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Francis v. Pactiv Corp.

March 21, 2007

NORRIS E. FRANCIS, JR., PLAINTIFF,
v.
PACTIV CORPORATION, RICHARD WAMBOLD IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, JIM MORRIS IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, SEAN CONDON IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND CHARLES VINOPAL IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Wall, Magistrate Judge

MEMORANDUM AND ORDER

Before the court is the motion for summary judgment by the defendants, Pactiv Corporation ("Pactiv"), Jim Morris, Sean Condon, and Charles Vinopal.*fn1 Plaintiff has opposed the motion, and a hearing was held before the undersigned on November 3, 2006. For the reasons set forth herein, the motion for summary judgment is granted.

BACKGROUND

The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

In February 2004, the plaintiff, Norris Francis, Jr. ("Francis"), commenced this action claiming that defendants discriminated against him because of his race and because of his age in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. §2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq.; 42 U.S.C. §1981; and New York State Human Rights Law, New York Executive Law, article 15 §296. Plaintiff further claims that his discharge constituted a breach of an implied contract.

Over the course of about nineteen years, Francis worked for a series of companies that, through various takeovers and mergers, became Pactiv Corporation in 1999. An organization chart provided by defendants is reproduced below:

---------------------------------[ Column 1 ]----------------------------------

Consumer Products

PPNA

Molded Fiber

---------------------------------[ Column 2 ]----------------------------------

PACTIV CORP.

Protective and Building

Products

---------------------------------[ Column 3 ]----------------------------------

Food Service/Food Packaging

Hexacomb

Slide-Rite

--------------------------------[ End Columns ]--------------------------------

Morris Aff., Ex. A, Docket Entry ("DE") [31]. Pactiv has three business groups, Consumer Products, Protective and Flexible Packaging, and Foodservice/Food Packaging. Defendants' Rule 56.1 Statement ("Defs' Stmt") ¶1. The Protective and Flexible Packaging group is further broken down into five business units, Protective Packaging North America ("PPNA"), Molded Fiber, Building Products, Slide-Rite, and Hexacomb. Id. ¶ 2. Defendants claim that each of these five business units "operates as a wholly independent business, separate and apart from every other unit." Id. ¶8. Each business unit is run by a General Manager or Business Manager who reports to the Senior Vice President and General Manager of the Protective and Flexible Packaging group. Id. ¶ 9. While plaintiff agrees that each unit "is responsible for its own management team, sales force, manufacturing and support staff, he "denies the allegation that these units operate as 'wholly independent business,' or are completely separate and apart from every other unit." Plaintiff's Rule 56.1 Counterstatement ("Pl.'s Stmt") ¶ 8.

The PPNA unit of the Protective and Flexible Packaging group manufactures and sells packaging products used primarily to protect goods shipped in commerce. In 2001, all PPNA Regional Sales Managers reported to one of three Directors of Sales, who in turn reported to defendant Sean Condon, PPNA Vice President of Sales. Plaintiff was employed as National Account Manager at PPNA and, beginning in 2001, also reported directly to Condon. Condon reported to the most senior official in the PPNA business unit, Andy Brewer, the Vice President and General Manager of PPNA. Brewer in turn reported to defendant Jim Morris, Senior Vice President and General Manager of the Protective and Flexible business group.

In December 2001, Pactiv, by written communication, announced a firm-wide reduction in force ("RIF") scheduled to take place effective January 15, 2002. Defts' Stmt ¶29. Pactiv advised that those employees affected by the RIF would only be permitted to transfer into open positions, and were eligible for severance pay of two weeks pay for each year of service to the company up to a maximum 26 weeks. Id. ¶¶30-31. Approximately seventy-seven employees firm-wide were let go in connection with this RIF. Vinopal Aff. ¶9.

Brewer, who joined Pactiv in September 2001, determined that there were too many layers of management between PPNA's senior staff and its customers and decided to restructure PPNA's workforce. Defs' Stmt ¶22. Specific to plaintiff's case, Brewer believed that the fact that others in the industry used the Vice President of Sales position to service national accounts provided those companies with a competitive advantage over PPNA, and that PPNA should revise its structure accordingly. Brewer Aff. ¶5. Having the Vice President of Sales service national accounts would render the National Account Manager position "inefficient and unnecessary." Id. Morris, as Senior Vice President and General Manager of the Protective and Flexible business group, approved Brewer's strategy in general and determined that the proposed restructuring was consistent with Brewer's stated business strategy, but he did not determine the appropriateness of the individual positions to be eliminated. Defs' Stmt ¶¶23-24, 33. In addition to the National Account Manager position held by Francis, Brewer and Condon decided to eliminate the three Director of Sales positions, all of which were held by Caucasian men. Id. ¶¶25-28.

Brewer claims that at the time he decided to eliminate the National Account Manager position and move that position's responsibilities for servicing national accounts to the Vice President of Sales, he was unaware of either the age or race of plaintiff. Brewer Aff. ¶5. Defendant Charles Vinopal, the Director of Human Resources for the Protective and Flexible business group assigned to service PPNA as well as the other business units within that group, testified that since plaintiff is over age 40 and a member of a minority group, his inclusion in the RIF raised a "red flag." Vinopal Dep. 108:13-21. He further testified he had the same reaction regarding any minority group member, woman, or employee older than 40 selected to participate in the RIF, id. 187:23-188:13, and that he did not see evidence of any discrimination in the determination to eliminate plaintiff's position. Id. 112:6-23.

On or about January 10, 2002, a meeting took place with Francis, Condon, and Vinopal. Francis was informed that the company was eliminating his position as part of the RIF and reassigning his duties. Defs' Stmt ¶¶36-37. He was offered a position as a sales representative in Dallas, Texas, at a significantly reduced rate of pay, which he refused. Id. Given Francis's years of service with Pactiv and its corporate predecessors, he was offered the maximum severance pay of twenty-six weeks pay. Id. It is unclear whether plaintiff ever accepted severance pay from Pactiv. Defendants claim that "[n]o one who participated in the RIF received severance pay in excess of twenty-six weeks." Id. ¶44. Plaintiff does not dispute this, but rather points to specific Caucasian employees who left prior to the RIF that were granted higher and more generous severance packages than plaintiff. Pl.'s Stmt ¶¶46-48.

Francis left his employment with Pactiv on or about January 31, 2002. In a letter dated February 5, 2002, plaintiff's attorney Frederick Brewington wrote to Vinopal regarding plaintiff's termination, stated that it was discriminatory, and offered to negotiate a severance package that would include five years salary, including health benefits and 401(k) contributions, and transfer of ownership of the company car to Francis. Brewington Decl., Ex. N. On April 2, 2002, plaintiff filed a complaint alleging age-based and race-based discrimination with the New York State Division of Human Rights. Id., Ex. L.

In August 2002, Francis received a bonus of $12,000 for calendar year 2001. The circumstances surrounding payment of this bonus are disputed. Defendants acknowledge that other bonuses were paid out in March 2002, Defs' Stmt ¶¶57-58, but claim that the delay in the calculation and payment of plaintiff's bonus was an "administrative oversight caused by the fact that Francis' position had been eliminated." Id. ¶59. Plaintiff, however, claims that his payment was withheld after he made formal complaints of discrimination. Francis Aff. ¶40.

Plaintiff claims he was treated differently than younger, Caucasian employees in regard to severance pay, and the offer of comparable jobs within the company, and that he was denied the opportunity to negotiate his departure. Francis further claims that his National Account Manager position was the only one of seven such positions eliminated, and that all the other National Account Managers at PPNA were white, younger, and less qualified than Francis. Pl.'s Stmt ΒΆ105. Defendants claim that Francis was the only National Account Manager in the PPNA business unit and that it is not appropriate to compare Francis's position with any National Account Manager position in the other business units. Finally, ...


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