Slattery v. Swiss Reinsurance America Corp.

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7787,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT
• Citation: 248 F.3d 87
• Parties: (2nd Cir. 2001) EUGENE W. SLATTERY,, v. SWISS REINSURANCE AMERICA CORP.,
• Court: U.S. Court of Appeals — Second Circuit

Page 87

248 F.3d 87 (2nd Cir. 2001)

EUGENE W. SLATTERY, PLAINTIFF-APPELLANT, v. SWISS REINSURANCE AMERICA CORP., DEFENDANT-APPELLEE.

Docket No. 00-7787

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 11, 2001

May 3, 2001

Appeal from the district court's grant of summary judgment to defendant on appellant's claims of age discrimination and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the New York State Human Rights Law. We affirm.

Patrick W. Mcginley, Finder & Cuomo, LLP, New York, NY, for appellant.

Francis P. Alvarez, Jackson, Lewis, Schnitzler & Krupman, Stamford, Ct, for appellee.

Before: Van Graafeiland, Winter, Calabresi, Circuit Judges.

Calabresi, Circuit Judge

Eugene Slattery ("Slattery") appeals from the district court's (Brieant, J.) grant of summary judgment to Swiss Reinsurance America Corp. ("Swiss Re") on his claims of age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law ("NYSHRL"). Specifically, he contends that defendant violated the ADEA when it terminated him on February 1, 2000. We affirm.

BACKGROUND

In 1993, Swiss Re hired Slattery, then 46, as an Account Executive/Assistant Vice President in the New York Office's Regional Treaty Marketing Department. In March 1996, Swiss Re's Swiss parent company, under the leadership of its new chairman, Walter Kielholz, reorganized the company. One month later, as part of that reorganization, Maria Wilcox (age 42) promoted Slattery (age 49) to Business Development Manager ("BDM") in the Business Development Unit for the Northeast Region ("Northeast BDU"). At that time, Wilcox reported to Darrius Baker (age 50), the Executive Vice President of the Regional/Specialty Division.

By February 1997, Wilcox was showing signs of dissatisfaction with Slattery's work. In July 1998, Wilcox and Baker reassigned Slattery from his position as BDM to a position as Senior Account Executive. Slattery's responsibilities were diminished, but his salary remained the same. On July 1, 1999, Slattery was placed on probation. In September 1999, Wilcox was assigned to a new position, and Slattery began reporting to Clay Bassett. Slattery's probation was extended to the end of 1999, and then again to February 1, 2000. On February 1, Bassett terminated Slattery.

Slattery filed a complaint with the Equal Employment Opportunity Commission, received a right to sue letter, and brought this action in federal court. The primary basis for Slattery's case consisted of comments made by his superiors at Swiss Re. Most prominently, Slattery relied on a 1998 interview that Kielholz gave to Information Strategy. This interview was subsequently reported in an article which stated:

Growth and performance are important but not the only marks of success, according to Kielholz. Since taking the helm almost two years ago, Kielholz has been concerned to dispel the perception of Swiss Re as a multinational collection of grey suits and encourage young dynamic staff to join the company. The average age has dropped significantly over the last few years to 39. Kielholz firmly believes that a younger workforce will be more in tune with the knowledge worker spirit. However, Kielholz's most important indice remains IQ. . . . The fact that Kielholz is looking to hire rather than fire staff is testimony to his faith in the knowledge-driven business.

In addition, Slattery pointed to some generalized remarks made by superiors at different times during Slattery's employment that he argues indicate age discrimination. Finally, Slattery offered his personal observations about the post-reorganization comings and goings of other employees of various ages. Swiss Re both disputed the significance of these allegations and presented the district court with an extensive record of its increasing dissatisfaction with Slattery's work.

As to Kielholz's interview, Swiss Re argued that (1) the statement itself does not indicate discrimination because it does not show a causal connection between the change in average age and age discrimination; (2) there is no evidence that Kielholz participated in any of Slattery's job actions; and (3) there is no indication that Wilcox, Baker, or Bassett knew of Kielholz's comments.

Moreover, according to Swiss Re, Slattery's work began to decline in 1997, shortly after his promotion, and this was documented in Slattery's performance evaluations. Thus, in his February 1997 evaluation, Slattery was found to "meet standards" but to need improvement in visiting branch offices and in his commitment to "target dates and deliverables." In February 1998, Slattery again "met standards" but suffered from the same problems as in the previous year. In addition, at about this time, he was told that he needed to improve his new business production. In July 1998, Slattery's position changed from BDM to Senior Account Executive in order to relieve him of management responsibilities and to allow him to focus on producing new business. He produced no new business in 1998, which proved to be Swiss Re's best year, up to that time, for new business production. Slattery's performance review in January 1999 stated that he "partly meets expectations." But it noted problems with the timeliness of Slattery's reports, lack of leadership qualities, and, most critically, his continued inability to generate new business. It was, Swiss Re asserted, due to this failure to generate new business, the tardiness of his reports, the poor quality of those reports, and the weakness of his leadership that Slattery was put on probation in July 1999.

Slattery again produced no new business in 1999, which topped 1998 as Swiss Re's most productive year. And on January 4, 2000, Slattery was told that if he did not produce new business before the end of the month he would be terminated. He failed to produce any new business by the deadline, and Bassett terminated him.

In response to Swiss Re's offer of a legitimate business reason for his termination, Slattery produced evidence of pretext. The main alleged reason for which Slattery was fired was his failure to produce new business in 1998, 1999, and the beginning of 2000. Slattery claimed, however, that in 1996 and 1997 he produced more business than anyone else in his unit. Moreover, he contended that no one in his unit produced new business during the relevant time period, and yet he was the only one fired. He also argued that the same evidence that made up his prima facie case of discrimination also served to demonstrate pretext.

In addition, Slattery claimed that Swiss Re had retaliated against him for lodging a complaint with the EEOC. Swiss Re replied that the adverse employment actions occurred too long after the lodging of the complaint to raise an inference of discrimination: the probation having occurred eight months after Slattery filed his complaint with the EEOC, and the termination some seven months after that. And Swiss Re also pointed out that Slattery was fired after "an extensive period of progressive discipline" that began before Slattery lodged his complaint. During this time, "Swiss Re changed his supervisor, twice extended his probation and gave him a final chance to find one well-qualified prospect."

Defendant moved for summary judgment. According to the district court, to make out a prima facie case, Slattery had to show "(1) that he belongs to a protected class, (2) that he was performing his duties satisfactorily, (3) that he was discharged, and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). The court found (1) that Slattery had not demonstrated that he was "satisfactorily" performing his duties, and (2) that there was no nexus between Kielhoz's reported remarks in the 1998 interview and Slattery's probation or discharge. This was because Kielholz was not involved in any of Slattery's personnel decisions and the court saw no indication that those who did make such decisions knew of, or acted upon, Kielholz's statements.

The court went on to conclude that even if Slattery had established a prima facie case, Swiss Re had provided a legitimate, non-discriminatory reason for Slattery's discharge: its dissatisfaction with his work. "Neither this court nor a jury may determine[] on these facts that a requirement for a new business representative to produce at least some new business over a two year period is unreasonable and therefore must be pretextual." Having thus determined that Slattery had failed to demonstrate pretext, the court granted the defendant's motion for summary judgment on the issue of age discrimination.

The district court also granted summary judgment to Swiss Re on Slattery's retaliation claim. Although the court found that Slattery had engaged in protected activity, that Swiss Re knew about it, and that Slattery was placed on probation and fired, it concluded that there was no causal connection between the activity and the adverse employment actions.

Slattery appeals the grant of summary judgment for Swiss Re. We affirm, but on somewhat different grounds from those given by the district court.¹

DISCUSSION

We review a grant of summary judgment de novo, resolving all ambiguities and drawing all inferences in favor of the nonmoving party. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 128-29 (2d Cir. 1996). Summary judgment is appropriate when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. See Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997).

Discrimination

In assessing ADEA claims, we apply the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), and its progeny. Under that...