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July 13, 1990


The opinion of the court was delivered by: Kram, District Judge.


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 Exhibit F.

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.


Summary Judgment

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 176 (1962)).

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.

Denial of Partnership

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 ΒΆ 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 ...

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