D. The Equal Pay Act Claim
To state an equal pay claim under the EPA or Title VII,
plaintiff must show that: "i) [her] employer pays different
wages to employees of the opposite sex; ii) the employees
perform equal work on jobs requiring equal skill, effort, and
responsibility; and iii) the jobs are performed under similar
working conditions." See Tomka v. Seiler Corp., 66 F.3d 1295,
1310 (2d Cir. 1995). Equal pay claims are generally analyzed
according to the same standards under both the EPA and Title
VII, although to succeed on a Title VII claim, the plaintiff
must also produce evidence of a discriminatory animus. Id. at
Defendant contends that plaintiff has failed to make out a
prima facie case on her equal pay claim, primarily because
plaintiff has offered no admissible evidence to as to which male
marketing associates were paid more than she was and how those
male marketing associates performed equal work on jobs requiring
equal skill, effort and responsibility, or how their jobs were
performed under similar working conditions.
After reviewing the record and drawing all inferences in
plaintiffs favor, I find that she has not established a prima
facie case on her equal pay claim. Although there may have been
some similarities between her duties and those of others, "jobs
which are `merely comparable' are insufficient to satisfy a
plaintiffs prima facie burden." Tomka, 66 F.3d at 1310
(emphasis added). Instead, the two positions must be
"substantially equal." Lambert v. Genesee Hosp., 10 F.3d 46,
56 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S.Ct.
1612, 128 L.Ed.2d 339 (1994). Although "the test is one of
substantiality, not entirety, . . . in EPA cases `[t]he standard
for determining whether jobs are equal in terms of skill,
effort, and responsibility is high.'" Mulhall v. Advance
Security, Inc., 19 F.3d 586, 592 (11th Cir.) (quoting Waters
v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799
(11th Cir. 1989)), cert. denied, 513 U.S. 919, 115 S.Ct. 298,
130 L.Ed.2d 212 (1994). Plaintiff has not met her burden of
showing substantial equality.
With respect to plaintiffs unauthenticated notes, at best,
they merely reflect her own speculations that the duties of
others, namely "Bob Zwick" and "Bob Harris," were substantially
equal, and that they performed their jobs under similar working
conditions. Indeed, plaintiff appears to believe that Harris'
position involved different responsibilities. Plaintiff has
offered the Court no evidence regarding the job titles, job
content, or even the salaries of these individuals. In fact,
plaintiff has even failed to offer the Court any evidence as to
her own compensation. The equal pay claim is dismissed.
E. The Hostile Environment Claim
In order to prevail on a hostile work environment claim, a
plaintiff must show both "(1) that [her] workplace was permeated
with discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of [her] employment and (2)
that a specific basis exists for imputing the conduct that
created the hostile environment to the employer." Shabat v.
Billotti, 108 F.3d 1370, 1997 WL 138836, *1 (2nd Cir. 1997)
(unpublished opinion); see also Harris v. Forklift Sys., Inc.,
510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Although plaintiff fails to make her claim clear, it appears
that her hostile work environment claim is based, in part, upon
plaintiffs belief that she was not given adequate "verbal
reinforcement," that supervisors "did not say `hi' when
entering," and that they criticized her performance. Dkt. # 11.
It is from these allegations that plaintiff makes the illogical
leap that she was the subject of inappropriate harassment.
Notably, comments regarding work performance have nothing to do
with Alfieri's age or gender, and such comments cannot rise to
the level necessary to raise any inference of discrimination.
See Nembhardt v. Eastman Kodak Co., 92-CV-6438L, 13-14
(W.D.N.Y. October 29, 1993) (racial comments alleged); cf.
Spence v. Maryland Cas. Co., 803 F. Supp. 649, 668 (W.D.N.Y.),
aff'd in part, 995 F.2d 1147 (2d Cir. 1993) (stray remarks
insufficient to establish discrimination and insufficient to
avoid summary judgment in favor of employer in disparate
Plaintiffs notes also reflect that on no more than two
occasions during her employment she overheard comments of a
sexual nature. Those occasions occurred in November 1996 and
January 1998, and plaintiff appears to concede that the 1998
comment about which she now complains was not directed at her.
Dkt. # 11. In addition to the fact that plaintiff does not
allege that she ever complained about these occasions to
management, any claims based on such conduct is untimely.
Moreover, even if all of the alleged conduct occurred as
plaintiff alleges, it was far from so severe or pervasive that
it altered the conditions of Alfieri's employment and created an
abusive working environment. Therefore, plaintiffs hostile
environment claim is dismissed.
F. The Gender and Age Discrimination Claims
Plaintiff also claims gender and age discrimination. In
particular, plaintiff alleges that members of SYSCO management
were demeaning to her or failed to support her because she was
female or because of her age.
SYSCO has offered evidence that when plaintiff resigned, her
position was filled by another female who was, in fact, older
than plaintiff. Plaintiff does not challenge this evidence.
Moreover, the fact that SYSCO hired plaintiff, a 42 year old
female, to some extent undermines plaintiffs argument that SYSCO
discriminated against her based upon her age or gender. See
Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (employer who
knowingly hires workers within a protected group is simply not a
credible target for pretextual firing). Of course, plaintiffs
most recent supervisor, Chase, is female. That fact also
undermines plaintiffs contention that she was discriminated
against because of her gender.
Based upon a review of the record, plaintiff has not
demonstrated any circumstances giving rise to an inference of
unlawful discrimination. In short, plaintiff has failed to state
a prima facie case of discrimination. Plaintiffs gender and
age discrimination claims are therefore dismissed.
Even generously assuming that plaintiff had set forth the
necessary elements for a prima facie case of discrimination
under either Title VII or the ADEA, SYSCO has submitted ample
evidence in support of its proffered, legitimate,
nondiscriminatory reason for taking the action it did. This
admissible evidence was more than sufficient to rebut the
presumption of discrimination that might have been raised by any
possible prima facie case. I simply cannot see any evidence
that plaintiff has proffered tending to show that SYSCO's stated
reasons were pretextual, and plaintiff's mere speculations are
establish pretext. See Duclair v. Runyon, 1998 WL 852867,
166 F.3d 1200 (2d Cir. 1998) (in a Title VII case, the Second
Circuit noted that "the Supreme Court has made clear, as have
numerous opinions from this court, that the burden of persuasion
— the obligation to prove his or her case — is at all times
borne by the plaintiff"). Plaintiffs request that I "see between
the lines" is simply insufficient in this context.
That plaintiff may disagree with her supervision's treatment
of her with respect to her work output and productivity is not
relevant. Such business decisions to discipline an employee are
solely within an employer's discretion. Visco v. Community
Health Plan, 957 F. Supp. 381, 388 (N.D.N.Y. 1997) ("[a]n
employer may exercise business judgment in making personnel
decisions as long as they are not discriminatory"); see also
Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir.
1988) ("[e]vidence that an employer made a poor business
judgment generally is insufficient to establish a question of
fact as to the credibility of the employer's reasons"); Mesnick
v. General Electric Co., 950 F.2d 816, 825 (1st Cir. 1991)
("[c]ourts may not sit as super personnel departments, assessing
the merits — or even the rationality — of employers'
non-discriminatory business decisions"), cert. denied,
504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).
For all of the foregoing reasons, defendant's motion for
summary judgment (Dkt.# 8) is granted. The complaint is
dismissed with prejudice.
IT IS SO ORDERED.