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June 28, 2004.


The opinion of the court was delivered by: THOMAS McAVOY, District Judge



  Plaintiff Caroline Wilson commenced the instant action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and N.Y. Executive Law § 296 ("Human Rights Law" or "HRL") alleging that Defendant International Business Machines ("IBM") terminated her employment on account of her gender and/or pregnancy. Presently before the Court are Defendants IBM and Frank Urban's motions for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.


  IBM hired Plaintiff in 1984. In 1997, Plaintiff became the account manager within the Test Design Automation ("TDA") team of the Microelectronics Division. In this position, Plaintiff was responsible for selling a certain software product. From 1997 through July 2000, Plaintiff's first-line manager was Randy Kerr. From July 2000 through the end of Plaintiff employment, her first-line manager was Dennis Meehl. Kerr and Meehl reported to Urban.

  In April 2000, Plaintiff informed Kerr that she was pregnant. In May or June 2000, Plaintiff sought permission to take a one-year leave of absence following the birth of her child. This request was granted. IBM hired Dean Rittenhouse to fill the vacancy created by Plaintiff's leave of absence. On August 11, 2000, Plaintiff went out on maternity leave. After exhausting her paid time off, Plaintiff commenced a year-long unpaid leave of absence.

  In the Fall of 2001, IBM began plans for a reduction in force. The TDA team recommended certain personnel for layoff. The TDA team decided that, because there were two persons in the sales and marketing position (Plaintiff and Rittenhouse), one of the positions had to be eliminated. Plaintiff was selected for layoff. Rittenhouse was retained. According to Meehl, he recommended that Plaintiff be laid off because Rittenhouse had built relationships with customers and was closing deals, from which IBM needed revenue, and removing Rittenhouse at that time could jeopardize those deals that were in progress. Meehl made his recommendation on October 31, 2001. See Meehl Aff., Ex. D. The recommendation was reviewed by Dale Hoffman on November 14, 2001. Id. On November 19, 2001, Plaintiff returned to work from her leave of absence. On November 28, 2001, Meehl notified Plaintiff that she was to be laid off. Plaintiff inquired of Meehl why she, as opposed to Rittenhouse, was being laid off. Rittenhouse referred Plaintiff to Urban. Plaintiff then asked Urban why she was being laid off. Urban responded that "it was easier this way. [Rittenhouse] was working on some contracts. It was easier to keep him rolling along." Wilson Dep. at 49. During the course of the conversation with Urban, Urban briefly discussed breast feeding. Id. at 51-52. The conversation then turned to a discussion of mothers, unions and why IBM never built a facility in Pennsylvania. Id. Plaintiff was laid off effective January 3, 2002.

  A few months after Plaintiff's termination, IBM underwent another set of layoffs. In June 2002, Rittenhouse was laid off effective August 5, 2002 because IBM eliminated the remaining sales and marketing position in TDA. In October 2002, IBM sold the entire TDA operation to Cadence Design Systems, Inc.

  Plaintiff then commenced the instant action claiming that she was terminated on account of her gender and/or pregnancy. Currently before the Court are Defendants' motions to dismiss the Complaint in its entirety pursuant to FED. R. CIV. P. 56.


  It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). With this standard in mind, the Court will address the pending motions.


  The framework for review of Title VII discrimination claims is well-settled. To establish a claim of disparate treatment, Plaintiff must demonstrate that: (1) she is a member of the protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Under the familiar McDonnell Douglas burden shifting scheme, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), if Plaintiff establishes a prima facie case, there is a presumption of unlawful discrimination. The burden then shifts to the employer to proffer a legitimate, non-discriminatory reason for its action. If the employer satisfies this burden, any presumptions of discrimination are erased and Plaintiff is left to submit sufficient evidence (which may include the evidence in support of the prima facie case) from which a fair-minded trier of fact could reasonably conclude that "the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry, 336 F.3d at 138 (quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)).

  Here, there is no dispute that Plaintiff satisfies the first three elements of her prima facie case. There is dispute whether Plaintiff can demonstrate that her termination occurred under circumstances giving rise to an inference of discrimination. Plaintiff contends that such circumstances exist because, among other things, Plaintiff was replaced by a male (Rittenhouse). The Second Circuit has held that being replaced by someone outside the protected class suffices to establish a prima facie case. See Zimmerman v. Associates First Capital Corp., 251 ...

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