Opinion
01 Civ. 6306 (HB)
February 28, 2002
OPINION ORDER
Manhattan Eye, Ear Throat Hospital ("MEETH") and Lenox Hill Hospital ("Lenox Hill") (collectively, "defendants") move for summary judgment on all claims asserted by Diana Magnan ("plaintiff"). Specifically, plaintiff charges defendants with employment discrimination in violation of Title VII of the Civil Rights Act of 1964, Section 701 et seq., as amended, 42 U.S.C.A. Section 2000e et seq. ("Title VII"), New York City Administrative Code Section 8-101, et seq. ("NYCHRL"), and New York State Human Rights Law, New York Executive Law Section 290, et seq. ("NYHRL"). For the reasons detailed below, defendants' motion is granted in its entirety.
Because I am granting defendants' motion for summary judgment, I will not address the issue of whether Lenox Hill assumed MEETH's liabilities under the Sponsorship Agreement (Cohen Aff. Ex. W). I should note, however, that I agree with plaintiff that the Sponsorship Agreement, at least in the form presented to the Court, does not explicitly absolve Lenox Hill of MEETH's liabilities.
BACKGROUND
Plaintiff, a forty-three year old woman, brings this employment discrimination action solely on the ground that defendants refused to provide her with a severance package either prior to or at the time of termination, whereas three male employees from the same management team were provided with severance either prior to or at the time of termination.Plaintiff was employed by defendant MEETH from February 28, 1994 to March 9, 2000, the date of her termination; her employment contract with MEETH did not provide for severance in the event of termination. Although plaintiff was hired in 1994 as a Nurse Manager, she received a series of salary increases during the period of her employment, and, on May 18, 1998, was promoted to MEETH's Director of Nursing and Patient Care Services and simultaneously appointed a member of MEETH's Senior Management Team, which at that time consisted of four men and three women. Throughout the term of her employment, plaintiff's salary increased from $65,000, as a new hire, to $110,000, as Director of Nursing and Patient Care Services. (Cohen Aff. Ex. J). In her capacity as Director of Nursing, plaintiff's duties included overseeing nursing and patient care in the hospital — for example, outpatient clinics and the operating room — and running the medical library. (Medwid Aff. Ex.D).
At that time, the Team's members and their respective positions were as follows: Dr. George Sarkar, Executive Director; William Lademann, Assistant Director; Leonard Weil, Chief Financial Officer; Michelle Chotkowski, Clinical Director of Surgical Services; Edward Market, Assistant Director of Administration; Martha Furlong, Director of Human Resources; and Diana Magnan, plaintiff, Director of Nursing and Patient Care Services. (Compl. ¶¶ 13).
From mid-1998 through 1999, plaintiff became increasingly more uncertain as to the nature of her role and her future at MEETH for a variety of reasons. First, MEETH lost some employees because of a change in the hospital's focus; as a result, plaintiff felt that she had incurred increased responsibilities. (Compl. ¶¶ 15-16). Second, in April 1999, MEETH announced to its Senior Management team that it was negotiating with other hospitals seeking to acquire MEETH; as a result, plaintiff feared that her employment might be terminated should an acquisition occur. (Medwid Aff. Ex. A at 50-53). Third, MEETH had neither provided plaintiff with a severance package when she was hired in 1994, nor offered her such a package during the term of her employment. Consequently, toward the end of 1999, plaintiff retained an attorney to assist her in resolving certain issues pertaining to her employment at MEETH. Plaintiff's attorney sent MEETH two letters, dated October 12, 1999 and November 29, 1999, respectively, requesting a meeting to discuss plaintiff's employment situation — in particular, plaintiff's concerns regarding continued employment at MEETH in the event of an acquisition (Cohen Aff. Exs.T U).
On July 8, 1999, MEETH's Executive Director, Dr. George Sarkar, presented the President of the Board of Directors, Lindsay Herkness, with a memorandum on which he provided a list of "essential administrative personnel" that Herkness should consider providing with a three-month severance package in the event of termination. According to this memorandum (Cohen Aff. Ex. K), Dr. Sarkar recommended eighteen employees for severance in the event of termination due to closure of the hospital. Nine of those employees were women; nine were men. of the Senior Management Team at that time, two employees were men, William Lademann and Robert Werner, who at that time was Director of Finance.
It should be noted that plaintiff's attorney does not specifically raise the issue of severance in either of these letters. (Cohen Aff. Exs. T U).
On February 29, 2000, officials at MEETH met with officials at Lenox Hill to discuss the possibility of Lenox acquiring MEETH as one of its subsidiaries. Present at this meeting were three male members of MEETH's Senior Management Team, Dr. George Sarkar, Leonard Weil, and William Lademann, as well as senior members of Lenox Hill, including Vice Presidents Phillip Rosenthal and Christine Shepard. Shortly thereafter, on March 7, MEETH officially became a subsidiary of Lenox Hill and Mr. Rosenthal was put in charge of Hospital administration. Two days later, on March 9, plaintiff was terminated without severance. On March 10, three other members of MEETH's Senior Management Team were also terminated by Mr. Rosenthal, including Dr. Sarkar, Mr. Weil, and Mr. Lademann. Subsequent to her termination, plaintiff learned that she was the only female of the four members of the Senior Management Team terminated at this time who did not receive severance. of the three male members who were terminated, Dr. Sarkar and Mr.Weil had received a severance package as part of their employment contract; the third male member, Mr. Lademann, received severance on October 14, 1999, in return for his assistance in executing a general release in favor of the hospital during its transition. (Cohen Aff. Exs. L, M, Q). However, for a variety of reasons, MEETH ultimately did not honor its severance commitment to Dr. Sarkar (Sarkar Tr. 6-7).
of the three remaining members on the Senior Management Team, one female employee, Martha Furlong, Director of Human Resources, was hired with a severance package (Cohen Aff. Ex. P); the two remaining employees, one male and one female, resigned voluntarily and thus received no severance package.
In a phone conversation that took place on April 6, 2000, Martha Furlong, Director of Human Resources, suggested to plaintiff that she did not receive a severance package because she was a "girl" and because MEETH was governed by an "old boy network" (Magnan Aff. Ex. A).
DISCUSSION
1. Summary Judgment Standard
In a motion for summary judgment, the burden is on the moving party to establish that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, cert. denied, 506 U.S. 965 (1992)). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523. In Title VII cases alleging adverse action, the plaintiff need make only a de minimis showing in its prima facie case in order to defeat a motion for summary judgment. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995). In determining whether a plaintiff has met this minimal showing, the function of the court on summary judgment is to "determine whether the `proffered evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.'" Cronin, 46 F.3d at 204 (quoting Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994)).
2. Employment Discrimination Claim
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth the allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. The plaintiff sustains the initial burden of establishing a prima facie case of discrimination by proving the following four elements by a preponderance of the evidence: (1) that she is within a protected group; (2) she is qualified for the position; (3) that she was subject to an adverse employment action; and (4) circumstances that give rise to an inference of discrimination. McDonnell Douglas Corp., 411 U.S. at 802;see also Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997),cert. denied, 522 U.S. 1075 (1998), abrogated in part by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133. In satisfying this fourth element, the plaintiff may show, for example, that a similarly situated employee who was not in the relevant protected group received better treatment. McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001);Abdu-Brisson v. v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) ("a showing of disparate treatment, [can be] a common and especially effective method of establishing the inference of discriminatory intent necessary to complete the prima facie case"). The Second Circuit has repeatedly emphasized that the plaintiff's burden in establishing her prima facie case of employment discrimination is minimal. McGuinness, 263 F.3d at 53; James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Plaintiff's claims under NYCHRL and NYHRL are analyzed under the same standard as the Title VII claim. Smith v. AVSC Int'l, Inc., 148 F. Supp.2d 302, 308 (S.D.N.Y. 2001).
If the plaintiff successfully proves the prima facie case, then she has raised an inference of discriminatory treatment and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas Corp., 411 U.S. at 802;see also Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Fisher, 114 F.3d at 1335. Should the defendant carry this burden, then the presumption of discrimination created by the plaintiff's prima facie case "drops out of the picture," and the plaintiff must then sustain the ultimate burden of proving by a preponderance of the evidence that the defendant's legitimate reason is merely a pretext for discrimination. Fisher, 114 F.3d at 1336. If the plaintiff ultimately fails to adduce evidence from which the finder of fact can reasonably find the essential elements of a discrimination claim, then the defendant is entitled to summary judgment. James, 233 F.3d at 154.
A. Plaintiff's Prima Facie Case
Defendants do not dispute that plaintiff has satisfied the first two elements of a prima facie case of gender discrimination, that is, that she is (1) a member of a protected group, and (2) qualified for her position. Rather, defendants contend that plaintiff has failed successfully to satisfy the third and fourth elements of a prima facie case for the following reasons: (1) MEETH's decision not to offer plaintiff severance either prior to or at the time of termination does not constitute an adverse employment action; and (2) even if it did constitute an adverse employment action, plaintiff is unable to establish that MEETH's decision not to offer her severance either prior to or at the time of termination gives rise to an inference of gender discrimination. I will address these two elements of plaintiff's prima facie case in turn.
First, I do not agree with defendants' argument that their decision not to offer plaintiff a severance package either prior to or at the time of termination cannot constitute an adverse employment action as a matter of law since MEETH did not have a pre-existing agreement to pay plaintiff severance upon termination. To be sure, defendants correctly cite Jackson v. Lyons Falls Pulp Paper, Inc., 865 F. Supp. 87, 95 (N.D.N.Y. 1994), for the proposition that a failure to grant benefits and severance pay to a single employee does not constitute an adverse action if the "plaintiff was not otherwise entitled to receive severance pay and benefits." However, the facts of this case differ in some material respects from the facts of Jackson. First, unlike this case, Jackson involved a retaliation claim. Second, whereas Jackson involved the termination of just one employee, this case involves the termination of one woman and three men from the same Senior Management Team, at least one of whom did not have a pre-existing severance agreement with the hospital when he was hired. Indeed, in a recent severance pay case, the Second Circuit found that a female employee succeeded in presenting a prima facie case of gender discrimination by proffering evidence that a male employee who held a position of roughly equivalent rank received a more generous severance package than she did upon termination. McGuinness, 263 F.3d at 54-55. However, even aside from the factual distinctions between Jackson and the instant case, the Second Circuit has never conclusively stated that failure to provide an employee severance does not constitute an adverse employment action for Title VII purposes, or that denial of severancecannot constitute a "term or condition of employment" as provided under Title VII. For these reasons, I find that the third prong of a prima facie case is satisfied at least for the purposes of this motion.
I recognize that McGuinness involved the amount of severance involved rather than the fact of whether severance was even offered to one employee over another. Notwithstanding this difference, I am still not convinced that an employer's failure or refusal to provide severance can never rise to the level of an adverse employment action. My survey of applicable case law has revealed that courts are more willing to view the failure to provide severance as an adverse action when coupled with additional factors — such as, for instance, the fact that a similarly situated employee received severance. Jaworski v. Westplex Corp., 49 F. Supp.2d 151, 155 (W.D.N.Y. 1998) (stating that "plaintiff has established an adverse employment action in being terminated and given a smaller severance benefit" than three male managers).
However, I do agree with defendants that plaintiff has failed to show circumstances that give rise to an inference of discrimination and thus to satisfy the fourth element of her prima facie case. In satisfying this element, plaintiff relies to a large extent on the fact that three other men were given a severance package whereas she was not. Although the Second Circuit has found that disparate treatment can be "an especially effective method of establishing the inference of discriminatory intent necessary to complete the prima facie case," Abdu-Brisson, 239 F.3d at 468, plaintiff has failed to show that MEETH provided only male members of the Senior Management Team with severance. For instance, Martha Furlong, Director of Human Resources, had a pre-existing agreement to be paid severance in the event that her employment was terminated (Furlong Tr. 40; Sarkar Tr. 86-86; Cohen Aff. Ex. P). In addition, around the same time that plaintiff requested in writing that she be recommended for severance, Dr. Sarkar had already recommended to Mr. Herkness that Eileen Colletti, who at that time was Director of Development on the Senior Management Team, receive a severance package (Cohen Aft Ex. K). The fact that MEETH provided other members of plaintiffs protected class with a severance package negates any inference of discriminatory conduct that one might infer from MEETH's failure to provide plaintiff with severance. Powell v. Consol. Edison Co. of N.Y., Inc., No. 97 Civ. 2439 (GEL), 2001 WL 262583, at *11 (S.D.N.Y. Mar. 13, 2001) (holding that evidence that members of plaintiffs protected class received the promotion at issue negates any inference that the employer's decision not to promote plaintiff was based upon discriminatory animus). Finally, although Dr. Sarkar had a severance commitment from MEETH that pre-dated his termination, MEETH ultimately did not honor that commitment for a variety of reasons (Sarkar Tr. 6-7). Thus, MEETH not only provided severance to another woman on the Senior Management Team, but also ultimately denied severance to the male Executive Director.
Indeed, this fact alone is sufficient to defeat plaintiff's prima facie case. However, even if MEETH did not provide severance to any female employees from the Senior Management Team, plaintiff has still failed to establish that she was similarly situated to the three male members who were provided with a severance package. The Second Circuit has held that for a plaintiff to satisfy her prima facie case on a theory of disparate treatment, she must prove that her employer treated her differently from another employee who was similarly situated in all material respects. McGuinness, 263 F.3d at 54; see also id. ("where a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination"). Plaintiff has failed to demonstrate that she was similar to the three male members of the Senior Management Team in all material respects. Aside from the fact that the three male members who received severance held higher positions than that of plaintiff — Executive Director, Assistant Director, and Chief Financial Officer — and at least one member was hired at a considerably greater salary than that of plaintiff (Cohen Aff. Ex. M), two of the male members, Dr. Sarkar and Mr. Weil, were hired with a severance package (Cohen Aff. Exs. L M), and the third male member, Mr. Lademann, received severance in return for executing a general release in favor of the hospital during its transition. (Cohen Aff. Ex. Q).
Although Ms. Colletti never in fact received a severance package, this was solely due to the fact that she resigned. (Cohen Aff. Ex. F; Sarkar Tr. at 19).
Similarly, I do not find that Ms. Furlong's comments to plaintiff raise an inference of gender discrimination so as to satisfy plaintiff's prima facie case. As defendants correctly point out, Ms. Furlong's remarks in a single conversation that plaintiff did not receive severance because she was a "girl" and that MEETH was run by an "old boy network" (Magnan Aff. Ex. A) represent stray remarks by a non-decision maker, and, as such, do not constitute sufficient evidence of discrimination. See Ruane v. Continental Casualty Co., No. 96 Civ. 7153 (LBS), 1998 WL 292103, at *8 (S.D.N.Y. June 3, 1998). Thus, plaintiff has failed to establish a prima facie case of gender discrimination even under the Second Circuit's "minimal" standard.
B. Defendants' Legitimate, Non-Discriminatory Reason
Even were I to find that plaintiff established a prima facie case of gender discrimination, which I do not, I nonetheless find that defendants have articulated a legitimate, nondiscriminatory reason and that plaintiff has failed ultimately to avoid summary judgment by proving that defendants' reason is merely a pretext for gender discrimination. Specifically, Dr. Sarkar testified at his deposition that MEETH did not regard plaintiff to be a "critical member" of the Senior Management Team, especially during the period of transition that MEETH was undergoing during the Spring of 1999 (Cohen Aff. Ex. F; Sarkar Tr. 17-18, 29-36). In addition, because Dr. Sarkar did not believe that it would be difficult to replace plaintiff in the event that she decided to leave the hospital, he did not find it necessary to offer her severance as a means of inducing her to stay (Cohen Aff. Ex. F; Sarkar Tr. 55-59, 63). I agree with defendants that plaintiff has failed to show that defendants' nondiscriminatory reason was pretextual. Accordingly, defendants' motion for summary judgment is granted and the complaint dismissed.
CONCLUSION
For the reasons set forth in detail above, I do not find that plaintiffs Title VII claim or her claims under New York and New York City Human Rights Law (NYHRL and NYCHRL, respectively) survive defendants' motion for summary judgment. Accordingly, defendants' motion for summary judgment is granted. The complaint is dismissed and the clerk is instructed to remove the matter from my docket.
IT IS SO ORDERED.