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MENG v. IPANEMA SHOE CORP.
September 15, 1999
WEISHAO "SHERRY" MENG, PLAINTIFF,
IPANEMA SHOE CORPORATION AND SUMITOMO CORPORATION OF AMERICA, DEFENDANTS.
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")
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.
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
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).
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