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September 15, 1999


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


Plaintiff Weishao "Sherry" Meng ("plaintiff' or "Meng") brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") alleging wrongful termination based on her race/national origin (Chinese) and quid pro quo and hostile work environment sexual harassment. Plaintiff also alleges claims under the New York State Human Rights Law, N.Y. Executive Law § 290, et seq., the New York City Human Rights Law, N.Y.C. Administrative Code § 8-107, et seq., and New York common law. She has sued both her immediate employer, Ipanema Shoe Corporation ("Ipanema"), and Ipanema's parent corporation, Sumitomo Corporation of America ("Sumitomo") (collectively, "defendants").

Defendants have moved for partial summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure on the following grounds:*fn1 (1) that plaintiff's wrongful termination claim must be dismissed because plaintiff has not provided sufficient proof that her termination was based on unlawful discrimination; (2) that plaintiff's pay raise and promotion claims are untimely and must be dismissed; and (3) that defendants are insulated from liability on plaintiff's hostile work environment claim under the Faragher/Ellerth affirmative defense; and (4) that Sumitomo must be dismissed because Ipanema and Sumitomo cannot be considered a single employer for purposes of Title VII. For reasons to follow, defendants' motion is granted in part and denied in part.


A. Summary Judgment Standard

Federal Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). Therefore, the moving party has the initial burden of demonstrating the absence of a material factual issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must review the opposing evidence in a light most favorable to the non-moving party and draw all factual inferences in that party's favor. Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial" to defeat the motion. Fed.R.Civ.P. 56(e). See also Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. At this stage, the non-moving 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A Title VII plaintiff cannot defeat summary judgment by asserting conclusory allegations of discrimination unsupported by evidence. Kerzer, 156 F.3d at 400 (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)) (conclusory allegations, conjecture and speculation are insufficient to create a genuine issue of material fact).

Summary judgment should be used cautiously in employment discrimination cases "where, as here, the employer's intent is at issue." Kerzer, 156 F.3d at 400 (citing Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994)); Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988) ("summary judgment is ordinarily inappropriate in a Title VII action where a plaintiff has presented a prima facie case"). Nevertheless, a plaintiff must offer "concrete evidence from which a reasonable juror could return a verdict in his favor, . . . and is not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (internal quotations omitted). Indeed, the "summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive, and harassing trials — apply no less to discrimination cases that to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). This is particularly so where discovery has taken place. Dister, 859 F.2d at 1114.

B. Plaintiff's Wrongful Termination Claim

1. Plaintiff's Prima Facie Case

Plaintiff began working for Ipanema in April 1995 and became a customer service representative shortly thereafter. See Revised Affidavit of Rene M. Johnson (defendants' attorney) in Support of Defendants' Motion for Summary Judgment, sworn to on July 16, 1999 ("Johnson Aff.") Ex. B at 12, 23 [Deposition of Weishao Meng]. Ipanema is in the business of selling shoes by placing customer orders directly with shoe manufacturers and by acting as agents for customers. Revised Affidavit of Seiji Itoshima, sworn to on July 16, 1999 ("Itoshima Aff.") ¶¶ 27, 28 In 1997, Ipanema's financial performance was poor. Id. ¶ 51. As a result, in early 1998, Ipanema decided to reduce its workforce as part of a plan to cut costs. Id. ¶¶ 52, 57, 59. In February 1998, Mr. Itoshima, Ipanema's Executive Vice President and Treasurer, met with the heads of Ipanema's various departments and informed them of the intended reduction in workforce. Id. ¶ 58. At that time, Josef Zajdel, Vice President — Marketing Services, was in charge of the customer service department where plaintiff worked. Mr. Itoshima asked Mr. Zajdel which customer service representatives could be laid off. Id. Mr. Zadjel then discussed whom to lay off with Maria Acevedo, the General Manager of Customer Service. Id. ¶ 60. Shortly thereafter, Mr. Zajdel and Ms. Acevedo selected Ms. Meng as one of the employees to be terminated. Id. ¶ 62.

According to Mr. Itoshima, Ipanema chose those "individuals whose positions were not essential or duplicative. [Ipanema] tried to select those individuals whose departures would have the least effect on Ipanema's day to day activities, and whose workloads could be absorbed by remaining employees." Id. ¶ 64. Seniority was not considered. Id. ¶ 65. On March 31, 1998, Ms. Meng was laid off, id. ¶ 70, primarily because her work could be easily absorbed by Ms. Acevedo.*fn2 Id. ¶ 73.

Plaintiff claims that she was not laid off for legitimate business reasons but that she was discriminated against because she is Chinese. Meng Aff. ¶¶ 14-16. In support of this claim, she points to the deposition testimony of Josef Zajdel. During his deposition, Mr. Zajdel was questioned about Ms. Meng's ability to handle the receptionist function.*fn3 Declaration of Steven A. Rosen (plaintiff's attorney), sworn to on July 28, 1999 ("Rosen Decl.") Ex. 3 at 125 [Deposition of Josef Zajdel]. In response, he stated that some of Ms. Meng's customers had difficulty understanding her at times. Id. at 126. He also stated that it was not an "earth-shattering problem" and that to the best of his recollection the complaints were, in all likelihood, lodged more than a year before plaintiff's termination. Id. 126-27. Consistent with his deposition testimony, Mr. Zajdel later stated that "contrary to Ms. Meng's allegations, her accent played no part in my decision, made in connection with Maria Acevedo, to select Ms. Meng for layoff." Zajdel Aff. ¶ 14.

2. Legal Framework

The analytical framework for considering claims alleging wrongful termination under Title VII is well-established.*fn4 See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must present a prima facie case of discrimination. An employee discharged in connection with a reduction in force need not show that she was replaced by someone not in a protected class. Montana v. First Federal Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 104-05 (2d Cir. 1989). Rather, as part of her prima facie case, she must show: (1) that she was a member of a protected class; (2) that she was qualified for the position; (3) that she was discharged; and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination. Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). "If the plaintiff demonstrates a prima facie case, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for terminating the plaintiff." Balut v. Loral Elec. Systems, 988 F. Supp. 339, 348 (S.D.N.Y. 1997), aff'd mem., 166 F.3d 1199 (2d Cir. 1998) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). An employer "`need not persuade the court that it was actually motivated by the proffered reasons' in order to nullify the presumption and obligate the plaintiff to satisfy the burden of proof." Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089). If the employer satisfies this burden, the presumption of discrimination "simply drops out of the picture." Hicks, 509 U.S. at 510, 113 S.Ct. 2742. Then the plaintiff may only prevail if she can show by a preponderance of the evidence that the employer's stated reasons are pretextual. Fisher, 114 F.3d at 1339. "A plaintiff does not win merely by proving the asserted reason to be false; rather, an employer's proffered reason must be false and its real reason unlawful." Balut, 988 F. Supp. at 348 (citing Hicks, 509 U.S. at 515-16, 113 S.Ct. 2742; Fisher, 114 F.3d at 1338-39).

In short, once an "employer has produced evidence of a non-discriminatory rationale for its actions, `the factual inquiry proceeds to a new level of specificity.'" Viola v. Philips Medical Sys. of North America, 42 F.3d 712, 717 (2d Cir. 1994) (quoting Hicks, 509 U.S. at 516, 113 S.Ct. 2742) (summary judgment in employer's favor affirmed where employee failed to present sufficient proof that employer's justification for discharge was pretextual). Accordingly, to "defeat a properly supported motion for summary judgment, plaintiff must `produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more than likely the employee's [race] was the real reason for discharge.'" Id. (quoting Woroski, 31 F.3d at 110).

3. Analysis

Here, plaintiff has presented the elements of a prima facie case. First, it is undisputed that she is a member of a protected class being an Asian woman. Second, she has shown that she was qualified for the position she held in the customer service department. See Plaintiff's Statement of Material Facts in Issue Pursuant to Local Rule 56.1 ("Pl.R.56") ¶ 245 (plaintiff's supervisor, Maria Acevedo, stated that she had no problems with plaintiff's performance on the job). The fact that plaintiff was discharged is uncontested. Plaintiff has also shown that her discharge was under circumstances giving rise to an inference of discrimination. Several factors give rise to such an inference. One is the fact that out of seven employees terminated, four were minorities. Second is the possibility that plaintiff's Chinese accent may have played a part in Ipanema's decision to select her for termination. See Carino v. University of Oklahoma Bd. of Regents, 750 F.2d 815, 819 (10th Cir. 1984) ("A foreign accent that does not interfere with a Title VII claimant's ability to perform duties of the position [she] has been denied is not a legitimate justification for adverse employment decisions.)" Lastly, and most important, is the fact that within a year of plaintiff's termination, Ipanema hired two new employees in their customer service department, at least one of whom is Caucasian. See Rosen Decl. Ex. 2 at 331; Ex. 3 at 167, 170. "The decision to hire replacement employees following a general reduction in the ...

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