United States District Court, S.D. New York
May 14, 2004.
SUSAN LICHTENSTEIN, Plaintiff, -against- TRIARC COMPANIES, INC., Defendant
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This is an employment discrimination action brought by Susan
Lichtenstein against her former employer, Triarc Companies, Inc.
("Triarc"). Ms. Lichtenstein asserts claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act,
29 U.S.C. § 206(d); the New York State Human Rights Law, N.Y. Exec. Law
§ 290 et. seq., the New York City Human Rights Law, N.Y.C. Admin. Code §
8-101 et seq.; and the common law. She alleges that she was terminated
and then not rehired on the basis of her gender, religion, and age, and
in retaliation for having voiced complaints of discrimination. Further,
she asserts that during her tenure at Triarc, she was harassed because of
her gender and religion. Ms. Lichtenstein also contends that she was
subjected to discriminatory terms and conditions of employment including
unequal pay. Finally, she alleges that she was the victim of intentional
infliction of emotional distress.
The parties consented to referral of the case to me for final
disposition pursuant to 28 U.S.C. § 636(c). Triarc now moves under Rule 56
of the Federal Rules of Civil Procedure for summary judgment dismissing all of the plaintiff's claims. It also seeks an order
precluding the testimony of the plaintiff's expert witness on issues of
pay disparity. For the reasons set forth below, Triarc's summary judgment
motion is granted except with respect to Ms. Lichtenstein's claims that
she was terminated on the basis of her age and that she was subjected to
a hostile work environment on the basis of her gender, and the preclusion
motion is denied as moot.
Triarc is a holding company and the franchisor of Arby's restaurants.
(Defendant Triarc Companies, Inc.'s Local Civil Rule 56.1 Statement of
Undisputed Material Facts ("Def. 56.1 Statement"), ¶ 1; Plaintiff's
Statement (and Reply to Defendant's Statement) of Material Facts Pursuant
to Local Civil Rule 56.1 ("PI. 56.1 Statement"), ¶ 1). In May 1997,
Triarc acquired the Snapple beverage business. (Deposition of Robert
Crowe dated June 11, 2003 ("Crowe Dep."), attached as Exh. C to
Declaration of Brendan Sweeney dated Dec. 9, 2003 ("Sweeney Decl."), at
61). In response to the additional tax work generated by the
acquisition, Triarc hired two Senior Tax Accountants in November 1998:
Ms. Lichtenstein and Amy Lee. (Crowe Dep. at 61-64; Declaration of
Christopher Kelly dated Feb. 12, 2004 ("Kelly Decl."), Exhs. A, B). Ms.
Lichtenstein held a bachelor's degree in accounting and an MBA with a
specialization in taxation. (Def. 56.1 Statement, ¶ 4; Pl. 56.1
Statement, ¶ 4).
Ms. Lichtenstein and Ms. Lee, who were the only Senior Tax Accountants in the Tax Department, reported to Robert Crowe, who was
assistant Vice President Taxes and, later, Vice President Taxes.
Also reporting to Mr. Crowe was Scott Drapkin, who had been a Senior Tax
Accountant, but was promoted to the title of Tax Manager in August 1998
before Ms. Lichtenstein was hired. (Sweeney Decl., Exh. B at 3rd
unnumbered page; Kelly Decl., Exh. C; Declaration of Francis T. McCarron
dated Dec. 8, 2003 ("McCarron Decl."), ¶ 16). The Tax Department was
headed by Francis T. McCarron who was Senior Vice President Taxes
until June 2001 when he became Triarc's Chief Financial Officer. (Sweeney
Decl., Exh. B; McCarron Decl., ¶ 1).
During her tenure at Triarc, Ms. Lichtenstein performed her
responsibilities satisfactorily and received periodic merit increases in
her compensation. (Kelly Decl., Exh. A). However, as will be detailed
below, she experienced personal conflicts with Mr. Crowe and Mr.
Drapkin, as well as with Fred Schaefer, Vice President in charge of the
Accounting Department. Her compensation was consistently the same as Ms.
Lee's. (Kelly Decl., Exhs. A, B). It was less, however than Mr.
Drapkin's, and also less than that of Paul Veteri and Marc Birenkrant,
Senior Accountants in the Accounting Department whose titles were changed
to Accounting Manager in September 2000. (Kelly Decl., Exhs. A, C, D,
In late 2000, Triarc divested itself of the Snapple unit. (McCarron
Decl., ¶ 26). According to the defendant, this significantly reduced
the volume of tax compliance work, and by September 2001, it had been
determined that only one Senior Tax Accountant position was warranted. (McCarron Decl., ¶¶ 26, 27). Mr.
McCarron and Mr. Crowe decided to retain Ms. Lee, purportedly because
they felt that her work was more orderly and that she was more committed
to Triarc than Ms. Lichtenstein. (McCarron Decl., ¶¶ 28, 29, 30; Crowe
Dep. at 96-97). Accordingly, Triarc terminated the plaintiff on October
1, 2001. Although she was initially told she could remain on staff for
another two weeks, she had a dispute with Mr. Crowe concerning the
severance package she was offered, and on October 2, 2001, she was
escorted from the building by a security officer. (Def. 56.1 Statement,
¶ 142; Pl. 56.1 Statement, ¶ 142).
Thereafter, Ms. Lichtenstein initiated legal proceedings. I will
discuss additional facts in connection with the analysis of each issue.
A. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate where "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 judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for the Visual Arts,
Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka
v. Seller Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party
bears the initial burden of demonstrating "the absence of a genuine issue
of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving
party meets that burden, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial,"
Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence
of [every] element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue
of material fact, the court must resolve all ambiguities and draw all
factual inferences in favor of the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York,
72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether
"there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party," Anderson, 477 U.S. at 249 (citation
omitted), and grant summary judgment where the nonmovant's evidence is
conclusory, speculative, or not significantly probative. Id. at 249-50.
"The litigant opposing summary judgment may not rest upon mere conclusory
allegations or denials, but must bring forward some affirmative
indication that his version of relevant events is not fanciful." Podell
v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal
quotations and citations omitted); see also Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a
nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995)
(nonmovant "may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not
credible"). In sum, if the court determines that "the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587
(quoting First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 288 (1968)).
B. The Plaintiff's Termination
1. Analytical Framework
Claims of discrimination under Title VII are analyzed in accordance
with the three-part framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the first stage
of the McDonnell Douglas analysis, the plaintiff must establish a prima
facie case of discrimination by showing (1) that she is within a
protected group, (2) that she was qualified for the job at issue, (3) that
she was subjected to an adverse employment action, and (4) that this
action occurred under circumstances giving rise to an inference of
discrimination. Id. at 802; see also Woroski v. Nashua Corp., 31 F.3d 105,
108 (2d Cir. 1994). Because an employer engaged in discrimination is
unlikely to leave a "smoking gun," Chambers v. TRM Copy Centers Corp.,
43 F.3d 29, 37 (2d Cir. 1994), a plaintiff usually must rely on the
"cumulative weight of circumstantial evidence" when proving bias. Rosen
v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence
"that the adverse employment actions were taken `for a legitimate,
nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502,
507 (1993) (quoting Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)). Despite this shift of 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." Burdine, 450 U.S. at 253, see
also St. Mary's Honor Center, 509 U.S. at 507.
If the defendant provides evidence of legitimate nondiscriminatory
reasons for its action, the burden returns to the plaintiff "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." Burdine, 450 U.S. at 253. A plaintiff opposing a summary
judgment motion "must produce sufficient evidence to support a rational
finding that the legitimate, nondiscriminatory reasons proffered by the
employer were false", Woroski, 31 F.3d at 110, and "that the defendant's
employment decision was more likely than not based in whole or in part on
discrimination." Stern v. Trustees of Columbia University in New York,
131 F.3d 305, 312 (2d Cir. 1997).
This same burden-shifting framework applies to employment
discrimination claims under the New York State Human Rights Law and under
the New York City Administrative Law. See Cruz v. Coach Stores, Inc.,
202 F.3d 560, 565 n.1 (2d Cir. 2000); Norville v. Staten Island University Hospital, 196 F.3d 89, 95 (2d Cir. 1999);
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir. 1997).
2. Termination on the Basis of Gender
Ms. Lichtenstein has proffered no opposition to Triarc's motion insofar
as it seeks judgment on her claim that she was terminated on the basis of
her gender. Although the motion cannot be granted for that reason alone,
see Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001), any facts
presented by the defendant which have gone unrebutted must be taken as
Here, the plaintiff cannot establish a claim of gender discrimination.
It is conceded that she is a member of a protected class, was qualified
for her job, and was subjected to an adverse employment action. However,
she has not proffered sufficient facts from which it could be inferred
that her termination was based on her gender.
It is undisputed that the decisionmakers who terminated Ms.
Lichtenstein Mr. McCarron and Mr. Crowe are the same persons who had
hired her in the first place. (Def. 56.1 Statement, ¶¶ 6, 134; Pl. 56.1
Statement, ¶¶ 6, 134). While not dispositive, the fact that the same
supervisors hired and terminated the plaintiff is "a highly relevant
factor in adjudicating a motion for summary judgment." Schnabel v.
Abramson, 232 F.3d 83, 91 (2d Cir. 2000); accord Grady v. Affiliated
Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997). Likewise, it is
undisputed that Mr. McCarron decided to reduce the number of Senior Tax
Accountants in the Tax Department from two to one because of a reduction
in the workload. (Def. 56.1 Statement, ¶ 133; Pl. 56.1 Statement, ¶ 133). It is
undisputed that when Ms. Lichtenstein was let go, the Senior Tax
Accountant who was retained was also a female, Amy Lee. (Def. 56.1
Statement, ¶ 134, Pl. 56.1 Statement, ¶ 134). Finally, it is undisputed
that Triarc continues to have only a single position for a Senior Tax
Accountant in the Tax Department. As against this evidence that Ms.
Lichtenstein's termination was triggered by a gender-neutral business
reason, that no similarly-situated male was retained, and that she was
never replaced by a male, she has offered no evidence of gender
discrimination. Therefore, summary judgment is granted on this claim.
3. Termination of the Basis of Religion
Some of the same factors that are relevant to the plaintiff's gender
discrimination claim also militate against any inference that her
termination was motivated by religious bias because she is Jewish. For
example, the facts that the decision to reduce the number of Senior Tax
Accountants was based on economic considerations and that no one of a
different religion ever replaced the plaintiff undermine the claim of
On the other hand, Ms. Lichtenstein has alleged that Mr. Crowe made
what she characterizes as anti-Semitic remarks. First, in one
conversation, he purportedly said to her, "You know, Jews can be
trusted, that's what my father told me. Huh, isn't that true, Jews can be
trusted?" (Deposition of Susan Lichtenstein dated May 20, 2003
("Lichtenstein Dep."), attached as Exh. A to Sweeney Decl., at 148-49). On another occasion, referring to another Triarc employee,
Mr. Crowe allegedly said to the plaintiff, "Why are Jews so cheap? Take a
look at Scott, he's so cheap." (Lichtenstein Dep. at 150). In that same
conversation, he said, "Scott will only allow other Jewish people to come
into his home to do any repairs. Is that how it is, is that what Jewish
people do?" (Lichtenstein Dep. at 151). Mr. Crowe also purportedly said
to the plaintiff, "What is it with you Jews, why do you always stick
together like that, because of [sic] my daughter's going to college and
her friends who are Jewish and their parents make the decision to send
their children to college based on the number of Jews in the school."
(Lichtenstein Dep. at 152). Finally, Ms. Lichtenstein claims that when
she and Mr. Crowe were discussing why Michael Milken might have been
singled out for prosecution for securities law violations, Mr. Crowe
said, "It's because of the Jewish mafia." (Lichtenstein Dep. at 153).
None of these comments were made later than August 2000. (Lichtenstein
Dep. at 156).
Stray remarks alone are not generally sufficient to support a Title VII
claim but must be accompanied by some other indicia of discriminatory
animus. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d
Cir. 2001); Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.
1998); Woroski, 31 F.3d at 109-10. In particular, if the plaintiff can
show a nexus between the comments and the adverse employment action, the
comments "bear a more ominous significance" and bias may be inferred.
Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 136 (2d Cir. 2000)
(quoting Panzer, 151 F.3d at 56).
By these standards, Mr. Crowe's remarks have little significance.
First, while some of them could be said to reflect a stereotype, it is
not always a negative one. Certainly, the suggestion that a group of
people are trustworthy does not indicate discriminatory bias.
Characterizing a religion as clannish also has little negative
connotation, at least in the context in which it was allegedly used
Even if the remarks at issue were more plainly negative, their
connection to Ms. Lichtenstein's termination is tenuous at best. While
Mr. Crowe did have input in the decision to let her go, he had also been
instrumental in hiring her. Moreover, the comments were made over a year
prior to the plaintiff's termination. Finally, Ms. Lichtenstein
acknowledged that the environment at Triarc was not hostile to Jewish
people and, indeed, the company provided support to a number of Jewish
charities. (Lichtenstein Dep. at 155). In light of all of these factors,
the plaintiff has not presented circumstances from which a finder of fact
could reasonably draw an inference that her termination resulted from
religious bias, and summary judgment is granted dismissing that claim.
3. Termination on the Basis of Age
The record dictates a different result with respect to the plaintiff's
claim that she was terminated on the basis of her age. As with the other
alleged grounds of discrimination, Ms. Lichtenstein has satisfied the
first three requirements for establishing a prima facie case: she was over forty years of age and
therefore a member of the protected class; she was qualified for her
job; and she suffered an adverse employment action when she was
terminated. In addition, with respect to her age claim, there are
circumstances from which it can be inferred that there was a
discriminatory motive for her dismissal.
While Ms. Lichtenstein was forty-six at the time of her discharge, Ms.
Lee, who was retained, was in her twenties. (Lichtenstein Dep. at 7,
231, 235-36). Shortly after the plaintiff was terminated, Ms. Lee
resigned to pursue another job opportunity. (Declaration of Amy Lee dated
Nov. 3, 2003 ("Lee Decl."), ¶ 7). She was replaced by a woman named
Sarah Clune who was also in her twenties. (Lichtenstein Dep. at 231;
Crowe Dep. at 127). In addition, two men who were Senior Accountants in
Triarc's Accounting Department at the time Ms. Lichtenstein was hired,
and thus roughly on the same level that she was, were also younger. Mark
H. Birenkrant was twenty-nine at the time the plaintiff was terminated
(Deposition of Mark H. Birenkrant dated May 28, 2003 ("Birenkrant
Dep."), attached as Exh. H to Sweeney Decl., at 5), and Paul M. Veteri
was thirty. (Deposition of Paul M. Veteri dated May 29, 2003 ("Veteri
Dep."), attached as Exh. K to Sweeney Decl., at 4). While "statistical
evidence" based on such a small sample is hardly compelling, it is
sufficient to give rise to an inference of discriminatory intent and
therefore satisfy the requirements for a prima facie case. See McGuinness
v. Lincoln Hall, 263 F.3d 49, 52 (2d Cir. 2001); Hargett v. National
Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir. 1996).
The burden then shifts to Triarc to provide legitimate
nondiscriminatory reasons for Ms. Liechtenstein's termination, and it has
done so. The defendant has submitted evidence that Mr. Crowe and Mr.
McCarron discharged the plaintiff and retained Ms. Lee because economic
considerations dictated shrinking the number of Senior Tax Accountants
and because they believed that Ms. Lee was the stronger performer.
(McCarron Decl., ¶¶ 28-30).
The burden the shifts back to the plaintiff to prove that the reasons
proffered by the defendant are pretextual and that the termination
decision was indeed motivated by bias. Disputed issues of fact preclude
summary judgment on this issue, as there are reasons to doubt Triarc's
rationale for choosing Ms. Lee over Ms. Lichtenstein. Although the Tax
Department was being reduced in response to Triarc's sale of the Snapple
line, Ms. Lee had performed the tax work for that business, while Ms.
Lichtenstein had worked on the Arby's accounts that remained part of
Triarc. (Lichtenstein Dep. at 192-93; Crowe Dep. at 97-98). Moreover,
although Triarc was critical of the plaintiff's performance
after-the-fact, there is no documentation in her file of warnings or
discipline, and she consistently received the same salary increases and
bonuses as Ms. Lee. (Kelly Decl., Exhs. A, B). Summary judgment on the
age claim is therefore denied.
4. Retalitory Discharge
The plaintiff contends that her dismissal was, at least in part, a
product of retaliation for a complaint that she and Ms. Lee made about a discriminatory vacation policy. According to Ms.
Lichtenstein, she and Ms. Lee complained first to Mr. Crowe and then to
Mr. McCarron that they were receiving only two weeks of vacation while
Joseph Romita, Mr. Birenkrant, and Mr. Veteri were receiving three
weeks. (Lichtenstein Dep. at 166-67). They registered these complaints
approximately six months prior to the plaintiff's termination. (Crowe
Dep. at 85). In addition, at about the same time, Ms. Lichtenstein
complained to Mr. McCarron about what she called the "boys club"
atmosphere in the Tax Department because she was being excluded from
meetings and social events that her male colleagues attended.
(Lichtenstein Dep. at 138-41).
Title VII forbids an employer from "discriminat[ing] against any of its
employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner is an
investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3 (a). To establish a prima facie case of retaliation a
plaintiff must show: "(1) participation in a protected activity; (2) that
the defendant knew of the protected activity; (3) an adverse employment
action; and (4) a causal connection between the protected activity and
the adverse employment action." McMenemy v. City of Rochester,
241 F.3d 279, 282-83 (2d Cir. 2001). Once the plaintiff makes this
showing, the burden shifts to the defendant to articulate a legitimate,
non-retaliatory reason for the adverse employment action. If the defendant states such a reason, the burden shifts back to
the plaintiff to prove that the defendant's reason was merely a pretext
and that the adverse employment action was motivated by the desire for
retaliation. Holt v. KMI-Continental, 95 F.3d 123, 130 (2d Cir. 1996).
Triarc contends that Ms. Lichtenstein's complaint does not qualify as
protected activity and that, in any event, it was not causally related to
her discharge. According to the defendant, the differential in vacation
was due to the fact that employees in the Accounting Department had
managed to negotiate a better deal than the standard benefits accorded to
Ms. Lichtenstein and Ms. Lee. (Crowe Dep. at 86-87). But in order to
establish a retaliation claim, a plaintiff need not prove that the
employer's conduct was in fact illegal, but only that the plaintiff had a
"good faith, reasonable belief that the underlying challenged actions of
the employer violated [the] law." Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002) (quoting Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., 183 F.3d 155, 159 (2d Cir. 1999)). Of course, if Ms. Lichtenstein's
complaint were simply about inadequate compensation or benefits and did
not suggest discrimination, then it could not be the predicate for a
retaliation claim. But the plaintiff and Ms. Lee specifically pointed out
that they believed that they were being treated differently from three
male employees, and Mr. Crowe acknowledged that he understood that that
was the nature of their complaint. (Crowe Dep. at 85). Similarly, the
plaintiff has testified that when complaining about unequal treatment, she referred to the problem as characteristic of the office's "boys club"
environment. (Lichtenstein Dep. at 141). In order for a complaint to
constitute protected activity, a plaintiff need not claim a violation of
a specific statute or even use the word "discrimination." It is enough to
articulate facts that reasonably give notice to the employer that
discrimination is being complained of. That was the case here.
The plaintiff has failed, however, to proffer any facts from which
retaliatory motive could be inferred. Certainly, there is no direct
evidence a threat of retribution was made in response to the protected
activity. And, while proximity in time between the complaint and the
adverse employment action may provide circumstantial evidence of
retaliation, a hiatus of six months is generally too great to support the
inference.*fn1 See, e.g., Ponticelli v. Zurich American Insurance
Group, 16 F. Supp.2d 414, 436 (S.D.N.Y. 1998) (no inference where adverse action taken two and
one-half months after protected activity). Finally, there is no
suggestion that any adverse action was taken against Ms. Lee, who joined
Ms. Lichtenstein in voicing one of the two complaints at issue. Thus,
even taking all of the facts in the light most favorable to the
plaintiff, she can not establish a claim of retaliation, and Triarc is
entitled to summary judgment.
5. Failure to Rehire
Ms. Lichtenstein suggests that she was discriminated against when
Triarc failed to rehire her when Amy Lee's position the one remaining
Senior Tax Accountant job became vacant. The Second Circuit has held
that Supreme Court precedents generally "require a plaintiff to allege
that she . . . applied for a specific position or positions and was
rejected therefrom[.]" Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d
Cir. 1998); accord Carlson v. Principal Financial Group, 320 F.3d 301,
314 (2d Cir. 2003). This requirement applies both to requests for
promotion and applications to be rehired after termination. See Murphy v.
General Electric Co., 245 F. Supp.2d 459, 475 (N.D.N.Y. 2003); Gadsden
v. Jones Lang Lasalle Americas, Inc., 210 F. Supp.2d 430, 441 (S.D.N.Y.
2002). Where the employer fails to post the position at issue, however,
the plaintiff need only have indicated an interest in promotion or
appointment to a particular class of jobs, since "an employee by
definition cannot apply for a job that he or she does not know exists."
Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384, 387
(2d Cir. 2000). In this case, Triarc hired an executive search firm to locate a
replacement for Ms. Lee (Crowe Dep. at 127), so the recruitment process
was not secret. Moreover, even if Triarc had not openly sought to fill
the position, Ms. Lichtenstein has never contended that she was
interested in returning to work there in any capacity. Indeed, she is
unsure whether she would even have accepted the position had it been
offered. (Lichtenstein Dep. at 193-94). Thus, the plaintiff has failed to
provide evidence that she ever expressed any interest in being rehired
either for the specific job at issue or, indeed, for any position at
Triarc, and her claim must therefore be dismissed.
C. Hostile Environment
Ms. Lichtenstein also advances claims of hostile environment based on
sexual and religious harassment. Title VII "is not limited to economic or
tangible discrimination." Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (internal quotation marks and citations omitted). Rather, it is
intended "to strike at the entire spectrum of disparate treatment of men
and women in employment, which includes requiring people to work in a
discriminatory hostile or abusive environment." Id. (internal quotation
marks and citations omitted).
However, Title VII only bars discrimination with respect to
"compensation, terms, conditions, or privilege of employment."
42 U.S.C. § 2000e-2(a)(1). Accordingly, for harassment to be actionable,
"it must be sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
67 (1986) (internal quotations, citation, and brackets omitted). "[T]he
plaintiff must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently
continuous and concerted to have altered the conditions of [her] working
environment." Cruz, 202 F.3d at 570 (internal quotation marks and
citations omitted). Factors to be considered in determining whether a
work environment is hostile include "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris, 510 U.S. at 23.
1. Gender-Related Harassment
The plaintiff has identified a wide variety of incidents that she
contends are proof that Triarc created a working environment that was
hostile to her as a woman. Some of these must be disregarded because
while they may be instances of mistreatment, there is no evidence that
they are related to gender bias. For example, Ms. Lichtenstein complains
that she was humiliated by being escorted from Triarc's offices by a
security guard on the day she was terminated. But it is undisputed that
the plaintiff was discharged earlier than anticipated when she declined
to sign a release that accompanied her severance package, as a result of
which she and Mr. Crowe had a verbal altercation. (Def. 56.1 Statement,
¶ 142; Pl. 56.1 Statement, ¶ 142; Crowe Dep. at 111-18). Under those
circumstances, the fact that a security guard accompanied the plaintiff from the office can hardly be considered
harassment. Certainly, Ms. Lichtenstein has proffered no evidence that
the same precautions were not followed with men who were discharged under
similar conditions. "It is . . . important in hostile environment cases
to exclude from consideration personnel decisions that lack a linkage or
correlation to the claimed ground of discrimination." Alfano v.
Costello, 294 F.3d 365, 377 (2d Cir. 2002). This was such an incident.
On the other hand, the plaintiff cites a number of instances where the
behavior of which she complains is plainly gender-related. For example,
she alleges that Fred Schaefer, the Senior Vice President of Triarc's
Accounting Department, consistently subjected women employees to
"elevator eyes," staring at them up and down. (Lichtenstein Dep. at 163,
171). Moreover, Mr. Birenkrant showed the plaintiff a website that Mr.
Schaefer allegedly visited while at work in order to identify prostitutes
that he might patronize. (Lichtenstein Dep. at 103-04; Birenkrant Dep. at
102-04). The fact that the plaintiff was not present when Mr. Schaefer
supposedly engaged in such conduct does not make it irrelevant. See
Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (second-hand
knowledge of racially charged joke or derogatory comment can impact work
Some of Ms. Lichtenstein's complaints, while not relating to overtly
sexual subject matter, nevertheless involve gender-based disparate
treatment. She contends, for example, that she and Ms. Lee were regularly
excluded from business-related social functions. (Lichtenstein Dep. at 101-02, 141-42). She also alleges that while the
men freely engaged in social conversations in the office, the women would
be accused of "conspiring" when they did so. (Lichtenstein Dep. at 136,
Finally, some of the incidents that are facially gender-neutral
nevertheless bear arguable indicia of sexual hostility. They have
"earmarks of bias" such as "unreasonable actions taken by persons shown
to have engaged in incidents having an overtly sexual element, or a
peculiar enforcement of personnel rules correlated somehow with the
claimed ground of discrimination." Alfano, 294 F.3d at 377. These
incidents include one in which Scott Drapkin, Tax Manager in Ms.
Lichtenstein's department, allegedly called her stupid and threw a file
at her when she pointed out a problem in returns that had previously been
prepared. He also purportedly attempted to sabotage her work by
withholding information from her. (Lichtenstein Dep. at 90-91, 206-07).
Although this conduct by itself does not appear gender-related, Mr. Crowe
explained Mr. Drapkin's behavior by stating that he "has a problem
working with women." (Lichtenstein Dep. at 81). Likewise, Mr. Birenkrant
purportedly told the plaintiff that he had seen Mr. Drapkin screaming at
other women in the Tax Department on a number of occasions. (Lichtenstein
Dep. at 110-11). Furthermore, although Mr. Drapkin allegedly shouted at
Ms. Lichtenstein repeatedly, she never saw him behave rudely toward male
employees. (Lichtenstein Dep. at 115-18; Lichtenstein Decl. ¶ 14).
It is clear that no single one of these incidents was sufficiently severe to constitute a hostile work environment. It is less
clear whether, cumulatively, they would suffice to alter the plaintiff's
working conditions. See Alfano, 294 F.3d at 379 ("There is no fixed
number of incidents that a plaintiff must endure in order to establish a
hostile work environment; rather, we view the circumstances in their
totality, examining the nature, severity, and frequency of the
conduct."); Schwapp, 118 F.3d at 106 ("The Supreme Court has cautioned us
to consider the totality of circumstances in cases such as this.").
Because it is difficult to understand the full impact of a hostile
workplace on the basis of a cold record, it is appropriate to give the
plaintiff the benefit of the doubt on a summary judgment motion. Taking
the facts in the light most favorable to Ms. Lichtenstein, a jury could
find the conduct she describes to be actionable. See Raniola v. Bratton,
243 F.3d 610, 621 (2d Cir. 2001) (plaintiff subjected to offensive
remarks, unequal workload, sabotage of work, and one threat of physical
harm); Cruz, 202 F.3d at 571-72 (racial epithets, remarks that women
should not work, invasion of employees' personal space, staring at
women); Schwapp, 118 F.3d at 112 (racist jokes and epithets).
Accordingly, the motion for summary judgment dismissing this claim is
2. Religion-Related Harassment
By contrast, it is clear that the alleged incidents of religious
harassment do not constitute a hostile work environment, either
individually or in combination. As discussed above, they consisted
entirely of comments reflecting a religious stereotype, and not always a negative one. Of course, a "steady barrage of
opprobrious [discriminatory] comments" will create a hostile work
environment. Schwapp, 118 F.3d at 110 (internal quotation marks and
citation omitted). On the other hand, "mere utterance of an epithet which
engenders offensive feelings in an employee does not sufficiently affect
the conditions of employment to implicate Title VII." Harris, 510 U.S. at
21 (internal quotation marks and citation omitted). Rather, "[f]or
[discriminatory] comments, slurs, and jokes to constitute a hostile work
environment, there must be more than a few isolated incidents of
[religious] enmity." Schwapp, 118 F.3d at 110 (internal quotation marks
omitted). The plaintiff here alleges only four conversations in which
such remarks were made over the nearly three-year period during which she
was employed by Triarc. This conduct is neither severe nor pervasive
enough to adversely affect the conditions of employment, and summary
judgment is therefore granted on this claim.
D. Intentional Infliction of Emotional Distress
Ms. Lichtenstein asserts a cause of action for intentional infliction
of emotional distress ("IIED") under the common law of New York. To
establish her claim, the plaintiff must demonstrate: "(i) extreme and
outrageous conduct; (ii) intent to cause, or disregard of a substantial
probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and the injury; and (iv) severe emotional
distress." Howell v. New York Post Co., 81 N.Y.2d 115, 121,
596 N.Y.S.2d 350, 353 (1993). "The `requirements of the rule are rigorous, and difficult to satisfy.'" Id.
at 122, 596 N.Y.S.2d at 353 (quoting Prosser and Keeton, Torts § 12, at
60-61 (5th ed.)). Indeed, "`[l]iability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.'" Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236
(1983) (quoting Restatement [Second] of Torts § 46  comment d).
In employment cases, New York courts are particularly wary of such
claims because a "plaintiff should not be allowed to . . . subvert the
traditional at-will contract rule by casting his cause of action in terms
of a tort of intentional infliction of emotional distress." Murphy, 58
N.Y.2d at 303, 461 N.Y.S.2d at 236. Thus, "[i]n the sexual harassment
context, it appears that for an IIED claim to survive a summary judgment
motion, sexual battery should be alleged." Ponticelli, 16 F. Supp.2d at
440-41 (citations omitted). Indeed, IIED claims have been dismissed even
where a plaintiff claims harassment accompanied by an episode where she
was pushed against a filing cabinet, id. at 441, and where a plaintiff
was subjected to repeated ethnic and religious stereotyping and forcibly
removed from the building when he was discharged. Ashjari v. NYNEX
Corp., No. 93 Civ. 0751, 1998 WL 19995, at *3, 5 (S.D.N.Y. Jan. 21,
1998). By these standards, Ms. Lichtenstein's allegations, even taken as
true, fail to state a cause of action. Judgment is therefore granted to
Triarc on the IIED claim. E. Unequal Compensation
Ms. Lichtenstein contends that she received less compensation than
similarly situated males.*fn2 The viability of this claim turns on
whether she has identified male employees who are arguably appropriate
The Equal Pay Act forbids paying wages to employees at a rate less than
the rate at which employees of the opposite sex are paid for equal work.
29 U.S.C. § 206(d)(1). Accordingly, to prevail a "plaintiff must show
that: i) the employer pays different wages to employees of the opposite
sex; ii) the employees perform equal work on jobs requiring equal skill,
effort, and responsibility; and iii) the jobs are performed under similar
working conditions.'" Lavin-McEleney v. Marist College, 239 F.3d 476, 480
(2d Cir. 2001) (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.
1999)). Equal work under the statute involves jobs requiring "equal
skill, effort, and responsibility, and which are performed under similar
working conditions, except where such payment is made pursuant to (i) a
seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206
(d)(1). While a plaintiff need not show that her job is identical to a
higher paid position, she must demonstrate that the two positions are
substantially equal. See Tomka, 66 F.3d at 1310; Sobol v. Kidder, Peabody
& Co., 49 F. Supp.2d 208, 219 (S.D.N.Y. 1999). Factors that are
considered include whether the plaintiff and the comparator work in the
same division, whether they have the same supervisor, whether they have
similar responsibilities, and whether the employees are required to
devote the same effort. See Lanzo v. City of New York, No. 96-CV-3242,
2000 WL 804628, at *7 (E.D.N.Y. May 18, 2000). This analytical framework
applies as well to Title VII claims of disparate pay on the basis of
gender, with the additional requirement that the plaintiff must prove
discriminatory animus. See Belfi, 191 F.3d at 139-40; Dinolfo v.
Rochester Telephone Corp., 972 F. Supp. 718, 722 (W.D.N.Y. 1997).
One of the employees that Ms. Lichtenstein cites as similarly situated
to her is Scott Drapkin. Mr. Drapkin was a Senior Tax Accountant the
same position held by Ms. Lichtenstein until 1998. Mr. Drapkin was
hired in 1993 at an annual salary of $45,000. (McCarron Decl., ¶ 12 &
Exh. C). With periodic increases, his salary had increased to $54,500 by
August 1998 when he was promoted to Tax Manager. (McCarron Decl., ¶¶ 13-15
& Exhs. D, E, F). When Ms. Lichtenstein was hired in November 1998, she
was initially paid a salary of $63,000. (McCarron Decl., ¶ 9 & Exh.
A). Thus, when these two employees held the same position roughly three
months apart, the plaintiff was paid significantly more.
When Mr. Drapkin was promoted, his salary was increased to $65,000, and
it grew in large increments thereafter until he was making $89,000 as of
October 2001. (McCarron Decl., ¶¶ 16-22 & Exh. K). In addition, he
received substantial bonuses. (McCarron Decl., ¶¶ 19, 21). By the time the
plaintiff was hired, then, there was a pay disparity, and the focus must
shift to whether Mr. Drapkin was any longer an appropriate comparator.
As a Senior Tax Accountant, Ms. Lichtenstein spent 70-80 percent of her
time doing tax compliance work. (Lichtenstein Dep. at 73). Her duties
included preparing federal, state, and local tax returns, prepaying
estimated tax payments, assisting in tax audits, assisting in year-end
tax provision, communicating with tax authorities, assisting management,
and preparing special projects. (Lichtenstein Dep. at 71-74 & Exh. 2;
Kelly Decl., Exh. H; Crowe Dep. at 19-20).
While Ms. Lichtenstein and Ms. Lee were primarily responsible for the
returns of Triarc's subsidiaries, Mr. Drapkin was responsible for
assembling the consolidated federal return. Although he did not supervise
the Senior Tax Accountants, he reviewed their work at least to the extent
that he utilized it in the consolidated return. Preparation of the
consolidated return was more complex than that of the individual
subsidiary returns. In addition, Mr. Drapkin was responsible for managing
the firm's tax-related software. He was also involved in preparing the
tax provisions for Triarc's Securities and Exchange Commission ("SEC") filings. (Crowe Dep. at 24-25, 38, 52-60, 89, 139; Deposition of
Scott Drapkin dated July 3, 2003 ("Drapkin Dep."), attached as Exh. F to
Sweeney Decl., at 11-22, 30).
The plaintiff was not aware of Mr. Drapkin's duties. (Lichtenstein
Dep. at 142-43, 214). Rather, she argues that Mr. Drapkin did not perform
competently and that much of what he did relied on her input, such as her
knowledge of the software system. (Pl. Memo. at 21-22). But the fact that
someone lower on a hierarchy is more competent or provides more value to
an enterprise does not negate the hierarchical structure. If Mr. Drapkin
had materially greater responsibilities, then he is not a comparator for
Ms. Lichtenstein, even if she was instrumental in his ability to fulfill
his duties. On the basis of the objective facts, then, Mr. Drapkin and
the plaintiff are not similarly situated. Although the question of
whether two positions are equivalent is generally a factual issue for the
jury, see Lavin-McEleney, 239 F.3d at 480, it is, like any fact issue,
still susceptible to summary judgment where no reasonable juror could
find in the favor of the non-moving party. That is the case here.
The other two employees whom the plaintiff contends were similarly
situated are Mark Birenkrant and Paul Veteri. Both work in the Accounting
Department, not the Tax Department, and were Senior Accountants until
September 2000, when they were promoted to the position of Accounting
Manager.*fn3 At the time they were hired, Frederick Schafer, Triarc's Senior Vice President and Chief Accounting
Officer sought applicants who had experience doing auditing for a public
accounting firm and experience with SEC issues, qualifications that the
plaintiff lacks. (Def. 56.1 Statement, ¶ 84; Pl. 56.1 Statement,
¶ 84; Lichtenstein Dep., Exh. 2). The primary responsibilities of a
Senior Accountant are to:
1. Assist in the preparation of financial statements
for annual and quarterly reports as well as
registration statements and other SEC filings
A. Preparation of the consolidated balance sheet,
income statements and statements of stockholders'
equity and cash flows including consolidation and
analysis of the detail of accounts in order to
B. Assist in the preparation of, and prepare
supporting documentation for, footnotes and
management's discussion and analysis and market
risk disclosures including consolidation of
subsidiary reporting forms.
C. Accumulate supporting documentation for all
financial disclosures in annual and quarterly
filings and maintain workpapers for each filing.
2. Prepare quarterly and annual subsidiary reporting
forms to assist in the preparation of annual and
quarterly filings and track the adherence of the
subsidiaries to the required reporting deadlines.
3. Prepare quarterly statements of cash flows and
equity roll forwards.
4. Assist in the administration and accounting for
stock compensation programs. 5. Assist in the calculation of earnings per share.
6. Assist with corporate accounting account analysis
and other corporate accounting projects.
7. Prepare analyses for worker's compensation and
casualty insurance reserves.
8. Research accounting and reporting issues, as
9. Assist in accounting and reporting for employee
10. Coordinate and/or prepare as necessary government
reports required by agencies such as the
Department of Commerce and the Bureau of the
(Declaration of Mark Birenkrant dated Dec. 5, 2003 ("Birenkrant Decl."),
¶ 2 & Exh. A; Def. 56.1 Statement, ¶ 83; Pl. 56.1 Statement, ¶ 83).
The qualifications for and responsibilities of Senior Accountants,
then, were clearly distinct from those of Senior Tax Accountants.
Nevertheless, Ms. Lichtenstein argues that a tax accountant exercises
more complex skills than an accountant doing SEC-related work. (Pl.
Memo. at 24). This is beside the point. Once it is established that
positions are not substantially equivalent, a plaintiff cannot prevail by
attempting to demonstrate that the "value" of her position is greater
than that of the position held by a non-comparable male. See Francoeur
v. Corroon & Black Co., 552 F. Supp. 403, 407 (S.D.N.Y. 1982).
Moreover, given the clear distinctions between the responsibilities of
the two jobs at issue here, the remaining disputed facts, such as whether Mr. Birenkrant and Mr. Veteri actually worked more productive
hours than Ms. Lichtenstein or only frittered their time away in social
conversation, are no longer material. Since the plaintiff has failed to
identify a true comparator who was better compensated than she, her claim
of unequal pay must be dismissed.
F. Admissibility of Expert Testimony
Finally, Triarc has moved to preclude the testimony of the plaintiff's
expert, Paul R. Dorf, pursuant to the principles set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999). That motion is now moot. Mr. Dorf
purported to measure the disparity in compensation between Ms.
Lichtenstein on one hand and Mr. Birenkrant and Mr. Veteri on the other
and to determine whether it could be ascribed to factors other than
discrimination. But because the positions compared are not substantially
equivalent as a matter of law, and because this results in dismissal of
the pay disparity claim, Mr. Dorf's analysis is no longer relevant to any
claim remaining in the case.
For the reasons set forth above, Triarc's motion for summary judgment
is granted with respect to the plaintiff's claims of discriminatory
termination on the basis of gender and religion, retaliatory discharge,
failure to rehire, hostile environment based on religion, intentional
infliction of emotional distress, and unequal compensation. It is denied
as to the claims of unlawful termination of the basis of age and hostile
work environment based on gender. By June 15, 2004, the parties shall submit a joint pretrial
order, proposed voir dire questions, requested jury instructions, and any
motions in limine.