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Weiss v. Morgan Stanley Investment Management
Citation: 345 F. App'x 713Docket: No. 08-2266-cv
Court: Court of Appeals for the Second Circuit; September 16, 2009; Federal Appellate Court
Alice Weiss appeals a March 27, 2008 summary judgment that dismissed her complaint against Morgan Stanley Investment Management for alleged discrimination based on gender, age, national origin, and religion, as well as retaliation following her discrimination complaint prior to her termination. Weiss, employed since March 8, 1982, initially as a statistician and later promoted to vice president, was part of the Global Investment Group at Morgan Stanley after its merger with Dean Witter in 1997. Following changes to the Value Added Market Series Mutual Fund, which became a passive fund, Weiss was included in a reduction in force (RIF) that eliminated one of two portfolio management positions, citing legitimate business reasons for choosing her younger male colleague, Kevin Jung, over her. After expressing concerns about age and gender discrimination to her supervisor, Weiss was terminated on September 30, 2003. Morgan Stanley contended that the decision to terminate her was documented prior to her complaint. The court reviews summary judgments de novo, resolving ambiguities in favor of the nonmovant. To establish a prima facie case of retaliation, Weiss must demonstrate that she engaged in protected activity, that the employer was aware of this activity, that adverse employment action was taken against her, and that a causal connection exists between the action and her protected activity. Once the plaintiff establishes a prima facie case, the defendant must prove a non-discriminatory reason for the action in question. If the defendant successfully does so, the plaintiff must provide evidence suggesting that this reason is merely a pretext for unlawful retaliation. The district court confirmed that Weiss had adequately established her prima facie case and that Morgan Stanley provided a legitimate non-retaliatory rationale for her termination, citing her inclusion in a reduction in force (RIF) as early as mid-2003, which severed the link between her discrimination complaint and her dismissal. On appeal, Weiss argued that Morgan Stanley's evidence for summary judgment was not properly authenticated, thus should be deemed inadmissible. However, this objection had not been raised in the lower court, which Weiss’ counsel acknowledged during oral arguments. The court noted that while affidavits must be based on personal knowledge and admissible facts, the requirement for document authentication did not apply since Weiss did not contest the authenticity of the documents in the district court. Consequently, her failure to address authentication at that stage undermined her appeal. The appellate court found Weiss’ remaining arguments meritless and affirmed the district court's judgment and order.