United States District Court, E.D. New York
August 5, 2005.
JOEL B. EPSTEIN, Plaintiff,
TEVA NEUROSCIENCE, INC., Defendant.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM and ORDER
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).
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 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
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
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
(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
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.
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
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
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
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.
Teva's motion for summary judgment is denied.
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