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MORRISSEY v. SYMBOL TECHS.

January 11, 1996

SHEILA MORRISSEY, Plaintiff, against SYMBOL TECHNOLOGIES, INC., Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 The defendant, Symbol Technologies, Inc. ("Symbol" or the "Company"), moves pursuant to Fed. R. Civ. P. 56 for summary judgment in its favor in this pregnancy discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and the New York State Human Rights Law § 290 et seq. Symbol contends that the plaintiff, Sheila Morrissey ("Morrissey") has failed to articulate any facts supporting her claim, and therefore the defendant is entitled to judgment as a matter of law.

 BACKGROUND

 The plaintiff is a former employee of Symbol who filed sex discrimination and pregnancy discrimination charges against the Company pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Morrissey claims that she was terminated from employment due to her pregnancy and resulting maternity leave.

 Morrissey worked for Symbol as a Senior Market Research Analyst since September 1989. Symbol offers a Medical Leave of Absence Policy which permits an employee to request up to three months of medical leave for certain medical conditions including pregnancy. According to this policy an employee on maternity leave is guaranteed reinstatement if she returns within three months. A significant provision in this medical leave policy is as follows:

 
When as an associate goes on a disability leave for greater than three months the company reserves the right, based upon business conditions, to replace the individual on either a regular or a temporary basis. If an associate requests to return after being out for greater than three months Symbol will not be able to guarantee employment.

 In August 1991, Morrissey informed her supervisor that she was pregnant and requested a combined personal and maternity leave. According to the defendant, this leave began on January 27, 1992. According to the plaintiff, as of January 27, she was out at her "Manager's discretion" and her maternity leave began on February 19, 1992, the day her son was born. In any event, Symbol concedes in its supporting memorandum of law that Morrissey was granted medical leave until May 19, 1992. The plaintiff was partially paid during this medical leave.

 However, on April 9, 1992, Morrissey sent Symbol a letter requesting an extension of her leave beyond the May 19, 1992 date. This request was accompanied by a doctor's note indicating that Morrissey would be unable to return to work until July 1, 1992 as the result of back problems she was having followed her pregnancy. In response to this letter Morrissey was sent an application for long term disability. According to the defendant, she completed this form, "indicating that she was totally disabled and unable to return to work." Def. Mem. of Law at 6.

 According to Morrissey, at a May 1, 1992 meeting, Symbol informed her that she could not return to work because her maternity leave of absence was "not authorized" by Symbol's director of personnel. Then on May 5, 1992, Symbol advised her that she was being terminated because "of her inability to return to work" as demonstrated by her April 9, 1992 letter requesting an extension of her leave. The defendant asserts that Morrissey was terminated as the result of a reduction in force in which her job was eliminated and her duties were reallocated.

 Morrissey contends that she then attempted to apply for another position at Symbol at the same skill level for which she was qualified, but Symbol refused to accept the application. The defendant responds that applications for this position were never solicited because the position was never filled as the result of a nationwide downsizing. The plaintiff also claims that she applied for a "Sales Support" position, but that Symbol never acted on her application. The defendant contends that it has no record of this application. These are apparently disputed issues of fact. However, based on the reasons set forth below, they are not material triable issues sufficient to preclude summary judgment.

 Morrissey then filed a Notice of Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on June 12, 1992, alleging sex and pregnancy discrimination arising from her wrongful termination because of her pregnancy. The EEOC subsequently issued a right to sue letter to Morrissey.

 Morrissey timely filed the above captioned complaint along with applications to proceed in forma pauperis and for the appointment of counsel on October 26, 1993. Those applications were respectively granted on October 26, 1993 and November 22, 1993.

 Symbol now moves this Court for an order granting the defendant summary judgment, arguing that the plaintiff has failed to set forth any facts supporting her discrimination claim and that ...


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