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United States District Court, Southern District of New York

July 30, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Clara Domb brings this action against her former employer, Metropolitan Life Insurance Company ("Met Life"), alleging that she was subject to a hostile work environment in violation of Title VII of the federal Civil Rights Act of 1966, and fired in violation of both Title VII and the Age Discrimination in Employment Act ("ADEA"). She also makes similar claims under the New Jersey Law Against Discrimination ("LAD"). Met Life moves for summary judgment. The motion will be denied as to Domb's hostile work environment claims and granted as to her retaliation and age discrimination claims.


The following facts are undisputed unless otherwise indicated. Met Life hired Domb in 1982 as a sales representative. Beginning in July 1995, Domb worked under Manager Frank [ Page 2]

Dunn in Met Life's Howell, New Jersey office, and in January 1996, Domb and Dunn were both transferred to a Tinton Falls, N.J. office, reporting to Managing Director Chris Riddle. Domb reported directly to Dunn at all times.

Domb alleges that "[o]n at least a weekly basis during the period of 1995 or 1996 until her . . . termination, Dunn addressed Domb and referred to her in her presence with racial, ethnic, age-based and gender-based slurs." (Compl. ¶¶ 9, 19.) At depositions, Domb testified that:

• Dunn would regularly introduce her to new recruits as "The Spanish Jew who is the pain in the ass troublemaker" (Domb 5/6/02 Tr. 238; see also Eikenberry Affid. Ex. 1);
• On a single occasion sometime in the winter of 1997, Dunn commented to her "You think you are a smart Hebe" (Domb 5/6/02 Tr. 237, 240);
• "[A] few" or "ten" times, Dunn told her she was "over the hill"; the first of these was sometime between 1995 and 1997 (Domb 8/21/02 Tr. 17-18);*fn1
• For "a few Fridays in a row, maybe two or three months" after her divorce in the summer of 1997, when she worked late, Dunn ridiculed her for being a single woman by asking her "Why don't you have a date tonight, Clara?" (Id. 18-19.)
In an April 9, 2003, affidavit, prepared well after Met Life's motion papers were filed,*fn2 Domb reasserts much of the above and also states that: [ Page 3]

• On at least two occasions, Riddle, referring to Domb's change of name following her divorce, said in the presence of co-workers "this is my new rep, Clara Domb" (Domb. Affid. ¶ 50);
• "Dunn would frequently say, throughout the period of [her] divorce through [her] termination, `Who is this Clara Domb? Who is this rep?'"
• From "1997 through [her] termination," Dunn asked her "unwelcome personal questions about [her] relationship with [her] ex-husband" (Id. ¶ 52);
• "[T]hroughout the period" she worked for him, Dunn referred to her as "the Jewish rep" and "the Spanish rep" and on "numerous occasions" he said to her "Maybe you can go sell life insurance to some Jews." (Id. 55-56.)
After the alleged "smart Hebe" remark, Domb wrote a letter to Dunn, dated November 10, 1997, complaining about that remark and also about his more general tendency to refer to her as a "Jew" or as "the Jewish rep." (Eikenberry Affid. Ex. 1.) Nearly three years later, after a confrontation with Dunn, described below, over allegations that Domb had violated company policies, she filed another complaint with the Tinton Falls Agency Administrator, Marion Dellova. This second complaint, though largely about Dunn's behavior during the confrontation, made reference to the "smart Hebe" incident and stated that Dunn "rarely misses an opportunity to remind me that I am a Jew, a woman, a foreigner and Hispanic." (Id. Ex. 2.) Domb alleges that Met Life retaliated against her for the November 2000 complaint by terminating her employment on December 7, 2000. (Id. Ex. 4.)

Met Life documents an extended series of violations of company policy by Domb from before 1994 to November 2000, claiming that these were the true reasons for her dismissal. As of early 1994, when Domb was located at the Marlboro, NJ, office, and prior to her supervision by Dunn, about eighty percent of Domb's commissions came from a type of sale known as a group life insurance conversion. (D. Mem. 3.) These were individual life insurance policies sold to "departing employees of large corporations that provided group life insurance coverage, [ Page 4]

underwritten by MetLife, to their employees." (Id.) Conversion policies were attractive to some departing employees because obtaining one did not require "proof of insurability," i.e., a medical examination. Sales representatives at Met Life could in various ways obtain "leads" to prospective purchasers of conversion policies and would earn a commission when a policy was sold.

Without the knowledge or approval of Met Life, Domb had set up her own toll-free number to which "all group conversion inquiries received via the 1-800-MetLife number in the Warwick [N.J.] Customer Service Center were being referred." (O'Keefe Affid. Ex. E, Id. Ex. C, at 53-54.) Thus obtaining hundreds of leads each year, she would send out applications forms and accept completed applications by mail.

On April 22, 1994, Domb was informed that this "arrangement" would be discontinued because it was "in direct contrast to our group conversion procedures which require us to refer all calls to the `local' . . . Office." (Id. Ex. E.) That same day, Regional Underwriting Manager Brian Flynn sent a mass e-mail to Marlboro office personnel stating that "effective immediately we will no longer accept new business or group conversion application [sic] by mail."*fn3 (Id. Ex. F.) Domb claims she called Agency Vice President Mike Boruch, concerned that the new policy would [ Page 5]

dramatically reduce her sales, and was told "to go ahead with business as usual." (Id. Ex. C at 89-92; Ex. F.) But on June 2, 1994, after Met Life officials had requested, and Domb supplied, a more detailed explanation of "the evolution of [her] sales activity as it relates to . . . conversions" (Id. Ex. G, at 1), Marketing Vice-President Vincent Vitiello informed her, through Boruch, that she could not "do any business outside of the territory's state boundaries unless she personally sees the client." (Id. Ex. H; Ex. C, at 119-20.)

Under circumstances unclear from the record before the Court, Vitiello reiterated, and seems to have modified, his "position" regarding Domb's practices in a letter dated February 22, 1995; this time, Domb was directed to "personally meet with any clients . . . when they live within New York, New Jersey and Pennsylvania . . . completing] the application with them in person and witnessing] the new business signature." (Id. Ex. I, at 1 (emphasis added.)) When the client was not "within the tri-state area," the same was to be done by "a licensed field representative," with the commission to be split between Domb and that representative if Domb "ha[d] a current license in the state where the client resides." (Id.) Vitiello stressed "the severity of the situation" if any further violations of policy were "brought to [his] attention." (Id.) Another "stern warning" was apparently communicated to Domb on July 12, 1995, after her transfer to the Howell office, in which she was told that "a future infraction . . . could result in her immediate termination." (Id. Ex. J.)

The requirement that applications be completed in person was not the only Met Life policy that Met Life found Domb violated. In July 1996, Domb was reprimanded for using "unauthorized sales literature" (D. Mem. 7), that is, materials not approved by Met Life's law department. (O'Keefe Affid. Ex. K.) In August 1996, Domb was asked to write a letter [ Page 6]

acknowledging that "a violation of this rule could result in my termination." (Id. Ex. L.)

In December 1996, Met Life again found it necessary to issue a warning — indeed, a "final warning" — regarding Domb's compliance with group conversion procedures; any violation would result in "her immediate termination." (Id. Ex. M.) Although Domb had apparently not taken prior warnings of termination seriously (see id. Ex. C, at 157-58, 169, 200), she recognized this warning as a "real threat," if only because it came from Chris Riddle, whom she had only known for a short time. (Id. 214.)

Nevertheless, Met Life within two years came to believe (although Domb denies) that Domb continued to violate these policies, and that she had even advised clients to lie about where they had completed their applications. (Riddle Cert. Ex. C.) Met Life's Ethics and Compliance department "recommended termination of employment" (id. Ex. F), and its law department indicated that "this would be a defensible position." (Id. Ex. D, F.) However, Riddle recommended against firing her and her employment was continued with the condition that she agree to permit her activities to be "monitor[ed] very closely." (Id. Ex. E.) Domb signed a document acknowledging that future failure to "conduct . . . business . . . in accordance with the company's procedures" would result in her immediate dismissal. (Id. Ex. G.)

In October 2000, Domb requested permission from Dunn to mail applications to a couple in Rhode Island that had been referred to her by existing clients. (Domb Affid. ¶ 69.) Dunn consulted with a senior underwriter, who informed Dunn and Domb that "this scenario does not meet the guidelines for applications done by mail." (Riddle Affid. Ex. H.) Domb challenged the underwriter directly, asking him to provide "ALL guidelines for applications done by mail" and indicating that she was "not sure why [this] scenario does not meet [the] guidelines." (Id.) [ Page 7]

Receiving no reply, she went directly to the head of underwriting, John McIntyre, to seek permission to process the applications by mail. Domb claims that she simply "felt that someone in Underwriting with more authority . . . should be consulted." (Domb Affid. ¶ 75.) According to McIntyre, however, Domb told him that the Rhode Island couple were existing clients. (O'Keefe Affid. Ex. P.) Domb denies deceiving McIntyre. (Domb Affid. ¶ 76.) Based on his understanding of the scenario, McIntyre gave Domb permission to mail the applications because mailing an application to existing clients was one of the exceptions to the general rule. Domb mailed the applications from an external Federal Express location dash; another violation of Met Life policy — knowing that her office mailings were monitored by Dunn. (Domb. Affid. ¶ 79.)

Riddle inevitably learned of what appeared to be Domb's circumvention of his directions (id.), and demanded, through Dunn, that Domb obtain written confirmation from McIntyre of his approval. Domb refused, and her refusal "led to a heated confrontation between [her] and Dunn" on November 1, 2000. (D. Mem. 10.) This is the confrontation that caused Domb to file her written complaint with Agency Administrator Dellova about Dunn; she alleged that he concluded the meeting by yelling at her to "Get the hell out of my office!" and slamming the door behind her. (Eikenberry Affid. Ex. 2.) She suggested that this incident was the straw that broke the camel's back, for she had "overlooked previous behaviors . . . that were bothersome," namely, the "smart Hebe" comment and that he "rarely misses an opportunity to remind me that I am a Jew, a woman, a foreigner and Hispanic." (Id.) When Chris Riddle asked to meet with Domb, she said that she would do so only if Dellova were present; Riddle decided not to meet with Domb at all. (Id.) Domb recounted this in an e-mail to Dellova, stating that she "refuse[d] to be subjected to any further abuse," and asking that the e-mail be added to her existing complaint against Dunn. (Id.) [ Page 8]

On November 2, having received the signed applications from the Rhode Island clients, Domb submitted them to Dellova and, according to Met Life, attempted to use her own cash as the required deposit, since the clients had neglected to send a check with the applications. This violated Met Life's policy forbidding "the commingling of funds." (D. Mem. 11.) Domb claims that Dellova initially indicated that "it was a good idea" to use her own cash. (Domb. Affid. ¶ 12.) Meanwhile, Riddle contacted McIntyre directly to inquire out about his approval of the mailed applications. When they realized that Domb appeared to have deceived McIntyre in telling him that the applicants were existing clients, McIntyre pointed out that in any case the applications had been completed by the clients prior to his approval. (O'Keefe Affid. Ex. P.) On November 15, 2000, Riddle formally recommended that Domb be fired "for violations of Company procedures involving application processing, commingling of funds and unauthorized mailing to potential customers." (Id. Ex. J.) Domb was fired on December 7, 2000. (Eikenberry Affid. Ex. 4.)

Domb's complaints against Dunn and Riddle had by then been investigated by the Human Resources staff. Senior Vice President Vitiello concluded, in a December 8, 2000, letter to Domb, that "we are unable to conclude that . . . Riddle harassed you in any way," and that "we are unable to conclude that Dunn either discriminated against and/or harassed or threatened you."*fn4 (Id. Ex. 3.) Vitiello pointed out that Domb complained only after "confronted with what was believed by . . . Dunn to be questionable sales practices." (Id.) [ Page 9]


I. Summary Judgment Standard

When adjudicating a motion for summary judgment, a court must resolve all ambiguities in favor of the nonmoving party, although "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Wevant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Summary judgment is then appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

To establish a genuine issue of material fact, the opposing party `"must produce specific facts indicating' that a genuine factual issue exists." Scotto, 143 F.3d at 114 (quoting Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998)): see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Pocchia v. NYNEX Corp., 81 F.3d 275, 277 (2d Cir. 1996)(quoting Liberty Lobby, 477 U.S. at 252). [ Page 10]

II. Title VII and ADEA: Hostile Work Environment

A. Statute of Limitations

Met Life argues that Domb's claims of a hostile work environment are time-barred because "[m]ost of the comments [she] relies upon were allegedly made well outside of the limitations period." (D. Mem. 16.) Under Title VII and the ADEA, a plaintiff must file a charge with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory act; claims predicated upon acts occurring more than 300 days before the EEOC charge are time-barred. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Domb filed her EEOC charge on May 4, 2001 (O'Keefe Affid. Ex. A); therefore the appropriate limitations period began on July 8, 2000.

Met Life points to the fact that, according to Domb's deposition testimony, Dunn's isolated "smart Hebe" remark and his taunting of her after her divorce were confined to 1997 and earlier, and therefore claims based upon that conduct are time-barred. However, in a hostile work environment claim, when some of the acts "contributing to the claim" occur within the limitations period, "the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Thus, "the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment." Id. at 118.

To place her claim within the limitations period, Domb relies on her claim "that Dunn subjected her to offensive remarks about being Jewish and Spanish on a weekly basis continuously throughout the period that she worked under his management, including between July 2000 and her December 2000 termination." (P. Mem. 12-13.) The evidence supporting the [ Page 11]

alleged continuation of this conduct through and beyond July 8, 2000, includes Domb's deposition testimony that Dunn's offensive behavior was "a general demeanor that was exhibited on a weekly basis . . . with other people listening in" (O'Keefe Affid. Ex. C at 238), and her statement in her November 2000 complaint that Dunn "rarely misses an opportunity to remind me that I am a Jew, a woman, a foreigner and Hispanic" (Eikenberry Affid. Ex. 2). In light of Domb's consistency in stating that Dunn used the term "smart Hebe" only once in her presence (Wolff Affid. ¶ 7; Eikenberry Affid. Ex. 2), a jury might find credible her insistence that he made other offensive, if less pointed, statements to her on a regular basis throughout the time she worked for him. The fact that Domb does not give specific dates falling within the limitations period does not defeat her claim, since "specific details about each incident" are not required. Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997). Indeed her lack of specificity is consistent with her claim that the conduct occurred frequently.

Nor should the Court, as Met Life apparently desires (D. Mem. 16-17), treat Dunn's comments about Domb's religion, gender, and national origin as three separate hostile work environment claims each needing to be separately proved: "[W]here two bases for discrimination exist, they cannot be neatly reduced to distinct components." Lam v. University of Hawai'i, 40 F.3d 1551, 1562 (9th Cir. 1994): see also Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("[D]iscrimination against black females can exist even in the absence of discrimination against black men or white women."). Domb had one work environment that was either made hostile by Dunn's discriminatory remarks or not, and Met Life cannot escape or reduce its liability, or selectively strike evidence from the record, solely because Domb's supervisor may have found multiple bases for discriminating against and harassing her. [ Page 12]

A jury could reasonably find that the hostile work environment created in part by the specific conduct alleged before July 8, 2000, continued into the period after that date. Therefore, summary judgment will not be granted as to the hostile work environment claim on the basis of the statute of limitations.

B. Evidence of Hostile Work Environment

Employers may be held liable under Title VII for the conduct of employees, and particularly supervisors, that is so abusive as to alter the conditions of employment for disfavored classes of employees. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To prevail on her hostile work environment discrimination claim, Domb must prove two elements. First, the conduct must be "severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). Such an environment is one "permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the victim's employment." Id. at 21. Second, the plaintiff must have "subjectively perceive[d] the environment to be abusive." Id.

Met Life argues that here, Dunn's comments were "isolated and discrete," and therefore did not pervade plaintiff's work environment. (D.Mem. 18.) It compares Domb's allegations with those in Young v. Rogers & Wells, LLP, Dkt. No. 00 Civ. 8019 (GEL), 2002 WL 31496205 (S.D.N.Y. Nov. 5, 2002), in which summary judgment was granted on a hostile work environment claim where plaintiff alleged:

that she was given a heavier workload, that she was called a "workhorse" and a "bitch", that she learned that [her supervisor] and a co-worker spoke negatively about her in the presence of other [ Page 13]
employees, and that she heard [another supervisor] use the word "nigger" on four occasions.
Id. at *9. The Court found that these claims fell "far short of proving that an objectively hostile environment existed" because the uses of offensive discriminatory language were "isolated or at most episodic incidents which did not continue throughout Young's employment," and "were not directed at or in reference to Young or any other person of color"; and because certain other "rude" comments "ceased when Young complained." Id. at *9.

None of these rationales apply here. Unlike Young, where "[n]o combination of incidents occurred daily or even weekly" (id.), Domb here alleges and has testified that Dunn's comments were a weekly feature of her employment. Evidence in the record corroborates her testimony. Her November 1997 complaint, while primarily directed at the admittedly isolated "smart Hebe" remark, indicates that references to her religion and ethnicity were frequent. (See Eikenberry Affid. Ex. 1 (referring to Dunn calling Domb "Jew," "Jewish rep" as well as "smart Hebe," and stating she assumed Dunn "mean[t] no harm by any of it").) The affidavit of one of Domb's co-workers corroborates the regularity of Dunn's comments. (See Kowaleski Affid., id. Ex. 4 ¶¶ 3, 4.) Evidence that Dunn "repeatedly" referred to Domb as "the smart Hebe" behind her back (Jordan Affid., id. Ex. 4 ¶ 14) and made inappropriate remarks about the religion or ethnicity of other employees (Wolff Affid., id. Ex. 4 ¶¶ 4-5), while not directly relevant to the merits of Domb's hostile work environment claim, is relevant to the credibility of the testimony of Domb and her co-worker. Met Life's own internal investigation concluded that "Dunn uses ethnicity as the subject of jokes in the office." (Eikenberry Affid. Ex. 9.) Also unlike Young, the evidence already cited indicates that Dunn's comments did not stop when Domb complained in 1997, and [ Page 14]

that it was directed at and in reference to Domb herself.

The evidence here also distinguishes the instant case from that in another case cited by Met Life, Shabat v. Blue Cross Blue Shield, 925 F. Supp. 977 (W.D.N.Y. 1996). In Shabat the complained-of remarks were "far from regular occurrences; most of them were separated by a month or more." Id. at 983. Furthermore, the remarks "often involved what at most could be considered oblique references to plaintiff's membership in any protected category." Id. While Dunn's remarks about Domb's status as a divorced woman might be characterized as "oblique" references to her sex, his remarks about her religion appear to have been direct and designed to humiliate her. Cf. Ritter v. Medical Arts Center Hospital, Dkt. No. 94 Civ. 5883 (SHS), 1997 WL 45349, at *6 (S.D.N.Y. 1997) (denying summary judgment on account of possible "cumulative effect" of remarks, despite finding that they "were not directed specifically at [plaintiff], were not perceived by her to be intimidating, and were not accompanied by any physical contact," and although plaintiff said "she enjoyed her job and performed it well.")

Met Life also argues that since Domb admitted that "in 1997 she thought of Dunn as `friendly and harmless' and believed that `he would make an ideal next-door neighbor" (D. Mem. 20, quoting Domb 8/21/2002 Tr. 28-29), she cannot satisfy the second, subjective element of her hostile work environment claim. However, as Met Life admits, Domb apparently no longer felt this way by March 2000, when she requested a transfer from Dunn's unit due to his "lack of professionalism at constant defamation of [her] character." (Domb 8/21/2002 Tr. 38.) Since "hostile work environment claims are based on the cumulative effects of individual acts and are potentially comprised of single acts of harassment that may not otherwise be actionable on their own," Costanzo v. U.S. Postal Service, Dkt. No. 00 Civ. 5044 (NRB), 2003 WL 1701998, at *10 [ Page 15]

(S.D.N.Y. Mar. 31, 2003) (citing Morgan, 536 U.S. at 115), the fact that Domb's subjective experience in 1997 had not yet sunk to the level of a hostile work environment does not mean that the pattern of conduct did not contribute to the creation of such an environment later.

Met Life's arguments might well persuade a reasonable factfinder that Domb exaggerated the extent or effect of Dunn's remarks, or that whatever comments he made were insufficient to meet the standard for establishing a hostile work environment claim. But Domb's evidence is sufficient to raise a material factual issue. Thus Met Life's motion for summary judgment will be denied as to Domb's hostile work environment claim.

II. Retaliation and Age Discrimination Claims

In deciding a summary judgment motion in a federal employment discrimination complaint, either under Title VII or under the ADEA, we apply the framework of Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), reaffirmed in James v. New York Racing Assoc., 233 F.3d 149, 155 (2d Cir. 2000); see also Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (applying framework to ADEA claim). We begin by asking whether the plaintiff has established the "minimal" prima facie case of discrimination or retaliation. If the plaintiff meets this burden, a presumption of discrimination or retaliation is established which "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." James, 233 F.3d at 154. If the employer fails to present such a reason, plaintiff prevails.

Here, Met Life has proffered nondiscriminatory reasons for its dismissal of Domb. Thus it is unnecessary to consider whether Domb has made out a prima facie case of either age discrimination or retaliation, since "once the employer `articulates a non-discriminatory reason' for its actions . . . the presumption completely `drops out of the picture.'" Id. (quoting St. Mary's [ Page 16]

Honor Ctr. v. Hicks. 509 U.S. 502, 510-11 (1993)). At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000)).

The Court finds no evidence suggesting that Met Life's stated reasons for firing Domb were pretextual.*fn5 Domb's compliance problems came to light in 1994, when she was supervised not by Dunn, but by her then-husband, Arnold Brownstein. (O'Keefe Affid. Ex. E, I.) Indeed, her transfer to Howell and thus to Dunn's supervision was occasioned by her resistance to bringing her activities into compliance with company policy. (Id. Ex. I ¶ 1.) Domb was warned no less than four times, prior to the complaint which she claims precipitated Met Life's retaliatory firing, that even a single infraction would result in her dismissal. An initial recommendation to dismiss her, following the late 1998 incidents, was made not by Dunn, but by the company's Ethics and Compliance department. Riddle chose not to fire her at that time, but did request her "immediate [ Page 17]

termination" on November 15, 2000, as a result of Domb's handling of the Rhode Island couple's applications. Even then, it was neither Dunn nor Riddle, but Vitiello who possessed, and exercised, ultimate authority with regard to Domb's termination. (D. Mem. 6; O'Keefe Affid. Ex. Q.)

Domb's evidence of discriminatory intent is insufficient to cast doubt on Met Life's proffered reason for firing her. With respect to the age discrimination claim, Domb's only evidence of discriminatory intent is several remarks made by Dunn during the period from 1995 to 1997, and her claim that "management had a financial incentive to terminate older, more experienced representatives." (P. Mem. 20.) Since Dunn had no authority to fire Domb, or even to make an official recommendation, and there is no evidence that he made any kind of recommendation on the matter, whatever state of mind was indicated by his "over the hill" remarks has no causal connection to the decision to fire Domb. And to the extent that Domb's dismissal was motivated by financial considerations, that disproves, rather than proves, age discrimination: "[A]n employer's concern about the economic consequences of employment decisions does not constitute age discrimination under the ADEA, even though there may be a correlation with age." Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12 (1993).

With respect to her retaliation claim, Domb relies on the fact that she was fired within a few weeks of her filing of a complaint about Dunn and on the same day it informed her of the results of the investigation of that complaint. (P. Mem. 22-23.) But that complaint itself followed, and arose out of, the confrontation with Dunn concerning her failure to follow company policy — a failure which she herself had acknowledged would result in her dismissal. Thus the [ Page 18]

timing of her dismissal was necessarily proximate to her filing of the complaint; the timing accordingly raises no inference that the dismissal was retaliatory.*fn6 To the extent that the sequence of events can be considered evidence of causation — and there is authority that such evidence by itself is insufficient to establish retaliatory intent, see, e.g., Griffin v. Ambika Corp., 103 F. Supp.2d 297, 312 (S.D.N.Y. 2000) — the timing here tends to establish that the firing was caused and motivated by what Met Life believed to be Domb's continued misconduct in the face of repeated warnings. More importantly, the other evidence here positively establishes the genuineness of that motivation.

There is no inconsistency in finding a triable issue of fact as to Domb's hostile work environment claim, and at the same time finding that no triable issue is raised as to her claim that she was fired in retaliation for complaining about that environment. The claims are entirely distinct. The hostile work environment claim is based on the conduct and motivation of a single supervisor, over an extended period of time. The claim of discriminatory or retaliatory firing, in contrast, is based on a single decision not made by that supervisor. As to the basis for that decision, it is fully documented and entirely undisputed that, long before she filed the November 2000 complaint, Domb was on notice that her violations of company policy could result in her dismissal, and that she very nearly was fired in 1998; furthermore, the personnel involved in those disciplinary actions and in the ultimate decision to fire Domb are not here alleged to have [ Page 19]

exhibited, through harassment or any other conduct, animus based upon Domb's religion, national origin, sex, or age.*fn7

III. New Jersey Law Against Discrimination

The New Jersey Supreme Court has established the same standards of proof and procedure in most types of actions brought under LAD as have been established for analogous federal claims brought under Title VII Mogull v. CB Commercial Real Estate Group, 162 NJ. 449, 461-62 (2000) (discrimination claims); Craig v. Suburban Cablevision Inc., 140 NJ. 623, 631 (1995) (retaliation claims). Thus Met Life's motion for summary judgment will be granted as to Domb's retaliation and age discrimination claims under LAD.*fn8


For the reasons stated above, Met Life's motion for summary judgment will be denied as to Domb's hostile work environment claims, and granted as to her age discrimination and retaliation claims. [ Page 20]


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