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ASCIONE v. PFIZER

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. Page 2

I. BACKGROUND*fn1

  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 Page 3 promotion.

  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 Page 4 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 Page 5 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 Page 6 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 ...


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