The opinion of the court was delivered by: SPATT
This is a gender discrimination case, brought under pre-1991 Title VII of the Civil Rights Act of 1964. The plaintiff, a former Manager and Director of Recruitment and Training of the defendant real estate brokerage company, contends that she was discriminated against, denied promotion to the position of General Manager, and discharged because she is a woman.
BACKGROUND -- SUMMARY OF EVENTS
The plaintiff Phyllis Croce (the "plaintiff" or "Croce"), a licensed real estate agent, was first employed by the defendant VIP Real Estate, Inc. (the "defendant" or "VIP") in or about September 1982 as a real estate salesperson. VIP is a real estate brokerage company in the business of selling real estate and is located in Staten Island. Henry Picciurro is, and was at all relevant times, the President and sole shareholder of VIP.
In or about 1983, the plaintiff was promoted to the position of Manager of Residential Sales at the defendant's Clove Road office, which, at that time, was the only VIP office. The duties of an Officer Manager were to assist in hiring salespersons, helping salespersons to list and negotiate sales and to pursue a sale from contract to closing.
In 1984, VIP opened a second office for residential sales on Victory Boulevard in Staten Island. In or about 1984, the plaintiff assumed the additional duties of recruiting and training salespersons for both the Clove Road and Victory Boulevard offices in addition to her duties as Manager of the Clove Road office. Also in 1984, plaintiff was made the Director of Recruitment and Training. In 1985, the defendant opened a third office for residential sales on Hylan Boulevard, Staten Island. In 1985, the plaintiff was promoted to the position of Director of Personnel and Training. The duties of the latter position were to recruit new salespersons; conduct training sessions to train new salespeople; assign new salespersons to the various offices; hire secretarial and clerical staff; recommend hiring of office managers; advertise, plan and conduct Career Nights; oversee the sales of new salespeople and help them to get listings and create sales. In 1986, the defendant opened a fourth office for residential sales on Forest Avenue in Staten Island. At that time, the plaintiff was assigned the responsibility of recruitment and training for the four offices of VIP.
THE TRIAL -- FINDINGS OF FACT
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). See Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.
Phyllis Croce had years of experience in the real estate sales field. Prior to and at all the times at issue she was a licensed real estate salesperson. In September 1982 Croce commenced employment with VIP as a residential salesperson in the Clove Road office, at that time the only VIP office. One Lenny D'Orazio was then the Office Manager. VIP opened a second office on Victory Boulevard in April-May 1983. At that time, Kathy Hartman was the Office Manager of the Victory Boulevard office and Irene Orsini was the Office Manager of the Clove Road office. In 1983 the plaintiff was promoted to Office Manager of the Clove Road office.
In 1984, Picciurro asked Croce to assume the additional duties of recruiting and training the salespersons for both the Clove Road and Victory Boulevard offices. In January 1985, Croce was promoted to the position of Director of Personnel and Training, while still managing the Clove Road office. In that position, Croce directed a ten-week course for salespersons involving training in multiple listing, mortgage and Fair Housing requirements, among other real estate matters. She also conducted "career seminars," placed ads in local papers to recruit new salespersons and generally oversaw their transition from training to actual selling.
During the early and mid-1980s the real estate market flourished. Responding to this rise in the market, VIP opened a third office on Hylan Boulevard in 1985 and a fourth office on Forest Avenue in 1986. These four residential sales offices each had an Office Manager. In addition to these residential sales offices, VIP had a commercial real estate division, which was separate and apart from the residential sales division and was operated by Picciurro.
In 1985, Croce was promoted by Picciurro to the position of Director of Personnel and Training. She gave up her position of Office Manager of the Clove Road office in January 1986 to devote herself full time to the Personnel and Training position. The new Office Manager for Clove Road was Susan Levoyer. At that time Croce's office was on the third floor of the Clove Road establishment. When Croce assumed the full-time position of Director of Personnel and Training she received a base salary of $ 20,000 per year, and gave up her override on the salesperson's commissions that she received as an Office Manager. During this period there were 20 to 30 salespersons in the organization. Most of them were women. At no time during her employment did Croce have a written employment agreement with VIP. During all the time of her employment with VIP, Picciurro did all the firing. No one else fired anyone.
Throughout this period of major growth in the real estate field, Croce was Picciurro's "right hand man." Picciurro consulted Croce with regard to naming the managers of the offices. For several years prior to 1986 VIP had no General Manager. Picciurro was heavily involved with the commercial real estate division, and, with the opening of four offices, decided that a General Manager with overall supervision of the offices, was required.
The parties agree that Croce wanted to be the General Manager and Picciurro discussed the position of General Manager with her. Croce testified to a crucial conversation with Picciurro with regard to the position of General Manager. According to Croce, Picciurro told her that he knew she could do the job, but he would not promote her to General Manager because she was a woman:
Q And what, if anything, did Hank Picciurro say to you with respect to your qualifications for the position of general manager?
Q And what was his reaction to him giving you the job?
A He wanted me to do the work but not the title, nor was he going to give me the pay.
Q What did you and Mr. Picciurro discuss with respect to your qualifications as a general manager?
A He had discussed with me -- I was very well aware of the fact that Hank did not want a woman as a manager --
THE COURT: Strike out the last statement.
A Hank said to me on various occasions he did not want a woman to run, to be the general manager. He considered women too emotional.
Q Did he say anything else with respect to having a woman as a general manager?
A Only that he felt that both men and women prefer to work for men, that was his observation.
Q And can you tell me when he addressed those sentiments to you?
A Many times. He expressed it after Lenny D'Orazio left and I spoke to him about getting the position. This was a known fact. This is how he felt.
In addition, Croce testified as to the following conversations with Picciurro relating to the same subject -- his view of the roles of males and females in his real estate company:
Q Did you have a conversation with Picciurro concerning the position of director of personnel and training?
Q And is that what he said at that conversation?
A At that conversation he said I know you can do it. But he wanted me to concentrate in (sic) having men in these positions.
At the time we had mostly women in the company. He wanted me to bring more men into the company. And he wanted me to train them to become managers. At the time we had mostly all women managers.
Q What words, if you recall, did Mr. Picciurro use, to express what you just said?
A He said women are very emotional. I want a man -- both men and women prefer to work for a man.
Q Those are the words he used?
A He used those words very often.
Q And did Mr. Picciurro -- in the conversation of the director of personnel and training position, in giving you that position, did he say anything about you?
A He said, Phyllis, I know you can do it, I don't have to tell you, to tell you things, the one thing I like about it. I say to get it done, you roll and get it done. He tells me to prepare a presentation, or a slide preparation, he doesn't -- for the career night for example.
He never told me specifically I want -- this is what to do. He could count on me, and he told me often, he could count on me to get the job being done.
Q You testified earlier --
MS. BAILY: Your Honor, the transcript at 75, lines four through six.
Quote, Hank said to me on various occasions, he did not want a woman to run -- to be the general manager. He considered women too emotional, unquote.
Later on page 76, lines 6 through 7 you said, quote, both men and women prefer to work for men, unquote.
Q What was Mr. Picciurro's demeanor when he said these things?
A He was very serious. He was responding to my question to him, that I am taking on all the responsibility of the general management. I am doing everything a general manager would do without pay, and without the title. That was his response to me. I want a man to run the company.
Q Do you recall when in '86?
A Prior to -- probably sometime in July.
Q Do you recall that conversation?
A I had said to him, I am not going to take on all this responsibility any more.
He tried to, you know, calm me down and say, no, you should do it. I know you can do it. You have been doing it up to now.
I told him without the title and without the salary, there is no purpose in me doing this.
So, I told him at that point in time the only thing I will be involved with is to run the career nights and the awards nights, until he finds the man he is looking for.
Q In that conversation did Mr. Picciurro say anything about women holding the general manager's position?
A Again, he indicated, Phyllis, if I was going to hire a women it would be you. But they are much too emotional. They do not think like a man. And they do not have a business mind. And both women and men prefer to work for a man.
Q After that conversation did Mr. Picciurro take steps to hire a general manager?
A He did. He went to a search firm then. And he did hire.
Q Did you have a conversation with Mr. Picciurro after he went to the search firm about the candidates for the general manager position?
Q And when does that conversation take place?
A He had called me into his office, and he said he thinks he had decided --
MR. RUSSO: Can we have the time, please?
Q Ms. Croce, can you identify at least what year this was?
A Probably the end of July, the first week in August of '86, he called me into his office to explain -- he said, you know, I think I found the right candidate for the job. His name is Carmen Mastrangelo. I think you too (sic) will work very well together, he is a very nice guy.
And I took that opportunity to ask him if any women candidates had applied for the position.
A He said, Phyllis, it wouldn't matter because I wouldn't hire a woman anyway. You know that. If I was going to hire a woman it would have been you. However -- then he just mentioned that this Carmen Mastrangelo is a nice guy and we can work together.
(Tr. at 131-132, 137-139).
Croce testified that Picciurro expressed this sentiment many times and on various occasions. Croce said this was a "known fact" as to how he felt about a woman being the General Manager. The plaintiff was never promoted to the position of General Manager.
Milton Gutman, another VIP employee, testified about a meeting with Picciurro and Carmen Mastrangelo, the General Manager:
Q And was there ever a meeting that you had with Mr. Picciurro where he mentioned any preference for one gender or another to hold any position in the company?
A I remember the meeting very well. I was thinking about it when I was sitting in the room before.
Carmine (sic) was there, I was there and Hank. We were supposed to go out to dinner because I was getting the promotion.
MR. RUSSO: I will ask that it all be stricken, Judge. It's not responsive.
THE COURT: Motion denied.
THE COURT: Well, yes. I will strike that out.
THE WITNESS: I remember it -- the way I remember it, okay, because it has been a while, that he would feel a lot more comfortable working with a man rather than someone of the opposite gender -- instead of a woman.
Also, Michael Liang, a VIP employee from 1984 to 1991, testified at length concerning Picciurro's bias against women:
Q And did you ever hear Mr. Picciurro in those conversations say anything about the sex of his employees?
A As far as to what, Counsel?
Q Did you ever hear Mr. Picciurro express a preference for men or women in any particular job category at VIP?
THE COURT: Well, what year?
THE WITNESS: It would be in the '86, '87 -- but you see if what -- if you're saying -- if he has ever made, if Mr. Picciurro ever made any comments about anything to do gender-related, I would have to say often and it wasn't just one time.
Q And limiting your testimony to the time period 1984 to 1987, what did you hear Mr. Picciurro say with reference to the gender of any of his employees?
A Well, I often heard Mr. Picciurro complain abut the fact that he was constantly harassed and irritated by these women who would constantly badger him and complain about petty things that women complain about, jealousy. One manager in an office getting some advantage over another, as an example.
Q Do you know who Mr. Picciurro was referring to in those statements.
A He was referring to the office managers.
Q And what did you hear Mr. Picciurro say?
A Mr. Picciurro told me that he would never ever hire a woman as a general manager.
In September 1986, a male, Carmen Mastrangelo was hired as the VIP General Manager at a salary of $ 50,000 per year plus an override. According to Croce, after Mastrangelo arrived, he took over all her responsibilities except as Director of Personnel and Training. The parties stipulated that if John Mulvey of Human Resources International, Inc. were called as a witness he would testify that he sent four candidates to Picciurro, three men and one woman. After this appointment, Croce no longer reported directly to Picciurro. She and the Office Managers reported to Mastrangelo. In early 1987, VIP continued to operate four offices. Three of the offices were managed by women, namely, Geraldine Apollonio at ...