United States District Court, S.D. New York
November 9, 2005.
DESIREE M. CALABRO, Plaintiff,
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
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.
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
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.
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. See, e.g., Schering Corp. v. Home Ins. Co.,
712 F.2d 4, 9-10 (2d Cir. 1983) (citing New York State Energy
Research & Dev. Auth. v. Nuclear Fuel Serv. Inc., 666 F.2d 787,
790 (2d Cir. 1981)). See also Rogath v. Seibenmann,
129 F.3d 261, 266 (2d Cir. 1997). II. The Title VII Pregnancy Claim
A. Legal Criteria
Defendant challenges Calabro's discriminatory-termination
claim, stating that she cannot demonstrate the existence of a
genuine issue of material fact under federal law. We first
summarize the legal criteria by which plaintiff's Title VII claim
must be judged.
Title VII makes it unlawful "for an employer . . . to discharge
any individual . . . because of such individual's  gender."
42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act ("PDA"),
42 U.S.C. § 2000e(k), a 1978 amendment to Title VII, was enacted
to include pregnancy-based discrimination within Title VII's
prohibition of gender-based discrimination. See, e.g.,
Sutton v. United Air Lines, Inc., 527 U.S. 471, 506 n. 3 (1999)
(Stevens, J., dissenting) (PDA enacted to overrule General
Electric Co. v. Gilbert, 429 U.S. 125 (1976)); Int'l Union, UAW
v. Johnson Controls, Inc., 499 U.S. 187, 198-99 (1991); Newport
News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678 (1983).*fn1
To establish a claim for disparate treatment based on
pregnancy, the plaintiff must demonstrate that she was subjected
to an adverse employment action, and that her pregnancy was a
motivating factor in the action. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973); Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998). The first step in undertaking such
a showing involves proof of a prima facie case. See,
e.g., Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000);
Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001).
Plaintiff's burden to establish such a case is "minimal." Fisher
v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en
banc). She need only demonstrate that she is a member of a
protected class, that she was qualified for her position, that
her employer terminated her or subjected her to some other
adverse employment action, and that this action took place in
circumstances suggesting that it was motivated by plaintiff's
membership in the protected class. See, e.g., Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91-92 (2d Cir.
2001); James v. New York Racing Assn, 233 F.3d 149, 154 (2d
Cir. 2000) (quoting Fisher, 114 F.3d at 1335).
If the plaintiff makes a prima facie showing, the defendant
"may rebut that showing by articulating a legitimate,
non-discriminatory reason for the employment action." Weinstock
v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). If the
defendant articulates such a non-discriminatory reason for its
actions, the burden-shifting process is at an end, and the
plaintiff must demonstrate by a preponderance of the evidence
that discriminatory animus was a motivating factor in the
employer's adverse action. See Reeves, 530 U.S. at 143;
Weinstock, 224 F.3d at 42.
B. Assessment of Plaintiff's Title VII Claim
1. The Prima Facie Case
Defendant does not dispute that plaintiff satisfies two of the
four elements of her prima facie burden. Plaintiff, as a
pregnant female, was within a protected class. See
42 U.S.C. § 2000e-(k). She also suffered an adverse employment action, as she
was terminated. Defendant contends, however, that Calabro cannot
make the de minimis prima facie showing because (1) she
lacked one of the qualifications required for her job a valid driver's license and (2) since
she did not have a valid license, her termination did not take
place in circumstances suggesting an inference of discrimination.
(See Defts' Memo at 4; Deft's Reply at 4-8). We disagree.
(a) The "Qualification" Requirement in a Prima Facie Case
There is no dispute that defendant specified, as part of its
job requirements for the Motoring Advisor position, that the
Advisor have a valid driver's license. Pointing to Calabro's
suspended license, defendant argues that, at the time of
plaintiff's discharge, she was unqualified for the job, and hence
cannot meet this aspect of her prima facie burden. Defendant
does not suggest that Calabro lacked any other qualifications for
the job, and it does not suggest that the suspension of the
driver's license was not readily correctable.
Plaintiff contends that she was qualified to work as a Motoring
Advisor because (1) she satisfied all the job requirements except
the "one minor qualification" of possessing a valid driver's
license and (2) the driver's-license requirement was merely a
"paper" requirement and not an indispensable one for the job.
(Plaintiff's Memorandum of Law in Opposition to Defendant's
Motion for Summary Judgment ("Opp. Memo") at 10-12). Although we
do not entirely agree with plaintiff's characterization of the requirement, we do
conclude that, for purposes of her prima facie case, she
sufficiently demonstrates that she was qualified for the
To prove her qualification for the job, a plaintiff need only
"establish basic eligibility for the position at issue," by
showing that she "possesses the basic skills necessary for
performance of [the] job." Slattery, 248 F.3d at 91-92. See
Windham, 275 F.3d at 187. This articulation comports with the
de minimis burden on the plaintiff in establishing a prima
facie case and finds ample support in Second Circuit caselaw,
which adheres to the notion that the plaintiff need show only
that she was "qualified" for the position. Compare Slattery,
248 F.3d at 91-92, with McLee v. Chrysler Corp.,
109 F.3d 130, 135 (2d Cir. 1997); see generally Darboe v. Staples,
Inc., 243 F.Supp.2d 5, 11-12 (S.D.N.Y. 2003).
Of particular pertinence, the courts have repeatedly emphasized
that the qualification prong must not be interpreted in such a
way as to shift onto the plaintiff's prima facie case an
obligation to anticipate and disprove the employer's proffered
neutral reason for an adverse action. See Powell v. Syracuse
Univ., 580 F.2d 1150, 1155 (2d Cir. 1978); Taylor v. Local 32E
Service Employees Intern., Union, 286 F.Supp.2d 246, 252-53
(S.D.N.Y. 2003); Darboe, 243 F. Supp.2d at 11-12. Consistent
with this approach, if an otherwise qualified employee is alleged to have engaged in misconduct or
otherwise to have created circumstances justifying her
termination, that conduct is appropriately evaluated, not in the
prima facie "qualifications" analysis, but rather in
assessing the employer's stated neutral reason for the adverse
action and the employee's pretext case. See, e.g., Gregory
v. Daly, 243 F.3d 687, 696 (2d Cir. 2001); de la Cruz v. New
York City Human Resources Admin. Dept. of Social Services
82 F.3d 16, 20 (2d Cir. 1996); Powell, 580 F.2d at 1155.
Applying these standards, we conclude that the record contains
ample evidence that Calabro was qualified for the job. It is
uncontested that Calabro possessed all of the basic skills to
perform her job, and indeed that defendant consistently rated her
job performance as satisfactory in her periodic evaluations.
There is also no question that she was capable of driving. As for
her suspended license, defendant does not quarrel with
plaintiff's representation that she was unaware of its suspension
until her termination and that she could have remedied the
insurance-payment problem almost immediately. (Opp. Memo at 12).
Calabro thus satisfies this prong of the prima facie test.
In resisting this conclusion, defendant urges us to take a
different approach in assessing plaintiff's qualifications. It admits that plaintiff's performance was satisfactory, but
contends that the "[p]laintiff's job performance is not at issue
in this case. The present case deals with a basic fundamental
skill required for the position which plaintiff no longer
possessed at the time of her discharge. The only issue for the
Court to determine is whether the driver's license requirement
was so basic that plaintiff's failure to have it rendered her
unqualified for continued employment." (Deft's Reply at 4).
We cannot adopt this argument, not only because it deviates
from the standard approach of the Second Circuit, but also
because it is fails to address the concern at which the prima
facie "qualification" analysis is targeted. If a plaintiff is
simply and unequivocally incapable of performing the job that she
has been denied or from which she has been terminated, there is
no need to pursue a pretext analysis, since there would be no
basis to require the employer to hire or retain someone in a
position if she cannot perform its functions. The suspended
status of plaintiff's driver's license, however, does not fit
into that category of "basic skills". Regardless of how the
defendant may have categorized the license requirement, the
suspension of plaintiff's license was a temporary and potentially
easily remediable condition, and thus it cannot be taken as
incontrovertible proof that plaintiff could not perform her job. For purposes of our analysis, we assume that a valid driver's
license was indeed a genuine necessity and not merely a "paper
requirement" as plaintiff asserts. However, in applying the
McDonnell Douglas "qualification" prong to this case, the
relevant inquiry is not simply whether a driver's license was an
indispensable job requirement, but rather what the precise
contours of that indispensable job requirement were.
Specifically, did it have to be met at all times without any
exception, so that any failure, even a temporary and immediately
curable one, automatically rendered a Motoring Advisor
unqualified for his or her job?
There is enough evidence in the record to permit us to answer
this question, at least for prima facie purposes, in the
negative. At the very least, the record reflects genuine disputes
on this material factual question. First, Calabro was promoted to
the Motoring Advisor position even though at the time she did not
meet another Physical and Work Demand for the position the
requirement that she be able to drive a manual transmission car.
(Calabro Dep. at p. 91 li. 17-20; Rubin Aff., Ex. B).*fn2
This indicates that defendant would accommodate Calabro's
temporary failure to meet a Physical and Work Demand when she was
not pregnant, apparently in view of her ability to perform her
principal duties. (See Opp. Memo at 11; Calabro Dep. at 91-92).
Second, and more importantly, a temporary inability of an
employee to meet any of the listed "Physical and Work Demands"
would not have rendered a Motoring Advisor unqualified for the
job. For example, the Advisor must be able to engage in "Walking
or standing for extended periods", but a salesperson could hardly
be considered "unqualified", within the meaning of McDonnell
Douglas, if he had a twisted ankle but instead of staying home
chose to come to work, while unable to walk or stand for extended
periods for several days. Similarly, while the Advisor must be
able to engage in "[o]ccasional bending, reaching and light
lifting", he could hardly be called unqualified if, for a few
days, he had a sore back.*fn3 These hypotheticals illustrate
that defendant's approach, especially with regard to an easily
correctable and temporary circumstance, is not what the prima
facie qualifications test is concerned with.
It follows, then, that defendant's contention that "[t]he
present case deals with a basic fundamental skill required for
the position which plaintiff no longer possessed at the time of her
discharge", (Deft's Reply at 4), is a mischaracterization of the
issue. Plaintiff apparently had the "skill" to drive. If any
other pertinent "skill" is involved in the "qualification"
analysis, it would be Calabro's ability to obtain reinstatement
of her license quickly enough to avoid jeopardizing the
successful performance of her job.
Defendant does not dispute on this motion that the suspension
was in fact a readily curable problem. Rather, it argues (1) that
WBMW was free to assign whatever weight it chose to the driver's
license requirement, that is, it was justified in not permitting
any exception to the driver's license requirement (Deft's Reply
at 1), and (2) that Ms. Abrams never advised senior management
that plaintiff could have restored her driver's license quickly.
(id. at 8). These arguments both are non sequiturs.
The employer is free to insist upon any non-discriminatory
requirements for retention of a job, but for reason already
noted, the asserted failure of an employee to meet requirements
other than possession of the basic skills of the job is properly
assessed when evaluating the employer's stated neutral reason for
termination. As noted, the plaintiff need only show that she
"possesses the basic skills necessary for performance of [the]
job", and assertions of disqualifying employee conduct should be evaluated as part of the
assessment of the defendant's stated non-discriminatory reason
for its decision. See Gregory, 243 F.3d at 696; de la Cruz,
82 F.3d at 20; Powell, 580 F.2d at 1155.*fn4
As for defendant's claimed ignorance of the fact that plaintiff
could have promptly arranged for the reinstatement of her
license, that is entirely irrelevant to the prima facie case.
Plaintiff need only demonstrate arguable ability to do her job,
and the employer's ignorance of her ability to reinstate her
license is pertinent only to whether its termination of her was
in fact for a non-discriminatory reason, an issue that we address
in the succeeding stages of the McDonnell Douglas analysis.
(b) Inference of Discrimination
WBMW further argues that Calabro cannot satisfy the last
element of the prima facie case, that is, that the
circumstances surrounding plaintiff's termination raise an
inference of discrimination, since it had a legitimate reason for
terminating Calabro. This argument, which turns again on the license
question, fails for the same reason as defendant's argument with
respect to plaintiff's qualifications.
The circumstances of Calabro's dismissal could lead to a
reasonable inference that her pregnancy played at least some role
in defendant's decision. The evidence in the records would permit
a trier of fact to find that plaintiff had performed her job well
up to the time that she was terminated; that defendant's CEO and
two managers expressed strong and unambiguous unhappiness when
they learned that Calabro was pregnant;*fn5 that they
terminated her a few days later; that although they also had
learned in the interim that her license had been suspended, they
made no effort to determine whether the suspension could be
promptly lifted; and that when a male employee whose position
required a license suffered the loss of that license for driving
while intoxicated, defendant accommodated him by shifting his
position rather than firing him. The evidence that would support
such findings is plainly ample to meet plaintiff's prima
facie burden. 2. Plaintiff's Pretext Case
We turn next to the question of whether defendant has shown a
legitimate, nondiscriminatory reason for plaintiff's discharge,
and, if so, whether plaintiff can show that defendant's proffered
reason is a pretext for pregnancy discrimination.
(a) A Neutral Reason
WBMW represents that it terminated Calabro because she had a
suspended driver's license. The evidence submitted indicates that
WBMW required its Motoring Advisors to maintain valid driver's
licenses for several reasons. Motoring Advisors could be called
upon to provide vehicle demonstrations, and they could also be
required to drive under special circumstances during a customer's
test drive. Also, the dealership's ability to secure dealer
plates depended on valid licenses. (Rubin Aff., Ex. B; Abrams
Dep. at 25-26). Calabro does not dispute that her license had
been suspended prior to her termination.
The burden on the defendant at this stage is minimal. WBMW is
required only to articulate, not to prove, "some legitimate,
nondiscriminatory reason" for its employment decision. McDonnell
Douglas, 411 U.S. at 802. "Any stated reason is sufficient; the employer need not persuade the court that the proffered reason
was the actual reason for its decision." Tarshis v. Riese Org.,
211 F.3d 30, 36 (2d Cir. 2000). Given this low threshold, WBMW
has carried its burden by pointing to Calabro's license lapse as
the reason for her termination.
(b) Pretext and Discrimination
This conclusion triggers the plaintiff's "ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated." St. Mary's Honor Center v. Hicks, 509 U.S. 502,
507 (1993). "[I]t is not enough for a plaintiff to show that the
defendant's legitimate, non-discriminatory reason for its
employment reason is pretextual; the plaintiff must also prove by
a preponderance of the evidence that defendant's stated reason is
`a pretext for discrimination'." Fisher v. Vassar College,
70 F.3d 1420, 1433 (2d Cir. 1995) (quoting St. Mary's,
509 U.S. at 515), aff'd en banc, 114 F.3d 1332 (2d Cir. 1997). This means
that Calabro must show that her pregnancy was a motivating factor
in her termination. However, she need not show that her pregnancy
was the only reason. See Holtz, 258 F.3d at 78; Sutera v.
Schering Corp., 73 F.3d 13, 17 (2d Cir. 1995). For the purpose
of defendant's summary-judgment motion, our task is to determine
whether there is a triable dispute about this question. In showing pretext in the final step of the McDonnell Douglas
analysis, Calabro may carry her burden "by reliance on the
evidence comprising the prima facie case, without more."
Holtz v. Rockefeller & Co., 258 F.3d 62, 79 (2d Cir. 2001)
(citing Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d
Cir. 1995)). We have concluded in our discussion of the last
element of plaintiff's prima facie case that Calabro has
presented enough evidence to suggest that her discharge occurred
in circumstances indicating pregnancy discrimination. We now find
that the same evidence suffices to create a triable dispute as to
whether the driver's license suspension was a pretext for a
termination based at least in part on pregnancy.
We start by noting the evidence suggesting that defendant
accommodated a male employee who had a suspended driver's
license, and that it did so 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. A showing that the employer
treated plaintiff "less favorably than a similarly situated
employee outside his protected group" is a recognized method of
showing pretext. Graham v. Long Island R.R., 230 F.3d 34, 39
(2d Cir. 2000); see Sorlucco v. New York City Police Dept.,
971 F.2d 864 (2d Cir. 1992); Stewart v. IBM Corp.,
867 F.Supp. 238 (S.D.N.Y. 1994). A plaintiff relying on this method "must
show she was similarly situated in all material respects to the individuals with whom she seeks to compare
herself." Graham, 230 F.3d at 39.
Pointing to the same evidence, the parties dispute whether
Calabro was similarly situated to this male employee, Mr. Vincek.
As we have noted, Vincek's driver's license was suspended as of
May 31, 2001 and the license was restored on September 6, 2001.
(Calabro Aff., Ex. B, Vincek 1). The record shows that Vincek was
transferred between the Quality Control and the Dispatcher
positions four times during his employment with defendant, but
does not contain the dates of those transfers. Although, as
noted, there is some possible dispute as to whether Vincek's
license suspension led to his transfer to Dispatcher, he did
testify that he was driving vehicles for WBMW immediately before
the suspension and stopped driving upon the suspension. (Vincek
Dep. at 20-21).
On this record, a trier of fact could conclude, based on the
testimony of Vincek and the timing of his transfer from, and then
back to, the Quality Control job, that defendant took steps to
retain his services despite his loss of his license. That
possibility provides a basis for inferring disparate treatment of
plaintiff for reasons other than the suspension of her license.
The balance of the record adds still stronger support to plaintiff's contention that she was terminated because of her
pregnancy. Defendant fired Calabro only three days after learning
about her pregnancy. Moreover, that step was taken after the CEO
and two other managers had expressed considerable unhappiness at
plaintiff's expectant status. In addition, defendant had made an
accommodation for plaintiff when she was not pregnant, but chose
not to do so when she was pregnant. Furthermore, defendant's
managers, after learning of her license suspension, made no
inquiry into the source of the problem or whether it could be
quickly remedied, and chose instead to terminate her immediately
despite her entirely satisfactory job performance until then.
Although defendant argues that its decision to terminate
Calabro was based solely on the lapse of her driver's license,
the record before us does not warrant summary judgment. Summary
judgment is appropriate only where the moving party has shown
that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994). Given the evidence proffered by plaintiff, we conclude
that she has raised a genuine issue of material fact regarding
defendant's motives for dismissing her. In seeking to avoid this conclusion, defendant contends that
plaintiff's license suspension caused "interruption [to] . . .
its business operation" and "potential liability risks to which
WBMW was exposed and would have continued to be  exposed."
(Deft's Reply at 1). By "interruption to its business operation,"
defendant is referring to the denial by the DMV of its
application for a dealer plate under plaintiff's name. But the
denial did not cause defendant to lose a dealer plate that it had
already had. The DMV simply denied defendant a new dealer plate.
Calabro became a Motoring Advisor six months earlier, and she
successfully functioned in that capacity without a dealer plate
under her name.
In any event, these considerations go to the persuasiveness of
defendant's contention that its termination decision was not
affected in any significant respect by the knowledge that
plaintiff was pregnant. That is an issue appropriately left to
the trier of fact, since defendant's motivation is plainly in
Defendant also shows, through affidavits by two of its female
employees and the testimony of Ms. Abrams, that three of its
female employees received maternity leave and were then restored
to their original or equivalent positions unless they voluntarily
decided not to return to work. (See Affidavit of Rosaura
Sanchez, sworn to October 14, 2004, at ¶¶ 5-8; Affidavit of
Corinne Gonzalez, sworn to October 15, 2004, at ¶¶ 3-6; Abrams Dep. at p. 60 li. 20 to p.
62 li. 19). This proffer also goes to the weight of defendant's
neutral explanation for its termination decision, but it does not
preclude a trier of fact from concluding that plaintiff's firing
was influenced by her pregnancy. As the Second Circuit has noted,
since "Title VII's principal focus is on protecting individuals,
rather than a protected class as a whole, an employer may not
escape liability for discriminating against a given employee on
the basis of [a protected personal characteristic] simply because
it can prove it treated other members of the employee's group
favorably." Graham, 230 F.3d at 43.
Furthermore, none of the retained pregnant employees was a
salesperson, as was Calabro. Rosaura Sanchez was a
"receptionist," (Sanchez Aff. at ¶ 4), Corrine Gonzalez was an
administrative assistant (Gonzalez Aff. at ¶ 3), and Cristin
Flemming was a service advisor. (Abrams Dep. at p. 60 li. 25).
This distinction is particularly pertinent. Abrams testified that
"management wouldn't feel that [Calabro] could do her job to the
fullest capacity" if they found out about her pregnancy,
"[b]ecause she's a salesperson and she had to work long hours. If
she was an office person or a service person who worked 9 to 5,
that's different." (Abrams Dep. at p. 65 li. 3-14; p. 80 li.
6-9). Thus, although defendant's retention of other pregnant
employees may bolster its contention that it relied on a non-discriminatory reason for terminating
plaintiff, it does not preclude a finding that WBMW was
discriminatorily motivated in its treatment of Calabro.
The question before the Court is not whether unlawful
discrimination was the sole reason why WBMW terminated plaintiff.
Rather, the issue is whether, on the record evidence, a rational
trier of fact could find that despite any legitimate grounds it
may have had for the termination, unlawful discrimination played
a motivating role in its decision. As the Second Circuit has
To defeat summary judgment within the McDonnell
Douglas framework, . . ., the plaintiff is not
required to show that the employer's proffered
reasons were false or played no role in the
employment decision, but only that they were not the
only reasons and that the prohibited factor was at
least one of the motivating factors.
Holtz, 258 F.3d at 78 (internal quotations and citations
omitted); see also Sutera v. Schering Corp., 73 F.3d 13, 17
(2d Cir. 1995).
In sum, we find that Calabro has met her burden at this final
step in the McDonnell Douglas to raise triable issues of
material fact. The determination as to whether Calabro's
pregnancy factored into defendant' decision to terminate her is
properly left to a trier of fact, who can determine what weight
to accord the competing evidence in the record. See Gallo,
22 F.3d at 1224 ("A trial court must be cautious about granting summary judgment to an employer
when . . . its intent is at issue.") (citations omitted).
III. The State Human Rights Law Claim
The New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. §
290 et seq., provides protections to employees that are
comparable in scope to those afforded under Title VII.
Substantively, the same standards apply in assessing Title VII
and NYSHRL claims. See Torres v. Pisano, 116 F.3d 625, 629 n.
1 (2d Cir. 1997) ("We have repeatedly noted that claims brought
under New York State's Human Rights Law are analytically
identical to claims brought under Title VII"); Forrest v. Jewish
Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 391
(2004) ("The standards for recovery under the New York State
Human Rights Law . . . are the same as the federal standards
under title VII of the Civil Rights Act of 1964.).
Therefore, just as material issues of fact remain with respect
to plaintiff's Title VII claim, so too material issues remain
with respect to her Human Rights Law claim. Accordingly,
defendant's motion for summary judgment on plaintiff's claim of
pregnancy discrimination under the Human Rights Law is denied. CONCLUSION
For the reasons stated, we deny defendant's motion for summary
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