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Tang v. Glocap Search LLC

United States District Court, S.D. New York

March 24, 2015

KIA SONG TANG, Plaintiff,
GLOCAP SEARCH LLC, et al., : Defendants.


JESSE M. FURMAN, District Judge.

Plaintiff Kia Song Tang ("Plaintiff" or "Song") brings this action against Defendants Glocap Search LLC ("Glocap") and Adam Zoia pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and New York law, alleging gender discrimination and retaliation. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing principally that Plaintiff cannot establish an inference of discrimination and that Glocap's adverse employment actions against her predated any protected activity. For the following reasons, Defendants' motion is largely DENIED.


The following facts - taken from the admissible materials submitted by the parties - are viewed in the light most favorable to Plaintiff, the nonmoving party. See, e.g., Gould v. Winstar Commc'ns, Inc., 692 F.3d 148, 157-58 (2d Cir. 2012).[1]

The relevant timeline is largely undisputed. Glocap is a "search firm" and "temporary staffing agency"; Zoia is Glocap's owner and Chief Executive Officer. (Defs.' Statement Undisputed Material Facts Pursuant Local Civil Rule 56.1 (Docket No. 60) ("Defs.' Rule 56.1 Statement") ¶¶ 3-4). In March 2008, Zoia hired Plaintiff to work at Glocap and, in July 2010, promoted her to be the company's Chief Operating Officer ("COO"). ( Id. ¶¶ 8, 18). In the fall of 2012, Plaintiff moved from New York, where Glocap had its largest office, to Dallas, Texas, where Glocap had no office. (Decl. Eric R. Stern (Docket No. 59) ("Stern Decl."), Ex. B ("Song Dep.") 88-89; Defs.' Rule 56.1 Statement ¶ 46). She continued to serve as Glocap's COO, however, working largely from Texas and travelling to New York only periodically. (Defs.' Rule 56.1 Statement ¶ 46; see Glunt Decl., Ex. 3). On July 9, 2013, when Plaintiff was in New York, Zoia learned that Plaintiff was pregnant. (Defs' Rule 56.1 Statement ¶¶ 137). Less than two months later, he fired her. ( Id. ¶ 195).

Although the parties agree on the general sequence of events, they disagree about almost all of the other relevant facts - including, unsurprisingly, why Zoia fired Plaintiff. Defendants contend that, as a condition of her move to Texas, Plaintiff agreed to perform due diligence on, and create a mini-business plan for, opening a Glocap office in Texas by the beginning of 2013. ( Id. ¶¶ 31, 37). Plaintiff counters that "[t]here was never a set plan to open a Dallas office, " let alone a specific timeline. (Pl.'s Counterstatement Defs.' Statement Undisputed Material Facts Pursuant Local Civil Rule 56.1 (Docket No. 69) ("Pl.'s Counterstatement") ¶¶ 31, 36-38). Instead, she maintains that there was only a "plan... to investigate the possibility of opening a Dallas office." ( Id. ¶ 38 (emphasis added)). Regardless, Glocap never opened a Texas office, and Defendants claim that it became increasingly apparent that Plaintiff could not operate effectively as a remote COO. In particular, Defendants point to an incident on June 28, 2013, which they term "the crisis, " in which eleven New York Glocap employees resigned without notice to start their own business with a competitor. (Defs.' Rule 56.1 Statement ¶¶ 65, 69). According to Defendants, this mass resignation presented an existential threat to the company. ( Id. ¶¶ 70, 72). Because Plaintiff did not arrive in New York until July 8, 2013, Defendants maintain that others - including Laura Vincent, who ultimately became Glocap's head of operations - were largely responsible for steering the company through the crisis. ( Id. ¶¶ 81, 92-102; RTA ¶ 46). Given the company's difficulties, "Zoia concluded that it was a bad idea to have a COO in Texas, especially an expensive COO" (Defs.' Rule 56.1 Statement ¶ 120, 169), and asked Plaintiff in early July to move to the revenue side of the business, where she would be compensated by earning commissions rather than receiving a salary ( Id. ¶¶ 114-15, 151-62). After Plaintiff refused, Defendants fired her. ( Id. ¶¶ 122, 195)

Plaintiff, of course, tells a different story. Plaintiff claims that she was actively involved in the management of the company despite being based in Texas. She asserts that she played a large role in responding to the June 28th departures, and that, in any event, the supposed "crisis" did not have a significant impact on the company. ( See, e.g., Pl.'s Counterstatement ¶¶ 67, 71, 76, 86, 101-102, 163). According to Plaintiff's version of events, Glocap's alleged need to cut costs and the difficulty posed by having a remote COO were merely excuses for firing her; Defendants really fired her because they did not want to give her the three months of paid maternity leave that she had accrued as a salaried employee. (Pl.'s Counterstatement ¶¶ 126, 128, 131, 169). If Plaintiff had acceded to Zoia's request to become a commissioned employee, she asserts, she would no longer have been entitled to that leave. ( Id. ¶ 128). It was only after Plaintiff refused to accept a position without paid leave that Defendants began excluding her from Glocap's day-to-day management. (RTA ¶¶ 39, 41-50). Hoping to reverse that change, Plaintiff sent Zoia an e-mail on August 20, 2013, stating that she wished to make a "formal complaint" that she was "treat[ed]... differently" after she had notified Zoia of her pregnancy and refused to "immediately switch to the sales side." (Stern Decl., Ex. K (the "August 20, 2013 e-mail"). Plaintiff argues that this e-mail, in addition to her pregnancy, was the real impetus behind Zoia's decision to fire her. (Pl.'s Counterstatement ¶¶ 169, 187-89, 192).


Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, all evidence must be viewed "in the light most favorable to the non-moving party, " Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). A dispute over an issue of material fact qualifies as genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002).

A. Pregnancy Discrimination

Defendants move first to dismiss Plaintiff's gender discrimination claims under Title VII, the New York State Human Rights Law, N.Y. Exec. L. § 296 ("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 ("NYCHRL"). The Court evaluates all of those claims under the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (Title VII); Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999) (NYSHRL); Siddiqi v. N.Y. City Health & Hospitals Corp., 572 F.Supp.2d 353, 365 (S.D.N.Y. 2008) (NYCHRL and NYSHRL). To be sure, "[i]t is unclear whether, and to what extent, the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013). Typically, however, courts in the Second Circuit apply the "liberal standards [of the NYCHRL] to the basic McDonnell Douglas framework." Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217 (RJS) (JLC), 2013 WL 6231615, at *15 (S.D.N.Y. Dec. 2, 2013) (collecting cases); see also DeMarco v. Coopervision, Inc., 369 F.App'x 254, 255 (2d Cir. 2010) (summary order).

Under that framework, a plaintiff must first make out a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. A Plaintiff's burden of establishing a prima facie case of pregnancy discrimination is " de minimis. " Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). She need show only that "(1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position remained open and was ultimately filled by a non-pregnant employee." Id. (internal quotation marks omitted); accord Pollock v. PNC Fin. Servs. Grp., Inc., No. 13-CV-283 (VB), 2014 WL 2212069, at *3 (S.D.N.Y. May 19, 2014). If the plaintiff meets her initial burden, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse action. McDonnell Douglas, 411 U.S. at 802. If the defendant does so, then the burden then shifts back to the plaintiff to show "pretext." Id. at 804-05. To defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)). More specifically, the plaintiff must produce "not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason" for the challenged actions. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (internal quotation marks omitted) (emphasis added).

Here, as Plaintiff herself concedes (Pl.'s Mem. Law Opp'n Defs.' Mot. Summary J. (Docket No. 67) ("Pl.'s Mem.") 29), the Title VII claims against Zoia must be dismissed, as there is no individual liability under Title VII. See, e.g., Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). Plaintiff's Title VII discrimination claims against Glocap and her discrimination claims under the NYSHRL and NYCHRL against both Defendants, however, are more than sufficient to survive summary judgment. First, Defendants contend that Plaintiff has not established a prima facie case of pregnancy discrimination because she has not shown that "her position remained open and was ultimately filled by a non-pregnant employee." (Defs.' Mem. 5 (quoting Kerzer, 156 F.3d at 401)). But, although Glocap did not hire anyone to replace Plaintiff, there is no dispute that Plaintiff's responsibilities were assumed by Zoia and Vincent, neither of whom was pregnant at the time. (Defs.' Rule 56.1 Statement ¶¶ 195-97, 200-02). That alone is sufficient. See, e.g., Hanna v. InfoTech Contract Servs., Inc., No. 01-CV-680. 2003 WL 2002773, at *6 (D. Conn. Apr. 21, 2003) ("Although InfoTech did not hire someone to replace Hanna, at least one employee who was not in Hanna's protected class did assume many of his responsibilities."). And, in any event, Plaintiff need not prove that she was replaced by a non-pregnant employee to establish a prima facie case of pregnancy discrimination; she may "[a]lternatively... establish... a prima facie case by demonstrating that the discharge occurred in circumstances giving rise to an inference of unlawful discrimination." Kerzer, 156 F.3d at 401. Plaintiff can easily meet that standard here.

Specifically, Plaintiff points to evidence that Defendants began to treat her differently after learning that she was pregnant, and Defendants fired her just two months later. (RTA ¶¶ 41-50, 54). See, e.g., Pollack, 2014 WL 2212069, at *4-5 (finding an inference of discrimination when the plaintiff was fired four months after the announcement of her pregnancy and when the defendant began criticizing her after learning she was pregnant). Defendants argue that a reasonable factfinder could not infer that Defendants unlawfully discriminated against Plaintiff because Zoia, who fired Plaintiff, was the person who initially hired and promoted her. (Defs.' Mem. 10-11 (citing Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997)). But Plaintiff was not pregnant when she was hired or promoted, so the "same actor doctrine" would not prevent a reasonable trier of fact from inferring that discrimination occurred. Nor is the Court convinced by Defendants' contentions that (1) Plaintiff would have been entitled to her already-accrued maternity leave even if she had transitioned to the revenue side of the business and (2) Glocap is "inundated with female supervisors and employees, " dozens of whom have taken maternity leave. (Defs.' Mem. 5-11). With respect to the former point, there is no dispute that Glocap employees compensated through commissions were generally not entitled to paid maternity leave. ( See RTA ¶¶ 37-38). Pointing to Glocap's general maternity leave policy, Defendants claim that Plaintiff would not have had to forfeit the maternity leave that she had already earned, even if she transitioned to a commission-based salary structure. But Glocap's policy states only how maternity leave is accrued; it is silent on the question of what happens to an employee's paid leave should she transition to a position that would not entitle her to such leave. (Stern Decl., Ex. L at 51). Defendants also point to Zoia's affidavit, which claims that "since Ms. Song had earned and accrued her maternity leave as a salaried employee... she would not have forfeited this accrued leave had she become a recruiter." (Aff. of Adam Zoia (Docket No. 61) ¶ 6). It is well established, however, that "a genuine issue of fact... is not disposed of simply by the submission of a ...

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