Penberg v. Healthbridge Mgmt.

• Decision Date: 17 October 2011
• Docket Number: No. 08 CV 1534 (CLP).,08 CV 1534 (CLP).
• Parties: Marc PENBERG, Plaintiff, v. HEALTHBRIDGE MANAGEMENT, Defendant.
• Court: U.S. District Court — Eastern District of New York

25 A.D. Cases 1422

823 F.Supp.2d 166

Marc PENBERG, Plaintiff,

v.HEALTHBRIDGE MANAGEMENT, Defendant.

No. 08 CV 1534 (CLP).

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

Oct. 17, 2011.

Arthur Z. Schwartz, Schwartz, Lichten & Bright, P.C., New York, NY, for Plaintiff.

Caroline Jacobsen Berdzik, Kelly L. Bannister, Sandra S. Moran, Buchanan Ingersoll, PC, Princeton, NJ, Elliot J. Blumenthal, Buchanan Ingersoll & Rooney, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

CHERYL L. POLLAK, United States Magistrate Judge.

On April 14, 2008, plaintiff Marc Penberg commenced this action against HealthBridge Management, LLC (“HealthBridge”), alleging that he had been wrongfully terminated from his employment based on disability and age discrimination, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C §§ 621 et seq., and subjected to retaliation in violation of the ADA, the ADEA, the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., the New York State Human Rights Law (“NYSHRL”) §§ 296 et seq. , the New York City Human Rights Law (“NYCHRL”) §§ 8–101 et seq., and the Massachusetts Fair Employment Act (“MFEA”), (Compl.¹ ¶ 1).

Presently before the Court are the defendant's Motion for Summary Judgment on all remaining claims in the Complaint ² and plaintiff's Cross–Motion for Summary Judgment on the defendant's counterclaims. For the reasons set forth below, defendant's motion is granted in part, and denied in part; plaintiff's motion is denied.

FACTUAL BACKGROUND

Defendant Health Bridge manages skilled nursing and rehabilitation facilities, including certain facilities in Massachusetts for neuro-rehabilitation. (Def.'s 56.1 Stmnt ³ ¶¶ 1, 2; Pl.'s Resp.⁴ ¶¶ 1, 2). From 2003 to 2007, plaintiff Marc Penberg was employed by defendant as director of marketing and supervisor of a marketing team seeking to place patients in these Massachusetts facilities. (Compl. ¶ 6; Def.'s 56.1 Stmnt ¶¶ 2, 3, 16; Pl.'s Resp. ¶ 3). Plaintiff was born in December 1954 and was 53 years old at the time his position was eliminated. (Def.'s 56.1 Stmnt ¶ 34; Pl.'s Resp. ¶ 34).

Among other responsibilities, plaintiff supervised three liaisons, Cecilia Perdito, Nancy Casso, and Margaret Vaughn (collectively, the “New York liaisons”), who were each responsible for their own territory in New York. (Def.'s 56.1 Stmnt ¶¶ 6, 7; Pl.'s Resp. ¶ 6). In addition to supervising the New York liaisons, plaintiff had his own territory, consisting of Brooklyn, Queens, Westchester, Putnam, Orange, Rockland, Dutchess, and Sullivan Counties, where he was responsible for identifying patient referrals for placement at HealthBridge's neuro-rehabilitation facility in Massachusetts. (Def.'s 56.1 Stmnt ¶¶ 6, 8; Pl.'s Resp. ¶ 8). Plaintiff worked out of his home located in Shirley, New York, traveling in his New York territory and making day trips to Massachusetts once or twice a year. (Def.'s 56.1 Stmnt ¶¶ 4, 5; Pl.'s Resp. ¶ ¶ 4, 5).

As a necessary step in converting a patient referral to an admission, the HealthBridge employees were required to conduct a clinical screening of the referred individual, including an evaluation of the individual's medical and behavioral history to determine whether the person's needs could be met by the facility. (Def.'s 56.1 Stmnt ¶¶ 12, 14; Pl.'s Resp. ¶¶ 12, 14). Defendant contends that the three New York liaisons each had a clinical background: Perdito is a Registered Nurse; Casso is a Licensed Practical Nurse; and Vaughn is a Social Worker. (Def.'s 56.1 Stmnt ¶ 9). Plaintiff disputes the degrees as described and disagrees that the degree descriptions were equal to a “clinical background.” (Pl.'s Resp. ¶ 9). According to defendant, normally the person who obtains the referral would conduct the clinical screening. (Def.'s 56.1 Stmnt ¶ 13). Plaintiff admits that this was the “usual practice” but contends that there was “no formal procedure requiring this.” (Pl.'s Resp. ¶ 13). However, because plaintiff was not a nurse or social worker and had no licenses or certifications, defendant claims that Ms. Perdito conducted the majority of screenings for plaintiff's referrals. (Def.'s 56.1 Stmnt ¶¶ 10, 11, 15). Although plaintiff concedes that he had no certificates or licenses, he had a Masters Degree in counseling, and he claims that he did his own screenings in the last few years before being laid off. (Pl.'s Resp. ¶ ¶ 11, 15).

In or about August 2007, HealthBridge asked various departments, including marketing, finance, operations, and construction and development, to evaluate their staffing needs in a “company-wide effort to reduce costs and streamline personnel.” (Def.'s 56.1 Stmnt ¶¶ 17, 19; Pl.'s Resp. ¶¶ 17, 19). According to defendant, Ms. Leja, Vice President of Marketing for New England, was asked to identify an employee from her department to be included in the reduction in force, and she identified plaintiff as a candidate for termination. (Def.'s 56.1 Stmnt ¶¶ 17, 18). Plaintiff contends that Ms. Leja originally did not provide any recommended names for layoff, but when pressed by Seth Gribetz, Chief Operating Officer of HealthBridge, she suggested that plaintiff be laid off. (Pl.'s Resp. ¶¶ 17, 18). According to defendant, plaintiff was selected for the layoff due to his lack of clinical skills, and the inefficiencies that resulted due to the need to have Ms. Perdito conduct plaintiff's evaluations. (Def's 56.1 Stmnt ¶¶ 21, 22, 24, 26).

Plaintiff concedes that other departments were asked to evaluate their personnel in connection with the reduction in force (Pl.'s Resp. ¶ 9; see also Def.'s 56.1 Stmnt ¶ 19), but denies that he was laid off “due to his lack of a clinical license[ ] and qualifications in regards to the screening of potential patients....” (Pl.'s Resp, ¶¶ 21, 22; Def.'s 56.1 Stmnt ¶¶ 21, 22). Plaintiff argues that HealthBridge's stated reasons for discharging him are pretextual. Plaintiff contends that he was laid off “because of his disabilities, because of the perception that his disabilities might cause additional absences, because he had exercised his right to a 12–week medical leave, and because of his age.” (Compl. ¶ 14). Plaintiff contends that he always received excellent evaluations and brought in a greater percentage of patients during the years 2003, 2004, and 2007. (Pl.'s Opp.⁵ at 4; Ex. F at 61). He further contends that the lack of clinical licenses and qualifications is “a pretextual reason created after the lawsuit was filed.” ( Id. ¶ 22). Plaintiff further contends that despite his lack of a medical degree, he was “the top performer in the New York Sales Group.” ( Id. ¶ 24). Although defendant claims that Health Bridge eliminated employees under the age of 40 and continued to employ Directors of Marketing over the age of 50 (Def.'s 56.1 Stmnt ¶¶ 35, 36), plaintiff notes that actually only one Director was over 50; indeed, according to the records, a “very large percentage of those laid off were over 50 years of age.” ( Id. ¶¶ 22, 37).

On August 15, 2007, Ms. Leja and Lisa Crutchfield, Vice President of Human Resources, advised plaintiff of the reduction in force, and sent him a Separation Agreement and General Release. (Def.'s 56.1 Stmnt ¶¶ 27, 28; Pl.'s Resp. ¶¶ 27, 28). According to defendant, on August 18, 2007, plaintiff acknowledged reading the Separation Agreement, but demanded more severance pay. (Def.'s 56.1 Stmnt ¶ 29). Plaintiff denies that he read the entire Separation Agreement. (Pl.'s Resp. ¶ 29).

Following the elimination of plaintiff's position, Ms. Leja initially supervised the New York liaisons until that responsibility was taken over by Lynne Fenuccio, a Registered Nurse and Regional Director of Neurorehabilitation Services. (Def.'s 56.1 Stmnt ¶ 30; Pl.'s Resp. ¶ 30). Ms. Perdito undertook the responsibility of marketing in plaintiff's former territories. (Def.'s 56.1 Stmnt ¶ 32; Pl.'s Resp. ¶ 32).

With respect to plaintiff's diabetic condition, it is undisputed that plaintiff was required to test his blood on occasion, but defendant claims that plaintiff never requested an accommodation and never missed time from work due to the condition. (Def.'s 56.1 Stmnt ¶¶ 41, 42; Pl.'s Resp. ¶¶ 41, 42). On August 15, 2006, plaintiff told Ms. Leja that he was going on vacation, but that they needed to schedule his annual review when he returned. (Def.'s 56–1 Stmnt ¶¶ 46, 42; Pl.'s Resp. ¶ 46). Although the review was scheduled for September 15, 2006, Ms. Leja had to cancel; thereafter, on September 13, 2006, plaintiff notified defendant that he was going to need heart surgery and requested leave, which was granted beginning on September 19, 2006. (Def.'s 56.1 Stmnt ¶¶ 46–49; Pl.'s Resp. ¶¶ 46–49). On November 20, 2006, plaintiff returned to work in the same position with no change in duties or salary. (Def.'s 56.1 Stmnt ¶ 50; Pl.'s Resp. ¶ 50). However, as plaintiff notes, he never received his evaluation, nor did he receive a pay increase as a result. (Pl.'s Resp. ¶ 50). Defendant contends that plaintiff never told anyone that he felt he was not getting his evaluation because of his health condition. (Def.'s 56.1 Stmnt ¶¶ 43, 45; Pl.'s Resp. ¶¶ 43, 45).

In this action, plaintiff alleges that he was discriminated against because of his age and terminated because he was over 50 years of age, in violation of the ADEA. He also claims that he is diabetic and was discriminated against based on his disabilities, which caused HealthBridge to believe that he might require additional absences.⁶ The Court notes that while plaintiff initially brought claims under the ADA, the NYCHRL, and the MFEA, plaintiff has since abandoned those claims.⁷ Therefore, the Court addresses only plaintiff's remaining claims, under the ADEA, the FMLA, and the NYSHRL.

DISCUSSION

I. Summary Judgment Standards

It is well-settled that a party moving for summary judgment has the burden of...