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United States District Court, S.D. New York

May 24, 2004.

MARTHA GONZALEZ, Plaintiff, — against — PARISH OF TRINITY CHURCH, Defendant

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Martha Gonzalez ("Plaintiff") brings this suit against defendant Parish of Trinity Church ("Trinity"), alleging that she was terminated from her employment in violation of Title YE of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. (Title VII). Discovery is complete, and Defendant now brings this motion for summary judgment. For the reasons set forth below, the motion is GRANTED.


  Martha Gonzalez, a woman of Puerto Rican descent, was employed by Trinity from February 11, 1985 through January 4, 2000, the date on which she was terminated. At the time of her termination, Plaintiff was employed as a receptionist/secretary in the church's Finance Division, in which capacity she was responsible for the preparation and transmittal of data to Trinity's outside payroll service, Automatic Data Processing, Inc. ("ADP"), as well as other responsibilities, such as the deposit of donations into church bank accounts.

  In October 1999, Trinity observed that its actual payroll expense exceeded its budget, and the General Ledger Department performed an analysis to determine the source of the variance. (Knoll Aff. at ¶ 3.) Through this analysis, Trinity determined that on June 23, 1999, Gonzalez received seventy hours of advance vacation pay, totaling $1,217.92, in addition to the regular paycheck that she received on that date. (Knoll Aff. at ¶ 3; La Vacca Aff. at ¶ 3.) This advance vacation pay was not deducted in any subsequent period, resulting in an overpayment to Gonzalez. (Knoll Aff. at ¶ 3; La Vacca Aff. at ¶ 3.).

  In order to receive advance vacation pay, Trinity's procedures require an employee to submit a written request, signed by her supervisor, to the Human Resources Department for approval at least three weeks in advance of the first scheduled vacation day. (La Vacca Aff. at ¶ 4.) This procedure ensures that the advance is properly recorded and that the employee is not overpaid. Id.

  Gonzalez did not notify the Human Resources Department of her advance vacation pay request; nor did she obtain the consent of her supervisor. Rather, Gonzalez arranged for the payment directly through ADP, even though advance vacation pay is supposed to be handled by the Human Resources Department, not Gonzalez. (Knoll Aff. at ¶ 4; La Vacca Aff. at ¶ 5).

  Gonzalez did nothing to rectify the overpayment until confronted by the General Ledger Department more than four months later. (Knoll Aff. at ¶ 4.) In November 1999, Kevin Kapadia of the General Ledger Department approached Gonzalez about the overpayment. (Knoll Aff. at ¶ 4; La Vacca Aff. at ¶ 6.) Gonzalez did not deny the overpayment, and arrangements were made for it to be deducted from subsequent paychecks. (Knoll Aff. at ¶ 4; La Vacca Aff. at ¶ 6.)

  Trinity subsequently undertook a detailed analysis of (1) Gonzalez' timesheets on which she recorded her hours of work; (2) the church's payroll transmittals, which were prepared by Gonzalez; and (3) Gonzalez' earnings statements for the years 1998 and 1999. This investigation revealed more than four separate instances in which Gonzalez arranged to receive unauthorized overtime pay. (See La Vacca Aff. at ¶ 6-12.) Because all discrepancies were in Gonzalez' favor, Trinity determined that Gonzalez had misappropriated church funds. (Knoll Aff. at ¶ 6-7.)

  On January 4, 2000, Constance Gerard, Director of Human Resources; Margaret Nodine, Gonzalez' direct supervisor; and Joseph La Vacca, Assistant Controller, met with Gonzalez. During this meeting, Gonzalez was informed of the investigation and that she was being terminated.


  In order to prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact and that judgment is warranted as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). Facts, and all inferences therefrom, must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); American Gas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250.

  In discrimination cases, a trial court must be particularly cautious about granting summary judgment where the employer's intent is at issue, because direct proof is often lacking. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). The court, therefore, must look to circumstantial evidence, which, if believed, would show discrimination. Id. Summary judgement may be appropriate, however, where no evidence exists or where only conclusory allegations have been offered to suggest that an employer's motives are improper. Minott v. Port Auth of New York, 116 F. Supp.2d 513, 518 (S.D.N.Y. 2000).

  A plaintiff alleging that she was discharged in violation of Title VII carries the initial burden of establishing a prima facie case of discrimination by showing that (1) she belongs to a member of a protected minority; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of racial discrimination. McDonnell Douglas v. Green, 411 U.S. 792 (1973).

  If the plaintiff meets this burden, the employer must produce evidence that the adverse employment action was taken for a "legitimate, nondiscriminatory reason." St. Mary's Honor Or. v. Hicks, 509 U.S. 502, 509 (1993); McDonnell Douglas, 411 U.S. at 802. In order to overcome this defense, the plaintiff must demonstrate that the proffered reason is simply a pretext for discrimination. McDonnell Douglas, 411 U.S. at 803. While the burden of production shifts throughout the analysis, the burden of proving the employer's discriminatory intent remains with the plaintiff. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

  Gonzalez has failed to make out a prima facie case because she has failed to produce evidence showing that her discharge occurred in circumstances giving rise to an inference of discrimination. Gonzalez asserts that employees under "similar positions" as herself were given severance packages in 1997 after being terminated. (Pl.'s Mem at ¶ 11.) She also claims, somewhat inconsistently, that other employees who had received unauthorized pay and failed to report it had not been terminated. (See Pl.'s Mem. at ¶ 28.)

  A plaintiff can raise an inference of discrimination by showing that the employer subjected her to disparate treatment, that is, treated her less favorably than a similarly situated employee outside her protected group. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). While Gonzalez has alleged that she was treated differently from other Trinity employees, she has failed to submit evidence showing either that these employees were outside her protected group or that they were similarly situated. According to the deposition transcript of Margaret Mary Nodine, Trinity's Executive Assistant to the Chief Financial Officer, in her eleven years in the Finance Division, no former employee was found to have committed acts such as those committed by Gonzalez, nor received severance pay after being discharged for such conduct. (Nodine Aff. at ¶ 4.)

  While Gonzalez is correct that other employees who had received overpayments relating to vacation pay were not terminated, she has submitted no evidence that those employees held positions involving the transmission of payroll data. Moreover, these employees had followed the appropriate procedures for requesting advance overtime pay, and there is no evidence that they had any history of misappropriating church funds. (See Fenster Reply Aff., Ex. G.) Because Gonzalez has produced no evidence demonstrating that her termination occurred under circumstances giving rise to an inference of discrimination, she has not made out a prima facie case under Title VII.

  Even assuming, arguendo, that Gonzalez has established a prima facie case, Trinity has shown a "legitimate, nondiscriminatory reason" for her termination. Misappropriation of church funds by an employee charged with the sensitive task of transmitting payroll data to an outside payroll service certainly represents a valid, nondiscriminatory basis for Gonzalez' termination. Gonzalez does not dispute that she misappropriated church funds, and she has failed to show that other Trinity employees who committed such acts were allowed to continue their employment. Therefore, Gonzalez' Title VII claim must also fail because she has not shown that Trinity's proposed reason for her discharge was pretextual.

  For the reasons set forth above, Defendant's motion for summary judgment is GRANTED, and the complaint is dismissed in its entirety. Accordingly, the Clerk of the Court is directed to close the case and remove the file from the active docket.



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