Ciulla v Xerox Corp.

[*1] Ciulla v Xerox Corp. 2021 NY Slip Op 50007(U) Decided on January 5, 2021 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2021
Supreme Court, New York County

Antonino Ciulla, Plaintiff,

against

Xerox Corporation, Defendant.



159667/2015



Plaintiff:

Forchelli Deegan Terrana LLP

333 Earle Ovington Blvd Ste 1010, Uniondale, NY 11553

By: Michael Andrew Berger, Esq.

Defendant:

Littler Mendelson, P.C.

290 Broadhollow Road, Melville, NY 11747

By: Amy L. Ventry, Esq. and Paul Richard Piccigallo, Esq.
Robert R. Reed, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 118, 119

were read on this motion for

SUMMARY JUDGMENT(AFTER JOINDER.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 114, 115, 120, 121, 122, 123

were read on this motion forJUDGMENT - SUMMARY.

ROBERT R. REED, J.:

This action arises out of plaintiff Antonino Ciulla's claims that his employer, defendant Xerox Corporation (Xerox) discriminated against plaintiff, by wrongfully terminating him as a result of his age and disability, in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). In motion sequence 001, Xerox moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. In motion sequence 002, plaintiff moves, pursuant to CPLR 3212, for summary judgment dismissing Xerox's four counterclaims. Motion sequence numbers 001 and 002 are hereby consolidated for disposition. As set forth below, Xerox is granted summary judgment dismissing the complaint and plaintiff is granted summary judgment dismissing all counterclaims except the counterclaim alleging unjust enrichment.

BACKGROUND AND FACTUAL ALLEGATIONS

Plaintiff initially commenced his employment with Xerox in 1996 as a sales executive. Although he left in 2005 to pursue other career opportunities, he was rehired in 2007. At the time of his rehire, plaintiff was 42 years old. As will be discussed in more detail below, in August 2012, plaintiff, along with Lou Fasano (Fasano), another Xerox employee, entered into negotiations with Daughters of Jacob Nursing Home (DOJ Nursing Home), a potential client. The complaint states that, as part of the negotiations, DOJ Nursing [*2]Home requested a 30-day opt-out clause, among other things. Plaintiff and Fasano sent the requests to Xerox's legal team. After receiving responses from the legal department, which "included the express rejection of [DOJ Nursing Home's] request for an opt-out clause," both parties ultimately signed the contract on August 27, 2012. NYSCEF Doc. No. 1, Complaint, ¶ 21.

In May 2013, plaintiff was approved for, and went out on, a non-work-related disability leave due to an injured back. When plaintiff returned to work on October 30, 2013, he was questioned regarding the DOJ Nursing Home's contract with Xerox as it pertained to the opt-out clause. He advised Xerox that he did not agree to an opt-out clause, as he knew it would be in clear violation of Xerox's policies. "Plaintiff stated [to Xerox] that the supposed 'side letter' was instead an executive summary letter, which detailed the negotiations." Id., ¶ 26. Nonetheless, Xerox "dismissed Plaintiff's justification and suspended Plaintiff with pay." Id., ¶ 28. After performing an investigation, Xerox found that plaintiff had violated Xerox's code of ethics.

Plaintiff was terminated on November 8, 2013. Although he was advised that it was due to violating Xerox's policies, plaintiff believes that the reasons provided for his termination were pretextual. After plaintiff was terminated, he filed the instant complaint, alleging four causes of action grounded in discrimination. In the first and fourth causes of action, plaintiff alleges that, in violation of the NYCHRL and the NYSHRL, Xerox intentionally discriminated against plaintiff by terminating him on account of his age, rather than for a legitimate reason. According to plaintiff, up until the DOJ Nursing home incident, he had never been disciplined or criticized for his work performance. In addition, Xerox "suspiciously failed to provide Plaintiff with the results of the investigation even though he requested them." Id., ¶ 32. Plaintiff also claims that he was replaced by a younger employee, that he was one of only two members on his team over the age of 40 and that Christine Worth (Worth)[FN1] , his manager, was also younger and less experienced than he was.

In the second and third causes of action, plaintiff alleges that Xerox violated the NYCHRL and the NYSHRL by wrongfully terminating him on the basis of his disability, rather than for a legitimate reason. According to plaintiff, his "medical condition" constitutes a disability. Further, plaintiff alleges, during his disability leave, "Xerox contacted and harassed Plaintiff every month to inquire whether he was ready to return to work, despite its knowledge that Plaintiff was granted and entitled to five months of medical leave." Id., ¶ 23.

Xerox's Motion for Summary Judgment (motion sequence 001)

DOJ Nursing Home Lease Agreement and Side Letter

The record indicates that plaintiff and Fasano sent DOJ Nursing Home a proposal on July 12, 2012. This proposal provided general information about the types of copiers/printers and their capabilities. There was no financial or contract language included. In August 2012, plaintiff entered into a "Pool Plan Agreement" and a "Lease Agreement" with DOJ Nursing Home. Xerox's standard five-year equipment leasing terms were incorporated into the Lease Agreement. NYSCEF Doc. No. 66. During negotiations, DOJ Nursing Home had requested some additional terms to the Lease Agreement. One of the requests included terminating the contract upon 30 days' written notice, provided DOJ Nursing Home returned the equipment at [*3]its expense and paid all sums up to the date of termination. Another request was to state that, in the event the addendum conflicts with the terms in the Lease Agreement, the addendum should be controlling. Pursuant to Xerox's policies, plaintiff sent the requests to Xerox's legal department. See NYSCEF Doc. No. 68. The legal department issued a two-page addendum that was attached to the initial Lease Agreement. NYSCEF Doc. No. 50. Plaintiff subsequently attached another two pages to the addendum. The first two pages are those approved by the legal department, and the other two pages consist of a letter dated August 10, 2012. At the bottom of the addendum are the handwritten page numbers of page 1 out of 4, page 2 out of 4, page 3 out of 4 and page 4 out of 4. All pages were initialed by DOJ Nursing Home and plaintiff or Fasano. The August 10, 2012 letter stated the following in relevant part:

"As a follow-up to our conversation regarding the Addendum . . . most of the items that were presented in that addendum were addressed in the original proposal.

With that being said, as you suggested this morning, we can in essence, eliminate the addendum in total and assure you with this letter that some of the other more crucial items are in fact SOP and are covered in the Xerox Order Agreement (XOA).

Therefore, even if the addendum were to be used, Item No.1 in the Addendum is not needed since the other items are already covered in the Xerox Order Agreement."

Id. at 3.

Item number four stated the following:

"So long as Lessee is performing the terms and conditions of the Lease, the Lessor may not terminate the Lease before the end of the terms. The Lessee may terminate the Lease for its own business reasons prior to the end of the terms on thirty days written notice provided the Lessee at its expense return the equipment, and provided the Lessee pays all sums due up to the date of termination."

Id. at 4.

Underneath item number four, plaintiff wrote, "[t]his must be eliminated in total." Id.

Plaintiff's termination

The relevant facts of the circumstances leading up to plaintiff's termination, and plaintiff's opposition, are as follows:

Due to a restructuring within Xerox, on January 1, 2013, plaintiff was transferred from the Melville, New York location to Xerox's New York City location. Once in New York City, plaintiff reported to Worth, who had recently been promoted to sales manager. Worth managed ten sales service executives (SSEs), who were responsible for "cultivating new business and servicing existing Xerox clients within this territory." NYSCEF Doc. No. 46, Worth aff, ¶ 4. She explained that, rather than buying copiers outright, most Xerox customers acquire the equipment through standard boilerplate lease agreements.

Worth states that every SSE is required to participate in annual "Code of Business Conduct" training. As part of the training, SSEs are informed that "side letter agreements" are expressly prohibited and that entering into one could lead to termination. The Code of Business Conduct states the following, in pertinent part:

"Side letters are strictly prohibited and are considered a violation of our business ethics and zero tolerance policy for which severe repercussions, including termination are possible. [*4]Passive acceptance or knowledge of such letters will likewise be considered a violation of this policy. Side letters refers to any agreement or correspondence between a Xerox representative and a customer, supplier or partner, which modifies or amends any of the terms and conditions specified in the original contract, agreement or purchase order and are prepared outside or apart from an Operating Unit's standard process and procedures for contract/order amendment, which must include sending it immediately to the Operating Unit's accounting and financial control organization. . . .

***

"Side letters are strictly prohibited. Contact Corporate Accounting or the Ethics Office if you think you see evidence of an existing or potential side letter situation."

NYSCEF Doc. No. 47 at P244.

Xerox's "USCO & NAOO Business Policy" (BP-0900 Policy), which plaintiff received periodic training on, also had a separate section entitled "Customer Understanding/Side Letters." It also set forth the professional responsibility for SSEs, including the following:

"All commitments that are made to a customer must be contained in the contract of order that Xerox accepts and ONLY those commitments will be applicable under the contractual arrangement. Contractually binding commitments cannot be made to customers in separate communications, letters of intent, letters of understanding, sales proposals or similar vehicles.

All such communications should be clearly identified as sales communications and that any commitment between Xerox and the customer will be properly included in a duly executed contract.

The following statement should be included in any such letter of clarification Intent, understanding or a proposal where the customer may think that the communication constitutes a binding offer:

'The Information Included In this document is intended as a clarification or communication of our understanding and is not a binding commitment. All agreements that are contractually binding will be included in our duty executed Contract.'

"It is important to note that 'side letters' (any type of document provided to a Customer of a contract that serves to alter the detail, spirit or Intent of a contract) are strictly against Xero policy (see BP 1001) and their use will carry serious consequences."

NYSCEF Doc. No. 104 at 3. Worth adds that only Xerox's "Office of General Counsel" (OGC) "may approve the modifications requested, may propose a counter to the requested revision, or may reject the customer request outright." Worth aff, ¶ 7.

Pursuant to a letter dated September 30, 2013, DOJ Nursing Home advised Xerox that it was giving Xerox its 30-day notice to cancel its account. This letter was written to plaintiff and to Elizabeth Coons (Coons), the SSE covering plaintiff's account while he was out on disability leave. Coons notified Worth. As Worth "knew that Xerox's standard lease agreements do not include cancellation clauses," Worth asked Xerox's controller how to handle the situation. The controller advised Worth to gather the relevant documents and submit them to the legal department. When Worth gathered the relevant documents, she "discovered that there were an additional two pages that had been added to the original, approved, lease addendum, signed by Plaintiff (and Lou Fasano) on Xerox letterhead." Id., ¶ 11. The two additional pages were [*5]comprised of a letter, dated August 10, 2012.

On October 17, 2013, Worth contacted the human resources department and asked it "to conduct an investigation into whether the August 10th letter constituted a side letter agreement in violation of the Code of Business Conduct and BP-0900 Policy." Id., ¶ 12. Although the lease agreement was for five years, Xerox made the business decision permitting DOJ Nursing Home to cancel the lease after a little over one year. "As a result of that decision, Xerox lost leasing revenues in the approximate amount of $45,000." Id., ¶ 14.

Xerox notes that, although the cancelation was requested while plaintiff was out on leave, it "did not generally permit contact with employees on disability leave . . .." NYSCEF Doc. No. 54, Xerox's memorandum of law at 10. As a result, when plaintiff returned to work after his disability leave a few weeks later, he was interviewed about the incident. Karen King (King), human resources manager, conducted an investigation. As part of the investigation, she reviewed the various documents associated with the DOJ Nursing Home account. King interviewed plaintiff concerning the addendum and the language in the side letter of the Jacobs Nursing Home account, summarizing plaintiff's responses as follows:

"He worked with someone from Contracts on the addendum which was reviewed by legal.

He didn't remember if anyone from legal saw the side letter before it was presented to the customer; He may have worked with Lou (Louis Fasano).

He created the letter and did a cut and paste on some of the responses. The letter was intended to be a summary of his conversation with the customer;

Ciulla stated was acting on what the customer wanted included in order to do business with Xerox and he didn't mean for the language to imply that the customer could disregard the addendum.

Ciulla acknowledged his understanding of the Code of Business Conduct Guidelines and the Business Policy regarding his role and responsibility as a selling employee regarding side letters; However, in this case he was going on what the customer wanted to see.

Ciulla stated that never in his 15 years has he done something like this; Stating this was a one-off thing."

NYSCEF Doc. No. 52 at 2.

Xerox's legal department advised King that it had not assisted with the side letter and that it was not an approved legal document. As a result of her investigation, King concluded that plaintiff had violated Xerox's code of conduct when he "knowingly crafted the side letter which clearly altered the details of the contract addendum." NYSCEF Doc. No. 52 at 4. Although plaintiff conceded that he "authored the side letter, he did not admit to the violation of the policy." Id. King recommended terminating plaintiff for this misconduct, and concluded with the following, in pertinent part:

"The investigation findings substantiate that employee's actions of presenting customer side letter violated Xerox Code of Business Conduct and Business Policy 900. The Business [*6]Policy specifically states that 'side letters' (any type of document provided to a Customer outside of a contract that serves to alter the detail, spirit or intent of a contract) are strictly against Xerox Policy. Based on the facts and evidence collected during the investigation the recommended disciplinary action is Termination of employment."

Id. at 5.

King and Worth notified plaintiff on November 8, 2013 that he was "terminated for entering into a side letter agreement in violation of Xerox's Code of Business Conduct and BP-0900 Policy." Worth aff, ¶ 20. Worth states that, although she "spoke to Mr. Fasano's manager regarding Mr. Fasano's involvement in the matter [,] . . . since [she] was Plaintiff's direct supervisor, [she] was primarily concerned with Plaintiff's involvement in the matter." Id., ¶ 13.

Worth states that plaintiff was terminated for violating policy, not due to his age or alleged disability. Worth further states that plaintiff was not replaced by a younger employee. When plaintiff was terminated, she hired a "bench" of three new employees, who would cover three territories in the area Worth managed. At the time of hire, the employees were 43, 50 and 56 years old.

Worth also states that she was "unaware of what medical condition caused Plaintiff's disability leave." Id., ¶ 8. Further, she "never made any discriminatory comments to Plaintiff due to his age, alleged disability, or membership in any protected class." Id., ¶ 21.

Plaintiff's Additional Relevant Testimony

Plaintiff testified that the side letter was not a legal document and that it was "just an explanation of what Xerox agreed to and did not agree to." NYSCEF Doc. No. 35, plaintiff's tr at 174. DOJ Nursing Home asked plaintiff to initial it and he did so. Plaintiff did not think it was improper when DOJ Nursing Home wrote the page numbers on the bottom of both the approved addendum and the side letter. He explained that "one is a legal document that's executable and binding and the other is not. It is an informational letter." Id. at 178.

According to plaintiff, his disability played a role in his termination because "[t]he culture within the corporation is usually to shun on that. You obviously have a 'disability' now, so you are a liability. You are perceived as someone who may not be able to work full time anymore, may have to take extra time off." Id. at 225. He testified that no one at Xerox said any of those comments to him.

In light of above, Xerox moves for summary judgment, alleging that neither age nor disability was a factor in plaintiff's termination. It maintains that plaintiff was fired for violating company policies by executing an unauthorized side letter agreement. Xerox alleges that, even at the outset, plaintiff cannot set forth a prima facie age or disability discrimination claim as he has not produced any direct or circumstantial evidence that defendants terminated him, even in part, due to his age or disability. Among other things, Xerox maintains that plaintiff cannot identify any comments to support his age discrimination claim and that he was not replaced by a younger employee.

Specifically, with respect to disability, as plaintiff was cleared to return to work following a short-term disability leave, Xerox contends that plaintiff fails to allege that he was disabled or perceived to be disabled at the time of his termination. In addition, plaintiff could not identify any comments made about his disability. According to Xerox, plaintiff fails to support his "belief" that Xerox discriminated against disabled employees. Xerox also notes [*7]that while employees are out on disability leave, their sales quotas are adjusted or suspended.

Xerox argues that, even if plaintiff is able to establish a prima facie case of age or disability discrimination, plaintiff was terminated for violating Xerox's business policy, which is a legitimate and nondiscriminatory reason for his termination. It continues that plaintiff is unable to demonstrate pretext. First, even if plaintiff disagrees with the outcome of the investigation, there is no evidence that Xerox's reasons for his termination are false or a pretext for discrimination. Further, although plaintiff believes that Fasano was treated differently under the circumstances, Xerox maintains that Fasano, who was 70 years old when he retired, notified Xerox of his intent to retire on July 21, 2013, effective October 31, 2013, which was prior to when Xerox became aware of the August 10th letter. See NYSCEF Doc. No. 33 at 7.

Plaintiff's Opposition

Plaintiff states that he went out on approved disability leave for the medically diagnosable conditions of osteoarthritis and sciatica. According to plaintiff, although he returned to work at full capacity, he is not precluded from pursuing a disability claim. Plaintiff continues that, contrary to Xerox's contentions, he is able to establish all elements of a prima facie case of disability discrimination by demonstrating that his termination occurred under an inference of discrimination. Xerox concedes that plaintiff was qualified for his position and that termination is an adverse employment action. Regarding the fourth element, plaintiff alleges that the timing of plaintiff's termination, occurring only a few days after he returned from disability, gives rise to an inference of discrimination. He alleges that Worth "became tired" of waiting for plaintiff to return from work and manufactured a reason to terminate plaintiff as a result of the DOJ Nursing Home incident.

Plaintiff does not believe that the August 10, 2012 letter was a side letter, but that it was an informational letter to the client to ensure its understanding of the binding terms. He also maintains that the administrative law judge in his unemployment benefits hearing, a "neutral fact finder," already concluded plaintiff's actions did not rise to the "level of misconduct pursuant to unemployment insurance law." NYSCEF Doc. No. 112 at P109. Nonetheless, even if it could be construed as a side letter, he argues that Xerox's zero-tolerance policy for side letters was selectively applied when he, a disabled individual, was terminated, while Fasano was not. According to plaintiff, "[t]he mere fact that Fasano notified Defendant of his intent to retire does not obviate Defendant's requirement to investigate Fasano and apply its policies uniformly." NYSCEF Doc. No. 83, plaintiff's memorandum of law in opposition at 24.

In addition, plaintiff claims that he can show pretext because Xerox's actions were inconsistent with its own policies. For example, although the sales proposal to DOJ Nursing Home contained Xerox letterhead, it did not have to be submitted to the legal department and was not considered a side letter. However, when plaintiff did not submit the August 10, 2012 letter, simply an informational letter, to the legal department, he was found to have violated the policies. According to plaintiff, "[d]efendant's argument that Plaintiff failed to adhere to Xerox's policies by not submitting the August 10, 2012 letter to Xerox's legal department is untenable." Id. at 25.

According to plaintiff, although Worth was not supposed to contact an employee while out on disability leave, she violated Xerox's policy by "badgering" him twice about optional eLearning courses and asking him when he would be returning to work. Plaintiff considers these to be trivial issues. Yet, plaintiff was not contacted regarding the early termination of the Lease [*8]Agreement, which was a serious issue.

Plaintiff alleges that Xerox's investigation was merely a formality and that Worth's discriminatory motives led to his termination. He believes that Worth had already determined that the August 10, 2012 letter was a side letter prior to when King became involved.

In his memorandum of law in opposition to Xerox's motion, plaintiff withdraws his causes of action alleging age discrimination in violation of the NYSHRL and the NYCHRL. See Id. at 1 n 1.

Plaintiff's Motion for Summary Judgment Dismissing Xerox's Counterclaims (motion sequence 002)

In response to the complaint, Xerox filed an amended answer with defenses and counterclaims. In relevant part, the first counterclaim, unjust enrichment, alleges that plaintiff was unjustly enriched when he received commissions in the amount of $1,069.25, plus interest, in connection to the DOJ Nursing Home Lease Agreement. According to Xerox, plaintiff knowingly violated Xerox's policies by executing a side letter agreement. Based on this side letter agreement, plaintiff was able to sell services to DOJ Nursing Home. Xerox continues that, had it been made aware of this side letter agreement, it would not have approved the contract, and plaintiff would not have earned commissions. Xerox states that it would be "inequitable, unjust and contrary to good conscience to permit [plaintiff] to retain any monetary benefits he obtained as a result of his acts which were in knowing violation of Xerox's policies." NYSCEF Doc. No. 61, amended answer with defenses and counterclaims, ¶ 23.

In plaintiff's motion for summary judgment, he argues that the claim for unjust enrichment should be dismissed because he was not enriched at Xerox's expense. Although plaintiff received a commission, Xerox also earned a profit for the one year that DOJ Nursing Home made monthly payments as part of the Lease Agreement. In addition, according to plaintiff, the record does not support that it is against equity and good conscience for plaintiff retain the commission. Plaintiff reiterates that he clearly wrote that early termination was not an option. Further, instead of honoring DOJ Nursing Home's request, Xerox should have asked DOJ Nursing Home to identify the clause allowing early termination or should have gotten in touch with plaintiff. Plaintiff also maintains that his conduct was not tortious or fraudulent and was only intended to clarify the terms of the Xerox's addendum.

In opposition, Xerox argues that plaintiff was unjustly enriched when he received commissions by entering into a deal that knowingly violated Xerox's policies.[FN2] According to Xerox, plaintiff should be required to disgorge his commissions, as Xerox would not have approved the deal had it known of the side letter.

In the second counterclaim alleging fraud, Xerox states that plaintiff intentionally misrepresented the terms of the DOJ Nursing Home Lease Agreement to Xerox. As a result, Xerox was purportedly compelled to honor the early termination provision in the side letter agreement and terminate the contract after one year. Xerox claims that it suffered damages in the form of lost revenue from terminating the contract early, and also suffered damages from having to pay improper commissions.

According to plaintiff, among other things, the evidence demonstrates that plaintiff did not make a material misrepresentation as he informed DOJ Nursing Home that an early termination clause was not permissible.

Xerox maintains that, by "accepting the commission, Ciulla impliedly — but knowingly —

represented that the deal was one that complied with Xerox's rules, when it did not." NYSCEF Doc. No. 114, Xerox's memorandum of law at 9. Xerox then paid the commission, assuming that the deal complied with its rules.

The third counterclaim alleges that plaintiff breached his fiduciary duty to Xerox by knowingly acting in violation of Xerox's policies and causing Xerox to enter into an agreement that violated its policies. The damages sought are the same as in the fraud counterclaim.

In the fourth counterclaim Xerox asserts that plaintiff breached his duty of loyalty to Xerox "by knowingly acting in violation of Xerox's policies and against Xerox's best interests, causing Xerox to enter into an agreement that violated its rules and policies." Amended answer, ¶ 37. The damages sought are the same as in the fraud counterclaim.

Plaintiff maintains that he committed no misconduct and always acted in Xerox's interests. He reiterates that, as Xerox acted unilaterally in allowing DOJ Nursing Home to cancel its contract, his actions were not the direct and proximate case of the loss of revenue.

According to Xerox, plaintiff knew that he should not have permitted DOJ Nursing Home to attach the August 10, 2012 letter to the addendum and ask for counter signatures, but did so anyway to close a deal and earn a commission. These actions allegedly constituted a breach of his fiduciary duty and a breach of loyalty. Xerox adds that employees who are faithless in the performance of their duties are not entitled to receive their compensation. It claims that it suffered damages by paying a commission on a deal that it would not have approved had it first seen the paperwork.

Xerox is seeking damages for lost revenue in excess of $40,000 resulting from the early termination of the DOJ Nursing Home Lease Agreement. Xerox is also seeking damages in the amount of $1,069.25 for the improper payment of commissions. It requests pre- and post-judgment interest, costs and also punitive damages.

DISCUSSION

I. Summary Judgment

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 (2013) (internal quotation marks and citation omitted). Upon a proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v Grasso, 50 AD3d 535, 545 (1st Dept 2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v Griffin, 71 AD3d 1112, 1115 (2d Dept 2010) (internal quotation marks and citation omitted).

II. NYSHRL and NYCHRL

Pursuant to the NYSHRL and the NYCHRL, it is an unlawful discriminatory practice for an employer to refuse to hire or employ, or to fire or to discriminate against an individual in the terms, conditions or privileges of employment because of the individual's age or disability. See Executive Law § 296 (1) (a); Administrative Code of the City of NY (Administrative Code) § 8-107 (1) (a).

Age Discrimination

As plaintiff failed to oppose Xerox's motion for summary judgment dismissing the causes of action alleging age discrimination, they are deemed abandoned and dismissed. See e.g. Genovese v Gambino, 309 AD2d 832, 833 (2d Dept 2003) (where plaintiff "did not oppose that branch" of the defendant's motion for summary judgment dismissing the cause of action for wrongful termination, the plaintiff abandoned this claim); see also Mega Group, Inc., v Halton, 290 AD2d 673, 675 (3d Dept 2002) ("Thus, by not opposing — and thus conceding — defendants' entitlement to summary judgment, plaintiff has failed to raise any triable issue of fact on the subject . . ."). Accordingly, Xerox is granted summary judgment dismissing the first and fourth causes of action in the complaint.

Disability Discrimination

To establish a case of disability discrimination, under both the NYSHRL and NYCHRL, the plaintiff "must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated." Pimentel v Citibank, N.A., 29 AD3d 141, 145 (1st Dept 2006). Under both the NYSHRL and the NYCHRL, the court applies the burden shifting analysis developed in McDonnell Douglas Corp. v Green (411 US 792 [1973]), where the plaintiff has the initial burden to establish a prima facie case of discrimination. Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). This analysis requires plaintiff to set forth that he is a member of a protected class, was qualified for the position, was actively or constructively discharged, and that the discharge occurred under circumstances giving rise to an inference of discrimination. Ferrante v American Lung Assn., 90 NY2d 623, 629 (1997).

If the plaintiff is able to set forth a prima facie case of discrimination, then the burden shifts to the defendants to rebut the presumption by demonstrating nondiscriminatory reasons for its employment actions. Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 965 (1st Dept 2009). If the employer meets this burden, the plaintiff must "prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination." Id. (internal quotation marks and citation omitted).

The provisions of the NYCHRL are to be construed more liberally than their state or federal counterparts. Bennett v Time Warner Cable, Inc., 138 AD3d 598, 599 (1st Dept 2016). On a motion for summary judgment dismissing a claim for discrimination under the NYCHRL, courts have reaffirmed the applicability of the burden-shifting analysis as developed in McDonnell Douglas Corp. v Green, in addition to the mixed-motive analysis. See Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 514 (1st Dept 2016) (internal quotation marks and citations omitted) ("A motion for summary judgment dismissing a City Human Rights Law claim can be granted only if the defendant demonstrates that it is entitled to summary judgment under both the McDonnell Douglas burden-shifting framework and the mixed-motive framework").

Under the mixed-motive analysis, "the employer's production of evidence of a legitimate reason for the challenged action shifts to the plaintiff the lesser burden of raising an issue as to [*9]whether the action was motivated at least in part by . . . discrimination." Melman v Montefiore Med. Ctr., 98 AD3d 107, 127 (1st Dept 2012) (internal quotation marks and citations omitted).

Furthermore, under the NYCHRL, the focus is on "unequal treatment based on [a protected characteristic] . . .." Williams v New York City Housing Auth., 61 AD3d 62, 79 (1st Dept 2009). "Thus, even assuming that a plaintiff could not prove that [he] was dismissed for a discriminatory reason, [he] could still recover for other differential treatment based on [his] [protected characteristic]." Suri v Grey Global Group, Inc., 164 AD3d 108, 120 (1st Dept 2018) (internal citation omitted). Accordingly, to establish a discrimination claim under the NYCHRL, plaintiff has to prove by a "preponderance of the evidence that [he] has been treated less well than other employees because of [his] [protected characteristic]." Id. at 78.

Disability is defined in the NYSHRL as a "physical, mental or medical impairment . . . which prevents the exercise of a normal bodily function . . . [and] which, upon the provision of reasonable accommodations, do[es] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." Executive Law § 292 (21). Under the NYCHRL, disability is more broadly defined as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." Administrative Code § 8-102 (16) (a).

Plaintiff was out on disability leave for osteoarthritis and sciatica. He was cleared to return to work at full duty. As a result, according to Xerox, plaintiff does not allege that he was disabled or perceived to be disabled at the time of his termination. Plaintiff claims that he suffers from medically diagnosable conditions and that he is not precluded from pursuing his claims just because he was able to return to work. Viewing the facts in the light most favorable to plaintiff, plaintiff has established that he belonged to a protected class, that he was qualified for his position and that he was terminated.

Turning to the fourth element, plaintiff argues that he has established that the termination occurred under circumstances giving rise to an inference of disability discrimination because he was terminated shortly after returning from disability leave. In the instant situation, the record establishes that the timing of the two events was coincidental. It is undisputed that Xerox became aware of DOJ Nursing Home's request to terminate its contract in September 2013. Plaintiff returned from disability leave one month later. Accordingly, "[a]lthough temporal proximity can give rise to an inference of discrimination under certain circumstances, the timing of the events [plaintiff] alleges is not suspicious enough alone to create such an inference." Equal Empl. Opportunity Commn. v Bloomberg L.P., 967 F Supp 2d 816, 855 (SD NY 2013).

Plaintiff also alleges that the termination occurred under circumstances giving rise to an inference of disability discrimination because Fasano, his non-disabled coworker, was not terminated for engaging in the same conduct. See, e.g., Mandell v County of Suffolk, 316 F3d 368, 379 (2d Cir 2003) (internal quotation marks and citation omitted) ("A showing of disparate treatment — that is, a showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group — is a recognized method of raising an inference of discrimination for purposes of making out a prima facie case"); see also Mazzeo v Mnuchin, 751 Fed Appx 13, 14 (2d Cir 2018) (internal quotation marks and citation omitted) ("Discriminatory motivation may be inferred from, among other things, invidious comments about others in the employee's protected group, or the more favorable treatment of employees not in the protected group").

It is well settled that "[a] plaintiff relying on disparate treatment evidence must show [he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [him]self." Mandell v County of Suffolk, 316 F3d at 379 (internal quotation marks and citation omitted). Here, plaintiff cannot meet his burden of establishing a prima facie case because he has not established that Fasano was similarly situated. While Worth was plaintiff's supervisor, she was not Fasano's. Worth testified that she did not manage Fasano and that she did not have an opinion as to whether he should have been fired. See NYSCEF Doc. No. 90, Worth tr at 108. Although Worth reported the issue to Fasano's supervisor, a different decision-maker, there is no information as to whether any disciplinary action was taken by Fasano's supervisor. It is also undisputed that Fasano had submitted his request for retirement, effective October 31, 2013, two months prior to when DOJ Nursing Home contacted Xerox about canceling. King's investigative report states that she was unable to conduct an interview with Fasano, as he retired. In the instant situation, plaintiff fails to raise a triable issue of fact that he was treated less favorably than Fasano simply because Fasano was permitted to retire as planned.

Plaintiff testified that Worth perceived him as a liability, or as someone who could not work full-time anymore due to his disability. However, there was no indication beyond plaintiff's personal belief to support the allegation. "A plaintiff's feelings and perceptions of being discriminated against are not evidence of discrimination." Basso v Earthlink, Inc., 157 AD3d 428, 430 (1st Dept 2018) (internal quotation marks and citation omitted).

Plaintiff is unable to meet his prima facie burden under the McDonnell Douglas framework. "The McDonnell Douglas framework and the mixed motive framework diverge only after the plaintiff was established a prima facie case of discrimination." Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 73 (1st Dept 2017). Assuming, arguendo, that plaintiff could meet the "de minimis burden," Xerox has submitted admissible evidence, in the form of the investigative reports, affidavits, deposition testimony and other documentation in support of the "legitimate, independent and nondiscriminatory reasons" for terminating plaintiff's employment. Bendeck v NYU Hosps. Ctr., 77 AD3d 552, 554 (1st Dept 2010). In brief, Xerox maintains that plaintiff was terminated after engaging in conduct that violated Xerox's policies and code of business conduct. Specifically, without receiving approval from Xerox's legal department, plaintiff prepared a side letter agreement with a customer that contained cancellation language. The customer then relied on this side letter, which had Xerox letterhead, to terminate its lease agreement early. Plaintiff received training and was aware of Xerox's policies prohibiting side letter agreements.

Accordingly, as evidence of "unsatisfactory work performance" is a nondiscriminatory motivation for Xerox's actions, Xerox has met its burden of providing a nondiscriminatory reason for the termination. Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 46 (1st Dept 2011).

In response, plaintiff fails to raise a triable issue of fact as to whether the reasons proffered by Xerox were "merely a pretext for discrimination." Hudson v Merrill Lynch & Co., Inc., 138 AD3d at 514. Plaintiff's unsupported belief that his termination was motivated by disability is based on nothing more than speculation. It is well settled that "such speculation is insufficient to defeat summary judgment." Ellison v Chartis Claims, Inc., 178 AD3d 665, 669 (2d Dept 2019).

Plaintiff does not dispute that he wrote the August 10, 2012 letter, but believes that it was not an impermissible side letter. He argues that it was an informational letter, merely clarifying [*10]the differences between the addendums. Further, he claims that it did not modify the addendum that had been approved by Xerox's legal team and that it did not permit early termination. However, plaintiff fails to demonstrate how Xerox's decision, at the time, to terminate him, was pretextual. Although plaintiff claims that this decision was wrong, there is no evidence that Xerox, at the time, did not believe that plaintiff composed an impermissible side letter. "The mere fact that plaintiff may disagree with his employer's actions or think that his behavior was justified does not raise an inference of pretext." Melman v Montefiore Med. Ctr., 98 AD3d at 121 (internal quotation marks and citations omitted).

The record indicates that plaintiff authored a letter which was not sent to the legal department prior to being sent to the customer. It was attached to the approved two-page addendum with handwritten page numbers incorporating it into this addendum. Despite plaintiff's claims that the letter was merely informational, there was no mention in this letter that it was serving only for clarification purposes and that it was not binding. Plaintiff and/or Fasano, as well as DOJ Nursing Home, initialed the document. Regardless of what was stated on the letter, it was contrary to Xerox's policies; namely, it was provided to the customer outside of the standard contract, purporting to address certain terms in the contract, and was not first approved by the legal department. Even if, ultimately, the letter could be construed as advising the customer that there could be no shortening of the lease terms, "these purported issues of fact pertain to whether the company's decision to terminate plaintiff's employment was correct or justified. They do not raise an inference of pretext . . .." Breitstein v Michael C. Fina Co., 156 AD3d 536, 537 (1st Dept 2017).

Similar to the plaintiff in Hamburg v New York Univ. Sch. of Medicine (155 AD3d at 76), plaintiff relies on circumstantial evidence, as he "has no direct evidence that the actions [he] challenges were taken with discriminatory intent, nor does [he] have any evidence of bias against [disabled] employees on the part of the leadership of [Xerox]." Plaintiff argues an inference of pretext may arise where an employer's deviation from its procedures results in the challenged employment decision. According to plaintiff, Xerox deviated from its procedures by requiring him to submit the August 10, 2012 letter, simply an informational letter, to the legal department, but never requiring him to submit the sales proposal, also written on Xerox letterhead. However, the record indicates that the documents are not comparable. Although the proposal had Xerox letterhead, it was a general overview of the product specifications. In contrast with the August 10, 2012 letter, the proposal did not contain any contractual or financial language.

Plaintiff also claims that Worth allegedly violated Xerox's policy by contacting him twice to discuss trivial matters while he was on disability leave, but not when DOJ Nursing Home requested terminating its contract. Xerox then subsequently agreed to allow DOJ Nursing Home to terminate its contract early without speaking to plaintiff.

As a general matter, "the mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent." Harris v. Niagara Mohawk Power Corp., 252 F3d 592, 599 (2d Cir 2001) (internal quotation marks and citations omitted). Further, there is no indication that there was a discriminatory animus associated with the two times Worth reached out to plaintiff while on leave. In addition, while plaintiff may have disagreed with the way Worth and Xerox handled the business decisions related to DOJ Nursing Home, he has provided no evidence that such decisions were motivated on account of plaintiff's disability. It is well settled that the court will [*11]"not sit as a super-personnel department that reexamines an entity's business decisions." Baldwin v Cablevision Sys. Corp., 65 AD3d at 966 (internal quotation marks and citation omitted).

Plaintiff also claims that Worth already decided that he had committed misconduct even prior to the determination of King's investigation. However, the record indicates that Coons advised Worth that DOJ Nursing Home requested to cancel the Lease Agreement. After looking at the documentation, Worth requested an investigation into the side letter. Pursuant to Xerox's policies, Worth was required to do so.

It was King, not Worth, who conducted the investigation and ultimately concluded that plaintiff should be terminated. Plaintiff never alleged to anyone at Xerox that he was terminated for discriminatory reasons. In addition, the record indicates that the involuntary termination request was approved by not only Worth, but by King and two other Xerox employees. Moreover, plaintiff does not claim that Worth wrote or said anything that would reveal Worth's bias against plaintiff's disability. Compare Krebaum v Capital One, N.A., 138 AD3d 528, 528 (1st Dept 2016) ("Plaintiff asserted that for five months before the termination of his employment, he endured repeated negative comments about his age from his manager").

While plaintiff may have been displeased with the way Xerox handled these employment decisions, he has provided no evidence that they were motivated on account of plaintiff's disability. See e.g. Fruchtman v City of New York, 129 AD3d 500, 501 (1st Dept 2015) ("While termination is indisputably an adverse action, plaintiff's conclusory claim that her termination was motivated by a gender-related bias is insufficient to establish discrimination").

Turning to the mixed-motive analysis under the NYCHRL, none of plaintiff's allegations can establish that his termination was motivated, even in part, by discrimination. See e.g. Matias v New York & Presbyt. Hosp., 137 AD3d 649, 650 (1st Dept 2016) ("The absence of any evidence [that defendants were motivated by] discriminatory animus is equally fatal to any claim of mixed motive [under the NYCHRL]"). Plaintiff argues that his disability was the reason for Xerox's behavior, but provides no basis for this argument. Contrary to plaintiff's contention, to establish disability discrimination, plaintiff must demonstrate that there was discriminatory animus based on disability. See e.g. Whitfield-Ortiz v Department of Educ. of City of NY, 116 AD3d 580, 581 (1st Dept 2014) (Plaintiff's NYCHRL claim fails because it does not "contain any factual allegations demonstrating that similarly situated individuals who did not share plaintiff's protected characteristics were treated more favorably than plaintiff").

In conclusion, even viewing the evidence in a light most favorable to plaintiff, plaintiff fails to demonstrate that disability discrimination was a motivating factor in his termination; therefore, Xerox is granted summary judgment dismissing the NYSHRL and NYCHRL claims for disability discrimination.

III. Counterclaims (motion sequence 002)

Unjust Enrichment

To successfully plead a claim for unjust enrichment, Xerox must show that "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered." Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 (2011) (internal quotation marks and citations omitted).

Xerox alleges that plaintiff was unjustly enriched when he received [*12]commissions upon executing the contract with DOJ Nursing Home. As previously noted, plaintiff attached a side letter, without Xerox's knowledge, which the customer then relied on when seeking to terminate the contract early. According to Xerox, had it been aware of the letter, it never would have entered into the contract. Xerox maintains that plaintiff was paid $1,069.25 based on the five-year leasing agreement with DOJ Nursing Home.[FN3]

Plaintiff argues that he should be granted summary judgment dismissing this claim because he did not act in a tortious manner. Further, Xerox also profited the one year that it retained the contract, and it was Xerox that unilaterally opted to allow DOJ Nursing Home to terminate the contract.

The court finds that, with respect to this counterclaim, questions of fact remain as to what extent, if any, plaintiff has been unjustly enriched. It is undisputed that several policies advise employees against including side letters with customer agreements. Furthermore, had Xerox seen the side letter, it would not have approved the Lease Agreement.

"Unjust enrichment . . . does not require the performance of any wrongful act by the one enriched . . . . Innocent parties may frequently be unjustly enriched . . . .

What is required, generally, is that a party hold property under such circumstances that in equity and good conscience he ought not to retain it."

Alan B. Greenfield M.D., P.C. v Long Beach Imaging Holdings, LLC, 114 AD3d 888, 889 (2d Dept 2014) (internal quotation marks and citations omitted).

Fraud

"To state a cause of action for fraud, [Xerox] must allege a representation of material fact, the falsity of the representation, knowledge by the party making the representation that it was false when made, justifiable reliance by [Xerox] and resulting injury." Kaufman v Cohen, 307 AD2d 113, 119 (1st Dept 2003). Claims for fraudulent concealment are based on "acts of concealment," rather than affirmative misrepresentations "where the defendant had a duty to disclose material information." Id. at 119-120. In addition, pursuant to the pleading requirements set forth in CPLR 3016 (b), "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail."

Xerox alleges plaintiff engaged in fraud by falsely representing to both DOJ Nursing Home and Xerox that the deal complied with Xerox's rules. Nonetheless, even if plaintiff violated Xerox's policies by issuing the side letter, Xerox fails to raise a triable issue of fact that plaintiff engaged in fraud. The August 10, 2012 letter specifically states that the clause seeking early termination must be eliminated in total. Thus, there is no indication that plaintiff made a material misrepresentation — to DOJ Nursing Home or to Xerox — that Xerox allowed early termination. In addition, Xerox fails to establish that plaintiff acted with the requisite scienter. Plaintiff consistently stated that he advised DOJ Nursing Home that it was not able to terminate the contract early. In opposition, Xerox only speculates that plaintiff deliberately made a misrepresentation to DOJ Nursing Home and also speculates that plaintiff "preferr[ed]" to keep the letter a secret from Xerox. Accordingly, plaintiff is granted summary judgment [*13]dismissing the counterclaim for fraud.

Breach of Fiduciary Duty and Breach of Loyalty

"[E]mployees owe a duty of loyalty and good faith to their employer in the performance of their duties." Cerciello v Admiral Ins. Brokerage Corp., 90 AD3d 967, 968 (2d Dept 2011). However, a claim for breach of loyalty is generally "available only where the employee has acted directly against the employer's interests - as in embezzlement, improperly competing with the current employer, or usurping business opportunities." Veritas Capital Mgt., L.L.C. v Campbell, 82 AD3d 529, 530 (1st Dept 2011).

Under the faithless servant doctrine, "an employee who is faithless in performance of [his] duties is not entitled to recover either salary or commission." Linder v Innovative Commercial Sys. LLC, 41 Misc 3d 1214[A], 2013 NY Slip Op 51695[U], *6 (Sup Ct, NY County 2013), affd 127 AD3d 670 (1st Dept 2015). Similarly, "[c]ourts will usually only hold an employee liable under the faithless servant doctrine if the employee has usurped a corporate opportunity or actively stolen for the employer." Id.

Applying the standards above to the case at hand, the evidence that plaintiff violated Xerox's policies by issuing a side letter in violation of Xerox's policies fails to raise a triable issue of fact that plaintiff breached his duty of loyalty. Accordingly, plaintiff is granted summary judgment dismissing the breach of loyalty/faithless servant counterclaim.

"To establish a breach of fiduciary duty, the movant must prove the existence of a fiduciary relationship, misconduct by the other party, and damages directly caused by that party's misconduct." Pokoik v Pokoik, 115 AD3d 428, 429 (1st Dept 2014). Xerox pleads the same allegations for the breach of fiduciary duty and breach of loyalty counterclaims. The Appellate Division, First Department "has applied the same standards for determining a breach of duty of loyalty claim to a breach of fiduciary duty claim against an employee." Bluebanana Group v Sargent, 176 AD3d 408, 409 (1st Dept 2019). Accordingly, as the claims are duplicative, plaintiff is granted summary judgment dismissing the breach of fiduciary duty counterclaim claim "for the same reasons." Id. at 409. See e.g. Cerciello v Admiral Ins. Brokerage Corp., 90 AD3d at 968 ("the mere failure of an employee to perform assigned tasks does not give rise to a cause of action alleging breach of [fiduciary] duty. Rather, the employee's misuse of the employer's resources to compete with the employer is generally required").

Punitive Damages

Xerox is seeking punitive damages (also known as exemplary damages). "To impose punitive damages, the law requires intentional or deliberate wrongdoing, aggravating or outrageous circumstances, fraudulent or evil motive, or conscious act in willful and wanton disregard of another's rights." Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 (1st Dept 2008) (internal quotation marks and citation omitted). Based on the record, plaintiff's actions do not meet this threshold. Accordingly, Xerox's request for punitive damages is dismissed.

CONCLUSION

Accordingly, it

ORDERED that the motion by defendant Xerox Corporation for summary judgment (motion sequence 001) is granted, and the complaint is dismissed with costs and disbursements to said defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the motion by plaintiff Antonino Ciulla for summary judgment [*14]dismissing the counterclaims (motion sequence 002) is granted to the extent of dismissing counterclaims two through four, and is otherwise denied with respect to dismissing the counterclaim alleging unjust enrichment; and it is further

ORDERED that a virtual status conference shall be held on Tuesday, January 26, 2021 at 10:30 a.m.

1/5/2021$SIG$

ROBERT R. REED, J.S.C. Footnotes

Footnote 1: Worth's last name was formerly Urbanek.

Footnote 2: Although Xerox did not formally move for summary judgment on its counterclaims, it believes that no triable issues of fact remain and that the court should search the record and grant summary judgment in its favor.

Footnote 3: The counterclaim for unjust enrichment seeks damages for the amount of commissions paid to plaintiff, plus interest.