Apicella v. Rite Aid HDQTRS. Corp.
MEMORANDUM AND ORDER: Defendant's 24 motion for summary judgment is denied in its entirety. Ordered by Judge William F. Kuntz, II on 3/27/2013. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
-againstRITE AID HDQTRS. CORP. d/b/a! RITE AID CORP.,
WILLIAM F. KUNTZ II, United States District Judge
Cathleen Apicella ("Plaintiff') brings this action against her employer, Rite Aid
Headquarters Corp. ("Defendant"), for alleged violations of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e, the Equal Pay Act, 29 U.S.C. § 206, and New York State
Human Rights Law ("NYSHRL"), N.Y. Executive Law § 296. Plaintiff asserts Defendant
discriminated against her when it demoted her from the position of supervising pharmacist to
staff pharmacist, cut her hours, and placed her in a "floater" pool. Defendant moves for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons
stated below, the Court denies Defendant's motion in its entirety.
as a staff pharmacist by one of Defendant's corporate predecessors in
1984, and was promoted to the position of supervising pharmacist about eight or nine months
later. Pl.'s Local Rule 56.1 Counterstatement of Undisputed Facts ("Pl.'s 56.1 St."), ~ 1;
Deposition of Cathleen Apicella ("Pl.'s Dep. Tr."), at 42:2-18,51:18-52:11,60:14-22. She
continued to work as a supervising pharmacist with Defendant's corporate predecessors until
January 2005, when she went on medical leave. PI.'s 56.1 St., at ~ 1; PI.'s Dep. Tr. at 69:8-11.
During the approximately twenty years Plaintiff worked for Defendant's predecessors, she never
received any negative work evaluations or warnings. PI.'s Dep. Tr. at 48:21-49:16.
Plaintiff returned from her medical leave in February 2006, at which time she was given
the position of supervisory pharmacist at Defendant's store! in Shirley, New York. PI.'s 56.1 St.,
at ~~ 2,4; PI.'s Dep. Tr. at 110:13-19, 125:16-24. According to Plaintiffs testimony, this
position was permanent. PI.'s 56.1 St., at ~ 4; PI.'s Dep. Tr. at 152:14-153:22. Defendant, by
contrast, contends that Plaintiff was offered the position on a temporary basis only. Aff. of
Frank Peterson ("Peterson Aff."), at ~~ 3-4.
The 2006 Incident
About six months after Plaintiff s return from medical leave, Defendant informed
Plaintiff that a new supervising pharmacist, Robert Lupski, had been hired for Defendant's
Shirley store. PI.'s 56.1 St., at ~~ 2,4. Plaintiff was offered a position as a supervising
pharmacist at Defendant's store in Selden, New York. PI.'s 56.1 St., at ~ 4. According to
Plaintiff, this new position would have required her to work regular overnight shifts. Id.; PI.' s
Dep. Tr. at 146:9-19, 148: 6-11. Plaintiff also contends that Frank Peterson, the district
manager, suggested that the position would be better for her because he knew she "want[ed] time
with [her] kids and this would be a great opportunity for [her] to spend time with them. Working
at nights, [she] could be home with them during the day," or words to that effect. PI.'s Dep. Tr.
1 There is contradictory evidence in the record as to the date on which Defendant acquired the predecessor
company for which Plaintiff worked. See Peterson Aff., at ~ 2; Pl.'s Dep. Tr. at 44:16-18. However,
because neither party argues that this fact is relevant to liability, and for ease of discussion, this Court will
refer to the entity for which Plaintiff worked during 2006 as Defendant.
Defendant contends that the Selden position was not an overnight position. Peterson Aff.
at ~ 6. In any event, when Plaintiff told Defendant that she was not interested in the Selden
position, Defendant demoted Plaintiff to the position of staffpharmacist. PI.' s 56.1 St., at ~ 4.
Plaintiff accepted the demotion in order to avoid being transferred. Id. Plaintiffs salary
remained unchanged. Id at ~ 5.
The 2009 Incident
In February 2009, Defendant's District Manager, George Soulos, asked Plaintiff to
reduce her hours from thirty-five to thirty per week, and to accept a new work schedule. Def.'s
56.1 St., at ~ 6. According to Plaintiff, Mr. Soulos gave her less than twenty-four hours to accept
the changed schedule. Pl.'s 56.1 St., at ~ 6. Mr. Soulos also refused to tell Plaintiff if any of the
other pharmacists at the store were being asked to reduce their hours or change their schedules.
Id Plaintiff complained to both Mr. Soulos and Defendant's human resources representative that
she thought Mr. Soulos was discriminating against her because of her sex. Deci. of Jose G.
Santiago ("Santiago Decl."), Ex. A at 1-2; PI.'s Dep. Tr. at 204:20-206:7. Shortly after Plaintiff
made these complaints, Plaintiff was transferred out of the Shirley store and into a "floater pool"
of pharmacists that "fill in the gaps in the stores" as needed. PI.'s 56.1 St., at ~ 7; Deposition of
George Soulos ("Soulos Dep. Tr."), at 41 :7-24. As a floating pharmacist, Plaintiff worked in as
many as three different stores each week. PI.'s Dep. Tr. at 195:14-196:12. Defendant filled
Plaintiffs former pharmacist position in the Shirley store with Marc Bashinsky. Santiago Dec!.,
Ex. A at 2.
Defendant does not deny that Plaintiff was transferred to the "floater pool" but contends
that the transfer was due to Plaintiffs refusal to agree to a change in her schedule. Def.'s 56.1
St., at ~ 7. According to Defendant, the schedules of the other two pharmacists in the store were
changed at the same time. Id. at ~ 8.
During Plaintiff s first three weeks in the floater pool, Plaintiff was scheduled for less
than a thirty-five hour workweek. Pl.'s Dep. Tr. at 198:18-199:5. As a result, she had to use
some of her accrued vacation hours in order to maintain her benefits. Id. at 233:18-234:8.
Plaintiff remained in the floater pool for over a year-and-a-halfbefore she was assigned to
Defendant's store in Eastport as a permanent staff pharmacist. Id. at 218:10-219:18; Soulos
Dep. Tr. at 54:16-56:7.
Plaintiff filed this action on April 15, 2010, alleging violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, the Equal Pay Act, 29 U.S.C. § 206, and
New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law § 296. 2
Summary Judgment Standard
A court "shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried. In determining whether summary judgment is
appropriate, this Court will construe the facts in the light most favorable to the non-moving party
and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v.
Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks and citations omitted).
No genuine issue of material fact exists "where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party." Lovejoy-Wilson v. NaCO Motor Fuel,
2 Plaintiffs complaint also included a claim under the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12101. Plaintiff withdrew this claim on March 21,2012. See Docket #16.
Inc., 263 F.3d 208, 212 (2d Cir. 2001) (internal editing omitted) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
If the moving party satisfies this burden, the non-moving party must "make a showing
sufficient to establish the existence of [each] element to that party's case ... since a complete
failure of proof concerning an essential element of the non-moving party's case necessarily
renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Importantly, if the evidence produced by the non-moving party "is merely colorable, or is not
significantly probative, summary jUdgment may be granted." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986) (internal citations omitted).
The Second Circuit has "emphasized that trial courts must be especially chary in handing
out summary judgment in discrimination cases, because in such cases the employer's intent is
ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see
also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000). However, it is
"beyond cavil that summary judgment may be appropriate even in the fact-intensive context of
discrimination cases." Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).
Therefore, "even in the discrimination context, a plaintiff must provide more than conclusory
allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Discrimination Claims Under Federal and State Law
Courts in the Second Circuit apply the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), to claims of discrimination under Title VII, 42 U.S.C.
§ 1983, and the NYSHRL. See Ruiz v. County of Rockland, 609 F.3d 486,491 (2d Cir. 2010) (Title
VII and Section 1983); Spiegel v. Schulmann, 604 F.3d 72,80 (2d Cir. 2010) (NYSHRL) (citation
omitted). Under this framework, the plaintiff bears the initial burden of proving a prima facie case
of unlawful discrimination by demonstrating: (1) "membership in a protected class;" (2)
"qualification for the position;" (3) "adverse employment action;" and (4) "circumstances giving rise
to an inference of discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560,567 (2d Cir. 2000).
"Although the burden of establishing a prima facie case is not onerous, and has been frequently
described as minimal, the Second Circuit has also noted that a jury cannot infer discrimination from
thin air." Staffordv. NY Presbyterian Hosp., No. 06-cv-2150, 2011 WL 1131104, at *5 (E.D.N.Y.
Mar. 28, 2011) (Vitaliano, l) (internal quotation marks and citations omitted). If a plaintiff
establishes a prima facie case of discrimination, the burden "then must shift to the employer to
articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S.
at 802; see Tex. Dep'tofCmty. Affairs v. Burdine, 450 U.S. 248,254 (1981). "This burden is one of
production, not persuasion." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Once the employer satisfies this burden, "the presumption of discrimination drops out of the
picture," and the plaintiff bears the burden of demonstrating "by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination." Id. at 143 (internal quotation marks omitted).
A. The 2006 Incident
1. Plaintiff's Prima Facie Case Creates an Inference of Discrimination
Plaintiff has established a prima facie case of discrimination with respect to the 2006
incident, in which she alleges that she was demoted from supervisory pharmacist to staff
pharmacist. Taking the facts in the light most favorable to Plaintiff, as this Court must on a
motion for summary judgment, Plaintiff easily meets all four elements of a prima facie case: (1)
as a female, plaintiff is a member of a protected class; (2) Plaintiff had twenty years of
experience as a supervisory pharmacist and was qualified for her position; (3) Plaintiff was
demoted from supervisory phannacist to staff phannacist, and therefore suffered an adverse
employment action; and (4) Plaintiff was replaced by a man, which is sufficient, at the prima
facie stage, to give rise to an inference of discrimination. See Zimmerman v. Assocs. First
Capital Corp., 251 F.3d 376,381 (2d Cir. 2001) ("[T]he mere fact that a plaintiff was replaced
by someone out.side the protected class will suffice for the required inference of discrimination at
the prima facie stage of the Title VII analysis.").
Defendant argues that Plaintiff has not established a prima facie case because she has
admitted that Mr. Lupski, the man who replaced her as supervisory phannacist, had more
managerial experience than she did and therefore deserved to be paid more. Pl.'s Dep. Tr.
167:14-168:3. At this initial stage of the McDonnell Douglas analysis, however, the question is
whether Plaintiff was qualified for the position from which she was demoted, see Cruz, 202 F .3d
at 567 (2d Cir. 2000), not whether the individual who replaced her was equally or more
qualified. Defendant's proffered rationale for replacing Plaintiff is more properly addressed in
the second stage of the McDonnell Douglas analysis, and the Court will therefore consider this
Defendant also contends that Plaintiff did not suffer an adverse action because (1) her
salary remained the same, and (2) she was offered a supervisory position at another store.
However, it is well-established that a "plaintiff sustains an adverse employment action ifhe or
she endures a 'materially adverse change' in the terms and conditions of employment," even if
those changes are unaccompanied by a change in salary. Galabya v. New York City Bd ofEduc.,
202 F.3d 636, 640 (2d Cir. 2000); Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d Cir.
1997) (an adverse employment action "is not limited to 'pecuniary emoluments,' but includes
discriminatorily-motivated diminution of duties"). Thus, a material adverse change may include
"a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation." Galabya, 202 F.3d at 640
(internal editing omitted); see also Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)
("Lesser actions such as negative employment evaluation letters may also be considered
adverse."); de la Cruz v. New York City Human Res. Admin. Dep '( ofSoc. Servs., 82 F.3d 16,21
(2d Cir. 1996) (transfer to a less prestigious assignment is an adverse employment action).
Here, it is undisputed that Plaintiff was demoted from supervisory pharmacist to staff
pharmacist. Def.'s 56.1 St.,
4. This demotion resulted in a change in duties and diminution
of responsibilities. Santiago Decl., Exs. B, C Gob descriptions). Plaintiff has therefore met her
burden to establish that she suffered an adverse action. The fact that she was offered another
supervisory position does not alter this analysis since that position would have required Plaintiff
to work overnight and was therefore less desirable.
2. Defendant Articulates a Legitimate, Nondiscriminatory Reason for Plaintiff's
Defendant may rebut Plaintiff s prima facie case by offering a legitimate,
nondiscriminatory reason for demoting Plaintiff. McDonnell Douglas, 411 U.S. at 802; see also
Bucalo v. Shelter Island Union Free Sch. Dis(., 691 F.3d 119, 132 (2d Cir. 2012). To meet this
burden, Defendant must "clearly set forth" the reasons for Plaintiffs demotion. Texas Dep '( of
Cmty. Affairs v. Burdine, 450 U.S. 248,255 (1981); Bucalo, 691 F.3d at 132 (noting that, within
the McDonnell Douglas framework, "the defendant must articulate its legitimate,
nondiscriminatory reason with some specificity"). Further, at this stage, the burden on
Defendant "is one of production, not persuasion; it can involve no credibility assessment."
Reeves, 530 U.S. at 142 (internal quotation marks omitted).
Defendant has met its burden here by articulating a specific, nondiscriminatory rationale
for demoting Plaintiff. Defendant has offered evidence that Plaintiff was assigned to the position
of supervisory pharmacist on a temporary basis while Defendant sought a new, more qualified
supervisory pharmacist. Peterson Aff., at ~ 3. There is also evidence in the record that the new
supervisory pharmacist who was hired, Mr. Lupski, was more qualified than Plaintiff, as he had
previously served as a pharmacy district manager. Id. at ~ 5. Further, once Defendant hired Mr.
Lupski, Defendant was required by law to change Plaintiffs position because a pharmacy may
not have more than one supervisory pharmacist. Id. Because Defendant has met its burden, the
presumption of discrimination drops from the case, and the burden shifts back to Plaintiff to
provide evidence sufficient for a reasonable jury to conclude Defendant's purported rationale
was merely a pretext for sex discrimination.
3. Plaintiff Has Raised a Genuine Issue of Material Fact as to Whether
Defendant's Proffered Reason was Pretextual
Notwithstanding the relative strengths or weaknesses of the parties' evidence in the first
two phases of the McDonnell Douglas analysis, the Supreme Court has repeatedly made clear
that "the ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff." Bucalo, 691 F.3d at
133 (quoting Burdine, 450 U.S. at 254) (internal editing and quotation marks omitted). To defeat
Defendant's motion for summary judgment, Plaintiff "must establish a genuine issue of material
fact ... as to whether the employer's reason for the adverse action is false and as to whether it is
more likely that a discriminatory reason motivated the employer to make the adverse decision."
Vazquez v. Southside United Housing Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490, at
*8 (E.D.N.Y. Aug. 21, 2009) (Garaufis, J.) (quoting Gallo v. Prudential Residential Servs., Ltd.,
22 F.3d 1219, 1225 (2d Cir. 1994)) (emphasis in original) (internal editing omitted). Direct
evidence of discrimination is not necessary, particularly because "proof is seldom available with
respect to an employer's mental processes." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135
(2d Cir. 2000). Therefore, "[s]ummary judgment is appropriate at this stage only if the
employer's nondiscriminatory reason is dispositive and forecloses any issue of material fact."
Id. As discussed below, summary judgment is not appropriate on the record before this Court.
Plaintiff argues that her supervisor's remark that he knew she wanted time with her kids
and the proposed transfer to another store would be a great opportunity for her to spend time
with them is circumstantial proof that the decision to remove her from the position in
Defendant's Shirley store was motivated by discriminatory animus. It is true that stereotyped
remarks about a woman's role in the family, and how that interacts with her work, may constitute
evidence of discriminatory intent. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107, 119 (2d Cir. 2004) (citing Price Waterhouse, 490 U.S. 228, 251 (1989)).
Moreover, such stereotyped comments may, without more, be sufficient to survive a summary
judgment motion. Id. at 122.
Nonetheless, in most sex discrimination cases where summary judgment is denied, the
plaintiff alleges numerous instances of discriminatory actions or comments that tend to
demonstrate pretext. See id. In most cases where summary judgment is granted, the plaintiff
alleges only isolated, non-probative comments or actions that are remote from the adverse
employment action and which would not allow a rational jury to find discrimination. See, e.g.,
Weinstock v. Columbia Univ., 224 F.3d 33, 44 (2d Cir. 2000) (statements that plaintiff was
"nice" and "nurturing" did not indicate gender stereotyping). In this case, Plaintiff falls in
between these usual circumstances: she alleges a single, arguably sex-stereotyped comment
uttered around the time of her replacement by a male. Therefore, the dispositive issue is whether
a rational fact finder could construe this one comment as proving intentional discrimination.
The Second Circuit has held "the more remote and oblique the [alleged discriminatory]
remarks are in relation to the employer's adverse action, the less they prove the action was
motivated by discrimination." Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir.
2007). Conversely, "[t]he more a remark evinces a discriminatory state of mind, and the closer
the remark's relation to the allegedly discriminatory behavior, the more probative that remark
will be." Id; see also Stafford, 2011 WL 1131104, at *8. The Second Circuit employs a fourfactor test to evaluate the probative value of a remark made by an employer: "( 1) who made the
remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was
made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether
a reasonable juror could view the remark as discriminatory); and (4) the context in which the
remark was made (i.e., whether it was related to the decision-making process)." Henry v. Wyeth
Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
Although a close call, the Court holds that Peterson's comment is sufficient to raise a
genuine issue of material fact as to whether Defendant's decision was motivated by
discriminatory animus and hence that its proffered non-discriminatory rationale is mere pretext.
Crump v. NBTY, Inc., 847 F. Supp. 2d 388,395 (E.D.N.Y. 2012) (Kuntz, J.) (holding that
evidence of a single discriminatory remark is sufficient to survive a motion for summary
judgment under Title VII where it meets Henry's four-factor test). First, the comment was made
by the district manager, who had authority to determine staffing decisions. Second, the remark
Defendant contends that Terri To, the pharmacy district manager, had the ultimate responsibility for the
hiring and staffing of pharmacists and therefore for changing Plaintiffs position. Reply Mem. to Def.'s
Mot. for Summ. J., at ~ 11. Plaintiff agrees that Terri To was also at the meeting, but alleges that the
decision was a joint one between Ms. To and Mr. Peterson. Pl.'s Dep. at 155:3-6. The Court notes that
was made during the meeting in which Plaintiff was told that she either had to transfer to an .
overnight position or accept a demotion, and thus was made contemporaneously with the adverse
employment action. Third, a reasonable jury could find that the comment about whether the
offered position would better accommodate Plaintiffs family responsibilities demonstrated
gender-stereotyping. Finally, the comment was made during the meeting in which the adverse
employment decision was made as part of Defendant's attempt to convince Plaintiff to accept a
different, but less desirable, position.
After a careful analysis using the standards set forth by the Supreme Court and the
Second Circuit, this Court finds that a rational fact finder could conclude that Plaintiffs
termination arose from Defendant's intentional discrimination. Drawing all inferences in favor
of the non-moving party, Plaintiff has both met the minimal burden of establishing a prima facie
case and produced evidence sufficient for a rational finder of fact to conclude that she was
demoted because of sex discrimination. Therefore, summary judgment for Defendant is denied.
B. The 2009 Incident
For similar reasons to those illustrated supra, this Court also holds that Plaintiffhas
produced evidence sufficient for a rational finder of fact to conclude that she was transferred into
the floater pool because of sex discrimination. As with the 2006 incident, it is indisputable that
Plaintiff has established a prima facie case of discrimination: (1) as a female, plaintiff is a
member of a protected class; (2) Plaintiff had twenty years of experience as a supervisory
pharmacist and was qualified for her position; (3) Plaintiff was transferred from a permanent
staff pharmacist position to a floater position that required her to work in more than one store,
neither party has offered any employment records that ~ight reso~ve this disputed i~s~e of fact.. As a
result, on this motion for summary judgment, the Court IS constramed to accept Plamttff's versIon of the
facts as true. Brad, 653 F.3d at 164.
which transfer constitutes an adverse employment action; and (4) Plaintiff was replaced by a
man. See Zimmerman, 251 F.3d at 381.
Defendant has also articulated a legitimate, nondiscriminatory reason for Plaintiffs
transfer into the floater pool. See McDonnell Douglas, 411 U.S. at 802; Bucalo, 691 F.3d at 132.
According to evidence in the record, Defendant's store in Shirley had been losing business and
Defendant therefore made a decision to change its pharmacists' hours to reduce employee
overlap and expenses. Def. 's 56.1 St., at 'il6; Santiago Decl., Ex. A at 1; Soulos Dep. Tr. at
25:8-22. In addition, the supervising pharmacist, who was male, had already been asked to
change, and in fact had agreed to change, his schedule. Def. 's 56.1 St., at 'il8; Soulos Dep. Tr. at
27:6-21. By contrast, Defendant contends that Plaintiff refused to change her schedule, and
Defendant was therefore obliged to transfer her into the floater pool so that it could proceed with
necessary scheduling changes in the Shirley store. Def.'s 56.1 St., at'il7.
Nonetheless, Plaintiff has raised a genuine issue of material fact as to whether
Defendant's proffered rationale for transferring her into the floater pool was pretextual. The
evidence in the record shows that Plaintiff was afforded less than twenty-four hours to make a
decision about the scheduling changes. Pl.'s 56.1 St., at 'il6; Santiago Decl., Ex. A at 1-2 (email
by Mr. Soulos stating that he spoke with Plaintiff on Wednesday about the proposed scheduling
change and asked her to make a decision by Thursday). Moreover, just two business days later,
Mr. Soulos wrote an email to Defendant's human resources department proposing to transfer
Plaintiff because she had refused the new schedule and because it would allow him "to place
Marc Bashinsky in the store." Santiago Decl., Ex. A at 2. A later email similarly stated that Mr.
Soulos had been "in the process of making changes in the [Shirley] store" and to that end he had
"hired the supervising pharmacist from a former independent [store] ... to place him here [in the
Shirley store] to help build business." Id. Taking the facts in the light most favorable to Plaintiff
and drawing all inferences in her favor, as this Court must, the nearly contemporaneous (and
possibly anterior) decision to hire a male to replace Plaintiff raises an inference that Defendant
used the scheduling changes as cover to mask a discriminatory intent.
Retaliation and Equal Pay Claims
Although Defendant asks this Court to dismiss Plaintiffs claims in their entirety, Defendant
has not provided any argument as to why Plaintiff s Equal Pay claim should fail, and did not address
the substance of Plaintiff's retaliation claims until its reply brief. As a result, the Court declines to
dismiss these claims.
For the foregoing reasons, Defendant's motion for summary judgment is denied in its entirety.
Dated: Brooklyn, New York
HON. WILLIAM F.
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