United States District Court, S.D. New York
February 4, 2004.
KIMBERLY BATKA Plaintiff, -against- PRIME CHARTER, LTD. Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Kimberly Batka ("Batka") brings this action against her
former employer, Prime Charter, Ltd. ("Prime Charter") alleging
discrimination on the grounds of gender and pregnancy in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), and the
corresponding New York State and New York City statutes; and violation of
her rights under the Family Medical Leave Act of 1993 ("FMLA"). Batka
claims that while she was on FMLA leave following the birth of her child,
Prime Charter wrongfully terminated her. Prime Charter counters that its
reasons for terminating Batka were non-discriminatory and moves this
Court to grant summary judgment against Batka on all her claims. The
Court finds that the evidence contained in the record raises genuine
issues of material fact as to Prime Charter's motives for terminating
Batka. Accordingly, Prime Charter's motion for summary judgment is
Prime Charter, a securities firm headquartered in New York,
hired Batka to work in its Compliance Department in November 1997.*fn2
Batka was responsible for, among other things, the out-of-state
registration of the stock brokers in Prime Charter's New York and Florida
offices. Batka claims that she began receiving quarterly raises shortly
after commencing her employment. In April of 1999, Prime Charter hired
James Gianni ("Gianni") as its new Director of Compliance. When Batka's
immediate supervisor resigned in October 1999, Batka was promoted,
granted another increase in salary, and began reporting directly to
Gianni. In her new position, Batka assumed most of her former
supervisor's responsibilities. According to Batka, she performed her
duties satisfactorily, occasionally receiving praise for her good work,
along with the periodic increases in salary.
On or about December of 2000, Batka informed Gianni that
she was pregnant and that she would be taking maternity leave
around the time of the birth of her child. Batka further informed Gianni
that she intended to return to Prime Charter at the end of her maternity
leave. According to Batka, once she notified Gianni that she was
pregnant, Gianni became antagonistic toward her and critical of her work
product. Batka claims that Gianni would have Batka's part-time assistant,
Stephanie Napolitano ("Napolitano"), re-do the work Batka had already
performed when there was no need to do so.
On May 15, 2001, Batka informed Prime Charter's Vice President of Human
Resources, Kathleen Coakley ("Coakley"), that due to medical necessity,
her maternity leave would commence on that day. Batka further informed
Coakley that she planned on returning to work on or about August 13,
2001, which gave Batka some time on leave under the FMLA. Coakley had
previously provided Batka with a memorandum outlining her benefits under
the FMLA and other conditions during her leave. Around the time of
Batka's departure on maternity leave, Prime Charter hired Napolitano as a
full-time employee and gave her most of Batka's responsibilities.
While Batka was out on maternity leave, approximately two weeks prior
to her anticipated return date, Prime Charter sent Batka a severance
package. When Batka called Coakley to inquire why she was being
terminated, Coakley responded that
her termination was a result of staff reductions brought on by the
downturn in the economy. Coakley did not mention to Batka that work
performance was a factor in the decision to terminate her employment.
Batka's discrimination claims center on her termination during her FMLA
leave. According to Batka, Prime Charter discriminated against her based
on her gender and/or pregnancy in violation of Title VII; and violated
her rights under the FMLA. To buttress her claim that she was a good
performer and that her termination was induced by a discriminatory bias,
Batka points to her promotion approximately two years after she was
hired, to her periodic pay raises, and to the absence of any negative
performance evaluations or complaints communicated to her.
In support of its motion for summary judgment, Prime Charter counters
that discrimination was not a factor in its decision to terminate Batka.
Rather, Prime Charter asserts that Batka's termination was a result of
staff reductions prompted by the economic downturn in the financial
sector in 2000 and 2001. Prime Charter further argues that Batka was one
of 23 employees terminated during this period of down-sizing and that she
was selected due to her alleged poor performance in carrying out her
In support of its allegation that Batka was a poor performer, Prime
Charter submits various affidavits of its employees, including those of
Gianni and Coakley, attesting that they received complaints regarding the
timeliness of Batka's work and some instances when Batka was careless in
carrying out her assignments. Prime Charter further asserts that Batka
had a problem with absenteeism. During her employment with Prime Charter,
Batka never received any written evaluation of her work or a performance
review, as it was Prime Charter's policy not to issue such evaluations to
its employees. Prime Charter explains that Batka's periodic raises were
not performance-based, but rather, were part of firm-wide salary
To support: its claim that Batka's dismissal was part of a firm-wide
effort to cut costs, Prime Charter submits articles and documents to
demonstrate that the financial sector was beset with significant economic
losses in the period of 2000-2001, which prompted wide-spread layoffs
throughout the industry. As a further indicator of the times, Prime
Charter also provides documentation that several of its high-level
employees took reductions in salary during the same period. Prime Charter
explains that despite the down-sizing, Napolitano was hired as a
full-time employee during Batka's absence because Napolitano was a
stellar performer and her
services were needed on a full-time basis to assume Batka's
responsibilities in her absence.
With regard to Batka's allegations as to how Gianni treated her, Gianni
denies that he changed his attitude toward Batka once he was notified of
her pregnancy. (See Affidavit of James Gianni In Support Of
Defendant's Motion For Summary Judgment, dated Aug. 26, 2003 ("Gianni
Aff."), at ¶ 4.) Gianni explained at his deposition that when Batka
notified him that she would be taking maternity leave, he merely diverted
his attention away from Batka and toward Napolitano because he knew that
Napolitano would be assuming Batka's responsibilities in her absence.
(See Transcript of Deposition, James A. Gianni, June 18, 2003
("Gianni Dep."), at 97:4-12; 98:17-22.)
In her complaint, Batka seeks monetary and injunctive relief based on
alleged gender/pregnancy discrimination arising from her termination in
August 2001 in violation of her rights under Title VII,
42 U.S.C. § 2000e et seq.; the New York State Human Rights Law ("NYSHRL"),
New York Exec. Law § 296 et seq. (McKinney 1993 & 2001
Supp.); the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code
§ 8-107 et seq.; and the FMLA, 29 U.S.C. § 2601 et seq.
Pending before the Court is Prime Charter's motion for summary judgment
on all of her claims.
A. STANDARD FOR SUMMARY JUDGMENT
The Court may grant summary judgment only "if 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 that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). The Court must first look to
the substantive law of the action to determine which facts are material;
"[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). Even if the parties dispute material facts, summary judgment will
be granted unless the dispute is "genuine," i.e., "there is
sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party." Id. at 249.
The moving party bears the initial burden of demonstrating that the
evidence contained in the record fails to raise a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). After such a showing, the non-moving party must respond with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). To this end, "[t]he non-moving party may not rely on
mere conclusory allegations nor speculation, but instead must offer
some hard evidence showing that its version of the events is not wholly
fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d
Cir. 1998). In other words, "[w]hen the moving party has carried its
burden under Rule 56(c), its opponent must: do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
Throughout this inquiry, the Court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences
in favor of that party. See Schneider v. Feinberg, 345 F.3d 135,
144 (2d Cir. 2003). The Court's role is to determine whether there
are triable issues of fact, and not to resolve such disputed matters.
See Anderson, 477 U.S. at 249; Gibson v. American
Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir. 1989).
B. BATKA'S TITLE VII CLAIM
Title VII provides in relevant part that "[i]t shall be an unlawful
employment practice for an employer . . . to discharge any
individual, . . . because of such individual's . . . sex. . . ."
42 U.S.C. § 2000e-2 (a)(1). In the instant case, Batka alleges that
Prime Charter terminated her
employment because of her gender and pregnancy.*fn3
Where, as in this case, the evidence of the alleged unlawful
discrimination is only circumstantial, the sufficiency of a Title VII
discrimination claim is assessed under the three-step burden-shifting
analysis enunciated by the United States Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973).*fn4 Under
this framework, the plaintiff must first make out a prima facie case of
discrimination. See id. at 802; see also Cifra
v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001). A
plaintiff makes out a prima facie case by showing that (1) she is a
member of a protected class; (2) she is qualified for the position in
question; (3) she suffered an adverse employment action; and (4) the
surrounding circumstances give rise to an inference of discrimination
based on the plaintiff's membership in the protected class. See
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 767
(2d Cir. 2002); see also Thomas v. Westchester County Health
Care Corp., 232 F. Supp.2d 273, 278 (S.D.N.Y. 2002). The
plaintiff's burden in establishing
a prima facie case is "de minimis." Zimmermann v.
Assocs. First Capital Corp., 251 F.3d 376, 380-81 (2d Cir. 2001)
(citations omitted); see also McGuinness v. Lincoln
Hall, 263 F.3d 49, 53 (2d Cir. 2001).
If the plaintiff makes out a prima facie case, there is a presumption
of discrimination and the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the adverse action. See
McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the defendant meets
this burden, the presumption of discrimination is rebutted and the burden
shifts back to the plaintiff to prove by a preponderance of the evidence
that the defendant's proffered reasons were merely a pretext for
discrimination and that its conduct under the circumstances gives rise to
an inference of unlawful discrimination. See Burdine, 450 U.S.
at 253; Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d
Cir. 2001). Nonetheless, through all steps of this assessment, the
evidence the plaintiff presents in opposing summary judgment must be
sufficient to demonstrate the discriminatory intent underlying the
defendant's action. Thus, "[i]t is important to note, . . . that although
the McDonnell Douglas presumption shifts the burden of
production to the defendant, `[t]he ultimate burden of
persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff.'" St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993)(quoting Burdine, 450 U.S.
at 253) (italics in original).
The Court considers the evidence in the record within the
McDonnell Douglas framework.
1. Batka's Prima Facie Case
There is apparently no dispute between the parties that Batka has
satisfied the first and third elements of her prima facie case, i.e., she
is a member of a protected class and has suffered an adverse employment
action. With regard to the second element, Prime Charter has not
challenged Batka's qualifications for her position, despite its
allegations of poor performance.*fn5 Thus the Court addresses only the
fourth element with any degree of detail.
In its motion papers, Prime Charter argues that Batka has not met her
initial burden of establishing a prima facie case because she cannot
satisfy the last element, namely, that the circumstances of her
termination give rise to an inference of discrimination. The Court does
not agree. Viewing the allegations and the evidence in the record in a
favorable to Batka, the Court finds that she has satisfied her
burden of making a prima facie case of discrimination. Consideration of
the surrounding circumstances of Batka's dismissal could lead to a
reasonable inference that discrimination played at least some role in
Prime Charter's decision. Specifically, the uncontested fact that Batka
received salary increases and a promotion during her tenure at Prime
Charter; Prime Charter's hiring of a full-time replacement during her
absence; and the timing of her dismissal undermine Prime Charter's
contention that Batka was terminated because she was a poor performer.
Because Batka's burden at this stage is minimal, the Court is persuaded
that she has established a prima facie case giving rise to a presumption
of employment discrimination under McDonnell Douglas.
2. Prime Charter's Non-Discriminatory Reasons
Batka having established her prima facie case, the burden shifts to
Prime Charter to put forth a non-discriminatory reason for the adverse
employment action. To meet this burden, Prime Charter submits evidence to
suggest that the decision to dismiss Batka was based on the need to
reduce staff in response to a weak economy during the relevant period.
The evidence submitted indicates that Batka was one of 23 employees who
were terminated during this time. Prime
Charter argues that she was selected to be terminated on the grounds
that her performance on the job was unsatisfactory. At this point in the
analysis, Prime Charter need only proffer some non-discriminatory reason
for its actions. There is no need to assess the credibility of the
proffered reason at this stage nor does Prime Charter have to show that
it actually relied on these reasons. See Hicks, 509 U.S. at
509; Farias v. Instructional Sys., 259 F.3d 91, 98 (2d
Cir. 2001)(citing Burdine, 450 U.S. at 254). Accordingly, the
Court finds that Prime Charter has met its burden of rebutting the
presumption of discrimination.
3. Batka's Burden to Show Pretext
The burden now shifts back to Batka to show that the proffered reasons
were more likely than not a pretext for unlawful discrimination. It is at
this final stage of the analysis where the heart of the parties' dispute
lies, namely, the determination of Prime Charter's true intent when it
took the adverse action against Batka. Unfortunately, as is common in
employment discrimination cases, on the record the parties have
presented, there is a dearth of objective evidence bearing on this
question. In reviewing the evidence, the Court is left mostly to unravel
the classic "he-said, she-said" battle, here depicted primarily in the
form of affidavits rather than deposition testimony. Nevertheless,
the Court undertakes this task with a focus on the uncontested
facts and surrounding circumstances and mindful that for purposes of the
instant motion, it is only to determine whether a genuine issue of
material fact exists after viewing the evidence in a light most favorable
to Batka and after giving her the benefit of all reasonable inferences.
In showing pretext in the final step of the McDonnell Douglas
analysis, Batka may carry her burden "by reliance on the evidence
comprising the prima facie case, without more." Holtz v. Rockefeller
& Co., 258 F.3d 62, 79 (2d Cir. 2001) (citing Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)).
Upon review of the record as a whole, the Court is persuaded that Batka
has raised a genuine issue of material fact regarding Prime Charter's
motives for dismissing her. Instrumental in this holding is the
uncontested fact that Batka was promoted in October 1999 and received
raises even though Gianni testified as his deposition that he received
complaints regarding Batka's work prior to this date. (See
Gianni Dep. at 23:11-14; 25:17-26:17; 30:6-12.) Although Prime Charter
argues that these raises were firm-wide and not performance-based, a
reasonable fact-finder could conclude that Prime Charter was in no way
obligated to offer raises (and much less a promotion) to an
Moreover, the Court is not persuaded that the evidence contained in the
record bearing on the issue of Batka's work performance so firmly
establishes Prime Charter's proffered reason for the discharge to the
point that there are no genuine issues of material fact. For example,
Gianni was at times vague as to the details of the alleged complaints and
the identity of the complainants; and he admitted that even after Batka
began reporting directly to him, he did not directly review her work.
(See id. at 25:14-27:3; 30:10-24; 33-22-34:3; 64:12-65:7.)
Also, Gianni testified that after receiving the alleged complaints, he
never formally discussed them with Batka (aside from informal inquiries)
and he never independently investigated the alleged complaints. (See
id. at 31:3-11; 32:25-33:8; 44:8-16; 45:2-9.) Finally, it is
undisputed that when Batka called Coakley to inquire as to why she was
being terminated, Coakley's only proffered reason was the need to reduce
staff; no mention was made of work-performance issues. From these facts,
the Court finds that Batka has raised triable issues as to whether Prime
Charter discriminated against her.
The Court also finds that Prime Charter's decision not to memorialize
any of these alleged deficiencies in Batka's work performance and the
resulting lack of contemporaneous pre-litigation documentation on this
question raises a genuine
issue of material fact as to whether discrimination played a role
in its decision to terminate her. In its reply brief, Prime Charter
argues that Batka's opposition papers contain "unsupported self-serving
statements" that do not raise any genuine issues of fact. (Reply at 1.)
The Court notes that substantially all of Prime Charter's evidence on
this question rests on the affidavits of its employees, arguably
self-serving statements onto themselves, albeit made under penalty of
perjury.*fn6 In short, as far as the Court can discern from the record,
all the evidence supporting Prime Charter's claim that Batka was not
performing satisfactorily surfaced after this action was commenced. The
Court does not suggest that this observation is fatal to ultimately
defeat Batka's claim of discrimination. Rather, the Court finds that such
evidence fails to eliminate genuine issues of fact raised by Batka.
Accordingly, the Court concludes that triable issues of fact exist as to
Prime Charter's intent in taking the adverse employment action Batka
The Court has no basis to doubt that Prime Charter, like many other
firms in the financial sector, may have experienced
the ill-effects of the declines that struck the securities markets
in the United States in 2000 and 2001. Nor does the Court have any
grounds to question Prime Charter's decision to reduce its staff in
response to such a downturn in business. Prime Charter's evidence clearly
establishes that perfunctory lay-offs were a common occurrence in the
securities industry at that time. The question before the Court, however,
is not whether unlawful discrimination was the sole reason Prime Charter
took the adverse employment action. Rather, the issue is whether, on the
evidence contained in the record, a rational jury could find that despite
any legitimate grounds it may have had, unlawful discrimination played a
motivating role in Prime Charter's decision to take the adverse action.
As the Second Circuit has explained:
To defeat summary judgment within the
McDonnell Douglas framework, . . ., the
plaintiff is not required to show that the
employer's proffered reasons were false or played
no role in the employment decision, but only that
they were not the only reasons and that the
prohibited factor was at least one of the
Holtz, 258 F.3d at 78 (internal quotations and citations
omitted); see also Sutera v. Schering Corp., 73 F.3d 13,
17 (2d Cir. 1995). Thus, Prime Charter's evidence that Batka was but
one of several employees terminated in the relevant time period may
establish that the need to reduce staff was certainly a factor in Batka's
termination. That alone, however, does not eliminate the factual issue of
unlawful discrimination also played a role. See Carlton v.
Mystic Transp., Inc., 202 F.3d 129
, 136 (2d Cir. 2000) (stating that
even within legitimate staff reductions, an employer may not discriminate
when selecting employees to be terminated) (citation omitted).
Although the evidence is hardly overwhelming for either side, the Court
finds that Batka has met her burden at this final step in the
burden-shifting analysis sufficient to raise triable issues of fact.
Thus, the determination as to whether Prime Charter considered Batka's
gender and/or pregnancy in deciding to terminate her is properly left to
a trier of fact who can determine what weight, if any, to accord the
competing evidence in the record. See Gallo v. Prudential
Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1224 (2d
Cir. 1994) ("A trial court must be cautious about granting summary
judgment to an employer when, . . . its intent is at issue.") (citations
Accordingly, Prime Charter's motion for summary judgment on Batka's
Title VII claim, and her claims under the corresponding provisions of the
NYSHRL and NYCHRL, is denied.
C. BATKA'S FMLA RETALIATION CLAIM
Under the FMLA, an eligible employee is entitled to take up to 12 weeks
of unpaid leave in any 12-month period "[b]ecause of the birth of a son
or daughter of the employee. . . ."
29 U.S.C. § 2612(a)(1)(A). Upon return from a FMLA leave, the
employer is required to reinstate the employee to the same or equivalent
position the employee had at the time the leave commenced. See
29 U.S.C. § 2614(a)(1). The FMLA makes it "unlawful for any
employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under [the FMLA]."
29 U.S.C. § 2615(a)(1) ("§ 2615(a)(1)"). Batka claims that Prime
Charter unlawfully retaliated against her for exercising her FMLA rights
by terminating her while on leave in violation of § 2615(a)(1).
Prime Charter argues that an employee on FMLA leave is not immune from an
adverse employment action if the action was prompted by legitimate
business concerns. Relying on the affidavits of its employees, Prime
Charter asserts that it has shown a legitimate business concern and thus,
that there is no genuine issue of material fact on this question. The
Court does not agree.
Prime Charter is correct that an employee on FMLA leave is not entitled
to the "accrual of any . . . employment benefits during any period of
leave; . . .," and thus, the employee remains susceptible to discharge
for a non-discriminatory reason. 29 U.S.C. § 2614(a)(3)(A). This
argument, however, presupposes that the employer's reasons for
terminating the employee were entirely lawful. Prime Charter's intent in
terminating Batka is at the heart of the present inquiry. Thus, it
may not rely on this FMLA provision in seeking summary judgment on this
point. In this regard, the analysis of whether there is a genuine issue
of material fact with regard to Batka's FMLA claim is similar to the
analysis under her Title VII claim.
In her opposition brief, Batka correctly points out that the Second
Circuit has not ruled on the legal standard applicable to a FMLA
retaliation claim. See Hale v. Mann, 219 F.3d 61, 70 (2d
Cir. 2000) (declining to decide whether McDonnell Douglas
applies to a FMLA retaliation claim). The alternative standard that
some courts have applied to claims under § 2615(a)(1) dispenses
with burden-shifting and merely requires Batka to show that (1) she
participated in a FMLA protected activity, and (2) the
decision to terminate her was motivated by the FMLA participation.
See, e.g., Bachelder v. America West Airlines,
Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); Mann v. Mass.
Correa Electric, J.V., No. 00 Civ. 3359, 2001 WL 88915, at *7
(S.D.N.Y Jan. 23, 2002).
The Court finds it unnecessary to decide which standard should be
applied in this case. Having determined that Batka satisfies the more
rigorous McDonnell Douglas burden-shifting analysis, the Court finds that
she also satisfies the standard articulated in Bachelder. See Darboe
v. Staples, Inc., 243 F. Supp.2d 5, 16
(S.D.N.Y. 2003) ("Because plaintiff establishes that a genuine issue of
material fact exists under the more rigorous McDonnell Douglas
analysis, he has also established that a genuine issue of material exists
under the standard enunciated in Bachelder and
Mann."). Accordingly, Prime Charter's motion for summary
judgment on Batka's FMLA retaliation claim is denied for substantially
the same reasons that the Court denies summary judgment on her Title
For the foregoing reasons, the Court concludes that issues of material
fact exist from the evidence in the record that a discriminatory bias
played at least some role in Prime Charter's decision to terminate Batka.
Accordingly, Prime Charter's motion for summary judgment is denied.
For the reasons set forth above, it is hereby
ORDERED that Prime Charter Ltd.'s ("Prime Charter") motion
for summary judgment is DENIED.