The opinion of the court was delivered by: SPATT
This gender discrimination action arises from the claims of the plaintiff, Loisann Nevins ("Nevins" or the "plaintiff") against the defendants, Blockbuster Entertainment Group and Blockbuster Video (collectively "Blockbuster" or the "defendants") based on the alleged violations of her civil rights under 42 U.S.C. §§ 2000e et seq. ("Title VII") and the New York Executive Law § 296.
The plaintiff, Loisann Nevins, is resident of Suffolk County. Blockbuster Entertainment Group is an unincorporated division of Viacom, Inc., a Delaware corporation doing business in the state of New York. Blockbuster, Inc. is a Texas corporation doing business in the state of New York. The defendants operate retail video sales and rental stores throughout New York and the rest of the country.
On December 31, 1990, Nevins was hired by the defendants as an at will employee to manage their store in Holbrook, New York. Since then she has worked as a store manager at other Blockbuster locations in Copiague, Garden City, Plainview, Huntington Station, Valley Stream and Westbury, New York. Nevins admits that during the course of her employment she became familiar with company policies regarding "progressive discipline," and that certain "gross violations," such as "time clock violations" and "failure to appropriately secure store assets, funds or property" may result in termination.
According to the plaintiff's 3(g) statement, on October 17, 1994, she was "summoned" to meet with Dina D'Onofrio ("D'Onofrio"), the Defendants' Human Resources Representative, Michael Ratchford ("Ratchford"), the District Manager and James Rutkowski ("Rutkowski"), the Regional Director. During this meeting, Nevins was discharged as the result of gossip regarding a "clandestine" relationship she was reputed to be having with Rutkowski. All parties agree that this rumor was false. According to the defendants, this meeting was to "inquire whether Nevins had said anything negative" about other Blockbuster employees. The discharge was short lived because, as the parties concur, Rutkowski contacted the plaintiff by telephone the next day, October 18, 1994, and rehired her.
According to Nevins, during the telephone conversation, which Nevins apparently taped, Rutkowski informed her "that there had been rumors that he had slept with fifteen other women employees, none of which were true" and that he "overreacted in having fired her." Further, she contends that she was rehired upon the advice of the defendants' Human Resource Director, Carter Womack, who counselled Rutkowski that he had been too hasty in his decision to terminate Nevins, and that he should apologize for the entire incident. On November 3, 1994, the plaintiff was given a "good personnel report" signed by both Ratchford and Rutkowski.
According to the defendants, some time in November 1994, Ratchford was made aware that on September 30, 1994, Nevins had engaged in a series of activities that were in violation of company policy. Specifically, on that evening the plaintiff was scheduled to work a shift ending at 11:00 p.m. However, she left the premises without authorization at 8:30 p.m., two and one-half hours early, to be with her boyfriend. Before she left, she permitted Michelle Benejean ("Benejean," also spelled "Benjean" in the parties' papers) who was not an employee, to work in the store releasing videotapes and handling cash. Further, on October 1, 1994, Nevins prepared a time card for an employee, Nadine Johnson ("Johnson"), Benejean's roommate, to reflect this additional time which Johnson had not worked. The plaintiff substantially agrees that these facts occurred. See Def, 3(g) Statement, Letter of Michelle Benejean, Exh B2. of Exh. A. As a result of these latter activities, Nevins was terminated on November 16, 1994.
The plaintiff responds that the reason advanced by the defendants for her November 16 termination is merely a pretext and not the true reason. The plaintiff contends that she was discharged because of the events of October 17 and October 18, 1994, during which she was unlawfully discriminated against.
On July 31, 1995, the plaintiff filed this action alleging violations of Title VII and the New York Executive Law. She supports her claim of unlawful sex discrimination arguing: (1) that she was originally terminated on October 17, 1994 based on an alleged affair she was having with a male employee, James Rutkowski, who was not punished for being the subject of the same rumors; and (2) on November 16, 1994, she was terminated again for altering time cards while a male employee, Carlos Morales, who did similar acts, was not disciplined.
A. The summary judgment standard in general
A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby., 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040 (2d Cir. 1995).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Services, Ltd, Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
B. Summary judgment with regard to discrimination cases
In the Second Circuit, summary judgment has been found to be inappropriate in numerous discrimination cases, compare Cronin v. Aetna Life Ins. Co., 46 F.3d 196 (2d Cir. 1995) (finding material issues of fact precluded summary judgment); Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994) (same); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994) (same), with Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994) (finding summary judgment appropriate); Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994) (same); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985) (plaintiff must do more than proffer the bare allegation that intent or state of mind are implicated); Cianfrano v. Babbitt, 851 F. Supp. 41 (N.D.N.Y. 1994) (same). In Meiri, the Second Circuit held that a plaintiff must do more than proffer the bare allegation that intent or state of mind are implicated. Accordingly, the nonmovant must set forth "concrete" evidence substantiating his or her claim of falsity and discriminatory intent so that if believed, a jury would return a favorable verdict. If the plaintiff fails to point to such specific proof, the court should find no "genuine" issues of material fact to be in dispute under Rule 56, and should, therefore, grant summary judgment for the employer. The Second Circuit has also held and pointed out that summary judgment may be appropriate in discrimination cases where genuine issues of material fact are absent, even though a precaution must be exercised where intent is genuinely at issue. See TRM Copy Centers, 43 F.3d at 40; Gallo, 22 F.3d at 1224.
It is within this framework that the Court addresses the grounds for the present motion for summary judgment.
C. The defendants' motion
In the absence of substantial direct evidence, allegations of employment discrimination are governed by the three step burden shifting test as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). As the Second Circuit recently restated the case in Quaratino :
First, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position has remained open and was ultimately filled by non-protected employee. See McDonnell Douglas, 411 U.S. at 802. . ., Burdine, 450 U.S. at 253 . . . . Alternatively, a plaintiff may satisfy the fourth requirement to make out a prima facie case by showing that the discharge occurred in circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, n.13 . . . ; Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 104 (2d Cir. 1989).
Second, assuming the plaintiff demonstrates a prima facie case, the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason for discharging the employee. See Gallo, 22 F.3d at 1226. Third, if the defendant satisfies this burden of production, the plaintiff has the ultimate burden to prove that the employer's reason was merely a pretext for [sex] discrimination. An employer's reason for termination cannot be proven to be a pretext for discrimination unless it is shown to be false and that discrimination was the real reason. Hicks, 509 U.S. at , 113 S. Ct. at 2752.
Quaratino, 71 F.3d at 64. New York Executive Law § 296 provides similar protections to Title VII law, and as result, is subject to the same analysis. Id. at 63; Fitzgerald v. Alleghany Corp., 904 F. Supp. 223, 227 (S.D.N.Y. 1995).
As stated above, in an employment discrimination case, summary judgment is rarely granted because discriminatory intent is generally a factual issue. In the summary judgment context, the Second Circuit has recognized that:
In an employment discrimination case, a plaintiff must show, inter alia, circumstances that permit an inference of discrimination on an impermissible basis, see, e.g., Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993). When the defendant moves for summary judgment on the ground that there is an absence of evidence to support this essential element, the plaintiff's burden of producing such evidence is de minimis. See, e.g., Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). Nonetheless, the plaintiff cannot meet this burden through reliance on unsupported assertions. Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in his favor. The motion "will not be defeated merely . . . on the basis of conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The party opposing summary judgment may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3-4 (2d Cir. 1985); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983); Curl v. IBM Corp., 517 F.2d 212, 214 (5th Cir. 1975), cert. denied, 425 U.S. 943 (1976), or "upon the mere allegations or denials of the adverse party's pleading," Fed. R. Civ. P. 56(e).
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (affirming grant of summary judgment in a employment discrimination case where plaintiff failed to meet the "de minimis" standard under Rule 56); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985) (plaintiff must do more than proffer bare allegation that intent or state of mind are implicated).
The plaintiff contends that she was the victim of unlawful discrimination for essentially two reasons. On October 17, 1994 she was terminated "because gossip existed among the employees of the Defendants pertaining to a clandestine relationship between her and James Rutkowski." Pl. 3(g) statement at P1. Nevins, a woman who was the subject of this rumor was discharged. Rutkowski, a man subject to the same rumor, was not. While the plaintiff concedes that she was rehired the next day, she argues that her subsequent termination based on her permitting Michelle Benejean, a non employee, to work for the defendants and then altering Nadine Johnson's time card to reflect the hours Benejean had worked, was all part of an elaborate plot to have her fired. In support of her position, Nevins contends that as store manager, she was entitled to hire employees and put them on the payroll. Accordingly, granting Benejean permission to work, even if she was not on the payroll, was within her authority. Indeed, according to the plaintiff, "this policy was with the approval of and ...