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Testa v. Carefusion

United States District Court, E.D. New York

April 3, 2018

Stephen Testa, Plaintiff,
CareFusion, Defendant.


          Joseph F. Bianco, District Judge

         Stephen Testa (“Testa” or “plaintiff”), proceeding pro se, brings this action against CareFusion (“CareFusion” or “defendant”) for violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-34 and New York Labor Law (“Labor Law”) § 191(3). Presently before the Court are (1) defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and (2) defendant's motion to preclude evidence submitted in opposition to summary judgment which plaintiff failed to produce in discovery. For the reasons set forth below, the Court grants defendant's motion for summary judgment with respect to ADEA claim, and declines to exercise supplemental jurisdiction over the New York Labor Law claim. Because the Court grants defendant's motion for summary judgment as to the federal claim and declines to exercise supplemental jurisdiction over the state law claim, defendant's motion to preclude evidence is denied as moot.

         I. Background

         A. Facts

         The Court takes the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the parties' respective Rule 56.1 Statements of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, where a party's 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.[1]

         1. Plaintiff's Hiring as Regional Sales Manager of Carefusion's Northeast Region

         From 2006 to 2009, plaintiff worked as a Regional Sales Manager at Cardinal Health, a predecessor company of CareFusion. (Def.'s 56.1 ¶ 10.)[2] In or about November 2009, plaintiff was laid off from his position at Cardinal Health. (Id. ¶ 13.) In January 2013, while employed by Teleflex, a medical device company, Matthew Stuckert (“Stuckert”), Area Vice President of Sales at CareFusion, reached out to plaintiff regarding an available position as a Regional Sales Manager at CareFusion. (Id. ¶¶ 14, 17.) Plaintiff interviewed with Stuckert, his direct manager, Scott Boucher (“Boucher”), and Boucher's manager, James Paloyan. (Id. ¶ 19.) During his interview, plaintiff was informed that the position would be similar to his prior position with Cardinal Health: plaintiff would oversee a team of sales representatives selling vascular and surgical products. (Id. ¶ 20.) Plaintiff accepted an offer of employment as Regional Sales Manager-Surgical/Vascular and commenced employment on or about February 11, 2013. (Id. ¶¶ 24, 26.) Plaintiff was fifty-two years of age at the time he was hired, and his base salary was $120, 000. (Id. ¶¶ 25-26.) Throughout his employment at CareFusion, plaintiff reported directly to Stuckert. (Id. ¶ 26.) According to plaintiff's deposition testimony, he believed that Stuckert was in his early forties. (See Aranyos Declaration (“Aranyos Decl.”) Ex. C, Deposition of Stephen Testa (“Testa Dep.”) at 255.)

         2. Plaintiff's Job Performance and Termination

         The articulated basis for plaintiff's termination was his alleged poor job performance over the course of his time at CareFusion. The following evidence is contained in the record concerning plaintiff's performance.

         In July 2013, CareFusion's surgical and vascular sales teams were restructured into two separate groups. (Def.'s 56.1 ¶ 37.) Plaintiff assumed the responsibilities of Vascular Sales, Northeast Region. His duties and responsibilities comported with his job expectations, but now he was only responsible for vascular sales. (Id. ¶¶ 39-41; Testa Dep. at 112.) Plaintiff claims that his job became more analytical after the restructuring, and he concedes that he was not good at that part of the job. (Testa Dep. at 126-28, 231-32.) The restructuring affected every sales employee in Surgical and Vascular at CareFusion, not just Testa. (Def.'s 56.1 ¶ 38.) As a result of the restructuring, Stuckert's supervisor became Ronald Vavala (“Vavala”). (Id.) Vavala was forty-nine years of age. (Id. ¶ 86.)

         As Regional Sales Manager, plaintiff had primary responsibility for a sales team to develop and execute a sales strategy and to reach or exceed target sales goals. (Id. ¶ 42.) To that end, plaintiff needed to monitor each sales representative to ensure that he or she was meeting quota and that each sales representative's issues were addressed efficiently through regularly scheduled sales calls. (Id.) Plaintiff was required to provide Stuckert, his supervisor, with notes from sales calls with his representatives.[3] (Id. ¶ 61.) His position also required that he review and update CareFusion's sales tracking system and ensure that his team provided complete updates, and that he go into the field to assist sales representatives with client issues.[4] (Id. ¶ 43.) Plaintiff was also responsible for contract renewals and contract compliance as it related to Premier contracts.[5] (Id. ¶ 54.) This involved reviewing contracts for compliance, proactively contacting customers, advising customers of their deficiencies, and resolving issues. (Id. ¶ 57.)

         On or about August 26, 2013, Stuckert provided plaintiff with a written and verbal performance evaluation. (Id. ¶¶ 58, 63.) Though plaintiff received a score of “3-On Target” on a scale from 1 through 5, he was counseled by Stuckert for his failure to keep him apprised of the status of his territory. (Id. ¶¶ 58-59.) Stuckert also expressed his concern about how plaintiff was using and managing his time. (Id. ¶ 64.) Plaintiff failed to provide Stuckert with notes from sales calls with his sales representatives, as he admittedly failed to hold regular sales calls with his team. (Id. ¶¶ 61, 64.) To assist plaintiff in meeting his job expectations, Stuckert instructed plaintiff to utilize Outlook for calendaring his sales calls. (Id. ¶ 65.)

         At plaintiff's deposition, he asserted that in August 2013, around the time of his evaluation, Stuckert stated, “you know, the job is changing” and “a person from your era wouldn't have the type of analytical skills that we require.” (Testa Dep. at 251-52.) Plaintiff testified that he understood this comment to relate to his lack of computer-based skills. (Id. at 253.) He admitted that he knew he was not good at that part of his job, and had expressed to Stuckert that he wanted to become better at his job and that he was willing to learn. (Id. at 231-32, 252.) Although plaintiff alleges that no training was offered for the analytical part of his job (id. at 232-33), defendant maintains that it offered online training modules and held conferences with training programs, including one that required plaintiff's attendance in September 2013 (Def's. 56.1 ¶ 48). In that same conversation with plaintiff, Stuckert allegedly stated, “things are different today, ” “the skills needed today are typically of a younger sales manager.” (Testa Dep. at 261.) Plaintiff testified that he believed Stuckert was referring to how the job had changed since plaintiff had previously worked for CareFusion's predecessor-that is, how the job had become more analytical. (Id.) Defendant denies that Stuckert made these statements.[6](Def.'s Reply Mem. at 6).

         Despite Stuckert's efforts, plaintiff's performance failed to improve. Stuckert received calls from members of plaintiff's sales team inquiring about plaintiff's whereabouts and informing him that plaintiff continuously failed to hold regular sales calls. (Def.'s 56.1 ¶¶ 70-71.) In October 2013, CareFusion's Human Resources Director, Danielle Strazzo (“Strazzo”), held a conference call with plaintiff's sales team to evaluate the effectiveness of plaintiff's managerial skills. (Id. ¶ 72.) The team indicated that plaintiff needed to be more involved, hold more consistent team calls, and schedule more field visits. (Id. ¶ 74.) On October 11, 2013, Strazzo provided plaintiff with a summary of his team's feedback and instructed him to email, to his team, his commitments as their leader. (Id. ¶ 76.)[7]After Strazzo reminded plaintiff to contact his team on October 18, 2013, plaintiff reached out to his team members via email on October 21. (Id. ¶¶ 77-78.) In his email, plaintiff agreed to be more involved in the field, have more team calls and communications, meet with team members in person, and help the team become more proficient in utilizing SFDC to track and monitor sales. (Id. ¶ 80.)

         On or about October 28, 2013, Stuckert contacted Employee Relations to express concerns about plaintiff's job performance and seek advice. (Id. ¶ 81.) As a result, Stuckert prepared a Performance Improvement Memorandum (“PIM”) for plaintiff, outlining deficiencies in his performance and Stuckert's expectations going forward.[8] (Id. ¶¶ 81-84.) The PIM was reviewed by Human Resources and Vavala prior to its submission to plaintiff on November 8, 2013. (Id. ¶¶ 85-86.) The PIM addressed Stuckert's specific concerns about plaintiff, including: his failure to hold regularly scheduled team conference calls, his failure to effectively use Outlook as a primary scheduling tool, his failure to update the software system completely and accurately, his failure to schedule regular sales calls, and his failure to engage in key CareFusion priorities, including renewing any of his thirty-eight Premier contracts. (Id. ¶¶ 88-89 90-91, 94.) The PIM also required that plaintiff spend three days a week in the field with sales representatives and customers, complete his thirty-eight Premier targets by January 1, 2014, schedule regular team and sales calls in Outlook, copy Stuckert on all notes from team calls he conducted, and submit weekly advisory reports. (Id. ¶ 97.) The PIM also stated that “[f]ailure to meet these expectations could lead to more serious action steps up to and including termination.” (Id. ¶ 97.) At the time he received the PIM, plaintiff acknowledged his deficiencies and conceded that he did not have the analytical skills needed. (Id. ¶ 98.)[9]

         Plaintiff acknowledges that Stuckert continuously followed up with him each week following the issuance of the PIM. (Id. ¶¶ 99-100.) However, plaintiff admittedly continued to struggle and his performance deteriorated as he provided late and incomplete sales updates, missed deadlines, and failed to spend time in the field with his sales representatives or provide weekly reports to Stuckert. (Id. ¶¶ 101-04.) Stuckert also failed to renew any Premier contracts. (Id. ¶ 104.) Because of plaintiff's deficiencies, Stuckert was required to spend time completing plaintiff's assignments and assigning work to other team members. (Id. ¶ 105.) In December 2013, both Vavala and Stuckert spoke with plaintiff about his continued poor performance, failure to move forward on any Premier contracts, and his inability to successfully complete the PIM by January. (Id. ¶ 106.) As a result of his failures, on December 13, 2013, ten months after hiring plaintiff, Stuckert, with Vavala's approval, terminated plaintiff's employment. (Id. ¶ 108.) At the time of plaintiff's termination, he was fifty-three years old. (Am. Compl. at 1.) A member of plaintiff's sales team, Tina Vogt (“Vogt”), replaced plaintiff as Regional Sales Manager on or about January 6, 2014. (Def.'s 56.1 ¶ 110.) Vogt was forty-one years of age when she was promoted, and was provided a salary of $105, 597.95. (Id. ¶ 110; Pl.'s Mem. at 24.) Plaintiff testified that he believes CareFusion terminated his employment not only because of his age but, in part, to save money, as he was hired from outside the company and his salary was “in the upper part of what people were making for that position.” (Testa Dep. at 255-57.) CareFusion paid plaintiff his final wages and commission payment on December 20, 2013 (Def.'s 56.1 ¶ 112), though plaintiff alleges that he is still owed commission payments (Am. Compl. at 3).

         B. Procedural Background

         Plaintiff filed his Amended Complaint on August 10, 2015. Defendant moved to dismiss for failure to state a claim on October 9, 2015. On August 2, 2016, this Court denied in part and granted in part defendant's motion to dismiss plaintiff's Amended Complaint. Specifically, this Court found that plaintiff had plausibly pled claims for violations of the ADEA and Labor Law § 191(3), but failed to sufficiently allege a claim for violation of Labor Law § 191(1)(c).Plaintiff was permitted to replead the § 191(1)(c) claim, but did not do so.

         On October 2, 2017, defendant moved for summary judgment on the remaining claims. Plaintiff opposed the motion on October 31, 2017, and defendant replied on November 16, 2017.

         On December 5, 2017, defendant filed a motion to preclude new evidence submitted by plaintiff in support of his opposition to summary judgment that was not produced during discovery. Plaintiff opposed the motion on December 5, 2017, and defendant replied on December 27, 2017.

         The Court has fully considered the parties' submissions.

         II. Standard of Review

         To prevail on summary judgment, the moving party must “show[] that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the evidence, the Court must ÔÇťassess the record in the light favorable to the non-movant and . . . draw all ...

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