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Summary Judgment in Discrimination Cases

Klein, Jeffrey S.Pappas, Nicholas J.

(June 7, 1999, New York Law Journal)

By Jeffrey S. Klein, Nicholas J. Pappas

During the past year, the Second Circuit decided three cases that guide district courts in ruling on summary judgment motions in cases brought under the federal anti-discrimination laws, Gallagher v. Delaney, 139 F3d 338 (2d Cir. 1998), Norton v. Sam's Club, 145 F3d 114 (2d Cir.), cert. denied, 119 S. Ct. 511 (1998) and Distasio v. Perkin Elmer Corp., 157 F3d 55 (2d Cir. 1998). Gallagher discouraged summary judgment in favor of jury trials and was initially viewed by some district court judges as raising the bar for the employer's motion for summary judgment.  The subsequent decisions in Norton and Distasio, however, reaffirmed that summary judgment remains an appropriate -- even mandated -- remedy in the employment discrimination context when the plaintiff has failed to raise a triable issue of fact.  

This article examines the impact of these three decisions on summary judgment motions in discrimination cases under the federal anti-discrimination laws in this Circuit.  


The Supreme Court laid the framework for evaluating evidence in discrimination cases under Title VII of the Civil Rights Act of 1964 in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Supreme Court adopted a three-prong, burden-shifting test that the plaintiff must satisfy in order to overcome the employer's motion.  Under this test, the plaintiff must first establish a prima facie case of discrimination.  The employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employment decision.  The burden then shifts back to the plaintiff to prove that the proffered reason was a pretext for impermissible discrimination.  If the plaintiff is able to raise a genuine issue as to the employer's motive, the motion is denied and a trial follows.  

   The Second Circuit has voiced different interpretations of the McDonnell Douglas analysis over the last few years. n1 Gallo v. Prudential Residential Services LP, 22 F3d 1219 (2d Cir. 1994), represents the Second Circuit's most cautious approach to summary judgment.  In Gallo, Prudential eliminated the job duties and terminated the employment of the plaintiff, a 50-year-old woman, as part of a reduction in its work force following Prudential's acquisition of the business unit in which plaintiff worked.  The district court granted summary judgment for Prudential, holding the situation did not support an inference of pretext.  

In an unusually strong rebuke, the Second Circuit reversed.  Describing summary judgment as a "drastic" provisional remedy, the opinion admonished trial courts to use caution in granting summary judgment when the employer's intent is at issue.  The trial court must carefully scrutinize "corporate papers, affidavits and depositions" for "circumstantial proof which, if believed, would show discrimination." The Gallo Court then carefully examined the plaintiff's circumstantial evidence and held that the revival of work previously performed by the plaintiff raised "genuine issues of material fact as to whether Prudential's reduction in force was a pretext in her case for age discrimination." n2  
 Soon after the strong opinion in Gallo, however, the Second Circuit indicated that the summary judgment standard remained unchanged.  In Woroski v. Nashua Corp., 31 F3d 105 (2d Cir. 1994), another age discrimination case, the Second Circuit applied Gallo but affirmed the grant of summary judgment, even though the plaintiffs had offered "some evidence" of pretext and discriminatory intent.  

   The plaintiffs presented evidence that the supervisor who had discharged them had told a former employee that the work force "was older, had been around too long, made too much money and enjoyed too many benefits" and that "what this company needed was new younger people perhaps people out of college... that were younger, more aggressive, hungrier, that would have come and not had six weeks vacation... and in fact could be hired for, you know, half or 70 percent of what these people... enjoy." n3  

While conceding that the supervisor's statements provided "some evidence of age bias," the court granted summary judgment to the employer because "some evidence is not sufficient to withstand a properly supported motion for summary judgment." The court found that the supervisor's statements were insufficient to create a genuine issue of material fact because the employer had demonstrated, among other things, that the selection of plaintiffs from among the eligible employees in their departments was based on valid business considerations and not on age. n4  

The Second Circuit revisited the McDonnell Douglas test in Fisher v. Vassar College, 114 F3d 1332 (2d Cir. 1997) (en banc).  Dr. Fisher, a married woman, was employed by Vassar as a professor of biology from 1977 until 1986.  In 1985, Fisher was denied tenure.  Fisher brought an action against Vassar alleging employment discrimination.  The district court found that Vassar had discriminated against Fisher because of her age and her status as a married woman.  Accordingly, the district court awarded damages and ordered Fisher be restored to the faculty for two years. n5  

 Prima Facie Case  

The Second Circuit reversed. n6 Applying the McDonnell Douglas burden-shifting test, the appeals court agreed with the trial court that Fisher had established a prima facie case of discrimination, and that Vassar's proffered reason was pretextual.  The court was quick to note, however, that mere pretext, without evidence of underlying discriminatory intent, is insufficient.  Although the existence of a pretext itself may point to discriminatory intent, in the instant case Fisher's evidence of pretext "point[ed] nowhere." n7 Examining and rejecting the other circumstantial proof of discrimination offered by Fisher, the appeals court found the district court's ruling clearly erroneous and reversed the judgment.  

The Second Circuit reheard the case en banc, limiting its review to determining the appropriate standard of appellate review when the plaintiff has satisfied the McDonnell Douglas prima facie case and pretext elements. n8 In a fractured decision, the Second Circuit held that, just as with any other factual determination, a finding of discrimination is reviewable for clear error.  In reaching this decision, the Second Circuit minimized the importance of the McDonnell Douglas framework in determining the defendant's ultimate liability, because the essential elements of the prima facie case do not necessarily support a reasonable inference of discrimination.  

In its en banc decision, the Second Circuit held that the presumption of discrimination, established by the plaintiff's showing of prima facie discrimination, drops out of the picture once the employer rebuts it by offering a legitimate, nondiscriminatory purpose for the employment decision.  The presumption is no longer relevant and should not be resurrected later on. n9  

  When this presumption drops away, the plaintiff's burden is enlarged to include every element of the claim. n10 The court elaborated: "in our diverse workplace, virtually any decision in which one employment applicant is chosen from a pool of qualified candidates will support a slew of prima facie cases of discrimination." Any difference between applicants could establish a prima facie case, "even though a review of the full circumstances may conclusively show that illegal discrimination played no part whatever in the selection." n11

Further, while a showing by the plaintiff that the reason proffered by the employer is pretextual may serve as some evidence that the employer intentionally discriminated, discrimination does not lurk behind every pretext. "Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility." n12 A finding of pretext does not necessarily support a finding of illegal discrimination. n13 It follows that such a showing of pretext does not prevent the employer from prevailing on its summary judgment motion.  
'Gallagher' and Progeny  

It was in this context that the Second Circuit decided Gallagher v. Delaney, 139 F3d 338 (2d. Cir. 1998). In an opinion evoking the law's role as guardian of human dignity, District Judge Weinstein, sitting by designation, reversed a district court's grant of summary judgment.  Recognizing that the "dangers" of robust use of summary judgment are "particularly acute" in current sex discrimination suits due to "rapidly evolving" gender roles, Judge Weinstein held that in close cases, a jury, consisting of a cross-section of the community, was the best judge of appropriate gender relationships in the workplace.  

Carmel Gallagher sued her former employer and supervisors alleging sexual harassment and retaliatory discharge.  Gallagher was an executive secretary for Con Ed from 1990 until her termination in 1996.  In April 1992, Gallagher was assigned to Robert Hansen, the general manager for customer operations in Westchester County.  Gallagher alleged that Hansen brought her gifts, including a teddy bear, a rose and a book about angels.  Gallagher further contended that Hansen ordered her to eat lunch with him, commented on her physical appearance and on one occasion suggested that she sit on his lap.  

Although Hansen never overtly asked Gallagher to engage in sexual relations, Gallagher alleged that Hansen's behavior was an implicit request.  

Gallagher complained to the Human Resources manager, Ray Saracino.  The accounts differ as to the substance of the meeting.  The plaintiff alleged that Saracino asked her to keep quiet about her complaints and to see Hansen's immediate supervisor, Vice President Delaney, about Hansen's behavior. According to Saracino, Gallagher asked him to keep quiet, because Gallagher did not want her performance reviews, which were written by Hansen, to be adversely affected.  

After continued harassment and several reports to Delaney, Gallagher was reassigned and moved to a different floor in the building.  Gallagher claimed that the move was a demotion; although she was paid the same, she was moved out of the prestigious vice president's suite, and she did not get to deal with customers and high-level executives to the extent that she had previously. Gallagher was also informed that she could be terminated if she used up all her sick days.  Hansen, in contrast, had allowed Gallagher generous sick leave.  In November of 1996, Gallagher was terminated for not reporting to work.  

The United States District Court, Judge Brieant presiding, granted the defendants' motion for summary judgment.  It found that any claims of harassment or retaliation prior to May of 1995 were time-barred; there was no actionable harassment after that date; and there was no retaliation.  

Viewing the evidence in the light most favorable to the plaintiff, the Second Circuit reversed.  Judge Weinstein held, "creating a mosaic with the bits and pieces of available evidence, a reasonable juror might picture either a malign employer using his position to pressure a subordinate for sexual favors or a benign boss trying -- however ineptly -- to express concern" for a subordinate who misinterpreted his actions. n14 A reasonable juror, Judge Weinstein continued, could also either find retaliation or a sensible managerial decision to separate incompatible employees.  
'A Mosaic'  

Judge Weinstein stated that the jury plays a more important role in sexual harassment suits because "[a] federal judge is not in the best position to define the current sexual tenor or American cultures in their many manifestations." n15 He further stated that "federal judges tend to be older and represent a very narrow strip of the broad American demographic spectrum," while at the same time, gender relationships in the workplace are "rapidly evolving," and the "views" of those relationships are "rapidly changing and conflicting." n16  

Hansen's acts toward Gallagher were, in the mind of Judge Weinstein, "ambiguous." He stated that, because "an Article III judge is not a hierophant of social graces," "[a] jury made up of a cross-section of our heterogeneous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation." n17  

After establishing its deference to juries, the court then examined the trial court's findings on quid pro quo harassment, hostile work environment and retaliation.  Although Judge Weinstein found that "there was much merit" to the trial court's findings that the plaintiff had no case, nevertheless the trial court erred in not finding triable issues of fact for all three claims.  

For the hostile work environment claim, the court found that a reasonable person could find that Hansen's ambiguous acts changed the condition of Gallagher's employment.  For the quid pro quo and retaliation claims, the court found that the change in sick leave policy presented sufficient evidence to get Gallagher's claims to a jury.

Some district courts seemed to have interpreted Gallagher as raising the bar for employer's counsel trying to prevail on summary judgment motions. Immediately following Gallagher, some district courts were very reluctant to grant summary judgment, even when the employer had argued persuasively for doing so.  

Rose v. Port Authority, 13 FSupp2d 516 (SDNY 1998), was such a case. Plaintiff Geraldine Rose was employed as an administrative assistant with the World Trade Institute of the Port Authority beginning in April 1990.  Rose, 62, felt continually discriminated against because of her age.  From 1991 until 1993, Rose addressed her age and race discrimination concerns to the Port Authority's Director of Human Resources.  On Sept. 15, 1995, Rose was discharged.  At the time, the Port Authority was in the midst of a workforce reduction, terminating all World Trade Institute employees with which it did not have contractual obligations.  Rose filed an action alleging retaliatory discharge and age discrimination.  

The District Court, Judge Leisure presiding, granted the Port Authority's summary judgment motion with respect to the age discrimination claim but allowed the plaintiff to proceed with the retaliatory discharge claim.  Finding the first two prongs of McDonnell Douglas satisfied, the court went on to address the third element:  
  • since such determination necessarily requires probing into the intent of the employer, the Second Circuit [in Gallagher] recently has indicated strongly that the evaluation of whether a plaintiff has met the third prong of the McDonnell Douglas test is not a question for a judge but for a jury. n18  

 Therefore, once the employer satisfies the second prong, "the plaintiff then has the full and fair opportunity to demonstrate, through presentation of his own case and through cross-examination of the defendant's witnesses, that the proffered reason was not the true reason for the employment decision, but was in fact a pretext for discrimination." n19  

 The District Court reached this outcome, despite the fact that the Port Authority provided a number of affidavits to support its non-discriminatory motive, and the plaintiff apparently had nothing beside her prima facie case to support her claim -- a prima facie case which Fisher v. Vassar College held "drops out of the picture" and does not necessarily support an inference of discrimination.
'Norton' and 'Distasio'  

While paying deference to Judge Weinstein's statement in Gallagher that the jury is generally the appropriate entity to determine the employer's intent, later Second Circuit cases have affirmed that summary judgment is just as appropriate in employment discrimination claims as in other types of cases.  

 In Norton v. Sam's Club, 145 F3d 114 (2d Cir. 1998), the plaintiff, a 55-year-old salesman, ate lunch with three of his fellow employees.  All present took half an hour longer for lunch than they claimed on their time sheets. Plaintiff's manager, who had been trailing plaintiff because of concern about his low productivity, fired the plaintiff and another of the employees, considering their act a "theft of time." Both fired employees were over 40, whereas only one of the spared employees was over 40.  Alleging that his termination was a pretext for age discrimination, the plaintiff sued and won a jury verdict for back pay, and the trial court increased the award to include front pay and attorney's fees.  

In an opinion by Judge Calabresi, the Second Circuit reversed. n20 While citing to Gallagher for the proposition that it is the primarily the province of the jury to draw inferences, "at the same time, however, a jury cannot infer discrimination from thin air." n21 Finding that the plaintiff had, at best, established "an extremely weak" prima facie case, the court went on to note that, while the employer's action may seem unduly harsh to a reasonable juror, "the [Age Discrimination Employment Act] does not make employers liable for doing stupid or even wicked things; it makes them liable for discriminating." n22 Accordingly, the court reversed the jury's verdict.  

The Second Circuit again returned to the question of whether Gallagher changed the summary judgment standards in Distasio v. Perkin Elmer Corp., 157 F3d 55 (1998). In this case, the Second Circuit reversed the trial court's granting of summary judgment, but nevertheless articulated a standard of review that did not imply district courts should be reluctant to grant the employer's motion for summary judgment.  

Judge Calabresi cited Gallagher for the proposition that "where questions persist as to whether the conduct at issue amounts to sexual harassment," summary judgment may be inappropriate.  Nevertheless, "summary judgment under Rule 56 is still fully appropriate, indeed mandated, when the evidence is insufficient to support the non-moving party's case." n23 Summary judgment applies just as much to discrimination claims as it does to other cases. n24 The court reaffirmed that a plaintiff may not defeat an employer's motion simply by declaring that the employer's intent is at issue; the "plaintiff must still offer concrete evidence from which a reasonable juror could return a verdict in [her] favor." n25  

The Second Circuit's decisions following Gallagher clearly indicate that Gallagher did not change the Circuit's interpretation of the McDonnell Douglas test.  The plaintiff's articulation of a prima facie case, standing alone, is not enough to overcome the employer's motion for summary judgment.  

Although examining employer intent is a fact-based inquiry, cases in which the plaintiff has not produced substantial evidence of discrimination must be disposed of in a proper summary judgment motion.  Nevertheless, Gallagher emphasized the important role juries play in establishing community standards of behavior, and in so doing, Gallagher appears to have underscored for federal district court judges the importance of focussing on the factual record to determine whether or not plaintiff has established a genuine issue of material fact from which a jury may conclude that discrimination has actually occurred.  


  n1 Courts in the Second Circuit are expressing increasing frustration with the McDonnell Douglas test.  It has been called a "ping-pong-like match" Greenway v. Buffalo Hilton Hotel, 143 F3d 47 (2d Cir. 1998), and a "thicket" Fesce v. Guardsman Elevator Co., 1998 WL 142350, at *7 n.5 (SDNY 1998).  Some courts have dispensed with the test's first two prongs entirely.  See, e.g., Fierro v. Saks Fifth Avenue, 13 FSupp.2d 481 (SDNY 1998). In a recent article, Judge Chin of the Southern District has called for the replacement of McDonnell Douglas with a more rational regime.  Chin, D. and Golinsky, J.  "Moving Beyond McDonnell Douglas: A Simplified Method for Assessing Evidence in Discrimination Cases," 64 Brook. L. Rev. 659 (Summer 1998).  
   n2 Gallo, 22 F3d at 1223.  
   n3 Woroski, 31 F3d at 107.  
   n4 Id. at 110.
 n5 Fisher v. Vassar College, 852 F.Supp. 1193 (SDNY).
   n6 Fisher v. Vassar College, 70 F3d 1420 (2d Cir. 1995).  
   n7 Fisher 70 F3d at 1437.  
  n8 Fisher v. Vassar College, 114 F3d 1332 (2d Cir. 1997) (en banc).  
   n9 Id. at 1336.  
   n10 Id. at 1337.  
   n11 Id.
   n12 Id.  
   n13 Id. at 1338.
   n14 Gallagher, 139 F3d at 342.
n15 Id.  
   n16 Id. at 343.  
   n17 Id. at 342.  
    n18 Rose, 13 FSupp2d at 522.  
n19 Id. at 522-23 (quotation marks omitted).  
   n20 Norton v. Sam's Club, 145 F3d 114 (2d Cir. 1998).  
   n21 Norton, 145 F3d at 119. See also Fierro v. Saks Fifth Ave., 13 FSupp2d 481 (SDNY 1998) (although issues of intent are primarily within province of jury, merely raising issue of employer intent does not preclude summary judgment); Brennan v. Metropolitan Opera, 1998 WL 193204 (SDNY 1998) (plaintiff must do more than raise question that employer's proffered motive for firing was pretextual).  
   n22 Id.  
   n23 Distasio v. Perkin Elmer Corp., 157 F3d 55, 61 (2d Cir 1998).  
n24 Id.  
   n25 Id. at 62 (quotation marks omitted).

Reprinted with permission from the June 7, 1999 edition of the New York Law Journal © 1999 ALM Properties, Inc. All Rights Reserved. Further duplication without permission is prohibited.

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