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July 6, 1994


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


 On February 22, 1993, the Court issued a Memorandum Opinion and Order denying defendant Microsoft Corporation's ("Microsoft") motion for partial summary judgment dismissing plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), and the New York State Human Rights Law § 290 et seq.. In light of a recent Supreme Court decision addressing plaintiff's burden of proof in Title VII cases, see St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, U.S. , 113 S. Ct. 2742 (1993), Microsoft now renews its motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth below, Microsoft's motion is denied.


 As the facts are fully set forth in the February 22, 1993 Opinion, they are only briefly summarized below.

 Microsoft, a company engaged in the development and sale of computer software, publishes a journal entitled Microsoft Systems Journal (the "Journal"). The Journal is designed to inform computer software developers about Microsoft products, and to offer theoretical and technical programming insights into solving typically encountered problems. From 1987 to November 1989, Jonathan L. Lazarus ("Lazarus") was the Journal's publisher and editor. In 1988, Tony Rizzo ("Rizzo") was the technical editor of the Journal.

 From March 14, 1988 to January 19, 1990, plaintiff Karen Strauss ("Strauss") was employed as an assistant editor, reporting to the technical editor. Between March 1988 and February 1989, Rizzo and Strauss worked together on five issues of the Journal. Their tasks included tracking software development, finding appropriate topics for the Journal, negotiating agreements with authors, scheduling, arranging all aspects of the technical review of Journal articles, aiding staff with technical issues during production, and preparing article abstracts and editor's notes.

 I. The Technical Editor Position

 In February 1989, Rizzo resigned from his position at the Journal, and Lazarus began searching for Rizzo's replacement. Strauss contends that, 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. *fn1" Instead of receiving the technical editor job, however, Strauss was promoted to associate editor, receiving a $ 6,000 salary increase and a $ 2,750 bonus.

 While Lazarus continued to search for a new technical editor, Strauss performed many of the technical editor's duties, including (1) selecting writers; (2) assigning articles; (3) following up with authors on the structure, content and technical accuracy of articles; (4) drafting abstracts and editor's notes; (5) reviewing layouts; and (6) answering technical questions that arose during the production process. In Strauss's August 1989 evaluation, Lazarus rated her between "exceeds performance standards" and "exceptional performance." He wrote in the evaluation, that "You have saved the Journal."

 In late September 1989, Salvatore Ricciardi ("Ricciardi") commenced employment as technical editor. On October 10, 1989, Strauss complained to Microsoft's Human Resources Department that, although she was performing many of the technical editor's duties, Ricciardi was credited with the technical editor title and salary. One week later, on October 17, 1989, Ricciardi resigned from the company. After Ricciardi's resignation, Strauss again requested a promotion to the technical editor position, but Lazarus refused to promote her.

 On October 18, 1989, Strauss filed a complaint with Microsoft's personnel department regarding Lazarus's failure to promote her to the technical editor position, contending that Lazarus's refusal was the result of gender discrimination. Gwen Weld ("Weld"), Microsoft's Manager of Personnel Practices, informed Strauss that she was not promoted because her "skills [were] not yet the level of Technical Editor."

 Subsequently, On November 8, 1989, Eric J. Maffei ("Maffei") became employed as editor of the Journal, a new position that included the former technical editor's responsibilities. Strauss's working relationship with Lazarus and other Journal employees deteriorated, and, on January 19, 1990, her employment was terminated. Subsequently, in July 1991, the Journal hired Gretchen Bilson to work as technical editor of the Journal.

 On August 29, 1991, Strauss commenced this action for gender discrimination based on Microsoft's failure to promote her to the technical editor position. At her deposition, Strauss indicated that, during the course of her employment at the Journal, Lazarus made comments and sent electronic mail ("e-mail") messages that were offensive to women. Specifically, Strauss indicated that Lazarus told her that he was "president of the amateur gynecology club" and "referred to a woman employee as the 'Spandex queen'." Deposition of Karen Strauss ("Strauss Dep."), taken on February 4, 1992, at 13-15. In addition, Strauss stated that Lazarus had referred to an African-American woman as "Sweet Georgia Brown," and had offered to pay her $ 500 to change her name. Id. at 24-25. Lazarus also sent e-mail messages to (1) the entire ...

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