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Steven Harkola v. Energy East

August 9, 2011


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff, Steven Harkola ("Harkola" or "Plaintiff"), represented by counsel, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-18, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. Plaintiff alleges that his former employer, denominated in caption as "Energy East Utility Shared Services", terminated his employment based on his gender. Plaintiff alternatively contends that he was terminated in retaliation for engaging in a protected activity, namely, participating in investigations conducted by his employers's human resources department ("Human Resources").

Presently pending before the Court is the employer's motion for summary judgment (Dkt #12) pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). For the reasons set forth below, the Court finds that Plaintiff has failed to establish a prima facie case both with respect to his discrimination and retaliation claims.

Accordingly, the Court grants the Motion for Summary Judgment (Dkt #12) in its entirety and dismisses Plaintiff's Complaint (Dkt #1) with prejudice.

II. Factual Background and Procedural History

A. The Corporate Structure of Plaintiff's Employer

Until it was acquired in September 2008 by Iberdrola, a Spanish power company, Energy East Corporation ("Energy East") was a regional utility holding company operating in several states in the northeastern United States. Energy East owned six regulated utility companies but did not have its own employees at any time.

Utility Shared Services Corporation ("USSC") was incorporated in 2003 to provide information technology, human resources, purchasing, financing, and accounting services for the six utilities held by Energy East. At all times, Defendants state, USSC was a separate corporation and maintained a corporate identity separate from Energy East. Sheri Lamoureux Affidavit ("Lamoureux Aff."), ¶¶2-4.

B. Plaintiff's Employment

Plaintiff was employed by USSC as a Director of Support Services from 2003 until his termination in October, 2008. As the Director of Support Services, Harkola was responsible for managing staff, implementing new technologies, and implementing the processes necessary to support those technologies. Four managers reported to Harkola, including at different times Joanne Malyszek ("Malyszek") and Richard Altamiri ("Altamiri").

C. USSC's Anti-Discrimination Policies

USSC has an Equal Employment Opportunity Policy, a Sexual Harassment-Free Work Environment Policy, and a Harassment and Discrimination-Free Work Environment Policy (collectively, "the EEO Policies"). Copies of these policies are provided to employees at the time they are hired, are available at all times to all employees on the company intranet, and are also incorporated into the Company's Code of Conduct, available in hard copy and on the intranet. Lamoureux Aff., ¶5-6; Exhibit "A." The EEO Policies prohibit discrimination, harassment, and retaliation for engaging in a protected activity, and encourage employees to promptly report any behavior, speech or other activity that may violate a policy. They also inform employees that complaints are kept as confidential as possible. Lamoureux Aff., ¶5; Exhibit "A."

In addition to the general anti-discrimination and anti-harassment training provided by a program titled, "Matter of Respect", all managers receive training specifically tailored to the managers' specific duties, including hiring, discipline, and termination. Managers are advised to promptly report any complaints of harassment, discrimination or retaliation to Human Resources. Lamoureux Aff., ¶6; Deposition of Steven Harkola ("Harkola Dep.") at 71. Harkola received training on the Company's EEO Policies in December of 2003, and attended "Matter of Respect" Training which also covers the EEO Policies on July 24, 2007. Lamoureux Aff., Exhibits B & C.

D. The 2006 Complaint of Sexual Harassment Against Plaintiff

In 2006, an employee in Harkola's group, Michael Brockmann ("Brockmann"), complained to his manager, Malyszek, regarding sexually offensive comments allegedly made by Harkola. Malyszek followed Defendant's policy and reported the matter to Human Resources. In accordance with the EEO Policies, Human Resources conducted an investigation into the complaint. Guy Aff., Ex. "D" at 81-82; Deposition of Annette Kendrick ("Kendrick Dep.") at 55. Apart from reporting the matter and cooperating in answering questions posed to her, Malyszek was not involved in the investigation and was not told of the outcome. Deposition of Joanne Malyszek ("Malyszek Dep.") at 82.

Kendrick, the Human Resources manager, met with Harkola concerning Brockmannn's complaint. She also interviewed Brockmannn, Malyszek, and a third employee in Brockmannn's work group, Jackie Stewart ("Stewart"). Kendrick Dep. at 55-58; Harkola Dep. at 77. Malyszek, Brockmannn, and Stewart each described to Kendrick three identical incidents involving Harkola. Kendrick Dep at 56-57. In the first, Harkola referred to a red gym bag either he or Brockmannn was carrying as a "pussy bag." Harkola Dep. at 66. Harkola admitted that he had made that comment. Harkola Dep. at 66; Kendrick Dep. at 57.

The second incident involved Harkola, at a meeting, referring to a box on a checklist as the "G-spot." Harkola Dep. at 67. At his meeting with Kendrick, Harkola admitted the incident occurred and that he had joked about it. Id. at 57. At his deposition, however, Harkola claimed that he said the word only one time by accident and did not, as the three other witnesses reported to Human Resources, repeat the word. Id. at 67.

The third claim was that Harkola made a comment to the effect that women attending a conference with him should wear low-cut blouses. Harkola denied that he made this statement and contended the employees made it up. Harkola Dep. at 67-68; Kendrick Dep. at 57-58.

At the conclusion of the investigation, Human Resources recommended to Harkola's supervisor, Patrick Neville ("Neville") that Harkola be disciplined for inappropriate workplace language and be given a two-week suspension. Kendrick Dep. at 58. Neville approved the recommendation and Harkola was suspended for two weeks. Kendrick Id. Harkola was permitted to apologize to the three employees for having made them uncomfortable.

Throughout the investigation and at its conclusion, Harkola was advised to keep the matter confidential, in accordance with company policy. After he returned from suspension, however, Harkola confronted Malyszek and asked her why she had made the complaint to Human Resources. Harkola Dep. at 72; 74-75. Malyszek told him that she simply was following company policy in doing so. Id. at 72.

E. The Performance Review Involving Brockmannn

Employees at USSC are evaluated by their managers at the mid-year point and again at the end of the year. The managers prepare the evaluations which are then approved by the Directors and Vice-Presidents before being sent to Human Resources. Lamoureux Aff., ¶9. During the end of year reviews, employees are rated based upon their performance in the objectives and competencies laid out in the beginning of that year. As a result of the numerical ratings received in these areas, employees fall into three overall performance categories-exceeded expectations ("High Performer"), met expectations ("Acceptable Performer"), or did not meet expectations ("Low Performer"). Id., ¶10.

Employees who receive a Low Performer rating are placed on a performance improvement plan ("PIP") and given the opportunity to improve their performance. If an employee successfully meets his PIP's objectives within ninety (90) days, he is not terminated for low performance. If he fails to meet those objectives, he is terminated. Lamoureux Aff., ¶ 11. An employee rated as a Low Performer may appeal to Human Resources, which subsequently reviews the rating and determines if it is warranted based on the documentation in the employee's file. Id., ¶12.

Vice-presidents at USSC are required to have five (5) percent of their employees fall into the Low Performer rating each year. This sometimes can result in the Directors or Vice-Presidents reclassifying an employee with marginal evaluations into the Low Performer category in order to meet their "quota" of Low Performers. Lamoureux Aff., ¶13. For instance, Harkola testified that in some cases, Neville would direct him to place an individual in the Low Performer category which would result in that employee receiving a PIP. Harkola Dep. at 32. In some cases, Harkola agreed with Neville's decision; sometimes, he did not. Id. at 34.

In 2008, Brockmannn's manager, Malyszek, jointly decided with Harkola to rate Brockmannn as a Low Performer and place him on a PIP. Malyszek Dep. at 86; Harkola Dep. at 100; Kendrick Dep. at 28. Neville also reviewed and approved the decision to place Brockmannn in the Low Performer category. Deposition of Patrick Neville ("Neville Dep.") at 17.

Dissatisfied, Brockmannn appealed his Low Performer rating. Neville Dep. at 18; Malyszek Dep. at 86; Harkola Dep. at 101. Malyszek discussed the appeal with Kendrick, who defended Malyszek's decision, and responded to Brockmannn's complaint in writing. Malyszek Dep. at 88.*fn1

Brockmannn successfully completed his PIP while his appeal was pending. Kendrick Dep. at 53. Brockmannn also was successful in having his PIP overturned by Human Resources on the basis that certain information in Brockmannn's reviews had come from an outside contractor in violation of company policy. Id. at 53-54.

Brockmannn's new superior, Altamiri, complained to Neville, asserting that Plaintiff had placed Brockmannn on the Low Performer list in retaliation for Brockmannn's complaints about Harkola two years earlier. Brockmannn himself also complained to Human Resources that he believed he was listed as a Low performer in retaliation for reporting Plaintiff for having made offensive comments in 2006.

E. The Retaliation Claim Against Harkola and Harkola's Termination

In late August of 2008, while Human Resources was determining whether to change Brockmannn's performance rating, Brockmannn's new manager, Altamiri, registered a complaint with Neville about Harkola. According to Altamiri, Harkola was retaliating against Brockmannn by placing him on a PIP because Harkola believed that Brockmannn had been involved in the 2006 sexual harassment complaint against Harkola. Neville Dep. at 22-23. Altamiri alleged that Harkola had made comments to him to the effect that they "should get rid of" Brockmannn, and that he (Harkola) knew that Brockmannn had reported him to Human Resources. Id. Altamiri also felt Harkola was pressuring him to ensure Brockmannn would be unsuccessful in his PIP. Neville Dep. at 35. In addition to reporting the matter to Human Resources, Neville reminded Harkola that the objective of a PIP is to ensure the employee is successful and that he needed to support Brockmannn through that process. Id. at 19, 36.

At the same time, Brockmannn had complained to Human Resources that he believed he was placed on a PIP in retaliation for making the 2006 complaint against Harkola. Kendrick Dep. at 33. Based on the complaints by Altamiri and Brockmannn, Kendrick began investigating a potential claim of retaliatory treatment by Harkola. Id. at 33-34; Neville Dep. at 19. In this regard, Kendrick called Harkola to schedule a meeting with him, reminding Harkola that the meeting was confidential and asking him not to speak to anyone about it. Kendrick Dep. at 45; 62-63.

Shortly after Kendrick's phone call to Harkola, Altamiri approached Neville a second time and told him that Harkola had called him (Altamiri) at home and asked if Altamiri had reported him to Human Resources. Neville Dep. at 29. Altamiri also told Kendrick about the incident, which he found threatening. Kendrick Dep. at 63.

In addition to Harkola's phone call to Altamiri, Neville reported Harkola's comments about wishing to see Brockmann terminated to Human Resources. Neville Dep. at 29, 33-34.

Kendrick continued to investigate by speaking to Brockmannn, Altamiri, Malyszek, and Stewart. Kendrick Dep. at 33-40. Kendrick also spoke to Teresa Hannah ("Hannah"), one of Harkola's subordinates; and Mary Lynn Cardone-Zarr ("Cardone-Zarr"), one of Brockmann's co-workers. Kendrick reviewed the performance evaluations of Harkola's subordinates from previous years to see if there was any evidence of retaliation in those reviews. Id. at 52-53.

Finally, Kendrick met with Harkola and specifically asked him if he had spoken to anyone regarding the meeting or the investigation. Harkola stated that he had only talked to Neville and denied speaking to anyone else. Kendrick Dep. at 64. At his deposition, however, Harkola admitted that he called Altamiri at home and asked if Altamiri had reported him (Harkola) to Human Resources. Harkola Dep. at 116, 118. Harkola explained that he wanted to know if Altamiri had called Kendrick to complain about him. Id. 120-22. Harkola acknowledged that as a general rule he believes managers should keep such complaints confidential and that failure to do so could discourage people from bring legitimate complaints. Id. at 99.

Once Kendrick concluded her investigation, she met again with Neville to discuss Human Resources' recommendations regarding Harkola. Neville Dep. at 19. Although Human Resources did not find sufficient evidence to prove that Harkola was intentionally retaliating against Brockmannn, it did find sufficient evidence to conclude that Harkola had exercised poor judgment as a manager. Neville Dep. at 19-20; Kendrick Dep. at 65-66. Accordingly, Human Resources recommended that Harkola be suspended for four weeks. Neville Dep. at 20. This recommendation was based upon the following factors: (1) Harkola's failure to comply with the directive that he maintain confidentiality with regard to the 2006 sexual harassment investigation; (2) Harkola's failure to comply with the directive that he maintain confidentiality for the 2008 retaliation investigation; (3) Harkola's pressure on Altamiri to terminate Brockmann; (4) Harkola's apparent intimidation of Altamiri during the 2008 retaliation investigation; and (5) Harkola's poor management and communication styles. Neville Dep. at 25.

Neville disagreed with the suspension-only recommendation and instead recommended that Harkola be terminated. Neville based his recommendation on Harkola's repeated failure to maintain confidentiality for the two Human Resources investigations and his exercise of poor judgment in a management position. Neville Dep. at 29. Neville testified that, in particular, Harkola's call to Altamiri inquiring if Altamiri had reported Harkola to Human Resources was threatening and "showed extremely poor judgment." Id. After further discussion, Human Resources agreed with Neville's recommendation. Kendrick Dep. at 67.

In October 2008, Harkola was terminated. Neville Dep. at 40. In November 2008, he filed a charge of discrimination with the Equal ...

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