Renz v. Grey Advertising, Inc.

• Citation: 135 F.3d 217
• Decision Date: 02 September 1997
• Docket Number: D,No. 1244,1244
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 755, 73 Empl. Prac. Dec. P 45,324 Maryanne RENZ, Plaintiff-Appellant, v. GREY ADVERTISING, INC., Defendant-Appellee. ocket 96-7775.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 217

135 F.3d 217

74 Fair Empl.Prac.Cas. (BNA) 755,

73 Empl. Prac. Dec. P 45,324

Maryanne RENZ, Plaintiff-Appellant, v. GREY ADVERTISING, INC., Defendant-Appellee.

No. 1244, Docket 96-7775.

United States Court of Appeals, Second Circuit.

Argued May 1, 1997.

Decided Aug. 4, 1997.

As Amended Sept. 2, 1997.

Jeffrey M. Bernbach, New York City (Jason L. Bernbach, New York City, on brief), for Plaintiff-Appellant.

Howard J. Rubin, New York City (Neal H. Klausner, Michael E. Kreitman, Davis & Gilbert, New York City, on brief), for Defendant-Appellee.

Before: MESKILL and NEWMAN, Circuit Judges, and McAVOY, ^* Chief District Judge.

JON O. NEWMAN, Circuit Judge:

This appeal primarily presents the question of whether, in an age discrimination case, a charge instructing the jury that the plaintiff bears the burden of proving that her age was the "real reason" for her discharge was erroneous. The issue arises on an appeal by plaintiff Maryanne Renz from the May 29, 1996, judgment of the District Court for the Southern District of New York (Charles M. Metzner, Judge), dismissing Renz's employment discrimination complaint following a jury verdict in favor of defendant Grey Advertising, Inc. ("Grey"). Although we conclude that the charge erred by using "the real reason" formulation of the plaintiff's burden, we affirm the judgment of the District Court because the error was harmless.

Background

Renz, a female with more than 30 years of experience in the advertising industry, alleges that she was terminated by Grey in March 1994 because of her age, her gender, and her status as an older woman. Grey contends that it fired Renz because of her poor performance in several crucial job functions. The following statement of facts summarizes the evidence and testimony presented at trial.

Renz was hired by Grey as an associate creative director in August 1991, one week shy of her 50th birthday. Her salary at that time, and until her discharge in March 1994, at the age of 52, was $100,000 a year. Renz initially worked in a creative group headed by Jim Morrisey, but was transferred to a group headed by David Liemer, a 36-year- old group creative director, in the summer of 1992. Liemer requested Renz to join his group. In the period immediately prior to Renz's transfer, Liemer's group consisted of eight employees: Aristedes Kambanis (male, age 57), Carolyn Bien (female, age 53), Anthony Mobilia (male, age 53), Larry Farley (male, age 50), William Urban (male, age 48), Robert Signorile (male, age 46), Walter Winchurch (male, age 37), and Maureen McKeown (female, age 26). When Liemer selected Renz, then 50 years old, to serve as second-in-command of his group, he terminated Signorile's employment. The other seven employees at the time of Renz's initial transfer remained on Liemer's staff at the time of her discharge.

Renz's duties required her to help Liemer with whatever aspects of the business he could not personally attend to himself, including meeting with clients, representing his group at meetings with senior-level account managers at Grey, and presenting advertising proposals to clients. Grey's representatives testified that the firm eventually decided to terminate Renz because of her poor performance in discharging her duties as Liemer's deputy. Three incidents were emphasized.

The first incident concerned Renz's presentation of an advertising proposal created by Liemer's group for the "Aqua Fresh" toothpaste product of SmithKline Beecham, one of Grey's largest accounts worldwide. At this meeting in the fall of 1992, which Liemer could not attend, Renz was responsible for presenting and reading the proposed commercials to both Grey account executives and representatives of the client. She read the advertisements in a flat and emotionless manner and did not adequately explain the different scenes in them. Richard Krain, the Grey executive in charge of the Aqua Fresh account, witnessed Renz's performance and testified that he was "embarrassed by the whole thing" and that "the meeting was a disaster." Krain also testified that a representative of the client conveyed similar sentiments about Renz's performance to him, telling him that "it was the worst presentation he had ever seen." After that meeting, Krain met with Liemer and informed him about Renz's poor presentation and the client's dissatisfaction with her work. Krain told Liemer that, from that point forward, Renz could not present advertising to this client without Liemer's presence.

The second episode concerned Renz's presentation of an advertising proposal for the "Banana Nut Crunch" cereal product of Kraft General Foods, one of Grey's most important clients. During this presentation in May 1993, attended by Grey account management personnel and high-level executives of the client, Renz again made a poor showing. Instead of presenting the commercial with the appropriate emotion and inflection, which is the presenter's job, Renz repeatedly stumbled over her words and read the advertisement haltingly, with a stammer, and in a monotone. Renz admitted on direct examination that this "was probably the worst presentation [she had] ever done." After this meeting, Jack Frantz, the Grey executive in charge of the Kraft General Foods account, told Liemer that he thought Renz's presentation was "horrible, terrible, [and] unsatisfactory." Frantz also informed Liemer that he did not want Renz to make any more presentations to this client, with or without Liemer's presence. Liemer agreed that after Renz completed her work for the Banana Nut Crunch commercial, she would no longer work on any General Foods business.

The third incident concerned Renz's work on the National Dairy Board account during 1992 and 1993. Dwight Leeper, the Grey executive in charge of this account, testified that Renz was "arrogant," "difficult to work with," and unwilling to "implement what the client saw as good advertising." Leeper met with Liemer and told him about these and other problems that the account management group was having with Renz. Leeper also informed Liemer that the client did not have confidence in Renz.

As a result of these and other difficulties concerning Renz's performance, Liemer met with Kevin Bergin, Grey's director of personnel, and other Grey executives in July 1993 to discuss Renz's future at Grey. They decided to place Renz on a probationary "evaluation period" for two months, and to reach a decision regarding her employment status in October of that year. Liemer and others present during the July 1993 meeting testified that Liemer did not wish to discharge Renz, but wanted her to succeed as his second-in-command. After the meeting, Liemer met with Renz and informed her about some of the complaints concerning her job performance--most notably her poor presentation of advertising proposals and her inability to get along with Grey account executives and client representatives. Liemer eventually told Renz that if her performance in these areas did not improve by October 1st, she would be discharged.

Because Renz was not given sufficient opportunity to prove herself by October 1993, Grey and Liemer extended the deadline to March 1994. Renz was given several opportunities to present advertising campaigns to clients and to interact with them and Grey account executives during this period, but did not perform to Grey's satisfaction. For instance, at the presentation to the client of a National Dairy Board commercial containing music and lyrics, Renz, despite instructions from Liemer to sing the lyrics, simply read through the commercial. The Grey executives in charge of this account continued to be dissatisfied with Renz's work.

Renz was terminated in March 1994, less than two years after Liemer had selected her to join his group. She was 52 years old. Liemer hired Rhonda Peck, a 43-year-old female, to replace Renz. At the time Renz was discharged, Liemer had fourteen employees in his group. Five were female, ten were over the age of 40, and three were females over the age of 40.

Although Renz admits to some deficiencies concerning her presentation of advertising proposals and her rapport with clients and Grey account executives, she contends that she performed extremely well in her primary task of creating and writing advertisements and that her poor performance in the other aspects of her job did not play a role in Grey's decision to discharge her. She contends that Grey fired her because of her age, her gender, and her status as an older woman. Renz presented no direct evidence that prohibited discrimination of any kind played a role in her firing, however, and offered no supporting statistical evidence concerning the age and/or gender of the other employees in Liemer's group or in Grey generally. Rather, her entire case rested upon several comments made by Liemer that purportedly betray an age and/or gender bias on his part. These are set forth in the margin. ¹ Renz conceded during her testimony that neither Liemer nor anyone else at Grey ever made a comment about or toward her that reflected age or gender bias.

Renz filed suit in September 1994, alleging that Grey discriminated against her on the basis of her age, her gender, and her status as an older woman, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1)-(2), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Exec. Law § 296(1)(a). At the conclusion of Renz's case, the District Judge granted Grey's motion for judgment as a matter of law on Renz's Title VII sex and "sex plus age" claims on the ground that she had failed to present sufficient evidence to support a reasonable inference that either her gender or her status as an older woman played a role in her termination. At the charge conference, Judge Metzner dismissed Renz's claim for emotional distress damages, made in connection with her state human rights...