Opinion
No. 99 Civ. 1809 (HBP).
March 26, 2001.
OPINION AND ORDER
I. Introduction
Defendant Forest Pharmaceuticals, Inc. ("Forest") moves for summary judgment dismissing the amended complaint in this employment discrimination action. The parties have stipulated, to my exercising jurisdiction over this matter for all purposes, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the motion is granted, and the amended complaint is dismissed.
II. Facts
A. Plaintiff's Employment With and Termination by Forest
Plaintiff was hired by Forest as a sales representative in April 1991 and, during her tenure, was assigned to various territories in the Borough of Manhattan (Amended Comp. at ¶¶ 8, 10). At the commencement of her employment with Forest, plaintiff received training concerning Forest's policies for sales representatives and was aware that Forest considered a representative's sales ranking to be an important factor in evaluating the representative's effectiveness (Weiser Deposition Transcript ("Weiser Dep.") at 22, 28, 30, annexed as Exhibit E to the Affirmation of Roger Briton, Esq., dated June 22, 2000 ("Briton Aff."))
A principal part of plaintiff's duties as a sales representative was making personal visits to physicians within plaintiff's territory to promote the prescription and sales of Forest's products (Weiser Dep. at 34, Affidavit of Paul Giannini, sworn to June 26, 2000 ("Giannini Aff.") at ¶ 2). Ordinarily, a Forest sales representative performed her duties without direct, daily supervision. Instead, the sales representative was supervised through (1) weekly telephone calls with the Divisional Sales Manager, (2) periodic "field trips" during which a Divisional Manager would accompany the sales representative on her sales calls and critique her performance and (3) quarterly sales meetings (Weiser Dep. at 41-51; Giannini Aff. at ¶ 2). Paul Giannini was plaintiff's sales manager from September 1995 through her termination in September 1997 (Giannini Aff. at ¶¶ 1, 5)
Forest required its sales representatives to be physically within their sales territories between the hours of 8:00 a.m. and 5:30p.m.; if a representative had needed to be out of her territory during those hours, the prior approval of her manager was required (Briton Aff., Ex. F at A133). Plaintiff was given written notice of this policy in September 1993 (Weiser Dep. at 131; Briton Aff., Ex. F at A135). Plaintiff's requests to be out of her territory to attend to personal matters had never been denied (Weiser Dep. at 133-34; Giannini Aff. at ¶ 12).
Until 1997, plaintiff's performance was average and acceptable to Forest. Specifically, for the quarter ending June 30, 1996 plaintiff ranked 288 out of 499 sales representatives. (Weiser Dep. at 91; Briton Aff., Ex. F at A159). For the quarter ending September 30, 1996, plaintiff ranked 323 out of 493 sales representatives (Weiser Dep. at 92; Briton Aff., Ex. F at A160). And for the quarter ending December 31, 1996, plaintiff ranked 342 out of 490 sales representatives (Weiser Dep. at 93; Briton Aff., Ex. F at A161).
In July 1997, plaintiff received an annual performance appraisal which rated her product knowledge, selling skills and territory management as average. The appraisal was not completed because plaintiff's most recent sales figures were not then available. Accordingly, an overall rating for plaintiff was not prepared at that time (Giannini Aff. at ¶ 9; Briton Aff., Ex. F at A114). Plaintiff's manager did, however, advise plaintiff at that time that the sales data from the quarter ending March 31, 1997 indicated that plaintiff now ranked 438 out of 482 sales representatives, i.e., the lower half of the fourth quartile, and that Forest was concerned about plaintiff's declining performance (Giannini Aff. at ¶ 10; Briton Aff., Ex. F at A162; See Weiser Dep. at 93-94).
On July 21, 1997, plaintiff's supervisor learned from another Forest sales representative that plaintiff was seen outside of her sales territory during business hours on July 18, 1997. Plaintiff's supervisor called plaintiff to discuss the matter. Although plaintiff initially denied that she had been outside of her territory, she subsequently admitted that she had been out of her territory to visit her daughter's camp (Giannini Aff. at ¶ 11). A similar incident had occurred during the summer of 1996 (Giannini4 Aff. at ¶ 8; Weiser Dep. at 124). As a result of this incident and plaintiff's declining sales, plaintiff's supervisor conferred with Forest's Human Resources Director, determined that increased supervision of plaintiff was appropriate and sent plaintiff a memo expressing concern about her performance and identifying a program for intensified field trips (Giannini Aff. at ¶¶ 12-13; Briton Aff., Ex. F, July 21, 1997 Memo from Paul Giannini to plaintiff). This memo stated that plaintiff's supervisor would accompany her on sales calls on July 31 and August 1, 1997.
As a result of the July 31 and August 1 field trips, plaintiff's supervisor notified plaintiff of numerous deficiencies in her sales performance (Giannini Aff. at ¶ 14; Briton Aff., Ex. F at A73-75). On August 13, 1997, plaintiff was issued a formal, written warning and advised that she was being placed on probation for sixty (60) days (Giannini Aff. at ¶ 15; Briton Aff., Ex. F at A144-46). The memo also advised plaintiff that her supervisor would accompany her on additional field trips on September 3.and 4, 1997 (Giannini Aff. at ¶ 15; Briton Aff., Ex. F at A144-46). In addition, in late August, sales information for the two-month period ending May 31, 1997 indicated that plaintiff continued to rank in the fourth quartile. On August 25, 1997, plaintiff's supervisor sent plaintiff a memo advising her of her consistently declining sales and setting forth his expectations for the September 3-4 field trip (Giannini Aff. at ¶ 16; Briton Aff., Ex. F at A147). Plaintiff's supervisor subsequently learned that plaintiff's ranking for the three-month period ending June 30, 1997 had slipped to 470 out of 482 sales representatives (Giannini Aff. at ¶ 16; Briton Aff., Ex. F at A163)
Plaintiff's supervisor found plaintiff's performance during the September 3-4 field trip to be deficient, and advised her of the deficiencies in writing (Giannini Aff. at ¶ 17; Weiser Dep. at 190-92; Briton Aff., Ex. F at A142). Yet another field trip was planned for September 25-26, 1997.
Plaintiff's supervisor also found plaintiff's performance during the September 25-26 field trip to be unsatisfactory. Among other things, plaintiff failed to prepare a written daily call plan despite being instructed to do so. In addition, three of the four physicians scheduled for visits were not in their offices when plaintiff and her supervisor arrived (Giannini Aff. at ¶ 18; Weiser Dep. at 195-200). After consulting by telephone with Forest's Human Resources Director, plaintiff's supervisor terminated plaintiff on September 26, 1997 (Giannini Aff. at ¶¶ 18-19; Weiser Dep. at 201).
Plaintiff was forty-one (41) years of age at the time of her termination. Forest's counsel admitted at oral argument that plaintiff was replaced by younger employees.
My staff called counsel for both parties on March 7, 2001 in an effort to schedule oral argument for March 14, 2001. Counsel for plaintiff did not respond in any way to the March 7 telephone call, nor did he respond to subsequent telephone calls placed on March 8 and 9. Written notice of oral argument was mailed and faxed to both counsel on March 12, 2001, and, again, there was no response whatsoever from counsel for plaintiff. To date, counsel for plaintiff has never contacted my chambers in any way concerning oral argument.
Plaintiff's counsel did not appear for oral argument on March 14, 2001, and I heard oral argument on that date from counsel for defendant only.
B. Proceedings to Date
Plaintiff commenced this action on March 11, 1999. Plaintiff's initial complaint alleged a claim only for "gender-plus" discrimination. With defendant's consent, plaintiff served, but apparently never filed, an Amended Complaint in April 2000 which added claims for pure gender-based discrimination and age-based discrimination. The Amended Complaint alleges gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (Count I), age discrimination in violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Count II), gender-based discrimination in violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Count III), gender-based discrimination in violation of the New York City Administrative Code (Count IV) and age-based discrimination in violation of the New York City Administrative Code (Count V).
Both parties' papers in connection with the preset motion refer to the Amended Complaint and an Answer to the Amended Complaint has been filed by Forest. However, the Court's Docket Sheet in this matter does not reflect that any Amended Complaint was ever filed.
In her response to defendant's motion for summary judgment, plaintiff states:
Plaintiff does not oppose the instant motion, insofar as it seeks summary judgment on her straight gender and gender-plus claims. However, plaintiff does oppose the motion for summary judgment insofar as it seeks dismissal of her age discrimination claim.
(Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated August 5, 2000, at 2, n. 1). Thus, the only claim now in dispute is plaintiff's claim for age-based discrimination.
III. Analysis A. Subject-Matter Jurisdiction
Since the Amended Complaint does not actually allege a claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), plaintiff's lack of opposition to dismissal of the single federal claim actually asserted in the Amended Complaint technically permits the dismissal of the remaining state claims. See 28 U.S.C. § 1367(c)(3). Nevertheless, on the facts of this case, I believe it is appropriate to retain jurisdiction over plaintiff's remaining age discrimination claim.
First, plaintiff clearly intended to allege a claim under the ADEA; indeed, her brief in opposition to defendant's motion makes express reference to the ADEA. The omission of an express ADEA claim from her amended complaint appears to be due to her lawyer's error and was not an intentional, tactical decision.
Second, liability under the ADEA, the New York State Executive Law and the New York Administrative Code is analyzed under the familiar McDonnell Douglas analysis, Abdu-Brisson v. Delta Air Lines Inc., 239 F.3d 456, 466 (2d Cir. 2001), with which the judges in this District and Circuit have considerable experience. Thus, exercising jurisdiction will not require the resolution of subtle and novel questions of state law.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)
Third, the exercise of jurisdiction will further the interests of judicial economy and the parties' interest in resolving this dispute efficiently. Dismissal for lack of subject matter jurisdiction will, in all probability, result in either the filing of a Second Amended Complaint alleging a claim under the ADEA or the refiling of plaintiff's age claim in state court. Either course would only multiply the proceedings and transaction costs for the parties and either this Court or the New York State Courts with no reciprocal benefit.
Accordingly, I believe it is appropriate to retain jurisdiction and deem an ADEA claim to be alleged in the Amended Complaint.
B. Defendant's Motion Summary Judgment
The standards applicable to a motion for summary judgment are well established and require only brief review:
A party is entitled to summary judgment "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The existence of a factual dispute between the parties is only relevant if the particular fact is "material" (i.e., its resolution is necessary to achieve a final judgment on the merits). See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(c) precludes summary judgment if the dispute over the "material" fact is "genuine", in that there is sufficient evidence to allow a "reasonable jury" to "return a verdict for the nonmoving party." Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). While the Court must "resolve all ambiguities and draw all reasonable inferences against the moving party," it is clear that the "mere existence of an alleged factual dispute . . . will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-248, 106 S.Ct. 2505, See also Fran Corp. v. United States, 164 F.3d 814, 816 (2d Cir. 1999). It is up to the nonmoving party to show more than a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).Dimmie v. Carey, 88 F. Supp.2d 142, 144 (S.D.N.Y. 2000). See alsoKonikoff v. Prudential Ins. Co., 234 F.3d 92, 97 (2d Cir. 2000); Beatty v. Goord, 98 Civ. 2136 (RMB), 2000 WL 288358 at *1 (S.D.N.Y. Mar. 16, 2000); Cardozo v. Healthfirst Inc., 98 Civ. 3050 (RMB), 1999 WL 782546 at *1-*2 (S.D.N.Y. Sept. 30, 1999).
Summary judgment is "ordinarily inappropriate" in discrimination cases, in which the employer's intent and state of mind are in dispute.Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).See also Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994); Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). In discrimination cases:
summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. . . . There must either be a lack of evidence in support of the plaintiff's position, . . . or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error.Danzer v. Norden Sys. Inc., 151 F.3d 50, 54 (2d Cir. 1998). See Weber v. Parfums Givenchy Inc., 49 F. Supp.2d 343, 354 (S.D.N Y 1999) (same).
Although the central role of intent must occasion the use of caution in addressing a summary judgment motion made in a discrimination case, "`the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation.'" Abdu-Brisson v. Delta Air Lines Inc., supra, 239 F.3d at 466, quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Thus, the Court of Appeals for the Second Circuit has expressly "remind[ed the] district courts that the `impression that summary judgment is unavailable in discrimination cases is unsupportable.'" Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000), quoting McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994). See generally James v. New York Racing Ass'n. 233 F.3d 149 (2d Cir. 2000) (affirming grant of summary judgment in age discrimination case); Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) (same).
Claims of age discrimination under the ADEA are analyzed under the familiar McDonnell Douglas analysis:
Under this framework . . . a plaintiff must first establish a prima facie case of age discrimination. . . . Once the plaintiff has made out a prima facie case, the employer is obligate to offer a legitimate, nondiscriminatory business rationale for its actions. . . . If the employer articulates such a reason, the presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual and that age discrimination was the true reason for the adverse employment action.Abdu-Brisson v. Delta Air Lines Inc., supra 239 F.3d at 466 (citations omitted). As noted above, the same analysis is applied to age-based discrimination claims asserted under New York's Executive Law and New York City's Administrative Code. Abdu-Brisson v. Delta Air Lines Inc., supra, 238 F.3d at 466.
A plaintiff's burden under the first leg of the McDonnell Douglas test is not a heavy one.
"(I]n order to establish a prima facie case of age discrimination . . . a plaintiff must show (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination."Schnabel v. Abramson, supra, 232 F.3d at 87, quoting Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). See also Abdu-Brisson v. Delta Air Lines Inc., supra 239 F.3d at 466. The burden of establishing a prima facie case has been characterized as "minimal." Carlton v. Mystic Transp. Inc., supra, 202 F.3d at 134. See Galabya v. New York City Bd. of Ed., 202 F.3d 636, 639 (2d Cir. 2000); Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (describing the burden of production as de minimis.
In this case, plaintiff has adequately shown a prima facie case. Plaintiff was forty-one years of age at the time of her termination. Her five years of admittedly satisfactory performance satisfies the requirement that she possessed the qualifications for the sales representative position. There is no dispute that she was terminated. And the fact that she was replaced by younger employees is sufficient to satisfy the McDonnell Douglas prima facie case requirement that the adverse job action occurred under circumstances that give rise to an inference of discrimination. Schnabel v. Abramson, supra 232 F.3d at 87,citing Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir. 2000).
The record does not actually disclose the age of plaintiff's replacements. If they were only slightly younger than plaintiff, plaintiff may not even satisfy the prima facie case burden. See Tarshis v. Riese Org., supra, 211 F.3d at 38 ("[A]n inference of discrimination cannot be based on a plaintiff's replacement by another person who is only slightly younger. . . .") Since I am required to resolve all ambiguities in the record in plaintiff's favor, I assume that her replacements were sufficiently younger to sustain an inference of discrimination.
Turning to the second leg of the McDonnell Douglas analysis, Forest states that it terminated plaintiff as a result of her declining sales performance and her deficient performance during the August and September 1997 field trips. This explanation, and the evidence offered by Forest to support the explanation, more than satisfies defendant's burden at the second step. See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Thus, plaintiff must now offer evidence that the reason proffered by Forest was pretextual and that age-based discrimination was at least one of the factors that caused plaintiff's termination.
For the case to continue, the plaintiff must come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. The plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].'"Weinstock v. Columbia University, supra, 224 F.3d at 42, quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)
I do not mean to suggest that the McDonnel Douglas prima facie case, plus proof of pretext, is necessarily sufficient or insufficient to defeat summary judgment. It now seems clear that whether a plaintiff needs to offer evidence of discriminatory intent beyond proof that the employer's proffered nondiscriminatory reason is false depends on the strength of a plaintiff's prima facie case. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2108-09 (2000); James v. New York Racing Ass'n, supra 233 F.3d at 155-57.
In this regard, plaintiff has offered no evidence whatsoever that the non-discriminatory reasons proffered by Forest are pretextual. In opposition to defendant's motion, plaintiff has submitted (1) one Forest internal memorandum from 1994 describing plaintiff's sales territory as "insane" and "atypical," (2) selected reviews of plaintiff's performance, (3) six pages from plaintiff's deposition, (4) the transcript of an interview of Forest's vice president conducted by MSNBC in 1998, (5) a New York Magazine article concerning the sales tactics used by prescription drug manufacturers and (6) an unsigned and unsworn affidavit from plaintiff.
Items one, two, four and five do not address plaintiff's performance in 1997, are not responsive to the reasons proffered by defendant for plaintiff's termination and are, therefore, entitled to no weight. In addition, items four and five are hearsay. Item six is entitled to no weight because it is unsigned and unsworn. Thus, the deposition excerpt submitted by plaintiff is the only item of any evidentiary weight.
In the six pages of deposition transcript submitted by plaintiff, she testifies that her replacements were "much younger" than she was (Weiser Dep. at 279), that in general Forest hired young people as sales representatives (Weiser Dep. at 280-81) and that Forest tended to promote only younger sales representatives (Weiser Dep. at 283-84). Like the other materials submitted by plaintiff, none of these passages address the reasons proffered by Forest for plaintiff's termination and do not even create an issue of fact concerning her performance in 1997.
Plaintiff's failure to meet her burden under the third step of theMcDonnell Douglas analysis is a fatal flaw. As the Court of Appeals recently explained in Abdu-Brisson v. Delta Air Lines. Inc., supra, 239 F.3d at 469-70:
The Supreme Court illuminated (the nature of the plaintiff's burden under the third step of the McDonnell Douglas analysis) in Reeves, 530 U.S. 33, 120 S.Ct. 2097, 147 L.Ed.2d 105, and this Court recently had the opportunity to apply Reeves in the summary judgment context. See Schnabel, 232 F.3d at 83. In Schnabel, we interpreted Reeves to reject any categorical rule requiring age discrimination plaintiffs to offer, in addition to their prima facia case and evidence of pretext, further evidence that age discrimination was the actual motivation in order to satisfy their burden. See Id. at 90. Once a plaintiff has made a. showing that the defendant's asserted reason for the employment action was false, Reeves mandates "a case-by-case approach, with a court examining 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, 232 F.3d at 90 (quoting Reeves, 120 S.Ct. at 2106). However, Reeves in no way relaxed the requirement that plaintiffs make a showing that the defendant's proffered explanation was pretextual.
Having thoroughly reviewed the record before us, we can find no evidence to suggest that [defendant's] stated non-discriminatory reasons for the challenged employment actions were false. Therefore we are led to the conclusion that summary judgment was appropriate in this case.
As in Abdu-Brisson, the record here is devoid of any evidence whatsoever that the non-discriminatory reasons proffered by Forest are pretextual. Thus, plaintiff has failed to shoulder her burden under the third leg of the McDonnell Douglas analysis and summary judgment is, therefore, appropriate.
IV. Conclusion
Accordingly, for all the foregoing reasons, defendants motion is granted in all respects, and the Amended Complaint is dismissed.
SO ORDERED