515 F. Supp. at 299. Accord Bradley v. Consolidated Edison Co., 657 F. Supp. 197, 207 (S.D.N.Y. 1987).
The individually-named defendants' motion for summary judgment of plaintiff's Title VII claim is granted.
(b) Sufficiency of evidence against AHA
Dismissal of this suit as asserted against the individually-named defendants does not affect its validity against the AHA itself. The AHA argues that it too is entitled to summary judgment with respect to plaintiff's Title VII claim because plaintiff cannot produce sufficient evidence to establish a prima-facie case of discrimination.
To prevail in her claim of sex discrimination under Title VII, plaintiff must show that the AHA, the only remaining defendant, terminated her employment "because of" her sex. 42 U.S.C. § 2000e-2(a)(1), (2). If plaintiff had no direct proof of discrimination, then she could still circumstantially prove her case in accordance with the disparate impact or disparate treatment frameworks articulated by the Supreme Court for those situations. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989) (disparate impact); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (disparate treatment); see generally Deborah E. Moore, Note, Disparate Treatment Versus Disparate Impact: A Distinction Without A Difference, 41 Syracuse L. Rev. 965 (1990). In this case, however, plaintiff contends that she need not rely upon the burden shifting schemes set forth in Wards Cove Packing Co. or McDonnell Douglas Corp. because she does have direct proof of sex discrimination by the AHA.
The court has reviewed plaintiff's evidence and agrees that, when considered in its totality, it is sufficient to show the existence of a factual dispute as to whether the AHA was motivated by plaintiff's sex in acting to terminate her employment. Specifically, with respect to board member Riccio, plaintiff has offered evidence of numerous instances in which he manifested his disdain for plaintiff's sex. He spoke to her in belittling terms such as "dearie," "sweetie," and "young girl," rather than with the respect that a male in the Executive Director position might have enjoyed. Indeed, it is difficult to imagine that Riccio would have called a male executive such names, nor is there any evidence suggesting that he did. Riccio's comment at the time of plaintiff's salary review, within eight months of her termination, that "a young girl like [plaintiff] had no business making that kind of money," DeWald Aff. (2/19/93) P 29, certainly raises an inference that he considered plaintiff's sex in deciding how to vote on her salary and, perhaps, her ultimate employment status.
Of course, Riccio was just one member of the board and, as discussed above, he did not have individual authority to terminate plaintiff's employment. Still, in reviewing the AHA's corporate liability, the court is obliged to examine the motivation of individual board members in determining whether the corporation as a whole acted with an impermissible motive. See Barbano v. Madison Cty., 922 F.2d 139, 143-44 (2d Cir. 1990) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989)). In Barbano, the Second Circuit found that a board improperly relied upon a discriminatory recommendation in deciding to hire a male job applicant over an arguably more qualified female. Id. Although there was no evidence that the board itself was impermissibly motivated, the committee which submitted the recommendation was so plagued with discriminatory motive that the motive was necessarily imputed to the board, the board's good faith notwithstanding. Id.; cf. North, 844 F.2d at 407-08 (finding that board did not violate Title VII because it did not consider supervisor's discriminatory motive when deciding to terminate plaintiff's position).
There exists a factual dispute as to whether Riccio's allegedly impermissible motive tainted the AHA board, as well. The uncertainty as to the board's underlying motivation is magnified by plaintiff's additional evidence concerning the motive that drove the actions of board member Orsini. As mentioned above, Orsini justified her vote to terminate plaintiff's employment when she referred to tenants' concerns that they "needed a man or someone with more experience" for the Executive Director position. See Def. exh. "H"; DeWald Aff. P 30. This evidence of Riccio's and Orsini's bias, coupled with the evidence of the leverage that these two members held against two other voting board members, see supra [slip op.] p.6, shows the existence of a factual dispute as to whether the board as a whole was influenced by Riccio's and Orsini's allegedly discriminatory motives in voting to terminate plaintiff's employment.
The AHA asserts that it is entitled to summary judgment because plaintiff has not proffered sufficient evidence to suggest the existence of a factual dispute as to whether its decision to terminate her employment was motivated by plaintiff's sex. The AHA's primary argument is that plaintiff's termination resulted from a bitter political and personal dispute between her and certain board members. While these disputes (and plaintiff's resulting termination) may have been unfortunate, contends the AHA, they do not implicate Title VII. In reviewing the AHA's arguments, however, the court is reminded that plaintiff need not prove at this pretrial stage that the AHA was unlawfully motivated; rather, she need only present the court with some evidence that places the AHA's motivation into factual dispute. E.g. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). While it is true that plaintiff, in presenting evidence that reveals the existence of a factual dispute, must do more than simply show a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), the Second Circuit has instructed that courts reviewing summary judgment motions in discrimination suits such as the present must also consider plaintiff's natural inability to present on paper convincing evidence of motivation. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). The court explained:
An employer who discriminates is unlikely to leave a "smoking gun," such as a note in an employee's personnel file, attesting to a discriminatory intent. A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. Consequently, . . . where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate.
Id. at 533 (emphasis added) (citations omitted).
The court candidly acknowledges that plaintiff's evidence of Riccio's and Orsini's influence over a majority of the board may not appear strong, but hastens to note that the credibility of plaintiff's evidence at this stage of the proceedings is irrelevant. See National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989) (court may not consider credibility of evidence at summary judgment stage); see also Matsushita Elec. Indus. Co., 475 U.S. at 587 (all evidence must be viewed in a light favoring the non-moving party). Plaintiff has unquestionably shown the existence of a factual dispute as to (1) whether Riccio and Orsini were impermissibly motivated by plaintiff's sex in voting to terminate her employment, and if so, (2) whether Riccio's and Orsini's sex-based bias influenced other AHA board members, such that their bias resulted in the termination of plaintiff's employment. Since plaintiff has produced sufficient evidence to create a factual dispute as to these issues, summary judgment of her Title VII claim against the AHA is inappropriate.
(c) Retroactivity of Civil Rights Act of 1991
The parties next argue over whether the Civil Rights Act of 1991, Pub L. No. 102-166, 105 Stat. 1071 (1991) (the "Act") applies retroactively to plaintiff's claims, which were filed prior to promulgation of the Act. The inquiry is pertinent because the Act, if applicable, would entitle plaintiff to a jury trial for her Title VII claims and allow her to collect compensatory damages in the event that she prevails on those claims. Absent retroactive application of the Act, however, plaintiff would be entitled to neither a jury trial nor monetary damages for her Title VII claims.
As the court apprised the parties at oral argument, both the Second Circuit and this court have definitively ruled on the retroactivity issue, both concluding that the Act applies prospectively only. See Butts v. City of New York, 990 F.2d 1397, (2d Cir. 1993); McLaughlin v. Governor's Office of Employee Relations, 784 F. Supp. 961 (N.D.N.Y. 1992). The effect of these rulings is that this plaintiff cannot benefit from retroactive application of the Act. While it is true that the Supreme Court has granted certiorari to hear this issue in two cases, Harvis v. Roadway Express, 973 F.2d 490 (6th Cir. 1992), cert. granted in part sub nom., Landgraf v. USI Film Prods., 122 L. Ed. 2d 649, 113 S. Ct. 1250 (1993); Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir. 1992), cert. granted in part, 122 L. Ed. 2d 649, 113 S. Ct. 1250 (1993), this court remains bound by the holding in Butts unless the Supreme Court or an en banc panel of the Second Circuit reaches a contrary result on the retroactivity issue. Wisdom v. Intrepid Sea-Air Space Museum, 993 F.2d 5, 1993 U.S. App. LEXIS 10170 *4 (2d Cir. 1993) (as amended). This court therefore follows the ruling in Butts, and reaffirms its holding in McLaughlin, that the Act does not apply retroactively. The parties are referred to those decisions for the rationale supporting this conclusion.
B. Motion in limine
The AHA argues in limine that plaintiff should he precluded from presenting at trial the testimony of former AHA attorney William Moore. Although he is no longer AHA's counsel, Moore was apparently present at all of the relevant board meetings in his capacity as AHA's counsel and, if permitted, would likely attest to comments made by various board members at those meetings. The AHA objects on grounds that Moore was the AHA's lawyer at the time of the meetings and, therefore, should not be called to testify against his own client. Plaintiff's counsel responds that he will ask Moore questions relating only to statements that Moore heard uttered in public, not those statements that amount to privileged communications. That is to say, plaintiff intends to produce Moore not in his capacity as AHA's lawyer but rather in his capacity as a witness to comments that were stated at public meetings. Furthermore, plaintiff's counsel assures the court that Moore will not be asked questions relating to confidential communications or work product.
The court concludes that Moore's testimony is competent insofar as it relates to comments made by AHA board members at public meetings. These comments fall outside the realm of the attorney-client privilege, and Moore's testimony is intended strictly to relay factual events that he observed. This is perhaps most clearly evidenced by the fact that if Moore had not attended the meetings, then he presumably would not be called as a witness. The admission of Moore's testimony would not be inconsistent with the attorney-client privilege, as the events to which Moore would be testifying were already in the public realm. See Grady v. United States, 559 F. Supp. 30, 32 (E.D. Mo.), aff'd, 715 F.2d 402 (8th Cir. 1983); see also N.Y. Code of Professional Responsibility DR 4-101(B) (prohibits attorney's disclosure of "confidences or secrets"). Accordingly, the AHA's motion to preclude the testimony of attorney Moore is denied.
Defendants' motion for summary judgment is granted as to plaintiff's claims arising under the New York Executive Law. To the extent that plaintiff seeks relief pursuant to the ADEA, defendants' motion for summary judgment is granted as to those claims, as well. Summary judgment is also granted as to plaintiff's Title VII claims against Riccio, Page, Orsini, and Rivera. Summary judgment is denied as to plaintiff's Title VII claims against the AHA.
In light of these rulings, the case shall proceed to a non-jury trial on plaintiff's Title VII claims against the AHA. Defendants' motion in limine to preclude certain testimony is denied, subject to objections made at the time the testimony is presented.
IT IS SO ORDERED.
DATED: June 4, 1993
Syracuse, New York,
NEAL P. McCURN
SENIOR U.S. DISTRICT JUDGE