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NEMBHARD v. MEMORIAL SLOAN-KETTERING CANCER CTR.

March 11, 1996

INEZ NEMBHARD, Plaintiff, against MEMORIAL SLOAN-KETTERING CANCER CENTER, Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 On February 16, 1996, following a three-day trial in this employment case, the jury returned a verdict in favor of plaintiff Inez Nembhard against defendant Memorial Sloan-Kettering Cancer Center ("Memorial") on her claim of age discrimination. The jury awarded Ms. Nembhard back pay in the amount of $ 110,000 and found that Memorial acted willfully. The jury awarded no damages, however, for front pay and pain and suffering, and it also found in favor of Memorial with respect to plaintiff's claim of race discrimination.

 Before the Court are Memorial's motion for judgment as a matter of law or, alternatively, for a new trial and plaintiff's motion for attorneys' fees and costs. For the reasons that follow, Memorial's motion is denied and plaintiff's motion is granted to the extent set forth below.

 Statement of the Case

 A. Summary of the Facts1

 Ms. Nembhard, an African-American woman, was employed in the payroll department of Memorial from June 1975 until she was discharged on January 11, 1993. Throughout her career at Memorial, she received favorable performance evaluations and her work was generally well regarded. At the time of her discharge, she was a Payroll Supervisor and was 41 years old.

 In December 1992, Ms. Nembhard went on vacation to Antigua. She was scheduled to return to New York City on Sunday, January 3, 1993 and was expected back at work the next day, Monday, January 4th. Because of difficulties with her flight, however, she was unable to return to New York on January 3d. She called her supervisor, Shelley Pope, and left a message on Pope's answering machine to the effect that her flight was overbooked, that she was still in Antigua, and that she was trying to get out as soon as she could. (Tr. 89). *fn2"

 Plaintiff was unable, however, to get a return flight on either Monday or Tuesday. Her mother called Memorial both days to explain that plaintiff was still unable to return. Ms. Nembhard finally returned to New York Wednesday night. On Thursday, however, she was unable to go to work; she called Ms. Pope in the morning and explained that she was sick, but that she would try to make it to work the next day. (Tr. 93).

 On Thursday afternoon, two police officers knocked on the door to Ms. Nembhard's home. She was advised that her friend, Charles Ephraim, had passed out in the street outside. She went to him and accompanied him to the hospital, where she remained with him until approximately 2 a.m. Friday. (Tr. 94-95). She then went home. When she awoke later that Friday morning, she still felt sick. She called her office, spoke to a co-worker, and explained that she was "still feeling sick, and [had been] at the hospital all night with Charles because he collapsed in the street." (Tr. 95). She did not go to work. She called the hospital, however, to check on Ephraim, and when she was told that they did not know who he was, she went to the hospital again, found Ephraim, and stayed with him until Friday afternoon.

 On Monday, January 11, 1993, Ms. Nembhard returned to work. When she asked her co-workers if there had been any problems while she was away for the holidays, "everyone said no." (Tr. 97). At noon, she was summoned to a meeting with Ms. Pope and Mark Svenningson, who was the Comptroller and Pope's immediate supervisor. Mr. Svenningson told plaintiff that Memorial had lost confidence in her ability to do the job because they did not believe her "story about coming back from Antigua." (Tr. 98-99; see also PX 6). Ms. Nembhard was offered a severance package to resign. She refused to resign, however, and accordingly she was discharged.

 Plaintiff was eventually replaced by someone who was 40 years old. At the time plaintiff was discharged, Ms. Pope was 32 years old.

 B. Other Evidence of Age Discrimination

 At trial, plaintiff also presented the following evidence of age discrimination:

 Ms. Nembhard testified that on at least three separate occasions Ms. Pope referred to her as an "old black fly" that Pope said "she had been trying to get rid of for awhile now." (Tr. 65; see also Tr. 68, 70, 151). The first of these statements was made in June or July 1992, the second ...


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