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October 26, 1999


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


Plaintiff Deborah Marks brings this action claiming illegal gender discrimination and retaliation. Specifically, plaintiff alleges that she was denied a promotion because her employer applied weight standards to women but not to men, and that she was later fired for complaining about discrimination. Plaintiffs Amended Complaint asserts claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII"), New York Exec. Law § 296,*fn1 New York Civil Rights Law § 40-c,*fn2 and New York City Admin. Code §§ 8-107 and 8-502 et seq.*fn3

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant now moves for summary judgment. For the reasons discussed below, defendant's motion is granted.


Marks's immediate supervisor at NCA was her manager, John Fortgash ("Forta gash"). See PI. 56.1 Stmt. at ¶ 4; Am.

Compl. at ¶ 10; Marks Dep. at 29-30. Marks's work performance was also oveseen by Scott Chase ("Chase"), NCA Senior Manager, and Richard McGuire ("McGuire"), NCA Vice President "for Telemarketing. See P1. 56.1 Stmt. at ¶ 5; Am. Compl. at ¶ 5; Marks Dep. at 30. Her supervisors generally agreed that she was a productive telemarketer, but found her difficult to work with. See Def. 56.1 Stmt. at ¶ 11; McGuire Decl. at ¶ 5. Marks had frequent disputes with Chase, which McGuire had to mediate. See Def. 56.1 Stmt. at ¶ 13; McGuire Decl. at ¶ 12. Specifically, Marks often complained about NCA's procedures for distributing "leads" among the telemarketers (the "lead procedures") and accused co-workers of stealing her "leads." See Def. 56.1 Stmt. at ¶ 14-16; McGuire Decl. at ¶ 3; see also Marks Dep. at 71.

On numerous occasions, Marks requested that she be appointed to the position of sales representative. See P1. 56.1 Stmt. at ¶ 6; Am. Compl. at ¶ 11; Marks Dep. at 30; see also Def. 56.1 Stmt. at ¶ 19. On February 4, 1994, Marks learned from Selena Thomas ("Thomas") that NCA had denied Marks's request for promotion and had instead appointed Thomas to the position. See P1. 56.1 Stmt. at ¶ 7; Marks Dep. at 159. Marks claims that Thomas told her that McGuire had remarked to Thomas that Marks would have received the promotion as well, if Marks had lost weight. See P1. 56.1 Stmt. at ¶ 7; Marks Dep. at 159. During her tenure as a telemarketer for NCA, Marks weighed approximately 270 pounds. See P1. 56.1.Stmt. at ¶ 3; Marks Dep. at 17.

Thereafter, Marks complained to McGuire and Chase that the decision had been unjust and unfair, because she had been the best telemarketer in the company; and had just been named "Telemarketer of the Year." See P1. 56.1 Stmt. at ¶ 8; Marks Dep. at 159. According to Marks, McGuire replied: "Deb, I've told you, outside sales, presentation is extremely important. Lose the weight and you will get promoted." Marks Dep. at 161. Chase allegedly told her "[t]o lose the weight and that was important for outside sales because you were-you weren't just on the telephone, you were going around from person to person and therefore presentation was extremely important." Id.

Following these conversations, between February 4 and February 9, 1994, Marks had numerous discussions with other employees about the alleged discrimination against her. See P1. 56.1 Stmt. at ¶ 12; Marks Dep. at 82, 84, 165-68. During that period, according to Marks, there was "general talk" in the telemarketing department that Thomas had been promoted instead of Marks because Thomas was "thin and cute." P1. 56.1 Stmt. at ¶ 13; Marks Dep. at 70. Marks contends that the terms "thin" and "cute" "apply specifically to women and their use reflects a stereotyped focus on physical appearance wh[ere] female employees in positions of importance are concerned." P1. 56.1 Stmt. at ¶ 14.

Later that afternoon, Marks spoke by telephone with two co-workers, Chase Warren ("Warren") and John Reynolds ("Reynolds"), about the incident. See Def. 56.1 Stmt at ¶ 33. In both conversations, which she taped, she stated that she was not planning to go back to work because she refused to continue working for Chase. See Def. 56.1 Stmt, at ¶ 33-34; Warren Tape Tr. at 3; Reynolds Tape Tr. at 1-2. She told Reynolds that she had already scheduled five job interviews and had consulted a lawyer that afternoon. See Reynolds Tape Tr. at 6-8.

The next day, Marks telephoned Chase, and also taped that conversation. See Def. 56.1 Stmt. at ¶ 38-41; Chase Tape Tr. at 1-20. During their discussion, Chase announced to Marks that she was being suspended for one week; Marks responded that she would rather be fired so that she could collect unemployment benefits. See Def. 56.1 Stmt, at ¶ 39; Chase Tape Tr. at 1, 17-19; Marks Dep. at 107-10. In her Statement pursuant to Local Rule Civil 56.1, Marks states that "immediate termination was preferable to suspension without pay ... because the latter meant no money at all during the period of suspension and further jeopardized future prospects for such benefits or for other employment insofar as [I] was being asked to agree with the pretextual grounds given for [my] suspension." P1. 56.1 Stmt, at ¶ 20; see also Marks Dep. at 107-10, 189. Although Chase tried to persuade Marks to accept the suspension and return to work the following week, Marks persisted in her demand to be fired. See Def. 56.1 Stmt, at ¶ 40; Chase Tape Tr. at 17-20. After consulting with McGuire, and after warning Marks to "learn when to stop talking ... because you're getting real close to making the final decision here that I don't want to make unnecessarily, " Chase notified her that she was fired. See P1. 56.1 Stmt, at ¶ 22; Def. 56.1 Stmt, at ¶ 41; Chase Tape Tr. at 19; McGuire Decl. at ¶ 8.

Marks subsequently filed a timely complaint with the Equal Employment Opportunity Commission ("EEOC"), which on August 28, 1995, dismissed her complaint, stating that it had been "unable to conclude that the information obtained establishes violations of the statutes." Def. 56.1 Stmt., Northey Decl., Ex. A. The EEOC issued Marks a right-to-sue letter, and on November 11, 1995, she filed the instant action. Marks claims that NCA refused to promote her because it applied more stringent weight and attractiveness standards to women than to men. She maintains that NCA's employment decisions were based upon "improper and discriminatory stereotypes of what it deemed to be the acceptable' appearance of a female in a position of importance at NCA." Am. Compl. at ¶ 26.*fn5 Marks also alleges that her suspension and termination were motivated by a desire to punish her "for complaining to other employees about her discrimination." P1. 56.1 Stmt. at ¶ 23.*fn6


I. - Standard for Summary Judgment

A moving party "is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental Inc., 95 F.3d 123, 128 (2d Cir.1996): The moving party bears the burden of demonstrating that no genuine issue of material facts exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

In deciding a motion for summary judgment, the Court's function is not to try issues of fact,*fn7 but instead to determine whether there remain any such issues to try. See Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In doing so, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Holt, 95 F.3d at 129. However, the substantive law governing the case will identify those facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

"A "genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party." Dister, 859 F.2d at 1112 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). 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). "Mere speculation or conjecture" will not suffice, see Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990), nor will "reliance on unsupported assertions," Goenaga, 51 F.3d at 18. Rather, the nonmoving party must provide "concrete evidence from which a reasonable juror could return a verdict in [her] favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

II. Plaintiff's "Gender Plus" Claims

Marks has based her discrimination claims on a theory of "gender plus" discrimination. In short, she contends that NCA refused to promote her to the position of sales representative on the basic of a characteristic it would not have considered were she of the opposite gender: physical appearance (specifically, her weight).

Under Title VII, it is unlawful "for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). The statute has been read to encompass discriminatory failures to promote. See, e.g., Brown v. Coach Stores, Inc., 163 F.3d 706, 709-10 (2d Cir. 1998).

The Supreme Court first recognized "gender plus" discrimination in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 329 (1971) (per curiam). The Phillips Court held that Title VII does not "permit[] one hiring policy for women and another for men." Phillips, 400 U.S. at 544, 91 S.Ct. 496. Unless the condition in question is a "bona fide occupational qualification" under 42 U.S.C. § 2000e-2 (e), see Phillips, 400 U.S. at 544, 91 S.Ct. 496, an employer may not "treat men characterized by [the] additional characteristic more or less favorably than women with the same added characteristic." Martimez v. N.B. C., Inc., 49 F. Supp.2d 305, 310 (S.D.N.Y. 1999). In particular, an employer may not apply different appearance standards to men and women based on gender stereotypes. See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862-863 (3d Cir. 1990) (Becker, J.) ("Undue preoccupation with what female employees look like is not permissible under anti-discrimination laws if the same kind of attention is not paid to male employees."); see also EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981) (ruling that a requirement that female employees wear revealing clothing constituted gender discrimination).

As in Phillips, in which 75 to 80 percent of those hired for the position at issue were women, see Phillips, 400 U.S. at 544, 91 S.Ct. 496, there is no serious question of any general bias at NCA against hiring women, see Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir. 1995) ("Fisher I "), reh'g, 114 F.3d 1332 (2d Cir. 1997) (en banc) ("Fisher II "), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998), reh'g denied, 523 U.S. 1041, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998). In fact, it is undisputed that NCA ultimately selected a woman, Selena Thomas, for the promotion. In a "gender plus" case, however, the fact that the NCA hired someone of the same gender as the plaintiff does not itself defeat an otherwise legitimate inference of discrimination. See Trezza v. The Hartford, Inc., No. 98 Civ. 2205, 1998 WL 912101, at *6 (S.D.N.Y. Dec.30, 1998). The Second Circuit has recognized that discrimination against an individual based on gender "plus" another characteristic, such as marital status, see Fisher I, 70 F.3d at 1432-38, may serve as the basis for a Title VII action. Moreover, although the Second Circuit has not directly addressed the issue, cosmetic weight regulations have been held to violate the statute. See, e.g., Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en banc); Laffey v. Northwest Airlines, Inc., 374 F. Supp. 1382 (D.D.C. 1974), affid in part, vacated in part on other grounds, 567 F.2d 429 (D.C.Cir. 1976).

There is nothing to suggest that discrimination based on weight, when practiced against one sex but not the other, should not constitute a violation of Title VII. Although an employer may, when selecting its employees, take into consideration weight or other physical characteristics, see, e.g., Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997), it may not impose weight requirements on women but not men, *fn8 or vice versa. Therefore, if Marks can prove that NCA maintained different weight standards for women than it used for men, 8 whether explicit or not, she will have satisfied her burden of proving "gender plus" discrimination. Still, discrimination based on weight alone, or on any other physical characteristic for that matter, does not violate Title VII, unless issues of race, religion, sex, or national origin are intertwined.

Title VII claims of discrimination, and particularly allegations of failure to promote must be analyzed under the threepart burden shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 ...

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