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