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United States District Court, S.D. New York
April 17, 2015
HEATHER N. BIVENS, Plaintiff,v.INSTITUTE FOR COMMUNITY LIVING, INC. and HOWARD GOLDBERG, Individually and as Associate Executive Vice-President and Chief Quality and Compliance Officer, Defendants.
PAUL A. ENGELMAYER, District Judge.
By all parties' accounts, Heather Bivens was an excellent employee and supervisor. In June 2012, however, she was fired when her employer, the Institute for Community Living, Inc. ("ICL"), needed to cut its budget. Bivens now brings this gender discrimination lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. ("NYCHRL"). Bivens alleges that she was selected for termination based on her gender, and to spare the job of a male co-worker who was less qualified and less experienced but favored by management because of his gender. The defendants are ICL and Bivens' former supervisor at ICL, Howard Goldberg, who made the decision to fire her.
Defendants now move to dismiss Bivens' Amended Complaint. For the reasons set forth below, the Court denies the motion to dismiss.
I. Background
A. Facts[1]
1. The Parties
Between 1994 and June 14, 2012, Bivens was employed in the "mental health/disability services industry as a counselor, therapist, clinical supervisor, and in various managerial positions." Dkt. 27 ("Am. Compl."), ¶ 20. She holds bachelor's and master's degrees in psychology. Id. ¶¶ 17-18. Before being hired by ICL in 2004, Bivens had "worked as a therapist, program supervisor, in emergency management, outpatient mental health clinics, residential programs, and with various populations including children, adolescents, adults, and families. Bivens also had experience in state and local government positions in Massachusetts and New York City." Id. ¶ 24. Between April 2004 and June 14, 2012, Bivens worked in a number of capacities at ICL, as detailed below.
ICL is a New York not-for-profit corporation that "provides recovery, treatment and community living services for people with histories of homelessness, mental illness, intellectual or developmental disabilities, chronic health conditions and/or substance abuse." Id. ¶¶ 8, 22. ICL serves more than 8, 000 individuals each year, and has more than 500 employees. Id. ¶¶ 10, 23. One of ICL's departments is the Quality Assurance & Improvement Department ("the Department" or "QA"). Id. ¶ 26. The Department's responsibilities include overseeing various mental health programs, ensuring compliance with regulations, investigating internal complaints, and overseeing internal audits. See id. ¶¶ 28-30. At all relevant times, Goldberg was a Department executive, id. ¶ 26, and Bivens' direct supervisor at ICL, id. ¶ 14. The Department had about 10 employees total, including Goldberg. The industry is predominantly female, id. ¶ 72: For the first seven years that Bivens worked at ICL - namely, 2004-2011 - the Department had no men, besides Goldberg. Id. ¶¶ 71, 89. In 2012, Goldberg hired a man, Nickolas Garin. Id. ¶ 61. The series of events involving Goldberg's hiring of Garin, and his decision to retain Garin while terminating Bivens, are reviewed in detail below.
2. Bivens' Employment at ICL: The first seven years (2004-11)
In 2004, Goldberg hired Bivens as "Director of Mental Health Services for Quality Assurance and Improvement, " a position she held for four years. Id. ¶¶ 21, 31. As a Director, she "chaired the agency's Mental Health Incident Review Committee; conducted internal investigations of complaints; was responsible for hiring and training new Quality Assurance staff; and was ICL's primary QA liaison to the New York State Commission on Quality of Care & Advocacy for Persons with Disabilities [] and the N.Y.S. Office of Mental Health." Id. ¶ 30. Bivens was also tasked with, inter alia, "develop[ing] the Department with Goldberg." Id. ¶ 26.
Bivens was successful in these roles. Through interviewing and hiring, she helped build QA so that it had "a full complement of staff." Id. ¶ 27. And during her four-year tenure as a Director, "the number of mental health programs for which she provided audit oversight grew from about eighty to over one hundred programs. These programs included day treatment, supportive housing, shelters, case management, residential and outpatient treatment programs." Id. ¶ 28. She also "manag[ed] the internal QA audit process, ensur[ed] compliance with state, federal and agency regulation, and provid[ed] technical assistance." Id. ¶ 29. "Under Bivens' directorship, for the first time 100% of ICL's programs received annual internal audits." Id. ¶ 43. The system that Bivens implemented "significantly increased communications and monitoring between department and agency." Id. In addition, Bivens "developed a process to ensure the appropriate and timely report of incidents, which... led to ICL avoiding citations." Id. Bivens also chaired five different ICL committees. Id. ¶ 47. She was "the only ICL Director charged with oversight of agency-wide functions." Id. ¶ 45.
Effective July 1, 2008, Bivens was promoted to Associate Vice President ("AVP") of the Department. Id. ¶ 31. In that role, she "continued performing oversight and management of city, state and federal audits of ICL"; Bivens also "supervised the development and distribution of department reports and supervised ICL's incident management system, " and "supervis[ed] the Director of QA and Improvement for Intellectual and Developmental Disabilities Services." Id. ¶¶ 31-33. Further, Bivens oversaw three successful accreditation surveys (in 2004, 2007, and 2010), conducted by the Commission on Accreditation of Rehabilitation Facilities International ("CARF"). Id. ¶ 50.
In spring 2011, Bivens was promoted to Associate Senior Vice President ("ASVP") of the Department. Id. ¶ 34. In this position, Bivens "provided QA/QI oversight for all programs" and supervised the person who had succeeded her as AVP. Id. ¶ 35. As an ASVP, Bivens also "served as Chief Investigator with responsibility for oversight of ICL-wide internal investigations, " which included training and supervising the agency's 14 investigators. Id. ¶ 49. Bivens successfully mentored a number of subordinates, as well. Id. ¶ 51. In addition, Goldberg's job duties required his absence from the office for about two weeks every quarter; in Goldberg's absence, Bivens supervised the Department, including taking responsibility for "all compliance and QA/QI matters." Id. ¶¶ 36, 52.
Bivens' annual employee performance evaluations reflected her success at ICL. These evaluations were conducted on a 1-5 scale, with 5 being the highest. On this rating scale, a "3" indicated that an employee's performance consistently met expectations, a "4" meant that her performance met and often exceeded expectations, and a "5" indicated that her performance "consistently exceeds standards and expectations." Id. ¶ 38. Employees were evaluated in about 12 different categories. Id. ¶¶ 40-41. Bivens' evaluations were as follows; the number in bold is the average of her ratings in the 12 categories:
Id. ¶ 39.
Goldberg's written comments about Bivens accord with these positive - and consistently improving - numerical performance reviews. When Bivens was a Director, Goldberg praised her technological skills and capacity to learn quickly. Id. ¶ 130. He also wrote that "Heather exceeded expectations with her initiative and took on a leadership role in preparing for CARF, " a period in which "all levels of staff sought her counsel." Id. ¶ 50. In a 2008-09 evaluation, Goldberg praised Bivens' supervision and mentorship, stating: "Heather maintains a motivating environment for her staff, empowering them to learn and develop new skills." Id. ¶ 53. In a 2010-11 evaluation, Goldberg praised Bivens' work ethic and knowledge, stating: "Heather does whatever is needed to complete assignments, including working past normal scheduled hours when necessary.... Heather demonstrates an excellent understanding of the regulations and agency policies governing corporate compliance." Id. ¶ 121.
With respect to compensation, during her first seven years at ICL (2004-11), Bivens received multiple cost-of-living increases and two outright raises, each occurring when she was promoted. Her starting salary as a Director was $69, 000; her AVP salary was about $81, 000; and her ASVP salary was $97, 000. Id. ¶ 42. Before obtaining these promotions and raises, Bivens had to lobby Goldberg for "several years." Id. ¶ 86.
3. Goldberg Seeks, and Eventually Hires, a Male Employee
In September 2011, ICL Director Jo Casso retired, creating a vacancy. Id. ¶ 54. Casso, who is female, had been a Director in the Risk Management Section of the Department. Id. Shortly after Casso announced her retirement, Bivens "expressed interest in taking on Casso's duties" during a meeting with Goldberg. Id. ¶ 56. Bivens noted her experience in this area and her good relationships with Casso's staff. Id. However, "Goldberg dismissed this notion out of hand." Id. In or about October 2011, during another meeting with Goldberg, "Bivens again expressed her interest in taking over Casso's job duties. This conversation was much shorter than the September 2011 conversation as Goldberg appeared irritated at her suggestion." Id. ¶ 57.
In or about October 2011, Goldberg told Bivens and other Department members that, at a conference, he had met a man named Nickolas Garin, and "he was the one." Id. ¶ 58. "Goldberg expressed his determination to Bivens and other staff to convince Nick Garin [] to apply for the [] Director position. When Garin indicated that he was not interested in the job[.] Goldberg was visibly disturbed. Goldberg persisted until Garin applied for the position." Id. ¶ 59. "Over half of the [] Director job was supervising" employees. Id. ¶ 64. Another aspect was supervising auditing and, at times, "directly auditing agency programs, financial systems, and a variety of federal, state and city regulations." Id. ¶ 123.
At the time he applied, Garin was six months out of graduate school, had two years of work experience, and had no supervisory experience; his "only experience with audits was performing mock audits." Id. ¶¶ 1, 65-67. By contrast, another applicant - Kim McCain, a woman - had 15 years of experience in the industry and had previously supervised about 70 people. Id. ¶ 60. Garin was hired over McCain. Id. ¶ 62. His starting salary was $75, 000. Id. ¶ 100.
Garin was treated preferentially in a number of respects. Before Garin even interviewed with ICL, Goldberg had invited Garin to help revise the job description for the position Garin had applied for; Garin thereupon did so. Id. ¶ 68. Although Garin did not begin working at ICL until February 2012, Goldberg invited him to attend the December 2011 holiday party; "[s]taff expressed concerns regarding the excessive amount of time and attention Goldberg provided to Garin." Id. ¶ 61. Goldberg also fought for Garin to get preferential benefits: It typically takes about three months, after being hired, for an employee to begin receiving ICL health insurance coverage, but Goldberg urged ICL "before Garin's hire to cover his COBRA payments until his ICL health coverage took effect" - an accommodation "reserved for a few select executives, " if any. Id. ¶¶ 78-79.
Once Garin started working at ICL, he continued to receive preferential treatment. For instance, Goldberg sent Garin to Arizona for corporate compliance training, but refused McCain's request for similar training. Id. ¶ 84. Goldberg also invited Garin to attend meetings "for executive and senior management, " even though "Bivens was not invited to attend [such meetings] until she had worked at ICL for five years and more than a year after her promotion" from Director (Garin's position) to AVP. Id. ¶¶ 90-91. Goldberg spent far more time mentoring, and meeting with, Garin than with any of his female subordinates. Id. ¶ 89. Further, "[e]arly in Garin's tenure[, ] Goldberg repeatedly informed [D]epartment staff that he wanted to see Garin move up' in the [D]epartment." Id. ¶ 82. Several ICL employees "voiced concerns regarding the substantial amount of time Goldberg spent with Garin before and after his hire at ICL." Id. ¶ 81.
Shortly after Garin's hire, Goldberg "expressed great relief to Aimee Gerst and Heather Bivens... that, after about nine years in QA/QI, I finally have a guy in QA.'" Id. ¶¶ 71, 89. Goldberg publicly praised Garin and his potential. Id. ¶¶ 69, 74.
4. Bivens Fights for Female Subordinates, Criticizes Garin, and is Fired
Within weeks of Garin's hiring, Bivens told Goldberg that Garin was in "over his head" and "appeared to lack confidence." Id. ¶ 75. Goldberg acknowledged that Garin was "green" and lacked relevant work experience. Id. ¶ 77. He asked Bivens to mentor Garin, which she did. Id.
Goldberg's female subordinates did not receive the "red carpet" treatment Garin received. A number of these women - including Linda Nagel, Deborah Roberson, Daphne Dent, and Pamela Tindall-O'Brien - "regularly" were subjected to Goldberg's "demeaning comments" about their intelligence, weight, attire, and/or appearance. Id. ¶ 111. Goldberg also told a co-worker that "women have to make a choice between working and raising children." Id. ¶ 112. Bivens also repeatedly sought to persuade Goldberg to award many of these women raises and promotions, which Bivens contends were merited. For instance, Aimee Gerst was a Director in the Department. Id. ¶ 104. Despite Gerst's "excellent performance and increased job duties as Director, it took Bivens more than three years to convince Goldberg to promote Gerst to Associate Vice-President." Id. ¶ 107. Similarly, "QA Specialists Diane Martin, Joanna Lewicki and Daphne Ramirez had all worked in QA for about five to seven years and all received strong performance evaluations without a merit salary increase.... Goldberg turned down Bivens['] repeated requests to increase their respective salaries, which were all in the low fifty thousand dollar range." Id. ¶ 108. Weeks before her termination, Bivens again approached Goldberg "seeking his approval for salary increases for Martin, Lewicki and Ramirez. Bivens informed Goldberg that if he yet again declined these salary increases, that she would bring her requests directly to HR." Id. ¶ 109.
On June 14, 2012, Bivens was fired. Goldberg told her that, for economic reasons, her position had been eliminated. Id. ¶ 115. Bivens was not offered a transfer or a pay cut. Id. ¶ 140. "When Goldberg decided to terminate Bivens, she was the only employee in QA... to criticize Garin's performance, as well as Goldberg's plan for Garin's rapid advancement in ICL." Id. ¶¶ 116-17. By firing Bivens, Goldberg "got rid of the highest titled Department employee advocating fair compensation/promotion for female staff, including herself." Id. ¶¶ 118.
As to the economic reasons Goldberg alluded to, "Goldberg allegedly was directed to cut" about $100, 000 from his budget. Id. ¶ 147. At the time of her termination, Bivens' salary was $97, 000. Id. ¶ 42. "Bivens' termination caused Goldberg to delegate some of her duties to" Department employees Aimee Gerst and Oge Amadi-Mitchell. Id. ¶ 146. As a result of Gerst and Amadi-Mitchell's increased job duties, their "respective salaries were increased in the aggregate nearly" $15, 000. Id. Had ICL and Goldberg terminated Garin instead of Bivens, ICL "would have saved... close to $100, 000" by cutting Garin's $75, 000 salary and his fringe benefits, and by not having to pay the nearly $15, 000 in salary increases paid to Amadi-Mitchell and Gerst. Id. ¶ 147.
B. Procedural History
On October 3, 2012, Bivens filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against ICL. Id. ¶ 15. On August 15, 2014, the EEOC issued a Notice of Right to Sue Letter to Bivens. Id. ¶ 16.
On September 5, 2014, Bivens initiated this case by filing her original Complaint. Dkt. 2. On October 21, 2014, defendants answered. Dkt. 10. On December 23, 2014, defendants moved to dismiss. Dkt. 16. On January 15, 2015, Bivens filed an Amended Complaint, which today is the operative complaint. Dkt. 27.
On February 17, 2015, defendants moved again to dismiss, Dkt. 38, and submitted a memorandum of law in support, Dkt. 39 ("Def. Br."). Defendants there argue that the Amended Complaint "does not allege facts from which gender-based discrimination may be plausibly inferred." Def. Br. 6. On March 5, 2015, Bivens submitted a brief in opposition. Dkt. 44 ("Pl. Br."). On March 12, 2015, defendants submitted a reply brief in further support of their motion. Dkt. 45 ("Def. Reply Br."). On April 10, 2015, the Court held argument, and stated that it intended to deny defendants' motion to dismiss, with a written decision - this Opinion - to follow. See Dkt. 48.
II. Applicable Legal Standards
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558.
In considering a motion to dismiss, a district court "must accept as true all well-pleaded factual allegations in the complaint, and draw[] all inferences in the plaintiff's favor.'" Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006); see also Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "[R]ather, the complaint's factual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citing Twombly, 550 U.S. at 555, 570) (internal quotation marks omitted) (emphasis in Arista Records ).
B. Discrimination Law
1. Title VII
Title VII makes it unlawful for an employer "to discriminate against any individual... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).[2] A prima facie case of employment discrimination under Title VII requires proof that: "(1) plaintiff is a member of a protected class; (2) plaintiff was qualified for his or her position; (3) plaintiff was subjected to an adverse employment action; and (4) the adverse employment action took place under circumstances giving a rise to an inference of discrimination based on plaintiff's membership in the protected class." El-Din v. N.Y.C. Admin. for Children's Servs., No. 12 Civ. 1133 (PAE), 2012 WL 3839344, at *4 (S.D.N.Y. Sept. 5, 2012) (citing Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). "The sine qua non of a gender-based discriminatory action claim under Title VII is that the discrimination must be because of sex.'" Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (emphasis in original) (quoting Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 189 (2d Cir. 2001)).
However, to survive a motion to dismiss, "plaintiffs alleging employment discrimination need not plead a prima facie case." Munoz-Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *4 (S.D.N.Y. Apr. 30, 2013). Nevertheless, the elements of the prima facie case "provide an outline of what is necessary to render a plaintiff's... claims for relief plausible." Kassman v. KPMG LLP, 925 F.Supp.2d 453, 461 (S.D.N.Y. 2013) (internal quotation marks and alterations omitted); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 515 (2002). Thus, courts "consider these elements in determining whether there is sufficient factual matter in the complaint which, if true, gives Defendant a fair notice of Plaintiff's claim and the grounds on which it rests.'" Wilson v. N.Y.C. Dep't of Corr., No. 11 Civ. 9157 (PAE), 2013 WL 922824, at *4 (S.D.N.Y. Mar. 8, 2013), reconsideration denied, 2013 WL 1430768 (S.D.N.Y. Apr. 9, 2013) (quoting Murphy v. Suffolk Cnty. Cmty. Coll., No. 10 Civ. 0251 (LDW) (AKT), 2011 WL 5976082, at *5 (E.D.N.Y. Nov. 29, 2011)). A claim is properly dismissed where the plaintiff "fail[s] to plead any facts that would create an inference that any adverse action taken by... [any] defendant was based upon [a protected characteristic of the plaintiff]." Patane, 508 F.3d at 112 (citation omitted) (first two alterations in original).
2. The NYCHRL
Section 8-107(1)(a) of the NYCHRL makes it "an unlawful discriminatory practice... [f]or an employer or an employee or agent thereof, because of the... gender... of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a). "To establish a gender discrimination claim under the NYCHRL, the plaintiff need only demonstrate by a preponderance of the evidence that she has been treated less well than other employees because of her gender.'" Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (1st Dep't 2009)); see also Nelson v. HSBC Bank USA, 929 N.Y.S.2d 259, 264 (2d Dep't 2011) (adopting the same standard of liability). This is a lower standard than the federal standard. See, e.g., Mihalik, 715 F.3d at 109-10. Thus, if a court dismisses a federal claim but exercises supplemental jurisdiction over the local claim, it "must analyze NYCHRL claims separately and independently from any federal and state law claims, construing the NYCHRL's provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Id. at 109 (quoting Albunio v. City of New York, 922 N.Y.S.2d 244, 246 (2011)) (internal citations omitted).
Here, the Court will undertake the federal analysis first. If Bivens' allegations state a claim under federal law, no further analysis is required - they will also necessarily state a claim under the NYCHRL. See Mihalik, 715 F.3d at 109 ("[I]nterpretations of state and federal civil rights statutes can serve only as a floor below which the City's Human Rights law cannot fall.'") (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)); Williams, 872 N.Y.S.2d at 33 n.9 ("The New York City Human Rights Law was intended to be more protective than the state and federal counterparts.") (citation omitted).
III. Discussion
The first three aspects of the federal prima facie case are not in dispute: Bivens is a member of a protected class, she was qualified for her position, and she suffered an adverse employment action (her termination). The fourth element is, however, disputed: whether the Amended Complaint satisfactorily alleges that her firing "took place under circumstances giving a rise to an inference of discrimination based on plaintiff's membership in the protected class." Henry v. NYC Health & Hosp. Corp., 18 F.Supp. 3d 396, 404 (S.D.N.Y. 2014) (quoting El-Din, 2012 WL 3839344, at *4). Defendants contend that Bivens does not allege facts from which gender-based discrimination may be plausibly inferred. The Court holds otherwise.
As the Second Circuit has explained, "[i]t is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to:... the employer's criticism of the plaintiff's performance in [sexually] degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.'" Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) and citing Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995); Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 113 (2d Cir. 1992)). With respect to an employer's comments, the Circuit has stated that "[t]he relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class." Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
Applying these principles, and accepting Bivens' well-pleaded allegations as true, as the Court must at this stage, gender-based discrimination may be plausibly inferred. Several facts, when viewed in combination, support this conclusion:
1. Goldberg's alleged exuberance upon hiring a man: Upon hiring Garin, Goldberg exclaimed, "I finally have a guy in QA." Am. Compl. ¶ 71.
2. Goldberg's allegedly preferential treatment of Garin as compared to women: Goldberg permitted Garin to attend trainings in Arizona even though Goldberg denied the same permission to women, such as Kim McCain. Id. ¶¶ 83-84. Goldberg immediately invited Garin to attend exclusive executive level meetings - an opportunity that Goldberg had denied to women until they had several years of experience. Id. ¶¶ 90-91. Notwithstanding his inexperience, Garin's starting salary was higher than those of women in the Department. Id. ¶¶ 100, 101, 106. And Goldberg spent significantly more time mentoring Garin than any female staff member. Id. ¶ 89. Goldberg even let Garin write the job description for his position before Garin had interviewed. Id. ¶ 68.
3. Goldberg's comments : Goldberg openly praised Garin and his potential (despite Garin's lack of experience and underwhelming initial performance), whereas Goldberg routinely and openly criticized certain women's intelligence, appearance, weight, and attire. Id. ¶¶ 69, 74, 111. Goldberg also told a co-worker that "women have to make a choice between working and raising children." Id. ¶ 112.
4. Goldberg's alleged general practice of blocking or delaying women's promotions and raises : Despite giving strong reviews to Bivens and others, such as Aimee Gerst, Goldberg blocked or significantly delayed their ability to obtain merited raises and promotions. Id. ¶¶ 86, 107-09.
5. Garin's alleged lack of qualifications : The position for which Garin was hired included (1) supervising others, which Garin had never done, and (2) conducting or overseeing governmental and internal audits, with which Garin also had no experience, save for mock audits. Id. ¶¶ 65-66. Garin was hired over a woman, McCain, with 15 years of supervisory experience. Id. ¶ 60.
6. Goldberg's alleged departure from ICL's "last hired, first fired" practice : As alleged by Bivens, the "last hired" employee at ICL was typically the first to be fired when necessary, but that practice was not followed in her case. Id. ¶ 137. Instead, a recently hired, unproven male, Garin, was retained, whereas a highly qualified, experienced, and successful female, Bivens, was fired.
7. Bivens vs. Garin : Bivens - as defendants concede - had first-rate qualifications, experience, and an "excellent" record. Id. ¶¶ 39, 121; see also Def. Br. 1 (calling Bivens "an excellent employee" who "consistently" had "excellent performance reviews"). By contrast, Garin was inexperienced, allegedly underqualified, and in "over his head." Am. Compl. ¶ 75.
8. The alleged suspicious timing of Bivens' termination : Bivens had been lobbying Goldberg for raises for her female subordinates, and - just weeks before her termination - she had threatened to take her complaints directly to Human Resources, if Goldberg again declined to award these women raises. Id. ¶¶ 108-09. In addition, Bivens was the sole member of the Department to criticize Garin in the few months that she and Garin overlapped; Bivens told Goldberg that Garin was in "over his head" and lacked confidence in his interactions. Id. ¶ 75. Bivens thus emerged as the sole obstacle to Goldberg's stated desire to see Garin quickly "move up" in the Department. Id. ¶ 82.
Under these circumstances, the Court comfortably concludes that, in combination, these alleged gender-based comments, disparities in treatment, and suspicious timing plausibly permit the conclusion that Goldberg's decision to fire Bivens while retaining Garin was gender-based. See Leibowitz, 584 F.3d at 502; Chambers, 43 F.3d at 37. The Amended Complaint, in fact, paints a multifaceted portrait of favoritism by Goldberg based on gender. And the facts pled readily permit the conclusion that Goldberg viewed his sole male employee in the group, Garin, as untouchable because of his gender. By contrast, Goldberg viewed his "excellent" female employee - the sole critic of Garin, and the person who fought for women's promotions and salaries - as expendable.
Defendants make four arguments as to why the Amended Complaint should nevertheless be held deficient. First, they argue, Bivens has pled a non-discriminatory reason for her own termination. Bivens' pleadings, defendants note, support that Bivens' "position was eliminated as part of an agency-wide reduction-in-force, " and a reduction in force "may be a legitimate, non-discriminatory reason for termination." Def. Br. 7. But this argument is unpersuasive, because while "a reduction-in-force or restructuring that results in an elimination of jobs often is a legitimate reason for dismissing an employee[, ]... such a reduction is not always the whole story." Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000), abrogated on other grounds by Swierkiewicz, 534 U.S. at 510-12. Here, Bivens' allegation is that, when Goldberg needed to pare personnel costs, he used gender as a basis for deciding which employee to eliminate. See Am. Compl. ¶¶ 136, 148, 149. Where, as here, such an allegation is supported by well-pled factual assertions, a valid claim has been stated, notwithstanding that the initial impetus for the termination was budgetary. See, e.g., Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994) (noting that a reduction-in-force must be "conducted on an unbiased basis"), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 13 (2000); Burger v. Litton Indus., Inc., No. 91 Civ. 0918 (WK) (AJP), 1996 WL 421449, at *14 (S.D.N.Y. Apr. 25, 1996), report and recommendation adopted, No. 91 Civ. 0918 (WK), 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (denying defendant's motion for summary judgment because "a material factual dispute exists as to whether [plaintiff's] layoff was the result of a general financial reduction in force or whether, despite the reduction in force, she was terminated for discriminatory reasons"). In other words, a reduction-in-force that is implemented in a gender discriminatory fashion is unlawful. Burger, 1996 WL 421449, at *14. Bivens has so pled here.
Second, defendants argue, Bivens' claim of gender bias is implausible in light of the "same-actor inference, " to wit, the fact that Goldberg, "who had a history of giving plaintiff excellent performance reviews and recommended her for raises and promotions, is the same person who recommended that plaintiff's position be eliminated." Def. Br. 8. "The premise underlying [the same-actor] inference is that if the person who fires an employee is the same person that hired [her], one cannot logically impute to that person an invidious intent to discriminate against the employee. Such an inference is strong where the time elapsed between the events of hiring and firing is brief." Carlton, 202 F.3d at 132. However, the same-actor inference is just that - an inference - and not a hard-and-fast rule. The force of that inference will vary depending on the facts. See, e.g., id. at 132, 138 ("[T]he inference is less compelling when a significant period of time elapses between the hiring and firing.... [T]he enthusiasm with which the actor hired the employee years before may have waned with the passage of time because the relationship between an employer and an employee, characterized by reciprocal obligations and duties, is, like them, subject to" change.) (citations omitted).
It is well-settled that a change of material circumstances is a factor that justifies according less weight to the same-actor inference. See Feingold v. New York, 366 F.3d 138, 155 (2d Cir. 2004) ("Feingold's complaints of discrimination could be found to have altered the circumstances of his employment: Viewing the evidence in the light most favorable to the plaintiff, after complaining about discrimination Feingold became not merely a white Jew but a white Jew who (allegedly unlike Schulgasser) would not tolerate a discriminatory office culture."). Bivens has pled such a change of circumstances here - specifically, Garin's entry into the picture at ICL in late 2011/early 2012, months after Bivens' final promotion. The Amended Complaint pleads that Garin's hire as the first male employee in Goldberg's group materially changed the landscape, opening the door for the first time to preferential treatment by Goldberg of a male employee over females, including Bivens. As pled, Goldberg's actions in connection with the recruitment, hiring, and treatment of Garin all reflected favoritism towards this single male employee, and after Bivens emerged as a critic of Garin's, she was fired. On these facts, the same-actor inference, based on Goldberg's earlier support of Bivens, is relatively weak.
Third, defendants discount "[t]he stray remarks" attributed to Goldberg as "remote in time and unrelated to gender." Def. Reply Br. 1; see also id. at 4. Although defendants are at liberty to so argue to a trier of fact, on a motion to dismiss, the statements attributed to Goldberg in the Amended Complaint must be viewed in the light most favorable to Bivens and are not so easily diminished. The Amended Complaint alleges that Goldberg was overtly exuberant about having hired a male - "I finally have a guy in QA." Am. Compl. ¶ 71. This facially gender-related comment is relevant context for viewing Goldberg's later treatment of Garin, on the one hand, and Bivens (and other female employees), on the other. Defendants focus on a different gender-related comment by Goldberg, in which he allegedly told "a co-worker that women have to make a choice between working and raising children.'" Def. Br. 15 (citing Am. Compl. ¶ 112). But even if this comment were assigned little significance, Goldberg's statement that he was thrilled to have finally hired " a guy " is probative. It supports Bivens' claim that Goldberg's favorable treatment of Garin over the females under his supervision, including ultimately retaining him over Bivens, reflected gender bias.
Finally, defendants argue that Goldberg's differential treatment of Garin vis-á-vis female employees does not bespeak gender discrimination because these women were not "similarly situated" to Garin in, for example, experience and compensation. But as the Second Circuit has recognized, whether two employees are similarly situated often cannot be resolved at the pleading stage:
To establish an inference of discrimination, a plaintiff must allege that "she was similarly situated in all material respects to the individuals with whom she seeks to compare herself." [ Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)] (internal quotation marks omitted). What will constitute "all material respects" will vary from case to case, of course. We have said that the judgment rests on "whether the plaintiff and those [she] maintains were similarly situated were subject to the same workplace standards." Id. at 40. The plaintiff's and comparator's circumstances must bear a "reasonably close resemblance, " but need not be "identical." Id. Ordinarily, "[w]hether two employees are similarly situated... presents a question of fact, " rather than a legal question to be resolved on a motion to dismiss. Id. at 39.
Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014).
Here, defendants argue, Garin and Bivens held different positions and had different levels of experience. But, on the facts pled, those distinctions do not necessarily undermine the inference of discrimination. On the contrary, one basis for Bivens' claim of gender discrimination is, in part, that she was so plainly better qualified than Garin that Goldberg's curious decision to expel her and retain Garin suggests an ulterior motive - gender bias. Put differently, as pled, Bivens and Garin were "similarly situated" as to the key criteria at issue at the time of her termination: They were in the same group of 10 employees, of whom Goldberg, for budgetary reasons, needed to terminate one so as to permit him to save approximately $100, 000. See id.; see also McGuinness v. Lincoln Hall, 263 F.3d 49, 53-55 (2d Cir. 2001) ("[W]here a plaintiff seeks to establish the minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination.").
For these reasons, the Court holds that Bivens' Amended Complaint has stated a valid claim of federal gender discrimination. It remains, of course, to be seen whether discovery validates, strengthens, or weakens this claim. And because Bivens' federal claim survives, it follows that her city law claim for gender discrimination, which is subject to a less demanding standard, survives as well. See Mihalik, 715 F.3d at 109-10; Williams, 872 N.Y.S.2d at 33 n.9.
For the foregoing reasons, the Court denies defendants' motion to dismiss the Amended Complaint. The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 34 and 38.
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August 7, 2012
WILLIAM W. COPELAND, PLAINTIFF,v.COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Plaintiff, who is proceeding with retained counsel, brought this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Final judgment remanding the matter back to the agency for further proceedings was entered on April 8, 2010. Pending before the court is plaintiff's opposed motion for an award of attorney's fees under the Equal Access to Justice Act ("EAJA") (Doc. 31).
Plaintiff seeks an award of $10,180.51 representing 56.1 hours of work. Defendant objects to this amount, arguing that the time spent briefing the case was unreasonable. The court agrees. According to plaintiff's counsel's declaration, she expended approximately 45 to 50 hours preparing the opening brief.*fn1 The reasonableness of hours expended is determined by such factors as the novelty and difficulty of the issues presented and the experience of counsel. See Widrig v. Apfel, 140 F.3d 1207 (9th Cir. 1998). In this case, none of the issues involved were particularly novel or difficult. Rather, the issues raised were of the garden variety typically raised in social security cases, and typically raised by plaintiff's counsel in other cases. Moreover, it is undisputed that plaintiff's counsel has extensive experience representing social security claimants in this court. Given these factors, the court finds that the time spent preparing the opening brief was unreasonable. Counsel could have been expected to complete this task in no more than 35 hours. The requested EAJA fee award shall, therefore, be reduced by $2,583.60 (15 hours at an hourly rate of $172.24).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for an award of fees under the EAJA (Doc. 31) is granted; and
2. Plaintiff is awarded $7,596.91, payable to plaintiff.
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July 1, 2010
RALPH HART, PLAINTIFF,v.WAL-MART STORES, INC., DEFENDANT.
This case is before the court for ruling on a Motion for Summary Judgment and Sanctions (#29) filed by Defendant, Wal-Mart Stores, Inc (Wal-Mart). This court has carefully reviewed the arguments of the parties and the documents provided. Following this careful and thorough review, this court concludes that Wal-Mart is entitled to summary judgment. This court concludes, however, that sanctions are not warranted. Accordingly, Wal-Mart's Motion for Summary Judgment and Sanctions (#29) is GRANTED in part and DENIED in part.
Plaintiff, Ralph Hart, is African American and believes that employees at the Wal-Mart Store in Mattoon, Illinois (Mattoon Wal-Mart) treat Caucasian customers better than African American customers and discriminate against African American customers based upon their race. At his deposition, Plaintiff was given the opportunity to provide all of the evidence he has to support this belief. Plaintiff recounted occasions where he witnessed a greeter at the Mattoon Wal-Mart ask African American customers to show their receipt and did not ask Caucasian customers to show a receipt. He acknowledged, however, that there were instances when he was not asked to show a receipt and also acknowledged that he could not say that Caucasian customers were never asked to show receipts. He also described an occasion where he was waiting for service at the deli counter at the Mattoon Wal-Mart and Milly Rowe, a Wal-Mart employee, started to wait on a Caucasian customer when he was actually next in line. Plaintiff testified that the Caucasian customer advised Rowe that Plaintiff was next in line and Rowe then waited on him "[r]eluctantly."
On April 16, 2005, Plaintiff went to the Mattoon Wal-Mart with his friend, Patrick Morris, and his son, Hart Hart, who was 11 years old at that time. Plaintiff testified that Rowe, who was working as a greeter, greeted other customers entering the store but looked at them with "disgust." Plaintiff purchased a lawn mower and other items. Plaintiff testified that he had the lawn mower in a cart and, as he was leaving the store, Rowe asked him if he had paid for the mower and asked to see his receipt. Plaintiff testified he told her that he had paid for the lawn mower. Plaintiff also testified that Rowe had not asked other customers ahead of him to see their receipts so, as to her request to see his receipt, he told her "no" and walked to the parking lot. Rowe testified that her position of door greeter required "looking at all receipts going out the door." It is undisputed that Wal-Mart conducts receipt checks to deter and prevent shoplifting. Rowe testified that, when Plaintiff refused to show her a receipt, she told Jacob Brown and Kevin Elliott, two Garden Center Sales Associates, that a customer would not show her his receipt from his merchandise.
Plaintiff testified that Brown and Elliott "ran" up to them and grabbed his cart. They asked to see his receipt. Plaintiff refused to show them his receipt. Brown testified that Plaintiff responded that he did not have one. Plaintiff's son testified that he remembered his dad saying that he did not have one. Plaintiff testified that he told Brown and Elliott that he felt he was being singled out because he was black because the greeter did not ask any of the other customers for their receipt. Plaintiff testified that one of them said, "if you can't show us a fucking receipt, you can't take our fucking stuff." Plaintiff testified that he said to "back off or else" and then told either Brown or Elliott "if he touched my stuff again I was going to break his fucking face." Brown and Elliott went to get Tim Rappe, an assistant manager at the Mattoon Wal-Mart, who was operating a fork-lift nearby. Rappe came over and asked Plaintiff for his receipt. Plaintiff testified that "I explained to [Rappe] what had happened and how I felt that it was racial profiling to single me out and not the others, and then he responded sharply that he didn't have time for this crap or shit, whichever one it was, and he needed me to show him the receipt or he was going to call the police." Plaintiff testified "I told him to call the police because that would be good if he called the police." Plaintiff also testified that Rappe told him he was not allowed back at the store. Plaintiff testified "I told him he didn't own the store." Plaintiff testified that he called Rappe a "[p]unk ass bitch" and "told him to fuck off." Plaintiff testified that he and Rappe were both shouting.
The evidence shows that the police were not called and, even though Plaintiff did not show Rowe, Brown, Elliott or Rappe his receipt, Plaintiff left with the lawn mower in Morris' truck. Morris testified that they got about three miles away and Plaintiff decided he did not want the merchandise and was taking it back. Morris testified that he took Plaintiff back to the Mattoon Wal-Mart. Plaintiff testified that he entered the store and returned the lawn mower and other merchandise. Plaintiff testified that he showed his receipt to return the merchandise. Plaintiff testified that nobody told him to return the stuff. At his deposition, Plaintiff was asked "did anybody tell you that you had to return the goods?" He responded, "Just me." Plaintiff testified that, when he came back to return the merchandise, he talked to the manager of the Mattoon Wal-Mart, David Sauerwein. Plaintiff testified that Sauerwein said he was not barred from the store. Rappe confirmed that the only way to ban a customer from the store was to fill out a "trespass letter," which was not done in Plaintiff's case. Rappe testified that, without the trespass letter, there is no way to enforce a ban.
Plaintiff testified that he did not shop at the Mattoon Wal-Mart until the end of 2007 or beginning of 2008 "[b]ecause I was still upset." Plaintiff testified that he could have returned to the store if he wanted to, he "just chose not to because of what had happened." Plaintiff testified that, since then, he has shopped at the Mattoon Wal-Mart without any incident or problems. Plaintiff testified that, subsequent to 2005, he has been able to enter the store and make purchases without any problems. Plaintiff specifically testified that no employee at any Wal-Mart store, including the Mattoon Wal-Mart, has ever prohibited him from entering a store or ever prohibited him from making a purchase.
On April 13, 2009, Plaintiff, through his counsel Ruth E. Wyman of the Robert G. Kirchner Law Office, filed his complaint against Wal-Mart in the circuit court of Coles County. Plaintiff alleged that Wal-Mart violated 42 U.S.C. § 1981 in various ways, including by causing Plaintiff to return goods to the store. On May 28, 2009, Wal-Mart filed a Notice of Removal (#1) and removed the case to this court, stating that Plaintiff's Complaint arises under federal law as it alleges that Plaintiff seeks redress pursuant to 42 U.S.C. § 1981.
On March 12, 2010, Wal-Mart filed its Motion for Summary Judgment and Sanctions (#29). Wal-Mart argued that it is entitled to summary judgment on Plaintiff's Complaint because Plaintiff cannot establish that the alleged discrimination concerned the making and/or enforcing of a contract and, additionally, because Plaintiff cannot show that Wal-Mart had the intent to discriminate on the basis of race. Wal-Mart also argued that it was entitled to an award of sanctions from Plaintiff's attorney pursuant to 28 U.S.C. § 1927. Wal-Mart argued that "Plaintiff's counsel should have been aware that Plaintiff's claims were no longer factually or legally viable after Plaintiff's deposition, when Plaintiff admitted that he (1) has never been denied entrance to the Mattoon Wal-Mart Store (or any other Wal-Mart Store), (2) has never been prevented from making a purchase; and (3) voluntarily decided to return his purchased goods (and was allowed to do so) on the day at issue in this Lawsuit." Wal-Mart argued that these admissions made Plaintiff's § 1981 claim not viable, and Plaintiff's counsel should have dismissed the case.
On March 31, 2010, Plaintiff, through counsel, filed his Response to Wal-Mart's Motion for Summary Judgment (#32). Plaintiff argued that Wal-Mart's employees threatened to take his merchandise and threatened to call the police, causing him to return the merchandise. Plaintiff therefore argued that the actions of Wal-Mart's employees interfered with his right to equal enjoyment of a contractual relationship. Plaintiff also argued, throughout his Response, that he was banned from the store. He argued that, because of this ban, he did not return to the Mattoon Wal-Mart until either the end of 2007 or beginning of 2008. Plaintiff's counsel did not respond to WalMart's request for sanctions.
On April 14, 2010, Wal-Mart filed its Reply (#34). Wal-Mart argued that, in his Response, Plaintiff has attempted to "avoid summary judgment by backpedaling off his clear admissions that he voluntarily returned his purchased goods and that he was not barred from the Store."
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, a district court has one task and one task only: to decide, based upon the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Burwell v. Pekin Cmty. High Sch. Dist. 303, 213 F. Supp. 2d 917, 929 (C.D. Ill. 2002).
However, the "mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the non-movant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). Summary judgment "is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004). If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his or her case, summary judgment is not only proper, but mandated. See Celotex, 477 U.S. at 322; Jones v. Indy 104, L.L.C., 2010 WL 2270931, at *3 (S.D. Ind. 2010).
Section 1981 states, in pertinent part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a). The statute defines "make and enforce contracts" as including "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The United States Supreme Court has interpreted § 1981 as "providing a broad-based prohibition (and federal remedy) against racial discrimination in the making and enforcing of contracts." Humphries v. CBOCS West, Inc., 474 F.3d 387, 393 (7th Cir. 2007), aff'd 553 U.S. 442 (2008), citing Runyon v. McCrary, 427 U.S. 160 (1976); see also Williams v. S. Ill. Riverboat/Casino Cruises, Inc., 2008 WL 1776461, at *5 (S.D. Ill. 2008). Litigation involving § 1981 most commonly involves the right to make and enforce contracts of employment but the statute also protects citizens' rights to enter into retail contracts. See Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996); Jones, 2010 WL 2270931, at *3; see also Hill v. Shell Oil Co., 78 F. Supp. 2d 764, 776 (N.D. Ill. 1999).
To establish a prima facie claim of such discrimination regarding retail contracts, a plaintiff must show that (1) he is a member if a racial minority; (2) the defendants had the intent to discriminate on the basis of race; and (3) the discrimination concerned the making or enforcing of a contract. Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756 (7th Cir. 2006). The Seventh Circuit has made clear that, in order to prevail in a claim under § 1981 regarding a retail contract, the plaintiff must show that he was denied his right to contract or purchase personal property. See Bagley v. Ameritech Corp., 220 F.3d 518, 521-22 (7th Cir. 2000); Morris, 89 F.3d at 414-15.
In Bagley, the plaintiff, a black man, went to an Ameritech retail store to purchase a cordless telephone. The plaintiff asked a sales clerk for assistance and the sales clerk asked the assistant sales manager if the phone was still in stock. Bagley, 220 F.3d at 519-20. The assistant sales manager loudly responded that she would not serve the plaintiff. She then gave the plaintiff "the finger" and handed the sales clerk a brochure about the phone. Bagley, 220 F.3d at 520. The plaintiff was offended, thinking the assistant sales manager treated him in this manner because of his race, and left the store. The plaintiff later returned to get the sales clerk's name to use him as a witness. The sales clerk provided his name and then asked the plaintiff "if he needed further assistance in making a purchase." Bagley, 220 F.3d at 520. The plaintiff declined the sales clerk's offer. According to the plaintiff, before he left, the assistant sales manager again gave him "the finger." Bagley, 220 F.3d at 520.
The district court dismissed the case on summary judgment, finding that the plaintiff never really tried to enter into a contract and thus could not have been deprived of his rights to contract or purchase personal property. Bagley, 220 F.3d at 519. The district court found that the plaintiff chose not to enter the contract since: (1) he was allowed into the store; (2) he received assistance from the sales clerk: (3) he immediately left the store after hearing the comment without attempting to consummate the transaction with the sales clerk or anyone else; (4) no one told him to leave; (5) the sales clerk asked him if he needed assistance when he returned; (6) the assistant sales manager handed the sales clerk the brochure about the phone despite her comments: and (7) the plaintiff had made a number of past purchases at the store and had twice been helped by the assistant sales manager. Bagley, 220 F.3d at 521. The Seventh Circuit affirmed, finding that, because Ameritech was not responsible for terminating the transaction, it did not violate § 1981. Bagley, 220 F.3d at 522.
In Morris, the plaintiffs were two black patrons at an Office Max store, who had both shopped at the store on prior occasions. The store's assistant manager called the police and reported two black males purportedly acting suspiciously. When police officers arrived in response to the call, the plaintiffs, who were the only two black men in the store at the time, showed identification and answered questions posed by the officers. The police officers then apologized and left. Morris, 89 F.3d at 412. The plaintiffs filed a lawsuit and the district court granted summary judgment for Office Max. The court "found that the plaintiffs failed to produce any evidence to suggest that Office Max interfered with their right to make further purchases or to enter into a retail contract." Morris, 89 F.3d at 412.
The Seventh Circuit affirmed, stating that the plaintiffs "cannot point to specific facts showing that Office Max deprived them of any of the enumerated rights in § 1981 and, specifically, the right to make and enforce a contract." Morris, 89 F.3d at 414. The court stated that the plaintiffs "were denied neither admittance nor service, nor were they asked to leave the store." Morris, 89 F.3d at 414. The Seventh Circuit rejected the plaintiffs' argument that "the store discouraged and dissuaded them from making the purchase," noting that the plaintiffs failed to demonstrate that they would have attempted to make a purchase even if they had not been approached by the police. Morris, 89 F.3d at 414. The court stated that, because the plaintiffs did not attempt to make any further purchases, they "never sought to enter into a contractual relationship with Office Max." Morris, 89 F.3d at 414. The Seventh Circuit stated that a "claim for interference with the right to make and enforce a contract must allege the actual loss of a contract interest, not merely the possible loss of future contract opportunities." Morris, 89 F.3d at 414-15.
Subsequently, in Maxie v. Wal-Mart Store, 2009 WL 1766686 (N.D. Ind. 2009), the district court dismissed a suit wherein the pro se plaintiff stated that he was suing Wal-Mart for "harassing and humiliating" him when an undercover store security officer and a Wal-Mart store employee asked to see his receipt and pulled out all the items he and his companion purchased in front of the store. The plaintiff alleged that the Wal-Mart employee "was watching us as if we stole something." The plaintiff alleged that they were singled out because of race. Maxie, 2009 WL 1766686, at *1. The district court stated:
In this case, Maxie has only made allegations satisfying the first and second requirements [of a claim under 42 U.S.C. § 1981], but he has not alleged that Wal-Mart's discrimination concerned the making or enforcement of a contract. Maxie's transaction was complete when the security guard stopped him, and Maxie was allowed to keep the items he purchased. In short, Maxie's complaint does not state a claim under § 1981 because nothing in the complaint suggests Wal-Mart discriminated against him with respect to making and enforcing a contract.
Maxie, 2009 WL 1766686, at *4 (emphasis in original).
Moreover, in Range v. Wal-Mart Supercenter, 2008 WL 1701870 (N.D. Ind. 2008), the district court dismissed a similar case. In Range, the pro se plaintiffs, an African American husband and wife, alleged that they refused to show a receipt for their purchases and Wal-Mart employees and a security guard took control of the items they had just purchased. The plaintiffs' complaint was unclear regarding whether the store reimbursed them for the items. The plaintiffs alleged that the husband is often stopped and asked for receipts when leaving Wal-Mart, while other customers are not stopped. Range, 2008 WL 1701870, at *1. The district court concluded that the plaintiffs' complaint did not state a cause of action under § 1981. The court stated: the alleged discrimination in this case--asking plaintiffs for a receipt as they were leaving the store after making a purchase--did not involve the making or enforcing of a contract. Rather, the alleged discrimination occurred after plaintiffs had successfully made their purchases.
Range, 2008 WL 1701870, at *4. The court noted that "[l]arge stores such as Wal-Mart often conduct such receipt checks, not as some sort of additional condition to the sale, but in an effort to foil shoplifters." Range, 2008 WL 1701870, at *4 n.1. The district court concluded that, thus, "the alleged discrimination was not part of the 'contract' or sale, and cannot be the basis for liability under § 1981." Range, 2008 WL 1701870, at *4.
In this case, there is no dispute that Plaintiff completed the purchase of the lawn mower and other items and was leaving the store when he was asked for his receipt. The record also shows that Plaintiff did not show his receipt, but still left the store with the lawn mower and other merchandise. The deposition testimony showed that Plaintiff decided to return the items to the store and was allowed to do so. Plaintiff also testified that he was not barred from the store, but voluntarily decided not to shop there for a while. He testified that no employee at any Wal-Mart store, including the Mattoon Wal-Mart, has ever prohibited him from entering a store or ever prohibited him from making a purchase. Based upon the applicable precedent from the Seventh Circuit, and persuasive authority from district courts in the Seventh Circuit, this court concludes that Plaintiff cannot establish an essential element of his case under § 1981, that the alleged discrimination concerned the making or enforcing of a contract. Therefore, Wal-Mart is entitled to summary judgment on Plaintiff's claim. See Bagley, 220 F.3d at 522; Morris, 89 F.3d at 414-15; Maxie, 2009 WL 1766686, at *4; Range, 2008 WL 1701870, at *4. Because of this conclusion, there is no need to consider Wal-Mart's additional argument that Plaintiff cannot show that Wal-Mart had the intent to discriminate on the basis of race.
This court notes that, in an effort to avoid summary judgment, Plaintiff has argued that the actions of Wal-Mart employees "caused" him to return the merchandise and that he was "banned" from the store.*fn2 However, Plaintiff testified that no one told him to return the items to the store, it was "[j]ust me." Plaintiff also testified that he was not barred from the store. Plaintiff cannot circumvent summary judgment by introducing facts and arguments that are contradicted by his deposition testimony. See Pourghoraishi, 449 F.3d at 759 (later affidavit or declaration which conflicts with a plaintiff's sworn testimony is to be disregarded); Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir. 1998) (a party cannot prevail on a motion for summary judgment by "submitting an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony").
The only real issue in this case is whether sanctions should be awarded to Wal-Mart. Wal-Mart has requested sanctions pursuant to 28 U.S.C. § 1927. This statutes provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. Sanctions are available under § 1927 when "a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, [then] the conduct is objectively unreasonable and vexatious." Moore v. Vital Prods., Inc., 2009 WL 275475, at *18 (N.D. Ill. 2009), quoting Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 614 (7th Cir. 2006). Unlike sanctions under Rule 11 of the Federal Rules of Civil Procedure, sanctions under § 1927 are available only against an attorney, not the client. Moore, 2009 WL 275475, at *18.
Plaintiff's attorney did not respond to Wal-mart's request for sanctions, and this court believes that Wal-Mart has made a persuasive argument in support of awarding sanctions in this case. As noted previously, Plaintiff's testimony at his deposition was clear and unequivocal that he decided to return the merchandise he purchased, including the lawn mower, on April 16, 2005. Plaintiff's testimony was also clear and unequivocal that he was not barred from the Mattoon Wal- Mart and, after a period where he did not shop there by his own choice, he has shopped there with no problems. This testimony doomed Plaintiff's claims under 42 U.S.C. § 1981. Instead of recognizing this, Plaintiff's attorney carried on and, in response to Wal-Mart's Motion for Summary Judgment, argued that Wal-Mart "caused" Plaintiff to return merchandise on April 16, 2005, and was banned from the store on that date. These arguments were completely contrary to Plaintiff's own deposition testimony.
However, in assessing whether sanctions should be awarded under § 1927, a court must proceed cautiously. Moore, 2009 WL 275475, at *18. The Seventh Circuit has stated that § 1927 is clearly punitive and thus must be construed strictly. Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (7th Cir. 1984). The purpose of § 1927 is to penalize attorneys who engage in dilatory conduct; thus, to be liable under § 1927, counsel must have engaged in "serious and studied disregard for the orderly process of justice." Knorr Brake, 738 F.2d at 227, quoting Overnite Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789, 795 (7th Cir. 1983). The term "vexatious" in § 1927 requires "either subjective or objective bad faith" to warrant sanctions. Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir. 1992). Therefore, sanctions are not warranted under § 1927 if a litigant acts in good faith. Hoglund v. Signature Mgmt. Group, Inc., 2009 WL 1269258, at *4 (N.D. Ill. 2009). After careful consideration, this court concludes that, while Plaintiff's arguments were unsuccessful, this court does not believe that Plaintiff's counsel presented the arguments in bad faith.*fn3 See Hoglund, 2009 WL 1269258, at *4. This court further concludes that Wal-Mart has not shown that Plaintiff's discrimination claims "were so utterly bereft of any basis at the outset to warrant a finding that [P]laintiff's counsel violated Section 1927." See Moore, 2009 WL 275475, at *18. Therefore, Wal-Mart's request for sanctions is DENIED.
(1) Wal-Mart's Motion for Summary Judgment and Sanctions (#29) is GRANTED in part and DENIED in part. Wal-Mart's request for summary judgment is granted and judgment is entered in favor of Wal-Mart and against Plaintiff. Wal-Mart's request for sanctions against Plaintiff is DENIED.
(2) This case is terminated. Accordingly, the final pretrial conference scheduled on September 10, 2010, at 11:00 a.m., and the jury trial scheduled on September 27, 2010, at 9:00 a.m., are hereby VACATED.
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Air New Zealand head of funding and fleet transactions Clovis Peryer, speaking at the CAPA Aviation Finance Asia Summit 2013, reported (20-Mar-2013) Air New Zealand's aircraft funding mix in 2013 consists of 44% unencumbered, 22% under operating lease, 20% JOLCO, 9% through secured debt and 5% through Ex-Im. In 2010, the funding mix consisted of 31% through secured debt, 28% operating lease, 21% JOLCO, 10 unencumbered, 8% JOL and 2% US Ex-Im. Mr Peryer stated the increase in funding through its encumbered assets is preparing the carrier to dispose of aircraft including the two Boeing 747s, five 767s and 10 737-300s. He also said the carrier has seven A320s it still has to finance, as well a 10 787-9s, three ATR72-600s, 787 simulator and spare engines.
Air New Zealand: 44% of fleet unencumberd, 22% under operating lease, 20% JOLCO, rest debt/Ex-Im
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For an airline that is not large, Air New Zealand has been remarkably successful, now, notably in FY2016. It has selectively established helpful partnerships and, elsewhere, largely remained under the radar. It has excelled at marketing, and at market positioning.
But its home country is no longer the secret – or as inaccessible as – it used to be. That is a growing challenge for Air New Zealand, which for years has quietly and effectively exploited the limited competition. Two new entrants to Auckland in the North American market, and more nonstop capacity from North America to Australia – a 6th freedom staple for Air NZ, will elevate the threats. In the peak summer Chinese airlines will have one third as much capacity into New Zealand as Air NZ has long haul capacity to the world. The New Zealand government has considered granting fifth freedom rights for unserved routes. Domestically, Jetstar is challenging Air NZ on select regional routes.
Hong Kong Airlines to grow in Australia via Virgin Australia partnership. Auckland launches Nov-2016
Having built a regional Asian network anchored around mainland China as a source market, HNA Group's Hong Kong Airlines is leveraging its hub capability from short/medium haul connections to long haul transfers, which also reduce CASK. Hong Kong Airlines resumed long haul flying in early 2016 with a service to Cairns and the Gold Coast. Auckland will be added from Nov-2016 and Hong Kong Airlines should be able to break up the Air New Zealand-Cathay Pacific joint venture on the route.
Hong Kong Airlines is restricted from serving major Australian cities due to bilateral limits (Australia and Hong Kong have not been able to agree on increased capacity levels). Hong Kong Airlines' owner HNA has bought into Virgin Australia, which plans to serve the key HNA hubs of Beijing and Hong Kong in 2017, providing access from major Australian cities. Virgin could also help Hong Kong Airlines make viable service to smaller Australian cities.
Hong Kong Airlines is receiving a lift in Australia and New Zealand bookings, attributed to Asian consumers shifting away from travel in Europe, which has repeatedly been impacted by terrorist acts. Hong Kong Airlines believes that passengers are "viewing Australia and New Zealand together as more of a safe-haven status destination".


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Editor's note: In the weeks leading up to Relay for Life, Dawson Community News will feature stories of hope, survivorship and fundraising events intended to increase cancer awareness in the community. The series will also include articles on prevention, early detection and treatment options.
Lace up your sneakers and stretch out your legs to show "Country Folks Can Survive" next weekend in Dawsonville.
Like any other 4-year-old, Easton Hall loves to pretend he is a superhero and play with toy trucks.
Yet unlike most kids, he has a rare birthday.
Rachel Padgett likes to win.
"I want to win every time," she said as she picked up the Wii controller and bowled the sixth strike of the game last Thursday afternoon.
Authorities have determined that skeletal remains discovered Sunday afternoon in eastern Dawson County are those of a bear.
Dawson County Sheriff's deputies were called to a home on Hwy. 53 about 2 p.m. after reports that the family's dog had found what appeared to be a human hand.
After numerous fundraising efforts collected nearly $43,000, county commissioners voted last week to cover the remaining balance to install an elevator at the Dawson County Senior Center.
"The seniors are going to be so happy. I'm so happy for them," said Margie Weaver, center director.
Each member on the Dawson County High School Relay for Life team has a personal reason for supporting the American Cancer Society's signature fundraising effort.
"We have so many staff members that have been affected by cancer either directly or indirectly that we all realize that we are in it for the same reason - so no one else has to experience what we have lived," said Beth Swafford, team leader.
A new state champion tree, submitted by Mark Short, was recognized on Arbor Day by the Dawson County Tree Preservation committee.
The Chestnut Oak measured 164 inches in circumference and was 96 feet tall, according to Tony Page of the Georgia Forestry Commission.
Local nonprofit groups are invited to showcase their organization's work and volunteer needs Saturday at the Dawson County Library.
The community opportunity expo will be held from 10:30 a.m. to noon following the Dawson County Homeowners Civic Association's annual membership meeting.
For the price of museum admission, race fans can spend Sunday at the Georgia Racing Hall of Fame and watch the 54th running of the Daytona 500 on the museum's big screen.
"We had a Daytona 500 party several years ago and it went off pretty good," said Gordon Pirkle, local racing historian and hall president.
The water in Lake Lanier was a brisk, or as some folks said "freezing," 49 degrees Saturday morning for the second annual WEE Books Leap for Literacy.
"No, no, I can't," said Pepper Pettit as he rolled up his pants legs and tiptoed into the lake at War Hill Park. "I can't believe I'm doing this ... is there a psychiatrist here?"
A bill that would allow tastings at Georgia distilleries cleared committee last week and is one step closer to a vote by the state House of Representatives.
House Bill 514 would be advantageous to Cheryl Wood, owner of the Dawsonville Moonshine Distillery, which is expected to open in the next few months.
Local sculptor and outdoorsman Allen Ferg and fellow hiker Bob Miller are preparing to begin an enormous undertaking of 2,184 miles.
The duos estimated six-month journey from Georgia to Maine along the Appalachian Trail is set to benefit the Dawson County Arts Council, Bowen Center for the Arts and Reading Education Association of Dawson County (READ.)
Aromas of fresh baked cakes, cookies and pastries filled the lobby of the Dawson County Sheriff's Office on Friday as visitors placed bids on dozens of wanted desserts.
An American Cancer Society Relay for Life fundraiser, the silent auction netted more than $530 with several cakes fetching as much as $50 and $100 each.
The man credited with founding what has become Dawsonville's Mountain Moonshine Festival died Sunday at age 75.
Born in Dawson County in 1936, friends called Fred Goswick a man of vision who recognized that tales of Dawsonville's pioneer heritage and sordid moonshine history had the potential to be something big.
Fellow volunteers are quick to praise Penny Putnam's contributions to the Good Shepherd Clinic of Dawson County.
"Although Penny came into our service with no background in the medical field she has learned everything and is doing a superb job," said Doug Powell, treasurer of the nonprofit center that provides free non-emergency health services to uninsured residents.
Page 67 of 121
Dawson County Emergency services will host its first community risk reduction discussion Tuesday in the Dawson County Junior High School auditorium.
Former moonshine runner and member of the Georgia Racing Hall of Fame 2004 class, Charlie Mincey was chosen in March to be the grand marshal ...
With thousands of visitors descending on Dawsonville during the 49th annual Mountain Moonshine Festival, local authorities are asking motorists to plan their routes and avoid ...
The Goodwill Career Center, located inside Dawsonville's Goodwill store near Ingles, is hosting a multi-employer job fair next week.
A few months ago, an employee at the Chestatee Regional Library System hatched a plan that many were skeptical of: Stocking the library with a ...
Come mid-December, two Dawsonville Bank of the Ozarks locations will close, leaving only one of their branches open for business.
As the last rays of sunlight cut across the football field at Tiger Stadium Friday night, a fine rain-leftover remnants of Hurricane Matthew-began to fall.
The criminal case against citizen journalist Nydia Tisdale moved forward last week as a pre-trial motions hearing was held at the Dawson County courthouse.
Page 4 of 4
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The building, a renovation project for a hotel in the center of Prague. The combined total area - 21 000 sq.m. There is a valid building permit. The hotel will have 150 rooms. Prague - the city and the capital of the Czech Republic; the administrative center of the Central Bohemia Region and its two districts - Prague-East and Prague-West. It forms an independent administrative unit of the country. The population - 1.3 million people (as of 2015), the fourteenth-largest city in the European Union. Located on the banks of the Vltava River, 40 kilometers from its confluence with the Elbe. The main political, economic and cultural center of the Czech Republic. A major tourist destination in Europe: the number of tourists in 2015 exceeded 6.57 million. The historic center is listed a UNESCO World Heritage Site. The cost of the building - 45 000 000 EUR. The documents are ready to deal. Additional information is available upon request.
Financials (USD)
Asking Price $48,260,385
Sales Available On Request
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Converted From EUR
Exchange Rate $1.07
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Pico De Gallo With Cactus
Total Time
Prep 15 mins
Cook 0 mins
This is a recipe from my grandmother. There isn't much difference in pico de gallo recipes but this one adds a great flavor when you add the cactus. The cactus can be located in the mexican food isle. My friends really enjoy the recipe. I hope you enjoy.
Ingredients Nutrition
- 4 ripe tomatoes, finely chopped
- 1⁄2 small white onion, finely chopped
- 1⁄2 cup cilantro leaf, chopped (or more to taste!)
- 2 jalapeno peppers, seeded and finely chopped (to taste)
- 3 -4 stalks cactus pieces
- Mix all together.
- add salt and garlic salt to taste.
Most Helpful
Excellente, and oh, so exotic for us who never imagined cactuses could be eaten. Getting used to the slime cactus pads create, as a matter of fact, the slime enhances the texture of this particular recipe, makes it easy to scoop up with a tortilla chip! I did add a little limejuice to sharpen up the flavor.
Very fun and unusual dish. I used cactus from a jar and 1 jalapeno. It's also fun to add coctail shrimp and even cocktail sauce for an unexpected twist! Thanks for posting.


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60pcs / M Waterproof 3528 White Color Flexible Led Strip
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Freud® Bearing Flush Trim Router Bits - 1/4"e Shank
Home > Rockler > Power Tool Accessories > Router Bits > Edge Forming Router Bits
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Had Judah's 6 week appointment today. I guess I thought it would be geared more toward me but she said since I didn't tear or anything, there was nothing she needed to check.
However, Judah only weighed 8 lbs 10 oz - so he only gained 10 oz in three weeks. :cry:
Which means even the supplement I've been giving him isn't enough.
I think there are problems with his latch that need to be corrected which might be why he's not getting enough and not stimulating my breasts the right way for them to make milk. When I saw the LC she said he had a posterior tongue tie which I wasn't aware could be addressed until I went to a LLL meeting last night and my friend said they could laser it off. Also, since my one nipple is healed and the other is still cracked and not getting better, he may have an alignment issue with his jaw.
So I'm getting him adjusted tomorrow and then going for a consultation for a possible procedure for his tongue which I'm a little afraid of but apparently it's really fast, like a shot or something and they are able to eat right afterward.
I'm also ordering some more herbs to help my supply boost a bit more but I'm really hoping it's a problem with him and not me because I'm doing the same things I did with Noel and was able to drop the supplements by this point with her.
I'm also going to get him weighed tomorrow at the pedi where he's been weighed regularly before just to make sure he really is that far behind. I guess after his good weight gain the one week I thought we were doing good.
I'm really really wondering about his weight and whether that new midwife did it wrong and maybe he is 9lbs 10oz instead. He *seems* to have gained a good bit of weight - he has a bit of a double chin and little leg rolls.
So anyway, thoughts and prayers would be appreciated because if I think about it too much I get pretty down with the fact that I can't feed my own baby even though I'm trying SO hard. I really really REALLY don't want to have to supplement his feedings the entire time he is breastfeeding because it's so much more difficult to go out and do stuff when I have to think about bottles and keeping milk cool and pumping etc.


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New kit update
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We spent the night after attending a wine festival in the area. We arrived in the evening and enjoyed a peaceful time on the patio. The entire house was decorated down to the last detail to feel that you were 100 years back in history, even the push button light switches. Our room was clean and comfortable. There was even a little basket of snacks and water for us.
In the morning we had a delicious gourmet breakfast, with everything served on antique plates and dishes. Fresh fruit (some of which was from the garden, home-made muffins, an omlet, the french-press coffee was really good too.
The stay was very relaxing and enjoyable. Anne and Mark were wonderful hosts, warm and friendly. We look forward to coming back again.
- Official Description (provided by the hotel):
- A Victorian home in the historic district located at the corner of Prescott Ave and Center St. Adjacent to the Norfolk and Southern RR Line, "train spotting" is possible from our dining room window. We are a 10 minute walk to Old Town Manassas shops, restaurants, museum and train depot. Manassas National Battlefield is 4 miles away.Each room is decorated in period style with four poster queen-size bed,attached bath with clawfoot tub,TV and wifi.. Enjoy a full organic, gourmet breakfast featuring home grown products,from our own organic garden when available. ... more less