wanted to fire him and that other partners made multiple attempts to save his job. T. Rosenblatt Aff. at PP 25, 43. He contends that his termination was due to racial animosity and prejudice on account of his interracial marriage to Gould-Henry.
II. Legal Standard for Summary Judgment
Federal Rule 56(c) provides that summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In evaluating a motion for summary judgment, all inferences justifiable in light of the totality of the evidence presented are to be drawn in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The function of a district court in the summary judgment context is not to weigh the evidence, but merely to determine whether there is a genuine issue for trial. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994).
In an employment discrimination case, the burden of proof rests at all times with the plaintiff alleging discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). This is especially true where the employer's intent is at issue. "Summary judgment is notoriously inappropriate for determination of claims in which issues of . . . good faith and other subjective feelings play dominant roles." Krishna v. Colgate Palmolive Co., 7 F.3d 11, 16 (2d Cir. 1993) (quoting Leberman v. John Blair & Co., 880 F.2d 1555, 1560 (2d Cir. 1989)). Thus, although a plaintiff cannot withstand summary judgment by raising purely metaphysical questions, a "trial court must be cautious about granting summary judgment to an employer [and] affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo, 22 F.3d at 1224.
III. Plaintiff's Motion for Partial Summary Judgment
Because it is potentially dispositive, I initially address the plaintiff's motion for partial summary judgment on the affirmative defense that plaintiff does not qualify as an employee for purposes of Title VII.
The parties do not dispute that defendant is a professional corporation with more than 14 employees and thus qualifies as an "employer" under 42 U.S.C. § 2000e(b). They also agree that plaintiff's employment was at all times at will and that John Bivona and Sidney Cohen, as sole shareholders of the firm, possessed the exclusive authority to discharge plaintiff. The parties dispute whether a non-equity partner of Bivona & Cohen is an "employee" under Title VII.
Section 701(f) of Title VII defines an employee as "an individual employed by an employer," to which it specifies several exemptions. 42 U.S.C. § 2000e(f). Neither this definition nor its exemptions address whether non-equity law firm partners qualify as employees.
Whether a "partner" qualifies as an "employee" depends on whether a true partnership relationship exists.
Courts in this Circuit have used tests both of organizational form and of economic realities to draw the "employee" boundaries on a case-by-case basis. While the Court of Appeals has recognized that "the benefits of the anti-discrimination statutes [generally] do not extend to those who are properly classified as partners," Hyland v. New Haven Radiology Associates, 794 F.2d 793, 797 (2d Cir. 1986), the court has also concluded that an economic realities test need not be applied "where the individual involved is a corporate employee, . . . for we hold that every such employee is 'covered' for purposes of the ADEA and that any inquiry respecting partnership status would be irrelevant." Id. at 798. After "having made the election to incorporate," the defendant professional corporation could not later call itself a partnership in substance. Id. The Court of Appeals recently reasserted that "the fact that certain modern partnerships and corporations are practically indistinguishable in structure and operation . . . is no reason for ignoring form of business organization freely chosen and established," in affirming a district court's refusal to grant summary judgment based on a per se partnership exemption. E.E.O.C. v. Johnson & Higgins, 91 F.3d 1529, 1537 (2d Cir. 1996) (quoting Hyland, 794 F.2d at 798). Hyland explicitly provided that this rule extends to a professional corporation "whose structure resembles that of a partnership." Id. (explaining Hyland, 794 F.2d 793). Here, where defendant is admittedly a professional corporation of which plaintiff is a non-equity partner, plaintiff is a corporate employee for Title VII purposes.
Even were defendant organized not as a professional corporation, but as a partnership, plaintiff would still qualify as an employee under Title VII. Hyland noted two factors the E.E.O.C. considers relevant to a determination of whether a "partner" is an "employee": the ability to "control and operate the business, and to determine compensation and the administration of profits and losses." Hyland, 794 F.2d at 798. Other courts have expanded on these factors and have established a three-part economic realities test consisting of at least the following factors: (1) the extent of an individual's ability to control and operate the business as evidenced by participation in policy decisions; (2) the extent to which an individual's compensation is based on a percentage of business profits; and (3) the extent of employment security enjoyed by the individual. See Caruso v. Peat, Marwick, Mitchell & Co., 664 F. Supp. 144, 149-50 (S.D.N.Y. 1987) (rejecting a per se rule making partners exempt from ADEA protection and holding partner an eligible employee). Both parties agree that plaintiff's employment was at-will, thereby precluding his classification as a non-employee partner. A firm "may not fire a partner or otherwise terminate his employment merely because of disappointment with the quantity or quality of his work, but may only remove the partner in extraordinary circumstances." Id. at 149. Thus, even if Bivona & Cohen is considered to be a partnership, rather than a corporation, plaintiff is an employee under Title VII. Plaintiff's motion for partial summary judgment is therefore granted on this issue.
IV. The Legal Framework in Employment Cases: Burdens of Proof
In an employment discrimination case in which direct evidence of discrimination is lacking, courts apply the McDonnell Douglas three-part burden shifting analysis characterized by the Supreme Court as the "allocation of burdens and the creation of a presumption by the establishment of a prima facie case . . . intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254 n. 8, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). At the initial stage, the plaintiff must present evidence sufficient to establish a prima facie case of discrimination. In defending against a motion for summary judgment, the plaintiff's burden at this stage is de minimis. Once a prima facie case has been established, a rebuttable presumption of discrimination arises, and the evidentiary burden shifts to the defendant to articulate a legitimate reason for the disputed employment decision, which causes the presumption of discrimination to "[drop] from the case." Id. at 255. Finally, at stage three, the plaintiff is afforded the opportunity of demonstrating that the defendant's proffered reasons served merely as a pretext for discrimination.
As recently expounded by the Court of Appeals in an en banc decision, this burden-shifting framework provides a gift to the plaintiff by delaying his or her ultimate burden until the employer has been forced to narrow the scope of inquiry by offering a nondiscriminatory justification for its adverse decision. See Fisher v. Vassar College, 114 F.3d 1332, 1997 U.S. App. LEXIS 13776, 1997 WL 310467 9769 (2d Cir. 1997). Once the plaintiff makes a satisfactory prima facie showing, "the remaining elements (discrimination and causation) are presumed at this stage of the litigation." 1997 WL 310467 at 9780 (emphasis in original). Then, once the defendant has met its burden of articulating a legitimate reason, "plaintiff's burden is enlarged to include every element of the claim. Discrimination and cause are no longer presumed." Id. The plaintiff is now faced with his or her ultimate burden, which may be defined via "the same question asked in any other civil case: Has the plaintiff shown, by a preponderance of the evidence, that the defendant is liable for the alleged conduct?" Id. at 9779. Thus, "once the minimal prima facie case has served its purpose of forcing the employer to proffer a reason, all presumptions drop out and the case proceeds like any other--i.e.., with the burden on plaintiff to prove the case by evidence of discrimination sufficiently persuasive to allow a favorable verdict." Id. at 9795.
Courts in this Circuit have held that, if an employee offers sufficient evidence that a jury could reasonably find in his or her favor, and the employer counters with a legitimate reason that does not as a matter of law require a finding in its favor, an inference on either's behalf is permissible and summary judgment is not appropriate. A plaintiff opposing summary judgment must simply show that the employer's proffered reasons do not tell the whole story, by producing evidence supporting a reasonable inference that an impermissible reason, such as race, played a significant role in the adverse decision. See Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 1997 U.S. App. LEXIS 11970, *14, 1997 WL 272346 at *5 (2d Cir. 1997) ("a Title VII plaintiff can prevail by proving than an impermissible factor was 'a motivating factor,' without disproving that the employer's proffered explanation was not some part of the employer's motivation").
It is consistent with Title VII's purpose as it has been traditionally construed to require a plaintiff to show not "'that the employer's proffered reasons were false or played no role in the employment decision, but only that [race] was at least one of the "motivating" factors.'" Padilla v. Metro-North Commuter Railroad, 92 F.3d 117, 122-23 (2d Cir. 1996)(quoting Cronin, 46 F.3d 196 at 203). This proposition also reflects the 1991 Amendments to the Act, which modified Title VII to require a showing that "race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2. Thus, plaintiff is not required to prove that defendant's proffered reasons for the termination were false.
A. Step 1: Establishment of a prima facie case
The elements comprising a plaintiff's prima facie case were initially defined as (1) membership in a protected class; (2) satisfactory performance of employment duties; (3) the occurrence of an adverse employment decision; and (4) replacement by an individual outside the protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The Supreme Court, however, "expressly noted that the McDonnell Douglas standard, though a useful yardstick, 'is not necessarily applicable in every respect to differing factual situations [and] stressed that the McDonnell Douglas analysis is neither 'rigid' nor 'mechanized' and that the primary focus is always whether an employer treats an employee less favorably than other employees for an impermissible reason." Montana v. First Federal Savings and Loan Assoc. of Rochester, 869 F.2d 100, 104 (2d Cir. 1989) (quoting McDonnell Douglas, 411 U.S. at 802 n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978)). A plaintiff is "not required to prove, as part of his prima facie case, that he was replaced by any employee or that his job continued to exist." Hagelthorn, 710 F.2d at 81; see also Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985) (whether the plaintiff's position was refilled or eliminated "is of little relevance and should not sound a death knell to [plaintiff's] Title VII claim."). Rather, as the Court of Appeals stated in Fisher, a "preference for someone outside the protected class" will suffice for this element of the prima facie case. 1997 WL 310467 at *6.
There is no dispute that plaintiff has satisfied the first and third elements of a prima facie case. This Court has previously determined that the plaintiff is a member of a protected class based on his interracial marriage, and plaintiff has been terminated from his employment. See Rosenblatt, 946 F. Supp. 298.
In support of his allegations that his performance was satisfactory and that he was qualified for his position, plaintiff points to admissions in the deposition testimony of Bivona, Cohen, and other partners that he was a capable attorney. Bivona Dep. at 85-86; Cohen Dep. at 144-45; Figliolo Dep. at 29-30; Lust Dep. at 57-59; Monteleone Dep. at 17-18. In addition, plaintiff notes that Unit 3 was more profitable than Units 1 and 2 for the years 1992 through 1994. T. Rosenblatt Aff. at P 7; Pl.'s App., Exh. 1. Finally, plaintiff argues that the firm-wide management duties consistently entrusted to him indicate that his services were trusted and valued. T. Rosenblatt Aff. at P 6. "Proof of competence sufficient to make out a prima facie case of discrimination was never intended to encompass proof of superiority or flawless performance [but solely] the basic skills necessary for performance of [the] job." Powell v. Syracuse University, 580 F.2d 1150, 1155 (2d Cir. 1978). Plaintiff has met the de minimis burden of showing that he possessed the qualifications required by his position.
Finally, although plaintiff was not replaced, he has satisfied the requisite showing of preference for someone outside the protected class. Although the AIG audit had analogous implications for the performance of other Unit supervisors, those managers were not terminated, nor were their cases transferred to other units.
B. Step 2: Defendant Articulates Legitimate Non-Discriminatory Reason for Plaintiff's Termination
The burden now shifts to the defendant to come forward with a legitimate reason for plaintiff's termination that would, if believed, allow a factfinder to find in its favor. Defendant has amply met its evidentiary burden through provision of a plethora of nondiscriminatory reasons for plaintiff's discharge, consisting primarily in (1) plaintiff's failure to properly supervise attorneys under his authority and manage his Unit; (2) plaintiff's inept handling of files under his supervision, as reflected by client dissatisfaction; (3) plaintiff's misrepresentation to the Partnership Governing Committee as to the circumstances surrounding Gould-Henry's 1989 leave; and (4) plaintiff's public intoxication and harassment of another of defendant's employees. Defendant has therefore articulated sufficient legitimate non-discriminatory reasons for plaintiff's termination to dispel the presumption of discrimination arising from plaintiff's prima facie case.
C. Step 3: Plaintiff's Burden to Raise Fact Issue Regarding Defendant's Improper Motive
Plaintiff now has the opportunity to show that defendant's proffered reasons serve as a pretext for discrimination. In Burdine, the Supreme Court taught that a plaintiff could prevail at phase three of the McDonnell Douglas analysis "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256 (emphasis added). In St. Mary's, the Supreme Court provided further clarification, holding that proof that the defendant's proffered reason was false was neither required nor sufficient in itself to establish the "pretext for discrimination." St. Mary's, 509 U.S. at 515. Proof of discrimination was thus the essential facet of the McDonnell Douglas plaintiff's case, whether adduced partly through proof that the proffered legitimate reason was untrue, or shown exclusively through evidence of discrimination. The Court of Appeals recently clarified that St. Mary's and Burdine
do not require a finding of pretext in addition to a finding of discrimination . . . . Since a plaintiff prevails by showing that discrimination was a motivating factor, it can invite the jury to ignore the defendant's proffered legitimate explanation and conclude that discrimination was a motivating factor, whether or not the employer's proffered explanation was also in the employer's mind.
Fields, 115 F.3d 116, 1997 U.S. App. LEXIS 11970 at *1, 1997 WL 272346 at *5 (internal citations omitted). See also Hagelthorn, 710 F.2d at 81 (the "central question is whether [the] plaintiff has presented sufficient evidence to permit a reasonable fact-finder to conclude that age was a determinative factor in the employer's decision"). Therefore, the relevant question at this stage is whether plaintiff has succeeded in adducing evidence supporting a reasonable conclusion that race "'was at least one of the "motivating" factors'" in defendant's decision to terminate his employment. Fields, 1997 WL 272346 at *5 (quoting Cronin, 46 F.3d at 203). Plaintiff has met this burden.
Defendant has put forward what it describes as "a litany" of reasons in support of its general contention that plaintiff was terminated because of long-term deterioration in his performance. Def.'s Mem. at 22. However, the record remains unclear regarding several material issues. Disparities exist between plaintiff's and defendant's evidence, as well as additional incongruities in the testimony of defendant's own partners, all of which give rise to questions of fact that can only be resolved at trial. On a motion for summary judgment,
no special rules affect the weight to be given to the prima facie case, the truthfulness or falsity of the employer's explanation, or any other piece of evidence. As in any other type of case, the judge must analyze the evidence, along with the inferences that may be reasonably drawn from it, and decide if it raises a jury question as to whether the plaintiff was the victim of discrimination.
Fisher, 114 F.3d 1332, 1997 U.S. App. LEXIS 13776, *30, 1997 WL 310467 at *17.
Plaintiff argues that defendant's proffered reasons are pretextual and that race was a motivating factor in his discharge because of (1) statistical and circumstantial evidence showing general firm policy and disparate treatment of those in the protected class; (2) inconsistencies in the deposition testimony of defendant's partners regarding the reason for his termination; and (3) the sequence and timing of events preceding his termination. Plaintiff has proffered sufficient evidence to raise a fact issue as to whether race was a motivating factor in his termination. This question of fact precludes summary judgment.
First, plaintiff contends that Bivona & Cohen has never employed a black attorney during its 30-year history. See Bivona Dep. at 162-63; Cohen Dep. at 192.
Furthermore, plaintiff asserts that when he recommended a black associate in 1993, Cohen declined to interview him or review his resume, responding simply that "it would not be a good idea" to hire him. T. Rosenblatt Aff. at P 15. Plaintiff's contentions regarding defendant's disparate treatment of both plaintiff and Gould-Henry could also contribute to a reasonable conclusion that race was a motivating factor in his termination. For example, plaintiff claims that after having agreed to represent Gould-Henry without charge in her divorce proceedings in 1987, defendant's partner Martin Stewart was forbidden by Cohen from doing so, although he was not directed to curtail his concurrent or subsequent representation of a white employee of the firm in a similar matter. B. Rosenblatt Aff. at PP 5-7; Stewart Dep. at 18-19. In addition, plaintiff contends that although he was required to terminate Gould-Henry's employment in 1989, the white secretaries of other partners, including Cohen himself, were allowed leaves exceeding stated firm policy. B. Rosenblatt Aff. at PP 8-11; Hoffman Dep. at 14-19; Def.'s App., Exh. C. Plaintiff also points to Cohen's failure to attend plaintiff's wedding, as well as Cohen's impassivity when racially discriminatory remarks were made in his presence, as evidence that race played a factor in plaintiff's termination.
Plaintiff argues additionally that the AIG episode is a pretextual justification for his termination. He offers proof that the AIG letter reporting the results of the audit "does not single out any particular unit's work, and the observations in the letter about 'areas where changes need to be made' apply equally to all of the units." T. Rosenblatt Aff. at P 31. He argues that despite the fact that AIG suggested firm-wide changes in the handling of its files, defendant responded by reorganizing only plaintiff's Unit and terminating plaintiff, while leaving intact other Units responsible for a proportionally equivalent number of mishandled files. Id. at PP 31-34; Pl.'s App., Exhs. 9, 14. Particularly when viewed in conjunction with plaintiff's evidence that from 1992 through 1994 his Unit was more profitable than two of those whose directors were implicated by the AIG audit but not terminated, this circumstance could give rise to a reasonable conclusion that the loss of AIG business was a pretextual reason for terminating plaintiff's employment.
In addition, fact questions remain as to (1) who specifically was responsible for making the final decision to terminate plaintiff; (2) the veracity of defendant's reliance on long-dormant objections to plaintiff's "indiscretions" as potentially pretextual reasons for his termination; and (3) defendant's state of mind regarding the race of plaintiff's wife. The resolution of the remaining fact issues in this case could lead a finder of fact to reasonably conclude that the race of plaintiff's wife was a motivating factor in his termination. While neither Bivona nor Cohen's conduct was necessarily indicative of a discriminatory intent, neither was it, in light of plaintiff's evidence, unambiguously neutral. Although defendant has introduced evidence that plaintiff's termination may have been based on legitimate grounds, defendant has not succeeded in precluding an inference that the legitimate reasons proffered for plaintiff's discharge served as a pretext for a true discriminatory motive. As both inferences are permissible, "it remains the province of the finder of fact to decide which inference should be drawn." Cronin, 46 F.3d at 206. See also Hagelthorn, 710 F.2d at 83 ("where there is evidence of both a discriminatory reason and a legitimate reason for termination, it is for the fact-finder to determine").
For the foregoing reasons, defendant's motion for summary judgment is denied. Plaintiff's motion for partial summary judgment on the issue of his status as an employee is granted.
Shira A. Scheindlin
Dated: New York, New York
July 2, 1997