United States District Court, S.D. New York
April 2, 2004.
MARY ASCIONE, Plaintiff, -against- PFIZER, INC., Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Mary Ascione ("Ascione"), a Hispanic female over the age of
40, alleges that her former employer, defendant Pfizer, Inc. ("Pfizer"),
denied her promotions and ultimately fired her because of her age,
national origin, and gender, in violation of federal and state
anti-discrimination laws. Pfizer, moving for summary judgment, denies the
allegations and counters that Ascione was caught falsifying her overtime
records. Pfizer also moves for summary judgment on its counterclaim
alleging that Ascione has failed to return a laptop computer. The Court
sconcludes that Ascione has failed to raise a genuine issue of material
fact suggesting unlawful discrimination, and that there is no dispute
that Ascione is wrongfully in possession of Pfizer's laptop computer.
Pfizer's motion is granted.
Ascione began working at Pfizer, a pharmaceutical company, in 1990 as
an administrative assistant. By all accounts, she performed well at her
position. In November 2000, Ascione's direct supervisor at the time,
Stephen Rynkowski ("Rynkowski"), formally requested that Ascione be
promoted to a position as a manager. According to Pfizer, it denied the
request because the department's budget would not support another
managerial position at the time.
In February 2001, Everton Cranston ("Cranston") was promoted and took
over as Ascione's direct supervisor. According to Ascione, Cranston was
promoted instead of her. Upon assuming his new position, Cranston met
with each of his new team members, including Ascione. Ascione alleges
that in that meeting, Cranston told her that he was promoted over Ascione
because Ascione was an older, Hispanic woman. According to Ascione,
Cranston also told her that Pfizer had also denied a promotion to Cecilia
Otero ("Otero"), another Hispanic female over the age of forty under
Rynkowski's supervision, and that he would continue to work on Ascione's
In March 2001, Pfizer awarded Ascione an 8 percent salary increase, but
did not assign her a new position. Ascione continued to press the issue
of her promotion with Cranston throughout early 2001 and Cranston,
according to Ascione, kept assuring her that the promotion was on the
way. Ascione alleges that sometime in the summer of 2001, Pfizer promoted
Carolyn Forte ("Forte") to manager, instead of Ascione. Ascione contends
she was much more qualified than Forte for that position.
In August 2001, Cranston made a formal request to give Ascione her
"long overdue" promotion to manager, which Pfizer approved. (Rynkowski
Decl. Ex. D). Ascione's promotion meant that she would no longer be
eligible for overtime pay based on an hourly rate; instead, she would be
paid at a fixed salary. To determine the appropriate salary, Pfizer
reviewed Ascione's compensation (including overtime) for 2001. Pfizer
discovered that, by the end of September 2001, Ascione had earned over
$63,000 in overtime pay alone, which exceeded her annual salary of
$45,357. Thus, Ascione was on pace to earn nearly double her base salary
in overtime pay alone.
Pfizer investigated Ascione's substantial overtime, and determined that
she had likely falsified her hours. Ascione used an electronic keycard to
gain access to the floor of the
building in which she worked, and the security system maintained
records of the times at which employees used their keycards. Pfizer found
significant discrepancies in Ascione's reported arrival times and the
electronic records of her arrival. Ascione worked in a building which
required all persons leaving after 6:30 p.m. to print their names and
departure times in a log in the lobby. Even though Ascione reported
regularly working late, there is no record that she ever signed the
building log. Pfizer also discovered that Ascione often improperly filled
out her time sheets to record regular hours as overtime hours.
In October 2001, Rynkowski and Cranston confronted Ascione about her
excessive overtime. Ascione denied falsifying her time sheets. She
explained that she did much of her work from home, and she provided
copies of emails she had sent at late hours of the evening. Pfizer
determined that those emails did not corroborate the substantial
discrepancies and errors in Ascione's overtime record and fired Ascione.
II. STANDARD FOR A SUMMARY JUDGMENT MOTION
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.
In a case such as this one where the non-moving party would bear the
burden of proof at trial, the movant first has the burden to make a
prima facie case that it is entitled to prevail on the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). The movant
can meet this burden by either "submit[ting] affirmative evidence that
negates an essential element of the nonmoving party's claim" or
"demonstrat [ing] to the Court that the nonmoving party's evidence is
insufficient to establish an essential element" of the claim.
Id. 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 must draw all inferences in
favor of that party. See Hanson v. McCaw Cellular Communications,
Inc., 77 F.3d 663, 667 (2d Cir. 1996).
Title VII of the Civil Rights Act of 1964 ("Title VII") makes it
unlawful for an employer "to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or
national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). The Age
Discrimination in Employment Act ("ADEA") makes it unlawful for an
employer "to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or
privileges of employment,
because of such individual's age."
29 U.S.C. § 623(a)(1).*fn2
In cases, as in the one at hand, where the evidence of the alleged
wrongdoing Is circumstantial rather than direct, courts analyze
employment discrimination claims pursuant to Title VII and the ADEA under
the familiar burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). To
establish a claim for employment discrimination, the plaintiff first "has
the burden of proving by the preponderance of the evidence a prima facie
case of discrimination." Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981). "To meet this burden, a
plaintiff must show: (i) membership in a protected class; (ii)
qualifications for the position; (iii) an adverse employment action; and
(iv) circumstances surrounding that action giving rise to an inference of
discrimination." Collins v. New York City Transit Auth.,
305 F.3d 113, 118 (2002) (citations omitted). " [T]he `prima facie proof
required' in a given case will depend on the specific facts in question."
McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001)
(citing McDonnell Douglas, 411 U.S. at 802 n.13). "Generally
plaintiff's burden of establishing a prima facie case in the
context of employment discrimination law is `minimal.'" Collins
305 F.3d at 118 (quoting McGuinness, 263 F.3d at 53).
If the plaintiff meets this minimal burden, the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory reason for the
adverse employment action. Burdine, 450 U.S. at 253 (citing
McDonnell Douglas, 411 U.S. at 802). Finally, if the defendant
meets this intermediary burden, "the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination." Id. (citing
McDonnell Douglas, 411 U.S. at 804). Through all steps of this
assessment, the evidence the plaintiff presents in opposing summary
judgment must nonetheless be sufficient to demonstrate the discriminatory
intent underlying defendant's action. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 507 (1993).
Acione alleges three distinct acts of discrimination: (1) she was
denied the promotion in late 2000 which Pfizer gave to Cranston; (2) she
was denied the promotion in the summer of 2001 which Pfizer gave to
Forte; and (3) she was terminated in late 2001, instead of promoted.
Ascione arguably has not even met her minimal burden of making a prima
facie case of discrimination because the circumstances of her delayed
promotions and ultimate termination likely do not give rise to an
inference of discrimination. Taken as a whole, the facts suggest that
Pfizer was very pleased with Ascione's work and was willing to promote
her that is, until it discovered her suspiciously excessive
overtime. Whether Ascione has made a prima facie case is ultimately
immaterial because the Court concludes that Pfizer's explanations for its
employment decisions are compelling and that Ascione has failed to raise
a genuine issue of fact suggesting that discrimination, rather than
Pfizer's stated reasons, motivated those employment decisions.
The Supreme Court has stated that, under the standards explained above,
an employer would be entitled to summary judgment if (1) "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 had occurred"; or (2) if "the record conclusively
revealed some other, nondiscriminatory reason for the employer's
decision." Reeves, 530 U.S. at 148. Both descriptions aptly
describe the case now before the Court.
In regard to Ascione's first denial of promotion, Ascione's only
evidence of discrimination is Cranston's alleged statement to her (which
Cranston denied in his deposition), that she was not promoted because
she was an
older Hispanic woman. Ascione testified at her deposition that the
only explanation Cranston gave her for his conclusion was that Otero,
another Hispanic woman working under Rynkowski, was also denied a
promotion. This evidence is insufficient.
Importantly, it is undisputed that Cranston was not responsible for
deciding whether Ascione earned a promotion, and hence his conclusion
about the reasons for that decision is pure speculation. Kulak v.
City of New York, 88 F.3d 63, 71 (2d Cir. 1996) ("Though we must
accept as true the allegations of the party defending against the summary
judgment motion, drawing all reasonable inferences in his favor, . . .,
conclusory statements, conjecture, or speculation by the party resisting
the motion will not defeat summary judgment."). Worse, assuming Cranston
made such a statement, it would appear to be a rather poor job of
speculation, considering that Rynkowski had already formally requested,
in a very positive memorandum, that Ascione be promoted.*fn3 With only a
razor-thin connection to any inference discrimination, and no other
explanation or basis, Cranston's alleged statement is simply too
conclusory to be credited. See Meiri v. Dacon, 759 F.2d 989,
998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary
judgment by offering purely conclusory allegations of discrimination,
absent any concrete
particulars, would necessitate a trial in all Title VII cases.");
see also Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d
Cir. 1999) ("Statements that are devoid of any specifics, but replete
with conclusions, are insufficient to defeat a properly supported motion
for summary judgment.").
The Court also rejects Ascione's claim that she was unlawfully denied
the promotion Pfizer awarded to Forte. Ascione offers no reason to
suggest that discrimination played a role in that employment decision,
except for her subjective testimony that she was more qualified than
Forte for the promotion. See Richetts v. Ashcroft, No. 00 Civ.
1557, 2003 WL 1212618, at *7 (S.D.N.Y. Mar. 17, 2003) (" [Plaintiff's]
own subjective evaluations that she was better qualified than her
coworkers are insufficient to demonstrate discrimination.").*fn4
Moreover, Pfizer approved Ascione's promotion within about one month of
when Ascione alleges she was unlawfully denied the promotion Pfizer gave
to Forte. This fact severely weakens the suggestion that Ascione was the
victim of employment discrimination.
Ascione's final claim of employment discrimination that she was
unlawfully terminated at the end of 2001 must fail as well. The
record suggests that Pfizer sought to promote, not terminate Ascione, and
that her superiors
supported her advancement. With respect to the employment decision
in particular, all of the evidence suggests that Pfizer's decision to
terminate Ascione had everything to do with her overtime records and
nothing to do with race, age, or gender.
Ascione puts forth several reasons why she contends Pfizer's
investigation of her overtime records was flawed. For example, she
alleges that: (1) she did not intend make the errors on her time sheets,
and in fact, some of her errors were actually in Pfizer's favor; (2) she
worked from home often; (3) she was never required to sign out of
the building; and (4) she often entered the building with other
Pfizer employees with keycards (thus calling into question the
reliability her keycard records as an indicator if her arrival
time). These facts are largely beside the point.
It would be improper for the Court to second-guess Pfizer's
investigation, or make an independent ietermination as to whether or not
Ascione intentionally falsified her time sheets. See Dale v. Chicago
Tribune Co., 797 E.2d 458, 464 (7th Cir. 1996) ("This Court does not
sit as a super-personnel department that reexamines an entity's business
decisions."). As long as Pfizer terminated Ascione because of reasonably
believed she overstated her overtime records (as opposed to
because of a discriminatory reason), and produces some
evidence forming the grounds for that belief, Pfizer's motion must
be granted. See Renamed v. Marriott Int'l, Inc., 905 F. Supp. 141,
155 (S.D.N.Y. 1995) (holding that the relevant question in
employment discrimination cases is whether the employer actually believed
the proffered reasons for the adverse employment action); cf.
Graham v. Long Island R.R., 230 F.3d 34, 44 (2d Cir 2000) (holding
that plaintiff fired because of a positive drug test may not recover for
employment discrimination where the employer "reasonably relied" on that
drug test, even if that reliance turned out to be misplaced). Likewise,
the Court rued not inquire even whether Ascione intended to
falsify her overtime records, as long as the Court determines that those
records were a reasonable basis for Pfizer's decision, instead of
discrimination. See Pollard v. Rea Magnet Wire Co., Inc.,
824 F.2d 557, 560 (7th Cir. 1987). ("No matter how medieval a firm's
practices, no matter how high-handed its decisional process, no matter
how mistaken the firm's managers, Title III . . . do[es] not
interfere . . .[u]nless [plaintiff's] race mattered. . . .")
The Court's review of the record demonstrates that there are indeed
substantial irregularities in Ascione's overtime records. The Court will
lot speculate as to whether or not all or some of those irregularities
may be explained away, and whether or not Ascione intended to defraud
Pfizer. What is
beyond dispute, in the Court's judgment, is that these
irregularities compellingly support the inference that Pfizer terminated
Ascione for its stated reasons and not because of unlawful
discrimination. The Court notes, moreover, that the review was conducted
by employees within Pfizer's Corporate Security department, not by any of
the decision-makers alleged to have unlawfully discriminated against
Ascione. Without any evidence to counter this account of her termination,
much less any affirmative evidence that age, gender, or race played a
role, Ascione's case must be dismissed.*fn5
Finally, Pfizer seeks summary judgment on its couterclaim alleging that
Ascione is wrongfully in possession of a Pfizer laptop computer. Ascione
concedes in her deposition that she still has the laptop. Ascione does
not challenge the counterclaim in her memorandum of law, and hence, the
motion will be granted.
The Court notes that, buried in a footnote of Ascione's affidavit, she
contends that Pfizer gave her the laptop computer as compensation for
certain travel expenses she
incurred. Because that point is neither explained, nor brought to
the Court's attention via Ascione's memorandum of law, the Court will not
consider it. "A brief must make all arguments accessible to the judges,
rather than ask them to play archaeologist with the record."
DeSilva v. DiLeonani, 181 F.3d 865, 867 (7th Cir. 1999).*fn6
For the reasons stated, it is hereby
ORDERED that the motion of defendant Pfizer. Inc. ("Pfizer")
for summary judgment with respect to the complaint of plaintiff Mary
Ascione ("Ascione") and for summary Judgment with respect to its
counterclaim against Ascione is granted, and the Clerk of Court is
directed to enter judgment on Pfizer's behalf; it is further
ORDERED that Ascione return the laptop computer belonging to
The Clerk of Court is directed to close this case.