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VICTORY v. HEWLETT-PACKARD CO.

January 21, 1999

KRISTEN L. VICTORY, PLAINTIFF,
v.
HEWLETT-PACKARD COMPANY, DEFENDANT.



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

    MEMORANDUM AND ORDER

Plaintiff, Kristen L. Victory, commenced this action seeking monetary damages and equitable relief against her former employer, Defendant, Hewlett-Packard Company ("HP"), under Title VII of the Civil Rights Law of 1964, 42 U.S.C. § 2000e, et seq., and under New York State Human Rights Law, Executive Law § 290, et seq.

Plaintiff alleges, inter alia, claims of gender discrimination in the terms and conditions of her employment, through HP's promotion and salary policies and practices which caused a disparate impact toward female employees in general, and a disparate treatment toward Plaintiff in particular. Furthermore, Plaintiff avers that certain of Defendant's practices and procedures created a discriminatory work environment for women which effectively caused Plaintiff's constructive discharge.

Defendant, after the completion of discovery, now moves for summary judgment under Federal Rules of Civil Procedure, Rule 56(c), based primarily on the ground that Plaintiff has failed to demonstrate any promotional opportunity that she was qualified for, or entitled to receive. Moreover, Defendant argues that Plaintiff has failed to proffer evidence, expert or otherwise, to establish a prima facie case of salary discrimination or discriminatory work environment. Finally, Defendant asserts that Plaintiff's voluntary resignation cannot qualify as a constructive discharge because there were no aggravating factors to support such a conclusion.

FACTUAL BACKGROUND

Plaintiff began her employment with HP as a staff engineer trainee on July 1, 1983, and she became a sales representative on May 1, 1984. Ms. Victory subsequently specialized in data communications until the fall of 1987 when she secured a position as a sales representative in the dealer computer sales force, for HP's fiscal year 1988. Approximately ten months after Plaintiff joined the dealer sales force there was a reorganization. As a result of that reorganization, James Kucharczyk was promoted to District Sales Manager, becoming Plaintiff's manager in the process. (Def.'s Ex. 2D; Def. & Pl. Statement of Undisputed Material Facts (hereinafter "56.1") ¶¶ 1-15.)

Plaintiff's claim essentially asserts that Defendant paid her less than comparably trained and qualified men, failed to promote her to management positions for which she was qualified, and failed to equalize the terms and conditions of her employment. This discrimination was purportedly effectuated by Defendant's unfair system of ranking employees, its failure to publish management positions and its failure to employ objective standards for the selection and promotion of employees to management positions.

After ending her employment with HP, effective May 31, 1990, Plaintiff filed a complaint alleging discrimination with the New York State Human Rights Division ("NYSHRD") on June 6, 1990, and with the Equal Employment Opportunity Commission ("EEOC") on June 18, 1990. On September 28, 1994, the NYSURD issued a determination of probable cause and dismissed the complaint on the grounds of administrative convenience. On May 16, 1995, the EEOC issued a Notice of Right to Sue letter. (Compl. ¶¶ 3-4, Pl.'s Ex. A: "Determination After Investigation"; 56.1 ¶ 28.)

Since in or about 1986, Plaintiff expressed her interest in obtaining a management position and informed her various district managers of her desire, though she never formally expressed this aspiration in writing. She consistently received "good"r "very good" ratings on her performance evaluations, but higher ratings were needed in order to be considered for management positions. There were six categories of performance: (1) exceptional; (2) excellent; (3) very good; (4) good; (5) acceptable; and (6) unacceptable. (Def.'s Ex. 2C, 2d 2E & 2F.) Performance evaluations were prepared by District Managers and reviewed by Area Sales Managers. The performance evaluations effectively created a rank order system, with only a limited number of persons qualifying for management positions within the curve or performance band. A sales representative's ranking was based on a number of factors including quota performance. Quota performance was the least subjective factor and one of the most important factors in the evaluation. (Pl's Dep. Volume II at 10, 18.; Pl.'s Dep. Volume I at 15-19; Tony DiCairano Dep. at 30; Robert A. Gumport, Jr. Dep. at 23-27.) Other criteria evaluated were product knowledge, market knowledge, planning and organization and customer support and satisfaction. (Kucharczyk Dep. at 28-29; Gumport Dep. at 87-88, 93-94).

A comparison of Plaintiff's quota performance and her performance evaluations with those of her male colleagues, for the fiscal years 1986, 1987, 1988 and 1989, demonstrates that Ms. Victory consistently met her quota and exceeded the performance of her male counterparts for all but 1987. In 1987, Plaintiff achieved 60 percent of her quota, however, it reflected a 10 percent increase over her fiscal year 1986 sales results. (Pl.'s Ex. C-10.) Plaintiff was considered a hard worker, and she got along well with her customers. (Frank E. Lebert Dep. at 16; Pl.'s Dep. Volume I at 207-08.)

Salaries were determined by an employee's rank, i.e., a rank at the top of the performance band would entitle the employee to a higher salary. (Gumport Dep. at 30; Kucharczyk Dep. at 73-75.) Sales representatives' salaries included base pay and commissions based on actual sales. "Target compensation" was defined as the amount of salary and commissions that a sales representative would earn if the representative achieved 100 percent of the annual quota. (56.1 ¶ 38.)

HP did not have a uniform practice of posting openings for management positions or a standardized written application procedure. (Pl.'s Dep. Volume II at 15-19; Ronald Moore Dep. at 56-57.) District managers informed their sales representatives of any openings. (Pl.'s Dep. Volume II at 15; Frank E. Lebert Dep. at 8; Eileen Meehan Dep. at 16-17.) Ronald Moore, Defendant's personnel manager for the New York area, was not aware if written standards for advancement to management positions existed. (Ronald Moore Dep. at 56.)

Prior to her maternity leave, which lasted from June 1989 through August 1989, Plaintiff was responsible for two accounts, Word Pro and Manchester. The Manchester account was Defendant's largest customer in the sales district. Plaintiff's quota for fiscal year 1990, as well as the quotas of the other sales representatives was increased on November 1, 1989. Ms. Victory contends that her quota was raised proportionately higher than any of the other sales representatives. (56.1 ¶ 19.) When her maternity leave ended in August 1989, Plaintiff discussed splitting the Manchester account between two sales representatives, while maintaining her base salary and splitting commissions over quota on an equal basis. While Plaintiff discussed this proposal with Kucharczyk, she did not discuss it with Mr. Gumport, the Area Sales Manager, because, according to office practice, the proposal had to be presented to the district manager first. (56.1 ¶¶ 21-22; Pl.'s Dep. Volume I at 110.)

Although, Ms. Victory maintains that she did complain to Gumport and Kucharczyk that her compensation was insufficient for fiscal year 1990, Plaintiff admits that she signed and returned a letter to the personnel department acknowledging her salary level. Plaintiff purportedly told Kucharczyk that she should have gotten more that a 8 to 9 percent raise in view of her past performance and her additional workload. (Pl.Aff. at 2; James Kucharczyk Dep. at 127.)

The performance evaluation Kucharczyk prepared for Plaintiff in April 1990 had an overall rating of "Very Good," but it contained several areas in which "needs attention" was indicated, and certain unfavorable comments were stated. For example, in the "Planning and Organization" category, Kucharczyk noted: "You need to spend more time in front of your customers. Your involvement in the administrative aspects of managing your account appears to be preventing you from making more than one or two calls a week. In an account the size of Manchester, with over 50 sales people, you need to spend at least three days a week in the account or on joint sales calls with their SRs." In summary, Kucharczyk wrote: "You need to improve your performance in several areas, . . . primarily by exercising better judgment, by working to see the broader perspective on business issues, and, by demonstrating more interpersonal flexibility with your internal and external customers." These general comments are in contrast to the previous paragraph in which Plaintiff is specifically credited with doubling Manchester's business while bringing it to a 16 million dollar level, establishing HP as Manchester's number one vendor, offering a score of products and services to Manchester and assisting in the training of three staff persons at HP.

In response to this evaluation, Plaintiff wrote a detailed, logical and rational analysis of her performance and raised a number of valid issues concerning Kucharczyk's criticisms and Kucharczyk's failure to discuss any problems prior to the evaluation's completion. (Def.'s Ex. 1-I.) Plaintiff expressed her belief that she should have received an "Excellent" rating because she consistently exceeded her assigned goals and quotas.

Plaintiff complained to Gumport about Kucharczyk's negative authoritarian management style. (Pl.'s Memo to Gumport, Def.'s Ex. 2-J.) While Ms. Victory never used the term "sexual discrimination," she did tell Ronald Moore, the personnel manager, that she felt Kucharczyk discriminated against her, and Moore admitted that HP "is still a white male dominated company." (Pl.'s Dep. Volume I at 126, 139, 222, as recorded in Pl.'s contemporaneous notes; 56.1 ¶¶ 23-27.) Thus, although in meetings with both Gumport and Moore, Plaintiff never expressly and specifically stated that she was discriminated against because of her sex, she certainly conveyed her perceptions toward that end. (56.1 ¶¶ 26-27.) Additionally, Moore apparently told Plaintiff that Kucharczyk's evaluation could be viewed as sexist because it only found fault with her performance in subjective areas. (Pl.'s Dep. Volume I at 224.) For example, Plaintiff complained that Kucharczyk required her to keep a call sheet, a condition no other sales representative with her experience was subjected to, and Kucharczyk acknowledged as much. (Kucharczyk Dep. at 76.) In addition, Moore, using different words, supposedly stated that Gumport and Kucharczyk had spoken previously with Moore, about Victory and her performance evaluation, to cover themselves and their story. (Pl.'s Dep. Volume I at 223.)

In her memo to Gumport, dated April 4, 1990, Plaintiff requested a transfer, specifically complaining that Kucharczyk demonstrated a lack of negotiating skills with her customers and has "create[d] a dealer who feels that he should get a kickback for every order that Jim (Kucharczyk) wants to place, so that he (Kucharczyk) will make his quota." However, Gumport testified that Plaintiff only complained about her evaluation and never mentioned the alleged kickback scheme. (Gumport Dep. at 74-77.) Although a substantial portion of Plaintiff's efforts have been directed at the alleged kickback scheme, as will be discussed infra, it is not relevant to her claim, and therefore does not necessitate extended discussion herein.

STATISTICAL ANALYSIS

Plaintiff's claim of disparate impact discrimination is based primarily on the comparative statistical evidence. Plaintiff's expert, Jonathan Falk, is a Senior Consultant at National Economic Research Associates, and based upon data supplied during discovery by Defendant, Falk determined that during the years 1986 through 1989, 12 male sales representatives were promoted, yet no women were promoted. Although 83 men were not promoted, all 25 female sales representatives were not promoted. This analysis resulted in a finding that there was only a one in twenty chance that this outcome could have occurred randomly, and therefore, Falk concluded that "while differential rates of performance ratings partially explain this result, there is no explanation for the fact that women received lower promotion rating than men." (Def.'s Ex. 2L, Falk's Report.) Further, a review of the salaries of women showed that "women received significantly lower salaries than men." Id. "The statistical implication is that HP has systematically discriminated against women in promotion and pay for sales representatives." Id.

The pool of possible candidates for promotion included sales representatives in the New York area and included all promotions during the 1986 to 1989 period. Falk does not recognize a standard benchmark level for determining statistical probability but employed "Fisher's Exact Test" to determine statistical probability. (Falk Dep. at 73-74.)

All the men who were promoted received an exceptional rating, yet of the 25 women in the pool, only 4 women received an exceptional rating, none of whom were promoted, and therefore, Falk concluded, the Defendant's failure to promote cannot be based upon the relative performance of the women. Generally, women were less likely than men to receive the highest rank, i.e., extraordinary or excellent, but that circumstance should have only affected their salary and not promotional opportunities. (Def.Ex 2L.) As far as salary was concerned, Falk's analysis disclosed that women received around $7,500 per year less than men, and even after differentiating for job group and performance rating differences, there was still a $5,900 per year gap between the salaries of men and women. (Def.Ex.2L.) Falk used the actual compensation rather than target compensation to measure salary disparity. (Falk Dep. 89-91.)

Defendant's expert, Dr. Elizabeth Becker, attacks Falk's analysis because Falk failed to meet the benchmark level of statistical significance which is 0.05. Becker criticizes Falk's inclusion of an employee who geographically was outside the New York area, another employee who was granted a lateral transfer but not a promotion, and the inclusion of employees who were not eligible for promotion to management. Plaintiff's expert's response is that he was supplied the data from Defendant and his methods are appropriate and scientifically sound, even when compared to Dr. Becker's results, (Falk Dep. 91, 94, 101, 134.)

DISCUSSION

I STANDARDS FOR GRANTING SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987)) "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing 10A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).

A party opposing a motion for summary judgment "`may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id., 477 U.S. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Under the law of the Second Circuit, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

With respect to private employment discrimination claims, the three-tier burden shifting analysis first set forth in McDonnell Douglas is utilized. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). In this failure to promote claim based on gender discrimination, Plaintiff's initial burden is to establish a prima facie case which consists of the following four elements: (1) she is a member of a protected group; (2) she applied for and was qualified for the position in question; (3) she did not receive the position; and (4) either the position remained open or it was filled by someone not a member of her protected class. See, de Ia Cruz v. New York City Human Resources Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996); Sweeney v. Research Found. of State Univ. of New York, 711 F.2d 1179, 1185 (2d Cir. 1983); Samuels v. New York State Dep't of Correctional Servs., No. 94 Civ. 8645, 1997 WL 253209, at *5 (S.D.N.Y. May 14, 1997); Chojar v. Levitt, 773 F. Supp. 645, 652 (S.D.N Y 1991).

The next two tiers are described in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997), and its predecessor opinion before rehearing en banc reported at Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995), which quote from the applicable Supreme Court pronouncements as follows: "If the plaintiff presents a prima facie case, the burden shifts to the employer, who is required to demonstrate `some legitimate, nondiscriminatory reason' for the decision." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. "The employer's burden here is one of production of evidence rather than one of persuasion." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The defendant need only articulate, not prove, the existence of a nondiscriminatory reason. Id. at 254-56, 101 S.Ct. at 1094-95. If the defendant carries this burden of production, the plaintiff then assumes the burden to "show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. However, it is not enough for a plaintiff to show that the defendant's legitimate, nondiscriminatory reason for its employment decision is pretextual; the plaintiff must also prove by a preponderance of the evidence that defendant's stated reason is "a pretext for discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).

Pretext may be directly proven by showing that discrimination was a motivating factor in the decision to terminate, Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995), or indirectly by introducing evidence which shows that the defendant's proffered reason is unworthy of credence. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Binder v. Long Island Lighting Co., 57 F.3d 193, 199-200 (2d Cir. 1995).

In addition, proof utilized to establish the prima facie case may be used to show that defendant's non-discriminatory explanation was pretextual and to raise the necessary inference of discrimination. See, e.g., DeMarco v. Holy Cross High School, 4 F.3d 166, 170 (2d Cir. 1993) (proof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant's actions were motivated by an improper discriminatory intent, but does not compel such a finding).

The burden-shifting framework does not alter the fact that the plaintiff at all times bears the burden of persuading the trier of fact that the defendant unlawfully discriminated against him. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). A showing that the adverse employment action occurred under circumstances giving rise to an inference of gender discrimination may be proven by either direct, statistical or circumstantial evidence. See Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991). Plaintiff ultimately must show that discrimination "played a motivating role in, or contributed to, the employer's decision." Renz v. Grey Advertising, Inc., 135 F.3d 217, 222 (2d Cir. 1997). Thus, "[t]he question becomes the ...


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