Marks v. National Communications Ass'n, Inc.

• Decision Date: 26 October 1999
• Docket Number: No. 95 Civ. 9727(PKL).,95 Civ. 9727(PKL).
• Citation: 72 F.Supp.2d 322
• Parties: Deborah MARKS, Plaintiff, v. NATIONAL COMMUNICATIONS ASSOCIATION, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

72 F.Supp.2d 322

Deborah MARKS, Plaintiff, v. NATIONAL COMMUNICATIONS ASSOCIATION, INC., Defendant.

No. 95 Civ. 9727(PKL).

United States District Court, S.D. New York.

October 26, 1999.

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Law Offices of Samuel A. Abady and Associates, P.C., New York City, Samuel A. Abady, John Burleigh, of counsel, for plaintiff.

Mussman & Northey, New York City, Rebecca Northey, of counsel, for defendant.

OPINION AND ORDER

LEISURE, District Judge.

Plaintiff Deborah Marks brings this action claiming illegal gender discrimination and retaliation. Specifically, plaintiff alleges that she was denied a promotion because her employer applied weight standards to women but not to men, and that she was later fired for complaining about discrimination. Plaintiff's Amended Complaint asserts claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII"), New York Exec. Law § 296,¹ New York Civil Rights Law § 40-c,² and New York City Admin. Code §§ 8-107 and 8-502 et seq.³

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant now moves for summary judgment. For the reasons discussed below, defendant's motion is granted.

BACKGROUND

Defendant National Communications Association ("NCA") is a telephone services reseller.⁴ During 1993 and 1994, NCA was engaged in selling telephone systems and NYNEX services and reselling long distance telephone services. See Defendant's Statement Pursuant to Loc. Civ. R. 56.1 ("Def. 56.1 Stmt.") at ¶ 1. NCA employed a number of telemarketers, who were responsible for contacting potential customers to generate interest in its products and to schedule face-to-face appointments with sales representatives. See id. In May 1993, NCA hired Plaintiff Deborah Marks ("Marks") as a telemarketer. See id. at ¶ 2; Am. Compl. at ¶ 8. During the tenure of her employment with NCA, Marks received consistently outstanding performance reviews and evaluations and was awarded prizes and other commendations for her performance as a telemarketer. See Plaintiff's Statement Pursuant to Loc. Civ. R. 56.1 ("Pl. 56.1 Stmt.") at ¶ 2; Am. Compl. at ¶ 14. In fact, Marks was designated "Telemarketer of the Month" in August, September, November, and December of 1993, and was ultimately named "Telemarketer of the Year" for 1993. See Pl. 56.1 Stmt. at ¶ 2; Am. Compl. at ¶ 15.

Marks's immediate supervisor at NCA was her manager, John Fortgash ("Fortgash"). See Pl. 56.1 Stmt. at ¶ 4; Am. Compl. at ¶ 10; Marks Dep. at 29-30. Marks's work performance was also oveseen by Scott Chase ("Chase"), NCA Senior Manager, and Richard McGuire ("McGuire"), NCA Vice President for Telemarketing. See Pl. 56.1 Stmt. at ¶ 5; Am. Compl. at ¶ 5; Marks Dep. at 30. Her supervisors generally agreed that she was a productive telemarketer, but found her difficult to work with. See Def. 56.1 Stmt. at ¶ 11; McGuire Decl. at ¶ 5. Marks had frequent disputes with Chase, which McGuire had to mediate. See Def. 56.1 Stmt. at ¶ 13; McGuire Decl. at ¶ 12. Specifically, Marks often complained about NCA's procedures for distributing "leads" among the telemarketers (the "lead procedures") and accused co-workers of stealing her "leads." See Def. 56.1 Stmt. at ¶ 14-16; McGuire Decl. at ¶ 3; see also Marks Dep. at 71.

On numerous occasions, Marks requested that she be appointed to the position of sales representative. See Pl. 56.1 Stmt. at ¶ 6; Am. Compl. at ¶ 11; Marks Dep. at 30; see also Def. 56.1 Stmt. at ¶ 19. On February 4, 1994, Marks learned from Selena Thomas ("Thomas") that NCA had denied Marks's request for promotion and had instead appointed Thomas to the position. See Pl. 56.1 Stmt. at ¶ 7; Marks Dep. at 159. Marks claims that Thomas told her that McGuire had remarked to Thomas that Marks would have received the promotion as well, if Marks had lost weight. See Pl. 56.1 Stmt. at ¶ 7; Marks Dep. at 159. During her tenure as a telemarketer for NCA, Marks weighed approximately 270 pounds. See Pl. 56.1.Stmt. at ¶ 3; Marks Dep. at 17.

Thereafter, Marks complained to McGuire and Chase that the decision had been unjust and unfair, because she had been the best telemarketer in the company, and had just been named "Telemarketer of the Year." See Pl. 56.1 Stmt. at ¶ 8; Marks Dep. at 159. According to Marks, McGuire replied: "Deb, I've told you, outside sales, presentation is extremely important. Lose the weight and you will get promoted." Marks Dep. at 161. Chase allegedly told her "[t]o lose the weight and that was important for outside sales because you were — you weren't just on the telephone, you were going around from person to person and therefore presentation was extremely important." Id.

Following these conversations, between February 4 and February 9, 1994, Marks had numerous discussions with other employees about the alleged discrimination against her. See Pl. 56.1 Stmt. at ¶ 12; Marks Dep. at 82, 84, 165-68. During that period, according to Marks, there was "general talk" in the telemarketing department that Thomas had been promoted instead of Marks because Thomas was "thin and cute." Pl. 56.1 Stmt. at ¶ 13; Marks Dep. at 70. Marks contends that the terms "thin" and "cute" "apply specifically to women and their use reflects a stereotyped focus on physical appearance wh[ere] female employees in positions of importance are concerned." Pl. 56.1 Stmt. at ¶ 14.

On February 9, 1994, Chase and Fortgash informed Marks that she was being suspended without pay for one week. See id. at ¶ 16-17. Marks attests that Chase and Fortgash "were upset by Marks's complaints about being discriminated against and being passed over for sales representative in favor of a vastly less qualified woman who happened to be thinner and cuter." Id. at ¶ 17. NCA maintains, however, that after Chase overheard Marks complaining again about the lead procedures with co-workers, Chase told her, "in accordance with company policy," to "go home for the day and not to come back until she spoke to McGuire." Def. 56.1 Stmt. at ¶ 50; see also Marks Dep. at 82-83. Marks claims that NCA insisted that she sign a document indicating that she accepted her suspension. See Pl. 56.1 Stmt. at ¶ 18; Marks Dep. at 126, 173-74; see also Def. Stmt. at Ex. E. She refused to sign the document because she disagreed with its content and refused to be "complicit" in "something that [she] didn't believe [she] deserved a suspension for." Pl. 56.1 Stmt. at ¶ 19; see also Marks Dep. at 108.

Later that afternoon, Marks spoke by telephone with two co-workers, Chase Warren ("Warren") and John Reynolds ("Reynolds"), about the incident. See Def. 56.1 Stmt at ¶ 33. In both conversations, which she taped, she stated that she was not planning to go back to work because she refused to continue working for Chase. See Def. 56.1 Stmt. at ¶ 33-34; Warren Tape Tr. at 3; Reynolds Tape Tr. at 1-2. She told Reynolds that she had already scheduled five job interviews and had consulted a lawyer that afternoon. See Reynolds Tape Tr. at 6-8.

The next day, Marks telephoned Chase, and also taped that conversation. See Def. 56.1 Stmt. at ¶ 38-41; Chase Tape Tr. at 1-20. During their discussion, Chase announced to Marks that she was being suspended for one week; Marks responded that she would rather be fired so that she could collect unemployment benefits. See Def. 56.1 Stmt. at ¶ 39; Chase Tape Tr. at 1, 17-19; Marks Dep. at 107-10. In her Statement pursuant to Local Rule Civil 56.1, Marks states that "immediate termination was preferable to suspension without pay ... because the latter meant no money at all during the period of suspension and further jeopardized future prospects for such benefits or for other employment insofar as [I] was being asked to agree with the pretextual grounds given for [my] suspension." Pl. 56.1 Stmt. at ¶ 20; see also Marks Dep. at 107-10, 189. Although Chase tried to persuade Marks to accept the suspension and return to work the following week, Marks persisted in her demand to be fired. See Def. 56.1 Stmt. at ¶ 40; Chase Tape Tr. at 17-20. After consulting with McGuire, and after warning Marks to "learn when to stop talking ... because you're getting real close to making the final decision here that I don't want to make unnecessarily," Chase notified her that she was fired. See Pl. 56.1 Stmt. at ¶ 22; Def. 56.1 Stmt. at ¶ 41; Chase Tape Tr. at 19; McGuire Decl. at ¶ 8.

Marks subsequently filed a timely complaint with the Equal Employment Opportunity Commission ("EEOC"), which on August 28, 1995, dismissed her complaint, stating that it had been "unable to conclude that the information obtained establishes violations of the statutes." Def. 56.1 Stmt., Northey Decl., Ex. A. The EEOC issued Marks a right-to-sue letter, and on November 11, 1995, she filed the instant action. Marks claims that NCA refused to promote her because it applied more stringent weight and attractiveness standards to women than to men. She maintains that NCA's employment decisions were based upon "improper and discriminatory stereotypes of what it deemed to be the `acceptable' appearance of a female in a position of importance at NCA." Am. Compl. at ¶ 26.⁵ Marks also alleges that her suspension and termination were motivated by a desire to punish her "for complaining to other employees about her discrimination." Pl. 56.1 Stmt. at ¶ 23.⁶

DISCUSSION

I. Standard for Summary Judgment

A moving party is entitled to summary judgment if "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996). The moving party bears the burden of demonstrating...