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July 26, 1996


The opinion of the court was delivered by: POOLER

 On December 2, 1994, plaintiff Helen M. Vandewalker filed a complaint against Quandt's Food Service Distributors, Inc. ("Quandt's") alleging (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยงยง 2000e et seq. ("Title VII"); (2) unlawful retaliation for filing a Workers' Compensation Claim pursuant to Section 120 of the New York State Workers' Compensation Law; (3) intentional infliction of emotional distress; and (4) an unspecified claim under New York Human Rights Law. *fn1" Vandewalker filed an amended complaint on April 5, 1996. Presently before me is defendant's motion for summary judgment and plaintiffs cross-motion for partial summary judgment. Because I find that genuine issues of fact exist, I deny both motions.


 Quandt's sells and delivers wholesale food products. In June 1993, defendant hired plaintiff as a driver/warehouse person. Am. Compl. P 9. During plaintiffs interview in March 1993, defendant's employee, Larry Bascom, allegedly made inappropriate gender-related comments to Vandewalker. Id. PP 11-12. On April 12, 1994, Vandewalker injured her shoulder on the job and missed 15 weeks of work. Id. PP 23-24. When she returned to work on July 27, 1994, defendant terminated her employment. Id. P 26. Vandewalker alleges that defendant terminated her because of her gender and that during her employment defendant subjected her to a pattern of discriminatory behavior. Id. P 30. Quandt's did not refill plaintiffs position, and existing employees performed plaintiffs work. Def. Mem., Dkt. 30, at 5.


 I. Legal Standard

 Summary judgment shall enter if when viewing the evidence in the light most favorable to the nonmovant, the court determines that "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant satisfies this initial burden, then the "burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). The nonmovant must do more than show "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In short, the nonmovant must demonstrate to the court that issues of fact exist that must be decided by a factfinder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). "The fact that both sides move for summary judgment does not guarantee that there is no material issue of fact to be tried." Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citation omitted).

 II. Defendant's Motion for Summary Judgment.

 Defendant argues that plaintiff has not, and cannot establish that gender was a factor in its decision to terminate her. Def. Mem. at 7. In this Title VII discrimination case, plaintiffs initial burden is to prove by a preponderance that (1) she belongs to a protected class; (2) she was qualified for the position for which she applied; (3) despite her qualifications, she was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination, or direct evidence demonstrates that defendant discriminated against her. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993); see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995).

 As to the element regarding an inference of discrimination, "plaintiff is required to produce direct or circumstantial evidence that would lead a reasonable fact-finder to conclude either that defendant consciously refused to consider retaining. . . the plaintiff because of her sex, or that defendant regarded sex as a negative factor in such consideration." Bartz v. Agway, Inc., 844 F. Supp. 106, 111 (N.D.N.Y. 1994) (citations and internal quotations omitted). For the purposes of this motion, defendant concedes the first, second, and third elements of plaintiffs prima facie case. Def. Mem. at 9. As to the fourth element, defendant argues that plaintiff cannot demonstrate that she was the target of unlawful discrimination. Id.

 After plaintiff establishes her prima facie case, the burden shifts to defendant to produce evidence of a "legitimate, nondiscriminatory reason" for plaintiffs termination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); see also Hicks, 113 S. Ct. at 2747. Defendant "need not persuade the court that it was actually motivated by the proffered reasons." Burdine, 450 U.S. at 254. Rather, "the explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted." Id. at 255. Quandt's argues that it terminated plaintiff because (1) the company wished to "curb costs;" (2) plaintiff had received unfavorable work evaluations during the last six months of active employment; and (3) in plaintiffs absence existing personnel performed her work adequately. Def. Mem. at 12.

 Based on the record, I find that defendant offered a legitimate, nondiscriminatory reason for plaintiffs termination. See Burdine, 450 U.S. at 254-55. Therefore, the burden shifts back to plaintiff who must establish by a preponderance of evidence that the challenged employment decision was the result of intentional discrimination. Hicks, 113 S. Ct. at 2749. Plaintiff "at all times bears the ultimate burden of persuasion" on this issue. Id. (citation and quotation omitted).

 To prove defendant's discriminatory motive, plaintiff may rely on her prima facie case or may produce additional evidence of pretext and/or discriminatory intent. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994). Because discriminatory intent is notoriously difficult to prove, plaintiff may rely on circumstantial evidence. Id. at 37. In the summary judgment context, "unless the employer has come forward with evidence of a dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational trier of fact could reject, the conflict between the plaintiffs evidence establishing a prima facie case and the employer's evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder after trial." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (citing Chambers, 43 F.3d at 38). Moreover, the court must be cautious in granting summary judgment to an employer when intent is at issue. Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1224 (2d Cir. 1994). At this stage, I grant summary judgment "only if the evidence of discriminatory intent is so slight that no rational jury could find in plaintiffs favor." Viola v. Philips Medical Sys., 42 F.3d ...

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