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January 20, 1999


The opinion of the court was delivered by: Kaplan, District Judge.


This is a so-called "glass ceiling" case. Roslyn Feder, M.D., Ph.D., a senior vice president in the Worldwide Medicines Group at Bristol-Myers Squibb Company ("BMS"), alleges that defendant, motivated by gender animus solely on the part of the president of her group,*fn1 denied her advancement in the company in violation of Title VII of the Civil Rights Act of 1964 and comparable state and local laws.*fn2 Feder claims also that BMS retaliated against her for complaining of bias, filing a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"), and filing this lawsuit. She asserts a common law breach of contract claim as well.

The Court previously granted in part and denied in part defendant's motion for summary judgment dismissing Feder's claims. This opinion sets forth the basis for that decision.


Dr. Roslyn Feder entered college at 16 and a joint M.D./Ph.D program at 19. In 1984, she received both an M.D. from Cornell University Medical School and a Ph.D. in cell biology from Rockefeller University. She spent the following two years working as a senior consultant for Arthur D. Little, Inc. while completing a clinical fellowship in pediatrics at the Harvard Medical School.*fn3

Although Feder had no formal business education,*fn4 she began a business career in 1988 when she accepted a position with Sandoz Pharmaceuticals Corporation ("Sandoz") as assistant director of licensing. She was promoted twice during the next six years, attaining the position of executive director of Business Development and Licensing.*fn5

Feder Hired by BMS

Feder's career at Sandoz was not an entirely happy one. Her position involved no direct managerial responsibilities,*fn6 she believed that she was "not always well liked,"*fn7 and she felt that she was not fairly compensated.*fn8 By some time in 1994, she concluded that she had learned all that she could at Sandoz and contemplated leaving.*fn9 Feder was interested in finding a new position that would further her goal of a "high powered, quick trajectory career" and bring her "power, money, career development and growth."*fn10 At the same time, BMS, an international pharmaceutical company with headquarters in New York, was searching to fill the position of vice president, Worldwide Business Development and Licensing in its Pharmaceutical Group.

In February 1995, with the approval of Kenneth Weg, president of the Pharmaceutical Group,*fn11 BMS offered this position, which reported to Dr. Andrew Bodnar, then president, Oncology/Immunology and Worldwide Strategic Business Development, to Feder. Feder testified at her deposition that Kenneth Sloan, senior vice president of Human Resources for the Pharmaceutical Group, told her "that he expected — that it was the expectation that Dr. Bodnar would not remain in this position long, and that . . . it was the expectation that [she] would succeed Dr. Bodnar in his position."*fn12 According to Feder, she relied on this statement in accepting BMS's offer.*fn13

Hayden's 1995 Promotion

The forecast that Bodnar would not long remain in his position proved correct, but the alleged expectation as to Bodnar's successor did not. In September 1995, Bodnar was transferred out of the Pharmaceutical Group and the position he held restructured.*fn14 But Weg promoted Donald Hayden, Jr., then responsible for BMS's oncology-immunology business, rather than Feder into the restructured position. Hayden, a 14-year veteran of BMS, was given responsibility for both the Franchise Management and Business Development and Licensing units, the latter of which was headed by Feder. In this capacity, he began reporting directly to Weg.*fn15 Feder, who now argues that she should have reported directly to Weg, began reporting to Hayden.*fn16

The February 1997 Reorganization

In late 1996 or early 1997, Weg decided to reorganize the Pharmaceutical Group. Under his initial proposal, Hayden would have replaced Samuel Hamad, then president of Intercontinental.*fn17 Richard Hinson, an experienced executive who nevertheless was relatively new to BMS, would have replaced Hayden as senior vice president for Worldwide Franchise Management and Business Development.*fn18 Christine Poon, another woman in BMS' Pharmaceutical Group, would have reported to Hayden while Feder would have reported to Hinson.*fn19

Poon objected to the proposed reorganization. It appears that she thought she ought to report to Weg, inasmuch as he had run BMS's Latin American operations at one time, and that reporting to him would be an important career development for her.*fn20 Hayden too disagreed with the proposed structure, believing it inappropriate for Poon and Feder, each of whom was quite experienced in her area, to report to Hayden and Hinson, respectively, because Hayden and Hinson had comparatively little experience in their specific new areas of responsibility.*fn21 Faced with this opposition, Weg revised the proposal. He promoted both Poon and Hayden and divided Intercontinental between them, making Poon responsible for Latin America and Canada and Hayden for all other non-European international markets.*fn22 Weg also restructured Hayden's prior position, separating Franchise Management from Business Development and Licensing. Hayden maintained responsibility for Licensing and Business Development,*fn23 and Hinson was promoted to senior vice president for Worldwide Franchise Management. Feder, her position unchanged, continued to report to Hayden. She, however, was designated to lead a "high impact initiative" for external development*fn24 and appointed to the Worldwide Medicines Group operating committee.*fn25

Shortly after the announcement of these organizational changes, Feder expressed her dissatisfaction with the reporting structure to Weg*fn26 and subsequently conveyed to Charles Tharp, executive vice president for Human Resources, her belief that gender discrimination was the reason she had been denied a promotion and a direct reporting relationship to Weg.*fn27 According to Tharp, Feder asked that BMS rectify the situation. She made reference, in the alternative, to a potential separation package.*fn28 BMS did not acquiesce in either alternative. In April 1997, Feder, through counsel, informed Charles Heimbold, BMS' chief executive officer, of her intention to file a lawsuit predicated on claims of gender discrimination.*fn29 Feder filed a charge of discrimination with the EEOC the following August 1*fn30 and this lawsuit in September.

The November 1997 Reorganization

In the middle of 1997, the decision was made to reassign Feder's licensing responsibilities to Dr. Peter Ringrose, who headed BMS's research and development group. the Pharmaceutical Research Institute ("PRI").*fn31 BMS informed Feder of this change in November 1997 and it went into effect on December 1. At the same time, Weg gave Feder a new title — senior vice president of External Development — made her a member of his executive committee, and had her report directly to him.*fn32

In December, Feder amended her complaint, adding the claim that the transfer of Licensing, notwithstanding her enhanced title and direct reporting relationship to Weg, was made in retaliation for the filing of this lawsuit.

Feder's Allegations

Feder alleges that Weg discriminated against her on account of her sex*fn33 when she was not promoted in September 1995 and February 1997.*fn34 Specifically, she claims that (1) she was the most qualified person in the Worldwide Medicines Group to replace Bodnar in 1995 and should have received the promotion to succeed Bodnar over Hayden,*fn35 and (2) she should have been promoted to a reporting relationship with Weg in February 1997.*fn36 These missed promotions, argues Feder, had a negative effect on her reputation and her compensation.*fn37

Feder's allegation of unlawful retaliation is based on the November 1997 reassignment of her licensing responsibilities to Ringrose, which she contends was done in retaliation for her April 1997 letter to Heimbold and Weg, her August 1997 EEOC charge, and the filing of this lawsuit. Feder makes a contract claim as well, alleging that BMS breached its agreement when it did not promote her to succeed Bodnar.


I. Discrimination Claim

A. Basic Principles

Under Title VII of the Civil Rights Act of 1964, as amended,*fn38 an employer may not discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment nor otherwise adversely affect the employee's job status on the basis of the employee's sex.*fn39

In McDonnell Douglas Corp. v. Green,*fn40 the Supreme Court set forth the "allocation of the burden of production and an order for the presentation of proof" applicable to Title VII cases. This formulation is applicable as well to cases under the comparable New York and New Jersey statutes upon which Feder relies.*fn41

Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case.*fn42 Here, Feder must show (1) membership in a protected class, (2) qualification for the position she sought, (3) an adverse employment action with respect to that position, and (4) either that a position she sought was filled by a person not in the protected class or that a promotion was denied or other adverse employment action taken in circumstances giving rise to an inference of discrimination.*fn43 The plaintiff's burden in establishing the prima facie case is "minimal."*fn44

Establishment of the prima facie case generates a presumption that the employer engaged in unlawful discrimination.*fn45 The plaintiff at that point is entitled to proceed to the jury unless the defendant "comes forward with a non-discriminatory reason for the action complained of."*fn46 Articulation of a legitimate, non-discriminatory reason rebuts the presumption created by the prima facie showing, leaving only the ultimate question of whether the plaintiff has proved intentional discrimination. In order to establish intentional discrimination, the plaintiff must prove that (1) the legitimate, non-discriminatory explanation proffered by the defendant is pretextual, or false, and (2) gender discrimination was a determinative factor in the decision.*fn47

B. The Prima Facie Case

1. Membership in Protected Class

Feder is a member of a class protected by Title VII. In consequence, the first element of her prima facie case concededly is satisfied.

2. Material Adverse Employment Action

BMS tacitly acknowledges that the failure to promote Feder to Bodnar's position in September 1995 was a material adverse employment action and that the second element of the prima facie case is satisfied as to that aspect of her claim.*fn48 It argues, however, that the February 1997 reorganization had no material adverse effect on Feder because she was not denied a particular position she had sought, and there was no change in her then-current job.*fn49 But BMS takes too narrow a view of Feder's contentions.

First, Feder's allegation is not merely that she was not promoted from one position to another, but that she was denied a reporting relationship to Weg and that such a reporting relationship would have carried incidents of a promotion such as increased compensation and prestige.*fn50 Second, Feder argues that she ought to have been considered for the "combined position of Franchise Management and Business Development and Licensing."*fn51 In order to give determinative effect to the elimination of the position, one necessarily must conclude that the organizational change was made for bona fide, non-discriminatory reasons. In other words, one must conclude that Weg decided to eliminate the position on the merits and not in whole or in part to avoid filling it with a woman. As explained in greater detail below, this inappropriately would put the cart before the horse by collapsing the determination of the merits of the claim of discrimination into the determination whether the plaintiff has made out a prima facie case.

This Court is not prepared to say, on this record, that no trier of fact reasonably could conclude that Feder suffered a material adverse employment action when (i) the position to which she aspired was eliminated, thereby arguably foreclosing a logical promotion path, and (ii) she was not given the direct reporting relationship to Weg. Feder therefore has made out a prima facie case as to the February 1997 events as well.*fn52

3. Qualifications

The question whether Feder was qualified for the positions she sought is more difficult. BMS argues that she was not qualified in the sense that her ample skills did not meet its particular, albeit necessarily subjective, requirements as well as the available alternative candidates. Feder, on the other hand, attacks BMS's professed requirements and evaluations as pretextual. The dispute thus raises a fundamental difficulty in determining whether ...

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