Opinion
00 Civ. 6529 (JSM)
March 15, 2002
Mary D. Dorman, New York, NY, for Plaintiff.
Marc L. Silverman, Sidley, Austin, Brown Wood, New York, NY, for Defendant.
OPINION AND ORDER
Plaintiff Susan Sandman brings this action against her former employer, Mediamark Research Inc. ("MRI"), alleging that in failing to promote her, MRI discriminated against her on the basis of marital status and sex in violation of federal, state, and municipal laws. Plaintiff also alleges the termination of her employment was an act of retaliation in violation of federal, state, and municipal laws. Defendant now moves for summary judgment.
Facts
Defendant MRI is a provider of multimedia audience research data. Plaintiff Susan Sandman began working for MRI in February 1989. Her title was sales executive, and she sold data to advertising agencies and advertisers.
MRI conducted annual evaluations of its employees. While some of her earlier reviews were favorable, Plaintiff's 1996 review contained both positive remarks and strong suggestions for improvement. Plaintiff's 1997 review recognized that Plaintiff was "doing a fine job," but noted that she needed to take more initiative with clients, keep more accurate records, and have a more positive attitude when dealing with difficult situations.
The review gave Plaintiff an "F" for attitude, though it is disputed when this mark was made on the review. In June 1997, Plaintiff met with Jeff Cullen, her then supervisor, and Ken Wollenberg, MRI's Senior Vice President of Sales Marketing, to discuss Plaintiff's negative performance evaluation. She was warned that she needed to work on improving her attitude and that they would closely monitor this in the upcoming months. Her 1998 review showed some improvement, but it was still clear that Plaintiff needed to work harder on utilizing her experience for the good of the company and improving her image internally.
Throughout this period, Plaintiff received a number of salary raises. In 1999, MRI divided the sales department into three groups: magazine sales, advertiser/advertising agency/third party relationships, and electronic media. Three new vice president positions were created to oversee these new groups, and the positions were filled from inside MRI's sales department. George Kronheimer, a married man who held the same position as Plaintiff ("sales executive"), was named Vice-President of Magazines, and the other two positions were filled by Michael Drankwalter, a single man, and Anne Drake, a single woman. At the time of the promotion, Mr. Kronheimer had been with MRI for less than two years, compared to Plaintiff's eight. On the other hand, Plaintiff had only worked in magazines since 1992, while Mr. Kronheimer had extensive experience in magazine research.
In December 1999, Mr. Wollenberg informed Plaintiff about the restructuring and the new appointments. Two days later, Plaintiff spoke with Mr. Wollenberg about Mr. Kronheimer's new position and she highlighted her own qualifications for that post. Plaintiff advised Mr. Wollenberg that she had consulted with counsel and she accused him of discriminating against her.
Plaintiff then told MRI's Chief Executive Officer of her conversation with Mr. Wollenberg, and that MRI's failure to promote her was discriminatory. Plaintiff stated that Mr. Wollenberg's discriminatory behavior had been a problem for some time. For example, with all of Mr. Wollenberg's talk about sports with the men in the sales group, "the women could have been invisible." (Sandman Tr. at 153.) Plaintiff also alleged that another female employee had been told by Mr. Wollenberg that Mr. Kronheimer was promoted because he was a family man and thus needed a career. Plaintiff also claims that in the fall of 1999, Mr. Kronheimer told Plaintiff that when he told Mr. Wollenberg that he was an expectant father, Mr. Wollenberg replied that had he known, he would have given Mr. Kronheimer a better raise.
After the reorganization, Plaintiff reported to Anne Drake, who received complaints from colleagues and customers regarding Plaintiff's behavior. On February 7, 2000, Ms. Drake sent an email to Mr. Wollenberg and MRI's CEO which highlighted some of the comments received regarding Plaintiff's behavior. On or about February 28, 2000, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission.
On the morning of March 24, 2000, Plaintiff advised Ms. Drake that she would be out of the office for the afternoon. She told the receptionist that she had a "business lunch," but did not mention when she was returning, notwithstanding an email sent by Mr. Wollenberg to the sales group in January 2000, instructing them to notify the receptionist of where one was going and when one should be expected back. Plaintiff met a former MRI employee for lunch, went to the former employee's residence after lunch to visit his family, and went home for the day.
The following week, Ms. Drake asked Plaintiff where she had been on that day. Plaintiff falsely replied that she had been with a particular client and they spoke about the client meeting.
Plaintiff then submitted an expense report, falsely stating that she had lunch with that client. Plaintiff later changed this to reflect her meeting with the former colleague. Ms. Drake spoke with the client, who denied having lunch with Plaintiff.
Afterwards, Plaintiff spoke to the client, who informed her of his conversation with Ms. Drake. Plaintiff asked the client to tell Ms. Drake that he and the Plaintiff did in fact have lunch on that day. The client refused, stating that he would not "stick his neck out for her." (Def.'s Rule 56.1 Statement ¶ 98.)
On April 28, 2000, Plaintiff was called into a meeting with Ms. Drake, Mr. Wollenberg, and a member of the human resources department. Plaintiff was asked whom she had lunch with on the aforementioned day, and she named her former co-worker. Mr. Wollenberg advised Plaintiff that her employment was being terminated for lying to her supervisor and for lying on her initial expense report. It is the written policy of MRI that dishonesty toward the company may result in termination. (Def.'s Ex. 12.)
On August 30, 2000, Plaintiff filed a complaint in this action against MRI, alleging that she was discriminated against on the basis of her sex and was retaliated against in violation Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Furthermore, the complaint alleges that in discriminating against her on the basis of her sex and marital status, and in retaliating against her, MRI had violated New York State Executive Law section 296 and section 8-107 of the Administrative Code of the City of New York. Plaintiff seeks declaratory and injunctive relief, as well as reasonable attorney's fees and costs.
Discussion
A party is entitled to summary judgment as a matter of law when the evidence demonstrates that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "`Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.'" White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir. 2000) (quoting Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991)); Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000) ("[T]he court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought.").
I. Failure to Promote
Plaintiff bases her discrimination claims on Defendant's failure to promote her. Plaintiff asserts that she was more qualified than Mr. Kronheimer for the position and that she was discriminated against because she is a single woman.
Title VII makes it unlawful "for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [his or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). This applies to promotions in the workplace. See Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000).
In evaluating claims of employment discrimination, a three-step burden shifting analysis is followed. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, the plaintiff carries the burden of establishing a minimal prima facie case of discrimination. If this is satisfied, there is a presumption that the employer unlawfully discriminated and the burden shifts to the defendant. In order to overcome the presumption, the defendant must proffer a nondiscriminatory reason for its conduct. Once the employer has articulated a nondiscriminatory reason, the presumption falls away. For the case to continue, the burden shifts back to the plaintiff, who must produce evidence that the defendant's articulated reason is a mere pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); McDonnell Douglas, 411 U.S. at 802; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); James v. New York Racing Ass'n, 223 F.3d 149, 153-154 (2d Cir. 2000).
On a motion for summary judgment, the test throughout this analysis is whether the evidence is sufficient to permit a reasonable trier of fact to find that discrimination was the reason for MRI's failure to promote Ms. Sandman. See James, 223 F.3d at 157. Furthermore, the Court must, like a jury, view the record as a whole when evaluating the facts and drawing inferences. Howley, 217 F.3d at 151 (2d Cir. 2000). This same analysis applies to employment discrimination claims brought under New York Executive Law § 296 and the Administrative Code of the City of New York. Weinstock, 244 F.3d at 42 n. 1.
A. Prima Facie Case
In order to establish a prima facie case for failure to promote, Plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for the position she sought; (3) she was denied the promotion; and (4) the circumstances give rise to an inference of discrimination. See Howley, 217 F.3d 141, 150 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802); see also Weinstock, 244 F.3d at 42 (challenging denial of tenure). The level of proof that Plaintiff is required to present in order to establish a prima facie case of discrimination is minimal. Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998).
There is no dispute that Plaintiff, as an unmarried woman, is a member of classes protected under federal, state, and municipal laws, and that she was denied the promotion.
Furthermore, considering the low level of proof that Plaintiff must present in order to establish a prima facie case, the circumstances herein do give rise to an inference of discrimination because the position for which Plaintiff was considered was filled by someone outside of her protected class, see Mitchell v. Northern Westchester Hosp., 171 F. Supp.2d 274, 278 (S.D.N.Y. 2001), and because Plaintiff alleged that Mr. Wollenberg's conduct in the office isolated women, see Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 378-379 (S.D.N.Y. 1999). See also Farias v. Instructional Systems, Inc. 259 F.3d 91, 98 (2d Cir. 2001).
A more critical focus is necessary to determine whether Plaintiff was qualified for the new post. According to Defendant, five criteria were used to evaluate potential candidates:
(1) extensive experience in the corresponding marketplace; (2) demonstrated capability for strategic development; (3) strong organization and leadership skills, including the ability to manage people and set a positive example, timely submission of billing and administrative items, a good attitude at work, and initiative on the job; (4) demonstrated ability to sell MRI's products; and (5) working at MRI offices five days per week.
(Jack Aff. ¶ 19.) The review board considered Plaintiff for the position but concluded that she was not qualified because:
(1) she lacked extensive experience in the area of magazine sales; (2) she did not demonstrate the capability for strategic development; (3) she lacked strong organization and leadership skills; (4) she failed to set a positive example for other employees; (5) she continually failed to submit administrative and billing paperwork in a timely manner; (6) she lacked the requisite work ethic and attitude; and (7) she did not display initiative.
(Def.'s Mem. Supp. Summ. J. at 8; Jack Aff. ¶ 20.)
By contrast, Mr. Kronheimer had worked in the magazine industry for eleven years prior to joining MRI, had a very successful record with MRI clients, received much praise from his colleagues, and often took a lead role in marketing new products.
Plaintiff points to other evidence to support her claim that she was qualified for the job. She was employed by the Defendant for eleven years and received salary increases on a yearly basis.
While Mr. Kronheimer did have magazine experience, she had more experience in sales and spent a fair amount of time in magazine sales. Plaintiff notes the positive feedback on her yearly evaluations and that she was given various new responsibilities during her tenure with MRI.
Whether a plaintiff is "qualified" must be determined according to the criteria used by the employer. Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir. 1997). See Mitchell, 171 F. Supp.2d at 278. At the same time, while the conclusions of the employer are to be respected, the role of the qualification prong is "simply to help `eliminate the most common nondiscriminatory reasons for the plaintiff's rejection.'" Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (quoting Burdine, 450 U.S. at 254). The qualification prong must not be interpreted "in such a way as to shift into the plaintiff's prima facie case an obligation to anticipate and disprove the employer's proffer of a legitimate, non-discriminatory reason." Id. at 696. Under the prima facie analysis, Plaintiff need not show perfect performance, but only needs to make a "minimal showing" that she possesses the basic skills necessary for the job. Id.
Drawing all inferences in favor of the non-moving party, Plaintiff has made a "minimal showing" that she is qualified for the job. Her experience at MRI with magazine sales and sales in general illustrates that she has the basic technical skills for the job. While her annual reviews contained negative language, they also recognized that she had the potential to make contributions to the company. Though it is not the strongest showing, it is nevertheless sufficient. The test does not ask if she is the best qualified for the job — it only asks if she is qualified. Accordingly, Plaintiff has established a prima facie case.
B. Defendant's legitimate, non-discriminatory reason for not promoting Plaintiff
Because Plaintiff's prima facie case creates an inference that Defendant unlawfully discriminated against her, the burden shifts to Defendant to provide a legitimate, non-discriminatory reason for not promoting her. As noted above, Defendant's reasons for not promoting Plaintiff are that she lacked experience, failed to meet Defendant's standards of professionalism, and was not more qualified than Mr. Kronheimer.
While Defendant's reasons may not be enough to prove that Plaintiff was simply not qualified for the job, they are nevertheless legitimate, nondiscriminatory reasons for not promoting Plaintiff. See Gregory, 243 F.3d at 696 ("An employer's dissatisfaction with even a qualified employee's performance may, of course, ultimately provide a legitimate nondiscriminatory reason for the employer's adverse action.").
An employer's explanation of why it did not promote must be clear and specific. Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985). Defendant has provided such reasons. Concerning Plaintiff's skills, Defendant has convincingly explained that Plaintiff did not have extensive experience in the magazine industry, as compared to Mr. Kronheimer. Additionally, Defendant highlighted Plaintiff's annual evaluations, which track Plaintiff's failure to accurately follow administrative procedures. All of this is contrasted with Mr. Kronheimer, who received high marks from supervisors, clients, and colleagues.
Based in part on the annual evaluations, Defendant also concluded that Plaintiff's attitude and work ethic ruled her out as a viable candidate. Especially when documented, examples of employer dissatisfaction can provide an ample basis for a trier of fact to conclude that the reasons behind the employer's decision were nondiscriminatory. Meiri, 759 F.2d at 997.
Plaintiff's opposition memorandum asserts that there are material facts in dispute regarding Defendant's proffered non-discriminatory reasons. Plaintiff attacks Defendant's reasons for not promoting her by pointing to the favorable reviews she received as an employee, the weakness of Defendant's claim that her performance was poor, and the discriminatory atmosphere created by Mr. Wollenberg. This position, however, does not place particular facts in dispute. Rather, it merely argues that a different conclusion should be drawn from the facts.
C. Pretext
Once an employer has provided a non-discriminatory reason for declining to promote the employee, the employer will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding that the employer's proffered reason is a mere pretext for actual discrimination. James, 233 F.3d at 154; Weinstock, 224 F.3d at 42. When, however, an employer's non-discriminatory grounds for not promoting the Plaintiff are substantially established, the task of proving pretext is rendered more difficult. Meiri, 759 F.2d at 997. Here, Plaintiff claims that her superior qualifications, coupled with discriminatory behavior by Mr. Wollenberg, establish that such a pretext exists.
To support a finding that Defendant's proffered reasons were a pretext for unlawful discrimination, Plaintiff's qualifications "would have to be so superior to the credentials of the person selected for the job that `no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (quoting Deines v. Tex. Dep't of Protective and Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999)). Here, Plaintiff has not met this burden. Both Plaintiff and Mr. Kronheimer appear to have their fair share of strengths and weaknesses. For example, while Plaintiff has had more experience at MRI, Mr. Kronheimer has had more experience in the magazine industry. However, Plaintiff has not provided evidence to support a conclusion that it was patently unreasonable for Defendant to promote Mr. Kronheimer instead of Plaintiff. See Byrnie, 243 F.3d at 103.
Plaintiff also points to specific examples of Mr. Wollenberg's conduct which Plaintiff believes establish pretext.
First, Plaintiff notes that Mr. Wollenberg frequently discussed family issues and that Mr. Wollenberg would talk to the men in the sales group about sports to such a degree that "the women could have been invisible." (Sandman Tr. at 153.) Comments about family and discussions about sports, alleged in such a general and conclusory form, do not rise to the level of establishing discrimination.
Plaintiff also attempts to establish pretext by stating that she was told by a co-worker that Mr. Wollenberg said that Mr. Kronheimer was promoted because he was a family man and that therefore he needed a career. This statement cannot be considered on summary judgment because it is hearsay. Fed.R.Civ.P. 56(e); Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999). Plaintiff argues that the statement is a vicarious admission by Mr. Wollenberg and thus is admissible under Federal Rule of Evidence 801(d)(2)(D). Even if Mr. Wollenberg's statement to the co-worker was an admission, the co-worker's statement to Plaintiff remains hearsay.
Furthermore, it is noteworthy that one of the new positions was given to Ms. Drake, a single female. This fact weakens the assertion that marital and sex discrimination were at play when MRI was selecting individuals for promotion to the new positions.
In light of the strength of Defendant's nondiscriminatory reasons for not promoting Plaintiff, and considering Plaintiff's inability to prove that these reasons were a pretext for discrimination, Defendant is entitled to summary judgment on Plaintiff's discrimination claims.
II. Retaliation
Plaintiff asserts that her dismissal in April 2000 was carried out in retaliation for the complaints of discrimination she made to Mr. Wollenberg and MRI's CEO. Retaliation claims are analyzed under the same burden-shifting analysis established in McDonnell Douglas. Richardson v. New York State Dept. of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999). To establish a prima facie case of retaliation, Plaintiff must show participation in protected activity known to Defendant, an employment action by Defendant disadvantaging Plaintiff, and a causal connection between the protected activity and the adverse employment action. Cruz, 202 F.3d at 566. As with the discrimination claim, the Plaintiff's prima facie burden is de minimis. Richardson, 180 F.3d at 444.
Plaintiff has established a prima facie case of retaliation.
In making complaints of discrimination to Mr. Wollenberg and MRI's CEO, Plaintiff engaged in protected activity of which the employer was aware. See Richardson, 180 F.3d at 443. It is similarly clear that Plaintiff's dismissal was an adverse employment action. Lastly, "[p]roof of causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment." DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987).
Here, the termination came within four months of Plaintiff's complaints. Considering the minimal level of proof necessary to establish a prima facie case, Plaintiff has sufficiently proven a causal connection through indirect evidence. See Richardson, 180 F.3d at 444.
Accordingly, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the employment action.
Here, Defendant's reason for terminating Plaintiff's employment what that she lied to her supervisor about her whereabouts — a fact that Plaintiff does not deny. Not only did Plaintiff state that she was with a client when she was really with a friend, but she asked the client to lie on her behalf and she submitted a false expense report to obtain reimbursement for a personal expense. Dishonesty is a legitimate, nondiscriminatory reason for terminating an employee, see Roge v. NYP Holdings, Inc., 257 F.3d 164, 169 (2d Cir. 2001), especially when it is stated in the company's policy.
In response, Plaintiff's memorandum notes that MRI had previously terminated an employee who claimed she was meeting clients when she was in fact conducting personal business. This individual had received a warning from MRI before she was terminated. Plaintiff, however, received no such warning.
Similarly, Plaintiff notes that she was treated differently because her whereabouts were monitored while other employees' whereabouts were not.
Plaintiff's conclusory statements cannot support a finding of pretext. Plaintiff has not provided any evidence that male or married employees were treated differently, and she does not challenge Ms. Drake's testimony that the latter monitored all employees in her group. See Cruz, 20 F.3d at 568. Furthermore, while Defendant could have warned Plaintiff about lying, on the record as a whole a reasonable trier of fact could conclude that her admitted conduct was so egregious that a warning was not mandated, and that her termination was based solely on her dishonest conduct. Accordingly, Plaintiff's retaliation claim must fail. Conclusion For the foregoing reasons, Defendant's motion for summary judgment is granted.
SO ORDERED.