Henek v. CSC Holdings, LLC

• Citation: 449 F.Supp.3d 35
• Decision Date: 29 March 2020
• Docket Number: 18-cv-6888 (BMC)
• Parties: Elon HENEK, Plaintiff, v. CSC HOLDINGS, LLC, etc., Defendant.
• Court: U.S. District Court — Eastern District of New York

449 F.Supp.3d 35

Elon HENEK, Plaintiff,

v.CSC HOLDINGS, LLC, etc., Defendant.

18-cv-6888 (BMC)

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

Signed March 29, 2020

Filed March 30, 2020

Jaazaniah Asahguii, Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY, for Plaintiff.

Cameron Alexander Smith, Chryssa V.B. Valletta, Seyfarth Shaw LLP, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

For nine months, plaintiff worked as a salesman selling packaged telephone, television and internet services for defendant CSC Holdings, LLC, also known as "Optimum" and formerly known as "Cablevision Systems Corp." Plaintiff admits to numerous acts of violating his employer's policies during his brief tenure, but asserts that he was treated badly and ultimately fired because he is of Israeli-Jewish origin and has certain mental impairments

. Before me is his former employer's motion for summary judgment as to his remaining claims: (1) disparate treatment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . ("Title VII") and N.Y. Exec. Law § 296 et seq. ("NYSHRL"); and (2) claim under the Americans with Disability Act, 42 U.S.C. § 12101 et seq . ("ADA").¹ Plaintiff has failed to produce evidence sufficient to demonstrate a prima facie case as to these claims, and I therefore grant defendant's motion.

BACKGROUND

The following material facts are taken from defendant's Local Rule 56.1 statement and plaintiff's admissions in response.²

Plaintiff began working for defendant as a door-to-door salesman in April 2017, selling internet, television and telephone services. He is Jewish and of Israeli origin, although he only holds a United States, not Israeli, passport. He was hired by Hugh Johnson, who is also Jewish, and who supervised plaintiff during his nine-month term of employment.

Plaintiff received a formal reprimand ("documented coaching") on September 7, 2017. It did not affect his wages. The reprimand arose from plaintiff having violated defendant's Residential Direct Sales: Standards, Policies, and Procedures Manual (the "Policy Manual"), which expressly prohibited communications between sales personnel and potential customers by text messaging, a prohibition of which plaintiff was specifically aware. Plaintiff sent the text message in what appears to have been a successful effort to dissuade a potential new customer from canceling his pending subscription. In that text message, plaintiff implored the customer, among other things, to not cancel because plaintiff was "working hard for an engagement ring." The customer complained to defendant that the text was unprofessional, as well as complaining about the level of plaintiff's "persistence" and the fact that plaintiff had used the email address of the customer's wife instead of that of the customer.

About two weeks after this formal reprimand, defendant gave plaintiff a written "Final Warning." It stated that "[g]oing forward you are expected to adhere to all company policies and procedures, including the Attendance policy and the Residential Direct Sales: Standards, Policies, and Procedures.... If you are unable to improve and sustain improvement in the designated areas, or if you engage in any conduct that violates the company's policies during this period and thereafter, [you] will be subject to further corrective action up to and including termination of your employment."

The Final Warning arose from plaintiff's failure to either show up for work on September 12, 2017 or to call in and let anyone know he would not be showing up for work. Plaintiff was specifically aware of the provision in defendant's Policy Manual that if any employee was not going to punch in on a scheduled day, "You must speak with a Manager or Supervisor. There are no exceptions." Plaintiff's supervisor, Johnson, called plaintiff repeatedly on the day of his absence but plaintiff did not answer his phone.

When plaintiff returned to work the next day, he told Johnson that he (plaintiff) had not been feeling well the preceding day and had slept most of the day. Plaintiff further told Johnson that he was "burnt out" and needed to rest. Plaintiff asked Johnson if he could submit a doctor's note to excuse his absence retroactively. Johnson forwarded that request to defendant's HR department, but the HR officer said that plaintiff's being "burnt out" and needing sleep was an insufficient excuse for not calling in.

In his deposition, plaintiff testified that he had a "nervous breakdown" on September 12, 2017, which is why he did not go to work (although he had apparently sufficiently recovered from this condition by September 13, 2017 so that he returned to work). There is no indication in the record that plaintiff told Johnson or defendant's HR department that he had this condition. There are no medical records or any admissible evidence that plaintiff had a condition that prevented him not only from working on September 12th, but also from calling in to report his absence as defendant's Policy Manual required.

At the end of September 2017, plaintiff took the day off for the Jewish holiday of Yom Kippur, an absence for which he had provided advance notice. Plaintiff had scheduled an installation of services for one of his customers that day, which could not be completed because of plaintiff's absence.³ When a supervisor called him at home to inquire, plaintiff answered, and told the supervisor that he was taking the day off for Yom Kippur. The supervisor apologized and hung up the phone. Plaintiff received paid time off for Yom Kippur and subsequently for Passover, but because the sale did not close, he did not receive his commission.

Just over a month after his Final Warning, plaintiff provided outdated pricing information to a customer. Plaintiff had the correct pricing on his iPad, but used the same then-outdated pricing he had used previously. Plaintiff knew he was supposed to check the sales form for the current pricing but didn't trust its accuracy and therefore did not use it. The customer complained about receiving the wrong pricing but plaintiff was not formally disciplined.

About a month and a half after that, plaintiff emailed a customer without copying his manager. Plaintiff was aware that it violated defendant's Policy Manual to do that. Again, he received no formal discipline.

The event that resulted in plaintiff's termination in January 2018 arose from his misuse on back-to-back occasions of a proprietary software called a Customer Verification Tool, or CVT. This software tracks the history of defendant's client base and is used, among other things, to make sure that customers who owe arrears from a prior account are not granted a new account without payment of the arrears or management approval.

Prior to closing a sale, defendant's sales personnel are required to run the potential customer's identifying information through the CVT to see if the customer has prior outstanding balances. Defendant's Policy Manual states that its sales personnel can run only one CVT per household; defendant's concern is that its salesmen, spurred by the prospect of a commission for re-signing a prior, deadbeat customer, could circumvent that prohibition by running a second CVT using a different name in the household, a name which would not show up as a customer in arrears. Indeed, defendant was so concerned about this possibility that its Policy Manual stated: "Any effort of a Direct Sales Representative to circumvent the CVT system (multiple entries, incorrect information, etc.), may lead to corrective action up to and including termination." The Policy Manual further stated: "All back balances ... must be paid... before new service is established. Forgiveness or waiving any back-balance charges for any account without advanced written approval by local sales management is prohibited." Plaintiff was specifically aware of the need to collect past due accounts before providing a prior customer with new service.

On January 13, 2018, plaintiff ran a CVT on a customer who, it showed, owed an outstanding balance of $304.86. The same day, without checking with a supervisor, plaintiff ran another CVT for a different person in the household who, it showed, owed $379.85 on another delinquent account, including a $100 equipment arrears charge. Plaintiff, further violating defendant's CVT policy, ran a third CVT on the first customer, which unsurprisingly showed the same arrears as the previous one; plaintiff opened the account based on this third CVT in the name of the first customer when that customer paid his arrears, thus leaving an even larger delinquent balance in the same household.⁴

Three days later, plaintiff ran a CVT on a different customer. It showed arrears of $364.25. The customer assured plaintiff that he had already paid the arrears. Plaintiff proceeded with the sale without verifying collection of the arrears or seeking Johnson's approval to waive them; plaintiff only told Johnson about it after plaintiff had closed the sale. Nowhere on the sales form did plaintiff note the customer's false claim that he had already paid the arrears.

The next day, Johnson, in consultation with his supervisor, Matthew Haggerty, prepared and sent a termination request to defendant's HR department. The memorandum referenced the formal discipline, Final Warning, and unexcused absence as described above, but it was based on the misuse of the CVT software on the two occasions. Johnson, Haggerty, and an HR manager met with plaintiff in Haggerty's office and terminated him the next day.

DISCUSSION

Summary judgment is appropriate only "where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). At summary judgment, the court's responsibility "is not to resolve...