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August 14, 1995


Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 A trial commenced in this Title VII action on May 23, 1995. On June 1, 1995, the Court entered judgment against the defendant, Pepsi-Cola Binghamton Bottlers ("Pepsi") based on a jury verdict which found that the defendant had terminated the plaintiff, Denise Dean, on the basis of her pregnancy. The judgment also reflected the jury's finding of no cause of action on plaintiff's Title VII claim of hostile work environment.

 Defendant now moves pursuant to Fed.R.Civ.P. 50 for a directed verdict and Fed.R.Civ.P. 59 for a new trial. Plaintiff has moved for reasonable attorney's fees and costs pursuant to Fed.R.Civ.P. 54. As discussed below, however, the parties have reached an agreement on that motion, and the court need not address it.


 A. Title VII Claim -- Discriminatory Termination

 The review of a Title VII claim involves a three step analysis. First, the plaintiff must show a prima facie case of unlawful discrimination. After this has been established, the burden of production switches to the defendant to show that there was a legitimate and nondiscriminatory reason for its actions. If defendant shows a nondiscriminatory reason, the burden switches back to the plaintiff to prove by a preponderance of the evidence that the nondiscriminatory reasons stated by the defendant were merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668 (1973). While the burden of production switches to the defendant after the plaintiff shows a prima facie case of discrimination, the burden of persuasion remains with the plaintiff at all times. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

 An employer who discriminates is unlikely to leave direct evidence of discriminatory intent, and therefore, the plaintiff is often forced to rely on circumstantial evidence to support her claim. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991), citing, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1988).

 1. Qualified Employee Testimony

 To show a prima facie case of unlawful termination, the plaintiff must show that: (1) she was a member of a protected class; (2) she was qualified for the position and/or was satisfying the employer's normal work requirements; (3) despite her qualifications she was terminated from her position; and (4) in a typical termination case she must show that she was replaced by a worker who is not a member of the protected class. Carter v. AT&T Communications, 759 F. Supp. 155, 158-59 (S.D.N.Y. 1991). At trial, the only one of these factors left for determination was whether plaintiff was qualified for her position and/or was satisfying her employer's normal work requirements.

 Defendants claim that plaintiff's termination was nondiscriminatory because it was due to her unsatisfactory job performance rather than her pregnancy. At trial, defendant provided testimony from a number of employees pointing to examples of plaintiff's mistakes including problems with her route settlements, an uncooperative attitude with route salesmen, her tardiness on a number of occasions, and a situation in which she double billed a customer.

 Plaintiff admitted at trial that she was late to work on approximately twenty occasions. Brigitte Stella, plaintiff's immediate supervisor, testified that plaintiff was tardy on numerous occasions. However, plaintiff's tardiness on only three occasions was recorded as a disciplinary incident. Additionally, Michael Matney, Stella's supervisor, testified that plaintiff's tardiness was not a basis for her termination.

 Stella and Karen Censak, a co-worker, testified that as an example of plaintiff's poor work performance, she failed to close route settlements on a number of occasions and did not leave notes explaining such failures. They did not, however, relate specific incidents of such failures. Defendant produced no written record of such failures. Plaintiff testified, on the other hand, that she never failed to close her route settlements, which left an issue of credibility for the jury to determine.

 Defendant also provided testimony regarding an incident in August 1991 where the Norand computer units used by route salespersons were not updated with sales information for the following day. Plaintiff testified that she did not fail to reset the computer units and blamed the incident on a possible power surge caused by a thunderstorm in the area after her shift ended. The fact that a thunderstorm occurred on that night was corroborated by a newspaper article. In relation to this incident, plaintiff admitted that in her previous deposition she had said that she was not responsible for resetting the computer units. However, she also testified during redirect examination that in her deposition she had been referring to the initial setting of the computer units by the truck drivers before she downloaded information, not her resetting of the units at the end of the night. Plaintiff also testified ...

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