and a 90% accurate forecast in sixty days. Def's 3(g) at P 73; Pl's 3(g) at P 73.
Despite her admission that these goals were attainable, Plaintiff also admits that she failed to achieve the vast majority of these goals, and that she took personal days each week for a total of 10 1/2 days off in July and August. See Pl's 3(g) PP at 76-87. Plaintiff testified that while on the PIP, she started to read an assigned book on sales, began to have formal meetings with her sales team, tried to "grow" her business, and accelerated her recruiting. Padob Dep. at 485-86.
Around the time that Plaintiff was placed on the PIP, selection began for a yearly event called the "President's Club", with which Entex rewards employees for good performance. Kanegaye Dep. 68-69. Those selected to attend receive a trip to a vacation spot paid for by Entex; in September 1995, the President's Club went to Cancun, Mexico. Padob Dep. at 393-94. As direct supervisor of the departmental managers, Mr. Kanegaye selected who among them would go to the President's Club. He testified that this decision was based on several criteria, including attainment of sales quota, general performance, meeting objectives set by managers and "adherence to the Entex cultural code." Kanegaye Dep. at 70-72.
Ms. Padob had been selected for the President's Club the previous eight years, but was not selected in 1995. Id. at 73. Mr. Kanegaye testified that Plaintiff was not selected on the basis of her failure to adhere to the firm culture, i.e. she was not a strong leader of her team, lacked motivation and a good attitude, and was not a team player. Id. at 71-73. Mr. Kanegaye selected both Seth Frank and Rob Mariani for the President's Club, id. at 73, despite the fact that Mr. Mariani had not met his sales quota for several quarters and Mr. Frank had fallen behind quota in one quarter. See Kanegaye Aff., Exs. B & C. Plaintiff, as well as Account Manager Nicole Kearney, testified that in prior years selection for the President's Club was based on sales quota, and that Mr. Kanegaye had changed the criteria when he began to manage the New York City office. See Kearney Dep. at 68-70. Moreover, although Rob Mariani did not achieve his sales goals for the period of April 1994 to April 1995, he was not placed on a PIP. See Padob Dep. at 147. Plaintiff attributes this differential treatment -- both the failure to place Mr. Mariani on a PIP and the fact that both male Corporate Sales Managers were allowed to attend the President's Club when she was not -- to her gender.
Finally, in October 1995, because of Plaintiff's allegedly poor performance, her employment with Entex was terminated. Plaintiff had filed a charge of discrimination with the EEOC shortly after she had been placed on the PIP in July 1995. Entex learned of the charge in August 1995. After her termination, she amended her charge to include retaliation for filing her claim with the EEOC.
A. Legal Standard for Summary Judgment
A motion for summary judgment may not be granted unless the court determines that no genuine issue of material fact need be tried and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden of demonstrating that no factual dispute exists rests on the party seeking summary judgment. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). In assessing the record to determine whether any genuine issue of material fact remains to be tried, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court is not to try issues of fact, but to determine whether issues exist to be tried. See Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987).
1. Discriminatory Discharge
Proper analysis of Plaintiff's Title VII discriminatory discharge claim requires the court to apply the three-step burden shifting scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Within this scheme, the plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 252-53. To establish a prima facie case of discriminatory discharge on the basis of gender, a plaintiff must show that he or she: 1) belongs to a protected class; 2) was performing his or her duties satisfactorily; 3) was discharged; and 4) that the discharge occurred in circumstances giving rise to an inference of discrimination based on gender. See McLee v. Chrysler Corp., 109 F.3d 130, 1997 U.S. App. LEXIS 5561, 1997 WL 134415 at *5 (2d Cir. 1997); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). For purposes of summary judgment, the plaintiff's burden at the prima facie case stage is de minimis. See Burdine, 450 U.S. at 253; McLee, 109 F.3d 130, 1997 WL 134415 at *5.
If the aggrieved employee successfully demonstrates a prima facie case, a presumption of unlawful discrimination arises, and the burden of production shifts to the defendant to come forward with a legitimate, non-discriminatory reason for the employee's discharge. See Burdine, 450 U.S. at 254; McDonnell Douglas, 411 U.S. at 802; see also Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3572 (Feb. 10, 1997). If the defendant satisfies this burden, the plaintiff has the ultimate burden of proving by a preponderance of the evidence that the employer's reason was merely a pretext for discrimination. Hicks, 509 U.S. at 515; Holt, 95 F.3d at 129. In order to survive a motion for summary judgment, the plaintiff must show there is a genuine issue of material fact as to whether: 1) the legitimate, non-discriminatory reason proffered by the employer was false or unworthy of belief; and 2) the plaintiff's sex was more likely than not the real reason for the discharge. Hicks, 509 U.S. at 515; Holt, 95 F.3d at 129.
I need not linger long on the first two stages of this analysis. Assuming arguendo that Plaintiff can make a prima facie case, Plaintiff has conceded in her deposition testimony that Entex has put forward a legitimate, non-discriminatory reason for firing her: her performance was viewed as inadequate by her supervisor. See Padob Dep. at 304, 488, 580-81, 583, 594; see also Pl's 3(g) at PP 50, 89. At several points in her deposition, and in her 3(g) statement, Plaintiff admits that much of Mr. Kanegaye's criticism of her performance was accurate, many of the goals he set for her to improve that performance were achievable, and that she did not achieve those goals in many instances. As such it seems most appropriate to turn directly to the third stage of the McDonnell Douglas inquiry: whether Plaintiff can prove that this reason was false, and that instead, her gender was more likely than not the reason for her discharge.
Plaintiff simply cannot meet this burden. Other than her conclusory statements that she was treated differently because of her gender, Plaintiff has not come forward with facts that suggest that her gender and not her performance was the true cause for her discharge. Although the record is clear that Plaintiff was treated differently than the other Corporate Sales Managers, Plaintiff has not linked that differential treatment to her gender in any way other than to point to the fact that she was the only female Corporate Sales Manager. Drawing all permissible and reasonable inferences in Plaintiff's favor, the evidence and Plaintiff's own admissions suggest that it was as likely, if not more likely, that Plaintiff's performance, or even a simple personality conflict with her supervisor, motivated Plaintiff's termination. As such, Plaintiff cannot defeat summary judgment.
Plaintiff disagrees, and claims that she has raised genuine issues of material fact with respect to pretext. First, Plaintiff claims that she was treated differently on the basis of her gender because she was put on a PIP when she achieved her sales quota, while the male Corporate Sales Managers were not, although their sales were lower and they did not achieve their respective sales quotas each quarter.
However, Plaintiff admitted that achievement of sales quota was only one of several factors that Mr. Kanegaye could appropriately consider when evaluating the Corporate Sales Managers' performance, and that she did not perform in other aspects of her position in accordance with the requirements for the job. Plaintiff also admitted that Mr. Kanegaye's consideration of these other factors did not result from gender discrimination. Plaintiff has therefore failed to show that Mr. Kanegaye placed her on a PIP on the basis of her gender rather than her performance.
Plaintiff also asserts that Mr. Kanegaye's failure to send her to the President's Club, while he sent Mr. Mariani and Mr. Frank, was the result of gender discrimination. Here again, Plaintiff has admitted that Mr. Kanegaye viewed her performance as inadequate, and felt that she did not meet his criteria for the President's Club. Plaintiff points out that Mr. Mariani did not meet his sales quota for that year. However, his overall evaluation was more satisfactory than Plaintiff's in most areas. Other than the fact that Mr. Mariani happens to be a man and Plaintiff is a woman, Plaintiff has in no way linked this "differential treatment" to her and Mr. Mariani's respective genders rather than their respective performances as Corporate Sales Managers.
Plaintiff also claims that the male Corporate Sales Managers received more sales leads than she. This assertion is pure speculation, as Plaintiff admitted at her deposition that she received sales leads from Mr. Kanegaye, and that she has no personal knowledge of how many or which leads Mr. Kanegaye gave to the two male managers. Finally, Plaintiff points to the fact that Mr. Kanegaye held meetings with Mr. Frank and Mr. Mariani without her, and that the three men occasionally had lunch, both inside and outside the office, and did not invite her. Plaintiff testified that she never asked to be included, nor did she complain to Mr. Kanegaye about this differential treatment. In her deposition, Plaintiff stated in a conclusory fashion that she was thus excluded because she is a woman. When pressed, Plaintiff continually stated that she felt this was due to the fact that she was the only woman. However, the fact of her being the only woman Corporate Sales Manager in her position, standing alone, does not create a genuine issue of material fact as to pretext based on gender. It might be just as likely that Plaintiff was excluded because of her acknowledged personality conflict with Mr. Kanegaye -- but such behavior is not prohibited by Title VII.
Adding up the permissible inferences to be drawn from these facts, Plaintiff has not raised a genuine issue of fact as to whether Entex's explanation for firing her was pretextual. Other than the bare circumstance that the other two Corporate Sales Managers happened to be men, Plaintiff has not offered any evidence of how gender played a role in her termination, or that Entex's reason for terminating her employment was false. In fact, Plaintiff spent much of her deposition agreeing with Mr. Kanegaye's impressions of her inadequate performance. Plaintiff cannot merely rely for support, as she has here, on the fact that she is a woman and her fellow Corporate Sales Managers were men. More is necessary to satisfy Plaintiff's burden of showing pretext. As such, Plaintiff has failed to sustain her burden of raising a genuine issue of material fact as to this issue under the McDonnell Douglas framework, and summary judgment is granted on this claim.
2. Retaliatory Discharge
Plaintiff's claim of retaliatory discharge is even weaker than her claim of discriminatory discharge. A claim of retaliatory discharge is also analyzed under the McDonnell Douglas three-part burden shifting framework. To establish a prima facie case, the plaintiff must show: 1) participation in a protected activity known to the defendant; 2) an adverse employment action; and 3) a causal connection between the two. See Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). As with discriminatory discharge claims, if the Plaintiff makes a prima facie case, the burden then shifts to the employer to articulate a legitimate reason for the dismissal, and the Plaintiff must then come forward with evidence that creates a genuine issue of material fact as to pretext. See Holt, 95 F.3d at 130; Tomka, 66 F.3d at 1308.
Defendant concedes that Plaintiff meets the first two elements of her prima facie case: she is a member of a protected class and she engaged in the protected activity of filing a charge of discrimination with the EEOC. However, Plaintiff has failed to establish a causal connection between her termination and that protected activity. As noted above, Plaintiff filed a charge of discrimination with the EEOC on July 19, 1995. She was terminated on October 11, 1995. Plaintiff argues that this temporal proximity gives rise to an inference that her discharge was caused by her filing of the EEOC charge. However, "temporal proximity alone is not necessarily dispositive of a causal connection evidencing a retaliatory motive." Philippeaux v. Fashion Institute of Technology, 1996 U.S. Dist. LEXIS 4397, *26, 1996 WL 164462 at *9 (S.D.N.Y. Apr. 9, 1996), aff'd, 104 F.3d 356 (2d Cir. 1996). In fact, the timing of events suggests otherwise. At the time when Plaintiff filed her EEOC charge, she had already been informed by Mr. Kanegaye that she had been placed on the PIP and that a decision as to her continued employment would be made after two to three months. Thus her termination after three months, although close in proximity to her filing of an EEOC charge, does not, standing alone, establish the necessary causal connection between the protected activity and her discharge.
Significantly, other than temporal proximity, Plaintiff herself offers no other evidence of such a causal connection; at her deposition, she stated that "the only fact" upon which she based her retaliatory discharge claim "is that indeed I was employed by the company for nine years." Padob Dep. at 716-719. The length of Plaintiff's employment provides no evidence that her discharge was in retaliation for filing a charge of discrimination.
Plaintiff has failed to offer any facts to substantiate that she was discharged in retaliation for filing a charge of discrimination. As a consequence, Defendant is entitled to summary judgment on the claim of retaliatory discharge.
Plaintiff has failed to raise a genuine issue of material fact with regard to her allegation that Entex's proffered reason for firing her was pretextual. Plaintiff has also failed to raise a genuine issue of material fact as to any causal connection between her termination and her filing of a charge of discrimination with the EEOC. Therefore, Defendant's motion for summary judgment on Plaintiff's discriminatory discharge and retaliatory discharge claims under Title VII is granted, and Defendant is entitled to judgment as a matter of law on those claims. Having granted summary judgment in favor of Defendant on Plaintiff's federal claims, I decline to exercise supplemental jurisdiction over Plaintiff's state law claims under New York State Human Rights Law and New York City Human Rights law. See 28 U.S.C. § 1367(c)(3). Plaintiff's state law claims are dismissed without prejudice. The Clerk of the Court is directed to close this case.
Shira A. Scheindlin
Dated: New York, New York
April 15, 1997