Roge v. NYP Holdings Inc.

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7773
• Citation: 257 F.3d 164
• Parties: (2nd Cir. 2001) ROBERT ROGE, Plaintiff-Appellant, v. NYP HOLDINGS, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 164

257 F.3d 164 (2nd Cir. 2001)

ROBERT ROGE, Plaintiff-Appellant, v. NYP HOLDINGS, INC., Defendant-Appellee.

Docket No. 00-7773

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 11, 2001

Decided: July 16, 2001

Appeal from a grant of summary judgment dismissing a complaint in the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge). Appellant claims that he was terminated from employment due to his age. He argues that the district court failed to consider evidence of pretext and that material facts are in dispute. We disagree and affirm.

LESLIE H. BEN-ZVI, Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP (Alan Serrins and Joseph A. Turco, of counsel), New York, New York, for Plaintiff-Appellant.

CLIFFORD THAU, Squadron, Ellenoff, Plesent & Sheinfeld, LLP (J. Jordan Lippner and Laura Davidson, of counsel), New York, New York, for Defendant-Appellee.

Before: VAN GRAAFEILAND, WINTER, and CALABRESI, Circuit Judges.

WINTER, Circuit Judge:

Robert Roge appeals from Judge Hellerstein's grant of summary judgment and dismissal of his complaint. Roge claims that his employer, NYP Holdings, Inc. (usually "Post"), owner of the New York Post, terminated him because of his age. On appeal, he argues that the district court failed to consider evidence of pretext and that other material issues of fact remain in dispute. However, it is undisputed that Roge's position was eliminated in the course of a cost-saving restructuring. Further, the circumstances surrounding his claims for disability benefits provided a legitimate, nondiscriminatory reason to select him for termination. We therefore affirm.

BACKGROUND

This being an appeal from a grant of summary judgment, we view the deposition testimony, affidavits, and documentary evidence in the light most favorable to appellant. See Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996).

Roge began working at the Post in 1952, as a newspaper carrier boy. He held various positions at the paper over the next forty-five years until his termination at the age of fifty-six. The Post was in bankruptcy when it was acquired by appellee NYP Holdings in 1993. After the acquisition, appellee implemented a cost-saving restructuring that resulted in a reduction in force. Roge was at that time the paper's Suburban and Country Circulation Manager. As part of the restructuring, Roge was transferred in 1994 to the position of Night Circulation Manager, which entailed reduced responsibility. The Post's Vice President of Circulation and Labor Relations, John Amann, testified that the transfer was effected because Amann believed that Roge lacked initiative. As a result of the transfer, Amann also reduced Roge's car allowance from $600 a month to $200 a month, because Roge's new position did not require him to use a car for business purposes. Amann stated that he did not eliminate the allowance altogether because Roge had been a long-term employee and was accustomed to receiving it. The employee who assumed Roge's former position of Suburban and Country Circulation Manager was fifty years old -- four years younger than Roge at the time.

Roge also claims that four or five negative remarks related to his age were made by three Post employees, including Amann, in 1994 and 1995, more than eighteen months before his termination. Although the employees deny making such remarks, we must assume that they were made.

In 1996, the Post launched its first Sunday edition. As a consequence, shifts had to be rescheduled to have Circulation Managers on hand to staff that edition. Because of hip replacement surgery, Roge was not working when the Sunday edition was first launched. When he returned to work on May 21, 1996, he was told that he now would have to work Saturday nights. Roge reacted badly to this information and asked his superiors whether they were "forcing [him] to quit." He was understood by some at the Post to say that he would rather resign than work Saturday nights.

The next day, Roge was admitted to the hospital for chest pains. After his release from the hospital in early June but before his return to work, Roge and his wife met with his cardiologist, Dr. Murray Weinstock. According to Dr. Weinstock, Mrs. Roge indicated that Roge's work environment had become exceedingly stressful. At that point, either Mr. or Mrs. Roge -- Dr. Weinstock could not recall which -- "basically asked [him] ... to write a letter that he could not go back to work." As a result, Dr. Weinstock wrote a letter to the Post that stated: "Robert Roge is under my care for coronary artery disease and pulmonary emboli and is no longer able to work." Roge also sent the Post a letter from another doctor, John T. Andronaco, that stated that Roge had degenerative arthritis.

Upon receiving the doctors' letters, the Post sent Roge disability forms. Dr. Weinstock helped Roge fill them out and certified that Roge had "ASHD Angina." Next to the line entitled "Date Patient is able to return to work," Dr. Weinstock wrote, "Not able to return to work." On a second disability form, Dr. Weinstock again wrote "Not able to return to work" and indicated that Roge's disability was total.¹ Roge signed the forms.

After Roge sent the forms to the Post, Eileen Cross, who was in the Human Resources department of a Post sister company, called Roge and explained to him the long-term disability benefits for which he was eligible. According to Cross, Roge was not satisfied with the package and stated that he would return to work. Cross stated that she told Roge that a physician's note would be required before he could return. Roge disputes Cross's account of this conversation.

Also in response to Roge's disability forms, Amann wrote Roge a letter stating that he was sorry that Roge would not be returning to work because of his disability and accepting his resignation. Roge responded that there had been a misunderstanding, that he had no intention of resigning, and that he would be returning to work.

According to Dr. Weinstock, Roge told him that he, Roge, had previously overestimated the available disability benefits and wanted Dr. Weinstock to certify him as able to work. Dr. Weinstock refused. Shortly thereafter, Cross and Dr. Weinstock had a conversation, during which, according to Cross, the doctor told her, "between you and me, Bob Roge is not disabled." At his deposition, Dr. Weinstock did not recall making that statement but did recall telling Cross that Roge could not return to work. Roge thereafter obtained letters from two other cardiologists stating that he could return to work as of July 8, 1996. On July 5, 1996, Dr. Weinstock wrote separate letters to Mr. and Mrs. Roge stating to each that he could no longer be responsible for their medical care. He did this as a result of their having asked him to write a letter claiming disability and then to reverse that position.

Roge's disability claim, quickly followed by a reversal of position, lead Amann to suspect that Roge "had attempted to fraudulently obtain disability benefits, and that plaintiff changed his mind when he discovered" the details of his benefits package.

While Roge was still out on disability, the Post continued its restructuring, which resulted in various jobs being eliminated and consolidated. Roge has not shown a relevant pattern relating to age in those who lost their jobs. Twelve such employees were over forty years of age; eleven were under forty.

Roge's position was one of those eliminated. Some of Roge's duties, such as communicating with wholesalers, were automated. Others were distributed among numerous employees. One employee who was four years older than Roge assumed Roge's duties involving the supervision of employees. Four other employees, then-ages fifty-two, forty-two, forty, and one in his thirties, assumed the remainder of Roge's duties.

When Roge reported for work in late July 1996, he was informed by Amann that his position had been eliminated and that no work was available for him. According to Amann, he believed that Roge had committed disability fraud and that the fraud provided reason for a termination for cause, even if Roge's position had not been eliminated. However, Amann did not want to terminate a long-term employee without providing some benefits. He therefore offered Roge a severance package of one year's salary, based on the elimination of his position. Roge rejected the package, however, and filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). In July 1998, Roge requested and obtained a "Right to Sue" letter from the EEOC, dismissing his charge. He then filed the present action.

At the conclusion of discovery, the Post moved for summary judgment, which the district court granted. See Roge v. New York Post Holdings, No. 98 Civ. 5248 (S.D.N.Y. May 9, 2000) (summary order). The court stated that although Roge had made out a prima facie case of age discrimination, the Post had established that there were non-discriminatory bases for his termination. The court ruled that the Post's suspicions about the veracity of Roge's disability claims as well as its elimination of Roge's job position as a result of the restructuring provided legitimate reasons for its employment decision. Further, the court found no evidence of pretext and no material issues of fact in dispute. This appeal followed.

DISCUSSION

We review the district court's grant of summary judgement de novo. See Bedoya, 91 F.3d at 351. Summary judgment is appropriate only "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); see also Reeves v. Sanderson Plumbing...