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Schlosser v. Time Warner Cable Inc.

United States District Court, S.D. New York

June 6, 2017


          OPINION & ORDER

          WILLIAM H. PAULEY III, United States District Judge:

         Defendants Time Warner Cable Inc. and TWC Administration LLC (“Time Warner”) move for summary judgment dismissing this action. For the reasons that follow, Time Warner's motion is granted.


         Plaintiff Robert Schlosser brings this employment discrimination action, pursuant to the Age Discrimination in Employment Act (“ADEA”) and the New York City Human Rights Law (“NYCHRL”), asserting that Time Warner refused to hire him on the basis of his age after laying him off from his previous position.

         I. Schlosser's Tenure as Direct Sales Manager

         In August 2006, Time Warner hired Schlosser as a Direct Sales Manager for its College Point, New York residential sales department. In that capacity, he was responsible for managing Direct Sales Supervisors and Direct Sales Representatives who promoted Time Warner's products. (Statement of Material Facts (“SMF”), ECF No. 55, at ¶¶ 1-2.) During the course of his employment, Schlosser directly supervised seven Direct Sales Supervisors, each of whom oversaw a team of approximately 10-12 Direct Sales Representatives. (SMF ¶ 3.) In total, Schlosser managed 75 to 90 employees during the relevant period. (SMF ¶ 4.)

         In September 2009, a Direct Sales Supervisor emailed Schlosser informing him that one of Schlosser's Direct Sales Representative teams had allegedly engaged in sales fraud. (SMF ¶ 5.) A subsequent investigation validated those suspicions and revealed that widespread sales fraud had occurred under Schlosser's watch. (SMF ¶ 6.) Time Warner consequently terminated that entire sales team and its supervisor. (SMF ¶ 7.)

         In November 2009, following the sales fraud investigation, Time Warner issued a Final Written Warning to Schlosser, admonishing him for his purported failure to implement measures that could have prevented the sales fraud. The Final Written Warning also cited his inability to be “‘locked in' to the overall detail” expected of successful managers; his lack of “self-accountability and supervisor accountability” and “core managerial and leadership behaviors”; his failure to adequately track or report his team's sales on a regular basis; and his difficulty analyzing, interpreting, and managing sales data, preparing reports, and implementing company policy and procedure. (SMF ¶¶ 11-15.)

         By year end, Schlosser's performance review reflected many of the same issues memorialized in the Final Written Warning. As a result, Schlosser received an overall rating of “Partially Meets Expectations, ” and average reviews in sub-categories titled “Excellence” and “Integrity.” (SMF ¶ 17.) Time Warner's year-end evaluation identified a litany of performance issues: that Schlosser failed to meet or exceed his sales goals; that his supervisory accountabilities were compromised; that he was perceived as unapproachable due to his harsh and abrupt demeanor; that the security teams at two of Time Warner's facilities had filed complaints against him; and that he was slow and inaccurate in reporting his team's sales metrics. (SMF ¶¶ 18-22.)

         In 2010, Time Warner reduced its residential sales group from six regions to two, eliminating the College Point, New York sales department, and obviating the need for a Direct Sales Manager. (SMF ¶ 24.) As a result, Time Warner laid Schlosser off and gave him a severance and benefits package. (SMF ¶¶ 25, 29.) At the time of his termination, Schlosser was 56 years old. (SMF ¶ 27.) Despite losing his position in a company reorganization, Time Warner told Schlosser that he could apply for any other open positions at the company. (SMF ¶ 27.) Time Warner informed Schlosser that it would consider prior performance and skill sets in determining his eligibility for such positions. (SMF ¶ 28.)

         II. Concierge Sales Manager Position

         Nearly a year later, Schlosser applied for a Sales Manager position in the Concierge Sales Group. (SMF ¶ 30.) The position required exceptional skills and abilities- more so than those required for ordinary Direct Sales Manager, Direct Sales Supervisor, or Direct Sales Representative positions-since the Concierge Department catered to, and regularly interfaced with, Time Warner's best and most loyal customers. (SMF ¶¶ 31-33, 35.) Ultimately, Time Warner declined to interview Schlosser based on his poor performance as a Direct Sales Manager, opting instead to hire a candidate with a stronger record of performance from a department similar to the Concierge Sales Group. (SMF ¶ 36-37.)

         III. Territory Sales Representative Position

         Over the next eighteen months, Schlosser applied for seven other job postings at Time Warner, both in and out of the Concierge Sales Group, and for supervisory and entry-level sales positions. (SMF ¶¶ 38, 48.) In August 2012, Schlosser interviewed for a Territory Sales Representative position, an entry level job in the Concierge Sales Department similar to the Direct Sales Representative job in the Residential Sales Department. (SMF ¶ 39.) However, Schlosser interviewed poorly. (SMF ¶ 40.) Coupled with his previous performance issues and Time Warner's concern that hiring a ...

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