Song v. Ives Laboratories, Inc.
| Decision Date | 25 February 1992 |
| Docket Number | No. 394,D,394 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 1072, 58 Empl. Prac. Dec. P 41,306 Samuel S. SONG, Plaintiff-Appellant, v. IVES LABORATORIES, INC., Defendant-Appellee. ocket 91-7621. |
| Court | U.S. Court of Appeals — Second Circuit |
Raymond F. Gregory, New York City (Raymond G. Gregory, of counsel), for plaintiff-appellant.
David Dunn, New York City (Suzanne M. Reisman, Davis, Markel & Edwards, of counsel), for defendant-appellee.
Before OAKES, Chief Judge, FEINBERG and ALTIMARI, Circuit Judges.
Plaintiff-appellant Dr. Samuel S. Song appeals from a judgment non obstante veredicto ("judgment n.o.v.") entered in the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge), which overturned a jury finding that Song's termination by his former employer, Ives Laboratories, Inc. ("Ives"), constituted unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and New York State Human Rights Law, N.Y.Exec.L. § 296 ("Executive Law § 296"). As an alternative holding, the district court set aside the jury verdict and ordered a new trial.
In the underlying action, Song charged that Ives violated Title VII and Executive Law § 296 by failing to offer him certain pay increases and bonuses, and ultimately by terminating him from his position, as a result of his Korean national origin. After a jury trial before Judge Martin, the jury found by special interrogatories that Ives had not discriminated against Song when it denied him salary increases and bonuses in 1981 and 1982, but that Ives' decision to terminate Song in 1983 did constitute unlawful discrimination based on anti-Korean animus. On post-trial motions by Ives, the district court entered judgment n.o.v. with respect to Song's termination claim, determining that "there is no basis on which a reasonable person could conclude that Dr. Song's job performance was satisfactory or that circumstances suggest that his national origin was a factor in the defendant's decision to terminate his employment." As an alternative holding, the district court set aside the jury verdict and ordered a new trial. Song now appeals.
For the reasons set forth below, we reverse the judgment n.o.v., affirm the alternative holding granting a new trial, and remand for a new trial consistent with this opinion.
Dr. Samuel S. Song, a Korean national, joined defendant Ives as an Associate Medical Director in May of 1975. Song, a Korean-trained cardiologist, performed over twenty cardiovascular research studies on behalf of Ives between 1975 and 1981. During this period, Song received annual salary increases and incentive stock awards, as well as biennial stock options.
In 1981, Song's supervisor, Dr. Clarence Denton, grew dissatisfied with Song's performance and abrasive demeanor. Denton brought these complaints to the attention of Ives management. On July 30, 1981, management representatives of Ives and its parent company, American Home Products Corporation, met to discuss Song's dismissal. At this meeting, the representatives discussed, among other things, Denton's complaints regarding Song's bad temper, poor interpersonal skills, and inability to take direction from superiors. After reviewing Song's qualifications, performance and personality, as well as noting his ethnic origin, the representatives at the meeting concluded that Song should be explicitly warned of his shortcomings.
Several months later, in December 1981, Denton and Dr. Alfred Ling, Ives' Vice-President for Clinical Research, confronted Song and discussed with him the areas in which his job performance was unacceptable. In particular, Ling and Denton criticized Song's attendance, productivity and poor working relationships with other Ives employees. They also informed Song that on the basis of this unsatisfactory review, he would not be receiving any pay increase for the coming year. This verbal critique was memorialized in a detailed memorandum from Ling and Denton to Song, dated January 11, 1982. Among other things, the memorandum warned that Song must rectify his poor relationship with Denton, mistreatment of his secretaries and Clinical Research Assistants ("CRA's"), condescending attitude toward colleagues, and failure to make creative contributions on the projects of other Ives physicians. Song sent a reply memorandum to Ling and Denton in February 1982 rebutting the criticisms against him.
After Ives management delivered the January 11, 1982 memorandum, it did not issue Song any further formal performance In September 1983, Ling, acting at the behest of Song's new supervisor, again recommended to Ives management that Song's employment be terminated. In a memorandum to the President of Ives, Ling pointed to only two bases for Song's termination: Song's "[c]ontinued difficulty working with ... the secretarial staff, and ... clinical research associates," and, his "[p]ersistent lack of ability to work and communicate with his peers." Although Ling also noted that Song "offer[ed] little, if any, input during meetings[,] fail[ed] to demonstrate any enthusiasm for his work[,]" and made a contribution to Ives which was "negligible at best," he did not reiterate any of the other problems cited in the January 11, 1982 memorandum. Indeed, Ling specifically based his recommendation of discharge on Song's failure to improve his relationships with his peers and subordinates, since he had previously been criticized for this shortcoming. Acting on Ling's recommendation, Ives management authorized Song's termination in September 1983. Song was subsequently removed from the payroll on December 31, 1983.
critiques. Nevertheless, throughout 1982 and 1983, Ives did not award Song any increases in compensation or incentive bonuses, as it customarily had done prior to January 1982. When Song asked why he was denied these bonuses, Denton told Song that his attitude had not yet improved. At the end of 1982, Ives once again refused to offer Song a pay increase for the new year
In May 1984, Song filed a charge of discrimination with the Equal Opportunity Employment Commission ("EEOC"). In March 1986, the EEOC determined that there was "no reasonable cause to believe" that Song's termination was the product of unlawful discrimination and thus issued Song a right-to-sue letter. Song then commenced the underlying action under both Title VII and Executive Law § 296, alleging employment discrimination based on his Korean origin.
At trial, Song offered a substantial amount of evidence to support his contention that his job performance was satisfactory, i.e., that he had good relationships with his co-workers, and that his termination was based on anti-Korean animus. Several of Song's former co-workers testified that they had enjoyed professional and amicable relationships with Song. Song also produced Denton's deposition, which stated that although Denton had recommended Song's discharge in 1981, he felt it was no longer warranted in 1983. Moreover, Charles Beach, Ives' Treasurer at the time of Song's termination, testified that Song had been discharged for "lack of adaptability," a phrase which, according to Beach, had no particular meaning, but was used when Ives wanted "to get rid of somebody."
As evidence that his discharge was motivated by anti-Korean animus, Song testified that Ling, who is Chinese, was prejudiced against Koreans. This assertion was corroborated by the testimony of Dr. Atul Laddu, a former Ives employee, who stated that at one meeting, Ling berated Song and two other Korean doctors for no apparent reason and that at another meeting Ling openly declared that "these Koreans are stupid people." Song argued that such anti-Korean prejudice was communicated to the management representatives who attended the July 30, 1981 meeting at which Song's discharge was discussed. Indeed, one representative taking notes at the meeting had written, "Korean military--authoritarian," a reference to Song's military service that Song argued was based on a prejudicial stereotype.
In contrast, Ives offered as its rationale for Song's termination his continued difficulty in working with his colleagues and those assigned to him. To support this claim, several Ives employees testified that Song mistreated his secretaries and CRA's. Additionally, Ives pointed to Song's admission that on at least two occasions after he received the January 11, 1982 memorandum, he had been informally criticized for continuing to mistreat his support staff. Ives denied that anti-Korean animus played any role in Song's termination, characterizing Ling's comments as "stray remarks." Moreover, Ives argued that the notation referring to Song's military training was In sum, the jury was presented with conflicting testimony concerning Ives' stated reason for Song's termination--his alleged inability to work with others. Indeed, although Ives presented substantial evidence of friction between Song and his co-workers, all of this evidence was controverted by co-workers reporting no such friction.
based on the statements of an Ives executive who retired soon thereafter and played no part in the decision to discharge Song.
After deliberation, the jury found by special interrogatory that Song had not "proved that Ives Laboratories would have granted him wage increases and MIP awards in 1981 and 1982 but for the fact that he was of Korean origin." The jury did find, however, that Song had "proved by a preponderance of the evidence that Ives Laboratories would not have discharged him in 1983 but for the fact that he was of Korean origin."
After the jury returned its verdict, Ives moved for a judgment n.o.v. on the issue of discriminatory discharge, contending that no reasonable juror could have concluded that Song had carried his burden of establishing...
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