The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff brought this Title VII action for employment
discrimination stemming from the denial of a partnership in the
defendant accounting firm, Coopers & Lybrand ("C & L"), in 1985,
1986, and 1987, as well as defendant's refusal, in 1987, to
transfer her to a C & L office outside of New York City.
Plaintiff's claims also include an Equal Pay Act claim, as well
as pendent state law claims. Presently before this Court is
defendant's motion for partial summary judgment, Fed.R.Civ.P. 56,
and for dismissal
pursuant to Fed.R.Civ.P. 12(b). Also before this Court is
plaintiff's appeal from a discovery order of Magistrate Roberts.
From May 21, 1979 until July 30, 1987, the plaintiff was
employed by defendant in its Computer Audit Assistance Group
(hereinafter, "National CAAG") in New York City. In 1984, as in
all prior years, Glenn Davis, a partner of defendant who had
promoted plaintiff from the position of CAAG supervisor to that
of CAAG Manager in January of 1981, rated plaintiff's job
performance as "outstanding." Affidavit of Pamela Pfau at
Exhibits D, E. By 1984, plaintiff responsibilities had grown, as
she had become the manager responsible for the day-to-day
operations of National CAAG, as well as manager in charge of
communications for the then-separate Auditing directorate and EDP
directorate. Id. at ¶ 10. In May of 1985, Stanley Halper, a
National Director partner of the defendant, promoted plaintiff to
the position of coordinator of CAAG services. Plaintiff
simultaneously held the position of manager in charge of National
CAAG. Plaintiff was the only female and the only non-partner in
charge of a department in that directorate. Plaintiff's Affidavit
at 10. In a May 6, 1985 memorandum to CAAG Partners, Stanley
Halper stated that plaintiff had "contributed significantly to
our CAAG Practice" and that her efforts produced an "outstanding
success." Halper also noted that plaintiff "work[ed] closely with
all the National Directors and ha[d] excellent rapport within the
National office." Halper concluded by stating that plaintiff had
"been key to establishing a position of quality service" and had
"played an important role for CAAG National." Pfau Affidavit at
During the 1985 and 1986 partnership admission process,
plaintiff was formally proposed and considered for admission to
the defendant partnership, but her candidacy was twice deferred
by William Holland, Deputy Chairman of C & L. Notwithstanding the
calibre of plaintiff's evaluations and the significant extension
of her responsibilities throughout her years at Coopers and
Lybrand, Mr. Holland stated that he did not think that there was
enough information "to . . . assess [plaintiff's] performance"
and that "the duties she has performed do not provide me with a
sufficient base to form a positive conclusion." Plaintiff's
Affidavit, Exhibit H.
On July 21, 1986, plaintiff began a vacation, the need for
which appears to have been brought on by a nervous breakdown.
See Letter of Kenneth Marx (Plaintiff's spouse) to Glenn Davis,
dated October 1, 1986, attached as Plaintiff's Exhibit I. This
vacation was scheduled to end no later than September 15, 1986.
However, because of plaintiff's severe depression, plaintiff did
not return to work on that date. Plaintiff's 3(g) statement,
attached as Exhibit A. During her absence, plaintiff told
defendant that she would not return to New York. She explained
that her "past experiences in New York make it very difficult . .
. to consider any position there. . . ." Letter from Pamela R.
Pfau to Michael Bealmear, attached as Plaintiff's Exhibit O.
Although defendant allegedly attempted to find a suitable
position out of New York, no such position was found and
plaintiff did not return to work. Plaintiff's 3(g) statement,
Exhibit A. Plaintiff remained on paid, authorized leave until
July 1987, and technically reported to Murray Hirsch, the partner
in charge of National CAAG during this time. In July 1987,
defendant terminated plaintiff's employment.
On December 22, 1988, Magistrate Roberts, who is supervising
discovery, entered a discovery order limiting the discovery of
personnel files to manager rating forms and partnership profiles
for all successful partnership candidates for the years 1985 to
1987. The order further limited discovery to successful
candidates employed in the national headquarters, located in New
York where plaintiff had been employed, and for the successful
candidates in plaintiff's area of employment, the CAAG
discipline, nationwide. In recognition of plaintiff's request for
broader discovery, the Magistrate also permitted her to depose
Robert McDowell, C & L's personnel director, and granted leave to
renew the request
for firm-wide discovery if supported by information uncovered in
discovery, including the McDowell deposition.
Plaintiff renewed her request but was denied broader discovery
by the Magistrate's order of April 28, which adhered to the
discovery parameters of the earlier December 22, 1988 order. The
Magistrate found that broadening discovery would not be
reasonably calculated to either produce or lead to the production
of admissible evidence. By an order dated May 8, 1989, the
Magistrate clarified the April 28, 1989 order to include
unsuccessful partnership candidates, as well as successful
candidates. Plaintiff has appealed the April 28 and the May 8
orders to this Court, and the defendant has responded.
It is axiomatic that a motion for summary judgment lies only
when there is no genuine issue of material fact. Fed. R.Civ.P.
56(c). Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Id. In deciding
whether the movant has met this burden, the court must resolve
all ambiguities against the movant. Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
The movant may discharge this burden by showing an absence of
evidence of support to the non-movant. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). The non-movant then has the burden to come forward with
"special facts showing that there is a genuine issue for trial,"
Fed.R.Civ.P. 56(e), and must "do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Defendant moves this Court for summary judgment on plaintiff's
claim arising from the 1987 denial of partnership. Defendant
further argues that summary judgment should be granted on
plaintiff's allegations of discrimination regarding the failure
to transfer her in 1987. Defendant then argues that the 1985 and
1986 partnership claims are time barred, as there is no
actionable continuing violation in 1987 that would fall within
the limitations period.
On the 1987 partnership claim, defendant first argues that Pfau
has not made out a prima facie case on her Title VII claim. In
order to state a prima facie case in a Title VII case, plaintiff
must allege that "(1) she belongs to a racial minority or other
protected class; (2) she applied and was qualified for a position
for which the employer was seeking applicants; (3) she was
rejected despite her qualification; and (4) the job remained open
after she was rejected and the employer continued to seek
applications with plaintiff's qualification." Gibbs v.
Consolidated Edison Company of New York, 714 F. Supp. 85, 88
(S.D.N.Y. 1989); see also McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Defendant argues
that because plaintiff was not in active employment during 1987,
she was not eligible for partnership consideration, and that she
refused to accept a position in New York. However, the record
shows and defendant admits that Pfau was on authorized leave and
her termination did not occur until July, 1987. Although the
director of National CAAG states that plaintiff was not eligible
for partnership in 1987 because of her absence, plaintiff points
out that there is no rule or regulation against nominating for
partnership someone who is on authorized leave. Murray B. Hirsch
Affidavit, ¶¶ 14-16; Pamela R. Pfau Affidavit, ¶ 56.*fn1
Notwithstanding its conviction that plaintiff was unable to
establish a prima facie case, defendant set forth allegedly
legitimate, non-discriminatory reasons for its failure to promote
and transfer plaintiff. Defendant's Memorandum at 14-22;
Defendant's Reply Memorandum at 6-14. The Supreme Court has held
that when the "defendant responds to plaintiff's proof by
offering evidence of the reason for plaintiff's rejection, the
fact finder must then decide whether the rejection was
discriminatory within the meaning of Title VII." United States
Postal Service v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478,
1481, 75 L.Ed.2d 403 (1983). As in the instant case, "[w]here the
defendant has done everything that would be required of him if
the plaintiff had properly made out a prima facie case, whether
the plaintiff really did is no longer relevant." Id. at 715, 103
S.Ct. at 1482 (emphasis added). The Supreme Court has
continuously stressed that the prima facie standard is "not
inflexible," "necessarily will vary," and was "never intended to
be rigid, mechanized, or ritualistic." Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct.
1089, 1094 n. 6, 67 L.Ed.2d 207 (1981); Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57
L.Ed.2d 957 (1978); McDonnell Douglas, supra, 411 U.S. at 802
n. 13, 93 S.Ct. at 1824 n. 13. In accordance with the holdings of
the Supreme Court, the Second Circuit has held that "reviewing
courts should not be preoccupied with whether a prima facie case
has been established." Sweeney v. Research Foundation of State
University, 711 F.2d 1179, 1189 (2nd Cir. 1983). The Sweeney
Court held that courts "need not linger long over the question of
whether [plaintiff] in fact established a prima facie case before
we turn our attention to `the ultimate question of discrimination
vel non.'" Id. at 1184 (quoting Aikens, supra, 460 U.S. at
714, 103 S.Ct. at 1481).
The Court also notes that discovery on this point is very
limited. There has been but one deposition taken on this issue,
which only briefly touched on the issue of plaintiff's
eligibility for partnership in 1987. Affidavit of Debra Rothman
at ¶ 15. Even though defendant contends that there is no genuine
issue on plaintiff's eligibility for partnership, the plaintiff
points out that the defendant has not stated the existence of any
written policy, rule or regulation of the firm that would
effectively preclude the consideration for partnership of someone
on authorized leave. In light of the glowing reports of
plaintiff's contributions to the firm during her tenure, the
Court cannot conclude, as defendant suggests, that there is an
absence of genuine issue on plaintiff's prima facie ...