Sogg v. American Airlines, Inc.

• Decision Date: 14 October 1993
• Citation: 193 A.D.2d 153,603 N.Y.S.2d 21
• Parties: , 63 Empl. Prac. Dec. P 42,872, 3 A.D. Cases 1195, 4 NDLR P 224 Barbara L. SOGG, Plaintiff-Respondent-Appellant, v. AMERICAN AIRLINES, INC., Robert L. Crandall, William P. Shannon, Jerry R. Jacob, Cliff E. Treiber and Robert J. Zurlo, Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 21

603 N.Y.S.2d 21

193 A.D.2d 153, 63 Empl. Prac. Dec. P

42,872, 3 A.D. Cases 1195,

4 NDLR P 224

Barbara L. SOGG, Plaintiff-Respondent-Appellant, v. AMERICAN AIRLINES, INC., Robert L. Crandall, William P Shannon, Jerry R. Jacob, Cliff E. Treiber and Robert J. Zurlo Defendants-Appellants-Respondents.

Supreme Court, Appellate Division First Department.

Oct. 14, 1993.

Martin I. Shelton, New York City, of counsel (Steven E. Levitsky, Joseph E. Gulmi, Jacques M. Rimokh, Rosemary Halligan and Jennifer Krane, with him on the brief, Shea & Gould and Weil, Gotshal & Manges, attorneys), for defendants-appellants-respondents.

Lester J. Tanner, New York City, of counsel (Anders R. Sterner, Deborah Gunset, Scott Mautner, with him on the brief, Tanner Propp Fersko & Sterner and Alexander J. Wulwick, attorneys), for plaintiff-respondent-appellant.

Nadine Taub, Newark, NJ, of counsel (Women's Rights Litigation Clinic, Rutgers School of Law), amicus curiae.

Before CARRO, J.P., and ROSENBERGER, ELLERIN, WALLACH and RUBIN, JJ.

ELLERIN, Justice.

The instant action is brought under the New York Human Rights Law (Executive Law § 290 et seq.) alleging that the plaintiff was initially deprived of a promotion and was thereafter terminated from her position with defendant American Airlines, Inc. ["American"] as a result of discrimination based on her sex, age and disability, i.e., a serious heart condition. A jury found in plaintiff's favor and awarded $3,394,173 in economic damages, $1,125,000 in damages for mental anguish and $2,250,000 against American and $305,000 against the individual defendants in punitive damages. Subsequently, the punitive damages awards were vacated and, additionally the court ordered a new trial on the damages for mental anguish unless plaintiff agreed to reduce them to $400,000. Defendants appeal and plaintiff cross-appeals.

The standards relating to burden and order of proof in employment discrimination cases brought under the Human Rights Law are the same as those established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 for cases brought pursuant to Title VII of the Civil Rights Act of 1964 (Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745; Ioele v. Alden Press, Inc., 145 A.D.2d 29, 35, 536 N.Y.S.2d 1000). The three-step process laid out in those cases requires that, first, the plaintiff establish a prima facie case of discrimination. If the plaintiff sustains this burden, the defendant must offer rebuttal evidence articulating a legitimate, independent, nondiscriminatory reason for its actions. Once defendant does so, in order to prevail plaintiff must prove, by a preponderance of the evidence, that the defendant's stated reasons are only a pretext for discrimination (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 252-53, 101 S.Ct. at 1093; Miller Brewing Co. v. State Div. of Human Rights, supra, 66 N.Y.2d at 938-39, 498 N.Y.S.2d 776, 489 N.E.2d 745). The ultimate burden of persuading the finder of fact that an employer unlawfully discriminated against the plaintiff remains at all times with the plaintiff (St. Mary's Honor Center v. Hicks, 509 U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095; Ioele v. Alden Press, supra, 145 A.D.2d at 35, 536 N.Y.S.2d 1000). ¹

To satisfy the first step in this three step process and make out a prima facie case, ² plaintiff was required to establish that she was in a group protected by the statute, that she was qualified for the position in question, that she was denied the position, and that that denial occurred "under circumstances that give rise to an inference of unlawful discrimination" (Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1094). That inference may be drawn from direct evidence, from statistical evidence, or merely from the fact that the position was filled or held open for a person not in the same protected class (Ashker v. International Business Machines Corp., 168 A.D.2d 724, 725, 563 N.Y.S.2d 572; Ioele v. Alden Press, supra, 145 A.D.2d at 35, 536 N.Y.S.2d 1000; Mayer v. Manton Cork Corp., 126 A.D.2d 526, 510 N.Y.S.2d 649).

With respect to plaintiff's claim that she was deprived of a promotion based on discrimination, we find that the jury verdict in plaintiff's favor is amply supported by the evidence. Plaintiff claimed that in 1984 she was deprived of a promotion to the position of General Manager of defendant American's facilities at LaGuardia Airport. At that time plaintiff was employed, after a 27 year career at American commencing as a flight attendant, as its Flight Services Manager for LaGuardia Airport, where she supervised 1000 flight attendants. Plaintiff's claim is based on the fact that defendant Jerry R. Jacob, a vice-president in charge of the Eastern Division of American, promoted 36-year-old defendant Robert Zurlo to the position of General Manager of American's facilities at LaGuardia, thereby making Zurlo plaintiff's immediate supervisor. Although applications were not solicited for the promotion, plaintiff's personnel file left no question that her career goal was to become a General Manager at a major airport, a position to which Jacob had never promoted a woman.

In addition to considerable evidence upon which the jury could base a finding that Zurlo's qualifications were inferior to those of plaintiff, who was then 46, plaintiff's argument that she was discriminated against is also based on evidence, which is undisputed by American, that plaintiff was not even considered for the promotion as a result of Jacob's action, first taken in 1979, of labelling plaintiff nonpromotable under any circumstances, the lowest of 11 possible promotability ratings. This rating was received by plaintiff as part of her yearly evaluation, which covered two overall categories, job performance and promotability. Plaintiff's first rating of nonpromotable was given to her by Jacob at or about the same time she was hospitalized for open heart surgery and only a few months after her supervisor and his supervisor had given her an overall job performance rating of "2", indicating that in her first year as Flight Services Manager at LaGuardia her performance had exceeded the requirements of her job. At the same time, they had set forth a plan for her to accomplish her career goal of General Manager. Plaintiff was, without her knowledge, labelled nonpromotable every year after that. No other testimony or documentary evidence was offered by defendants to support Jacob's testimony that his rating of nonpromotable was based on recommendations he received from plaintiff's then supervisors, one of whom was no longer alive and two of whom were not called to testify and all of whom had participated in her consistently high job performance ratings. Moreover, Jacob himself testified that, up until the mid-eighties, Flight Services, which primarily involved the supervision of flight attendants, was considered a "normal career path" for women, and the step from that position to other areas of airport management had rarely been accomplished by women. In his opinion, this was because prior to the mid-eighties few women had aspired to be general manager or to enter other areas of airport management such as ramp or freight services. Furthermore there was evidence that, in 1983-84, the year of Zurlo's promotion, only one woman in plaintiff's grade or above had been rated promotable by Jacob.

The foregoing evidence amply supports the jury's verdict finding that plaintiff was discriminatorily deprived of a promotion and should not be disturbed. Plaintiff clearly established a prima facie case by demonstrating that she was entitled to protection based on sex and age and we find that she presented sufficient evidence concerning her serious heart condition to establish that she was also in a protected class as to disability. She additionally established that she was qualified for the promotion, that she wanted the promotion and was denied it, and that the promotion was given to someone outside the same classes of sex, age, and protected disability. It was well within the jury's province to reject defendants' proffered reasons for giving the promotion to Zurlo as merely a pretext for the fact that the plaintiff was denied the promotion for discriminatory reasons. Not only was there sufficient evidence to find that Zurlo was not more qualified for the position than was plaintiff, but the jury was also entitled to reject defendants' subsidiary self-serving argument that the nondiscriminatory reason plaintiff was not promoted was because she was labelled nonpromotable. The jury was fully entitled to examine the circumstances under which that label was given and determine whether the label itself was a subterfuge for discriminatory intent.

Indeed, defendants do not, on this appeal, strongly contest the finding that plaintiff was denied the promotion for discriminatory reasons but they do argue vigorously that plaintiff failed to establish a prima facie case on her related claim that, 11 months subsequent to her failure to receive the promotion, she was discriminatorily terminated.

In addition to the evidence upon which her promotion claim was based, the evidence at trial with respect to the termination claim showed that, at or about the same time that Zurlo, rather than plaintiff, was promoted to General Manager of American's services at LaGuardia, Patsy Underwood, who was the Senior Director of Flight Services at the company headquarters in Dallas, began to work on a plan to reorganize Flight Services on a nationwide basis. The reorganized plan called for the promotion to...