Melnyk unfairly and decided to establish a pattern of conduct to which his treatment of Melnyk would conform. Although this Court does not find that Mitro was so motivated, the reasonable possibility that he may have been weighs against ignoring evidence of the treatment of the six male employees simply because they were dismissed under a different supervisor.
Further, other than Mitro replacing Jacobs, there were no changes in Adria's supervisory personnel responsible for investigating and responding to employee misconduct. The other Adria personnel, Pettit, Rohn, Komenda and Wolf, who played a role in deciding the disciplinary action to be taken against employees, held the same positions with Adria when the six male employees were dismissed from the company as when Melnyk was dismissed. Because all but one of the individuals involved in making termination decisions had not changed and because there is a lack of evidence to establish that Mitro had a different policy for terminating employees than Jacobs at the time Mitro discharged Melnyk, this Court refuses to conclude that the six male employees were terminated under such different circumstances that their treatment has no probative value to the question of whether Melnyk was treated unequally. Therefore, it is necessary to consider whether the other circumstances surrounding the discharge of the six male employees were sufficiently similar to Melnyk's termination as to justify a comparison of the process they received.
This remaining consideration of similarity requires an individualized assessment of the circumstances under which each male employee was terminated. The first employee to be considered is Leon Arouth, a District Manager, who was notified by letter on November 20, 1985, that he was being terminated for use of foul language and making sexual advances toward a female job applicant during her interview. (Gill exh E). Because of Arouth's position as District Manager at Adria and the nature of his misconduct, it would be inappropriate to compare the process he was given to that of Melnyk.
The circumstances of Melnyk's termination are also distinguishable from those of Gerald Albrecht, who resigned on May 10, 1985. Although he was also a sales representative, the reason he left Adria is not entirely clear from this record. It appears that he may have resigned in lieu of discharge for participating in an employee training program with another company. (Gill exh J). However, Mitro has asserted that Albrecht left his position voluntarily because of poor sales performance. (Mitro P 6). Despite this factual dispute, neither reason for termination is sufficiently similar to the reasons for Melnyk's termination as to warrant a comparison of the manner in which Adria dealt with each individual.
On the other hand, Roy Hawkins III was a sales representative who was notified of his termination by letter on June 25, 1985. Like Melnyk he was terminated for being absent from his territory during business hours, but his situation is distinguishable from Melnyk's because he was a probationary employee with Adria at the time he was terminated. (Gill exh. G). However, his probationary status does not justify the conclusion that Adria's treatment of him is of no value to the present action. Probationary periods are valuable to companies because they make it easier for them to "weed out" or eliminate undesirable employees. See, e.g., Farmer v. Colorado and Southern R.R. Co., 723 F.2d 766, 767 (10th Cir. 1983). Melnyk argues that as a non-probationary employee, she should have been afforded equal if not greater procedural protection than Hawkins. Nevertheless, despite Hawkins' probationary status, he was given a precise list of the charges against him and five days to respond with an explanation for his conduct. In contrast, at the time of her termination Melnyk was neither given a precise list of the charges against her or an opportunity to challenge the grounds for her termination.
The remaining three employees all were sales representatives like Melnyk. Of these, Mike Riley was terminated on September 26, 1985, because of charges that he had falsified records for reimbursement purposes and failed to keep accurate sales calls records. (Gill exh. I). Another, Philip Constatin, was terminated by letter on March 27, 1986, for failing to turn in call cards and for filing late weekly reports. (Gill exh. F). In comparing the similarity of their misconduct to that of plaintiff herein, precise equivalence in culpability is not required; all that is necessary is that the employees were involved in acts of comparable seriousness against the employer. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, 96 S. Ct. 2574, 2580 n.11, 49 L. Ed. 2d 493 (1976). Adopting such an approach, this Court concludes that the conduct that formed the basis for Adria's decision to dismiss these two individuals is similar to that relied on for Melnyk's dismissal in the sense that all the violations involved abuses that indicated the employees had not been performing their respective jobs. Despite this similarity, both male employees were given greater procedural protections than Melnyk before either's termination became final. Specifically, Riley was given a notice that he should come forward and explain his misconduct. Although he was eventually terminated, the letter that apprised him of his termination indicated that he had a right to appeal the decision. Constatin was also given a written warning concerning his misconduct. Furthermore, upon being notified of his termination he was given five days in which he could respond to the charges against him. As with Hawkins and in contrast to these two employees, Melnyk was neither given a clear explanation of the reasons for her termination or an opportunity to respond to the charges. This disparity reflects that Melnyk was afforded less process than the similarly situated males.
Keith Patterson, the sixth and final employee to be considered, was terminated on April 22, 1986, under circumstances almost identical to those of Melnyk. Like Melnyk, he was put under surveillance for two days, during which time he never left his house during business hours. Furthermore, he falsified reports claiming to have made numerous calls during that time. Unlike in the investigation of Melnyk, Adria made the effort to contact the doctors Patterson claimed to have visited in order to verify that his call reports were inaccurate and it sent Patterson a letter notifying him of his termination with a provision providing him with five days in which to reply. If he could not "provide an adequate explanation, [he would] be terminated as indicated." (Gill exh H). Thus, Patterson, was afforded two procedural protections Melnyk was not: (1) the benefit of having the charges against him verified; and (2) an opportunity to respond to the charges.
Based on the foregoing and despite the change in management, this Court concludes that Adria's treatment of Hawkins, Riley, Constatin and Patterson occurred under substantially similar circumstances so as to have probative value on the question of whether Melnyk was discriminated against. Not only were these men afforded greater procedural protections, Adria's treatment of them also reflects a standardized policy of informing employees of the specific charges against them as well as providing them an opportunity to explain instances of misconduct before termination. Based upon this evidence, this Court concludes that Melnyk has made a sufficient showing to establish a material issue of fact as to whether Adria discriminated against her based upon her sex. Therefore, this Court denies defendant's motion for summary judgment on plaintiff's sex discrimination claims under Title VII and New York's Executive Law. Likewise, the existence of a material issue of fact also leads this Court to deny plaintiff's cross-motion for summary judgment on the same.
4. Plaintiff's Age Discrimination Claim
As previously discussed, the standards for establishing age discrimination are the same as sex discrimination. Thus, in considering Melnyk's sex discrimination claim this Court in discussions herein has already determined that Melnyk has satisfied the first three elements of her prima facie case. In attempting to establish the fourth element that her termination occurred under circumstances giving rise to an inference of age discrimination, Melnyk relies on the fact that she was replaced by a younger employee.
When an employee, such as Melnyk, is within the protected group, over 40 years of age, her termination and subsequent replacement by a younger employee normally gives rise to an inference of age discrimination. 29 U.S.C § 631(a). However, in Melnyk's case the inference is much weaker because she was hired at age 39. Without additional evidence, it is difficult to justify a conclusion of age discrimination when Adria hired Melnyk just one year prior to her entry into the protected class. Therefore, this Court doubts that Melnyk has made her prima facie case. However, even assuming that plaintiff has offered sufficient evidence to defeat summary judgment at the prima facie stage, plaintiff has provided no credible evidence to demonstrate that defendant's proffered legitimate, nondiscriminatory reasons for terminating her employment are mere pretext for age discrimination.
In deciding plaintiff's sex discrimination claim, this Court has already determined that plaintiff's indirect evidence is insufficient to establish pretext. Therefore, plaintiff's age discrimination claim is reduced to a reliance on one piece of direct evidence that Adria's decision to terminate her was motivated by her age: a statement she heard Komenda make to a pharmacist that Adria was looking for a "young and energetic" sales representative to take control of its Syracuse territory. However, this isolated statement, which was not directed at plaintiff, does not satisfy plaintiff's burden. Cases have consistently held that isolated and ambiguous statements are insufficient to support a finding of age discrimination. See e.g. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) ("stray remarks" insufficient to establish discrimination); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989) (isolated remarks by plaintiff's supervisor that he "needed younger blood" insufficient to create issue of material fact to defeat summary judgment motion). By itself, Komenda's statement is of "de minimis" probative value and consequently, plaintiff has failed to meet her burden of establishing by a preponderance of the evidence that Adria's reasons for terminating her were mere pretext for age discrimination.
Therefore, this Court grants defendant's motion for summary judgment on plaintiff's claims of age discrimination under the ADEA and New York's Executive Law, as well as denies plaintiff's cross-motion for summary judgment on the same.
D. Plaintiff's Demand for Jury Trial
Defendant disputes whether plaintiff has a right to jury trial with respect to her remaining sex discrimination claim under Title VII. Absent more precise briefing on this issue or pronouncement from the Second Circuit, this Court defers decision of the matter in view of the unsettled retroactivity of the Civil Rights Act of 1991 wherein Congress established the right of plaintiffs in Title VII cases to jury trials. See Tyler v. Bethlehem Steel Corporation, 958 F.2d 1176, 1181 (2d Cir. 1992).
For the reasons set forth above, this Court grants defendant Adria's motion for summary judgment on plaintiff's breach of employment contract claim and age discrimination claims, and denies defendant's motion for summary judgment on plaintiff's sex discrimination claim. Furthermore, this Court denies plaintiff's cross motions on her age and sex discrimination claims.
IT HEREBY IS ORDERED, that defendant's motion for summary judgment on plaintiff's breach of employment contract claim is GRANTED.
FURTHER, that defendant's motion for summary judgment on plaintiff's age discrimination claims under the ADEA and § 296 of the New York Executive Law is GRANTED.
FURTHER, that defendant's motion for summary judgment on plaintiff's sex discrimination claim under Title VII and § 296 of the New York Executive Law is DENIED.
FURTHER, that plaintiff's cross-motion for summary judgment on her sex discrimination claim under Title VII and § 296 of the New York Executive Law is DENIED.
FURTHER, that plaintiff's cross-motion for summary judgment on her age discrimination claims under the ADEA and § 296 of the New York Executive Law is DENIED.
FURTHER, that the parties shall meet with this Court on July 17, 1992, at 9:00 a.m. in Part IV, Mahoney State Office Building, 65 Court Street, Buffalo, New York for a status conference.
Dated: July 2, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge