another female employee who twice allegedly had difficulty returning to work after a maternity leave. The testimony of this employee, Michelle Bonomo, is not, however, as useful to Pearlstein as she claims.
Bonomo did not seek to return to her full-time position after her first leave of absence. Rather, Bonomo sought to have a part-time position created for herself and before her leave began, "sort of worked it out" with her supervisor 'that that's what it would be." (Bonomo Dep. at 17.) The Hospital, claiming a misunderstanding, informed Bonomo after she returned from leave that no part-time position was available. The Hospital offered, however, for Bonomo to work as a casual employee, with the same salary as she had when she had been a full-time employee, pro-rated for the hours that she worked, but with no benefits. Although the Hospital had no work for Bonomo in this capacity for five or six months, eventually, Bonomo began working on a consistent basis at the Hospital as a casual employee. Later, Bonomo's status was changed to part-time, allowing her the right to benefits. Given that Bonomo did not want her full-time position back and that the Hospital made an effort to accommodate her desire to work on less than a full-time basis, it is difficult to argue that Bonomo's situation in any way raises a triable issue regarding gender discrimination in plaintiff's case. Moreover, Bonomo's former full-time position was given to another woman.
Bonomo also testified that after a second maternity leave ending in April 1988, she was informed that her part-time position in the finance department had been upgraded to full-time status. She was told that if she were unable to work full-time, she would be able to assume one of two other part-time positions then available in the finance department. There is no indication that either of these part-time positions was at a lower salary; in fact, Bonomo testified that she may have even been paid more. Although Bonomo revealed that she was dissatisfied with having to change positions since she liked her prior tasks, Bonomo does not claim that the new work was of lesser quality.
As there is no indication that the Hospital's actions with respect to Bonomo were the result of gender discrimination any more than the consequence of legitimate business objectives and the employee's own preferences, the Court declines to find that this evidence in any way fosters a broad-based inference, sufficient to allow Pearlstein's claims to withstand summary judgment, that the Hospital generally treated its female employees in a discriminatory manner.
The case at bar is simply more akin to the facts of DiCola v. Swissre Holding (North America), Inc., 996 F.2d at 31-33, an age discrimination action where the employer asserted that a senior male employee's responsibilities diminished over time such that they were no longer commensurate with his salary. The Second Circuit Court of Appeals affirmed summary judgment in favor of the employer in that action, finding that the employer did not discriminate by terminating the senior employee and retaining another employee at an inferior position and lower salary since "if a position's salary had been set at a level commensurate with certain job responsibilities and those responsibilities are subsequently diminished, an employer may make corresponding adjustments in positions and salaries regardless of the age of the employees involved." DiCola, 996 F.2d at 33 (citations omitted). In the case currently before the Court, the Hospital has asserted, and Pearlstein has not contested, that after the Merger, her responsibilities diminished and were no longer managerial in nature.
As Pearlstein has failed to present other facts, which, when viewed in her favor, establish a prima facie case of discrimination, the Hospital was free to institute a reduction in Pearlstein's salary and rank commensurate with her decreased responsibilities, even though she was a woman.
II. Assertion of Legitimate Nondiscriminatory Reason
Assuming arguendo that Pearlstein's efforts to establish a prima facie case of discrimination were sufficient to defeat summary judgment, the Hospital has offered a legitimate nondiscriminatory reason for Pearlstein's termination. The Hospital presented deposition evidence stating that Pearlstein was terminated as a result of a structural reorganization prompted by the Merger and a budgetary shortfall. A reduction-in-force is a legitimate nondiscriminatory reason to terminate an employee, see Montana, 869 F.2d at 105; Dister v. Continental Group, 859 F.2d 1108, 1115 (2d Cir. 1988), provided that the decision regarding who to terminate is not tainted by unlawful discrimination, see Maresco, 964 F.2d at 111. Accordingly, if Pearlstein had alleged facts to establish a prima facie case, this evidence of a legitimate reason for her discharge would be enough to rebut the resulting presumption of gender discrimination.
Assuming that Pearlstein had offered facts which, viewed in her favor, presented a prima facie case of discrimination, given the Hospital's articulation of a legitimate nondiscriminatory basis for eliminating her position, Pearlstein was required to produce, in order to avoid summary judgment, sufficient evidence creating a triable issue of fact on the question of whether the Hospital's reason was but a pretext for discrimination. "This may be demonstrated by reliance on the evidence that established her prima facie case, without any additional evidence being required, . . . or by presentation of additional evidence to show that [defendant's] reasons for her discharge were false . . . " Gallo, 22 F.3d at 1226 (citations omitted). Pearlstein is not required to show that gender was the only factor in the Hospital's decision to discharge her or that the proffered reason was false, but only that the stated reason was not the only reason for her discharge and that gender made a difference. Montana, 869 F.2d at 105.
In addition to the other grounds raised by Pearlstein that the Court already considered in the context of reviewing whether she presented a prima facie case of discrimination, Pearlstein asserts that because the Hospital's president and personnel director did not know that her position had been downgraded, the Hospital's claim that her position was eliminated for budgetary reasons must be pretextual. Pearlstein points to Hill's testimony that the budgetary cuts were ordered during a meeting with the Hospital's president. Pearlstein implies that if in fact her position were downgraded as a result of budgetary cuts ordered at this meeting, the Hospital's president and personnel director would not have been surprised when she informed them of that fact. Pearlstein then makes the questionable logical leap that discrimination on Hill's part was the true reason she was terminated. In making this leap, Pearlstein ignores Hill's testimony that he was given the responsibility of selecting the employee whose position would be terminated. If one considers that testimony, the president's and personnel director's surprise would not reveal unauthorized action on Hill's part but only that these parties had not yet been informed of the results of the downsizing they had ordered.
In any event, the Court notes that Pearlstein's 3(g) statement fails to dispute the Hospital's 3(g) statement that "Hill was entrusted with the cutback decisions in the budget and reimbursement area." (Def. 3(g) Statement at P 10.) This failure further renders specious Pearlstein's argument that because senior officials did not know that her position had been eliminated, a genuine issue of fact exists on the question of pretext.
Pearlstein also attempts to argue that because she did not know prior to her leave of absence that her position was targeted for elimination, the Hospital's actions must be the result of discrimination. Hill testified, however, that the Hospital's president did not hold the meeting at which budgetary cuts were ordered until the end of 1989, after Pearlstein had already commenced her leave of absence. Pearlstein acknowledged that once she began her leave of absence, she did not speak to her supervisors again until January 1990. She would therefore not have known of the cuts ordered in late 1989. Moreover, Hill testified, and Pearlstein has not contested, that typically it was not until late November of the year preceding the year for which a budget is being prepared that the Hospital would have a "preliminary bottom line" to be used in determining whether budget cuts were necessary. (Hill Dep. at 31.) Accordingly, Pearlstein's claim that her lack of knowledge of the budgetary cuts raises a crucial issue for trial regarding pretext is likewise meritless.
By contrast, the Hospital has adduced evidence to support its asserted reason for choosing to downgrade Pearlstein's position. Hill testified that the Hospital considered the budget and reimbursement department of the Hospital's finance division to be overstaffed by managers and that the Hospital had already begun taking steps to address the problem. Hill also noted that Amato had broader experience than Pearlstein and that Pearlstein's responsibilities had decreased after the Merger. Pearlstein offers no evidence to counter any of these assertions.
With respect to the decreased salary of the financial analyst position that Hill offered Pearlstein, Hill testified that he based the reduction on a personnel department survey indicating that a financial analyst made about 30% less income than a manager. Pearlstein has not rebutted this testimony that the salary reduction was consistent with the changed position.
Pearlstein has simply failed to adduce any factual disputes that, viewed in a light most favorable to her, raise a material issue for trial on whether the Hospital's claimed business reasons for downgrading Pearlstein's position were a pretext for discrimination. In so concluding, the Court is mindful that summary judgment is ordinarily inappropriate in an employment discrimination suit where an individual's intent and state of mind are implicated. Maresco, 964 F.2d at 113 (citations omitted); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989) (citations omitted). Meiri, 759 F.2d at 998 (citations omitted). "The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment-- avoiding protracted, expensive and harassing trials-- apply no less to discrimination cases than to commercial or other areas of litigation." Meiri, 759 F.2d at 998 (citation omitted). Accordingly, an employment discrimination case may be resolved on summary judgment where, as in this instance, genuine issues of material fact are lacking. See, e.g., Dister, 859 F.2d at 1117; Meiri, 759 F.2d at 998.
Based on Pearlstein's failure to offer evidence sufficient to set forth a material issue regarding whether Pearlstein has established a prima facie case of gender discrimination or whether the Hospital's reasons for eliminating Pearlstein's position were pretextual, the Court grants the Hospital's motion for summary judgment.
Dated: April 28, 1995
Uniondale, New York
Joanna Seybert, U.S.D.J.