in the office of General Counsel at Reichhold. Halbrook
reported to Paul Dixon, General Counsel of Reichhold. Dixon, in
turn, reported to C. Robert Powell, CEO of Reichhold until
1988. In August, 1983, Reichhold hired Charles Lorelli, who was
selected and trained by and at first worked under the
supervision of Halbrook. In May, 1984, Halbrook was promoted to
Assistant Secretary of Reichhold. In April, 1986, Lorelli was
promoted to Assistant General Counsel and Assistant Secretary,
thus sharing the same title as Halbrook. During this time, both
Lorelli and Halbrook were the subject of various compliments
and criticism from persons at Reichhold with whom each worked.
Additionally, however, Halbrook alleges that she was subject to
several incidents of sexual harassment: she was told to read a
book on women's alleged fear of success, told not to let
women's issues get in her way and forced to strike a "bargain"
with management under which she promised to refrain from
raising women's issues in exchange for management's ending its
harassment of her about maternity leave.
In September, 1987, Lorelli was promoted to General Counsel.
Shortly thereafter, Halbrook ran into Dixon in a local
delicatessen and complained to him about this decision in
general terms that did not specifically refer to sex
discrimination. Dixon volunteered that it was "intentional that
there are no women in top management at Reichhold," and that
Eric Pogue, Vice President of Human Resources at Reichhold, had
stated to Dixon that "women are hard to manage." Dixon asserted
that, as a member of the corporation's operating committee, he
had "been privy to matters about which [Halbrook] had no idea."
Halbrook noted this conversation in the form of a file memo to
herself. Proposed Trial Exhibit 29.
During conversations which included settlement negotiations,
Halbrook complained directly to Pogue about Lorelli's
promotion, alleging that it was discriminatory. According to
file memos written by Halbrook after these conversations,
Halbrook expressed to Pogue her fear of being summarily
discharged, which would have made finding work more difficult,
and promised Pogue to continue to act professionally in
Reichhold's employ. Proposed Trial Exhibits XX and YY. Halbrook
also indicated that she felt deeply humiliated and embarrassed
about having been passed over for the position of General
Counsel by someone who had been under her supervision, and that
staying at Reichhold would be very damaging to her career.
Proposed Trial Exhibit XX.
Thomas Mitchell, Executive Vice President of Reichhold,
speculated to Halbrook that a new position of General Counsel
of Reichhold's parent holding company, Dainippon Ink and
Chemical Co. ("Dainippon"), might be created, but conceded that
it was unlikely that Halbrook would be appointed to any
position above that of Reichhold General Counsel, having just
been passed over for that post. Another attorney position was
open at that time in a Reichhold subsidiary, but at less than
Halbrook's then-current salary. Indeed, the woman who formerly
held the position had applied for a transfer to Reichhold's
legal department, indicating that the position at the
subsidiary was clearly inferior to Halbrook's at Reichhold.
According to Reichhold, other management jobs at Reichhold
might have eventually become available to Halbrook.
Subsequent to Lorelli's promotion, Halbrook alleges, she lost
the daily contact with Reichhold division managers and staff
department heads to which she had been accustomed, was dropped
from the circulation list for communications sent to corporate
officers, was given no new assignments during October, 1987,
and was informed that, in the future, she would no longer
supervise the General Counsel's paralegals. In November, 1987,
Halbrook left Reichhold. She now works for Revlon, Inc., for an
annual salary of $115,000 as compared to Lorelli's current
salary of $165,000.
I. Reichhold's Motion for Summary Judgment
Reichhold moves for summary judgment on both Halbrook's claim
failure to promote, and her claim of constructive discharge. We
address each of these claims in turn.
Summary judgment may be granted only when the moving party
can establish, based on "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits . . . that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court
must first look to the substantive law of the case to determine
which facts are material. Only disputes over material facts
will preclude the entry of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986). The moving party bears the initial
burden of establishing that no genuine dispute as to material
facts exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then
shifts to the opposing party to show that a genuine issue of
fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355-56, 89
L.Ed.2d 538 (1986). Ultimately, "[i]n considering the motion,
the court's responsibility is not to resolve disputed issues of
fact but to assess whether there are any factual issues to be
tried, while resolving ambiguities and drawing reasonable
inferences against the moving party." Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91
L.Ed.2d 202 (1986)), cert. denied, 480 U.S. 932, 107 S.Ct.
1570, 94 L.Ed.2d 762 (1987).
Thus, a defendant seeking summary judgment in an employment
discrimination case "has the burden of showing that the absence
of discrimination is beyond dispute or that an ultimate
inference of discrimination is entirely unsupported by any
evidence." Obadiah v. Western Union Int'l, 41 Fair
Empl.Prac.Cas. (BNA) 1361, 1364, 1986 WL 10477 (S.D.N.Y. 1986).
Where the non-moving party bears the ultimate burden of proof
and has produced facts making out a prima facie case, she can
defeat a summary judgment motion by showing that legitimate,
non-discriminatory reasons for a job action were merely
pretextual. Montana v. First Federal Savings & Loan Ass'n of
Rochester, 869 F.2d 100, 103 (2d Cir. 1989). To survive a
summary judgment motion, the non-moving plaintiff need not show
that legitimate reasons were entirely absent from the allegedly
discriminatory calculus but merely that some discriminatory
reasons may have played a role in the employment decision. Id.
In its summary judgment papers, Reichhold does not dispute
that Halbrook has made a prima facie showing of employment
discrimination. A prima facie case consists of showing that the
plaintiff (i) belongs to a protected group, (ii) applied for
and was qualified for a position for which the employer was
seeking applicants, (iii) was rejected despite qualifications
and (iv) the position was filled by or held open for someone
not belonging to the protected group. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d
668 (1973). Halbrook, a female and thus a member of a protected
group, and apparently qualified for the position of General
Counsel, was denied a promotion to a position filled by a male.
Once a prima facie showing is made, the burden shifts to the
defendant to articulate some legitimate non-discriminatory
reason for the employment action. Id. Reichhold articulates
several non-discriminatory reasons for promoting Lorelli
instead of Halbrook, including Lorelli's allegedly superior
qualifications and certain complaints about Halbrook's work.
Consequently, in a trial setting, the burden would shift back
to Halbrook to prove by a preponderance of the evidence that
the legitimate reasons offered by Reichhold are pretextual.
Id.; see also Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981);
Krodel v. Young, 748 F.2d 701, 706 (D.C. Cir. 1984), cert.
denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985).
At the summary judgment stage, however, Halbrook need only
show that material issues of fact remain as to whether
Reichhold's reasons for not promoting her are pretextual.
Because intent and state of mind are at issue in determining
whether or not an employer's reasons are pretextual, summary
judgment is ordinarily inappropriate at this stage of the
proceedings. Montana v. First Federal Savings & Loan Ass'n of
Rochester, 869 F.2d at 103. We believe that Halbrook has
presented sufficient evidence to create a triable issue of fact
as to pretext. She has alleged, for example, that Powell and
Pogue, who assertedly were responsible for Lorelli's elevation
to General Counsel, had scant knowledge of the legal
department; that Lorelli's personnel file was not so
demonstrably superior to Halbrook's so as to justify his
promotion; that Dixon's recommendation as to his own successor
was similarly not conclusive justification; that Halbrook was
better qualified for the job; and that women were statistically
under-represented at Reichhold. Because sex discrimination
"often arises out of very subtle stereotyping that may reflect
a [biased] . . . view of women . . . and also because employers
have become sophisticated enough to shield true animus behind
facially neutral documentation," Lenihan v. City of New York,
636 F. Supp. 998, 1009 (S.D.N.Y. 1985), we decline to find at
this stage that Halbrook's proffered evidence is insufficient.
We further observe that Halbrook has offered direct evidence
of discriminatory treatment at Reichhold, in addition to the
assertedly discriminatory failure to promote her to General
Counsel. For example, she claims that she was warned not to let
women's issues "get in the way"; harassed about whether or not
she would return to Reichhold after her maternity leave; told
to read a book about women's supposed fear of success; and
ridiculed when she requested an appointment to an
administrative committee. Reichhold argues that Halbrook's
direct evidence of discriminatory treatment at Reichhold is
minimal, remote, and lacking in probative value, primarily
because it occurred long before Lorelli's promotion to General
Counsel. Of course, this argument goes to the weight of the
evidence, an issue not properly resolved on summary judgment.
Moreover, where a plaintiff provides direct evidence of
discriminatory motive, the burden shifts to the employer to
show that it would have made the same decision absent such a
motive. Price Waterhouse v. Hopkins, ___ U.S. ___, 109 S.Ct.
1775, 1786, 104 L.Ed.2d 268 (1989). Thus, the direct evidence
presented by Halbrook defeats Reichhold's motion for summary
judgment on the question of discriminatory failure to promote.
Reichhold's motion for summary judgment on Halbrook's
constructive discharge claim presents a closer question.
Evidence of a discriminatory refusal to promote is not always
sufficient to support a finding of constructive discharge,
Wardwell v. School Bd. of Palm Beach County, 786 F.2d 1554,
1558 (11th Cir. 1986), because generally Title VII requires
employees to attack discrimination from within existing
employment relations, Cowan v. Prudential Ins. Co., 703 F. Supp. 177,
192 (D.Conn. 1986). Thus, constructive discharge occurs
only when an employer "`deliberately makes an employee's
working conditions so intolerable that the employee is forced
into an involuntary resignation.'" Pena v. Brattleboro Retreat,
702 F.2d 322, 325 (2d Cir. 1983) (quoting Young v. Southwestern
Savings & Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975)).
Because the standard for constructive discharge requires a
determination of how a reasonable person would behave "in the
employee's shoes," Pena, 702 F.2d at 325, "the issue of whether
a constructive discharge has occurred should generally be left
to the trier of fact." Bailey v. Binyon, 583 F. Supp. 923, 929
(N.D.Ill. 1984).*fn1 On the other hand, the
"reasonable person" standard is an objective standard that does
not depend on such traditionally triable issues as the
subjective reaction of any particular employee to changed
working conditions. Nobler v. Beth Israel Medical Center,
702 F. Supp. 1023, 1030 (S.D.N.Y. 1988) (employee's subjective
feelings about his condition do not justify finding of
To support her claim that her working conditions were
intolerable after Lorelli's promotion, Halbrook alleges first
that she found herself with little to do after Lorelli's
promotion, and stripped of concrete responsibilities and
various indicia of stature. Second, she asserts that Lorelli's
promotion put her in an intolerable position, forcing her to be
humiliated on a day-to-day basis by having to work with the
very supervisors who discriminatorily denied her promotion.
Third, Halbrook claims that she was forced to quit because
Lorelli's promotion tolled "the death knell for her efforts to
become a corporate general counsel." Plaintiff's Memorandum in
Opposition to Defendant's Motion for Summary Judgment ("Pltf.
Mem.") at 66. We consider each of these allegations in turn,
bearing in mind that we must draw all reasonable inferences
With respect to the asserted change in job responsibilities
and stature, evidence of a reduction in job responsibilities to
the point where an employee has nothing meaningful to do with
her time can lead to an inference of constructive discharge;
yet, a mere reduction or change in job responsibility based on
the reasonable business decision of an employer does not
constitute constructive discharge.*fn3 Halbrook alleges that,
presumably as a direct result of the Lorelli promotion, some
Reichhold officials stopped calling her, she was dropped from
a circulation list, warned that she might be stripped of
certain administrative responsibilities, including supervision
of four paralegals, and not given new assignments. Reichhold
responds that Halbrook's workload was not reduced, and that she
was not relieved of responsibility for the paralegals. Clearly,
there is a triable issue of fact as to whether Halbrook's
responsibilities were sufficiently changed or reduced so as to
make her job intolerable.
As for the alleged humiliations Halbrook suffered, it is well
established that discriminatory denial of a promotion, without
more, cannot amount to constructive discharge. Muller v. United
States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied
423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). Rather,
working conditions must be "intolerable" so as to create an
aggravated sense of humiliation.*fn4 We do not believe that
reducing an employee's workload and removing her from certain
circulation lists rises to this level. "[A]lmost daily, face to
face dealings with the alleged wrongdoer," on the other hand,
may engender humiliation rising to the level of constructive
discharge. Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 120
n. 4 (1st Cir. 1977).
Halbrook speculates that she would have suffered humiliating
face-to-face confrontations with Pogue and Powell, two
responsible for Lorelli's promotion, with increasing frequency
after October 1, 1987, the date the legal department was
assigned to Pogue's supervision. Yet, surprisingly, she alleges
neither that she had increased contact with Pogue or Powell,
nor that what contacts she had were humiliating.*fn5 In view
of the fact that even where Title VII clearly outlaws
discriminatory practices, the standard remedy under the Act is
for an employee to stay and fight, see, e.g. Hopkins v. Price
Waterhouse, 825 F.2d 458, 473 (D.C. Cir. 1987), rev'd on other
grounds, ___ U.S. ___, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989);
Bourque v. Powell Elect. Mfg. Co., 617 F.2d 61, 66 (5th Cir.
1980), and that "mere speculation or conjecture" will not
suffice to defeat summary judgment, Knight v. United States
Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied,
480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987), Halbrook's
offering of proof on the alleged humiliation, taken by itself,
would be legally insufficient to establish working conditions
so intolerable as to constitute constructive discharge.
Nevertheless, her alleged humiliation and embarrassment over
losing the General Counsel position to someone she herself
trained at Reichhold is a factor to consider in determining
whether conditions at Reichhold were so intolerable for
Halbrook so as to force her to resign.
Finally, with regard to whether Halbrook had other chances
for promotion at Reichhold, we note that, while "an employer
has not effected a constructive discharge merely because an
employee believes that she has limited opportunities for
advancement," Downey v. Isaac, 622 F. Supp. 1125, 1132 (D.D.C.
1985), aff'd 794 F.2d 753 (D.C. Cir. 1986), dashing reasonable
expectations of career advancement may create intolerable
working conditions that rise to the level of constructive
discharge. Hopkins, 825 F.2d at 458. In Hopkins, a member of an
accounting firm was denied partnership but told that she could
remain as a senior manager. Id. at 463. The Court of Appeals
found that this was effectively a "career-ending" action that
amounted to constructive discharge, id. at 473, inasmuch as it
was "regular practice and custom" that candidates rejected for
partnership routinely left the firm. Id. at 463.*fn6
Both parties speculate as to what Halbrook's chances for
promotion would have been had she remained at Reichhold.
Reichhold would distinguish Hopkins on the grounds that
promotion to General Counsel at Reichhold was not an
"up-or-out" decision. Whereas the plaintiff in Hopkins was
"told she would not be renominated for partnership and thus had
no place to advance within the organization, . . . the decision
to name Lorelli general counsel in no way disqualified Halbrook
from advancing to other similar senior management positions."
Memorandum of Defendant Reichhold Chemicals, Inc. in Support of
Its Motion for Summary Judgment and to Exclude Hearsay
Statement ("Def. Mem.") at 26. Halbrook asserts in response
that the likelihood of promotion to senior management positions
within Reichhold was "chimerical," Pltf. Mem. at 72,*fn7
and that Lorelli's promotion over her therefore effectively
ended her chances of advancement within Reichhold. We conclude
that there are material questions of fact as to Halbrook's
remaining opportunities within Reichhold. We cannot decide,
based on the record before us, whether or not Reichhold's
failure to promote Halbrook is comparable to Price Waterhouse's
failure to promote Hopkins.
Although we have considered Halbrook's constructive discharge
claim in three parts to facilitate comparison with other cases,
we note that Halbrook's constructive discharge claim must be
considered as a whole. She has not alleged "merely" a reduction
in workload; neither has she alleged "merely" humiliation.
Rather, she has alleged a combination of factors which must be
considered as such. Taken as a whole, Halbrook's factual
allegations in support of her constructive discharge claim,
including the change in responsibilities, reduction in
workload, humiliation and embarrassment, and the absence of any
further chance of advancement within Reichhold, raise a
reasonable inference that she was constructively discharged,
precluding summary judgment on her constructive discharge
claim. Accordingly, Reichhold's motion for summary judgment is
II. Evidentiary Motions
The remaining motions currently pending before the Court
involve evidentiary issues. First, Reichhold moves to exclude
Dixon's statements to Halbrook, made at the delicatessen, on
hearsay grounds. Halbrook argues that the statements are an
admission by an agent of a party-opponent, admissible pursuant
to Rule 801(d)(2)(D) of the Federal Rules of Evidence.
Reichhold contends, however, that Dixon was no longer actively
employed by Reichhold, since he had been given notice of
termination, effective two days after the statement was made,
and that the statement was not made in the course of his
employment at Reichhold. Although it appears that Dixon made
the statement while he was still employed by Reichhold, it is
not clear from the record before us whether or not Dixon made
the statement in the course of his employment.*fn8
Second, Halbrook seeks to exclude her "settlement
negotiations" with Pogue, including the handwritten file memos
she wrote following those conversations. Proposed Trial
Exhibits XX and YY. Halbrook also moves to exclude an
evaluation, prepared after Halbrook left Reichhold, of
Reichhold's legal department. Proposed Trial Exhibit NN.
Although the document embodies an evaluation of the department
covering Halbrook's tenure there, Halbrook argues that, because
the document could not have had a bearing on Reichhold's
decision to promote Lorelli, it is irrelevant and therefore
Because we believe that these evidentiary issues are best
resolved on a full trial record, we defer consideration of
these motions until trial.
Reichhold's motion for summary judgment is denied. The
evidentiary motions are deferred until trial. The matter will
be placed on the Court's Ready-Trial Calendar as of Tuesday,
May 8, 1990.