The opinion of the court was delivered by: SPATT
The issues in this case concern a charge of gender discrimination in the setting of the Office of the District Attorney of Nassau County. The plaintiff, an Assistant Detective Investigator II in the Office of the defendant District Attorney, contends that her discharge was motivated by gender discrimination.
The plaintiff Diane Calabritto ("the plaintiff" or "Calabritto") was first employed by the defendant District Attorney of Nassau County ("the defendant" or "the District Attorney" or "The Office") as an Assistant Detective Investigator Aide on March 23, 1984. On or about March 27, 1988, Calabritto was promoted to Assistant Detective Investigator I. She was promoted to Assistant Detective Investigator II on or about April 24, 1989. In 1990, the plaintiff was assigned to the United States Customs Task Force ("the Task Force"). The plaintiff was terminated from her employment with the District Attorney on or about January 24, 1992.
The plaintiff filed a discrimination claim against the District Attorney with the United States Equal Employment Opportunity Commission Division of Human Rights, which made a determination that the District Attorney did not violate the Title VII statute, as follows:
Examination of the evidence reveal that Charging Party was terminated as a direct result of budgetary constraints. Charging Party's title was that of 'Assistant Detective Investigator I'. On January 17, 1992, Nassau County District Attorney's Office laid of (sic) several persons with the same title as Charging Party. This included two other males and the Charging Party. No persons in the same job title as the Charging Party's job was retained, nor was there anyone hired or re-hired in the job title of Assistant Detective Investigator I since January 17, 1992.
In January 1994, the plaintiff commenced this action alleging employment discrimination, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).
I. The Standards in a Title VII Case
A. McDonnell Douglas - Burdine - Hicks Pretext Cases
"Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to . . . the terms and condition of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate or classify his employees in ways that would adversely effect any employee because of the employee's race, color, religion, sex, or national origin." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 645, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989); Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 (2d Cir.), cert. denied. 502 U.S. 924, 116 L. Ed. 2d 277, 112 S. Ct. 337 (1991).
As the Supreme Court observed in Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), "the objective of Congress in the enactment of Title VII . . . was to achieve equality of employment opportunities and remove barriers that have operated in the past . . .." Under Title VII, discrimination can be demonstrated through evidence of either 'disparate treatment' or 'disparate impact.' To show 'disparate treatment,' the plaintiff is "required to prove that the defendant had a discriminatory intent or motive." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). 'Disparate impact' is based upon the premise "that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Id. at 987. The evidence in 'disparate impact' cases "usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033 (2d Cir. 1993).
In this action, in a broadly worded complaint drawn by a pro se plaintiff, who was later represented by counsel, she apparently alleged both a "disparate treatment" and "disparate impact" Title VII claim. To establish a discriminatory treatment claim under Title VII, proof of discriminatory motive is critical. Discriminatory motive can be proved by direct or circumstantial evidence, though most often a Title VII plaintiff "is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
As stated recently in Fisher v. Vassar College, supra, a Title VII claim, including one alleging discriminatory treatment, is tried by a three-step process. In the seminal case of McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court devised a three-tiered burden shifting framework in Title VII cases. In the first tier, the plaintiff must prove a prima facie case, which, in a gender discrimination case such as this, consists of four elements: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff was qualified for the position she held at the time of her termination; (3) that the plaintiff was terminated from her position; and (4) that her termination occurred in circumstances giving rise to an inference that it was based on the plaintiff's gender.
The next two tiers are described in Fisher, as follows:
If the plaintiff presents a prima facie case, the burden shifts to the employer, who is required to demonstrate "some legitimate, nondiscriminatory reason" for the decision. Id. The employer's burden here is one of production of evidence rather than one of persuasion. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The defendant need only articulate -- but need not prove -- the existence of a non-discriminatory reason. Id. At 254-56, 101 S. Ct. At 1094-95.
If the defendant carries this burden of production, the plaintiff then assumes the burden to "show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. At 1825. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S. Ct. At 1093. In St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), the Supreme Court held that, as to the third prong of the McDonnell Douglas test, it is not enough for a plaintiff to show that the defendant's legitimate, non-discriminatory reason for its employment decision is pretextual; the plaintiff must also prove by a preponderance of the evidence that defendant's stated reason is "a pretext for discrimination." St. Mary's, U.S. at , 113 S. Ct. At 2752 (emphasis added). The plaintiff must establish "both that the reason was false, and that discrimination was the real reason."
Id. at 1433 (emphasis in original).
As stated above in Fisher, under the third tier of the McDonnell Douglas pattern, as clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993), even if the trier of fact rejects the defendant's submission that its reasons were justified, the burden of proving that the motivation for the failure to promote the plaintiff was unlawful remains with the plaintiff. St. Mary's Honor Center v. Hicks, supra, 113 S. Ct. at 2749 (1993) ("The Court of Appeals' holding that rejection of the defendant's proffered reasons compels judgment for the plaintiff . . . ignores our repeated admonition that the Title VII plaintiff at all times bears the 'ultimate burden of persuasion.'") (emphasis in original).
We have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated. We may, according to traditional practice, establish certain modes and orders of proof, including an initial rebuttable presumption of the sort we described earlier in this opinion, which we believe McDonnell Douglas represents. But nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable.
In a series of cases, the Second Circuit has interpreted and clarified the Hicks ruling. For example, in DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993), it was stated:
Proof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant's actions were motivated by an improper ...