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March 26, 1998

TONYA E. LAPSLEY, Plaintiff,

The opinion of the court was delivered by: CHIN


 In this Title VII case, plaintiff Tonya E. Lapsley contends that her former employer, The Trustees of Columbia University in the City of New York (sued herein as "Columbia University-College of Physicians and Surgeons" but hereinafter referred to as "Columbia"), discriminated against her because of her race in virtually every aspect of her employment -- from salary increases and bonuses to job reclassification and the use of cell phones to termination and severance benefits. Lapsley also alleges that Columbia subjected her to unlawful retaliation and intentional infliction of emotional distress. Columbia denies the allegations and moves for summary judgment dismissing plaintiff's claims.

 The "ultimate issue" in any employment discrimination case is whether the adverse employment decision was motivated at least in part by an "impermissible reason," i.e., a discriminatory or retaliatory reason. In the summary judgment context, the issue is whether the plaintiff has presented sufficient evidence to raise a genuine issue of fact as to whether an impermissible reason played a determinative role in the adverse decision.

 In the instant case, despite the breadth of her allegations and her scattershot approach, Lapsley has not come forward with "concrete particulars" to show that a trial is needed on the issue of whether an impermissible reason affected Columbia's employment decisions. Instead, at the end of the day, plaintiff has failed to provide sufficient evidence from which a reasonable jury could conclude that she was discriminated against because of her race or that she was retaliated against for engaging in protected activity or that she was subjected to intentional infliction of emotional distress. Indeed, viewing the evidence in the light most favorable to plaintiff, I hold that the record does not present triable issues of fact. Accordingly, the motion for summary judgment is granted and the complaint is dismissed.


 A. The Facts

 Lapsley is an African-American woman who was hired by Columbia on June 8, 1987 as a Secretary-B, grade level-1, at a salary of $ 17,044 per year. At the time, she was a high school graduate, and although she had completed some courses at a community college, she did not hold a college degree. (See Lapsley Aff. P 40). She had previously worked as a secretary in the General Supplies Department of Albert Einstein Hospital, as a mail carrier for the U.S. Postal Service, and as a Senior Clerk Typist at Montefiore Medical Center. (See Def. Ex. D).

 Although Lapsley was employed by Columbia, she was assigned by Columbia to work in the Surgery Department at Presbyterian Hospital, a separate but affiliated entity. At all times during her employment with Columbia, Lapsley reported to Craig Evans, the Administrator of the Department of Surgery. (See Evans Aff. PP 4-6; Lapsley Dep. at 112).

 At the end of Lapsley's probationary period, her base salary was increased to $ 18,004. (See Pl. Ex. C). On October 1, 1988, largely as a result of Evans's recommendation, Lapsley received a 4% increase in her salary to $ 18,766. Shortly thereafter, Columbia promoted her to the position of Administrative Aide, a grade level-2 position, and her salary was increased to $ 23,452. (See Lapsley Aff. P 14; Evans Aff. P 15). She received another raise in October of 1988 to $ 25,366. Hence, in just 16 months, Lapsley received four raises, which increased her salary a total of almost 50%.

 Lapsley continued to excel in her work and Columbia consistently rewarded her strong performance. Eventually, however, Lapsley began to believe that she was being underpaid. She wrote a letter to Evans on January 10, 1991, requesting a 15% increase in her salary for taking on a "tremendous increase in [her] workload" and serving as a "Jack of all trades." (Letter from Lapsley to Evans, Pl. Ex. E).

 Rather than simply increasing her salary, Evans determined that it would be more appropriate to promote her. Accordingly, he offered her the position of Administrative Coordinator for Academic Affairs, grade level-4. (See Evans. Aff. P 17). On April 15, 1991, after considering other offers of employment with Dr. Keith Reemtsma and Dr. Peter Geller, Lapsley chose to accept the promotion offered by Evans. This increased her salary to $ 35,034. At Evans's request, she also received a 15% salary increase retroactive to April 15, 1991; she received an additional 6% increase effective July 1, 1991. By the first of July 1991, Lapsley was earning $ 37,135 a year.

 In her new position, Lapsley was "primarily responsible for processing paperwork for persons within the medical center to receive their appointments to the Columbia Faculty and their respective positions within the affiliate hospitals." (Id. P 39). Although she had no authority to recommend an employee for a promotion or increase in salary and did not have final approval power, once such a recommendation had been made, Lapsley determined whether the employee was eligible for the requested upgrade. (See Lapsley Dep. at 132). She was also charged with assisting Evans with time and attendance reporting, payroll administration, oversight of various payrolls, and preparation of appointment and promotion packages. (See Lapsley Aff. P 40). She also assumed certain tasks ordinarily performed by a business manager, such as those related to day-to-day timekeeping for the business office staff.

 By memorandum dated October 7, 1991, Lapsley again sought a salary increase on the ground that her salary did not reflect "market values." (Memorandum from Lapsley to Evans, P1. Ex. E). This request was granted, but only beginning the new academic year.

 On January 15, 1992, Evans requested a parity review of Lapsley's salary, stating that it was his "understanding from our department review that adjustments are warranted." (Memorandum from Evans to Glazer, Pl. Ex. H). A campus-wide salary review, however, revealed that Lapsley was "compensated similarly to other Administrative Coordinators performing similar duties," and the Department of Human Resources ("Human Resources") recommended against granting her an off-cycle salary adjustment. (See Letter from Glazer to Evans dated February 18, 1992, Def. Ex. H). Notwithstanding the results of this study, Lapsley received a 12% increase, bringing her annual salary to $ 41,492. By 1995, Lapsley was earning $ 45,850. Hence, in the first six years of her employment, Lapsley received, largely as a result of Evans's efforts, three promotions and at least 11 pay raises (including increases resulting from the promotions).

 In January 1994, Evans allegedly promised Lapsley that her position would be reclassified to grade level-5 and that she be promoted to the new post. That never happened. (See Lapsley Dep. at 194-95).

 In early 1994, Evans apparently began to become dissatisfied with Lapsley's performance. He spoke to her on more than one occasion about her absences from work and tardiness, although Lapsley denies that she was ever informed orally or in writing of any other "dissatisfactory work performance." (Evans Aff. P 56; Lapsley Aff. P 52). On or about September 21, 1993, she injured herself falling, and went on sick leave until October 13, 1993. Her injuries did not heal quickly enough, however, and after discussions with Evans, she agreed to return to work on a part-time basis. She became ill by food poisoning in January of 1994, and missed work from January 14 until January 20. In May, she was out of the office for three days as a result of injuries to her shoulder. (See Lapsley Dep. at 417). The record is not clear as to the exact number of days Lapsley was either late for work or out of the office in 1994.

 Eventually, Evans sought advice from Human Resources about his dissatisfaction with Lapsley's performance. He states that nine months prior to Lapsley's dismissal, he had "four or five" conversations with Sybil Williams and Carol Samberg of Human Resources, who informed Evans that he had sufficient grounds to dismiss Lapsley. (Evans Aff. P 57; see also Williams Aff. P 7 (stating that she and Evans spoke "a number of times prior to [Lapsley's] termination date" about her work performance, absences, and lateness)). Rather than fire her outright, however, Evans decided to lay her off so she could collect severance pay. (See Evans Aff. PP 59; Williams Aff. PP 8-10).

 Lapsley was notified on December 22, 1994 that she would be laid off effective January 31, 1995 because of staff reductions. Lapsley was the only member of Evans's staff to be let go at that time. She received a second layoff notice on January 3, 1995 informing her that her position was being phased out due to reorganization needs. On or about January 3, 1995, Lapsley met with Dr. Eric Rose, the new Chairman of the Department, who informed her that her absences in 1994 played a significant role in her layoff. Dr. Rose told her that he had been informed by Evans that she had been absent from work on at least 47 days in 1994. *fn1" (See Lapsley Dep. at 413-15).

 Soon thereafter, Evans sought and obtained reclassification of Lapsley's position to Administrative Manager, grade level-5. On or about January 17, 1995, Evans interviewed a number of persons, including an individual who had been laid off by Columbia, and eventually selected Georgina Henrigquez, an Hispanic woman, for the job. (See Evans Aff. P 58). Lapsley did not apply for the new position.

 B. Procedural History

 Lapsley filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") on March 22, 1995. On January 19, 1996, the EEOC issued Lapsley a right to sue letter. She filed this suit on April 15, 1996, asserting claims for discrimination on the basis of her race, retaliation, and intentional infliction of emotional distress.

 This motion followed.


 A. Standards

 1. Summary Judgment Standard

 The standards governing motions for summary judgment are well-settled. Summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Accordingly, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)), there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 Once the moving party meets its initial burden of production, the burden shifts to the nonmoving party to demonstrate that there exist genuine issues of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. The nonmoving party may not rest upon mere "conclusory allegations or denials," but must set forth "concrete particulars" showing that a trial is needed. National Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Supreme Court stated in Anderson, "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).

 2. Title VII Standards

 The "ultimate issue" in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an "impermissible reason," i.e., that there was discriminatory intent. Fields v. New York State Office of Mental Retardation and Dev. Disabilities, 115 F.3d 116, 119 (2d Cir. 1997); see St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) (en banc), cert. denied, U.S. , 139 L. Ed. 2d 752, 118 S. Ct. 851 (1998). Plaintiffs have generally sought to meet that burden by using a "mixed-motives" analysis, see de la Cruz v. New York City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992), or by proving "pretext" under the three-part test first enunciated by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); de la Cruz, 82 F.3d at 20.

 As articulated in recent years, the three-step McDonnell-Douglas test theoretically operates as follows. First, a plaintiff must establish a prima facie case of unlawful discrimination by showing that (1) she is a member of a protected class (2) who was qualified for her position (3) who suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then "shifts" to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Stratton, 132 F.3d 869 at 879; Fisher, 114 F.3d at 1335-36. Third, if the defendant articulates a nondiscriminatory reason for its actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's, 509 U.S. at 510-11. The plaintiff must then show, without the benefit of any presumptions, that it is more likely than not that the employer's decision was motivated at least in part by a discriminatory reason. Because the defendant has at this point offered a nondiscriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination. See Fisher, 114 F.3d at 1337.

 Although the McDonnell-Douglas framework has been with us for some 25 years, it has proven at times to be confusing and unworkable. The criticisms of this cumbersome burden-shifting mechanism are legion, and courts and commentators have characterized it as a "yo-yo rule," *fn2" "befuddling, *fn3" "replete with confusion," *fn4" and "incomprehensible." *fn5"

 Although it was perhaps useful at one time, the test no longer fulfills its intended goals. Rather than "fine-tune the presentation of proof," Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995), the persistence of this analytic framework has led to widespread confusion over, and constant tinkering with, its internal mechanics. Courts have been consumed with such questions as when the burden should "shift," what it means for the prima facie case to "vanish" upon defendant's articulation of a nondiscriminatory rationale, and what the difference is (if any) between the proof of discrimination sufficient to meet the prima facie inquiry (the fourth prong of the first step) and that necessary to meet the third step.

 Moreover, the multi-step approach actually invites juries and courts to lose sight of the "ultimate issue." Overly rigid application of the framework can focus a court's or jury's attention inordinately on whether each stage has been satisfied and away from the existence or non-existence of evidence of discrimination in the record. In addition, while the framework may not be unduly burdensome where a single allegation of discrimination has been made, it becomes all but unworkable when plaintiffs allege multiple claims. See, e.g., Malladi v. Brown, 987 F. Supp. 893, 1997 U.S. Dist. LEXIS 19314, 1997 WL 748200 (M.D. Ala. 1997) (conducting burden-shifting for every allegation raised); Davis v. Bowes, 1997 U.S. Dist. LEXIS 16258, 95 Civ. 4765, 1997 WL 655935 (S.D.N.Y. Oct. 20, 1997) (same).

 Recent "clarification" of the McDonnell-Douglas test has eroded its usefulness even further. The first two steps, for all practical purposes, have fallen out of the equation. As to the first step, a plaintiff need only offer "minimal" proof of discrimination to establish a prima facie case. See Fisher 114 F.3d at 1335; Quaratino v. Tiffany & Co., 71 F.3d 58, 65-66 (2d Cir. 1995) (only "de minimis" showing necessary at first stage). *fn6" As to the second step, a defendant "need only articulate -- but need not prove" the existence of a nondiscriminatory reason for its action. Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir. 1995), aff'd en banc, 114 F.3d 1332 (1997). Of course, the employer in every case will articulate a nondiscriminatory reason for its action. It is difficult to imagine a case where a plaintiff prevails at the second step because a defendant is unwilling or unable to articulate some nondiscriminatory justification for its employment decision. *fn7" Thus, "this second stage is little more than a mechanical formality." Shifting Burdens of Proof, 109 Harv. L. Rev. at 1590.

 The practical effect of the confusion in this area of the law is that courts will often dutifully state the test (sometimes with a lengthy discussion of its various movable components) and then proceed to disregard it, or at least radically simplify it. Many courts, for example, assume for the purposes of argument that the first two steps have been satisfied and address only the third step. See, e.g., Piraino v. International Orientation Resources, Inc., 137 F.3d 987, 1998 U.S. App. LEXIS 3636, 1998 WL 86484, *3 n.1 (7th Cir. 1998) ("The district court short-circuited the McDonnell Douglas analysis by assuming that [plaintiff] had established a prima facie case and that [defendant] had articulated a nondiscriminatory reason for the action taken."); Jalal v. Columbia University, 1998 U.S. Dist. LEXIS 2698, No. 96 Civ. 5175, 1998 WL 106137, *9 (S.D.N.Y. Mar. 10, 1998) (declining to "dance mechanistically through the McDonnell-Douglas and Price Waterhouse 'minuets'" and proceeding to ultimate issue); Padob v. Entex Information Serv., 960 F. Supp. 806, 812 (S.D.N.Y. 1997) (refusing to "linger long on the first two stages of this analysis" and "turning directly" to the third stage). An increasing number of courts at least presume that a prima facie case has been established. See, e.g., Bickerstaff v. Vassar College, 992 F. Supp. 372, 1998 U.S. Dist. LEXIS 741, 1998 WL 32481 (S.D.N.Y. 1998); Jugueta v. Perry, 1997 U.S. Dist. LEXIS 19090, No. 95 Civ. 10303, 1997 WL 742535, at *4 (S.D.N.Y. Dec. 1, 1997); Bumpus v. Runyon, 1997 U.S. Dist. LEXIS 13019, No. 93 Civ. 3264, 1997 WL 539924, at *9 (S.D.N.Y. Aug. 28, 1997); Hinds v. Magna Fabrics, Inc., 1997 U.S. Dist. LEXIS 8071, No. 96 Civ. 1383, 1997 WL 309378, at *3 (S.D.N.Y. June 9, 1997); Owens v. Waldorf-Astoria Corp., 1997 U.S. Dist. LEXIS 6646, No. 92 Civ. 4561, 1997 WL 251556, at *3 (S.D.N.Y. May 13, 1997); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 155 (N.D.N.Y. 1997); Holmes v. United Airlines, Inc., 1996 U.S. Dist. LEXIS 14307, 94 Civ. 3564, 1996 WL 560193, *6 (S.D.N.Y. Jan. 2, 1996); Coleman v. Runyon, 898 F. Supp. 223, 226 (S.D.N.Y. 1995), aff'd, 101 F.3d 681 (2d Cir. 1996). Reviewing courts also typically take for granted that a prima facie case has been satisfied. See, e.g., Sweeney v. Research Found. of State Univ. of New York, 711 F.2d 1179, 1184 (2d Cir. 1983) (stating that appellate courts should not be "preoccupied with" or "linger long over the question of whether . . . a prima facie case" has been made out). The image of neatly shifting burdens, therefore, is largely illusory.

 The McDonnell-Douglas test has outlived its usefulness. Hence, it should be discarded and courts instead should focus on the "ultimate issue" -- whether the plaintiff has proven that it is more likely than not that the employer's decision was motivated at least in part by an "impermissible," or discriminatory, reason. This streamlined approach would strip away tangential and distracting questions concerning the minutiae of the test's inner workings and ...

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