Kerzer v. Kingly Mfg.

Decision Date23 September 1998
Docket NumberNo. 98-7014,98-7014
Citation156 F.3d 396
Parties77 Fair Empl.Prac.Cas. (BNA) 1713, 74 Empl. Prac. Dec. P 45,539 Bonnie M. KERZER, Plaintiff-Appellant, v. KINGLY MANUFACTURING, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Stephen A. Agus, Agus & Partners, P.C., New York City (Marcy J. Melnikoff, of counsel), for Plaintiff-Appellant.

Susan T. Kluewer, Reisman, Peirez, Reisman & Calcia, L.L.P., Garden City, NY (Jerome Reisman, of counsel), for Defendant Appellee.

Before: WINTER, Chief Judge, DORSEY * and JONES, ** District Judges. ***

JONES, District Judge:

Plaintiff Bonnie M. Kerzer appeals from a grant of summary judgment entered in the United States District Court for the Southern District of New York, (Haight, J.), against her on her claim of employment discrimination based on pregnancy, brought pursuant to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).

Reversed and remanded.


Kingly Manufacturing ("Kingly") is a clothing wholesaler located in Manhattan engaged primarily in the sale of women's house coats and sleepwear. In July 1990, Kingly hired James Folkoff ("Folkoff") to establish a women's sportswear division at Kingly. On Folkoff's recommendation, Kingly also hired Kerzer in July 1990 to work as a clothing designer in the sportswear division. Sometime thereafter, and also on Folkoff's recommendation, Kingly hired Zenaida DeLeon ("DeLeon") to work as a pattern maker in the sportswear division. Kerzer, Folkoff, and DeLeon formerly worked together at Colonial Corporation, a now defunct clothing wholesaler.

Kingly's sportswear division services two clients, the GAP and Target Stores ("Target"). According to Kerzer, although her position at Kingly was that of "designer," she had additional responsibilities and performed different services for the GAP and Target. With respect to the GAP, Kerzer claims she performed product development, including researching and developing fabrics, embroideries, and trims, and ensuring the accuracy of prints, colors, specifications, and garment construction. With respect to both customers, Kerzer claims she performed duties related to sales, including, inter alia, meeting with the clients and preparing presentation boards showing designs, concepts, trends, colors, and styles. Furthermore, at the direction of Arthur Mintz ("Mintz"), Kingly's president, Kerzer claims she prepared presentation boards for customers other than the GAP and Target, and for clothing lines outside the sportswear division, such as women's and children's sleep wear.

In or about June 1992, Kerzer informed Kingly that she was pregnant and would be taking maternity leave beginning in December 1992. On December 14, 1992, Kerzer began her maternity leave. On January 17, 1993, she gave birth. According to Kerzer, Folkoff called her about two weeks later to ask her to move her return date up to March 1, 1993, because there was much work that Kingly needed her to do. According to Kingly, March 1 had always been Kerzer's scheduled return date.

On February 25, 1993, Kerzer, who was physically able to return to work on March 1, called Kingly to confirm her return date. Later that day, Mintz returned Kerzer's call and told her she was fired. By letter dated March 2, 1993, Kingly confirmed that Kerzer's employment had been terminated and informed her that her health insurance would continue until March 31, 1993. Kingly also included a check for two weeks' severance pay with the letter.

On June 24, 1993, Kerzer filed a charge of pregnancy discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). On September 30, 1994, the EEOC issued a right to sue letter. On December 27, 1994, Kerzer commenced the instant action claiming that Kingly discriminated against her on the basis of pregnancy in violation of the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991.

In support of her allegation of pregnancy discrimination, Kerzer presents both direct and circumstantial evidence. Specifically, Kerzer states by affidavit that Mintz once said in late 1990 "that an employer could easily get away with [discharging a pregnant employee], by stating that the position was eliminated," Kerzer Aff. p 35, and that in the summer of 1992, following her announcement that she was pregnant, "Mintz became downright unfriendly toward [her]," id. p 38. Furthermore, Judith Badillo ("Badillo"), a former Kingly employee, states by affidavit that she once heard Mintz remark that Kerzer's pregnancy "was a sign that [Kerzer] 'was lazy.' " Badillo Aff. p 37.

Moreover, Kerzer claims that Mintz informed her, in early December 1992, that when she returned to work after her maternity leave she would be trained on a Computer Aided Design ("CAD") system. Kerzer asserts, however, that shortly after her discharge, Kingly hired "another designer named Heather" who was assigned to Kerzer's former office and who used the CAD. The "Heather" to whom Kerzer refers is Heather Bahorsky ("Bahorsky"), an employee who began working at Kingly on a part-time basis in May or June 1993, and on a full-time basis in July 1993, approximately two to four months after Kerzer was fired. Bahorsky was not pregnant when Kingly hired her. 1 Badillo corroborates Kerzer's assertions and states that:

Shortly after [Kerzer's] departure, a designer named Heather was hired by Kingly; they stated that her purpose was solely to design women's sleepwear; but she actually did design children's wear as well, and performed a number of other tasks previously performed by [Kerzer]. It was obvious that this person was hired to replace [Kerzer], even though Kingly made efforts to disguise this fact. Heather was put in [Kerzer's] former office.

See id. p 8.

Kerzer further claims that Folkoff telephoned her at her home in early February 1993 and asked her to move her anticipated return date up because there was a high volume of work to be done at Kingly. She argues that this demonstrates that her services were still needed at Kingly. Kerzer also points to the fact that she was dismissed over the telephone shortly before her scheduled return date and directly following her call to Kingly to confirm her return date. She contends that this casts doubt on Kingly's assertion that its decision to discharge her stemmed from a legitimate business purpose.

In defense, Kingly claims that it eliminated Kerzer's position because Kerzer's services were no longer required due to the fact that the sportswear division's two clients, the GAP and Target, designed their own garments. Kingly further claims that it did not replace Kerzer with Bahorsky or anyone else. In support of these assertions, Kingly submits affidavits from Mintz, Folkoff, Bahorsky, and other Kingly employees.

On August 28, 1996, Kingly filed a motion for summary judgment. The district court granted Kingly's motion holding that Kerzer failed to establish a prima facie case of pregnancy discrimination. Furthermore, the district court held that even if Kerzer had established a prima facie case, she had failed to demonstrate that Kingly's proffered reason for terminating her employment---namely, its realization during Kerzer's maternity leave that Kerzer's services were no longer required---was pretextual.

This appeal followed.

A. Summary Judgment

We review a district court's grant of summary judgment de novo. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir.1998). Summary judgment is inappropriate 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). On a motion for summary judgment, the moving party has the burden of showing the absence of a genuine issue of material fact, and the district court's task is limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. See Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994). In deciding such a motion, we, like the district court, must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.1995). Conclusory allegations, conjecture, and speculation, however, are insufficient to create a genuine issue of fact. See D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). Furthermore, in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment. See Gallo, 22 F.3d at 1224. We reverse a grant of summary judgment if there is any evidence in the record from which a jury could draw a reasonable inference in favor of the nonmoving party on a material fact, i.e., a fact that might affect the outcome of the suit. See Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998).

B. Pregnancy Discrimination Act

Kerzer brought this action against Kingly for allegedly discriminating against her on the basis of pregnancy in violation of the PDA. The PDA provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise." 42 U.S.C.2000e(k).


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