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Adams v. Canon USA

September 22, 2009

KELLY ADAMS, PLAINTIFF,
v.
CANON USA, INC. DEFENDANT.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiff Kelly Adams ("Plaintiff" or "Adams") commenced this action alleging she was the victim of sex discrimination and retaliation and asserting claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq., and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq.*fn1 Presently before the Court is the motion of defendant Canon USA, Inc. ("Defendant" or "Canon") for summary judgment. For the reasons set forth below, the motion is granted.

Factual Background

The following facts are undisputed*fn2 unless otherwise noted: Canon and its Sales Structure Canon sells and services Canon brand professional business and consumer imaging equipment and information systems, including printers, image filing systems, facsimile machines, cameras and other products. It is headquartered in Lake Success, New York and has regional offices throughout the United States. ( Def. Statement of Undisputed Material Facts Pursuant to Local R. 56.1 ("Def. 56.1") ¶ 1.*fn3 It maintains an equal employment opportunity policy which prohibits discrimination and harassment on the basis of sex and any other protected classification. The policy advises employees to report discrimination so that it can be appropriately dealt with and prohibits retaliation. Plaintiff received a copy of the policy at the commencement of her employment and participated in an orientation at which Canon's policies and procedures, including the non-discrimination policy, were reviewed. (Id. ¶¶ 2-7.)

Canon sells its products to various dealers (referred to as "channels"), which then sell the products to end-users. For example, Canon sold its copiers and related products to large dealers such as IKON Office Solutions and DANKA, and small dealers, such as Gordon Flesh Solutions and Datamax; these dealers, large and small, then sell the Canon products to end-users. Canon also sells its products to Canon Business Solutions, Inc. and its predecessors ("CBS"). CBS is a subsidiary of Canon, as well as a customer. (Def. 56.1 ¶ 12.)

Canon employs District Account Executives ("DAEs") in its various sales channels. The DAEs are responsible for assisting the dealers with their sales efforts. Each DAE services only the particular channel to which the DAE is assigned. For example, Canon has DAEs that service only IKON and those employees are part of Canon's IKON channel. Similarly, Canon had dedicated DAEs that serviced only DANKA as part of the DANKA sales channel, a separate "Independent Dealers" sales channel, and a separate CBS channel, each of which has its own dedicated DAEs and sales force. The DAEs are employees of Canon, not the customers they support, and their jobs are to educate and support Canon's customers, such as IKON, Danka, and CBS, in the sale of Canon's products. Every sales channel also has its own manager, to whom the DAEs for that particular channel report. (Def. 56.1 ¶¶ 13-17.)

Plaintiff's Employment With Canon and Promotion to the Position of DAE

Plaintiff commenced her employment with Canon on April 22, 1996. (Def. 56.1 ¶ 8.) She began as an Associate Field Instructor but was later promoted to Field Instructor and was based out of Canon's Jamesburg, New Jersey regional office. As a Field Instructor, Plaintiff trained Canon sales representatives, DAEs, and managers on how to use various products that Canon sold. (Id. ¶¶ 8-11.)

In or about June/July 2001, Plaintiff was asked by the manager (a male) of the DAEs in the CBS sales channel if she was interested in becoming a DAE for the CBS sales channel.*fn4 At that time, CBS was divided into four separate companies, each of which focused on different parts of the country: Canon Business Solutions-West, Inc. ("CBS-West"), Canon Business Solutions-Central, Inc. ("CBS-Central"), Canon Business Solutions-Northeast, Inc. (previously known as MCS Business Machines, Inc. ("MCS")) ("CBS-Northeast"), and Canon Business Solutions-Southeast, Inc. (previously known as Affiliated Business Solutions ("ABS"))("CBS-Southeast"). As their names suggest, CBS-West sold Canon products to the Western part of the United States, CBS-Central sold in the Central United States, CBS-Northeast sold in the Northeast United States and CBS-Southeast sold into the Southeast United States. Canon had an assigned DAE dedicated to support each of the four CBS companies along the same geographic lines and each DAE was responsible for servicing his/her own subsidiary region of CBS. The DAE position about which Plaintiff was approached was part of the Imaging System Group ("ISG") and was to service CBS-Southeast serving the Southeast United States. (Def. 56.1 ¶¶ 18-22.)

Plaintiff filled out a transfer application for the CBS-Southeast DAE position, was interviewed for the position, and ultimately started in the position on July 2, 2001. As DAE Plaintiff was still "based out of" the Jamesburg office, although she, like the other DAEs, worked primarily out of her residence with Canon-supplied computers, printers, and other needed office equipment. (Def. 56.1 ¶¶ 22-24; Sharp Dep. at 19-21.) At the time she was hired, Brian Herbert ("Herbert") was already the DAE for CBS-West, John Smith ("Smith") was already the DAE for CBS-Central, and CBS-Northeast was an open position. (Id. ¶ 25.) Herbert was based out of Gardenia, California, where CBS-West had its headquarters and was responsible for servicing the entire CBS-West region. Smith was based out of Schaumberg, Illinois, where CBS-Central had one of its offices and supported the entire CBS-Central region. At the time of Plaintiff's hire, all of the DAE's supporting the various CBS channels reported to Mr. Cooke ("Cooke"). (Id. ¶¶ 26-28.)

As DAE for CBS-Southeast, Plaintiff worked directly with Katherine Loftis Farrell, CBSSoutheast's Vice President of Marketing. (Def. 56.1 ¶ 33.)

The Hiring of Peter Sharp as DAE for CBS-Northeast

Peter Sharp ("Sharp") was hired by Canon as the DAE for CBS-Northeast on or about February 3, 2003.*fn5 He also reported to Mr. Cooke. Sharp was based out of Canon's Jamesburg, New Jersey office and supported the entire CBS-Northeast region, including its headquarters in New York City and the various paragon offices throughout the Northeast region. At the time of Sharp's hiring, CBS-Northeast's Vice President of Marketing was Thomas Martocci ("Martocci"). As the DAE servicing CBS-Northeast, Sharp worked directly with Martocci. Sharp knew Martocci prior to becoming a DAE. (Def. 56.1 ¶¶ 29-32.) Sharp had previously worked at CBS-Northeast in both a graphic sales position and a sales training position where he ultimately reported to Martocci. (Sharp. Dep. at 47.) Indeed, Martocci encouraged Sharp to apply for the Canon DAE position. (Def. 56.1 ¶ 32.)

CBS-Northeast and CBS-Southeast Merge to Form CBS-East, Inc.

In or about November 2003, CBS-Northeast and CBS-Southeast merged to form Canon Business Solutions-East, Inc. ("CBS-East") and Martocci became the Vice President of Marketing for CBS-East, which then encompassed the entire Eastern region of the United States, including both Sharp's northeast region and Plaintiff's southeast region. (Def. 56.1 ¶ 34.) Thus, Plaintiff began providing sales and marketing support services to Martocci instead of Loftis Farrell. (Id. ¶¶ 35-36.) As Vice President for Marketing for CBS-East, Martocci was the most senior level customer contact for Plaintiff and Sharp.*fn6 Martocci worked out of the Midtown Manhattan CBS-East office, which Sharp supported. While Plaintiff did not provide support to the CBS-East Midtown Manhattan office, except perhaps when covering for Sharp, after the formation of CBS-East she visited that office on a monthly basis to meet with Martocci regarding her Southeast region. (Id. ¶¶ 37-39.)

As the two DAEs for CBS-East, Plaintiff and Sharp continued to cover the geographic regions that they had prior to the merger. Plaintiff's coverage area was Burlington, New Jersey; Delmarva Branch in Wilmington, Delaware; Horsham Branch in Horsham, Pennsylvania; Philadelphia Branch in Philadelphia, Pennsylvania; Washington, D.C. branch in Arlington, Virginia; Baltimore Branch in Ellicot City, Maryland; Vienna Branch in Vienna, Virginia; Atlanta Branch in Norcross, Georgia; Orlando Branch in Orlando, Florida; Tampa Branch in Tampa, Florida; Miami/Ft. Lauderdale Branch in Weston, Florida; and Miami Branch in Miami, Florida.*fn7 Sharp's coverage area was Midtown Branch (which included Midtown East and Midtown West) in New York, New York; M031 Branch in New York, New York; Lake Success Branch, in Lake Success, New York; Paramus Branch in Paramus, New Jersey; Cranford Branch in Cranford, New Jersey; White Plains Branch in White Plains, New York; Pittsburgh Branch in Moon Township, Pennsylvania; Detroit Branch in Southfield, Michigan; and Cincinnati Branch in Mason, Ohio. In 2005, Sharp's Northeast territory represented 57% of the CBS-East sales revenue, while Plaintiff's southeast territory represented 43% of the sales revenue. (Def. 56.1 ¶¶ 41-42.)

Change in Canon Management for the CBS Sales Channel

In early 2004, Ms. Bernadette Piccione ("Piccione") replaced Cooke as manager for the CBS channel and thus became the manager of the CBS DAEs, to wit, Plaintiff, Smith, Herbert, and Sharp. (Def. 56.1 ¶ 44.) According to Plaintiff, sometime shortly before November 2005, Piccione told the CBS DAEs that the positions of all four DAEs were in jeopardy as a result of impending restructuring. (Adams Decl. at ¶¶ 10-12.) After Todd Pike*fn8 ("Pike") learned of this revelation, he reassured all four that their jobs were secure. In or about early November 2005, the four CBS DAEs learned in a conference call that Ms. Tracie Sokol ("Sokol") was replacing Piccione, at least temporarily, as manager for the CBS channel. Plaintiff was happy with Sokol's appointment as manager of the DAEs for the CBS channel because she had worked with her while a Sales Trainer in Marketing and they had a good relationship. (Def. 56.1 ¶¶ 45-48.)

In January 2006, Sokol met with the four DAEs servicing the CBS channel during a Canon national meeting held in Florida. At that time, she discussed her objectives and goals for the CBS DAE team, including the importance of communication by the DAEs with the client and with her, the importance of providing "value added" service, the type of support they were expected to provide, and the type of documentation she expected from the DAEs on a regular basis. She also presented a document which summarized how she viewed the role of the DAEs for the CBS channel. (Def. 56.1 ¶¶ 49-52.)

Decision to Restructure DAEs Supporting CBS-East

In early 2006, shortly after becoming the manager of Canon's CBS sales channel, Sokol looked at the DAEs supporting the CBS sales channel to determine whether the coverage strategy was being maximized. With the merger of CBS-Northeast and CBS-Southeast into CBS-East, Sokol felt that there was significant duplication of effort between the "Philadelphia" territory and the "New York" territory with two people calling on now a single Vice President of Marketing (Martocci) who was located in New York.*fn9 (Def. 56.1 ¶¶ 53-55.) Also, as both CBS-West and CBS-Central were staffed by one DAE each, Sokol believed that with the merger of CBS-Northeast and CBS-Southeast into one combined entity, CBS-East, it was appropriate to have only one DAE servicing CBS-East. Accordingly Sokol recommended, and Pike approved, the elimination of one of the two DAE positions supporting CBS-East. Sokol and Pike were the only two individuals who had any input regarding the restructuring of the DAE positions supporting CBS-East. (Id. ¶¶ 56-58.)

The Decision to Retain Sharp over Plaintiff as the DAE for CBS-East

The decision whether to retain Plaintiff or Sharp as the sole DAE supporting CBS-East was made by Sokol.*fn10 (Sokol Decl. ¶ 13.) Sokol did not consider Smith and Herbert in the termination decision since they were in different regions, supporting different companies, and at the time the decision was being considered did not overlap with Sharp or Plaintiff. (Def. 56.1 ¶ 60.) In deciding whether to retain Plaintiff or Sharp, Sokol evaluated their respective relationship with the customer, as well as what she knew of their respective experience and credentials. She also considered each individual's product knowledge, effectiveness and sales skills. She did not review either Sharp's or Plaintiff's personnel file. (Id. ¶ 62; Sokol Dep. 116-18.)

Sokol compared Plaintiff's and Sharp's interpersonal relationship with Martocci, the principal customer with whom they both had worked. Plaintiff found Martocci "harsh" in the way he spoke and complained that he "cursed" and would scream at those whose ideas he disagreed. Plaintiff explained to Sokol and Sharp that she felt uncomfortable by Martocci's style, but never suggested that his treatment of her was because of her sex. Sokol was aware that Plaintiff was uncomfortable in working with Martocci as Plaintiff had called Sokol on a couple of occasions regarding working with Martocci and told Sokol that Martocci intimidated her, yelled at her, and bullied her, and that she could not work with him comfortably.*fn11 Plaintiff admits that Martocci did not speak to her or treat her any differently than he treated Sharp; Martocci talked to both Plaintiff and Sharp in the same manner. Plaintiff also admits that she did not feel that Martocci's harsh manner had anything to do with the fact she was a woman and that he never made a negative or disparaging comment towards Plaintiff because she was a woman or about her being a woman. While Plaintiff's relationship with Martocci was initially very good, it became more gruff and Martocci yelled more after Piccione became Plaintiff's manager because he and Piccione did not get along with each other and his issues with Piccione may have spilled over to his relationship with Plaintiff. Sharp also witnessed Plaintiff's discomfort with Mr. Martocci's style. Plaintiff became flustered by Martocci and she told Sharp that Martocci made her nervous and she did not like him, in part because of his cursing. (Def. 56.1 ¶¶ 63-71.)

Sharp, in contrast, never complained of any difficulties or problems with Martocci's style. In fact, Sharp had previously worked for and reported*fn12 to Martocci when Sharp worked at a predecessor company of CBS-Northeast. Sokol noted that Sharp appeared to more effectively communicate with Martocci than Plaintiff. (Def. 56.1 ¶¶ 72-72.) For example, on March 28, 2006, Sharp forwarded via email a presentation to Martocci, on which he copied Sokol and others. Sokol subsequently forwarded that email to Plaintiff, asking whether she had a similar presentation for Martocci. Plaintiff advised Sokol she had not prepared such a presentation but could put one together. Sokol responded that "this is an example of the value we spoke about. [Sharp] prepared a review of what he did in the first quarter . . . . I am not sure how you communicate the same if you do not prepare this type of document. We discussed the need of keeping CBS in the loop of our activities regularly and getting their direction. This is probably a good basic way to . . . show [Martocci] and his group what you have been doing. . . ." (Ex. L to Kesselman Decl.; Def. 56.1 ¶¶ 75 & 76.) In considering the decision of whether to retain Plaintiff or Sharp, Sokol also casually communicated with Martocci to gauge his views of the two DAEs without advising him of the reason for her inquiry. The conversation confirmed that Sharp had a better relationship with Martocci and could be more effective in dealing with and servicing this customer. (Id. ¶ 78.)

Canon apparently has no policy that states that terminations will be based on length of service. (Def. 56.1 ¶ 82.) For purposes of benefits and other non-termination related issues, Canon calculates "length of service" as cumulative employment with Canon and any Canon affiliate. (Id. ¶ 82.) In making her determination Sokol checked Plaintiff's and Sharp's length of service with Cannon and its affiliates. Although Sharp was hired by Canon as a DAE on or about February 3, 2003, he had worked at MCS (the predecessor of CBS-Northeast and a Canon subsidiary) since January 1997. Taking into account that cumulative service, Sokol determined that their length of service was essentially the same; Sharp had nine and one half years of service (January 1997 to May 2006)*fn13 while Plaintiff had ten years of service (April 22, 1996 to May 2006).*fn14 (Id. ¶¶ 81, 83-84.)

Sokol also knew that Sharp had a lengthier background in sales, had previously worked for MCS/CBS-Northeast, and had some management and sales experience. (Def. 56.1 ¶ 85.) In fact, Sharp had nearly eleven years of sales experience including two and one half years of working in sales at MCS. (Id. ¶ 86.) As a result of having previously worked with Plaintiff, Sokol knew that Plaintiff's background at Canon was as a Field Instructor/Sales Trainer, which position focused on training sales representatives but not typically the direct sales of products. Prior to her Canon employment, Plaintiff's sales experience was limited to approximately two years as an Associate Account Representative for Xerox and three years as a Document Training Representative for Xerox, wherein Plaintiff's principal role was to sell training to a customer after the customer had already purchased a machine. (Id. ¶¶ 87-88.) Plaintiff admits that Sharp had longer and greater experience at direct sales than she, and that she did not know how her sales skills compared to Sharp's. (Id. ¶ 91.)

Finally, Plaintiff and Sharp had nearly identical performance ratings. They were both rated "Meets Expectations" in their 2004 and 2005 reviews.*fn15 (Def. 56.1 ¶ 92.)

Defendant contends that based on the above considerations Sokol chose to retain Sharp over Plaintiff for the CBS-East position and to terminate Plaintiff's employment in or around March 2006. However, because Sokol learned that Plaintiff's mother had passed away at approximately the same time, she decided to wait to advise Plaintiff of the decision until late May 2006. (De. 56.1 ΒΆ 93.) Plaintiff disputes this, referring to the fact that the only reason for plaintiff's termination on May 31, 2006 given by Sokol and Mindy Miller-Roesch ("Miller-Roesch"), a human resources person in attendance at the termination, was "duplication ...


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