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Esther v. American International Group, Inc.

United States District Court, S.D. New York
Feb 22, 2001
No. 99 Civ. 1334 (AGS) (S.D.N.Y. Feb. 22, 2001)

Opinion

No. 99 Civ. 1334 (AGS)

February 22, 2001


OPINION AND ORDER


In this action, plaintiff Esther Lee ("Lee") alleges that she was demoted and that her employment was terminated on the basis of her age and race, alone or in combination with her gender. She brings this employment discrimination action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. Currently before the Court is defendants' motion for summary judgment. For the reasons set forth below, the motion is granted.

I. Factual Background

The following facts are undisputed unless otherwise noted.

Lee, a Chinese-American woman, was born in Hong Kong in 1948 and is currently a resident of New Jersey. Defendant American International Group, Inc. ("AIG") is a corporation organized and existing under the laws of Delaware with its principal place of business in New York.

AIG is the parent company of the other defendants. The identification of the specific corporate defendant or defendants who would be liable to Lee is unnecessary on this motion for summary judgment. For ease of reference, all defendants are referred to as "MG."

Lee joined MG as an accountant in 1973, working in the Real Estate Accounting Group. (Defendants' Rule 56.1 Statement of Undisputed Material Facts ("Def. 56.1") ¶ 1; Plaintiff's Rule 56.1 Statement of Disputed Material Facts ("Pl. 56.1") ¶ 1.) The majority of her work consisted of accounting tasks related to the management of facilities, that is, properties that AIG companies either owned or operated. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) In 1978, Lee was promoted to assistant controller, and, according to Lee, although she still worked principally in facilities management, she gained additional supervisory responsibilities. (Pl. 56.1 ¶ 2; Lee Aff. ¶ 15.) Lee is not a Certified Public Accountant ("CPA") and never has tried to become one. (Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30.)

Defendants refer to the Real Estate Accounting Group as the Accounting Department. Lee states that she began working in this Group upon its creation in 1975. (Affidavit of Esther dated Oct. 27, 1999 ("Lee Aff.") ¶ 9.)

In 1992, Kevin Fitzpatrick ("Fitzpatrick"), who was president of an MG subsidiary and whose job was to invest company assets in real estate ventures, assumed control of Lee's team of accountants within the Real Estate Accounting Group, which at that time was directed by Gary Fogel ("Fogel"). (Def. 56.1 ¶¶ 5-7; Pl. 56.1 ¶¶ 5, 7; Fitzpatrick Dep. at 5 1:2-53:3.) Fitzpatrick told the Group that its performance needed to improve and, in 1994, he terminated Fogel's employment for poor performance. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.) Fogel was replaced by Joel Hammer ("Hammer"), who was hired out of a large accounting firm, KPMG Peat Marwick, where he had been Senior Audit Manager. (Def. 56.1 ¶¶ 13-14; Pl. 56.1 ¶¶ 13-14.) Between Fogel's dismissal and Hammer's commencement as controller, Lee performed the duties of controller. (Lee Aff. ¶¶ 18, 21; Fitzpatrick Dep. at 199:17-200:10.) Hammer, who is more than 10 years younger than Lee, started as Vice President and Controller in December 1994. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13.)

The subsidiary of which Fitzpatrick was president eventually became defendant AIG Global Real Estate Investment Corp. (Fitzpatrick Dep. at 21:10-20.)

In his plan of reorganization, written shortly after he started, Hammer defined his mission as "transform[ing] the accounting department from a 'bookkeeping group to an operation focused on accounting and financial issues.'" (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15.) Hammer sought to create a flat organizational structure whereby everyone in the Group reported to him. (Defendants' Brief in Support of Motion for Summary Judgment ("Def. Mem.") at 18.) Also, under Hammer, the Real Estate Accounting Group began performing more accounting for investment properties, and comparably less accounting for facilities. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.) Accounting for investment properties consisted of review and analysis of the financial statements and budgets that were performed by on-site property managers. (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19.) With this shift in concentration, the members of the Real Estate Accounting Group, including Lee, were required to learn new computer, accounting, and analytical skills, and because of the frequent contact with third-party property managers, communication skills took on an added importance. (Def. 56.1 ¶¶ 20-21, 23-28; Pl. 56.1 ¶¶ 20-21, 23-28.) In general, Lee stated that accounting for investment properties was more challenging than accounting for facilities. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.)

Lee alleges that many of her supervisory responsibilities were "stripped" immediately upon Hammer becoming controller. (Pl. 56.1 ¶ 63 (citing Lee Aff. ¶¶ 22-24, 32-37); Lee Dep. at 315: 12-316: 19.)

Hammer's plan of reorganization also assessed the performance and potential of the accounting personnel he supervised. Hammer noted that, under Fogel, "[t]he department suffered from a lack of proper guidance and direction." He stated that he "intend[ed] to indicate the need for change," and that as part of such change, "people need to be accountable for properties, companies, or areas to which they were assigned," and that "those who display a willingness to assume greater responsibility will be rewarded and will be in a better position to advance." (Plan to Reorganize Accounting Department, Hammer Ex. 4, at 2.) With regard to Lee in particular, Hammer noted that while she had "an excellent grasp on the issues and problems associated with the real estate entities . . . she suffer[ed] from a lack of support from subordinates, poor guidance from her prior supervisor, and language difficulty," which "prevent[ed] her from functioning in a supervisory role and keeping site [sic] of the big picture." (Id.) Hammer recommended that Fitzpatrick hire another assistant controller by late winter 1995. (Id. at 4.) Hammer nevertheless stated that he envisaged Lee in a "supervisory," "high level" role, "handling all aspects of property accounting . . . and functioning as the primary contact to discuss the day to day issues with the property and asset managers." (Id. at 3.) She would be supported by two other real estate accountants, Vinh Luong ("Luong") and Cynthia Mui ("Mui"), both of whom are of Asian descent. ( Id.) Hammer characterized Luong as "deserving" of the new opportunity, and Mui as fulfilling an administrative role in the short term, but, over the long term, was more suited to transfer to another department because she was "lacking self confidence and language skills." (Id.)

In an April 1995 memorandum to Fitzpatrick, Hammer discussed inter alia, each of those three employees, and was critical of their performance as of that date. He opined that Luong needed to be replaced because of his lack of desire to improve; that Mui's deficient language skills made it impossible for her to continue in the group; and while Lee was "loyal, dedicated, [and] understands the nuts and bolts of MG administrative items," (i) her language skills were a "big problem", (ii) her computer skills were "adequate at best", and while (iii) she could probably be taught over time, (iv) he "question[ed] her role in the department — long term." (Memorandum from Joel Hammer to Kevin Fitzpatrick dated April 25, 1995, Hammer Ex. 5.) Hammer expressed the same criticism in a May 1995 memorandum to MG's controller and audit department, in which he recommended that someone work with Lee "to determine if she will be able to raise her standards and properly function as either an assistant controller or accounting manager." (Memorandum from Joel Hammer to Vince Cantwell and John Casale, Hammer Ex. 6.)

Lee's two formal performance reviews, prepared by Hammer in June 1995 and May 1996, also reflected Lee's deficient, and declining, performance. The June 1995 review, which encompassed periods prior to and during Hammer's tenure as controller, (Fitzpatrick Dep. at 198:25-200:10), contained positive comments with regard to Lee's ability to handle multiple projects at once, her performance in the absence of a controller, her ability to manage other staff members, and the planning, organization, and timeliness of her work. (Lee Ex. 18.) However, the review also recommended that Lee further develop her computer, tax, and accounting skills, assist with the development of administrative controls within the department (e.g., a filing system), and improve her workpaper documentation. ( Id.) Overall, Hammer gave Lee a "3" on a scale of "1" to "5," with "1" being the highest, which meant that Lee "Meets Expectations." (Def. 56.1 ¶¶ 38, 40, 45, 48; Pl. 56.1 ¶¶ 38, 40, 45.) According to Hammer, "3" is the "lowest acceptable rating" and is equivalent to a "C" grade. (Hammer Dep. at 350:21-352:2.) According to MG policy, a "3" is the minimum grade required for a raise, or a transfer to another department. (Hammer Dep. at 351:18-352:2; Def. 56.1 ¶ 77; Pl. 56.1 ¶ 77.) Although the May 1996 review maintained Lee's overall rating of "3," the accompanying comments were decidedly more negative. Basing his comments on the designated goals for improvement set by the June 1995 review, Hammer noted that, while Lee had made progress and had demonstrated improvement, she lacked an advanced knowledge of the Microsoft Excel computer program and was still completing manual spreadsheets, needed to be more proactive with respect to ideas and implementing changes, and needed to focus more on documentation, organization and presentation. (Lee Ex. 20.) The May 1996 review also lowered Lee's rating for communication skills, and noted that Lee would "continue to work on this area" through courses and self-help. ( Id.)

According to Hammer, he was trying "to send a message that there were some performance issues, but I wanted her to keep her head high," and he did not want "to destroy her from a morale standpoint." (Hammer Dep. at 539:4-6, 15-18.)

Lee was given a raise in both 1995 and 1996, but merely a "below average raise" in 1996. (Def. 56.1 ¶ 49; Pl. 56.1 ¶¶ 49, 62.) Lee viewed the evaluation and raise that she received in 1996 to be unfavorable. (Def. 56.1 ¶ 62; Pl. 56.1 ¶ 62.) Further, in both reviews, Hammer recommended that Lee (i) develop her computer skills by,inter alia taking computer courses, (ii) take a higher level accounting course, and (iii) take a communications course. (Def. 56.1 ¶¶ 42, 47, 49; Pl. 56.1 ¶¶ 42, 47, 49; Lee Exs. 18, 20.) According to Lee, between 1995 and 1996, she took courses in real estate investment analysis, fixed asset management software, and English language, and between 1996 and 1997 in computers and communications. (Pl. 56.1 ¶¶ 42, 47.) However, during the entire period during which she worked under Hammer, from 1995 through 1997, Lee failed to take a higher level accounting course. (Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44; Lee Dep. at 334:11-335:4.)

Hammer's subsequent outline of his business plan in August 1996 reflected his continued displeasure with Lee's performance. Specifically, he reported to Fitzpatrick that Lee's work was "poorly organized" and "unacceptable, given her level," that "she does not have a good handle on technical issues, " "struggles with the accounting software," and "has poor language skills." Overall, he was "pessimistic about her long range potential." (Def. 56.1 ¶ 50; Pl. 56.1 ¶ 50; 1997-1999 Business Plan, Hammer Ex. 9.)

At a certain point in 1996, Hammer transferred some of Lee's responsibilities to two employees in the Group, Caryn Lombardi ("Lombardi") and Cherie Musheno ("Musheno"), both of whom were Caucasian and younger than Lee. Lombardi, a CPA who was hired out of KPMG Peat Marwick in May 1995, and Musheno, a CPA who was hired out of KPMG Peat Marwick in April 1996, subsequently expressed concern about Lee's performance. ( See Hammer Ex. 9 (setting forth proposal for restructuring the Group).) Specifically, Lombardi, observed certain errors in an analysis of leases for MG properties at 80 Pine Street in New York, over which Lee had accounting responsibility. (Def. 56. 1 ¶ 51, 55; Lee Dep. at 320:18-321:4.) Lombardi found inter alia that (i) tenant improvements performed at the site were neither properly accounted for nor properly billed, and (ii) certain tenants were being overcharged for space. (Def. 56.1 ¶ 55.) Musheno, in auditing the books of another set of properties, AIG Lodging, on which Lee had worked, (i) found an error of $320,000, (ii) could not substantiate the balances to "figure out what was going on in the file," and (iii) found that Lee had failed to account for a $1.5 million depreciation expense. (Def. 56.1 ¶¶ 52, 56-59.) Further, when Lee turned over the AIG Lodging file to Musheno, she stated in a memorandum that there were some items "that I am working on or plan to do so within the next few days"; after she failed to complete those items, Lee stated that her memorandum had meant that Musheno was to complete those items. (Def. 56.1 ¶¶ 60-61; Pl. 56.1 ¶¶ 60-61.)

While Lee acknowledged in her deposition testimony that she had responsibility for the site at the time of the relevant tenant improvements, in her submissions on the instant motion Lee attributes the error to Luong. (Pl. 56.1 ¶¶ 54-55.)

In her submissions on the motion, Lee denies making the errors and, in doing so, attacks Musheno's credibility. (Pl. 56.1 ¶¶ 56-59.) It should also be noted that Hammer's performance review of Lee concerning AIG Lodging, which Lee says supports her view that she made no errors on that account, was written before Musheno discussed the $1.5 million error with management, not after such error as Lee contends. (Pl. 56.1 ¶ 59; Lee Ex. 20; Musheno Dep. at 113:24-131:17, Musheno Ex. 12.)

According to Lee, she "concluded from . . . the [May 1996] review, Mr. Hammer's systematic transfer of her functions to his younger, non-Asian hires, and his emphasis on superficial criticisms of her memos, that [Hammer] did not want her in his department. (Pl. 56.1 ¶ 64 (citing Lee Aff. ¶¶ 32-37, 42, 48.)) Lee subsequently: (i) communicated to Fitzpatrick her desire for a transfer, in particular to work more in facilities management, as she had done previously; (ii) presented Fitzpatrick with a list of personal qualifications, which included her fluency in Chinese language, and her familiarity with the Chinese real estate market in the United States and the manner in which the Chinese do business abroad; and (iii) sought the support of a Chinese member of MG's board of directors to find another position, because the director was Chinese. (Def. 56.1 ¶¶ 65, 66, 68-71; Pl. 56.1 ¶¶ 65, 66, 68-71; Lee Exs. 21-22; Hammer Dep. at 235:19-237:3.) Connie Miller ("Miller"), the vice president and head of human resources for MG's asset management business, (Miller Dep. at 10:5-13), subsequently located a potential marketing job for Lee at an AIG affiliate, China America Insurance Company ("China America"), which markets insurance products to Asian-owned businesses. Fitzpatrick agreed to pay Lee's salary for six months at China America, because it did not have the budget for another employee. (Def. 56.1 ¶¶ 79-80; Pl. 56.1 ¶¶ 79-80.)

Lee asserts that she told Fitzpatrick that she sought a transfer only if Hammer no longer wanted her in the department, and states in conclusory fashion that Miller's efforts to locate another position for her demonstrates that Hammer indeed wanted Lee to leave. (Pl. 56.1 ¶¶ 65, 67, 69; Lee Aff. ¶ 49.)

After Lee requested a transfer, Hammer, on the advice of Miller, decided not to provide Lee with further written warnings concerning her poor performance because that could affect Lee's ability to transfer. (Def. 56.1 ¶ 73; Pl. 56.1 ¶ 73; Hammer Dep. at 237:10-16.) Indeed, Lee was not given a formal performance review in 1997. (Lee Aff. ¶ 60.) Hammer also noted that it would be difficult to effect a "position elimination," which would guarantee Lee severance pay, if Lee was given such additional warnings. (Def. 56.1 ¶ 76; Pl. 56.1 ¶ 76; Miller Ex. 11.) In a meeting with Miller and Hammer on May 15, 1997, Hammer told Lee that her position of assistant controller was eliminated due to a reorganization of the department. (Def. 56.1 ¶ 82; Pl. 56. 1 ¶ 81; Def. Mem. at 17-19.) Lee was then presented with three options: (i) interview for the job at China America; (ii) leave AIG with 24 weeks of severance pay and utilize outplacement assistance; or (iii) remain in the Real Estate Accounting Group as a senior accountant with her salary frozen until other senior accountant salaries became comparable to hers. (Def. 56.1 ¶ 81; Pl. 56.1 ¶ 81; Lee Exs. 32, 36.) Lee ultimately chose the third option and remained in the Group as a senior accountant. Miller nevertheless advised Lee in a memorandum dated June 3, 1997 that "the management has agreed to honor your severance eligibility if after 6 months you are unhappy with the assignment or if they determine that your performance is not satisfactory." (Def. 56.1 ¶ 85; Pl. 56.1 ¶ 85.) The parties acknowledge that Lee understood that her employment could be terminated, with severance pay, if after six months Hammer was not satisfied with her performance. (Def. 56.1 ¶ 88; Pl. 56.1 ¶ 88.) In his August 8, 1997 business plan, Hammer noted that Lee had been given a "change in job title" from assistant controller to senior accountant. (Def. 56.1 ¶ 92; Pl. 56.1 ¶ 92; Hammer Ex. 42.)

The position at China America also offered the possibility of 24 weeks of severance pay, should Lee not succeed in that position. (Lee Ex. 36.)

After Lee became a senior accountant, her responsibilities were further reduced. Some of her duties were reassigned to Luong and others to Tracy Bernowitz ("Bernowitz"), a CPA who was hired as a senior accountant in June 1997. (Def. Mem. at 20 n. 16; Lee Aff. ¶¶ 75, 77; Affidavit of James J. Oh dated Nov. 8, 1999 ("Oh Aff."), Ex. B.) Musheno assumed the responsibility of reviewing Lee's work. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Mem.") at 18; Def. Mem. at 18.) This hierarchical change, among others, was reflected in a formal reorganization plan in July 1997. (Accounting Department, AIG Real Estate, Plan of Reorganization, Hammer Ex. 41.) According to Musheno's deposition testimony, she found Lee's work to be substandard, and was frustrated by the quality of Lee's written and oral communication skills. (Def. 56.1 ¶¶ 89-91; Pl. 56.1 ¶¶ 89-91.) Hammer also reported in his August 8, 1997 business plan that Lee "seems to have the most problems with her work," despite having the smallest workload. (Def. 56.1 ¶ 93; Pl. 56.1 ¶ 93.) On October 28, 1997, on the basis of deficiencies in Lee's work product after she became senior accountant, Hammer sent an e-mail to Fitzpatrick recommending Lee's termination for performance reasons. (Def. 56.1 ¶¶ 94-95; Pl. 56.1 ¶¶ 94-95.) On January 9, 1998, Hammer and Miller informed Lee that she was terminated, effective that day, on the ground that Hammer was dissatisfied with her performance. (Def. 56.1 ¶¶ 97-98; Pl. 56.1 ¶¶ 97-98.) Miller subsequently advised Lee that, in accordance with their discussion in June 1997, Lee was eligible for 24 weeks of severance pay and outplacement assistance. (Def. 56.1 ¶ 99; Pl. 56.1 ¶ 99.) According to the current record, neither Luong nor Mui were ever terminated from the Real Estate Accounting Group.

An employee fired for poor performance is ineligible under AIG policy to receive severance pay unless an appropriate official so authorizes. (Def. 56.1 ¶ 101; Pl. 56.1 ¶ 101.) Miller instructed the payroll department to code Lee's termination as a "job elimination" to ensure that Lee would receive severance pay, which Miller considered to be the "humane" alternative. (Def. 56.1 ¶¶ 75, 100; Pl. 56.1 ¶¶ 75, 100.) Fitzpatrick, apparently an appropriate official under AIG policy, also agreed to pay Lee severance. (Def. 56.1 ¶ 102; Pl. 56.1 ¶ 102.) Lee subsequently received severance pay until July 3, 1998. (Def. 56.1 ¶. 104; Pl. 56.1 ¶ 104.) The instant action followed.

Lee contends that Miller proposed position elimination "because she was a human resources specialist who understood that a position elimination sounds less discriminatory than firing an employee with a 24-year record of performing her job to the satisfaction of her supervisors." (Pl. 56.1 ¶ 75.)

There is no indication in the record of the identity of Lee's replacement, if any.

II. Discussion

A. Summary Judgment Standard

A district court may grant summary judgment only if it is satisfied that "there is no genuine issue as to any material fact and, the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, which may be satisfied if it can point to the absence of evidence necessary to support an essential element of the non-moving party's claim. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, the facts are construed in the light most favorable to the non-movant, and all inferences and ambiguities are resolved in the non-movant's favor. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994) (citations omitted);Tierney v. Davidson, 133 F.3d 189, 192 (2d Cir. 1998).

If the moving party meets its burden, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. See Kolp v. New York State Office of Mental Health, 15 F. Supp.2d 323, 326 (W.D.N.Y. 1998). When reasonable minds could not differ as to the import of the proffered evidence, then summary judgment is proper. See Anderson, 477 U.S. at 250-52; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Moreover, "conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

B. Title VII Claims

In her First Amended Complaint, Lee alleges that she was demoted and her employment was terminated on the basis of her age and race, alone or in combination with her gender, in violation of the ADEA, Title VII, Section 1981, the New York State Human Rights Law, and the New York City Human Rights Law. (First Amend. Compl. ¶¶ 43-83.) The framework for determining employment discrimination is equivalent under each of these statutes. See James v. New York Racing Assoc., 233 F.3d 149, 153-54 (2d Cir. 2000).

Plaintiff presses two sets of claims: the first three claims, brought pursuant to the ADEA, the New York State Human Rights Law, and the New York City Human Rights Law, are for "discrimination on the basis of age, alone or in combination with race and/or sex"; the remaining four claims, brought pursuant to Title VII, Section 1981, the New York State Human Rights Law, and the New York City Human Rights Law, are for "discrimination on the basis of race, alone or in combination with age and/or sex."

A "minimal" prima facie case of employment discrimination requires a showing of(i) membership in a protected class, (ii) qualification for the position, (iii) an adverse employment action, and (iv) preference for a person not in the protected class. See id. (construing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If the plaintiff makes out the prima facie case, a presumption of discrimination arises. This shifts the burden of production to the defendant to proffer a nondiscriminatory reason for its challenged action or actions. See id. at 154. If the defendant provides such a nondiscriminatory reason, the presumption of discrimination is eliminated. See id. The burden of persuasion remains with the plaintiff at all times; ultimately it is the plaintiffs responsibility to convince the trier of fact that illegal discrimination occurred. See id. Thus, if the defendant proffers a nondiscriminatory reason for his actions and the plaintiff cannot "point to evidence that reasonably supports a finding of prohibited discrimination," the defendant is entitled to summary judgment. Id. (citing Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)). Evidence that the employer's proffered explanation is false "may or may not be sufficient to sustain a finding of discrimination." Id. at 156-57. The plaintiff must show that the evidence in the case, considered in its entirety, supports a reasonable inference that unlawful discrimination took place. See id. at 156 (construing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)).

In this case, it is undisputed that Lee has set forth a prima facie case for discrimination based on two adverse employment actions: (i) her demotion from assistant controller to senior accountant in May 1997, and (ii) her termination from employment in January 1998. (Def. Mem. at 14; Pl. Mem. at 3.) Defendants have proffered a nondiscriminatory reason for each action: Hammer's reorganization with regard to the demotion, and Lee's poor performance with regard to the termination. (Def. Mem. at 15-19, 21; Def. 56.1 ¶¶ 97-98.) Thus, the following discussion centers on Lee's ability to present evidence that would allow a reasonable jury to conclude that the demotion and/or termination resulted from prohibited discrimination.

In their reply papers, defendants assert that plaintiffs demotion claim is time-barred because plaintiff alleges that her supervisory responsibilities were removed immediately upon Hammer's arrival in December 1994. (Defendants' Reply Brief in Support of Defendants' Motion for Summary Judgment ("Def. Rep.") at 11-12.) The Court declines to dismiss plaintiffs demotion claim on this ground, because (i) defendants' argument was raised for the first time in its reply brief, see Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (finding that argument raised for first time in reply brief is waived), and (ii) defendants neither raised the affirmative defense of statute of limitations in their answer to the First Amended Complaint, see Fed.R.Civ.P. 8(c); Santos v. Dist. Council of New York City and Vicinity of United Brotherhood of Carpenters and Joiners of Am., 619 F.2d 963, 967 (2d Cir. 1980), nor indicated to plaintiff that they intended to raise it on summary judgment cf. Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 284 (2d Cir. 2000) (affirming district court's consideration of affirmative defense of res judicata first raised in summary judgment motion where "[d]efendants' untimely amendment did not unfairly surprise plaintiffs or impede the fair prosecution of their claims"); Block v. First Blood Assoc., 988 F.2d 344, 349-51 (2d Cir. 1993) (affirming district court's consideration of affirmative defense of statute of limitations first raised in summary judgment motion where plaintiffs did not show prejudice).

1. Falsity of Defendants' Proffered Explanations

Construing the facts in the light most favorable to Lee, and resolving all inferences and ambiguities in her favor, Lee has raised a question of fact with regard to the truth of defendants' proffered explanations for her demotion and termination.

With regard to her demotion, Hammer told Lee at the May 15, 1997 meeting that her position had been eliminated due to a reorganization in the accounting department. (Def. 56.1 ¶ 82; Pl. 56.1 ¶ 81; Def. Mem. at 18.) However, defendants assert that this structural change, whereby "Hammer created a flat organization by having everyone in the department report to him," occurred "soon after [Hammer] started," i.e. late 1994 or early 1995. (Def. Mem. at 18.) Lee was demoted approximately two years later. In an effort to avoid this inconsistency, defendants suggest, as Hammer asserted in his August 8, 1997 business plan, that Lee was merely subject to a "title change." In particular, defendants assert that the nature of Lee's job had changed much earlier because "from May 1995 on, Hammer believed that Lee was functioning at no higher than a senior accountant level." (Id.) Thus, defendants assert, Lee was simply given a title in 1997 "that reflected reality." (Id.) However, regardless of his view of Lee's position as of May 1997, Hammer did not suggest that his action constituted a title change either in his May 14, 1997 memorandum to Fitzpatrick justifying the elimination of the assistant controller position or in his May 15, 1997 meeting with Lee. (Hammer Ex. 40; Lee Aff. ¶ 59; Def. 56.1 ¶ 82; Pl. 56.1 ¶ 81.) Moreover, in the May 15, 1997 meeting, Miller did not state to Lee that she was being offered the senior accountant position because Lee was already so functioning. Rather, Miller suggested that AIG policy required her to offer Lee the senior accountant position, and gave Lee that option along with two others that involved Lee leaving the department entirely. (Miller Dep. at 113:22-114:13; Lee Aff. ¶ 55); cf. Ebbin v. Indep. Television Network. Inc., No. 95 Civ. 10097, 1997 WL 441943, at *4 (S.D.N.Y. Aug. 5, 1997) (finding that question of fact existed as to the true reason for plaintiffs dismissal). The title change line of argument also ignores changes in the substance of Lee's duties after June 1997, in particular the increase in supervision and oversight from her coworkers such as Musheno. Finally, there is an inherent inconsistency in defendants' acknowledgment that Lee has asserted a prima facie case, which necessarily implies a demotion, and their reference to the May 1997 action as a "position elimination," "title elimination," or "title change," which suggests that Lee was not demoted. (Def. Mem. at 17-18, Def. 56.1 ¶¶ 82, 92.) Thus, the Court finds that a reasonable factfinder could conclude that Lee's demotion resulted from something other than Hammer's alleged departmental reorganization.

Defendants state that the change in the reporting hierarchy of the Real Estate Accounting Group resulted from an additional reorganization that occurred in July 1997. (Def. Mem. at 18-19; Hammer Ex. 41.) Such reorganization, which came approximately two months after Lee's alleged demotion, merely creates another issue of fact by casting doubt on defendants' assertion that plaintiffs position had been eliminated and that a reorganization had occurred in May of that same year. In addition, defendants' suggestion that the reason for Lee's demotion was poor performance, (Def. Mem. at 11 n. 9), further raises questions with regard to the true rationale for defendants' action.

With regard to her termination, Lee was told that she was terminated because of her poor performance during the six months between June 1997 and January 1998. (Def. 56.1 ¶¶ 97-98; Pl. 56.1 ¶¶ 97-98; Hammer Dep. at 332:9-333:23; Lee Dep. at 586:20-590:17.) Contrary to Lee's suggestion, the record supports a finding that Lee performed poorly during the period in question: she had been performing poorly in the three years preceding her demotion, and in its aftermath both Hammer and Lee's coworker-supervisors complained about Lee's work. Musheno found that Lee's work product and communication skills were substandard. Further, in July 1997, Hammer sent a memorandum to Lee complaining about a memo written by Lee which was "confusing and poorly worded," and criticizing the method Lee used to calculate certain income and expense items. (Memorandum from Joel Hammer to Esther Lee dated July 2, 1997, Hammer Ex. 52.) On October 13, 1997, Hammer informed Lee that certain work Lee had performed "was handed in too late for [Hammer] to do an effective review," and he urged that the necessary steps be taken to correct this problem, which had been recurring. (Lee Ex. 60.) In his October 28, 1997 communication to Fitzpatrick recommending Lee's termination, Hammer asserted inter alia that: Lee was of little use during the budget process; her review of a certain property was unacceptable, including entirely missing an erroneous classification of $300,000; her accounting estimates for her properties for the second and third quarters of 1997 were incorrect; her memoranda were poorly written; and she handed in work late. (Hammer Ex. 53.) Lee offers no evidence indicating that such reports were false or even inaccurate; she merely asserts, in conclusory fashion, that Hammer had decided to terminate her by May 1997. (Pl. Mem. at 12-13.) Even if Hammer believed that Lee should have been terminated prior to January 1998, and his October 1997 memorandum makes clear that he may have, this belief is irrelevant to the reasons for her termination, absent any evidence of discrimination.

However, defendants were less than completely forthcoming with Lee as to the mechanism by which her termination was accomplished. Specifically, Lee was not told that defendants coded her termination as a "job elimination," rather than a dismissal for poor performance. (Pl. Mem. at 15-16.) Defendants provide no explanation for why Lee was not informed. Moreover, defendants assert that because severance is not awarded to employees without an officer's authorization, Miller needed to designate Lee's termination as a "job elimination" in order to ensure that Lee received the severance package she had been promised. (Def. Mem. at 19.) However, the necessity of such coding is contradicted by Fitzpatrick's subsequent authorization of severance. Thus, despite the strong, and largely uncontroverted, evidence that Lee performed poorly during the relevant period, defendants' failure to inform Lee of the circumstances of her termination, and the inconsistencies associated with their internal reporting of such termination, might allow a reasonable factfinder to conclude that something other than poor performance was the reason for Lee's termination.

2. Evidence of Discrimination

Lee asserts that she has created a material issue of fact with respect to the existence of discrimination merely by (i) establishing a prima facie case, and/or (ii) raising an issue of fact as to whether defendants' proffered explanations for their adverse actions are false. (Pl. Mem. at 17.) This contention is unavailing. The Second Circuit inJames, construing the Supreme Court's decision in Reeves, held that a prima facie case, coupled with evidence of falsity of the employer's explanation, "may or may not be sufficient to sustain a finding of discrimination." James, 233 F.3d at 156-57. This case supports the views expressed in Reeves and James that certain discrimination claims should be withheld from a jury, even when questions of fact remain regarding a defendant's adverse actions. See Ebbin, 1997 WL 441943, at *4 (granting summary judgment despite defendants' "vacillation" regarding the grounds for plaintiffs dismissal, where plaintiff offered no evidence "permitting an inference of discriminatory conduct"). Lee has failed to present any evidence, apart from the claim of pretext itself, that suggests the prospect of prohibited discrimination, based on age, race, gender or a combination thereof. The Court considers Lee's arguments in support of her discrimination claims in turn.

First, and principally, Lee argues that Hammer pursued a "campaign" to transfer Lee's responsibilities to younger, non-Asian employees, some of whom were male. (Pl. Mem. at 17-18; Lee Aff. ¶ 24.) Specifically, Lee alleges that (i) Hammer stripped her of her supervisory duties immediately after joining the department, (ii) hired Lombardi and Musheno, (iii) eliminated Lee's assistant controller position and "disguised" her replacement in that role with Lombardi and Musheno, and (iv) assigned Lee's other duties to "the younger, non-Asian employees he favored," specifically to Lombardi and Musheno, and, after Lee's demotion, to Bernowitz and accountant Michael Maier, all of whom are Caucasian. (Pl. Mem. at 17-18; Lee Aff. ¶¶ 22-24, 31-37.) Lee further asserts that her work was funneled through Luong on the way to Maier in order to "disguise" that transfer. (Pl. Mem. at 18.)

The record reflects that Lee indeed supervised fewer people after Hammer became controller, and that several of her responsibilities were removed in 1996 and 1997. In particular, Lee had been performing the duties of controller prior to Hammer's arrival, and, Hammer testified at his deposition, Lee told him that virtually the entire staff had reported to her at one point. (Hammer Dep. at 71:13-19.) Moreover, as assistant controller before Hammer's arrival, Lee states that she reviewed the work of three employees: Luong, Mui, and Dennis Galligan, a senior accountant. (Lee Aff. ¶ 23.) After Hammer's arrival, Lee primarily supervised the work of Luong. (Hammer Dep. at 71:19-21; Lee Aff. ¶ 24.) However, nothing in the record indicates other changes to her position prior to 1996, when certain of her responsibilities in connection with AIG properties were transferred to Lombardi and Musheno. Then, after her demotion, Lee's duties were further reduced.

However, Lee's allegations of a "campaign" to transfer her duties to others because of her age, race and/or gender are conclusory, as they are supported only by her own affidavit. Nothing in the record raises an inference of discrimination regarding the transfer of Lee's responsibilities to her coworkers. Rather, the record reflects that (i) Hammer assumed certain of Lee's supervisory functions upon his arrival, in particular her review of work prepared by Mui and Galligan, and (ii) because Lee was performing poorly in 1996 and 1997, and given the objective qualifications and performance of certain of her coworkers, in particular Lombardi, Musheno, and Bernowitz, Hammer believed that these employees were better qualified to do jobs that had been handled by Lee. Under such circumstances, the transfer of Lee's duties would be expected, and is insufficient to raise an inference of discrimination.See De la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 22 (2d Cir. 1996) ("It is not discrimination to replace a qualified worker with a more qualified worker.") The fact that the some of the recipients of Lee's workload were younger or of a different race or gender, without more, is not enough to prove discrimination. See Fagan v. New York State Elec. and Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999) (stating that the replacement of an older worker with a younger worker or workers does not itself prove unlawful discrimination); O'Sullivan v. New York Times, 37 F. Supp.2d 307, 319 (S.D.N.Y. 1999) (granting summary judgment based on conclusory allegations of age discrimination, and stating that "[t]ypically, younger workers will replace older ones; this is an unremarkable phenomenon that does not, in and of itself, prove discrimination"); id. (noting that although replacement by a person outside of the protected class may satisfy the prima facie case, "it is not enough to create an issue of fact about pretext"). Moreover, the fact that Lee had 24 years of experience at AIG before her demotion, (Pl. Mem. at 24), is immaterial to the transfer of her duties to others in 1996 and 1997, given her poor track record after Hammer's arrival, when the nature of her work changed. See James v. Newsweek, No. 96 Civ. 0393, 1999 WL 796173, at *17 (S.D.N.Y. Sept. 30, 1999) (finding plaintiff's years of experience insufficient to "trump her employer's evaluations of the respective . . . skills" needed for her job).

Lee argues that her 24 years at AIG should all be considered together, stating in her affidavit that: "Given my long and well-reviewed tenure at AIG under the supervision of several managers, Hammer's own acknowledgement of my good performance, the recognition by Hammer's boss, Kevin Fitzpatrick, of my good performance, the raises, bonuses, and promotions I earned over the decades at AIG . . . it seems plain that my age, nationality, ethnicity, and gender played a part in the decisions by Hammer . . . to demote me and then fire me. (Lee Aff. ¶ 90.) Such contention is unavailing because it is unspecific and obfuscates the critical 1995-1997 period under Hammer. Further, Lee's contention that she had "over twenty years of excellent performance, excellent reviews, promotions and pay raises," is irrelevant to the extent it refers to her employment prior to Hammer's arrival, factually inaccurate to the extent it refers to her employment after 1994, and is insufficient to raise an inference of discrimination. (Pl. Mem. at 1.)

Second, Lee asserts that Hammer's first plan of reorganization and April 1995 memorandum, both of which were prepared shortly after his arrival, suggest discrimination because they show that Hammer "planned to rid his department of all three of his Asian staff members." (Pl. 56.1 ¶ 105 (citing Hammer Exs. 4, 5).) However, the plan of reorganization envisaged Lee in a supervisory role supported by Luong and Mui, and only suggests the possible transfer of Mui. (Hammer Ex. 4.) Hammer's April 1995 memorandum was, admittedly, more critical of all three employees, and suggested that each of them might not be suited to the Group. (Hammer Ex. 5.) However, the memorandum does not reasonably support a finding of discrimination because: (i) Hammer's criticism was unambiguously based on his opinion of the employees' work habits and skills; (ii) Hammer was highly critical of the other employees he discussed, who were white males; and (iii) Lee was the only one of the three Asian employees that was ever terminated, and her termination occurred nearly three years after the memorandum was composed.

Third, Lee suggests that Hammer committed race or national origin discrimination in criticizing her oral communication skills. In particular, drawing on Hammer's deposition testimony, Lee states that "Hammer's main objection to [her] oral communication skills was that she spoke with a Chinese accent." (Pl. 56.1 ¶ 106; Pl. Mem. at 20.) This contention is unsupported by the record. While Hammer acknowledged at his deposition that "[Lee] had an accent," he stated that her oral communication problems involved "more than just her accent," and that "[i]t's a complete package" in which "[h]er choice of words, the way she phrases things is [also] a part." (Hammer Dep. at 142:2-143:2.) Further, while Hammer criticized Lee's communication skills, he did not single out Lee's oral communication skills in his reports or performance reviews, and advised everyone in the Group to take communication courses to fit their needs. (Hammer Exs. 4, 5; Memorandum from Joel Hammer to Accounting department dated July 23, 1996 re Training Manual, Lee Ex. 17; Lee Aff. ¶¶ 39, 40.) Hammers alleged "unexplained aversion" to Lee speaking Chinese on the phone in her office is unrelated to his criticism of her oral communication skills, and does not indicate pretext. (Pl. Mem. at 20; Hammer Dep. at 707:18-24.) In addition, the fact that Hammer lowered Lee's performance rating for communication skills in the May 1996 review, despite his testimony that Lee's skills had not declined during this period, (Hammer Dep. at 552:2-10), reflects Hammer's judgment as to Lee's overall communication skills, not only her oral skills, and does not suggest that Hammer's ultimate decision to demote or terminate Lee was based on discriminatory motive. (Pl. Mem. at 21.)

Lee's suggestion that Miller discriminated against her by opining, inter alia that taking language classes would probably not benefit Lee, is also unavailing, because the assertion is supported only by Lee's own affidavit and, even if true, does not indicate any race-based animus. (Pl. 56.1 ¶ 107 (citing Lee Aff. ¶ 50).) Miller's alleged statement that Hammer told Miller that he did not like the way Lee spoke is inadmissible hearsay. (Id.) Moreover, Lee's personal belief that her language skills had always "seemed more than sufficient" to her employers is insufficient to create an issue of material fact as to the existence of discrimination in this case. (Lee Aff. ¶¶ 6, 43.)

Fourth, Lee suggests that defendants' proposed transfer of Lee to China America was discriminatory. (Pl. 56.1 ¶ 108; Pl. Mem. at 24.) However, Lee raised her national origin, her fluency in Chinese, and her connections to the Chinese community in the description of qualifications she gave to Fitzpatrick upon requesting a transfer, and sought the support of a Chinese member of AIG's board of directors to find an alternative job opportunity, because that director was Chinese. (Def. 56.1 ¶¶ 65, 66, 68-71; Pl. 56.1 ¶¶ 65, 66, 68-71; Lee Exs. 21-22.) China America markets insurance products to Asian-owned businesses. Given the close match between Lee's expressed preferences and China America's business activities, the proposed transfer was justified and reasonable, and does not suggest that either Lee's demotion or termination were performed for discriminatory reasons.

Fifth, Lee points to statements by Miller in support of her claim for age discrimination. In particular, citing only her own affidavit, Lee alleges that, in an August 1996 meeting, Miller discouraged her from applying to MG Global Investment Corp., stating that applicants to that corporation "were younger and more sophisticated" than Lee. (Pl. 56.1 ¶ 109 (citing Lee Aff. ¶ 68); Pl. Mem. at 23.) Lee also alleges that Miller's notes prepared before that meeting, which contained Lee's age and date of birth and made reference to Lee's possible departure from the accounting department, "constitute direct evidence of discrimination." (Pl. Mem. at 23.) The Court disagrees. The first statement is conclusory, as it is without support in the record and is expressly denied by Miller. (Affidavit of Connie B. Miller dated Nov. 5, 1999, ¶ 3.) Moreover, Lee fails to connect that statement, which was made in the context of Lee's potential transfer to another department, to Lee's demotion (which occurred nine months later) or her termination (which occurred sixteen months later.) See Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998) (stating that a "stray remark" by an employer, without more, does not constitute sufficient evidence to make out a case of employment discrimination); O'Connor v. Viacom. Inc., No. 93 Civ. 2339, 1996 WL 194299, at *4-*6 (S.D.N.Y. Apr. 23, 1996) (stating that stray remarks without demonstrated nexus to employment decision insufficient to establish pretext for discrimination); McCarthy v. Kemper Life Ins., 924 F.2d 683, 686 (7th Cir. 1991) (stating that "unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory [decision]").

Further, Musheno's alleged remark that Lee's use of the word "swingers" was an "old term" is not probative of discrimination because it neither suggests age-based animus nor is connected with the decisionmaker in this case. See McLee v. Chrysler Corp., 109 F.3d 130, 136-37 (2d Cir. 1997) (finding allegations of bias against an individual who was not a decisionmaker "provide no basis for imputing to [the decisionmaker] an invidious motivation for the discharge"); Kerber v. C.J. Winter Machine Works, Inc., 939 F. Supp. 213, 221 (W.D.N Y 1996) (granting summary judgment where supervisor's use of the term "archaic" to describe plaintiffs filing methods presented no evidence of age-based animus).

Sixth, Lee asserts that defendants' failure to warn her that poor performance could result in termination is evidence of pretext. (Pl. Mem. at 14-15; Lee Aff. ¶ 82.) This argument is unavailing. First, the record contradicts this assertion. It is clear that Lee's performance had been deficient for approximately three years prior to her termination, the facts of which Lee was plainly aware. The record reflects that the courses Lee took to improve her skills did not result in better performance, and that Lee notably failed to take a higher-level accounting course Hammer's request, on two occasions, to do so. At the time of her demotion in May 1997, Lee was told that she could be terminated if, after six months, Hammer remained dissatisfied with her performance. Over the next few months, moreover, Lee received two memoranda from Hammer complaining about her performance. (Lee Exs. 60, 63.) Second, a mere lack of notice of performance deficiencies is insufficient to defeat summary judgment on a discrimination claim. See Fagan, 186 F.3d at 134-35 (finding that decisionmaker's failure to notify plaintiff of performance deficiencies before termination would not allow a rational factfinder to infer that the articulated reason for the termination was a pretext for discrimination); Lapsley v. Columbia Univ., 999 F. Supp. 506, 521 (S.D.N.Y. 1998) (granting summary judgment where defendant had communicated his dissatisfaction with plaintiffs work to the human resources staff, despite the fact that plaintiff had not received any evaluations before being terminated). Third, Lee contends that the fact that defendants gave several express warnings to Don Taylor, a Caucasian male employee working under Hammer, is probative of discrimination. (Pl. Mem. at 14-15.) However, such comparison is unworkable because, the record reflects, Taylor and Lee were not similarly situated. Taylor (i) performed different functions than Lee, and (ii) received written warnings before he indicated a desire to transfer; Hammer ceased providing Lee with written warnings after she communicated such desire. (Def. Mem. at 16 n. 15; Pl. Mem. at 14; Def Rep. at 7); see Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997) (stating that for disparate treatment of similarly situated employees to be probative of discrimination, employees must be similarly situated in all material respects). Moreover, contrary to Lee's contention, (Pl. Mem. at 14), AIG's Personnel Policy Manual does not require specific warnings before dismissal. (Miller Ex. 24 at 1125 (recommending written warnings in certain cases, but stating that "each situation must be judged based upon the nature of the facts and circumstances involved" and that some situations may call for dismissal "without prior waming or discipline").

Lee argues that the inconsistency between her overall evaluation of "Meets Expectations" in the May 1996 performance review and Hammer's succeeding negative evaluations creates an issue of fact as to her performance, and therefore demonstrates pretext. (Pl. Mem. at 13-14.) However, as noted supra, the "Meets Expectations" rating, while acceptable, is not a positive evaluation; despite her assertion that her reviews were "excellent," (Pl. Mem. at 1), Lee herself indicated that the May 1996 review was unfavorable. (Pl. 56.1 ¶¶ 62-63; Lee Dep. at 352:10-353:8.) In any event, Lee's performance after the May 1996 evaluation and her termination was uncontroversially poor. Cf. Danzer, 151 F.3d at 56 (holding that a positive evaluation preceding an adverse employment action does not demonstrate discriminatory animus); Da Cunha v. Globo Int'l (New York) Ltd., No. 97 Civ. 7989, 1999 WL 38177, at *7 (S.D.N.Y. Jan. 28, 1999) (stating that "it would be perverse to find that, if a negative review is preceded by a positive review, the negative review is necessarily false") (citation and internal quotations omitted).

Whether Hammer informed Lee that the courses she took did or did not "fulfill his requirements" is irrelevant. (Pl. Mem. at 16; Lee Aff. ¶¶ 38, 40.)

III. Conclusion

For the foregoing reasons, the Court finds that, construing the evidence in the light most favorable to Lee, she has failed to set forth facts sufficient to support a reasonable inference that either her demotion or termination was the result of prohibited discrimination. Accordingly, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close the file in this action.

SO ORDERED.


Summaries of

Esther v. American International Group, Inc.

United States District Court, S.D. New York
Feb 22, 2001
No. 99 Civ. 1334 (AGS) (S.D.N.Y. Feb. 22, 2001)
Case details for

Esther v. American International Group, Inc.

Case Details

Full title:ESTHER LEE, Plaintiff, v. AMERICAN INTERNATIONAL GROUP, INC.; MG GLOBAL…

Court:United States District Court, S.D. New York

Date published: Feb 22, 2001

Citations

No. 99 Civ. 1334 (AGS) (S.D.N.Y. Feb. 22, 2001)