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Wilkins v. Time Warner Cable, Inc.

United States District Court, N.D. New York

March 31, 2014

JOSEPH WILKINS, Plaintiff,
v.
TIME WARNER CABLE, INC., Defendant

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For Joseph Wilkins, Plaintiff: AJ Bosman, LEAD ATTORNEY, Daniel W. Flynn, Bosman Law Office, Rome, NY.

For Time Warner Cable, Inc., Defendant: Suzanne O. Galbato, Suzanne M. Messer, Bond, Schoeneck Law Firm - Syracuse, Syracuse, NY.

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MEMORANDUM-DECISION AND ORDER

Lawrence E. Kahn, U.S. District Judge.

I. INTRODUCTION

Plaintiff Joseph Wilkins (" Plaintiff" ) brought this employment discrimination action against his former employer, Defendant Time Warner Cable, Inc. (" Defendant" ). Dkt No. 1 (" Complaint" ). Presently before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion to amend the Complaint. Dkt. Nos. 24 (" Motion" ); 31 (" Cross-Motion" ). For the following reasons, Plaintiff's Cross-Motion is granted and Defendant's Motion is granted in part and denied in part.

II. BACKGROUND

A. Plaintiff's Employment

Defendant is a cable, telephone, and internet services provider. Dkt. Nos. 24-14 (" SMF" ) ¶ 3; 32 (" Response SMF" ) ¶ 3. Plaintiff began working for a predecessor of Defendant in June 1983, and worked for Defendant or its predecessors continuously until April 2010. SMF ¶ 1; Resp. SMF ¶ ¶ 1, 35, 37. Plaintiff states that he worked as a Direct Sales Representative (" DSR" ) from 1983 until around 2005,

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when he took the position of Multi-Dwelling Unit[1] (" MDU" ) salesman. Resp. SMF ¶ ¶ 5, 36.[2] Plaintiff sold Defendant's cable, telephone, and internet services directly to customers at their homes or to property managers of residential MDUs. SMF ¶ 5; Resp. SMF ¶ 5. Throughout his employment, Plaintiff's compensation consisted of sales commissions and a small base salary. Dkt. Nos. 26-27 (" Wilkins Deposition" ) at 45:13-46:6. Plaintiff was a good performer and received positive performance evaluations. SMF ¶ 6; Resp. SMF ¶ 6. To ensure that Plaintiff's commission-based compensation did not increase beyond a certain level, Defendant would not assign Plaintiff new MDUs for additional sales. Wilkins Dep. at 186:12-16.

Plaintiff was amongst the oldest and longest-tenured salespeople at his workplace. Id. at 186:7-8; see also Resp. SMF ¶ 33. For the last six or seven years of Plaintiff's employment, his supervisor and most other employees referred to him as " Grandpa" or " Grandpa Joe," a nickname that Plaintiff told others they could use. Compl. ¶ ¶ 15-16; SMF ¶ 33; Resp. SMF ¶ 33.

B. Cessation of Employment

1. The Edwards Meeting

According to Plaintiff, on April 1, 2010, his supervisor, William Edwards (" Edwards" ), requested a meeting on April 2 at 9:00 a.m. Resp. SMF ¶ 37. Although Edwards arrived at the office at 9:30 a.m., he did not meet with Plaintiff until 11:50 a.m., explaining to Plaintiff that there were " too many people in the office." Id. ¶ 38. Edwards took Plaintiff outside the building, where he told him that the MDU specialist position would be changing and that Plaintiff should retire. Resp. SMF ¶ 40. Edwards would not tell Plaintiff exactly whet changes would happen, but told Plaintiff his position would be eliminated and that, within three days, Plaintiff would need to get " all new buildings" --i.e., Plaintiff would lose all his sales accounts and would need to find new ones. Resp. SMF ¶ ¶ 15, 41; Dkt. No. 30-2 (" Wilkins Declaration" ) ¶ 7; see also SMF ¶ 15. Edwards also told Plaintiff that he " didn't fit in anymore." Resp. SMF ¶ 15. Plaintiff told Edwards that he did not want to retire. Id. ¶ 43.

Defendant acknowledges that Edwards told Plaintiff that the MDU job would be changing, but contends that Edwards told him no plan was in place for what changes would be made and that Edwards did not tell Plaintiff his position would be eliminated. SMF ¶ ¶ 9, 15.

2. The Keib Meeting

Defendant maintains an " Open Door Policy," which provides that " employees should feel comfortable bringing their concerns about work related situations to the attention of management." SMF ¶ 4; Dkt No. 24-13, Ex. I (" Open Door Policy" ).[3]

After the conversation with Edwards, Plaintiff sought a meeting with John Keib (" Keib" ), the " President of the Northeast Region." Resp. SMF ¶ 44. Keib's secretary informed Plaintiff that Keib was available for a " quick meeting" around 4:15 p.m. Id. Plaintiff met with Keib as arranged and told him that he had spoken

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with Edwards and that he did not want to retire. Id. ¶ 45. Keib did not ask Plaintiff what he meant by not wanting to retire. Id. ¶ 46. Keib told Plaintiff that he could work part-time, but Plaintiff responded that he did not want to work part-time because he would not receive benefits. Id. ¶ 47. Keib told Plaintiff that he would talk to HR and see what he could do for Plaintiff. Wilkins Decl. ¶ 9; Resp. SMF ¶ 48. The entire meeting lasted about five minutes. Wilkins Decl. ¶ 9. Keib and Plaintiff scheduled a second meeting for April 13, 2010, at 8:30 a.m. Resp. SMF ¶ 49.

When Plaintiff arrived for the April 13 meeting, he waited two hours before Keib's secretary informed him that Keib was not there and could not meet with him. Resp. SMF ¶ 50. Plaintiff felt humiliated. Wilkins Decl. ¶ 10. Keib's secretary told Plaintiff that she would set up another meeting and then call Plaintiff. Resp. SMF ¶ 50. Plaintiff never heard from Keib after that. Id. ¶ 51. He called three times to set up another meeting, but was told each time that Keib was not available. Id. ¶ 52.

3. The HR Meeting

Plaintiff had previously decided to use some vacation time he had accrued, but first needed the signature of Edwards or a Human Resources (" HR" ) representative. Id. ¶ 53. As of April 2010, Edwards had not signed Plaintiff's vacation time request. Id. Following the April 2 meeting with Edwards, Plaintiff called Edwards several times and left messages regarding both his desire not to retire and approval of his vacation time request. Id. ¶ 54. Edwards never responded to those calls. Id. Plaintiff then went to HR for approval of his vacation time request. Id. ¶ 55. While meeting with the HR representative, Plaintiff mentioned that it was possible he would have to retire. Id. ¶ 55. As he was about to leave the HR meeting, the HR representative told him that if he was going to retire, he would need to create a letter stating his intention to do so. Id. ¶ 56. Plaintiff asked her if he could retract the letter if he did not end up retiring, and she said he could. Id. ¶ 57. With the HR representative's assistance, Plaintiff drafted a letter stating that he intended to retire after April 29, 2010, which was the end of his planned vacation. Id. ¶ ¶ 7, 57; SMF ¶ 7; Dkt No. 24-8, Ex. B (" Retirement Letter" ).

Plaintiff states that he intended to keep his job or switch to a different full-time position by speaking with Keib and/or Edwards. Resp. SMF ¶ ¶ 58-59. However, neither Keib nor Edwards met with Plaintiff after he signed the letter. Id. ¶ ¶ 60, 62.

C. Exit Interview and Benefits

Plaintiff maintains that every employee who leaves Defendant has an exit interview. Resp. SMF ¶ 64. According to Plaintiff, his exit interview was scheduled for April 30, but when Plaintiff arrived Edwards was not there and his administrative assistant told Plaintiff that he had called to say he was not coming. Id. ¶ 63; Wilkins Decl. ¶ 14. An exit interview was therefore never held. Resp. SMF ¶ 63.

According to Defendant, an exit interview was conducted with Plaintiff on or about April 16, after Plaintiff had signed the Retirement Letter. Dkt No. 24-7 (" Petitto Declaration" ) ¶ 7. As evidence of this interview, Defendant submits a copy of an email from an HR manager to Plaintiff congratulating him on his retirement and informing him that Defendant's " exit 'interview' is now done electronically so [she] will send [him] that link in a separate email." Dkt No. 24-8, Ex C. The email includes as an attachment a generic, two-page information sheet entitled " Benefits Information for Separating Employees."

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Id. The sheet includes brief summaries and contact information for several benefit plans, including medical coverage and pension plan benefits. Id. It does not mention severance pay or benefits, see id., although Defendant does maintain a Severance Pay Plan that provides benefits to departing employees under certain circumstances, see SMF ¶ ¶ 18-20; Resp. SMF ¶ ¶ 18-20; Dkt No. 6, Ex. A; Dkt. No. 24-9 (" Plan" ).

Plaintiff states that he was never trained to use his office email account, and that it was common knowledge at his office that he did not know how to use it. Wilkins Decl. ¶ 18. He therefore never received the exit interview email or the benefits information sheet. Id. Furthermore, he was on vacation at the time the email was sent to him. Id.

After his employment ended, Plaintiff received medical and pension benefits. SMF ¶ 8; Resp. SMF ¶ 8. He did not receive any severance pay. Resp. SMF ¶ 8.

D. Post-Employment Events

Plaintiff contends that, after his departure, the MDU specialist position was changed to require the salesperson to also perform physical installations in addition to sales. Resp. SMF ¶ ¶ 14-15. Another employee of Defendant, William Holbert (" Holbert" ), sought to fill the position vacated by Plaintiff but was told that he was " too old." Id. ¶ 65. Defendant eventually filled the position with two individuals who were significantly younger than Plaintiff: Jeffrey Sydney (twenty-eight years younger) and Stephen Capousis (nineteen years younger). Resp. SMF ¶ 66.

Defendant contends that Plaintiff was employed as a DSR in 2010, and that Defendant did not eliminate any DSR positions in 2010, but rather hired three additional DSRs to service MDUs. SMF ¶ 14. Defendant states that Plaintiff's job responsibilities were assumed by Jeffrey Sydney, who was over forty years old, and that two of the additional DSRs hired in 2010 were also over the age of forty. SMF ¶ 15.

E. Procedural History

Plaintiff filed a complaint with the New York State Division of Human Rights in May 2010 and filed this action on June 20, 2011, bringing claims for violations of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621-634, and the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § § 1001-1461, breach of contract, and attorneys' fees. Compl. ¶ ¶ 4-5, 27-38. Defendant filed its Motion and supporting Memorandum on March 18, 2013. Mot.; Dkt No. 15 (" Memorandum" ). Plaintiff then filed his Response and Cross-Motion, and Defendant filed a Reply. Cross-Mot.; Dkt Nos. 30-1 (" Response" ); 33 (" Reply" ). On June 14, Plaintiff moved pursuant to Federal Rule of Civil Procedure 56(d) to reopen discovery and depose Holbert. Dkt. No. 34 (" 56(d) Motion" ). After the Court granted Plaintiff's 56(d) Motion and the deposition was ...


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