Douglas test and established a prima facie case.
B. Microsoft's Legitimate, Non-discriminatory Reason
Under the McDonnell Douglas analysis, once the plaintiff establishes a prima facie case of employment discrimination, the defendant must articulate a legitimate, non-discriminatory reason for not promoting the plaintiff in order to rebut the presumption of discrimination. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254. In the present case, Microsoft has met this burden by producing evidence that it did not promote Strauss to the technical editor position because she was not qualified, lacking the necessary technical expertise and knowledge. Specifically, Microsoft has produced evidence that Strauss lacked experience in the management of advanced applications development and had yet to acquire strong programming ability in systems such as MS-DOS, Windows, and OS/2.
See Lazarus Aff., at PP 34 and 40; Microsoft Performance Review Form, attached as Exhibit "J" to Lazarus Aff.
C. Strauss's Pretextual Evidence
Once the defendant articulates a legitimate, nondiscriminatory reason for choosing not to promote an individual, the burden of proof shifts back to the plaintiff to prove by a preponderance of the evidence that the proffered reasons are merely pretextual and not the true reasons for the failure to promote. McDonnell Douglas, 411 U.S. at 804; see also Patterson, 491 U.S. at 187; Burdine, 450 U.S. at 256. The Court finds that Strauss has presented evidence from which a reasonable jury could conclude that Microsoft's stated reason for failure to promote, namely that Strauss was not qualified, is pretextual.
First, Strauss has presented evidence that she successfully functioned as the technical editor after Rizzo resigned from the Journal. Specifically, she was involved in choosing articles, doing technical edits and technical reviews, mediating discussions between authors and reviewers, monitoring the status of articles and proposals from authors, drafting abstracts and editor's notes and answering or obtaining answers to technical questions arising during the production process. See Lazarus Dep., at 87, 178-79; Lazarus Aff., at P 28; Strauss Dep., at 21, 84, 308, 309. Moreover, Strauss received a very favorable job performance review for the successful completion of these and other duties. See Microsoft Performance Review Form, attached as Exhibit "J" to Lazarus Aff. In fact, she was evaluated by Lazarus as having saved the Journal. Id. Second, there is evidence that Lazarus again asked Strauss to perform the duties of the technical editor after Ricciardi left the Journal in October 1989. See Lazarus Dep., at 87, 178-79.
Third, there is evidence that Ricciardi was not as qualified as Strauss for the job. Ricciardi had only limited editorial experience, see Resume of Ricciardi, attached as Exhibit "E" to Lazarus Aff.; E-Mail from Lazarus, attached as Exhibit "C" to Affidavit of Julian R. Birnbaum, sworn to on August 14, 1992 ("Birnbaum Aff.") (Lazarus wrote in March 1989 that Ricciardi was "technically qualified, but isn't a great writer/editor - adequate, but not great"), did not have the technical or publishing experience to handle the job, was unable to deal with many technical questions, and asked Strauss to do the technical editing on many articles. See Strauss Dep., at 56-57, 83, 86-87, 127. In fact, Lazarus himself told Strauss that he hired Ricciardi although "it didn't make any sense," and Ricciardi "wasn't great." Strauss Dep., at 54-55.
Fourth, Lazarus and Microsoft were willing to hire Maffei despite his lack of editorial experience, a skill required by a technical editor, see Lazarus Dep., at 213-14 (Maffei expressed to Lazarus that he "really didn't have any editorial experience"); Maffei Dep., at 93-96; E-Mail regarding Maffei interview, attached as Exhibit "M" to Birnbaum Aff. (Maffei will "have one heck of learning curve to come up on since he has not even written for publication, much less acquired materials or managed the editorial process . . . IF you decide he is your candidate, then he needs . . . a real, real strong right-hand person . . . involved in TRAINING him on the issues and problems"), but were unwilling to afford Strauss, who had previously done the job, the same opportunity to learn any necessary skills on the job.
Finally, when viewed in light of Strauss's other evidence of pretext, Lazarus's inappropriate behavior in the office, namely (1) his comments to Strauss that he was "president of the amateur gynecology club," Strauss Dep., at 13-15; (2) his reference to a woman employee as the "Spandex queen," Strauss Dep., at 13-15; (3) his reference to a black woman as "Sweet Georgia Brown," Strauss Dep., at 24-25; (4) his offer to pay 500 dollars to call the woman "Sweet Georgia Brown," Strauss Dep., at 24-25; (5) his sending one e-mail message to the entire Journal staff about "Mouse Balls," which contained sexual innuendo about male genitalia, Strauss Dep., at 26; (6) his sending an e-mail message directly to Strauss entitled "Alice in UNIX Land," which mixed computer language with sexual innuendo, Strauss Dep., at 34-35; (7) his sending two other sexually explicit e-mail messages to one Journal employee who subsequently sent the material to the rest of the Journal staff, Strauss Dep., at 28-34, could lead a reasonable jury to conclude that Microsoft's proffered reason is not the true reason for its failure to promote Strauss.
The fact that Strauss did not meet all the job criteria set forth in Microsoft's advertised job description, see Exhibit "D" to Birnbaum Aff., does nothing to diminish the aforementioned evidence of pretext as this advertisement had little relationship to the actual recruiting and hiring process. Lazarus recruited Ricciardi through the recommendation of Rizzo, see Exhibit "C" to Birnbaum Aff., and personally recruited Maffei, who had not seen the advertisement and did not know that there was an opening at the Journal. Maffei Dep., at 59-60. In addition, Lazarus believed that people who are the best programmers do not tend to be the best writers, and that these different skills often conflict, thus making it likely that no one could fit the job description exactly as written. Lazarus Dep., at 39-40.
Thus, the Court concludes that Strauss has presented evidence from which a reasonable jury could determine that Microsoft's proffered reason for not promoting her is pretextual. Accordingly, Microsoft's motion for an order granting it summary judgment is denied.
For the reasons set forth above, Microsoft's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it partial summary judgment, is denied.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
February 22, 1993