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Hess v. ING USA Annuity and Life Insurance Co.

February 14, 2008


The opinion of the court was delivered by: Steven M. Gold United States Magistrate Judge


Gold, S., United States Magistrate Judge:


Plaintiff, Peter J. Hess, was hired by defendant, ING, in 1994, and worked for ING in that capacity until his termination on July 31, 2004. Compl. ¶¶ 14-15. Plaintiff brings this action pursuant to Executive Law § 296 of the New York State Human Rights Law, claiming he was fired because of his age. Plaintiff was sixty-five at the time he was terminated. Compl. ¶ 16.

Defendant now moves for summary judgment, arguing that the evidence demonstrates that plaintiff was fired for legitimate, non-discriminatory reasons. The parties have consented to the assignment of this case to a Magistrate Judge for all purposes. Docket Entry 16. For the reasons stated below, defendant's motion is granted.


Plaintiff was hired by the defendant in 1994 as a Regional Vice President at the age of fifty-four. Compl. ¶¶ 14-15; Defendant's Statement of Undisputed Material Fact ("DSUMF") ¶ 2.*fn1 Plaintiff's responsibilities included marketing financial products to brokers, who purchased them for clients. DSUMF ¶ 3.

On January 1, 2004, Andy Shaw became Divisional Sales Manager and plaintiff's supervisor. DSUMF ¶ 10. Throughout his time as plaintiff's supervisor, Shaw found and documented a series of shortcomings in plaintiff's performance. For example, on February 12, 2004, Shaw led a meeting attended by plaintiff and the other New York Regional Vice Presidents. Hess Dep. 223. After the meeting, Shaw informed plaintiff by e-mail that plaintiff had a "persistently negative attitude" and was "outwardly disgruntled," and that he should focus on improving his attitude and activity. Hess Dep. at 223-27, 240-47, Ex. 23. A second problem arose on February 26, 2004, when plaintiff went to Florida for a meeting with a client based there. DSUMF ¶ 21. Plaintiff admits that Florida was not within his territory and that he did not obtain approval before attending the meeting, although he claims he believed approval was not necessary. Hess Dep. at 250-54; Plaintiff's Statement of Undisputed Material Fact ("PSUMF") ¶ 21. Plaintiff also admits, however, that his supervisor in 1999 instructed him by letter that "In the future, it is expected that you will follow the direction of management and if you want to set up or attend a meeting outside of your territory, it must have prior approval." Hess Dep. at 253-54, Ex. 14.*fn2 Although plaintiff was required to keep accurate records of his appointments, he could not explain why he failed to enter the Florida meeting in the company's computerized calendar system, SalesLogix, which is monitored and verified in advance by the defendant to keep track of employee activity. DSUMF ¶ 21; Hess Dep. at 255, 264-66, Ex. 27.

This was not the only time plaintiff failed to enter his schedule accurately into defendant's tracking system. On March 8, 2004, plaintiff scheduled six appointments in New York, but failed to attend them because he traveled to West Chester, Pennsylvania to meet with a new wholesaler. Hess Dep. at 267-69. Plaintiff admits that he entered these six meetings into SalesLogix in mid-February 2004, Hess Dep. 268-69, and that he deleted the entries only after he had missed the appointments, thereby violating defendant's policy on accurate and timely bookkeeping. DSUMF ¶ 22; PSUMF ¶ 22; Hess Dep. at 267-69, Ex. 26, 27. Yet again, on March 15, 2004, plaintiff had several appointments scheduled, and he marked these appointments as "complete" in SalesLogix despite the fact that he was in Florida on that date and did not attend the meetings. Hess Dep. at 270-72; DSUMF ¶ 23.

On March 23, Shaw e-mailed plaintiff to discuss his concerns about plaintiff's February 26 trip to Florida, the deleted appointments from March 8, and the appointments scheduled but not kept on March 15. Hess Dep., Ex. 26; DSUMF ¶ 24. In response, plaintiff provided a document relating to the Florida meeting to prove its validity, asserted that he rearranged his schedule on March 8 without entering the changes in SalesLogix, and claimed that the appointments originally scheduled for March 15 were held instead on March 22. Hess Dep., Ex. 26; DSUMF ¶ 25. Plaintiff did not offer a coherent explanation for the discrepancies between his calendar entries and his activities.

On April 7, 2004, unsatisfied with plaintiff's explanations, Shaw placed plaintiff on "Final Written Warning" for violating ING's Code of Conduct. Hess Dep., Ex. 27. Shaw stated that the trip to Florida was outside of plaintiff's territory and thus required prior authorization. Id. Shaw also asserted that the deleted meetings on March 8 and the meetings marked "completed" on March 15 were both inaccurate and "appear[ed] to be misleading" representations in the SalesLogix system. Id. Shaw cited a portion of ING's Code of Conduct stating that it is "against company policy for any employee to cause our books and records to be inaccurate in any way." Id. Shaw's memorandum warned plaintiff: "Should you fail to show immediate and sustained improvement, or should other performance issues arise, your employment with ING is in jeopardy." Id.

Within a few days of receiving the Final Written Warning, plaintiff submitted a complaint to the human resources department at ING, alleging age discrimination. Hess Dep., Ex. 29. The complaint was based primarily on Hess' allegation that, two months earlier, Shaw remarked, "I hope I can teach an old dog new tricks." See Hess Dep., Ex. 30; DSUMF ¶¶ 41-42. In his complaint to human resources, plaintiff stated that "I believe that Andy [Shaw] feels that because of my age I can't perform my duties as a Wholesaler." Hess Dep., Ex. 29.An employee from human resources spoke with plaintiff and then e-mailed him, with a copy to Shaw's supervisor, Bill Lowe, responding to plaintiff's claim. Hess Dep., Ex. 30. Human resources found no basis for plaintiff's claim, specifically noting that plaintiff asserted no examples or factual basis for his contention that Shaw felt he was too old, and instead based his allegation of discrimination only on an "overall feeling." Id. The e-mail also discussed the performance problems raised by Shaw that plaintiff complained were discriminatory, and found that Shaw's criticisms were justified.

Id. It noted that, although plaintiff claimed that he was never told that he needed prior approval before traveling outside of his territory, plaintiff's prior manager told Hess in November 2002, after Hess expensed a trip to California, that he needed prior approval to take such trips. Id. The e-mail also noted that plaintiff offered inconsistent explanations for the March 15 scheduling mishap -- first telling Shaw that he subsequently changed his scheduling, Hess Dep., Ex. 26, yet later claiming that he "inadvertently pressed the complete bar" which marked the meetings completed, Hess Dep., Ex. 28.

In July 2004, after the Final Written Warning was issued, plaintiff missed a mandatory and scheduled sales meeting. DSUMF ¶ 27; PSUMF ¶ 27. Plaintiff admits that, despite the final warning, he purposefully skipped the meeting, PSUMF ¶ 27, and later told Shaw that he did not attend because he had "better things to do." Hess Dep. at 309-10, Ex. 32. Shaw e-mailed plaintiff on July 21, 2004, to address plaintiff's deficiencies and indicate where improvement was necessary. Hess Dep., Ex. 32; DSUMF ¶ 28. In the e-mail, Shaw reiterated his concern for plaintiff's negative attitude and informed him that missing mandatory meetings, as well as responding that he had "better things to do," was unacceptable. Hess Dep., Ex. 32. Plaintiff had also misrepresented a product's availability to a broker at a national brokerage firm, and Shaw told plaintiff to follow up with the broker to provide the correct information about the product. Hess Dep., Ex. 32; DSUMF ¶ 28. Shaw emphasized to plaintiff that he ...

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