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A New York judge who reversed a jury’s verdict for the defendant in an employment discrimination case has himself been reversed by the Appellate Division, 3rd Department. Supreme Court Justice Robert P. Best of Fulton County, N.Y., had set aside the verdict as against the weight of the evidence, but the 3rd Department said last week that the court should have accepted the jury’s determination that the defendant was not guilty of discrimination. Wheeler v. Citizens Telecommunications Co. of New York Inc., 96991, involved a woman who claimed she was paid less and treated worse than a male counterpart. Karen A. Wheeler, records show, was hired in 1971 as a telephone operator by GTE, which was acquired by the defendant in 1994. Wheeler eventually became a successful saleswoman and was paid a $30,000 base salary. In 1995, Daniel Maynard became her supervisor and raised Wheeler’s salary to $35,000. Shortly thereafter, though, a man was hired to work on the same sales team as Wheeler and was offered a base salary of $45,000 and a lower sales quota, making it easier for him to earn commissions. Eventually, Wheeler was promoted, on Maynard’s recommendation, to a new position in a newly formed division. The other salesman also had applied for the job, but was rejected in favor of Wheeler. When the new division was disbanded, Maynard again became Wheeler’s supervisor. As a result of prior conflicts, Maynard prepared a memorandum prior to meeting with Wheeler to discuss perceived shortcomings in her interpersonal and working relationships. Wheeler, according to the record, threw the letter on Maynard’s desk and stormed out. Then, Wheeler was locked out of the building. After several apparently fruitless efforts at reconciliation, Wheeler was advised by e-mail that her resignation would be accepted. Wheeler, denying she had resigned, responded with a suit alleging gender discrimination. At trial and on appeal, a key question was whether Wheeler had resigned and, if not, whether she was fired for misconduct. The jury found that she did not resign and was terminated for cause. It also found that any discrepancy in her salary and that of her fellow worker was not motivated by discrimination. Justice Best found the jury conclusion that Wheeler was terminated for misconduct contrary to the evidence and ordered a new trial on that issue. He also said the interrogatory regarding the lesser pay was misleading since it suggested that to prevail Wheeler needed to establish an intent to discriminate. Since that element is not found in Labor Law �194, Justice Best set aside that portion of the verdict as well. The 3rd Department, through Justice Carl J. Mugglin, reversed. It said that even though the defense rested on the theory that Wheeler resigned and denied she had been fired, the jury found otherwise. “Nevertheless, termination does not equate, without more, to gender discrimination,” Mugglin wrote. “Moreover, the record contains ample evidence of plaintiff’s misconduct.” Mugglin said the “insubordination” exhibited when Wheeler threw down Maynard’s letter and stomped out of the office “would have been reason enough to terminate her and there is not a scintilla of evidence that the termination was in any way motivated by her gender.” The panel also found that Best erroneously set aside the portion of the verdict related to Wheeler’s salary. “The record reveals a variety of factors, including [the salesman's] superior education, more sales experience, more management experience and previous salary level at the job he was leaving, all of which constitute nondiscriminatory reasons for initially employing him at a greater base salary than plaintiff,” Mugglin wrote. Also on the panel were Presiding Justice Anthony V. Cardona and Justices D. Bruce Crew III, Edward O. Spain and Robert S. Rose. Jean L. Schmidt of Brown, Raysman, Millstein, Felder & Steiner in Manhattan argued for the defendant. Tracy M. Larocque of Pennock, Breedlove & Noll in Clifton Park appeared for the plaintiff.

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