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
The facts of this case are set forth in the Report and need
not be repeated here. (See Report at 346-52.)
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.
2. Plaintiff's Burden Under the ADEA
The Supreme Court has developed a burden-shifting analysis in
the context of Title VII claims, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that
is equally applicable to ADEA claims. See Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir.
1997) (en banc); Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d
Cir. 1994). The ADEA prohibits any refusal to hire or discharge
any individual because of that individual's age. See
29 U.S.C. § 623(a)(1). The protected class under the
statute are employees over 40 years old. See id. § 631(a). Under
the burden-shifting analysis in the context of the ADEA, the
plaintiff must first make out a prima facie case of
discrimination. Should the employer articulate a legitimate,
nondiscriminatory reason for its actions, the burden then shifts
back to the plaintiff to prove that the employer's stated reason
is a pretext for discrimination. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993). Once the defendant has articulated a non-discriminatory
reason, "the plaintiff's admissible evidence must show
circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant's employment decision
was more likely than not based in whole or in part on
discrimination." Stern v. Trustees of Columbia Univ.,
131 F.3d 305, 312 (2d Cir. 1997).
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
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.
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.
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
REPORT AND RECOMMENDATION
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
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.
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. ¶
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); ...