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SHIPPER v. AVON PRODS.

February 11, 1985

GAIL SHIPPER and CATHY SMITH, Plaintiffs
v.
AVON PRODUCTS, INC. and AVON PRODUCTS, INC. RETIREMENT PLAN, Defendants



The opinion of the court was delivered by: CANNELLA

CANNELLA, D.J.

MEMORANDUM AND ORDER

 Defendants' motion for summary judgment is granted. Fed. R. Civ. P. 56(b).

 FACTS

 Plaintiffs Gail Shipper and Cathy Smith originally brought this action in the Supreme Court of the State of New York. It was removed to this Court on February 24, 1983. The amended complaint, filed in this Court, contains five causes of action based upon violations of the federal statutes governing age discrimination and pension plans, as well as state laws governing wrongful discharge, contract, prima facie tort and fraud. *fn1" Jurisdiction is premised upon 28 U.S.C. § 1331. On June 3, 1983, Shipper filed another action based upon sex discrimination, 83 Civ. 4204 (JMC) (filed June 3, 1983), which was consolidated with this action. Order, 83 Civ. 1453 (JMC) (S.D.N.Y. June 28, 1983).

 Most of the facts of the case are uncontested. Shipper was hired by defendant Avon Products, Inc. ["Avon"] in November 1971. Prior to that, she had not been employed full-time since May 1970. For eight years Shipper progressed along the company hierarchy with regular promotions until by the fall of 1979 she had achieved the position of Director, Project Communications. Her periodic performance appraisals indicate that she did very strong creative work, but had difficulties in her relations to other employees, which increased as her management responsibilities became more demanding. *fn2" She claims that she had few problems relating to other people and that she was sensitive and flexible, although sometimes opinionated. *fn3" It is undisputed that she was perceived to have such problems by her superiors and that management made her aware of its concern about her performance as a manager. *fn4"

 In January 1980, Plaintiff Shipper was first informed by her supervisor, D. Brooks Cole that her employment would be terminated. *fn5" She was then removed from her position as Director, Project Communications and assigned to work on a "beauty book." *fn6" According to plaintiff, she then spent the spring discussing with various Avon personnel the possibility of retaining her position or obtaining another position elsewhere in Avon. By letter dated June 16, 1980 to James Preston, President of the Avon Division, she stated that she did not "understand why [she] was let go," and that she still hoped for a reversal, albeit recognizing that such a possibility was "wishful thinking." *fn7" On June 27, 1980, she received a letter from J. Alvin Wakefield, Vice President and General Manager of the Avon Home Office Administration, confirming a conversation between Wakefield and Shipper of June 26. This letter states that Shipper's "last day at Avon" was to be June 30th and describes the severance package. The severance arrangement was to "go into effect on July 1st and [to be paid] on the regular two week pay days until [she found] employment or until the severance period ends," after 26 weeks of payments. *fn8" It states: "Our reason for treating your severance in this fashion is to keep you covered with your current benefit package during this period, or until employment is found." *fn9" The severance payments were continued until December 31, 1980, although Shipper left Avon on June 30, 1980. Shipper does not dispute that she received these notices. *fn10" She claims, however, that she continued to discuss reemployment at Avon in another capacity throughout the fall and thus did not consider her employment to have terminated until December 31, 1980.

 On August 24, 1981, Shipper filed a charge of sex and age discrimination with the Equal Employment Opportunity Commission ["EEOC"] based upon Avon's removal of her as Director of Project Communications, denial of pension rights and failure to "bridge" the approximately one and a half years remaining before her pension rights vested. *fn11" The EEOC dismissed her charge as untimely filed and issued her a right to sue notice. *fn12"

 Shipper was 40 years old when she was fired. She was replaced by a man, aged 41. Her claim of sex discrimination is based upon her calculations of the percentages of women holding high-level management jobs at Avon. *fn13"

 Plaintiff Cathy Smith was hired as a full-time employee of Avon on May 13, 1974. Except for two weeks of free-lance work for Avon, she had been employed since December 1973. She worked in numerous positions at Avon during her six years there, the last of which was Creative Manager, Project Communications. Her performance appraisals were consistently very good, with only minor criticisms. *fn14" On September 30, 1982, she was informed by telephone that she had been fired because her job had been eliminated. According to Smith's supervisor, Marcia Cantarella, Director, Project Communications, Smith was the weakest of the three managers in the department and thus dismissed when it became necessary to eliminate one of the Creative Manager positions. Smith claims she was not the weakest and that her position was not in fact eliminated, but just renamed. *fn15" She ceased employment on September 30, 1982, but was given a severance agreement similar to Shipper's that extended her severance payments until January 19, 1983. *fn16" Smith was 39 on September 30, 1982. She turned 40 on December 4, 1982. She filed no charge with the EEOC or any state or local fair employment agency.

 Both plaintiffs were members of the Employees' Retirement Plan of Avon [the "Plan"], which has been duly qualified by the Secretary of the Treasury pursuant to the Internal Revenue Code. See 26 U.S.C. § 401(a). *fn17" The Plan provides that an employee's rights to pension benefits shall only vest after ten years of service at Avon. Because neither Smith nor Shipper had fulfilled the ten-year requirement before termination, neither received any pension benefits. Additionally, the Plan explicitly states that it "shall not be construed as conferring any legal rights upon any Employee nor shall it interfere with the right of the Employer to discharge any Employee." *fn18"

 No employee handbook or manual from the relevant time period has been produced that contains language promising not to dismiss employees for lack of good cause or any other limitations upon the employer's right to discharge an employee. Although plaintiffs' Memorandum of Law in Opposition to this motion asserts that "during the pre-employment interview period, both plaintiffs were assured that they would not be discharged without just cause or reason," *fn19" neither plaintiff has ever asserted such to be the case. Nor is there any evidence that such statements were made to the plaintiffs. In fact, both plaintiffs have made statements to the contrary. *fn20"

 DISCUSSION

 A motion for summary judgment may only be granted if no genuine issue of material fact remains to be tried. Granite Computer Leasing Corp. v. The Travelers Indem. Co., 751 F.2d 543, slip op. at 1108 (2d Cir. Dec. 27, 1984); Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244-45 (2d Cir. 1984). Moreover, the Court must draw all reasonable inferences against the moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Schwabenbauer v. Board of Educ., 667 F.2d 305, 313 (2d Cir. 1981), who retains the burden of proving that no material factual issue remains, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir. 1980). Nonetheless, the party opposing the motion must present more than a mere conclusory ...


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