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GUADAGNO v. WALLACK ADER LEVITHAN ASSOCS.

January 14, 1997

EMILIA GUADAGNO, Plaintiff, -v.- WALLACK ADER LEVITHAN ASSOCIATES, NATIONAL LIFE OF VERMONT, Defendants.


The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 District Courts wade into capricious currents at their peril; but the pending motions in this case impel the Court to address aspects of two unsettled but recurrent issues in federal employment discrimination law. They are, first, whether proof of "pretext" -- i.e., proof from which a fact-finder could infer the unbelievability of an employer's stated reasons for its challenged actions -- is sufficient to defeat the employer's motion for summary judgment; and, second, to what extent, if any, a party to such a motion may advance a legal or factual position at odds with statements the party has previously made under oath.

 Plaintiff Emilia Guadagno, a long-time secretarial and clerical employee of defendant Wallack Ader Levithan Associates and its predecessors ("Wallack Ader"), was terminated in early 1992 for what she alleges was "no stated reason" (Complaint, P7). At the time of her termination, Ms. Guadagno was 47 years old and unmarried. She thereafter commenced this lawsuit, alleging that Wallack Ader and co-defendant National Life of Vermont -- who she alleged was also her employer (Complaint P12) -- had discriminated against her on the basis of her "age, gender and marital status" (Complaint, P21), in violation of, respectively, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq.

 At the close of discovery, Wallack Ader duly renewed its jurisdictional motion, advancing new evidence that it had fewer than 15 employees at the relevant times. *fn1" Additionally, it moved for summary judgment on the ground that "plaintiff's own testimony and interrogatory answers describing the substance of her claim demonstrate as a matter of law that plaintiff cannot make out a recognized cause of action for discrimination under Title VII." Defendant's Notice of Motion at 1-2. Specifically, defendant argued that "plaintiff's deposition testimony and her responses to Wallack Ader's discovery requests demonstrate that while plaintiff describes her Title VII claim as being based on gender and marital status, it is really based on the claim that she was discriminated against [only] because of her marital status . . . [which] is not a proper basis for a claim under Title VII." Defendant's Summary Judgment Memorandum at 20.

 In response, plaintiff did not challenge the contention that discrimination on the basis of marital status alone would not state a viable claim under Title VII. See Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 310 n.9 (2d Cir. 1996); Long v. AT&T Information Systems, Inc., 733 F. Supp. 188, 200 n.12 (S.D.N.Y. 1990); see also Fisher v. Vassar College, 70 F.3d 1420, 1447 (2d Cir. 1995). But she strenuously disputed that her deposition responses excluded a Title VII claim premised on gender discrimination. For one thing, she argued, her deposition was entirely silent as to the portion of her Title VII claim relating to termination. See, e.g., Affidavit of Emilia Guadagno, Dec. 5, 1996, P1 ("At my deposition, defendant's counsel asked me no questions concerning the circumstances of my termination or the basis of my central claim -- that I was terminated on the basis of my gender."). More generally, she argued, any concessions she may have made in her deposition as to the legal theory or factual premise of her Title VII claim did not legally estop her from pursuing a validly pled Title VII claim as to which she had otherwise met her evidentiary burden under Rule 56. Cf. Plaintiff's Summary Judgment Memorandum at 18-23.

 In substantial measure, the Court concurs with both of these arguments. While defendant's summary judgment memorandum purports to offer "an exhaustive examination of all of plaintiff's purported bases for her Title VII claim," Defendant's Summary Judgment Memorandum at 34, in actuality it is quite selective, wholly ignoring the claim of discriminatory termination and considerably distorting some of the sources on which it purports to rely. *fn2" Even on their face, moreover, the "admissions" on which defendant seeks to rely do not have the legally dispositive effect defendant attributes to them.

 For example, on the subject of vacation benefits, plaintiff testified at her deposition as follows:

 
A. Yes.

 (Guadagno Dep. Tr. 25).

 Had this response been given in answer to a contention interrogatory, its legal effect might have been to preclude plaintiff from contending that the portion of her Title VII claim relating to holiday vacations alleged discrimination on any ground other than marital status. *fn3" See American Auto. Assoc. v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991); Airco Indus. Gases, Inc. Div. of the BOC Group, Inc. v. Teamsters Health and Welfare Pension Fund of Philadelphia, 850 F.2d 1028, 1036 (3d Cir. 1988); but see Kelly v. Curtis, 21 F.3d 1544, 1548 (11th Cir. 1994). Its effect in response to a question put at her deposition stands, however, on entirely different footing. Quite aside from the numerous evidentiary objections to its admissibility preserved under Fed. R. Civ. P.32(b) and (d), its effect at most would be no more than if Ms. Guadagno had testified at trial that she possessed no personal knowledge whether Wallack Ader discriminated with respect to holiday vacations on any ground other than marital status. Such testimony would not preclude her at trial from offering competent evidence through documents or through the testimony of persons such as Messrs. Wallack and Ader who did have personal knowledge tending to prove that the determination of holiday vacations was also based on other forms of discrimination, such as gender.

 This difference in estoppel effect between a contention interrogatory response and a deposition answer derives from both practical and functional concerns. As a practical matter, a party-deponent cannot reasonably be held to the same precision of expression, breadth of knowledge, or legal expertise as a party responding through counsel to a written interrogatory. As a matter of function within the legal process, the purpose of a response to contention interrogatory is entirely different from an answer to a question at a party ...


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