Beebe v. New York Times Co.
| Decision Date | 19 October 2009 |
| Docket Number | No. 09-cv-1090 (JBW).,09-cv-1090 (JBW). |
| Parties | Brian BEEBE & Bruce Erdreich, Plaintiffs, v. NEW YORK TIMES COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Jeffrey M. Bernbach, Bernbach Law Firm, White Plains, NY, for Plaintiffs.
Evandro Cristiano Gigante, Neil Abramson, Proskauer Rose LLP, New York, NY, for Defendant.
Table of Contents
I. Introduction ............................................................. 325
II. Facts .................................................................... 326
A. Plaintiffs' Employment History ........................................ 326
B. Job Posting and Hiring for Delivery Foreman Positions ................. 327
C. Previous Agreements Between Erdreich and The Times .................... 329
1. April 2008 Overtime Dispute ........................................ 329
2. July 2008 Suspension Dispute ....................................... 329
III. Law ...................................................................... 329
A. Summary Judgment ...................................................... 329
B. Choice of Law ......................................................... 330
C. Enforceability of Release Agreements .................................. 331
D. Elements of Prima Facie Case of Discrimination ........................ 332
E. Need to Apply for Position ............................................ 333
IV. Application of Law to Facts .............................................. 334
A. Release Agreements .................................................... 334
B. Failure to Establish a Prima Facie Case of Discrimination ............. 335
1. Adverse Employment Action Is Material Issue of Fact ................ 335
2. Specific Application Requirement Is Not Satisfied or Excused ....... 336
3. No Basis for Improper Demotion Claim ............................... 337
V. Conclusion ............................................................... 337
Appendix A: April 2008 Agreement .............................................. 338
Appendix B: July 2008 Agreement ............................................... 340
Plaintiffs Brian Beebe and Bruce Erdreich allege that defendant, the New York Times Company (hereinafter "The Times"), discriminated against them on the basis of their age. They sue under New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 ("NYSHRL") and New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 ("NYGHRL"). Plaintiff Erdreich also alleges violation of the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to 49 ("NJLAD").
Beebe and Erdreich have been employed by The Times for most of their professional careers. Prior to the alleged discrimination, they were delivery foremen with responsibility for dispatching trucks. They claim wrongful denial of promotion to newly created positions of a special form of delivery foreman—which, it is argued, carried additional duties and benefits compared to their posts at the time. The claimed age discrimination occurred in March 2007, resulting ultimately, through a series of job displacements, in assignment to the job of journeyman.
Both plaintiffs are residents of New Jersey. Compl. ¶¶ 5-6. The Times' principal place of business and headquarters are in New York. Id. ¶ 4. Jurisdiction is based on diversity of citizenship. See 28 U.S.C. § 1332(a).
The Times moved to dismiss the complaint. Fed.R.Civ.P. 12(c). It argues that (1) plaintiffs cannot recover for failure to promote to a position they never applied for; (2) plaintiffs could not have been denied a promotion as a matter of law because they already held foreman-level positions; and (3) with respect to plaintiff Erdreich, the right to sue was waived when he entered into two separate release agreements related to other employment disputes in April and July 2008. It also contends that Erdreich's New Jersey state law claims should be dismissed because New York's choice of law rules require application of New York state substantive law.
The motion was converted by the court to one for summary judgment. Argument was heard. Additional documentary evidence and briefs were then received.
Because plaintiffs never sought the positions they claim were wrongfully denied, defendant's motion for summary judgment is granted.
Brian Beebe is 50 years old. Compl. ¶ 5. He has been employed by The Times for 27 years. Beebe Decl. ¶ 2. He joined the fleet safety office in 1984. Id. In 1987, he was promoted from fleet safety clerk to assistant fleet safety manager. Id. Since 1997, he has worked at the company's production plant in College Point, New York. Id. In 1999, he was promoted to foreman and, in 2001, to fleet safety manager. Id. He held that position until February 2006, when the position was eliminated as redundant due to organizational changes. Id. ¶¶ 5-7. The Times then designated Beebe to work as a delivery foreman, a position making him responsible for dispatching delivery trucks on the night shift. Id. ¶ 7. In February 2008, he was assigned to the lesser position of journeyman. Compl. ¶ 16; Answer ¶ 7.
Bruce Erdreich is 56 years old. Compl. ¶ 6. He has been employed by The Times since 1973, primarily working at the company's printing plaint in Edison, New Jersey. Erdreich Decl. ¶ 2. He held the position of delivery foreman from 2002 until February 2008. Id. During his employment, he pursued his interest in the fleet safety component of the plant's operations, taking several fleet safety courses and acquiring practical experience, including accident training and pre-trip and post-trip inspections. Id. ¶ 3. In November 2007, Erdreich was transferred to the printing plant facility in College Point, New York. Id. ¶ 2. He was made a journeyman in February 2008. Id.; Answer ¶ 8. He then applied for and received a position entailing driving a tractor-trailer on delivery runs to Carlstadt, New Jersey, and other locations. Erdreich Decl. ¶ 10.
At the time of the alleged failure-to-promote, plaintiffs held the title of delivery foreman. Job descriptions by The Times for plaintiffs' prior foreman positions included the following:
Manage and direct staff of Delivery Journeymen on a shift basis. Ensure timely and accurate dispatch of product to the various distribution/wholesaler operations we service. Must have the ability to recognize operational issues/problems and be capable of instituting corrective measures where and when needed. Candidate must have demonstrated strong leadership abilities with emphasis on coaching and motivating personnel.
Duties also include some administrative functions such as payroll, computerized spreadsheets and Lotus Notes.
Def.'s Letter, dated Sept. 4, 2009, Exs. A and B.
In 2006, The Times outsourced fleet-safety functions to a private contractor. Beebe Decl. ¶¶ 5-7; Erdreich Decl. ¶ 3. It announced two "new" delivery foreman positions in January 2007. Beebe Decl. ¶ 8; Erdreich Decl. ¶ 4. A job posting was published on January 22, 2007. It provided the following description of the two positions:
Manage and direct staff of Delivery Journeymen on a shift basis. Ensure timely and accurate dispatch of product to the various distribution/wholesaler operations we service. Must have the ability to recognize operational issues/problems and be capable of instituting corrective measures where and when needed. Candidate must have demonstrated strong leadership abilities with emphasis on coaching and motivating personnel. Will be required to administer discipline, make recommendations concerning hiring and dismissal, and support the companies['] driver training and fleet safety programs. Duties also include some administrative functions such as payroll, computerized spreadsheets and lotus notes.
Answer, Ex. A (emphasis added). The italicized language did not appear in the job descriptions for the plaintiffs' delivery foreman positions set out above in Part II.A.
Employees interested in the new delivery foreman positions were required to submit applications by February 12, 2007. Id. Both Beebe and Erdreich saw the job posting prior to the submission deadline. Beebe Decl. ¶ 8; Erdreich Decl. ¶ 4. Neither tendered an application. Beebe Decl. ¶ 8; Erdreich Decl. ¶ 4.
On March 25, 2007, The Times announced in a memorandum to staff that the two positions had been filled through the promotion of two Times journeymen, ages 41 and 33. Compl. ¶ 13. It read as follows:
I am pleased to announce the promotion of James Pompey and Timothy Watson to Delivery Foreman in our Department effective March 25, 2007.
In their capacity, not only will they have daily management obligations, but will also be responsible for commentary rides, follow up accident rides, pre-trip/ post-trip inspections, safety training and awareness as certified Driver Trainers.
Jim has been driving for the Times for more than 20 years and Tim has been doing the dispatch function since 2003. Over the years, they have both demonstrated strong leadership ability, a solid work ethic and a keen ability to effectively communicate with their co-workers. These values and their respect for The Rules of The Road have prepared them to take on this important challenge.
Please join me in wishing both Jim and Tim great success on this well deserved promotion.
Director Delivery Dept.
Answer, Ex. B (emphasis added).
Plaintiffs claim to have been surprised by this promotion announcement insofar as it elaborated on the fleet safety duties of the new delivery foreman positions. In his sworn declaration, Beebe explains his views of the circumstances surrounding the promotions-viz.,...
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