plaintiff has established the second prong of the McDonnell Douglas test.
3. Adverse Employment Action
It is uncontested that the plaintiff was terminated from her job, and that such action constitutes adverse employment action.
4. Inference of Unlawful Discrimination
It is uncontested that the circumstances surrounding the plaintiff's dismissal from employment at CHP raises an inference of discrimination.
D. Defendants' Reason for Terminating the Plaintiff's Employment at CHP
After the plaintiff has made out a prima facie case of discrimination, the burden shifts to the defendants to come forward with legitimate nondiscriminatory reasons for terminating the plaintiff's employment. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
The defendants claim that they fired the plaintiff because she excessively used her phone at work to make personal phone calls. Although the phone records are unavailable for the time period January 9, 1995 through January 26, 1995, it is undisputed that the plaintiff was reprimanded by the defendant Schecter on January 9, 1995, in response to complaints by plaintiff's co-workers, a co-supervisor, and the defendant Schecter's supervisor that the plaintiff's was using her work phone excessively during business hours for personal calls. The defendant Schecter testified that she had personally heard the plaintiff using the phone for personal calls.
Ms. Towler, the defendant Schecter's co-supervisor, testified in her deposition that she sat in close proximity to the plaintiff at work and personally heard the plaintiff on the phone discussing non work-related matters on an excessive number of occasions. In addition, Ms. Towler, on at least one occasion, was forced to stand by the plaintiff and wait to discuss a business matter with the plaintiff while the plaintiff continued a personal call. Ms. Towler recommended to the defendant Schecter that she speak with the plaintiff in an attempt to halt the plaintiff's behavior.
Ms. Hordines, the defendant Schecter's supervisor, allegedly was forced to wait to discuss a business matter with the plaintiff while the plaintiff continued a personal call. Ms. Hordines recommended that the defendant Schecter speak with the plaintiff in an attempt to halt the plaintiff's behavior.
At least one of the plaintiff's co-workers, Christy Kaufman, complained to the defendant Schecter about the plaintiff's phone use.
Following the January 9, 1995 reprimand, the plaintiff's behavior allegedly improved for several days. However, the plaintiff then resumed her excessive use of the phones. In response, the defendant Schecter attempted to make her presence in the office more visible to the plaintiff in the hope of prompting the plaintiff to use the phone less frequently. This tactic also permitted the defendant Schecter to verify that the majority of the calls that the plaintiff made during office hours were personal in nature. Ms. Towler testified that, after noting that the plaintiff's phone habits did not improve following January 9, 1995, she recommended that the defendant Schecter fire the plaintiff. Ms. Hordines also recommended that the defendant Schecter fire the plaintiff. Each saw the continued phone abuse as an impediment to proper work performance and a potential morale problem. In addition, each reasoned that since the plaintiff had just recently started in the MCO position, she most likely was on her best behavior. If her best behavior was unacceptable, and the plaintiff showed no inclination to modify her behavior when reprimanded, Ms. Towler and Ms. Hordines concluded that the plaintiff simply was not a good fit for the position or their Department.
Following the recommendations by Ms. Towler and Ms. Hordines that the defendant Schecter should terminate the plaintiff's employment, the defendant Schecter consulted with Ms. Fey, CHP's Human Resources Manager, about the plaintiff's situation. Ms. Fey indicated to the defendant Schecter that she had proper grounds to fire the plaintiff.
As stated by the defendants, the plaintiff was terminated from employment at CHP for excessive use of the phones for personal calls. Based on the record before the Court, the defendants have set forth a legitimate, nondiscriminatory reason for terminating the plaintiff's employment.
After defendant has articulated non-discriminatory reasons for its actions, the plaintiff must show that defendant's proffered reasons are merely pretextual. See Chambers, 43 F.3d at 36. This means that the plaintiff has the burden of proving by a preponderance of the evidence that the defendant's proffered reason is not the true reason, but instead, is a pretext for discrimination. Burdine, 450 U.S. at 253. For the purposes of defeating the defendants' motion for summary judgment, the plaintiff need only raise a material factual issue as to whether the defendants' reason for firing the plaintiff constituted a pretext.
"Pretext may be demonstrated either by the presentation of additional evidence showing that 'the employer's proffered explanation is unworthy of credence,' or by reliance on the evidence comprising the prima facie case, without more." Chambers, 43 F.3d at 38, quoting Burdine, 450 U.S. at 256; see also St. Mary's Honor Center, 509 U.S. at 510-12. However, "the most probative means of proving pretextual discharge is to demonstrate that similarly situated  employees were treated differently." Francis v. Runyon, 928 F. Supp. 195, 202 (E.D.N.Y. 1996), citing McDonnell Douglas, 411 U.S. at 804 (stated in the context of alleged racially disparate hiring practices).
The plaintiff has set forth no facts tending to show that the defendants' reasons for the plaintiff's dismissal are incredible. See Burdine, 450 U.S. at 256. Rather than discriminate against pregnant woman who seek to take maternity leaves, the record is replete with evidence that CHP, and in particular the Premium Billing Department, accommodated such employees. From January 1, 1995 through December 31, 1995, five female employees requested maternity leave, were granted such leave, and subsequently four returned to work.
The plaintiff's supervisor herself had taken maternity leave for twelve weeks, previously. In addition, Ms. Towler took maternity leave on three separate occasions. No facts that suggest that any pregnant employee in the Premium Billing Department was ever denied a position of fired after requesting leave time.
Given this background the plaintiff would have the Court find a material factual issue as to whether she was, in essence, forced out of her job because she asked for twelve weeks leave. However, the plaintiff has presented no more than her subjective interpretation of the reason for her termination from employment at CHP. In addition, the plaintiff claims that the failure of CHP to give her prior written notification that she would be terminated if she did not curb her phone habits indicates that the defendants wanted the plaintiff gone regardless of her behavior.
After a thorough review of the record, the Court finds that only comment made in relation the plaintiff's request was made by the defendant Schecter, and was no more than an innocuous inquiry as to whether she would return to work after taking her leave. Given that a co-worker of the plaintiff had just decided to not return to work after giving birth to her child, the question was reasonable.
As has consistently been held by other courts, an employer may exercise business judgment in making personnel decisions as long as they are not discriminatory. Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons."); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit as super personnel departments, assessing the merits--or even the rationality--of employers' nondiscriminatory business decisions."); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) ("The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."). In the instant case, the plaintiff claims that she did not use the phone excessively and that she never received prior written notification of her impending termination. In essence, she questions an employment decision made by CHP. However, in the absence of some credible evidence that the plaintiff's termination from employment was for a discriminatory reason, the Court will not manufacture a question of fact to preclude summary judgment.
As to those who may be similarly situated to the plaintiff, but treated differently,
"employees are not 'similarly situated' merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiffs, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.
Francis, 928 F. Supp. at 203 (citation omitted). In the instant case, the plaintiff has not shown, or even alleged, that any other individual co-worker used the phone to a substantially similar degree as the plaintiff, but escaped discipline, much less a pregnant co-worker. At best, the plaintiff suggests that her supervisor was having difficulty with an increased workload. The plaintiff suggests that CHP fired her because her twelve week absence would cause greater difficulties for the defendant Schecter. However, Ms. Towler testified that maternity leave was a common occurrence, and that a usual practice had developed in the Department in which the other employees absorbed any excess during a maternity absence. In short, as the plaintiff admits in her deposition, there is no support for the plaintiff's position other than the plaintiff's personal opinion that her firing was for reasons relating to her pregnancy. This claim is insufficient as a matter of law. See Meiri, 759 F.2d at 998.
Accordingly, the defendants' motion should be granted dismissing the plaintiff's Title VII and New York Human Rights Law claims.
F. Intentional Infliction of Emotional Distress
The plaintiff alleges that the defendants intentionally caused her to suffer emotional distress. The defendants argue that there are no facts in the record to support a claim for intentional infliction of emotional distress (IIED).
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must prove that a defendant's conduct "(i) [was] extreme and outrageous ; (ii) [was intended] to cause, or [disregarded] a substantial probability of causing, severe emotional distress; (iii) [was] a [cause of the emotional] injury; and (iv) [in fact caused the plaintiff] severe emotional distress." Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993). The standard to meet is "'rigorous, and difficult to satisfy.'" Id. at 122, quoting Prosser and Keeton, Torts § 12, at 60-61 [5th ed]. Liability is limited to only those cases "'where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id., quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983).
In the instant case, the plaintiff's sole basis for the IIED claim is that she was fired for reasons relating to her pregnancy and request for twelve weeks of leave time. The plaintiff makes no further allegations that would support a claim for IIED. This is insufficient as a matter of law to raise a material factual issue. Accordingly, the defendants' motion for summary judgment as to the claim for IIED is granted.
For the reasons stated above, the Court hereby GRANTS the defendants' motion for summary judgment, dismissing the plaintiff's Complaint in its entirety.
IT IS SO ORDERED.
Dated March 1, 1997
at Binghamton, New York
Thomas J. Mc Avoy
Chief U.S. District Judge