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PASTOR v. TWA

December 27, 1996

HUMBERTO PASTOR, Plaintiff,
v.
TRANS WORLD AIRLINES, INC., Defendant.



The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 Defendant Trans World Airlines, Inc. ("TWA") moved for an order disqualifying plaintiff Humberto Pastor's counsel Barbara Zimet. For the reasons that follow, defendant's motion is granted.

 FACTS

 On February 4, 1993, plaintiff Humberto Pastor lost his position as a Baggage Services Supervisor for TWA. Complaint P 7. Sometime in 1994, Pastor retained attorney Barbara Zimet to represent him in an action alleging employment discrimination against TWA. Zimet Aff. P 13. In July 1994, Pastor filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), and in connection with that charge, in the fall of 1994, Zimet exchanged telephone calls and correspondence with the in-house counsel staff at TWA. Zimet PP 13, 14. Zimet was familiar with in-house counsel staff procedures at TWA because she had been employed as a TWA staff attorney for nearly ten years from September 1976 until June 1986. Zimet mentioned this fact to TWA in-house staff attorney Alane C. Probst who was handling the Pastor case for TWA during the fall of 1994. Zimet Aff. P 14.

 Katz discussed Zimet's waiver request with Mark Buckstein, then TWA General Counsel, and then called Zimet again. Katz Aff. P 3, 4. Katz attests:

 
I informed Ms. Zimet that, after extensive internal discussions, TWA decided not to object to her representation of the one TWA employee, and perhaps the two others in connection with their severance packages. During the conversation, I stressed that TWA's 'waiver' was expressly limited to those three individuals and, with respect to each of them, that one matter."

 Katz Aff. P 4. Despite Katz's exhortation that "TWA's 'waiver' was expressly limited to those three individuals and ... that one matter," when one of the three employees later filed an EEOC charge against TWA, Zimet continued to represent him. Zimet also represented that employee in a subsequent employment discrimination suit in federal court. Thereafter, Zimet represented another former TWA employee in the same federal employment discrimination suit. Katz Aff. P 5. It appears from the evidence submitted by the parties that neither Zimet nor TWA raised the issue of a waiver in connection with this new client. Zimet's affidavit suggests, but does not explicitly state, that she understood the 1990 waiver to be generally applicable to any of her clients who might bring suit against TWA. Zimet Aff. P 17. Katz attests that, with respect to the federal employment discrimination case

 
both [plaintiffs'] claims fell within the scope of TWA's bankruptcy proceedings and, as a result, would not be handled as discrimination proceedings in the usual manner. TWA did not object to Ms. Zimet's representation of those two individuals, because, among other things there was no risk of any violation of the confidences TWA entrusted to Ms. Zimet.

 Katz Aff. P 5.

 In May 1996, several months after receiving a right to sue letter from the EEOC, plaintiff Pastor filed his complaint in this action alleging that defendant TWA discriminated against him on the basis of his age, disability and national origin and materially misrepresented his pension plan rights. Zimet Aff. P 16; Complaint P 4. TWA filed its answer on August 8 and on September 10, 1996, Zimet received a letter from Israel E. Kornstein, of the firm of Roberts & Finger, which stated in part:

 
Dear Ms. Zimet: We represent the defendant Trans World Airlines, Inc. ("TWA") in [Pastor v. Trans World Airlines, Inc., 96 Civ. 2138]. The purpose of this letter is to put you on notice that you are ethically prohibited from representing Mr. Humberto Pastor in this age, national origin and disability discrimination and ERISA action against TWA .... We urge you and your firm to withdraw as Mr. Pastor's counsel promptly, consistent with the mandates of the Code of Professional Responsibility and without compelling TWA to move for your disqualification.... [Through] mid-1986, you were employed by TWA as an attorney. During that time you provided legal advice to TWA in the employment area and, in that capacity, had access to confidential information and policies of TWA that are directly connected with issues pertaining to Mr. Pastor's lawsuit.
 
Moreover, and most dramatically, this lawsuit in which Mr. Pastor charges TWA with "a continuing pattern and practice" of age and national origin discrimination, is not the first time that Mr. Pastor has charged TWA with age and national origin discrimination. In 1979, Mr. Pastor filed a complaint with the New York State Division of Human Rights and, in 1980, he filed a charge with the Equal Employment Opportunity Commission against TWA. You appeared as TWA's attorney in response to Mr. Pastor's employment discrimination charges. A negotiated settlement was reached.

 Kornstein Aff. P 4, Ex. A.

 
In her affidavit, Zimet describes her reaction to this ...

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