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October 5, 1995

JAN A. SIGMON, Plaintiff, against PARKER CHAPIN FLATTAU & KLIMPL, Defendant.

Peter K. Leisure, U.S.D.J.

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

 This is an action brought by Jan A. Sigmon, Esq. ("plaintiff"), against her former employer, the law firm of Parker Chapin Flattau & Klimpl ("defendant"). In her complaint, plaintiff alleges that she was discriminated against, and ultimately terminated by, defendant because she is a woman, became pregnant, and had a child. Plaintiff alleges that defendant's discriminatory practices violated: (1) Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-2(a)(1); (2) section 206(d)(1) of the Equal Pay Act, see 29 U.S.C. § 201 et seq; (3) section 296 of the New York Human Rights Law, see N.Y. Executive Law § 296 (McKinney 1993 & Supp. 1995); and (4) the New York common law of prima facie tort, intentional infliction of emotional distress, and negligence.

 Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, defendant has moved this Court for summary judgment dismissing all or any of plaintiff's causes of action. Defendant also has moved this Court, based on an allegation that plaintiff misappropriated defendant's confidential documents, to deny plaintiff any post-trial damages, or, in the alternative, to limit damages, if any, to $ 27,015.36. Plaintiff has cross-moved for summary judgment to dismiss defendant's first and eighth affirmative defenses.


 Viewed in the light most favorable to the non-movant, the facts are as follows. Plaintiff, a 1985 graduate of Brooklyn Law School, joined defendant as an associate member of its corporate department in November of 1987. See Plaintiff's Affidavit in Opposition to Defendant's Summary Judgment Motion and in Support of Cross-Motion to Dismiss Affirmative Defenses ("Pl.'s Aff.") P 3. Sometime around April of 1991, plaintiff announced to the corporate partners that she was pregnant. See id. P 19. Plaintiff took maternity leave from November 4, 1991, through May 11, 1992. Plaintiff was terminated on July 31, 1992. After filing a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 3, 1992, plaintiff received a notice of right to sue letter on July 16, 1993. The instant action was initiated on October 14, 1993.

 A. Alleged Discriminatory Conduct Targeting Plaintiff

 Plaintiff also states that the corporate department "began to isolate me from participating in several firm activities in which I previously had been a significant participant." Id. P 31. For example, plaintiff was not allowed to participate in the firm's recruiting process, which she had done in the past. See id. Although defendant attempts to rebut this claim by stating that the recruiting season was over when plaintiff returned from her maternity leave, see Affirmation of Mark Abramowitz, Esq. ("Abramowitz Aff.") P 23, plaintiff's claim is that she was excluded from recruiting during her pregnancy. The firm was recruiting new associates at this time. See id.

 Near the end of her pregnancy, just prior to her departure for maternity leave, plaintiff states that Lloyd Frank, Esq. ("Frank"), the chairman of the corporate department, made the following statement in plaintiff's presence, and while another pregnant corporate associate walked by: "With all these pregnant women around, I guess we should stop hiring women." Id. P 34. *fn1"

 On April 1, 1992, about six weeks prior to her return from maternity leave, plaintiff and Frank scheduled a breakfast meeting for the next morning at the Algonquin Hotel. Plaintiff assumed the breakfast meeting would be an informal discussion of firm matters. See Pl.'s Aff. Ex. U. To plaintiff's surprise, two other corporate partners attended the breakfast. See id. at P 42. While defendant maintains that the meeting was simply a counseling session to update plaintiff on her status at the firm before her return from maternity leave, apparently Bill Friedman, one of the partners at the meeting, told another partner that the meeting was in fact plaintiff's annual performance review. See Pl's. Aff. Ex. J. It was not the firm's customary policy to give such reviews outside of the office. According to a memorandum that plaintiff prepared for her files on April 2, 1992, the meeting began with Frank telling plaintiff how hard the two new male corporate associates were working. These two new associates were hired at the beginning of plaintiff's maternity leave, just after several other female corporate associates either voluntarily left the firm, went on maternity leave, or were terminated. See Reply Affirmation of Mark Abramowitz, Esq. ("Abramowitz Rep. Aff.") P 10.

 The rest of the meeting consisted of criticisms of the plaintiff made by the partners, with apparently little opportunity for her to respond. See Pl.'s Aff. P 43 and Ex. U. The focus of the criticisms offered by the partners were on plaintiff's alleged poor attitude, her lack of commitment to the firm, and her alleged practice of occasionally presenting answers to legal questions without adequate research and review. The criticisms were not related to plaintiff's gender or her prior pregnancy.

 After plaintiff returned from maternity leave on May 11, 1992, the number of hours she billed per month decreased dramatically. From the date of her return until her termination, plaintiff billed a total of 246 hours. See Pl.'s Aff. Ex. V. At this pace, she would have billed approximately 1,200 hours for the year. This is significantly less than the nearly 1,700 hours plaintiff billed two years prior to her pregnancy, and the nearly 2,000 hours she billed the year next year. See Pl's. Aff. Ex. Q. Plaintiff states that she requested more work, but was told by defendant that no work was available. By comparison, other corporate associates were billing substantial hours during this time. See Abramowitz Aff. PP 18,20; Pl.'s Aff. P 45 and Ex. V. *fn2"

 B. Alleged Discriminatory Conduct Directed Towards Other Female Associates

 Defendant has experienced problems with other female associates upon their return from maternity leave. The firm's maternity leave policy allows part-time return in some situations, but does not provide it as a right. One associate, Abby Weiner, Esq., initially had her request to return part time from maternity leave denied. Ultimately, after Weiner protested that her treatment was unfair, see id. Ex. L, defendant granted her request. Even though she had been described in her professional evaluations as "terrific" in the fall of 1989, see Pl's. Aff. Ex. H, after her return in 1991 she was described as a "problem." See id. Ex. M. Weiner voluntarily left the firm in the fall of 1991.

 Another female associate, Mara Manin, Esq., also experienced gender-related problems similar to those alleged by plaintiff. For example, when Manin agreed, at a partner's request, to work over a weekend, she asked if she could bring her infant son to the office, because she was unable to secure child care. The partner refused to allow this, despite the fact that Manin had previously worked a weekend with the same partner when his three year old son was at the office. See Pl's. Aff. Ex. N. The corporate department refused her request to return part-time from maternity leave. In her evaluations, Managing Partner Abramowitz wrote, somewhat ambiguously, "not good, pregnant." According to plaintiff's affidavit, Manin was eventually laid off before her expected return from maternity leave in March of 1992. Defendant claims that Manin, due to difficulties in balancing her family and work life, requested to be laid off. See Babson Aff. Ex. W.

 C. Reduction in the Workforce at Parker Chapin

 During much of the period in which the alleged discriminatory activities occurred, the number of lawyers employed by defendant was declining. On February 1, 1991, defendant employed 116 lawyers. By December 1, 1992, six months after plaintiff's termination, defendant employed 87 attorneys. This firm-wide "reduction in force," see Defendant's Memorandum of Law in Support of Its Motion for Summary Judgment ("Def.'s Mem.") at 6, affected the corporate department. While plaintiff and defendant contest the exact numbers and dates, it is clear that the percentage of female associates in the corporate department was shrinking during this period. As of March 1991, there were approximately eleven male corporate associates and twelve female corporate associates. By the time of plaintiff's termination, there were approximately twelve male corporate associates, and six female corporate associates. See Defendant's Counter Rule 3(g) Statement PP 7, 8. Defendant shows that most of the women left the firm's department based on voluntary resignations, but plaintiff, as noted above, does provide some evidence that several of these resignations may have been related to tension between female associates and defendant regarding the maternity leave policy and other issues. See Pl.'s Aff., at Ex.s J-P.

 D. Defendant's Professional Evaluation of Plaintiff

 Defendant has a process by which it evaluates the professional development of its associates. Each associate is reviewed annually by their department chairman, a partner with whom they have worked closely, and a representative from the Professional Personnel Committee (the "Committee"). Several months prior to this in-person review, written evaluations prepared by partners working with the associate are discussed at a meeting of the Committee. Plaintiff's first review based on a full year's work at the firm was held in January of 1989. Plaintiff was described by the Committee's report as the "third star of the 1985 Corporate class" see Pl.'s Aff. Ex. H, and received the highest raise available for that year. Her next review, conducted in December of 1989, was also positive. The Committee report describing plaintiff as "very good" and recommended the highest raise. Plaintiff's next review, conducted in early January of 1991, was her last before she announced her pregnancy. The Committee report said the following: "High. Hours low. Needs to be spoken to re: attitude. Gets job done and well (when feels it is meaningful); aggressive. (#2 in class)." See Panken Aff. Ex. R. There were three people in plaintiff's corporate class at the time. The final Committee report on the plaintiff, which was written after plaintiff left for her maternity leave, and after the alleged discrimination began, stated that plaintiff "has come down substantially in estimation over the past few years." Id. Ex. S. The report was much more critical of plaintiff's attitude and work ethic. *fn3"

 E. Alleged Misappropriation of Documents

 After her termination, plaintiff, like other terminated employees, was provided an office and a telephone by the firm with which to conduct a job search. While in her assigned office, plaintiff noticed a file with her name on it. She opened the file, noticed documents having to do with defendant's professional evaluations of her, and then made copies of the documents. On February 25, 1993, plaintiff's original counsel in this matter wrote to defendant that plaintiff had inadvertently discovered a file containing Frank's hand-written notes regarding her professional evaluations. See Panken Aff. Ex. F. The letter stated that plaintiff had returned the file to defendant. See id. On February 26, 1993, defendant wrote to plaintiff's counsel, stating that (1) if plaintiff has any documents or other firm property, it should be immediately returned, and (2) because plaintiff had abused her job search privileges, she was no longer permitted at defendant's offices. See id. Ex. G. Later discovery revealed that plaintiff had made and maintained copies of evaluation information on 20 other associates as well as herself. See id. P 18 and Ex. E. Plaintiff admits she did this, but maintains that the box holding these files was open and was not marked confidential. See Pl.'s Aff. P 50.


 I. Plaintiff's Federal Claims

 Plaintiff alleges that defendant violated Title VII of the Civil Rights Act of 1964 (the "Act"). See 42 U.S.C. § 2000e-2(a)(1). Section 2000e-2(a)(1) of the Act states that it is an unlawful employment practice for an employer "to . . . discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). A 1978 amendment to the Act clarified that "because of sex" includes "because of or on the basis of pregnancy, childbirth, or related medical conditions; and women ...

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