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June 1, 1999


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


In a thorough Report and Recommendation dated March 24, 1999 (the "Report"), familiarity with which is assumed, Magistrate Judge Andrew J. Peck recommended that defendant's motion for summary judgment be denied. Defendant has filed objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the Reports to which defendant objects. For the reasons stated below, the Court adopts the Report and its Recommendation.

I. Discussion

The facts of this case are set forth in the Report and need not be repeated here. (See Report at 346-52.)

A. The Legal Framework

1. Standard for Summary Judgment

On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (citations and internal quotation marks omitted). To prevail on a motion for summary judgment, the moving party therefore must show that there are no such genuine issues of material fact to be tried, and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," which includes identifying the materials in the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

Once a motion for summary judgment is made and supported, the non-moving party must set forth specific facts that show that there is a genuine issue to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although a court considering a motion for summary judgment must view all evidence in the light most favorable to the non-moving party, and must draw all reasonable inferences in that party's favor, see Consarc, 996 F.2d at 572, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If, based on the submissions to the court, no rational fact-finder could find in the non-movant's favor, there is no genuine issue of material fact, and summary judgment is appropriate. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The Court must be wary of granting summary judgment in workplace discrimination cases. Because an employer's discriminatory intent will rarely be explicit, the Court must scrutinize the record for evidence of such intent. See Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).

2. Plaintiff's Burden Under the ADEA

The elements of a prima facie claim of age discrimination based upon failure to hire are for the plaintiff to show that she belongs to the protected age group, that she was qualified for the position, that she suffered an adverse employment decision, and that the position was ultimately filled by a younger person. See Petrelli v. City of Mount Vernon, 9 F.3d 250, 254 (2d Cir. 1993) (quoting Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991)); see also Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998).

B. Application of the Burden-Shifting Analysis

There is little dispute that plaintiff has met her burden of demonstrating a prima facie case of discrimination under the ADEA. At the time of her termination, plaintiff was 59 years old. (See Report at 346.) Defendant admits that plaintiff was a good worker with high sales figures. (See id. at 357.) Termination is obviously an adverse employment action. Finally, defendant replaced plaintiff with two individuals, one of whom was in her 20s and the other in her 30s. (See id. at 352.)

The burden therefore shifts to defendant to articulate a legitimate, non-discriminatory reason for its decision to terminate plaintiff. Defendant's stated reason is that plaintiff was causing personnel problems, prompted largely by alleged disagreements between plaintiff between Melissa Frier, a counter business manager who was 27 years old at the time of the events that gave rise to this suit. As Frier explained: "I observed [plaintiff] going to other counters, and from afar, looking at me and sometimes even pointing at me, pointing, showing another person at another counter like, `Oh, look that's Melissa'. . . ." (Id. at 349.) When one of defendant's account executives, Stacey Hubbell, investigated the problem, she found that, "[Plaintiff] would discuss Melissa with the other girls at the counter . . . instigating little problems. Just as I said, they wouldn't stand near her. They would stand together and whisper. I mean real childish behavior." (Objections at 4.) Another employee of defendant stated that she observed that:

  I observed them shying away from me now, it was no
  longer cool to be, you know, a team member with me
  anymore, in other words. They had been very
  cooperative in the morning and been team members with
  me and maybe they were humoring me, but I took that
  as being cooperative and all of a sudden they became
  frightened and kind of moved away. So I could see
  that Marie was a big influence on them.

(Id. at 6.)

The proffered justification for plaintiff's removal is, to say the least, extremely vague. The Report appears to have concluded that defendant articulated a legitimate, non-discriminatory reason for plaintiff's termination. The Court notes that in those cases in which courts have found defendants to have proffered a legitimate non-discriminatory reason for the adverse employment action, that reason has been more substantial than conclusory assertions that plaintiff instigated a whisper campaign. See, e.g., Hollander v. American Cyanamid Co., 172 F.3d 192, 1999 WL 170733, at *2 (2d Cir. Mar. 29, 1999) (plaintiff left a "`trail of wreckage'" and operated like a "`one man gang'"); Raskin v. Wyatt, 125 F.3d 55, 58 (2d Cir. 1997) (proffered reason was that plaintiff was "`arrogant,' `venal,' `a bully,' and `power crazy'").

Even assuming that defendant has proffered a legitimate, non-discriminatory reason, the Court concludes, as did the Report, that plaintiff offered sufficient evidence of discriminatory animus behind the decision to terminate her to cast doubt on defendant's stated reason. (See Report at 360-64.) Defendant's proffered justification must be evaluated in light of plaintiff's assertions of repeated discriminatory comments. These comments include statements by Frier that she "needed to surround herself with younger people," that she could not "relate to [plaintiff] because she's old," that plaintiff was "too old for this business," that plaintiff and others "were all a bunch of old bitches," that, "[o]ld people should not be in this business," and, following plaintiff's termination, that she was "glad that old bitch [was] out of the store." (Id. at 348.) A rational trier of fact could find that these comments indicated that the real reason for plaintiff's termination was that certain of defendant's employees, or affiliated personnel, harbored an animus against plaintiff based on her age.

Finally, defendant also relies on plaintiff's alleged failures to ring up a sale at her counter, or to provide Frier with a chance to ring up a sale on one specific occasion. (See id. at 360-64.) Because the validity of these claims rests on factual determinations as to how busy the store was at that particular time, whether defendant's employees were available to ring up sales, and whether plaintiff made a good faith effort to ensure that one of defendant's employees rang up the sale, there are genuine issues of material fact that preclude summary judgment.

II. Conclusion

For the reasons stated above, the Court adopts the Report and its Recommendation in full. Defendants' motion for summary judgment is denied. [Doc. No. 28] The parties shall continue to prepare for trial on the schedule previously ordered by the Court.



Plaintiff Marie J. Weber has asserted claims of age discrimination against Parfums Givenchy, Inc., pursuant to the Age Discrimination in Employment Act, 42 U.S.C. § 621-31, and the New York City Human Rights Laws, N.Y.C. Admin. Code § 8-107, as a result of her termination by Parfums Givenchy on May 15, 1995 when she was 59 years old. Parfums Givenchy has moved for summary judgment.

For the reasons set forth below, defendant's summary judgment motion should be denied because genuine issues of material fact exist as to whether Parfums Givenchy's proffered reasons for Weber's termination were a pretext for discrimination.


Weber's Employment with Givenchy

Plaintiff Marie Weber was born on September 25, 1935. (Weber Dep. at 6.) In January 1992, at age 56, Weber was hired as a promotional model for Parfums Givenchy ("Givenchy") at Macy's Herald Square. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 5; Weber Dep. at 58-59; Hubbell Dep. at 39-41.) Givenchy is a New York corporation that sells fragrances and beauty products in department stores such as Macy's. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 1.)

Stacey Hubbell was the Givenchy account executive for Macy's account. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 2; Hubbell Dep. at 13.) Hubbell reported to Janet Bachman, Givenchy's field sales manager, sometimes referred to as regional manager. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 2; Hubbell Dep. at 13.) Hubbell was born in June 1967 and Bachman was born in December 1956, and, at the time Weber was fired from Givenchy in May 1995, they were 27 and 38 years old, respectively. (Weber Supp. 56.1 Stmt. ¶ 12(a)-(b); Hubbell Dep. at 5; Rosenthal Aff. Ex. C: Givenchy Int. Ans. at p. 2.)

It is undisputed that during her employment with Givenchy, Weber was considered a "very good sales rotator" (Hubbell Dep. at 52) and a "wonderful employee" (Hubbell Dep. at 69-70) who produced "great [sales] figures" (Bessemer Dep. at 40). (See Givenchy Reply Br. at 6.) Based on her good performance, Givenchy accorded Weber a discretionary raise in March 1995. (Weber Supp. 56.1 Stmt. ¶ 19(s); Hubbell Dep. at 66.)

Givenchy fired Weber on May 15, 1995, when she was 59 years old. (Givenchy 56.1 Stmt. ¶ 20; Weber Supp. 56.1 Stmt. ¶¶ 19(r), 20; Weber Dep. at 15.)

The Givenchy Counter at Macy's

When Weber started to work as a Givenchy promotional model in 1992, Givenchy had a very small display case at Macy's. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 7; Weber Dep. at 64.) At that time, the counter was staffed by only one Macy's salesperson Lucille Scorzelli, who acted as the "counter manager." (Weber Supp. 56.1 Stmt. ¶ 12(c); Hubbell Dep. at 28-29.) Scorzelli was born in May 1944. (Scorzelli Dep. at 10.) As business increased at the counter, Andrea McBean was hired in 1994 as a second Macy's salesperson at the Givenchy counter. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 7; Weber Dep. at 69.) By early 1995, the Givenchy counter had become very successful, and Macy's offered Givenchy a larger and better-located counter. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 8; Weber Dep. at 64-65; Kundar 1/11/99 Aff. Ex. 49.) As a result, Givenchy decided to hire a counter business manager. (Givenchy 56.1 Stmt. ¶ 8; Weber Supp. 56.1 Stmt. ¶¶ 8, 12(d); Kundar 1/11/99 Aff. Ex. 49.)

Weber did not want this new position, but Scorzelli did. (Givenchy & Weber Supp. 56.1 Stmt. ¶ 12; Weber Dep. at 115; Hubbell Dep. at 29-30.) Givenchy considered Scorzelli for the position, but Hubbell concluded that she was not a "team player" and "was not the right person for that job," despite the fact that she had just received her best performance evaluation. (Weber Supp. 56.1 Stmt. ¶ 12(e); Hubbell Dep. at 28-30; Scorzelli Dep. at 137-38.) According to Weber, after Scorzelli was turned down for the business manager position, Bachman stated in front of Weber and Hubbell that Scorzelli was not qualified for the position because "she's a grandmother and she'[s] too old." (Weber Supp. 56.1 Stmt. ¶ 12(f); Weber Dep. at 117.) Hubbell denied that Bachman made this statement. (Hubbell 2/8/99 Aff. ¶ 9.)

The Hiring of Melissa Frier as Business Manager*fn1

Frier soon expressed interest in the open business manager position and, by mid-March 1995, was hired for the position. (Givenchy & Weber Supp. 56.1 Stmt. ¶¶ 11-12.) Frier began working in this position on March 29, 1995, only a couple of weeks after Weber received a discretionary raise. (Weber Supp. 56.1 Stmt. ¶¶ 12, 16(g); ...

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