Tomassi v. Insignia Financial Group, Inc.

• Decision Date: 16 February 2007
• Docket Number: Docket No. 05-6219-CV.
• Citation: 478 F.3d 111
• Parties: Patricia McCarthy TOMASSI, Plaintiff-Appellant, v. INSIGNIA FINANCIAL GROUP, INC. and Insignia Residential Group, Inc., Defendant-Appellees, Metlife, Inc., Defendant.
• Court: U.S. Court of Appeals — Second Circuit

478 F.3d 111

Patricia McCarthy TOMASSI, Plaintiff-Appellant, v. INSIGNIA FINANCIAL GROUP, INC. and Insignia Residential Group, Inc., Defendant-Appellees Metlife, Inc., Defendant.

Docket No. 05-6219-CV.

United States Court of Appeals, Second Circuit.

Argued: May 19, 2006.

Decided: February 16, 2007.

Christopher P. Kelly, Reppert Kelly, LLC, Basking Ridge, NJ, for Plaintiff-Appellant Patricia McCarthy Tomassi.

Douglas E. Rowe, Certilman Balin Adler & Hyman, LLP, for Defendant-Appellees Insignia Financial Group, Inc. and Insignia Residential Group, Inc.

Before LEVAL, CALABRESI, and FRIEDMAN,^* Circuit Judges.

LEVAL, Circuit Judge.

Plaintiff Patricia Tomassi appeals from the grant of summary judgment by the United States District Court for the Southern District of New York (Mukasey, C.J.) in favor of Insignia Financial Group, Inc. and Insignia Residential Group, Inc. (collectively, "Insignia"), dismissing her age-discrimination claims. The court found the evidence insufficient to support a plaintiff's verdict. It characterized age-related remarks made by plaintiff's superior as "stray," and consequently disregarded them. For the reasons stated below, we vacate the judgment and remand for further proceedings.¹

Background

In February 2000, when Tomassi was 60 years old, MetLife, Inc. hired her as Supervisor of Resident Services for the Peter Cooper Village and Stuyvesant Town housing complexes ("PCV/ST"), which MetLife owned. PCV/ST is a residential apartment complex in Manhattan comprising approximately 11,000 rental units. As Supervisor of Resident Services, Tomassi handled resident service requests and managed approximately 20 employees.

In 2001, MetLife outsourced the management of the PCV/ST complex to Insignia. On May 1, 2001, Tomassi ceased to be an employee of Met Life and became an employee of Insignia, retaining the title of Supervisor of Resident Services. In her new employment at Insignia, her supervisor was Steve Stadmeyer.

Tomassi testified to the effect that throughout the course of her employment with Insignia, Stadmeyer made frequent references to her age. Stadmeyer would begin sentences with "In your day and age . . ." and suggest that Tomassi related well to and "could understand the mentality of" PCV/ST's senior residents. Stadmeyer also repeatedly asked Tomassi whether she would be better off retiring so that she could "take time off to rest." According to Tomassi's deposition testimony:

[H]e would ask me if I ever thought about retiring. He would ask me if I thought I could keep up with some of the work. He asked me if I was tired of working. . . . [W]asn't it time to retire, did I ever think about retiring. Tired of the commute.

Tomassi asserted that Stadmayer made such age-related comments to her "once a month, [or] once every couple [of] months."

In the fall of 2001, Insignia began a project to draw young professionals to PCV/ST. To attract this new, younger clientele, Stadmayer made a point of hiring "younger, energetic, . . . attractive" employees. At the same time, Insignia instituted a policy to encourage better communication between management and residents. Stadmeyer promoted Tomassi to Director of Resident Services and Community Affairs, giving her responsibility for overseeing all internal and external communications. She also became responsible for handling community affairs and public relations matters, such as managing PCV/ST's senior center, handling community programs, and working with local politicians. Her salary was increased from approximately $59,000 per year to $65,000 per year in October 2001 and to $70,000 in early 2002, and she received a $7,500 performance bonus in April 2002.

In July 2002, the Resident Services Group and the Operations Department

were combined, so that Tomassi no longer retained supervisory responsibility over Resident Services. This change in job function was not related to Tomassi's on-the-job performance. According to Stadmeyer, she "continued to be responsible for addressing the more complicated tenant complaints, in both oral and written form, based upon the perception that she was adept at this function." A Professional Annual Performance Appraisal of Tomassi written by Stadmeyer in November of 2002 stated that Tomassi met or exceeded expectations in every performance category, but also noted that she "needs improvement in quantity" of work and that "sometimes jobs take too long."

In late 2002 and early 2003, Stadmeyer testified, he began to hear that Tomassi was not addressing tenants' complaints sufficiently promptly. To help with the workload, Stadmeyer hired an administrative assistant for her. Despite his instruction to prepare written responses to unresolved tenant complaints within one week, and despite Tomassi's assurance that she would "not have any difficulty" completing the assignment, Tomassi, according to Stadmeyer, had still not resolved the complaints a month later. He therefore reassigned responsibility for addressing these complaints to another worker, rendering Tomassi's responsibilities "essentially . . . negligible."

Tomassi acknowledged that Stadmeyer met with her to discuss his concern that tenants' complaints were not being answered sufficiently swiftly. She maintained however, that Stadmeyer directed that the complaints be resolved "by the end of the year," which they were. She testified also that Stadmeyer regularly praised her handling of the job, and that the volume of complaints and the logistical difficulties involved in resolving them created "too much [work] for one person to do." To cut down her response time, Tomassi says she called the complaining residents directly, "which seemed to be fine." She denied that responsibility for handling tenant complaints was ever taken away from her. In January 2003, Tomassi received another salary increase, raising her salary to $74,200.

In February 2003, an explosion occurred in one of the PCV/ST buildings. Tomassi was assigned the task of overseeing the relocation of about 15-20 families who were displaced by the explosion, which involved working in conjunction with, among others, MetLife Corporate Relocation, the American Red Cross, the New York City Department of Emergency Management, and the New York City Building Department. Stadmeyer testified that after several days he decided Tomassi was not effectively performing her duties in a timely manner, and he reassigned the job to another staff member. Tomassi asserted that all families affected by the explosion were ultimately relocated and denied that her responsibilities were reassigned.

On May 7, 2003, Stadmeyer told Tomassi that she was no longer needed at Insignia because he had hired someone with website experience to take over her responsibilities. Tomassi testified that Stadmeyer said to her, "Well, Pat, you know, I figure that you probably didn't want to work long hours any more and you would be happier doing something part-time. You have money. You're independently wealthy. So I just figured that it would be better for you." When Tomassi responded that she was not wealthy and needed full-time work, Stadmeyer replied, "Well, you know, you get along with the seniors. I figured maybe you could do some work with the seniors." Stadmeyer offered to provide Tomassi with a reference, praising her "great skills" and "great ability." Stadmeyer testified that, in fact, he had not fired Tomassi because he needed someone with website experience, as he told her, but rather because Tomassi was not performing her tasks effectively and efficiently, and in addition, because Tomassi had violated Insignia's policy on communicating with the media.

Tomassi's last day of employment was May 19, 2003, at which time she was 63 years old. Insignia had hired a 25-year-old, Saskia Witkam, who was assigned responsibility for communicating with tenants, producing a tenant newsletter, managing the PCV/ST website, and handling public relations. Stadmeyer maintains that Witkam was hired "because she had substantial graphic computer background and experience with maintaining websites." He also says that Witkam did not replace Tomassi, but rather was hired to fill a "new position" and was assigned only a small portion of tasks for which Tomassi had been responsible, in particular the handling of tenant notices. Tomassi contests this characterization and argues that at the time of her termination she was responsible for, among other things, "preparing and sending out tenant notices . . ., preparing the PCV/ST newsletter, assisting with the web site, . . . [and] public relations and communications" — precisely the tasks then assigned to Witkam.

Tomassi brought this suit alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"), claiming that she was fired "on account of her age and because she did not fit into the younger, fresher image that defendants were striving to achieve for PCV/ST."²

The district court granted the defendants' motion for summary judgment, concluding there was insufficient evidence to support a reasonable finding that Tomassi was fired on account of her age. Tomassi v. Insignia Fin. Group, Inc., 398 F.Supp.2d 263 (S.D.N.Y.2005). The court considered Stadmeyer's age-based comments as "nothing more than stray remarks, which have been held not to be . . . sufficient evidence to support age discrimination claims." Id. at 271.

Discussion

Because Tomassi satisfied the "de minimis" requirements of a prima facie case of age discrimination and Insignia proffered a different reason for her termination, the pattern of presumptions and burden shifts established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), drops away, and the question in adjudicating the defendants' motion for summary judgment becomes simply whether the evidence in ...