Goenaga v. March of Dimes Birth Defects Foundation, 1110

Decision Date24 March 1995
Docket NumberNo. 1110,D,1110
Citation51 F.3d 14
Parties67 Fair Empl.Prac.Cas. (BNA) 603, 66 Empl. Prac. Dec. P 43,478 Jose GOENAGA, Plaintiff-Appellant, v. MARCH OF DIMES BIRTH DEFECTS FOUNDATION, Defendant-Appellee. ocket 94-7884.
CourtU.S. Court of Appeals — Second Circuit

Jeffrey M. Bernbach, New York City, for plaintiff-appellant.

Gregory B. Nokes, Stamford, CT (Cummings & Lockwood, Stamford, CT, on the brief), for defendant-appellee.

Before: OAKES, KEARSE, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Jose Goenaga appeals from a final judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, dismissing his complaint against defendant March of Dimes Birth Defects Foundation (the "Foundation") for allegedly discriminating against him on the basis of ethnicity in the granting of severance pay, in violation of 42 U.S.C. Sec. 2000e et seq. (1988). The district court granted summary judgment in favor of the Foundation on the ground that Goenaga had failed to show circumstances giving rise to an inference of ethnic discrimination. On appeal, Goenaga contends that summary judgment was improper because there were genuine issues of material fact to be tried. For the reasons that follow, we conclude that his contentions are without merit.

I. BACKGROUND

Goenaga, who is of hispanic origin, was employed by the Foundation for some 31 years. Prior to August 1993, he held a managerial position at its national headquarters. In August 1993, Goenaga's position was eliminated as part of the Foundation's reduction in force (the "August 1993 RIF") for economic reasons. Goenaga's employment with the Foundation was terminated, and he was granted severance pay. He was also given three months' worth of executive outplacement services to be rendered by an outside firm.

At the time of Goenaga's termination, the Foundation had a Human Resource Policy Manual for Managers ("Policy Manual" or "Manual") which set forth its severance-pay guidelines. The Manual stated that such pay would typically be given to "employees who are terminated because of unsatisfactory performance or because of layoff" (Policy Manual at 2), and that a terminated employee was normally to receive one week's pay for each year he or she had been employed by the Foundation (id. at 3). The Manual also stated, however, that "[t]he maximum severance payment allowed is 6 months...." (Id. at 2.) If the terminated employee's manager believed an above-guidelines payment was necessary, it would be allowed only if the manager obtained the approval of "the appropriate National Office Department Head, the VP for Human Resources and the President's Office." (Id. at 2-3.) When Goenaga's employment was terminated, he was given 31 weeks' pay as severance pay, i.e., five weeks more than the six-month maximum.

Goenaga complained to the Foundation that four caucasian managers had received proportionately more severance pay than he. He pointed out that Delbert Hurt, a director of field operations employed by the Foundation for one year, and Stephen Kostelny, an area director employed by the Foundation for two years, had each received six months' pay as severance; Goenaga stated that vice presidents Carmine Grande and Mary Anne Visokay, employed by the Foundation for three and five years, respectively, had each received five months' pay plus a one-year consulting agreement. Goenaga requested an increase in his own severance payment. When his request was denied, he complained to the Equal Employment Opportunity Commission and, after receiving a right-to-sue letter from that agency, commenced the present action. Goenaga did not contend that there was discrimination in the termination of his employment but only in the size of his severance payment.

A period of discovery followed, in which depositions were taken of, inter alios, Goenaga, Foundation executive vice president Ted Federici, and Visokay, the Foundation's former vice president for human resources whose employment had been terminated as part of the August 1993 RIF and whose severance package included a one-year consulting agreement. The Foundation also produced documents, including a list of employees whose employment had been terminated during the period August 1987 through October 1993, showing the name, position, and ethnicity of the employee, the date of termination, the number of years worked Visokay, in her deposition, was asked about the Foundation's reasons for granting the amounts of severance pay indicated for various persons on the Termination List. She testified that the Foundation customarily gave favored treatment to vice presidents. She also testified that when the Foundation wished to terminate an employee's employment for poor performance but felt it had not sufficiently documented its criticisms, it would make an above-guidelines severance payment if the employee would give the Foundation a release from liability. Employees terminated not for performance reasons but pursuant to the August 1993 RIF were not required to give releases. Goenaga was not required to give a release.

and the severance package awarded (the "Termination List").

As to the Foundation's termination of Hurt, Visokay testified that though Hurt's position was eliminated as part of the August 1993 RIF, his employment was terminated not because of that RIF but because of his performance. Hurt had circulated an inappropriate newsletter to his region, and as a result, his manager had decided to terminate him immediately, as of July 1, 1993, though he had received no warning. Visokay testified that Kostelny too was terminated, as of July 1, 1993, for performance-related reasons, not as part of the August 1993 RIF. Hurt and Kostelny each received an above-guidelines severance payment only in exchange for giving the Foundation a release.

The Foundation moved for summary judgment based on documents, deposition testimony, and affidavits, arguing that Goenaga had not been treated differently from anyone to whom he was similarly situated. It argued that the evidence showed that the four caucasians to whom Goenaga compared himself were in fact not comparable, since two were terminated because of their poor performance, not because of the August 1993 RIF, and the other two, though terminated pursuant to that RIF, were vice presidents, which Goenaga was not. The Termination List showed that all other employees terminated because of the August 1993 RIF were given severance payments of roughly one week's salary for each year of employment with the Foundation, and that none of them, except Goenaga, received severance of more than six months' pay.

The Foundation also supported its motion with passages from Goenaga's own deposition testimony in which he admitted (a) that he knew of nothing to contradict Visokay's testimony that the Foundation customarily gave better treatment to vice presidents than to employees below that rank; (b) that he was not aware of any facts that could contradict the Foundation's evidence that the employment of Hurt and Kostelny had been terminated for performance-related reasons and that their above-guidelines severance payments had been given in exchange for their releases; and (c) that, other than Hurt, Kostelny, and the two vice presidents, Goenaga was not aware of any employee terminated as part of the August 1993 RIF who received as severance pay more than one week of pay per year of employment.

In opposition to the motion for summary judgment, Goenaga admitted the existence of the Foundation's Policy Manual, but he asserted that the Manual stated "only a guideline as to the minimum " amount that could be paid (Goenaga Affidavit dated July 18, 1994, at p 5 (emphasis in original)), and asserted that there was "no limitation on the severance pay allowable in the policy manual" (Goenaga Statement Pursuant to Local Rule 3(g), at p 8). Goenaga stated that in the past the Foundation had given above-guidelines severance pay to caucasian managers whose positions were equivalent to or lower than Goenaga's, and he listed the names of 14 such employees, culled from the Termination List.

Goenaga's affidavit did not indicate the dates on which the employment of these 14 individuals had been terminated. The Termination List itself, however, revealed that 11 had left the Foundation between September 1988 and May 1992 and that all had left prior to the August 1993 RIF. Many of these individuals had been identified by Visokay in her deposition as employees whose above-guidelines severance awards had been determined in light of the Foundation's concern...

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