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August 5, 2005.

JOEL B. EPSTEIN, Plaintiff,

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


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." ...

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