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South v. Continental Casualty Co.

United States District Court, S.D. New York

February 28, 2017


          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge:

         Plaintiff Christopher A. South, an attorney, brings this employment discrimination action in connection with his termination from Defendant Continental Casualty Company (“CNA”). Specifically, South alleges violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, Section 296 of the New York State Human Rights Law (“NYSHRL”), and Title VIII of the New York City Administrative Code (“NYCHRL”). With discovery complete, CNA moves for summary judgment dismissing the action. For the reasons that follow, CNA's motion is granted with respect to the ADEA and NYSHRL claims. South's NYCHRL claims are dismissed without prejudice to refiling in state court.


         CNA is a large property and casualty insurance organization with staff counsel offices that service CNA's insureds. (See Pl. Counter Statement of Undisputed Facts (“56.1”), ECF No. 64, at ¶¶ 3, 10.) In 1996, CNA hired South as a litigator in its NYC staff counsel office. South spent 18 years in the NYC staff counsel's office until his termination in September 2014 at the age of 60. (56.1, ¶¶ 10, 123.) In 2000, CNA discontinued its pension plan for newly hired attorneys, but continued the participation of all incumbent attorneys, including South. (56.1, ¶¶ 17-18.) South contends that the discontinuation of the plan was a motivating factor for eliminating the older attorneys at CNA. (See Declaration of Christopher South, dated July 15, 2016 (“South Decl.”), ECF No. 65, at ¶ 4.)

         In 2001, CNA appointed Charles Siegel as the Managing Trial Attorney for its New York office. (56.1, ¶ 12.) Four years later, CNA reorganized its attorney staffing by establishing the Major Case Unit (“MCU”) to handle complex and high value cases. (56.1, ¶¶ 69, 72.) The MCU, consisting of certain CNA executives and management-level employees, designated attorneys from each staff counsel office to handle MCU cases. (56.1, ¶ 73.) Generally, those attorneys were viewed as the most capable of handling major cases. (See 56.1, ¶ 79.) Siegel had no authority to select attorneys for MCU and needed authorization to assign an MCU case. (56.1, ¶¶ 75-76.) Despite his years of experience, CNA did not designate South as an MCU attorney. Non-MCU approved attorneys, like South, handled the mine-run cases with reserve value below $150, 000. MCU and non-MCU attorneys had the same pay grades. (56.1, ¶ 80.)

         When MCU was first established, non-MCU attorneys continued to handle some MCU cases that they had worked on before the reorganization. (56.1, ¶ 87.) Overwhelmed by the number of MCU cases in the New York office, Siegel sought to use Service Center attorneys, like South, to handle MCU matters. (56.1, ¶ 93.) But Siegel's efforts were rebuffed: CNA declined to authorize South to work on MCU matters. (56.1, ¶ 85.) MCU supervisors reviewed South's work on Service Center cases that were reclassified to MCU and found some of his work to be inadequate. (56.1, ¶ 78, 135.)

         During his tenure, South earned mostly average performance reviews. For example, in 2009, South received a “Meets Expectations” rating. (56.1, ¶ 23.) As part of that review, Siegel explained to South that he needed to “be more proactive in his reporting . . . to be more customer focused and . . . develop his skills with technology.” (56.1, ¶¶ 25-26.) South responded to that criticism and earned an “Exceeds Expectations” rating in 2010. (56.1, ¶ 27.) However, in 2011, South dropped back to “Meets Expectations.” (56.1, ¶ 28.)

         In 2011, CNA reiterated the need for staff counsel offices to ensure that MCU matters were handled exclusively by MCU-designated attorneys. (56.1, ¶ 88.) CNA directed Siegel to reassign MCU matters from Service Center attorneys and recognized that this realignment might require additional MCU attorneys in the New York office. (56.1, ¶¶ 88-89.) Nevertheless, Siegel continued to use Service Center attorneys on MCU cases by assigning the MCU cases to himself and then working with Service Center attorneys, like South. (January 29, 2016 Deposition of Charles Siegel, at 67:10-25.)

         In 2012, Siegel rated South as “Meet[ing] Expectations.” (56.1, ¶ 29.) South disagreed and ranked himself as “Far Exceeds Expectations” in his self-evaluation. (56.1, ¶ 31.) Once again, Siegel noted problems in some of South's files that were transferred to MCU and commented that South needed to be more proactive. (56.1, ¶¶ 30, 31.)

In 2013, at South's mid-year review, Siegel was critical, noting
I am concerned about the total analysis of your files via your reporting. You need to expand your analysis to address all aspects and issues of the case and be proactive in obtaining information . . . . [Y]ou need to reach out to all witnesses and find out what they know. . . . You can't wait for the information to come to you.

(56.1, ¶ 32.) In other sections of the review, Siegel reiterated the need for South to be proactive and develop better client relationships. (56.1, ¶¶ 33-34.) And again, South rejected Siegel's criticism with a pejorative term and asserted that he was the “[b]est trial attorney” in the New York office. (56.1, ¶ 35, 36.)

         Aside from formal job evaluations, Siegel met with South to discuss his performance. (56.1, ¶ 37.) For example, Siegel expressed concern over South's failure to question a plaintiff at deposition about any prior criminal history. (56.1, ¶ 38.) On another occasion, South failed to respond to a default judgment motion and treated it as a nullity. (56.1, ¶ 39.) Siegel learned of the default when opposing counsel contacted him. (56.1, ¶ 39.) In addition, CNA clients, such as its HealthPro department, provided feedback on South, commenting that he was an “okay attorney” but that they had to “stay on top of him to report back, ” and that he would “go with the flow instead of pushing a case.” (56.1, ¶ 42.)

         In December 2013, Siegel issued performance deficiency letters to South and two other attorneys in the New York office, one age 64 and the other age 56. (56.1, ¶¶ 45, 48.) Siegel's letter to South summarized South's failure to draft initial status updates and investigate cases thoroughly. (See 56.1, ¶¶ 50-55.) In one case South took 5 months to prepare an initial report, and in another, South took two years to implead a third party for indemnity. (56.1, ¶ 50-52.) CNA gave South forty-five days to improve. (56.1, ¶ 56.) Thereafter, South responded with near-weekly emails summarizing his performance and explaining why he disagreed with Siegel's assessment. (Rule 56.1, ¶ 57.)

         Ultimately, South's 2013 year-end performance review dropped to “Partially Meets Expectations.” (56.1, ¶ 23.) In that evaluation, Siegel noted that MCU asked that some of South's cases be evaluated for transfer (56.1, ¶ 60), that his reporting was sporadic (56.1, ¶¶ 60- 61), and that his claims' partners complained about his issue recognition and reporting (56.1, ¶ 62).

         South did not challenge any of Siegel's comments in the 2013 performance review. At deposition, South acknowledged that he did not believe they were attributable to his age, rather he maintained that some comments were intended to create a record of subpar performance for future disciplinary action. (56.1, ¶¶ 66-67.)

         By 2014, the MCU caseload had increased considerably, while the Service Center caseload had declined. (56.1, ¶¶ 96-99.) The need for additional MCU attorneys was obvious. A CNA executive explained to Siegel that he would need to implement a reduction in force (“RIF”) of Service Center attorneys in order to hire MCU-attorneys. (56.1, ¶ 101.) In February 2014, Siegel began rating attorneys in multiple categories, including technical knowledge, technical skills, customer focus, professional integrity, focus on results, analyzes/solves problems, and teamwork and collaboration. (56.1, ¶ 102.) Among the 17 attorneys in the New York office, South received the lowest overall ranking. (56.1, ¶ 103.)

         While CNA wanted to initiate the RIF in June 2014, Siegel put it off because he had not hired MCU-approved replacements. (56.1, ¶ 114.) South's 2014 mid-year evaluation offered similar critiques as his 2013 year-end review. (56.1, ¶ 68.) By August 2014, Siegel hired three new MCU-approved attorneys. (56.1, ¶ 125.) Thereafter, updating his prior evaluations of all attorneys in the New York office, Siegel rated South as one of three attorneys with the lowest overall scores. (56.1, ¶¶ 115-18.) CNA terminated South and two other attorneys on September 15, 2014. (56.1, ¶ 123.)

         After the RIF, Siegel promoted a 59-year old attorney within the New York office to Assistant Managing Trial Attorney. (56.1, ¶ 129.) Siegel had given that attorney the highest ...

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