O'Sullivan v. New York Times

• Citation: 37 F.Supp.2d 307
• Decision Date: 16 March 1999
• Docket Number: No. 96 CIV. 6143 LAP.,96 CIV. 6143 LAP.
• Parties: James J. O'SULLIVAN, Enrique Edwards, Lawrence Helfand, Thomas P. Mathews, Maureen A. Moccia, Kenneth J. Mooney, Howard Seiter, Benjamin Redmond, Sheila Mccue, Plaintiffs, v. THE NEW YORK TIMES, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 307

37 F.Supp.2d 307

James J. O'SULLIVAN, Enrique Edwards, Lawrence Helfand, Thomas P. Mathews, Maureen A. Moccia, Kenneth J. Mooney, Howard Seiter, Benjamin Redmond, Sheila Mccue, Plaintiffs, v. THE NEW YORK TIMES, Defendant.

No. 96 CIV. 6143 LAP.

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

March 16, 1999.

MEMORANDUM and ORDER

PRESKA, District Judge.

Plaintiffs James J. O'Sullivan, Enrique Edwards, Lawrence Helfand, Thomas P. Mathews, Maureen A. Moccia, Kenneth J. Mooney, Howard Seiter, Benjamin S. Redmond and Sheila M. Mccue (collectively, "plaintiffs") bring this claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq., the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., the Pennsylvania Human Relations Act, and the Connecticut Human Rights and Opportunities Law against defendant, The New York Times ("The Times" or "defendant"), alleging that on the basis of their age they were terminated from their positions in a reduction-in-force caused by the reorganization of the Circulation Department at The Times. Defendant now moves for summary judgment.

In reviewing (1) the details of the elaborate procedures whereby employees were evaluated during this reorganization and those who were to be terminated were chosen, and (2) plaintiffs' objections to those procedures and decisions, I note the Court's summary of certain applicable law in Coleman v. Prudential Relocation, 975 F.Supp. 234, 239 (N.D.N.Y.1997):

The laws prohibiting discrimination in employment were "not intended to transform the courts into personnel managers." The Second Circuit has reminded district courts that they do not have a "roving commission to review business judgments," and that they "must refrain from intruding into an employer's policy apparatus or second-guessing a business's decision-making process."

Id. at 239-40 (citations omitted). Plaintiffs' objections to the decisions made by The Times amount to a difference of opinion as to (1) the procedure by which the decisions to terminate employees should have been made and (2) which employees should have been terminated.

Absent a legally cognizable civil rights violation, the running of the affairs of a business entity is for management, not for disappointed employees or their counsel. A simple disagreement over what constitutes good management is not a fair fight; management will always win. Moreover, it is not available to this Court to substitute its ideas of how to run a business for those of the managers duly vested with that responsibility, except where the basis for a management decision is shown to be an unlawful one. Because plaintiffs have not proffered any evidence from which a jury could find such an unlawful basis, defendant's motion is granted.¹

BACKGROUND

In October 1987, The Times began to experience a financial slide caused by decreasing advertising revenue. (Def. 56.1 Statement ¶ 4).² The recession of the early 1990's had a negative impact on the revenues, earnings and profitability of The Times. (Id. ¶ 5). In June 1994, The Times offered a voluntary buyout program for all employees in the Newspaper Division. (Id. ¶ 6). Following this buyout program, a new department was created called Customer Order Fulfillment ("COF"). (Id. ¶ 7). This new department resulted in the elimination of approximately 40 positions, the then-current holders of which were subsequently offered a transition package consisting of job counseling, career counseling, financial counseling, outplacement services and an extension of tuition assistance program eligibility. (Id. ¶¶ 8, 9).

In May 1995, the Circulation Department ("Circulation") had a total of 128 employees. (Id. ¶ 10). The Times determined that Circulation needed to be reorganized to decrease operating cost and staff. (Id. ¶¶ 11, 12). On May 19, 1995, William Pollak ("Pollak"), the Executive Vice President of Circulation, told Circulation employees that a decision had been made to reduce the staff. The reorganization would result in the elimination of 25 to 30 positions. (Id. ¶¶ 13, 14). Pollak asked Donna Miele ("Miele"), Vice President of Human Resources, to create a process to reduce the Circulation staff by means of a voluntary buyout (the "Buyout") similar to that which had been created for the COF. (Lauri Aff., Ex. D, p. 40). First, each employee in Circulation would be given an opportunity to fill out a qualification survey and meet with a human resources representative who would explain the survey that the employee had to fill out. Second, each employee's direct manager would be asked a series of questions and complete a performance review on each employee. Third, the vice-presidents would make the final termination decisions. (Id. at pp. 40-41). This process was developed to help select Circulation employees for lay-off in the event that 25 to 30 employees did not accept the Buyout. (Def. 56.1 Statement ¶¶ 16, 17). The Circulation employees were informed that the reduction of 25 to 30 employees would be accomplished by (1) eliminating ten to fifteen Home Delivery Managers who were supervising two to three employees each; (2) eliminating ten to fifteen Circulation Sales Representatives ("CSRs")³; and (3) reducing support staff by between five and ten positions. (Id. ¶ 22).

On June 20, 1995, each employee was sent a self-evaluation form regarding his/her abilities and performance at The Times. Employees were offered a training session to assist them in filling out the survey and were also given an opportunity to discuss the survey one-on-one with a Human Resources representative. (Id. ¶¶ 24-27). The survey graded each employee on a scale of 1 to 5: "5" for work which exceeded requirements; "3" for work which met requirements; and "1" for work which did not meet requirements. (Id. ¶ 30). Each employee's supervisor was required to meet with a Human Resources representative who in turn completed a Supervisory Reference Form from each of the supervisor's reports. (Lauri Aff., Ex. D, pp. 41-42). This combined information was reviewed at a two-day meeting held on July 24 and 25, 1995 by the four vice-presidents in Circulation — Harry Woldt, Jr. ("Woldt"), Charles Shelton ("Shelton"), Lauretta Prestera ("Prestera") and Pollak (collectively, the "Decisionmakers"), who were 47, 38, 47, and 49 years old, respectively. (Def. 56.1 Statement ¶¶ 33, 34).

The number of employees in Circulation was reduced in four ways: (1) several management and support positions were eliminated outright; (2) the number of Home Delivery Managers was reduced as territories were both consolidated and closed; (3) the nature of the CSR position was changed from selling to small distributors to establishing partnerships with regional papers for third party deliveries and selling to national chains; and (4) the night CSR position was eliminated completely. (Id. ¶ 36). Following the July 24-25 meeting, 29 employees in Circulation were identified for termination. (Id. ¶ 37). These employees were permitted to accept the Buyout up to August 11, 1995. (Id. ¶ 38). Plaintiffs were all employed by The Times in Circulation and were terminated from their positions in that Department in August 1995. (Compl.¶¶ 11-18).

Lawrence Helfand ("Helfand") began his employment with The Times in 1960 and was 53 years old when he was terminated. (Pl. Material Facts ¶¶ 1-2). Throughout his course of employment, Helfand received promotions to Assistant Director of the Home Delivery Department, Northeast Manager for Circulation, Transportation Manager, and finally to Home Delivery Manager for Southern New Jersey. (Id. § 57 4-7). Shelton, his direct supervisor, stated he "[didn't] recall anything outstanding or negative" about Mr. Helfand's performance. (Id. ¶ 9; Schneider Aff., Ex. C, pp. 23). Lauretta Prestera had personal knowledge of Helfand's performance, and the decision to terminate him was based on the evaluations presented at the meeting in July 1995. (Pl. Material Facts ¶ 10). Helfand received a rating of "3" on the Supervisory Reference Form. (Def. 56.1 Statement ¶ 58). Due to the reorganization plan, the Northern and Southern New Jersey territories were combined into one territory, and Susan Mills was chosen to manage this combined territory. Mills was 39 years old and received a "5" on her Supervisory Reference Form. (Id. ¶¶ 58-62).

Thomas Mathews ("Mathews") began working at The Times in 1983 as a newspaper carrier supervisor. (Pl. Material Facts ¶ 12). Upon termination he was 52 years old and held the position of National Northeast Home Delivery Group Manager, responsible for home delivery throughout the country except for the New York City Metropolitan area. (Id. ¶¶ 11, 17). Mathews alleges that he was never told anything was wrong with his performance and he never received negative criticism. (Id. ¶ 21). Prestera indirectly supervised Mathews when he served as the Northeast National Group Manager, and John Daly directly supervised him. (Id. ¶ 25). In the months prior to the downsizing in July 1995, at a meeting to change management, O'Sullivan alleges that when Mathews began to speak, Eric Rosen, a 39-year old National Sales Manager stated, "I guess he forgot to take his senility pills today." (Schneider Aff., Ex. J, pp. 108-109). Mathews, however, did not attribute any age-based comments to the Decisionmakers. (Lauri Aff., Ex. K, pp. 221-222). Prior to the July meeting, Mathews was asked to write evaluations of the seven employees who reported to him in addition to other individuals. Mathews alleges he was never told for what purpose these evaluations would be used. (Pl. Material Facts ¶¶ 31-33). Mathews received a "3" on his Supervisory Reference Form. (Def. 56.1 Statement ¶ 67). His position was reorganized, and the responsibilities were expanded and changed. (Id. ¶ 68). The Decisionmakers did not feel that Mathews possessed the...