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CALABRO v. WESTCHESTER BMW

November 9, 2005.

DESIREE M. CALABRO, Plaintiff,
v.
WESTCHESTER BMW, INC., Defendant.



The opinion of the court was delivered by: MICHAEL DOLINGER, Magistrate Judge

MEMORANDUM & ORDER

Plaintiff Desiree M. Calabro commenced this pregnancy-discrimination lawsuit against her former employer, Westchester BMW, Inc. ("WBMW"), contending that defendant had terminated her in January 2003 because she was pregnant. Asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and the New York State Human Rights Law, N.Y. Exec. L. §§ 296(1) (a) and 297(9), she seeks declaratory and injunctive relief, back pay, front pay, and compensatory and punitive damages. (See First Amended Complaint at § VIII). Defendant contends that it discharged plaintiff from her job as a car salesperson because she lacked a valid driver's license — a prerequisite of the job — and that although the discharge coincided with defendant's discovery of plaintiff's pregnancy, her pregnancy played no role in the decision to terminate her. (See Defendant's Memorandum of Law ("Deft's Memo") at 1-2).

With fact discovery completed, defendant has moved for summary judgment. For reasons that follow, we deny the motion.

  THE FACTUAL RECORD

  Desiree Calabro began her employment with WBMW in November 2001 as a Service Advisor, which is not a sales position. In June 2002, she was promoted to the position of Motoring Advisor, a sales position. Her job responsibilities included selling cars to prospective customers, recommending particular models to meet their needs, accompanying them on test drives, and, if necessary, performing demonstration drives. (Affidavit of Jeffry Rubin ("Rubin Aff."), Ex. B).

  In November 2002, Calabro discovered she was pregnant but initially did not tell anyone at work of her condition. On January 16, 2003, she told Lori Abrams, WBMW's MINI Sales Manager and her immediate supervisor, that she was two months pregnant. Abrams congratulated her and promised to wait a month before informing higher management. (See Deposition of Lori Levinson-Abrams ("Abrams Dep.") at 51-53).

  Meanwhile, also on January 16, 2003, WBMW submitted to the New York State Department of Motor Vehicles (the "DMV") an application for four additional dealer plates, including one under Calabro's name. At some point thereafter, DMV informed defendant that its application for that plate had been denied because Calabro had a suspended driver's license. (See Rubin Aff. at ¶ 13). Defendant's investigative agency, Sterling Testing Systems, confirmed on January 21, 2003 that Calabro's license had indeed been suspended as of January 18, 2003. (See Rubin Aff., Ex. D). According to Sterling, the reason for the suspension was that Calabro's insurance had lapsed. (Id.). Plaintiff testified that she had been unaware of the suspension at the time because her father had been paying insurance premiums for her, and the suspension had resulted from her father's inadvertent failure to make the monthly payments. (Deposition of Desiree M. Calabro ("Calabro Dep.") at 5).

  WBMW's "Job Description for Motoring Advisor" is a two-page, outline-style document with five headings — "Summary", "Principal Duties and Responsibilities", "Expectations", "Expected characteristics of a successful Motoring Advisor", and "Physical and Work Demands". (Rubin Aff., Ex. B). It summarizes the Motoring Advisor's responsibilities as "delivering a high level of customer service through the presentation, sale and delivery of Mini vehicles and related products" and offering "preowned off brand vehicles, when customer needs dictate an alternative." (Id.). The "Principal Duties and Responsibilities" section lists fourteen such duties, including determining customer needs, offering test drives, suggesting suitable cars for customers' selection, and explaining the features of cars to customers. (See id.). The "Physical and Work Demands" section has eight bullet points, including "Valid driver's license, Ability to drive manual and automatic transmission vehicles, Walking or Standing for extended periods, Occasional bending, reaching and light lifting, . . . Minimum work schedule of 45 hours". (Id.).

  The parties agree that plaintiff's job duties included accompanying customers on test drives, as well as taking them on so-called "demo" drives. (See Calabro Dep. at 93-94; Defendant's Reply Memorandum of Law ("Deft's Reply") at 3). On a test drive, the customer would drive the car and the Motoring Advisor merely "chaperoned" in the passenger seat, unless, on rare occasions, the customer decided to abandon the test drive midway, in which case the Advisor would have to drive the car back to MBMW's parking lot. On a demo drive, the Motoring Advisor would drive the car and explain its features to the customer, who was a passenger. It is also uncontested that plaintiff repeatedly accompanied customers on test drives during her eight months as a Motoring Advisor, but only once took a customer on a demo drive. (Calabro Tr. at p. 94 li. 9-12).

  Defendant's employee-evaluations records show that MBMW had rated plaintiff's job performance highly. In November and December 2002, just before being terminated, Calabro received perfect scores, 100%, in each enumerated category on her Dealer Employee (Customer Satisfaction) Scores Evaluation. (See Affidavit of Desiree M. Calabro ("Calabro Aff."), Ex. D at 1). In January 2003, the month of her termination, Calabro received a rolling three-month score of 93.2% and a customer satisfaction rating of 86.5%. (Calabro Aff., Ex. D at 2). Further, during plaintiff's employment WBMW did not document any shortcomings, lack of skills, or performance problems in her personnel file. (See Calabro Aff., Ex. A ("Mickler Dep.") at p. 21 li. 10-16).

  On January 20, 2003 — the day before confirmation of the suspension of plaintiff's license — WBMW held a managers' meeting, in which Abrams, fearing that management would learn about Calabro's pregnancy from another employee, told the managers that Calabro was pregnant. According to Abrams, on learning this information, Jeffry Rubin, the CEO of WBMW, "threw his hands up in the air and said, `Oh, Great, Desiree is pregnant. Is she staying, is she going, what is she doing?" As described by Abrams, Rubin "was very unhappy with the situation," while two other managers at the meeting also "groaned" in dismay. (Abrams Dep. at 78-79).

  On January 23, 2003 — three days after WBMW's management learned about plaintiff's pregnancy and two days after it had confirmed the suspension her license — Rubin told Abrams on the phone that Calabro's license had been suspended, and remarked "that it's a liability and that we needed to fire her." (Abrams Dep. at 32-33; p. 36 li. 16-20). Thereafter, Abrams informed Calabro of her termination. (See Calabro Dep. at p. 138 li. 12-15; Abrams Dep. at p. 39 li. 23 to p. 40 li. 7). Prior to this termination, defendant made no inquiry as to the reason for the license suspension or how quickly plaintiff could have her license reinstated. (See Mickler Dep. at p. 46 li. 16 to p. 47 li. 18; p. 49 li. 7-12; p. 50. li. 8-19).

  The record contains some evidence that defendant may have accommodated a male employee, Michael Vincek, who had a suspended driver's license, by transferring him from a position requiring a driver's license (a Quality Control position) to a position not requiring one (a Dispatcher) and later transferring him back to the original position. An "Abstract of Driving Record" issued by the DMV shows that Vincek's driver's license had been suspended as of May 31, 2001 due to a May 11, 2001 conviction for Driving While Impaired, and that the license was restored on September 6, 2001. (Calabro Aff., Ex. B, Vincek 1). Vincek testified, without specifying the relevant dates of the following transfers, that he had been transferred from Quality Control to Dispatcher (Vincek Dep. at p. 8 li. 13-19), then back to Quality Control (id. at p. 8 li. 20-24), then back to Dispatcher, (Id. at p. 9 li. 4-16), and finally back to Quality Control, (Id. at p. 9 li. 17-22). Vincek's personnel record does not contain complete information regarding the timing of his numerous transfers. (See Calabro Aff., Ex. B, Vincek 2-9).

  Thus, there is some uncertainty as to whether the suspension and later restoration of his license triggered the changes in his job position. On this question, Vincek offered conflicting testimony. At one point he testified that his title at the time of his license suspension was Dispatcher, a position with no driving responsibilities (Vincek Dep. at p. 19 li. 14-25), but at another point he testified that he was driving vehicles for WBMW immediately before the suspension and stopped driving following the suspension. (Vincek Dep. at 20-21).

  On May 20, 2003, Calabro filed a charge of pregnancy discrimination with the Equal Employment Opportunity Commission ("EEOC"). (See First Amended Complaint at § IV). She requested and received a Notice of Right to Sue letter dated June 25, 2003 from the EEOC. (See id.). On July 11, 2003, she filed this action under Title VII and the New York State Human Rights Law.

  ANALYSIS

  I. Summary Judgment Standards

  The court may enter summary judgment only if it concludes that there is no genuine dispute as to any material fact and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. See, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68 (2d Cir. 2000); Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 485 (2d Cir. 1998); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). It is axiomatic that the role of the court on such a motion is to discern whether there are any factual issues to be tried, not to resolve them. See, e.g., Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

  The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002). In making this judgment, the court must view the record in the light most favorable to the non-moving party. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir. 2004). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy its own initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). If the movant fails to meet its initial burden, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).

  If the moving party carries its initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact. See, e.g., Celotex, 477 U.S. at 322; Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir. 1998). In doing so, the opposing party cannot rest on "mere allegations or denials" of the factual assertions of the movant, see, e.g., Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), nor can she rely on her pleadings or on unsupported assertions, conjecture, or conclusory factual allegations. See, e.g., Goenaga, 51 F.3d at 18. She must also "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), by presenting specific evidence in support of her contention that there is a genuine dispute as to one or more of the material facts. See, e.g., Celotex, 477 U.S. at 324; Goenaga, 51 F.3d at 18. If, however, "the party opposing summary judgment propounds a reasonable conflicting interpretation of material disputed fact," summary judgment must be denied. ...


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