Dr. Coleman risked capital, and another indicia of partnership is therefore missing.
5. Sharing Profits
Even if Ms. Rivkin's allegation that Dr. Coleman agreed to pay her a percent of gross revenues were true, this would not be dispositive on the partnership issue. In Ramirez, the plaintiff claimed that a partnership-in-fact existed between himself and the defendant pursuant to which he was entitled to receive a share of the profits. The court stated, however, that "all of the elements of the relationship must be considered." Ramirez, 439 N.Y.S.2d at 961. In reversing the lower court, the appellate division held that a partnership was not formed since the plaintiff had not contributed capital, never held himself out as a partner, had no control over issuing checks or invoices, and assumed no personal liability for debts of the purported partnership. Id. See also Steinbeck, 4 N.Y.2d at 317 (holding that, although sharing profits is an element of a joint venture, "an agreement to distribute the proceeds of an enterprise upon a percentage basis does not give rise to a joint venture if the enterprise does not represent a joinder of property, skills and risks"); Blaustein, 555 N.Y.S.2d at 777 ("The fact that an individual receives a share of the profits is not dispositive, since all of the elements of the relationship must be considered."); Brodsky, 526 N.Y.S.2d at 479-80 (holding no partnership-in-fact where plaintiff was salaried employee entitled to percent of gross profits but was not liable for losses and made no capital contribution).
Here too the facts fail to establish a partnership-in-fact even if there was a general agreement to pay Ms. Rivkin a percent of the cannula venture profits. Considering the entire relationship, the facts offered by Ms. Rivkin to refute Dr. Coleman's claim that no partnership-in-fact was formed do not give rise to sufficient ambiguity which would preclude summary judgment. She did not agree to share any losses, she was not personally liable for any venture debts, and she did not exercise control in the form of contract signing, check writing or any other form of partner-like authority. Furthermore, Ms. Rivkin did not contribute capital or own any partnership assets. Under these circumstances, an alleged agreement to provide incentive compensation in the form of a percent of revenues cannot be transformed into a claim of partnership-in-fact.
III. There Was No Unjust Enrichment
To succeed on a theory of unjust enrichment, plaintiff must show: (1) enrichment; and (2) the enrichment is unjust. See McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 363 N.E.2d 328 (1977) ("Whether there is unjust enrichment . . . must be a realistic determination based on a broad view of the human setting involved."); see also Indyk v. Habib Bank Ltd., 694 F.2d 54, 57 (2d Cir. 1982) (citing McGrath). The issue of whether Dr. Coleman's enrichment, if any, is unjust turns on the question of whether Dr. Coleman is in possession of property which rightfully belongs to Ms. Rivkin. Presumably the property at issue here is the royalty arrangement Dr. Coleman concluded with Byron Medical, Inc. ("Byron"). Although Ms. Rivkin did not negotiate the Byron agreement, she claims that her negotiation of an agreement with another manufacturer strengthened Dr. Coleman's hand, positioning him to obtain a better deal from Byron. Whether or not Ms. Rivkin's negotiations did contribute to a deal with Byron, the issue is whether such property is rightfully hers. This issue is resolved by reference to the preceding analysis resulting in dismissal of the partnership claim. There being no partnership-in-fact, and Ms. Rivkin having been a salaried employee while she assisted with developing the cannula venture, there is nothing unjust about any purported enrichment which may have accrued to her employer, Dr. Coleman.
IV. A Genuine Issue of Material Fact Exists Regarding Dr. Coleman's Motivation in Terminating Ms. Rivkin
Ms. Rivkin alleges that her termination was unlawful since it was motivated by her pregnancy pursuant to New York Executive Law Section 296(1)(a), which provides that it is unlawful "for an employer . . . because of the . . . sex . . . of any individual . . . to discharge from employment such individual." N.Y. Exec. Law § 296(1)(a) (McKinney's 1992 & Supp. 1997).
Since the employer's intent is at issue, summary judgment in employment discrimination cases must be approached with great caution. See Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
Ms. Rivkin concedes that Dr. Coleman's termination decision was motivated at least in part by problems relating to the cannula venture. Dr. Coleman's dispute with Ms. Rivkin over the cannula venture is a legitimate motive for termination.
Ms. Rivkin does not claim that her employment with Dr. Coleman was anything other than an employment-at-will, and therefore she was subject to termination for any non-discriminatory reason, or for no reason at all. Thus, if Ms. Rivkin were not pregnant, her discharge would not be subject to legal sanctions.
Ms. Rivkin, however, alleges that notwithstanding the existence of a legitimate reason for her termination, the primary reason was because of her pregnancy. In the Title VII context the Supreme Court has characterized such claims as a "mixed-motives" theory. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). The mixed motives analysis was applied in the context of New York Executive Law Section 296 case in Card v. Sielaff, 154 Misc. 2d 239, 586 N.Y.S.2d 191, 196-97 (N.Y. Sup. Ct. 1992) (holding that plaintiff's Title VII claim requires direct application of the mixed motives test, and that "there is no basis in law or reason for not applying [the Price Waterhouse ] mixed motives analysis" to the New York statute as well). See also Fitzgerald v. Alleghany Corp., 904 F. Supp. 223, 227 (S.D.N.Y. 1995) (Kaplan, J.) (applying Title VII mixed motives analysis to N.Y. Exec. Law § 296 claim because "the standards governing burdens of proof in employment discrimination cases under the New York Human Rights Law typically are the same as those that apply in Title VII cases" (citing Sogg v. American Airlines, Inc., 193 A.D.2d 153, 603 N.Y.S.2d 21, 23 (1st Dep't 1993), leave to appeal dismissed, 83 N.Y.2d 846, 612 N.Y.S.2d 106, 634 N.E.2d 602 (1994)). We therefore conclude that a New York court would, in the appropriate circumstances, apply the mixed motives analysis even in the absence of a concurrent Title VII claim.
In the Title VII context, the Second Circuit set forth the mixed motives analysis in De La Cruz v. New York City Human Resources Admin. Dep't of Social Services, 82 F.3d 16 (2d Cir. 1996). "In a 'mixed motives' case, a plaintiff must initially proffer evidence that an impermissible criterion was in fact a 'motivating' or 'substantial' factor in the employment decision." Id. at 23. Accordingly, the "burden is greater than the level of proof necessary to make out a [pretext-based] prima facie case." Id. This greater burden results from the plaintiff's need to establish intent before the burden shifts to the defendant "to demonstrate that it would have reached the same decision even in the absence of the impermissible factor." Id. Under a pretext theory the plaintiff's prima facie case does not require showing intent before the burden shifts to the defendant to show a legitimate reason for the action.
In De La Cruz, the court held that whereas the plaintiff had established a prima facie case under the pretext theory, his "proffer of evidence of an impermissible motive" was inadequate to sustain a mixed motives theory. De La Cruz, 82 F.3d at 23. In this regard, the court's analysis in step one of the mixed motives analysis was similar to the analysis in step three of its pretextual analysis, where the court held that plaintiff had not shown sufficient evidence that the legitimate reason advanced by the employer was pretextual. Id. at 21-22. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992) (concluding that proof required to trigger mixed motive analysis is same as plaintiff's burden in last step of pretext analysis). Thus, the court concluded that the employer's alleged comments that the employee's "problems were 'cultural'" and that "he and his new Hispanic supervisor 'will understand each other better'" were not direct evidence of discrimination when made in the context of a "justified concern over language skills." 82 F.3d at 23.
The evidence that Ms. Rivkin offers to demonstrate discrimination relating to her second pregnancy is: (1) Dr. Coleman's alleged statements before he became aware of her pregnancy that she should wait a long time before becoming pregnant again; (2) Dr. Coleman's alleged statement after learning of Ms. Rivkin's pregnancy that she had become pregnant too soon; (3) alleged steps made to reduce the pregnancy-related benefits offered by the firm, including elimination of maternity care from the health care policy and change of pregnancy leave from paid to unpaid; and (4) the close proximity in time between making Dr. Coleman aware of her pregnancy and the preparations by Dr. Coleman to replace her culminating in her termination.
Dr. Coleman's statements give rise to a genuine issue of fact regarding whether Ms. Rivkin's pregnancy was a substantial or motivating factor in her termination. As the Second Circuit said, the plaintiff must "present  evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude" in an amount "sufficient to permit the factfinder to infer that the attitude was more likely than not a motivating factor in the employer's decision." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). Here, Dr. Coleman's alleged statements regarding his preference that a long time pass before Ms. Rivkin became pregnant again raises the issue of whether he acted on this preference when he made the termination decision. Such statements cannot be glossed over where, as here, the person making the statement is in a position of power. The possibility of reprisal for bearing children is a focus of the discrimination law. Whether this in fact occurred here is a matter properly left for the jury.
V. Plaintiff's Seventh and Eighth Claims Are Dismissed
Dr. Coleman asserts, and Ms. Rivkin does not dispute, that there is no back-pay or other compensation owing and that all personal property was returned. Accordingly, these claims are dismissed.
For the reasons set forth above, defendant's motion for summary judgment will be granted for plaintiff's claims two, four, seven and eight. Defendant's motion for summary judgment for plaintiff's claim six, alleging sex discrimination on the basis of pregnancy, is denied.
The action is placed upon the ready trial calendar.
It is so ordered.
New York, N. Y.
October 15, 1997
ROBERT W. SWEET