The opinion of the court was delivered by: Steven M. Gold United States Magistrate Judge Brooklyn, New York
Plaintiff Stephanie Sandor ("Sandor" or "plaintiff") brings this action against her former employer, Safe Horizon, Inc. ("Safe Horizon" or "defendant"), alleging that defendant unlawfully discriminated against her on the basis of her gender and race. More specifically, plaintiff contends that defendant: 1) discriminated against her on the basis of her gender and race by failing to promote her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; 2) discriminated against her on the basis of her race by failing to promote her in violation of 42 U.S.C. § 1981; and 3) discriminated against her on the basis of her gender in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and Title VII, by paying her less than a male co-worker for doing the same work. Plaintiff also brings a Title VII claim based upon an alleged disparate impact of defendant's policies and procedures and a common law claim for intentional infliction of emotional distress.
Safe Horizon has moved for summary judgment on each of plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. Plaintiff has cross-moved for summary judgment on each of her claims and, in addition, has filed a motion to strike certain evidence submitted in connection with defendant's motion for summary judgment. For the reasons that follow, plaintiff's motion to strike is denied. Defendant's motion for summary judgment is granted in part and denied in part and plaintiff's cross-motion for summary judgment is granted in part and denied in part.*fn1
The facts are derived from the parties' Local Rule 56.1 statements and the exhibits, depositions and affidavits submitted by the parties in connection with the pending motions.*fn2
Safe Horizon is a nonprofit organization that provides "support and advocacy for victims of crime and abuse." Safe Horizon, http://www.safehorizon.org/index/about-us-1/who-we-are-52.html (last visited January 7, 2011). In July of 2009, Safe Horizon employed about 720 staff members. Johnson Dep. 186, Docket Entries 7-10, 7-11, 7-12. Plaintiff Sandor, a Hispanic female, worked in Safe Horizon's Human Resources Department. The essence of plaintiff's claim is that another employee, a black male, was hired after plaintiff at a higher salary than plaintiff was earning, and was then promoted to a senior position over plaintiff even though plaintiff was more qualified.
2. Plaintiff's Employment at Safe Horizon
Plaintiff was hired by Safe Horizon as a Recruitment Coordinator in the Human Resources Department in December 2001. Def. 56.1 ¶ 10, Docket Entry 8.*fn3 She was promoted to Human Resources Manager in January 2005. Id. ¶ 12.In January 2007, plaintiff applied for a promotion to Senior Director. Id. ¶ 44; Pl. Senior Director App., Docket Entry 18-14.George Johnson ("Johnson"), Vice President of Human Resources, declined to promote plaintiff. Def. 56.1 ¶ 47. Plaintiff resigned from her employment with Safe Horizon and accepted a higher-paying position with the National Resources Defense Council in August of 2007. Def. 56.1 ¶ 48.
As Human Resources Manager, plaintiff provided advice and support to various Safe Horizon departments run by approximately 40-45 managers and directors. Id. ¶ 13. Plaintiff also worked on defendant's Domestic Shelter Programs Task Force ("Task Force"), an initiative undertaken to reorganize the way the Safe Horizon shelters were run. Id. ¶ 24. Plaintiff's responsibility on the Task Force was to help with recruitment and prevent high staff turnover. Id. As part of the Task Force, plaintiff attended bi-weekly meetings with managers of the shelters to instruct them on human resources policies and procedures. Id. ¶ 25.
From the time she was hired until September 2006, plaintiff reported to Frederica Robinson ("Robinson"), then Senior Director of Employee Relations. Id. ¶ 11; Robinson Dep. 14, Docket Entry 7-13. According to Robinson, Sandor exceeded expectations in some areas and, in areas where she needed improvement, plaintiff was learning and developing. Robinson Dep. 15-16. Plaintiff also reported to Anne Collins ("Collins"), Senior Director of Compensation and Employee Relations, for approximately six months. Collins Dep. 7-8, Docket Entry 7-9. Collins testified that plaintiff was very competent, had a good grasp of human resources law, enjoyed positive relationships with her managers, and was "pitch perfect" during counseling sessions. Collins Dep. 37-38. Joseph Posner ("Posner"), Human Resources Information Systems Manager, worked with plaintiff from 2002 until she resigned, and similarly testified that plaintiff was very competent, that she understood human resources, and that she worked well with the programs at Safe Horizon. Posner Dep. 6-8, 10, Docket Entry 7-14.
Plaintiff reported to Johnson for a few months before she left Safe Horizon in August 2007. Johnson Dep. 49-50. Johnson testified that plaintiff was "meeting the standards" and was "okay in the job she was in." Id. at 36, 163. Johnson also worked with plaintiff on the Task Force and observed that she was not properly prepared for meetings and did not pay sufficient attention to detail in that context. Id. at 94-95, 101-02.
Scott Millstein ("Millstein"), defendant's Chief Operating Officer, also worked with Sandor on the Task Force and was familiar with Sandor's performance in providing advice to various departments. Millstein Aff. ¶¶ 4, 7, Docket Entry 7-15. Millstein stated in an affidavit that Sandor's performance on the Task Force was "poor" and that "she had to be reminded to follow up on simple tasks." Id. ¶ 8. In addition, Millstein stated that plaintiff "did not demonstrate the capacity to independently counsel senior managers or command their respect" and "lacked the initiative to respond to their needs in a timely manner." Id. ¶ 6.
Plaintiff's written performance evaluations from October 2004, August 2005, February 2006, and April 2007, all indicated that plaintiff was almost without exception meeting or exceeding expectations in all relevant categories. See Pl. Performance Reviews, Docket Entries 18-8, 18-9, 18-10, 18-11. Johnson prepared plaintiff's final performance evaluation in April 2007. Pl. Performance Review dated 4/25/07, Docket Entry 7-16. Johnson's summary of plaintiff's performance states, in pertinent part, that Sandor "is knowledgeable of the work that must be accomplished and adept at the administrative implementation. She has a wealth of education to compliment [sic] her human resource foundation." In addition, Johnson identified "building/developing customer relationship[s]" and "build[ing] customer confidence in her advice and counsel" as two areas where plaintiff required "continued growth and development." Id.
Plaintiff testified that her performance reviews with Robinson and Johnson were positive and that she did not receive any negative feedback. Def. 56.1 ¶ 15. Johnson, however, testified that he orally communicated to plaintiff during a performance review that he had received complaints from certain managers about her performance, but acknowledged that these complaints were never memorialized in writing. Johnson Dep. 158-59.
3. Brown's Employment at Safe Horizon
Safe Horizon hired Richard Brown, a black male, in June 2006. At the time, Brown was unemployed and Johnson, who knew Brown, was aware that Brown was looking for employment. Brown Dep. 7, 15, Docket Entries 7-7, 7-8; Brown Employment Application, Docket Entry 7-17 (indicating that Brown was referred to Safe Horizon by his "friend/associate" Johnson). Abigail Saunders ("Saunders"), an Employee Relations Manager, was going out on maternity leave and Safe Horizon was looking to hire a temporary replacement. Robinson testified that Johnson, her boss, gave her Brown's resume, told her that he knew Brown well, and suggested that Brown would be a good candidate for the temporary position. Robinson Dep. 35-36. Robinson hired Brown for the temporary position on or about June 14, 2006. Def. 56.1
¶¶ 29-30; Robinson Dep. 36.
Brown, like Sandor and Saunders, was responsible for supporting various Safe Horizon departments and programs. Def. 56.1 ¶ 31. Johnson ultimately decided to keep Brown on as a permanent employee at Safe Horizon. Id. ¶ 32. Brown was promoted to Senior Director in either January 2007 or May 2007. See Brown Personnel Forms, Docket Entry 18-19.
Brown reported to Robinson and Johnson. Robinson testified that Brown was "not as skilled in understanding and in the application of [Safe Horizon's] employee re[tention] policy and . . . [human resources] law as he needed to be in order to do the work that he was doing."
Robinson Dep. 12-13. Posner, who interacted with Brown in the Human Resources Department, stated that Brown "didn't know the main things of HR," that it took from several months to a year for Brown to learn how to work the human resources database, and that Brown did not enforce basic human resources guidelines. Posner Dep. 17, 20, 25. Collins, who also worked with Brown, stated that Brown "never had a grasp on our compensation system." Collins Dep. 39-40. Collins expressed her concerns about Brown in an email she sent to Johnson on July 23, 2007, in which she asked Johnson to speak with Brown about his "inability or unwillingness to understand, advise on or have his units adhere to established policies and procedures and practices." Collins Email, Docket Entry 18-21.
Johnson prepared Brown's written evaluation dated October 16, 2007. Johnson found that Brown was meeting and often exceeding his goals. Brown Performance Review, Docket Entry 18-20. In the section of the evaluation entitled "Supervisor's Overall Summary," Johnson noted that Brown "works very well with all senior managers and peers" and that, although Brown "still [has] more to learn," he was "devot[ing] time and effort to improving his skills . . . ." Id. Brown testified that Johnson orally expressed his "concerns" to him about his performance. Brown Dep. 93-95.
4. Plaintiff's Education and Prior Work Experience
Plaintiff holds a Bachelor of Arts from St. Lawrence University in Political Science and Spanish, and completed a Master's of Science in Human Resources Management in 2004 while working at Safe Horizon. Def. 56.1 ¶ 33. In addition, plaintiff is a certified mediator and has taken a variety of human resources certification courses. Sandor Dep. 7-8, Docket Entry 7-6. Beginning in 1998 and continuing until her employment with Safe Horizon in 2001, plaintiff worked primarily as a recruiter for employment and advertising agencies. Pl. Resume, Docket Entry 18-7.
5. Brown's Education and Work Experience
Brown graduated from high school and completed certificate programs from Columbia University's Institute for Not-for-Profit Management and the Zenger Miller Frontline Leadership. Def. 56.1 ¶ 37; Brown Resume, Docket Entry 7-17. According to Brown's resume, he worked as a manager and assistant director of human resources for two hotels from 1996-2000 and as the director of quality assurance at a third hotel from 2000 to 2002. Brown served as Director of Human Resources/Chief Business Officer of the Cathedral of St. John the Divine ("The Valley"), a nonprofit organization, from 2002 to 2006. Brown stated that his responsibilities at The Valley included "oversight [of the] HR department that was being developed," handling leases, negotiating agreements with vendors, and supervising the information technology and facilities departments. Brown Dep. 12-14. Brown was laid off from The Valley when it ceased operating in 2006. Brown Dep. 7.
Brown, Saunders and plaintiff were all Human Resources Managers in June 2006. Def. 56.1 ¶ 9. At the time, plaintiff was receiving an annual salary of $47,577.98 as a 100% full time employee. Before she went out on maternity leave, Saunders was receiving $44,752.25 as a 100% full time employee. Id. ¶ 9. Brown was hired in June 2006 as an 80% full time employee, meaning he worked from Monday to Thursday, at a salary of $44,752.00. Id. ¶¶ 9, 30. The 100% full time equivalent of Brown's salary would have been $55,940.00. See Brown Personnel Forms at 2; Johnson Dep. 180.
Johnson determined Brown's starting salary. Johnson decided to pay Brown a higher salary than plaintiff and Saunders based upon Brown's experience "working with large populations in a hotel management situation and managing human resources . . . at The Valley." Johnson Dep. 183-84. He testified that he felt that Brown's salary was "equal" given the work experience he brought to the position. Id. at 181. Johnson also acknowledged, however, that he did not discuss in detail the experience Brown had managing people at his previous job and how it might compare to the experience of the managers already employed at Safe Horizon. Id. at 184-89.
7. Restructuring of the Human Resources Department/Senior Director Position Johnson began restructuring the Human Resources Department in late 2006 with a senior team that included Vice President of Shelters Sal Uy ("Uy"), Senior Vice President of Child Advocacy Center Department Nancy Arnow ("Arnow"), Senior Vice President of Courts and Community Centers Department Paula Calby ("Calby"), and Millstein. Def. 56.1 ¶ 38. A proposed reorganizational chart, prepared by Johnson on October 11, 2006, indicates that, among other things, defendant sought to create one new human resources position: Senior Director of Employee Relations & Team Management Consulting. Reorganizational Chart, Docket Entry 18-26. Brown's name appears in the chart under the title of this new position. In the chart, both plaintiff and Saunders are listed as remaining in their current positions as Managers, with plaintiff reporting to Robinson and Saunders reporting to both Brown and Collins. Id. Defendant alleges that, contrary to what was listed in the reorganizational chart, the restructuring involved a number of different proposals and included two new Senior Director positions. Def. 56.1 ¶ 40.
In late 2006, Safe Horizon posted an internal job announcement for the Senior Director position and both plaintiff and Brown applied for the position. As discussed below, Brown was ultimately awarded the promotion to Senior Director. Robinson left the Human Resources Department in July or August of 2007 to work in another Safe Horizon department. Robinson Dep. 5-8. Madeline Perez, a Hispanic female, was hired to replace Robinson as Senior Director in September 2007. Def. 56.1 ¶ 9; Robinson Dep. 61.
a. Plaintiff's Application
Plaintiff applied for the Senior Director position via email to Johnson, as requested in the posting, on January 2, 2007. Pl. Senior Director App. After applying for the position, plaintiff had a brief meeting with Johnson. Sandor Dep. 71-72. According to plaintiff, Johnson told her that, although she had the "knowledge, skills and educational background to fulfill the Senior Director position," Johnson had decided to promote Brown and that Brown can "learn as he goes." Sandor Dep. 73.
Johnson testified that the reason he did not promote plaintiff was because Millstein informed Johnson that senior staff members were complaining about plaintiff's performance. Johnson Dep. 81-83. Johnson also stated that Uy, who worked with plaintiff on the Task Force, told Johnson that Sandor lacked attention to detail. Id. at 93-94. In addition, Johnson testified that he received complaints from staff members that Sandor's ...