Opinion
01 Civ. 7228 (DLC)
October 21, 2002
John Ware Upton New York, NY, for Plaintiff.
David S. Warner, Littler Mendelson, P.C., New York, NY, for Defendants.
OPINION AND ORDER
Plaintiff Theresa Romain ("Romain") brings this action against defendants Cigna Life Insurance Company of New York ("Cigna") and John Welling ("Welling"), a Cigna employee, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. Romain alleges that defendants discriminated against her based on her race and retaliated against her for engaging in protected conduct when they failed to hire her. Defendants have moved for summary judgment. For the reasons stated, defendants' motion is denied.
Background
The following facts are either undisputed or accepted as true for purposes of this motion unless otherwise stated. Romain is a black woman. She was licensed as a Practical Nurse in 1987, and as a Registered Nurse in 1989. From 1987 to 1994, she worked in a variety of nursing settings, including a hospital and nursing homes, and administered home care. From 1994 to 1999, she worked for Health Insurance Plan of Greater New York ("HIP") as a claims examiner. In 1999, her compensation was approximately $55,000 per year. At that time, she left HIP to enroll in the Legal Nurse Consultant Program at Hofstra University.
Romain's Application to Cigna
In October 2000, near her completion of the Hostra program, Romain responded to a Cigna newspaper advertisement seeking a "Case Manager" by sending Cigna a cover letter and resume. On December 5, 2000, Welling, who is a white male, telephoned Romain. The two conversed for about twenty minutes. According to Romain, Welling stated that he was impressed by her resume and that she was the first candidate he was calling. Welling also stated that he was looking for a total of three nurses and that he would call Romain again on December 13 or 14 to schedule an interview. Welling denies that he said he was looking for three nurses and states that his office had only one position available at the time, which was created by an employee's departure. Romain and three other candidates, Theresa Emanuelo ("Emanuelo"), Karen Gangl ("Gangl"), and Maggie Fitzgerald ("Fitzgerald"), were invited for interviews.
Romain's Visit to Cigna's Office
On December 27, each of the four candidates participated in a two-stage evaluation. In the first stage, each candidate was taken to a conference room for a panel interview with Welling and two other managers, Sue Cornell ("Cornell"), Chief of Staff, and Frank Calabrese ("Calabrese"), a Team Leader, both of whom are white. Romain states that Cornell and Calabrese brought 3" by 5" cards with them into the interview. Welling, Cornell, and Calabrese state that during each interview, they completed a "Case Manager Candidate Interview Questions Form" for the candidate being interviewed, on which they rated that candidate's response to seven of the questions on a scale of zero to four, with four being the highest rating. Romain states that Cornell and Calabrese took notes on their 3" by 5" cards and did not fill out the question forms during the interview.
The second stage of the evaluation consisted of a "job shadow" and a peer meeting. During the job shadow, Romain sat with a Medical Consultant. Romain and Emanuelo then participated together in a peer meeting with four persons already employed as Medical Consultants: Diane Hoffman, Lisa Carchidi, and Louise McGlynn, who are white, and Joes Guzman ("Guzman"), who is Hispanic. According to Romain, Guzman engaged in hostile behavior towards her during the interview, including rolling his eyes in response to her answers and aggressively questioning her about why she stated in her cover letter that she had a "career as a Legal Nurse Consultant" when she had not yet finished the Hofstra course.
After the peer meeting, Romain was escorted to a cubicle to complete an application form. As she was completing the form, she heard Guzman's voice on the other side of one of the partitions of the cubicle. Romain states that Guzman said to two female co-workers, who have not been identified, that "I don't like Theresa." The co-workers asked to which Theresa he was referring. He responded "black Theresa." According to Romain's deposition testimony, Guzman further stated: "She don't belong here. She thinks she knows it. Get her black ass out of here." Romain states that she then overheard Guzman and the two co-workers comparing her resume to Emanuelo's in an effort to find reasons why Emanuelo should be hired and Romain should not. Guzman then stated: "you guys have to help me get her out of here. She doesn't belong here."
At that point, Romain was in tears. She stood up from the seat in the cubicle and asked an unidentified employee who was walking by where Welling was. The employee stated that Welling was in a meeting. Romain then asked how she could "get out of here." The employee took her to a door, through which she exited to the elevator and left the building without completing the job application form.
Romain and Welling's December 29 Telephone Conversation
Romain telephoned Welling on December 28, but was unable to reach him until the morning of December 29. During that telephone conversation, Romain asked Welling who "Jose" was. Welling explained that Guzman was a nurse. Romain then told Welling what she had heard Guzman say to his co-workers. According to Romain, Welling became upset and denied that Guzman could have made such remarks, but stated that he would investigate the matter. Romain responded: "I don't think the EEOC would like to hear about this" and that "I'm putting you on notice." They then hung up on each other.
Welling's Decision to Hire Emanuelo
Welling's next contact with Romain was by letter dated January 12, 2001, in which he wrote that "[w]e have carefully reviewed your background as it relates to this position. However, another candidate has been selected whose background and experience more closely meet our requirements." Also on January 12, Welling telephoned Emanuelo to offer her a position as a Medical Consultant, which she accepted. By letter dated January 15, Welling confirmed her acceptance.
Welling states that he made the decision to hire Emanuelo on December 27 or December 28. He states that he did not inform any of the candidates of his decision until approximately two weeks later because he needed authorization from a superior to extend the offer to Emanuelo and because Emanuelo told him that she was going to be on vacation. Emanuelo had been a registered nurse since at least 1975, and had received her nursing degree in 1969. Emanuelo had some managerial experience. Beginning in 1999, she was briefly a manager of a staff of seven nurses at her former employer. Prior to that, she worked for six years in a clinical capacity treating and counseling patients at a methadone clinic.
Welling states that he considered several factors in deciding to hire Emanuelo and no other candidate. Welling states that on December 27 or 28, he compared the ratings given to each candidate during the panel interview. Averaging the ratings given by Cornell, Calabrese, and himself, Welling found that Emanuelo's average rating was the highest, at 2.67, while Romain was the lowest, at 1.38. Welling's tabulation sheets are undated.
Standard
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "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." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenacra v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
Discussion
Romain alleges that defendants failed to hire her out of discriminatory animus. Romain further alleges that defendants failed to hire her in retaliation for engaging in protected conduct. Each argument is considered in turn.
I. Discriminatory Failure to Hire
To establish a prima facie case of discriminatory failure to hire, plaintiff must demonstrate (1) that she belongs to a protected group; (2) she applied for a position for which she was qualified; (3) she was subject to an adverse employment decision; and (4) the adverse employment decision occurred under circumstances giving rise to an inference of discrimination. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). "[T]he qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 92 (2d Cir. 2001) (citation omitted). If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If such a reason is proffered by defendant, the burden shifts back to plaintiff to prove that discrimination was the reason for the adverse employment action. Graham v. Long Island Railroad, 230 F.3d 34, 38 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 804).
Romain has presented sufficient evidence to establish a prima facie case of racial discrimination. Defendants do not dispute that she is a member of a protected group and that she was subject to an adverse employment decision. Defendants do dispute, however, that Romain was qualified for the position of Medical Consultant, relying exclusively on her ratings from the panel interview. Whether or not the plaintiff was the best qualified candidate, she has shown that she possessed the basic skills necessary for the job. Her work history and education, the defendants' invitation to the plaintiff to come to Cigna for the interview, and Welling's remarks to the plaintiff during their initial telephone conversation are sufficient evidence to meet the plaintiff's de minimis burden in this regard.
Defendants also argue that Romain has failed to show that their decision not to hire her occurred under circumstances giving rise to an inference of discrimination. Specifically, Welling, Calabrese, and Cornell testify that Guzman had no influence on their assessments of the four candidates. Remain has presented evidence, however, that Guzman expressed in terms charged with racial animus a desire to conspire with his co-workers to insure that Romain not be hired. Indeed, Romain states that Guzman's remark incited his co-workers to participate with him in formulating a strategy to prevent her hire. It is undisputed that the peer meeting was part of the process that the defendants chose to employ on December 27. This evidence is sufficient to create a question of fact as to the role that the peer meeting and the views of the employees who participated in the peer meeting played in the employment decision made by Welling. "[T]he impermissible bias of a single individual at any stage of the [employment] process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [employment] process." Bickerstaff v. Vassar College, 196 F.3d 435, 450 (2d Cir. 1999) (citation omitted).
Romain has presented sufficient evidence of discriminatory intent to support a jury verdict in her favor. Guzman's remark cannot be dismissed as a stray remark. It was directed at defendants' hiring decision and plotted a strategy to effect that decision. According to Romain, three employees began to plot to undermine Romain's chances of being hired. Because Romain has raised a question of fact as to whether there was a discriminatory motive in the defendants' decision not to hire her, defendants' motion with respect to Romain's discriminatory failure to hire is denied.
II. Retaliatory Failure to Hire
Title VII forbids retaliation against an employee for "oppos[ing] any practice made an unlawful employment practice" by that statute. 42 U.S.C. § 2000e-3(a); see also Coffey v. Dobbs Int'l Serv., Inc., 170 F.3d 323, 326 (2d Cir. 1999). To state a prima facie case of retaliation under Title VII, the plaintiff must show that: (1) she was engaged in a protected activity; (2) the employer was aware of his participation in the protected activity; (3) she was subject to an adverse employment action; and (4) there is a causal nexus between the protected activity and the adverse action taken. Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001); Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). If the plaintiff establishes a prima facie case, the burden shifts to the defendant "to articulate a legitimate, non-discriminatory reason for the allegedly retaliatory act."Holtz, 258 F.3d at 81.
If the employer articulates a non-discriminatory reason for the employment action at issue, the plaintiff bears the ultimate burden of proving retaliation. Slattery v. Swiss Reinsurance Am. Co., 248 F.3d 87, 95 (2d Cir.), cert. denied, 122 S.Ct. 348 (2001). Although retaliation need not be the only cause of the adverse employment action, a "retaliatory motive must be . . . at least a substantial or motivating factor." Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (citation omitted); see also Gordon v. New York City Bd. of Ed., 232 F.3d 111, 117 (2d Cir. 2000). A plaintiff can show that retaliation was a substantial or motivating factor behind a particular action either
(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against plaintiff by defendant.Raniola, 243 F.3d at 625 (emphasis supplied).
Defendants argue that Romain has failed to show a causal relation between her comments made to Welling during their December 29 phone conversation and Welling's decision not to hire her. Specifically, defendants argue that Welling decided not to hire Romain no later than the end of the business day on December 28. Romain has presented sufficient evidence to support a jury's finding that Welling was aware of Romain's protected activity before he decided not to hire her. It is undisputed that the offer to Emanuelo was not made until January 12, and the letter advising Romain that she had not been hired was dated January 12. The defendants have not provided any documentary or other evidence to corroborate Welling's assertion that his decision to hire Emanuelo was made before his December 29 telephone conversation with Romain.
Conclusion
For the reasons stated, defendants' motion for summary judgment is denied. A Scheduling Order shall issue with this Opinion.
SO ORDERED.