United States District Court, N.D. New York
February 12, 2004.
LISA A. BURNICHE, Plaintiff, -vs- GENERAL ELECTRIC AUTOMATION SERVICES, INC., Defendant
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Lisa A. Burniche ("plaintiff") brought suit against defendant
General Electric Automation Services, Inc. ("defendant"), alleging she
was terminated on the basis of her gender in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"),
and New York Executive Law § 296(1) ("New York Human Rights Law").
Defendant filed a motion for summary judgment pursuant to Fed.R. Civ.
P. 56. Plaintiff opposed. Oral argument was heard on December 1, 2003, in
Albany, New York. Decision was reserved.
II. FACTUAL BACKGROUND
On October 5, 2000, in anticipation of acquiring TRS Staffing
Solutions, where plaintiff then worked, defendant offered to plaintiff a
pay raise and a position as a drafter. Even though plaintiff believed
that the increased pay rate was inadequate, she accepted the offer "[t]o
pay the bills." (Docket No. 20, p. 66.) From the outset of her employment
with defendant, plaintiff sought a pay increase because of her belief
that she was performing duties outside the scope of a drafter.
On February 25, 2001, defendant hired Thameem Ismail ("Ismail"). Though
the parties dispute the scope of his authority, Ismail was in some
respect plaintiff's supervisor. He began to investigate ways to
accommodate plaintiffs request for a pay raise, and even sought to create
a new position for her.
On April 20, 2001, plaintiff wrote to defendant's manager of staffing,
detailing the efforts she had made to secure a pay raise. After Ismail
received a copy of the correspondence, he met with his contact at General
Electric Silicone ("GES"), defendant's internal client, to explore
promotion possibilities for plaintiff. He left the meeting with the
understanding that a promotion was possible, subject to a performance
review, customer needs, and human resources approval.
In July of 2001, after nothing had yet been done, plaintiff wrote
defendant's manager of human resources, commending Ismail's efforts on
her behalf, and claiming that the manager of staffing was the individual
blocking her efforts to secure a pay raise. The
letter was referred to a regional human resources manager, who
denied her request for a pay raise. He explained that she was mistaken as
to the pay range for a drafter she had confused billing rates
with pay rates and that the pay rate she was requesting was
equivalent to that of a designer, for which she did not meet the
Finally, in September of 2001, defendant began the performance
evaluation process for plaintiff. Ismail interviewed two of plaintiffs
primary contacts at GES regarding her performance, and then spoke with
his primary contact at GES. Thereafter, he typed notes of these meetings
and incorporated them into a performance review form. He placed the notes
and the performance review in an envelope, which he stored in his office
On November 7, 2001, Ismail entered his office to find plaintiff behind
his desk. Defendant claims Ismail saw plaintiff leaning over an open desk
drawer, that when she saw
him she immediately closed the drawer and moved toward the exit,
and that she had in her hand an interoffice envelope similar to the one
in which he placed the notes and performance review. Plaintiff claims she
was in Ismail's office trying to locate engineering drawings that needed
to be filed, and that such practice was common for those under his
authority. Later that day, another of defendant's employees came into
Ismairs office and handed him a copy of plaintiff's performance review,
which he had found on a copy machine.
That same day, Ismail told a human resources representative, Michelle
Hughes ("Hughes"), of what he had observed and his own informal
investigation of the incident to that point. Hughes called the human
resources manager, explained the situation, and recommended that
plaintiff be suspended pending an investigation. The manager concurred,
and Hughes instructed Ismail to inform plaintiff of her suspension the
next day when she arrived for work. As part of the subsequent
investigation, the manager spoke with Ismail, and Hughes spoke with
plaintiff to get her account of what had happened. Plaintiff denied
taking anything from Ismail's office or even opening or closing a desk
drawer. The manager eventually directed Hughes to complete the paperwork
necessary for plaintiff's termination.
On November 16, 2001, Ismail informed plaintiff that she was
terminated. The official termination notice stated, under the heading
"Statement of the problem," "Employee in unauthorized area Lisa
was found in manager's office, behind desk with drawer open." (Docket No.
20, Ex. O.) Under the heading "Statement of company policy on this
subject" appeared the language, "Employee Conduct and Work rule
infractions may result in disciplinary actions, up to and including
On March 28, 2002, plaintiff filed a discrimination charge with the
Equal Employment Opportunity Commission ("EEOC"), alleging she had been
terminated on the
basis of her gender. After the EEOC determined that no
discrimination had occurred and issued plaintiff a right to sue letter,
this lawsuit followed.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Richardson v. New York State Dep't of Correctional Servs.,
180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project
Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the
moving party has met the initial burden of demonstrating the absence of a
genuine issue of material fact, the nonmoving party "must set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec.
Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must
do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586.
To withstand a summary judgment motion, sufficient evidence must exist
upon which a reasonable jury could return a verdict for the nonmovant.
Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec.
Indus. Co., 475 U.S. at 587.
B. Termination on the Basis of Sex
Plaintiff claims she was fired on the basis of her sex in violation of
Title VII*fn2 and the New York Human Rights Law ("HRL").*fn3
Discrimination claims under New York State law "are evaluated using the
same analytical framework used in Title VII actions." Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). That
"well-known burden shifting" framework, Coffey v. Dobbs Int'l
Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999), first outlined by
the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981), and St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), consists of three
steps. First, the plaintiff is required to demonstrate a prima
facie case of gender discrimination. McDonnell Douglas,
411 U.S. at 802; Burdine, 450 U.S. at 252-53. Second, if the
plaintiff satisfies the mandates of the prima facie case, a rebuttable
presumption of discrimination arises and the burden of production shifts
to the defendant "to articulate some legitimate, nondiscriminatory reason
for the employee's [termination.]" McDonnell Douglas, 411 U.S.
at 802; Burdine, 450 U.S. at 253. Third, if the defendant meets
this obligation, the presumption of discrimination "simply drops out of
the picture." Hicks. 509 U.S. at 510-11, and the burden shifts back to
the plaintiff to prove that the reason proffered by the defendant is a
mere pretext for discrimination, McDonnell Douglas, 411 U.S. at
804; Burdine, 450 U.S. at 253. Despite the burden shifting,
"[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." Burdine, 450 U.S. at 253.
1. Plaintiff's prima facie case
To satisfy her prima facie case, plaintiff here must prove
that: "(1) she is a woman; (2) she was qualified for her position; (3)
she was discharged; and (4) her firing occurred under circumstances
giving rise to an inference of discrimination." Shumway v. United
Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). The Second
Circuit has "often emphasized" that the initial burden borne by a Title
VII plaintiff is "minimal." McGuinness v. Lincoln Hall,
263 F.3d 49, 53 (2d Cir. 2001) (internal citations omitted): see
also Burdine, 450 U.S. at 253 (describing burden as
"not onerous"). There is no dispute that plaintiff is a female, was
qualified to be a drafter at the time she was fired, and was in fact
fired. Defendant contends, however, that plaintiff cannot meet the fourth
prong of the prima facie case.
Plaintiff first claims that her burden has been met because her duties
were assumed by male employees after she was fired. Ordinarily, "the mere
fact that a plaintiff was replaced by someone outside the protected class
will suffice for the required inference of discrimination at the prima
facie stage of the Title VII analysis." See Zimmerman v. Assocs.
First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (citations
omitted). This principle, however, is not without its limits. For
instance, where the evidence of the individual allegedly replacing the
plaintiff comes from "completely unsupported self-interested assertions,
the prima facie burden is not met, "liberal though that standard might
be." See Elliot v. British Tourist Auth., 172 F. Supp.2d 395,
400 (S.D.N.Y. 2001). Here, plaintiff points to the
deposition testimony of Ismail, who admitted that, after plaintiff
was fired, the male employees in her former department assumed her
duties. (Docket No. 22, Attorney Aff., Ex. A, p. 95.) Such is sufficient
for the purposes of her minimal burden at this stage of the litigation.
Plaintiff also asserts that her prima facie burden has been
satisfied because other male employees who engaged in the same conduct
she did were not terminated. The Second Circuit recently addressed
"whether a discrimination plaintiff may or must show disparate
treatment" to satisfy her burden under the fourth prong of the prima
facie case. See Abdu-Brisson v. Delta Air Lines, Inc.,
239 F.3d 456, 467 (2d Cir. 2001) (emphasis added). Despite "conced[ing] that
the case law on this particular point . . . is confusing," id., the
court in Abdu-Brisson declined to issue an across-the-board
ruling on the issue. To the panel's credit, it did note a particular
situation where evidence of disparate treatment was not
required where "there are no employees similarly situated to
the plaintiff." Id., (categorizing these types of
plaintiffs as "in a class all by themselves"). "[l]n such a case, the
plaintiff should be able to create an inference of discrimination by some
other means." Id. By use of the phrase "in such a case," one
could argue that the Second Circuit implicitly held that, in cases not
fitting that category, evidence of disparate treatment is
required, However, by defining the situation as one in which
"there are no employees similarly situated to the plaintiff," the court
essentially answered the question tautologically i.e., if
evidence of disparate treatment exists, a plaintiff should (and no doubt
would) use it; if it does not, it may satisfy the fourth prong by other
Thus, Abdu-Brisson does nothing to disturb the well
established principle that a plaintiff may satisfy the fourth
prong of the prima facie case "by showing that the employer
subjected [her] to disparate treatment, that is, treated [her] less
favorably than a similarly situated employee outside [her] protected
group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000). Where a plaintiff chooses such a course of action, the evidence
offered must demonstrate "that her co-employees were subject to the same
performance evaluation and discipline standards," and that they were not
disciplined despite "engag[ing] in comparable conduct." Id., at
40 (citations omitted). "Comparable" is not equivalent to "identical,"
but rather to conduct of "comparable seriousness," id. (quoting
McDonnell Douglas, 411 U.S. at 804), which the court in
Graham interpreted to mean "a reasonably close resemblance of
the facts and circumstances of plaintiffs and comparator's cases,"
In support of her argument that male employees who engaged in the same
conduct as her did not get terminated, plaintiff cites no affidavit or
deposition other than her own. In addition, she does not name specific
persons or specific dates or circumstances of such events occurring.
Rather, her allegation is more general that male employees enter
Ismail's office and go behind his desk all the time without permission,
and are not terminated therefor. Nevertheless, because there is evidence
in the record that male employees assumed her duties after she was
terminated, plaintiff has satisfied her prima facie burden.
2. Defendant's legitimate, non-discriminatory
reason for termination
As noted, because plaintiff has satisfied the burden of establishing a
prima facie case of discrimination, the burden of production shifts to
defendant to articulate a non-discriminatory reason for terminating her.
Like plaintiff's prima facie burden, this burden "also is not a demanding
one; [defendant] need only offer . . . an explanation for the employment
decision." Bickerstaff v. Vassar College, 196 F.3d 435
, 446 (2d
In its moving papers, defendant claims plaintiff was terminated for
"misconduct" that "violated [defendant's] Code of Conduct." See
Docket No. 21, pp. 12-13. Plaintiff points out, however, that her
termination notice stated that she was being discharged for being "in
[an] unauthorized area Lisa was found in manager's office, behind
desk with drawer open." See Docket No. 20, Ex. O. However, the
notice also states that the "subject" involved was "Employee Conduct and
Work rule infractions." id. Moreover, defendant in its moving
papers claims that "entering the Office without permission, opening Mr.
Ismail's desk drawer, and removing the Envelope containing private,
confidential performance reviews of a number of employees, including
plaintiff," (Docket No. 21, p. 13), is the conduct that
violated the workplace rules. Therefore, the reason stated in the
termination notice and the reason offered in the moving papers are not
different in any substantive or material aspect. Using different words or
language is clearly a distinction without a difference, as the reason
offered in the moving papers is nothing more than a specific
clarification of the termination notice.
To the extent that the reasons are indeed different, no authority has
been cited or found that indicates such is impermissible.*fn4 In fact,
it should be noted that the burden of production shifts to the defendant
to "offer" a nondiscriminatory reason for the termination, not to restate
specific language that had been used at the time of the event. In any
event, any substantive difference between the reasons will not impact or
make more difficult
plaintiffs burden of proof, and plaintiff may in fact argue that
such difference is evidence of defendant covering up that the real reason
for the termination was discriminatory.*fn5
Because defendant satisfied its burden in the second McDonnell
Douglas step, the burden shifts back to plaintiff to prove that the
reason proffered by defendant is a mere pretext for discrimination. Prior
to the Supreme Court's decision in Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000),
in order survive summary judgment, the Second Circuit required a
plaintiff to offer proof that there were factual questions as to the
truth or credence of the defendant's asserted reason for taking an
adverse employment action, and as to whether the real reason
was discriminatory. See Schnabel v. Abramson, 232 F.3d 83,
88-89 (2d Cir. 2000) (quoting Woroski v. Nashua Corp.,
31 F.3d 105, 108-09 (2d Cir. 1994)); see also Belfi v. Pendergrast,
191 F.3d 129, 140 (2d Cir. 1999) (with respect to third McDonnell
Douglas step, plaintiff must show that "not only was the reason
offered false, but [also] that the real reason was discrimination"). Put
another way, a plaintiff had to demonstrate "pretext plus" some other,
independent evidence of discrimination.
The Supreme Court in Reeves, however, rejected any per
se rule embracing the pretext plus approach.*fn6 Specifically, the
Court noted that where a plaintiff can offer evidence that the
defendant's proffered reason is false, and adduces strong evidence in
support of a
prima facie case, that can be (but is not always) enough to
sustain the burden in the third McDonnell Douglas step, despite
the absence of other, independent evidence of discrimination.
Reeves, 530 U.S. at 147. Other times, however, a court can (but
does not have to) require such independent evidence when, for example,
"the record conclusively reveal[s] some other, nondiscriminatory reason
for the employer's decision, or if the plaintiff created only a weak
issue of fact as to whether the employer's reason was untrue, and there
was abundant and uncontroverted independent evidence that no
discrimination occurred." id. at 148.
Thus, "the Supreme Court's decision in Reeves clearly
mandates a case-by-case approach, with a court examining the entire
record to determine whether the plaintiff could satisfy [her] ultimate
burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff." Schnabel, 232 F.3d at 90
(internal quotations and citation omitted). In other words, "the
governing standard is simply whether the evidence, taken as a whole, is
sufficient to support a reasonable inference that prohibited
discrimination occurred." James v. N.Y. Racing Ass'n,
233 F.3d 149, 156 (2d Cir. 2000). Though this would appear to eliminate any
strict guidelines as to the form and substance of proof in the third
McDonnell Douglas step in favor of a flexible, case-by-case
approach, "Reeves in no way relaxed the requirement that
plaintiffs make a showing that the defendants' proffered explanations
were pretextual." Abdu-Brisson, 239 F.3d at 470. Also not
excluded from strong consideration in the inquiry are "the strength of
the plaintiff's prima facie case,. . . and any other evidence
that supports or undermines the employer's case." James 233
F.3d at 156 (internal quotations and citations omitted). Thus, though the
burdens borne by a plaintiff and a defendant in the first and second
McDonnell Douglas steps are indeed light, it would
behoove both to go above and beyond the call of duty, especially
for the plaintiff when no other evidence exists aside from that offered
in the prima facie case.
Aside from her prima facie case, which can only be characterized as
weak, plaintiff has presented no compelling evidence to create a triable
issue of fact with respect to the third McDonnell Douglas step.
As noted, her "evidence" of similarly situated employees not being
disciplined for the same conduct is vague, non-specific and conclusory.
It is derived from no authority other than her own affidavit.
To the extent that the focus is on the investigation and termination
alone, plaintiff has clearly failed to present enough evidence to survive
summary judgment. Plaintiff was in Ismail's office behind his desk. He
claims she left his office with an envelope similar in appearance and
size to the one containing confidential performance evaluations. He was
later presented with her performance evaluation, which had been found on
a copy machine. He reported the incident to Hughes, who spoke with
plaintiff. It is not within the purview of this court to substitute its
judgment for that of those working for defendant, especially when
plaintiff has failed to produce a scintilla of evidence that the
investigation and facts leading to that judgment were tainted with the
stain of discriminatory animus.
In fact, plaintiff arguably admits in her deposition that she was not
terminated on the basis of her gender, but rather because of her
persistent efforts to secure more compensation. See Docket No.
20, Ex. B, p. 138 (agreeing that it was her belief that the "primary
reason" Ismail wanted her fired was "because [she] had been asking for a
raise"). Without more namely, evidence that her persistent
efforts, as a female, not just in general, to secure
higher pay lead to her termination plaintiff has no recourse
under Title VII or the HRL.
To the extent that the focus can be widened to also include the entire
history leading up to the termination, see supra note 1,
plaintiff still has not produced enough evidence to survive summary
judgment. The alleged events relating to plaintiff's efforts to secure
more compensation do not give rise to a finding of discriminatory animus
for her termination. Though there is evidence that she was paid below the
company average, she was informed that she did not yet meet the
qualifications necessary for a salary equivalent to that of a designer,
and other female employees fell above the average compensation. Most
importantly, there is simply no evidence that any decision with respect
to plaintiff's compensation was rooted in discrimination. Indeed, it
appears that many of defendant's employees, including Ismail, were
actually trying to help plaintiff secure more compensation.
The only other evidence plaintiff points to as proof of discriminatory
animus consists of conduct and statements made by Ismail. Specifically,
plaintiff claims that Ismail, through his general body language and
attitude, disliked her personally and avoided her at work; that Ismail
failed to secure work for her; that he asked her from where should he
order flowers for his wife, but refused to "talk shop" with her, (Docket
No. 20, Ex. B, p. 140); that he said that he did not expect his wife to
pass a driving test "because that's the way women are, they can't get it
done right the first time," id. at 150; and his comment that
"it was probably a woman thing" upon being told that plaintiff would be
out of the office for an operation, id. at 151.
Regardless of whether Ismail was actually involved in the decision to
terminate plaintiff, this conduct and these comments, without more, are
insufficient grounds from which to infer discriminatory animus in her
termination. The statements and conduct largely reflect
that plaintiff and Ismail simply did not get along well.*fn7 The
two comments are isolated, and can hardly form the basis for an inference
that plaintiffs eventual termination, which decision incidentally was, in
fact, not even made by Ismail, was the product of discrimination.
Plaintiff has therefore failed to create a triable issue of fact
regarding whether defendant's proffered explanation for terminating her
was pretext for gender discrimination, and has failed to otherwise
produce evidence creating a triable issue of fact as to discriminatory
Though plaintiff is able to satisfy her prima facie burden of
establishing gender discrimination, she has failed to create a genuine
issue of material fact as to whether she was terminated on the basis of
Accordingly, it is
1. Defendant General Electric Automation Services, Inc.'s motion for
summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.