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STRAUSS v. MICROSOFT CORP.

February 22, 1993

KAREN STRAUSS, Plaintiff,
v.
MICROSOFT CORPORATION, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 In this employment discrimination action involving two claims of gender discrimination, defendant Microsoft Corporation ("Microsoft") moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it partial summary judgment with respect to that part of the Complaint in which plaintiff Karen Strauss ("Strauss") seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and the New York State Human Rights Law § 290 et seq., for Microsoft's refusal to promote her to the position of technical editor of the Microsoft Systems Journal (the "Journal"). Strauss opposes the motion. For the reasons set forth below, Microsoft's motion is denied.

 BACKGROUND1

 Microsoft founded the Journal in 1986. The purpose of the Journal is to reach computer software developers, informing and instructing them about Microsoft computer products such as software operating systems, applications products, programming languages, and other Microsoft systems. In March 1987, the Journal began publishing on a bi-monthly basis. Although Microsoft is based in Redmond, Washington, the Journal is produced and published in New York City. Beginning in March 1988, the Journal's staff consisted of a publisher/editor, a technical editor and his assistant, a production editor and her two assistants, an art director and her assistant, a circulation manager, an office manager, a receptionist, and a part-time intern.

 Jonathan L. Lazarus ("Lazarus") began as the Journal's publisher/editor in November 1986. Strauss, a woman, began her employment at the Journal on March 14, 1988, as an assistant to the technical editor at that time, Tony Rizzo ("Rizzo"). Her starting salary was $ 18,500 per year. Strauss's educational background includes a high school diploma and some college credits. Additionally, prior to her employment at the Journal, Strauss had various experience both with computers and in publishing. In the computer field, Strauss worked as a computer consultant at New York University, wrote and edited a computer user manual, and programmed in various computer languages. Her publishing experience included work at three newspapers as a photographer and darkroom technician, and assistant editing for the Washington Square News, a local New York newspaper.

 Rizzo and Strauss worked together on five issues of the Journal between May 1988 and January 1989. Their tasks included tracking the latest software development, finding appropriate topics for the Journal, scheduling, arranging all aspects of the technical review of Journal articles, and aiding the staff with technical issues. In November 1988, as a result of her "very helpful" performance at the Journal, Strauss received a $ 1,500 bonus, a salary increase to $ 21,000, and options on two thousand shares of Microsoft stock.

 In February 1989, Rizzo resigned from his position as technical editor of the Journal. Rizzo continued to assist the Journal for a short time in a part-time capacity, however, in order to complete various work for the Journal and allow Lazarus time to find a replacement. Shortly thereafter, Lazarus began searching for Rizzo's replacement. According to Strauss, in April 1989, and on four other occasions between May and July 1989, she asked Lazarus for a promotion to the vacant technical editor position. *fn2" Instead of promoting her, on April 14, 1989, Lazarus promised Strauss a title change and salary increase as of August 1989, which would be retroactive to May 1, 1989. In keeping with this promise, on August 1, 1989, Strauss was promoted to the associate editor position with an accompanying salary increase of $ 6,000 and a $ 2,750 bonus.

 In July 1989, Lazarus prepared an advertisement expressing the Journal's interest in hiring a technical editor. In the interim, Strauss performed many duties of the technical editor in order to compensate for Rizzo's resignation from the Journal. These duties included selecting writers, assigning articles, following up with authors on structure, content, and technical accuracy of articles, and reviewing and defining layouts.

 In September 1989, Lazarus hired Salvatore Ricciardi ("Ricciardi") as the new technical editor. Shortly thereafter, Lazarus, Ricciardi, and Strauss met in order to divide up their responsibilities. Lazarus decided that Strauss, as associate editor, would coordinate technical reviews, while Ricciardi, as technical editor, would be responsible for dealing with authors, deciding on articles for the Journal, and responding to technical review documents from Microsoft's main office in Redmond.

 On October 10, 1989, Strauss contacted Microsoft's Human Resources Department in order to clarify her job responsibilities at the Journal. Strauss complained that, although she was performing many of the technical editor duties, Ricciardi was credited with the technical editor title as well as salary.

 On October 17, 1989, Ricciardi resigned from his position as technical editor. According to Microsoft, although Ricciardi was qualified for the job, he was not well-suited for the Journal's highly interactive working environment. According to Strauss, however, Ricciardi had neither the technical knowledge nor the publishing experience necessary to successfully perform as technical editor. After Ricciardi's resignation in October 1989, Strauss again requested a promotion to the technical editor position, but Lazarus refused. At this time, Strauss told Lazarus that she would not perform the duties of the technical editor as long as Lazarus was unwilling to officially promote her to that position.

 On October 18, 1989, Strauss contacted Gwen Weld ("Weld"), Microsoft's Manager of Personnel Practices, in order to file a complaint regarding Lazarus's failure to promote her to the technical editor position. Strauss indicated that the failure to promote was the result of gender discrimination. On November 3, 1989, Weld sent an electronic mail ("e-mail") message to Strauss informing her that she was not promoted because "[her] skills [were] not yet the level of Technical Editor." After Strauss filed her complaint, she began to experience difficulty working at the Journal. Her working relationship with Lazarus and other Journal employees deteriorated and created an unmanageable working environment. Finally, on January 19, 1990, Strauss's employment was terminated.

 According to Microsoft, after Ricciardi left the Journal, Lazarus decided not to search for a technical editor, but instead decided to hire Eric J. Maffei ("Maffei") as editor. Microsoft contends that Maffei's technical experience with Microsoft products eliminated the need to search for a technical editor. According to Strauss, however, Lazarus did continue to search for a technical editor to replace Ricciardi, and on November 8, 1989, Maffei began his employment as editor of the Journal, a new position which included the former technical editor responsibilities. In July 1991, the Journal officially hired a technical editor, Gretchen Bilson.

 As a result of Microsoft's failure to promote her to the technical editor position, Strauss sues alleging gender discrimination. Specifically, Strauss alleges that: (1) Lazarus's inappropriate behavior in the office, namely, making comments and sending e-mail messages that were offensive to women; *fn3" (2) Strauss's demonstrated ability to perform the technical editor job; (3) a comparison of her qualifications with those of Ricciardi and Maffei; and (4) the differential treatment given to different applicants for the technical editor position, constitute evidence from which a reasonable jury could conclude that Lazarus's failure to promote Strauss to technical editor was based on gender.

 Microsoft now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it partial summary judgment with respect to that part of the Complaint based on a failure to promote, on the grounds that Strauss has failed to establish a prima facie case of gender discrimination. In the alternative, Microsoft argues that, even if Strauss has established a prima facie case of gender discrimination, Microsoft has articulated a non-discriminatory reason for not promoting Strauss, namely that she wasn't qualified for the job, and that Strauss has failed to present viable evidence from which a reasonable jury could conclude that Microsoft's non-discriminatory reason is merely pretextual. Strauss opposes the motion. Specifically, Strauss argues that she has established a prima facie case of discrimination and that there are genuine issues of material fact as to whether Microsoft's stated ...


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