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
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 ...