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John Paniccia v. Verizon Wireless

January 13, 2012


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



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.


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.


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 ...

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