The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
This employment discrimination case, based upon plaintiff's
race and age, is before the Court on defendant's motion (# 34)
for summary judgment. For the reasons that follow, the Court
grants the motion. BACKGROUND
Despite being given an extraordinary lengthy amount of time to
respond, and a detailed Irby notice indicating that he had to
respond to defendant's motion for summary judgment with a
memorandum of law, a list of disputed facts, and evidentiary
proof in admissible form, plaintiff has completely failed to do
so. Accordingly, pursuant to the local rules of this Court,
defendant's unopposed statement of facts is adopted in its
1. Plaintiff Robert Frazier was hired by NPI at its
Rochester, NY office on July 2, 2001 as an Inside
Account Executive. (Flatley Affidavit ¶ 4; Coomes
Affidavit ¶ 4)
2. For most of plaintiff's employment his manager was
Bill Flatley, General Manager for the Rochester
office. (Flatley Affidavit ¶ 5; Coomes Affidavit ¶ 5)
3. Inside Account Executives are responsible for
achieving an established sales quota through managing
inbound/outbound sales calls. Additionally, along
with the Customer Account Representatives in the
office, the Inside Account Executive is responsible
for handling sales inquiries and service requests
from walk-in customers. Consequently, plaintiff's job
required him to be in constant contact with current
and potential customers. (Coomes Affidavit ¶ 7;
Appendix Exhibit H).
4. Plaintiff received formal training at a "Getting
Directly Connected" 3-day seminar on August 21-23,
2003, and additional formal training in sales on
October 16-18, 2001. (Appendix Exhibit M). Plaintiff
also received informal training on phones and sales
throughout his employment by his manager and the
Customer Account Representatives, and was given two
manuals on sales and cell phones to review. (Coomes
Affidavit ¶¶ 24-25)
5. Plaintiff was aware that NPI has an Attendance and
Punctuality policy. (Coomes Affidavit ¶ 8; Appendix
Exhibit I, p. 10).
6. Plaintiff was aware that one of NPI's guiding
principles is to strive for 100% customer
satisfaction. (Coomes Affidavit ¶ 8; Appendix Exhibit
I, p. 4).
7. Sometime in the end of July or beginning of
August, 2001, Tara Dolan, a Customer Account
Representative, received phone calls from some of the
accounts she managed. These customers called to
complain about the treatment they had received from
the plaintiff when they came into the office. (Dolan
Affidavit ¶ 5). 8. On August 9, 2001, Tara Dolan sent Bill Flatley an
email detailing specific customer complaints she had
received regarding the plaintiff. (Dolan Affidavit ¶
10, Flatley Affidavit ¶ 14, Coomes Affidavit ¶ 9;
Appendix Exhibit R, pp. 1-2).
9. On or about August 15, 2001, Mr. Flatley spoke
with plaintiff regarding the customer complaints
documented in Ms. Dolan's email. (Flatley Affidavit ¶
15; Coomes Affidavit ¶ 10).
10. On or about October 25, 2001, Mr. Flatley had a
coaching session with the plaintiff about plaintiff's
attitude with customers. (Flatley Affidavit ¶ 16;
Coomes Affidavit ¶ 11).
11. On or about October 26, 2001, Ms. Dolan sent an
email to Mr. Flatley stating that plaintiff needed to
gain product knowledge, learn better customer
interaction, stay off personal phone calls and assist
in the office when needed. (Dolan Affidavit ¶ 15;
Flatley Affidavit ¶ 17; Appendix Exhibit R, pp. 3-4).
12. On November 7, 2001, Ms. Dolan sent an email to
Mr. Flatley, Susan Lenda and Timothy Magin asking
what plaintiff's hours were because he was not coming
in every day at 8:00 o'clock A.M. as scheduled.
(Dolan Affidavit ¶ 17; Flatley Affidavit ¶ 18;
Appendix Exhibit R, p. 5)
13. On December 3, 2001, Ms. Dolan sent an email to
Mr. Flatley, Susan Lenda and Timothy Magin informing
them that plaintiff had difficulty taking his lunch
on time. (Dolan Affidavit ¶ 17; Flatley Affidavit ¶
18; Appendix Exhibit R, p. 6).
14. On or about December 7, 2001, a customer named
Beverly Jackson came into the office. This customer
complained to Mr. Flatley that plaintiff was rude and
condescending and that she ripped up her paperwork
and left the office. After plaintiff called her cell
phone a number of times, the customer came back into
the office to lodge a complaint with Mr. Flatley.
(Flatley Affidavit ¶ 19; Coomes Affidavit ¶ 12;
Appendix Exhibit N).
15. On or about December 7, 2001, Mr. Flatley called
plaintiff into his office to discuss the Beverly
Jackson complaint. Plaintiff told Mr. Flatley that
the customer was "getting an attitude" with him. He
further told the customer to "go sit down over there.
Get away from me." At the end of the meeting
plaintiff stated: "I am a black man and she is a
black woman. I understand my race better than you do.
A man can never really understand what a woman
wants." Mr. Flatley ended the meeting and contacted
Christine Coomes, People Development Manager.
(Flatley Affidavit ¶ 20; Coomes Affidavit ¶ 13;
Appendix Exhibit N).
16. Mr. Flatley documented this meeting in a memo
"For the Record" that was sent to Ms. Coomes and was placed in plaintiff's
personnel file. (Flatley Affidavit ¶ 21; Coomes
Affidavit ¶ 12; Appendix Exhibit N).
17. On December 13, 2001, Mr. Flatley and Ms. Coomes
met with the plaintiff to develop a written
performance plan. At this meeting plaintiff was
informed that he needed to increase his sales as he
had only performed at 25% of his quota to year to
date. Mr. Flatley also spoke to plaintiff about the
importance of being on time for work and the
importance of speaking to customers in a professional
manner and tone. Mr. Flatley reiterated that NPI has
a 100% customer satisfaction policy and that customer
complaints are not satisfactory. During the same
meeting, plaintiff was informed that he needed to
gain product knowledge to ensure that he was giving
customers accurate and complete product/service
information and that customers questions/complaints
would be addressed and answered to the customer's
satisfaction. (Flatley Affidavit ¶ 22; Coomes
Affidavit ¶ 13; Appendix Exhibit O).
18. After the meeting, Mr. Flatley drafted a written
performance plan and sent it to Ms. Coomes for her
review. (Flatley Affidavit ¶ 23; Coomes Affidavit ¶
14; Appendix Exhibit O).
19. On January 2, 2002, Mr. Flatley reviewed the
written performance plan with the plaintiff and
plaintiff signed it. (Flatley Affidavit ¶ 24; Coomes
Affidavit ¶ 14; Appendix Exhibit O).
20. On January 3, 2002, plaintiff was coached by Mr.
Flatley about the importance of giving customers
options when they came in for repairs on their
phones. (Flatley Affidavit ¶ 26).
21. On January 7, 2002, Mr. Flatley received a call
from a customer named Steven Diaz. The customer
complained that plaintiff was repeatedly rude to him.
(Flatley Affidavit ¶ 27).
22. On January 8, 2002, Mr. Flatley again coached
plaintiff on the importance of customer service and
satisfaction. (Flatley Affidavit ¶ 28).
23. On January 14, 2001, Mr. Flatley called plaintiff
into his office at the end of the day and terminated
plaintiff's employment. Mr. Flatley went over the
written performance plan at that time and informed
plaintiff that it appeared he chose not to accept the
coaching Mr. Flatley had given him. Because of the
receipt of another customer complaint, failure to
meet his sales quota, and tardiness, his employment
was terminated. (Flatley Affidavit ¶¶ 29-30; Coomes
Affidavit ¶ 15).
24. Mr. Flatley documented the circumstances leading
to plaintiff's termination in an email to Ms. Coomes
on January 24, 2002. (Flatley Affidavit ¶ 31, Coomes Affidavit ¶ 16, Appendix Exhibit Q).
25. Plaintiff never met his sales quota for any month
during his employment with NPI. The percentages of
quota plaintiff achieved are as follows:
July 2001 27.73%
August 2001 37.91%
September 2001 30.33%
October 2001 18.72%
November 2001 29.62%
December 2001 64.03%
(Coomes Affidavit ¶ 17; Appendix Exhibit K).
26. To meet his quota, plaintiff was required to sell
55 phones per month. Mr. Frazier sold the following
number of phones:
July 2001 10
August 2001 9
(Coomes Affidavit ¶ 20; Appendix Exhibit L).
27. The following white and/or young (under 40)
individuals, who were employed in sales at NPI's
Rochester office during plaintiff's employment were
terminated for failure to meet sales quota:
All other sales personnel who were employed by NPI in
Rochester during plaintiff's employment are either
still employed with NPI or left voluntarily Thus,
five individuals who worked in sales at NPI in the
Rochester office in that time frame were terminated
involuntarily, of whom only one, the plaintiff, was
black or over 40. (Coomes Affidavit ¶ 22).
28. On or about January 23, 2002, plaintiff wrote a
letter to Mr. James Wiegandt, Area General Manager,
expressing his dissatisfaction with his termination.
In this letter, plaintiff stated that he believed his
termination to be "abrupt and completely unfair."
Plaintiff did not mention any issues of race in the
letter. He did admit that on occasion customers
lodged complaints against him. (Appendix Exhibit G,
pp. 1-2). 29. Attached to the letter was a survey that
plaintiff filled out. In his letter he stated that he
filled it out "on the week-end of January 11th." In
the survey he admitted that he needed to improve in
the areas of product knowledge and punctuality.
(Appendix Exhibit G, pp. 1,3).
(Defendant's Local Rule 56.1 Statement of Undisputed Material
The standard for granting summary judgment is well established.
Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he
movant must make a prima facie showing that the standard for
obtaining summary judgment has been satisfied." 11 MOORE'S
FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). That is,
the burden is on the moving party to demonstrate that the
evidence creates no genuine issue of material fact. See Amaker
v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the
non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing
the evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
Once that burden has been met, the burden then shifts to the
non moving party to demonstrate that, as to a material fact, a
genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only
if the fact has some affect on the outcome of the suit. Catanzaro v.
Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a
material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. In determining whether a genuine
issue exists as to a material fact, the court must view
underlying facts contained in affidavits, attached exhibits, and
depositions in the light most favorable to the non-moving party.
U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the
court must draw all reasonable inferences and resolve all
ambiguities in favor of the non-moving party. Leon v. Murphy,
988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49;
Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d
Cir. 2001), rev'd on other grounds Connecticut Dept. of Public
Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International
Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d
Cir. 1990). However, a summary judgment motion will not be
defeated on the basis of conjecture or surmise or merely upon a
"metaphysical doubt" concerning the facts. Bryant v. Maffucci,
923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986));
Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.
1986). Rather, evidentiary proof in admissible form is required.
FED. R. CIV.P. 56(e). Furthermore, the party opposing summary
judgment "may not create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by
omission or addition, contradicts the affiant's previous
deposition testimony." Hayes v. New York City, Department of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Of course, it is well settled that courts must be
"particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is
in question. Because direct evidence of an employer's
discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized
for circumstantial proof which, if believed, would show
discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d
Cir. 1997) (citations and internal quotations omitted). However,
the general rule holds and a plaintiff may not defeat a motion
for summary judgment merely by relying upon "purely conclusory
allegations of discrimination, absent any concrete particulars
which, if believed, would show discrimination." Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and
internal quotations omitted); Meiri v. Dacon, 759 F.2d 989, 998
(2d Cir. 1985).
Plaintiff, who is an African-American, asserts claims under
Title VII of the Civil Rights Act of 1964, which states in
It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, condition, or privileges of employment because
of such individual's race, color, religion, sex, or
national origin. . . .
42 U.S.C. § 2000e-2(a)(1). To make out a prima facie case of
wrongful discharge, a plaintiff must show the following: (1) that
he is a member of a protected class, (2) that he was "qualified"
for the position he held; (3) that he was discharged and (4) that
his discharge occurred in circumstances giving rise to an
inference of discrimination based on his membership in a
protected class. See Cronin v. Aetna Life Ins. Co.,
46 F.3d 196
, 204 (2d Cir. 1995).
Age Discrimination in Employment Act Claims
To establish a prima facie case in an ADEA action, a plaintiff,
who is over forty years old, must show that "(1) he was within
the protected age group; (2) he was qualified for the job; (3) he was discharged; and (4) the discharge occurred under
circumstances giving rise to an inference of age ...