United States District Court, S.D. New York
April 5, 2005.
SHELLEY HNOT, et al., Plaintiffs,
WILLIS GROUP HOLDINGS LTD., WILLIS NORTH AMERICA INC., et al. Defendants.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
Plaintiff Shelley Hnot brings this employment discrimination
action against her former employer, Willis Group Holdings, and
affiliated entities (collectively, "Willis"). Plaintiff alleges
that she was underpaid, denied promotions, and demoted due to her
gender, in violation of Title VII of the 1964 Civil Rights Act,
42 U.S.C. 2000e-2 et seq. ("Title VII"). She also claims that
she was terminated in retaliation for filing a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC"), a protected activity under Title VII.
42 U.S.C. § 2000e-3. In an Opinion and Order dated March 18, 2005, this Court
granted a motion by plaintiffs Hnot and Heidi Scheller for class
certification. Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558
(GEL), 2005 WL 659475 (S.D.N.Y. March 21, 2005). Defendants now
move for summary judgment on Hnot's individual claims on the grounds that they are
time-barred, and that plaintiff can not establish a prima facie
case, or demonstrate that defendants' alleged non-discriminatory
reasons for their actions were pretextual.*fn1 For the
reasons below, defendants' motion will be denied in part and
granted in part.
Hnot was employed for 24 years at Willis, an insurance
brokerage company. Willis has regional offices across the
country, each led by a Regional Executive Officer ("REO"). (Kelly
Dep. 26-27.) Each region, in turn, had local offices, headed by a
Chief Executive Officer ("CEO") and Chief Operating Officer
("COO"). (Murphy Decl. ¶ 6.) Further details about Willis's
organizational structure and its various job titles are set forth
in the Court's class certification opinion. See Hnot, 2005 WL
659475, at *2-5. Hnot was employed in the New Jersey office,
which was part of Willis's Northeast Region.
In 1995, Hnot became a Team Leader, the only woman in the New
York/New Jersey offices to hold such a position. (Hnot Dep. 113.)
As a Team Leader, Hnot was responsible for managing her team,
soliciting new business, and servicing the accounts held by the
team. (Hnot Dep. 153-54, Murphy Dep. 95.) Hnot was also awarded
an officer title of Senior Vice President, which did not increase
her base salary or her eligibility for bonuses. (Murphy Decl. ¶¶
13, 16-17.) Hnot reported to the New York COO, first Joe
McSweeney and later James Murphy. (Hnot Dep. 128.)
According to plaintiff, Willis management eventually began to
systematically undermine her efforts to retain her accounts, and
to obtain new business for her team. (Hnot Decl. ¶ 28, 57, 59-73.) For example, when Hnot sought the assistance of a
"producer," that is, a Willis employee whose primary role was to
produce business, her requests were repeatedly denied, and her
own efforts to solicit new business were blocked. (Hnot Dep.
75-76, 168-70.) Hnot avers that such treatment contrasted with
that accorded other, male-led, teams who had in-team producers,
and assistance from non-designated producers. (Hnot Decl. ¶¶ 23,
25.) Hnot also contends that Willis management set production
goals that were unreasonably high for the size of her team. (Hnot
Decl. ¶ 44.)
During Hnot's tenure as Team Leader, she was paid less than all
but one of the male Team Leaders. See Murphy Decl. ¶¶ 61-65,
71-76 (showing that Hnot was paid $146,000 in 1998, the second
lowest salary among eight Team Leaders). She received no raise in
1998, and was informed that this was because she had the highest
ratio of salary to book of business in the New York and New
Jersey offices. (Murphy Decl. ¶ 56.) Hnot also received no raise
in 1999. (Id. at ¶ 67.) Hnot was similarly denied bonuses in
both 1998 and 1999, purportedly because her team fell short of
reaching certain financial goals. (Murphy Decl. ¶ 80.)
After Hnot was promoted to Team Leader, she failed to be
promoted to any higher position, even though the New York COO
position became available in 1997 (Hnot Dep. 84), and was not
filled until February 1998. (Murphy Dep. 75.) The New York CEO
position was not filled until 1999, and New Jersey CEO position
was filled in 2000. (Murphy Dep. 71, 75.) All these positions
were filled by men. (Hnot Dep. 15, 20, 86; Hnot Dep. II 413.)
In 1997, Willis North America began a review process called
Business Process Reengineering ("BPR"). As part of the BPR
process, employees were assessed based on various "skill/will"
criteria. (Sicard Dep. 231-232.) Hnot's skill/will assessment was
conducted by Murphy. (Mathieson Dep. 41.) Later in 1998, shortly after Murphy
became the New York COO, he began to reorganize Willis's New
Jersey office. (Murphy Decl. ¶ 20, Ex. A.) Subsequently, Hnot was
removed from her Team Leader position, and transferred to another
team. (Murphy Decl. ¶ 28, Ex. G; Murphy Dep. 48.) On August 26,
1999, Hnot filed a charge of discrimination with the EEOC. (Am.
Compl. ¶ 51.) One month later, on September 25, 1999, Murphy was
informed of the charge, and on December 17, 1999, he recommended
Hnot's termination. (Murphy Dep. 55-56; Murphy Dep. II 52-53.) On
March 22, 2000, Hnot's employment was terminated. Hnot, along
with other female Willis employees, filed a class action
complaint against Willis on July 19, 2001.
I. Summary Judgment Standard
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . 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).
A "genuine issue of material fact" exists if the evidence is such
that a reasonable jury could find in favor of the non-moving
party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001). The moving party bears the burden of establishing the
absence of any genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deciding a
summary judgment motion, the court must "resolve all ambiguities
and draw all reasonable references in the light most favorable to
the party opposing the motion." Cifarelli v. Vill. Of Babylon,
93 F.3d 47, 51 (2d Cir. 1996). In addition, the court is not to
make any credibility assessments or weigh the evidence at this
stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
The nonmoving party, however, may not rely on "conclusory
allegations or unsubstantiated speculation." Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir. 1998). The non-moving party "must do
more than simply show that there is some metaphysical doubt as to
the material facts," Matsushita Elec. Indus. Co., Ltd., v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must make 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 Corp. v. Catrett,
477 U.S. 317, 322 (1986).*fn2
II. Statute of Limitations
Title VII claims must be filed with the EEOC within 300 days of
the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1). Under
Title VII, each discrete act of discrimination "constitutes a
separate actionable `unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). A
plaintiff can "only file a charge to cover discrete acts that
`occurred' within the appropriate time period." Id. Recovery is
precluded for acts outside the time period, even if related acts
occurred within it. Patterson v. County of Oneida,
375 F.3d 206, 220 (2d Cir. 2004). Hnot filed her charge with the EEOC on
August 26, 1999 (2d Am. Compl. ¶ 51), and filed her complaint on
July 19, 2001. Therefore, Hnot's discrimination or retaliation
claims based on any discrete acts that occurred before October
30, 1998 are barred under federal law.*fn3
Calculation of the limitations period is sometimes complicated
by the "continuing violation" doctrine. "[I]f a plaintiff has
experienced a continuous practice and policy of discrimination, . . .
the commencement of the statute of limitations period may be
delayed until the last discriminatory act." Washington v. County
of Rockland, 373 F.3d 310, 317-18 (2d Cir. 2004), quoting
Fitzgerald v. Henderson, 251 F.3d 345, 349 (2d Cir. 2001). A
continuing violation is conduct that is "composed of a series of
separate acts that collectively constitute one `unlawful
employment practice.'" Morgan, 536 U.S. at 111. Under Morgan,
however, Hnot's claims of discriminatory failure to promote and
retaliatory termination are considered discrete,
separately-actionable practices that occur on specific
ascertainable dates, and are not continuous violations. See
id. at 114 (explaining that discrete acts include "termination,
failure to promote, denial of transfer, or refusal to hire").
Thus, any such claim based on events occurring before the cut-off dates set forth above are time-barred.
This conclusion, however, does not defeat Hnot's claims. Her
claim of retaliatory termination is clearly timely under state
and federal law, and so are at least some of her failure to
promote claims. For example, the New Jersey CEO position was
filled in 2000 and the New York CEO position was filled in 1999,
while Hnot was still employed at Willis and well within the
applicable limitations period. At any rate, even evidence of
allegedly discriminatory acts that are time-barred may still be
considered in assessing defendants' intent with respect to
employment actions taken within the limitations period. Id. at
Utilizing the framework set forth in Morgan, pay disparity
claims are also considered discrete acts. The Supreme Court has
reasoned that "[e]ach week's paycheck that delivers less to a
[disadvantaged class member] than to a similarly situated
[favored class member] is a wrong under Title VII, regardless of
the fact that the pattern was begun prior to the effective date"
of the statute. Bazemore v. Friday, 478 U.S. 385, 395-96
(1986).*fn4 The Second Circuit has applied this reasoning to
pay disparity claims under the Equal Pay Act. See Pollis v.
The New Sch. For Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997)
("A cause of action based on receipt of a paycheck prior to the
limitations period is untimely and recovery for pay differentials
prior to the limitations period is barred irrespective of
subsequent, similar timely violations.")
Most courts in this district have found that the reasoning in
Pollis applies to Title VII claims. See, e.g., Hermandez
v. Kellwood Co., No. 99 Civ. 10015 (KNF), 2003 WL 22309326, at * 14-15 (S.D.N.Y. Oct. 8, 2003) ("It is clear from Morgan
and the relevant Second Circuit case law that . . . the pay
disparities . . . are to be considered discrete acts and,
therefore, cannot be lumped together to form a `continuing
violation.'"); Quarless v. Bronx-Lebanon Hosp. Ctr.,
228 F. Supp. 2d 377, 383 n. 2 (S.D.N.Y. 2002) (holding that in light of
Morgan, Pollis applies to Title VII claims); Gross v. Nat'l
Broad. Co., Inc., 232 F. Supp. 2d 58, 68 (S.D.N.Y. 2002) (noting
that Morgan is in accord with Pollis).*fn5 Therefore,
Hnot's pay disparity claims under Title VII are valid only for
the period within the applicable limitations period. Defendants'
motion for summary judgment is thus granted with respect to any
pay disparity and promotion claims prior to October 30, 1998, and
denied for all claims properly within the statute of limitations.
III. Merits of the Discrimination Claims
A. Legal Standard
In Title VII discrimination cases, the courts have established
a complex burden-shifting framework based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to determine whether a
plaintiff's claim survives summary judgment. First, the plaintiff
must make a prima facie showing of discrimination. Id. at 802.
A plaintiff has the initial burden of demonstrating that (1) she
belonged to a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4)
the adverse employment action occurred under circumstances giving rise to an inference of discriminatory
intent. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003).
The burden of establishing a prima facie case is not onerous,
and is frequently described as minimal. Scaria v. Rubin,
117 F.3d 652, 654 (2d Cir. 1997). See, e.g., St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 507 (1993). No evidence of
discrimination is needed, and showing a preference for a person
not in the protected class is enough to raise an inference of
discrimination. James v. N.Y. Racing Ass'n, 233 F.3d 149,
153-54 (2d Cir. 2000).
Meeting the burden of establishing a prima face case "creates a
presumption that the employer unlawfully discriminated." Id. at
154. The burden then shifts to the employer, who must articulate
a legitimate, non-discriminatory reason for its adverse
employment action. McDonnell, 411 U.S. at 802; James,
233 F.3d at 154. That burden "requires the defendant to produce
admissible evidence showing `reasons for its actions which, if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action,'" Eatman v. United Parcel Serv., 194 F. Supp. 2d 256,
263 (S.D.N.Y. 2002), quoting St. Mary's Honor Ctr.,
509 U.S. at 507 (1993) (emphasis in original). If the employer fails to
present such a reason, plaintiff prevails.
Once the employer articulates a non-discriminatory reason, the
presumption "drops out of the picture." St. Mary's Honor Ctr.,
509 U.S. at 510-11. The plaintiff is then required to show that
the proffered reason is a pretext for discrimination.
McDonnell, 411 U.S. at 804. When the employer has proffered an
explanation and the plaintiff has attempted to refute it, the
Court must "examin[e] the entire record to determine whether the
plaintiff could satisfy his `ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.
2000), quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).*fn6
B. Compensation Disparities
Plaintiff meets her burden of establishing a prima facie case
on compensation disparities. She is a female and thus a member of
a protected class under Title VII, and was concededly qualified
to be a Team Leader. Defendants do not dispute that plaintiff was
paid less than all but one of her male peer Team Leaders (D. Mem.
8; Murphy Decl. ¶¶ 61-65, 71-72), an adverse treatment that
intrinsically raises a suspicion of gender discrimination.
Defendants present non-discriminatory reasons for plaintiff's
lower pay, and for her failure to receive raises in 1998 and
1999. Primarily, defendants argue that Hnot's salary was the
highest in the New York and New Jersey offices when compared to
her team's book of business, explaining that the Team Leaders who
did receive raises in 1998 had salaries that were low in
relation to their teams' book of business. (D. Mem. 21; Murphy
Decl. Ex. J.)
Hnot raises significant factual issues that cast doubt on
defendants' asserted non-discriminatory reasons for her lower pay
and lack of raises. First, Hnot points to deposition testimony by
one of defendants' own witnesses that is inconsistent with
defendants' explanations of the criteria governing pay raises.
For example, Murphy explained that he received oral instructions
that salary adjustments were to be based on performance, with
additional consideration given to internal equity and market
offers. (Murphy Dep. 215-17.) Other evidence suggests additional discrepancies, such as an email discussing
proposed raises for Team Leaders which notes that a raise to
$148,000 ($2,000 more than Hnot's salary at that time; see
Murphy Decl. ¶ 55) for a male Team Leader would put him at "the
low end of the team leader scale," with no discussion of his
salary as a proportion of his book of business. (Webber Decl. Ex.
Additionally, while defendants point out that some men were
also denied raises, these men do not fall into the pattern that
defendants propose. For example, both in 1998 and 1999, some Team
Leaders who received raises had higher salary/book of business
ratios than those who did not. See D. Mem. 8 tbl. (showing that
in 1998, a Team Leader with a salary/book of business ratio of
8.1% received a raise, while another Team Leader with 2.5% ratio
did not; and that in 1999, a Team Leader with a ratio of 7.1%
received a raise while a Team Leader with a ratio of 3.6% did
not). Therefore, a reasonable factfinder drawing reasonable
inferences in favor of plaintiff could conclude that defendants'
proffered reasons for the denial of raises to Hnot are merely an
after-the-fact rationalization to conceal discriminatory intent.
Defendants offer a similar rationale for plaintiff's claims of
denial of bonuses. Defendants allege that Hnot's team did not
reach its target in either of those years, and that she therefore
did not qualify for a bonus. (Murphy Decl. ¶ 79.) Although a
reasonable jury could accept defendants' justification, plaintiff
provides evidence that would support a reasonable finding of
discriminatory intent. Plaintiff contends that she was subjected
to lesser staffing support and production assistance (Hnot Decl.
¶ 23, 25, 30, 70-71), disproportionately high production goals
(id. at ¶ 44), and interference with her ability to retain and
produce accounts (id. at ¶¶ 28, 41, 57). For example, John
Kelly, REO of the Northeast Region and CEO of New York, indicates
in his deposition testimony that he was generally responsible for
hiring producers and for directing their assistance to certain Team Leaders.
(Kelly Dep. 151-172; Hnot Decl. ¶¶ 70-71.) Nevertheless, he
informed Hnot that she had to find her own production assistance.
(Id.) If believed, this testimony lends support for an
inference of discriminatory animus.
Similarly, other teams were four to six times the size of
plaintiff's team, yet plaintiff had comparable production goals.
See Rozic Aff., Ex. R; Hnot Decl. ¶ 44 (describing that Hnot
had a production goal of $480,000 while the larger teams had
goals of $500,000). These other teams also had production
assistance that Hnot did not, both from producers assigned to the
team, and from business referred by freestanding producers.
(Id.) Defendants argue that these differences in treatment are
not adverse employment actions. (D. Mem. 19.) Plaintiff does not
argue to the contrary; rather, she points out that this alleged
discriminatory treatment by her employer had a direct impact on
plaintiff's compensation. (P. Mem. 13.) A reasonable factfinder
might reject Hnot's rationalization for her allegedly low
productivity and accept defendants' explanations for denying her
bonuses, but would not be required to do so. Material factual
issues are thus presented for trial.
Moreover, plaintiff does not simply challenge decisions on
specific raises or bonuses, but also argues that she was paid too
little overall. (Hnot Decl. ¶ 48-53; Webber Decl. Ex. 108 at
tbls. A, B.) First, plaintiff presents statistical evidence that
purports to show that high-level women at Willis in general were
paid much less than comparable men. Statistical evidence may be
used to establish a prima facie case under Title VII. Robinson,
267 F.3d at 158-59; Rossini v. Ogilvy & Mather, Inc.,
798 F.2d 590, 604 (2d Cir. 1986). Plaintiff's expert, Dr. Mark
Killingsworth, analyzed officers and employees who held
functional titles equivalent to officers. While controlling for
the exact position held, employing company, years of service,
education, and other factors, Dr. Killingsworth found statistically
significant differences in both base salary and in total
compensation. (Webber Decl. Ex. 107; Webber Decl. Ex. 108 at
tbls. A, B.)
Second, plaintiff also provides ample anecdotal evidence of
pervasive sexism in the company culture. For example, plaintiff
describes sexist jokes made by her male colleagues (Hnot Dep.
70), failure of senior management to take action after plaintiff
received unwanted sexual contact by another officer (id. at
80-81), and a senior officer's comment that women could not be
promoted into senior management "because women could not go out
to dinner at night." (Id.)
Defendants argue that this evidence is insufficient to show
gender bias by disputing Dr. Killingsworth's statistical
analysis. (D. Reply 16, 18.) While defendants may have valid
criticisms of the evidence, resolution of such factual issues is
for the trier of fact at trial. Plaintiff's expert has used
accepted statistical methods, and a reasonable factfinder could
conclude that his testimony demonstrates gender discrimination in
salaries and promotions at Willis.*fn7 Similarly,
defendants' arguments that plaintiff's anecdotes mostly emanate
from co-workers, are sometimes not gender-related, and are
sporadic rather than pervasive (D. Reply 16), at best present
factual disputes to be resolved at trial. Plaintiff has met her
burden of producing evidence that raises a material issue of
fact. A reasonable jury could find that her pay was lower due to
gender bias and that defendants' proffered explanations were
purely a pretext for discrimination. C. Promotion, Demotion, and Termination Claims
Plaintiff also has established a prima facie case that she was
unfairly denied promotions due to gender discrimination. She is a
woman who had sufficient paper qualifications for the New Jersey
COO, New Jersey CEO, and New York COO positions. She was denied
these positions, which were filled by men. See Williams v.
R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)
(outlining the requirements for establishing a prima facie case);
Mitchell v. N. Westchester Hosp., 171 F. Supp. 2d 274, 277-78
(S.D.N.Y. 2001) (finding that an inference of discrimination can
be established by a showing that the position went to a person
outside the protected group, and that plaintiff was qualified for
certain positions in a "basic" sense due to his past positions).
Defendants contend that plaintiff was not qualified for the
promotions, due to her lack of strong production or production
management skills. (Murphy Dep. 333-35, 336-37.) They also point
to the allegedly superior qualifications of Murphy and Sam
Coburn, the men who successfully applied for the positions that
Hnot sought. (D. Mem. 18-19; Murphy Dep. 11-16.) Whether a
candidate is qualified for a position must be determined based on
criteria that the employer has specified for the position.
Williams, 368 F.3d at 126. Hnot disputes the job qualifications
that defendants now put forth for the positions in question. (P.
Mem. 24-25.) However, even using defendants' criteria, which
include a requirement of strong production skills, plaintiff has
supplied adequate evidence that she was both experienced in
management and capable in producing new business. For example,
Hnot was chosen for the Exceptional Producers Council in 1997
(Webber Decl. Ex. 67), a special conference for high-producing
employees. (Webber Decl. Ex. 68.). She was also given the
Chairman's Award in 1989 for overall excellence in performance. (Hnot Decl. ¶ 61.) As
defendants argue, a plaintiff cannot rely on mere conclusory
opinions that she was qualified. (D. Reply 5.) However, plaintiff
does more than just state her opinion that she is qualified. She
has produced substantive facts that create an issue of material
fact. While defendants offer well-supported evidence of their
reasoning, so does plaintiff.
Plaintiff's claim concerning the failure to promote her to the
New Jersey COO position, while time-barred, may serve as evidence
of discriminatory intent. Title VII does not bar an employee from
using prior acts as background evidence of intent in support of a
timely claim. Morgan, 536 U.S. at 113. It is undisputed that
plaintiff had more years of experience than Coburn, who was
ultimately hired as New Jersey CEO, and the promotion of a man
with less experience can be evidence for a jury finding that
plaintiff was denied promotions due to her gender.
Defendants argue that plaintiff never properly applied for or
expressed interest in these positions. (Hnot Dep. 87-88.)
However, if a factfinder accepts plaintiff's allegation that she
was advised not to apply, then her claim is not barred, as "a
plaintiff's failure to apply for a position is not a bar to
relief when an employer's discriminatory practices deter
application or make application a futile endeavor." Malarky v.
Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993). In addition,
if "an employee expresses to the employer an interest in
promotion to a particular class of positions, that general
expression of interest may satisfy the requirement that the
employee apply for the position." Williams, 368 F. 3d at 129.
Plaintiff had previously expressed her interest in a CEO position
to several senior managers. (Hnot Decl. ¶¶ 13-16.) Therefore,
defendants' argument is unpersuasive. As for plaintiff's demotion and discharge claims, defendants
claim that plaintiff was simply one of numerous employees who
were terminated as part of a staff reduction stemming from the
objective, nationwide BPR process. (Murphy Decl. ¶¶ 30-33.) Hnot,
though, raises genuine issues as to whether the BPR process was
objectively applied. Plaintiff and defendants dispute whether
plaintiff's team was profitable or not. (See D. Mem. 16; P.
Mem. 27.) Hnot also alleges that even if the New Jersey office
was unprofitable, there was no persuasive explanation for
terminating Hnot instead of the one Team Leader that Willis
retained in New Jersey. (P. Mem. 28.) Viewed in the light most
favorable to plaintiff, the BPR process could be viewed as merely
a pretext for removing plaintiff.
Plaintiff's statistical evidence adds further support for an
inference of discriminatory intent. The entire record must be
examined to determine whether a plaintiff has satisfied her
burden. See Schnabel, 232 F.3d 83, 90 (2d Cir. 2000)
(explaining that the strength of plaintiff's prima facie case,
proof that employer's explanation is false, and other evidence
are all appropriate in considering a summary judgment motion).
Here, the statistical evidence, along with plaintiff's evidence
of her employer's efforts to undermine her ability to perform her
job duties, could support a reasonable finding of long-term pay
discrimination against Hnot and women in general, and a pattern
of excluding women, including Hnot, from the company's higher
ranks. The failures to promote and eventual demotion thus could
be found to be intentionally discriminatory. There is sufficient
evidence to prelude summary judgment on plaintiff's promotion and
demotion claims. IV. Retaliation Claims
Defendants allege that plaintiff's retaliation claim fails as a
matter of law. To establish a prima facie case of unlawful
retaliation under Title VII, Hnot must show that (1) plaintiff
participated in a protected activity; (2) defendant was aware of
the activity; (3) plaintiff experienced an adverse employment
action; and (4) a causal connection exists between the protected
activity and the adverse employment action. Feingold v. New
York, 366 F.3d 138, 156 (2d Cir. 2004).
Here, plaintiff easily meets the first three criteria of the
prima facie case. Her report to the EEOC is a protected activity,
Willis was made aware of the activity (Murphy Dep. II 52-53), and
plaintiff was ultimately terminated. Defendants argue, however,
that no causal connection exists between plaintiff's filing of
her EEOC charge on August 26, 1999, and her subsequent
termination seven months later on March 22, 1999. (D. Mem. 24.)
Courts are reluctant to infer retaliation where an adverse action
takes place long after the filing of a charge. See, e.g.,
Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 436
(S.D.N.Y. 1998) (finding no causal connection after two and a
half months). However, plaintiff argues that Murphy first decided
that it would be a mistake to terminate plaintiff, but that he
recommended her termination merely one and a half months after he
learned of the EEOC charge. See Murphy Dep. 55-56 (recommending
in an email on December 17, 1999 that Hnot be terminated).
Viewing the evidence favorably to the plaintiff, a reasonable
jury could accept that argument. The prima facie case is thus
As with plaintiff's demotion claim, defendants argue that
plaintiff's termination resulted from the BPR process, and not
from retaliation for the EEOC charge. (D. Mem. 25.) That explanation is plausible, but so are plaintiff's allegations that
any low ranking she received in the BPR process stemmed from
systematic discriminatory interference with her job duties.
Moreover, the "skill/will assessment" that determined Hnot's BPR
rating was conducted by Murphy. (Mathieson Dep. 41, Ex. 106.)
Defendants' reference to the BPR process could be thus viewed by
a factfinder as a pretext, and defendant's motion to dismiss
plaintiff's retaliation claim is therefore denied.
Defendants' motion for summary judgment is denied with respect
to all of plaintiff's timely claims of sex discrimination in
violation of Title VII and state law, regarding compensation
disparities, failure to promote, demotion, and retaliation.
Defendant's motion is granted as to all claims with respect to
pay disparity and failure to promote claims that are time-barred.