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April 16, 1990


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.


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 of discriminatory 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 ...

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