the proof and drawing all reasonable inferences in favor of the plaintiff.
In considering the ultimate issue, a factfinder at trial or a court considering a motion for summary judgment must bear two concepts in mind. First, the issue is intentional discrimination -- the plaintiff has the burden at all times of proving, by a preponderance of the evidence, that she was the victim of intentional discrimination. See St. Mary's, 509 U.S. at 507 (stating that the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff") (quoting Burdine, 450 U.S. at 253). It is not enough that the plaintiff was unfairly treated or that a defendant's stated reasons for its employment actions are proven to be pretextual. Rather, while unfair treatment and a defendant's false statements may constitute "pieces of circumstantial evidence" that support a claim of intentional discrimination, the evidence as a whole must be sufficient to sustain an "ultimate finding" of intentional discrimination. Fisher, 114 F.3d at 1338.
Second, at the same time, proof of intentional discrimination is often elusive. Because an employer's "intent and state of mind are implicated," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985), "direct, smoking gun, evidence of discrimination" is rarely available. Richards v. New York City Board of Education, 668 F. Supp. 259, 265 (S.D.N.Y. 1987), aff'd, 842 F.2d 1288 (2d Cir. 1988). Courts must continue to be mindful that "'clever men may easily conceal their motivations.'" Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979) (quoting United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974), cert. denied, 422 U.S. 1042, 45 L. Ed. 2d 694, 95 S. Ct. 2656 (1975)); accord Ramseur v. Chase Manhattan Bank, N.A., 865 F.2d 460, 465 (2d Cir. 1989); see also Tyler, 958 F.2d at 1187 ("[If] there is at the very least a thick cloud of smoke," an employer must "convince the factfinder that, despite the smoke, there is no fire.") (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 266, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989)). All a plaintiff need do is persuade a finder of fact, from all the evidence in the record, that it is more likely than not that the adverse employment decision was motivated at least in part by an impermissible reason.
As Shafrir relies on the McDonnell-Douglas test and it remains governing law, I am bound to apply it. Rather than do so formalistically, however, I assume that Shafrir has made out a prima facie case. Defendants have articulated legitimate, nondiscriminatory reasons for their actions. Hence, I proceed directly to the ultimate question: whether Shafrir has presented sufficient evidence from which a reasonable jury could find discrimination. I do so by reviewing first Shafrir's evidence, then defendants' evidence, and finally the record as a whole.
a. Plaintiff's Evidence
Shafrir points to the following evidence that she alleges proves that she was dismissed because she was a woman and had recently given birth to a child: (i) her dismissal; (ii) Hirsch's oral comments; (iii) evidence of pretext; and (iv) the seemingly inexplicable harshness of defendants' decision to fire her.
(i) Plaintiff's Dismissal
Plaintiff was fired, while she was on maternity leave, after she had purportedly been promised that she could remain on leave until May 1, 1995. She was then replaced by a woman who was neither pregnant nor a mother.
Although these facts by themselves would not be sufficient by any means to sustain a claim of discrimination, they provide some evidence of discrimination to be considered together with all the evidence in the record.
(ii) Hirsch's Oral Comments
Hirsch's oral comments to plaintiff both before and during her maternity leave could lead a rational factfinder to conclude that Hirsch ordered plaintiff to return to work prior to May 1 knowing she could not comply, and that he did so because he believed that plaintiff's decision to be a mother was not compatible with the responsibilities of her position. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 27 L. Ed. 2d 613, 91 S. Ct. 496 (1971) (recognizing discrimination based on gender in conjunction with the fact that plaintiff has children).
The record contains evidence from which a jury could find that defendants's stated reasons for dismissing Shafrir were pretextual. Although defendants allege that Hirsch ordered plaintiff back to work on April 3, 1995 and then on April 10, 1995 for reasons unrelated to her maternity status, the circumstances surrounding Hirsch's memoranda to plaintiff and the language he used in those memoranda provide a reasonable basis for a jury to conclude otherwise. For instance, in his March 1, 1995 memo, Hirsch specifically mentioned to plaintiff that "he understand[s her] family concerns. All of us who work and raise families must reconcile the needs of the job and the needs of our families." (Feinberg Aff., Ex. F). In his April 4, 1995 memo, Hirsch states, "Lori, I understand your decision to spend more time with Rachel. Your decision not to return to work after your allotted maternity leave, is for you alone to make." A reasonable jury could find on the basis of these statements, coupled with Hirsch's other comments to plaintiff, that he dismissed her not because she chose to take a vacation but because of his doubts as to her desire and ability to continue working after having a child.
The timing and sequence of plaintiff's dismissal also support a finding of pretext. In a memo to Fern Glass and Paul Rockfeld on April 12, 1995, Hirsch notified them that plaintiff's employment was terminated as of April 11, 1995. In the same memo, Hirsch also announced that he had already selected a replacement. Plaintiff was replaced by a colleague who had already been given some of plaintiff's job responsibilities and who was neither pregnant nor a mother. A reasonable jury could conclude therefore that Hirsch had made up his mind to dismiss plaintiff before she made it clear that she would take her vacation as earlier discussed with Hirsch. Indeed, plaintiff's "contract" with Blue Cross and Blue Shield was cancelled on April 1, 1995 -- two days before plaintiff was even ordered to return to work by Hirsch. (Shafrir Aff., Ex. 12).
Finally, a jury could find pretext based on the fact that defendants provided "moving target" explanations. They apparently contended during the unemployment compensation proceedings that plaintiff voluntarily left her job. They now acknowledge that she was fired.
(iv) The Harshness of Plaintiff's Dismissal
A reasonable jury could find that defendants' decision to fire plaintiff was irrational, because she had otherwise been an excellent employee and was seeking only a few weeks of additional leave. A reasonable jury could construe defendants' illogical or unduly harsh actions as evidence of discrimination. See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 880 n.6 (2d Cir. 1997). This is particularly so if one assumes that Hirsch had originally told Shafrir that she could stay out on leave until May 1.
In short, plaintiff has presented substantial evidence to support her claims of discrimination.
b. Defendants' Evidence
Defendants present substantial evidence that Hirsch fired Shafrir because she refused to return to work when ordered to in April 1995. As discussed above, however, Shafrir has presented evidence from which a jury could reasonably conclude that Hirsch had determined to fire Shafrir for other reasons and seized upon Shafrir's desire to remain out on leave until May 1, 1995.
Defendants also rely on the fact that plaintiff was replaced by another woman to argue that her discrimination claim must fail. This fact, however, does not bar plaintiff's claim. See generally O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996) (holding that replacement of person by another person in protected class does not defeat age discrimination claim); Bratek v. Merck & Co., 1993 U.S. Dist. LEXIS 21183, 91 Civ. 0252E, 1993 WL 124747, *5 (W.D.N.Y. Apr. 16, 1993) (hiring a woman to replace woman alleging gender discrimination does not necessarily disprove discrimination).
Defendants also argue that plaintiff's claim under the Pregnancy Discrimination Act (the "PDA") must fail because she was not pregnant at the time of her discharge. The PDA, however, requires a plaintiff to prove that the employment decision was made "on the basis of pregnancy, childbirth or related medical condition." 42 U.S.C. § 2000e(k) (emphasis added). Defendants' claims are unpersuasive. The plain language of the PDA includes "childbirth" as a basis upon which the plaintiff can demonstrate discrimination. Such is the case here. Even though plaintiff was neither pregnant nor ill at the time she was discharged, she had recently given birth and was on maternity leave. Because she claims she was discharged because of childbirth, the PDA is properly invoked.
c. The Record as a Whole
Considering the evidence as a whole and resolving all conflicts in the evidence and drawing all reasonable inferences in her favor, I conclude that a reasonable jury could find that Shafrir was dismissed at least in part for an impermissible reason.
"Summary judgment should be used sparingly in employment discrimination cases where the employer's intent, motivation, or state of mind are at issue." LaCoparra v. Pergament Home Centers, Inc., 982 F. Supp. 213, 218 (S.D.N.Y. 1997). Here, Hirsch's intent and motivation are at issue, and there is a question of fact as to whether his articulated reason for ordering plaintiff back to work prior to May 1, 1995 was legitimate given that he knew plaintiff planned to be away until May 1, 1995, and he agreed (according to plaintiff) to that date prior to her going on maternity leave in January 1995.
Finally, while St. Mary's and Fisher make it clear that a plaintiff must show not only that a defendant's articulated reasons are pretextual but that they are a pretext for discrimination, here a jury could find, on the basis of Hirsch's alleged comments and all the circumstances of the case, that the pretext was intended to mask his desire to fire plaintiff because of his concerns that she could not devote her full attention to her job because she had become a mother. The evidence is specific enough to satisfy plaintiff's burden of showing circumstances that could lead a reasonable person to infer that the termination of her employment was illegally discriminatory.
Accordingly, defendants' motion for summary judgment on plaintiff's discrimination claim is hereby denied.
Although she acknowledges that she otherwise was an at-will employee, plaintiff claims that the oral assurance from Hirsch to extend her maternity leave to May 1, 1995 constituted an enforceable express limitation on defendants' right to discharge her at will. (Pl. Mem. at 13-16). The employment-at-will doctrine gives "an employer . . . a nearly unfettered right to discharge an employee." Jones v. Dunkirk Radiator Corp., 21 F.3d 18, 21 (2d Cir. 1994). "Oral assurances alone are insufficient to establish . . . an agreement to limit the employer's right to terminate the employee." Fitzgibbon v. Sanyo Secs. America, Inc., 1994 U.S. Dist. LEXIS 8386, No. 92 Civ. 2818, 1994 WL 281928, *6 (S.D.N.Y. June 22, 1994). Under New York law, at-will employees can be dismissed at any time absent an express agreement otherwise. Sabetay v. Sterling Drug Co., 69 N.Y.2d 329, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (Ct. App. 1987).
To state a cause of action for breach of employment contract in New York, the otherwise at-will employee must show the existence of circumstances that indicate: "(1) an express limitation on the employer's right to terminate the employment, and (2) reliance upon that limitation." Munn v. Marine Midland Bank, N.A., 960 F. Supp. 632, 641 (W.D.N.Y. 1996). The totality of circumstances must be examined in making such a determination including writings (if any), the situation, the course of conduct of the parties, and their objectives. Id.
No rational jury could conclude, based on the totality of circumstances in this case, that defendants expressly limited their right to terminate plaintiff's employment simply because Hirsch agreed to allow plaintiff to extend her maternity leave to May 1, 1995. Indeed, shortly after Hirsch agreed to allow plaintiff to be out until May 1, 1995, plaintiff claims he began pestering her about when she would return. While plaintiff was out on maternity leave, Hirsch contacted her several times to inquire about her return date and, ultimately, ordered her back to work prior to the agreed upon date. While Hirsch's conduct arguably raises an inference of discriminatory animus toward plaintiff, it does not demonstrate that he expressly limited his right to terminate plaintiff's at-will employment. Fry v. McCall, 945 F. Supp. 655, 666-67 (S.D.N.Y. 1996).
Moreover, as defendants argue, the agreement to extend plaintiff's leave until May 1, 1995 lacks consideration. To maintain her employment status at AZRA, plaintiff was obligated to return to work subsequent to her maternity leave. Promising to return to work, therefore, is not valid consideration for the agreement between plaintiff and Hirsch concerning the May 1, 1995 return date.
Finally, even on plaintiff's version of the facts, no reasonable jury could find reliance. If Hirsch had indeed started pestering plaintiff almost immediately about her return date, as she alleges, she could not very well have relied on what he had purportedly said immediately before. At that early point in time, there was nothing to prevent Hirsch from changing his mind.
In light of the above, no rational jury could conclude that Hirsch's oral assurance concerning plaintiff's return date was a legally enforceable contract that altered her employment-at-will status. Accordingly, plaintiff's contract claim is dismissed with prejudice.
Plaintiff's claim under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") is also deficient. Pursuant to 29 U.S.C. § 1161 et seq., an employer must offer continuation of health coverage upon the termination of an employment relationship. As set forth in two affidavits by Fern Glass, defendants sent plaintiff a notice offering her the option of purchasing continuation of health coverage. (Glass Aff., Ex. B; Glass Reply Aff.). Plaintiff maintains that she never received the notice. Even assuming that is true, given Glass's affirmations, however, and the absence of any concrete evidence to contradict Glass's statements, no reasonable jury could conclude that defendants failed to fulfill their COBRA obligations. See Myers v. King's Daughters Clinic, 912 F. Supp. 233, 236 (W.D. Tex.), aff'd, 96 F.3d 1445 (5th Cir. 1996). Accordingly, plaintiff's COBRA claim is dismissed with prejudice.
For the reasons stated above, defendants' motion for summary judgment is denied in part and granted in part. The contract and COBRA claims are dismissed. The parties shall appear for a pretrial conference on Friday, April 24, 1998 at 11 a.m.
Dated: New York, New York
March 26, 1998
United States District Judge