while indicating that knowledge of products was an area for "performance improvement."
In January of 1989, Donaldson was transferred into the Research and Market Development Department because her analytical and statistical skills were viewed as more appropriate for that department. A Jan Moran simultaneously transferred from the Research and Market Development Department to the Marketing Information Services Department. As of Donaldson's transfer, the Research and Market Development Department was staffed by Donaldson, Josephine Dekkers ("Dekkers") and Rafael Berber ("Berber"), all associates, Danielle Gallina, a secretary, and Cadmus, a Vice President and the manager of the department.
According to Cadmus, at all times Donaldson's direct supervisor in the Research and Market Development Department, Donaldson performed, and indeed was only "capable" of performing "secondary" research. As defined by Merrill, such research involves statistical analysis of data generated by another source, such as Merrill's own data base or an outside marketing research firm. By contrast, "primary research," as defined by Merrill, involves the development of the surveys and questionnaires used to elicit the data to be analyzed. According to Merrill, a good deal of Donaldson's time was devoted to analyzing data from the outside marketing research firm of Greenwich Research Company ("Greenwich"). Cadmus concedes that Donaldson also performed primary research functions on at least one project during the six- month period in which she worked for him. Specifically, he admits that she designed "from scratch" the surveys and questionnaires used in an internal study of Account Executives in the Equity Markets Division.
Due to financial pressures resulting from the stock market crash in October 1987 and a $ 370 million trading loss in April 1987, Merrill implemented a series of cost containment measures between 1988 and the present. Among those measures was a hiring freeze beginning in 1988 that has continued and a reduction-in-force program ("RIF") in the Capital Markets Sector implemented in late December 1988 or early January 1989. As part of this program, the Capital Markets Sector was to reduce its headcount by approximately 500 employees from January 1989 through June 1989. Each division within the Capital Markets Sector was assigned a target headcount level to be reached by the end of June 1989. Over the first half of 1989, the Institutional Sales Division was to reduce its total headcount from 922 to 855. By July 17, 1989, Institutional Sales had lowered its headcount to 847. According to both Cadmus and James Baker ("Baker"), then Manager of Human Resource Services for the Capital Markets Sector, the "mandate" during the RIF was to "consolidate and upgrade the organization." Baker Aff. P16 (emphasis in original).
According to Cadmus, in June 1989, Hawrysz directed him to do his part in the RIF by reducing his staff by one Associate. Kuehne was directed to reduce the headcount in the Marketing Information Services Department by two members. As manager of his department, it was within Cadmus's discretion to decide which of his Associates to terminate. Although Merrill imposed no specific criteria for making this determination, the voluntary "Staff Reduction Guidelines" (the "Guidelines") published by Capital Markets Human Resources Department provided that the first step in the termination process was for the "manager [to] review staff and make termination decisions based on assigned targets and employee's individual performance relative to the rest of the group." Cadmus Aff. Ex. C. The Guidelines then set forth an approval process for reviewing termination decisions prior to their execution.
Cadmus claims that, after assessing the skills of Donaldson, Dekkers and Berber, he concluded that the termination of any one of them would create a deficiency in a skill critical to the effective functioning of the department. Donaldson had strong quantitative skills and knowledge of research methodology; Dekkers had an MBA with a specialization in marketing, was a sound technical writer of marketing plans and brochures; and Berber had strong analytical skills and an MBA and had developed an expertise in finance. On the other hand, Cadmus was of the opinion that Donaldson lacked primary research skills and an adequate understanding of the financial services industry, although he was aware that she had considerable primary research experience, including survey design, in the field of wildlife biology; that Dekkers was weak in primary research and statistics and lacked computer skills and financial aptitude; and that Berber's written communication skills and knowledge of survey methodology was inferior to that of Donaldson and Dekkers.
Meanwhile, Cadmus contends that the shifting needs of the departments Research and Market Development served warranted a deemphasis on secondary research (such as Greenwich) and the development of primary research capabilities in his department. In July, 1988, before Donaldson joined the department, Cadmus reported in a memorandum to Hawrysz that there was a "gap" in primary research skills in his department. Again in January 1989, after Donaldson joined the department, he stated in a memorandum to Hawrysz that a position remained "open" in the department for an Associate with primary research capabilities. Prior to writing the latter memorandum, Cadmus had sponsored an attempt to hire his former colleague Robert Ryan ("Ryan") into his department to fill this position. Subsequently, Hawrysz refused Cadmus authorization to extend the offer because of the hiring freeze. Previously, Cadmus had offered Ryan an position in March 1988, which Ryan declined.
Unable to select one Associate for layoff, Cadmus decided that the only way to maintain, if not upgrade, the performance level of the department would be to terminate both Donaldson and Dekkers and hire Ryan, who could assume that portion of their duties that continued to be relevant while at the same time bringing primary research capabilities to the department.
Cadmus candidly admits that he specifically had Ryan in mind in devising how to achieve the headcount reduction. Ryan was experienced in performing both primary and secondary market research in a private industry setting, had an MBA degree and strong analytical, written and oral skills. Cadmus was familiar with Ryan's skills and capabilities because he had worked closely with Ryan in another department at Merrill for two years prior to becoming the manager of Research and Market Development. Cadmus thus eliminated two Marketing Research Associate positions and created the position of "Marketing Research Strategist." The job description, admittedly tailor-made to Ryan's qualifications, provided that the candidate should be:
Experienced in managing primary research studies on financial services in the Institutional market; conducting secondary research; developing marketing strategies. Must possess strong analytical, written and oral skills. MBA in finance/marketing.
Donaldson was terminated on June 28, 1989, effective immediately, although she remained on the payroll for some time thereafter. The reason stated on her Termination Documentation Form was "Headcount reduction. The position of Market Analyst has been consolidated into the existing staff as part of a department restructuring." Donaldson Aff. Ex. 17. At approximately the same time, Ryan was hired as Marketing Research Strategist. In this action, Donaldson claims she was terminated not because of the RIF but because she is a woman.
1. Standard for Summary Judgment
Summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In determining whether to grant a motion or summary judgment, the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the facts in the light most favorable to the non-moving party, and must resolve all ambiguities and draw all inferences against the moving party. The motion must be denied if there is a dispute about a material fact is "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 ) (1970)).
The moving party bears the initial burden of establishing the absence of a material issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). However, if the non-moving party would bear the burden of proof on a claim at trial, the moving party may satisfy its burden by demonstrating an absence of evidence to support an essential element of such claim. Id. at 325. To defeat the motion, the non-moving party must show more than that "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). This is particularly true for those issues on which the non-moving party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23; see also Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 322, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (plaintiff in Title VII action bears ultimate burden of proving discrimination). Although Title VII cases often turn on the issue of an employer's intent or state of mind, such cases may be resolved on summary judgment where appropriate. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Meiri v. Dacon, 759 F.2d 989, 997-98 (2d Cir. 1985), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); Scott v. Federal Res. Bank of N. Y., 704 F. Supp. 441, 446 (S.D.N.Y. 1989) (Sweet, J.).
2. Shifting Burdens in Title VII Cases
The plaintiff in a Title VII case always retains the ultimate burden of proving intentional discrimination. Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Nevertheless, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court set forth the familiar intermediate shifting burdens of production that function to "sharpen vague allegations of discrimination and flush out true reasons that prompted an employer's action." Dister, 859 F.2d at 1112.
The plaintiff bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff carries her burden, thus creating a rebuttable presumption of discrimination, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. The employer's burden is one of production only; it need not persuade the court that it was actually motivated by the proffered reason, but rather must put forth evidence that raises an issue of fact as to whether the reason was discriminatory. Burdine, 450 U.S. at 254, 256; Board of Trustees v. Sweeney, 439 U.S. 24, 25, 58 L. Ed. 2d 216, 99 S. Ct. 295 n.2 (1978); Meiri, 759 F.2d at 996. If the defendant produces such evidence, the presumption of discrimination disappears and the burden again shifts to the plaintiff to show that the articulated reason is merely a pretext for discrimination. Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 802-05. This burden "merges with the ultimate burden of persuading the court that she has been the victim of discrimination." Burdine, 450 U.S. at 256.
A. Donaldson's Prima Facie Case
The burden of establishing a prima facie case is not onerous. Burdine, 450 U.S. at 253; Sweeney v. Research Found. of State Univ., 711 F.2d 1179, 1181 (2d Cir. 1983). In the context of an alleged sexually discriminatory discharge, the plaintiff need only show that (1) he or she is a member of a protected class; (2) he or she was qualified for the position from which he or she was discharged; (3) he or she was terminated; (4) under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; Sweeney, 711 F.2d at 1185; Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983). An inference of discrimination can be made if the plaintiff's position was held open for or filled by an individual outside the protected class, in this case, a man. See McDonnell Douglas, 411 U.S. at 802; Montana v. First Fed. Sav. & Loan Assoc., 869 F.2d 100, 104 (2d Cir. 1989). Where the termination arises in connection with a reduction-in-force, the fourth element may be modified to require only a showing by direct, statistical or circumstantial evidence supporting an inference of discrimination on the basis of sex. Montana, 869 F.2d at 104.
There is no dispute that Donaldson is a member of a protected class, that she was terminated and that a newly-hired male, Ryan assumed a substantial portion of her duties.
Nor is there any disagreement as to whether Donaldson was qualified as a Marketing Research Associate, the position she occupied prior to her termination.
Merrill contends, however, that Donaldson has not established a prima facie case because she was not qualified for the newly-created position of Marketing Research Strategist.
Whether Donaldson was qualified for the "new" position is neither the relevant nor the proper inquiry at this stage, as perhaps it would be were Donaldson asserting a claim of discriminatory failure to promote or discriminatory failure to hire. However, Donaldson has not asserted that she sought and was denied the position of Marketing Research Strategist in favor of Ryan. Rather, Donaldson claims that she was discharged from her position as Marketing Research Associate for sexually discriminatory reasons. Thus, the appropriate inquiry is whether she was qualified for the position from which she was discharged.
Because Donaldson has established a prima facie case, the burden of production now shifts to Merrill to articulate a legitimate, nondiscriminatory reason for Donaldson's termination.
B. Merrill's Legitimate, Nondiscriminatory Reason
Merrill claims that Donaldson was terminated because of the elimination of her position in the RIF and concomitant change in focus of the Research and Market Development Department. Because this is a legitimate, nondiscriminatory reason, see Montana, 869 F.2d at 105 (elimination of a position due to reduction in force is legitimate, nondiscriminatory reason); Dister, 859 F.2d at 1115; cf. Krulik v. Board of Educ., 781 F.2d 15, 21 (2d Cir. 1986), Donaldson must now establish that this reason is merely a pretext for sex discrimination.
C. Donaldson's Showing of Pretext
At trial, Donaldson may satisfy her ultimate burden of proving pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Gibson v. American Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir. 1989). In opposing the motion for summary judgment, Donaldson need not prove that the asserted reason is pretextual but rather must produce evidence from which the court could draw an inference of discrimination on either of these bases. See Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989).
Donaldson has failed to raise an inference of discrimination under either the "direct" or the "indirect" method of proof. Her "direct" evidence consists of the allegations that Cadmus: (1) had had three women assigned to him when he took over the department, one of whom subsequently resigned and one of whom transferred out of his department; (2) "seemed uncomfortable" working with women; (3) would talk to men in the department but leave notes for the women; (4) normally would not invite women to meetings, and had lunch each day with Berber but never invited women; (5) made "sexual comments" about his children's governess; and (6) at a staff Christmas party in 1988 gave a secretary a book entitled "How to Please your Man in Bed."
Even if true, these allegations of sexism are too vague and isolated to raise an inference that sex discrimination was the more likely motivation for Donaldson's termination. Importantly, as Donaldson herself admits, none of the alleged behavior was even directed at her. Donaldson Dep. at 159 (she did not "particularly" experience any of the allegedly sexist behavior described). See Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984); Briskin v. Schenley Indus., Inc., No. 86 Civ. 8338 (LMM), 1990 U.S. Dist. LEXIS 16768 (S.D.N.Y. Dec. 13, 1990). Moreover, Donaldson has established no connection between any of these alleged incidents and the decisionmaking process that led to her termination. See E.E.O.C. v. National Broadcasting Co., 753 F. Supp. 452, 465-66 (S.D.N.Y. 1990).
Equally unavailing are Donaldson's attempts to raise an inference that Merrill's asserted explanation for her termination is unworthy of credence. Essentially, she claims that there are three grounds upon which a jury could disbelieve Merrill's assertion that she was terminated due to the elimination of her position in connection with the RIF and concomitant shift in focus of the Research and Market Development Department. First, she claims that a trier of fact could conclude that the RIF, both as a whole and within the Research and Market Development Department, was a sham because the headcount in the Institutional Sales Group remained constant at 34 members from February 1989 to July 1989. Secondly, she claims that Cadmus's creation of the Marketing Research Strategist position, for which Ryan was hired, casts doubt on the assertion that her position was eliminated. Thirdly, Donaldson asserts that Cadmus failed to follow established procedures in terminating her and falsely informed her that her termination was not due to her performance.
In assessing the credibility of Merrill's proffered reason, "it is not the function of the fact-finder to second-guess business decisions or to question a corporation's means to achieve a legitimate goal." Dister, 859 F.2d at 1113; see Meiri, 759 F.2d at 995. The reasons tendered need not be well-advised, but merely truthful. Dister, 8590 F.2d at 1116. Nevertheless,
the reasonableness or lack thereof of an employer's explanations is probative [of pretext]. Thus "the more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as pretext." For example, evidence that the claimant was considerably more qualified for the contested position than the person selected would be probative of pretext because it is unlikely that an employer would exercise its good faith business judgment in such a manner. Conversely, the lack of a significant discrepancy between the qualifications of the claimant and the successful applicant would not be probative of pretext because an employer may choose from among several qualified candidates without violating [Title VII].