The opinion of the court was delivered by: Conboy, District Judge:
Plaintiff Rebecca T. Halbrook, a former assistant general
counsel of defendant Reichhold Chemicals, Inc. ("Reichhold"),
brought this action alleging that Reichhold discriminated
against her on the basis of her sex in the terms and conditions
of her employment, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"),
by denying her promotion to the position of General Counsel and
by creating working conditions that compelled her to resign.
Reichhold moves for summary judgment and to exclude evidence of
statements by Reichhold's former General Counsel on hearsay
grounds. Halbrook moves in limine to exclude evidence
assertedly derived from her settlement discussions with
Reichhold management, pursuant to Rule 408 of the Federal Rules
of Evidence, and to exclude an evaluation of Reichhold's legal
department on relevance grounds. Substantially for the reasons
set forth below, we deny the motion for summary judgment, and
defer until trial consideration of the evidentiary motions.
From 1982 until October, 1987, plaintiff Rebecca T. Halbrook
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
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 ...