Atterberry v. Ikon Office Solutions, Inc., Civ. No. 3:02cv1490(PCD) (D. Conn. 12/9/2003), Civ. No. 3:02cv1490(PCD).
| Decision Date | 09 December 2003 |
| Docket Number | Civ. No. 3:02cv1490(PCD). |
| Parties | Gregory ATTERBERRY, Plaintiff, v. IKON OFFICE SOLUTIONS, INC., Defendant. |
| Court | U.S. District Court — District of Connecticut |
Defendant moves for summary judgment as to Count One of Plaintiff's complaint pursuant to FED. R. Civ. P. 56(b), and for entry of default on all counterclaims or summary judgment pursuant to FED. R. Civ. P. 55 and 56. For the reasons stated herein, Defendant's motions are granted.
Beginning in approximately 1995, Plaintiff worked as a Major Account Representative for Defendant. Defendant's "Compensation Plan for Equipment Sales" for Fiscal Year 2001 (the "2001 Plan"), which became effective in October 2000 and was updated in February 2001, applied to Plaintiffs employment. Pursuant to the 2001 Plan, Plaintiff was required to receive and process traded-in or end-of-lease-returned equipment, which was to be reflected on the new equipment invoice as a credit and returned to Defendant's inventory.
The "Equipment Returns/Trade-Ins" provision of the 2001 Plan provides that (emphasis added). Defendant's "Trade-In Integrity" provision of the 2001 Plan provides that (emphasis added). All employees were required to follow Defendant's Code of Ethics. Plaintiff signed a receipt confirming that he received a copy of the Code of Ethics and was familiar with its provisions.
Defendant's "Conflict of Interest" provision provides that "employees must conduct themselves in a manner that avoids conflicts of interest and that upholds IKON's business reputation." Defendant's "Protection of IKON's Assets and Resources" provision states that "IKON employees must protect IKON's assets and resources" and that "[i]llegal or improper use of such assets and resources is prohibited." Defendant's "Fraud, Dishonesty and Criminal Conduct" provision states that "fraud, dishonesty, and criminal conduct by IKON employees will not be tolerated." Defendant's Code of Ethics also provides that "IKON employees are expected to comply fully with all federal and state laws and with IKON's internal policies."
On or about July 2, 2001, Wireless Zone (located in Colchester Connecticut) contacted Defendant about some equipment. Robert Sullivan, President of Defendant's Hartford Marketplace, investigated the call and discovered that Wireless Zone was not a current customer. That same day John Brophy, Vice President of Financial Operations for Defendant, visited the Wireless Zone store. Although Plaintiff denies Defendant's allegation that Brophy obtained serial numbers from several pieces of Defendant's equipment at the store, he admits that a check of the serial numbers obtained by Brophy revealed that one of the copy machines was listed as lost from Defendant's inventory. Consequently, Sullivan and Brophy visited other Wireless Zone store locations and collected serial numbers from equipment. Upon investigating these serial numbers, they discovered that some of the equipment was listed in Defendant's inventory records as lost, stolen, or belonging to another IKON customer.
Defendant had no record of Plaintiff selling equipment to Wireless Zone and never received any proceeds from these sales. On approximately July 13, 2001, Plaintiff admitted that he had taken used IKON equipment and sold it in violation of IKON policy. Sullivan filed a report with the Glastonbury Police Department (the "Police"), requesting that they investigate the thefts, return the stolen equipment, and "pursue criminal charges against the persons responsible." The Police inspected the Wireless Zone stores, finding at least four stolen IKON copiers and fascimile machines, and one other machine believed stolen because the serial number was removed. The Police interviewed the owner of Wireless Zone, Scott Gladstone, who told them in a sworn statement that "over the past approximately three years I have purchased Canon Copier and Fax Machines from an IKON representative named . . . Gregory Atterbury [sic]." Gladstone provided the Police with copies of checks made payable to Plaintiff.3
When questioned by the Police on August 1, 2001, Plaintiff provided a sworn statement, providing that
When I'm taking new deals, if there is a trade in piece of gear (fax or copier) we would, including myself, give the customer the trade-in discount with the new piece of gear, but not acknowledge that used gear they were trading in on the new order. Thus, keeping the used piece of gear for our personal use or sale . . . I realize that IKON policy was to put the used gear on the invoices of the new equipment I was selling to any customer and then turned the used gear (copiers, fax machines, etc.) back to the company. The company, IKON, would then decide what to do with it. I was aware of this company policy prior to engaging in this practice of selling used gear to others and keeping the money.
During the Police investigation Plaintiff identified several other IKON employees whom he alleged engaged in this practice. Sullivan requested that "the investigation [] continue and IKON employees who may have committed crimes, arrested." The Police investigated each IKON employee identified by Plaintiff, including questioning some of their family members. On or about August 9, 2001, the Police inspected the home of a former IKON employee, Mark Fisher, and discovered three pieces of IKON equipment believed to be stolen. Sullivan later met with Fisher, who is white, and terminated his employee based on his improper possession of the IKON equipment.
The Police investigation concluded that, other than Plaintiff, "no other IKON sales representatives have been caught [stealing and] selling IKON copiers and fax machines to outside businesses." Based on both the Police investigation and its own internal investigation, Defendant concluded that only Plaintiff stole and sold IKON equipment for his own profit. Although no criminal conduct was proven regarding Fisher, he was terminated because his conduct violated Defendant's policy. No evidence was found that any other employee identified by Plaintiff possessed stolen equipment, stole or sold IKON equipment for its own profit, and consequently none of these other employees were terminated. When asked if he was "aware that the police of IKON was aware and had evidence that someone took equipment and sold it for their own profit," Plaintiff testified "I don't know." During his deposition, Plaintiff did not dispute that he stole IKON equipment, and did not dispute that he was aware at the time he was violating IKON policy. Plaintiff also admitted that he was aware that he would be terminated if he violated such policy. Plaintiff testified that he had stolen IKON supplies, including toner cartridges and drums, selling those as well.
Plaintiff filed a six count complaint, alleging a violation of Title VII of the Civil Rights Act of 1964 (Count One); violation of the Connecticut Unfair Practices Act (Count Two); Negligent and Intentional Infliction of Emotional Distress (Counts Three and Four); False Arrest (Count Five); and Slander (Count Six). In February, 2003, this Court granted Defendant's motion to dismiss Counts Two through Six [see Doc. No. 18]. Plaintiff seeks compensatory damages, punitive damages, costs and expenses, reasonable attorneys' fees, and any other relief the Court deems appropriate.
A party moving for summary judgment must establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. FED. R. Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the pleadings, and `designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In determining whether a genuine issue has been raised, all ambiguities are resolved and all reasonable inferences are drawn against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). Summary judgment is proper when reasonable minds could not differ as to the import of evidence. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). "Conclusory allegations will not suffice to create a genuine issue." Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990). Determinations as to the weight to accord evidence or credibility assessments of witnesses are improper on a motion for summary judgment as such are within the sole province of the jury. Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
In order to establish a prima facie case of employment discrimination pursuant to Title YE, a plaintiff must show (1) membership in a protected class; (2) adequate performance in a position or qualification for a potential promotion; (3) adverse action taken against plaintiff, and (4) the adverse action occurred under circumstances giving rise to a reasonable inference of discrimination. See Weinstock v. Columbia Univ., 224...
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