Smolyn v. Tyco Integrated Security LLC. et al

Filing 50

MEMORANDUM-DECISION and ORDER - That defendants' motion for summary judgment (Dkt. No. 40) is GRANTED IN PART and DENIED IN PART as follows: GRANTED with respect to the claims against defendant Tyco International Management Company, LLC, and th e claims against that defendant are DISMISSED and DENIED in all other respects. That the Clerk terminate Tyco International Management Company, LLC as a party to this action. That Smolyn's cross motion for summary judgment (Dkt. No. 41) is DENIED. That this case is trial ready and the Clerk shall issue a trial scheduling order in due course. Signed by Senior Judge Gary L. Sharpe on 7/28/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CARISSA M. SMOLYN,
Plaintiff,

1:14-cv-56
(GLS/CFH)

v.
TYCO INTEGRATED SECURITY
LLC et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Caplan & Caplan P.C.
1719 Central Avenue
Albany, NY 12205
FOR THE DEFENDANTS:
Ogletree, Deakins Law Firm
10 Madison Avenue
Suite 400
Morristown, NJ 07960

MURRAY N. CAPLAN, ESQ.

JENNIFER A. RYGIEL-BOYD,
ESQ.

Gary L. Sharpe
Senior District Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Carissa M. Smolyn commenced this action against
defendants Tyco Integrated Security LLC (TIS), ADT Security Services,

Inc., Tyco International Management Company, LLC (TIMCO), and Tyco
International (US) Inc.1 pursuant to Title VII of the Civil Rights Act of 1964,2
the Pregnancy Discrimination Act of 1978 (PDA),3 and the Civil Rights Act
of 1991,4 seeking damages for employment discrimination on the basis of
gender and pregnancy. (Compl., Dkt. No. 1.) Pending before the court is
a motion for summary judgment filed by defendants, (Dkt. No. 40), as well
as a cross motion for summary judgment filed by Smolyn, (Dkt. No. 41).
For the reasons that follow, defendants’ motion is granted in part and
denied in part, and Smolyn’s motion is denied.
II. Background5
In March 2008, Smolyn was hired by ADT Security Services, a
predecessor company of TIS, as a commercial sales manager. (Defs.’
Statement of Material Facts (SMF) ¶¶ 1-2, Dkt. No. 40, Attach. 1.) In that
role, Smolyn oversaw sales representatives selling commercial security

1

In May 2014, by stipulation of the parties, Tyco International (US) Inc. was dismissed
as a party to this action. (Dkt. No. 19.)
2

See 42 U.S.C. §§ 2000e-2000e-17.

3

See 42 U.S.C. § 2000e(k).

4

See Pub. L. No. 102-166, 105 Stat. 1071 (1991).

5

Unless otherwise noted, the facts are not in dispute.

2

systems and services in the Albany District, which was part of the New
England Sales Area. (Id. ¶ 2; Pl.’s Supplemental SMF ¶ 1, Dkt. No. 42,
Attach. 3.)6 Several months after she was hired, Smolyn was assigned the
Western Massachusetts District as well, which included the Worcester and
West Springfield, Massachusetts sales offices as well as the Vermont
sales office. (Defs.’ SMF ¶¶ 6-7.) Smolyn lived in Schenectady, New York
during most of her employment. (Id. ¶ 4.) From her home, it took Smolyn
an hour and a half to travel to the West Springfield office, two and a half
hours to travel to the Worcester office, and three hours to travel to the
Vermont office. (Id. ¶¶ 8-10.) She was to travel to the Worcester sales
office once a week, and to the West Springfield office twice a week. (Id.
¶ 11.) Shortly after being assigned the Western Massachusetts District,
the Worcester office was reassigned to another commercial sales
manager, Michael Kinsman, who also was responsible for the Rhode
Island District. (Id. ¶¶ 12, 18.) Thus, Smolyn and Kinsman split the
Western Massachusetts District. (Id. ¶ 13.) Upon Kinsman’s retirement,
6

In her response to defendants’ motion for summary judgment, Smolyn provided a
response to defendants’ statement of material facts, (Dkt. No. 42, Attach. 4), which the court
will refer to as “Pl.’s SMF,” as well as a separate statement of additional material facts, (Dkt.
No. 42, Attach. 3), which the court will refer to as “Pl.’s Supplemental SMF.” The court will
refer to defendants’ response to Pl.’s Supplemental SMF, (Dkt. No. 43, Attach. 1), as “Defs.’
Supplemental SMF.”

3

Thomas Maciag, who lives in Palmer, Massachusetts, took over as sales
manager for Kinsman’s territory. (Id. ¶¶ 19-20.)
Ken Poole became Smolyn’s manager in late 2008 when he was
named Area Sales Manager. (Id. ¶¶ 17, 22.) In this role, Poole held two
annual district sales manager meetings, some of which he began by
playing a beer commercial. (Dkt. No. 42, Attach. 8 at 50, 52.) In May
2011, while under the supervision of Poole, Smolyn gave birth to her first
child, taking eight weeks of maternity leave from her job. (Defs.’ SMF
¶¶ 22-23.) After Smolyn had returned to work, at a meeting in September
2011, Poole and Smolyn discussed the decreased performance of a male
employee after the birth of his child and Poole commented that “[m]en
don’t really need paternity leave the same way that women do.” (Dkt. No.
40, Attach. 6 at 58-59; Pl.’s Supplemental SMF ¶ 16; Defs.’ Supplemental
SMF ¶ 16.) According to Smolyn, Poole further stated that “it is more
difficult for a mother to be apart from her children.” (Dkt. No. 42, Attach. 6
at 60.)
In the spring of 2012, TIS hired Jackson Gibbon in the West
Springfield office, whom Smolyn was responsible for mentoring. (Defs.’
SMF ¶¶ 24-25; Dkt. No. 40, Attach. 6 at 66.) Thereafter, according to
4

defendants, concerns arose about Smolyn’s job performance and how
often she traveled to the West Springfield office. (Defs.’ SMF ¶¶ 34-35.)
Smolyn admits that, at a September 10, 2012 meeting, Poole instructed
her to travel to the West Springfield office more often to see newly hired
employees,7 and discussed the fact that, occasionally, she had “been a
little late in providing” sales forecasts. (Pl.’s SMF ¶¶ 35-36.) Smolyn
further contends that, at this meeting, Poole stated that Smolyn was “setup to fail, because it’s very difficult to maintain [her] family life, as well as
travel, and [her] work duties, and everything else.” (Dkt. No. 40, Attach. 6
at 60; Dkt. No. 42, Attach. 6 at 60.) She claims that Poole further
elaborated that “because [she] had a child[, she] could not perform all of
[her] responsibilities and was set up to fail.” (Dkt. No. 42, Attach. 6 at 60.)
The parties agree that, after Poole instructed her to travel to the
West Springfield office more frequently, Smolyn immediately began doing
so. (Pl.’s Supplemental SMF ¶¶ 31, 33.) Furthermore, throughout the time
Poole supervised Smolyn, he rated her “exceeds expectations” and “meets
expectations” in her annual performance evaluations. (Defs.’ SMF ¶ 67.)

7

Gibbon was apparently one of multiple new hires in that office. (Dkt. No. 40, Attach. 6

at 67.)

5

In addition to these positive performance reviews, Smolyn further contends
that she received performance awards from defendants in 2009 and 2010
and was appointed by defendants to the “prestigious Ethics and Values
Committee” for 2011 and 2012. (Pl.’s Supplemental SMF ¶¶ 9-10.)
Moreover, she asserts that she was rated “[e]xceeds [e]xpectations” in
2012, and, for the period of October 2011 through August 2012, was
ranked 38 out of 100 district sales managers in the country with a sales
performance that was 104.63% of what TIS expected of her. (Id. ¶¶ 20-22;
Dkt. No. 42, Attach. 5 at 8, 11.) During this same time frame, according to
Smolyn, Maciag, with whom she split the management of the Western
Massachusetts District, was ranked only 79 out of 100 district sales
managers in the country with a sales performance that was only 86.1% of
what the company expected of him, and was rated only “[m]eets
[e]xpectations.” (Pl.’s Supplemental SMF ¶¶ 20-22; Dkt. No. 42, Attach. 5
at 9, 11.)8
In October 2012, Steve Marbes was hired as the Area General

8

Defendants deny that these were the rankings, performance numbers, and 2012
performance evaluations of Smolyn and Maciag, and claim that the internal TYCO reports that
Smolyn relies on to establish these facts are either incomplete, inaccurate, or fail to account
for the fact that Smolyn and Maciag co-managed the Western Massachusetts District. (Defs.’
Supplemental SMF ¶¶ 20-22; Dkt. No. 42, Attach. 8 at 18-19.)

6

Manager for the New England Sales Area, and became responsible for
focusing on the “profit and loss aspect of the New England Sales Area.”
(Defs.’ SMF ¶¶ 37-38.) In fulfillment of this responsibility, defendants
contend that Marbes and Poole met on October 4, 2012 to assess the
“spans of control” in the sales districts, i.e., the number of sales
representatives directly reporting to each sales manager. (Id. ¶¶ 40-41.)
Defendants assert that Marbes decided to eliminate one sales manager
position in the belief that there were too many managers for the number of
people within the New England Sales Area. (Id. ¶¶ 41-42.) At a
subsequent meeting in mid-October, defendants claim that the decision to
eliminate Smolyn’s position was made by Poole and Marbes based on the
number of sales representatives that reported to her and the distance she
had to travel to the sales offices.9 (Id. ¶¶ 45-46.) They further claim that
Smolyn’s performance was not a factor in her firing, and, moreover, the
sales managers in the New England Sales Area were all performing in a

9

The parties disagree as to the number of sales representatives whom Smolyn
managed at the time of her termination as compared to the other sales managers. (Defs.’
SMF ¶¶ 31-33; Pl.’s Supplemental SMF ¶¶ 36-38.) Defendants contend that Smolyn managed
only four sales representatives, the least of all the sales managers in the New England Sales
Area, including Maciag who managed seven people. (Dkt. No. 40, Attach. 3 ¶ 8.) Smolyn, on
the other hand, asserts that, at the time of her firing, she managed five sales representatives,
and had permission to hire one additional sales representative, while Maciag managed six
sales representatives. (Dkt. No. 42, Attach. 7 at 26.)

7

similar range. (Id. ¶ 47.)
Although defendants claim that the decision to terminate Smolyn was
made in mid-October, she was not terminated until November 1. (Id. ¶ 60.)
In the meantime, Smolyn informed the sales representatives whom she
managed, including Gibbon, that she was pregnant on October 22 and 23,
2012. (Pl.’s Supplemental SMF ¶ 50.) Also on October 23, 2012, Smolyn
gave permission to Gibbon to work with Poole the following day, October
24. (Id. ¶ 51; Dkt. No. 42, Attach. 5 at 25.) Subsequently, in the early
morning of October 25, 2012, Poole contacted the Human Resources (HR)
Department for approval to eliminate Smolyn’s position and HR “began
making the logistical arrangements for notifying Smolyn of this decision.”
(Defs.’ SMF ¶¶ 51-53; Dkt. No. 40, Attachs. 12-13.) At 10:40 A.M. that
day, Smolyn informed Poole that she was pregnant. (Defs.’ SMF ¶ 54; Dkt.
No. 40, Attach. 14.) One week later, on November 1, 2012, Poole and an
HR representative met with Smolyn and informed her that her position was
being eliminated and offered her a position as a sales representative,
which she declined. (Defs.’ SMF ¶¶ 60-62; Dkt. No. 40, Attach. 6 at 48.)
At the time of her firing, Smolyn was the only female district sales manager
out of six sales managers in her region. (Pl’s Supplemental SMF ¶ 11;
8

Def.’s Supplemental SMF ¶ 11; Dkt. No. 42, Attach. 8 at 42-43; Dkt. No. 48
at 2.) Since Smolyn was fired, Maciag has managed the Albany District
and all of the Western Massachusetts District. (Dkt. No. 40, Attach. 3
¶ 12.)
In January 2013, Smolyn filed a New York State Division of Human
Rights complaint alleging gender discrimination, (Dkt. No. 1, Attach. 1),
and both Poole and Marbes were interviewed separately. (Pl.’s
Supplemental SMF ¶ 60; Dkt. No. 42, Attach. 5 at 35-45.) The notes of
those interviews indicate that, when asked about when they first learned of
Smolyn’s 2012 pregnancy, both Poole and Marbes responded that there
were “no rumors or rumblings” of the pregnancy prior to October 25, when
Smolyn informed Poole directly.10 (Dkt. No. 42, Attach. 5 at 37, 42.) The
investigation by the Division of Human Rights found insufficient evidence to
indicate that Smolyn was subjected to unlawful discrimination on the basis
of sex. (Dkt. No. 40, Attach. 5.) Ultimately, Smolyn commenced this

10

Defendants deny that both Poole and Marbes used the same language during the
Division of Human Rights investigation to deny any knowledge of Smolyn’s pregnancy. (Def.’s
Supplemental SMF ¶ 60.) They contend that the document Smolyn relies on to establish the
testimony of Poole and Marbes “is nothing more than the [i]nvestigator’s notes from the
proceeding” and “not a transcript of what was said verbatim.” (Id.) However, in their
respective depositions, both Marbes and Poole confirmed that the answers indicated by the
investigator in the document which Smolyn relies on contained “the words that [they] spoke” in
their interviews. (Dkt. No. 42, Attach. 7 at 32-34; Dkt. No. 42, Attach. 9 at 42-43.)

9

action with the filing of a complaint on January 17, 2014. (Compl.)
Following joinder of issue, (Dkt. No. 10), and the close of discovery, the
pending motions were filed, (Dkt. Nos. 40, 41).
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Pregnancy Discrimination
First, defendants argue that Smolyn cannot make out a prima facie

case of pregnancy discrimination because there is no evidence that
Marbes or Poole, the decision makers in her termination, knew of her
pregnancy before the decision to terminate her was made. (Dkt. No. 40,
Attach. 15 at 12-17.) Further, they contend that Smolyn was terminated for
legitimate, non-discriminatory reasons — namely, the span of control
Smolyn exerted and the distance she had to travel to the offices she
managed — and Smolyn cannot establish that the stated reasons for her
10

dismissal are pretext for discrimination. (Id. at 17-20.) In response,
Smolyn argues that she has demonstrated that defendants discriminated
against her based on her pregnancy. (Dkt. No. 41 at 13-17.) Alternatively,
Smolyn argues that the circumstances surrounding her termination raise
questions of fact as to whether Poole knew she was pregnant before the
decision to terminate her was made, and that Poole and Marbes’ use of the
“exact[] same unusual phrase to answer the same question” posed to them
at the Division of Human Rights hearing, along with other direct and
circumstantial evidence, demonstrates that “defendants have skillfully
fabricated explanations to conceal their wrongful acts of discrimination.”
(Id. at 14.) The court agrees with Smolyn that there are triable issues of
fact with respect to her pregnancy discrimination claim which preclude
summary judgement.
Under Title VII, it is “an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate
against any individual with respect to h[er] compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In 1978,
the PDA was passed, “to enact Congress’s determination that
11

discrimination based on a woman’s pregnancy is, on its face,
discrimination because of her sex.” DeMarco v. CooperVision, Inc., 369 F.
App’x 254, 255 (2d Cir. 2010) (internal quotation marks and citation
omitted). The PDA accomplished this by “amend[ing] Title VII’s definition
of discrimination ‘because of sex’ to include discrimination ‘because of or
on the basis of pregnancy, childbirth, or related medical conditions.’” Saks
v. Franklin Covey Co., 316 F.3d 337, 343 (2d Cir. 2003) (quoting 42 U.S.C.
§ 2000e(k)). Thus, under the PDA, an employment practice is unlawful
“when pregnancy is ‘a motivating factor’ for an adverse employment
action.” Briggs v. Women in Need, Inc., 819 F. Supp. 2d 119, 126
(E.D.N.Y. 2011) (citing Calabro v. Westchester BMW, Inc., 398 F. Supp.
2d 281, 287 (S.D.N.Y. 2005)).
Pregnancy discrimination claims, as with any other discrimination
claim, are analyzed under the McDonnell Douglas burden-shifting rules,
which place upon the plaintiff the initial burden of making out a prima facie
case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); DeMarco, 369 F. App’x at 255; Quaratino v. Tiffany & Co.,
71 F.3d 58, 64 (2d Cir. 1995). To satisfy this initial burden, the plaintiff
must show that: “(1) she is a member of a protected class; (2) she
12

satisfactorily performed the duties required by the position; (3) she was
discharged; and (4) her position remained open and was ultimately filled by
a non-pregnant employee,” or the discharge occurred under circumstances
giving rise to an inference of unlawful discrimination. Quaratino, 71 F.3d at
64. In addition to the four elements of a prima facie case, a “[p]laintiff must
also be able to point to some admissible evidence from which a rational
jury could infer that [persons who participated in her termination decision]
knew that the plaintiff was pregnant.” Lambert v. McCann Erickson, 543 F.
Supp. 2d 265, 277-78 (S.D.N.Y. 2008) (citing Woodman, 411 F.3d at
82-84); see Ingenito v. Riri USA, Inc., No. 11-CV-2569, 2013 WL 752201,
at *10 (E.D.N.Y. Feb. 27, 2013) (holding that, to make out a prima facie
case of pregnancy discrimination, a “[p]laintiff must establish that the
[d]efendants knew or had reason to believe she was pregnant before the
decision to terminate her was made”). “A plaintiff’s establishment of a
prima facie case gives rise to a presumption of unlawful discrimination that
shifts the burden of production to the defendant, who must proffer a
legitimate, nondiscriminatory reason for the challenged employment
action.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)
(internal quotation marks and citations omitted); see Quaratino, 71 F.3d at
13

64. If the defendant comes forward with a legitimate, nondiscriminatory
reason for the challenged employment action, the presumption of
discrimination drops out of the analysis, and the defendant “will be entitled
to summary judgment . . . unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination.” James v. N.Y.
Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000); see Legg v. Ulster Cty.,
820 F.3d 67, 74 (2d Cir. 2016).
Ultimately, once the burden shifts back to the plaintiff, she must
show, without the benefit of the presumption, that the employer’s
determination was in fact the result of discrimination. See Holcomb v. Iona
Coll., 521 F.3d 130, 138 (2d Cir. 2008). The plaintiff must demonstrate “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.”
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see
Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). As further
explained by the Supreme Court, to demonstrate pretext, a plaintiff must
show “both that the [employer’s proffered] reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993); see Quaratino, 71 F.3d at 64. However, conclusory
14

allegations of discrimination are insufficient to defeat a motion for summary
judgment. See Holcomb, 521 F.3d at 137; Schwapp v. Town of Avon, 118
F.3d 106, 110 (2d Cir. 1997).
With respect to Smolyn’s initial burden, defendants do not dispute
that Smolyn satisfies the four prongs of a prima facie discrimination claim.
(Dkt. No. 40, Attach. 15 at 12-17.) Instead, they argue that she cannot
make out a prima facie case of pregnancy discrimination because she
cannot establish that defendants knew of her pregnancy at the time the
adverse employment decision was made. (Id. at 13-17.) According to
defendants, the decision to terminate Smolyn was made in mid-October.
(Defs.’ SMF ¶ 45.) They point to the October 25, 2012 early hour emails
sent by Poole to the HR Department regarding eliminating a sales manager
position, as documentary evidence that the decision was made prior to
Smolyn’s pregnancy announcement to Poole later that same day. (Id.
¶¶ 51-53; Dkt. No. 40, Attach. 15 at 16.) Smolyn, on the other hand, points
to the fact that: (1) she was fired one week after informing Poole that she
was pregnant; (2) she began telling her subordinates that she was
pregnant three days prior to the October 25 emails Poole sent to the HR
Department; (3) Poole spent the day of October 24 with Gibbon, one of the
15

employees who was aware of Smolyn’s pregnancy11; and (4) after more
than a week of not acting on the alleged decision to terminate her position,
Poole sent “desperate, emergency emails commencing at 6:46AM” to the
HR Department to initiate her termination “on the date that [Smolyn] was
meeting with . . . Poole to inform him personally of her pregnancy,” and
the day after Poole spent the day working with Gibbon. (Dkt. No. 41 at 4-5,
13, 15-16.)
The court agrees with Smolyn that she has adduced evidence from
which a rational jury could infer that the decision makers in her firing knew
that she was pregnant, prior to deciding to terminate her. Although
defendants contend that the decision to fire Smolyn was made before she
informed either her subordinates or Poole of her pregnancy, only the
testimony of Poole supports defendants’ claim that this decision was made

11

While defendants admit that, on October 23, 2012, Gibbon requested permission
from Smolyn to work with Poole on October 24, they deny that Poole and Gibbon spent
October 24 working together. (Defs.’ Supplemental SMF ¶¶ 51-52.) Defendants ground this
denial on the deposition testimony of Gibbon. (Id.) Gibbon testified that, based on his email
requesting permission to work with Poole on October 24, he most likely met with Poole on that
date, although he could not “recall the exact event itself.” (Dkt. No. 42, Attach. 5 at 32.)
Evaluating this evidence in the light most favorable to Smolyn, see Wagner, 827 F. Supp. 2d at
92, a reasonable jury could conclude that Gibbon and Poole worked together on October 24,
2012. Notably, Gibbon does not recall whether or not he informed Poole of Smolyn’s
pregnancy. (Dkt. No. 42, Attach. 5 at 31.)

16

in mid-October.12 (Defs.’ SMF ¶ 45; Dkt. No. 40, Attach. 9 at 14, 16.) The
only documentary evidence of the decision to eliminate Smolyn’s position
are the October 25, 2012 emails sent between Poole and the HR
Department. (Dkt. No. 40, Attachs. 12-14.) These emails were sent after
Smolyn informed her subordinates of her pregnancy. (Pl.’s Supplemental
SMF ¶ 50.) Viewing the facts in the light most favorable to Smolyn, a
reasonable jury could reject the testimony of Poole and find that the
decision to terminate Smolyn did not occur until after she announced her
pregnancy to her subordinates, and, further, that Poole learned of
Smolyn’s pregnancy from one of those subordinates prior to making the
decision.13 See Lambert, 543 F. Supp. 2d at 279 (holding there was
enough “circumstantial (and relatively weak), . . . evidence” to “raise[ ] a
genuine issue of fact as to [the defendant’s] knowledge of plaintiff’s
pregnancy” for the court to find that plaintiff made out a prima facie case).
Once a plaintiff makes out a prima facie case, a defendant must
12

Defendants argue that it is undisputed that the decision to eliminate Smolyn’s
position was made in mid-October. (Dkt. No. 43 at 13.) On the contrary, Smolyn does not
admit that this is when the decision was made, but, rather, admits that Poole testified at his
deposition that this is when the decision was made. (Defs.’ SMF ¶ 45; Pl.’s SMF ¶ 45; Pl.’s
Supplemental SMF ¶ 45.)
13

For the same reason, that is, because there is a genuine dispute as to this material
fact, Smolyn’s cross motion for summary judgment on her pregnancy discrimination claim,
(Dkt. No. 41 at 14-17), must fail.

17

submit a legitimate non-discriminatory reason for the plaintiff’s termination.
See McDonnell Douglas, 411 U.S. at 802. Here, defendants met this
burden by putting forth evidence that Smolyn was fired based on the span
of control and the distance she had to travel to the sales offices. (Dkt. No.
40, Attach. 9 at 33-34, 75; Dkt. No. 40, Attach. 10 at 12, 18.) Smolyn
contends that the span of control justification was pretext for discrimination,
as Smolyn “w[as] soon to be in charge of the same number of employees”
as Maciag, who replaced her. (Dkt. No. 41 at 15.) To support this
contention she points to (1) the lack of any written evidence of defendants’
span of control research; (2) the temporal proximity of her pregnancy
announcement and her termination; (3) the fact that her performance, as
evinced by performance reviews and sales numbers, was superior to that
of Maciag; and (4) two comments made by Poole, which she characterizes
as “comments about women being unable to perform the same as men.”
(Id. at 15-16.)
The court finds that a jury could reasonably conclude that
defendants’ justifications for the termination are pretextual, and that
pregnancy discrimination was a motivating factor in the decision to
terminate Smolyn. Defendants presented the testimony of Poole and
18

Marbes indicating that Smolyn’s span of control and her distance from the
offices she managed was the reason for her termination. (Dkt. No. 40,
Attach. 9 at 5-6, 31; Dkt. No. 40, Attach. 10 at 12, 16, 18.) Marbes defined
“span of control” as the number of salespeople reporting to a sales
manager. (Dkt. No. 40, Attach. 10 at 16.) Meanwhile, Smolyn has
presented some evidence that she managed a similar number of
employees as Maciag, and that her performance was better than that of
Maciag. To that end, Poole’s own deposition testimony indicates that, at
the time she was let go, Smolyn managed five sales representatives
between the Albany, Vermont, and Springfield offices, and that she had
gotten approval to hire one additional sales representative for the Albany
office, while Maciag supervised six sales representatives.14 (Dkt. No. 42,
Attach. 7 at 22, 24-25.)
Although defendants contend that the number of sales
representatives whom each manager managed before Smolyn was
terminated “is inconsequential” because “one of the goals of the
14

Defendants note that Poole also testified that he did not remember the numbers of
sales representatives in each office in 2012, and contend that Smolyn actually managed only
four employees while Maciag managed seven. (Defs.’ SMF ¶¶ 31-33; Defs.’ Supplemental
SMF ¶ 36; Dkt. No. 40, Attach. 3 ¶ 8.) Notably, the only evidence defendants offer as to the
number of sales representatives in each office is the certification of Poole in support of their
motion for summary judgment. (Defs.’ SMF ¶¶ 32-33.)

19

realignment was to ensure that the sales managers had an equal span of
control and lived in close proximity to their district,” (Def.’s Supplemental
SMF ¶ 36), the court agrees with Smolyn that this evidence, which
indicates that Smolyn and the person who replaced her actually managed
a similar number of employees at the time the decision to fire her was
made, when viewed in the light most favorable to Smolyn, casts doubt on
at least one of defendants’ justification for plaintiff’s termination, namely
span of control. When coupled with the circumstances surrounding
Smolyn’s termination, including the timing of her firing, her consistently
favorable performance evaluations, and the evidence that her performance
was superior to that of the employee who replaced her, a reasonable jury
could find that defendants’ justification for her firing was a pretext for
pregnancy discrimination. (Defs.’ SMF ¶ 67; Pl.’s Supplemental SMF
¶¶ 20-22; Dkt. No. 42, Attach. 5 at 9, 11); see Pellegrino v. Cty. of Orange,
313 F. Supp. 2d 303, 316-17 (S.D.N.Y. 2004) (explaining that, in evaluating
a plaintiff’s evidence of pretext, a “‘strong temporal correlation,’ standing
alone, is sufficient to sustain an inference of discrimination,” but noting that
“even a weak temporal correlation gains in persuasiveness if there is other
evidence tending to support an inference of discrimination” (internal
20

citations omitted)); see also Dollman v. Mast Indus., Inc., 731 F. Supp. 2d
328, 339-40 (S.D.N.Y. 2010) (finding that a reasonable jury could conclude
that defendants’ proffered restructuring justification was pretextual, given
the circumstances surrounding the plaintiff’s termination and her
“consistently positive job evaluations” which left a question of fact about
why she was selected for termination over the managers who remained).
While a jury is free to reject the evidence that Smolyn puts forth and accept
defendants’ explanation, because Smolyn has raised a genuine issue of
material fact as to whether defendants’ reason for terminating her position
is false and as to whether it is more likely that Smolyn’s pregnancy was a
motivating factor in her termination, the evidence before the court does not
warrant summary judgment.
B.

Gender Discrimination
With respect to Smolyn’s gender discrimination claim apart from her

claim of pregnancy discrimination, defendants do not challenge the first
three elements of Smolyn’s prima facie case. (See generally Dkt. No. 40,
Attach. 15.) They argue, however, that Smolyn cannot show that her
termination occurred under circumstances giving rise to an inference of
discrimination. (Id. at 21-24.) Even if Smolyn can make out a prima facie
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case, defendants contend that she cannot point to any evidence that their
reasons for her termination were pretext for gender discrimination. (Id. at
24-25.) Smolyn counters that her superior sales performance, combined
with the fact that she was the only female sales manager whom Poole
managed, as well as Poole’s comments about women and use of a beer
commercial during district sale manager meetings,15 establishes a prima
facie case of gender discrimination, and demonstrates that defendants’
reasons for her termination were, in fact, pretext. (Dkt. No. 41 at 7-13.)
Applying the McDonnell Douglas burden-shifting analysis to plaintiff’s
gender discrimination claim, the court concludes that Smolyn has made out
a prima facie case of gender discrimination, apart from her pregnancy
discrimination claim. Defendants assert that Smolyn was fired as a result
of a reduction in their sales manager work force. However, in deciding
which of their managers was to be fired, it would have been impermissible
for defendants to consider the gender of their employees. See Danzer v.
Norden Sys., Inc., 151 F.3d 50, 55 (2d Cir. 1998) (explaining that the issue
in discrimination cases can properly center on “whether the selection of the

15

Smolyn suggests that playing a beer commercial to start manager meetings reveals
that Poole harbored a bias against women. (Dkt. No. 41 at 10.)

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employees to be fired in a downsizing was influenced by an impermissible
ground”); see, e.g., Maresco v. Evans Chemetics, Div. of W.R. Grace &
Co., 964 F.2d 106, 113 (2d Cir. 1992) (“[U]pon consolidation, [the
defendant] was faced with a larger pool of employees than available
positions. In these circumstances, [the defendant] was entitled to allocate
the accounting positions in accordance with its business judgment, but
could not do so on account of employees’ ages.”) The fact that the only
female manager Poole managed in October 2012, out of six employees,
was chosen for termination, along with the previously discussed evidence
indicating that Smolyn’s job performance was better than that of the
employee who replaced her, and Poole’s alleged comments about the
differences between men and women with respect to their needs to care
for their children, present circumstances which give rise to an inference
sufficient to withstand a motion for summary judgment that gender was
impermissibly considered in deciding which sales manager to fire. See
Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007)
(explaining that even stray remarks should be considered in the context of
all of the evidence, to determine if the evidence is legally sufficient to
sustain a reasonable inference that a decision maker was motivated by
23

discrimination), abrogated on other grounds by Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177-78 (2009).16
Furthermore, while defendants have proffered a legitimate,
nondiscriminatory reason for Smolyn’s termination, for the reason
discussed above in connection with Smolyn’s pregnancy discrimination
claim under Title VII, see supra Part IV.A, Smolyn has raised a genuine
issue of material fact as to whether defendants’ reason for terminating her
position is false and as to whether it is more likely that Smolyn’s gender
was a motivating factor in her termination.17 Specifically, Smolyn has
presented some evidence to call into question one of defendants’ proffered
16

Defendants argue that Poole’s alleged comments cannot be used by Smolyn as
evidence of discriminatory intent because they were not made in connection with the
employment decision at issue. (Dkt. No. 43 at 14-15.) While it is true that “the more remote
and oblique the remarks are in relation to the employer’s adverse action, the less they prove
that the action was motivated by discrimination,” it is also true that “[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.” Tomassi, 478 F.3d at 115.
Further, “[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.” Id. at 16. Here, Smolyn alleges that
Poole made several comments, albeit in a context unrelated to the termination decision, about
the greater need for women to care for their children, and the difficulty Smolyn inevitably had
in balancing her care for her children and the travel requirements of her job. (Dkt. No. 42,
Attach. 6 at 60.) Such comments could reasonably be construed by a jury as explaining why
the decision to fire Smolyn over her colleagues was made. See Tomassi, 478 F.3d at 116;
see also Danzer, 151 F.3d at 56 (explaining that the label “stray” is inappropriate where “other
indicia of discrimination” tie the remarks to an adverse employment action).
17

Again, because there is a genuine dispute as to this material fact, Smolyn’s cross
motion for summary judgment on her gender discrimination claim, (Dkt. No. 41 at 7-13), must
fail.

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reasons for her firing, that is, the span of control she exerted at the time of
her firing. (Dkt. No. 42, Attach. 7 at 22, 24-25.) This evidence, when
combined with her prima facie case, would permit a reasonable jury to
conclude that defendants unlawfully discriminated. See Sands v. Rice,
619 F. App’x 31, 32 (2d Cir. 2015). Thus, defendants’ motion for summary
judgment on Smolyn’s gender discrimination claim, apart from her
pregnancy discrimination claim, is also denied.
C.

Claims Against TIMCO
Finally, defendants argue that the court should dismiss this action in

its entirety as it pertains to defendant TIMCO. (Dkt. No. 40, Attach. 15 at
25.) According to defendants, TIMCO did not employ Smolyn, nor did it
play any role in the decision to eliminate her position. (Id.) Smolyn
responds that as parent company of TIS and ADT Security Services,
TIMCO is involved in the management and control of these two subsidiary
companies and their employees. (Dkt. No. 41 at 17.) Smolyn further
contends that TIMCO sets the standards for the management and behavior
of all subsidiary company employees. (Id.) Notably, both parties
memoranda of law are devoid of any citation to, or discussion of, legal
authority to support their claims on this issue. (Dkt. No. 40, Attach. 15 at
25

25; Dkt. No. 41 at 17.)
An employer-employee relationship is a required element of an
employment discrimination claim under Title VII. See Heller v. Consol. Rail
Corp., 331 F. App’x 766, 768 (2d Cir. 2009); Gulino v. N.Y.S. Educ. Dep’t,
460 F.3d 361, 370 (2d Cir. 2006). In that context, the court “may look past
the formal separation among corporate affiliates when ‘extraordinary
circumstances’ permit treating a parent and a subsidiary as a ‘single
employer.’” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 155 (2d Cir.
2014) (quoting Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996)). To that
end, the Second Circuit has adopted a four-part test to determine when, for
the purposes of a Title VII claim, a parent company may be considered the
employer of a subsidiary’s employee. See id. at 155-56; Brown v. Daikin
Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014). “Under this test, ‘[a] parent
and subsidiary cannot be found to represent a single, integrated enterprise
in the absence of evidence of (1) interrelation of operations, (2) centralized
control of labor relations, (3) common management, and (4) common
ownership or financial control.’” Brown, 756 F.3d at 226-27 (quoting Cook
v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995)).
“Although no one factor controls the analysis, the second, ‘centralized
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control of labor relations,’ is the most significant.” Turley, 774 F.3d at 156
(citing Cook, 69 F.3d at 1240-41). “In essence, a court must consider
whether ‘an employee, formally employed by one entity, . . . has been
assigned to work in circumstances that justify the conclusion that the
employee is at the same time constructively employed by another entity.’”
Brown, 756 F.3d at 226 (quoting Arculeo v. On-Site Sales & Mktg., L.L.C.,
425 F.3d 193, 198 (2d Cir. 2005)).
Here, Smolyn alleges that TIMCO “is responsible for the
discriminatory acts of the other defendants,” (Dkt. No. 41 at 17), based on
the following facts: (1) TIMCO was “involve[d] in” Smolyn’s employee
benefits and rules of ethical conduct; (2) Smolyn “had studied Tyco
International’s Conflict of Interest Policy Statement and completed Tyco
International’s Conflict of Interest questionnaire” in April 2012; and (3) the
Separation From Employment Agreement and General Release provided
to Smolyn states that TIS’ parent company was a party to the agreement
and references Tyco International’s Severance Plan for U.S. Employees,
(Dkt. No. 48 at 1; Dkt. No. 42, Attach. 9 at 46-76).
The court finds that, viewing the evidence in the light most favorable
to Smolyn, these facts do not provide a sufficient basis for a reasonable
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jury to conclude that the two companies, TIS and TIMCO, constituted a
single employer for the purposes of her Title VII claims. Smolyn has
pointed to little or no evidence of interrelationship of operations18 or
common management between the two companies. Cf. Herman v.
Blockbuster Entm’t Grp., 18 F. Supp. 2d 304, 312-13 (S.D.N.Y. 1998)
(finding the plaintiffs’ evidence of common management insufficient where
the “two entities maintained distinct management structures” and there was
no evidence that the parent’s corporate officers had “participated in any
respect in the employment decisions affecting [the p]laintiffs”), aff’d, 182
F.3d 899 (2d Cir. 1999); Regan v. In the Heat of the Nite, Inc., No. 93 CIV.
862, 1995 WL 413249, at *3 (S.D.N.Y. July 12, 1995) (finding
interrelationship of operations where employees rotated informally between

18

“When considering the ‘interrelation of operations’ prong” of the analysis, district
courts in this Circuit
have considered factors including: ‘(1) whether the parent was
involved directly in the subsidiary’s daily decisions relating to
production, distribution, marketing, and advertising; (2) whether the
two entities shared employees, services, records, and equipment;
(3) whether the entities commingled bank accounts, accounts
receivable, inventories, and credit lines; (4) whether the parent
maintained the subsidiary’s books; (5) whether the parent issued
the subsidiary’s paychecks; and (6) whether the parent prepared
and filed the subsidiary’s tax returns.’
Velez v. Novartis Pharm. Corp., 244 F.R.D. 243, 254 (S.D.N.Y. 2007) (quoting Herman v.
Blockbuster Entm’t Grp., 18 F. Supp. 2d 304, 309 (S.D.N.Y. 1998), aff’d 182 F.3d 899 (2d Cir.
1999)).

28

the relevant companies, and where employee records, payroll records, and
bank deposits of each company were kept together); Linskey v. Heidelberg
E., Inc., 470 F. Supp. 1181, 1184 (E.D.N.Y. 1979) (finding that there was
an issue of fact as to whether the parent company could be considered the
plaintiff’s employer where the subsidiary could request employees from the
parent, and the parent had the “absolute privilege” of appointing employees
to the subsidiary, including its president). Moreover, none of the evidence
which Smolyn presents is “akin to ‘handling job applications, approving
personnel status reports, [or] exercising veto power over major
employment decisions,’ activities which [the Second Circuit has] held to
constitute evidence of centralized control of labor relations.” Shiflett v.
Scores Holding Co., Inc., 601 F. App’x 28, 31 (2d Cir. 2015) (quoting
Parker v. Columbia Pictures Indus., 204 F.3d 326, 341 (2d Cir. 2000)).
Accordingly, defendants’ motion for summary judgment with respect to
defendant TIMCO is granted.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
40) is GRANTED IN PART and DENIED IN PART as follows:
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GRANTED with respect to the claims against defendant Tyco
International Management Company, LLC, and the claims
against that defendant are DISMISSED; and
DENIED in all other respects; and it is further
ORDERED that the Clerk terminate Tyco International Management
Company, LLC as a party to this action; and it is further
ORDERED that Smolyn’s cross motion for summary judgment (Dkt.
No. 41) is DENIED; and it is further
ORDERED that this case is trial ready and the Clerk shall issue a
trial scheduling order in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 28, 2016
Albany, New York

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