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United States District Court, Southern District of New York

April 11, 2003


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Plaintiff Patricia M. Gurry commenced this action against Merck & Co., Inc. ("Merck"), Heather Densmore, and Gary McLeod, alleging a sex-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"), and New York City Human Rights Law, N.Y. Admin. Code § 8-1-1 et seq. ("NYCHRL"). She also claims intentional infliction of emotional distress ("IIED"). Defendant now moves for summary judgment on all of plaintiff's claims pursuant to Rule 56, F.R.Civ.P.


Patricia Gurry applied for a job at Merck in July, 1997. On July 10, 1997, Gurry was interviewed by Patricia E. Dwyer, Regional Operations Executive for the Merck Vaccine Division. (Def.'s Stmt. Mat. Facts at ¶ 3.) On Gurry's resume and in her written application materials, she stated that she was employed from February, 1984 to "Present" as a sales representative for Glaxo Wellcome. (Id. at ¶¶ 2, 10.) Based on the interview and Gurry's resume, Dwyer believed, at the time of the interview, that Gurry was employed at Glaxo Wellcome. (Id. at ¶ 8.)

In fact, Gurry was not then employed by Glaxo Wellcome, but had been discharged in March of 1997. (Id. at ¶¶ 32-33.) The circumstances of the discharge were the subject of a Title VII sexual harassment and retaliation complaint filed with the Equal Employment Opportunity Commission ("EEOC") by Gurry. (Id.) Gurry claims that at the time she applied to Merck she believed that she was still employed by Glaxo Wellcome, "as the EEOC claim had been filed, and there was a possibility that I would be reinstated, as it had been after the first charge had been filed."*fn1 (Pl.'s Aff. ¶ 6.)

Merck offered Gurry a position as a Vaccine Specialist on July 29, 1997, to be reporting to Dwyer. (Id. at ¶ 15.) During most of her employment at Merck, Gurry received positive written feedback on her work, including numerous e-mails praising her sales performance. (Pl.'s Aff. Ex. D.) In December of 1998, however, Gurry's then supervisor, Heather Densmore, included in Gurry's "Vaccine Specialist Trip Report" the following observation: "This was the 3rd trip in 3 months with Pat where she inappropriately raised her voice at me. She also again brought up issues about a neighboring territory which had been resolved in October. This behavior has to cease." (Id. at Ex. E.) Aside from this observation Gurry received positive feedback in this report. (Id.)

On March 10, 1999, Densmore and Densmore's supervisor, Gary McLeod, met with Gurry and presented her with their review of her performance for the year ending December 31, 1998. (Def.'s Stmt. Mat. Facts ¶ 23.) Gurry's overall performance rating was "Meets Expectations," her leadership rating was "Low" and the comments stated that while her sales numbers were strong, she "need[ed] to improve in areas of teamwork, especially relationships within the district, communication with management and capitalizing on opportunities to contribute to the district." (Pl.'s Aff. Ex. F.) At the same meeting, Densmore and McLeod gave Gurry a memo entitled "Performance Improvement" setting forth some examples of Gurry's alleged performance deficiencies from the Fall of 1998, through February, 1999, and the areas that needed to show improvement over the next thirty days. (Id.) The memo stated that Densmore would assist Gurry in improving those areas of her performance, but that if progress was not made during the ensuing thirty days, the result would be a 90 day Performance Improvement Plan.*fn2 (Id.)

During the time Gurry was employed at Merck, she was "always concerned" that people would hear about her sexual harassment claim against Glaxo Wellcome. (Id. at ¶ 23.) Though she had never spoken about the pending litigation with anyone at Merck, she began suspecting that various employees knew about it, including Densmore. (Id. at ¶ 24.) Plaintiff claims her suspicion was based on the following incidents: 1) at a luncheon meeting with Dwyer and Sakayha Kirtane (a Vaccine Specialist) in December, 1997, Dwyer brought up sexual harassment and stated to Gurry that those lawsuits can be very dirty and that if the attorneys at Merck find out about a sexual harassment lawsuit, they go crazy;*fn3 2) Mike Carrado, a hospital representative, said to Gurry during a luncheon, "I heard a lot about sexual harassment at Glaxo Wellcome."; 3) Donna Baldaserre, a Merck employee, asked her "was there a gap in your employment between Glaxo and Merck?"; 4) at a breakfast meeting with Al Weiss, a Manager of Sales at Merck, sexual harassment in the industry was discussed. One of the representatives turned to the women at the table and said "that is enough."; and 5) on March 10, 1999, and "numerous" occasions prior, Densmore made statements to Gurry such as "What did your [Glaxo] District Manager do to you?".*fn4 (Id. at ¶ 25; Pl.'s Dep. at 123-25.)

At the March 10, 1999 meeting with Densmore and McLeod, plaintiff felt that she was given a poor performance review because of her lawsuit against Glaxo Wellcome. (Pl.'s Dep. at 119.) Plaintiff claims that she therefore "made known to Gary McLeod that I had been, was being harassed by members of Merck and Co., staff employees, in regards to the fact that I had a sexual harassment lawsuit against Glaxo Wellcome." (Id.) Plaintiff testified at her deposition that she asked McLeod if her lawsuit was the reason she had received a poor performance review and McLeod responded by saying that Merck was investigating the Glaxo Wellcome issue.*fn5 (Id. at 120.)

On March 12, 1999, plaintiff's former attorney, Lai Lee Chan, wrote a letter to Merck, stating that Gurry felt that she was retaliated against on March 10, 1999, because of her Glaxo Wellcome lawsuit. (Pl.'s Aff. ¶ 31; Ex. G.) After receiving Chan's letter on or about March 16, 1999, Merck's counsel, Theodore D. Kaufman, spoke with Elizabeth Goggin, Merck's Director of Human Resources, to see if she was aware of the facts and circumstances underlying the assertions made by Chan. (Kaufman Aff. ¶ 5.) Goggin advised him that she was not, but that she would speak to Densmore and McLeod to get some information. (Id.) Goggin reported back to Kaufman, stating that Gurry had recently received a performance review and was given a "performance Improvement" memo, and that neither she, Densmore, nor McLeod were aware that plaintiff had filed a lawsuit against Glaxo Wellcome. (Id. at ¶¶ 6-7.)

Kaufman asked outside legal counsel to investigate whether Gurry had filed a lawsuit against Glaxo Wellcome and Kaufman received copies of the pleadings in the case on March 18, 1999. (Id. at ¶¶ 8-10.) When reviewing the pleadings, Kaufman observed that both sides stated that plaintiff was discharged from her position at Glaxo Wellcome in March, 1997. (Id. at ¶¶ 10-11.) As Mr. Kaufman was aware that Gurry was hired by Merck in August, 1997,*fn6 Kaufman asked to see Gurry's personnel documents. (Id. at ¶ 12.) In reviewing these documents, Kaufman discovered that Gurry had stated on both her resume and her employment application, submitted in July, 1997, that she was employed by Glaxo Wellcome from February, 1984 to "Present." (Id. at ¶¶ 14-15; Ex. D.) Above the signature line of the employment application was the statement "Any misrepresentation by me in this application . . . will be sufficient cause for termination from the Company." (Id. at Ex. D.)

Kaufman wrote a letter to Chan, stating that Gurry had been given a performance review and "Performance Improvement" memo based on various performance problems at Merck and that until Gurry's managers were told of the contents of Chan's March 12, 1999 letter, they were unaware of Gurry's lawsuit against Glaxo Wellcome. (Id. at Ex. E.) Kaufman also wrote that he had discovered from reading the pleadings in the Glaxo Wellcome lawsuit that Gurry had been discharged in March, 1997, but that she had represented in writing that she was still employed by Glaxo Wellcome in July, 1997. (Id.) Kaufman informed Chan that he was forwarding this information to Gurry's managers for further consideration. (Id.)

On March 31, 1999, Goggin and McLeod met with Gurry and asked her to explain the possible misrepresentation on her employment application. (Def.'s Stmt. Mat. Facts ¶ 40; Pl.'s Aff. ¶ 33.) She did not respond to their inquiry but stated that she would speak with her attorney. (Pl.'s Dep. at 185.) Plaintiff was then advised by her attorney not to give an explanation and she did not do so. (Id. at 187.) On April 7, 1999, Goggin notified Gurry that she was being terminated because there was a discrepancy in her employment application that she had failed to explain, "leaving us no choice but to conclude that you made a significant misrepresentation on your employment application." (Kaufman Aff. Ex. F.)


I. Summary Judgment Standard

Under Rule 56(c), F.R.Civ.P., summary judgment is rendered when "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 the moving party is entitled to a judgment as a matter of law." The burden of showing that no genuine issue of material fact exists rests on the party seeking summary judgment. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Furthermore, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. See Gallo v. Prudential Residential Svcs., 22 F.3d 1219, 1223 (2d Cir. 1994).

When deciding whether summary judgment should be granted in an employment discrimination case, additional considerations should be taken into account, as employer intent is at issue. Id. at 1224. Because direct proof of intentional discrimination is rarely found in an employer's records, affidavits and depositions must be carefully scrutinized for circumstantial proof, which, if believed, would show discrimination. Id. "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Id.

II. Hostile Work Environment

A hostile work environment in violation of Title VII*fn7 exists when a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment. Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997) (citation omitted). When considering whether alleged incidents of harassment constitute a hostile work environment, the court must consider the totality of the circumstances. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). The United States Supreme Court has established a non-exclusive list of factors to be considered in this analysis: 1) the frequency of the conduct; 2) its severity; 3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and 4) whether the conduct unreasonably interferes with an employee's work performance. Farragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

The incidents of employee, supervisor, and hospital representative comments described by plaintiff are insufficient to state a hostile work environment claim. The conduct complained of was not physically threatening or objectively humiliating, nor does plaintiff attempt to show that her work performance suffered in any way as a result of the comments. With the exception of Densmore's alleged questioning, all of the statements made by Merck personnel were either general statements about sexual harassment in their industry (i.e., not mentioning plaintiff specifically) or, in one case, a question about plaintiff's employment history. These statements, viewed separately and in their totality, are not severe. Furthermore, although Densmore's questioning of Gurry on "numerous occasions" about the harassment she endured at Glaxo Wellcome could arguably contribute to a hostile work environment, plaintiff does not offer any specifics about any of these alleged incidents or indicate how "numerous" these prior occasions were.

The evidence taken as a whole fails to demonstrate pervasive "discriminatory intimidation, ridicule, and insult;" therefore, summary judgment is granted to defendants on this claim.

III. Retaliation Claims

Plaintiff claims that she was retaliated against based on her Title VII lawsuit against Glaxo Wellcome, first when she received a negative performance review at the March 10, 1999 meeting and later when she was discharged. To establish a prima facie case of retaliation under Title VII, a plaintiff must show: 1) participation in a protected activity known to the defendant; 2) an adverse employment action; and 3) a causal connection between the protected activity and the adverse employment action. Tomka v. Seiler Corp., ¶¶ F.3d 1295, 1308 (2d Cir. 1995) (citations omitted). There are two methods of establishing a causal connection between protected activity and an adverse employment action: directly through evidence of retaliatory animus, or indirectly by showing that the protected activity was closely followed in time by the adverse action. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); Gordon v. New York City Bd. of Educ., No. 01 Civ. 9265, 2003 WL 169800, at *9 (S.D.N.Y. Jan. 23, 2003) (Scheindlin, J.). The burden at the prima facie stage of a Title VII case is "minimal." James v. New York Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir. 2000).

If a plaintiff succeeds in establishing a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). Once the defendant has articulated a legitimate, non-discriminatory reason for the adverse employment action, the presumption of retaliation drops out of the analysis, and the defendant will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited retaliation. See id. (citing James, 233 F.3d at 154)

With regard to plaintiff's claims of retaliation at the March 10, 1999 meeting, plaintiff satisfies the first element of a prima facie case. Based on Gurry's sworn testimony, Densmore and McLeod were both aware of her Title VII lawsuit prior to the meeting. Gurry cannot, however, fulfill the second or third prongs of her prima facie case.

Gurry's performance evaluation containing both positive and negative elements and "Performance Improvement Plan" do not constitute an adverse employment action. An employee experiences an adverse employment action when she endures a "materially adverse change" in the terms and conditions of employment. Boyd v. Presbyterian Hosp. in the City of New York, 160 F. Supp.2d 522, 536 (S.D.N.Y. 2001) (Batts, J.) (citing Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Such actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citations omitted). As the intent of Title VII, in general, is to protect individuals from actions injurious to current employment or the ability to secure future employment, Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citation omitted), the Second Circuit has stated that adverse employment actions are not limited to "pecuniary emoluments" but may include lesser actions such as negative employment evaluation letters. Treglia, 313 F.3d at 720 (citations omitted); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001).

A negative performance evaluation will only be considered an adverse action, however, if it somehow affects the terms conditions, privileges or duration of employment. For example, in Weeks v. New York State Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001), the Second Circuit held that the issuance of a "notice of discipline" and a counseling memo did not constitute an adverse employment action, where the plaintiff failed to allege facts about the ramifications of these acts, how or why the effects would be serious, or whether the notice and memo were retained by the employer in any file. The court stated, "It hardly needs saying that a criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action." See also, e.g., Valentine v. Standard & Poor's, 50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) (Sotomayor, J.), aff'd, 205 F.3d 1327 (2d Cir. 2000); Hawana v. City of New York, 230 F. Supp.2d 518, 528 (S.D.N.Y. 2002) (Koeltl, J.); Boyd, 160 F. Supp.2d at 536.

Gurry, like the plaintiff in Weeks, has not alleged facts from which a jury could conclude that the evaluation and "Performance Improvement" memo had material ramifications during her employment at Merck or in obtaining future employment elsewhere. Therefore, the issuance of the evaluation and memo did not constitute an adverse employment action.

Had Gurry established an adverse employment action, her claims would nevertheless have failed because she does not establish a casual connection between Merck discovering her Title VII lawsuit and the issuance of the evaluation and memo on March 10, 1999. As there is no direct evidence of retaliatory animus, Gurry attempts to rely on indirect evidence by demonstrating temporal proximity between Merck learning of the lawsuit and the receipt of these documents. Plaintiff alleges that Densmore and McLeod learned of her lawsuit "before" or "well before" the March 10, 1999 meeting. (Pl.'s Mem. Opp. Summ. J. at 8.) Yet Gurry does not offer any specifics as to when they learned about the lawsuit in order to demonstrate that this occurred close in time to the meeting.

Plaintiff also claims that Dwyer and other employees commented on Gurry's lawsuit beginning in December of 1997. Accepting that Dwyer's comments demonstrate knowledge of Gurry's lawsuit, there is an approximate fifteen month span between Dwyer learning of the lawsuit and the alleged retaliation. This is too remote to establish a causal connection in this case. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that temporal proximity should be "very close" and holding that "[a]ction taken . . . 20 months later suggests, by itself, no causality at all."); Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (three month gap, by itself, deemed insufficient); Sales v. YM & YWHA of Washington Heights and Inwood, Nos. 00 Civ. 8641, 01 Civ. 1796, 2003 WL 164276 (S.D.N.Y. Jan. 22, 2003) (Carter J.) (stating in dicta that six month gap suggested no causality).

Gurry has not established a prima facie case of retaliation based on the events of the March 10, 1999 meeting. Summary judgment is granted to defendants on these claims.

With regard to Gurry's retaliatory discharge claims, the first and second elements of a prima facie case are fulfilled, as defendants were aware of her Title VII lawsuit at the time she was terminated. There is also sufficient evidence to establish a causal link between defendants' discovery of her lawsuit and her termination. Although Gurry alleges that McLeod and Densmore were aware of her lawsuit well before March 10, 1999, Kaufman and Goggin first learned of Gurry's lawsuit on or about March 16, 1999, three weeks before Gurry was fired. McLeod testified that it was "human resources in conjunction with legal" who made the decision to terminate Gurry. (McLeod Dep. at 27.) Therefore, plaintiff establishes a close temporal connection between the discovery of her lawsuit by the relevant decisionmakers at Merck and her discharge on April 7, 1999.

The interposition of a new incident, i.e., the discovery of a misrepresentation on Gurry's employment application and her refusal to explain it, serves to weaken the inference of causation that arises from this temporal connection. See Alston v. New York City Transit Auth., 14 F. Supp.2d 308, 314 (S.D.N.Y. 1998) (Carter, J.). Nevertheless, Gurry meets the de minimis burden of establishing a prima facie case. See id.

Defendants articulate a legitimate, non-retaliatory reason for Gurry's discharge: that she was terminated because of the misrepresentation on her employment application and her failure to explain the misrepresentation.*fn8 Having met their burden of production, defendants are entitled to summary judgment unless plaintiff can point to evidence that defendants were in fact motivated by retaliatory animus.

Gurry fails to rebut defendants' reason for her discharge or present any evidence of pretext.*fn9 The record does not contain any direct evidence of retaliatory animus, nor does it contain the type of circumstantial proof that has been held sufficient to demonstrate pretext in other cases.*fn10

Plaintiff's reliance on her prima facie proof, based solely on timing and weakened by the interposition of a new incident, is insufficient to survive summary judgment. Cf. Alston, 14 F. Supp.2d at 314 (issuing judgment notwithstanding the verdict for defendant where plaintiff failed to rebut defendant's nondiscriminatory reason, instead relying on her prima facie proof, which was based on timing alone and was weakened by an intervening event) Accordingly, defendants' motion for summary judgment is granted with respect to Gurry's retaliatory discharge claims.

IV. IIED Claim

Plaintiff claims intentional infliction of emotional distress based on her allegation that Merck employees "taunted her about her Glaxo Wellcome lawsuit," that she received "unfair criticism despite an excellent performance," and that after the March 10, 1999 meeting she was "frightened and scared." (Pl.'s Mem. Opp. Summ. J. at 11.) Plaintiff's claim is insufficient as a matter of law.

Under New York law, to state a claim for intentional infliction of emotional distress, a plaintiff must demonstrate: 1) extreme and outrageous conduct; 2) intent to cause, or to disregard a substantial probability of causing, severe emotional distress; 3) a causal connection between a defendant's conduct and the injury suffered; and 4) that the plaintiff endures severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993) (citations omitted). The conduct alleged must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citations omitted).

The facts of this case fall far short of extreme and outrageous conduct. See Stuto v. Fleishman, 164 F.3d 820, 827-29 (2d Cir. 1999) (collecting cases in which New York courts rejected IIED claims involving facts more egregious than those alleged here). Moreover, plaintiff makes no attempt to demonstrate the other three elements of her claim. The claim therefore fails as a matter of law.


Defendants' motion for summary judgment is granted in its entirety. The clerk of court is directed to close the case.


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