it was the
sole cause." Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,
1039 (2d Cir. 1993). Title VII's anti-retaliation provision
protects not only employees but also former employees, such as
Millwood, suing for post-employment retaliation. See Robinson
v. Shell Oil Co., 519 U.S. 337, 345 (1997).
In deciding a summary judgment motion on a Title VII
retaliation claim, a court applies the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.
2003); Monte v. Ernst & Young LLP, 330 F. Supp.2d 350, 364
(S.D.N.Y. 2004). Plaintiff must first establish a prima facie case of retaliation, by showing "i) participation in a protected
activity known to the defendant; ii) an employment action
disadvantaging the plaintiff; and iii) a causal connection
between the protected activity and the adverse employment
action." Richardson v. New York State Dep't of Corr. Serv.,
180 F.3d 426, 443 (2d Cir. 1999); accord Torres v. Pisano,
116 F.3d 625, 639 (2d Cir. 1997). If plaintiff establishes a prima
facie case, the burden shifts to the employer to "point? to
evidence that there was a legitimate, nonretaliatory reason for
the complained of action." Richardson, 180 F.3d at 443. If the
employer fails, plaintiff prevails. If the employer succeeds, the
burden reverts to plaintiff to "demonstrate that there is
sufficient potential proof for a reasonable jury to find the
proffered legitimate reason merely a pretext for impermissible
Sprint argues that Millwood has failed to make a prima facie
showing of "an employment action disadvantaging" him,
Richardson, 180 F.3d at 443, because he has proffered no
evidence that this lawsuit has affected his ability to obtain
employment. To establish a prima facie case of retaliation,
Millwood must show that the retaliatory action affected his
employment or future employment prospects. See Torres,
116 F.3d at 625 (action by employer, "even though. . . . adverse to
the charging employee," did not violate Title VII because it did
not "affect the complainant's work, working conditions, or
compensation") (internal quotation omitted); Ginsberg v.
Valhalla Anesthesia Assocs., P.C., 971 F. Supp. 144, 148
(S.D.N.Y. 1997) ("[T]here must be some impact on plaintiff's
employment or prospective employment for [the alleged
retaliation] to constitute an `employment action.'"); see also
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.
1997) (observing that the Age Discrimination in Employment Act,
like Title VII, "protects individuals from actions [that are]
injurious to current employment or the ability to secure
future employment") (emphasis in original). Millwood contends that, as a result of Sprint's accusations of
fraud, disloyalty, and deceit against him he has been prejudiced
in his ability to secure employment. Allegations of fraud such as
those asserted by Sprint may diminish future employment prospects
by damaging one's reputation. See Wanamaker, 108 F.3d at 466
(observing that a retaliation claim can be maintained where a
former employer sullies plaintiff's reputation, thereby affecting
"tangible future employment objectives") (emphasis in
original); Yankelevitz v. Cornell Univ., No. 95 Civ. 4593
(PKL), 1996 WL 447749, at *5 (S.D.N.Y. Aug. 7, 1996) (plaintiff
stated claim for retaliation where he "could prove a set of
fact[s] to show that defendants' counterclaim mars plaintiff's
professional reputation. . . . [and thereby has] an adverse
impact on plaintiff's employment prospects"); see also Berry
v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)
(institution of criminal proceedings against a former employee
was an `adverse employment action' because such public
proceedings "carr[y] a significant risk of humiliation, damage to
reputation, and a concomitant harm to future employment
Millwood, however, has not come forward with any evidence that
this lawsuit has affected his ability to obtain employment. The
only evidence in the record on this issue undercuts Millwood's position. At his deposition, Millwood testified that
eight months after this lawsuit was commenced he obtained a
position with another telecommunications company. He also
testified that he stayed with that company for five months, until
early 2003 when he left by mutual agreement for reasons unrelated
to his dispute with Sprint. In addition, Millwood testified that
he has been working as a Christian minister.
Millwood has not proffered any evidence that, in the more than
three years since Sprint sued Millwood, he has been less able to
obtain employment than before. Without such evidence, Millwood's
bare assertion that he has been prejudiced in his ability to
secure employment is insufficient to survive a motion for summary
judgment. Cf. Probst v. Ashcroft, 2 Fed. Appx. 469, 471-72
(7th Cir. 2001) ("[H]ypothetical possibilities are not materially
adverse employment actions."); Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) ("[T]he asserted
impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff's employment.").
CONCLUSION For the foregoing reasons, Sprint's motion for summary judgment
on Millwood's retaliation claim is granted.
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