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MARKS v. NATIONAL COMMUNICATIONS ASSOCIATION
October 26, 1999
DEBORAH MARKS, PLAINTIFF,
NATIONAL COMMUNICATIONS ASSOCIATION, INC., DEFENDANT.
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.
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
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.
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