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January 28, 1997

GRACE HAZELDINE, Plaintiff, against BEVERAGE MEDIA, LTD., Defendant.

The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:


 Beverage Media is a small, family owned business that publishes several magazines for the wine and spirit trade. One such magazine, "Beverage Media Journal", is published in two separate editions: the Metro edition for the New York City area, and the Upstate edition for the surrounding counties. William Slone has been the president of Beverage Media for 15 years.

 Hazeldine's Obesity

 Grace Hazeldine began working at Beverage Media in 1980 as a part-time proofreader. At the time she was hired, she weighed 150 pounds. Hazeldine gradually gained weight over the course of her employment, so that since the mid-1980's, she has weighed at least 290 pounds. According to a letter from her physician, Dr. Licciardone, Hazeldine is "morbidly obese."

 It is undisputed that Hazeldine's obesity never interfered with her ability to do her work at Beverage Media. In fact, Hazeldine testified at her deposition that she worked harder and longer hours than most people. She also stated in her deposition that her obesity did not prevent, interfere or even affect her ability to use public transportation while she was an employee at Beverage Media. Hazeldine commuted to work from New Jersey by bus and subway everyday, walking the remaining distance from the subway to her office.

 In addition, Hazeldine testified that her weight condition at the time of her termination did not prevent her from carrying out everyday physical activities such as walking or going upstairs. In fact, when asked, Hazeldine could not think of any physical activities that she could not perform because of her obesity. However, Hazeldine also testified that her ability to engage in some of these physical activities was limited: she could not walk long distances or lift anything too heavy, and she could not engage in heavy physical exercise such as running or jogging.

 In a later affidavit, Hazeldine states that she had to stop and rest even when doing less strenuous activities such as cleaning the house, walking five city blocks or climbing subway stairs. According to Lorayne Coneys, Hazeldine's roommate in 1992, Hazeldine could not shovel snow, move furniture around, or climb a ladder. Raking leaves would result in labored breathing and heart palpitations, and Hazeldine would have to take frequent breaks. Coneys also states that Hazeldine could not walk her dogs more than a block, could not bend or kneel, and often twisted her ankles such that they would bruise and become swollen. As a result of these limitations, Coneys states that Hazeldine would engage in any required physical activity on Saturdays, to allow herself a day to rest before returning to work.

 In her deposition testimony, Hazeldine testified that she went to one weight loss program at Holy Name Hospital in 1987, but otherwise never consulted a doctor about her obesity. In fact, Hazeldine considered herself to be in good health and testified that "I am very healthy besides being overweight, I have good blood pressure, and I didn't really consider it a problem." However, records from Holy Name Hospital show that Hazeldine was diagnosed with hypertension and coronary insufficiency in 1987. In addition, Hazeldine began seeing a therapist in 1990, Sara Penchuk, who concluded that Hazeldine had an eating disorder and exhibited depressive qualities. Hazeldine has been taking Prozac intermittently since that time.

 Employment Conditions at Beverage Media

 When the assistant production manager job became available in 1988, the company's production manager, Phil Alberts, told Hazeldine that Slone wanted to hire a man for the position and that she was not being considered for the job. When she threatened to quit, she was finally given the job. When Alberts left the company in 1991, Hazeldine immediately assumed his duties as production manager. However, it was not until she sent a memo to Slone three months later requesting a raise and the title of production manager that she was formally promoted to the position and given a salary of $ 61,000 a year.

 Hazeldine also testified that the terms and conditions of her employment as production manager were significantly less favorable than those that Alberts had enjoyed. She was paid several thousand dollars less than Alberts and was not given the officer's title that he had held. The masthead was not even changed to reflect her promotion until three months later. In addition, her request for a company car was denied, although Alberts' request had been granted. An assistant production manager was not hired to help her for six months; when the position was finally filled, Hazeldine had to share the assistant with another manager. Hazeldine also says she was denied the direct access to Slone that Alberts had enjoyed. Instead, Slone directed her to communicate with him through his cousin, Gerry Slone, who also worked at Beverage Media.

 According to Hazeldine and Anita Rosepka, the former senior editor at Beverage Media, Slone regularly treated men and women differently. Men could be nasty and abrasive, but if a woman disagreed with Slone or raised her voice, she was accused of being hostile, argumentative or hysterical. While Hazeldine was disciplined and called hysterical when she had one confrontation with a customer, Alberts was never disciplined for regularly yelling at everyone, including customers. Rosepka recalls Slone telling her to "lighten up," smile more and be friendly.

 In response, Slone points out that five out of six departments at Beverage Media were run by women in May 1992. However, Hazeldine points out that most of the women who were managers in May 1992 were fired or quit around the same time that Hazeldine was discharged. In addition, according to both Rosepka and Hazeldine, Slone commented during a meeting with them and another female manager that he felt "surrounded." Hazeldine also states that Slone said women were hard to get along with. Rosepka reports that Slone told her to hire a man when she wanted to replace her assistant because "we have enough women running things around here." Slone denies making this statement.

 Hazeldine's Termination

 As production manager, Hazeldine was responsible for the timely production and distribution of the company's publications, including the Upstate edition of "Beverage Media." The Upstate edition was then published on a monthly basis and was typically mailed to customers in the first week of the month. However, in 1992, the October issue of the Upstate edition was not mailed until November 4, 1992, about a month late.

 Brian Donna, an account manager for Beverage Media's printer, testified in his deposition that Hazeldine sent him the mechanicals for the October 1992 issue several weeks late. In addition, according to Donna, Hazeldine threatened to find another printer for the magazine if Donna told Slone about the delay. Despite Hazeldine's threat, Donna reported the conversation to Gerry Slone after he called looking for a sample of the October issue. At some point in October 1992, Slone himself asked Hazeldine the status of the October 1992 issue. According to him, Hazeldine lied in response to his inquiry and never told him that the October issue had not yet been produced.

 On November 24, 1992, Slone informed Hazeldine that she was being terminated. At that time, Slone did not mention the lateness of the October 1992 Upstate edition as a reason for her termination. In fact, Hazeldine testified that Slone assured her that she was an excellent employee, but mentioned financial considerations. When she offered to take a pay cut, Slone refused and told her that the company was moving to smaller offices, that she was a "big girl" and there was no room her there. Slone denies making this statement. At the time of her discharge, Hazeldine weighed between 295 and 310 pounds.

 By letter dated November 25, 1992, Slone informed Hazeldine that she was being terminated for cause. Slone now testifies that Hazeldine was terminated for two reasons: her failure to produce the October 1992 Upstate edition on a timely basis, coupled with her subsequent efforts to cover up the error; and the company's need to improve billing and cut production costs in the face of an economic downturn.

 According to Slone, the company was able to reduce production costs significantly after Hazeldine was terminated. Gerry Slone assumed her duties on a part time basis at a salary of only $ 40,000, compared to Hazeldine's salary of $ 61,000. In addition, whereas the company had previously paid Hazeldine's parents over five thousand dollars for proofreading services, that function was absorbed within the company. Billing procedures were also made more efficient and travel expenses were reduced since Gerry Slone commuted a shorter distance to the printer.

 Hazeldine points out that she had been successful in reducing production costs during her tenure as production manager by reducing excess printing and computerizing the production system, and that Slone was aware of these efforts. Both Hazeldine and Rosepka also state that the Upstate edition was not a major priority for the company and its late production would not be a cause of great concern. Overall, Rosepka and Hazeldine assert that Hazeldine was an excellent production manager.

 Hazeldine also testified that Slone's comments on November 24, 1992 were not the first time he had inappropriately brought attention to her weight. According to Hazeldine, Slone often told her that she could work harder if she lost weight. In addition, Hazeldine says that Slone always made a point of telling her that the popcorn he made as a snack was "lite." On one occasion, Gerry Slone told Hazeldine that Slone blamed her gallbladder operation and subsequent absence from work on the fact that she was overweight. Hazeldine also testified that Slone restricted her dinner expenses to ten dollars, even though no other employee was limited to that extent.

 Shortly after she was fired, Hazeldine filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). After receiving notice of her right to sue, Hazeldine filed the instant complaint, alleging that she was terminated because she was a woman and because she was obese. Beverage Media denies Hazeldine's claims, asserting that she was fired for cause and as part of an effort to reduce costs.



 Under Fed. R. Civ. P. 56(c), the moving party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In considering such a motion, "a district judge must view the evidence in the light most favorable to the non-moving party and must draw ...

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