Records, Inc., 887 F. Supp. 560, 564 (S.D.N.Y. 1995). In the
absence of any disputed material fact, summary judgment is
II. The Legal Standards Governing Title VII Claims
A. Race Discrimination
As the Second Circuit has explained, the "ultimate issue" in
any employment discrimination case is "whether the plaintiff has
met her burden of proving that the adverse employment decision
was motivated at least in part by an `impermissible reason.'"
Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir.
Title VII makes it unlawful "for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race ."
42 U.S.C. § 2000e-2(a)(1).
The basic framework for Title VII discrimination claims is the
three-step burden shifting analysis developed in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under
McDonnell, the plaintiff has the initial burden of establishing a
prima facie case of unlawful race discrimination by showing that
the plaintiff is: (1) a member of a protected class, (2) who was
qualified for his position, (3) who suffered an adverse
employment action, (4) under circumstances giving rise to an
inference of discrimination. See McDonnell, 411 U.S. at 802;
Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998);
see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993). The requirements for establishing a prima facie case are
not onerous. See Hicks, 509 U.S. at 506; Austin, 149 F.3d at 152.
If a plaintiff makes out a prima facie case, the burden then
shifts to the defendant to articulate a legitimate,
nondiscriminatory purpose for the adverse employment decision.
See McDonnell, 411 U.S. at 802; Austin, 149 F.3d at 153; Woroski,
31 F.3d at 108.
Once the employer articulates such a purpose, the burden shifts
back to the plaintiff to show that the "employer's proffered
reasons are . . . a pretext for discrimination." Austin, 149 F.3d
at 153 (citations omitted). To make this showing, the plaintiff
must demonstrate "both that the [proffered] reason was false, and
that discrimination was the real reason." Hicks, 509 U.S. at 515.
Title VII also provides that "it shall be an unlawful
employment practice for an employer to discriminate against any
of his employees . . . because he has opposed any practice made
an unlawful practice by this subchapter. . . ."
42 U.S.C. § 2000e-3(a). As the Second Circuit has noted, "[t]he objective of
this section is obviously to forbid an employer from retaliating
against an employee because of the latter's opposition to an
unlawful employment practice." Manoharan v. Columbia Univ.
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988). To establish a claim for retaliation pursuant to Title
VII, a plaintiff need not prove that her discrimination claim was
valid in the first instance. See Sumner v. United States Postal
Co., 899 F.2d 203, 208-09 (2d. Cir. 1990).
A prima facie case of retaliation under Title VII requires a
showing that (1) the employee was engaged in an activity
protected under Title VII; (2) the employer was aware of the
plaintiff's participation in the protected activity; (3) there
was an employment action that disadvantaged the plaintiff; and
(4) there was a causal connection between the employee's
protected activity and the adverse action taken by the employer.
See Tomka, 66 F.3d at 1308; Malarkey v. Texaco, Inc.,
983 F.2d 1204, 1213 (2d Cir. 1993); Burrell, 894 F. Supp. at 760. The
requisite causal connection may be established "indirectly by
showing that the protected activity was
closely followed in time by the adverse action." Manoharan,
842 F.2d at 593 (citing Davis v. State Univ. of New York,
802 F.2d 638, 642 (2d Cir. 1986)).
If a plaintiff makes such a showing, the burden then shifts to
the defendant to articulate some legitimate, non-discriminatory
reason for its actions. See Tomka, 66 F.3d at 1308. If the
defendant carries this burden, the plaintiff then has an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were merely a pretext
for retaliation. See Tomka, 66 F.3d at 1308.
Title VII defines protected activities as (1) an employee's
opposition to any activity which is prohibited by Title VII, or
(2) an employee's participation in any Title VII investigation or
proceeding. See Gilani v. National Ass'n of Securities Dealers,
Inc., No. 96 CV 8070, 1997 WL 473383, at *7 (S.D.N.Y. Aug. 19,
1997) (citing Williams v. Boorstein, 663 F.2d 109, 115 (D.C.Cir.
C. Hostile Work Environment
An employer will be liable under Title VII for permitting a
discriminatory hostile work environment, that is, a "workplace
[that is] permeated with discriminatory intimidation, ridicule,
and insult . . . sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (internal references omitted); see Richardson v. New
York State Dept. of Correctional Service, 180 F.3d 426, 436 (2d.
Cir. 1999). "The incidents must be more than episodic; they must
be sufficiently continuous and concerted in order to be deemed
pervasive." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997). Conduct that is "merely offensive, unprofessional or
childish is not discriminatory conduct proscribed by Title VII."
Cosgrove v. Federal Home Loan Bank of N.Y., No. 90 Civ. 6455,
1999 WL 163218, at *20 (S.D.N.Y. Mar. 23, 1999).
Factors to be considered when determining whether an
environment is hostile or abusive include: "the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance." Harris, 510 U.S. at 23.
As with a Title VII claim alleging a discriminatory adverse
employment decision, a plaintiff in a hostile environment case
must demonstrate that there are circumstances giving rise to an
inference of discriminatory intent behind the abusive conduct.
See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
III. Ricks Has Not Presented Triable Issues of Fact With
Respect To Her Claims
A. Disparate Treatment
As explained above, in order to make out a prima facie case of
discrimination through disparate treatment, Ricks has the initial
burden of establishing a prima facie case by showing that she:
(1) is a member of a protected class, (2) who was qualified for
his position, (3) who suffered an adverse employment action, (4)
under circumstances giving rise to an inference of
discrimination. See McDonnell, 411 U.S. at 802; Austin, 149 F.3d
Ricks satisfies the first and third prongs of the McDonnell
test because she is African-American and she was terminated from
her employment. She cannot, however, satisfy either the second or
fourth prongs of the test. Moreover, even if assuming arguendo
she were able to establish a prima facie case, Conde Nast has
articulated a legitimate reason for firing her which Ricks is
unable to rebut.
Although a plaintiff's burden in establishing a prima facie
case is de minimis, she must do more than make conclusory
allegations. With respect to the second prong of the McDonnell
test, then, Ricks
must offer some evidence from which a reasonable fact-finder
could conclude that she was qualified for her position. See
McDonnell, 411 U.S. at 802; Thornley v. Penton Publishing,
104 F.3d 26, 29 (2d Cir. 1997). Ricks acknowledges her prior
lack of experience for the position as well as some of
the specific deficiencies in her performance pointed to by the
defendants. Ricks counters that she was told that she would be
provided training and that it would take six months for her to
become really seasoned. Ricks cannot prove she is qualified by
conceding that she did not have the qualifications for the job
and averring merely that she expected to gain them through
training.*fn1 See Wiseman v. Pratt & Whitney, 46 F. Supp.2d 115,
118 (D.Conn. 1999). Although Ricks alleges that white account
managers were given more training than she was, Ricks fails to
present any evidence on this point. Cf. Kohlbrenner v. Victor
Belata Belting Co., Inc., No. 94-CV-0915E, at *2, 1997 WL 65895
(W.D.N.Y. Feb. 11, 1997) (denying summary judgment to employer in
Title VII discriminatory promotion case where plaintiff offered
evidence of discriminatory training practices).
Finally, Ricks' allegation that she did not receive training is
contradicted by her own admissions as to specific training she
actually received: initially, by accompanying other account
managers on sales calls and being provided with sample letters
and presentations; and, once her performance problems began to be
of concern to her supervisors, by having a supervisor accompany
her on her client visits. Her performance problems continued
despite the training she received.
Nor can Ricks show that the circumstances of her termination
give rise to an inference of discrimination. Although she alleges
that she was treated differently and more harshly than poorly
performing white account managers in that she was required to
develop a "working agreement" and in the fact that she was
terminated for poor performance, the record does not support
these contentions. There were white account managers who, like
Ricks, had been required to prepare a "working agreement" due to
their performance problems. Ricks was also not the only employee
fired for performance problems. Rosenberg, a white female, was
fired several months after Ricks. Wirth, a white male, agreed to
Furthermore, even assuming arguendo that Ricks could make out a
prima facie case, her claim fails because she cannot show that
the non-discriminatory reason articulated by Conde Nast for
terminating her, i.e., that she failed to perform her job
adequately, was pretextual.
"[W]hen the person who made the decision to fire was the same
person who made the decision to hire, it is difficult to impute
to her an invidious motivation . . . especially when the firing
has occurred only a short time after the hiring." Grady v.
Affiliated Central, Inc., 130 F.3d 553. 560 (2d. Cir. 1997); see
also Phillips v. Merchants Ins. Group, 3 F. Supp.2d 204, 209-10
(N.D.N.Y. 1998) (hiring and firing by same person within two-year
period gave rise to inference that motive was not
discriminatory). The record shows that Golinkin, as publisher of
the Magazine, was the person with ultimate responsibility both
for hiring and firing Ricks, which Golinkin did within a period
of just three months. The fact that other persons were involved
at certain steps of this process — for example, Krumholz
screening interview — does not change this fact. Thus, the
facts of this case give rise to an inference, not of discrimination,
but of nondiscrimination. See Grady, 130 F.3d at 560.
Second, Ricks fails to rebut the evidence offered by Conde Nast
in support of its articulated reason for firing her, including
evidence of specific incidents of poor performance and negative
performance evaluations during her employment. Ricks attempts to
counter this evidence by asserting that she was not properly
trained, that her evaluations were unfair, or that her
performance was satisfactory. As discussed above, the argument
that she was not provided training is belied by the record, and
she provides no evidence in support of her contention that others
were provided with more.
The record also fails to support Ricks' assertion that her
evaluations were "subjective and arbitrary". For example, she
acknowledges failing to adequately articulate the magazine at a
sales meeting to which she and Krumholz both went, but asserts
that she was judged unfairly because she was not given notice
that she would have to make the presentation while white account
managers were given such notice. She offers no evidence, however,
of differential treatment. It cannot be said that she has created
a triable issue of fact as to whether her employer's expectations
were in bad faith. See Thornley, 104 F.3d at 29-30.
At times Ricks also contends that in fact she did perform her
job satisfactorily. This was also the essence of her October 7
memo in response to her final notice. The mere fact that an
employee disagrees with her employer's assessments of her work,
however, cannot standing on its own show that her employer's
asserted reason for termination was pretextual. See Taylor v.
Records, No. 94 CIV. 7689, 1999 WL 124456, at *10 (S.D.N.Y. March
8, 1999) (plaintiff's attempt to rebut employer's explanation "by
parsing the details of selected incidents, generally disputing
her supervisors' assessments, and providing her own contrary
appraisal of her work, is unavailing" in showing firing was
Thus, for all the reasons discussed above, Ricks has failed to
raise a triable issue of fact with respect to her claim that her
termination was discriminatory.
In order to make out a prima facie case of retaliation, as set
forth above, Ricks must show that: she was engaged in a protected
activity; her employer was aware of his activity; she was subject
to an adverse employment action; and there was a causal
connection between her protected activity and the adverse action.
See Tomka, 66 F.3d at 1308.
On September 12, 1997, Ricks' attorney sent a letter to
Krumholz alleging that Ricks' civil rights had been violated on
the job and asserting that legal action would be taken if this
conduct continued. On September 26, she filed a charge with the
EEOC. These activities are protected under Title VII. See
Manoharan, 842 F.2d at 593. It is undisputed that the employer
knew of them, nor does Ricks need to show that her discrimination
claim was itself valid. See Sumner, 899 F.2d at 208-09.
Ricks cannot establish a causal connection between these
activities and her termination, however, because prior to her
attorney's letter Conde Nast had taken clear steps towards Ricks'
termination. First, on August 26 Ricks was put on oral warning
that she would be terminated within six weeks if her performance
did not improve. Then, on September 4, she was given a written
performance review which notified her that she would be
terminated with 30 days if she did not improve. Thus, the
temporal sequence of this case cannot give rise to an inference
that her firing was caused by her complaints.*fn3 Nor
is there other evidence supporting such an inference.
C. Hostile Environment
As discussed above, in order to sustain a hostile environment
claim, a plaintiff must show that her workplace is "permeated"
with discriminatory conduct that is "sufficiently severe or
pervasive to alter the conditions of the victim's employment and
create an abusive working environment." Harris, 510 U.S. at 21.
Title VII requires more than a merely "episodic pattern" of
offensive, discriminatory conduct. Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1189 (2d. Cir. 1987); see also Shabat v. Blue
Cross Blue Shield of the Rochester Area, 925 F. Supp. 977, 982-83
(W.D.N.Y. 1996). Nor does an offensive touching necessarily
create a hostile environment, where it consists of an isolated
incident of relatively minor severity. See Babcock v. Frank,
783 F. Supp. 800, 809 (S.D.N.Y. 1992).
Ricks alleges the following offensive statements and act of
offensive touching as creating a hostile work environment. The
statements are: Krumholz's reference to Ricks as "a bug" who was
going to get "squashed"; Krumholz's statement that Ricks was "a
nuisance . . . [who was] wearing down the carpet" outside
Golinkin's office; Krumholz's statement that "either she
[Krumholz] or someone else was going to rip [Ricks] a new a
— hole"; and Golinkin's statement that Ricks' hair was
"different than everybody else's". The offensive touching
occurred when Cohen allegedly hit Ricks on the shoulder and
pushed her out of her office.
The abusive conduct alleged by Ricks was not overtly directed
at her because of her race.*fn4 Ricks also alleges, however,
that Krumholz did not speak to other account managers "in the
same manner" as she did Ricks, and that Cohen did not hit other
account managers. "Direct comparative evidence" as to how an
alleged harasser treated both the plaintiff and those who were
not part of the plaintiff's protected group is an acceptable form
of evidence as to intent in a hostile environment claim. Oncale,
523 U.S. at 80-81; see also Mitchell v. FAB Industries Inc.,
990 F. Supp. 285, 293 (S.D.N.Y. 1998). The plaintiff must still show,
however, that the offensive conduct actually constituted
discrimination because of race. See Oncale, 423 U.S. at 81. In
this case, the sole evidence offered as to intent by Ricks is
that she was treated differently than the non-African American
account managers. It is a question whether or not standing alone
this is sufficient. Even if it is presumed that it would be,
however, Ricks' claim nonetheless fails because the conduct she
alleges is not sufficiently severe as to give rise to a Title VII
Ricks has alleged incidents which must have been offensive and
unpleasant. However, the verbal incidents were episodic in nature
rather than pervasive, and the sole physical incident was both
isolated and of a relatively minor nature. Nor is Ricks' claim
bolstered by her contention that part of the harassment she
experienced included other forms of unfair treatment, such as
discriminatory performance evaluations. As already discussed
above, Ricks has not offered evidence giving rise to an inference
of discrimination in her performance evaluations or other
treatment on the job. Thus, the record reveals that her hostile
work environment claim is not sustainable.
IV. An At Will Employee May Assert Section 1981 Claims
This Court has held that claims of an at-will employee for
discrimination are proper under Section 1981 for the reasons set
forth in Equal Employment Opportunity Commission v. Die
Fliedermaus, L.L.C., 77 F. Supp.2d 460, 469-70 (S.D.N.Y. 1999).
In this case, however, Ricks' claims under Section 1981 are
dismissed because, just as she has failed to create a triable
issue of fact with respect to her Title VII claims, so she has
failed to do with respect to her Section 1981 claims. See Humprey
v. Council of Jewish Federations, 901 F. Supp. 703, 710-11
For the reasons stated herein, the motion for summary judgment
is therefore granted.
It is so ordered.