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David v. Comtech PST Corp.

September 22, 2006


The opinion of the court was delivered by: James Orenstein, Magistrate Judge


Plaintiff Helena David ("David") accuses five defendants -- her former employer Comtech PST Corporation ("Comtech"), together with four of Comtech's officers and employees -- of discriminating against her on the basis of her age and gender in the course of her employment, in violation of federal and state laws, and of denying her right to equal pay regardless of sex. See docket entry ("DE") 11 (Amended Complaint). The defendants seek dismissal of all of David's claims pursuant to Federal Rule of Civil Procedure 56. DE 27-1. David has cross-moved for summary judgment solely with respect to her equal pay claims. DE 25-1. For the reasons explained below, I grant summary judgment in favor of the defendants on the gender discrimination claims but deny the motions in all other respects. As a result, David's age discrimination and equal pay claims will proceed to trial.

I. Background

A. The Parties' Submissions

The parties have filed a number of briefs, affidavits, and other papers in support of the two motions before me, as summarized below, all of which I have considered.

1. The Defendants' Submissions

DE # Abbreviation Description 27-1 "Comtech Notice" Notice of Motion for Summary Judgment 27-2 "Nathan Aff. I" Affirmation [of Bernard A. Nathan] in Support of Motion dated June 21, 2005 27-3 "Compitello Aff. I" Affidavit [of Linda Compitello] in Support of Motion dated June 17, 2005 27-4 "Konopelko Aff." Affidavit [of Larry Konopelko] in Support 27-5 "Comtech Memo." Memorandum of Law in Support of Defendants' Application for Summary Judgment Dismissing the Complaint 27-7 "Nathan Aff. II" Affirmation [of Bernard Nathan] in Support of Motion dated September 22, 2005 27-8 "Compitello Aff. II" Affidavit [of Linda Compitello] in Reply and in Opposition to Cross-Motion dated September 21, 2005 27-9 "Comtech Stmt." Amended Rule 56.1 Statement 27-10 "Comtech Counter Stmt." Counter Rule 56.1 Statement: Additional Facts by Defendant in its Counter Statement of Facts 27-11 "Comtech Reply" Defendants' Memorandum of Law in Reply to Plaintiff's Opposition to Defendants' Application for Summary Judgment Dismissing the Complaint and in Opposition to Plaintiff's Cross-Motion for Summary Judgment 27-13 "Compitello Aff. I Ex. __" Exhibits A-O to Compitello Aff. I 27-15 "Compitello Aff. II Ex. __" Exhibits A-C to Compitello Aff. II

2. The Plaintiff's Submissions

DE # Abbreviation Description 25-1 "David Notice" Plaintiff's Notice of Cross-Motion and Cross-Motion for Partial Summary Judgment 25-2 "Slavin Aff. I" Affirmation [of Linda Slavin] in Opposition to Defendants' Motion and in Support of Plaintiff's Cross-Motion for Partial Summary Judgment dated July 25, 2005 25-3 "David Memo." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Partial Summary Judgment; 25-4 "David Aff. I Ex. __" Exhibits A-L to David Aff. I 25-5 "David Aff." Affidavit [of Helena David] in Opposition to Defendants' Motion and in Support of Cross Motion for Partial Summary Judgment dated July 25, 2005 25-6 "David Stmt." Plaintiff's Rule 56.1 Counter-Statement of Facts and Additional Omitted Facts in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Partial Summary Judgment 25-7 "Slavin Aff. II" Reply Affirmation [of Susan Slavin] in Further Support of Plaintiff's Cross-Motion for Partial Summary Judgment dated October 14, 2005 25-8 "David Reply" Plaintiff's Reply Memorandum of Law in Further Support of the Cross Motion for Partial Summary Judgment 25-9 "Slavin Aff. II Ex. __" Exhibits A-C to Slavin Aff. II

B. Facts

Unless otherwise noted, the following facts are undisputed. Comtech is one of six wholly-owned subsidiaries of Comtech Telecommunications Corp. ("CTC"), a New York-based corporation that designs and manufactures telecommunications products. See Slavin Aff. Ex. K (Comtech fiscal year 2002 annual report). Comtech is the only entity within a component of CTC known as the RF Microwave Amplifier Business Segment. Id. at 30. As the name apparently suggests (to someone with the requisite technological background), Comtech manufactures and markets amplifiers that reproduce radio signals with increased power and amplitude. The many civilian and military applications of these amplifiers include medical testing, air-to-ground satellite communications, wireless telecommunications systems, and instrumentation. Id. at 2, 5-6. Defendants Larry Konopelko ("Konopelko"), Linda Compitello ("Compitello"), and Kurt Berlinghorf ("Berlinghorf") were all employees of Comtech during the events at issue in this suit. Konopelko was Comtech's President, Compitello was the Human Resources Manager, and Kurt Berlinghorf was the Director of Supply Chain Management. Compitello Aff. I ¶ 9; Konopelko Aff. ¶ 8. Defendant Fred Korberg ("Korberg") was the Chief Executive Officer and Chairman of the Board of CTC during the relevant time period. Compitello Aff. I ¶ 9.

1. David's Work For Comtech

In April, 1995, Comtech hired David, who was then 72 years old, to work as a buyer in its purchasing department on an independent contractor basis at a wage of $14 per hour. On August 12, 1996, after David's supervisor had recommended her for permanent employment, Compitello approached David about working for Comtech as a regular employee. Comtech Stmt. ¶¶ 4-5. That same day, David executed an employment agreement documenting the terms of her employment including her hourly wage ($14 per hour), vacation accrual, and medical and other fringe benefits. Slavin Aff. I Ex. E (excerpts of David's personnel file). David's supervisor at the time of her hire and throughout her employment at Comtech was David Ciringione ("Ciringione"), who was the head of the purchasing department and who is approximately nine years younger than David. Comtech Stmt. ¶¶ 7, 24.

David's basic function as a buyer was to purchase parts that were needed to manufacture telecommunications devices from vendors. David would receive purchase requisitions from Comtech's planners, contact vendors for price quotes, determine which vendors to use, and then prepare handwritten purchase orders. David Dep. at 59. A secretary would then type up David's handwritten orders and David would mail the typed orders to the vendors. Id. at 63. In a dispute of some importance to the disposition of the instant motions, the parties disagree as to the specific types of items that David purchased for Comtech. David claims she purchased both electronic items like transformers, compositors, and resistors, and also mechanical items such as sheet metal and plastics. David Stmt. ¶ 4; David Dep. at 46-47, 57-58; David Aff. ¶ 3. The defendants claim that David was hired as an electronic buyer and that she did not purchase mechanical items. Comtech Stmt. ¶ 4; Compitello Aff. I ¶ 11.

David's performance reviews suggest that she was an exemplary employee. At each of her five annual performance reviews she received an overall rating of four on a five-point scale. Her first evaluation, which took place some eight months after she was hired as a permanent employee, produced the comment that she was "very good -- above standard." Each of the next four reviews used the term "excellent" to describe her overall performance. Slavin Aff. I Ex. F (David's annual performance reviews for 1997-2002). At David's final performance review in April 2002, approximately six months before she was terminated, the evaluator noted that David's computer skills were improving. Slavin Aff. I Ex. F. After each performance review, David received a merit-based raise. Compitello Aff. I ¶ 13; Slavin Aff. I Ex. E.

2. Other Comtech Buyers

When David was hired, there was one other buyer in the purchasing department, a male employee named David Balfoort ("Balfoort"). Balfoort had been working for Comtech since April 21, 1988 when he was hired as a "Junior Buyer" at a starting wage of $9.616 per hour. Balfoort was promoted from Junior Buyer to Buyer in November, 1989, and his position remained Buyer until his promotion to Senior Buyer in May, 1995. In the final year of his tenure as a Buyer, Balfoort made $14.49 per hour. At the time of David's permanent hire, Balfoort was 35 years old, he had already been promoted to position of Senior Buyer, and his salary was $18.8142 per hour. Balfoort resigned from Comtech on February 12, 1999. Compitello Aff. I Ex. K (Balfoort salary history).

During David's tenure, two other individuals joined the purchasing department as buyers: a female named Sharon Marcus ("Marcus") and a male named George Bantleon ("Bantleon"). Marcus was internally promoted to a buyer position from another department on June 9, 1997, at which time she was 47 years old and her starting salary -- like David's at the start of her tenure -- was $14 per hour. Slavin Aff. Ex. H (Marcus salary history). Bantleon was hired almost exactly a year later, on June 8, 1998, and, like David, was assigned to the purchasing department and reported to Ciringione. Unlike David, he had the title of Mechanical Buyer and a starting wage of $17.125 per hour. Compitello Aff. I ¶ 14, Ex. I.

In contrast to Marcus, Bantleon was not promoted from within. At the time he applied for a position with Comtech approximately two weeks before he was hired, Bantleon was making $16.25 per hour as a Senior Buyer at Sonicor Instrument -- almost a dollar per hour more than the $15.2884 that David was then earning. Compitello Aff. I ¶¶ 14-15, Exs. G, I. The defendants claim that Bantleon's starting salary was based on the amount necessary to induce Bantleon to leave his job at Sonicor. Compitello Aff. I ¶ 16.

Bantleon, like David, received annual raises each year from 1999 through 2002. Compitello Aff. I Ex. I. Measured as a percentage, David's respective raise was slightly larger than Bantleon's during each of the four years that they both worked at Comtech: David's merit raises ranged from 3.7 to 4.7 percent whereas Bantleon's ranged from 3.4 to 4.4 percent. Compitello Aff. I ¶ 17. Despite David's marginally higher annual raises, Bantleon's salary remained higher than David's by approximately $2 per hour throughout their overlapping tenure with Comtech. See id. Ex. I (salary histories of David and Bantleon).

3. Similarities And Differences Among The Buyers' Jobs

The parties have an important disagreement about how best to characterize the jobs held by David, Marcus, and Bantleon, respectively. They agree that all three employees worked as buyers in the purchasing department and that they reported to the same supervisor. Beyond that, their descriptions diverge. The defendants claim that David's position was not the same as either Bantleon's or Marcus's, albeit for different reasons in each case. David asserts that her job was comparable to that held by each of these colleagues.

The defendants differentiate between David and Bantleon by describing the latter as a mechanical buyer and the former as an electronics buyer. Compitello Aff. I ¶ 14. David agrees that Bantleon was a mechanical buyer but argues that she purchased both mechanical and electronic items. Compare Comtech Stmt. ¶¶ 4, 9 with David Stmt. ¶¶ 4, 9. The parties agree on the essential distinction between the two positions: a mechanical buyer has to read blueprints and negotiate prices with vendors whereas an electronics buyer does not. Comtech Counter Stmt. ¶ 37; David Stmt. ¶ 37. Comtech's job descriptions for the two positions makes the distinction plain. The "Electronic Buyer" job description lists ten tasks; the "Mechanical Buyer" job description lists the same ten tasks but also adds an eleventh: "Reads [blueprint] drawings for requisitioned materials, determines the appropriate source of supply, reviews vendor responses for possible cost saving suggestions and processes these charges to Engineering and Drafting." Slavin Aff. I Ex. C. David claims that before Bantleon was hired, she worked as a mechanical buyer, in which capacity she had occasion to read blueprints, and that even after Bantleon's arrival she had occasion to do so. David Aff. ¶¶ 4, 10. David's employment agreement, like each of her annual performance reviews, refers to David's position as simply "Buyer;" in contrast Bantleon's salary history identifies his position as "Mechanical Buyer." See Slavin Aff. I Exs. E-F, I.

With respect to Marcus, the defendants claim that she performed a function known as "outsourcing" that required her to contract outside vendors to assemble electronic components whereas David only purchased parts from vendors. Compitello Aff. II ¶ 5.*fn1 David says that she and Marcus performed substantially similar buying tasks. David Aff. ¶¶ 6-7. Like David, Marcus is listed as a "Buyer" in the salary history documents from the relevant period. See Slavin Aff. I Ex. H.

4. Comtech's Changing Financial Condition And David's Termination

In the Spring of 2001, as a result of acquiring a new product line from a competitor called MPD Technologies, Inc. ("MPD"), Comtech anticipated boosting its annual sales to $30 million. Comtech Stmt. ¶ 14; Konopelko Aff. ¶¶ 3-4. Following the terrorist attacks on this country on September 11, 2001, which the defendants claim had an adverse impact on their sales, that $30 million benchmark became impossible to achieve. It was for this reason, the defendants assert, that Comtech laid off several employees, including Marcus, in November, 2001. Comtech Stmt. ¶ 6; Konopelko Aff. ¶ 6. David concedes that Comtech's sales did not reach the anticipated $30 million mark and that the company had a reduction in force in November 2001, but cites CTC's financial records to argue that the September 11 attacks affected a different subsidiary, not Comtech. David Stmt. ¶ 16 (citing CTC's fiscal year 2002 annual report).

In June 2002, Comtech learned that it had not been awarded an important contract that it had expected to secure from Honeywell Corporation. Konopelko Aff. ¶¶ 7-8. Konopelko testified that he and Berlinghorf met the following month to discuss the effect of the lost contract and decided that they would have to lay off additional employees and restructure certain departments, including the purchasing department, to reduce overall costs and improve operational efficiency. Comtech laid off a number of employees in July, 2002. Konopelko Aff. ¶¶ 8, 10; Comtech Stmt. ¶¶ 17-18.*fn2

David disputes Comtech's claim of poor fiscal health. She notes that according to its annual reports, the company actually had increased revenues relative to prior years during both the fiscal year in which David was fired (2003) and the preceding year (2002). David Stmt. ¶¶ 16, 35. For the fiscal year that ended three months before David was fired (2002), the CTC segment that consists entirely of its subsidiary Comtech reported a 39 percent increase in sales from the prior year. Slavin Aff. I Ex. K at 15. For the fiscal year in which David was fired, that same segment reported a 2.2 percent increase. Id. Ex. L at 16. The defendants acknowledge those gains, but assert that they mask the fact that sales were nonetheless considerably less than anticipated. Comtech Reply at 7 (citing Konopelko Aff. ¶ 6).

Plaintiff and Bantleon were both fired on October 18, 2002. Upon their termination, Ciringione -- their erstwhile supervisor -- assumed the duties of both. Compitello Aff. I ΒΆ 22; Slavin Aff. II Ex. C (deposition of David Ciringione dated February 10, 2005) ("Ciringione Dep.") at 19. After Bantleon and David were ...

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