Morse v. Pratt & Whitney

Filing 50

RULING granting in part and denying in part 37 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 1/23/2013. (Attachments: # 1 Supplement, # 2 Supplement) (Lewis, D)

situated" positions are those that are "substantially equal").
Pratt also argues that Morse has not presented evidence that any alleged
underpayment occurred under circumstances giving rise to an inference of
discrimination. See Def.'s Mem. in Supp. Mot. for Summ. J. at 12. Morse argues that
her 20 percent salary adjustment, which was the highest adjustment of any TSS
employee and given a little over a month after she first complained that she was
undercompensated because of her gender, suggests that Pratt agreed "she was due an
extraordinary adjustment to her compensation." Plaintiff's Mem. in Opp'n. Mot. for
Summ. J. at 8. She also claims that her salary adjustment raises an inference of
discrimination because, of the three highest increases given to employees within TSS,
two of those went to women.

kt

Pratt contends that the adjustment does not suggest

an inference of discrimination because "three additional TSS employees received
increases of more than 15%, and two of those employees ... were men." Def.'s Mem.
in Supp. Mot. for Summ. J. at 13. The adjustment alone does not present a genuine
issue of material fact as to whether Morse was underpaid under circumstances giving
rise to an inference of discrimination as it only suggests Morse was previously
underpaid, not that she was underpaid because of her gender.
However, Morse also claims that her supervisors, Mr. Bianchi and Mr. Lemire,
told her that "'girls' who had husbands with jobs did not need to make as much money
as men since men were the primary earners in the family." L.R. 56(a)(2) at 8. In
addition, Morse alleges that Pratt had a practice of denying female employees, including
herself, continuing education opportunities, while granting such benefits to male
employees. See Pl.'s Mem. in Opp'n Mot. for Summ. J. at 4; see also PI. Aff. at 1f 14.

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Taking Morse's version of events as true, a reasonable jury could find that the
circumstances surrounding Morse's underpayment give rise to an inference of gender
discrimination. 6
Pratt claims that, "even if Plaintiff could establish a prima facie case of gender
discrimination," it has "identified a legitimate business reason for its decision to raise
Plaintiff's pay by more than 20% in April 2008," namely that it raised many employees'
salaries based on an internal study. See Def.'s Mem. in Supp. Mot. for Summ. J. at 14.
However, once Morse established a prima facie case, the burden shifted to Pratt to
present a legitimate business reason for why Morse was paid less than similarly
situated male employees, not for why she received a pay increase in 2008. See e.g.,
Fayson v. Kaleida Health, Inc., 2002 WL 31194559, at *6 (WD.N.Y. Sept. 18,2002)
(unpublished opinion) (finding that the defendant "articulated a legitimate
nondiscriminatory reason for Fayson's wage disparity"). Because Pratt failed to meet
this burden, and a reasonable jury could find that Morse introduced evidence sufficient
to establish her prima facie case, Pratt's Motion for Summary Judgment on Morse's
Title VII unequal pay claim is denied.
2. Failure to Promote
Morse also claims Pratt discriminated against her based on her gender by failing
to promote her to the same job grades as similarly situated male employees. In failure-

6 Pratt makes much of the "fact" that Morse admitted in her deposition that she felt Mr. Bianchi
treated her differently because he was her uncle. See Mem. in Supp. Mot. for Summ. J. at 14; PI. Oep. at
46. However, Morse only stated that she thought her uncle did not want people to think he was giving her
favors, "so he was harder on me than anyone else ." PI. Oep. at 46. Making all inferences in Morse's
favor, the evidence only shows that Mr. Bianchi held Morse to a higher performance standard. There are
no facts to support the notion that Mr. Bianchi paid Morse less than similarly situated men because she
was his niece. Therefore, to the extent that Pratt is arguing Morse cannot show gender discrimination
because any mistreatment was due to "reverse nepotism," the record before the court does not support
its argument.

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to-promote cases brought under Title VII, courts follow the burden-shifting Title VII
analysis first announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146-149, 120 S.Ct. 2097,147 L.Ed.2d 105 (2000); St. Mary's Honor
Centerv. Hicks, 509 U.S. 502, 506-511,113 S.Ct. 2742,125 L.Ed.2d 407 (1993); Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-256, 101 S.Ct. 1089, 67 L.Ed.2d
207 (1981). To establish a prima facie case, the plaintiff must show (1) that she was in
a protected group, (2) she applied for a position for which she was qualified, (3) she was
subject to an adverse employment decision, and (4) that the decision occurred under
circumstances giving rise to an inference of discrimination. See e.g., Byrnie v. Town of
Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001).
Pratt argues that Morse cannot make out a prima facie case because there is no
evidence that she ever applied for a promotion. See Def.'s Mem. in Supp. Mot. for
Summ. J. at 11-12 n.5; see also Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d
Cir. 1998). In Brown, the Second Circuit set forth the standard for promotion cases,
requiring a plaintiff to "allege that she or he applied for a specific position or positions
and was rejected therefrom, rather than merely asserting that on several occasions she
or he generally requested promotion."

If!:. at 710.

The only evidence Morse has put

forth concerning a request for a promotion is her request in 2007 to Mr. Muldoon to
either promote her to a higher pay grade and salary given her duties as the Account
Manager for Pratt Canada, or to compensate her for overtime, L.R. 56(a)(2) at 7, and
her requests to Mr. Bianchi that he increase her pay and job grade. Morse Aff. at ~ 12.
These conversations do not meet the requirements of Brown. Therefore, Pratt's Motion

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for Summary Judgment on Morse's Title VII failure to promote claim is granted.
B. _
Unlawful Retaliation in Violation of Title VII of the Civil Rights Act of 1964
Morse claims Pratt retaliated against her for instigating an internal complaint for
gender discrimination as well as for filing a complaint with the Connecticut Commission
on Human Rights and Opportunities ("CHRO"). The same McDonnell Douglas burdenshifting analysis applies to Morse's claim for retaliation. Joiner v. Chartwells and
Compass Group North America, 500 F.Supp.2d 75, 82 (D. Conn. 2007). "A plaintiff
makes a prima facie showing of retaliation by establishing 'participation in a protected
activity known to the defendant; an employment action disadvantaging the plaintiff; and
a causal connection between the protected activity and the adverse employment
action.'"

kl (quoting Quinn v. Green Tree Credit Corp.,

159 F.3d 759, 769 (2d Cir.

1998). A protected activity "refers to action taken to protest or oppose statutorily
prohibited discrimination."

kl (quoting Cruz v.

Coach Stores, Inc., 202 F.3d 560, 566

(2d Cir. 2000).
Morse engaged in protected activity when she filed an internal complaint with the
Human Resources Department at Pratt and when she filed her complaint with the
CHRO. See e.g., Wilburn v. Fleet Financial Group , 170 F.Supp.2d 219,236 (D. Conn .
2001) (stating that protected activity refers to "action taken to protest or oppose
statutorily prohibited discrimination, such as filing a sexual harassment complaint with a
government agency"); Barlow v. Connecticut, 319 F.Supp.2d 250, 263 (D. Conn. 2004)
(considering internal complaints as protected activity).
However, with regard to the second element of a prima facie case, Pratt contests
Morse's allegations of disadvantageous employment actions. According to Pratt, Morse

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testified at her deposition that the basis of her retaliation claim was:
"(1) a third party, Bob Moraniec, who worked for a shipping company with which
Pratt & Whitney did business, told her that Bianchi 'was going around telling
people keep an eye on me, wanted to trip me up so he could terminate me;' (2)
she overheard coworkers in the lavatory saying that Bianchi was allegedly 'telling
people in other departments that I had to work with that the only reason I filed a
complaint was because I was having an affair with my attorney and sleeping
around on my husband and trying to make big money off of Pratt so I could retire,
divorce my husband, take my husband for everything he was worth, and run off
with my attorney; ' and (3) after allowing Plaintiff to attend her first trade show in
September 2007, Bianchi later allowed Plaintiff's female coworker, Kim Hiller, to
attend a 2008 trade show in Texas, rather than allowing Plaintiff to attend."
Def.'s Reply at 4. First, Pratt argues that Morse's first two complaints cannot be
considered on a motion for summary judgment because they constitute hearsay and are
inadmissible. See Def.'s Mem. in Supp. Mot. for Summ. J. at 16. The court agrees.
See Rizzo-Puce-to v. College Auxiliary Services . Inc.. 71 F.Supp.2d 47, 57 (N.D.N.Y.
1999) (disregarding statements made by co-workers to plaintiff because the statements
constituted hearsay that would be inadmissible at trial). Second, Pratt argues in its
Reply that additional claims of retaliatory conduct presented in Morse's opposition to its
Motion for Summary Judgment may not be considered by the court because the
allegations contradict prior deposition testimony, specifically Morse's testimony that the
three reasons above were the basis of her retaliation claim. Def.'s Reply at 5.
Morse claims in her opposition papers, with support from her own attached
affidavit, that "after her complaint . . . [she] was stripped of many of her duties as
manager of Pratt Canada." PI. Mem. in Opp'n Mot. for Summ. J. at 7. In addition, she
claims that "she was denied future continued employment with Pratt as a result of her
refusal to withdraw her pending CHRO complaint."

hi

"It is well settled in this circuit that a party's affidavit which contradicts his own

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prior deposition testimony should be disregarded on a motion for summary judgment."
Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987). However, "when only a limited
quantity of deposition testimony is available and other material submitted to oppose
summary judgment was only arguably contradictory, the other material could be
examined for summary judgment purposes." Susko v. Romano's Macaroni Grill, 142
F.Supp.2d 333, 337 (E.D.N.Y. 2001); see also Hayes v. New York City Dept. of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996) (allowing consideration of "only arguably
contradictory" testimony when "defense counsel did not ask questions at the first
deposition sufficient to elicit the specific content" at issue in the subsequent testimony).
Although a close call, Morse's claim that she was stripped of many of her duties
as a result of her internal complaint is only "arguably contradictory" to her deposition
testimony. She asserted in her deposition that a basis of her retaliation claim is that Mr.
Bianchi prevented her from attending a 2008 trade show, which she considered to be
one of her duties. PI. Dep. at 111-112. Furthermore, because Pratt attached excerpts
from Morse's deposition testimony, the court cannot determine that counsel confirmed
that Morse presented all of the reasons for which she was bringing a suit for retaliation.
See Hayes, 84 F.3d at 619.
Pratt further argues that, even if the court considers Morse's Affidavit, she has
not presented sufficient evidence to allow a reasonable jury to find she was "stripped of
her duties." Def.'s Reply at 5. Morse cites to an email sent from Mr. Muldoon after she
lodged her internal complaint, stating what is "[s]pecifically NOT included in ... [her]
responsibilities," including new business development, customer visits, trade show and
conference attendance, accountability for specific sales and EBIT targets, supplier

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management, coordination of purchase order issuance, customer price or warranty
negotiation, and approval of customer credit. PI. Mem. in Opp'n Mot. for Summ. J., Ex.
5. Morse admits that those duties were "beyond her job description," and that she
performed them at the direction of Mr. Bianchi, who was ultimately fired by Pratt for
"requiring subordinates to perform duties and task[s] that were not part of their job
description[s]." L.R. 56(a)(2) at p. 5,9. However, she also claimed that she performed
these duties at the instruction of both Mr. Bianchi and Mr. Muldoon. Id. Because the
record is unclear, there is an issue of material fact as to whether Mr. Muldoon knew of
and condoned Morse's greater responsibilities, and later took those responsibilities
away after she submitted her complaint.
As additional evidence of Pratt's stripping of her duties, Morse claims that she
was supposed to attend a 2008 trade show, but that Mr. Bianchi sent Kim Hiller instead
once Morse submitted her complaint. See PI. Dep. at 112. According to Morse, she
was given the title of Regional Manager of Pratt Canada, which would have entitled her
to perform such duties as attending trade shows. L.R. 56(a)(2) at p.6; see also PI. Dep.
at 112.. Pratt states that Morse was not a manager, but a sales representative, as she
admitted in her deposition. Def.'s Reply at 5; see also PI. Dep. at 86. However, Morse
cites to a 2008 TSS brochure which lists her and Ms. Hiller as Regional Managers of
Pratt Canada. See L.R. 56(a)(2) at p. 6. According to Morse, Ms. Hiller was listed
beneath her on the TSS brochure as her "sales representative." See PI. Dep. at 112.
According to Morse, the Regional Manager is the person who attends the trade
show.

& Although a close call-Morse admits that, as of June 2008, she was training

Ms. Hiller in anticipation of her leaving Pratt, PI. Mem. in Opp'n Mot. for Summ. J., Ex.

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4; see also PI. Aff. at 11 24-a reasonable jury could find, taking as true Morse's
assertion that she was the Regional Manager and Ms. Hiller was a sales representative,
that Mr. Bianchi stripped Morse of her responsibility of attending the trade show after
she submitted her internal complaint.
Coupled together, the alleged elimination of Morse's various duties may
constitute an adverse employment action under the second prong of Morse's prima
facie case.
"An adverse employment action is a materially adverse change in the terms and
conditions of employment .... To be 'materially adverse,' a change in working
conditions must be more disruptive than a mere inconvenience or an alteration of
job responsibilities ... Such a change 'might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular situation.'"
Weeks v. New York State (Div. of Parole), 273 F.3d 76, 85 (2d Cir.2001), abrogated on
other grounds by Nat'l RR Passenger *340 Corp. v. Morgan, 536 U.S. 101, 108-114,
122 S.Ct. 2061, 153 L.Ed.2d 106(2002) (quoting Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 640 (2d Cir.2000)). A change in job responsibilities can constitute
an adverse employment action where it substantially diminishes an employee's material
responsibilities. See Treglia v. Town of Manlius, 313 F.3d 713, 717-18, 720 (holding that
a police officer who was removed from enforcement duties and confined to desk duty,
among other actions, had established an adverse employment action); see also
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006) ("Common
sense suggests that one good way to discourage an employee ... from bringing
discrimination charges would be to insist that she spend more time performing the more

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