United States District Court, E.D. New York
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For Plaintiff: John C. Luke, Jr., Esq., LAW OFFICES OF JOHN C. LUKE, JR., Uniondale, New York.
For Defendant: Eli Z. Freedberg, Esq., Marvin Weinberg, Esq., FOX ROTHSCHILD LLP, New York, New York.
MEMORANDUM & ORDER
Denis R. Hurley, United States Senior District Judge.
Plaintiff James Santiesteban (" Plaintiff" or " Santiesteban" ) commenced this action against defendant Nestle Waters North America, Inc. (" Defendant" or " Nestle" ), asserting claims of retaliation, discrimination based on religion, hostile work environment, and constructive discharge, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. (" Title VII" ), and New York State Executive Law § 296 et seq. (" NYSHRL" ), and asserting state law causes of action for negligent infliction of emotional distress and intentional infliction of emotional distress. Presently before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure (" Rule" ) 56. For the reasons set forth below, Defendant's motion is granted in part and denied in part.
The material facts, drawn from the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.
Plaintiff's Sales Positions at Nestle
Plaintiff is a former employee of Nestle, a company that sells bottled water and related products. (Def.'s R. 56.1 Stmt. ¶ ¶ 1, 4.) Plaintiff was hired by Nestle as a Sales Representative Commercial (" SRC" ) after interviewing for the position with John Caturano (" Caturano" ), Tom Crook (" Crook" ) and Ed Cappetta (" Cappetta" ). ( Id. ¶ ¶ 5, 6.) Cappetta and Caturano were Plaintiff's supervisors while Plaintiff was an SRC. ( Id.¶ 7.) As an SRC, Plaintiff sold Nestle services and products to small businesses and received an income of $37,000 per year. ( Id. ¶ ¶ 8, 9.) " Plaintiff performed extremely well as a[n] SRC." ( Id. ¶ 10.)
Not long after Plaintiff began his job as an SRC, Plaintiff was recommended for the position of Key Account Sales Manager (" KASM" ) by Cappetta. ( Id. ¶ ¶ 11, 12.) Plaintiff was subsequently offered the position, and he began working as a KASM on November 2, 2007. (Def.'s R. 56.1 Stmt. ¶ 13.) Plaintiff's salary increased to $52,000 per year. ( Id. ¶ 14.) In this new position, Plaintiff " targeted larger accounts that employed 25 or more people." ( Id. ¶ 15.) Similar to his position as an
SRC, Plaintiff, as a KASM, did not supervise other employees, rather, other supervisors, such as Zone Sales Development Managers and Sales Managers, supervised the KASMs and SRCs. ( Id.) Plaintiff was supervised by Michael Connelly (" Connelly" ) while he was employed as a KASM. ( Id. ¶ 16.)
In order to evaluate its employees' performances, Nestle set sales goals for its KASMs. ( Id. ¶ 17.) A KASM received the rating, " unsatisfactory," if he " met less than 85%" of his sales goals; " needs improvement," if he " met 85% to 95%" of his sales goals; " meets expectations," if he " met 95% to 105%" of his sales goals; " exceeds expectations" if he " met 105% to 119%" of his sales goals; and " outstanding," if he " met more than 120%" of his sales goals. (Def.'s R. 56.1 Stmt. ¶ 18.) Plaintiff's performance was recorded on a sales scorecard, which reflected both actual and projected sales. ( Id. ¶ 19.)
Plaintiff's performance as a KASM " dropped off precipitously" after his first few months in that position, " and he eventually performed at unsatisfactory levels." ( Id. ¶ 20.) Specifically, in January 2008, " Plaintiff met 249% of his year to date sales goals" ; in February 2008, " Plaintiff met 151% of his year to date sales goals" ; in March 2008, " Plaintiff met 104% of his year to date sales goals" ; in April 2008, " Plaintiff met 83% of his year to date sales goals" ; in May 2008, " Plaintiff met 90% of his year to date sales goals" ; in June 2008, " Plaintiff met 76% of his year to date sales goals" ; in July 2008, " Plaintiff met 67% of his year to date sales goals" ; and, in August 2008, " Plaintiff met 66% of his year to date sales goals." ( Id. ¶ 21.) " In terms of raw total sales of 'Cooler, DWS, Water' products, Plaintiff sold 87 units in January, 19 units in February, 10 units in March, 16 units in April, 56 units in May, 7 units in June, 8 units in July and 28 units in August." ( Id. ¶ 22.) Thus, " [b]etween February and August of 2008, Plaintiff only met or exceeded his projected sales goals once, in May of 2008." ( Id. ¶ 23.)
Nestle also " reviewed Plaintiff's overall performance . . . as a KASM," which included reviewing qualitative and non-selling related factors, " such as 'leads submitted,' 'price management,' 'full line selling,' 'build[ing] customer loyalty,' 'data management' and 'method of operation.'" (Def.'s R. 56.1 Stmt. ¶ ¶ 24, 25.) One such review observed that " [t]he computer work [wa]s a barrier at times for [Plaintiff]." ( Id. ¶ 26 (citation and internal quotation marks omitted).) Indeed, Plaintiff admitted " that his computer skills 'weren't the best.'" ( Id. (citation omitted).) Moreover, Plaintiff was rated as not meeting expectations in both of the reviews that were performed while Plaintiff was a KASM. ( Id. ¶ 27.)
While Nestle states that " Plaintiff reverted back to the SRC position" on September 2, 2008, Plaintiff argues that he was demoted to the SRC position. ( Id. ¶ 28; Pl.'s R. 56.1 Counterstmt. ¶ 28.) However, Plaintiff's salary remained $52,000 per year, " [d]espite his return to the SRC position." (Def.'s R. 56.1 Stmt. ¶ 29.) Cappetta wanted Plaintiff to return to the SRC position so that Plaintiff could increase the sales numbers of Cappetta's SRC team. ( Id. ¶ 30.)
Plaintiff's sales numbers were initially stable upon his return to the SRC position. ( Id. ¶ 31.) However, in 2009, " Plaintiff received a full-year rating of 'needs improvement' in his performance evaluation, in part, because he was not meeting as many potential customers as was required by [Nestle], and . . . because his sales results in the second half of 2009 declined."
( Id. ¶ 32.) Additionally, Plaintiff failed " to undertake 53 sales related activities per day," as was required by Nestle. ( Id. ¶ 34.) As a result, Plaintiff was placed in an SRC development program and given additional coaching. ( Id. ¶ 35.)
In 2010, Plaintiff's sales numbers were " on a downward trajectory," and, " [b]y the end of May of 2010, Plaintiff had only been able to make 85% of his projected year to date sales." (Def.'s R. 56.1 Stmt. ¶ 40.) On May 6, 2010, Plaintiff's child was born, and " Plaintiff took two weeks of paternity leave." ( Id. ¶ 37.) Subsequently, on or around June 2010, Plaintiff asked Cappetta for a transfer. ( Id.) However, Plaintiff's request was denied because he had not satisfied Defendant's transfer policy guidelines as a result of his recent " needs improvement" evaluation. ( Id. ¶ 38.) Although Plaintiff admits that he received the " needs improvement" rating, he disputes the reason he received that evaluation. ( Id. ¶ 39.) According to Plaintiff, Mr. Cappetta informed Plaintiff that his transfer was denied because of missing cups. (Pl.'s R. 56.1 Counterstmt. ¶ 39.)
In 2002, Plaintiff had converted to Judaism. (Def.'s R. 56.1 Stmt. ¶ 41.) While Defendant asserts that, prior to September 2007, Plaintiff had informed Cappetta that he was an observant Jew when he had asked for time off for the high holidays ( id. ¶ 43), Plaintiff asserts that he told Cappetta that he was Jewish when he asked Cappetta to stop insulting his clothing (Pl.'s R. 56.1 Counterstmt. ¶ 43).
Plaintiff's requests for time off from work for the Jewish holidays were always granted, and Plaintiff was permitted by Nestle and Cappetta to take off for the religious holidays without deducting that time from his sick or personal day allowance. (Def.'s R. 56.1 Stmt. ¶ ¶ 44, 45, 62.) " Furthermore, when Plaintiff asked Mr. Cappetta for permission to leave early on Fridays, permission was granted and Mr. Cappetta asked Plaintiff to stay late on other days in order to make up the time and missed sales." ( Id. ¶ 62.)
Nestle's Harassment Policy and Plaintiff's Claims
Nestle has a " Non-Harassment Policy and Non-Retaliation Policy" which it reviews with its employees annually. ( Id. ¶ 46.) In June 2007, " Plaintiff signed a policy acknowledgement form stating that he was given a copy and ha[d] read the Company's policy prohibiting harassment." ( Id. ¶ 48.) The policy contains procedures for filing complaints of harassment with Nestle's Human Resources Department. ( Id. ¶ 49.)
In June 2010, Plaintiff reported to Cappetta that Pat Lamberston, a co-employee, had " referred to Plaintiff's tsitsit and yarmulke, two articles of clothing required by Jewish law, as a costume and asked when they were coming off." ( Id. ¶ 50.) Cappetta relayed Plaintiff's complaint to Mindy Steen (" Steen" ), a human resources officer, and Steen promptly contacted Plaintiff to discuss his claims. (Def.'s R. 56.1 Stmt. ¶ 51.) " Plaintiff acknowledged that Human Resources 'seemed to be taking his claim very seriously.'" ( Id. ¶ 52 (citation omitted).) Steen approached Plaintiff " 'right away,'" and, " 'that same day[,] [Plaintiff] told her about everything.'" ( Id. (citation omitted).) Steen and Plaintiff discussed Plaintiff's claims for " 'a good five or six hours.'" ( Id. ¶ 53 (citation omitted).) Subsequently, Steen and Plaintiff exchanged emails on June 24, 2010, June 25, 2010, June 28, 2010, June 29, 2010, and June 30, 2010 regarding Plaintiff's claims, and in an effort arrange a follow-up meeting. ( Id. ¶ 54.) However, prior to arranging a follow-up meeting, Plaintiff sent Steen an email on July 1, 2010 to notify her that " 'Nestle ha[d]
forced [him] to leave the job.'" ( Id. ¶ 55 (citation omitted).)
Even though " Plaintiff claims that his supervisors never ordered kosher food for him at team meetings and ordered sandwiches that contained ham or bacon," Plaintiff " acknowledged that on rare occasions his supervisors would order a plain egg sandwich." (Def.'s R. 56.1 Stmt. ¶ 60.) Moreover, Plaintiff's " co-worker, David Sturza, who is Jewish, recalled that Mr. Cappetta ordered egg sandwiches, eggs with American cheese, and egg white sandwiches." ( Id. ¶ 61.)
While Plaintiff asserts in the Complaint that his co-workers " made fun of his black and white clothing" when he started working at Nestle, he also " admits that he does not believe that any alleged comments made about the manner of his dress were related to the fact that he is an Orthodox Jew because at that point in time he was not wearing a yarmulke nor did he tell anyone he was Jewish." ( Id. ¶ 63.) Similarly, despite Plaintiff's claim " that his supervisors attempted to isolate him and two other Jewish co-workers, Michael Brodsky and David Sturza[,] from colleagues and that [Nestle] terminated Mr. Sturza and Mr. Brodsky because of their religion," Sturza and Brodsky " disavowed these allegations." ( Id. ¶ 64.)
Although Plaintiff asserts that he was unfairly written up by his supervisor on one occasion, he also " admits that the write up, which concerned safety procedures, was rescinded" at the direction of Steen. ( Id. ¶ 65.)
Plaintiff's Psychological Treatment
Plaintiff did not seek psychological treatment until the end of his employment with Nestle. ( Id. ¶ 66.) He was treated by Alexander Minardi, Ph.D. on or about March 25, 2010. (Def.'s R. 56.1 Stmt. ¶ 67.) Dr. Minardi noted that Plaintiff mentioned several issues during his first therapy session, including that: his father was an alcoholic, his three-year employment with Nestle was one of the longest jobs he had had, he never kept a job, he was not doing well at Nestle, and he was " '[h]appiest as a [r]eal [e]state [a]gent.'" ( Id. ¶ 67 (citation omitted).) During Plaintiff's next visit with Dr. Minardi on April 1, 2010, Plaintiff mentioned that: his wife was pregnant, he was not working because of an illness, he had financial debt, and his father was living with him. ( Id. ¶ 68.) During an April 15, 2010 visit with Dr. Minardi, Plaintiff " discussed his sales from a personal real estate brokerage business, his sales at [Nestle] and that he visited a lung specialist as a result of his previous illness." ( Id. ¶ 69.) On June 30, 2010, Plaintiff met with Dr. Minardi and discussed his son's birth, " that he was documenting his claims of harassment, and that he met with and retained a discrimination lawyer." ( Id. ¶ 70.) Plaintiff also " noted that he spoke with someone at [Nestle's] human resources but was afraid of being blackballed," and that " he was ready to quit his job." ( Id.)
After resigning from Nestle, Plaintiff moved to Tampa, Florida. (Def.'s R. 56.1 Stmt. ¶ 72.) Nearly 10 months after his resignation, Plaintiff started visiting the Tampa Jewish Family Services where he " attended only 5 sessions with [a] therapist." ( Id. ¶ ¶ 72, 73.) Plaintiff paid $36 per session. ( Id. ¶ 73.) During his first session, Plaintiff mentioned that he had stress stemming from his occupation, family, finances and personal life, and that he was living with his in-laws, which was " 'his primary psychosocial stresser.'" ( Id. ¶ 74 (citation omitted).) During his next session, Plaintiff said that he was feeling less sad. ( Id. ...