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Dobbins v. American Red Cross

United States District Court, W.D. New York

March 20, 2017



          HON. FRANK P. GERACI, JR. Chief Judge United States District Court


         Plaintiff Maria Dobbins (“Dobbins”) brings this action against her former employer, the American Red Cross (“ARC”), alleging that she was discriminated against because of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623, (“ADEA”) and its New York Law counterpart, the New York State Human Rights Law, New York State Executive Law § 296 (“NYSHRL”). ECF No. 1. With discovery now completed, ARC has moved for summary judgment. ECF No. 28. Dobbins has responded (ECF Nos 37, 38), ARC has filed a reply brief (ECF No. 40), and the Court deems oral argument unnecessary. For the following reasons, ARC's Motion for Summary Judgment is GRANTED, and the Complaint is DISMISSED WITH PREJUDICE.


         Dobbins was hired by the ARC in 1999 as a Team Supervisor for the Apheresis Department. Def. SMF[1] ¶ 7. At the time she was hired, Dobbins was 63 years old. Id. In April 2004, Dobbins became a Quality Assurance Associate in the ARC's Quality Assurance Department. Def. SMF ¶ 9. There are four positions in the Quality Assurance Department: Quality Assurance Specialist (entry level), Quality Assurance Associate, Quality Manager, and Director of Quality. Def. SMF ¶ 10.

         Quality Assurance Associates, such as Dobbins, are responsible for product quality in their region, and for ensuring that corrective action is taken when needed. Def. SMF ¶ 11. Quality Assurance Associates are must be able to analyze fact-specific situations and solve problems, while also keeping up with changes in ARC policies and procedures. Def. SMF ¶ 13. Specifically, Quality Assurance Associates are responsible for approving hold removals on products (usually blood) that were initially identified as not conforming to ARC quality standards; completing Material Review Board investigations when there are questions over product quality (known as “MRBs”); and overall general problem management. See Def. SMF ¶ 12.

         Dobbins had multiple supervisors during her tenure as a Quality Assurance Associate. From April 2004 to September 2005 her supervisor was Karen Hopkins; from September 2005 to April 2006 her supervisor was Donna Anderson (“Anderson”); from April 2006 to approximately April 2007 her supervisor was Marianne Farallo; from April 2007 to October 2008 her supervisor was Donna Anderson; from December 2008 to June 2009 her supervisor was Barbara Klube-Falso (“Klube-Falso”), and from June 2009 to January 2010 her supervisor was Marcy DioGuardi (DioGuardi”).

         Dobbins' employment history reveals that her performance issues began in 2005-2006. In her 2005-2006 Review, Dobbins received an overall assessment of “met expectations, ” but several issues were documented. Dobbins received a rating of “below expectations” for the core value and guiding behavior “Results-Oriented.” Her supervisor noted that Dobbins lacked technical knowledge, and noted that it was anticipated that Dobbins would improve as her technical knowledge increased. Dobbins also received a rating of “below expectations” for the core expectations “Work Quality and Efficiency” and “Technical Knowledge.” Her supervisor noted that Dobbins lacked attention to detail, and that the rate of return of problems was below average. It was further noted that Dobbins's technical knowledge of her former department is strong, but that she needed to gain knowledge in other areas. Notably, this review documented that Dobbins was removed from task of approving hold removals because of at least five case issues. See Def. SMF, Appendix, Tab A, Ex. 6.

         In Dobbins' 2006-2007 Review, she again received an overall assessment of “met expectations, ” but several performance issues were again documented. Dobbins received a rating of “Below expectations” for core value and guiding behavior “Results-Oriented.” Dobbins' supervisor noted that she was working on gaining experience, but did not demonstrate confidence or experience in solving problems. Dobbins also received a rating of “Below expectations” for the core expectation “Technical Knowledge.” Her supervisor noted that while Dobbins's experience was increasing, her progress was slow. It was also noted that Dobbins' “Computer skills need marked improvement.” See Def. SMF, Appendix, Tab A, Ex. 7.

         As a result of this evaluation, Dobbins wrote an e-mail to Densie Danzi-Rotolo, Regional Director of Quality, after she reviewed the performance review with Anderson. There, Dobbins explained that she did not sign the review because she disagreed with the conclusions. Specifically, Dobbins felt that Anderson did not give her enough credit for the work that she performed. Dobbins also acknowledged that her computer skills were poor, but the ARC assured her that she would have time to learn. Dobbins expressed to Anderson that she felt that she has come a long way, and that she does not understand why speed is a concern. Dobbins stated that she felt Anderson is discriminating against her because of her age. ECF No. 37-6, Exh. E. As discussed later in Section B.4 of this Decision, Dobbins asserts that this complaint constitutes the filing of a formal discrimination complaint with the ARC.

         In Dobbins' 2007-2008 review, which was completed by Anderson, Dobbins received an overall assessment of “below expectations” for first time. There were numerous performance issues documented in this review. These included considerable documentation of Dobbins' problems with MRBs, where over the year, Dobbins had difficulty in completing MRBs from start to finish. Dobbins completed fifteen out of twenty MRBs acceptably over the year, which is below the ARC's required standard of 95%. The review also documented issues with copying and pasting from prior MRBs, other errors such as missing additional documentation, having incomplete or missing elements (rationale, probable cause), and using incorrect descriptions.

         Under “Development Goals in Current Role, ” Anderson noted that Dobbins is not progressing in certain types of problem review and has not passed the basic training that is necessary. Dobbins received ratings of “Below expectations” for the core value and guiding behavior “Results-Oriented;” and “Below expectations” for the core expectations “Work Quality and Efficiency;” “Technical Knowledge;” and “Reliability and Follow-Through.” Anderson noted that Dobbins' work often contains mistakes, that her work speed is slower, and that timelines are missed. By the end of this year, Dobbins was assessed as not being able to perform hold reviews, MRB investigations, level 2 or 3 investigations, and visual inspections. See Def. SMF, Appendix, Tab A, Ex. 8.

         For Dobbins' 2008-2009 review, she received an overall assessment of “2 - More is expected.” The format of this review is different from the prior review forms. Most notably, it is now called the “Cornerstone Conversations Planning and Review Form.” Dobbins received a rating of “2 - More is expected” in her job responsibilities involving the review of systems and processes (#1); communicating concerns with processes to staff (#3); participation in meetings (#5) and identifying quality issues (#6). She also received a rating of “2 - More is expected” in the core competencies “Accountability and Results;” “Communication and Relationship Building;” and “Decision Making, Problem Solving and Innovation.”

         Dobbins' Individual Development Plan (which is a component of the review) rated her as “2 - More is expected” for all the listed job skills. There are six documented problems that Dobbins incorrectly handled under the job skill “Interviewing Skills/Investigative Techniques, ” and additional issues were documented in each job skill category. See Def. SMF, Appendix, Tab A, Ex. 9, 10.

         In March 2009, Dobbins was placed on her first Performance Improvement Plan (PIP) by Klube-Falso, who was her supervisor at the time. Pl. App. Vol II, Ex. J. During this time, managers at the ARC would not release Dobbins to perform work because the managers felt they had attempted to help Dobbins, but there was no progress. See ECF No.37-7, Ex. L.

         In August 2009, DioGuardi became Dobbins' new supervisor, and Dobbins was given a skills assessment. Dobbins was given two months to prepare for the assessment, and the ARC's stated reason for giving this assessment was to evaluate Dobbins without relying on the prior documentation from her reviews regarding her performance. Dobbins did poorly on this skills evaluation, and the recommendation made was that Dobbins would not benefit from additional training. The evaluation found that Dobbins lacked basic skills, and that she put the ARC at both a compliance and safety risk.

         Dobbins was then placed on a second PIP in October 2009. See ECF No. 37-6, Ex. F. There, the ARC acknowledged that Dobbins had not been performing certain tasks for some time before she was tested on them August. As a result, ARC management decided to give Dobbins a second PIP and skills assessment to ensure that the recommendation from August 2009 was appropriate. See ECF No. 37-7, Ex. M.

         As part of this second PIP, Dobbins was given a detailed, 4-week training plan for the month of October 2009. Dobbins was removed from performing all tasks at the ARC so that she could solely focus on training. The training was delivered to Dobbins as if she was a new staff member, and Dobbins was personally given a full-time instructor for the month. See ECF No. 37-6, Ex. K.

         In late October and early November 2009, Dobbins was given the second skills assessment over the course of two days. See ECF No. 37-7, Ex. M. Dobbins did not pass the assessment. Specifically, Dobbins worked on thirteen scenarios over the two days, and only completed five scenarios correctly. It took Dobbins approximately twelve hours over two days to complete the assessment. By comparison, the ARC's newest associate in the same department, who had approximately eight months experience, completed the same assessment in approximately one and a half hours, and received a 90% grade.

         On January 14, 2010, based on the results of this final skills assessment, Dobbins was offered the option of resigning in lieu of being fired. ECF No. 1, ¶ 26. DioGuardi, who was age 50 or 51 at the time, recommended Dobbins' termination, and Human Resources Manager Gene Voss, who was age 58 at the time, approved the recommendation. Def. SMF ¶ 42. On January 15, 2010, Dobbins elected to resign, and her last day of employment with the ARC was January 29, 2010. Def. SMF ¶ 44.

         Dobbins subsequently brought this action, and alleges that her forced resignation was a form of age discrimination committed by the ARC.


         A. Standard of Review

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012). The evidence is viewed, and all reasonable inferences are drawn, “in the light most favorable to the party opposing the motion.” Shemendera v. First Niagara Bank, No. 12-CV-178S, 2014 WL 847329, at *1 (W.D.N.Y. Mar. 4, 2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). In resolving a summary judgment motion, the Court's function is not to weigh the evidence, but rather is to determine whether there is a material issue of fact to be resolved at ...

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