The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff, Tara Steele-Hegg, brings this action against defendant, Computer Associates International, Inc. ("CA"), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff further alleges that she was not paid the full amount of her sales commissions, and a common law fraud claim. Defendant now moves for summary judgment under Fed. R. Civ. P. 56. For the reasons set forth below, defendant's summary judgment motion is denied, except with respect to plaintiff's common law fraud claim.
CA, a world-wide computer software company, is headquartered in Islandia, Long Island, New York. (Steele-Hegg Dep. Ex. I.)*fn1 Plaintiff is a female citizen and resident of the State of Arizona. (McEntee Decl. Ex. C at 4.) A CA employee and friend of plaintiff's at the time, Jonathan Hunter ("Hunter"), notified plaintiff of an available position within the company, and on or about December 21, 1998, Chris Skillings ("Skillings"), a CA employee, hired plaintiff as a Client Service Representative in CA's branch office in Phoenix, Arizona. (Id. at 50-65, 75; Steele-Hegg Dep. Ex. V.) Plaintiff earned an annual base salary of $40,000 and discretionary incentive compensation of up to $10,000.00 based upon performance. (Steele-Hegg Dep. Ex. D.) At the time of the initial hire, plaintiff signed an "Employment and Confidentiality Agreement" and received CA's employee handbook, which contains anti-harassment and anti-discrimination policies, and complaint procedures. (McEntee Decl. Ex. C at 148-49, 166-67; Steele-Hegg Dep. Ex. I.)
During her employment at CA, plaintiff reported first to Skillings, then to Richard Smith ("Smith"), and finally, to Hunter. (McEntee Decl. Ex. C at 92-93, 189-90.) Plaintiff was promoted to Relationship Manager approximately nine months after being hired, and then to Sales Executive in April 2000. (Id.) At the time of plaintiff's promotion in April 2000, Hunter's team of sales executives consisted of Sheri Bouton ("Bouton"), Lisa Opoka ("Opoka"), Travis McBeth ("McBeth"), and Mark Hammond ("Hammond"). (Steele-Hegg Decl. ¶ 9.) Gillian Shellcross ("Shellcross") was placed on Hunter's team in May 2000. (Id.)
CA, and specifically Smith, evaluated plaintiff's performance in writing for the first time on May 1, 2000. (Steele-Hegg Dep. Ex. M.) Although the evaluation stated that plaintiff "entered [the] position with an attitude for success, . . . [had] an ability to focus on and take ownership of issue[s] until they are resolved, . . . [and] work[ed] well with the client base," she was ranked fifth out of the seven employees in her group. (Id.) The evaluation also established expectations of plaintiff within the next six months including, but not limited to, establishing at least three key contacts outside of the traditional IT departments for each of her clients, making at least twenty on-site client visits and seventy phone calls into her sales territory per week, and demonstrating that she understands and can effectively present CA's business strategy to her client base. (Id.) Plaintiff signed her May 1, 2000 performance review. (Id.)
According to plaintiff's commission statements, she achieved revenue through August 15, 2000 of $161,532 against a year-to-date quota of $666,668, or 24.23%.*fn2 (Ranni Aff. Ex. 3.) However, as of October 2000, plaintiff had made only one more sale of $4000 to NDC Healthcare ("NDC"), a sales account that had been given to her upon her promotion to Sales Executive, bringing her revenue up to $165,732 against a year-to-date quota of $833,335, or 19.89%. (Id; McEntee Decl. Ex. C at 185-88.) Hunter held a team meeting in early October 2000, at which he advised his team that Mark Parrinello ("Parrinello"), Senior Vice President for CA at the time, would be sending out a letter to all employees who had achieved less than twenty percent of quota. (McEntee Decl. Ex. C at 185-86.) Although plaintiff conceded that she fell into the category of having attained less than twenty percent of her year-to-date product quota, she testified that similarly-situated members of Hunter's team did not receive the letter. (Id. at 187-88.)
Plaintiff closed two sales toward the end of 2000 credited in the amount of $1,110,586 to NDC. (Ranni Aff. Ex. 3.) Consequently, plaintiff's commission statement dated January 11, 2001 indicated that she had achieved revenue of $1,276,318 against a year-to-date quota of $833,335, or 153.16%. (Id.) Plaintiff's performance again was evaluated in writing on January 11, 2001, but this time by Hunter. (Steele-Hegg Dep. Ex. P.) The evaluation indicated that plaintiff received an overall rating of forty-six points, which fell into the category of "meets expectations." (Id.) Plaintiff scored the lowest possible grade ("below expectations") in several categories, namely (1) understanding CA strategy and vision, (2) effectively manages work to achieve results on time, (3) effectively manages a variety of responsibilities at the same time, (4) makes effective decisions under the pressure of time, and with limited information, (5) communicates clearly and effectively with people at all levels in the organization,(6) remains productive during periods of ambiguity, uncertainty and change, (7) establishes customer confidence and credibility in CA and its technology, (8) effectively supports and utilizes internal systems, processes and methodologies -- TAS, sitevisit.com, Sales Forecast System etc., and (9) effectively develops, reviews and adjusts a territory business plan that clearly reflects how to achieve or exceed quota, and allocates time and resources accordingly. (Id.) However, she scored the highest possible score ("outstanding") in the category of contributes to an enthusiastic, positive work environment; energizing others, and the second highest score ("commendable") in the categories of (1) actively seeks and achieves the cooperation and action from people both within and outside of the department, (2) knows who their customer is, whether within or outside of CA, and (3) employee performs well against assigned quota. (Id.) Plaintiff signed her January 11, 2001 performance review. (Id.)
In or about two months after the January 11, 2001 performance review, plaintiff closed another sale to NDC in the amount of $45,146, bringing her combined sales for fiscal year 2000 ("FY 2000") up to $1,317,264 against a year-to-date quota of $833,335, or 158.07%. (Ranni Aff. Ex. 3.)*fn3 A comparison with plaintiff's female co-workers reveals that plaintiff achieved the highest sales of the group and, with the exception of Bouton who had a lower year-to-date quota, the highest total percentage of quota. For instance, Bouton achieved revenue through FY 2000 of $677,416 against a year-to-date quota of $333,334, or 203.22%, Opoka achieved revenue through FY 2000 of $265,644 against a year-to-date quota of $333,334, or 79.69%, and Shellcross achieved revenue through FY 2000 of $250,000 against a year-to-date quota of $333,334, or 75%. (Ranni Aff. Ex. 8.) Out of plaintiff's male co-workers, only McBeth's commission statements were included as exhibits. It appears that McBeth achieved revenue through FY 2000 of $5,936,374 against a year-to-date quota of $833,335, or 712.36%. (Ranni Aff. Ex. 9.) Therefore, plaintiff's achieved the second highest amount of revenue for FY 2000 out of the members of Hunter's team of sales executives.
CA, and specifically Hunter, did not evaluate plaintiff's performance until almost a year later, on or about February 8, 2002. (Steele-Hegg Dep. Ex. T.) On this evaluation, plaintiff received an overall score of twenty-eight out of one hundred points, and in twenty out of the twenty-five performance criteria for which she was evaluated, plaintiff was rated "below expectations." (Id.) As a result, CA placed plaintiff on a written performance improvement plan ("PIP"). (Steele-Hegg Dep. Ex. S.) The PIP explains that plaintiff's sales quota achievements of 9.13% of her annual sales quota, of which she achieved 0% of her first quarter ("Q1") monthly quota, 20% of her Q2 monthly quota and 7.4% of her Q3 monthly quota, were unsatisfactory. (Id.) The PIP further explains that plaintiff failed to cultivate her pipeline. For instance, as of February 8, 2002, plaintiff's sales forecast of $189,000 and her pipeline of potential sales of $1,184.627 did not approach her objectives of an annual sales quota of $1.4 million and a combined sales forecast and pipeline objective of approximately $4.2 million. (Id.) The PIP also explains that plaintiff failed to engage in effective sales activity. Plaintiff averaged only eight client visits per week when she was supposed to be making fifteen, invited Hunter to accompany her on only two sales calls, and failed to invite sufficient numbers of clients to CA promotional events. (Id.) Finally, the PIP states that plaintiff's conduct was unprofessional, that she failed to submit accurate or timely work-related reports, and that she far exceeded her expense budget. (Id.) The PIP set forth thirteen specific performance directives to be completed by March 30, 2002, and advised plaintiff that her continued failure to improve her performance could result in additional disciplinary action, up to and including termination of employment. (Id.) Plaintiff did not sign her February 2002 performance evaluation. (Steele-Hegg Decl. ¶ 37.)
Hunter testified that he ordinarily would give an employee the opportunity to complete a performance plan before preceding with their termination. (Ranni Aff. Ex. 11 at 355-56.) However, on March 28, 2002, two days before plaintiff's performance directives were to be completed, Hunter supplemented the PIP by comparing plaintiff's performance numbers to the thirteen-point directive set forth in the PIP. (McEntee Decl. Ex. E at 8-9, 20-22, 40-42, 57-60.) The March 28, 2002 document stated, "This note to file documents and supports the termination of Tara Steele. In a written document delivered on 2/8/2002, it was clearly outlined that Tara Steele needed to significantly improve her job performance. The following expectations were not met." (Id. at 8.) The document explained how plaintiff failed to meet a single performance objective, as follows:
1. To close $350,000 of business by March Plaintiff failed to close any business 30, 2002. whatsoever.
2. To increase pipeline by $2.3 million. Plaintiff increased her pipeline to $1,054,010.
3. To forecast deals accurately. Plaintiff forecasted that she would close two sales transactions in the fourth quarter, but she did not close any sales transactions.
4. To make ten in-person sales calls with Plaintiff averaged nine calls per week. customers.
5. To meet with at least four new contacts Plaintiff met four new contacts the week of per week. 02/11/02; one new contact the week of 02/18/02; no new contacts the week of 02/25/02; one new contact the week of 03/04/02; three new contacts the week of 03/11/02; and no new contacts the week of 03/18/02.
6. To take her manager(s) on two in-person Plaintiff invited Hunter on only two calls sales calls per week, or eight per month. from February 11 to March 28, 2002.
7. To arrange four VE demonstrations*fn4 per Plaintiff arranged zero VE demonstrations month. as of March 28, 2002.
8. To have five clients, including at least Plaintiff had one representative from four separate representatives from CA America West Airlines attend the February clients America West Airlines and 12 CA Expo; none from PetSmart. PetSmart, attend the next CTO/CIO conference or CA Expo.
9. To have two clients attend CA web cast Plaintiff failed to have a single client in presentations each month and two clients attendance for the Autosys web cast on on the Autosys*fn5 web cast on February 26, February 26. 2002.
10. To have six clients attend the next CA Plaintiff failed to have a single client World promotional event. registered for the April 2002 CA World.
11. To project professionalism in dealings Plaintiff discussed her PIP with several CA with co-workers, management, and employees, creating a distraction and a clients. negative environment. Moreover, plaintiff left work early at 4:00 p.m. on March 27 to exercise, she did not report to work until 10:30 a.m. ...