Gonzalez v. Carestream Health, Inc., 12-CV-6151-CJS

• Decision Date: 06 May 2016
• Docket Number: 12-CV-6151-CJS
• Parties: CARLOS GONZALEZ, Plaintiff, v. CARESTREAM HEALTH, INC., Defendant.
• Court: U.S. District Court — Western District of New York

CARLOS GONZALEZ, Plaintiff, v. CARESTREAM HEALTH, INC., Defendant.

12-CV-6151-CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 6, 2016

DECISION & ORDER

APPEARANCES

For Plaintiff:

Kimberly A. Glennon, Esq.

160 Linden Oaks Dr.

Rochester, NY 14625

(585) 267-7457

Richard N. Franco, Esq.

Christina Agola PLLC

1415 Monroe Av.

Brighton, NY 14618

(585) 262-3320

For Defendant:

Jeffrey J. Calabrese, Esq.

Andre Leon Lindsay, Esq.

Harter, Secrest & Emery LLP

1600 Bausch & Lomb Place

Rochester, NY 14604-2711

(585) 231-1280

INTRODUCTION

Siragusa, J. Plaintiff Carlos Gonzalez ("Gonzalez") filed a complaint alleging violations under the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law ("NYSHRL"), and the Family Medical Leave Act ("FMLA"). Complaint, Mar. 24, 2012, ECF No. 1. Defendant Carestream Health, Inc. ("Carestream") moved to dismiss the complaint, and the Court granted the motion. Decision and Order, Sept. 19, 2012, ECF No. 10. Gonzalez appealed, and the Second Circuit, reviewing the case de novo, vacated this Court's judgment and remanded the case. Gonzalez v. Carestream Health, Inc., No. 12-4202-cv, 520 Fed. Appx. 8 (2d Cir. Apr. 2, 2013). Mediation was unsuccessful. Mediation Certification, Jun. 16, 2014, ECF No. 30. Following discovery, the case is now before the Court on Carestream's February 9, 2015, motion for summary judgment, ECF No. 36, on which the Court heard oral argument. For the reasons stated below, the application is granted.

FACTUAL BACKGROUND

The Court takes the following facts from the parties' Local Rule 56 statements, noting any factual disputes below.

Gonzalez' Employment with Carestream

Gonzalez was born in 1949 and is 65 years old. Ex. A ("Pl.'s Dep.") 10:6-9, Pl.'s App'x to L.R. 56 Statement of Material Facts, Mar. 24, 2015, ECF No. 41-1. Gonzalez commenced his Carestream employment on May 1, 2007. Pl.'s Dep. 17:6-8. Prior to Carestream, Gonzalez worked for Eastman Kodak Company ("Kodak"), from 1976 until April 30, 2007. Pl.'s Dep. 16:9-12. Gonzalez began working for Carestream as part of the sale of Kodak's Health Group business in 2007. Pl.'s Dep. 16:9-12. Gonzalez automatically became a Carestream employee upon the sale and has no recollection of ever receiving an "offer" from Carestream. Pl.'s Dep. 17:2-18:13.

Commercialization Business Manager & the Carestream Commercialization Process

At Carestream, Gonzalez' title was Commercialization Business Manager ("CBM"). Pl.'s Dep. 17:6-8. "The responsibility of a [CBM] is to drive the project from start to completion using the Carestream product commercialization process. And you're the leader of a core team that involves all the required disciplines, both technical and non-technical." Pl's Dep. 20:24-21:5. Gonzalez described the deadlines contained within a project as "gates." Id. 21:17. He was responsible for "[l]eading the project team, making sure [they] stay on schedule and in particular making sure that [they] get the project through all the gates and the Carestream commercialization process." Pl.'s Dep. 21:15-18. Gonzalez testified that, "A gate is a milestone at which the status of the project gets presented to the decision-makers. And then the decision-makers decide if the project should move forward to the next phase or not." Pl.'s Dep. 22:6-9.

Two individuals supervised Gonzalez: Mike Tylutki ("Tylutki") and John Kopcienski ("Kopcienski"). Tylutki was his first supervisor from when Gonzalez started at Carestream until approximately February of 2010, at which time Gonzalez "changed where he was located" and began reporting to Kopcienski. Pl.'s Dep. 24:6-25; Ex. H ("Kopcienski Dep.") 20:9, Def.'s App'x to L.R. 56 Statement of Undisputed Facts, Feb. 9, 2015, ECF No. 36-4.

Tylutki, in his deposition testimony, detailed that for each project, "there are ... four gates between the project initiation and commercialization." Ex. I ("Tylutki Dep.") 31:11-14, Def.'s App'x to L.R. 56 Statement of Undisputed Facts, Feb. 9, 2015, ECF No. 36-4. He further explained that,

[t]here are also two subsequent gates post-commercialization, 4 and 5, which relate to a double-check back on the performance of the produce that was commercialized and then a closing gate. So in total there's [sic] actuallyfive. But typically these folks [sic] only had responsibility for the first 0 through 3.

Tylutki Dep. 31:12-21. He described that gate 0 was the phase where Carestream determined whether it made sense to pursue the project and invest additional time and resources. Id. 32:6-10; Pl.'s Dep. 22:22-24.

Kopcienski also described the gates and testified at his deposition that "Gate 1 is the point at which the project team is committing to the set of capabilities for the product, the time frame and the budget. And also from the business point of view, the profitability and cost of that project, [to] execute and to maintain post-launch." Kopcienski Dep. 33:20-24; see also Pl.'s Dep. 23:4-8 ("Gate 1 is a gate at which the requirements both technical and non-technical are defined and I, as the commercialization manager, gives [sic] an estimate of commit for a schedule for gate 3.").

"Gate 2 is the point at which the design verification phase is complete and ... ready to transfer the product to manufacturing ... and conduct field trials." Kopcienski Dep. 34:10-13. Gonzalez described gate 2 as the point at which "[e]nough of the project has been developed and is working and has been tested by quality assurance, that we can actually go and test it in the field in something that's called trade trials." Pl.'s Dep. 23:10-16. Gate 3 is the point at which the business launches the product. Kopcienski Dep. 34:19; see also Pl.'s Dep. 22:12-14 ("at gate 3 the company can sell the product and collect revenue. So if gate 3 doesn't happen, the business doesn't sell the product.").

Carestream's Employee Review Procedure

Carestream adopted an Equal Employment Opportunity Policy in 2007 prohibiting discrimination on the basis of age or any other status protected by law. A portion of that policy reads as follows:

In addition to sexual, racial, and ethnic harassment, Carestream Health recognizes that other forms of unlawful harassment exist. Such unlawful harassment may target persons because of their color, religion, sexual orientation, marital status, pregnancy, citizenship status, national origin, age, disability, veteran status, or other factors. Carestream Health will not tolerate such conduct.

Ex. Q ¶ 1.2.4, Def.'s App'x to L.R. 56 Statement of Undisputed Facts, Feb. 9, 2015, ECF No. 36-5.

Pursuant to Carestream's employee performance review procedure, each employee is evaluated annually. Kopcienski Decl. ¶ 6, Def.'s App'x to L.R. 56 Statement of Undisputed Facts, Feb. 9, 2015, ECF No. 36-7. During the evaluation process, Carestream employees perform a self-assessment of their work, providing information regarding each project on which they worked during the year. Id. After reviewing an employee's self-assessment, the employee's direct supervisor and other managers conduct a review of the employee's job performance to determine whether the employee has met all applicable goals and requirements and to weigh the employee's performance against the performance of other employees in similar job classifications. Kopcienski Decl. ¶ 7.

At the end of the review process, each employee receives one of the following three Performance Ratings: (1) Outstanding Performance; (2) Successful Performance; or (3) Less than Successful Performance. See Kopcienski Decl. ¶ 8. "Generally, any employee who receives a Performance Rating of '(3) Less than Successful Performance' was deemed ineligible for a performance bonus and automatically placed on a Performance Improvement Plan ('PIP')." Kopcienski Decl. ¶ 9. The performance evaluations carry the title of "Goal Setting and Appraisal."

Gonzalez' 2008 Goal Setting and Appraisal

From May 2007 until approximately February 2010, Tylutki supervised Gonzalez. Pl.'s Dep. 24:13-18. Tylutki is 55 years old. Tylutki Dep. 6:10. Tylutki was unaware of Gonzalez' age, but testified that he believes they are similar in age. Id. 18:6-10. Gonzalez admits that this was Tylutki's testimony, but denies that Tylutki did not know Gonzalez' age.

During the relevant time period, Tylutki was the CR¹ Development Manager and served in this position until January 2010. Tylutki Dep. 7:8-17. Tylutki wrote Gonzalez' 2007, 2008 and 2009 performance appraisals. Id. 34:8-11; 39:7-11. Gonzalez received an overall performance rating of "(2) Successful Performance" on his 2008 Goal Setting and Appraisal. See Ex. J, Def.'s App'x to L.R. 56 Statement of Undisputed Facts, Feb. 9, 2015, ECF No. 36-5.

With respect to the Cardinal project at Gate 3D,² Tylutki noted that Gonzalez, needed "to improve on risk analysis early in [sic] program to make sure we identify all risks and mitigate risks earlier thereby creating more predictable performance." Ex. J at 1. Also, with respect to "Drive commercialization improvements," for the Crystal project at Gate 0, Tylutki wrote: "Continued improvement is needed. Looking for [Gonzalez] to react more quickly to performance issues within the team and take necessary steps to avoid program losing ground." Ex. J at 3. In a narrative attached to Gonzalez' 2008 performance appraisal, Tylutki outlined specific areas of improvement that Gonzalez needed to accomplish in 2009:

For 2009 [Gonzalez] needs to work with his commercialization teams on improving schedule performance. [Gonzalez] needs to help the commercialization team do a better job with risk assessment, contingency plans, and keeping focus on the critical items which will deliver the program. Additionally I would like [Gonzalez] to continue to work on knowing when detail is needed and when it is not. One of the detriments of being very detail oriented is at certain stages of the program this can result in wasted effort. Making sure early on in programs that the team has the big picture and

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