Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
B. Age and Gender Discrimination
O'Keefe contends that General Accident's conduct amounted to unlawful termination under both Title VII and the ADEA. General Accident contends that because O'Keefe was offered a lateral position, she was not fired and thus has no basis to sue for unlawful termination. At most, General Accident argues, O'Keefe's has stated a claim for constructive discharge. Defendants argue that because O'Keefe contends that she was forced to choose the transfer to a new job or to be fired from the position she held at General Accident, we should apply a constructive discharge analysis. O'Keefe argues, however, that she was terminated outright. Because the facts which determine which analysis to apply are in dispute, we draw all inferences in favor of the plaintiff and thus apply a straight termination analysis.
1. Prima Facie Case of Discrimination
To state a prima facie case of age and sex discrimination in employment, a plaintiff must establish that: (i) she was a woman in a protected age group, (ii) she was qualified for her job, (iii) she was discharged, and (iv) the discharge occurred in circumstances which give rise to an inference of age and sex discrimination. McDonnell Douglas v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983); Spence v. Maryland Casualty Company, 995 F.2d 1147, 1155 (2d Cir. 1993).
We believe that O'Keefe has, under law to which this Court must be responsive on a motion such as this, barely made out a prima facie case of discrimination. As for the first three factors, she was terminated at the age of 58, she has provided evidence of good performance ratings and promotions, and she was terminated. As for the fourth factor, O'Keefe has provided several examples which lead a jury to infer that General Accident discriminated against women and/or older individuals. When O'Keefe complained to Pomara about McLaughlin's behavior, he told her that she could "live with that." He also told her that some women at General Accident were more interested in finding a partner than they were in their work. Other male employees remarked that some women wore "revealing" clothing. O'Keefe also contends that on one occasion a female co-worker entered McLaughlin's office to discuss a problem she was having with an agent when McLaughlin asked, "You're not going to cry?" Moreover, O'Keefe asserts that another "older" employee, Joan Zabonik, was treated poorly. In light of these examples, we believe that O'Keefe has made out a prima facie case of discrimination.
2. Legitimate Reasons for the Termination
Once O'Keefe has established a prima facie case of either age or gender discrimination, the burden then shifts to the Defendant to produce evidence that the plaintiff was terminated for legitimate nondiscriminatory reasons. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Martin v. Citibank N.A., 762 F.2d 212 (1985). General Accident contends that O'Keefe's performance was unacceptable.
For example, on July 2, 1991 O'Keefe was evaluated and earned an overall performance level of "2" indicating her performance was below appropriate standards and needed to be improved. A letter dated October 11, 1991 from O'Keefe's immediate supervisor to McLaughlin reports the continued errors in O'Keefe's performance and advised that McLaughlin should give O'Keefe a verbal warning. A letter was also given to O'Keefe which further explained the oral reprimand she was given. Finally, O'Keefe was given a Disciplinary Action Notice on January 3, 1992 which demanded an improvement in performance within 30 days.
3. Pretextual Reasons
Once General Accident produces its legitimate nondiscriminatory reason for its action, the burden of proof shifts back to O'Keefe to prove by a preponderance of the evidence that the proffered reasons are merely pretextual and that she has been the victim of intentional discrimination. See McDonell Douglas Corp. v. Green, 411 U.S. at 802; see also St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. at 2747-48. O'Keefe claims that her inability to raise her performance level was due to improper training and a lack of supervision. McLaughlin obstructed her progress with General Accident by refusing to answer her questions and by assisting other employees at the company. Moreover, upon first starting with General Accident, the company did not provide O'Keefe with training, informal or formal, whereas other employees were given informal training on company time. Finally, for over a year, the supervisory and managerial positions were vacant. During that time, O'Keefe did not have an immediate supervisor in the department. In light of these contentions, the court finds that an issue of fact-- albeit a thin one--exists as to whether General Accident's proffered reasons for terminating O'Keefe are merely pretextual. Accordingly, O'Keefe may proceed on her Title VII and ADEA claims.
C. O'Keefe's State Claims
In addition to her federal claims, O'Keefe also asserts claims for age discrimination, sex discrimination and retaliation under New York's Human Rights Law. General Accident argues that this Court does not possess jurisdiction over the state law claims because she elected to pursue those claims in a state administrative forum. See Keeley v. Citibank N.A., 711 F. Supp. 157, 161 (S.D.N.Y. 1989). O'Keefe has provided us with no argument to the contrary. Regardless of whether this Court technically possesses jurisdiction over O'Keefe's state claims, however, it is an open question whether the Court should exercise its discretion and retain jurisdiction over this pendent state cause of action. United Mine Workers v. Gibbs, 383 U.S. 715, 725-28, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
Our Court of Appeals is silent on the issue of whether a plaintiff may commence both an ADEA claim and an age discrimination claim based on New York Human Rights Law in federal court. Moreover, the district courts are split on this issue. Some courts have viewed the state claims as appropriate complimentary claims and have retained jurisdiction. See Kaczor v. City of Buffalo, 657 F. Supp. 441 (W.D.N.Y. 1987); Selbst v. Touche Ross and Co., 587 F. Supp. 1015 (S.D.N.Y. 1984). However, other courts have viewed the state claim as confusing for the jury. See Realmuto v. Yellow Freight System Inc., 712 F. Supp. 287, 291 (E.D.N.Y. 1989); Burger v. Health Insurance Plan of Greater New York, 684 F. Supp. 46, 50 n.4 (S.D.N.Y. 1988). Moreover, several courts have refused to retain jurisdiction on the theory that if plaintiffs knew that they could combine a federal ADEA claim which does not permit compensatory damages with a New York claim which does permit them, there would be little incentive for them to settle during the EEOC conciliation process. See Lippa v. General Motors, 760 F. Supp. 1062, 1065 (W.D.N.Y. 1990); Giuffre v. Metropolitan Life Insurance Co., 129 F.R.D. 71, 79 (S.D.N.Y 1989); Realmuto, 712 F. Supp. at 291. Accordingly, the court declines to retain pendent jurisdiction.
For the reasons stated, the Court denies General Accident's motion for summary judgment as to O'Keefe's federal claims under Title VII and the ADEA and grants summary judgment as to her state claims.
BARRINGTON D. PARKER, JR.
Dated: White Plains, New York
March 4, 1996