The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Edmund J. Szarzynski, ("plaintiff"), brings this action asserting claims of age discrimination and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq . ("ADEA"), the New York State Human Rights Law, Executive Law §290 et seq. ("NYSHRL") and Title VII of the Civil Rights Act of 1964 ("Title VII"), (codified at 42 U.S.C. § 2000(e), et seq.), against his employer Roche Laboratories, Inc. ("defendant" or "Roche"). Specifically, plaintiff alleges he was discriminated against on the basis of age, and retaliated against after complaining of the alleged discriminatory treatment. Defendant denies plaintiff's allegations, and moves for summary judgment dismissing plaintiff's Amended Complaint on grounds that plaintiff does not meet the elements of a prima facie case of discrimination or retaliation. According to the defendant, Szarzynski cannot establish any adverse employment action, or that any action taken by Roche had anything to do with plaintiff's age or protected activity. In addition, defendant argues that even if Szarzynski were able to prove a prima facie case, he cannot demonstrate that Roche's true reason for any action taken was a pretext for intentional discrimination or retaliation. Further, defendant contends that plaintiff's claims for emotional distress and for punitive damages are without merit and should be dismissed.
For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss plaintiff's Amended Complaint in its entirety.
As a threshold matter, defendant points out that plaintiff submitted a Counter Statement of Undisputed Facts in opposition to defendant's motion for summary judgment ("Counter Statement"). See October 30, 2009 Declaration of Susan C. Roney ("Oct. Roney Decl."), ¶ 16. Defendant argues that since plaintiff has not cross moved for summary judgment, he may not submit a Counter Statement and defendant respectfully request that it be stricken from the record on this motion. See id., ¶ 17. Further, defendant argues that plaintiff's facts are supported with nothing more than "his own self-serving unsupported allegations made at his deposition, in his interrogatory responses, in his new affidavit, and the...previously [un]disclosed, affidavits of Jeremy Knopp."*fn1 See id., ¶ 20. With regard to the assertions in plaintiff's Counter Statement that are unsupported by the record, the Court "in its analysis of the motion[s] for summary judgment, will only consider relevant evidence that is admissible pursuant to the...frame-work established in Rule 56(e) of the Federal Rules of Civil Procedure and Local Rule 56.1." Morris, 37 F.Supp.2d at 569; see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.2001) (Court of Appeals held that "Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported by the record.")
"Rule 56.1 of the Local Civil Rules...requires a party moving for summary judgment to submit a statement of the allegedly undisputed facts on which the moving party relies, together with citation to admissible evidence of record supporting each such fact." See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) (citing Local Rule 56.1(a), (d)); see also W.D.N.Y. Loc. R. Civ. P. 56.1(a). Defendant has complied with this rule. "The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." See id. 56.1(b). "All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." See id. 56.1(c). In other words, the moving party must set forth the material facts that it contends are not in dispute, whereas the non-moving party must then set forth the material facts that he contends are in dispute (i.e., material facts as to which he contends that there is a genuine issue). Accordingly, while the Court will not strike plaintiff's Counter Statement, having undertaken an independent review of the record in this case, only the material undisputed facts supported by the record are set forth herein.
I. Plaintiff's Employment at Roche and Relationship With Sullivan
In 1997 plaintiff, Edmund J. Szarzynski*fn2 began working as a pharmaceutical products sales representative for Roche in Texas. However, in 1999 and 2003 plaintiff's positions were eliminated due to workforce reductions. In early 2004 plaintiff accepted an Acute Care pharmaceutical sales representative position at Roche in Rochester, New York. In January 2005, plaintiff started working as a "Medical Representative" in Rochester in anticipation of the launch of Boniva®, a new osteoporosis drug manufactured by Roche. Plaintiff also promoted Tamiflu® during the flu season, but promoting Boniva® comprised the bulk of his responsibilities. Plaintiff's territory constituted "Rochester-East," which included Brighton, Pittsford, Penfield and Newark. There were nine representatives in plaintiff's division in 2005, six of them were over the age of 40.
Boniva was co-promoted with Glaxosmithkline ("GSK"), and as such two GSK medical representatives promoted Boniva® in plaintiff's territory. During the relevant time period, January 2005 to January 2006, plaintiff's direct supervisor was Division Sales Manager Lonny Sullivan ("Sullivan"). However, since November 2004, James Burke ("Burke") has been the Regional Sales Director in charge of the entire Mid-Atlantic Region, which includes New York State, and was Sullivan's supervisor.
Plaintiff met his new supervisor, Sullivan during a Roche national meeting to coordinate the Boniva® launch in Las Vegas in January 2005. During their first meeting in Las Vegas, plaintiff testified that Sullivan believed that he had been disrespectful by failing to shake his hand. On March 1, 2005, Sullivan wrote a letter to plaintiff, which was copied to Human Resources ("HR") and Burke, indicating that plaintiff failed a required quiz which tested his knowledge of osteoporosis, and would be required to retake it. The letter also stated that plaintiff's call activity for the first trimester was below expectations. Plaintiff responded by letter dated March 12, 2005 requesting that the March 1, 2005 letter be removed from his file. However, Burke indicated that it could not be removed because HR considered it an official document.
During his deposition, plaintiff testified as follows:
Q: Do you have any reason to believe that Mr. Sullivan was building a record against you based on your -- on that March 2005 letter, that that had anything to do with your age?
A: I -- at that time, no. Subsequent to that, yes.
Q: Because of the comment that was attributed to Mr. Sullivan?
See June 29, 2009 Declaration of Susan C. Roney ("June Roney Decl."), Ex. D. Plaintiff's testimony indicates that plaintiff did not believe that the March 1, 2005 letter incident was instigated by discriminatory animus until after hearing about a comment allegedly made by Sullivan in August 2005.
In August 2005 plaintiff questioned Sullivan concerning their allegedly strained relationship. Indeed in an August 2005 Field Coaching Report,*fn3 plaintiff summarized the situation to Sullivan as follows: the false impression of our first meeting 2005 was uncovered on [8/9/05]. Uncovering that fallacy on Tuesday explained your comment made on Monday that I "have been a thorn in your side since day one." It also explained your negative attitude and behavior towards me. Hopefully you are no longer laboring under that completely false impression that you experienced during our first meeting in Las Vegas. Should you wish to re-visit that episode, feel free to bring it up for discussion and I will further disabuse your interpretations of our initial meeting.
See June Roney Decl., Ex. E. Defendant points out that nowhere in this account of plaintiff's and Sullivan's strained relationship did plaintiff ever state that their confrontation was fueled in any way by age-related animus.
II. Plaintiff's Performance Improvement Plan
Sales representatives were ranked based on the market share that Boniva® had of the osteoporosis drug market within the representative's territory. Plaintiff was ranked last in the Mid-Atlantic region, 80 out of 80, and 561 out of 576 in the nation, in Boniva® market share for the year 2005 as of August 2005. Plaintiff testified that, although numerically he fell below division averages, he believed that his below average performance was reasonable under the circumstances, because in his territory doctors were slow to adopt new drugs and access was particularly difficult. Based on regional averages, defendant expected representatives to make two calls per month to certain doctors who prescribed osteoporosis drugs, like Boniva®, at a high rate. Defendant classified these doctors as decile*fn4 5 to 10. For the relevant year 2005, as of September 2005, plaintiff only made an average 1.1 calls on these high decile doctors. During this same time frame, plaintiff's reach (a measurement of the number of high-decile physicians seen in a month expressed in a percentage), was 46%, which was well below the regional expectation of 85%. In addition, defendant also measured call averages, meaning the number of doctors visited by their representative on a daily basis. Plaintiff also failed to meet the eight calls per day requirement that was the average for Roche representatives regionally for the same time period, i.e. through September 2005.
Plaintiff was placed on a Performance Improvement Plan ("PIP") based on his performance in 2005 according to certain measurements applied to medical representatives at Roche. On October 11, 2005 plaintiff learned that he would be placed on a PIP during a meeting with Burke and Sullivan. The PIP was designed with input from Sullivan, Burke and Michelle Crocco ("Crocco"), a representative of Roche's HR department. Pursuant to the PIP, plaintiff was required to increase Boniva® sales to a level consistent with his division's average and provide call planning reports to Sullivan. In this regard, plaintiff testified that the goals set out in the PIP were unattainable and that he could not meet the division or regional call averages or percent of market share listed in the PIP. In addition, plaintiff testified that although numerically his performance fell below division averages, his performance was reasonable under the circumstances.*fn5
On December 12, 2005, plaintiff met with Sullivan to make changes to the original PIP and the PIP was extended until January 31, 2006. According to the PIP Addendum, plaintiff was given the opportunity to identify sixty specific physicians as targets and concentrate his efforts on these doctors. In a December 26, 2005 letter plaintiff acknowledged that the call requirement outlined in the PIP Addendum was "fair and reasonable." The PIP was ultimately discontinued on January 31, 2006 and plaintiff continues to be a Roche employee to this day.
III. Plaintiff's Complaint to Human Resources
Plaintiff testified that sometime around August 2005, during a breakfast meeting in the presence of two medical representatives, John Gagne and Michele Dewey, Sullivan allegedly said something to the effect that "in my experience older workers are just hanging around for retirement and need to be constantly challenged." See June Roney Decl., Ex. D. Gagney and Dewey subsequently relayed the comment to plaintiff. During the course of plaintiff's employment at Roche, he was made aware of Roche's complaint procedure and its anti-discrimination and anti-retaliation policies. Nevertheless, plaintiff did not complain to management regarding the alleged comment until after he was informed that he would be placed on a PIP. He did not complain to HR about the comment until November 2005, after the PIP was put in place. Accordingly, it was only in November 2005 that plaintiff complained to HR for the first time about age discrimination. Thereafter, HR investigated plaintiff's allegations and concluded that no age discrimination had occurred. After completing their investigation, Crocco and another HR professional, called plaintiff and sent him a memorandum dated February 28, 2006, memorializing the results of their investigation.
IV. Plaintiff's Miscellaneous Complaints
A. 2005 Performance Rating
Plaintiff's overall performance rating for 2005 was a 5, on a 1 to 6 scale, 6 being the lowest rating.*fn6 As previously mentioned, plaintiff's rank in the region for Boniva® sales was 80 out of 80. In spite of his low ranking, plaintiff complained that the performance rating Sullivan gave him in 2005 was unfair. In addition, while his market share was low, plaintiff blamed the ...