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FITZGERALD v. ALLEGHANY CORP.

November 17, 1995

ROBERT A. FITZGERALD, Plaintiff, against ALLEGHANY CORP., et. ano., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff Robert Fitzgerald alleges that his employer, Chicago Title Insurance Co. ("Chicago Title"), discriminated against him on the basis of disability in violation of New York law when it discharged him upon learning that he was seeing a psychiatrist who had prescribed Prozac and Klonopin for depression. *fn1" The discharge took place in the context of a consolidation of Chicago Title and Ticor Title Guaranty Co. ("Ticor") that resulted in substantial layoffs. Chicago Title moves for summary judgment on a number of grounds, arguing that the alleged disability is not protected and that plaintiff fails to raise a triable issue of fact as to whether discriminatory animus motivated the discharge. *fn2"

 Facts

 The Ticor-Chicago Title Acquisition

 Fitzgerald began working for Ticor in July 1987, and by early 1991 he was a Senior Vice President and the New York City Zone Manager. Ticor and Chicago Title were then direct competitors, each with a New York City branch office.

 On March 8, 1991, Chicago Title acquired the assets of Ticor, and Fitzgerald became an employee of Chicago Title. During Fitzgerald's employment with Chicago Title, he reported to Gary Cortellessa, the then New York City Area Manager. Cortellessa reported to Michael Lewis, the Senior Vice President and Northeastern Regional Manager. Ruth Lundy served as the Northeast Region Human Resources Manager.

 About a month after the acquisition, all Chicago Title and Ticor functions in New York City were consolidated into a single office. The two companies employed approximately 180 people in their New York operations, many with overlapping functions. In consequence, during the period between March 8, 1991 and September 17, 1991, Chicago Title terminated over fifty employees due to the integration of Ticor's and Chicago Title's New York operations. Fitzgerald was involved in terminating many of these employees, personally conducting most of the termination meetings.

 Fitzgerald's Termination

 The decision to terminate Fitzgerald was made between September 13 and 16, 1991, by Cortellessa, approved by Lewis, and discussed with Lundy, who concurred in the decision. At that time, Chicago Title was consolidating its national business structure from approximately eight regions into three operation divisions. Cortellessa was to be transferred to the Mid-Atlantic Area, which would become part of a newly created Northeast Division.

 According to Chicago Title, along with this change in structure, it was necessary to select someone for the position of New York City Branch Manager. The candidates were Fitzgerald and Marion Latham, who had been the Chicago Title New York City Branch Manager before the acquisition and performed special functions during the acquisition period, including installing and supervising a computer project. According to Cortellessa's deposition testimony and the interrogatory answers verified by Cortellessa, Latham was viewed as having the technical abilities needed to manage the operations, and it was agreed unanimously that she was more qualified for the position than Fitzgerald. In consequence, Chicago Title decided to appoint Latham and terminate Fitzgerald.

 The decision to terminate Fitzgerald was made while Fitzgerald was at Chicago Title's corporate headquarters for a training meeting. When Fitzgerald returned from Chicago on September 17, 1991, Cortellessa told him that Chicago Title no longer had a position for him as a result of further restructuring and consolidation. In response, Fitzgerald told Cortellessa that he had known for some time that he would be terminated.

 The Claim of Discrimination

 Fitzgerald contends that Chicago Title's reason for terminating him was pretextual, in that he was perfectly qualified for the branch manger position, and that discriminatory animus motivated his discharge. It is ...


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