as "unsatisfactory," first in September 1991, and again in the summer of 1992. Carson discussed the 1991 review with Davidson and informed him that he was in serious jeopardy of being dismissed if his performance did not improve drastically and immediately. Davidson's performance improved to a satisfactory level at the end of 1991, and Davidson therefore received a merit-based salary increase in April 1992. Nonetheless, Davidson's performance deteriorated in the summer of 1992; in fact, most of the missed deadlines enumerated above were to have been met during that time.
On November 16, 1992, Carson met with Davidson and terminated his employment. Carson's decision was approved by Larkin and Di Sapio.
Carson, Larkin and Di Sapio are white, as is Davidson.
The Newspaper Guild
Davidson's position is that he was dismissed, not because of any problems with his performance, but because Time was under a great deal of pressure to hire minorities in supervisory positions. In support of this position, Davidson cites complaints by members of the Newspaper Guild ("the Guild") regarding Time's hiring practices in Distribution Services. Although Time's employees are not required to join the Guild, a collective bargaining agreement ("CBA") between the Guild and Time governs conditions of employment at Time for employees who do not have supervisory authority. Managers are not Guild members, and the CBA does not apply to management positions such as the one held by plaintiff.
In April and May of 1990, in meetings between Time and the Guild, Guild members complained that a white assistant manager was being trained to fill a management position. Guild members argued that minorities in the department should be trained for the position, rather than having whites hired from outside the company. They noted that, the previous year, they had objected when another white candidate was hired from outside the company to fill a management position.
In spite of these complaints, Time selected a white applicant for the position in question. Soon thereafter, in two June 1990 meetings, Guild members again expressed their dissatisfaction over the failure over the failure of Time to promote minority employees to management positions in the department. Shortly thereafter, the Guild filed a formal grievance with respect to this issue.
The Killackey Offer
In an affidavit submitted with the summary judgment motion, Carson states that, after Davidson's termination, he and Larkin offered Davidson's position to Distribution Department Head Bill Killackey, who is white. Similarly, in a reply affidavit, Larkin asserts that he "agrees[s] with Mr. Carson's recollection" that they offered Davidson's position to Killackey. At their depositions, neither Carson nor Larkin had indicated that they had offered Killackey the job.
In Larkin's reply affidavit, he states that he remembered the offer to Killackey two or three months after his deposition. Carson also submitted a reply affidavit, in which he states that he did not mention the Killackey offer at his deposition because plaintiff's questions did not elicit that information.
At this deposition, Killackey testified that Carson and Larkin offered him Davidson's position over a dinner meeting in the early 1990s, before Davidson's dismissal. Although Killackey could not definitively state the year of the offer, when asked how old his children were at the time of the offer, Killackey estimated that they were five years younger than they are now, thereby suggesting that he was offered Davidson's position five years ago, in 1992. Killackey further testified that he was surprised by the offer because the mailroom was outside his area of expertise and that he ultimately rejected the offer because it was a lateral move rather than a promotion.
The Brown Offer and the Withdrawal of the Grievance
After Davidson was dismissed, Time's Human Resources Department was notified of the job opening. Carol Ducas, a director of staffing and development in that department, retained Milo Research, an executive search firm, to help identify minority applicants. Ducas explained that she retained Milo because she knew that ordinary channels -- such as referrals, Time's internal job listing, and unsolicited resume files -- would not generate a slate of qualified minority candidates. Ducas interviewed five minority applicants and one white applicant for the position. Carson then interviewed two of the minority applicants, as well as the one white applicant, who had been screened by Ducas. Lance Brown, a black male, was hired.
In July 1993, several months after Brown was hired to replace Davidson, the Guild withdrew the grievance that it had filed over the hiring of whites for management positions in the mailroom. Guild Chairperson Key Martin testified at his deposition that the grievance was withdrawn because a minority (Brown) was hired. Martin also stated that the Guild's decision to withdraw the grievance "could well have happened without any interaction with management."
Summary Judgment Standard
Motions for summary judgment are granted if there is no genuine issue of material fact and it is clear that the moving party is entitled to judgment as a matter of law. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1111 (2d Cir. 1997). The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). However, a party cannot overcome a motion for summary judgment by relying on mere speculation as to the nature of the facts. See id.
As this is a discrimination case, it is important to note that
[a] victim of discrimination is . . . seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence . . . . Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate.