Plaintiff has shown that defendant's method of evaluating worker productivity singled her out for poor ratings by failing to take into account her important accomplishments, favoring other -- arguably arbitrary -- indicia of productivity. Defendant argues that plaintiff's real grievance is that she simply disagreed with management's business decision to choose one method of evaluation over another.
As set forth above, however, plaintiff raises serious questions about the validity of defendant's evaluation method: that they were applied retroactively to diminish her productivity; that they did not always enforce them against other young male employees; and that after plaintiff's termination defendant no longer utilized the same standards. Similarly, with regard to plaintiff's purported interpersonal problems, she has effectively shown that she suffered from treatment that was not applied to the young male salespersons and that many of defendant's complaints about insubordination arise in the context of disputes over plaintiff's work habits. Accordingly, plaintiff has raised an inference of discrimination sufficient to establish a prima facie case of discrimination under Title VII and the ADEA. See, e.g., Gallo, 22 F.3d at 1227 (holding plaintiff, employee terminated in purported corporate downsizing, establishes inference of discrimination where employer chooses to re-assign or hire several younger employees with less experience than plaintiff).
D. Plaintiff's Prima Facie Case of Retaliation.
To establish a prima facie case of retaliation under Title VII and the ADEA, plaintiff must prove: that she was engaged in protected activity under these laws, that she suffered adverse action, and that a causal connection exists between the two. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). In such situations, the causal connection between the adverse action and the protected activity can be shown through indirect evidence, such as close proximity in time between the protected activity and the adverse employment action. See, Grant v. Bethlehem Steel Corp. 622 F.2d 43, 46 (2d Cir. 1980) (discussing proof for retaliation claim under Title VII). Moreover, plaintiff's burden on this claim at this stage of the litigation is "de minimis." Tomka, supra, 66 F.3d at 1308 (citation omitted and alteration in original).
As set forth above, plaintiff filed a charge with the EEOC in December of 1993, alleging that she was the victim of discrimination on the basis of gender and age because of the method of evaluation utilized by defendant. Plaintiff alleges that one month later she began to suffer retaliation for her actions as follows: 1) she was re-assigned to a cubicle right next to Bausch's, so he could monitor her closely, even though such a location represented junior status in the office when she was the most senior sales staff member there; 2) she was given a warning notice describing several incidents that purportedly exhibited plaintiff's mishandling of clients and assignments which plaintiff alleges were complete fabrications (Hurd Aff. at PP 34-35; Pl. Exh. W); 3) plaintiff alleges she was not given credit for having reached at least one large merchant agreement (Hurd Aff. at P 36); and, 4) she was accused of having assaulted Bausch, which she disputes. Plaintiff argues that each of these acts were humiliating and carried out in retaliation for her filing the EEOC charge. (Hurd Aff. at P 33-38.)
As the Second Circuit stated clearly in Tomka, supra, a close correlation in time between the protected act and the purported retaliatory treatment "supports an inference of discrimination sufficient to establish a prima facie case." 66 F.3d at 1308 (citations omitted). Accordingly, plaintiff has established a prima facie case of retaliation.
E. Defendant's Articulated Reasons for Termination, Plaintiff's Allegations Regarding Pretext and the Arguably Discriminatory Inference that can be Drawn from the Facts.
Defendant asserts as its basis for not promoting and ultimately terminating plaintiff that "her sales efforts and performance [were] unsatisfactory, and her insubordinate conduct intolerable." (Def. Mem. Supp. Summ. J. at 33.)
As stated above, plaintiff has raised a genuine issue of material fact that permeates the entire action: that defendant's method of measuring the productivity of its sales staff singled her out and devalued her contribution. It is well-established that an employer may rely upon supervisor evaluations to assess an employee's performance when carrying out an employment decision. Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). As articulated by plaintiff, however, by considering the small, less time-consuming agreements the younger salesmen were able to obtain as equivalent to the those plaintiff sought, defendant intentionally undervalued plaintiff's work.
As further evidence of the pretext of the methodology, plaintiff cites the following examples: that it was applied retroactively to diminish the value of her sales, that management's statements to staff are riddled with inconsistencies concerning defendant's priorities regarding productivity, that plaintiff's colleague and future supervisor was able to emphasize his productivity in a way that plaintiff was not able to treat her own, that after plaintiff's termination defendant dropped some of the standards purportedly applied to sales during plaintiff's tenure. As described in plaintiff's version of the facts, defendant's systematic implementation of various "rules" concerning productivity that appear to have had an impact only on plaintiff, their selective enforcement of those rules, and their subsequent abandonment of certain criteria, could easily lead a finder of fact to determine that these standards were pretextual. See, e.g., Gallo, 22 F.3d at 1225 (holding "systematic resurrection" after employee's termination of tasks employer had originally eliminated to justify action against employee raised inference of discrimination); E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (holding that based upon discrepancies in defendant's articulated basis for discrimination reasonable juror could infer that these were pretextual and "developed over time to counter" evidence suggesting discrimination).
Additionally, plaintiff denies the allegations of "interpersonal problems", raising genuine issues of material fact on this point. Moreover, many of defendant's arguments that plaintiff was insubordinate arise in the context of memoranda between the parties during her employment in which she is critical of the allegedly discriminatory conduct she has received: i.e., when she is being chastised for coming to work minutes late in the morning when her younger male counterparts are allowed to arrive significantly later without reproach. Defendant's arguments to the contrary notwithstanding, there is nothing in the law that says that a person suffering discrimination must stand mute in the face of invidious treatment.
Defendant's reliance on Smith v. American Express Co., supra, is misplaced. In Smith, the employer had alleged that the employee-plaintiff was denied a promotion that went to a co-worker because of the co-worker's better performance ratings and interpersonal skills. As is alleged by plaintiff herein, Smith alleged that the employee rating system used by American Express was invalid and biased. 853 F.2d at 154-155. This claim was rejected at the summary judgment stage as unsupported by the record. Here, however, by referring to the written memoranda of managers Funayama and Bausch, plaintiff has revealed that defendant's employee evaluation system was riddled with internal inconsistencies and what appear to be ex post facto justifications that, at a minimum, raise a genuine issue of material fact that defendant's methodology for evaluating its employees was indeed biased against plaintiff.
Accordingly, plaintiff has established a genuine issue of material fact that defendant's articulated reasons for failing to promote and for terminating plaintiff are pretextual. Additionally, as stated earlier, plaintiff has established a genuine issue of material fact concerning the inference that can be drawn regarding whether she was fired based on her age and gender.
As is well-established, the same facts may be relied upon to prove both a prima facie case of discrimination as well as to prove such discrimination by a preponderance of the evidence. Hicks, 113 S. Ct. at 2749.
In interpreting Hicks, supra, the Second Circuit has stated definitively as follows:
[Defendant] misreads the Supreme Court's statement in Hicks that once a defendant produces evidence of a legitimate, nondiscriminatory reason for his or her action, the plaintiff must then establish that the defendant's actions were intentionally discriminatory. [Defendant] takes this statement as requiring the plaintiff to adduce additional evidence after the defendant's production -- evidence beyond that presented in the plaintiff's prima facie case. Justice Scalia took pains to preclude such an interpretation of the Court's decision when he observed that, upon rejection of the defendant's proffered reasons for its action, "no additional proof of discrimination is required." Thus, [plaintiff] did not fail to offer sufficient evidence of discrimination by not presenting more evidence after [defendant] endeavored to provide a nondiscriminatory reason for his actions.
Cabrera v. Jakabovitz, 24 F.3d 372, 385 (2d Cir.)(quoting Hicks, 113 S. Ct. at 2749) (emphasis and alterations to Hicks quotation in original), cert. denied, 130 L. Ed. 2d 135, U.S. , 115 S. Ct. 205 (1994).
Moreover, the trier of fact can decide not only that the reasons proffered by defendant are pretextual but can also "generally infer discrimination when it finds that the employer's explanation is unworthy of credence." Binder v. Long Island Lighting Co., 57 F.3d 193, 200 (2d Cir. 1995). See also, Ethan Allen, 44 F.3d at 120 (holding that a "finding of pretextuality allows a juror to reject a defendant's proffered reasons for a challenged employment action and thus permits the ultimate inference of discrimination."); Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 142 (2d Cir. 1993) (holding plaintiff's ultimate burden of proof can be met by "combining" proof submitted in its prima facie case with "evidence that defendant's proffered reasons for its acts were false."), cert. denied, 127 L. Ed. 2d 539, U.S. , 114 S. Ct. 1189 (1994); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170 (2d Cir. 1993) (holding defendant's proffer of a false reason for employment action sufficient basis for trier of fact to find that such action was "motivated by an improper discriminatory intent.")
Plaintiff has raised sufficient genuine issues of material fact regarding defendant's basis for the employment decisions challenged herein and whether such decisions give rise to an inference of discrimination that would warrant a finding of discrimination. See supra § I., C.
Given the Second Circuit's general admonition that "caution must be exercised in granting summary judgment where an employer's intent is genuinely in issue," Tomka, 66 F.3d at 1309-1310 (citations omitted), the court is not ready to conclude on the facts before it at this stage in the litigation that no reasonable juror could find that defendant discriminated against plaintiff in taking the adverse employment action challenged herein.
For the reasons set forth above, defendant's motion for summary judgment should be denied.
Dated: New York, New York,
April 15, 1996.
Constance Baker Motley
United States District Judge