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Polo v. Xerox Corp.

United States District Court, W.D. New York

January 28, 2014

XEROX CORP., Defendants.


FRANK P. GERACI, Jr., District Judge.


On or about June 16, 2010, Plaintiff commenced the instant action by filing a Complaint alleging that she was subjected to a hostile work environment because of her sex and was retaliated against both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) and the New York State Human Rights Law, New York Executive Law § 296. Dkt. #1. Finally, the Plaintiff alleges that she was not paid equal wages for equal work based on her sex in violation of the Equal Pay Act, 29 U.S.C. § 206(d). The Defendant filed an Answer denying liability and advancing various defenses. Dkt. #3.

On January 31, 2012, the Defendant filed a Motion for Summary Judgment. Dkt. #17. A Response in Opposition to the Summary Judgment motion was filed on May 4, 2012. Dkt. #21. The Defendant replied on May 25, 2012. Dkt. #22. The case was referred to mediation on December 3, 2012. On February 13, 2013 a mediation certificate was filed indicating that the case was not settled.


The Plaintiff, Francesca Polo, a white, female, Italian born on July 25, 1971, began working with Xerox as a temporary employee in 1994-1995 as a key-op. She was later promoted to technician. Later in 1999, she became a member of research. She began reporting to the program manager for the Xerox Research Center, William Hannaway, in 2002. In 2003, she was promoted to a member of Research and Technology Services, Level One. She secured her Master's degree in electrical engineering in 2008. Hannaway continued to be her supervisor. She received regular increases in her pay while employed by Xerox. (Polo Dep. 22.)

Xerox maintained well established policies and procedures prohibiting unlawful discrimination, harassment and retaliation in employment. (Bascaran Decl. ¶ 3.) Employees, including the Plaintiff, were trained in these policies and procedures, including the complaint process.

Xerox maintained a Tuition Aid Policy in order to reimburse eligible employees. Eligible employees were required to submit a Tuition and Approval Form in advance of registering for a course. (Hannaway Decl. ¶ 6.)

Between 2006 and 2008, the Plaintiff took various courses at Rochester Institute of Technology and received approximately $12, 000 in reimbursement for tuition. (Hannaway Decl. ¶ 8.)

A request for a ten-week educational leave of absence filed by the Plaintiff was approved by Xerox in 2007. Although the Plaintiff was ineligible for tuition reimbursement during her leave of absence, Xerox agreed to pay her tuition in full. Plaintiff, however, refused to accept the funds. (Hannaway Decl. ¶ 13.)

Returning to work in May 2007, the Plaintiff expressed an interest in working with a different team of senior researchers. However, in 2007 a performance appraisal on her projects was deemed low. (Hannaway Decl. ¶ 14.)

In 2008, the Plaintiff was assigned to work on a project with a senior researcher, Reiner Eschbach. The Plaintiff expressed her desire to work on algorithm development in anticipation of her completion of a Master's Degree. On May 13, 2008, in an e-mail to Mr. Hannaway, the Plaintiff complained that senior researcher Mr. Eschbach made two statements that offended her and that he acted "erratic." In her Complaint, the Plaintiff stated that given Mr. Eschbach's "erratic" behavior, she was fearful that her ability to develop her skills and to contribute to the area of algorithm development would be hampered. (EEOC charge filed February 19, 2009.) Mr. Eschbach was not the Plaintiff's supervisor, in fact, he had no direct reports. (Eschbach Dep. 22.) (Purvis Decl. ¶ 6.) After the Plaintiff asked to be assigned to more complex work complaining that the jobs assigned to her were too easy (Eschbach Dep. 45), the Plaintiff alleges Mr. Eschbach stated that she was "one step up from a garbage collector." Mr. Eschbach explained that the Plaintiff was the most junior in the group. (Eschbach Dep. 50.) She also complained that Mr. Eschbach stated "all Jews, every single one of them should be shot and killed." The Plaintiff claimed that Mr. Eschbach demeaned her and she assumed that his intent was to make her quit. She stated that Mr. Eschbach was "erratic" because he would jump from topic to topic. (Polo Dep. 133-134.) She further stated that he would show up at work sweating, wearing biking gear (Polo Dep. 146) and he would assign her projects that he did not assign to men in the lab (Polo Dep. 149). The Plaintiff did admit that Mr. Eschbach's derogatory statements regarding Jewish people were not directed at her. (Polo Dep. 153.) Mr. Eschbach denied making that statement. (Eschbach Dep. 82.) In May 2008, she questioned whether her pay was proper and whether she would receive any additional compensation upon completion of her Master's Degree. She complained that she was underpaid. (Hannaway Dep. 69.) She also alleged that she was paid less than males holding comparable positions. The Plaintiff stated that she was not sexually harassed from any other co-workers. (Polo Dep. 50-51.)

An investigation into the Plaintiff's complaints was conducted by Manager William Hannaway and Lisa Purvis, Laboratory Manager for Document Workflows & Services Laboratory. Although he denied making the comments, Mr. Eschbach was warned about the remarks and reminded of Xerox's non-discrimination and anti-harassment policies. The Plaintiff was reassigned to work with another senior researcher, Zeke Fan. (Hannaway Decl. ¶ 35.)

Although the Plaintiff later also alleged that Mr. Eschbach had a photo of a woman in his office that the Plaintiff recognized as Lena, a porn star, this was a photo from the neck up only. The Plaintiff testified in her deposition that the photo itself was not pornographic, that she did not witness any other pornographic material on the job site and that Mr. Eschbach did not provide her with any pornography. (Polo Dep. 273-274.) There were no further complaints by Plaintiff regarding Eschbach's conduct.

Xerox also engaged in an investigation regarding the Plaintiff's salary. A salary analysis of the Plaintiff's pay was conducted, which included the preparation of a scattergram which plotted the Plaintiff's pay in relation to the pay of other employees. Xerox ultimately determined that the Plaintiff's pay was proper. They further determined that no pay increase was appropriate because her work performance was below target. (Hannaway Decl. ¶¶ 27, 28.)

In May 2008, the Plaintiff was invited to attend a conference in Austria. The Plaintiff requested paid time off and financial support for the trip. The Plaintiff was advised that she needed to follow the normal procedure for filing such a request and that approval would take place in mid-July. On July 14, 2008, the Plaintiff requested a decision regarding her travel to Austria. On July 18, 2008, the travel request in the amount of $2900 was approved. On July 21, 2008, the Plaintiff declined the funds, stating that the deadline to respond to the conference had passed. The Plaintiff did not previously advise her employer of a specific date needed to register for this conference. (Polo Dep. 182.)

In October 2008, the Plaintiff was approved for travel to California to attend a conference in November. She attended this conference. (Purvis Decl. ¶ 29.)

Due to financial difficulties between December 2008 and January 2009, Xerox implemented a plan to reduce their workforce. After reductions were considered, Xerox determined that six employees from the Research Center were required to be laid off. Eventually, four males and two females were laid off. (Bascaran Decl. ¶¶ 18-28.)

The reduction in force process had two parts. Part I involved an assessment by the various lab managers who rated each employee and provided a total score for each. Gender was not a consideration. Any prior complaints by any employees were not part of the process. During Part II, the lab manager reviewed the resulting assessment and ranked the employees. One hundred ninety-three employees were assessed. (Bascaran Decl. and Purvis Decl.)

All lab managers participated in a process to access each employee considered for the layoff. Each employee received a rating score. Employees were then ranked pursuant to the resulting scores. The lowest scoring employees were discussed and their work performance was considered. After the score and work performance was seriously considered, the Plaintiff, receiving one of the lowest scores, was selected to be one of the four laid off along with three other employees, two males and one female. (Bascaran Decl. and Purvis Decl.)

Regarding the Equal Pay Act claim, the Plaintiff identified various male individuals that she claimed performed equal work to hers yet received higher wages. Although she had no specifics as to how she was paid in comparison to males at Xerox, she "felt" that she was being paid differently. She initially did not even indicate that this was due to her gender. (Polo Dep. 216.) Xerox Corporation's investigation discovered that the other employees identified by the Plaintiff, in fact, did not have similar or equal job responsibilities, had greater tenure than the Plaintiff and in one case was actually paid less than the Plaintiff. (Hannaway Decl.)

The following individuals were identified by the Plaintiff as males who were paid differently than the Plaintiff: Ronald Dukes, Peter Paul, Gary Skinner, Claud Fillione, Jack Elliot, Daniel Hann and Aaron Burry.

The Xerox investigation regarding these employees disclosed the following:

1. Ronald Dukes: It was discovered that he did not work in the Research Department but rather in the Business Center. He had different job responsibilities.

2. Peter Paul: Mr. Paul had a Ph.D., worked as a principal scientist, was two grades above the Plaintiff and conducted independent research on complex projects, unlike the Plaintiff.

3. Gary Skinner: Mr. Skinner was a team leader, the Plaintiff was not.

4. Claud Fillione: He was in a higher level of skill and responsibility than the Plaintiff.

5. Jack Elliot: Mr. Elliot was one grad level higher than the Plaintiff and ...

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