Adverse Action Based on “Gender Stereotyping” Supports Discrimination Claim

A gender discrimination claim may lie where, for example, an employer takes an adverse action against an employee based on preconceived notions about women’s roles (so-called “gender stereotyping”).

In the Eastern District’s recent decision in Apicella v. Rite Aid, the plaintiff was a pharmacist who claimed that defendant engaged in gender discrimination under Title VII, the Equal Pay Act, and the New York State Human Rights Law when it replaced her with a man, demoted her from a supervisory position, cut her hours, and placed her in a “floater” pool that would require her to work at more than one store.

The court denied defendant’s motion for summary judgment, finding genuine issues of material fact.  It held that a plaintiff can suffer an “adverse employment action” even if her salary is not reduced, and that even a single remark can support a “gender stereotyping” discrimination claim.

Discriminatory Demotion

First, plaintiff claimed that defendant discriminated against her by forcing her to choose between a demotion (from supervisory pharmacist to staff pharmacist) and a transfer to a store which would require her to work overnight shifts.

She alleged that defendant’s district manager suggested that the new position would be better for her “because he knew she wanted time with her kids and this would be a great opportunity for her to spend time with them” and that, since she was working nights, “she could be home with them during the day.”  Plaintiff chose the demotion to avoid the transfer.

Plaintiff established a prima facie case of discrimination with respect to this incident:

(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 pharmacist to staff pharmacist, 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.

It was irrelevant that plaintiff’s male replacement had more managerial experience, since the relevant question was “whether plaintiff was qualified for the position from which she was demoted” and not whether her replacement was equally or more qualified.

Defendant argued 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.  The court disagreed:

[A] plaintiff sustains an adverse employment action if he 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” and “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.

Here, it is undisputed that Plaintiff was demoted from supervisory pharmacist to staff pharmacist. This demotion resulted in a change in duties and diminution of responsibilities. 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.

Moving on to stage two of the analysis, the court held that defendant met its burden of “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. 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.  Further, once Defendant hired Mr. Lupski, Defendant was required by law to change Plaintiff’s position because a pharmacy may not have more than one supervisory pharmacist. 

Accordingly, because defendant 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.”

The court elaborated on this stage of the analysis:

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.  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.  Direct evidence of discrimination is not necessary, particularly because proof is seldom available with respect to an employer’s mental processes.  Therefore, summary judgment is appropriate at this stage only if the employer’s nondiscriminatory reason is dispositive and forecloses any issue of material fact.  As discussed below, summary judgment is not appropriate on the record before this Court.

The court then proceeded to consider whether plaintiff’s citation of a single remark regarding spending time with her family constituted circumstantial evidence that the decision to remove her was motivated by discrimination.  In particular, it surveyed case law regarding the probative force of such comments:

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.  Moreover, such stereotyped comments may, without more, be sufficient to survive a summary judgment motion.

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.  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.  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.  Conversely, the 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.  The Second Circuit employs a four-factor 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).

The court ultimately decided that the comment in question was enough to overcome the summary judgment hurdle:

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.  First, the comment was made by the district manager, who had authority to determine staffing decisions. Second, the remark 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 Plaintiff’s 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 Plaintiff’s 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.

The court thus denied summary judgment to defendant with respect to the demotion/transfer ultimatum.

Discriminatory Transfer

Next, the court held that plaintiff created a genuine issue of material fact regarding her transfer from a permanent staff position to a “floater” position that required her to work in more than one store.

As with the demotion claim, it found that plaintiff established a prima facie case, and that defendant articulated a legitimate, nondiscriminatory reason for plaintiff’s transfer.

It nonetheless held that plaintiff raised a genuine issue of material fact as to pretext:

The evidence in the record shows that Plaintiff was afforded less than twenty-four hours to make a decision about the scheduling changes. 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. 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.

This raised the inference that defendant “used the scheduling changes as cover to mask a discriminatory intent.”

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