Petition for Writ of Certiorari — Tunny v. Metropolitan Life Insurance

6

applicants canceled their applications. Adverse processing

activity on the part of MetLife is evidence of retaliation

against Petitioner. Petitioner's processing reports show that

her business averaged five to six weeks to process. Petitioner

provided a sworm affidavit from applicants with a female

head of household attesting to their unexplainable delay.

Petitioner’s first written application was a $300,000

whole life insurance plan to a young female married parent

who was the primary support for her family. This would

have been a good beginning for Petitioner, establishing high

expectations. However, the applicant cancelled this plan and

provided a sworn affidavit that this was in large part a result

of the behavior of Petitioner’s manager at the appointment.

Petitioner claims that the lack of female mentors and

managers diminished her business opportunities.

Immediately following her complaint memo

regarding sexual and non-sexual harassment, Respondent

declined a $100,000 face amount whole life insurance plan

written by Petitioner for a middle-aged married female parent

who was fully employed as a high school teacher and

according to her personal physician in good health.

Consequently, Petitioner lost a sizeable commission and

referral business. Respondent claims they cannot locate the

records for this declined application and has not produced

requested information on this decline even after Petitioner

provided the requested receipt regarding the deposit date to

enable them to locate this evidence.

Petitioner received recognition in the Silver Spring

office for having the highest sales for disability income plans

with one written application for a female client. When she

wrote another for a male client, who along with his wife had

previously applied through Petitioner and been approved for

life insurance, this plan was declined without explanation to

the Petitioner or the applicant.

7

- For quarter end November 18, 1996, when Petitioner

did not meet the minimum validation requirement, was

subject to termination and received an offer for extension,

she again had sufficient business pending to meet this

requirement. However, again this business was not timely

processed. Petitioner’s Summary Reports show the placing

of this business the very next week after her quarter end.

MetLife has never explained why the underwriters who

processed this business and who assured Petitioner that it

would process in time for her quarter end failed to do so. Her

income statements show that her income at this time does not

support the explanation in the extension letter that the Court

interprets as justifying this action. In fact, as Petitioner’s

income declined, she never received any notice from MetLife

that her compensation was being adjusted “in this manner.”

See Appendix E, p. 46a. Why was it delayed? Why was her

request for a commission setback denied? Petitioner claims

discrimination and retaliation.

Petitioner was compensated pursuant to “MetLife’s

Compensation Payable to Account Representatives

Appointed August 1, 1994 and Later Under the Financing

Plan” whereby account representatives meet quarterly

production requirements to maintain their employment.

Petitioner has shown how this compensation plan is a policy

that allows disparate treatment of MetLife employee’s.

While account representatives must “place” a certain dollar

amount of business on an exact day at the end of each

quarter, there is no exact requirement for the MetLife

employees who process this business. Therefore, the

deciding factor as to whether an account representative

maintains their income and employment is not dependent on

their sales or “production”, but on MetLife’s “processing”

of that business.

&

8

Petitioner was told that the duration of time for the

processing of an account representative’s business is

ordinarily two to three weeks and the delays in her

applications were extraordinary. A longer time period is

unusual. Most of Petitioner’s sales took a longer time to

process. This delayed processing is evidence of

discrimination and retaliation for Petitioner's complaints.

“Simple arithmetic will prove that the

length of time from the writing to the placing

of an application or the time at which the

account representative is credited with the

commission income, determines the account

representative’s earnings. A change in this one

factor guarantees a change in the other. Over

a 12 month period, holding all other factors

equal, i.e., the value of the policy and the rate

of the commission, if one application is

written each month but the placing time varies

from 2 to 4 to 6 weeks in time, at the end of

the year the account representatives’ earnings

will vary by the commissions from 11 to 8 to

6 applications. Delayed placing and

commissions result in an immediate lowering

of income from sales and during the initial

training period, the loss of training allowance

income and the threat of termination. Speedy

placing allows—for-—greater earnings and

increases the expectations of management

regarding the account _ representative’s

eamings potential and results in higher IPLs

and bonuses.

9

Data by gender on the time interval

from the date the applicant signs the policy

application to the commission credit date to

the account representative, including the

application processing date and the policy

issue date, for the account representatives who

worked in the same offices as Petitioner

during the time she was employed by MetLife,

will prove Petitioner's claim _ that

Respondent’s compensation ules _ and

schedules are a barrier to equal employment

for women at MetLife. Gender discrimination

is evident in the number of female account

representatives hired, the number who

completes the initial training period, the

length of their employment and in career and

retirement earnings of women. The validation

policy for retaining career account

representatives is a compensation policy that

results in gender discrimination in

employment at MetLife. This formula

appears neutral but has an adverse impact on

women. When combined with other barriers,

such as harassment and retaliation, it is an

insurmountable obstacle. The invisibility of

such invidious barriers makes change difficult

and prevents equal employment opportunity

for women.

Barriers to equal employment

opportunity include socialization and

educational and employment practices that

prohibit access and full participation on the

basis of gender. In a workplace, these barriers

constantly interact and reinforce each other.

When acting together, the obstacles created

become insurmountable.

10

Discrimination in the handling of

business occurs because the model of a

successful account representative at MetLife

is a masculine one. All members of the Hail

of Fame are men and most awards and

promotions go to men. In Petitioner’s work

environment, the managers are all men. At

best, the processing of the work of female

account representatives receives a lower

priority. The validation policy, a seemingly

neutral policy, becomes a barmer that

invidiously takes note of gender. Women

suffer discrimination of the type Title VI

forbids. ”

Documents provided by Respondent in discovery

show that the gender of account representatives is more than

80% male. Given Petitioner’s processing experience and the

lower percentage of women account representatives, a

comparison of the time it takes to process the business of

account representatives at MetLife by gender would show

that the time from the wmiting of business to the credit of

commission is longer than the usual for women overall. This

is disparate treatment which results in significantly lower

earnings and lower career expectations for women at

MetLife. The Court, however, refused to order Respondent

to respond to Interrogatory No. 16 regarding the processing

time by gender of the account representatives identified by

Respondent in discovery. Petitioner’s complaint was

dismissed by the Court for lack of sufficient evidence.

? Plaintiff's Letter to the Court dated December 20, 2000 to further

support her Interrogatory and Document Requests and obtain an

Order to provide this evidence to her complaint.

1]

~ This is a matter that has been brought to the Court by

other female account representatives at MetLife. See Janet

Metcalf and Charlene C. Davis v. Metropolitan Life, 961 F.

Supp. 1536 (D.Utah 1977). Here the Petitioner was put on

leave while her harassment investigation was conducted, told

she “ ... would pick up where she left off when she returned

to work” and then criticized for her lack of performance

during the leave. During her leave, “because she stopped

selling insurance, her income was reduced by about $400.00

per month.” Metcalf argues this was an instance of

retaliation because she could not properly do her work

without going to the office. Metcalf also argues that

“MetLife’s demand that she place the same amount of

insurance that she would have placed were she not on leave

was not only unreasonable because of her above concerns,

but also because she understood that she would have no

work-related responsibilities during her leave.” See Metcalf

1539, fn 2. In fact, by putting her on leave, MetLife

prevented her from generating business. MetLife, thereby,

thwarted her ability to validate and caused her a loss of

income that she could never regain.

The validation policy results in disparate treatment at

MetLife. This policy is used to choose men over women as

career account representatives. Only three women of the 70

account representatives identified by MetLife to have worked

in the offices Petitioner worked in were still employed by

MetLife on September 19, 2000, the date of “Respondent’s

Supplemental Responses to Petitioner’s Interrogatories.”

This is evidence of gender discrimination.

12

When Petitioner did not meet the validation

requirement in November 1996, knowing her business should

have processed in time to meet the requirement, she accepted

the offer of extension believing it was made in good faith.

She immediately applied for the setback of these

commissions to allow for an increase in her income.

MetLife’s letter to Petitioner See APPENDIX E, p. 46a,

regarding the extension of her validation supported a setback.

“You can take steps to avoid reaching the contract year

financing limit and the resulting compensation reduction by

increasing your non-financed AR compensation. The way to

do this is to increase your First Year Commission (FYC)

production to your moving average account...” Her non-

financed compensation would have been increased by these

sales commissions and additional non-finance earnings

would have immediately gone into her account. This would

have reflected well on her and the Wheaton Office.

However, her request for a commission setback of the

delayed business was denied. This continued reduction of

her income is evidence of continued violation. _

The following quarter, due to managerial and staff

support, extra effort and personal expense to Petitioner,

including an outside sales workshop, she validated and

gained back her full $500 weekly IPL. However, the office

in Wheaton was closed in spite of a petition to keep it open

and Petitioner was -again transferred from the Elite to the

American Office. This transfer involved a move to a fourth

location, was again disruptive to Petitioner’s office

environment and was another setback on the part of MetLife

to impede her success. By this time, the reduction in income

made it impossible for Petitioner to maintain her lease

obligation and she moved into a room sharing situation,

which disallowed conducting business from her home. The

work environment was such that Petitioner could not possibly

function as an account representative. It-amounted to a

continued barrage of adverse employment actions that were

insurmountable for Petitioner.

13

When she did not meet the validation requirement in

the next quarter, her employment was terminated. Believing

that success as an account representative was not possible for

her, she did not appeal this decision and proceeded with legal

action.

MetLife purposely hired Petitioner at a lowered initial

income, discouraged her from writing high face value

policies that would earn her higher commissions, declined

applications for no justifiable reason and delayed the

processing of Petitioner’s business causing cancellations and

delays in commission credits to her. This was to cause her to

suffer reduced income, from the loss of sales commission and

the loss of financed income beyond her sales commissions,

and quit her employment. Upon termination, Petitioner’s

clients and residual income from her sales become the

property of MetLife. Further, voluntarily quitting her

employment would have avoided MetLife having to

document their findings regarding her complaint and give a

valid reason for their discriminatory policies that they assert

justified her termination.

Petitioner made every effort to maintain her

employment. This includes making two formal complaints

of sexual and non-sexual harassment to MetLife management

and retaining legal representation. MetLife asserts they

carried out an investigation into these complaints but saw no

need to include her or her attorney. Petitioner believes the

sexual harassment was itself retaliation for earlier complaints

regarding the processing of her business and could have

provided more extensive information to support her

complaints. Her legal representative, Mindy Farber,

contacted MetLife by letter and telephone and they refused to

respond to Ms. Farber regarding their investigation. MetLife

reported to Petitioner that the investigation file was "lost".

Respondent has never provided any documentation to

support their findings regarding the in-house investigation or

to justify their discriminatory policies.

14

II. Proceedings Below

Following complaints with the Maryland Human

Rights Commission and the Equal Employment Opportunity

Commission in 1997, who issued Petitioner a right to sue

letter, a Complaint was filed Pro Se by Petitioner on May 4,

1999 at the United States District Court, Eastern District of

New York.

Petitioner had no income following her termination.

Her position as an account representative with MetLife was

excluded from unemployment compensation. Unable to pay

the debt she had incurred while trying to maintain her living

situation as her income as an account representative at

MetLife declined, she lost her good credit standing and her

credit accounts were all closed. She managed to find

employment as an office temporary and retain an attorney to

file her Complaint with the Baltimore Maryland office of the

EEOC on April 16, 1998. :

She moved to New York City, where she was able to

live with family until she could become employed as a patent

and trademark secretary, the job she had successfully held

prior to her employment as an account representative.

Petitioner is not an attorney, but she was given advice by the

attorneys she contacted to represent her. Unfortunately, the

amount required to retain an attorney for this court action

was thousand of dollars and beyond her means. Her requests

to the Court for appointment of legal counsel have been

denied. Having a regular income and informal advice from

attorneys enabled her to file her Complaint pro se. Petitioner

would like to acknowledge the Judges and attorneys who

made it possible for her to muddle through this civil action.

A Memorandum and Order filed November 10, 1999

was issued by Chief Judge Sifton of the United States District

Court of New York which in part denied and in part granted

Respondent’s Motion to Dismiss. Judge Sifton greatly

assisted Petitioner by clearly articulating her Complaint. He

concluded that she failed to allege sufficiently severe or

15

pervasive incidents to state a hostile work environment.

However, he recognized that she honestly believed her

complaint was grievous enough to bring before the court and

that she suffered an irreparable loss of a career. The court

granted Petitioner leave to submit an Amended Complaint

that was filed by Petitioner on November 30, 1999 at the

United States District Court, Eastern District of New York.

A Memorandum and Order filed on April 19, 2000 was

issued by Senior Judge Sifton granting Respondent’s Motion

to Dismiss but denying the Motion to Strike. Maryland state

law claims were dismissed because although Maryland Law

prohibits discrimination it does not provide for a private right

of action. The complaint against Harry Kamen was

dismissed because the claims were held to be insufficient as a

matter of law. Petitioner’s sexual harassment complaints

were again dismissed with prejudice. Because the court

found Petitioner’s Amended Complaint sufficient under the

federal rules, Respondent’s Motion to Strike was denied.

The terrorist attack against the World Trade Center in

New York City on September 11, 2001, made it impossible

for Petitioner to commute to her employment. She attempted

other means of transportation, including walking from the

Staten Island Ferry, through ground zero, to 46" Street, for

approximately six months. ‘However, when this began to

effect her physical and emotional well being, she applied for

employment in New Mexico, was hired and moved to

Albuquerque. Unfortunately, she lost this employment

because of a lack of work. Unable to find regular

employment in New Mexico or California, she moved back

to the District of Columbia in 2003 and has since been able to

be employed as an office temporary. This employment and

temporary residence at the home an acquaintance of her sister

has allowed her to continue with this action.

—_

16

The Appendix to this Petition provides the text of the

Memorandum and Order that was issued by District Judge

Dearie. An Appeal was filed on April 29, 2004. The

Appendix to this Petition provides the text of the Summary

Order and the Order denying Petitioner’s Request for

Rehearing of the Appeal.

It has been almost ten years since Petitioner first

contacted the Montgomery County Human Rights

Commission in 1996 and she continues to muddle through

reading court decisions and orders, attempting to interpret

legal cases, preparing answers to the court and providing

discovery information to Respondent. She has been typing

since she was a young child and has been able to prepare and

format documents herself.

The fact that as a pro se plaintiff she has been able

to bring this matter to the Supreme Court attests to the

freedoms that exist in the United States of America. She

truly still believes that her individual complaint is grievous,

that she has submitted sufficient evidence to support her

complaint and that requiring Respondent to recognize tiie

discriminatory aspects of their personnel policies and

restructure these policies is in the best interest of all people

in this country. The efficient and fair allocation of

resources insures that the basic principles that our country

was founded on will remain strong and true to their original

intent.

REASONS FOR GRANTING THE PETITION

Review by this Court of the Court of Appeals decision is

compelling and of exceptional importance because:

I. The health and well being of the United States of America

depends on the full contribution of all the people. Gender

discrimination disallows full participation. When market

mechanisms do not eliminate discrimination the only remedy

is the law.

17

The Civil Rights Act of 1964 (Title VII) prohibits

discrimination in employment based upon sex. As

population grows geometrically, women from economic

necessity are entering the labor force where they are subject

to a hostile, abusive environment that subordinates them to

secondary employment opportunities and earnings.

As more and more women are entering the workforce

they are challenging their exclusion from traditionally male

jobs and unequal earnings. The Civil Rights Act has been

followed by thousands of formal complaints a fraction of

which get to court.

A recent study was made of every reported federal

and appellate court opinion on sexual harassment in the

workplace from 1986 to 1996 — a total of nearly 650 cases.

“Although widespread sexual harassment has existed for

decades, and litigation has proceeded for over twenty years,

detailed knowledge about these issues is still lacking.” See

Ann Juliano & Stewart K. Schwab, Stewart J. The Sweep

of Sexual Harassment Cases, 86 Comell L. Rev. (2000-

2001), p. 548.

This study found that 94.6% of the Petitioners were

women and only 11% were still employed at the time of the

lawsuit. A disproportionate number of Petitioners are blue

collar or clerical workers. Blue coliar represented 56.7% and

white collar represented 4.2% of District Court opinions. On

the appellate level, this was 32.9% to 2.4%. Win rates, when

a favorable opinion is written, were close in range. See

Juliano & Schwab, Appendix A. Women filing suit, even

with win rates, are still unemployed. In addition to the loss

of their earnings, women are incurring the costs of a civil

action with little benefit to them individually and as a group.

In spite of federal legislation and growing case law,

employers continue to discriminate. According to the 2000

census, more women in the United States are entering the

workforce than ever before and are more likely to have

continuous lifetime work experience. There was a

remarkable increase in mothers. Despite unprecedented

18

change, the overall labor market remains sharply segregated

by sex. Women remain in a secondary economic status.

Single-parent female householders have the highest poverty

rate in the United States. This not only devalues their status

in the workplace, but their status as mothers. Women lose

custody of their children because of lack of income.

Few statistics about women in the U.S. reveal as

much about their place in society as income. Census data

showed the median income in 1997 of persons 15 years of

age and over was $26,115 for white males and $13,792 for'

white females. For black males, median income was $18,096

and $13,048 for black females. See U.S. Census Bureau, The

Official Statistics, July 27, 1998, Table C-2.

While the discrepancy is still wide, for working

women, the situation improves. In 1997, the median wage or

salary income for all races by gender was $26,939 for men

and $16,849 for women. See Census Table C-6.

Wage discrimination is paying equally productive

workers different wages on the basis of considerations not

related to productivity.

The pervasive requirement to the court asks whether

the harassment was sufficient, severe and detrimentally

encompassing to modify the working environment and

significantly effect their employment. The actual numbers

presented by the U.S. Department of Labor and the US.

Census Bureau speaks to this. Women are still excluded

from traditionally male dominated industries and have

secondary earnings potential. Employers discriminate.

Harassment combined with formal policies and procedures

support existing stereotypes by creating intolerable work

environments that exclude women. “By basing their

decisions on .... measurable characteristics of a group,

employers may give systematic preference to one group over

another.” See Suzanne Schmitz, Race and Gender

Discrimination Across Urban Labor Markets, Garland

Publishing, 1996, p. 7.

19

Scholarly studies follow different approaches to this

problem. “Statistics are the ultimate honesty test.” What

happens every day, all the time is measured in census

statistics. At best, median income and earnings data suggest

discrimination. “...all of these wage dynamics are driven by

employer’s exclusion of women from particular jobs. If

employers did not create occupational sex-typing ...there

would be no ... theory.... To the extent to which market

forces can eliminate occupational sex-typing...the economic

gap between men and women can be made to go away.” See

Schmitz, pp. 2, 138.

The organizational culture at MetLife maintains

polices that are purportedly gender neutral when these

policies in fact discriminate against women as a group. Male

account representatives maintain their higher earnings by

selling primarily to men whose greater incomes justify larger

face amount plans and thereby result in larger commissions.

Because business plans are organized around “target”

markets or “natural” markets, they block access by women to

higher earning clients. This marketing mechanism lowers the

earnings of female account representatives. It maintains

wage discrimination.

The more important issue for the court is not the

severity of the discriminatory action or behavior that causes

the suit, but the harm that is done to the woman. “I argue

that sexual harassment should be understood as a practice

that preserves male control or entrenches masculine norms in

the specific setting of the workplace.” See Kathryn Abrams,

“The New Jurisprudence of Sexual Harassment”, 83 Cornell

L. Rev. (1998), p. 1172.

Stereotypes play a significant role in the nature of the

harassment. Research shows that women entering male

dominated jobs suffer less sexual harassment than do women

in traditionally female jobs. See Schmitz, p. 56S.

While sexual misconduct is a serious violation, it is

unfortunate that the “Petitioners alleging sexual harassment

based on comments or behavior of a sexual nature are more

20

successful that Petitioners basing their claims on nonsexual

... behavior.” See Schmitz, p. 555. :

The sexual or non-sexual nature of the harassment

should not be the pivotal issue. The issue is that employers

discriminate against women in the workplace that this creates

earnings disparities and excludes women from jobs in

traditionally male dominated industries, in this case financial

services.

Women have always worked. In 1977 women

represented 96.8% of child care and household workers.

Waitresses and waiters were 77.8% women. 83.9 of

elementary school teachers were women. See, USS.

Department of Labor, Employment and Earnings, 1998,

Table 5.1, Earnings in Selected Occupations: 1997.

However, when they attempt to enter jobs that have

traditionally been held by men they face resistance and

hostility from employers, workers and by others “anxious

about what growing numbers mean for male contro! within

the workforce and for women’s roles outside it.” See

Abrams, p. 1196.

The Courts have stated “The broad overriding

interest, shared by employer, employee and consumer is

efficient and trustworthy workmanship assured through fair

and ... neutral employment and personnel decisions. See

Texas Department of Community Affairs. V. Burdine, 450 US

248, 259.

The Supreme Court granted a Writ of Certoran in

Griggs et al v. Duke Power Company, 401 US 424 (1971) to

resolve the question whether an employer is prohibited by the

Civil Rights Act of 1964, Title VII, to maintain a standard for

hiring when it was not significantly related to job

performance, when it disqualified a protected group at a

higher rate and when the jobs in question formerly had

shown a longstanding practice of protection to one group.

Employment discrimination effects the physical and

mental well being of women to the detriment of civilization.

Since 1980, the United States has been experiencing an

21

increase in the male/female sex ratio, a statistic that is

projected to continue through the century. “The sex ratio

(males per 100 females) declined every decade from 1910 to

1980, then increased in the 1980s and 1990s. See Hobbs,

Frank and Nicole Stoops, U.S. Census Bureau, Census 2000

Special Reports, Series CENSR-4, Demographic Trends in

the 20” Century, U.S. Government Printing Office,

Washington, D.C., 2002.

MetLife, experiencing financial difficulties as a

mutual company, changed to a publicly traded corporation

during the time of Petitioner's employ. Rather than

recognize that they discriminate and look into the financial

impact of their policies, to the detriment of their own

earings as an employer they hide behind a pretext and a

smoke screen of reams of complex “regulations” which

support a male dominated workforce. The economic status

of women impacts the economy overall. When women as a

group are not being fairly employed and compensated and

contributing as investors, insufficient resources go into

needed investment and services and this negatively effects

the growth of our gross national product which is so

desperately needed as our population grows.

The courts must focus on outcomes. In a free

enterprise, we allow government intervention and regulation

when there is a compelling reason that protects the common

good. When data shows gross discrepancies in earnings and

number of women employed, employers have a responsibility

under federal law to restructure their policies and “validate”

all groups. The Court must impose this responsibility on

Respondent.

II. This is a Case that shows Institutionalized

Systemic Discrimination by an Employer. It

Explains Why Employment Discrimination

Persists in the Labor Market.

22

On an individual basis, Petitioner was subjected to

sexual and non-sexual harassment, retaliation and gender

discrimination. This hostile work environment, combined

with seemingly neutral formal policies and procedures that

invidiously take note of gender, amounted. to an

insurmountable obstacle that served to undermine

Petitioner’s competence as an account representative

blocking her from the job of account representative and a

rewarding career in financial services. As a group, women

account representatives at Metropolitan Life Insurance

Company suffer significantly lower earnings and career

expectations than men.

A policy such as the initial cap MetLife places on its

IPL for account representatives maintains the high male-

female income disparity. MetLife’s policy that disallows

initia! earnings higher than the applicant’s pre-hire earnings

discriminates against women who have significantly lower

earnings in the labor market overall. In 1997, men’s earnings

exceeded women’s in every occupation, even those where

women predominate. The median weekly earnings of female

elementary schools teachers was $655 compared to $719 for

men. See, U.S. Department of Labor, Table 5.1.

Historically, MetLife’s account representative are

predominantly male and the earings at the time of

Petitioner’s employment for males was 350-400% that of

females. All members of MetLife’s Hall of Fame are males.

If there is to be a good faith discussion regarding gender

discrimination, it has to be done with facts.

According to the U.S. Census Bureau, Current

Population Survey, March 2002, Total Money Earnings of

Full-Time, Year-Round Workers by Sex 2001, 49.1 % of

females earn less than $24,999 compared to 24.5 % of males.

5.5% of female earnings were $75,000 or over compared to

15.8 % of males. Differentials by race would show a greater

disparity for white females given the considerably lower

earnings of black men. See Reneé E. Spraggens, Women and

23

Men in the United States: March 2002, Population

Characteristics, U.S. Census Bureau, March 2003, p4.

Women at MetLife, because of the policy that caps

initial earnings at pre-hire earnings, begin their careers at

earnings lower then men. MetLife would have to make a

significant recruitment effort to find women with earnings

that would be fair given the cap. This is a handicap that is

impossible to overcome. They will never make up this loss

in earnings. It diminishes the career earnings of women and

maintains wage discrimination. This is exactly what Title

VII prohibits. “Gender discrimination is caused by employers

and costs them money. When the market does not eliminate

discrimination the only remedy is the law.” See Samuel

Cohn, Race and Gender Discrimination at Work, Westview

Press, 2000, p. 170.

MetLife justifies its financing plan for account

representatives as being neutral because it applies equally to

all and conforms to the regulations set forth by the New York

Insurance Department. In fact, the validation requirement

depends on the timely processing of the account

representatives business and is easily manipulated to

maintain a white male workforce. In Petitioner’s case, she

was terminated simply by delaying the processing of one

application for one week beyond the validation date.

When Petitioner requested a setback of the

commission from the delayed placing of her applications at

the time of her first termination, based on a formal policy in

the “Compensation Manual,” it was denied. MetLife’s letter

granting an extension of her validation, see APPENDIX E, p.

45Sb, states “You can take steps to avoid reaching the contract

year financing limit and the resulting compensation reduction

by increasing your non-financed AR compensation ...”. She

took this step and her request was denied.

This is a matter that has been brought to the Court by

other female account representatives at MetLife. See

Metcalf. Here the Petitioner was put on leave while her

harassment investigation was conducted and then criticized

24

for her lack of performance during the leave. MéetLife’s

actions may appear to be an effort to accommodate Ms.

Metcalf by an in-house investigation. In fact, because of her

complaint, they damaged her business activity and reduced

her income.

Petitioner’s income began to decline immediately

following her formal complaint. She calculated her own

processing time given her records and clearly could perform

this analysis on other account representatives. The District

Court, however, ruled that “‘... in the absence of showing that

the information requested could provide the basis for a

defensible statistical analysis tending to indicate

discriminatory intent, production of information requested

with respect to accounts representatives other than [Plaintiff]

is burdensome and is not reasonably calculated to lead to

admissible evidence.”

Simple arithmetic shows the inequality of MetLife’s

financing plan. This is a policy that disqualifies a protected

group at a higher rate. As a group, women at MetLife suffer

significantly lower earnings and career expectations because

of this requirement that invidiously takes note of gender.

The invisibility of this barrier makes change difficult and

prevents equal employment opportunity for women.

The usefulness of statistics depends on the

surrounding facts and circumstances. Analysis in the social

sciences is a tool that is subject to the interpretation of the

analyst. Petitioner is not an attorney. She has read numerous

cases relating to sexual harassment. Interpreting data and

interpreting judge’s words is at best subjective analysis.

Apparent is that the courts fail to recognize the harm done by

harassment aimed at women and are only beginning to

acknowledge harassment that is not explicitly sexual or

physically aggressive nonconsensual behavior.

Courts must begin to focus on the intent of Title VII.

“The Act requires the elimination of artificial, arbitrary, and

unnecessary barriers to employment that operate invidiously

25

to discriminate...” See Griggs v. Duke Power Co., 401 U.S.

424.

Il. Summary Judgment should not have been

granted.

Petitioner's complaint was timely filed and she suffered

harassment, a continuing violation of retaliation and adverse

employment action.

The court found “Since there is evidence to suggest

that plaintiff had notice that she had grounds for legal action

as early as 1995 and that she voluntarily delayed filing until

November 1997, one year and ten months after she had

notice that MetLife’s internal investigation had been

completed, this Court finds no ground for granting plaintiff a

waiver of the time bar.” See APPENDIX C, p. 23-24a.

Petitioner’s intent was to maintain her employment and

income. She was not making decisions anticipating a court

action. She had contacted the Montgomery Country Human

Rights Commission and sought legal advise in 1996. In early

1997, an attorney, James King, advised her not to be

proactive. At the time of the in-house investigation, she had

retained an attorney, Mindy Farber, and was making every

effort to find an amicable solution. She has submitted in this

Petition research that only 11% of plaintiffs in sexual

harassment cases are still employed at the time they file suit.

Her goal was to be successful in her career by developing

and maintaining long-term client relationships. Dismissal on

the basis of timeliness is wrong.

In Metcalf, Charlene Davis avoided termination by

quitting her employment at MetLife and resuming her career

as an account representative with another financial services

company. The court ruled that this was not constructive

discharge in that “...a reasonable person would have allowed

more time to see if MetLife’s remedial actions improved the

situation and would not have felt compelled to resign.”

26

The facts that Petitioner has brought before the Court

support that her termination was a result of harassment,

sexual and non-sexual, that impeded her ability to perform

her duties as an account representative, diminished her

commission earnings and caused her concern for her personal

property and physical well being. This environment

combined with policies and procedures at MetLife, including

a cap on initial earnings at earnings at the time of hire, délays

in the processing of her business and unwarranted declines of

written applications, were insurmountable barriers to

successful employment which she endured up to her

termination. As a result, Petitioner has suffered a loss in

eamings and assets, loss of her good credit rating,

termination of her employment and loss of a career.

The information provided by “Respondent's Second

Set of Supplemental Responses to Petitioner's First Set of

Interrogatones” regarding the earings of account

representatives who were employed in the same offices as

Petitioner shows that the commission earnings of men are at

* least 350% the eamings of women. From January 1995

through January 1998, the six highest annual earnings for

men were $195,543.36, $179,827.64, $105,323.70,

$104,462.19, $75,648.80 and $66,604.43, respectively. For

women, the six highest annual earnings were $55,389.37,

$42,763,13, $37,311.53, $32,178.01, $26,740.59 and

$24,224.04, respectively. It is interesting that the highest

earning female earned less that the lowest earning male. In

addition, while all but the lowest of six high male earmers

were still employed by MetLife only the two highest of the

female high earners remained an account representative at

MetLife. Three of these women were only employed for less

than two years. Petitioner’s termination left one. Clearly

there was no intent to train these top-producing women for

career positions. This is evidence of gender discrimination at

MetLife and presents a genuine issue of material fact.

27

In their Motion for Summary Judgment, Respondent

bears the burden of proving that the adverse employment

action and harassment that Petitioner endured were not

retaliation and that MetLife’s policies and procedures do not

discriminate by gender. Respondent must show evidence

that Petitioner's difficulties in getting her business approved

and placed in a timely manner were not related to her

complaint or gender. Respondent bears the burden of

explaining why men earn more than 350% that of women

who are performing the same job. Respondent must provide

evidence as to why women account representative cannot be

successful in retaining their employment to retirement.

The court’s decision was made on an incorrect analysis of the

information provided.

With regard to the earnings differential for male and

female account representatives, the court stated, “Plaintiff's

own calculations, however, are questionable at best. Her

‘400%’ figure is derived from a comparison of the annual

earnings of the highest earning male from January 1995 to

January 1998 ($195,543.36) to the annual earnings of the

highest earning female from the same period ($55,389.37)...

While the earnings of the highest earning male earner could

reasonably be called approximately 3.5 times (or arguably

350%) those of the highest female earner, to extrapolate from

that figure to say that the earnings of all male account

representatives are 400% those of all female account

representatives is clearly spurious. - Moreover, these

calculations tell us nothing about statistical significance of

the disparity or the range of other variables that might

contribute to the observed disparity, such as hours worked,

prior experience, years of service, volume of business, value

of policies sold or the like. Plaintiff's comparative analysis

of male-female retention rates is similarly spotty. See

APPENDIX C, p. 32a.

28

Plaintiff's analysis was correctly calculated on a

“financial” calculator that is programmed to round at 5 to the

next highest number. Therefore, anything over 350% would

round to 400%. This recognizes the social science analysis

of economics. In this instance, the best statistic is the total

amount. Clearly, this disparity shows discrimination—

secondary earnings on the part of women. What causes this

discrimination is a subjective analysis on the part of the

researcher. If the researcher were knowledgeable of the

value of employee benefits, they would recognize that this

percentage could easily be doubled to account for the dollar

benefit to the employee of life, health and disability

insurance, employer retirement contributions, leave time, etc.

Sexual harassment disadvantages women in the

workforce. If the action or behavior is directed equally

toward all in the group, but adversely effects women this is

sexual harassment. While much of the harassment to

Petitioner was related to an office environment that all were

subjected to, i.e. difficulties with support, poor security, an

office burglary where application deposits were lost, and

being admonished for not being on time for evening

telephone sessions (a demand which was contrary to formal

policy regarding work hours), the fact is that the effect was

more adverse to Petitioner and other women in the office.

With regard to Petitioner’s claim that the extension

granted to her was a pretext to mask retaliation and gender

discrimination on the part of MetLife, the court erroneously

states “‘...the evidence she points to in support of this charge,

namely that MetLife did not grant her the requested setback

of her unprocessed business and that her income declined as

a result does not support this conclusion. Plaintiff points to

nothing in MetLife’s Compensation policies that supports her

argument that compensation setbacks ought to have been

granted to someone in her situation — indeed there is no

mention of ‘compensation setbacks’ anywhere in the

policies.” See Appendix C, p. 26a, fn. 6. In fact, this is a

formal policy that was submitted by Petitioner as Attachment

29

I to her Memorandum of Law in Opposition to Respondent’s

Motion to Dismiss. See Appendix D, p. 43a. Petitioner’s

claim is valid.

The court’s demand for information was excessive end

wrong in deciding that Petitioner had insufficient evidence

and in refusing Petitioner information that would allow her to

comply with the evidence they deemed sufficient.

Appendix D is the list of attachments to the

Petitioner's Appeal Brief. It outlines the information and

evidence that Petitioner submitted to the court to support her

complaint. This includes seven affidavits, six sworn at the

timne of the filing and one unsworn that was later submitted as

a notarized copy. Plaintiff herself submitted two swom

affidavits, one in 2002. Yet, the court states this is

insufficient and errs in stating that “even more significantly,

plaintiff has provided no swom affidavits from herself

attesting that the allegations in her complaint are true.” See

Appendix C, p. 16-17a.

Petitioner believes that to expect a pro se Petitioner to

provide more than has been provided in unreasonable.

However, Petitioner would have attempted to meet

the court’s demands for additional information, in particular

she would have compared the processing time on the other

account representatives in her offices by gender, but this data

was not provided to her.

Petitioner's complaint and evidence is supported by

the fact that at least two other court actions claiming

discrimination have been filed against Respondent during the

time of Petitioner’s complaint. The record of the United

States District Court Central Division Utah case of plaintiff's

Janet Metcalf and Charlene Davis, account representative’s

in MetLife’s office in Utah, presents a hostile environment

that combined with discriminatory policies and procedures to

discriminate similar to that described in Petitioner’s

30

complaint.’ The Court cited another case, Madera v.

Metropolitan Life Insurance, No. 99 CIV. 4005, 2002 WL

1453827, *4 (S.D.N.Y. July 3, 2002) (holding that equitable

tolling is inappropriate where plaintiff, aware of the adverse

conduct, delayed filing a complaint hoping Respondent-

employer “would turn from its discriminatory and retaliatory

ways.”). See Appendix C, p. 22-23a. Petitioner was not able

to read the record of this unpublished case, but believes that

it also supports her complaint. All three cases make evident

that MetLife’s formal policies and procedures are a mynad of

regulations that serve no necessary purpose and can be

manipulated to control the hiring, retention and earnings of

their account representatives. Data shows that MetLife has

significantly high disparities in the number and earnings of

their account representatives by gender.

Respondent is hiding behind a myriad of formal

policies and procedures in justifying the exclusion of women

from the position of account representative. In Petitioner’s

case this information was withheld, i.e. the Compensation

Manual, until she complained about not having one. The

manuals themselves would take a mathematician and an

attorney to interpret. The court itself has misconstrued these

policies. This case reports institutionalized systemic

discrimination by an employer.

—

CONCLUSION

The Petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Joan Tunny

Petitioner, Pro Se

Dated: 7/10/2005

> Metcalf v. Metropolitan Life, Inc., 961 F.Supp. 1536 (D.Utah 1997).

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

[Filed April 13, 2005]

Date: 3/29/05

Docket No.: 03-7450-cv

Short Title: Tunny v. Metropolitan Life In

DC Docket Number: 99-cv-2531

DC: EDNY (BROOKLYN)

DC Judge: Honorable Raymond Dearie

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, Foley Square, in the City

of New York, on the 13 day of April two thousand five.

Present:

Hon. Thomas J. Meskill,

ilon. Joseph M.McLaughlin,

Hon. Barrington D. Parker,

CIRCUIT JUDGES,

Tunny v. Metropolitan Life Ins.

A petition for panel rehearing having been filed by

Joan Tunny

Upon consideration thereof, it is

Ordered that said petition be and hereby is DENIED.

For the Court,

Roseann B. MacKechnie, Clerk

By: /s/ [illegible]

Motion Staff Attorney

2a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

[Filed September 27, 2004] ~

SUMMARY ORDER

No. 03-7450

THIS SUMMARY ORDER WILL NOT BE PUBLSIHED

IN THE FEDERAL REPORTER AND MAY NOT BE

CITED AS PRECEDENTIAL AUTHORITY TO THIS OR

ANY OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, at Foley Square, in the City of New York,

on the 27" day of September, two thousand and four.

PRESENT:

HON. THOMAS J. MESKILL,

HON. JOSEPH M. MCLAUGHLIN,

HON. BARRINGTON D. PARKER,

Circuit Judges

--- X

JOAN TUNNY,

Plaintiff-Appellant,

-V.-

HARRY KAMEN, Chairman, President, & CEO,

Defendant,

METROPOLITAN LIFE INS. CO.

Defendant-Appellee.

- ~--- X

APPEARING FOR APPELLANT: JOAN TUNNY,

pro se,

Washington D.C.

APPEARING FOR APPELLEES: ANNEN. SMITH,

NEIL H. ABRAMSON,

Proskauer Rose, LLP

New York, NY.

UPON DUE CONSIDERATION of this

appeal from the United States District Court for the Eastern

District of New York (Dearie, /.), it is hereby ORDERED,

ADJUDGED, AND DECREED that the judgment of the

district court is AFFIRMED.

Joan Tunny, pro se, appeals from an order of the

United States District Court for the Eastern District of New

York (Dearie, J/.), granting defendant Metropolitan Life

Insurance Company’s (“MetLife”) motion for summary

judgment in her employment discrimination action brought

pursuant to Title VII of the Civil Rights Act of 1964.

Familiarity with the actual and procedural history of this case

is assumed.

We review an order granting summary judgment de

novo, and ask whether the district court properly concluded

that there were no genuine issues of material fact and that

the moving party was entitled to judgment as a matter of law.

See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300

(2d Cir. 2003). In determining whether there are genuine

issues of material fact, we are “required to resolve all

ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment is

sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

We will only affirm the dismissal of a claim on summary

4a

judgment if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of [his] claim which would

entitle [him] to relief.” Jd. (alterations in original).

The District Court properly granted MetLife’s motion

for summary judgment. All of Tunny’s claims, except for

those concerning her termination, were time-barred, as they

involved incidents that occurred more than 300 days prior to

the filing of her complaint with the Equal Employment

Opportunity Commission and did not constitute a continuing

violation. See Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 104-05, 114-15 (2002). Tunny’s discrimination

claim regarding her termination fails because, even assuming

that she had established a prima facie case of discrimination,

she did not satisfy her burden of proving that MetLife’s

proffered reason for her termination, her failure to meet

specified productivity requirements, was a pretext for

discrimination. See Tex. Dep't of Cmty. Affairs v. Burdine,

450 U.S. 248, 252-53 (1981). Tunny’s disparate treatment

and disparate impact claims fail because she did not provide

sufficient evidence to support these claims, see Ottaviani v.

State Univ. of N.Y. at New Paltz, 875 F.2d 365, 369-70 (2d

Cir. 1989) (disparate treatment). Waisome v. Port Auth.of

N.Y. & N.J., 948 F.2d 1370, 1375 (2d Circ. 1991) (disparate

impact). Finally, Tunny’s retaliation claim was properly

rejected by the District Court because she failed to

demonstrate a causal connection between her sexual

harassment complaint and her termination. See Tomka v.

Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), abrogated

on other grounds by Burlington Indus., Inc. v. Ellerth, 524

U.S. 742 (1998). -

For the foregoing reasons, the order of the District

\ Court is AFFIRMED.

FOR THE COURT: Roseanne B. MacKechnie, Clerk

/s/ Richard Alcantara, Deputy Clerk

5a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

[Filed March 26, 2003}

MEMORANDUM AND ORDER

99 CV 2531 (RJD)

Plaintiff,

-against-

METROPOLITAN LIFE INSURANCE COMPANY,

Defendant.

DEARIE, District Judge.

On May 4, 1999, pro se plaintiff, Joan Tunny

commenced this action against defendants, Metropolitan Life

Insurance Company (“MetLife” or “defendant’’) and its then

chairman, president and CEO, Harry Kamen. Plaintiff claims

she was subjected to sexual harassment, gender

discrimination and retaliation in violation in VII of the Civil

Rights Act of 1964, 42 U.S.C.§§ 2002e et seq. By

memorandum and order dated November 5, 1999, the Court

dismissed all of plaintiff's Title VII claims against Kamen

because. Title VII provides no liability for individual

defendants simply on the basis of their supervisory control

6a

over a plaintiff. The Court also dismissed plaintiff's claims

of sexual harassment against MetLife for failing to allege

sufficiently severe or pervasive incidents to state a hostile

work environment claim. Plaintiff was permitted, however,

to file an amended complaint, which she filed on November

30, 1999. By Memorandum and Order dated April 19, 2000,

the Court once again dismissed plaintiff's sexual harassment

claims, this time with prejudice, and also dismissed the

Maryland state law claims for lack of jurisdiction.

Defendant new seeks summary judgment pursuant to

Rule 56 of the Federal Rules of Civil Procedure, arguing that

plaintiff's remaining claims of discrimination and retaliation

are time-barred and that there is no admissible evidence

showing that plaintiff's termination was motivated by gender

discrimination or retaliation. This Court concludes that

plaintiff has not produced sufficient admissible evidence to

defeat a motion for summary judgment. Accordingly,

defendant’s motion is granted.

BACKGROUND

Plaintiff Tunny worked for MetLife from June 1994

until her termination in November 1997. Plaintiff first

applied for a position with MetLife in 1993 at its Fairfax,

Virginia office. She was not offered a job. The next year,

however, plaintiff was hired at MetLife’s Gaithersburg,

Maryland office as a temporary special agent. Affidavit of

Anne M. Smith (“Smith Aff. _””), Ex. E (Deposition of

Joan Tunny (“Tr. _)) at 81, 91, 94. As a temporary special

agent, plaintiff underwent “pre-appointment training” at the

Gaithersburg office from June 1994 until February 1995,

when the office closed due to corporate reorganization.

Plaintiff was then transferred to MetLife’s Silver Spring,

Maryland office. In February 1995, having completed the

pre-appointment training, plaintiff was recommended for

Ta

appointment as an account representative at MetLife by her

manager, Dr. C.R. Krishnamoorthy. Her appointment was

approved by the Regional Vice President, Tai Chang, on

February 27, 1995.

Plaintiff remained at the Silver Spring office until it

closed on December 31, 1996. Plaintiff was then transferred

to MetLife’s Wheaton, Maryland office until it too closed on

April 13, 1997. She was finally transferred to MetLife’s

Rockville, Maryland office where she worked until her

termination on November 21, 1997.

i. MetLife's Compensation Policies

MetLife evaluates its account representatives

according to the value of the life insurance policies they sell.

For each policy that they generate, account representatives

are credited with a commission. MetLife has established a

benchmark amount of commissions called the “validation

requirement” which account representatives must meet in

each of the first four quarters of employment in order to

remain employed by MetLife. Def.’s Rule 56.1 Statement, 4

8-9; “MetLife Compensation Rules and Schedules,” 1C(8-

94), 6.14, Smith Aff., Ex. M. As the Compensation Rules

explicitly state, “If the FYC [first year commission]

requirement is not met at the end of any FPQ [financing plan

quarter], the AR [account representative] is subject to

termination.” Id., emphasis in original. After the first year

of employment, this requirement is relaxed slightly; account

representatives must fail to achieve the validation

requirement for two consecutive quarters before they are

subject to termination. Smith Aff., Ex. N at 2.

The compensation of account representatives is also

tied to the number of policies they sell and their ability to

“validate”. During their first year of employment, account

8a

representatives receive a fixed weekly payment called the

Initial Payment Level (“IPL”) if they meet their validation

requirements. Id. At 1, Def’s 56.1 Statement at 9. The IPL is

established for each individual account representative prior to

appointment, and is based in large part on salary prior to

working at MetLife. Compl. § 8. If they validate, account

representatives also receive weekly payments from the

Quarterly Incentive Compensation Account and a training

allowance beginning in the third quarter. Smith Aff., Ex. N

at 1.

After the first year of employment, however, account

representatives no longer automatically receive an IPL if they

meet their quarterly validation requirements. Instead, they

are compensated according to a formula based on their

average commissions from the proceeding two quarters.

Smith Aff., Ex. M; Def.’s 56.1 Statement 911. Specifically,

account representatives are paid “1/13 of the average FYC’s

generated during the preceding two quarters, plus (for

account representatives who validate)...[a] training

allowance” on a weekly basis. Def’s 56.1 Statement ¥ 11.

Accordingly, an account representative’s compensation after

the first year may fluctuate depending on the amount of

business she is able to generate, and may even dip below the

IPL if she has not sold a sufficient number of policies.

ii. Plaintiff's Allegations

Plaintiff Tunny has raised a number of Title VI

claims against defendant MetLife. To begin, she alleges both

individual and systemic gender discrimination in her

employment and compensation at MetLife. Compl. { 8. She

claims that MetLife intentionally delayed hiring her in order

to pay her a lower Initial Payment Level, a calculation based

on pre-hire earnings. Pl.’s Answer to Defendant’s Motion for

Summary Judgment (“Pl.’s Reply’) at 2, 4-5, 13, 19.

9a

Additionally, plaintiff alleges that she was “told [she] should

write lower face amount insurance policies for [her] women

clients,” both an indication of how MetLife undervalues the

insurance needs of its female clients and a specific attempt to

discourage her from reaping the greater commissions that

would flow from selling higher face value policies. Compl.

8; Amend. Compl. at 12; Pl.’s Reply at 13. Furthermore,

plaintiff asserts that when she requested a transfer out of the

Silver Spring office in 1995, the Agency Vice-President

Chang told her that she “had no options,” while a male

employee was allowed to make a transfer out of Silver Spring

that same year. PI.’s Reply at 6; EEOC Questionnaire J 15-

22.

Looking at MetLife systemically, plaintiff claims that

women have “inordinately low earnings and retention,”

earning only 25% of what men earn and comprising only

20% of the account representative population. Amend.

Compl. At 13-14; Pl.’s Reply at 23-24. Moreover, few

managers at MetLife are women, and nearly all of the award-

winning employees are men. Pl.’s Reply at 13- Plaintiff also

points to the cancellation of the Women’s Community

Celebration, an event planned by plaintiff to allow account

representatives to invite their women clients and prospects to

visit MetLife, as further evidence that MetLife discriminates

against female account representatives and clients. Amend.

Compl. At 14.

Plaintiff also asserts that MetLife’s facially neutral

compensation policies had “an adverse impact on Plaintiff

and women account representatives overall.” Pl.’s Reply at

3. Plaintiff bases this claim on two lines of reasoning: 1) that

the competitive nature of MetLife’s commission-based

compensation structure makes it more difficult for women to

succeed due to their less competitive socialization (Tr. 228-

29), and 2) that while the compensation system is ostensibly

10a -

based on an account representatives having “placed” a certain

number of applications within a quarter, it is in fact

contingent on how quickly applications are processed by the

support staff (since only processed and approved applications

count toward the validation requirement), leaving room for

disparate treatment by the staff in choosing how quickly to

process an individual’s applications, Pl.’s Reply at 9-10.

Plaintiff states that she was told that the processing of

applications should take only two to three weeks, while

several of her applications took five to six weeks to process,

causing her to miss validation requirement deadlines and to

fail to validate. P1.’s Reply at 9. Plaintiff surmises that since

men make up 80% of the account representatives at MetLife

and seem to be the most successful MetLife employees, other

women must have experienced similar delays in processing.

Pl.’s Reply at 10.

Plaintiff has also alleged a sexual harassment and .a

related retaliation claim against MetLife. While plaintiff's

hostile work environment claim was dismissed by this Court

in April 2000, its relationship to the remaining retaliation

claim necessitates a recounting of plaintiff's assertions. She

alleges that on one occasion during the Spring of 1995, in the

office making evening sales calls, she witnessed a male

associate verbally harass and make sexual advances towards

female members of the cleaning staff. Compl. § 8; EEOC

Questionnaire § 113. As she states, “Mr. Stewart would

disrupt the cleaning women while they were at work and

force them into conversation which demanded they admit

they ‘loved’ Mr. Stewart.” EEOC Questionnaire { 123.

Additionally, plaintiff maintains that in August 1995, another

male account representative, Munwar Zariwala, sat in the

entrance to the office in cotton short with a “full erection of

his penis showing through his outfit.” Attachment to

Complaint (“Attach.”) 6b; see Tr. 175.

lla

Plaintiff lodged a written complaint about these two

events on December 14, 1995, in a letter to Dr.

Krishnamoorthy, which was forwarded to John Butler,

Regional Vice President and other MetLife administrators.

EEOC Charge J 67-71, Attach. 10a, 10b; Smith Aff., Ex. S.

Plaintiff also took the opportunity in the letter to complain

about how her work was being negatively affected by

inappropriate shouting, lost and delayed mail, and the fact

that she had not received a laptop computer or a

compensation manual. Id.; see Amend. Compl. at 8.

Mr. Butler responded in writing in January 1996 that

after a thorough investigation her allegations “were found to

be without factual support and lacked merit.” EEOC Charge ©

4] 67-71, Attach. 10a 10b; Smith Aff., Ex.S. Plaintiff wrote

back to Mr. Butler on January 20,1997, arguing that because

she was excluded from the investigation, she questioned “its

thoroughness.” EEOC Charge, Attach. 8a; Smith Aff., Ex.V.

Regional Administrator Kathy Britton responded to this letter

on March 13, 1997, explaining that plaintiff had never been

interviewed for the investigation because her “position was

felt to have been clearly stated in your December 14"

memorandum ..., and the finding were such that there was no

factual evidence of your allegations.” Smith Aff., Ex.W.

Plaintiff states in her complaint that despite repeated requests

to MetLife made by herself and her attorneys, she was never

provided with a copy of the investigation file so that she

would properly respond to MetLife’s findings. EEOC

Charge 4 71, Attach. 8a, 10B; Pl.’s Reply at 14.

Plaintiff contends that as a result of lodging this

complaint, she was subjected to retaliatory treatment which

ultimately resulted her termination. Compl. 4 8.

Specifically, plaintiff alleges that the day she filed the

complaint with Krishnamoorthy, her car windshield was

damaged in the MetLife parking lot. EEOC Charge 4 122.

12a

Krishnamoorthy, she asserts, also verbally abused her and

repeatedly interrupted her telephone conversations with

prospective clients. EEOC Charge ff 113, 114, 123. When

she complained about such treatment, plaintiff maintains that

Krishnamoorthy told her that if she was not happy with her

_Job, she should quit. EEOC Charge 4 58.

Plaintiff states that she also encountered “excrement

on the conference room floor ... [which she] believes was an

attempt to intimidate her and cause her to quit. P1.’s Reply ait

6. Other retaliatory actions included the loss and

misplacement of plaintiffs mail from potential clients,

physical damage to several of her completed insurance policy

forms, and a delay in the receipt of her compensation manual.

Amend. Compl. At 8. Plaintiff also contends that an

application which would have resulted in a_ sizable

commission that she submitted night after she lodged her

complaint was inexplicably declined by MetLife. Pl.’s Reply

at 14. Moreover, three of plaintiff's applications that were

pending in February 1966 were processed too slowly for her _

to receive commission credit by her quarter’s end. PI.’s

Reply at 38. As plaintiff states, “I believe these actions were

purposely instigated to get me to resign voluntarily.” EEOC

Charge { 58.

Such treatment, plaintiff contends, created an

environment which made it difficult for her to be successful

in her work and meet her validation requirements.

Additional unpleasant experiences, such as a burglary at the

Silver Spring office and the distribution of a bomb threat

procedures manual, made plaintiff feel unsafe at the office

and reluctant to work there, further damag:ag her business

prospects. Amend. Compl. at 708; Tr. 198-204. Plaintiff

also claims that MetLife directly reduced her income in

retaliation for her complaint. As she states, “At year end,

immediately following a written complaint to her agency

13a

Manager, Dr. Krishnamoorthy, regarding the difficulties

Plaintiff was experiencing in the New Hampshire office,

Plaintiff's income began to decline.” PI.’s Reply at 6.

Upon her transfer to the Wheaton office in October

1966, plaintiff claims that her business improved. She would

have validated, she contends, but she was prevented from

doing so because of further processing delays and defendant’s

deliberate rejection of some of her applicants in order to

prevent her from breaking into a potentially lucrative market

controlled by a successful male account representative.

Amend. Compl. She would have validated, she contends, but

she was prevented from doing so because of further

processing delays and defendant’s deliberate rejection of

some of her applicants in order to prevent her from breaking

into a potentially lucrative market controlled by a successful

male account representative. Amend. Compl. At 9-10; PI.’s

Reply at 31. Faced with the prospect of not validating,

plaintiff submitted a request through her new office manger,

Alex Chow, for a “setback” to count the unprocessed

business that was pending during the weck of the validation

deadline. Amend. Comp. At 9. This request was denied.

Instead, MetLife offered plaintiff an extension of time to

meet her validation requirements, which she accepted. Smith

Aff., Ex. P. Plaintiff claims she oaly accepted this extension

because she believed that defendants were still investigating

her sexual harassment complaint. Compl. 4 8. However, in

hindsight, plaintiff contends, she realizes that the extension

was not offered in good faith, but rather, “to forestall [her]

filing a legal action.” Compl. { 8.

Plaintiff regards the closure of the Wheaton office as

yet another instance of defendant’s efforts to retaliate against

her and to thwart her career. As she states, “again, Plaintiff

was made to moved [sic] to another office disrupting her

work routine and requiring acclimation to a new office

~ 14a

environment.” P1.’s Reply at 17. Plaintiff was transferred to

the Rockville office in April 1997. There, plaintiff contends,

yet another of her prospective client’s insurance application

was unjustly denied. Specifically, MetLife denied the policy

because they had received information suggesting that the

applicant had possible suicidal tendencies. Amend. Compl.

At 10-11; Tr. 455053. Plaintiff alleges that the denial of the

policy was retaliatory in nature because the applicant never

told her about the suicide attempt, the applicant’s doctor was

never called to confirm the suicide attempt, and the

underwriter who denied the loan “yelled at” plaintiff. Tr.

454-55; Amend. Compl. at 10-11; EEOC Charge ¥ 30.

Moreover, it was a “loss of a sizeable commission to

Plaintiff and again affected her ability to validate.” Amend.

Compl. At 11.

All of these instances of discrimination and

retaliation, plaintiff contends, combined to make her

incapable of doing her job. She failed to validate for two

consecutive quarters, and consequently, on November 21,

1997, MetLife terminated her employment. _ Tr. 650-51;

Smith Aff., Ex. H. On April 16, 1998, plaintiff filed charges

of discrimination with the Balttmore EEOC. The EEOC

issued plaintiff a Right to Sue letter on February 16, 1999.

The instant action followed.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party id entitled to judgment as a matter of law.”

Fed.R.Civ.P.56(c). While the moving part bears the initial

1Sa

burden of showing that there are “no genuine issues of

material fact,” once such a showing is made, “the non-

movant must ‘set forth specifics facts showing that there is a

genuine issue for trial.” Weinstock v. Columbia Univ., 224

F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L Ed. 2d

202 (1986). :

In determining whether there are genuine issues of

material fact, the court must view the evidence “in the light

most favorable” to the non-moving party. Anderson, 477

U.S. at 255. Moreover, when summary judgment is opposed

by pro se plaintiff, the Court must “read [the pro se party’s]

supporting papers liberally, and ... interpret them to raise the

strongest arguments that they suggest.” Burke v. Royal

Insurance Co., 39 F.Supp.2d 251, 257 (E.D.N.Y. 1999),

quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994);

reh’g granted on other grounds, 914 F.Supp. 1004

(S.D.N.Y.1996); see also Graham v. Lewinski, 848 F.2d 342,

344 (2d Cir. 1988) (noting that “special solicitude should be

afforded pro se litigants generally, when confronted with

motions for summary judgment.”)

Nevertheless, “conclusory statements, conjecture or

speculation by the party resisting the motion will not defeat

summary judgment.” Kulak v. City of New York, 88 F.3d

63, 71 (2d Cir.1996). Indeed, even a pro se plaintiffs “bald

assertion, made without evidentiary support ... is not

sufficient to overcome a motion for summary judgment.”

Burke, 39 F. Supp.2d at 257, quoting Lee, 902 F. Supp at

429. To defeat a motion for summary judgment, a pro se

plaintiff, like any other non-moving party, must submit

admissible evidence sufficient to support a finding in her

favor ...” Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d

Cir. 2001); see Fed.R.Civ.P. 56(e). Such evidence can come

in the form of “affidavits ... made on personal knowledge” or

l6a

“depositions, answer to interrogatories, or further affidavits.”

Fed.R.Civ.P.56(e). Moreover, Rule 56(e) holds that:

[when] a motion for summary judgment is

made and supported as provided in this rule,

an adverse party may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there

is a genuine issue for trial. If the adverse party

does not so respond, summary judgment, if

appropriate, shall be entered against the

adverse party.

Rule 56(e).

In the instant case, plaintiff has largely failed to meet

her burden of coming forward with admissible evidence to

show there are genuine fact issues for trial. While she has

submitted one sworn affidavit from her former prospective

clients, Lucy Duff and Robert Woodruff, the two other

affidavits she submits are unswom and thus carry no

weight.”’

Even more significantly, plaintiff has provided no swom

'The unsworm affidavits are from Jane Kelso, a friend and

prospective client of plaintiff's, and Joseph Cappello, whose relationship

to the case at bar is unclear. The one sworn affidavit from Lucy Duff and

Robert Woodruff speaks largely to their experience applying for a

Survivorship Whole Life policy from MetLife, encountering delays in the

application’s processing and ultimately having the application declined by

MetLife. While the affidavit does lend credence to plaintiff's allegations

of delayed processing, it is not sufficient, as the sole sworn affidavit by

plaintiff, to serve as evidentiary support for all of the allegations in her

complaint.

17a

complaint are true.” Instead, plaintiff rests her opposition

to summary judgment upon further unsworn allegations in

her-legal memorandum, and on the facts contained in the

accompanying twelve documents. As this Circuit has held,

however, allegations contained in legal memoranda “are not

evidence and cannot by themselves create a genuine issue of

material fact where none would otherwise exist.” Marks v.

Nat’] Communications Ass’n, Inc., 72 F.Supp. 2d 322, 334

(S.D.N.Y. 1999) (quoting SEC v. Research Automation

Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Furthermore, the

twelve attachments to plaintiff's brief* provide little, if any,

Plaintiff was fully informed of these requirements, having been

sent the Notice to Pro Se Litigant Opposing Motion for Summary

Judgment from defendant on April 16, 2001. This notice explicitly states:

“In short, Rule 56 provides that you may NOT oppose summary judgment

simply by relying upon the allegations in your complaint. Rather, you

must submit evidence, such as witness statement or documents,

countering the fact[d]s asserted by the defendant and raising issues of fact

for trial. Any witness statements, which may include your own

statements, must be in the form of affidavits.”

*3The attached documents, which are not identified by affidavit,

appear to include; a help wanted ad dated February 7, 1993 from

MetLife’s Fairfax, VA office; a letter dated April 27, 1994 from MetLife

Branch Manager Sanjay Jain explaining that while there are no suitable

openings for plaintiff at that time in the Fairfax office, there are

opportunities in the Gaithersburg, MD office; an excerpt from MetLife’s

Compensation policy describing the calculation of the Initial Payment

Level; a chart comparing the median earnings of men versus women in

selected occupations in 1997 from the U.S. Department of Labor; the

MetLife Compensation policy; a chart of the processing times of

plaintiff's applications; plaintiffs “Weekly Statement of Commissions

and Record of Premiums Remitted”; an excerpt from Defendant’s

Response to Plaintiff's Interrogatories; plaintiffs weekly pay statements

from 3/1/96 to 1/9/98; plaintiff's “Record of Payments Receive Since Last

Deposit,” dated 1/4/95; a letter dated 2/12/97 from Attorney James

Forrest King to plaintiff regarding the Montgomery County HRC

Questionnaire, stating “I don’t see an need to be proactive with our

complaint at this juncture”; the commission and income statements of 13

MetLife employees, both male and female; and a letter from plaintiff to

18a

evidentiary support for the myriad allegations of

discriminatory or retaliatory treatment raised by plaintiff's

complaint.

The Court therefore finds that plaintiff has failed to

meet the requirements of Fed.R.Civ.P.56(e). Summary

judgment is appropriate on this ground alone. However, in

view of Tunny’s status as a pro se party, the Court will, for

purposes of analysis, consider the assertions of fact in

plaintiff's complaints and legai memorandum and evaluate

the motion in light of the entire record of submissions before

the court.

B. Timeliness and the Continuing Violation Doctrine

It is well-established that a plaintiff bringing suit

under Title VII must first file a claim in a timely manner with

the EEOC or a state civil rights agency. See Castellano v.

City of New York, 142 F.3d-58, 72 (2d Cir.1998). Failure to

do so will result in one’s claims being dismissed. Van Zant

v. KLM Royal Dutch Airlines, 80 F.3d 708, 172 (2d Cir.

1996). The time limit for filing with the EEOC in a state that

has a state or local equal employment agency is 300 days

from the date of the adverse employment practice. Nat’] R.R.

Passenger Corp. V. Morgan, No. 00-1614, 2002 WL

1270268, at *5 (U.S. June 10, 2002). Accordingly, only

discriminatory incidents that take place in the 300 days prior

to the date of filing are actionable.

Plaintiff filed her discrimination and retaliation

charge with the Baltimore, Maryland office of the EEOC on

MetLife employees, both male and female; and a letter from plaintiff to

the Deputy Superintendent of Schools in Prince George’s County dated

9/8/94, expressing interest in selling insurance to the teachers in the

district.

19a

Court ruled that “absent some exception, all of plaintiffs

claims of discrimination based on incidents that occurred

prior to June 20, 1997 are time barred.” Order at 24. Thus

the only discriminatory act alleged by plaintiff that is not time

barred is her termination, which occurred on November 21,

1997.

The Court left open the possibility, however, that

some of plaintiff's time-barred claims might be considered

part of a “continuing violation” or may otherwise be evidence

of discriminatory intent. Order at 26. Under the continuing

violation doctrine, time-barred claims may still be addressed

by the court “where there is proof of specific ongoing

discriminatory policies or practices, or where specific and

related instances of discrimination are permitted by the

employer to continue unremedied for so long as to amount to

a discriminatory policy or practice.” Quinn v. Green Tree

Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (citing

Cromwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).

While this doctrine has~been interpreted by some court to

have two prongs—one for ongoing discriminatory policies and

practices and another for discrete discriminatory acts outside

of the limitations period that are related to the discriminatory

acts within the limitations period, the Quinn Court noted that

only the former prong was correct. “[Mlultiple incidents of

discrimination, even similar ones, that are not the result of a

discriminatory policy or mechanism do not amount to a

continuing violation.” Quinn, 159 F.3d at 765, quoting

Lambert_v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.1993).

Moreover, as the Supreme Court recently clarified, “We hold

that the statute precludes recovery for discrete acts of

discrimination or retaliation which occur outside the statutory

time period.” Morgan, 2002 WL 1270268, at *3. Hence,

only the ongoing policy and practice theory of continuing

violation, and not the discrete related acts theory, is still

viable. *

This Court held in its November 1999 order that

“Plaintiff does not allege that the purported acts of sexual

harassment or retaliation are the result of an official policy or

practice of the defendants,” but left open the possibility of a

discrete acts continuing violation. Order at 25. However,

this line of reasoning is now foreclosed in light of the

Supreme Court’s opinion in Morgan. Plaintiff, however,

argues in her brief that she “has claimed a continuing

violation through the existence of an official policy or

mechanism.” P1.’s Reply at 19 (emphasis added). She points

in her brief to MetLife’s policies of capping an account

representative’s IPL at their pre-hire income and the quarter

validation requirements as “evidence of policies and

procedures through which disparate treatment occurs ...

result[ing] in gender discrimination at MetLife. Pl.’s Reply

at 19. She also recites the litany of mistreatment detailed

above, from “continuous harassment for a lengthy period of

time” to the delays in processing her applications, as

evidence of MetLife’s “policy” of retaliation. Pl.’s Reply at

20.

While it is possible that MetLife’s rules capping the

IPL at pre-hire income and _ compelling account

representatives to meet quarterly validation requirements

could constitute “policies” under a continuing violation

theory, plaintiff has not submitted sufficient evidence for a

reasonable jury to show that the pre-hire incomes of the

women joining MetLife as account representatives are

decidedly less than those of the men joining MetLife as

“The Supreme Court preserved the discrete acts theory,

however, for claims alleging a hostile work environment. See Morgan,

2002 WL 1270268 at *2. However, this Court dismissed plaintiff's

hostile work environment in its order of November 10, 1999. Order at 23.

2la

account representatives, or that women’s IPLs at MetLife are

as a whole lower than men’s.” Nor has she offered any

evidence tying the quarterly validation requirements to

disparate treatment of women and men at MetLife beyond her

speculation about women’s less competitive socialization.

Moreover, the other mistreatment detailed by plaintiff has

been held by most courts to constitute “discrete acts” of

discrimination, rather than a “policy or practice” of

discrimination. As Crosland v. City of New York held, “It is

well-settled that ... transfers, demotions, [and] failure to

compensate adequately ... are all discrete acts which do not

constitute a continuing violation.” Crosland v. City of New

York, 140 F.Supp.2d 300, 308 (S.D.N.Y.2001). See also

Lambert, 10 F.3d at 56 (holding that “multiple instances of

discrimination, even similar ones .. do not amount to a

continuing violation.”) According, I find that plaintiff failed

to make out a case for continuing violation.

Plaintiff has submitted one page of general labor force data

showing that women’s weekly earnings in different professions are

uniformly lower than men’s. See Pl.’s Reply, Attachment 3, “Earnings in

Selected Occupations 1997,” U.S. Department of Labor. However, such

general data tells us nothing about the comparative pre-hire salaries of the

men and women selected by MetLife to become account representatives,

or their resulting IPLs. As Wards Cove Packing Co. has held, in order to

prove through statistics that an employer’s policy or practice has a

disparate impact, a plaintiff must present statistics from the “relevant

labor market.” Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 650

(1989). In this case, relevant labor market data should at the very least

include data regarding the comparative pre-hire incomes of MetLife male

and female account representatives and their comparative IPLs.

Alternatively, plaintiff could make some showing that the “figures for the

general population... accurately reflect the pool of qualified applicants,”

thus justifying her reliance on the general population statistics to prove

her case. See Teamsters v. United States, 431 U.S. 324, 340, n. 20

(1977); Dorthard v. Rawlinson, 433 U.S. 321, 329-330 (1977). Plaintiff

has made neither showing, however, in the instant case. Accordingly, we

find that plaintiff has failed to make out a continuing violation based upon

defendant’s policy of capping IPLs at pre-hire incomes.

1. Equitable Doctrines

Although plaintiff does not meet the requirements for

a continuing violation, the time bar for some of her claims

could still nonetheless be waived under a theory of equitable

tolling. See Zipes v. TransWorld Airlines, Inc., 455 U.S.

385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). While

courts have discretion to decide when to apply these

doctrines, the general rule is that “they are to be applied

sparingly.” Morgan, 2002 WL 1270268, at *7. Equitable

tolling, for example,-is reserved for instances in which “the

complainant has been induced or tricked by his adversary’s

misconduct into allowing the filing deadline to pass,” where

the plaintiff has received inadequate notice, where the

plaintiff has “actively pursued his judicial remedies by filing

a defective pleading during the statutory period,” or where

the court has led the plaintiff to believe that she has done all

that was required of her. See Van Zant, 80 F.3d at 713

(citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96,

111 S.Ct.453, 112L.Ed.2d 435 (1990)); South v. Saab Cars

USA, Inc., 28 F.3d 9, 11-12 (2d Cir.1994).

None of these scenarios, however, matches the facts

of the case at bar. Although plaintiff alleges that MetLife

granted her an extension to validate in order to prevent her

from taking legal action (Compl. 98; Pl.’s Reply at 39),

plaintiff has submitted no evidence to support this assertion —

no proof that MetLife was aware that she was considering a

legal claim or that the extension was in any way granted in

contemplation that she drop her claim In fact, plaintiff

acknowledges in her deposition that before she received her

extension, she had already sought legal counsel and had

chosen not to file a claim Tr. 546, 549-57. Such situations do

not qualify for equitable tolling. See Madera v. Metropolitan

Life Insurance, No. 99 CIV. 4005, 2002 WL 1453827, *4

(S.D.N.Y. July 3, 2002) (holding that inequitable tolling is

inappropriate where plaintiff, aware of the adverse conduct,

delayed filing a complaint hoping defendant-employer

“would turn from its discriminatory and retaliatory ways.”)

. Plaintiff's final attempt to make out an equitable

claim is her explanation that she did not file a discrimination

charge with the EEOC because she did not realize that she

was being retaliated against “until [the ‘nebulous acts’] led to

her termination. Pl.’s Reply at 18. However, her evidence to

support this claim is also equivocal. Indeed, plaintiff states

that she sought the advice of an attorney in 1995, but did not

file her complaint until 1997, indicating an awareness in

1995 that she might have some grounds for legal action. Id.

She also explains that although she was aware in early 1966

that MetLife had closed the investigation into her complaint,

she chose not file with the EEOC at that time because she

“was being successful at [the] Wheaton [office].” Tr. 540-

50.

Courts have rejected similiar arguments as a grounds

for relief from the time bar. In Van Zant, for instance, the

Court rejected plaintiff's argument that since it was unclear

how the “events at issue ... wou'ld play out, the 300-day time

bar should not prevent consideration of those events.” Van

Zant v. Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir.

1996). Indeed, as the Court stated, “The timeliness of a

discrimination claim is to be measured from the date the

claimant had notice of the allegedly discriminatory action.”

See also Jarmon v. Powell, No. Civ.A. 01-0580, 2002 WL

1431403, at *6 (D.D.C. July 2, 2002) (holding “plaintiff's

lack of diligence cannot be excused” where there is evidence

that plaintiff was aware an on-going investigation had been

completed). Since there is evidence to suggest that plaintiff

had notice that she had grounds for legal action as early as

1995 and that she voluntarily delayed filing until November

24a

1997, one year and ten months after she had notice that

MetLife’s internal investigation had been completed, this

Court finds no ground for granting plaintiff a waiver of the

time bar. Hence, all claims other than the timely

discrimination and retaliation claims based on plaintiff's

termination are hereby dismissed.

C. Gender Discrimination

Title VII gender discrimination claims are subject to

the burden-shifting analysis spelled out in McDonnell

Douglas Corp. V. Green, 411 U.S. 792, 802-04 (1973).

Under this analysis, the plaintiff bears the initial burden of

establishing a prima facie case that she was the victim of

discrimination. Texas Dep’t. Of Comm. Affairs v. Burdine,

450 U.S. 248, 252[0]53 (1981). To make out a prima facie

case, a plaintiff must show by a preponderance of evidence

that:

(1) she is a member of a protected class; (2)

she satisfactorily performed the duties of her

position; (3) she was subjected to. an adverse

employment action; and (4) the adverse

employment action occurred in circumstances

giving rise to an inference of discrimination

on the basis of his membership in the class.

Adeniji v. Admin. for Children Servs., NYC, 43 F.Supp. 2d

407, 418-19 (S.D.N.Y. 1999), aff'd, 201 F.3d 430 (2d Cir.

1999). Once a plaintiff has made such a showing, the burden

of production then shifts to the defendant, who must rebut the

prima facie case by producing a legitimate reason supported

by admissible evidence for his actions. The burden of

production is not onerous; as the 2" Circuit has stated, “[a]ny

legitimate, nondiscriminatory reason will rebut the

presumption triggered by the prima facie case.” Fisher_v.

25a

Vassar College, 114 F.3d 1332, 1335-36 (2d Cir.1997).

Once the employer has articulated a legitimate, non-

discriminatory reason, the plaintiff must show that the reason

proffered by the employer is in fact a pretext for

discrimination in order to prevail. ‘Indeed, “the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” St. Mary’s Honor Ctr. v. Hicks,

509, U.S. 502, 507 (1993).

Here, the defendant does not contest plaintiff's claim

that she has established a prima facie case of gender

discrimination in her discharge. Instead, defendant moves

directly to proffering a legitimate non-discriminatory reason

for plaintiffs termination — namely, that plaintiff was

discharged for failing to meet “the stated minimum validation

requirements in two successive quarters.” Def’s. Memo at

17. Defendant points out that plaintiff conceded both in her

responses to their Requests for Admission and in her

deposition testimony that her termination was due to her

failure to validate. Def.’s Memo at 18-19; See Smith Aff.,

Ex H.

At this point in the analysis, the burden reverts to the

plaintiff to show that this proffered reason is false and that

“more likely than not the employee’s [gender] was the reason

for [the adverse decision].” Hold v. KMI-Continental, Inc.,

95 F.3d 123, 129 (2d Cir.1996), cert. denied, 117 S.Ct. 1819

(1997). This Court finds that plaintiff has failed to meet her

burden.

While plaintiff charges in her brief that “MetLife’s

reason for Plaintiffs termination is a pretext for

discrimination” (PIl.’s Reply at 3), she provides no evidence

to support this allegation. Furthermore, she offers no

26a

evidence to suggest that those who had a hand in terminating

her — her- manager, Peter Bjerke, and the Regional Vice

President, John Butler — ever displayed any kind of gender

animus toward her. Butler, on the contrary, agreed to grant

plaintiff an extension of time to validate, thus forestalling an

imminent termination and effectively granting plaintiff a

second chance to remain employed at MetLife. As several

courts have held, evidence of such positive treatment by an

employer tends to undercut an inference of discriminatory

motive in their ultimate termination. See Rodriguez v. Am.

Friends of Hebrew Univ., Inc., 96 Civ. 0240, 2000 WL

1877061 at *5 (S.D.N.Y. Dec. 26, 2000) (“As the Second

Circuit has noted, it is difficult to impute bias against

plaintiff's protected class(es) where the person who made the

adverse employment decision also made a favorable

employment decision regarding plaintiff.”); Littman _ v.

Firestone Tire & Rubber Co., 709 F.Supp. 461 (S.D.N_Y.

1989). ° Plaintiff also fails to point to any similarly-situated

*Plaintiff does not attempt to claim that the extension

which she requested and which was granted by Butler was in

fact “a pretext to mask retaliation and gender discrimination

on the pat of MetLife” (Pl.’s Reply at 28), but the evidence

she points to in support of this charge, namely that MetLife

did not grant her the requested setback of her unprocessed

businesses and that her income declined as a result—does not

support this conclusion. Plaintiff points to nothing in

MetLife’s Compensation policies that supports her argument

that compensation setbacks ought to have been granted to

some one in her situation — indeed, there is no mention of

“compensation setbacks” anywhere in_ the policies.

Moreover, the decline in plaintiff's income occurred just as

the letter from Butler granting her extension stated it would.

Letter from John Butler, December 16, 1966, Smith Aff., Ex.’

P (“If any of the cumulative financing limits would be

exceeded by a weekly payment, then the payment must be

27a

individuals — namely, male account representatives who

failed to validate for two consecutive quarters and were not

discharged.

Instead, plaintiff seems to rest her charge of

discriminatory motive on a ~variety of pretermination

experiences that she attributes to her gender as well as her

claim of systemic gender discrimination in MetLife’s

practices and policies. While this Court has held above that

plaintiff's pre-termination treatment is not actionable as an

independent claim due to the time bar, the evidence of such

treatment may still be probative of gender animus in the

decision to terminate her. Plaintiff, however, fails to point to

any such admissible evidence that would support an inference

of discrimination.

Plaintiff's evidence of pre-termination gender animus

includes her claims that: 1) her hiring was intentionally

delayed a year so that MetLife could pay her a lower IPL,

thus forcing her to start with a “an initial income lower than

that of male account representatives” and reducing “the

expectations of MéetLife’s management regarding her

earnings and career potential” (Pl.’s Reply at 4), 2) she was

told by MetLife advisor to write lower face amounts for

female clients’ policies (Tr. 34-55, 607), 3) her request for a

transfer out of the Silver Spring office was denied while the

request of a male was granted (Pl. Memo at 6), 4) her

business was processed at a slower rate than other male

account representatives (Compl. 4 8), 5) she was berated by

her manager and an underwniter (Amend. Compl. at 8), and

6) several of her clients’ policies were rejected, both because

of her gender and that of her female clients (Tr. 450;

limit.” Hence, plaintiff, has not presented any evidence to

persuade the Court that the extension was in any way granted

in bad faith.

28a

6) several of her clients’ policies were rejected, both because

of her gender and that of her female clients (Tr. 450;

Amend.Compl. at 11; Pl.’s Reply at 9).

However, plaintiff's support for all of these claims,

not to mention their probative value in showing gender

animus by MetLife, is equivocal at best. Indeed, her only

evidence to suggest that MetLife intentionally delayed hiring

her for one year so that it could bring her in at a lower IPL is

her own speculation that since MetLife was advertising for a

position the first year she applied, they must have been

disingenuous when they told her that there were “no suitable

openings” for her that year. Pl.’s Reply at 4. However, such

speculation into MetLife’s motives has very little probative

weight—indeed, MetLife could have had innumerable other

reasons why they did not hire plaintiff that year. Plaintiff

offers nothing to show that MetLife had any knowledge of

her changed income position between the time it denied her

the Fairfax position and the time it offered her the

Gaithersburg position, or that her decrease in income was the

reason they decided to make her the Gaithersburg offer.

Moreover, plaintiff has not shown that her initial income was

necessarily lower than all of the male account representatives

at MetLife. Hence, this entire first claim provides little if any

evidence of gender animus by MetLife.

Plaintiff's claim that she was told to write lower face

amounts for her female clients is similarly flawed. In short, it

is not clear that any suggestion of that nature was ever made

to plaintiff, or if made, that the suggestion in any way had a

discriminatory intent. In fact, plaintiff acknowledges that the

person who made the suggestion, someone whom plaintiff

has trouble identifying with certainty, simply suggested that

she writer lower face amounts so as to reduce the nsk in her

business. Tr. 33-34. As she states, “I assumed that it was to

reduce the risk if there were lapses, the risk to me. That was

29a

was directed at plaintiff's female clients. Hence, the

deposition testimony is illustrative:

Q: Did he specifically say women or was that

your conclusion based on the fact that you

mostly wrote for women?

A: We were talking about my clients, my

market, as being primarily women so I

assumed if he was talking about my market

and my client base that he meant women.

Q: He didn’t actually say women?

A: I don’t recall, I really don’t.

Q: He could have been speaking about any of

your clients?

A: He may have been.

Q: Including males?

A: Right, but at that time I only had maybe

one male. (TR. 35-36)

As this testimony reveals, plaintiff cannot state conclusively

that in making this suggestion, defendant was either

motivated by a desire to harm her or by a desire to cap the

insurance policies of women specifically. Hence, this

evidence also fails to support an inference of gender

discrimination. __

Plaintiff's third cited experience-being denied a

transfer out of the Silver Spring office while her male

colleague, Alan Reid, was granted a transfer—also fails to

lend support to any inference of discrimination. As

defendant points out, Mr. Reid was the Silver Spring office

manager while plaintiff was simply an _ account

representative; therefore, the two parties are not similarly

situated and thus not suitable for comparison. Moreover, the

denial of a single transfer to a female employee and the grant

of a transfer to one male employee in a different position is

30a

denial of a single transfer to a female employee and the grant

of a transfer to one male employee in a different position is

hardly probative of gender discrimination.

Plaintiff's next claim, that her applications were

processed at a slower speed than those of male account

representatives, is also weak. Plaintiff relies on the hearsay

statements of two MetLife employees, Eileen McCullough

and Samuel Pastor, to support the contention that processing

time should average two to three weeks, but does not supply

any affidavits from these individuals to confirm these

statements. Furthermore, plaintiff's contention that “her

business averaged five to six weeks to process” is not borne

out by the data that she supplies. PI.’s Memo, Attachment 5.

Indeed, while it appears that approximately 40% of her

applications took more than 3 weeks to process, the majority—

a full 60% of her applications—were processed in under 3

weeks. Lastly, plaintiff concedes in her deposition testimony

that processing speed was most likely based on productivity

levels and experience, not gender. Tr. 51-52, 428. All of

these factors point away from an inference of discrimination.

Plaintiff's final two claims, that she was berated by

her supervisor Krishnamoorthy and an underwriter, and that

some of her policies were unjustly rejected, also fail to

provide much probative weight. Regarding her ill-treatment ~

by Krishnamoorthy, plaintiff admits that male representatives

received the same treatment and that in fact, Krishnamoorthy

“seemed to be more at ease with the women.” Tr. 151-52.

Her experience of being yelled at by one underwniter reveals

no clear link to gender animus. Finally, plaintiff admits that

her applications that were rejected due to MetLife’s various

approval policies, not “for no justifiable reason” as she states

in her memorandum. Tr. 445, 454; Pl’s Memo at 13.

Furthermore, plaintiff acknowledges that in one case of

which she complains, she improperly submitted an

3la

454-55.

Plaintiff's claim of systemic disparate treatment at

MetLife fares no better. A systemic disparate treatment

claim requires that a plaintiff prove by a preponderance of the

evidence “more than the mere occurrence of isolated or

‘accidental” or sporadic discriminatory acts”; indeed, a

plaintiff must show that “discrimination was the company’s

standard operating procedure the regular rather than the

unusual practice.” International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 336 (1977). To make out a

pattern or practice claim, a plaintiff must typically introduce

evidence of “statistical disparities,’ see Hazelwood School

Dist. v. United States, 433 U.S. 299, 307-308 (1977).

Moreover, when statistics are introduced in a pattern or

practice case, “plaintiffs typically use multiple regression

analysis to isolate the influence of gender on employment

decisions relating to a particular job or job benefit, such as

salary.” Ottaviani v. State Univ. of New York at New Paltz,

875 F.2d 365, 366 (2d Cir.1989); see Sobel v. Yeshiva Univ.,

839 F.2d 18, 21-22 (2d Cir.1988); EEOC v. Sears, Roebuck

& Co., 839 F.2d 302, 324-25 & n. 22 (7" Cir.1988); Palmer

v. Schultz, 815 F.2d 84, 90-91 (D.C.Cir.1987). Such

regression analyses help the Court determine whether the

apparent disparities between the groups are truly the product

of discrimination, some other factor or chance. Indeed, as

Ottaviani cautions, “Not all disparities, however, are

probative of discrimination. Before a deviation from a

predicted outcome can be considered probative, the deviation

must be ‘statistically significant.’” Ottaviani, 875 F.2d at

370.

In the instant case, plaintiff's evidence of a pattern of

discrimination by MetLife is simply insufficient for a

reasonable jury to infer discrimination. While she argues that

female account representatives at MetLife have lower

32a

reasonable jury to infer discrimination. While she argues that

female account representatives at MetLife have lower

earings and retention than males, which she also claims is

reflected in the fact that few managers and award winners in

the company are women, she offers only her own self-styled

statistical analysis of earings statements as support. P1.’s

Memo, Attachment 11. This analysis largely turns on her

calculation that the earnings of the highest male

representatives “are 400% the earnings of women.” PI.’s

Memo 25.

Plaintiff's own statistical calculations, however, are

questionable at best. Her “400%” figure is derived from a

comparison of the annual earnings of the highest earnings

male from January 1995 to January 1998 ($195,543.36) to

the annual earnings of the highest earning female from the

same period ($55,389.37). Pl.’s memo at 23. While the

earings of the highest earming male earner could reasonably

be called approximately 3.5 times (or arguably 350%) those

of the highest female earner, to extrapolate from that figure to

say that the earnings of all male account representatives are

400% those of all female account representatives is clearly

spurious. Moreover, these calculations tell us nothing about

statistical significance of the disparity or the range of other

variables that might contribute to the observed disparity, such

as hours worked, “prior experience, years of service, volume

of business, value of policies sold an the like.” Def’s Reply

at 9. Plaintiffs comparative analysis of male-female

retention rates is similarly spotty.

Plaintiffs final evidence of gender discrimination in

her termination decisiou. is her claim that MetLife’s

compensation and validation policies, while facially neutral,

in fact have a disparate impact on female agents, leading.

disproportionately to their termination. See Smith Aff., Ex

H; Pl.’s Reply at 11. This disparate impact charge is leveled

33a

women since women in the general labor market have lower

salaries on average than men (Tr. 650; Compl. 48; 3, 11, 28),

and 2) MetLife’s commission-based validation requirement,

which as detailed above, plaintiff claims has a disparate

impact due to women’s “less competitive socialization” and

the differential processing speeds of men’s and women’s

applications.

It is well-settled that to make out a prima facie case of

disparate impact, a plaintiff must either show that the

identified employment practice creates “a gross statistical

disparity, or a statistically significant adverse impact coupled

with other evidence of discrimination.” Victory v. Hewlett

Packard Co., 34 F.Supp.2d 809, 822 (E.D.N.Y. 1999),

quoting Waisome v. Port Authority of New York and New

Jersey, 948 F.2d 1370, 1375 (2d Cir.1991). Ifa plaintiff has

established a prima facie case, the burden then shifts to the

employer to demonstrate that the employment practice is job-

related and consistent with business necessity. However, if

the defendant can show by pointing out flaws in the

plaintiff's statistics :ihat the practice in question does not

cause a disparate impact, the business necessity inquiry

becomes moot. See Wards Cove, 490 U.S. at 660-61;

Victory, 34 F.Supp.2d at 822.

In the instant case, plaintiff's evidence of disparate

impact created by the two identified policies in insufficient to

raise a triable issue of fact. Regarding the pre-hire IPL cap,

plaintiffs general labor force statistics showing lower

average earnings for women are legally insufficient to

demonstrate a disparate impact from MetLife’s employment

practices. As this Circuit has held, a proper disparate impact

analysis requires analysis of the relevant labor market in

question. See Smith v. Xerox Corp., 195 F.3d 358, 368. In

this case, such an analysis would require, at the very least, an

examination of the pre-hire incomes of the men and women

34a

this case, such an analysis would require, at the very least, an-

examination of the pre-hire incomes of the men and women

applying to become account representatives at MetLife in the

Maryland-Virginia region, as well as an analysis of their

resulting IPLs. Plaintiff has provided no evidence to support

such an analysis.

Plaintiff's disparate impact claim against MetLife’s

commission-based compensation system is even more

questionable. To begin, plaintiff provides no evidence that

fewer women than men meet their validation requirements

and are thus terminated more frequently as a result. While

she states that she has only been able to identify “one female

account representative who successfully completed her initial

training period at MetLife during Plaintiff's employ” and no

female account representatives who “retired from MetLife as

an account representative” (P1.’s Memo at 24), she provides

no support for these claims and no evidence linking this

alleged dearth of women to the commission structure or

validation requirement. As with her systemic disparate

treatment argument, this analysis fails to control for the many

other possible variables leading to any observable disparity,

Furthermore, plaintiff acknowledges in her deposition that

the only reason she believes MetLife’s compensation policy

adversely affects women is because “the competitive nature

of it is something that’s not part of women’s socializatior.”

Tr. 228-29. Such conclusory statements and subjective

opinions do not constitute evidence to support a claim of

discrimination. Lastly, her claim that the applications of

female account representatives are processed more slowly

than those of males is wholly unsupported. Accordingly, this

Court finds that plaintiff has failed to make out a claim of

disparate impact in MetLife’s policies and practices.

In sum, “[t]he record is replete with [plaintiff's]

conclusory statements and subjective feelings — not facts — in

35a

... ‘devoid of specifics, but replete with conclusions’ ...

cannot withstand a properly supported motion for summary

judgment.”) (internal citation omitted). This Court finds that

plaintiff has not produced sufficient evidence for a reasonable

jury to find that defendant’s proffered reasons for terminating

plaintiff were a pretext for discrimination. See Richardson v.

New York State Dep’t of Corr. Serv., 180 F.3d 426, 439 (2d

Cir. 1999); Erlach v. New York City Board of Education, No.

CV 94 4239, 1996 WL 705282, at *7 (E.D.N.Y. Nov. 26,

1996) (Dearie, J.) (holding that unpleasant and difficult

working conditions, absent evidence that they were motivated

by discrimination, are insufficient to satisfy summary

judgment). Accordingly, defendant’s motion for summary

judgment with respect to plaintiff's gender discrimination

claim is granted.

D. Retaliation

We now turn to an analysis of plaintiff's claim that

her termination in November 1997 was in retaliation for the

sexual harassmefiit claim she brought in December 1995.

Claims of retaliation brought under Title VII are also subject

to the three-step burden-shifting analysis spelled out above.

“In order to establish a prima facie case of retaliation, a

plaintiff must show by a preponderance of the evidence (1)

participation in a protected activity known to the defendant;

(2) an employment action disadvantaging the plaintiff; and

(3) a causal connection between the protected activity and the

adverse employment action.” Tomka v. Seiler Corp., 66 F.3d

1295, 1308 (2d Cir. 1995). Once the prima facie case is

established, the burden shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the employment

action. Then the burden reverts to the plaintiff to prove that

the proffered reason is a pretext for the defendant’s

retaliation.

retaliation.

Plaintiff satisfied the first prong of this claim because

at least several managers and supervisors were aware that she

filed a sexual harassment complaint with her manager, Dr.

Krishnamoorthy. Tr. 140-41; Attach. 6b, 10a. Moreover,

whether or not she was justified in filing this complaint is

immaterial; plaintiff “need only demonstrate that she had a

‘good faith, reasonable belief that the underlying challenged

actions of the employer violate the law.” Quinn, 159 F.3d at

769 (citing Manoharan_v. Columbia Univ. College of

Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).

Plaintiff also fulfills the second prong because her

November 21, 1997 termination qualifies as an adverse

employment action. Plaintiff also alleges that each of her

untimely processed applications, denied applications,

declines in her compensation, and general “office

impediment[s]” constituted adverse employment actions.

Pl.’s reply at 38; Tr. 138, 140. While the Court cannot

consider whether these time-barred adverse employment

actions were themselves retaliatory, it may consider such

allegations as “relevant background evidence” to determine

whether her timely-filed retaliatory termination claim is

legitimate. Morgan, 2002 WL 1270268, at *6 (citing United

Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885,

52L.Ed. 2d 571 (1977)).

The crux of this claim lies in the third prong: whether

plaintiff can show a causal connection between her sexual

harassment complaints and her ultimate termination. A

plaintiff can establish a causal connection by: “(a) showing

that engaging in the protected activity was followed ciosely

in time by the adverse employment action; (2) submitting.

evidence that other employees who engaged in conduct

similar to the -[p]laintiff were treated unfairly, or (3)

37a

223, 229 (E.D.N.Y. 2001). Defendant disputes that any such

causal connection exists. See Def.’s Memo at 28-29.

Plaintiff was not terminated until November 1997,

nearly two years after she initially filed her complaint of

harassment with the Silver Spring office. Between those two

events, plaintiff transferred offices three times (Smith Aff.,

Ex.H), worked under a variety of supervisor (Tr. 363-64; Tr.

671-72), experienced increased compensation, validated

several times (Tr. 549), and was granted a validation

extension. The length of time and these numerous intervening

events all seem to weigh against a finding of causal

connection. See Van Zant, 80 F.3d at 711-12.

Furthermore, plaintiff has failed to provide any

evidence of women who experienced similar retaliatory

treatment by MetLife. Plaintiff does not identify any women

who have lodged sexual harassment complaints at MetLife,

much less anyone who has experienced retaliatory treatment

as a result of filing such a complaint. Plaintiff thus fails to

establish a causal connection through this avenue.

To the third method of proving a causal connection,

plaintiff has alleged a laundry list of workplace difficulties,

all of which she cites as evidence of retaliatory animus.

These difficulties include lost, mail, an office burglary and

bomb threat, damage to her car, damaged insurance policies,

excrement in the office, the lack of availability of a personal

laptop computer, disruptive and rude management, delayed

processing of her business and rejected applications. In her

deposition testimony, however, plaintiff admits that many of

these actions were the results of accidents, office personnel

carelessness and oversight, and general administrative

inconvenience rather than retaliatory animus. See Tr.133-34;

196-204; 255-266; 387-96; 399-401. Moreover, as courts in

this Circuit have held, such mishaps in the absence of

38a

196-204; 255-266; 387-96; 399-401. Moreover, as courts in

this Circuit have held, such mishaps in the absence of

additional evidence tying the treatment to a retaliatory

motive, does not even meet the prima facie case’s de

minimus retaliatory treatment threshold. See Dortz v. City of

New York, 904 F.Supp. 127, 158 (S.D.N.Y. 1995) (holding

that delays by a personnel department absent additional

evidence that it was related to a retaliatony adverse action are

“far too speculative to satisfy even a dewninimus showing,”

especially where there is no evidence to show that the

employees responsible for delays were even aware of

plaintiff's sexual harassment complaint.)

In addition, several of the incidents that plaintiff

identifies occurred prior to the filing of her sexual

harassment complaint with her manager (e.g. the shouting in

the office her inability to purchase a laptop, her misplaced

mail from potential clients, and the delay in giving her a

compensation manual, all of which are referenced in her

December 14" letter of complaint). For all of the other

claims, plaintiff provides no clear link — not even a stray

comment — tying these events to any retaliatory animus on the

part of the defendant. Plaintiff has thus failed to establish a

prima facie case of retaliation.

Assuming arguendo, however, that plaintiff has

established a prima facie case, plaintiff still fails to meet her

burden of proving that the reason offered by the defendant for

her termination is not only pretextual, but that more likely

than not, her termination was in retaliation for her complaint

of sexual harassment. As stated in the section above,

plaintiff furnishes the Court with no _ evidence that

defendant’s purported reason for her termination was false.

Accordingly, the Court finds that plaintiff has failed to

establish a claim of retaliatory termination under Title VII.

Summary judgment for defendant on this claim is granted.

For the foregoing reasons, defendant’s motion for

summary judgment is granted on all claims. The Clerk of the

Court is directed to close the case.

SO ORDERED.

Brooklyn, New York /s/ Raymond J. Dearie

March 25, 2003 United States District Judge

40a

APPENDIX D

Appendix to Appeal Brief for Plaintiff Appellant

TABLE OF CONTENTS :

and INDEX

List of Attachments from Plaintiffs Answer to Defendant’s

Motion for Summary Judgment

ATTACHMENT 1 - The Washington Post, February 7, 1993,

page K12, offered an initial income of $41,600, comparable

to what Plaintiff was earning at the time. The delay in hiring

plaintiff justified lower income and shows gender

discrimination at

MetLife

ATTACHMENT 2 - Defendant’s Second Set of

Supplemental Responses to Plaintiff's First Set of

Interrogatories, Response to Interrogatory No. 18, identifies

the factors determining the first year initial payment level

(IPL) of account representatives — Excerpt from Manual of

Instruction for Regional Sales Offices, Instruction 27A, and

excerpt from Recruiting and Selection Manual, Docs. ML

0206-0208. ML 0207 states: “Since the payment

recommended after considering these factors should not

exceed the individual’s prior income ...”.and shows gender

discrimination

MetLife

4la

ATTACHMENT 3 - Anderson, Margaret L., Thinking About

Women, Sociological Perspectives on Sex and Gender

Gender, Fifth Ed, USA, Allyn & Bacon: 1999, p.i11 Table

5.1 Earnings In Selected Occupations: 1997, shows lower

income for women in all occupations and is evidence that the

IPL policy is gender discrimination at

PI tarbce isk Siicaxwinehuibdedssndaebacessdsdvemhsevaeute A-Ifl

ATTACHMENT 4 - “Compensation Payable to Account

Representatives Appointed August 1, 1994 and later under

the Financing Plan” whereby account representatives must

meet quarterly “production” requirements to maintain their

employment. This policy requires that production must be

fully “processed” and credited to be counted. When

combined with evidence of longer processing times for

plaintiff the procedure shows retaliation and systemic gender

I aan nck ahi akd cals eppelindssdcddesih - ganas A-IV

ATTACHMENT 5 - Defendant’s Supplemental Responses

to Plaintiffs First Set of Interrogatories, Response to

Interrogatory No. 15 to identify the processing time for

Plaintiff's written business, ML 0202-0205, gives the dates

the policy application was signed and the date the policy

issued, shows that the processing time was longer than

average and is evidence of the adverse handling of Plaintiff's

SRE NI faatnbn ckabdecksdssibencdanducscddecchecescedsa A-V

ATTACHMENT 6 - Weekly Statement of Commission and

Record of Premiums Remitted, (ML 0166 —- 0167)

commission placings delayed just one week resulted in

plaintiff's failing to validate and being subject to

RRR a pa Pee SORE ai Np ONE areb ey aes Oe I

42a

ATTACHMENT 7 - Defendant’s Responses and Objections

to Plaintiffs First Set of Interrogatories, Response to

Interrogatory No. 3 to identify the account representatives

employed at the time of Plaintiff's employment and in the

offices in which she was employed show the disparity in

male and female hires and retention and is evidence of

gender discrimination

ATTACHMENT 8 - Pay Statements for Agent 020, Joan

Tunny, January 1996 — October 1997 show a continuous

decline in income and are evidence of

retaliation

ATTACHMENT 9 - Record of Payments Received, January

4, 1996, showing premium deposits for Lana Krawezel and

John Mills, evidence of an applicant that MetLife could not

locate who was unfairly declined for reasons of

discrimination and retaliation

ATTACHMENT 10 - Letter to Plaintiff from James Forrest

King, Attorney at Law, dated February 12, 1997, the first

attomey that plaintiff sought advice from regarding the

sexual harassment

43a

ATTACHMENT 11 - Page 23 of Plaintiffs Answer to

Defendant’s Motion for Summary Judgment summarizing

Attachment 11, Defendant’s Supplemental Responses to

Plaintiffs First Set of Interrogatories, Response to

Interrogatory No. 7 that provides the commission earnings of

the account representatives identified in Interrogatory No. 3,

ML 0352-0361, ML 0601-0604, ML0412-0420, MLO0S581-

0585, ML0440-0449, ML0313-0325, ML0425-0434,

ML0510-0513; ML0552-0555, ML0586-0590, ML0556-

0561 ML0240-0250, ML 0612 — 0632 and ML 0379 — 0388

and showing a 350% disparity between male and female

account representatives, an inordinately high disparity for

occupations in the United States, and evidence of systemic

gender discrimination at MetLife

List of Attachments to Questionnaire submitted to the EEOC

on January 16, 19978

ATTACHMENT 2B - Letter from plaintiff, dated February

28, 1995, to Tai C.Chang, Agency Vice President,

questioning non-inclusion of written business in her reported

production and other concerns

LIST OF ATTACHMENT FROM Memorandum of Law in

Opposition to Defendant’s Motion to Dismiss

ATTACHMENT 1 - Compensation Manual for Account

Representatives, _Commission Setbacks and __ Other

Adjustments, p. 6-9 and memos dated December 24, 1996

and December 27, 1996 documenting plaintiff's request for

commission setbacks that were not granted and that shows

retaliation against plaintiff. ............ 0.0.0... cece e ee eens A-XIIl

AFFIDAVITS

44a

Sworn affidavit of Joseph Cappello................... A-XIV(a)

Sworn affidavit of Joan Tunny....................008 A-XIV (b)

Sworn Affidavit of Lana Krawcel...... : Sones F A-XIV (c )

Affidavit of Jane Kielso. .........ccescccscsssccesseesess A-XIV (d)

Sworn affidavit of Lucy Duff and Woodruff........ A-XIV (e)

Sworn Affidavit of Shirley Chapin.................... A-XIV (g)

Plaintiff's Notice Of Appeal, Motion for Extension of Time,

U.S. Court of Appeals Orders........5..0ssesscscessesssseses A-XV

Plaintiff's Application for Appointment of Counsel, June 20,

2000, With Answer to Questions Regarding Ability to Pay

and Affidavit of Joan Tumny.................ceeeseeceeeees A-XVI

Plaintiff's Letter to U.S.D.C. June 20, 2000 reporting change

of address and reporting loss of court papers along with her

personal belongings by Amerivanline Movers........... X-VII

Plaintiffs April 13, 2004 facsimile to Mindy Farber and

Mindy Farber’s April 20, 2004 letter to Neil Abramson”

regarding settling this Action. ....................ceeeeeeee A-XVIII

' This affidavit was not received in time to submit.

45a

APPENDIX E

TERMINATION LETTERS

(1) Letter from Defendant to Plaintiff Granting an Extension

of Validation (Undated)

(2) Termination Letter from Defendant to Plaintiff

901 Dulaney Valley Road, Suite 500, Towson, MD 21286

Tel 410 339-3465 Fax 410 339-3855

John J. Butler

Regional Vice President

Service from 1968

Registered Representative

Member, N.A.L.U.

(1) Re: Extension of Validation

Ms. Joan Tunny

Account Representative

Elite, MD

Dear Ms. Tunny:

Please be advised that the request for an extension of your

validation submitted by your General Manager has been

approved.

MetLife’s financing plan must conform with the regulations

set forth by the New York Insurance Department (NYID).

This includes a requirement that each representative stay

within cumulative financing limits during each contract year

on the financing plan. Since you are 1n your second year, the

maximum amount of cumulative financing is $32,000. At

the end of your seventh FPQ, it is estimated that the amount

of cumulative financing paid to you will be no more than

$19,135.

46a

Financing is defined as the difference between the total

payments paid to the financed AR at a point in time and the

amount this AR would have been paid as a non-financed AR.

If any of the cumulative financing limits would be exceeded

by a weekly payment, then the payment must be adjusted

downward so that the financing does not exceed the limit.

You have not reached your maximum financing point, but if

a future payment would cause the financing limit to be

exceeded, payments to you may have to be reduced to stay

within regulations. We just wanted to alert you, in advance,

that if the maximum amount of financing is reached before

the end of your second year, and for each continuing week

that this condition exists your weekly IPL and any QIC

payment may have to be adjusted downward. The

adjustment will be based on the amount you would have

received for the week as a non-financed AR.

‘i For example, let’s assume you have already reached the

maximum amount of financing allowed and you are

scheduled for $500 WPL. Let’s also assume that the amount

of non-financed AR compensation for the same week is

$275. Your pay for the week would be $275 because paying

more would cause the annual financing limit to be exceeded.

If your compensation is adjusted in this matter, you will be

informed.

You can take steps to avoid reaching the contract year

financing limit and the resulting compensation reduction by

increasing your non-financed AR compensation. The way to

do this is to increase you First Year Commission (FYC)

Production to your moving average account, since moving

average account withdrawals are a key element in non-

financed AR compensation. If you have any questions

concerning this, please contact your manager.

Siicerely,

47a

/s/ John J. Butler

(2)

Ms. Joan Tunn[e]y

Account Representative

A66 American, MD

Dear Ms. Tunney:

Your termination of your employment with this Company is

acknowledged and accepted effective November 21, 1997.

As of the effective date of the termination of your

employment with Metropolitan Life Insurance Company, you

are no longer authorized to accepted premiums or transact

business of any description for or on behalf of Metropolitan

Life Insurance Company or Metropolitan Property and

Casualty Insurance Company or any of their subsidiaries or

affiliates.

Your interest in commissions will cease as described in

Clause 321 of the Compensation Rules and Schedules

Manual, Form 1C. If you have completed 12 fiscal periods,

an Adjustment of Account following termination will be

completed in accordance with the terms of your appointment

as outlined in Schedule [X of the Compensation Rules and

Schedules Manual, Form IC.

We remind you that when you were appointed, you signed an

Agreement, Form 16449. In executing this Agreement, you

have accepted certain restrictions on your activities over the

next 18 months and have undertaken certain obligations if

you continue to engage in the business of insurance during

that period. Metropolitan expects you to honor your

obligations under the Agreement and is prepared to take

whatever steps it deems necessary to protect its interests as

set forth therein.

48a

The attached Forms I&R318 an I&R379 outline the

provisions regarding termination of coverage, you right of

conversion and the option to continue your group medical

insurance and dental coverage under the Company’s

Insurance and Retirement Program.

Yours truly,

/s/ John J. Butler

Regional Vice President

Midlantic Bay Region

December 4, 1997