37 Fair Empl.Prac.Cas. 756,
Miriam MEIRI, Plaintiff-Appellant,
v.
Claudius DACON, Roger Woods, Maryanne Monteodorisio, Stanley
McKinley, Adele Stern and the Immigration and
Naturalization Service, Defendants-Appellees.
No. 874, Docket 84-6337.
United States Court of Appeals,
Second Circuit.
Argued Feb. 27, 1985.
Decided April 2, 1985.
Lloyd Somer, New York City, for plaintiff-appellant.
Gerald T. Ford, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., and Jane E. Booth, New York City, on the brief), for defendants-appellees.
Before KAUFMAN, OAKES, and MESKILL, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
This case requires us to address the propriety of granting summary judgment in an employment discrimination suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Miriam Meiri alleged she was discharged from her clerk-stenographer position at the Immigration and Naturalization Service ("INS") because of her religion. The district court granted summary judgment in favor of INS, finding that Meiri had failed to establish a prima facie case of employment discrimination.
Mindful that "the court cannot try issues of fact, it can only determine whether there are issues to be tried," Heyman v. Commerce and Industry Co.,
I.
The saga of Miriam Meiri, an Orthodox Jewish woman, began on May 14, 1979, when she was given a conditional appointment by the INS as a clerk-stenographer. Her appointment was subject to a one-year probationary period, during which Meiri was required to demonstrate her fitness for continued employment in the areas of performance, conduct and general character traits.1 Because the task of determining an employee's occupational aptitude may, in certain instances, be extremely difficult, the INS has instructed its supervisors to "[o]bserve the employee's conduct, general character traits and performance closely." Where circumstances so warrant, the employee is to be separated "without undue formality." The responsibility of assessing Meiri's job performance fell to Claudius Dacon, a black Protestant male, who was the Record Administration and Information Section Supervisor with the INS at 26 Federal Plaza in New York City.
During the first nine months of her employment, Meiri exhibited numerous instances of inappropriate behavior that expressly contravened established INS policy, committed a variety of inexplicable, imprudent and indiscrete acts and generally usurped power wherever possible. We believe it would prove instructive to describe seriatim certain undisputed actions that exemplified Meiri's employment difficulties:
1. Meiri, without authority, wrote a letter to the United States Vice-Counsel in Vancouver, Canada.
2. Meiri, again absent authorization, wrote caustic memoranda to supervisors in other sections. She ordered one supervisor to return certain forms by a deadline that she imposed without authority; Meiri castigated another for alleged violations of timekeeping;2 and she sent an unauthorized memorandum announcing the promotion of an employee.
3. Meiri criticized the Chief of the Travel Control Unit about matters that were entirely outside her position's limited purview.
4. Meiri composed and mailed an unauthorized letter on official government stationery to an alien, stating that he should contact her to retrieve "important documents" he had lost.
5. Meiri repeatedly interrogated incoming telephone callers, requiring them to respond to a barrage of prying questions.
6. Although Meiri frequently was asked to refrain from conversing with visiting attorneys, she often became embroiled in disputes over "political affairs" or "current events."
7. By speaking to visiting attorneys and others in Hebrew, French, Italian, German and Spanish, Meiri violated the INS policy prohibiting employees from speaking to visitors in foreign languages.
8. Meiri acknowledged that she had occasionally consoled employees after they had been reprimanded by Dacon, and discussed with them possible avenues of recourse.
Prompted by this series of events, Dacon made several attempts to counsel Meiri and provide her with guidance. His efforts, however, appear to have been unavailing. Finally, on February 21, 1980, Dacon met with Meiri to repair their damaged relationship and stem the mounting tide of improper actions. Again, his efforts at constructive criticism were met only with resistance, as Meiri announced she was fully satisfied with her job performance and, thus, was entirely unwilling to accept counseling. Angered by her recalcitrance and utterly disappointed with her job performance, Dacon, on March 3, informed Meiri that he would recommend she be terminated during her probationary period. On March 19, the INS informed Meiri she would be terminated on March 28, 1980.3
Believing her discharge was motivated by racial and religious animus, Meiri filed a formal complaint with the INS. An Equal Employment Opportunity officer investigated the circumstances surrounding Meiri's termination and, in a report issued on June 2, 1981, found her discharge was based on "an acceptable and equitable decision" by her supervisor. On January 21, 1983, the complaint adjudication officer for the Department of Justice similarly concluded that Meiri's separation was for lawful reasons and did not violate Title VII.
Ten days later, the travails of Meiri began anew in the United States District Court for the Southern District of New York. There, Meiri filed a Title VII suit, pro se, alleging the INS had discriminated against her because she was Jewish.4
On April 7, 1983, the INS filed an answer, in which it denied Meiri's allegations of religious discrimination, buttressing this denial with twelve job-related complaints proffered by Dacon. Of these, Meiri disputed the accuracy of only four, conceding that the remaining eight were true. She did, however, posit exculpatory explanations for certain of her actions. Once again, Meiri admitted the verity of Dacon's charges when the INS took her deposition in October 1983. Armed with a number of undisputed facts that would appear to establish that Meiri was terminated for legitimate, nondiscriminatory reasons, the INS moved for summary judgment on December 15, 1983. In support of its motion, the INS offered the affidavits of Claudius Dacon, Adele Stern (Dacon's secretary who was Jewish) and Joseph Schleifer (an Orthodox Jew who also worked for Dacon), as well as documented evidence of Meiri's inappropriate actions. Three days later, on December 18, 1983, Meiri submitted answering papers,5 in which she propounded by reference to subjective criteria that her termination was animated by religious discrimination.6 Oral argument was heard on February 10, 1984.
On October 1, 1984, Judge Owen granted the INS's motion for summary judgment and dismissed Meiri's complaint. The district court concluded that Meiri had failed to establish a prima facie case of employment discrimination because she was not qualified for the position from which she was terminated and because she was not replaced by a person outside her protected class. Judge Owen relied extensively on the reasons for termination proffered by Dacon and conceded by Meiri. He also found particularly inappropriate Meiri's "habit of engaging certain attorneys and other INS visitors in unnecessary conversations" in foreign languages. In a footnote, the district judge noted that even if the evidence could be construed to establish a prima facie case of discrimination, the INS demonstrated that Meiri was terminated for legitimate, nondiscriminatory reasons. Insofar as Meiri "presented no evidence whatsoever to show that these reasons were a pretext for discrimination," Judge Owen decided summary judgment was proper. Meiri, now represented by counsel, appeals.
II. PROOF IN A TITLE VII CASE
In striking contrast to the welter of decisional law spawned by those courts that have toiled in the amorphous vineyards of Title VII,7 the controlling legal standards appear deceptively straightforward:
First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove 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.
Texas Department of Community Affairs v. Burdine,
This trifurcated inquiry not only specifies and assigns evidentiary burdens, but also injects a fine-tuning element into the presentation of proof in all Title VII cases. The net result is that an initially vague allegation of discrimination is increasingly sharpened and focused, until the ultimate inquiry is one that is amenable to judicial resolution.8
In the action before us, we are called upon to determine whether the district court's grant of summary judgment at the prima facie phase was precipitous and, if so, whether summary judgment was appropriate at the "pretext stage." In so doing, we must wrestle with the peculiarities of and interrelationships among the three inquiries, as well as address the propriety of granting summary judgment in discrimination actions, where motivation and intent are crucial. It is to these questions that we now turn.
A. Prima Facie Case
To establish a prima facie case of termination based on religious discrimination, Meiri must show: (i) that she belonged to a protected class, (ii) that her job performance was satisfactory, (iii) that she was discharged and (iv) that, after she was discharged, "the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, supra,
In determining whether an employee's job performance is satisfactory, courts may--as they often must--rely on the evaluations rendered by supervisors. See Knight v. Nassau County Civil Serv. Comm.,
Furthermore, although certain courts--including the district court in this action--have required an employee, in making out a prima facie case, to demonstrate that she was replaced by a person outside the protected class, see Lee v. Russell County Board of Education,
We believe the appropriate inquiry should be whether the employer continued to seek applicants to fill the position. After Meiri's discharge, Dacon attempted to find a suitable replacement for the clerk-stenographer job. The fact that the position was ultimately eliminated is of little relevance and should not sound a death knell to Meiri's Title VII claim. The elements of proof in employment discrimination cases were not intended to be "rigid, mechanized or ritualistic." Furnco Constr. Corp. v. Waters,
Assuming arguendo that Meiri did in fact offer evidence sufficient to defeat summary judgment at the prima facie10 stage, we must now address whether the INS satisfied its burden of rebuttal.
B. Employer's Rebuttal
Because establishment of the prima facie case creates an inference that the employer unlawfully discriminated against the employee, the burden then falls upon the employer to produce evidence that the employee was discharged for a legitimate, nondiscriminatory reason.11 See Burdine, supra,
To a large extent, of course, the strength or weakness of the inference of discrimination created by the employee's prima facie case defines the nature of the employee's rebuttal.12 Because Meiri's clerk-stenographer position was never filled, the inference of religious discrimination was weakened and the burden on the INS to produce evidence that she was in fact terminated for a legitimate nondiscriminatory reason was commensurately less onerous. It may be argued, however, that the inference of discrimination is far more powerful in employee discharge cases than it is in the context of failures to hire or to promote. Although it is difficult to measure precisely the strength or weakness of the inference of discrimination, we believe it is clear that the INS satisfied its burden of production by proffering a veritable arsenal of undisputed, documented examples of Meiri's inappropriate actions at work. Indeed, the overwhelming evidentiary presentation provided an ample basis for a trier of fact to find that Meiri's discharge was based not upon a discriminatory animus, but rather upon an honest belief that her job performance simply did not measure up to that required of probationary employees.
In addition to demonstrating Meiri's usurpation of authority and her contravention of prescribed INS policies, the undisputed facts also established Meiri's profound inability to get along with her co-workers. This represents a legitimate, nondiscriminatory reason for an employment decision. See Johnson v. Allyn & Bacon, Inc.,
C. Proving Pretext
After the employer articulates legitimate, non-discriminatory reasons for the employee's discharge, the employee must be afforded an opportunity to prove the existence of factual issues demonstrating that the stated reasons were merely a pretext for discrimination. See Burdine, supra,
In evaluating the propriety of granting summary judgment at the pretext stage, we are mindful that "the court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material issue genuinely in dispute." Patrick v. LeFevre,
Although Meiri alleged that "[Dacon] conspired to get rid of [her]"; that he "misconceived [her] work habits because of his subjective prejudice against [her] Jewishness"; and that she "heard disparaging remarks about Jews, but, of course, don't ask me to pinpoint people, times or places .... It's all around us," such conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e). See Zahorik v. Cornell Univ.,
In so concluding, we are of course mindful that summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated. See Patrick, supra,
As we have stated, "[a] party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial for in doing so he risks the possibility that there will be no trial." Donnelly v. Guion,
To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment.
III.
Accordingly, the judgment of the district court is affirmed.
Notes
According to the INS administrative manual, the one-year probationary period:
provides the final indispensable test of actual performance on the job, which no preliminary testing methods can approach in validity .... [T]he probationary period, properly employed, provides protection against the retention of any person who, in spite of having passed preliminary tests, is found in actual practice to be lacking in fitness, and capacity to acquire fitness, for permanent Government service.
Because of its acerbic tone, we find it useful to set forth the contents of this memorandum in its entirety:
It will be greatly appreciated if you don't make my timekeeping job more difficult and confusing by erasures, late disclosures of hours worked and general indifference to required, official procedure. Freedom, independence and not having to account to anybody about anything is terrific I know, but they don't fit into the service and cannot be appreciated when I am prevented from properly fulfilling my duties--so please be cooperative for a change.
Meiri characterized this memorandum as "friendly."
After Meiri was discharged, her position as clerk-stenographer remained vacant for approximately one year, during which time Dacon searched for a suitable replacement. Eventually, the duties associated with this position were assumed by other employees and the personnel office ultimately decided to eliminate the position
In addition to the INS, Meiri's complaint named five individuals as defendants: (1) Mr. Dacon; (2) Adele Stern, Dacon's Secretary; (3) Maryanne Monteodorisio, the local personnel officer; (4) Roger Woods, the INS Assistant Regional Commissioner for personnel; and (5) Stanley McKinley, the INS Regional Commissioner. On December 15, 1983, the defendants moved to dismiss the INS and the individual defendants as improper parties and to substitute Alan C. Nelson, in his official capacity as INS Commissioner, as the sole defendant pursuant to 42 U.S.C. Sec. 2000e-16(c). The district court granted this motion, and dismissed the claims against the named defendants. Meiri does not challenge this ruling on appeal
The district court treated these papers, which demanded judgment in her favor, as a cross-motion for summary judgment
By letter dated February 20, 1984, Meiri submitted twenty-four exhibits to the court to substantiate her claim of employment discrimination
The provision of Title VII, 42 U.S.C. Sec. 2000e-2(a), on which Meiri principally relies, provides:
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin.... (emphasis added).
Although judges strive to be "the master of both microscope and telescope," in practice, we tend to be more adroit at resolving the narrow inquiry. C. Hughes, Mr. Justice Brandeis 3 (F. Frankfurter, ed. 1932)
Were we to adopt a mechanical approach, we would be required to exempt from Title VII coverage an employer that, in furtherance of a broad-based policy of employment discrimination, discharged one hundred minority employees, retained nine hundred non-minority employees, and, by making additional overtime available to the nine hundred retained employees, found it unnecessary to replace any of the discharged employees. Cleary, such an employment policy vitiates the letter and spirit of Title VII, and should not be immune from proscription by reason of an overly formalistic interpretation of the elements comprising the prima facie case. Indeed, in Connecticut v. Teal,
Our belief that the grant of summary judgment by the district court may have been somewhat precipitous is bolstered by the de minimis nature of a plaintiff's burden of proof at the prima facie stage. See Sweeney, supra,
Because it is incumbent upon the employee to prove that the nondiscriminatory reason was pretextual, the employer need not prove the absence of discriminatory motive or that the discharge was motivated by a legitimate reason. See Loeb, supra,
Although courts have fashioned a tripartite construct to evaluate Title VII claims, we must withstand the temptation to treat each stage as an independent inquiry. Indeed, the efficacy of employment discrimination law depends upon the interdependence of the prima facie case, the employer's rebuttal and proof of pretext. See Lieberman v. Gant,
The reasonableness of the employer's reasons for discharge is, of course, probative of the question whether they are pretexts. "The more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as a pretext." Loeb, supra,