Gallo v. Prudential Residential Services, Ltd. Partnership

Decision Date27 April 1994
Docket NumberNo. 576,D,576
Citation22 F.3d 1219
Parties64 Fair Empl.Prac.Cas. (BNA) 950, 64 Empl. Prac. Dec. P 42,998, 62 USLW 2719 Carol A. GALLO, Plaintiff-Appellant, v. PRUDENTIAL RESIDENTIAL SERVICES, LIMITED PARTNERSHIP, doing business as Prudential Relocation Management, Defendant-Appellee. ocket 93-7556.
CourtU.S. Court of Appeals — Second Circuit

Anne Golden, White Plains, NY, for plaintiff-appellant.

Lawrence Peikes, Stamford, CT (Paul, Hastings, Janofsky & Walker, Stamford, CT, of counsel), for defendant-appellee.

Leonard N. Flamm, Nat. Employment Lawyers Ass'n, New York City, filed a brief for amicus curiae Nat. Employment Lawyers Ass'n.

Before: NEWMAN, Chief Judge, CARDAMONE and GOODWIN *, Circuit Judges.

CARDAMONE, Circuit Judge:

Plaintiff, Carol A. Gallo, appeals from a grant of summary judgment entered in the United States District Court for the Southern District of New York (Goettel, J.) in favor of Prudential Residential Services (Prudential). Gallo was an employee of Prudential. On this appeal we must decide whether summary judgment dismissing this employee's complaint alleging discrimination on account of age was properly granted to her employer.

The reason given by Prudential for termination was a reduction-in-force. Such action has become a common phenomenon sweeping corporate America as businesses downsize to meet competition and to increase productivity and profitability. Economic decisions of that sort are, of course, outside a court's purview. But sometimes the validity of a company's legitimate reduction masks, in an individual case, a discriminatory animus. Where an employee can show that reduction in force was a pretext for her discharge and she alleges facts which, if believed, would prove intentional discrimination against her because of her age, summary judgment is inappropriately granted the employer. Because plaintiff has alleged such facts, we reverse.


Carol Gallo was hired by Merrill Lynch Relocation Management in 1982 as an internal communications specialist. She had previously been employed by Lear Siegler, Inc., as Manager of Marketing Services. In 1989, seven years after plaintiff began working for Merrill Lynch, the business was acquired by Prudential Relocation, which company became plaintiff's employer. After the acquisition, Prudential took over Merrill Lynch Relocation Management's White Plains, New York, headquarters and continued the relocation business with most of the same employees, including plaintiff Gallo. Internal Communications was part of Prudential's Human Resources Department headed by Michael New. In 1990 New, as Director of the department, promoted plaintiff to Manager of Internal Communications, a grade 29 position.

Gallo's responsibilities in that position were primarily concerned with communications to employees of Prudential. She published a newsletter, The Relocators, distributed to employees, and sometimes clients, four times a year. Gallo also developed and published a newsletter targeted toward the management staff of Prudential Relocation called Management Tips, as a means to support management in relating effectively with subordinates. She oversaw the production of three other publications: Direct Line, Action Line, and Swap & Shop. Direct Line was written to aid real estate brokers and relocation directors of real estate companies other than her employer. It provided tips on how to market homes effectively, how to help clients who would be relocating, and other related issues. Action Line was a vehicle through which employees could have their questions answered by senior management. Swap & Shop was a sort of in-house classified ad service for employees who wished to sell or buy something.

When Prudential was relocating two of its offices during 1990, plaintiff was responsible for developing an action plan for communicating with the company's employees in order to facilitate the move with the least disruption to the workforce and to provide continuing service to clients. In addition, Gallo was involved with two employee recognition programs, "Spirit of Leadership," and "Single Payment Bonus Program," directing the former and marketing both to the employees and keeping the staff informed about them. Plaintiff alleged without dispute that in the course of her employment for the defendant and its predecessor, her responsibilities included working on any new internal communications functions her employer initiated. As a result of her effective performance of these multi-faceted duties she regularly received positive performance reviews--either good or excellent--from her supervisors.

In late 1990 and early 1991 Prudential experienced a downturn in its business. It decided to eliminate the Internal Communications Department and transfer any remaining work to Public Affairs, which later became the Marketing Department. The Relocators was transferred to Marketing and renamed The Pinnacle. The other four publications plaintiff was responsible for producing were then eliminated. The employee recognition and community affairs projects were retained by Human Resources and handled by a 49-year old employee.

Priscilla Toomey, Senior Vice-President for Public Affairs consulted Thomas Jago, Director of Marketing, to determine if he wanted Gallo transferred to his department. When Mr. Jago responded negatively, the decision to discharge plaintiff instead of Marketing Department employees was made. Thus, effective May 31, 1991 Gallo, then aged 50, was fired, receiving severance and outplacement assistance as part of her termination package. Mr. Jago and Mrs. Jeanne Marks, both in their thirties, took over publication of The Pinnacle. Other marketing employees contributed to the publication as needed, while continuing to perform marketing duties that were not part of the former Internal Communications Department.

Since May, 1991 when Marketing took over production of The Pinnacle, four members of that department have left Prudential. To fill these vacancies, Prudential ran a blind advertisement in a local newspaper soliciting applicants for the position of Communications Editor in charge of internal publications. Unaware that Prudential was the employer who placed the advertisement, Gallo responded. Jago was in charge of hiring for this position. When he learned Gallo had applied, he declined to interview her. In his deposition, New stated the reason Jago did not interview Gallo could have been because "he was looking for a different skills set." Instead of considering Gallo, Jago interviewed six to eight women; several of whom were in their 20s. In March, 1992 one of these women filled the vacant position. Soon thereafter, Prudential hired another of these women as a Corporate Communications Specialist when another employee left the Marketing Department. Gallo contends that as a result of these actions Prudential, in one form or another, reinstated all the discontinued internal publications she had previously been in charge of and assigned production responsibility for these publications to the newly hired younger employees.

Prudential counters that the Marketing employees who presently have responsibility for internal communications functions continue to do external communications work, including writing proposals to clients, advertising, conference coordination and media contacts. Because Prudential substantially restructured marketing, it avers that the persons who filled the vacancies are not responsible for Gallo's previous duties.

Prudential does not dispute that it began production of several new publications within nine months or so of Gallo's discharge. PDQ, a newsletter supporting the company's total quality management effort, was initiated to keep employees informed of the program. At least one marketing employee spends approximately 30 percent of her time producing this publication. This same employee, in addition, spends 15 percent of her time writing for The Pinnacle. Prudential also initiated Inside PRM, an external publication targeted at brokers in the Prudential Network. Special Delivery, an electronic bulletin board, provides employees with access to current news about the company. Open Phones replaced Action Line.

In January 1992 plaintiff filed a complaint with the Equal Employment Opportunity Commission alleging Prudential discharged her because of her age. After concededly exhausting all administrative requirements, she commenced the instant action in the Southern District of New York alleging violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621-634 (1988 & Supp. IV 1993), and the New York Human Rights Law, N.Y.Exec. Law Secs. 290-296 (McKinney 1993). The complaint asserts she suffered extreme emotional distress and sought damages for lost wages and benefits, medical expenses, attorneys fees and costs along with injunctive relief and reinstatement.

When Prudential moved for summary judgment, the district court granted the motion dismissing plaintiff's complaint in a judgment entered May 11, 1993, stating that even if plaintiff had made out a prima facie case of age discrimination, she had failed to show that Prudential's reason for her termination was pretextual.

This appeal followed.

A. Summary Judgment

Considering how often we must reverse a grant of summary judgment, the rules for when this provisional remedy may be used apparently need to be repeated. First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. See Heyman v. Commerce & Indus....

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