69 F.3d 1235 (2nd Cir. 1995), 94-7445, Cook v. Arrowsmith Shelburne, Inc.

Docket Nº:94-7445.
Citation:69 F.3d 1235
Party Name:Mary COOK, Plaintiff-Appellant, v. ARROWSMITH SHELBURNE, INC., KDT Industries, Inc., and Clifton Lind, Defendants-Appellees.
Case Date:November 08, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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69 F.3d 1235 (2nd Cir. 1995)

Mary COOK, Plaintiff-Appellant,



Clifton Lind, Defendants-Appellees.

No. 94-7445.

United States Court of Appeals, Second Circuit

November 8, 1995

Submitted June 15, 1995.

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[Copyrighted Material Omitted]

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Andrew Jackson, Middlebury, VT, for Plaintiff-Appellant.

Alison J. Bell, Burlington, VT, (Langrock Sperry & Wool, Burlington, VT), for Defendants-Appellees.

Before: WINTER, JACOBS, and CABRANES, Circuit Judges.

WINTER, Circuit Judge:

Mary Cook appeals from Judge Billings's grant of summary judgment and dismissal of her amended complaint. The amended complaint alleged that the various appellees fired her because of her gender in violation of the Vermont Fair Employment Practices Act, 21 V.S.A. Sec. 495 et seq. ("VFEPA") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. It also alleged state common law claims of wrongful discharge and intentional infliction of emotional distress. Because Cook has established a prima facie case of gender discrimination, we reverse the grant of summary judgment as to the Title VII and VFEPA claims. We also reverse the grant of summary judgment for the parent corporation concerning its liability for the discriminatory acts of its wholly-owned subsidiary. With respect to the state common law claims, the district court's grant of summary judgment is affirmed. We affirm the dismissal of the claims against Cook's supervisor.


On an appeal from a grant of summary judgment we view the facts in the light most favorable to the non-moving party, in this case Cook. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Henry v. Daytop Village, Inc., 42 F.3d 89, 92 (2d Cir.1994).

Based on the record before us, a trier of fact might find the following. Cook worked for defense contractor Arrowsmith Shelburne, Inc. ("ASI"), a wholly-owned subsidiary of KDT Industries, Inc. From 1987 to 1992, she was a Senior Buyer and Materials Manager responsible for, inter alia, negotiating procurement contracts to build technical military equipment. Cook was highly regarded by her supervisors, Ned Arcouette and Robert Martin, and the ASI controller, Michael Morgan, and received outstanding performance evaluations throughout her employment with ASI.

In 1991, appellee Clifton Lind assumed the title of General Manager of ASI. Lind was, however, on KDT's payroll. Lind did little to conceal his negative view of women. There is evidence that he referred to females in vulgar terms and stated that they were "basically ... on the earth for fucking purposes only." These remarks at times focused on women in the workplace. Arcouette stated in an affidavit that Lind made hostile remarks not only about female workers in general but also specifically about the abilities of ASI's female employees, referring to them as "a bunch of dumb cunts." Lind also described one female employee as "another woman who ha[s] risen to the level of incompetence, how does shit like this happen," and another as "an overpaid sour pussed bitch."

Arcouette often heard Lind say that he particularly disliked Mary Cook. Arcouette did not understand Lind's attitude because Lind had little opportunity to observe Cook during the work day and "basically had no contact with her work product." Arcouette, who directly supervised Cook's work, considered her to be an outstanding employee. When Lind saw the outstanding performance evaluation given Cook by Arcouette, he asked Arcouette to downgrade the evaluation and said, "how am I ever going to get rid of her if you keep giving her performance appraisals like this"? Arcouette refused to alter the evaluation but told Lind that, as his superior, Lind was free to change the evaluation if he so desired. Lind unsuccessfully asked Martin to persuade Arcouette to alter his performance review of Cook.

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On another occasion, Lind asked Morgan to prepare a list of employees who could be terminated as part of a reduction in force. Upon receiving a list that did not include Cook, Lind asked Morgan to put Cook's name on the list. Morgan replied that he did not believe Cook should be laid off and would not alter the list.

On May 21, 1992, while Arcouette was away on business, Lind ordered Martin to fire Cook. Cook stated in a deposition that when she asked Martin and Arcouette why she had been dismissed, she was told that "Clifton [Lind] did not have any respect for women in positions of authority; and that he wanted a man in that job." 1

Subsequently, Lind asked Arcouette to assume Cook's duties so as to create an upgraded buyer's position. Arcouette's affidavit states that Lind made this request specifically to help Lind "get his ass out of hot water." In Arcouette's view, this was an attempt by Lind to create the appearance of a legitimate corporate restructuring, in light of the controversy within the company over Cook's discharge. Arcouette refused the upgraded position and informed his superiors that he did not wish to be associated with a company that treated its employees in such a fashion.

Arcouette's and Morgan's affidavits both state that Cook's layoff violated ASI's policy regarding the selection of persons to be laid off pursuant to a reduction in force. That policy entailed a three-pronged inquiry: (i) whether some other employee can perform the same job; (ii) whether the job can be combined with another position; and (iii) if two or more individuals could do the job, how they have performed in the past. In Arcouette's and Morgan's opinion, Cook was the only employee who could do her particular job; the job was a full-time position; and Cook was performing in an exemplary fashion. Morgan further stated that, after Cook was let go, ASI had to advertise to hire a replacement for her, a male who had to be paid approximately 33 percent more than Cook.

On December 17, 1992, Cook filed the present action against ASI, KDT, and Lind. Her original complaint alleged a violation of the Consolidated Omnibus Budget Reconciliation Act, known as COBRA, 29 U.S.C. Secs. 1161-69; gender discrimination in violation of the VFEPA; wrongful discharge; and intentional infliction of emotional distress. On appellees' motion for summary judgment, the district court held that: (i) the allegations regarding COBRA did not state a claim for relief, (ii) KDT Industries could not be held liable as ASI's parent corporation for the actions of ASI, (iii) Lind could not be held personally liable for any employment-based claims, (iv) Cook failed to show a "causal connection" between her discharge and her gender, and (v) defendants were entitled to judgment as matter of law on the state common law claims. Summary judgment was entered dismissing all claims.

Cook appealed but abandoned the COBRA claim. On October 24, 1994, we entered a summary order holding that, because of the abandonment of the COBRA claim, Cook's complaint no longer adequately alleged either federal question or diversity jurisdiction. However, subsequent to the docketing of the appeal, Cook had fulfilled the administrative requirements for bringing an action under Title VII, and we remanded the case with instructions to allow Cook to amend her complaint to add a Title VII claim and for the court to conduct appropriate further proceedings. We directed that jurisdiction would be

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restored to this panel upon any further appeal based on the amended complaint.

On remand the case was referred to Magistrate Judge Niedermeier. The magistrate judge recommended that Judge Billings grant defendants' motion for summary judgment on the Title VII claim on the ground that the standards of proof under Title VII and VFEPA are identical and, thus, Judge Billings's earlier determination under Vermont law was dispositive. The district court adopted the magistrate judge's report and recommendation, thereby granting summary judgment to appellees on the Title VII claim. Cook appealed, jurisdiction was thus restored to this panel, and the new appeal was submitted with letter briefs. We now reach the merits.


We review a district court's grant of summary judgment de novo. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993).

A. Gender Discrimination Claims

The VFEPA is patterned on Title VII, and the standards and burdens of proof under state law are identical to those under federal law. See Sprague v. University of Vermont, 661 F.Supp. 1132, 1140 (D.Vt.1987); Cobb v. Dufresne-Henry, Inc., 603 F.Supp. 1048, 1053 (D.Vt.1985). Accordingly, we analyze Cook's VFEPA and Title VII claims together.

To establish a prima facie case of gender discrimination, a female plaintiff must show that she was qualified for the position, that her employer discharged her, and that the employer sought or hired a male to replace her. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 and n. 13, 93 S.Ct. 1817, 1824 and n. 13, 36 L.Ed.2d 668 (1973); Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253-54 and n. 6, 101 S.Ct. 1089, 1094 and n. 6, 67 L.Ed.2d 207 (1981); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir.1994). The district court, which stated only that there was no "causal connection" between Cook's discharge and her gender, appears to have held that Cook failed to proffer evidence sufficient to meet this burden. We disagree. There is ample evidence that she performed her work in an exemplary fashion, was fired, and was replaced by a male.

When a plaintiff's evidentiary proffer meets the McDonnell Douglas test for a prima facie case, the burden of production to offer a legitimate non-discriminatory reason...

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