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April 15, 1996


The opinion of the court was delivered by: MOTLEY

 Plaintiff in the instant case alleges that she was discriminated against in the terms and condition of her employment based on her age and sex. She also alleges that she was retaliated against for filing a complaint with the Equal Employment Opportunity Commission (EEOC) challenging defendant's allegedly discriminatory practices. Defendant has moved for summary judgment in this action, alleging that plaintiff has failed to raise a genuine issue of fact with regard to several essential elements of her case. Because the submissions in opposition to the instant motion raise several genuine issues of material fact in this action the request for summary judgment must be denied.


 Summary of Plaintiff's Allegations

 Plaintiff, a forty-eight-year-old woman at the time the amended complaint in this action was filed, was hired as a salesperson with defendant company in 1988 and fired in May of 1994. She claims that during the course of her employment she was denied a promotion based on her age and gender, retaliated against after filing a charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination in this promotion decision and ultimately terminated. Plaintiff alleges that the following facts and circumstances surrounding her employment raise an inference that she was discriminated against because of both her gender and age: 1) defendant intentionally used an arbitrary method of evaluating worker success in order to favor the less lucrative sales younger men in her department were able to accomplish; 2) for most of her tenure with defendant she was the only woman in the sales department and she received serious disparate treatment, including, inter alia, grave reprimands for trivial infractions of office policies where much more serious violations of these same policies by younger men were overlooked; and, 3) she received degrading treatment in the office to which her younger male coworkers were not subject. It is alleged that this treatment created an atmosphere that not only made it impossible for her to receive promotions but also fostered the conditions necessary for defendant to establish a pretext for terminating her.

 The Parties

 Plaintiff Marianne R. Hurd (hereinafter "plaintiff") was hired by defendant company in May of 1988 to serve as its only salesperson in its new New York office. Prior to her appointment with defendant, she had fifteen years of sales experience. Her responsibilities with defendant involved securing and maintaining agreements from retail companies to accept the use of defendant's credit card by defendant's customers. (Hurd Aff. at PP 1-4; Krumme Aff. at P 4).

 Defendant JCB International Credit Card Co., Ltd. (hereinafter "defendant"), is the United States subsidiary of JCB International Co., Ltd., which, in turn, is a subsidiary of JCB Co., Ltd., "the largest bank-related credit card company in Japan and the fourth largest in the world." (Krumme Aff. at P 2.) JCB is headquartered in Los Angeles with offices in several major U.S. cities, including New York. (Id. at P 2-3.)

 Gender and Age Makeup of Defendant's Employees.

 Plaintiff began her tenure with defendant in May 1988 as one of three employees at the New York office. Her co-workers were Mitsuo Funayama ("Funayama") and an administrative assistant. At the time plaintiff was hired, she was already over the age of 40. (Hurd Aff. at PP 39; Krumme Aff. at P 5). In September of 1988, Nelson Reyes ("Reyes") was hired as the second salesperson in the New York office and, in April 1990, Douglas Bausch ("Bausch") its third. (Krumme Aff. at P 5.) Defendant states that the following appointments were also made at the New York office: John Murch was hired in 1992 after Reyes left in that year; Chiaki Tanaka ("Tanaka") was hired in April 1994; and Robert Findaro ("Findaro") was hired in August 1994, two months after plaintiff was fired. (Krumme Aff. at P 5.)

 Plaintiff alleges that personnel figures reveal that defendant's management and senior staff members were predominantly male and that employees at plaintiff's level were all significantly younger than plaintiff and mostly male. (Hurd Aff. at PP 39-41.) It is clear that for most of plaintiff's tenure with defendant, plaintiff was the only older woman in sales, because defendant hired several younger males. (Hurd Aff. at PP 39-40; Krumme Aff. at P 5.) The only woman who appears to have been hired by defendant for a position in the sales department was Tanaka who began working for defendant in April 1994, i.e., one month before plaintiff's termination. (Krumme Aff. at P 5.) Additionally, plaintiff alleges that higher level management is overwhelmingly male. (Hurd Aff. at P 41.) Although defendant disputes these allegations and provides figures that reveal no significant disparities, plaintiff argues that defendant's counter-allegations are biased because defendant has manipulated the data by excluding all of those management positions that appear to be filled by employees of defendant's parent company in Japan. (Krumme Aff. at P 32 and Def. Exh. N.) The court has not been given sufficient information to resolve the dispute regarding the statistical data presented; plaintiff must be given the benefit of the doubt at this stage of the litigation on this point. In any event, despite this confusion over the personnel figures throughout the company, it appears that each of plaintiff's peers in the sales department, at least up to the last month of her employment, was a younger male.

 Plaintiff's Employment Evaluations.

 Each year, salespersons and other staff are given annual performance reviews in which they are judged on a scale of 1 to 10 (with 10 the highest and 1 the lowest ranking) in ten different categories, including, inter alia, sales in terms of "Profit/Efficiency Impact", "Expense Control", etc. (Hurd Aff. at P 5; Krumme Aff. at P 8; Def. Exhs. 7-9 *fn1" ).

 Both parties admit that plaintiff's initial performance ratings were very high. (Hurd Aff. at P 5; Pl. Exh. A (1989 Performance Evaluation); Krumme. Aff. at P 9). In her first evaluation, which covered the period from May 1988 through December 1989 and was prepared by Funayama, plaintiff received a "9" as an overall score, which is considered "outstanding". Additionally, Funayama wrote in this evaluation that "her ability is above the standard of Assistant Vice President" and recommended her for promotion. (Pl. Exh. A at 2.)

 Days after her evaluation, Dwane Krumme, General Manager and Executive Vice President of JCB, sent a confidential letter to Funayama's home, setting forth his reservations concerning plaintiff and the high ratings Funayama had given her. In this memorandum, (hereinafter the "Krumme Memorandum"), Krumme praised Funayama for his "intellectual and objective" appraisal which was "warranted, as opposed to an evaluation based upon emotional feelings about her style." Krumme informed Funayama, however, that "in American performance evaluations" such a high rating is "extremely rare" and that plaintiff's "personal style" should be taken into account. (Pl. Ex. B at 1 (Krumme Memorandum)(emphasis added).) Krumme noted some examples where co-workers and customers had expressed dissatisfaction with plaintiff resulting from plaintiff's "personal mannerisms, which are often too strong and over bearing (sic) in conversations with fellow staff members and with customers." (Id.) Krumme added that plaintiff's "personal characteristics should not detract from her accomplishments, both her accomplishments and her personal deficiencies need to be taken into consideration in a performance appraisal." (Id. at 2.) He stated that no employment action was necessary with regard to plaintiff provided Funayama would keep her in the sales department. If she was to be promoted, however, counseling would be necessary. (Id.) Lastly, although stating he would rate plaintiff "less than a 9-10," he praised Funayama for his "professional attempt to provide an objective assessment of her capabilities, which is the most important consideration overall. " (id. at 3 (emphasis added).)

 The next year's assessment was made by Funayama again, but with "more input from [Krumme] and other managers in the Los Angeles office than when [Funayama] reviewed [plaintiff] the prior year." (Krumme Aff. at P 10.) Plaintiff describes this next review as "devastating" and "absurd". (Hurd Aff. at PP 8 and 10.) Her ratings dropped from "outstanding" to "marginal" and "meets requirement" even though, as plaintiff argues, her sales were still high. (Hurd Aff. at Exh. C.) Moreover, as plaintiff argues, "even skills that do not change from one year to the next were given drastically reduced ratings." For example, in the category "Communication -- clarity and accuracy of oral and written communications", plaintiff's score was reduced from a "9" to a "4". (Hurd Aff. at P 10.)

 Plaintiff's subsequent evaluations were never as strong as her first and were generally as weak as her second. Soon after the Krumme Memorandum was issued, Bausch was hired as another salesperson in the New York office. (Hurd Aff. at P 13.)

 Defendant's Method of Evaluating Sales Performance.

 Plaintiff alleges that when compared to the other salespersons in her office, the quality of her work was far superior and the ultimate output much greater. The main reason for the poor evaluations, she argues, is the manner in which defendant would consider the productivity of its salespersons.

 Plaintiff argues that defendant utilized this latter, wholly irrational system intentionally in order to devalue her productivity, exclude her from promotion and ultimately terminate her employment. Moreover, plaintiff argues that the implementation of this policy actually discriminated against her as an older woman, as younger men were able to appear -- based on this system of rating productivity -- to be doing a better job than plaintiff, even though any reasonable analysis would show otherwise.

 Plaintiff argues quite succinctly as follows:

The quality of the merchant, the enhanced credibility JCB would gain by securing that merchant, the number of outlets becoming available under such an agreement and the revenue generated through that merchant are paramount considerations in evaluating sales performance. By changing the emphasis in my case to the number of agreements obtained as a measure of my performance, JCB deliberately chose to make it impossible for me to achieve a just performance evaluation. I was the only sales person consistently engaged in securing large, nationwide retail chain accounts, which JCB very much appreciated getting. Funayama and Krumme were well aware that a great deal of competence and effort were required to secure accounts of this stature, and that it was a time-consuming process, demanding a great deal of patience, negotiating skill and dedication to duty. In total disregard of the noteworthy contribution I made, JCB now insists that the number of new agreements secured was an appropriate measure of my performance. This new criterion favored the more junior, young salesmen, while penalizing me, since they secured far fewer outlets but tended to sign more agreements with small, unknown stores.

 (Id. at P 16.)

 Plaintiff reveals several internal contradictions in defendant's purported methodology. In both the first evaluation and the one conducted in 1992, plaintiff was given high praise for the quality *fn2" of the merchant agreement secured, regardless of the actual number of agreements obtained. (Hurd Aff. at P 17; Pl. Exhs. A and G.) Moreover, in the 1992 evaluation, it is noted that although plaintiff's goal was to secure 110 merchant agreements she only obtained 50 but was rated as having exceeded her sales requirement and praised for doing a "fine job" because of the profits generated from such sales. (Hurd Aff. at P 17; Pl. Exh. G. at 3). Similarly, plaintiff points to two internal staff memoranda from Funayama that discuss sales goals in terms of the revenue such sales will produce. (Hurd Aff. at P 21; Pl. Exhs. J and K). One of these memoranda states that the goals set by the company, for both merchant agreements and number of outlets, would be impossible to achieve "without recruiting chain merchants." (Pl. Exh. J at 1.)

 In addition, in his own sales summary report for fiscal year 1992-93, Bausch reviewed his personal accomplishments for that period, stating "this year I have concentrated not so much on the amount of merchants that I signed but on the increase of sales, maintenance, and the ...

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