Boyle v. McCann-Erickson, Inc.

• Decision Date: 03 January 1997
• Docket Number: No. 94 Civ. 0080 (DAB).,94 Civ. 0080 (DAB).
• Parties: Terence BOYLE, Plaintiff, v. McCANN-ERICKSON, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

949 F.Supp. 1095

Terence BOYLE, Plaintiff, v. McCANN-ERICKSON, INC., Defendant.

No. 94 Civ. 0080 (DAB).

United States District Court, S.D. New York.

January 3, 1997.

COPYRIGHT MATERIAL OMITTED

Teitelbaum, Hiller, Rodman, Paden & Hibsher, P.C., New York City (Miriam Rena Spiro, William Hibsher, of counsel), for Plaintiff.

Turchin & Hoffman, P.C., New York City (Morton J. Turchin, of counsel), for Defendant.

MEMORANDUM AND ORDER

BATTS, District Judge.

Plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging employment discrimination based on national origin, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and pursuant to Section 296 of the New York State Executive Law. Defendant now moves for summary judgment.

I. BACKGROUND

Plaintiff was born on June 29, 1935, and is an American-born citizen. (Pl.'s & Def.'s 3(g) Stmts. ¶¶ 2-3.)¹ Defendant McCann Erickson, Inc. is the advertising agency, (Id. ¶¶ 5), where Plaintiff began working in 1981, doing freelance work. (Pl.'s 3(g) Stmt. ¶ 6.)

When Plaintiff was hired he signed a "Confirmation of Employment and Salary Agreement" which stated, "THE EMPLOYMENT PERIOD TO BE AT WILL." (Pl.'s & Def.'s 3(g) Stmts. ¶¶ 8.) When Plaintiff was hired he was a member of the International Team ("IT") and remained on the IT until December 1991, when he was transferred to McCann New York. (Id. ¶¶ 9.)

The IT had four people on its team in 1979, which increased to 25 by 1991. (Id. ¶¶ 10.) Its purpose was to assist the local offices with international accounts, specifically to service a Coca-Cola account to apply advertisements to specific countries and their cultures. (Id. ¶¶ 11.) Most of Plaintiff's work was on the Coca-Cola account and he won awards for his work on Coca-Cola jingles. (Id. ¶¶ 13.)

Several people supervised Plaintiff during his time with the IT, including Marcio Moreira ("Moreira") who supervised Plaintiff from 1981 until approximately 1986. In 1988, Moreira became Vice Chairman Chief Creative Officer International and was still responsible for the IT and continued to supervise Plaintiff, although not directly. (Id. ¶¶ 14.) During his tenure, Moreira wrote three of the four formal evaluations of Plaintiff's work, Plaintiffs salary rose from $65,000.00 to $115,000.00 in 1992, and Plaintiff received several bonuses which were tied to the company's profits. (Id. ¶¶ 15, 17-19.) However, Plaintiff was the only member of the IT who did not receive a bonus in 1991. (Id. ¶¶ 20.)

Sometime in the late 1980s Arnold Blum became the Creative Director of the IT. (Id. ¶¶ 22.) Plaintiff complained to Blum about his use of ageist comments. (Id. ¶¶ 23.) Although Blum never apologized, such comments were never made again by Blum. (Id.) Plaintiff's other supervisor called Plaintiff's work "old fashioned" and "not fresh." (Id. ¶¶ 26.) Plaintiff asserts that these comments were ageist and commenced sometime before 1989 continuing beyond 1990. (Id. ¶¶ 27.)

In February 1991, David Tutin, Geoff Nauss and Bob Nisbet were designated as co-creative directors of IT, (Id. ¶¶ 40), accordingly, IT was split into three groups, each group handling different clients or different aspects of Coca-Cola. (Id. ¶¶ 42.) Plaintiff felt, Tutin, who was born on March 27, 1952, in Britain, and who was Plaintiff's director, made ageist remarks and remarks regarding Plaintiff's national origin. (Id. ¶¶ 42, 46, 54.) Other people observed Tutin's behavior and supported Plaintiff's observations. (Id. ¶¶ 48.) Plaintiff was also unhappy with the nature of the work, in that it was not challenging enough for his capabilities. (Id. ¶¶ 43, 47, 49.) He attributed this to the tense relationship between him and Tutin. (Id. ¶ 52.)

Plaintiff complained to Moreira, who told him to resolve the situation with Tutin. (Id. ¶¶ 63-64.) Plaintiff felt that Tutin had permission to be abusive to pressure him to quit before vesting in his pension plan. (Id. ¶¶ 56.)²

By the end of 1991, Coca-Cola shifted most of its account from the IT to McCann Erickson New York. (Id. ¶¶ 73-74.) At that time most of the IT members were transferred or quit. (Id. ¶¶ 76.) The creatives left on the IT included foreign nationals and one American. (Id.) Other Americans remaining on IT were members of production. (Id.) Plaintiff was transferred to McCann New York. (Id. ¶¶ 78-79). However, Plaintiff continued to feel that the lack of work or the work given to him did not match his capabilities. (Id. ¶¶ 80-81.) In January 1992, Plaintiff was assigned to a group headed by Paul Capelli, who Plaintiff claims made ageist comments. (Id. ¶¶ 81-82.) In April 1992, Plaintiff was assigned to Ken Domanski's group, at which time Plaintiff continued to get work which he felt was menial; he also continued to be the brunt of ageist comments. (Id. ¶¶ 84, 86, 89-95.) In November 1992, Domanski and the other creative directors were told to reduce their payroll, Domanski had to reduce his by $400,000.00 (Id. ¶¶ 102-03.) Domanski submitted four names, one of which was the Plaintiff's name. (Id. ¶¶ 104.) Plaintiff was terminated in December 1992, at the age of 57. (Id. ¶¶ 7, 109.)

II. DISCUSSION

The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir.1995). As is often stated, "[v]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir.1991); see also Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991).

The Defendant has moved for summary judgment on all nine causes of action brought by the Plaintiff.

A. Plaintiff's Claims for Age Discrimination: First, Second and Fifth Causes of Action

Plaintiff claims he was discriminated against based on his age, in violation of the ADEA (Compl. ¶¶ 51-54), and the New York State Executive Law. (Compl. ¶¶ 67-70.) Plaintiff also seeks liquidated damages upon a finding that Defendant's acts were willful. (Compl. ¶¶ 55-57.)

Pursuant to the ADEA, an employer may not discharge or otherwise discriminate against its employees on the basis of their age. 29 U.S.C. § 623(a)(1). However, an employer may discharge an employee for reasons other than age, that could be associated with age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 1706-07, 123 L.Ed.2d 338 (1993); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 117 (2d Cir.1991). Thus, "it is incorrect to say that a decision based on years of service is necessarily `age-biased,'" Hazen Paper, 507 U.S. at 611, 113 S.Ct. at 1707, or that a decision cannot be based on salary.³ Bay, 936 F.2d at 117.

An employee alleging discrimination pursuant to the ADEA has the burden on proving that age was a determinative factor in the employment decision. The employee does not have to show it was the principal factor but that it was a "significant contributing factor," Lowe v. Commack Union Free School Dist., 886 F.2d 1364 (2d Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990), or a determinative factor considered by the employer in its decision to terminate the employee. Hazen Paper, 507 U.S. at 610, 113 S.Ct. at 1706.

In order to make out a prima facie case for age discrimination pursuant to the ADEA,⁴ a Plaintiff must show that 1) he is in the protected age group; 2) he is qualified for the job; 3) he was discharged; and 4) the discharge occurred under circumstances giving rise to an inference of age discrimination. Maresco v. Evans Chemetics, 964 F.2d 106, 110 (2d Cir.1992); Montana v. First Fed. S & L Ass'n, 869 F.2d 100, 106 (2d Cir.1989). If the plaintiff satisfies this burden, the burden of production⁵ shifts to the defendant to state a legitimate, nondiscriminatory reason for the discharge. If the defendant succeeds in meeting this burden, then the burden shifts back to the plaintiff to show that the employer's reason is a pretext. Montana, 869 F.2d at 105.

Plaintiff is a member of a protected class,⁶ he was discharged, and for purposes of this motion, the parties seem to agree he was qualified.⁷ The only issue for the Court is whether the circumstances surrounding the discharge give rise to an inference of age discrimination. The inference may be shown through direct, statistical or circumstantial evidence. Montana, 869 F.2d at 104; Piasecki v. Daughters of Jacob Nursing Home, Inc., 808 F.Supp. 1136, 1140 (S.D.N.Y.1992).

Plaintiff claims, based on the statements made by, and the actions of, his various supervisors, the statistics of those who worked for the Defendant and their ages, and the belief that he was replaced by a younger worker, that he was discharged based on his age. Plaintiff cites the following incidents in support of his claim of age discrimination:

(1) Blum,...