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EPSTEIN v. TEVA NEUROSCIENCE

United States District Court, E.D. New York


August 5, 2005.

JOEL B. EPSTEIN, Plaintiff,
v.
TEVA NEUROSCIENCE, INC., Defendant.

The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge

MEMORANDUM and ORDER

I. Introduction

  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 resolution.

  II. Facts

  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 representatives.

  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.

  III. Law

  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).

  B. Title VII

  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 employment." Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004) (internal quotation marks omitted).

  To survive a motion for summary judgment, a Title VII plaintiff must satisfy a tripartite burden-shifting test. A plaintiff must first establish a prima facie case of discrimination by showing that "(1) he is a member of a protected class; (2) he is competent to perform the job ?; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class." Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005); see also Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (using similar language). A plaintiff's burden in establishing a prima facie case is de minimis. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). Termination of employment is an example of an "adverse employment action." Feingold, 366 F.3d at 152.

  If the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse decision or action. Woodman, 411 F.3d at 76; Dawson, 398 F.3d at 216.

  If the defendant states a neutral reason, the presumption of discrimination vanishes and the plaintiff must then show that the defendant's stated reason was merely a pretext for discrimination. Woodman, 411 F.3d at 76. "To defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Feingold, 366 F.3d at 152 (citation and internal quotation marks omitted). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (citation and internal quotation marks omitted).

  C. New York State Human Rights Law

  Section 296(1)(a) of the New York Executive Law provides, in relevant part, "[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . ., because of the . . . sex . . . of any individual, . . . to discharge from employment such individual." N.Y. EXEC. L. § 296(1)(a) (McKinney's 2001 & Supp. 2005). The analysis for a claim under section 296 is identical to that used for Title VII claims. See Dawson, 398 F.3d at 213, 217 (citing Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000)).

  IV. Application of Law to Facts

  A. Title VII

  1. Prima Facie Case

  Epstein has established the first three elements of a prima facie case for disparate treatment in violation of Title VII. First, he is a member of a protected class, having alleged discrimination on the basis of gender. Second, he was qualified for the position of an executive sales representative: he had been hired for the position and had also held it for approximately two-and-a-half years with high performance reviews. Third, he experienced an adverse employment action, termination.

  Whether the circumstances surrounding Epstein's termination, construed in the light most favorable to him, support an inference that he was terminated on the basis of his gender is a close question. The circumstances that Epstein relies upon can be summarized as follows: (a) Goodenberger's alleged responsibility for terminating him; (b) Goodenberger's alleged better treatment of female sales representatives as compared to male counterparts, including the failure to terminate the former for "misrepresenting" calls; (c) Goodenberger's alleged comments expressing a preference for working with and for hiring female sales representatives; (d) Goodenberger's hiring decisions, resulting in the hiring of more female than male sales representatives; (e) Goodenberger's strict supervision of other male sales representatives; and (f) Goodenberger's shopping trip with a female sales representative.

  (a) Goodenberger's alleged responsibility for terminating Epstein

  Epstein alleges that Goodenberger was responsible for terminating him. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Mem. of Law") at 13.

  The record indicates that Goodenberger alone did not have the authority to terminate Epstein. Young's affidavit states:

Like all regional sales managers, [Goodenberger] has limited responsibility for hiring and firing decisions. Any decision to hire always requires a concurring manager which is frequently myself, but can be someone else at the director level. All firing decisions or disciplinary decisions of any kind will also require my concurrence as well as that of our Human Resources and Legal Departments.
Young Aff. (Exh. N to Rappoport Affirm.) at 1 (emphasis added).

  In light of Epstein's focus on Goodenberger in his allegations, the fact that a group of persons made the decision to terminate his employment substantially undermines his case. Cf. Feingold, 366 F.3d at 155 ("The Supreme Court has `rejected any conclusive presumption' that an employer or, presumably, his agents, will not discriminate against members of their own race or gender." (citations omitted)). Yet, a jury might find that Goodenberger's allegedly anti-male views influenced others involved in the decision to fire Epstein. (b) Goodenberger's alleged better treatment of female sales representatives

  Epstein alleges that Goodenberger treated the female sales representatives working for her better than she treated Epstein and other male sales representatives. Pl.'s Mem. of Law at 14-15.

  Whether Goodenberger treated female sales representatives differently from male sales representatives is disputed. The record indicates that some female sales representatives experienced similar difficulties with Goodenberger's managerial style as did their male counterparts. See, e.g., Heidi Alisa Story Dep. (Exh. H to Rappoport Affirm.) at 13 (describing Goodenberger as "[b]eing very by the book" and "strict"); McKinley Dep. (Exh. J to Rappoport Affirm.) at 72-76 (discussing Heidi Story and Elizabeth Engelhardt as female employees who "struggled" with Goodenberger's managerial style); Jonathan Sayegh Dep. (Exh. M to Rappoport Affirm.) at 70 (identifying Engelhardt and Cindy Green as females who experienced difficulties with Goodenberger); see id. at 96-97 (testifying that Cindy Green left Teva because Goodenberger became manager).

  Nor was Epstein the only Teva employee terminated for call report falsification. Subsequently, during the fall of 2004, Andrea Finn and Mickey Hamilton were terminated for the same reason. Young Dep. (Exh. G to Rappoport Affirm.) at 51; Flood Aff. (Exh. P to Rappoport Affirm.) at 5. The circumstances of Mickey Hamilton's termination apparently were not explored during discovery. In addition, Dan McKinley, a former regional manager for Teva and Epstein's supervisor immediately prior to Goodenberger, testified that he had terminated an employee for reporting calls that were not made. McKinley Dep. (Exh. J to Rappoport Affirm.) at 80-81. Epstein appears to ignore the distinction between tardiness and falsification in pointing to Heidi Story and Lisa Mrosek as examples of female employees who allegedly were not disciplined or terminated with respect to their call reporting. See Pl.'s Mem. of Law at 15. Story and Mrosek were tardy in filing their call reports, not suspected of or found to have falsified their reports.

  Epstein also points to Erica Bienick as an example of a female sales representative who was not disciplined or terminated despite "misrepresenting office calls as detail calls for close to ten months." Id. at 14. Bienick's circumstances are distinguishable. Bienick's new manager, Ann Selover, had not properly instructed her as to the distinction between detail and office calls. Young Second Aff. (Exh. Q to Rappoport Affirm.) at 2. Epstein, in contrast, knew of the distinction due to his many years of experience and the documented discussion with Goodenberger. Furthermore, Epstein's focus on Bienick seems to ignore that Teva decision-makers apparently did not view his non-explanation favorably. See infra Part IV.A.2. Cf. infra Part IV.A.1(e) (discussing the circumstances of Sayegh's final written warning, including the explanation he provided for the call report at issue). This evidence of discrimination between male and female employees seems weak, but a jury might find it had some probative force.

  (c) Goodenberger's alleged comments

  Goodenberger allegedly told Amy Cobb that she preferred to work with females. Cobb then allegedly repeated Goodenberger's comment to Epstein, Mark Spencer and Jonathan Sayegh. Pl.'s Mem. of Law at 16; Pl.'s Rule 56.1(b) Statement at 6. Cobb, at her deposition, denied having heard or having repeated this alleged comment. Cobb Dep. (Exh. I to Rappoport Affirm.) at 10-11; see also Goodenberger Dep. (Exh. E to Rappoport Affirm.) at 47-48 (denying having made alleged comment to Cobb).

  Goodenberger's alleged comments in connection with hiring are as follows: (1) telling Spencer that "the guys" just don't come across in interviews; (2) telling Epstein that she was turned off by a male candidate's stating his bonus at a prior job and asking whether stating one's bonus was a "male thing"; and (3) telling Uri Dreckshage that she feared getting into trouble for hiring so many female candidates as opposed to male candidates.

  Spencer testified at his deposition that Goodenberger said to him "I don't know what it is, but the guys just don't come across in the interviews." Spencer Dep. (Exh. K to Rappoport Affirm.) at 19. He also testified, however, that the meaning of her remark was ambiguous. See id. at 20 ("I thought exactly that question [i.e., whether "guys" referred to men as a gender, as opposed to men and women]."). The relevance and probative value of this alleged comment seems dubious.

  Epstein testified that Goodenberger had told him in November 2003 that she was turned off by a male candidate's stating his bonus at a prior job and asked whether stating one's bonus was a "male thing." Epstein Aff. (Exh. A to Saul D. Zabell Decl. ("Zabell Decl.")) at 2. Goodenberger testified at her deposition, however, that applicants talked about the bonus received at a prior job "[u]sually every interview." Goodenberger Dep. (Exh. E to Rappoport Affirm.) at 45. The probative value of this alleged comment seems slight.

  Epstein's testimony at his deposition regarding Goodenberger's comment, as allegedly told to him by Dreckshage, is as follows:

She expressed a fear on a couple of occasions to him that she might be getting herself into trouble hiring so many female candidates versus male candidates. And comments to him about how much better the female candidate — the female candidates interviewed than the male candidates.
Epstein Dep. (Exh. D to Rappoport Affirm.) at 101-02. Dreckshage was apparently never deposed. See Def.'s Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Mem. of Law") at 27 n. 8. Although this appears to be the most probative of the alleged comments, it also appears to be, on the present record, likely to be given little weight absent a deposition or trial testimony by Dreckshage.

  (d) Goodenberger's and Teva's hiring decisions

  Epstein points out that seven out of the eight sales representatives that Goodenberger was involved in hiring were women. Pl.'s Mem. of Law at 17; Pl.'s Rule 56.1(b) Statement at 4 (citing Goodenberger Dep. (Exh. E to Rappoport Affirm.) at 14). Teva allegedly hired 22 sales representatives, 19 of whom were women, between November 2003 and February 2004. Compl. at 3.

  Given that Epstein alleges Goodenberger sought to "get rid of the male sales representatives and replace them with females," id., her hiring decisions could be somewhat probative in deciding whether Epstein's termination was motivated by gender discrimination. The record suggests that there are comparatively more female sales representatives in the market. See Young Dep. (Exh. G to Rappoport Affirm.) at 41 (testifying, in essence, that approximately 70-80% of the applicants for sales positions in Goodenberger's territory were female). The present record does not provide a strong basis for deciding whether Teva favored female applicants. Nor is it clear why Epstein's allegation regarding Teva's overall hiring focuses on this particular four month period. (e) Goodenberger's supervision of other male sales representatives

  Epstein points out that, even though four out of the nine sales representatives who reported to Goodenberger when she became a regional sales manager in January 2003 were male, three "are no longer reporting to her" and the fourth, Sayegh, was given a final written warning by her. Pl.'s Mem. of Law at 19-20; see also Pl.'s Rule 56.1(b) Statement at 3-4. The three male employees who no longer report to Goodenberger are Frank Neel, Dreckshage and Epstein. Pl.'s Rule 56.1(b) Statement at 3.

  Neel testified that he left Teva "[b]ecause of one person . . . Cindy Goodenberger." Neel Dep. (Exh. L to Rappoport Affirm.) at 12. Goodenberger was involved in interviewing and hiring Neel. Id. at 17-20, 31. Neel himself indicated that his difficulties at Teva stemmed from his taking actions with respect to his call average requirement that may have been perceived as going over the heads of Goodenberger and Young, id. at 75, 77-81, and that they in fact perceived his actions in a negative light, id. at 82. Neel subsequently accepted a position that offered $10,000 less in base salary and less favorable benefits compared to those he had at Teva. Id. at 9-12. He also testified that the decision to make no change to his call average requirement would have required him to nearly double the travel for his job. Id. at 83 ("It was just going to be a conflict from what I originally thought the job was going to be, going from about maybe 35,000 miles a year, 40,000, to about 62,000 miles a year.").

  Dreckshage is still employed by Teva, albeit in a management position. Epstein Dep. (Exh. D to Rappoport Affirm.) at 98-99. Goodenberger testified that she had recommended him for this position. Goodenbeger Dep. (Exh. E to Rappoport Affirm.) at 11-13. The fact that Dreckshage no longer reports to Goodenberger, absent additional evidence, does not support the allegation that he is among the male sales representatives driven out by Goodenberger. As noted above, apparently Dreckshage has not been deposed. See supra Part IV.A.1(c).

  Sayegh testified that he received a promotion with Goodenberger's assistance. Sayegh Dep. (Exh. M to Rappoport Affirm.) at 6-7. On January 17, 2005, he was placed on final written warning status after he was questioned about an allegedly false call report. Id. at 113-16. At a meeting with Goodenberger and Young, he explained that he had seen a certain doctor but had mistakenly entered the name of a different doctor. Id.

  As the discussion in this subsection suggests, Epstein appears to be relying on slender reeds in the form of his former male colleagues' experiences with Goodenberger.

  (f) Goodenberger's shopping trip with a female sales representative

  Epstein makes much of Goodenberger's shopping trip with a female sales representative, Heidi Story. See Pl.'s Mem. of Law at 16; Pl.'s Rule 56.1(b) Statement at 7. It is difficult to see how an isolated 15-minute stop in a store, particularly one that followed a difficult doctor call, see Goodenberger Dep. (Exh. E to Rappoport Affirm.) at 72-73, would be construed by a reasonable juror as evidence of Goodenberger's preference for female sales representatives. Furthermore, Goodenberger went to a sporting goods store with a male sales representative, Neel, on one occasion to buy sports team paraphernalia for "his number one physician" who was going to the Superbowl. Id. at 71-72. This incident is of slight to nonexistent weight.

  2. Teva's Explanation for Epstein's Termination

  Teva offered a legitimate, non-discriminatory reason for terminating Epstein's employment: Epstein violated company policy by falsifying at least one call report and one expense report. Additionally, Epstein's failure to provide an explanation at the December 11, 2003 meeting — i.e., that he had merely made a mistake, as he now contends in his papers — was viewed with disfavor by Teva decision-makers, as indicated by Andy Young's testimony at a deposition:

Q: What was the answer that Joel gave that led to him being terminated?
A: It was more of the answer that he didn't give. He did not deny — he didn't — when we presented him with the call activities and that we were questioning, he didn't deny having done that through a mistake. He rather said that, well, this is something that everybody does. And got very upset and belligerent at that point and used the excuse that the reason it was recorded was because everybody does it that way.
Young Dep. (Exh. G to Rappoport Affirm.) at 50.

  Teva points out that a decision had been made by September 2003 to realign territories and that the realignment would have resulted in Epstein not reporting to Goodenberger as of January 1, 2004. Def.'s Mem. of Law at 14. Epstein was aware of these impending changes. Epstein Dep. (Exh. D to Rappoport Affirm.) at 80, 269. This fact seems to undercut Epstein's contention that Goodenberger sought to get rid of him because of her alleged preference for working with women.

  Teva also tenders the fact that it had hired Erica Bienick, whom Epstein alleges was his replacement, to cover the Albany Parkinson's disease territory prior to even learning about the discrepancy in his call report for Dr. Brooks. Young Second Aff. (Exh. Q to Rappoport Affirm.) at 1. Furthermore, Goodenberger did not interview and was not involved in the decision to hire Bienick. Id. Amy Selover, who was to become the manager of the new Adirondack region, hired Bienick and was involved in the decision to transfer Bienick to the Albany multiple sclerosis territory. Id. at 1-2. The position that Bienick vacated was filled by a new hire, Jim Deloria. Id. at 2.

  3. Epstein's Response to Teva's Explanation

  Epstein argues that Teva's proffered reason is a pretext. He claims that it was easy to mistakenly enter a detail call on the company's computer system and that a sales representative could not correct such a mistake. Pl.'s Rule 56.1(b) Statement at 8; cf. Goodenberger Dep. (Exh. E to Rappoport Affirm.) at 37-38 (testifying that the IS department could and did make such changes even though a sales representative could not).

  Factual questions remain regarding the nature of the computer system setup at the time, whether errors in reporting an office call as a detail call (or vice versa) were common, and whether Teva could or should have implemented controls to help prevent such mistakes or to permit review of submitted reports for the purpose of correcting such mistakes. The computer system's alleged inadequacies and Teva's diligence in monitoring the accuracy of call reports are unresolved factual issues that bear upon whether an allegedly false call report could be construed as a convenient excuse for terminating an employee rather than a real reason.

  Epstein also claims that similarly situated employees, especially female ones, were not disciplined or terminated for discrepancies in their call reports. There are unresolved factual issues regarding the circumstances of the discipline or termination of other employees for alleged falsification of call reports. A fuller exploration of those circumstances may be useful in deciding whether they may be properly characterized as comparable to those related to Epstein.

  Epstein also seems to argue that Teva is an unethical company in allegedly instructing its sales representatives to use certain studies during a call and to write "delivered marketing message" to prevent a paper trail from getting back to the Food and Drug Administration. See Pl.'s Mem. of Law at 14 ("Teva also cannot seriously argue that it believed Epstein acted in a manner inconsistent with its core values. . . . Those are not the actions of an employer which allegedly has `core values.'"); Pl.'s Rule 56.1(b) Statement at 11; see also Epstein Aff. (Exh. A to Zabell Decl.) at 4 (alleging that Goodenberger instructed her sales representatives "to use materials in . . . presentations to doctors which were contrary to the information contained in Copaxone's package inserts"). The significance of Epstein's argument is unclear. At best it could be construed to mean that his falsification of a call report and expense report fit right into the allegedly unethical tenor of Teva. It seems unlikely that this line of proof will be admitted under Rule 403 of the Federal Rules of Evidence.

  4. Conclusion on Pretext Issue

  Arguably a trier of fact could conclude that Epstein's termination was more likely than not based in part on gender discrimination. See Feingold, 366 F.3d at 152. The record includes facts that might lead a trier of fact to find against Epstein — that is, for example, even if his termination for falsification of his call report and expense report were a pretext, that pretext was based on interpersonal issues rather than gender discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision. . . .").

  The standard for evaluating Epstein's claims at this stage requires that all inferences be drawn in his favor. Given the applicable standard, this weak case must be allowed to proceed to trial or settlement. B. New York State Human Rights Law

  The analysis for Title VII claims is applicable to Epstein's New York State Human Rights Law claim. Since Epstein's Title VII claim has survived summary judgment, so too does his claim under the New York State Human Rights Law.

  V. Conclusion

  Teva's motion for summary judgment is denied.

  SO ORDERED.

20050805

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