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
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 hosfile 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 ("Pl. 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, 1 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, E).
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. Seiler 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. FSStaten Island University Hospital, 196 F.3d 89, 95 ...