when necessary and, he did in fact take some disciplinary actions against employees during the relevant time period. For example, in November 1990, Brigaud sent Gueye a written warning based on his observation that she regularly failed to arrive at work on time and often extended her lunch break beyond the allotted time period. Id. at 269-74; DX "D." On another occasion, Brigaud issued Smarth a letter warning for failing to abide by certain work rules and later suspended her for five days without pay. Trial Tr. at 276-77; DX "JJ," "KK." In another instance, Brigaud verbally reprimanded Nachef for mistreating Gueye during a brief altercation between the two employees. Trial Tr. at 137-38, 289-90.
On June 13, 1991, Gueye filed a complaint with the New York State Division of Human Rights setting forth a claim for discrimination on the basis of race and age (the "DHR Complaint"). In the DHR Complaint, Gueye alleged that Brigaud's decisions to promote younger employees and remove her title as interline representative were motivated by a discriminatory intent.
III. Gueye's Reassignment
In November 1991, an altercation occurred involving Brigaud and Gueye. The credible evidence established that Gueye refused Brigaud's direction to answer the telephone to speak to a customer, and a disagreement ensued in which Gueye raised her voice and engaged in other insubordinate behavior. Id. at 286-88, 455-57. Brigaud immediately suspended Gueye for five working days. Id. at 288; DX "I." Shortly thereafter, Brigaud transferred Gueye to the Queens office based on his belief that Gueye could no longer work effectively in any position in the Manhattan office. Trial Tr. at 291-93. On November 21, 1991, Gueye amended the DHR Complaint to include a retaliation claim based on the transfer decision.
At the Queens office, Gueye was supervised by Marie Jose Neptune ("Neptune"), Air Afrique's cargo manager. Gueye was immediately assigned the job of performing several secretarial tasks such as typing, preparing statistical reports and answering the telephone. Id. at 390. Neptune soon determined, however, that Gueye was not successfully performing her telephone responsibilities due to her difficulty speaking and understanding English. Id. at 393-95. Accordingly, in February 1992, Neptune decided to relieve Gueye of that responsibility and instead assigned her the task of processing claims of damaged and lost baggage, a job recently transferred from the Manhattan office. Id. at 396-97.
Air Afrique officials agreed to the change and proposed that Gueye be sent to New World Cargo, the company contracted by Air Afrique to transport excess baggage, for two weeks of training followed by additional training in Abidjan. Id. at 397-98. Neptune and Brigaud disagreed with headquarters' proposal and instead suggested that Gueye be trained first in Abidjan and later at New World Cargo. Id. at 398-400. Officials at Abidjan accepted this plan and authorized Gueye's travel to their training facilities. Id. at 400. The credible evidence established that Neptune and Gueye together agreed on convenient travel dates and that Gueye was aware of the trip several weeks prior to departure. Id. at 400-07.
On May 18, 1992, Gueye returned to work at the Queens office, having completed her training in Abidjan. That day, a dispute ensued between Gueye and Neptune involving Gueye's responsibilities and the training she had received at headquarters. During the course of the altercation, Gueye became enraged, refused to discuss her training and challenged Neptune's supervisory authority. Id. at 407-16, 472-77. In view of Gueye's insubordination, Neptune immediately gave Gueye written notification that she was suspended indefinitely. Id. at 417; DX "R." On May 25, 1992, after consultation with officials in Abidjan, Brigaud terminated Gueye's employment. Trial Tr. at 373-75.
CONCLUSIONS OF LAW
I. Discrimination Claim
In order to establish a case of discrimination based on race or age, a plaintiff must satisfy the standard set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) (stating that ADEA claims are analyzed in the same manner as Title VII claims). Under this standard, the plaintiff must establish that she (1) is a member of a protected class; (2) was qualified to perform the duties required by the position; and (3) suffered an adverse employment action under circumstances suggesting that race or age was a factor. Id. at 508 (citing Levin v. Analysis & Technology, Inc., 960 F.2d 314, 316 (2d Cir. 1992)); Rosen v. Thornburgh, 928 F.2d, 528, 532 (2d Cir. 1991).
Once the plaintiff establishes a prima facie case, an inference of discrimination arises, and the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that the employer's actions were motivated by legitimate, nondiscriminatory reasons. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. at 802. If the defendant is able to rebut the presumption of discrimination, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons set forth by the defendant are merely pretextual and not the true reasons for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. at 804; see also Patterson v. McLean Credit Union, 491 U.S. 164, 187, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989); Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 256.
In meeting this standard, the plaintiff need not prove that race or age was the only factor motivating the employer's conduct, but rather that it was a "'determinative factor.'" Robinson v. Overseas Military Sales Corp., 21 F.3d at 508 (age) (quoting Levin v. Analysis & Technology, Inc., 960 F.2d at 317); Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir. 1995) (race). At all times, however, the plaintiff has the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993).
In the present case, Gueye alleges that the following adverse employment actions were taken against her as a result of her age or race: (1) Brigaud promoted Smarth and Kaiser rather than Gueye during the transition period at Air Afrique; (2) Brigaud required her to answer the general telephone line when the receptionist was unavailable; (3) Gueye was singled out for discipline for time and leave problems; and (4) Brigaud transferred the interline representative title from her to Manners. After considering all relevant evidence presented at trial, however, the Court finds that these employment actions were wholly unrelated to Gueye's age or race.
First, on the issue of promotions to Smarth and Kaiser, Gueye has failed to carry her burden of proving that Air Afrique's decisions were based on age or race. Rather, the evidence presented at trial overwhelmingly established that these promotions were based on legitimate business considerations. In the case of Smarth, Brigaud's decision was based on the departure of Librader, upon whom Smarth previously had depended for much of her workload. As for Kaiser, the decision appears to have been based on her prior experience dealing with some issues relevant to group sales. Gueye failed to present any evidence, direct or circumstantial, that these promotion decisions were motivated by a discriminatory animus. Additionally, the fact that Smarth is black undermines Gueye's contention that Brigaud's decision was racially motivated. The Court also discredits Gueye's testimony that she would have sought the promotion given to Kaiser, as her in-court testimony is belied by her own prior deposition testimony in which she stated that she did not desire that position.
Second, with respect to the decision to require Gueye to answer the general telephone line, the evidence presented at trial clearly established that Brigaud was not motivated by an impermissible consideration such as Gueye's age or race. Brigaud credibly testified that his decision was based on personnel changes in the Manhattan office, which rendered Gueye the most logical choice to assume the responsibility of assisting the receptionist.
Third, Gueye has failed to sustain her burden of proving that Brigaud's decision to remove her title of interline representative was motivated by race. Plaintiff simply presented no evidence to support her claim that Brigaud was motivated by racial considerations to any degree in returning the interline function to Manners. Rather, the Court finds that the decision was based on several legitimate considerations, including (1) Brigaud's determination that Gueye was overworked; (2) the fact that other employees had complained about her performance in the interline role; (3) Brigaud's recognition that the job is usually not performed by secretaries at other Air Afrique offices; and (4) the fact that Manners had experience in the position.
Fourth, contrary to plaintiff's claim, the evidence demonstrated that Gueye was not singled out for disciplinary action and, in fact, other employees were similarly reprimanded for violating firm policies. For example, during his tenure as the head of the Manhattan office, Brigaud disciplined Smarth, a younger woman, for certain leave problems and ultimately suspended her for several days without pay. In another instance, Brigaud verbally reprimanded Nachef, another younger employee, for failing to treat Gueye respectfully. Additionally, Brigaud at one point circulated a memorandum to all employees in the Manhattan office with a general warning about time and leave problems. DX "A." Together, this evidence strongly suggests that Brigaud's disciplinary decisions were reached without regard to the employees' age or race, but rather were based on whether or not individual disciplinary problems needed to be addressed.
As for plaintiff's contention that Brigaud failed to take any action against Manners despite the fact that she regularly exceeded her allotted lunch break, the Court does not find Gueye's testimony credible. Rather, the Court credits Brigaud and Manners' testimony that Manners limited her lunch break to the appropriate length of time. Trial Tr. at 275, 453-54. This allegation thus similarly fails to support Gueye's assertion that disciplinary action was based on age or race in the Manhattan office.
Finally, with regard to all four adverse employment actions alleged, the Court notes that a review of Brigaud's hiring practices during the relevant time period demonstrates further that his decisions were made irrespective of age and race. Brigaud hired individuals of various ethnic backgrounds, in roughly the same proportion as existed prior to his promotion to the head of the Manhattan office, including four black individuals prior to the filing of the DHR Complaint.
The employees hired by Brigaud ranged in age from twenty-two to fifty-five, and in fact nearly half of all hirees in the Manhattan and Queens offices were in their forties and fifties. This evidence, coupled with the Court's findings with respect to each of the four claims discussed above, supports the conclusion that Brigaud's employment decisions were made without regard to Gueye's age or race.
II. Retaliation Claim
Turning to Gueye's claims for retaliation, the Court finds that plaintiff has failed to sustain her burden of proving that Air Afrique retaliated against her for filing the DHR Complaint.
Section 704(a) of Title VII provides, in part, that:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.