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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 ...

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