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United States District Court, N.D. New York

June 18, 2004.


The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  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 Plaintiff's claims.

  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) (quotation omitted).

  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 the position.*fn3

  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 VII claim.

  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 further

  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.


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