The opinion of the court was delivered by: Siragusa, J.
Now before the Court is Defendant's Motion for Summary Judgment, ECF No. 44, seeking to dismiss Plaintiff's employment discrimination claims in their entirety. Defendant argues that Plaintiff failed to make a prima facie showing of age and gender discrimination based on the termination of her employment. For the reasons that follow, Defendant's motion is granted and Plaintiff's claims are dismissed in their entirety.
Unless otherwise noted, the following facts are taken from the Statement of Undisputed Material Facts of L.M. Berry and Company ("Defendant"), ECF No. 44-2.
In late February 2007, Defendant's Vice President of Human Resources ("HR") Anita Moore ("Moore"), became aware of potential misconduct in Berry's Rochester Office involving, among others, Teresa Taddeo ("Plaintiff"), Kevin Dowd ("Dowd"), and Chris Peer ("Peer"). Moore Aff. ¶3. Taddeo, Dowd, and Peer were alleged to have, among other things, disregarded a directive from their supervisor, Operations Sales Manager Gayle Jones ("Jones"), not to involve Berry employee Brian Sturm ("Sturm") in certain work projects, including a project called the "Rochester Southern 50% Review." NYDHR Verified Complaint ¶¶ 5-6 (attached as Ex. 1 to Affidavit of Robert Koury); Moore Dep. 88:7-25, 89:1-25, 90:1-10.
Moore, with assistance from HR Generalist Brent Kondritz ("Kondritz"), conducted a formal HR investigation into the alleged misconduct. Moore Aff. ¶4. Moore and Kondritz conducted lengthy, formal interviews of each Berry employee involved, including Taddeo, Dowd, Peer, and Administrative Assistant Sandy Houseknecht, and took detailed notes of the interviews. Moore Aff. ¶¶ 5-9, Exs. 1-4; Kondritz Aff.¶¶ 5-11, Exs. 1-8. Moore and Kondritz also conducted lengthy, formal interviews of Jones and Division Manager Kevin Dunston ("Dunston"), again taking detailed notes of the interviews. Id. During these interviews, Peer and Dowd each stated that Taddeo instigated the misconduct, i.e., they each stated that Taddeo sought out Sturm's assistance on the Rochester Southern 50% Review and at some point told the others managers that Sturm was going to assist with the document. Kondritz Aff. Ex. 4 at 1 & Ex. 6 at 1. However, Plaintiff maintains that Dowd suggested that they check with Sturm. Taddeo Dep. 94. She also states that she had come to Dunston's office saying that she had heard Jones was mad at her and that he told her that Jones would come talk to her. Dunston Dep. at 67. Peer further states that Taddeo called him at home on his cell phone and asked him to keep quiet about the misconduct. Kondritz Aff. Ex. 4 at 1. Dowd said he later called Taddeo to tell her to come clean about the entire incident, but she refused and told Dowd to lie to Jones about the misconduct. Kondritz Aff. Ex. 6 at 2, 6. Plaintiff contends that Dunston took Dowd out for drinks and counseled him on how to handle Jones' questioning. Dunston Dep. 69-71. She also states that Dowd told Peer not to do anything about coming forward and that Dowd would take care of the situation. Dunston Dep. 103.
Plaintiff denied that anyone ever approached her about coming clean, and denied telephone conversations with Dowd or Peer. Moore Aff. Ex. 2 at 3; Moore Dep. 133:1-14; Taddeo Dep. 172:11-12. Plaintiff also notes that when Dunston and Jones called HR, speaking with Kondritz, Dunston stated Plaintiff had been the ringleader of the January 30 incident and that he wanted her fired. Kondritz Dep. 67-68.
At the end of her investigation, Moore concluded that each manager had, to some extent, engaged in misconduct. Moore Dep. 100:16-25, 101:1-13, 103:3-25, 104:1-5. She concluded that each manager had purposefully disregarded a direct order from his supervisor. Id. Although Moore was extremely concerned about the allegations by Peer and Dowd that Taddeo asked them to lie and to cover-up the misconduct, Taddeo denied calls with Peer or Dowd and there was, at that point, no evidence to corroborate either story. Id. 100:16-25, 101:1-13; 137:10-21. As a result, Moore decided to give each manager a final written warning. Id. 101:1-25, 102:1-19; Taddeo Dep. 152:12-25, 153:1.
After being advised that he would receive a final written warning, Peer told Dunston that he had cell phone records proving that Taddeo had called him at home during the time she denied talking to him about the matter. Dunston Dep. 117:2-7. Peer gave Dunston a copy of the records. Dunston Dep. 119:24-25, 120:1-11. Dowd also gave Dunston a copy of his cell phone records. Dowd's cell phone records showed that he had in fact called Taddeo during the time she denied talking to him about the matter. Dunston Dep. 120:12-16. Specifically, the records revealed a four-minute call from Taddeo's cell phone to Peer's cell phone on the evening of February 5, 2007 and a six-minute call from Dowd's cell phone to Taddeo's cell phone the following morning. Moore Aff. Ex. 5 at 2, 3. Copies of the cell phone records were given to Moore, and she concluded they corroborated the stories of Peer and Dowd about their phone calls with Taddeo. Dunston Dep. 120:17-20; Moore Aff. ¶10. Although the records could not conclusively prove what was said during those calls, Moore found it significant that the calls were in fact made. Moore Dep. 133:1-14; 137:4-25, 138:1-12. Not only did Taddeo deny phone calls with Peer or Dowd relating to the investigation, she never acknowledged any phone calls with Peer or Dowd during the relevant time frame. Consequently, Moore believed that the records corroborated the stories of Peer and Dowd, and suggested that Taddeo had lied to her during the interview. Moore Dep. 144:4-12; Moore Aff. ¶ 10.
Given this new evidence, Moore re-opened the investigation to get further details about the calls and to give Taddeo an opportunity to explain the discrepancy between the records and her previous statements throughout the investigation. Moore Aff. ¶ 10. After telephonically interviewing Peer and Dowd to obtain details about the phone calls, Moore telephonically interviewed Taddeo to give her one more chance to explain herself. Taddeo Dep. 157:13-20; 159:11-13; Moore Aff. ¶ 11, Exs. 6-9. Moore informed her that she had evidence that suggested Taddeo may have lied during the investigation. Taddeo Dep. 158:8-11. More specifically, Moore told Taddeo that she had otained records substantiating that calls between Taddeo and Peer and Taddeo and Dowd had been made. Taddeo Dep. 158:8-15. Taddeo, however, continued to deny the calls and failed to explain the discrepancy to Moore between the phone records and her earlier statements during the investigation. Moore Dep. 128:15-25, 129:1-25, 130:1-11; Taddeo Dep. 159:7-10, 162:8-18. As Moore put it during her deposition, Taddeo, "told me she called Sandy [Houseknecht]. That was the only one person that she acknowledge calling and I asked her if she called anyone else. She said no." Moore Dep. 133:11-14. At her deposition, Taddeo testified, "I told Anita Moore that the only person I called about the incident was Sandy [Houseknecht]." Taddeo Dep. 172:11-12.
During her deposition, Taddeo stated that her phone call on February 5, 2007, shortly after six o'clock, to Chris Peer was to tell him she was going to be in the hospital the next morning and would be late. Taddeo Dep. 163:15-19.
Nevertheless, Moore believed that Taddeo had intentionally lied about the calls with Peer and Dowd, and that she did, in fact, attempt to obstruct the investigation. Moore Dep. 140: 16-25, 141: 1-20. Consequently, Plaintiff was terminated effective March 19, 2007. Compl. ¶ 7. On March 10, 2008, Plaintiff filed the present action alleging: (1) age discrimination in violation of the ADEA and the New ...