The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
Plaintiff Joel B. Epstein, a male sales representative, sues
his former employer, Teva Neuroscience, Inc. ("Teva"), for gender
discrimination in connection with the termination of his
employment, in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and
the New York State Human Rights Law, N.Y. EXEC. LAW § 290 et
seq. He seeks reinstatement of his employment; payment of the
income and benefits that he would have received had he not been
terminated, with interest; compensatory and punitive damages; and
attorney's fees and costs.
Teva moves for summary judgment. It argues that Epstein was
terminated for falsifying his call activity report and expense
report. Epstein contends that Teva's proffered reason is merely a
pretext for gender discrimination.
The motion is denied. Unresolved factual issues remain for jury
In July 2001, Epstein became an employee of Teva. He had worked
for Teva's predecessor companies since December of 1986. It is
undisputed that Epstein's performance as a salesperson was strong. Pl.'s Rule 56.1(b) Statement at 2-3;
Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 2
("That decision [of Teva to terminate Epstein] was neither based
on his performance nor an ability to sell. . . .").
As an executive sales representative, Epstein was responsible
for promoting Copaxone, a drug for multiple sclerosis. He was
required to enter each sales call to a physician into the
company's computer system as either a "detail" or an "office"
call. A "detail call" is a product presentation to a physician.
An "office call" is a visit to a physician's office during which
a sales representative does not see a physician but leaves
material or communicates with the staff. Teva uses detail calls
for various purposes, including bonus compensation for sales
In January 2003, as a result of a territorial realignment,
Epstein began to report to Cindy Goodenberger, the new regional
sales manager. A May 12, 2003 letter from Goodenberger to Epstein
documents their May 1, 2003 discussion of the distinction between
a detail call and an office call, and the need to differentiate
them. See Epstein Dep. Exh. 8 (Exh. D to Affirmation of Larry
J. Rappoport ("Rappoport Affirm.")) at 1; see also Epstein Dep.
at 232-33 (acknowledging discussion occurred, but indicating that
it was about the need to record office calls since the previous
practice was to record "no call" if no physician was seen).
On November 7, 2003, Epstein recorded a detail call for several
associated neurologists, including Dr. Richard Brooks. Epstein
did not in fact meet with Dr. Brooks, who was then in Barcelona,
Spain. Subsequently, Epstein also entered detail calls for Dr.
Brooks for November 21, 2003 and December 1, 2003.
On November 16, 2003, Epstein filed an expense report that
included a charge for a business meal on November 7, 2003 in the
amount of $234.44. He listed as guests for that meal five affiliated neurologists, including Dr. Brooks.
On November 18, 2003, John Shaw, then a Non-Manpower Marketing
Manager, telephoned Goodenberger to inform her that he happened
to notice that Epstein had entered a detail call for Dr. Brooks
on November 7, 2003 and that he had been with Dr. Brooks at a
conference in Barcelona, Spain on that date. Shaw Aff. (Exh. O to
Rappoport Affirm.) at 1-2.
Goodenberger consulted with her manager, Andrew Young, National
Sales Director East, and Cheryl Flood, Senior Manager of Human
Resources. They decided to send a service satisfaction survey to
physicians for whom Epstein reported having a detail call between
November 3 and 14, 2003, to determine whether he had recorded
detail calls for other physicians whom he had not actually seen.
Flood Aff. (Exh. P to Rappoport Affirm.) at 2.
Dr. Brooks answered the survey indicating that he definitely
recalled Epstein's November 7, 2003 visit and that it was a 7-10
minute face-to-face meeting discussing Copaxone. Flood Aff. Exh.
B (Exh. P to Rappoport Affirm.) at 1.
On December 10, 2003, Goodenberger called Dr. Brooks. According
to Goodenberger's memorandum regarding this phone conversation,
Dr. Brooks acknowledged that he had been in Barcelona on November
7, 2003 and had not seen Epstein on that date or any time that
week. Flood Aff. Exh. C (Exh. P to Rappoport Affirm.) at 1.
Goodenberger's memorandum also indicates that Dr. Brooks said
that he had not seen Epstein on December 1, 2003, had not seen
any multiple sclerosis representative in over a month, and last
recalled seeing Epstein in October or September of 2003. Id.
Dr. Brooks' statements as recorded in Goodenberger's memorandum,
if credited, indicate that Epstein improperly entered a detail
call for Dr. Brooks for November 21, 2003 and December 1, 2003. Contrary to Epstein's assertion, Pl.'s Rule 56.1(b) Statement
at 2 ("Dr. Brooks did not recall this telephone call when asked
about it during his deposition."), Dr. Brooks did recall at his
deposition having had a telephone conversation with Goodenberger;
he also confirmed, based on travel records, that he had not seen
Epstein on November 7, 2003. Brooks Dep. (Exh. F to Rappoport
Affirm.) at 16-19, 23.
On December 11, 2003, Goodenberger and Young met with Epstein.
During a break, Goodenberger and Young consulted by telephone a
management group that included Cheryl Flood; Larry Dickinson, a
Vice President; Greg Westbrook, Director of Human Resources; and
both in-house and outside local counsel. Epstein was then
terminated. Flood Aff. (Exh. P to Rappoport Affirm.) at 4.
On June 4, 2004, Epstein filed this suit.
A. Summary Judgment Standard
To prevail on a motion for summary judgment, the moving party
must show that there is "no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Evidence is evaluated in
favor of the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
Section 2000e-2(a)(1) of section 42 of the United States Code
reads, in relevant part, "[i]t shall be an unlawful employment
practice for an employer . . . to discharge any individual,
. . ., because of such individual's . . . sex."
42 U.S.C. § 2000e-2(a)(1) (2000). "The purpose of this provision is to prevent disparate treatment of men and women in