well as non-whites), and there is no dispute that DCA fired the plaintiffs. With respect to the second and fourth elements of the prima facie case, however, material issues of fact remain in controversy.
DCA argues that the plaintiffs were not qualified for their respective jobs. However, the legal standard for qualification in a prima facie case is minimal. The plaintiff "only needs to demonstrate that she 'possesses the basic skills necessary for performance of [the] job.'" Owens v. New York City Housing Authority, 934 F.2d 405, 409 (2d Cir.), cert. denied, U.S. , 116 L. Ed. 2d 451, 112 S. Ct. 431 (1991) (quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984 (1978)).
The opinions of the supervisory personnel at DCA indicate that each of the plaintiffs has met this burden. See Meiri 759 F.2d at 995 (employees can rely on the evaluations of supervisors to determine whether the employees are qualified for the positions from which they were fired). Goyette's history of bonuses and raises demonstrates that the supervisory personnel at DCA felt that Goyette was qualified for his position. Similarly, Benig's raise, bonus, and praise from his supervisors indicate that he too was qualified for the position from which he was discharged. In addition, the laudatory written performance evaluations of Teller and Filicia in the Spring of 1990 demonstrate their qualifications for positions in the Creative Department. Finally, Gerstein's promotions, bonuses, raises, and performance evaluations all demonstrate that she too was qualified for her position.
The fourth element of the plaintiffs' prima facie case, proof that the circumstances of firings lead to an inference of discrimination is the critical element for this summary judgment motion. This proof is intimately intertwined with the plaintiffs' supplemental burden - proof that the defendant's explanation for the firings is a pretext for discrimination. Both aspects of the plaintiffs' case are supported by the same evidence, and thus, will be discussed together.
DCA has set forth a legitimate, two-pronged explanation for the firing of the plaintiffs. As discussed above, DCA claims that it fired the plaintiffs because the plaintiffs were unqualified and were losing money for DCA. Additionally, DCA argues that it fired the plaintiffs as part of a company-wide program of personnel and loss reduction. In response, the plaintiffs have presented facts that suggest that their terminations were borne out of national origin discrimination, and that DCA's explanation for the firings is a pretext for such discrimination.
In support of their position, the plaintiffs cite several statements made by the Japanese supervisors. One such statement is that made by DCA's President, Naito, to Goyette regarding the preferential treatment of Japanese employees.
A second such statement is that made by DCA's General Manager, Eguchi, to Benig regarding Benig's inability to fire a Japanese employee from the Canon camera account.
A third such statement is that made to Andrew Kennedy ("Kennedy") by Fujisaki, a Vice President, Management Supervisor at DCA, in which Fujisaki advised Kennedy that Kennedy's "possibilities for promotion at DCA were limited because [he was] not Japanese." See Affidavit of Andrew Kennedy P 3.
Although DCA offers alternative meanings for the statements in question,
what inference to draw from a particular statement is a matter that must be decided at by the trier of fact at trial. See, e.g., Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 467 (2d Cir. 1989); Shamley v. Int'l Telephone and Telegraph Corp., 44 Fair Empl. Prac. Cas. (BNA) 1238, 1240 (S.D.N.Y. 1987), aff'd on other grounds, 869 F.2d 167 (2d Cir. 1989).
While these statements are "direct" evidence of DCA's intent to discriminate, the plaintiffs also present "indirect," or "circumstantial" evidence of discrimination at DCA. Because it is often difficult to obtain direct evidence of discriminatory intent, courts have permitted plaintiffs to introduce certain forms of indirect evidence in support of discrimination claims. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir.) cert. denied 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992) (plaintiffs alleging employment discrimination can use both direct and indirect evidence to support their position).
One type of indirect evidence is proof that employees in similar situations were treated dissimilarly. See Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) (discriminatory intent can be established indirectly through evidence of the use of different disciplinary measures for employees who engaged in similar misconduct); DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987) (same).
In this case, several of the plaintiffs cite DCA's retention of higher paid, less qualified Japanese employees, to whom, in large part, DCA assigned the plaintiffs' duties after the plaintiffs were fired. The evidence provided by Goyette, Benig, and Filicia indicating that each of the employees that assumed the plaintiffs' duties was less qualified than the plaintiffs suggests that DCA's explanation for the firing of the plaintiffs is a pretext for discrimination. Although specific Japanese employees did not assume the duties of Teller and Gerstein, the plaintiffs assert that Japanese employees in similar situations were treated more favorably. Accepting the plaintiffs' contention that DCA employees often perform activities that might fall into another department's area of responsibility, Teller and Gerstein were not only competing with colleagues in their specific department, but with employees in related departments as well. Consequently, the retention of Japanese employees in connected departments, with performance records inferior to those of Teller and Gerstein, suggests that DCA's explanation for the firing of Teller and Gerstein is a pretext. The plaintiffs also maintain that DCA provided higher compensation and a greater number of benefits to Japanese employees and that this fact is additional evidence of DCA's discrimination against American workers. The plaintiffs argue that Goyette, who had a higher title than Fujisaki (an expatriate), earned about $ *** less than Fujisaki per year. See Raskin Aff., Ex. C at 979. The plaintiffs point to a similar discrepancy between the salary of Teller and the salaries of Yamada (an expatriate) and Hatachi (an expatriate), who held lower positions than Teller. Raskin Aff., Ex. D; Affidavit of Judith Teller, P 14. Furthermore, the evidence that Japanese expatriates with titles below that of Senior Vice President received cars,
club memberships, and check cashing privileges indicate disparate treatment; no American employees received these benefits. In addition, the fact that Friday afternoon meetings are open only to Japanese employees (Japanese expatriates and Japanese-Americans), is also evidence of disparate treatment based upon national origin. Finally, the refusal to send Benig with Masatsugu Fujishima ("Fujishima"), and Nakahara (both Japanese-Americans) to Tokyo for specialized training, demonstrates the favoritism DCA showed its Japanese employees.
In response to these allegations, DCA asserts that the plaintiffs have compared employees in different positions, and that when the proper comparisons are made, there is no difference between the salaries of the Japanese and American employees. DCA also maintains that only expatriates received the extra compensation and fringe benefits. Whether DCA's explanation is true, or whether the disparate treatment was based upon national origin, is a material issue of fact for the trier of fact to decide.
When viewed together, the remarks of the Japanese executives, the reassignment of duties, and the additional benefits provided to the Japanese expatriates and the Japanese-Americans all suffice to create a genuine factual issue as to whether DCA's stated reason for the firings - a reduction in force to cut losses - was pretextual. Accordingly, DCA's motion for summary judgment on the plaintiffs' disparate treatment claim is denied.
C. Material Issues of Fact Exist Regarding DCA's "Mixed Motives"
In addition to arguing that DCA's explanation is a pretext, the plaintiffs have also argued that their terminations resulted from DCA's "mixed motives." A mixed motives case is one in which the employment decision at issue is based upon both legitimate and illegitimate motives. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). For example, an employer may fire an employee because that employer wants to reduce the size of its workforce and because that employer intends to discriminate against a particular class of employees (e.g., women, blacks, Americans). In such cases, the McDonnell Douglas-Burdine framework for disparate treatment cases does not apply. See Price Waterhouse, 490 U.S. at 247. Instead, in a mixed motives case, if the plaintiff proves by a preponderance of the evidence that an impermissible consideration played a motivating part in an employment decision, the burden of proof shifts to the defendant to show that it would have made the same decision, even in the absence of the unlawful motive. See id. at 252; accord Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.), cert. denied U.S. , 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992). The plaintiffs in our case assert that the previously discussed facts
are evidence of DCA's illegitimate motives. We agree. Therefore, material issues of fact remain regarding DCA's motives for firing the plaintiffs. Accordingly, DCA's summary judgment motion regarding the plaintiffs' mixed motives claim must be denied.
II. DCA'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' CLAIM OF DISPARATE IMPACT IS GRANTED BECAUSE STATISTICAL EVIDENCE CAN NOT DIFFERENTIATE BETWEEN LEGAL AND ILLEGAL DISCRIMINATION IN THIS CASE AND THE PLAINTIFFS HAVE NOT PRESENTED ANY OTHER EVIDENCE IN SUPPORT OF THEIR DISPARATE IMPACT CLAIM
A case of disparate or adverse impact discrimination is one in which a plaintiff proves that a policy of its employer, although neutral on its face, is discriminatory in its effects. See Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971) (employer's requirement of a high school diploma or the passing of general intelligence test as a condition of employment in four different departments (operations, maintenance, laboratory and test, and coal handling) at a power generating plant is prohibited because of its restrictive effects on black job applicants). Such a policy is only justified if it "serves, in a significant way, the legitimate employment goals of the employer." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 659, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989). However, even if the policy significantly serves the legitimate employment goals of the employer, a plaintiff may still prevail in a disparate impact case by showing that an alternative non-discriminatory policy would serve the employer's legitimate interests with equal effectiveness. 490 U.S. at 660-61.
Statistical evidence of discriminatory effects is the most effective way for a plaintiff to prevail in a disparate impact case. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). However, statistical studies may not be used as evidence in all disparate impact cases. In a case where a defendant claims that it is discriminating based on citizenship, and the citizenship of the employees who the defendant is favoring is identical to the national origin of those employees,
statistical evidence is unhelpful. The same statistics which purportedly show that the defendant is discriminating based on national origin can be explained by the defendant's legal policy of favoring persons of a particular citizenship.
For example, if a company favors Japanese citizens over non-Japanese citizens, statistical studies that indicate that the company is discriminating based on national origin can also be explained by the company's citizenship policies. Thus, statistical evidence cannot be used in disparate impact cases where the plaintiff claims that the defendant is discriminating based on national origin, the defendant claims that it is discriminating based on citizenship, and the national origin and the citizenship of the parties favored is the same. See MacNamara v. Korean Air Lines, 863 F.2d 1135, 1148 (3d Cir.), cert. denied 493 U.S. 944, 107 L. Ed. 2d 337, 110 S. Ct. 349 (1989).
In the instant case, the policy at issue is DCA and Dentsu's policy of repatriation of former Dentsu employees. This policy provides that former employees of Dentsu in Japan who perform inadequately at DCA cannot be fired. Instead, DCA either returns the expatriates to their former assignments with Dentsu in Japan or finds alternative employment for them with another Dentsu affiliate. No such efforts or arrangements are ever made for discharged American employees. Because of this disparity, the plaintiffs argue that this policy, while facially neutral vis-a-vis Title VII, has a discriminatory impact upon all American employees of DCA. However, the national origin and the citizenship of the parties favored by DCA's policy are identical (i.e. both are Japanese). For the reasons discussed above, the plaintiffs' and defendant's statistical analyses are not helpful in this case.
In response to the plaintiffs' disparate impact claim, DCA argues that the Treaty of Friendship, Commerce, and Navigation between the United States and Japan ("FCN Treaty"),
permits DCA to discriminate based on national origin, despite the commands of Title VII.
We disagree. As stated by the Second Circuit in Avigliano v. Sumitomo Shoji America, Inc., 638 F.2d 552 (2d Cir. 1981), rev'd and remanded on other grounds, 457 U.S. 176 (1982), Article VIII of the FCN Treaty does not exempt a Japanese company operating in the United States, whether a parent or a subsidiary organization, from the reach of Title VII. 638 F.2d at 559.
A Japanese corporation doing business in the United States can only hire according to national origin if the company can show that national origin is a bona fide occupational qualification ("bfoq"). See id.22 Although this exception is generally interpreted strictly, see Dothard v. Rawlinson, 433 U.S. 321, 334, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977), the Second Circuit has determined that "as applied to a Japanese company enjoying rights under Article VIII of the Treaty, [this exception to Title VII] must be construed in a manner that will give due weight to the Treaty rights . . ." Id. In order to accommodate the employer's treaty rights, the court must consider whether or not a position requires the following four factors:
(1) Japanese linguistic and cultural skills, (2) knowledge of Japanese products, markets, customs, and business practices, (3) familiarity with . . . the parent enterprise in Japan, and (4) acceptability to those persons with whom the company . . . does business.
Id. Under this test, the employer has the burden of proving that national origin is a bfoq. See id.
In the instant case, however, assuming that the treaty applies to DCA,
DCA has presented no evidence to prove that Japanese national origin is a bfoq for employment at DCA. Moreover, the Court observes that according to DCA's own job descriptions, none of the skills listed above are requirements for the positions from which the plaintiffs were fired.
Therefore, the FCN Treaty does not entitle DCA to implement an employment policy that discriminates based on national origin.
In sum, because the plaintiffs have not presented any evidence other than statistics to support their disparate impact claim, DCA's motion for summary judgment on the disparate impact claim is granted.
III. DCA'S MOTION FOR SUMMARY JUDGMENT ON THE PLAINTIFFS' CLAIMS UNDER THE NEW YORK STATE HUMAN RIGHTS LAW IS DENIED IN PART AND GRANTED IN PART BECAUSE THE GENERAL STANDARDS OF PROOF UNDER THE HUMAN RIGHTS LAW ARE THE SAME AS THOSE UNDER TITLE VII
A plaintiff in an employment discrimination case is required to prove the same elements for both New York State Human Rights Law and Title VII claims. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 479-80, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992). Therefore, just as material issues of fact remain with respect to the plaintiffs' Title VII claims of pretext and mixed motives, so too material issues remain with respect to the plaintiffs' Human Rights Law claims under these two theories. Accordingly, DCA's motion for summary judgment on the plaintiffs' claim of disparate treatment under the Human Rights Law is denied.
Similarly, the standards of proof for a disparate impact case under the Human Rights Law are comparable to those for a disparate impact case under Title VII. See People v. New York City Transit Authority, 59 N.Y.2d 343, 465 N.Y.S.2d 502, 504, 452 N.E.2d 316 (Ct. App. 1983); Sontag v. Bronstein, 33 N.Y.2d 197, 351 N.Y.S.2d 389, 306 N.E.2d 405, 407 (Ct. App. 1973). Therefore, the logic that precludes the plaintiffs from asserting a disparate impact claim under Title VII is applicable to their New York State Human Rights claim as well.
Accordingly, DCA's summary judgment motion on the plaintiffs' disparate impact claim under the New York State Human Rights Law is granted.
DCA's motion for summary judgment is denied in part and granted in part. With respect to the plaintiffs' Title VII claims of disparate treatment, DCA's motion for summary judgment is denied. With respect to the plaintiffs' Title VII claim of disparate impact, DCA's motion for summary judgment is granted. DCA's motion for summary judgment on the plaintiffs' state law claims is denied with respect to disparate treatment and granted with respect to disparate impact.
Dated: July 30, 1993
New York, New York
KENNETH CONBOY, U.S.D.J.