The opinion of the court was delivered by: Platt, Chief Judge.
In March, 1988, plaintiff Barbara Kump, a New York resident,
commenced this action in New York State Supreme Court, Nassau
County. Defendant Xyvision, a Delaware corporation with its
principal office in Massachusetts, removed the suit to this
Court on diversity grounds in April, 1988.
Plaintiff's complaint alleges four causes of action: 1)
breach of employment agreement for failing to promote
plaintiff to the position of account manager on April 1, 1987;
2) discrimination in employment on the basis of her sex in
violation of New York State Executive Law § 296 for failure to
promote plaintiff to the position of account manager before
November 1, 1987; 3) discrimination in employment on the basis
of her sex in violation of New York Executive Law § 296 for
termination of plaintiff's employment; and 4) discrimination in
employment on the basis of her pregnancy also in violation of §
296 for termination of plaintiff's employment. Plaintiff's
complaint also requests attorney's fees under New York
Executive Law and Title VII, SECTION 706, 42 U.S.C. § 2000e-5.
Defendant now moves for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure.
For the reasons stated below, defendant's motion for summary
judgment is granted with regard to the contract claim and
denied as to the three discrimination claims. Further,
plaintiff's request for attorney's fees is denied.
Defendant, Xyvision, is a Delaware corporation with its
principal offices in Massachusetts. It is engaged in the
manufacture, sale, and servicing of computer systems used by
businesses that require sophisticated document production.
Plaintiff, Barbara Kump, was hired by defendant as a customer
and sales support specialist in October, 1983.
In 1984, defendant split the customer and sales support
functions. Plaintiff elected to be placed in sales support. In
October, 1986, defendant's Vice — President for Sales and
Support Services, Alphonse Lucchese, announced that he was
instituting a new program in which people would be promoted to
account manager from within the company and that plaintiff
would be the first person so promoted. Later, Lucchese told
plaintiff that since plaintiff would be assigned to either New
York or Washington, she and her husband would have to relocate.
On December 5, 1986, Lucchese "gave" plaintiff a vacant
territory in Philadelphia and assigned her to the Washington
office. The promotion was to be effective January 1, 1987 but
plaintiff's supervisor requested a postponement until April 1,
1987 so she could find a replacement for plaintiff. Shortly
after the December 5th meeting, Lucchese resigned from
defendant. Plaintiff concerned about her promotion
communicated with the new national sales manager, Tom Heiber.
On January 8, 1987, Heiber told plaintiff "All bets are on. Go
ahead and look in New York and Washington."
On February 3, 1989, plaintiff again spoke to Heiber who
confirmed the April 1, 1987 starting date and a base salary of
$25,000 with a $1,000,000 quota. Heiber told plaintiff to look
in Boston or Washington. Plaintiff explained that as a result
of her previous conversations with Lucchese and himself, her
husband had looked for and found a new job in New York and
thus she was no longer as flexible in where she was able to
relocate. Heiber's response was that he wanted her to report
to either John. DelFavero in Washington or George Wiseman in
Boston because Bradley in New York was a "male chauvinist".
Deposition of Barbara Kump, p. 59. He also told her that she
should complete the sale of her house in Chicago.
On March 16, 1987, plaintiff had another meeting with
Heiber. At this meeting, Heiber stated that a sales person
position in the upstate New York area was open. He also stated
that the company had created a new position in between sales
support specialist and account manager, a Technical Sales
Support Representative ("TSSR"). Heiber suggested that
plaintiff take a TSSR position. At this meeting, he again
stated that Bradley was a male chauvinist for whom it would be
very difficult to work.
Plaintiff then met with Bradley who told her that the
upstate New York position was not open. Following this
meeting, plaintiff talked to Heiber who stated that the
upstate New York position was open but suggested that she take
a TSSR position to gain Bradley's confidence and so Bradley
could get used to the idea of a woman sales person. Deposition
of Barbara Kump, p. 74.
On March 18, 1987, plaintiff wrote Heiber a letter in which
she accepted the account manager position covering the upstate
New York area. In response, defendant's vice president of
sales, Lloyd Sappington, called plaintiff and told her that
the only position open to her was a TSSR position in New York
City because he did not want her covering the upstate New York
area from New York City.
Plaintiff claims that she was not anxious to accept the TSSR
position because she had heard various of the defendant's
employees, including the company's president Jim Sole state
that Bradley was a male chauvinist who had difficulties
dealing with women. However, since she had sold her house and
her husband had left his Chicago job for a job in New York,
she accepted the TSSR position in New York City in April,
On November 1, 1987, plaintiff was made account manager for
Brooklyn, Queens, and Long Island. As an account manager,
plaintiff's sales quota was $500,000. Plaintiff
was also required to make ten face to face calls per week,
perform 3.5 systems demonstrations per month, make two selling
proposals per month with cost qualifications, and plan and
conduct one open house for potential prospects once every
three months. Company policy allowed only one open house per
year for other account managers and other account managers
were not required to conduct their own open houses. In early
November 1987, she met with Bradley to discuss these