WEIT v. FLAUM (1999)

Order, Supreme Court, New York County (Lorraine Miller, J.), entered December 23, 1997, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff's claims of various forms of employment discrimination were properly dismissed for lack of merit.   The chart she relies on, purporting to show salary discrepancies between male and female employees, does not indicate whether the cited employees were similarly situated, and, unsupported by any expert testimony, otherwise fails to support an inference of discriminatory motive (see, Martin v. Citibank, 2d Cir., 762 F.2d 212, 218;  Orisek v. American Inst. of Aeronautics & Astronautics, 938 F.Supp. 185, 192-193 (S.D.N.Y. 1996), affd. 2d Cir., 162 F.3d 1148).   No finding of pretext in connection with plaintiff's age and sex discrimination claims is possible given that defendants hired numerous women to fill executive positions who were over 40 years old and paid no less than similarly situated men (see, Manning v. Norton Co., 189 A.D.2d 971, 973, 592 N.Y.S.2d 154), and that plaintiff was replaced by a woman only four years younger than herself (see, Ellis v. Provident Life & Acc. Ins. Co., 926 F.Supp. 417, 428, affd. 2d Cir., 107 F.3d 2).   Nor can it be found that plaintiff's increased work hours were a pretext for discrimination, and not due to client-driven considerations, given the evidence of defendant company's division of labor and work methods, and of certain client procurement and retention exigencies that existed at the time of the alleged discrimination (see, Morrishow v. Mount Sinai Med. Ctr., 1998 WL 377884 * 3).   Contrary to plaintiff's claim, her evaluations always contained comments indicating that she possessed weak management abilities, and thus this is not a case where poor work performance is suddenly cited in the face of prior good job evaluations (compare, Cella v. Fordham Univ., 228 A.D.2d 300, 644 N.Y.S.2d 53).  Statements by co-workers or subordinates to the effect that plaintiff performed well also fail to raise an issue of fact as to pretext, since the co-workers and subordinates were not in a position to evaluate plaintiff's job performance, and they lack the personal knowledge necessary to testify as to her work ability (see, Gagne v. Northwestern Natl. Ins. Co., 6th Cir., 881 F.2d 309, 316).   Plaintiff's claim of sexual harassment is not supported by the isolated and casual remarks and conduct on which she relies (see, id., at 314-315;  Lucas v. South Nassau Communities Hosp., 54 F.Supp. 141, 1998 U.S. Dist LEXIS 6504, * * 16, 17-18;   Lamar v. NYNEX Serv. Co., 891 F.Supp. 184, 185).   Nor does the heavy workload and other alleged discriminatory acts support a claim for intentional infliction of emotional distress (see, Lucas v. South Nassau Communities Hosp., supra, at * 25).   We reject defendants' request to impose sanctions.   We have considered plaintiffs' other contentions and find that they lack merit or need not be addressed in view of the foregoing.

MEMORANDUM DECISION.