Opinion
95 Civ. 3731 (AJP).
November 29, 2000.
OPINION AND ORDER
Pro se plaintiff Gwendolyn Austin, a black female over age forty, has brought this action under Title VII and the Age Discrimination in Employment Act ("ADEA") against her employer Ford Models, Inc. following her termination. Austin claims race and age discrimination based on: (1) her failure to receive overtime compensation that comparable Ford employees allegedly received; (2) her lack of assistance via an accounting clerk while comparable employees allegedly were given such assistance; and (3) her termination. The parties have cross-moved for summary judgment. The parties also have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 54-55.)
For the reasons set forth below, Ford's summary judgment motion is granted and Austin's cross-motion is denied.
FACTS
Plaintiff Gwendolyn Austin is an African-American female who was born on July 4, 1940. (Ford Austin 56.1 Stmts. ¶ 1, 113; Austin 5/14/00 Aff. ¶ 4; Ex. B at E-5, E-11.) The Court notes that although Austin is pro se, she is a student at Brooklyn Law School. (Ex. F: Austin Dep. at 5-6.)
References to lettered exhibits are to those submitted by Ford; references to numbered exhibits are to those submitted by Austin.
Ford Models, Inc. ("Ford") is an internationally known modeling agency that was founded by Eileen and Gerard Ford more than fifty-three years ago. (Ford Austin 56.1 Stmts. ¶ 3; Gerard Ford Aff. ¶ 2.) Its principal revenues are the fees for model bookings that it receives from clients including fashion designers, advertisers, fashion publications, department stores and catalog publishers. (Id.)
Gerard Ford is 75 years old and Eileen Ford is 78 years old. (Gerard Ford Aff. ¶ 5.)
In 1987, a senior collector position in Ford's Accounting Department was vacant, and Austin was referred to Ford by Eileen Ford's brother. (Ford Austin 56.1 Stmts. ¶¶ 4-5, 115; Gerard Ford Aff. ¶ 7; Austin Dep. at 127-28.) Eileen and Gerard Ford interviewed Austin and Mr. Ford offered her the senior collector position, which she accepted. (Ford 56.1 Stmt. ¶ 6; Austin Dep. at 129, 132; Gerard Ford Aff. ¶¶ 3-4, 9.) When Austin was hired she was over forty years old. (Ex. A: 2d Am. Compl. ¶ 7; Gerard Ford Aff. ¶ 4; Austin 5/14/00 Aff. ¶ 4.) Austin began work at Ford in late September or early October 1987. (Ford Austin 56.1 Stmts. ¶¶ 7, 118; Gerard Ford Aff. ¶ 9; Austin 5/14/00 Aff. ¶ 5.)
Four positions in Ford's Accounting Department, including Austin's, reported directly to Mike Polesky, the head of Ford's Accounting Department and Ford's treasurer, who is a white male over the age of forty. (Ford Austin 56.1 Stmts. ¶¶ 10, 11, 15; Gerard Ford Aff. ¶ 10.) Each of these positions had discrete functions in the office. (Ford Austin 56.1 Stmts. ¶ 17.) The other three people who reported to Polesky, all of whom were under age forty, were Mona Feigenbaum, a white female who worked primarily in payroll and benefits; Robert Strand, a white male who worked with invoicing and model payments; and Phillipe Chollet, a French-speaking white male whose primary responsibility was to act as a liaison between Ford's Paris, France and New York offices. (Ford Austin 56.1 Stmts. ¶¶ 18-21; see also Feigenbaum 4/12/00 Aff. ¶¶ 1, 3, 6, 8, 11-13.) Throughout Austin's tenure at Ford, the number of staff positions in the Accounting Department remained fairly constant, ranging from nine to twelve positions between 1987 and 1994. (Ford Austin 56.1 Stmts. ¶¶ 23-24.)
Austin claims that Chollet was not comparable to her because his workload and responsibility were much less than hers. (Austin 56.1 Stmt. ¶¶ 17, 22.)
Austin's primary function as the senior collector was to check client credit and collect Ford accounts receivable. (Ford Austin 56.1 Stmts. ¶ 12.) Her principal duties included verifying credit on new accounts, posting cash receipts, collecting outstanding balances, reconciling accounts in dispute, sending out statements, and handling bankruptcy claims. (Ford Austin 56.1 Stmts. ¶ 13; Austin 5/14/00 Aff. ¶ 8.)
The Loss of Austin's Assistant and Her 15% Salary Increase
In March 1992, a vacancy occurred in the Accounts Payable section of Ford's Accounting Department, and Ford sought a replacement clerk. (Ford Austin 56.1 Stmts. ¶ 33.) Since Austin began with Ford, she had had an accounts receivable clerk reporting to her. (Ford Austin 56.1 Stmts. ¶ 34.) According to Gerard Ford, he thought the receivable function should be handled by one person not two (i.e., Austin without a clerk), and used the vacancy in Accounts Payable to provide the receivable clerk with another position:
21. For some time, I felt that the accounts receivable function could and should be handled by one individual instead of two: It was very common for a client to pay some but not all of its outstanding invoices. The Accounts Receivable Clerk recorded incoming payments from the Company's clients by applying them to the invoices that were paid, so he was the first to know about the partial payments. The Senior Collector (Ms. Austin at this time) . . . would usually not learn of the payment problem until later. . . . My opinion was that this division of labor between clerk and collector was inefficient and that collections would improve if the collector, who had to followup with the clients, would see these problem payments as they came in instead of waiting for a weekly report. Having one person responsible for both posting of receipts and follow-up calls would allow for more immediate follow up with clients about their errors or omissions in payments.
22. In June 1992, one of the Accounts Payable Clerk positions had been unfilled for some time. I viewed this as an opportunity to consider eliminating the position of Accounts Receivable Clerk and transferring the employee in that position . . . to Accounts Payable, which would accommodate the competing demands of the Company to keep costs down, to fill the open Accounts Payable slot, and achieve more efficiency in collections and therefore improve the Company's cash flow.
(Gerard Ford Aff. ¶¶ 21-22, emphasis added.) Ford asserts that the decision to eliminate the accounts receivable clerk position was based solely on business and economic considerations. (Gerard Ford Aff. ¶ 24; Ford 56.1 Stmt. ¶ 40.)
It is undisputed that Ford gave Austin a 15% salary increase for handling Accounts Receivable without a clerk. (Gerard Ford Aff. ¶ 23; Ford Austin 56.1 Stmts. ¶ 37.) Gerard Ford believed that this solution was satisfactory to Austin. (Gerard Ford Aff. ¶ 23; Ford 56.1 Stmt. ¶ 39.) Austin, in contrast, claims that she had no choice in the matter: her option was to "accept the 15% salary increase and the increased workload — or reject the salary increase and accept the increased workload." (Austin 56.1 Stmt. ¶ 39.)
Austin testified that:
[In 1992], I was told my assistant would be going to accounts payable and that I would be getting a 15 percent pay increase. And I objected to losing my assistant. I was told that the decision, basically, had been made.
My impression was that I could refuse the 15 percent, but I would still have the work to do unless I was going to quit my job. And I wasn't planning to quit my job. So I said well, I'll take the money and do the best I can.
(Austin Dep. at 328.)
Austin alleges that the elimination of her clerk-assistant's position was motivated by race and age discrimination. (Austin 56.1 Stmt. ¶¶ 36, 40.) She asserts that Gerard Ford's belief that eliminating the clerk's position was a good idea was limited to Austin's tenure because Austin's Caucasian replacement was given an assistant. (Austin 56.1 Stmt. ¶¶ 35-36.) Austin also asserts that the raise she received is immaterial because comparable employees received similar raises without increased workloads. (Austin 56.1 Stmt. ¶ 37: "in 1989, [Mona] Feigenbaum received a 13.6% salary increase in addition to an Accounts Payable Clerk who assumed her responsibilities in that area. In 1990, 1991, 1992 and 1993, Feigenbaum received salary increases of 10%, 5%, 3% and 5% respectively.") Nevertheless, Austin did not complain about the loss of her assistant until shortly before she was terminated.
Ford's No-Overtime-Compensation Policy
The regular work week at Ford was 37.5 hours. (Ford Austin 56.1 Stmts. ¶ 67; Feigenbaum 4/12/00 Aff. ¶ 14.) Ford's "general rule was that employees did not receive overtime pay if they worked more than 37.5 hours a week." (Ford Austin 56.1 Stmts. ¶ 68; see also Gerard Ford Aff. ¶ 28; Feigenbaum 4/12/00 Aff. ¶¶ 14, 16, 19.) Austin admits that she was aware of this rule. (E.g., Austin 5/14/00 Aff. ¶ 9.) Gerard Ford stated that there was a computer exception to this rule, i.e., because Ford did not have a computer technology department, when Strand worked overtime on computer-related matters unrelated to his regular duties he was given either compensatory time or overtime pay. (Ford Austin 56.1 Stmts. ¶¶ 70-71; Gerard Ford Aff. ¶ 29; Feigenbaum 4/12/00 Aff. ¶ 20.)
After the reassignment of the accounts receivable clerk in 1992, Austin claims that she spent more time in the office and began taking work home with her in order to accommodate her increased workload. (Austin 56.1 Stmt. ¶¶ 43-45.) Austin contends that this constituted "overtime work" for which she was not compensated, while Austin believes that Mona Feigenbaum received compensatory time for overtime work:
Based on Ford's summaries of Austin's time sheets, she spent an average of 7 hours 57 minutes a day during the first six months of 1992 when she had a clerk, and in 1992 after the clerk position was eliminated, only 8 hours 9 minutes, and in 1993 she spent an average of 8 hours 15 minutes in the office. (Feigenbaum 4/12/00 Aff. ¶¶ 53-55; Ex. J.) Thus, any increase in Austin's in-office hours as a result of elimination of the clerk position was de minimis.
A: . . . I do believe [Feigenbaum] received time [for working extra hours].
Q: And your basis for alleging that she received time off is that conversation you described to us that you overheard?
A: Yes. It was a conversation to — we were just sort of sitting down, "I won't be in tomorrow because I worked at home." Not "I'm taking a vacation day," not "I'm taking a personal day," "I just won't be in because I worked at home."
. . . .
Q: You don't really know the circumstances that led to Ms. Feigenbaum's statement about taking time off because she worked at home?
A: No.
Q: So you don't know whether she was asked to do some special project at home . . .
A: I have absolutely no knowledge of what she did at home or . . . how it came about.
(Austin Dep. at 302-03.)
In contrast, Feigenbaum testified that she regularly worked overtime without pay and "considered it [her] obligation, because of the responsibility entrusted to [her], to do [her] job regardless of the amount of time it took." (Feigenbaum 4/12/00 Aff. ¶ 16.) Feigenbaum further explained that the incident Austin referred to in her deposition involved a "special project" in March 1994 outside of her job responsibilities which required her to spend the entire weekend working at home at the specific request of Gerard Ford to deal with an "emergency" matter. (Feigenbaum 5/26/00 Aff. ¶¶ 2-3.)
Austin alleges that Ford's failure to pay her overtime compensation while giving it to comparable younger, white employees was motivated by race and age discrimination. (Austin 56.1 Stmt. ¶ 50.) Again, however, Austin never complained about this until shortly before she was terminated.
Austin's Termination
Gerard Ford contends that several factors led to his May 1994 termination of Austin:
The events that led to . . . [Austin's] termination were Ms. Austin's:
a. arguing loudly with her boss;
b. generally announcing in the Accounting Department that she would not be working too hard at her job;
c. refusing to make more aggressive collection calls her priority as instructed by her supervisor;
d. persisting in complaints about other departments and demanding changes in their procedures (which Ms. Austin confirmed in memoranda that she annexed to the Second Amended Complaint); and
e. conducting a unilateral work slowdown and jeopardizing the Company's collections.
(Gerard Ford Aff. ¶ 34.) Specifically: In January 1994, Austin had a "very heated," "yelling" conversation with her supervisor Polesky; Polesky told her to focus on making more aggressive collection calls and that she was spending too much time on matters that did not concern her. (Ford Austin 56.1 Stmts. ¶¶ 81-84; see also Austin 5/14/00 Aff. ¶ 16.) Polesky reported this argument to Gerard Ford and also reported that Austin had loudly announced to people in the Accounting Department that she would no longer work as hard at her job. (Ford 56.1 Stmt. ¶ 85; Gerard Ford Aff. ¶ 32; Feigenbaum 4/12/00 Aff. ¶ 60.) While Austin denies saying that she would not work as hard (Austin 56.1 Stmt. ¶ 85), she sent a memo to Polesky after the argument confirming his instructions "to concentrate on making collection calls" and asking him to advise which clerical work she should eliminate or reassign. (Ford Austin 56.1 Stmts. ¶ 87; Ex. D; Austin 5/14/00 Aff. ¶ 17.) Austin's memo also stated that Ford "must understand that [she was] not prepared to `donate' any more time" and that she would "not work more hours than [she] presently do[es]." (Ex. D at E-95; see Ford 56.1 Stmt. ¶ 89.)
Q: Did there come a time in late December 1993, when you had a heated conversation with Mike Polesky?
A: We had a — it was either late December `93 or early January `94.
. . .
Q: When you say "heated," I think you referred to it in some of your previous filings in this case as "very heated"?
A: We were yelling at each other.
Q: You were both yelling?
A: Right.
(Austin Dep. at 196, 198-99.)
Ford claims that in January 1994, Austin began a "work slowdown." (Ford 56.1 Stmt. ¶ 91; see also id. ¶¶ 94-95.) Austin denies that she conducted a work slowdown (Austin 56.1 Stmt. ¶¶ 91, 94-95), but admits that she "`stopped routinely working [unpaid] overtime in January'" and further admits that "during this period she did not take any clerical work home in order to accommodate the increased workload." (Austin 56.1 Stmt. ¶ 94; see also Ford 56.1 Stmt. ¶ 94.)
Austin also admitted in her affidavit to the EEOC that "[i]n late January 1994 I stopped working the extra hours since I was not being compensated nor was I receiving any cooperation from management with respect to adjustments in my workload." (Ex. B at E-7.)
Ford claims that Austin's work slowdown "`caused serious problems for the company.'" (Ford 56.1 Stmt. ¶ 97.) Austin denies this and claims that she handled her "primary accounts receivable functions" but "reduced her involvement in ancillary clerical tasks" in compliance with Polesky's instructions. (Austin 56.1 Stmt. ¶ 97.)
In March and April 1994, Ford had a serious cash flow crisis and Austin asked Polesky if she was going to be "scapegoated" for those problems. (Ford Austin 56.1 Stmts. ¶ 102; see also Ford Austin 56.1 Stmts. ¶ 105.) Austin concedes that there was a cash flow crisis. (Ex. B at E-7: Austin EEOC Aff.; see also Austin 5/14/00 Aff. ¶¶ 21-22.) According to Ford, "management concluded that Austin had not been handling her job competently for some months" (Ford 56.1 Stmt. ¶ 100), and Gerard Ford — who had hired Austin — made the final decision to fire her as of May 6, 1994. (Ford 56.1 Stmt. ¶¶ 103-04; see also Ford Austin 56.1 Stmts. ¶¶ 103, 119.) Austin, however, asserts that the "cash crisis was a charade" and that she was fired because of age and race discrimination. (Austin 56.1 Stmt. ¶¶ 100, 104-05.)
"Following Austin's departure, it took Ford Models considerable time to find a replacement. Initially, [Austin's] duties were performed on a stop gap basis using existing and temporary employees, until the job was offered to Michael Kamlet, who started on staff in November 1996, well over two years after Austin left. Kamlet is a Caucasian man in the protected age group," i.e., he was 54 years old when hired. (Ford Austin 56.1 Stmts. ¶ 106; see also Feigenbaum 4/12/00 Aff. ¶ 65; Austin 5/14/00 Aff. ¶ 24; Ford Austin 56.1 Stmts. ¶ 176.) Kamlet has been given a clerk assistant. (Austin 5/14/00 Aff. ¶ 24.)
PROCEDURAL HISTORY
"In June 1994, Austin filed an EEOC Charge of Discrimination based on race, sex and age in violation of" Title VII and the ADEA. (Ford Austin 56.1 Stmts. ¶¶ 108; see also Ex. B.) Austin acknowledged to the EEOC "that `at first glance' her treatment `may not appear to be overt discrimination,' but that she nevertheless believed she was subject to an `overall pattern . . . of persistent benign neglect with disparate treatment that falls along racial lines." (Ford Austin 56.1 Stmts. ¶ 110.) On February 21, 1995, the EEOC issued a finding of no discrimination. (Ford Austin 56.1 Stmts. ¶ 112; see Ex. S: 2/21/95 EEOC Letter.)
Austin brought this suit on or about May 23, 1995 and filed an amended complaint on June 30, 1995. (Dkt. Nos. 1, 2.) Ford moved to dismiss the amended complaint and in response, Austin sought to file a Second Amended Complaint. (See Dkt. Nos. 11-14.) On November 26, 1996, the District Judge to whom the case was then assigned granted Ford's motion to dismiss and denied Austin leave to amend. (See Dkt. No. 15.)
The Second Circuit affirmed in part and reversed in part. Austin v. Ford Models, Inc., 149 F.3d 148 (2d Cir. 1998). The Second Circuit held that the District Court erred in dismissing Austin's claim of race discrimination regarding overtime, but affirmed the dismissal of her age and sex discrimination claims regarding overtime. Id. at 153-54. The Second Circuit also reinstated Ford's race and age discrimination claims regarding staff assistance, but affirmed dismissal of her sex discrimination claim regarding staff assistance. Id. at 154. Finally, the Second Circuit vacated the dismissal of Austin's race and age discriminatory discharge claims. Id. at 154-55. The Second Circuit made clear, however, that the discriminatory discharge claim was dependent on Austin proving discrimination regarding staffing or overtime:
[I]n the context of Austin's allegations of discrimination as to overtime and staffing allocation, her statement that she refused to work "extra" or overtime hours without pay can be construed as a refusal to comply with working conditions of employment prohibited by Title VII and the ADEA. If indeed Ford denied Austin overtime pay because of her race and denied Austin equal staffing assistance because of her race and age, then it would plainly be discrimination for Ford to fire Austin for refusing to work unpaid overtime hours without an assistant. Thus, we vacate the district court's dismissal of Austin's race and age discriminatory discharge claims.
Id. at 155 (emphasis added).
On remand, Austin was permitted to and did file a Second Amended Complaint in accordance with the Second Circuit's ruling. (See Dkt. No. 25; Ex. A: 2d Am. Compl.) The Second Amended Complaint also asserts a claim under New York Executive Law § 296. (Ex. A: 2d Am. Compl. ¶¶ 68-74.) After completion of discovery, the parties cross-moved for summary judgment.
ANALYSIS
I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 352; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (At summary judgment, "[t]he time has come . . . `to put up or shut up'"); Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.
Accord, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
Accord, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).
Accord, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.
Accord, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.
See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.
When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224. Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224; Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990). "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. . . . There must either be a lack of evidence in support of the plaintiff's position . . . or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); accord, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354. Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *7 (2d Cir. Nov. 8, 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, `[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination.") (alterations in original); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'"). Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.
Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
See also, e.g., Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Engelmann v. National Broad. Co., 94 Civ. 5616, 1996 WL 76107 at *7 (S.D.N.Y. Feb.22, 1996).
See also, e.g. Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).
II. FORD'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED BECAUSE AUSTIN HAS NOT PROVEN THAT FORD'S BUSINESS REASONS WERE PRETEXTUAL OR PRESENTED ANY EVIDENCE OF DISCRIMINATION
A. Title VII and ADEA Standards
Title VII and ADEA Standards The Age Discrimination in Employment Act ("ADEA") makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105 (2000); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 637 (2000); McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 355, 115 S.Ct. 879, 883 (1995); Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 1706 (1993); Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000).
See also, e.g., McCarthy v. New York City Technical College, 202 F.3d 161, 165 (2d Cir. 2000); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 120 S.Ct. 2718 (2000); Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.). The ADEA protects employees who are over 40 years old. 29 U.S.C. § 631(a); see also, e.g., Kimel v. Florida Bd. of Regents, 120 S.Ct. at 637; Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Renz v. Grey Adver., Inc., 135 F.3d 217, 221 (2d Cir. 1997); Raskin v. Wyatt Co., 125 F.3d at 60; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354.
The burden shifting analysis articulated in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973), and its progeny, for Title VII cases is applied to disparate treatment employment discrimination claims under the ADEA. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2105 (Supreme Court "assume[s] arguendo, that the McDonnell Douglas framework is fully applicable" in ADEA case); Hazen Paper Co. v. Biggins, 507 U.S. at 610-14, 113 S.Ct. at 1706-08; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22 (1985); Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *3 (2d Cir. Nov. 8, 2000) ("We have explained that we analyze ADEA claims `under the same framework as claims brought pursuant to Title VII.'").
See also, e.g., Tarshis v. Riese Org., 211 F.3d at 35; Austin v. Ford Models, Inc., 149 F.3d at 152; Renz v. Grey Adver., Inc., 135 F.3d at 221; Raskin v. Wyatt Co., 125 F.3d at 60; Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354-55.
Under the McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. Establishment of a prima facie case" `in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).
See also, e.g., Schnabel v. Abramson, 2000 WL 1676601 at *3; Austin v. Ford Models, Inc., 149 F.3d at 152; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Weber v. Givenchy, Inc., 49 F. Supp.2d at 354; Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.
See also, e.g., Fisher v. Vassar College, 114 F.2d at 1335; Scaria v. Rubin, 117 F.3d at 654; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton Indus., Inc., 91 Civ. 918, 1996 WL 421449 at *8 (S.D.N.Y. April 25, 1998) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N Y Oct. 22, 1996) (Knapp, D.J.).
Once a plaintiff claiming employment discrimination has established a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310; 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.
See also, e.g., Schnabel v. Abramson, 2000 WL 1676601 at *3; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 104 F.3d at 1335; Chambers v. TRM, 43 F.3d at 38; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355-56; Lediju v. New York City Dep't of Sanitation, 173 F.R.D. at 114; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.
See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.
"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36; accord, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356. "`It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quoting St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747); accord, e.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 3562.
If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g, Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106 (citation omitted) (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336; Weber v. Parfums Givenchy Inc., 49 F. Supp. at 356.
Just last term, the Supreme Court clarified the standard at this stage of the McDonnell Douglas analysis:
[I]n St. Mary's Honor Center, . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."
In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .
Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"
Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.
Reeves v. Sanderson Plumbing, 120 S.Ct. at 2108-09 (emphasis added citations omitted).
After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:
In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that an ADEA claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no ADEA defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."
Schnabel v. Abramson, 2000 WL 1676601 at *7 (emphasis added).
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").
Indeed, the Second Circuit and the District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.
E.g, Schnabel v. Abramson, 2000 WL 1676601 at *7-8; Weinstock v. Columbia Univ., 224 F.3d at 43-50; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N Y Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D.Conn. 2000); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).
The Court therefore turns to the McDonnell Douglas analysis of Austin's claims and evidence.
B. Application of the McDonnell Douglas Standards to Austin's Case
1. Step 1: Austin's Prima Facie Case
In order to establish a prima facie case of discrimination in violation of the ADEA or Title VII, a plaintiff must show that: (1) she is a member of a protected class (in the ADEA context, individuals who are at least 40 years of age); (2) she satisfactorily performed the duties of her position; (3) she was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000); Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *3 (2d Cir. Nov. 8, 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Tarshis v. Riese Org., 211 F.3d at 35; Carlton v. Mystic Transport., Inc., 202 F.3d at 134; Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998).
See also, e.g., Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Raskin v. Wyatt Co., 125 F.3d 55, 63-64 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N Y 1999) (Wood, D.J. Peck, M.J.).
"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 2000 WL 1676601 at *3.
See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Raskin v. Wyatt Co., 125 F.3d at 64; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 32; Fisher v. Vassar College, 114 F.3d at 1335; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.
Austin appears to have met these minimal requirements. Austin is a member of the protected classes because she is black and over 40 years old. Austin clearly was qualified for the senior collection position at which she had worked since 1987, with no problems until late 1993 or January 1994. Austin suffered an adverse employment decision when she was fired, and she was ultimately replaced by a Caucasian male, albeit one also over 40. It is also arguable that she suffered adverse employment actions in not receiving overtime compensation and having her assistant transferred allegedly without her approval; analysis of those issues, however, is better handled at the third McDonnell Douglas step.
The Court therefore assumes that Austin has stated a prima facie case of age and race discrimination.
2. Step 2: Defendant Ford's Burden to State a Legitimate, Non-Discriminatory Reason for Its Actions
The burden thus shifts to Ford to articulate a legitimate, non-discriminatory reason for Austin's failure to receive overtime, additional staffing, and her ultimate discharge. (See cases cited at pages 21-22, above.)
Ford contends that any adverse employment decisions that affected Austin were business-related and had nothing to do with her age or her race. (See pages 4-10 above.) First, Ford has provided evidence that it had a no-overtime policy during Austin's tenure for tasks that were deemed part of the employee's normal responsibilities. (Gerard Ford Aff. ¶ 28; Ford Austin 56.1 Stmts. ¶ 68; Feigenbaum 4/12/00 Aff. ¶¶ 14, 16, 19; see pages 6-7 above.) Second, Ford has presented evidence that the reassignment of Austin's clerk was a business decision (in order to have all accounts receivable work performed by a single person) and that Austin was compensated through a 15% pay raise for the additional work caused by the transfer. (Gerard Ford Aff. ¶ 21-24; see pages 4-5 above.) Finally, Ford has provided several reasons why Austin was ultimately discharged, none of which had to do with her age or race, including a loud argument with her supervisor, her admitted refusal to work as many hours as previously, and the company's resulting cash flow crisis. (See pages 8-10 above.)
This Court may not second-guess an employer's non-discriminatory business decisions, even if those decisions are unwise. See, e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' nondiscriminatory business reasons."), cert. denied, 504 U.S. 985, 112 S.Ct. 2965 (1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second-guess business decisions . . . [unless] the employer's `business decision' was so lacking in merit as to call into question its genuineness."); Scaria v. Rubin, 94 Civ. 333, 1996 WL 389250 at *8 (S.D.N.Y. July 11, 1996) (Peck, M.J.) ("an employer has discretion even to make a bad business decision . . ., so long as that decision is not motivated by discrimination"), aff'd, 117 F.3d 652 (2d Cir. 1997).
See also, e.g., Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *9, 10 (S.D.N.Y. Nov. 9, 2000) ("[A]bsent evidence of discrimination, it is not the province of the Court to sit as a super-personnel department that reexamines an entity's business decisions . . . The ADEA does not compel court's to adjudge the wisdom of a corporation's business decisions.") (internal quotations omitted); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3 (S.D.N.Y. Sept. 22, 2000) ("This is not a suit for wrongful discharge, but of employment discrimination. The jury cannot substitute its business judgment for that of the employer."); Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *6 (S.D.N.Y. July 17, 2000) ("even if [defendant's] decision to fire her was `petty, mean [or] wrong,' . . . that does not make it illegal"); Williams v. Salvation Army, 108 F. Supp.2d 303, 311 (S.D.N.Y. 2000); Byrnie v. Town of Cromwell Public Schools, 73 F. Supp.2d 204, 214 (D.Conn. 1999) ("Title VII and the ADEA are not violated just because an employer made an erroneous, poor or illogical business decision."); Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at *6 (S.D.N.Y. March 29, 1999) ("Defendant offers evidence that the decision to terminate Plaintiff was made for several business related (i.e., nondiscriminatory) reasons. `It is not the function of this Court to second-guess an employer's business decisions.'"); Berhanu v. New York State Ins. Fund, 91 Civ. 4956, 1999 WL 813437 at *13 (S.D.N.Y. Oct. 8, 1999); Roman v. Cornell Univ., 53 F. Supp.2d 223, 241 (N.D.N.Y. 1999); Mauro v. Southern New England Telecomm., 46 F. Supp.2d 181, 185 (D.Conn. 1999), aff'd, 208 F.3d 284 (2d Cir. 2000); Walsh v. United Cable Tech. Servs. Corps. Telecomm., Inc., 46 F. Supp.2d 170, 173 (D.Conn.), aff'd mem., 201 F.3d 434 (2d Cir. 1999); Ruane v. Continental Cas. Co., 96 Civ. 7153, 1998 WL 292103 at *11 (S.D.N.Y. June 3, 1998) ("Federal courts . . . do not sit as `roving commission[s] to review business judgment.'"); Hansen v. Dean Witter Reynolds, Inc., 887 F. Supp. 669, 673 (S.D.N Y 1995); Gilman v. Runyon, 865 F. Supp. 188, 193 (S.D.N.Y. 1994) (The fact finder should not assess "whether the employer's decision was erroneous or even rational, so long as the employer's actions were not taken for a discriminatory reason."); Lamb v. Citibank, N.A., 93 Civ. 2358, 1994 WL 497275 at *6 (S.D.N.Y. Sept. 12, 1994) ("The court should `refrain from intruding into an employer's policy apparatus or second-guessing a business's decisionmaking process.'").
Ford's articulated reasons for Austin's termination are sufficient to meet its burden of production at the second McDonnell Douglas step. See, e.g., Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5 (S.D.N.Y. Nov. 14, 2000) (facts that plaintiff refused to cooperate and accept work from certain supervisors, expressed her unhappiness about working at defendant's company and acted inappropriately with her supervisor constituted legitimate nondiscriminatory reasons for terminating plaintiff); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 353 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Neratko v. Frank, 31 F. Supp.2d 270, 284 (W.D.N Y 1998) ("His contrariness and inability to get along with employers, supervisors, and co-workers fully qualified as legitimate, nondiscriminatory reasons for the adverse actions."); Williams v. McCausland, 90 Civ. 7563, 1995 WL 548862 at *13 (S.D.N Y Sept. 15, 1995) ("refusal to obey superiors . . . and failure to complete work in a timely manner are each, standing alone, sufficient to rebut a prima facie case under Title VII").
See also, e.g., Wilcox v. Runyon, No. 94-CV-1921, 1995 WL 468270 at *4 (E.D.N.Y. July 31, 1995); Devine v. Whelan, 90 Civ. 6272, 1993 WL 350049 at *3 (S.D.N.Y. Sept. 3, 1993) (refusal to cooperate with other employees, failure to carry out responsibilities and "poor attitude" were legitimate, non-discriminatory reasons for terminating plaintiff); Thermidor v. Beth Israel Medical Ctr., 683 F. Supp. 403, 412 (S.D.N Y 1988) ("It is widely acknowledged that reasons such as low productivity and conflicts with persons in positions of authority constitute legitimate nondiscriminatory reasons justifying discharge."); Sewell v. New York City Transit Auth., 809 F. Supp. 208, 218 (E.D.N.Y. 1992) (insubordination is legitimate reason for discharge), aff'd mem., 122 F.3d 1056 (2d Cir. 1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1675 (1996).
3. Step 3: Plaintiff Austin's Burden to Show Pretext for
Discrimination
Once the defendant carries its burden of production by articulating legitimate, non-discriminatory reasons for its actions, as Ford has done here, "[t]he plaintiff then has `the full and fair opportunity to demonstrate, . . . that the proffered reason was not the true reason for the employment decision,'" but was in fact a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747 (1993). "[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by age discrimination." Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 119 S.Ct. 349 (1998). "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, `[i]t is not enough . . . to disbelieve the employer,' the factfinder must [also] believe the plaintiff's explanation of intentional discrimination.'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (alterations in original).
Accord, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 358 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); see also cases cited at pages 22-25 above.)
Accord, e.g., Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 119 S.Ct. 511 (1998); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 358; see, e.g., St. Mary's v. Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (a proffered "reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason"); Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994); see also cases cited at pages 22-25 above.
Austin did not suffer any direct adverse consequence from the staffing issue (i.e., the loss of her clerk assistant and use of temporary employees). Rather, the effect was that she was required to work overtime, for which she claims she was not paid as a result of discrimination. (See pages 7-8 above.) Thus, analysis of Austin's staffing claim is subsumed within analysis of her overtime claim.
To the extent the staffing issue requires separate analysis, the Court finds that Austin has not presented evidence that Ford's stated reason — to unify the accounts receivable function in a single person for business efficiency — was pretextual or that it was a pretext for discrimination.
As to the overtime claim, it is undisputed that Austin was aware that Ford had a general no-overtime-compensation policy. (Ford Austin 56.1 Stmts. ¶ 68; see also Austin 5/14/00 Aff. ¶ 9; Gerard Ford Aff. ¶ 28; Feigenbaum 4/12/00 Aff. ¶¶ 14, 16, 19.) Mona Feigenbaum, an under-forty Caucasian who also reported to Polesky, generally worked overtime hours and, except on two special occasions, did not receive overtime compensation. (Feigenbaum 4/12/00 Aff. ¶ 16.) While Austin alleged conclusorily that she believed Feigenbaum received compensatory time (not money) for working overtime, based on a single time when Feigenbaum said she would not be at work the next day because she had worked at home (Austin Dep. at 302-03), Feigenbaum testified that she received such compensatory time only twice; once after she helped clean out the basement and another time in January 1994 (after Austin's work slowdown began) after Feigenbaum worked all weekend on an emergency matter at Gerard Ford's request. (See Feigenbaum 4/12/00 Aff. ¶ 57; Feigenbaum 5/26/00 Aff. ¶¶ 2-3.) Except for those two specific incidents, Feigenbaum regularly worked overtime with pay and "considered it [her] obligation, because of the responsibility entrusted to [her], to do [her] job regardless of the time it took." (Feigenbaum 4/12/00 Aff. ¶ 16.) "Conclusory allegations made by the Plaintiff of (alleged) discriminatory conduct are insufficient to avoid summary judgment." Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at *8 (2d Cir. March 29, 1999).
It is undisputed that Chollet, who also reported to Austin's supervisor Polesky, did not get paid overtime; Chollet was under 40 and Caucasian. (Ford Austin 56.1 Stmts. ¶¶ 21, 75; 4/12/00 Feigenbaum Aff. ¶¶ 13, 23.) Austin claims that Chollet is not a "comparable" employee because his work load was less than hers. (Austin 56.1 Stmt. ¶¶ 17, 22.) The Court need not decide whether Chollet was a comparable employee.
See also, e.g., Budde v. HK Distrib. Co., 99 Civ. 9949, 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e). . . . To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment."), cert. denied, 474 U.S. 829, 106 S.Ct. 91, (1985); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Alston v. New York City Transit Auth., 97 Civ. 1080, 1999 WL 540442 at *7 (S.D.N.Y. July 26, 1999) ("`The most probative means of proving pretextual discharge is to demonstrate that similarly situated . . . employees were treated differently' . . . [but] mere conclusory allegations of discrimination are insufficient to meet this burden."), aff'd mem., 208 F.3d 202 (2d Cir. 2000); Adeniji v. Administration for Children's Services, 43 F. Supp.2d 407, 423 (S.D.N.Y.) (Peck, M.J.) (citing cases), aff'd mem., 201 F.3d 430 (2d Cir. 1999).
Thus, Feigenbaum — who Austin admits is a comparable employee (e.g., Austin Reply Br. at 3, 5) and who is under forty and Caucasian (Ford Austin 56.1 Stmts. ¶ 19; Feigenbaum 4/12/00 Aff. ¶ 3) — regularly worked overtime without compensation. Accordingly, Austin has not shown that Ford's explanation for why Austin did not receive overtime pay was a pretext, much less that it was a pretext for race or age discrimination. See, e.g., Spruill v. North Shore Univ. Hosp., No. 98-CV-7306, 1999 WL 1288941 at *6 (E.D.N Y Nov. 16, 1999) (denying summary judgment where, inter alia, plaintiff claimed he was the only employee required to work consecutive shifts but evidence showed that other employees worked double shifts). Ford's Accounting Department may be a "sweatshop" and its no overtime policy might be considered bad business or unwise, but, as noted above, the courts do not sit in judgment of employers' business decisions. See cases cited pages 28-29 above.
Finally, as to Austin's termination claim, Austin admits that she "`stopped routinely working [unpaid] overtime in January'" 1994 and further admits that "during this period she did not take any clerical work home in order to accommodate the increased workload." (Austin 56.1 Stmt. ¶ 94; see also Ford 56.1 Stmt. ¶ 94; Ex. B at E-7 (Ford EEOC affidavit admitting that she stopped working extra hours in January 1994).) Austin also concedes that Ford had a cash flow crisis in this period. (Austin 5/14/00 Aff. ¶¶ 21-22; Ex. B at E-7; Austin EEOC Aff.) As the Second Circuit noted earlier in this case, "such admissions by a plaintiff [ordinarily] would be sufficient to establish that an employer fired an employee for a legitimate, non-pretextual, non-discriminatory reason." Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998). The Second Circuit declined to dismiss the claim only to the extent Ford claimed that she was fired for refusing to work overtime hours for which she was discriminatorily denied overtime pay (and an assistant). Id. Thus, since Austin has not proved race or age discrimination in connection with overtime, her discriminatory discharge claim also fails. In any event, considering all the evidence in the record, Austin did not prove that Ford's reasons for terminating her were pretextual or a pretext for discrimination.
The Second Circuit has "h[e]ld that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a [district] court examining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *7 (2d Cir. Nov. 8, 2000); see Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2108-09 (2000); see also pages 24-25 above. Here, there were no racist or ageist remarks to or about plaintiff or anyone else. See, e.g., Schnabel v. Abramson, 2000 WL 1676601 at *7 (summary judgment for defendant where, inter alia, "plaintiff has failed to offer any evidence that he was subjected to any age-related comments or criticisms on the job."); Cardozo v. Healthfirst, Inc., 1999 WL 782546 at *8 ("plaintiff was unable to point to any statement by anyone that was discriminatory in nature"); Roman v. Cornell Univ., 53 F. Supp.2d 223, 242 (N.D.N.Y. 1999); Scelza v. North Fork Bank, 33 F. Supp.2d 193, 202-03 (granting summary judgment in favor of defendant where, inter alia, there was "no evidence that anyone made invidious comments about [plaintiff]'s or anyone else's age, or that [defendant] held discriminatory attitudes towards older workers"); Pearlstein v. Staten Island Univ. Hosp., 886 F. Supp. 260, 267 (E.D.N.Y. 1995).
Austin was hired and fired by the same person, Gerard Ford, who himself is 75 years old. See, e.g., Schnabel v. Abramson, 2000 WL 1676601 at *7; Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) ("The fact that the actor involved in both employment decisions is also a member of the protected class only enhances the [same actor] inference" that discrimination was not the motive behind plaintiff's termination.); Cousins v. Howell Corp., 113 F. Supp.2d 262, 269 n. 7 (D.Conn. 2000) (Defendant "is entitled to an inference in its favor based on the fact that Beale, who was over 70, was the person who hired and fired plaintiff, who was over 40 when hired. This is what courts have characterized as the `same actor' inference. . . . [While] "the inference is less compelling when a significant period of time has elapsed between the hiring and firing[,] . . . an added factor in defendant's favor is that the person doing the hiring and firing was in his late 60's and then early 70's.").
See also, e.g., Connell v. Consolidated Edison Co. of New York, Inc., 109 F. Supp.2d 202, 209-10 (S.D.N.Y. 2000); Campbell v. Alliance Nat'l, 107 F. Supp.2d 243, 248-49 (S.D.N.Y. 2000) (discussing the "same actor inference"); Ralkin v. New York City Transit Auth., 62 F. Supp.2d 989, 1000-01 (E.D.N.Y. 1999); Shabazz-Allah v. Guard Mgmt. Serv., 97 Civ. 8194, 1999 WL 123641 at *4 (S.D.N.Y. March 8, 1999) ("Although it is not impossible for an individual in a protected class to discriminate against others who are also members of that class, we believe that the inference [that such discrimination is unlikely] is even more weighty where the person who both hired and fired the plaintiff is also a member of the same protected classes as the plaintiff."), aff'd mem., 201 F.3d 432 (2d Cir. 1999); Dedyo v. Baker Eng'g New York, Inc., 96 Civ. 7152, 1998 WL 9376 at *6 (S.D.N.Y. Jan. 13, 1998).
Austin's prima facie case is weak; Ford's explanation of its conduct is strong; and Austin's evidence simply does not create an inference of discrimination sufficient to defeat defendant's summary judgment motion. E.g., Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.) (Plaintiff's "very weak prima facie case, combined with an at best dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough to support the jury's conclusion that he was fired because of his age."), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998).
See also, e.g., Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *9 (S.D.N.Y. Oct. 23, 2000); Simmons v. ATT, Inc., 96 Civ. 2844, 1998 WL 751659 at *8 (S.D.N Y Oct. 28, 1998), aff'd mem., 182 F.3d 901 (2d Cir. 1999).
As the Court stated in granting summary judgment for defendants in a recent Title VII case:
To invoke the protections of Title VII, an employee must have been subjected to discrimination. A plaintiff who could have been subjected to discrimination by virtue of being a member of a protected class, but was not, could reap an unwarranted windfall if her Title VII claim survives summary judgment in the absence of any proof of discrimination. Title VII, an important statute, must not be exploited and diluted as a result of misuse and misapplication by disgruntled employees who happen to be members of a protected class.
Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 (S.D.N.Y. 2000).
Defendant Ford is entitled to summary judgment.
"Employment discrimination claims brought under the NYSHRL are analyzed identically to claims under the ADEA and Title VII." Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 317 (2d Cir. 1999). Defendants, therefore, should be granted summary judgment on Austin's state as well as federal claims.
CONCLUSION
For the reasons set forth above, Ford's summary judgment motion is granted, and Austin's cross-motion is denied. The Clerk of Court shall enter judgment accordingly.SO ORDERED.