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DAWSON v. BUMBLE & BUMBLE

February 24, 2003

DAWN DAWSON, PLAINTIFF,
V.
BUMBLE & BUMBLE, DEFENDANT.



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

  DECISION AND AMENDED ORDER

Plaintiff Dawn Dawson ("Dawson") brought this action alleging employment discrimination by defendant Bumble & bumble, LLC ("Bumble" or the "Salon") on the grounds of sex, gender, sex stereotypes, and/or sexual orientation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), Executive Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, Title 8. Before the Court is Bumble's motion for summary judgment. By Order dated January 30, 2003, the Court granted the motion and indicated that its findings, conclusions and reasoning would be set forth in a separate decision to be provided to the parties.

I. FACTS

Dawson commenced employment as a hair assistant at Bumble's "high-end" beauty parlor in midtown Manhattan in February 1999. When she started at the Salon, Dawson had seven years of prior experience in hair cutting and styling. She had worked as an assistant in the educational programs of three Manhattan hair studios, which she left before completing each course, and at several other smaller shops that did not require training classes. At Bumble, she was interviewed and hired by the Salon's Manager, Connie Voines ("Voines"), who was in charge of supervising employees and directing operations at the Salon's floor, including work assignments and performance evaluations.

Bumble hires assistants who aspire to be hairdressers to work on the floor of the Salon four days per week and to participate in its educational program on the fifth day. The employment consists of performing various tasks for an assigned hair stylist. These duties include greeting and escorting clients, serving them beverages, shampooing and blow-drying their hair and cleaning the stylist's tools and workstations. Bumble's educational training, which the assistant must satisfactorily complete in order to be promoted to work as a hair stylist at the Salon, requires advancement through four successive levels of classes in Bumble's hair cutting and styling methods: basic blow-drying, basic scissor cutting, basic razor cutting and advanced razor.

To enable assistants in the basic classes to develop their skills, they are required to recruit for the class every Monday four models on whom they practice shampooing, blow-drying and applying the Salon's hair cutting and styling techniques. For this purpose each model's hair must have the necessary length, style and texture to enable the assistant to perform the haircut being demonstrated during the given day's instruction. As a supplement to the training, the educational program also periodically schedules more limited special seminars, usually consisting of six Tuesday classes for a smaller number of selected assistants, concentrating on advanced styling and "editorial" hairdressing of professional models for photographic print advertising and promotion of Bumble products and techniques.

For assistants to advance from the basic classes, the Salon requires them to demonstrate satisfactory skills in executing four particular haircuts: the bob, the graduated bob, long layers and short layers. In addition, the program considers the assistant's general attitude, work ethic and interpersonal skills. According to Bumble, it typically takes an assistant between two and three years to successfully complete the Salon's educational program and graduate to stylist, and only 10 to 15 percent of those hired are so promoted.

Bumble contends that Dawson did not advance to stylist and was not selected for the advanced seminars because, after seventeen months in the program, she never satisfactorily finished the most essential part of her training, mastery of all four basic haircuts, and because her general attitude, work ethic and overall performance were inadequate.

Not surprisingly, the parties present sharply conflicting versions of Dawson's performance in the Salon's training program and her work on the floor. According to Dawson, she was fully qualified to be a hair stylist by reason of her prior experience and her work at the Salon, which she claims was consistently praised by Voines, by Elizabeth "Coco" Santiago ("Santiago"), the Salon's Educational Coordinator, by other Salon stylists for whom she worked, and by clients, thus giving her confidence that she would graduate expeditiously from assistant in the training program to full stylist. In support of her contention, Dawson introduced the deposition of Monica Cunningham ("Cunningham"), one of the stylists in the Salon's educational program. Cunningham testified that she regarded Dawson as a very good assistant who had done an exceptional job at the Salon and that she thought the Salon's other staff and clients were fond of her. (Deposition of Monica Cunningham, attached as Exhibit "Cunningham Dep" to Declaration of Rick Ostrove dated October 7, 2002 ("Ostrove Dec."), at 108-109.) Dawson also presented an affidavit of Amy Strober, a former Head Assistant at the Salon, who stated that she had reported to Bumble her view that Dawson had done an excellent job as a hair assistant. (Affidavit of Amy Strober dated March 6, 2001, attached as Exhibit "Strober Aff" to Ostrove Dec.)

By contrast, Bumble portrays Dawson's performance, both as an assistant and on the Salon's floor, as too erratic and inadequate to warrant promotion to stylist. Bumble contends, for example, that on Mondays Dawson frequently failed to recruit sufficient or appropriate models to perform the required haircuts. (Deposition of Elizabeth Santiago ("Santiago Dep."), attached as Exhibit G to Amended Declaration of Ellen M. Martin ("Martin Dec.") dated August 22, 2002, at 25, 27.) Voines testified that Dawson's overall performance was "below average", that she was frequently late and in a bad mood, resentful of the work assigned to her and easily frustrated, that she demonstrated poor attitude when asked to perform her work tasks, and that she received a very bad evaluation from Ralph Formisano ("Formisano"), one of the last stylists Dawson worked for before being fired. (Deposition of Connie Voines, attached as Exhibit F to Martin Dec., at 42-43, 46-48, 127.) Santiago stated that Dawson's class work was not up to standard, that she did not listen to the teachers' directions, that often she seemed like she did not want to be at work and said so, and that other teachers similarly expressed unhappiness with Dawson's work. (Santiago Dep., attached as Exhibit M to Reply Declaration of Ellen M. Martin ("Martin Reply Dec.") dated November 14, 2000, at 36, 37, 43, 52.) According to Voines and Santiago, after more than one year in the Salon's training program, Dawson had not yet demonstrated sufficient technical mastery of three of the four basic hair cuts the Salon required to graduate assistants to the next level of training. (Voines Dep. at 125; Santiago Dep. at 28.)

Voines and Santiago also testified that Dawson was considered by other Salon stylists as rude, abrupt, hostile, unfriendly and disrespectful, and that several stylists and clients had registered complaints to that effect. Some stylists refused to work with Dawson, and asked Voines not to assign Dawson to work with them. (Voines Dep. at 119, 122, 123; Santiago Dep., Ex. M at 52, 54; Dawson Dep. at 276-80.) For example, Sharon Morrissey, one of the Salon stylists with whom Dawson was working at the time she was terminated, testified that two or three clients complained that Dawson was unfriendly, and that one of them asked that Dawson not be assigned to touch her hair again. Morrissey further stated that Dawson was "not so great" about cleaning up hair around the station, that as to blow-drying hair she was "average" but "definitely did have a long way to go", and that while Dawson's performance working with Morrissey was satisfactory, "that's not the way she was overall in the salon. (Deposition of Sharon Morrissey, attached as Exhibit N to Martin Reply Dec., at 11-13, 20-22.) Morrissey also remarked that Dawson was sometimes moody and when she was in a bad mood she could be short, causing Morrissey to be "a little bit fearful of what would happen if I left her alone with the client for a little bit too long." (Id. at 22.) According to Morrissey, "at Bumble & Bumble [sic] it is very, very, very important to have a great attitude. That comes first. Great attitude, positive energy towards anyone no matter who you are or what type of mood you may be in." (Id.)

From these vastly contradictory assessments of Dawson's skills and work at the Salon, emerge two diametric versions of why she did not advance to stylist and why she ultimately was dismissed on July 15, 2000. As the reasons why Dawson was not promoted and was later dismissed, Voines enumerates Dawson's inadequate performance and poor attitude and the various difficulties recounted above that Dawson experienced with the Salon's stylists, teachers and clients. Dawson, on the other hand, attributes the Salon's failure to promote her from the education program, its denying her participation in advanced styling classes, and its decision to terminate her employment, to unlawful discrimination. Specifically, Dawson contends that she was the victim of a hostile work environment and adverse employment actions at the Salon on account of sex, gender, sexual stereotyping, and sexual orientation, in particular because she is "a lesbian who does not conform to gender norms." (Dawson Dep. at 185-86, 496; Complaint ("Compl.") 34, 35.) Hence, the instant lawsuit.

Dawson claims sex discrimination on the ground that, though she felt qualified and ready, she was not promoted from basic scissor cutting to razor class and was denied opportunities to take advanced styling and editorial styling. These claims are predicated on certain statements Voines allegedly made in response to Dawson's request for permission to attend the advanced styling classes. Voines made remarks to the effect that few women were seen doing editorial styling.

The hostile work environment claim Dawson asserts is founded on three incidents involving comments made by certain Bumble employees. First, Dawson describes offensive remarks allegedly made by Raymond and Howard McLaren (collectively the "McLarens"), brothers who worked as stylists at the Salon and who Dawson claims had a significant role in the creative end of the Salon's services. Dawson also contends that the McLarens were involved in hiring, firing, promoting and providing advancement opportunities at the Salon. According to Dawson, sometime after she began at the Salon, the McLarens, first Raymond, and later Howard when the two saw Dawson together, commenced habitually calling her "Donald", rather than by her real name, "Dawn". Dawson interpreted the context of this nicknaming to be "demeaning" and "not in a joking manner." (Dawson Dep. at 248-49, 255-56.) Dawson claims she twice reported the incident to Voines, once at the time it started six to eight months after she was hired and the second time towards the end of her employment, and that Voines "kind of laughed and walked away." (Id. at 246, 250-52, 258.)

The second specific instance of sexual harassment Dawson cites is a comment by Formisano, who allegedly told her that "[h]e thought the general consensus was that the way [Dawson] dressed was a costume . . . ."*fn1 (Dawson Dep. at 198-200.) Dawson testified that Formisano did not elaborate on the remark, nor comment as to how he thought she should dress, and that although the comment upset her, she did not report it to anybody at the Salon. (Id. at 200-202.)

Dawson's third specific example allegedly evidencing the Salon's hostile working environment entails a comment made by Deniz Uzunoglu ("Uzunoglu"), one of the hair assistants at the Salon, who said to Dawson: "You know, what you need, Dawn, you need to get fucked." (Dawson Dep. at 266.) Dawson again asserts that Uzunoglu's comment upset her but that she did not report it to Voines. In fact, Dawson acknowledges that it was Voines who brought that remark to Dawson's attention. (Id. at 269.)

In addition, Dawson asserts as part of her sexual harassment claim another remark Uzunoglu made, conveyed to Voines by another Salon employee and to Dawson by Voines, to the effect that Dawson and Voines should switch body parts. (Dawson Dep. at 269-70, 272, 366-67.) Dawson testified that when Voines reported Uzunoglu's comments, she informed Dawson that Voines had fired Uzunoglu on account of these comments but had decided to give him another chance when he begged for his job back, (id. at 270), and that Dawson agreed to drop the matter and give him another chance, (id. at 273-74)

The comments on which Dawson bases her discriminatory discharge claim allegedly were made to her by Voines at the time she was terminated. According to Dawson, Voines made reference to Dawson's haircut, which Dawson had recently cut very short, stating "that it was not acceptable and that she could not send [Dawson] to New Jersey . . . as an example, because she couldn't send [her] out to do product work, that [Dawson] would scare people." From these comments, Dawson inferred that the reason she was fired "was basically about the way [she] looked." (Id. at 283.)

Dawson also claims that Cunningham informed her, after Dawson's termination, of a conversation Cunningham and Santiago allegedly had with the McLarens over drinks at a bar near the Salon about one month before Dawson's dismissal. On that occasion, the McLarens allegedly referred to Dawson as a "dyke" and, asserting that they disliked her "dyke attitude," said they were going to fire Dawson. (Cunningham Dep. at 67.)

II. DISCUSSION

A. STANDARD OF REVIEW

In considering a motion for summary judgment, a court may grant the motion only if, on the basis of the record of the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits filed, it concludes that there is no genuine dispute as to any material fact and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. See Fed.R. Civ. B. 56(c); Whidbee v. Garzarelng Food Specialists, Inc., 223 F.3d 62, 68 (2d Cir. 2000). The role of the court in ruling on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987).

The moving party bears the initial burden of establishing the basis for the motion and identifying those portions of the materials on the record that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002). In this regard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In weighing whether the movant has satisfied this threshold, the court must view the record as a whole in the light most favorable to the opponent of the motion. See id. at 255. The movant may meet this initial burden by demonstrating the absence of evidence sufficient to support an essential element of the opponent's underlying claim. See LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998).

If the court finds that the moving party has satisfied his initial burden of persuasion, the opponent must then "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 (1986). To this end, the opponent "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Alemas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, he must support with specific evidence his assertion that a genuine dispute as to material fact does exist. See Celotex, 477 U.S. at 324; Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

The opposing party's showing of a genuine dispute must be grounded on concrete evidence sufficient to support a reasonable jury's rendering a verdict in his favor. See Anderson, 477 U.S. at 248, 252 ("The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient."); Matsushita, 475 U.S. at 587.

B. CONTEXTUAL CIRCUMSTANCES

Dawson invokes Title VII, the NYSHRL and the NYCHRL to assert claims of discrimination on the basis of sex, gender, sexual stereotypes and sexual orientation. Assessing the merits of these claims is rendered uniquely challenging in this case by the singular setting in which the events occurred and against which whatever social and legal standards that govern are to be applied. That backdrop is critical. The Supreme Court has counseled that in adjudicating Title VII harassment claims, the offending conduct "should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Oncale v. Sundowner Offshore, Servs. Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In all harassment cases, the Supreme Court further instructs that: "that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Id. at 81-82;*fn2 see also Richardson v. N.Y.S. Dep't. Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) (noting that the applicable standards "caution [] to consider the totality of the circumstances. . . . The factors must be considered "cumulatively," so that we may `obtain a realistic view of the work environment.'" (internal citations omitted))

Here, Dawson charges that wrongs were done to her by reason of her failure to abide by certain norms allegedly demanded of her at her workplace. Yet, she struggles to define precisely the behavioral rules by which she was judged and the particular ways in which those standards were unlawfully applied in her case. Dawson's dilemma may stem from the somewhat amorphous "constellation of surrounding circumstances, expectations, and relationships" she portrays as marking the world of hairdressers. Oncale, 535 U.S. at 82. In the work environment she describes, traditional social demarcations blur, roles shift and conventional definitions of what is the norm often fall short in fitting the social conduct portrayed. For instance, in relation to some of the events and individuals involved in the instant dispute, Dawson acknowledges that an evaluation of what constitutes conforming behavior is bound to run into "a tricky place" and "a very gray area." (Dawson Dep. at 379, 380, 381.) When asked about who at the Salon was considered unconventional, Dawson replied: "What is conventional to you? You're talking about hairdressers." (Id. at 377.) Pressed further to identify in particular which of the Salon's employees was a nonconformist, Dawson said: "I don't think hairdressers are conformists anyway, so I would say the whole lot of them." (Id. at 379.)

In fact, among the leading figures here, Voines, accused by Dawson of discharging her for failure to conform to gender norms, was a pre-surgery male-to-female transsexual who started at the Salon in 1985 as a "shampoo boy" and, at the time of the events in question, was transitioning from appearing male to appearing female. (Declaration of Connie Voines dated August 16, 2002 ("Voines Dec.") ¶ 25; Dawson Dep. at 379-80.) According to Dawson, however, Voines conformed to gender norms because she dressed and identified as a straight woman, despite that, by Dawson's own account, Voines "speaks about her own penis often enough." (Dawson Dep. at 388.) Formisano, whom Dawson charges with sexual harassment because of his remark about perceptions at the Salon regarding the style of Dawson's clothing, was known to Dawson to be openly gay. (Id. at 382.) Santiago, who played a dominant role in the decision not to promote Dawson from the basic hair cutting classes to the more advanced razor levels, was openly bisexual. (Id. at 131.) Dawson also acknowledged that there were several other openly gay men and lesbians among the stylists, colorists and assistants at the Salon during the seventeen months she worked there, including another transsexual transitioning from female to male. (Id. at 376-83.) According to Voines, two of the assistants to the owner of the Salon were openly lesbian, and one of them was promoted to a visible position in the Salon's public relations office. (Voines Decl. ¶ 26.) As to Dawson herself, she admits that she sometimes referred to herself at the Salon as a "dyke," and otherwise spoke openly about her sexuality, her sexual affairs and details of her personal life after work. (Dawson Dep. at 389, 128-29.) Yet, Dawson maintains that in this milieu of nonconformists she was a victim of sexual discrimination because she does not conform to gender norms.

Indisputably, a work environment as diverse as that of the Salon is bound to embody many lifestyles and sexual preferences and reflect varying physical appearances, overall looks, and different manners of hair dress and clothing. Some of these personal images, attitudes and affiliations may convey the hair stylists' own creative concepts that they may seek to promote to clients, fashion models and trend setters. Dawson, for example, specifically mentioned a "mohawk" haircut given to her by Raymond McLaren, one of the persons she accuses of sexual harassment, that she described as "very close," and "very short" on the sides, longer at the top and "more severe" than shaving her head or than the haircut for which she claims she was fired. (Id. at 294.) According to Voines, Dawson received the "mohawk" while serving as Raymond McLaren's model at a seminar the Salon held to showcase Bumble styles and products, and that haircut was then advertised to Bumble clients nationally. (Voines Dec. ¶ 30.) Arguably, in other social contexts, some of these styles and expressions may be perceived as extreme.

In this social context, two observations relevant to resolution of the dispute at hand may be weighty. First, the Salon and its business represent an aspect of the world of styles and fashion in which personal appearance often counts for much, if not everything. In such a setting, the way a person looks and dresses, whether a client or employee of the establishment, is bound to evoke comment, for good or ill, open or not. Indeed, it may be that the Salon would fail in its business mission if the products of its self-described "high-end" and "trendy" beauty enhancement labors were greeted with utter silence. Where the work environment by its very nature engenders criticism about personal mien, manner and styles, a court is well-advised to probe exactingly at challenges to such commentary arising uniquely from the social context, and to exercise corresponding caution when called upon to rule as a matter of law that remarks about a particular individual's appearance, that may be contextually grounded, give rise to a claim for sexual discrimination. See Oncale, 535 U.S. at 81, 118 S.Ct. 998.

Second, the heterogenous environment that strives for the avant garde and extols the unconventional, also renders peculiarly challenging any finding that would, for the purposes of applying the discrimination laws, endeavor to classify what behavior does or does not conform to gender norms, what look, gesture or bearing may or may not deviate from defined expectations of what is or is not acceptable social conduct.

Against this backdrop, with its many and variegated contrasts, its admitted blurriness and chiaroscuros, Dawson's claims of sexual discrimination, as she articulates them in the Complaint and elaborates in her deposition, take on somewhat protean quality, hard to grasp or pinpoint precisely what conduct she accuses of offending whatever behavioral norms she asserts govern the circumstances. At various times in her pleadings and testimony, she asserts that she was disparately treated because of the way she looked, because she was a woman, because she was not a man, because she was a lesbian, because she was a lesbian who did not conform to gender norms. Adding to the complexity, Dawson, perhaps aware of some of the conceptual challenges and legal obstacles her charges implicate, invokes a novel stereotyping theory that tests the elasticity of the law to encompass her grievances: that she was a victim of sexual discrimination because she is a lesbian who refuses to conform to gender norms. Conceivably, Dawson's variable statements could be attributed to an imperfect attempt to assert different causes of action under alternative theories, as is permissible under Fed.R.Civ.P. 8(e). In the final analysis, however, Dawson's claims prove fatally deficient for reasons detailed below.

In the distinctive work environment that the record here depicts as prevailing at the Salon, what misconduct by an employee against another constitutes sufficient deviation from societal rules to cross over the line into unlawful behavior prohibited by the discrimination laws, is hard to discern. This difficulty perhaps explains much of the apparent confusion and self-contradiction inherent in Dawson's own statement of her case. As a threshold matter, because the borders are so imprecise, it is not evident exactly what conduct by Bumble Dawson claims as the gravamen of the claims she asserts on sex or gender grounds, as opposed to what actions she bases on sexual orientation or sexual stereotyping. Moreover, insofar as Dawson relies on a basis of discrimination that seems to be founded on her status as member of a subset, "a lesbian who does not conform to gender norms," the theory she essays is not readily definable. It suggests that the offender presumably would classify lesbians into types and distinguish between forms of discrimination so that the misconduct could then be parsed between actions prompted by animus based strictly on sex and sexual stereotyping, as opposed to those motivated instead only by sexual orientation or affiliations. In other words, under Dawson's hypothesis, Bumble would practice disparate treatment by kinds of homosexuality, discriminating against an admitted lesbian who looks and behaves more like a man than like a woman, and presumably not against another lesbian known to be openly gay but who does not display her sexual preference by any visible expression or appearance. (Dawson Dep. at 383-84.)*fn3

More to the point of the legal controversy now before the Court, though the starting point and crux of the purported distinction is between differently perceived lesbians, Dawson contends that the alleged unlawful sex discrimination entailed in this instance is really conduct predicated on gender or sexual stereotyping proscribed by Title VII, and not necessarily or solely on sexual orientation which would not be actionable under Title VII. By logical extension of her theory, while under the facts assumed, Dawson, as a lesbian fired allegedly for appearing too masculine, would be able to plead a Title VII claim recognized as sex discrimination, another open lesbian who does conform to gender norms and perceptions of femininity and who is fired by an employer solely because she is a lesbian — however discreetly and "conventionally" so — would not have a Title VII cause of action.

This Court, out of profound respect for the infinite capacities of the human psyche, takes nothing for granted in any encounter with the still unfathomed depths and obscure passions at work at the core of human behavior. It thus accepts the possibility that our mental designs and social impulses may be capable of perfecting and expressing personal discriminations stirred by even the most gossamer instincts. As the Supreme Court has observed, "[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter or law that human beings of one definable group will not discriminate against other members of their group." Castaneda v. Portida, 430 U.S. 482, 499 (1977)

But, even assuming that misconduct in furtherance of the distinctions Dawson purports to establish here would state a legally cognizable theory, the Court finds that Dawson's claims fail on several grounds. First, upon close scrutiny of her pleadings and elaboration of her claim during her deposition, it appears that, as articulated, the underlying basis for Dawson's claims is not discrimination because of sex but on account of her sexual orientation. Second, the evidence Dawson presents in support of her claims predominantly addresses the sexual orientation theory which emerges as the real gravamen of the challenge she asserts. Third, insofar as Dawson purports to state claims based solely on sex or gender stereotyping, the fragmentary evidence she adduces is insufficient to establish intentional discrimination on those grounds. Finally, in any event, even if Dawson satisfied the elements of a sexual discrimination claim on any cognizable theory, the Court finds that the evidence on the record is insufficient to sustain a reasonable determination that intentional discrimination, rather than the legitimate grounds Bumble proffers, was the real reason for the adverse employment actions Dawson alleges.

C. SEXUAL DISCRIMINATION

To prove a prima facie case of discrimination under Title VII, a victim may establish her claim by means of the burden-shifting test enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). The McDonnell Douglas formulation requires the plaintiff to demonstrate that she (1) was a member of a protected class, (2) was qualified for the job in question, (3) suffered an adverse employment action, and that (4) others similarly situated were more favorably treated. 411 U.S. at 803. Once the plaintiff states a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment action. If the employer does so, the plaintiff must produce sufficient evidence to demonstrate that the employer's proffered reason was false and merely a pretext for intentional discrimination based on an impermissible ground. See id. at 804. Throughout this framework, the plaintiff bears the ultimate burden of persuasion by a preponderance of the evidence that in taking the challenged adverse employment action the employer intentionally discriminated against her on account of her protected status. See Hicks, 509 U.S. at 507, 511-12.

Dawson asserts that as a gay woman she is in a protected class under the NYCHRL, and that for Title VII and NYSHRL purposes she is in a protected class because she is a woman and because she does not conform to gender norms.*fn4 Bumble challenges Dawson's contention, classifying her repeated statement that she is a "lesbian who does not conform to gender norms" as a subset of sexual orientation discrimination. (Amended Memorandum of Law in Support of Defendant's Motion for Summary Judgment dated August 22, 2002 ("Def.'s Mem.") at 8-9.)

Dawson counters that Bumble's characterization misreads her claim by suggesting that what Dawson asserted is that she did not give the appearance of a stereotypical lesbian, and that by her statement of the claim the reference she really intended is to how a woman should dress, look and carry herself. (Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment dated October 7, 2002 ("Pl.'s Mem.") at 3.) In support of her interpretation of the phrase in question, Dawson cites to a statement in her Complaint, which asserts that Dawson "is a lesbian female, who does not conform to gender norms in that she does not meet stereotyped expectations of femininity and may be perceived as more masculine than a stereotypical woman." (Compl. ¶ 7.) Perhaps inadvertently, or perhaps engaging in attempted legerdemain,*fn5 in transposing that quote from the Complaint to the memorandum of law opposing the instant motion, the comma that appears after "female" in paragraph 7 of the Complaint is deleted, and Dawson thus ...


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