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March 25, 1996

LYNN T. DRYDEN, Plaintiff, against TIFFANY & COMPANY, Defendant.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge

 This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (the "ADEA"), and corresponding provisions of New York State and City law. The plaintiff claims that she was terminated as a sales person at Tiffany & Company, the well known jeweler, on the basis of her age (late 40s) and race (Asian). Tiffany moves for summary judgment dismissing the complaint.


 The facts pertinent to the resolution of this motion may be stated briefly.

 Ms. Dryden began her employment with Tiffany in 1971 as a retail sales professional and held a variety of positions over the ensuing 18 years. Beginning on January 1, 1989, she worked in the silver jewelry department on the second floor of Tiffany's East 57th Street store in Manhattan where she remained until she was terminated effective July 1, 1993. For most of her career, her job performance concededly was acceptable.

 Tiffany claims that Ms. Dryden's performance began to decline in 1991 and that she repeatedly was cited for security violations ranging from showing more than the maximum permitted number of pieces of merchandise to a customer at one time to leaving merchandise unattended in a customer area. These episodes culminated in an incident on June 12, 1993, in which Ms. Dryden allegedly committed four separate security violations, which Tiffany asserts led to her termination. The events relied upon by Tiffany are corroborated by documents said by Tiffany to be contemporaneous reports of the incidents. In one or two instances, Tiffany's accounts are supported by photographs made from security surveillance tapes.

 Ms. Dryden tells a different story. She sustained a job related injury in 1991 that led to a workers' compensation claim and complaints to management by her about an allegedly defective drawer. The alleged security violation reports, she says, commenced thereafter "without my knowledge for the most part." (Dryden Aff. P 8) She denies knowledge prior to October 1992 of the policy prohibiting a salesperson from having more than five pieces out of the showcase at a single time and thus seeks to explain away the earlier incidents relied upon by Tiffany. (Id. PP 10-13) She admits a violation of the policy on October 20, 1992 -- four days after signing a written evaluation which called the policy to her attention -- but seeks to justify it on the theory that she was cleaning her showcase. (Id. P 14) With respect to other alleged violations, she either denies advance knowledge of the policy in question, denies the occurrence or, at least, aspects of Tiffany's version of the incident, offers justifications for her actions, or all three. (Id. PP 10-19)

 The evidence of age discrimination is extraordinarily thin. Ms. Dryden admittedly was replaced by Ms. Nan Craver who, at 60 years of age, was substantially older than Ms. Dryden. (Id. P 20) Ms. Dryden relies on her "recollection" that Ms. Craver was replaced by a younger employee.

 The evidence of racial discrimination consists principally of Ms. Dryden's claim that the supervisors charged with enforcing the security policies which she was accused of violating both were Caucasian and her assertion that five other Caucasians, including Ms. Craver, repeatedly violated the same rules but never were written up. (Id.) Tiffany's Ms. Ray acknowledged that she had spoken to Craver about the five piece rule about five times, to another Caucasian employee approximately twice, and to a majority of the other employees at least once. (PX XXII) Tiffany produced documentary evidence that one of the five Caucasians referred to by Ms. Dryden in fact was written up in February 1993 for a violation of the security policy. (Ray Reply Aff. Ex. A)


 Summary Judgment as to Merits of Discrimination Claims

 The standards governing plaintiff's discrimination claims are clear. In order to establish a prima facie case in this context, the plaintiff must demonstrate that she was (1) a member of a protected class, (2) qualified for the position, and (3) discharged in circumstances giving rise to an inference of discrimination. If the plaintiff satisfies that burden, the defense must articulate an independent, non-discriminatory reason for its action. The plaintiff then bears the burden of showing by a preponderance of the evidence that (1) the defendant's actions were pretextual, and (2) discrimination played a role in the decision. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994); Fitzgerald v. Alleghany Corp., 904 F. Supp. 223, 228 (S.D.N.Y. 1995). The burden of establishing the prima facie case is "not onerous." Burdine 450 U.S. at 253.

 Here, plaintiff has offered evidence which, if believed and viewed in the light most favorable to her, establishes the first two elements of the prima facie case on both the age and racial discrimination claims. As an Asian over the age of forty, she is a member of the classes protected by Title VII and the ADEA. Her long record of satisfactory employment by Tiffany, given the Court's obligation to accept for summary judgment purposes her version of the disputed events concerning the alleged security violations, is sufficient to create a genuine issue of fact as to her qualification for the position from which she was terminated. She concededly was discharged. Accordingly, the question whether she has made out a prima facie case turns on ...

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