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Tishman v. Associated Press

November 19, 2007

JEFFREY TISHMAN AND ARNOLD WILKINSON, PLAINTIFFS,
v.
THE ASSOCIATED PRESS; THOMAS CURLEY, CEO : (IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES); LOU BOCCARDI, FORMER CEO : (IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES); WILLIAM AHEARN, VP : (IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES); DONALD PINE, DIRECTOR : (IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES); MICHAEL BASS, MANAGER : (IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES); AND JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Plaintiffs Jeffrey Tishman and Arnold Wilkinson, former employees of the Associated Press ("AP"), bring this action against AP and several of its present and former officers, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law ("SHRL"), N.Y. Exec. Law §§ 296 et seq., and the New York City Human Rights Law ("CHRL"), N.Y.C. Admin. Code §§ 8- 107 et seq. Defendants move for summary judgment, arguing, inter alia, that plaintiffs' claims are time-barred, or alternatively, that plaintiffs' claims lack merit. The motion will be granted.

BACKGROUND

The following facts are undisputed or established by undisputed documentary evidence. Additional factual contentions will be addressed in later portions of this opinion.

AP, a not-for-profit news gathering cooperative, hired Jeffrey Tishman as a Librarian on May 4, 1983, and Arnold Wilkinson as an Office Assistant on September 3, 1970. (See Compl. ¶¶ 6, 8.) Wilkinson was promoted to the position of Librarian on May 23, 1976. As Librarians, both Tishman and Wilkinson were employees of AP's News and Information Research Center ("NIRC"). Defendant Michael Bass is currently AP's Director of News Operations, and from 1999 until 2003, Bass served as Director of the NIRC. (Bass Aff. ¶ 1.)

In January 1997, after negotiations with and agreement by Local 31222, News Media Guild, Communications Workers of America ("the Guild"), of which both Tishman and Wilkinson are members, AP consolidated job functions in the NIRC in order to move from a research model, relying on physical documents and books, to a model that used electronic documents and computer-based research techniques. (Bruce Aff. ¶¶ 7-10; Wilkinson Dep. 29.) Specifically, the separate job functions of "Librarians" and "Editorial Assistants" were consolidated into the single job title of "Information Specialist." (Bruce Aff. ¶ 7; Tishman Dep. 14-15.) As a result of this job restructuring, the Librarians, which included Tishman and Wilkinson, received a raise to "Class H" under the Guild wage schedule, and a weekly pay supplement. (Bruce Aff. ¶ 7; Tishman Dep. 14-15.)

As Information Specialists, Tishman and Wilkinson were expected to perform the duties that were previously performed by both the Librarians and Editorial Assistant classifications. However, over time, AP further divided Information Specialists into two categories: "researchers," who were more skilled in electronic research functions, and "lesser-skilled" "Service Desk" employees, who "generally performed limited research." (Bruce Aff. ¶ 9.) Tishman and Wilkinson were both Service Desk employees.*fn1 (Bass Aff. ¶ 3; Tishman Dep. 160; Wilkinson Dep. 112.)

As a result of the divergence of job duties and skills among the Information Specialists, in 2002, during negotiations over renewal of the collective bargaining agreement, the Guild requested reclassification of certain Information Specialists to the highest "Class A" designation of Newsperson. (Bruce Aff. ¶ 9.) Specifically, the Guild requested the reclassification of only those Information Specialists who performed the more skilled news research functions, and not those Specialists who were classified by AP as Service Desk employees. Accordingly, the Guild did not advocate the promotion of Tishman and Wilkinson. (Id.; Bruce Aff. Ex. C; Wilkinson Dep. 123.)

AP consented to the Guild's proposal to reclassify the more skilled researchers, a group that did not include Tishman and Wilkinson. (Bruce Aff. ¶ 10; id. Ex. D.) On June 2, 2003, seven Information Specialists were reclassified as Newspersons with attendant wage increases. (Bruce Aff. Ex. D.) Three of the seven employees promoted from Information Specialist to Newsperson were over 40 years old. (Bruce Aff. ¶ 10; Cartafalsa Aff. ¶ 8.) Neither Tishman nor Wilkinson filed a grievance with the Guild,*fn2 or otherwise complained to AP about AP's decision to reclassify certain other Information Specialists as Newspersons.*fn3 (Tishman Dep. 72-73; Wilkinson Dep. 103-05, 141.)

In January 2004, AP initiated a review of its operations for methods to increase efficiency and reduce its operating costs. At that time, AP was in the process of moving its headquarters from Rockefeller Center to its present location. (Bruce Aff. ¶ 12.) During that review, AP determined that the work performed by the Information Specialists on a 24-hour per day, 7-day per week basis could be covered more effectively and efficiently in its Spokane Data Center, which operated a larger, more advanced call center. (Id.; Bass Aff. ¶ 6.) Shortly thereafter, in May 2004, AP decided to transfer the Service Desk employees to Spokane, Washington. (Bruce Aff. ¶ 12; Bass Aff. ¶ 6; Wilkinson Dep. 116.) The decision to transfer the NIRC Department to Spokane was made by Michael Bass, then age 42, Mike Silverman, then age 60, and Jessica Bruce, then age 38. (Bruce Aff. ¶ 13; Bass Aff. ¶ 6.) Nine AP employees were affected by the transfer, including both plaintiffs and four employees who were under the age of 40. (Bruce Aff. ¶ 20.)

Under the collective bargaining agreement between AP and the Guild, AP reserves the right to transfer work to other business locations. Pursuant to the terms of the collective bargaining agreement, the Information Specialists were given the option of accepting the transfer and related relocation benefits, or resigning and accepting severance benefits, known as dismissal indemnity. (Bruce Aff. ¶¶ 15, 16; Bruce Aff. Ex. A, Arts. 7, 9; Tishman Dep. 107-09, 113; Wilkinson Dep. 114, 117-18.) Although the affected employees were required to decide within seven days whether they would accept the transfer opportunity, they were not given a deadline within which to complete the physical transfer to Spokane.*fn4 (Bruce Aff. ¶ 17.) A Specialist who declined the transfer offer was eligible to receive the severance payments upon execution of a Settlement Agreement and Release of Claims ("Release"). (Bruce Aff. Ex. A, Art. 6, ¶ 5; id. at Art. 7, ¶ 1.) The amount of the severance payments depended on the employee's wage class and length of service. (Bruce Aff. ¶ 18; Bruce Aff. Ex. A, Art. 7 ¶ 2.) Tishman was offered a severance package of $42,586.02, representing 51 weeks' pay, and Wilkinson was offered a severance package of $63,461.52, representing 76 weeks' pay.*fn5 (Bruce Aff. ¶ 19; Tishman Dep. 181; Wilkinson Dep. 118.)

Tishman and Wilkinson declined both the transfer and severance offers. (Tishman Dep. 113; Wilkinson Dep. 114.) The remaining seven Information Specialists accepted the severance offers in lieu of transfer and executed the Release. (Bruce Aff. ¶ 19.) AP paid out almost $200,000 in severance and dismissal payments and over $50,000 in accrued vacation and notice pay to the Information Specialists who declined the transfer offer and signed the Release. (Bruce Aff. ¶ 21.) Of the Specialists who declined the transfer and accepted the severance offer, three were under 40 years old. (Bruce Aff. ¶ 20; see Tishman Dep. 109; Wilkinson Dep. 113.)

AP deemed Tishman and Wilkinson to have resigned from their employment by refusing the transfer. (Bruce Aff. Ex. A, Art. 7.) Accordingly, on May 14, 2004, AP terminated Tishman's and Wilkinson's employment. At the time of their termination, Tishman was 54 years old and Wilkinson was 58 years old. (Compl. ¶¶ 5, 7.) Again, neither Tishman, Wilkinson, nor any other AP employee complained to AP that the proposed transfer or their ultimate discharge was discriminatory, nor did any employee file a grievance about either event. (Bruce Aff. ¶ 22.) Indeed, during their several decades of employment, plaintiffs never once complained to AP or filed a grievance with the Guild alleging any discriminatory conduct.*fn6 (See Tishman Dep. 15, 108; Wilkinson Dep. 103.)

On August 18, 2004, Tishman and Wilkinson each filed identical charges with the Equal Employment Opportunity Commission ("EEOC"), alleging age discrimination and retaliation. (Cartafalsa Aff. Exs. 5 & 6.) The charges were cross-filed with the New York State Division of Human Rights. (Id.) At the conclusion of its investigation, the EEOC found no evidence ...


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