United States District Court, N.D. New York
June 18, 2004.
KIMBERLY S. SCOTT, Plaintiff,
NIAGARA MOHAWK POWER CORPORATION, Defendant.
The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District
MEMORANDUM-DECISION AND ORDER
Plaintiff brings this action pursuant to the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., as amended,
and the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621, et seq., alleging disparate treatment on the basis of
her sex and age.*fn1
Plaintiff, a forty-nine-year-old woman, began working for
Defendant Niagara Mohawk Power Corporation ("NIMO") in January,
1983. She held several different positions with Defendant, was
promoted several times, and received multiple salary increases.
In February 1999, Plaintiff applied for the newly created
Director of Field Services ("DFS") position, which had a higher
grade and pay level than her position at the time. At the
conclusion of the hiring process, Defendant awarded the position
to a younger, male employee. Plaintiff resigned from the company
in August, 2000.
Presently before the Court is Defendant's motion for summary
judgment as to all of Plaintiff's claims. The Court heard oral
argument in support of, and in opposition to, this motion on
January 15, 2004, and orally denied the motion in its entirety at
that time. The following constitutes the Court's written decision
with regard to the motion. II. DISCUSSION
A. Summary Judgment Standard
A court should grant a motion for summary judgment only if
"there is no genuine issue as to any material fact and when,
based upon facts not in dispute, the moving party is entitled to
judgment as a matter of law." Bryant v. Maffucci, 923 F.2d 979,
982 (2d Cir. 1991) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)).
In making this determination, the court must resolve all
ambiguities and draw all reasonable inferences in a light most
favorable to the non moving party. See id. (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994,
8 L.Ed.2d 176 (1962) (per curiam)).
With these standards in mind, the Court will address each of
B. Plaintiff's Sex Discrimination Claim
Title VII makes it unlawful for an employer to discriminate
against an individual with respect to the terms, conditions, and
privileges of employment because of that individual's sex. See
Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir. 2002)
When a plaintiff has alleged that she was discriminated against
based on her sex, courts analyze the plaintiff's claim using the
three-step McDonnell Douglas burden-shifting analysis. See
Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 316-17 (2d
Cir. 1999) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)) (other citations
omitted). Under this analysis, an employee can establish a prima
facie case by showing that 1) she was a member of a protected class; 2) she was qualified for
the position that she sought; 3) she was subjected to a material
adverse employment action; and 4) the circumstances surrounding
the adverse employment action give rise to an inference of
discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128,
137-38 (2d Cir. 2003) (citation omitted). A material adverse
employment action must be "`more disruptive than a mere
inconvenience or an alteration of job responsibilities.'" Id.
at 138 (quoting Galabya v. New York City Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000)). In order to show that she was qualified
for a promotion or position she sought, a plaintiff must show
that she possesses all of the basic skills necessary for the job.
See Jackson v. Lyons Falls Pulp & Paper, Inc., 865 F. Supp. 87,
95-96 (N.D.N.Y. 1994) (quotations omitted).
In February, 1999, Plaintiff applied for the DFS position.
Peter Lebro, Vice President of Operations, was responsible for
choosing someone to fill that position. He interviewed many
candidates for the position, including Plaintiff. Ultimately, Mr.
Lebro awarded the position to Joe Basic. In October, 1999,
Plaintiff filed an interal discrimination complaint with
Defendant. On January 25, 2000, Plaintiff filed a complaint with
the New York State Division of Human Rights ("NYSDHR").*fn2 Defendant contends that it is entitled to summary judgment
because Plaintiff has failed to establish her prima facie case
in that there is no evidence that she was qualified for the DFS
position. In 1998, with Plaintiff's help, Vice President of
Operations Rich Borsellino created he initial job description for
the position for which Plaintiff applied. Plaintiff drafted the
requirements of the position with herself in mind. However,
thereafter, Mr. Lebro and Tom Baron, Defendant's Senior Vice
President of Field Operations, modified Plaintiff's and Mr.
Borsellino's original job description for the DFS position.
According to Defendant, Mr. Lebro and Mr. Baron changed the DFS
position to a more technical role that requires a person have an
engineering background and significant field technical
experience. Defendant contends that, as a result of these
changes, Plaintiff did not meet the personnel department's
initial screening requirements for the position. In this regard,
Defendant offered testimony from Mr. Lebro, who stated that he
eliminated Plaintiff as a candidate after interviewing her
because she lacked a bachelor's degree in engineering and
sufficient technical experience.
In turn, Plaintiff offered evidence to support her contention
that she was qualified for the position. She points out, first,
that Defendant has not disputed her contention that Mr. Basic,
with only eight years of experience, did not meet the basic
qualifications for the position. She also claims that Mr. Lebro's
contention that he and Mr. Baron totally changed the job
description for the DFS position is disingenuous, as the job
description that she created and the final job description were
substantially similar. With respect to Defendant's contention
that the personnel department eliminated her from consideration
for the position, she contends that the personnel department's screening requirements are guidelines, not mandates,
and Defendant's executives can typically handpick the individuals
who report to them. Plaintiff also offered evidence that Mr.
Lebro interviewed several individuals who the personnel
department indicated did not meet the minimum qualifications for
Plaintiff has also alleged that Mr. Lebro made a number of
statements that could give rise to an inference of
discrimination. Plaintiff claims that Mr. Lebro commented that he
was "`uncomfortable working with someone who was different that
[sic] he was'" and that, before he hired anyone for the DFS
position, he had to handle "`that crap with Human Resources about
women and minorities.'" See Complaint at ¶ 23. Plaintiff also
contends that Mr. Lebro described Mr. Basic to her as a "real
young guy." See id. at ¶ 26. As further evidence of Defendant's
discriminatory intent, Plaintiff recounts the details of an
off-site lunch that she had with Mr. Borsellino. Plaintiff
asserts that, during the lunch, Mr. Borsellino told her that he
had been privy to several discussions in which managers recounted
their lack of success in "placing women in supervisory roles in
field operations." See Affidavit of Kimberly S. Scott, sworn to
Nov. 25, 2003 ("Scott Aff."), at ¶ 15. Mr. Borsellino also stated
that Mr. Baron preferred to go with a younger candidate over an
"`old'" manager. See id.
In response, Defendant argues that any verbal comments which
Plaintiff understood as discriminatory were actually totally
innocuous.*fn4 For example, Mr. Lebro may have told
Plaintiff that he had always worked with "`guys'" who were "like him."
See Complaint at ¶ 22. However, Mr. Lebro stated that, even if
he made such a statement, he only meant that Plaintiff was a
"financial/accountant type person" as opposed to the "field
personnel" with whom Mr. Lebro usually worked. See Affidavit of
Peter H. Lebro, sworn to November 3, 2003 ("Lebro Aff."), at ¶
16. Defendant contends further that Mr. Borsellino's statements
regarding the gender of a candidate for the field management
position are irrelevant because Mr. Borsellino had no role in
choosing Mr. Basic for the position. Defendant's characterization
of Mr. Borsellino's and Mr. Lebro's allegedly discriminatory
statements may be correct. However, in light of the low threshold
which the Second Circuit has set with respect to Plaintiff's
burden to raise an issue of fact, see Richardson v. New York
State Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999)
(citation omitted), the Court cannot determine the issue on this
motion. Accordingly, the Court concludes that Plaintiff has met
the elements of her prima facie case.
Once the plaintiff has successfully demonstrated a prima
facie case, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for taking the adverse
action. See Jackson, 865 F. Supp. at 95-96 (citation omitted).
If a defendant can offer a legitimate, nondiscriminatory reason,
the plaintiff must then show that the employer's reason was a
pretext for sex discrimination. See Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224-25 (2d Cir.
1994) (citation omitted). To meet this burden, a plaintiff may
rely on the same evidence that she used to establish her prima
facie case, or she can offer additional evidence. See id. at 1226 (citations omitted). In the present case, Defendant
has met its burden of production by asserting that it chose Mr.
Basic over Plaintiff because he was more qualified than Plaintiff
in that he had a master's degree in business administration and
more field experience than Plaintiff.
Therefore, the burden shifts back to Plaintiff to offer
evidence to show that Defendant's proffered reason for choosing
Mr. Basic over her was pretextual. As Plaintiff points out,
Defendant has not offered any description of what Mr. Basic's
qualifications actually are or whether he had the requisite
number of years of experience for the position. Defendant has
also failed to rebut Plaintiff's allegations that Mr. Basic was
too inexperienced for the DFS position and had no managerial
experience. Defendant stated only that Mr. Basic had a master's
degree in business administration, a positive attribute, but not
one required in the job description that Defendant submitted.
This evidence, together with the other circumstances, is
sufficient to raise a material issue of fact as to whether
Defendant's claim that Mr. Basic was more qualified than
Plaintiff was a pretext. Accordingly, the Court denies
Defendant's motion for summary judgment as to Plaintiff's Title
B. Plaintiff's Age Discrimination Claim
The Age Discrimination in Employment Act ("ADEA") makes it
unlawful for an employer to discriminate against an individual
with respect to the terms, conditions, and privileges of
employment because of that individual's age. See
29 U.S.C. § 623. The ADEA only protects individuals over the age of 40. See
id. at § 631(a). Courts analyze ADEA claims using the same
McDonnell-Douglas framework as Title VII claims. See Byrnie v.
Town of Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001)
(citations omitted). Plaintiff was over forty years of age during the events giving
rise to this lawsuit, and she is therefore within the ADEA's
protected class. She has largely relied on the same evidence to
support her age discrimination claim that she used to support her
sex discrimination claim. As detailed above, Plaintiff has
provided evidence to create an issue of fact as to whether
Defendant's proffered reason for hiring Mr. Basic, that he was
more qualified than she was, was pretextual.
Accordingly, the Court denies Defendant's motion for summary
judgment with respect to Plaintiff's ADEA claim.
After carefully considering the file in this matter, the
parties' oral arguments and their submissions, as well as the
applicable law, and for the reasons stated herein, as well as at
oral argument, the Court hereby
ORDERS that Defendant's motion for summary judgment as to
Plaintiff's claims under Title VII, 42 U.S.C. § 2000e, and the
ADEA, 42 U.S.C. § 623, is DENIED in its entirety; and the Court
ORDERS that Plaintiff's counsel is to initiate a telephone
conference through a professional conference operator with the
Court and opposing counsel at 9:30 AM on July 7, 2004 to set a
trial date for this action.
IT IS SO ORDERED.