"[w]hile Mr. Wallengren was far from a perfect employee, he did
many things very well, for which he was amply rewarded. . . . I
had no intention of terminating him until I learned of his
disloyalty." (Van Nostrand Aff. ¶ 28). Nevertheless, defendants
argue that plaintiff's disloyal act rendered him automatically
"unqualified" to perform his job.
Certainly, the disloyal act, assuming that defendants had
knowledge of it at the time of termination, is relevant to the
underlying inquiry as to whether plaintiff was terminated for a
legitimate and nondiscriminatory reason. However, the act does
not preclude Wallengren from demonstrating that he was qualified
for employment with Samuel French. Wallengren's act is similar to
"misconduct," i.e., inappropriate or insubordinate behavior,
which does not "by the same token establish `unsatisfactory
performance.'" Thornley v. Penton Publishing, Inc.,
104 F.3d 26, 29 (2d Cir. 1997) (discussing Owens, 934 F.2d at 409).
Rather, the disloyal act, like misconduct, is "distinct . . .
from the issue of minimal qualification to perform a job."
Owens, 934 F.2d at 409. As Van Nostrand has acknowledged that,
despite some flaws, Wallengren was competent at his job, the
court finds that plaintiff has demonstrated that he is a
"qualified individual" under the ADA. See also id. (plaintiff
need only show that he "possesses the basic skills necessary for
performance of [the] job.").
Finally, plaintiff must demonstrate, in order to make out his
prima facie case, that the circumstances surrounding his
discharge give rise to an inference of discrimination. See
Chambers, 43 F.3d at 37. The court is mindful that because
direct evidence of intentional discrimination is rarely if ever
found, victims of discrimination must often rely on
circumstantial evidence to prove their claims. See, e.g., id.,
43 F.3d at 37; Gallo, 22 F.3d at 1224 ("[A]ffidavits and
depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination.").
In the instant case, plaintiff has alleged that Van Nostrand
made comments that, when taken at face value, reflect
discriminatory animus against persons with HIV/AIDS. In
particular, plaintiff emphasizes Van Nostrand's alleged comment
that he did not know whether to attribute Wallengren's poor
reputation and attitude to Wallengren's "medication or illness."
Defendants argue, however, that the comment and others alleged by
plaintiff are "stray remarks" insufficient to give rise to an
inference of discrimination. See, e.g., Balut v. Loral
Electronic Sys., 988 F. Supp. 339, 348-49 (S.D.N.Y. 1997)
(Connor, J.) (employer's reference to "an older engineer with
health problems" did not create inference of discrimination).
See also Woroski, 31 F.3d at 109-10, n. 2 (employer's criticism
of older workers not directed at plaintiffs did not create
inference); Renz v. Grey Advertising, Inc., 135 F.3d 217,
220-21 (2d Cir. 1997) (comments not directed at plaintiff nor
about plaintiff did not create inference).
Nevertheless, the court finds Van Nostrand's alleged comment
regarding plaintiff's illness and his poor attitude is sufficient
to give rise to an inference of discrimination. Unlike the
comments at issue in Balut, Woroski, and Renz, Van Nostrand's
comment was directed at plaintiff, in connection with his work
skills, and during the time period immediately prior to his
discharge. See Cartagena v. Ogden Services Corp., 995 F. Supp. 459,
463 (S.D.N.Y. 1998) (Sotomayor, J.) (denying summary
b. Defendants' legitimate, nondiscriminatory reason
Plaintiff having made his prima facie case of discriminatory
discharge, the burden now shifts to defendants to produce
evidence of a legitimate, nondiscriminatory reason for
termination. See Dister, 859 F.2d at 1112. Defendants'
reason for the termination is plaintiff's proposal to MTI that it
establish a non-musical play division, which defendants
reasonably believed would have competed with Samuel French.*fn1
Thus, defendants have met their burden of production by
articulating a legitimate, nondiscriminatory reason for the
termination: plaintiff's disloyal act of proposing the
establishment of a play division at a Samuel French competitor.
c. Plaintiff's opportunity to show pretext
Plaintiff may demonstrate that the nondiscriminatory reason
articulated by defendants was merely a pretext for discrimination
by "the presentation of additional evidence showing that `the
employer's proffered explanation is unworthy of credence,' or by
reliance on the evidence comprising the prima facie case, without
more." Chambers, 43 F.3d at 38 (citing Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981), and St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). While
the plaintiff is not required to show that the employer's reason
was pretextual in order to prevail, see Fields, 115 F.3d at
121, "[t]he factfinder's disbelief of the reasons put forward by
the defendant[s] (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination."
St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742.
However, while rejection of the employer's proffered reason will
permit the trier of fact to infer the ultimate fact of
discrimination without additional proof, it does not compel
judgment for the plaintiff. See id. The burden of persuading
the trier of fact of intentional discrimination remains at all
times on the plaintiff.*fn2 See id.; Scaria v. Rubin,
117 F.3d 652, 654 (2d Cir. 1997).
Plaintiff contends that defendants were not aware of his MTI
proposal at the time of his termination, and thus could not have
fired him for his disloyalty. Plaintiff points out that he was
not given an explanation at the time of his termination; that Van
Nostrand states that he was told by several industry agents about
plaintiff's proposal, but cannot name any of them except Bridget
Aschenberg, an agent of International Creative Management; that
Aschenberg has not submitted an affidavit stating that she told
defendants about plaintiff's proposal prior to his termination;
and that there are inconsistencies between Van Nostrand's EEOC
response and the papers that defendants have submitted in this
case. Defendants counter with two affidavits, one by Van Nostrand
and another by Alleen Hussung, the head of Samuel French's
Professional Licensing Department, stating that defendants were
made aware of plaintiff's proposal to MTI before the termination.
Defendants also note that Wallengren's AIDS condition would not
have increased Samuel French's insurance rates, thus discounting
the discriminatory inference of Van Nostrand's alleged statement
concerning Wallengren's illness costing the company money.
Furthermore, defendants argue that the fact that Wallengren
received raises and bonuses after he disclosed his AIDS condition
demonstrates that Van Nostrand did not have the requisite
discriminatory animus. See, e.g., Boyle v. McCann-Erickson,
Inc., 949 F. Supp. 1095, 1104 (S.D.N.Y. 1997) (Batts, J.)
(finding the fact that plaintiff received salary increases on a
regular basis undercut inference of discrimination).
In determining a summary judgment motion, "the court is not to
weigh the evidence, or assess the credibility of witnesses, or
resolve issues of fact," Rodriguez v. City of New York,
72 F.3d 1051, 1061 (2d Cir. 1995) (collecting cases), and must draw all
factual inferences in favor of the non-moving party, viewing the
factual assertions in the affidavits, depositions, and exhibits
in the light most favorable to the non-moving party. See id. At
the same time, a party may not "rely on mere speculation or
conjecture to overcome a motion for summary judgment." Quarles
v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
While the question is a close one, the court concludes that
summary judgment is inappropriate. Although plaintiff's
disloyalty would have been grounds for immediate termination, it
remains a question for the jury to determine whether defendants
did indeed know about the MTI proposal at the time. This
determination will essentially turn on an assessment of
credibility. Defendants claim that they had knowledge of
plaintiff's disloyalty, and that plaintiff is merely speculating
that they did not. However, given the lack of a contemporaneous
written notice explaining the reason for plaintiff's termination
and plaintiff's sworn testimony regarding the alleged
discriminatory treatment he received after the disclosure of his
AIDS condition and Van Nostrand's comments that, if said, reflect
discriminatory animus,*fn3 a reasonable jury could infer that
defendants' assertions regarding their knowledge of the MTI
proposal prior to the termination are false, and that Van
Nostrand decided to fire plaintiff because of his disability.
Summary judgment is therefore improper.
As there is "no difference between the quantum or elements of
proof required by the ADA and the NYSHRL," Mohamed v. Marriott
Int'l, 905 F. Supp. 141, 156 (S.D.N.Y. 1995) (Sweet, J.), summary
judgment is also denied with regard to plaintiff's state claim.
For the foregoing reasons, defendants' motion for summary
judgment is denied. Parties are to submit a Joint Pretrial Order
by March 5, 1999.
IT IS SO ORDERED.