United States District Court, E.D. New York
MEMORANDUM AND ORDER
F. Bianco, District Judge
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
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.
Plaintiff's Hiring as Regional Sales Manager of
Carefusion's Northeast Region
2006 to 2009, plaintiff worked as a Regional Sales Manager at
Cardinal Health, a predecessor company of CareFusion.
(Def.'s 56.1 ¶ 10.) 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.)
Plaintiff's Job Performance and Termination
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.
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.)
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. (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. (Id.
¶ 43.) Plaintiff was also responsible for contract
renewals and contract compliance as it related to Premier
contracts. (Id. ¶ 54.) This involved
reviewing contracts for compliance, proactively contacting
customers, advising customers of their deficiencies, and
resolving issues. (Id. ¶ 57.)
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.)
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.(Def.'s Reply Mem. at 6).
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.)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.)
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. (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.)
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.
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.
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.
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.
Court has fully considered the parties' submissions.
Standard of Review
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 “assess the
record in the light favorable to the non-movant and . . .
draw all ...