Opinion
No. 04 Civ. 2308 (JSR).
February 14, 2005
MEMORANDUM ORDER
Plaintiff Emilie Tongalson alleges that her former employer, defendant Dreyfus Corp. ("Dreyfus"), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. Specifically, she claims that Dreyfus created a hostile work environment for her, wrongfully failed to promote her, and wrongfully terminated her in November, 2002, in material part because she was a woman, over 40 years of age, a Greek-American and/or disabled. Following discovery, Dreyfus moved for summary judgment on all claims, and on February 8, 2005, the Court issued an order that granted that motion in part and denied it in part. See Amended Order, 2/8/05. This Memorandum Order serves to reconfirm those determinations and briefly state the reasons therefor.
The pertinent facts, either undisputed or, where disputed, taken most favorably to plaintiff, are as follows. Tongalson began working at Dreyfus in May of 1980. Deposition of Matthew Perrone, 8/26/04 ("Perrone Dep.") at 163. By 1991, she was an assistant vice president for services and operations, at which time she took her first maternity leave. Deposition of Emilie Tongalson, 8/25/04 ("Tongalson Dep.") at 182. Her superior, Charles Cardona, repeatedly told her that she would not have an office when she returned. Id. at 192. While she was on leave, Cardona promoted two women without children to full vice president positions, even though plaintiff had more experience than either and had initially trained and supervised both. Tongalson Dep. at 176-78; Deposition of Charles Cardona ("Cardona Dep.") at 58-64. Cardona acknowledged that Tongalson deserved the promotion but believed she would not return from leave. Tongalson Dep. at 177-78. When Tongalson first returned in 1992, she was initially given reduced responsibilities, but by 1995 she had regained the lost duties. Tongalson Dep. at 178, 181-82. She then, however, took another maternity leave, id. at 281, during which time another full vice president position opened; but rather than promoting plaintiff, Dreyfus consolidated that position into another. Cardona Dep. at 59.
In 1999, Matthew Perrone was installed above Tongalson as senior director of institutional servicing. Tongalson was never considered for the position and was given no opportunity to apply for it. The only other candidate considered was a woman with no children. Id. at 32-39. Perrone had seven years less experience than plaintiff and no experience in plaintiff's division. Perrone Dep. at 9, 12. When plaintiff complained, Cardona told her she should be at home with her children like his wife. Tongalson Dep. at 191.
At the time Perrone was appointed, the three highest-ranking employees reporting to him were women (including plaintiff), Perrone Dep. at 77-78, and a fourth position at that level was open, id. at 185-86. One of the women departed in August 2000, leaving two vacancies, and, in addition, Perrone created two new positions at the same level. Perrone Dep. at 77-78, 186; Tongalson Dep. at 190, 225. To fill the two new positions and the two open ones, Perrone promoted four Italian-American men to plaintiff's level. Each of these four had less experience overall than plaintiff, who by then had worked at Dreyfus for 20 years, and in particular they had less experience as managers. Specifically, Peter Repole had worked at Dreyfus for seven years, Perrone Dep. at 136, Christopher Stallone for ten, Id. at 150-52, Mauro Consiglio for thirteen, id. at 150-52, and Daniel Anemone for thirteen, id. at 159-61.
In 2000, Tongalson and her new peers were all given a salary upgrade. Tongalson Dep. at 165-66. Tongalson was, however, highest paid of the directors in her division, receiving $90,000 while the others received $82,800. Id. at 170. By the time of her displacement in 2002, Tongalson's salary was $95,000, compared to the $87,800 made by the other directors. Declaration of Matthew Perrone dated 10/8/04, ¶ 13. In addition, plaintiff received a $19,000 bonus for her last year, compared to between $16,560 and $17,560 for the others. Id. ¶ 14. Tongalson, however, supervised 39 employees, whereas Repole supervised 17, Consiglio 15, Anemone six and Stallone two. Tongalson Dep. at 79, 223.
While working under Perrone, Tongalson received consistently "excellent" performance reviews. Perrone Dep. at 118; Tongalson Dep. at 199. Her reviews were better than those of Consiglio, Perrone Dep. at 147-48, and Anemone, id. at 155. While Tongalson in turn praised Perrone, Tongalson Dep. at 199-200, there were some frictions. On one occasion Perrone refused to authorize replacement of plaintiff's company cell phone, id. at 249-50. On several occasions, he did not answer her phone calls even though he was in his office, id. at 78-79. At one meeting, he suggested plaintiff refrain from saying anything. Id. at 60; Perrone Dep. at 237. Perrone often met behind closed doors with Repole and Stallone, and he excluded plaintiff from various meetings he held with the two of them and Anemone. Tongalson Dep. at 250. Plaintiff was excluded from certain business trips and from seeing clients as she had in the past, id. at 250-51. In July of 2002, Perrone had a planning review with every manager except plaintiff, id. at 255.
Tongalson was the only Greek-American manager in the office, while the others were Italian-American, id. at 243. Perrone nicknamed the Italian men "Stalloni," "Repoli" and "Anemoni,"id. at 223. In front of plaintiff's peers, he and other managers joked about Greek Easter occurring later than Catholic Easter, saying "Greeks are always behind," id. at 243-45, 247. Perrone would say Tongalson and a co-worker, Irene Pappas, knew nothing because they were Greek, id. at 245, and he referred to them as "dumb Greeks," id. at 259. The Italian-American managers constantly boasted that Italian cooking was the best in the world, id. at 244-45; Perrone Dep. at 232-33. Plaintiff also heard Jewish employees ridiculed for taking time off to observe Jewish holidays. Tongalson Dep. at 249.
Tongalson perceived Perrone as being "abrasive and condescending to women." Tongalson Dep. at 77. If a male manager called for him, he would pick up the phone right away, but if a woman called, he would not, id. at 77-78. Perrone reportedly told another female employee, Denise Thweatt, that she should be at home with her children, not at work, id. at 195. Thweatt was terminated in March, 2002. Perrone Dep. at 215. Charles Cardona, who was Perrone's boss, told plaintiff that his wife stayed home with her kids and that plaintiff should do the same, Tongalson Dep. at 281. Dan Anemone expressed similar sentiments to her about once a month, and Perrone did so often as well, id. at 279-82.
In June of 2002, Tongalson first learned she had a condition that eventually would be diagnosed as complex anal fistula, id. at 132-33. This was an opening between her rectal and vaginal areas that developed after an abscess drained internally, id. at 119-20. While receiving a series of diagnoses and evaluating her surgical options, plaintiff was on disability leave from June 13 through July 11, 2002 and then returned to work, id. at 131-32. On September 17, she had exploratory surgery, as part of which the diagnosis of complex anal fistula was confirmed, id. at 117, 137.
During this period, Perrone, in front of co-workers, often called Tongalson a "hypochondriac" for seeing multiple specialists regarding her anal fistula, id. at 152-54, 243. He suggested she should not see so many doctors, id. at 154-55; Perrone Dep. at 282, and asked her how often she was going to be out sick, Tongalson Dep. at 81. Once, when plaintiff called in sick, Perrone's secretary told her she had to come in for a meeting or be fired, and she complied, id. at 252-53. Anne Hall, who also was terminated in 2002 despite excellent performance reviews, Perrone Dep. at 56; Cardona Dep. at 96, was told by Perrone that she should resign because she was too old (she was 69) and because she went on disability too much, Tongalson Dep. at 158-60. Perrone and Cardona referred to plaintiff as "over-the-hill" on various employees' birthdays, id. at 260-61.
In November of 2002, plaintiff was laid off as part of a company directive to cut costs, leaving only five directors reporting to Perrone. Cardona Dep. at 138. Perrone made the decision to eliminate plaintiff's position, with Cardona concurring. Perrone Dep. at 163; Cardona Dep. at 127. At that time, she was 44 years old, Tongalson Dep. at 6, while Perrone was 37, Perrone Dep. at 7, Stallone was 34, Cardona Dep. at 113, and Repole was 39, id. at 114. Also eliminated in Perrone's division at that time were Ann Hall, who was then an assistant vice president one level below plaintiff, Perrone Dep. at 58-59, Peter Dyer, who was 40 years old, Cardona Dep. at 102-103, and reported to Stallone, Perrone Dep. at 174-75, and Joan Burnett, a secretary whose age is not identified in the record, see id. at 173, 175, 178; see also Transcript, October 18, 2004, at 18. Perrone told plaintiff that he needed to "protect" Chris Stallone's employment, Tongalson Dep. at 223.
According to the Complaint, Anemone was about 43 and Consiglio about 42, although no evidence of this appears to have been submitted in connection with this motion. See Compl. ¶¶ 48-49.
After her termination in November, Tongalson had an operation to repair her anal fistula. Recovery took four to six weeks, Tongalson Dep. at 116, 118, 139. Plaintiff continues to see her physician every six months to evaluate her condition, id. at 117, 139, and reports that, according to her physician, her condition is 70 percent healed, id. at 118. From June 2002 until February 2003, plaintiff was unable to engage in sexual intercourse or sit for more than ten to fifteen minutes at a time. Affidavit of Emilie Tongalson, sworn to 9/30/04, ¶¶ 43-44.
Plaintiff also was diagnosed with a mitral valve prolapse in 1999. Tongalson Dep. at 143. Because she has produced no evidence that this was at all related to her claims, the details of this condition are not reproduced here.
On or about July 1, 2003, Tongalson filed a discrimination claim with the New York State Division of Human Rights and with the Equal Employment Opportunity Commission ("EEOC"). She filed a supplemental claim with the same agencies on or about September 30, 2003. On or about January 15, 2004, the EEOC issued to the plaintiff a notice of her right to sue. Plaintiff filed this lawsuit on March 23, 2004.
Given this factual background, it is clear that some, but not all of plaintiff's claims must be dismissed as a matter of law. First, with reference to plaintiff's claims of disability discrimination, the Court concludes that plaintiff's claim of disability discrimination under the Americans with Disabilities Act ("ADA") must be dismissed, but that her parallel claim under New York law survives. As to the former, the ADA defines a disability as, inter alia, "a physical or mental impairment that substantially limits one or more of the major life activities of [the disabled] individual." 42 U.S.C. § 12102(2). In applying this definition, courts are to consider "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. 1630.2(j) (2). The interpretive guidelines issued by the EEOC state that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities," listing as examples "broken limbs, sprained joints, concussions, appendicitis, and influenza." 29 C.F.R. app. § 1630.2(j). See, e.g., Fagan v. United Int'l Ins. Co., 128 F.Supp. 2d 182, 185-86 (S.D.N.Y. 2001) (finding no disability where plaintiff was fired while unable to work for two months following knee surgery).
Plaintiff asserts that she was disabled by her complex anal fistula, which prevented her from engaging in sexual intercourse or sitting for more than fifteen to twenty minutes at a time for an eight-month period, and which still requires further evaluation of her condition every six months. In the case with facts closest to these, the Second Circuit ruled that a seven-month impairment of the ability to work, without any residual limitations, was of too short duration to qualify as a disability. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998). Although Tongalson argues thatColwell has no application here because it involved a plaintiff who was fired after the impairment ended, this distinction is irrelevant, because Colwell turned on interpretation of the same "substantially limiting" language in the ADA here in issue. If the duration of the limitation in question there was, as a matter of law, insufficient to constitute a disability under the ADA, the same should be true here. Here, plaintiff's impairment lasted only one month longer than that of the plaintiff in Colwell. Plaintiff has some residual limitations, but none that would themselves qualify as significant impairments or that prevent her from working. Accordingly, her ADA claim must be dismissed.
Plaintiff argues that the severity of her condition must be evaluated from the standpoint of what was known at the time of her firing, see Heilweil v. Mt. Sinai Hosp., 32 F.3d 718, 724 — 25 (2d Cir. 1994), and that at the time she had justifiable fears that she would need a colostomy bag permanently. The Court need not reach the question of whether this possibility would qualify as a disability, since there is no indication that defendant ever was informed of it. See Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 502 (N.D.N.Y. 2004) (stating that employer "cannot be held liable under the ADA unless, at the time of the relevant employment decisions, it had information that would have permitted a reasonable employer to conclude that [plaintiff] was disabled").
Plaintiff, however, also has a disability claim under New York's Human Rights Law, which has a somewhat more lenient definition of disability. Under that law, a plaintiff need only show an impairment that "prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques." N.Y. Exec. L. § 292(21) (a). In contrast to the ADA, the New York law "does not require identification of a major life activity that is substantially limited by an individual's impairment," Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 500 (N.D.N.Y. 2004), and thus the durational requirement of "substantially limited" that doomed plaintiff's ADA claim is not present. At the time of her firing, plaintiff's anal fistula both prevented the exercise of normal bodily functions and was demonstrable by medically accepted diagnostic techniques. Accordingly, plaintiff's claim of disability discrimination under New York's Human Rights Law survives summary judgment.
Second, all of plaintiff's hostile work environment claims, whether state or federal and whether on the basis of age, national origin, disability, or gender, must be dismissed. Any such claim requires proof of harassment "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citation and quotations omitted). Plaintiff's only evidence that she was harassed on the basis of age are is the flippant remarks made while celebrating the birthdays of other, younger employees to the effect that plaintiff was "over the hill." No reasonable juror could infer from such sporadic jokes that plaintiff was being severely or pervasively harassed because of her age. See Chandler v. AMR Am. Eagle Airline, 251 F. Supp. 2d 1173, 1184-85 (E.D.N.Y. 2004).
Only slightly more problematic are plaintiff's claims of a hostile work environment on the basis of national origin. While plaintiff's Italian-American supervisor and co-managers made sporadic (and offensive) jokes about her Greek-American origin — saying that "Greeks are always behind" and that she and Ms. Pappas were "dumb Greeks" — such statements, even when taken most favorably to plaintiff, fall well short of proving an abusive work environment or alteration in the conditions of employment.See Shabat v. Blue Cross Blue Shield of the Rochester Area, 925 F. Supp. 977, 982 (W.D.N.Y. 1996).
Similarly, plaintiff's claim of hostile work environment based on disability rests on nothing more than Perrone calling her a "hypochondriac" and criticizing her decision to see several doctors. This is not remotely sufficient. See Miller v. Taco Bell Corp., 204 F. Supp. 2d 456, 465 (E.D.N.Y. 2002).
As for the hostile work environment claim based on gender, it is true that various men in positions of authority, as well as plaintiff's peers, commented regularly that women with children belong at home, a statement that certainly could be viewed as offensive and discriminatory when made to a working woman. In addition, plaintiff asserts that Perrone was sometimes abrasive and condescending toward women and would not answer their phone calls. Still, this falls short of what would warrant any reasonable fact-finder in inferring there was an abusive work environment based on gender discrimination. There is no indication that plaintiff's conditions of employment were altered in any way by animus towards women; she was not given demeaning tasks to perform, and she was paid more than her male counterparts, not less. Plaintiff and her colleagues had nothing but praise for each other in their performance evaluations, and all the evidence in the record suggests that, while plaintiff had some legitimate complaints about her work environment, until her firing she did not perceive it as hostile. Accordingly, all of plaintiff's claims based on hostile work environment must be dismissed.
Third, all of plaintiff's claims regarding the company's failure to promote her must be dismissed as time-barred. The promotions that plaintiff alleges she should have received or been considered for occurred in 1999 or earlier. With respect to the federal 300-day statute of limitations applicable to such claims, see Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999), plaintiff filed with the EEOC on July 1, 2003,i.e., within 300 days of her termination but not within 300 days of being passed over for promotions. With respect to the New York State three-year statute of limitations for such claims, none of the promotions here at issue occurred within three years of the filing of plaintiff's lawsuit, which is the triggering date for state law purposes. See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 307 (1983).
Indeed, even prior to the instant motion practice, the Court had dismissed as time-barred plaintiff's claims of failure to promote except to the extent that plaintiff could prove that the failures to promote her were part of a continuing violation continuing into the non-barred period. See Order, 7/7/04. But plaintiff has failed to adduce sufficient evidence to warrant any reasonable juror in inferring such a continuing violation. See generally Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 244-45 (S.D.N.Y. 2001) (continuing violation theory is "narrow exception"). As described above in the discussion of the hostile workplace environment claims, there is little or no evidence of any continuing policy or practice of discrimination in the three years between the two discrete personnel decisions.See Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004) ("[T]he mere fact that an employee was dismissed within the statutory period cannot be used `to pull in [a] time-barred discriminatory act.") (quoting AMTRAK v. Morgan, 536 U.S. 101, 113 (2002). Accordingly, plaintiff's claims of discriminatory failure to promote must be dismissed. Fourth, plaintiff's wrongful termination claims premised on discrimination on account of gender, national origin, and disability under state law survive summary judgment, but her claims of wrongful termination based on age discrimination must be dismissed. Defendant concedes that plaintiff has made out a prima facie claim of discrimination with respect to all four protected classes. This shifts the burden to defendant to articulate a legitimate, non-discriminatory reason for firing plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Defendant asserts that it terminated plaintiff as part of a general cost-cutting effort in which employees were terminated throughout the company. This satisfies the employer's burden, see Koppenal v. Nepera, Inc., 74 F. Supp. 2d 409, 413 (S.D.N.Y. 1999), and shifts the burden back to plaintiff to prove that the reason articulated is a pretext and that the alleged discrimination was at least one of the real reasons for the decision. Fisher v. Vassar College, 114 F.3d 332, 345 (2d Cir. 1998) (en banc).
Dreyfus also argues that alleged failure to promote a woman because of her pregnancy cannot be the basis of a Title VII suit but rather must be addressed in a suit under the Pregnancy Discrimination Act. Because the claim here is time-barred, the Court need not reach that issue.
All of plaintiff's claims of disability discrimination under federal law must be dismissed for the reasons already discussed supra.
As to pretext, a reasonable juror could conclude that Tongalson has carried her burden. Dreyfus claims that, of the employees at her level in her division, plaintiff was chosen to be terminated because she made the most money and because she was the least flexible in her skill set. However, by firing plaintiff rather than the next highest paid employee at her level, defendant saved only $8,640 in annual salary. While a company's needs and objectives change from year to year, a reasonable juror might wonder why that sum of money was so significant when the company, at the behest of Perrone, had recently given a significant raise to plaintiff and much larger raises to each of her counterparts (who had less seniority and experience, had less favorable performance reviews, and supervised fewer employees than she did). A reasonable jury could conclude that she was more valuable than the others, as also evidenced by the number of employees she supervised and her superior performance reviews. Cf. Purdy v. Town of Greenburgh, 166 F. Supp. 2d 850, 865-67 (S.D.N.Y. 2001). Furthermore, while plaintiff's allegations of failure to promote in 1999 and before are time-barred as separate claims, they may be evidence that her termination in 2002 was motivated by more than her higher salary.
Once a jury concludes that the proffered reason for termination is pretextual, it may readily infer that the real reason was discrimination. But it cannot be discrimination in general but rather must be one or more of the forms of discrimination outlawed by applicable state and federal law. Here, on the basis of the evidence already discussed above, a reasonable juror could infer that the company disfavored women with children in personnel actions and thus engaged in gender discrimination. There is also enough for a jury to infer discrimination on the basis of national origin, as shown by the preference given Italian-Americans over others and the derogatory comments made about Greek-Americans. Finally, because plaintiff was fired so close in time to the flaring up of her condition, and because Perrone made comments suggesting she was malingering, a reasonable juror also could conclude that her disability (as New York law defines the term) played a part in the decision to terminate her.
However, there is insufficient evidence for a jury to conclude that plaintiff's age played a part. Plaintiff has not come forward with evidence regarding the ages of two of the four people she alleges received preferential treatment (probably because their ages, according to plaintiff's own complaint, were similar to hers and in the protected class). This alone would prevent a reasonable fact-finder from discerning a pattern of discrimination on the basis of age. Plaintiff is therefore left with nothing more than "over the hill" jokes that, when made in the context of birthday parties, cannot by themselves possibly warrant an inference of discriminatory intent.
In sum, for the foregoing reasons, summary judgment dismissing the claims must be granted to defendant on all of plaintiff's claims except her state and federal claims of wrongful termination on the basis of national origin and gender and her state claim of wrongful termination on the basis of disability. Trial of these remaining claims will proceed to trial, as scheduled, on March 7, 2005.
SO ORDERED.