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finding that the plaintiff had established that she was qualified for the promotion because she “had many of the requisite qualifications and much of the requisite experience,” and she was already performing many of the duties of the position
Summary of this case from Ellis v. Century 21 Dep't StoresOpinion
No. 99 Civ. 4916 (GEL)
September 27, 2002
Marisol Vargas, pro se, for Plaintiff.
Peter A. Walker, Seyfarth Shaw, New York, NY., (Kimberly A. Altschul, on the brief), for Defendant Chubb Son Inc.
OPINION AND ORDER
Plaintiff Marisol Vargas ("Vargas" or "plaintiff") brings this employment discrimination action against her former employer, Chubb Son Inc. ("Chubb" or "defendant"), alleging that Chubb discriminated against her on the basis of her race and national origin. On March 10, 1999, Vargas received a "Right to Sue" letter from the EEOC and shortly thereafter filed the original Complaint in this action. She charges that Chubb failed to promote her on two occasions because she is Hispanic, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1982) ("Title VII"). Chubb has moved for summary judgment. After careful consideration of the parties' submissions. the motion is denied.
The defendant is captioned "Chubb Group of Insurance Companies" in the Complaint. According to defendant, however, the correct name of the entity is "Chubb Son Inc." (Def. R. 56.1 Statement n. 1.)
While Vargas's Complaint alleges discrimination on the basis of her race, her EEOC Charge alleged national origin discrimination. (Def. R. 56.1 Statement ¶¶ 3, 5; Walker Dec. Ex. 2.) A Title VII suit for discrimination based on one's status as a Hispanic may allege either race or national origin discrimination. See, e.g., Freitas v. Gypsum Floors of New York, 214 F. Supp.2d 344, 345 (S.D.N.Y. 2002); Grasso v. Forrest Edward Employment Services, No. 01 Civ. 3263 (AKH), 2002 WL 989528, at *5 (S.D.N.Y. Mar. 15, 2002). Since Vargas's summary judgment papers treat her claim as one based on national origin, the Court will consider this a national origin discrimination claim.
FACTS
The following paragraphs summarize the facts asserted by Plaintiff, indicating some of the issues on which disputes exist.
The Court considers as evidence the facts that Vargas asserts from personal knowledge in her Rule 56.1 counter-statement and her memorandum of law. While ordinarily only affidavits and other forms of sworn testimony are considered in a summary judgment motion, Vargas is unrepresented, and may not have understood that she should have made these factual assertions in an affidavit. See e.g., Suggs v. Port Authority of New York and New Jersey, No. 97 Civ. 4026 (RPP), 1999 WL 269905, at *3, *5 (S.D.N.Y. May 4. 1999) (considering all statements in pro se plaintiff's Rule 56.1 response and memorandum of law as evidence).
Vargas was hired as a file clerk in the Human Resources department of Chubb's downtown New York City office (the "Downtown Branch") in 1988. (Def. R. 56.1 Statement ¶ 12.) She was regularly promoted by her supervisor, senior Human Resources Manager Ginette Barrau-Somos, becoming a Human Resources Staff Assistant in 1991. (Barrau Dec. ¶ 7.) Based on her performance, Vargas was promoted twice more to higher grades within the Staff Assistant position, receiving her last promotion in 1994. (Id. ¶¶ 8-9.) By the time of the events giving rise to this action, Vargas was responsible for communicating with the entire Chubb staff regarding benefits, payroll, and disability issues; screening and interviewing candidates for non-professional positions; assisting with recruiting for professional positions at job fairs; and conducting orientations for newly hired personnel. She was also the Wellness Coordinator, the Benefits Coordinator, and a member of other Downtown Branch Committees. (Barrau-Somos Dec. Ex. A; Pl. R. 56.1 Counter-statement ¶ 17; Pl. Resp. at 2.) In addition, for some period of time, Vargas worked simultaneously in Chubb's midtown office (the "Midtown Branch"), because the Midtown Branch's Human Resources Representative and one of its Staff Assistants were on maternity leave. (Pl. R. 56.1 Counter-statement ¶ 69.)
The 1994 promotion made Vargas a grade 8, "exempt-level" employee. While the "exempt-level" designation indicated that Vargas held a supervisory position, she states that because her job title was still that of Staff Assistant, she continued to be considered a supporting, rather than managing, employee. (Pl. R. 56.1 Counter-statement ¶ 17.) Her contention that job title was more important than grade level is supported by her allegation that one manager told her that she would have trouble in a management position because she would always be seen as "simply a staff assistant." (Pl. Resp. at 1.)
It is not clear when, or for how long, Vargas was working in both offices. Her statements do not provide dates. and defendant's papers do not mention this at all.
In July 1996, the position of Human Resources Manager for the Downtown Branch became vacant, and Vargas expressed an interest in interviewing for the position. Barrau-Somos, who was in charge of hiring for the position, told Vargas that she would not consider her for the promotion, because she was not qualified, and had begun having "performance issues." (Barrau-Somos Dec. ¶ 19.) In addition, defendant states that it "strongly preferred" applicants to have a college degree, which Vargas did not have at the time. (Def. R. 56.1 Statement ¶¶ 45-46.) However, Vargas states that she was never aware that applicants with college degrees were preferred, and defendant's job description does not mention a degree in its list of the knowledge and skills necessary for the position. (Pl. R. 56.1 Counter-statement ¶ 45; Barrau-Somos Dec. Ex. H.) Barrau-Somos eventually hired Anthony Santamaria, a non-Hispanic Caucasian, to fill the position.
In or around August 1996. the Midtown Branch began interviewing applicants for the position of Human Resources Representative, a management-level position junior to the Human Resources Manager. Although Barrau-Somos was not involved in the hiring process for the position, since she did not work in the Midtown Branch. Vargas apparently spoke to her about interviewing for it. (Pl. R. 56.1 Counter-statement ¶ 35; Barrau-Somos Dec. ¶ 19.) When Barrau-Somos told Vargas that she was not qualified for the position because she did not have enough "generalist" human resources experience, Vargas replied that she would be willing to become a Human Resources Trainee. (Pl. R. 56.1 Counter-statement ¶ 35.) This position involved nine months of apprenticeship, after which the Trainee would become a full Human Resources Representative. (Pl. Dep. at 51.) Barrau-Somos told Vargas that the Trainee designation no longer existed. (Pl. R. 56.1 Counter-statement ¶ 35.) In March 1997, Patricia Sarant, the senior Human Resources Manager for the Midtown Branch, hired Lauren Nagle, a non-Hispanic Caucasian, to fill the Human Resources Representative slot. (Sarant Dec. ¶ 2.) Because Nagle was transferring from Chubb's underwriting department, and had no previous human resources experience, she was designated a "retrain." (Id. ¶ 9.) According to Vargas, Nagle was coded on Chubb's documents as a "Human Resources Trainee," the designation that Barrau-Somos had told Vargas did not exist. (Pl. R. 56.1 Counter-statement ¶ 62.)
The exact date that this position came open is not clear: defendant has not provided it. Vargas's statements indicate, however, that the position was open by August 1996.
Chubb asserts that a college degree is also "strongly preferred" for this position. (Def. R. 56.1 Statement ¶¶ 45-46.) Once again. Chubb's documentation on the position does not express this preference. (Barrau-Somos Dec. Ex. J.)
According to Barrau-Somos, Vargas had begun experiencing performance problems in 1995, and this was one of the reasons that she was not considered for either of the two promotions. Barrau-Somos states that the problems, including clerical mistakes on forms and employees' perception that Vargas was "unapproachable," began a year after Vargas received her last promotion, to grade 8 Staff Assistant. (Barrau-Somos Dec. ¶ 10.) Chubb employees are evaluated annually, for the period beginning in May of the previous year. (Id.) In May 1996, at the end of the evaluation period in which Vargas allegedly had experienced problems, Vargas turned in a self-appraisal form that discussed her weaknesses, but also pointed out her successes. (Id. ¶¶ 10-12; id. Ex. A.) In January 1997, Barrau-Somos and Vargas agreed to defer her six-month evaluation until June, because Vargas's performance deficiencies had not yet been completely rectified. In an email dated January 23, 1997, Barrau-Somos listed the areas in which Vargas needed to improve. (Id. Ex. D.) This is the earliest documentation of Barrau-Somos's unhappiness with Vargas's performance. Also in January, Vargas completed a self-evaluation form, on which she gave herself a score of 2.75 out of 5, with Barrau-Somos's approval. (Pl. R. 56.1 Counter-statement ¶ 22.) While defendant states that this score was low, indicating that even Vargas saw herself as a problem employee (Def. Mem. at 13), the form itself indicates that a score of 3 meant that the employee displayed "full proficiency" in all areas. (Barrau-Somos Dec. Ex. C.) In June 1997, Vargas finally had her performance review, with both Barrau-Somos and Anthony Santamaria. the new Human Resources Manager, present. Vargas received a rating of "Met Most" of her performance goals. and the evaluation form detailed the areas in which Vargas's performance was still deficient. (Id. Ex. C.) Around the same rime. Vargas filled out another self-evaluation, giving herself, with Barrau-Somos's concurrence a 3.25 out of 5. (Id. Ex. F.)
Defendant states that this self-evaluation provides documentary evidence that Vargas admitted she had performance issues, but since the evaluation contains an extended discussion of what Vargas felt her strengths and successes to be, it is hardly unequivocal evidence that Vargas thought her performance inferior. (Barrau-Somos Dec. Ex. A.) In addition, the evaluation does not reveal what Barrau-Somos thought of Vargas's performance, or whether anyone had mentioned to Vargas that her performance was regarded as deficient.
While it is possible that, in practice, a 2.75 was considered a low score at Chubb, defendant has provided no evidence to this effect. Nor is it clear how Vargas regarded the score, or what basis she would have had for knowing how her self-rating compared with those of other employees.
Vargas disputes Barrau-Somos's account of the chronology of her performance problems, as well as the accuracy of the allegations themselves. She testified that she was never made aware of any areas in which she needed to improve her performance prior to the discussions mentioned in Barrau-Somos's January 1997 email. (Pl. Dep. at 74, 82-84.) In addition, Vargas asserts that she had always excelled in the skills that Barrau-Somos found deficient in January and June 1997. (Id. at 84.)
During the June 1997 performance appraisal, Santamaria told Vareas she would always be seen as "simply a staff assistant" (Pl. Resp. at 1). and that she could interview for another job on Chubb's time. Vargas resigned shortly thereafter to take a position at Bernard Hodes Advertising. She filed a complaint with the EEOC in December 1997, alleging discrimination on the basis of her national origin, and, after receiving a right to site letter. instituted this lawsuit in July 1999.
DISCUSSION
Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment, she must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
The framework for analyzing summary judgment motions in employment discrimination claims was recently revisited by the Second Circuit inJames v. New York Racing Assoc., 233 F.3d 149 (2d Cir. 2000). In James, the Court of Appeals considered the effect of the latest ruling of the Supreme Court, Reeves v. Sanderson Plumbings Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000), on prior circuit case law, as announced in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). The Court's conclusion was that Reeves was entirely consistent with Fisher, and left prior circuit law unchanged. since "both opinions essentially stand for the same propositions." James, 233 F.3d at 156.
Under the analysis applied in Fisher and reaffirmed in James, we begin by asking whether the plaintiff has established the "minimal" prima facie case defined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the Second Circuit put it in James,
This requires no evidence of discrimination. It is satisfied by a showing of "membership in a protected class, qualification for the position, an adverse employment action," and preference for a person not of the protected class.James, 233 F.3d at 153-54. Meeting this test "creates a presumption that the employer unlawfully discriminated." Fisher, 114 F.3d at 1335. This presumption "places the burden of production on the employer to proffer a nondiscriminatory reason for its action." Id. at 154. If the employer fails to present such a reason, plaintiff prevails.
"On the other hand, once the employer `articulates a non-discriminatory reason' for its actions, Fisher, 114 F.3d at 1336, the presumption completely `drops out of the picture.' St. Mary's [Honor Ctr. v. Hicks], 509 U.S. [502,] 510-11 [(1993)]." Id. At that point, "the employer will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. Evidence casting doubt on the employer's proffered justification "may — or may not — be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citing Reeves, 120 S.Ct. at 2106).
Vargas alleges that she was denied promotions on two occasions because of her national origin: she was not considered for the Human Resources Manager position, and not allowed to interview for the Human Resources Representative position, or, in the alternative, to be considered for a Human Resources Trainee post. Vargas has satisfied her burden of establishing a prima facie case that supports a presumption of discrimination. As a Latina, she is a member of a protected class. While Vargas did not actually apply for either promotion, she expressed her interest in doing so, and was told that she would not be considered for either position. Viewing her qualifications in the light most favorable to her, Vargas had many of the requisite qualifications and much of the requisite experience — as indicated by Chubb's job descriptions (Barrau-Somos Dec. Exs. H, J) — for both positions, including in-depth knowledge of Chubb's benefit, payroll, and disability policies, and experience in professional and non-professional recruiting, staff counseling, and training other staff members in interviewing and teamwork. In addition. Vargas states that she was already performing many of the duties of the Human Resources Representative, since she was filling in for both the Midtown Branch's Staff Assistant and Representative. (Pl. R. 56.1 Counter-statement ¶¶ 43, 70.) Not only was Vargas not promoted, she was not allowed to interview for either position. Finally. non-Hispanics were chosen for both jobs.
To establish a her prima facie case for failure to promote, a plaintiff generally must show that she applied for the positions at issue. Brown v. Coach Stores, 163 F.3d 706, 711-12 (2d Cir. 1998). The Supreme Court has held, however, that where a plaintiff alleges that she expressed interest in competing for a position, and was discouraged from applying for discriminatory reasons, her prima facie case need not fail because she did not go through the "futile gesture" of actually filling out an application. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66 (1977); see also Kennedy v. St. Francis Hosp., No. 00 Civ. 604, 2002 WL 31109535, at *7-8 (D. Conn. Aug. 22, 2002) (applying Teamsters to a failure to promote claim). The same logic applies here, where plaintiff was denied an opportunity to compete for either position, allegedly for discriminatory reasons, before she had even had a chance to formally apply for them.
Vargas's lack of a college diploma, without more, should not have disqualified her as an applicant, since there is a factual dispute about Chubb's preference for a degree. (Def. R. 56.1 Statement ¶¶ 45, 61.) In addition, Vargas was taking courses towards her degree at Pace University at the time, with Barrau-Somos's approval. (Pl. Dep. at 17.)
Chubb in turn has satisfied its burden of articulating nondiscriminatory reasons for Barrau-Somos's failure to allow Vargas to apply for either promotion. Chubb asserts that Vargas's performance as a Staff Assistant was not strong enough for her to merit a promotion to a more independent, visible position, a rationale that applies to both the Human Resources Manager and Representative positions. (Def. R. 56.1 Statement ¶¶ 56, 72.) With respect to the Human Resources Representative position, Chubb states that it considered Lauren Nagle more qualified than Vargas for the Human Resources Representative position, even though Nagle had no previous human resources experience, because she had a college degree and had excelled as an underwriter. (Sarant Dec. ¶¶ 7-8.) Likewise, the candidate whom Barrau-Somos eventually hired for the Human Resources Manager position, Anthony Santamaria, had more supervisory human resources experience than Vargas, as well as a business degree. (Id. ¶ 49.)
Vargas disputes each of Chubb's assertions in turn, and charges that Chubb's proffered reasons are pretexts for discrimination. To survive summary judgment, the plaintiff must present enough evidence not only to suggest that the employer's proffered reasons are pretext, but also to give "logical support to an inference of discrimination." James, 233 F.3d at 154. Vargas has offered enough evidence so that a reasonable jury could infer that she was denied promotion because of her national origin.
Chubb argues that Vargas has conceded that she cannot raise an inference of discrimination because she stated in her deposition that she did not have "facts" to support her claim of discrimination. (Def. Mem. at 16; Pl. Dep. at 50.) It is clear from the context in which Vargas made this statement, however, that she meant that, like most Title VII plaintiffs, she cannot produce any direct evidence of discrimination. (Pl. Dep. at 50-52.)
A reasonable jury could find that Barrau-Somos was the decision-maker with respect to both the Human Resources Representative and Manager positions. It is undisputed that Barrau-Somos was responsible for hiring the new Human Resources Manager, and that she did not consider Vargas. As for the Human Resources Representative position, while Sarant had final hiring authority, it was Barrau-Somos whom Vargas approached about the position, and she who told Vargas that she was not qualified. (Pl. R. 56.1 Counter-statement ¶ 35; Sarant Dec. ¶ 10.) Consequently, Vargas did not interview for the position. While it is unclear what Chubb's interview procedures were, Vargas suggests that she viewed Barrau-Somos as having authority over her ability to interview for the Representative position (Pl. R. 56.1 Counter-statement ¶ 35) and Barrau-Somos and Sarant do not quarrel with this characterization.
While this evidence alone might suggest discrimination against employees who began in low-ranking positions — a perfectly legal, if unpleasant, practice — it is significant both because it supports Vargas's claim that the rationales stated for her lack of advancement were pretextual and because, coupled with other evidence, it might suggest that a form of stereotyping was in play that confined Vargas to non-professional status.
Chubb points out that Barrau-Somos had promoted Vargas five times over the years, suggesting that Barrau-Somos was not unwilling to promote her. The promotions at issue here, however, are qualitatively different from the ones that Vargas had previously received. Both Human Resources Manager and Human Resources Representative were considered professional, management-level positions, whereas Vargas's current title, Staff Assistant, reflected a "support" role. (Id. ¶ 17.) In addition, Chubb's management staff seemed to perceive a large gulf between the respect accorded to management and that accorded to Staff Assistants, since both Santamaria and Barrau-Somos told Vargas that she would never be respected as a manager, having entered the department as a clerk. (Pl. Resp. at 1; Pl. R. 56.1 Counter-statement ¶ 35.) Therefore, Vargas has produced sufficient evidence from which a jury could infer that Barrau-Somos, while she had no problem promoting Vargas to successively higher support positions, viewed the Manager and Representative positions as something else entirely.
Chubb asserts that its promotion of two other Hispanic women to Human Resources Manager positions negates any inference of discrimination that might otherwise arise. Chubb promoted Catherine Fernandez to Human Resources Manager of the New Haven Branch, and transferred Elaine Vaz from the Long Island Branch to another Human Resources Manager position in the Downtown Branch. (Def. R. 56.1. Statement ¶ 33, 53.) Barrau-Somos states that she was not responsible for promoting either woman (Barrau-Somos Dec. ¶¶ 19, 26), however, and thus these promotions do not shed any light on the circumstances surrounding Vargas's failure to be promoted. See Smith v. Xerox Corp., 196 F.3d 368, 370-71 (2d Cir. 1999) ("[O]nly a comparison between persons evaluated by the same decision-maker is probative of discrimination.").
Vargas's evidence is sufficient to create a genuine issue about Chubb's assertion that she was not qualified for either of the promotions because she was having difficulty performing her duties as a Staff Assistant. She contends that the statements contained in Barrau-Somos's evaluation of her performance (Barrau-Somos Dec. Ex. G) were inaccurate. Vargas testified that Barrau-Somos had previously praised her performance in the very areas that Barrau-Somos highlighted as problems in 1997, such as her ability to respond to multiple inquiries at once, and her organization of meetings. (Pl. Dep. at 84, 89-90.) Indeed, Vargas stated that she had always "excelled"; that other employees and committee members had praised her performance; and that she was surprised by her disappointing appraisal in June 1997. (Id. at 84 98.) Vargas also disputes Barrau-Somos's descriptions of specific occasions on which Vargas's performance fell short. For instance, Barrau-Somos noted in Vargas's June 1997 appraisal that Vargas had failed to conduct orientations for new hires as often as she should have, but Vargas testified that she had to cancel some of the orientations for logistical reasons, with Barrau-Somos's approval. (Id. at 89.) In addition, during the period that Chubb claims Vargas had problems, she was working simultaneously in the Midtown Branch, filling in for a Human Resources Representative (Pl. R. 56.1 Counter-statement ¶ 69), raising a question as to why Chubb would give her this extra responsibility if she was proving incompetent at her own job.
Vargas does admit that she may not have been as focused as she normally was after the promotion disputes began, and this is reflected in her self-evaluation of January 1997 (Barrau-Somos Dec. Ex. C; Pl. Dep. at 68), but she argues that, due to their timing, these difficulties could not have formed a basis on which to deny her the promotions. In other words, Barrau-Somos would not have had time to observe a period of lackluster performance that would have convinced her not to consider Vargas for either position. While Chubb states that Vargas's performance problems date back to 1995, Vargas disputes this, and Chubb has proffered no documentation to support its assertion. The first record of the problems, Barrau-Somos's email of January 1997, states that the problems dated back to "the past few months." (Barrau-Somos Dec. Ex. D.) Barrau-Somos told Vargas that she would not be considered for either position in August 1996. (Pl. R. 56.1 Counter-statement ¶ 35.)
Performance appraisals were done annually by management at Chubb, and the only one of Vargas's appraisals that Chubb has proffered is dated June 1997, and relates to the period between May 1996 and June 1997. (Barrau-Somos Dec. Ex. G.) Had Vargas's performance issues begun in 1995, presumably the May 1996 evaluation would have reflected this. While Chubb has proffered Vargas's May 1996 performance plan, which detailed her goals for the coming year (id. Ex. B), it does not indicate how her performance was viewed by Barrau-Somos or other management figures, and provides no evidence of any deficiencies.
A reasonable factfinder, crediting Vargas's statements, could infer that Barrau-Somos's criticism of Vargas's work began roughly concurrently with Vargas's attempts to be promoted, which in turn could suggest that Barrau-Somos's determination that Vargas should not be considered for either position was not based on Vargas's having had difficulty, since 1995, in performing the job that she currently held. Vargas has raised an issue of fact as to when her alleged problems may have begun. While a jury could conclude that Vargas's performance deficiencies did indeed begin in 1995, and thus could have provided a basis for Barrau-Somos's refusal to consider her, resolution of this issue of fact will involve evaluations of credibility.
In addition to Vargas's alleged performance problems, Chubb argues that she did not have the necessary experience to be considered for either promotion. Vargas disputes defendant's portrayal of the duties that she was already performing, and its characterization of her experience. With respect to the Human Resources Representative position, Vargas asserts that she was more qualified than Lauren Nagle, and, in the alternative, that she was willing to be trained in any areas in which she was lacking. The job description indicates that the applicant must have extensive communication skills, an understanding of Chubb's business mission, policies, salary and promotion practices, and a knowledge of human resources trends. (Barrau-Somos Dec. Ex. J.) It appears that Vargas had these qualifications, based on her long employment at Chubb and the work that she was already doing, including filling in for the Human Resources Representative at the Midtown Branch.
Nonetheless, Barrau-Somos told Vargas that she was unqualified, and that the position of Human Resources Trainee did not exist. Yet Vargas offers evidence that when Lauren Nagle was awarded the position. she was designated a "retrain." since she had no prior human resources experience, and was coded as a Human Resources Trainee. (Pl. R. 56.1 Counter-statement ¶ 62.) Moreover, Vargas herself trained Nagle on Chubb's benefits policy, salary system, and new hire orientation system. (Id.) Chubb has offered no explanation for the discrepancy between what Barrau-Somos told Vargas, and Nagle's being awarded the Trainee position.
Defendant agrees that Nagle entered the Human Resources department as a "retrain" (Sarant Dec. ¶¶ 6, 9), and does not respond to Vargas's allegation that Nagle designated a Human Resources Trainee.
In addition, when Vargas asked Barrau-Somos about the Human Resources Representative position, Barrau-Somos told her that she "would never be viewed as a Human Resources Representative . . . because the branch [had] seen [her] grow from a clerk [and so] they would never respect [her] as a manager." (Id. ¶ 35.) While this statement alone does not raise an inference of discrimination based on ethnicity (as opposed to class), Vargas also testified that when Vargas told Barrau-Somos that she planned to attend a branch of CUNY, Barrau-Somos responded that Vargas should not go to CUNY, because it was a "minority base." (Pl. Dep. at 17.) These statements, considered along with Barrau-Somos's incorrect assertion that the Trainee position did not exist. constitute further evidence that the asserted bases for denying promotion to Vargas were pretextual.
Vargas argues that she was sufficiently qualified to be considered for, and promoted to, the Human Resources Manager position. As with the Representative position, Vargas asserts that she was already performing many of the responsibilities of the Manager. On the other hand, the successful candidate. Anthony Santamaria, had more of the supervisory human resources experience that Chubb preferred (Barrau-Somos Dec. Ex. H) than did Vargas. Chubb states that Vargas did not have the necessary independence to be a candidate for the position (Def. R. 56.1 Statement ¶ 37), but Vargas claims that her roles as Wellness Coordinator and Benefits Coordinator gave her experience in supervising staff and interacting with management. (Pl. R. 56.1 Counter-statement ¶ 37.) At any rate, Vargas claims not that Santamaria was discriminatorily preferred, but that she was prevented even from being considered for the position as unqualified. Vargas has certainly raised an issue of fact as to whether she was truly unqualified for the position, as Chubb asserts, and whether her performance problems, if any, played a role in Barrau-Somos's decision. She has thus presented evidence that Chubb's proffered reasons for denying her the promotion were pretext; but she has not necessarily raised an inference of discrimination, as required by Title VII. Given that Vargas's evidence as to the circumstances under which she was denied the Representative position is itself sufficient to create an inference of discrimination, however, a jury could conceivably infer that discrimination played a role in the denial of both promotions.
The Fisher inquiry is necessarily subtle and fact-specific. A plaintiff's evidence casting doubt on the employer's negative assessment of her performance, and thus creating a dispute about the employer's proffered reason for an adverse employment action, "may — or may not — be sufficient" to call for a jury trial on the ultimate issue of discrimination. Weak evidence of pretext. coupled with the weak inference stemming from plaintiff's prima facie case, will not be enough to satisfy a reasonable factfinder that the real reason for the employer's decision was a form of prohibited discrimination. See, e.g., Banez v. New York Foundling Hosp., No. 98 Civ. 518 (GEL), 2001 WL 1035142, at *6 (S.D.N.Y. Sept. 7, 2001); Powell v. Consolidated Edison Co. of New York, No. 97 Civ. 2439 (GEL), 2001 WL 262583, at *10-*11 (S.D.N.Y. Mar. 13, 2001). Stronger evidence of pretext, coupled with other evidence from which discrimination could be inferred, will call a different conclusion.
Vargas's case is sufficient to call for trial. First, her evidence of pretext consists not merely of her own claims of adequate performance, but affirmative evidence that the real reason for her lack of advancement was some kind of stereotyping rather than poor performance. Moreover, defendant's evidence in support its purported negative performance ratings is hardly overwhelming, and its reliance on qualifications that are not officially criteria for promotion could be seen by a reasonable jury as further evidence of pretext. Second, Vargas was not simply not selected for a position, but was discouraged from applying and told that she could not be trained for the position, even though there is evidence that one of the persons hired was in fact designated a trainee. This evidence, if credited, casts further doubt on Chubb's credibility, and weakens the argument that those selected were better qualified; a jury could find that plaintiff was categorically excluded without even being compared to the other candidates. Third, Vargas offers at least some evidence of anti-minority animus on the part of the key decision-maker that, taken together with the evidence suggesting that plaintiff was confined to lower-ranking positions by some form of stereotype, provides further support for the hypothesis that Vargas's ethnicity played a role in her exclusion. While this evidence is hardly overpowering, given the frequently covert and coded nature of prejudice in the workplace, it is sufficient to require a trial on the merits of plaintiff's claims.
Resolving the disputed issues of fact surrounding Vargas's job performance, her attempts to interview for the promotions. and the reasons that she was not considered for either position, will involve questions of credibility and inference, which must be decided by a jury.
CONCLUSION
For the reasons set forth above, defendant's motion for summary judgment is denied.
In accordance with the Court's Individual Practices in Civil Cases, a joint pretrial order is due within 30 days of the filing of this opinion, unless the parties notify chambers within that period that they agree that the case should be referred for mediation or for a settlement conference before a magistrate judge.
SO ORDERED.