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
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
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. FSStaten 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
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, SI 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 Danzer, 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 here.
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 hosfile 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. Lichtenstein'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.
Liechtenstein, 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. Hosfile Environment
Ms. Lichtenstein also advances claims of hosfile 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 hosfile 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 hosfile 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
hosfile 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,
SI 142; Pl. 56.1 Statement, SI 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 hosfile 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
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 environment).
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
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 hosfile 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 hosfile 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 hosfile 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 hosfile 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 hosfile 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 hosfile 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
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
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-McElenev, 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
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 facilitate preparation.
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
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
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
6. Assist with corporate accounting account
analysis and other corporate accounting
7. Prepare analyses for worker's compensation
8. Research accounting and reporting issues, as
9. Assist in accounting and reporting for
employee benefit plans.
10. Coordinate and/or prepare as necessary
government reports required by agencies such
as the Department of Commerce and the Bureau
of the Census.
(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, hosfile 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 hosfile
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.