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John Paniccia v. Verizon Wireless

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


January 13, 2012

JOHN PANICCIA, PLAINTIFF,
v.
VERIZON WIRELESS, DEFENDANT.

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

DECISION and ORDER

INTRODUCTION

Plaintiff John Paniccia ("Paniccia"), a former employee of defendant Verizon Wireless ("Verizon") brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act (the "ADEA"), and the New York State Human Rights Law claiming that he was unlawfully fired from his employment on the basis of his gender and age. Specifically, Paniccia, who was 44 years old when he was terminated from his employment, claims that he was treated differently than similarly situated workers who were either younger or female, and was fired for engaging in conduct that would not have resulted in termination of employment for those workers.

Defendant denies plaintiff's claim, and moves for summary judgment against the plaintiff. According to Verizon, Paniccia cannot establish an inference of discrimination because he has failed to establish that he was qualified for his position, and has failed to establish that he was treated differently than similarly situated employees who were female or younger than the plaintiff at the time his employment was terminated. In support of its motion Verizon contends that the plaintiff, along with several other employees, including female and younger employees, was fired because he consistently failed to meet sales quotas. Verizon alleges that it has an established sales-quota policy in place for its employees, and that it has fired several employees, including female and younger employees, for failing to meet sales quotas. Verizon thus contends that plaintiff has failed to establish any claim of employment discrimination.

Plaintiff opposes defendant's motion, and contends that he was treated differently than at least one other younger employee, who should have been, but was not terminated pursuant to the quota policy.

For the reasons set forth below, I find that plaintiff has failed to establish that he was discriminated against on the basis of his age or gender, and I therefore grant defendant's motion for summary judgment, and dismiss plaintiff's complaint in its entirety with prejudice.

BACKGROUND

Plaintiff John Paniccia was hired by Verizon Wireless (or its predecessor in interest) in March, 1999. Paniccia was hired as a sales associate, and in October 2004, was promoted to the position of retail sales manager. As a manager, Paniccia was required to meet a sales quota each month. The quota was based on Verizon's sales forecasts, as adjusted by the actual sales throughout its network of retail outlets. While individual sales associates each had individual sales quotas, as a manager, Paniccia's quota was based on the overall sales at his location, a kiosk located inside a Circuit City retail store.

Verizon had in place throughout plaintiff's employment a corrective process for associates and managers who did not meet their sales quotas. Pursuant to this policy, an employee would receive a progressively more intensive intervention for each month the quota was not attained. For example, when an employee for the first time fails to meet the sales quota, he or she receives a verbal warning. After a second occurrence, the employee is given a written warning. Upon a third instance of missing a quota, the employee is provided with a Sales Improvement Plan. After a fourth time a quota is not met, the employee is given a Final Sales Performance Improvement Plan. After a fifth missed quota, the employee is subject to being fired. To receive a corrective action under the policy, it is not necessary that the missed quotas be consecutive. However, if an employee is able to meet his or her quota for six consecutive months, he or she will have the corrective policy reset, and the employee will be treated as not having missed any quotas. Accordingly, if after six consecutive months of attaining the sales quota, the employee fails to make the quota, he or she will receive a letter of warning regardless of the number of missed quotas prior to the six consecutive months of meeting the sales quota.

In January and February of 2007, Paniccia failed to meet his sale quotas, and as a result, he received a verbal warning and a letter of concern from Verizon management regarding his failure to meet the quotas. Thereafter, in April and August of 2007, Paniccia missed his quotas, and a sales improvement plan, and a final sales improvement plan were issued. In November, 2007, plaintiff failed for a fifth time to meet his quota, and although he was subject to having his employment terminated, he was given an opportunity to remain at his job, and improve his sales numbers. In December, 2007, plaintiff again failed to meet his quota numbers, and as a result, his employment was terminated in January, 2008. Plaintiff does not dispute that he missed his sales quotas or that he received corrective action at each stage of the corrective process. See Plaintiff's Counterstatement of Facts at ¶ ¶ 31-41, 45, 47, 53, 54.

DISCUSSION

I. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)).

II. Standard for evaluating claims of Employment Discrimination.

Claims of employment discrimination are analyzed under the well-recognized burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The plaintiff bears the burden proving a prima facie case of discrimination. If the plaintiff succeeds in stating a prima facie case, the burden of production shifts to the defendant to state a legitimate, non-discriminatory reason for the employment action. Should the employer meet that burden, the burden of production then shifts back to the plaintiff to show that the reasons proffered by the employer were not the true reasons for the adverse employment action, but were a pretext for discrimination, and that discrimination was the real reason. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502-06 (1993).

In the instant case, for the reasons set forth below, I find that plaintiff has failed to state a prima facie case of either age or gender discrimination. Moreover, assuming that plaintiff could state a prima facie case of discrimination, I find that the defendant has stated a legitimate, non discriminatory reason for terminating Paniccia's employment, and that Paniccia has failed to rebut the explanation proffered by Verizon. Accordingly, I grant the defendant's motion for summary judgment.

III. Plaintiff has failed to state a claim of Age Discrimination

A. Legal Standards for Age Discrimination Claims To establish a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate that; (1) he is a member of a protected group; (2) he was qualified for the position he held; and (3) he was discharged under circumstances giving rise to an inference of age discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Promisel v. First American Artificial Flowers, 943 F.2d 251, 259 (2d Cir. 1991), cert. denied, 502 U.S. 1060 (1992).

B. Plaintiff has failed to establish a claim of Age Discrimination

In the instant case, it is undisputed that the plaintiff was over the age of 40 at the time his employment was terminated, and therefore is a member of a protected class under the ADEA. 29 U.S.C. § 631(a) The parties disagree, however, as to whether or not plaintiff was qualified for his position as a sales manager, and whether or not his employment was terminated under circumstances giving rise to an inference of discrimination. According to the defendant, Paniccia was not qualified for his position as a sales manager because he failed to meet sales quotas for six out of his last 12 months of employment. Plaintiff points out that he was employed as a sales manager by Verizon for several years prior to his dismissal, and suggests that it would be inappropriate for a court to determine qualifications for a position based on meeting sales quotas. According to the plaintiff, under the defendant's analysis, he would have been qualified for his job in every month that he met his quotas, but unqualified in those months where he failed to meet the sales requirement. Moreover, no party would know whether or not he was qualified for his employment in any given month, until after the final sales figures were reported, and then adjusted nationally per Verizon's quota policy. I find such a method for determining whether or not an employee is qualified for his job to be unworkable, and, based on the plaintiff's longstanding employment as a sales associate and then sales manager, I find that plaintiff was qualified for his position as a sales associate.

To establish that he was discharged under circumstances giving rise to an inference of age discrimination, however, a plaintiff must do more than prove that he is over the age of forty, was qualified for his position, and suffered an adverse employment action. Rather a plaintiff must establish that he was treated less favorably than significantly younger employees, or was replaced by a significantly younger employee. McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001); Cretella v. Liriano, 633 F.Supp.2d 54, 71 (S.D.N.Y., 2009).

In the instant case, plaintiff claims that he was treated less favorably than one younger employee, who he claims was allowed to keep his job despite failing to meet his sales quotas, whereas plaintiff was fired after he failed to meet his sales quotas. I find, however, that plaintiff's attempted comparison fails to establish an inference of discrimination, and further that evidence presented by the defendant establishes that plaintiff was treated similarly to several younger employees who were also fired after not meeting sales quotas.

Plaintiff alleges that he was treated differently than Jomar Aponte, a sales associate with Verizon. Plaintiff alleges that despite the fact that Aponte failed to meet his sales quotas for 6 separate months in 2007, Aponte was not fired, and indeed, was allowed to have his corrective status reset, so that he would no longer be subject to termination upon missing a quota. A review of the undisputed facts in the record, however, reveals that Aponte's situation differed in a material way from plaintiff's such that Aponte's situation is not comparable to the disciplinary actions faced by the plaintiff.

It is undisputed that under the Verizon sales-quota policy, an employee will be subjected to a progressive corrective action for each month that the employee fails to meet his or her sales quota. If an employee accumulates five months in which he or she has not met the quota, the employee is subject to termination under the policy. It is further undisputed that if an employee meets the sales quota for six consecutive months, the disciplinary process will be reset, the employee will be considered to have not missed any quotas, and the next monthly quota that is missed will restart the progressive corrective process.

Plaintiff contends that employee Jomar Aponte was treated differently than he was because Aponte missed his sales quota for five months, but was allowed to keep his job. The defendant, however, has submitted unrebutted evidence that Aponte met his sales quota for six consecutive months, and thus had his disciplinary process reset, and as a result, was not subject to being fired. While the evidence reveals that Aponte did not meet his sales quota in one of the six consecutive months for which he received credit for having met the goal, it is undisputed that Aponte was granted a discretionary waiver for that month because of an extended absence from work during the month. It is undisputed that under the disciplinary policy, an employee may be granted a waiver from the sales quota requirement if the employee was absent from work because of illness, vacation, or other extenuating circumstances. In the instant case, unrebutted evidence submitted by the defendant indicates that Aponte had a 10 day absence from the office that prevented him from reaching the sales quota for that month. The evidence further reveals that Aponte was granted the waiver because he had been well above quota in the months prior to the month in which he was out of the office for 10 days. Because the unrebutted and uncontroverted evidence demonstrates that Aponte met the requirement of six consecutive months of meeting the sales quota, plaintiff's attempt to compare his situation with Aponte's fails. Although Verizon contends that Aponte and Paniccia are not comparable because Aponte was a sales associate, with only an individual quota to meet, and Paniccia was a manager, with a quota based on group sales, I find this distinction to be of little difference, as both employees were subject to the same five-step corrective policy.

With respect to plaintiff's failure to attain his quotas during 2007, it is undisputed that plaintiff failed to meet his sales quotas in 6 of 11 months, and had only 3 consecutive months in which he was at or above his quota. It is further undisputed that despite failing to meet his quota in five out of 11 months, plaintiff was not fired, and was instead given an additional month to increase his sales and meet his quota. The undisputed evidence reveals that despite this accommodation, plaintiff was unable to meet his sales quota, resulting in a failure to meet the quota for the sixth time during 2007. As a result, the plaintiff was fired for failing to meet his sales requirements.

It is further evident from the uncontroverted evidence that the plaintiff was not fired because of his age or treated differently than younger employees. Of 23 sales employees dismissed from January 2007 through May, 2008, 19 were under the age of 40, and of those employees, 11 were under the age of 30. During the same time period, five sales supervisors, including the plaintiff, were fired. Of the five supervisors, three were aged 30 or younger, and one was aged 41. Accordingly, the plaintiff has failed to establish that older workers were treated differently than younger employees.

C. Defendant has stated a legitimate non-discriminatory reason for terminating the plaintiff's employment.

Assuming that the plaintiff could establish a prima facie of age discrimination, I find that defendant has stated a legitimate, non-discriminatory reason for terminating his employment. Specifically, the defendant has established that the plaintiff failed to meet his sales quotas, and therefore, was fired under the company's sales quota policy. It is axiomatic that failure to meet sales expectations states a legitimate, non-discriminatory reason for firing an employee.

D. Plaintiff has failed rebut the defendant's proffered reason for terminating his employment.

Plaintiff has failed to adduce any evidence to suggest that the defendant's reason for firing him is pretextual, and that the real reason for firing him is age discrimination. There is no evidence that plaintiff was treated differently than younger employees who failed to meet the sales requirements, and there is no evidence that any employee of the defendant was hostile towards or critical of older employees.

Moreover, I note that the plaintiff has compared his employment conditions to only one other employee. Where a plaintiff attempts to create an inference of discrimination by comparing his treatment to that of only one other employee, he will fail to raise an inference of discrimination if the employer has provided a legitimate non-discriminatory reason for taking the adverse action it took. Bernhardt v. Hygrade, Inc., 1998 WL 401706, *4 (E.D.Pa., June 30, 1998). Here, the defendant has established that plaintiff was dismissed from his employment because he failed to meet his sales quota.

Because there is simply no evidence to suggest that Verizon had any discriminatory animus towards older employees, and therefore, having found that plaintiff has failed to state a prima facie of discrimination, and that plaintiff has failed to rebut the legitimate non-discriminatory reason proffered by the defendant for firing him, I grant defendant's motion for summary judgment with respect to plaintiff's claims of age discrimination.

IV. Plaintiff has failed to state a claim for gender discrimination.

Plaintiff alleges that he was discriminated against on the basis of his gender in violation of Title VII of the Civil Rights Act of 1964, which prohibits an employer from "hir[ing] or . . . discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ." 42 U.S.C. § 2000e-2. For the reasons set forth below, I find that plaintiff has failed to state a claim for gender discrimination.

A. Legal Standards for stating a claim of gender discrimination.

To establish a prima facie case of unlawful employment discrimination based on gender under Title VII, a plaintiff must establish that he is a member of a protected class, was qualified for the position he held, was subjected to an adverse employment action, and that the adverse action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

B. Plaintiff has failed to state a prima facie case of gender discrimination.

It is well settled that male employees may bring gender discrimination claims under Title VII. See Barton v. MikelHayes, 2010 WL 980708, at *4 (N.D.N.Y. March 15, 2010), and thus plaintiff is a member of a protected class. Assuming plaintiff was qualified for his position, to state a prima facie claim of gender discrimination, he must raise an inference of discrimination by showing that he was treated less favorably than female employees who were similarly situated. See Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1013-14 (2nd Cir. 1980).

I find, however, that plaintiff has failed to submit any evidence suggesting that he was treated differently than female employees by the defendant. He has not produced any evidence of similarly situated female employees who were treated more favorably than he was. Indeed, defendant has submitted evidence that several female employees who did not meet sales quotas were fired, and plaintiff has failed to identify any female employees who failed to meet the quota who were not fired. Accordingly, I find that plaintiff has failed to establish a prima facie case of discrimination.

C. Defendant has stated a legitimate non-discriminatory reason for terminating the plaintiff's employment.

Even if plaintiff could state a claim of gender discrimination, the defendant has stated a legitimate, non-discriminatory reason for terminating plaintiff's employment. As stated above, the defendant terminated plaintiff's employment because he failed to meet his sales quota in six out of 12 months in 2007. Such an explanation constitutes a legitimate non-discriminatory reason for ending plaintiff's employment.

D. Plaintiff has failed rebut the defendant's proffered reason for terminating his employment.

Plaintiff has not offered any evidence to suggest that the proffered reason for the termination of his employment is pretextual, or that the defendant was motivated by a discriminatory animus against men. Accordingly, plaintiff has failed to state a claim of gender discrimination, and I grant defendant's motion to dismiss plaintiff's Title VII discrimination claims.

V. State Law Claims.

Plaintiff alleges state law claims of age and gender discrimination. It is well settled that discrimination claims brought under the New York Human Rights Law are analytically identical to claims brought under federal law. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2nd Cir. 1996). See Haywood v. Heritage Christian Home, Inc., 977 F.Supp. 611, 613 (W.D.N.Y. 1997)(Larimer, C.J.)(Noting that both claims are governed by McDonnell Douglas standard.). Because I find that plaintiff has failed to state a claim of gender or age discrimination under federal law, I find that he has failed to state a claim of employment discrimination under New York State law, and I grant defendant's motion for summary judgment with respect to plaintiff's state law claims.

CONCLUSION

For the reasons set forth above, I grant defendant's motion for summary judgment, and dismiss plaintiff's complaint with prejudice.

ALL OF THE ABOVE IS SO ORDERED.

Michael A. Telesca

20120113

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