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March 1, 1997

BARBARA VISCO, Plaintiff, against COMMUNITY HEALTH PLAN, and DALE SCHECTER, both individually and as an agent of Community Health Plan, Defendants.

The opinion of the court was delivered by: MC AVOY


 This case concerns allegations of sex/pregnancy discrimination arising out of the plaintiff's termination from employment at the defendant Community Health Plan (CHP). The defendants, CHP and Dale Schecter, the plaintiff's most recent supervisor at CHP, now come before the Court seeking summary judgment against the plaintiff, Barbara Visco, as to all claims set forth in the Complaint.

 Briefly, the plaintiff has worked for CHP since July 1991. *fn1" At that time she was employed as a temporary data entry clerk. She became a full-time employee and was transferred to the Troy Health Center.

 In March 1993, the plaintiff transferred to the Dedicated Service Unit. *fn2" The plaintiff worked in various capacities in that Unit until November 1994. During that time, the plaintiff was supervised first by Debra Devine and then Marcia Griffith. The defendants allege that Marcia Griffith discussed with the plaintiff her abuse of the phones. Ms. Griffith allegedly told the plaintiff that she was spending too much time on personal calls. She also advised the plaintiff that she would be disciplined if she did not curb her excessive usage. Phone records from June through September 1994 indicate that the plaintiff made 348 phone calls, totaling 24 hours and 37 minutes of work time. The defendants also state that the phone abuse may have been more severe given that the phone records only reflect the number and duration of outgoing calls.

 The plaintiff disputes the defendants' version of events concerning phone calls during this period of time. According to the plaintiff, Ms. Griffith addressed the entire staff, not the plaintiff alone, about phone usage. Moreover, the plaintiff alleges that she received awards while under Ms. Griffith's supervision, and never received a performance review, much less a negative review. Finally, the plaintiff alleges that her job required phone use, and that the majority of the calls listed on the phone logs were work related calls.

 In late November 1994, the plaintiff transferred to a position in the Premium Billing Department. The plaintiff claims that she was hired to assist the defendant Schecter with an increased workload that was overwhelming Schecter. According to the defendants, this position did not require the use of the phone.

 Subsequent to the plaintiff's announcement of her pregnancy, the plaintiff alleges that the defendant Schecter began to treat her differently, e.g., ceasing to provide needed additional training, avoiding plaintiff, and being unavailable to answer questions. The defendants claim that the defendant Schecter was unaffected by the plaintiff's pregnancy. However, the defendants claim that in December 1994 and January 1995, defendant Schecter received several complaints from employees in the Premium Billing Department regarding the plaintiff's excessive phone use. These employees include: Christy Kaufman, who sat next to the plaintiff at work; Kim Santori, a team leader in the Department; Allyson Towler, a fellow supervisor in the Department; and Virginia Hordines, the defendant Schecter's supervisor. Following the receipt of these complaints, the defendant Schecter sat near the plaintiff's work area for a few days and listened to the plaintiff's phone conversations to test the validity of the complaints. The defendant Schecter concluded that the plaintiff was using CHP time and phone lines excessively for personal matters.

 On January 9, 1995, following the complaints and the defendant Schecter's observations, the defendant Schecter met with the plaintiff to discuss the alleged excessive phone use. The plaintiff was informed of the complaints against her and told to curb her personal phone use. However, the plaintiff apparently continued to use the phone excessively. Both Ms. Hordines and Ms. Towler witnessed this excessive phone use, and recommended terminating the plaintiff's employment to the defendant Schecter. Shortly thereafter, the defendant Schecter met with Amy Fey, CHP's Human Resources Manager, in regard to the possible termination of the plaintiff. Ms. Fey determined that adequate grounds existed for such action. The plaintiff was terminated from employment at CHP on January 26, 1995.

 The plaintiff denies excessive use of the phones at CHP for personal calls, although she admits that she was reprimanded by the defendant Schecter on January 9, 1995. Moreover, the plaintiff claims that she was not told that she would be fired if there was no change in the perceived problem. The plaintiff claims shock and embarrassment on January 26, 1995 when her employment was terminated. In addition, she claims that her phone use during the time frame January 9, 1995 through January 26, 1995, the time period after her reprimand and prior to her termination, was not excessive. The plaintiff also notes that the defendants conspicuously have not produced the phone records for that time period. It is the plaintiff's contention that the defendants have failed to produce these records because they would support the plaintiff's position.

 The plaintiff also contests the procedures employed to terminate her employment. The plaintiff claims that she was a permanent employee, not a probationary employee. The significance of this distinction is that permanent employees, pursuant to the CHP employee handbook, are entitled to advance notice of their pending termination "unless a serious violation of policies or procedures occurred." Plaintiff's Exhibit "L" - CHP Staff Handbook at 25. The plaintiff alleges that she received no such notice. Moreover, the plaintiff argues that the Staff Handbook contains only a general admonition to keep personal phone use to a minimum, rather than a clear expression of what is and is not excessive use. Finally, the plaintiff claims that other women in her Department have become pregnant, taken leave, and returned without losing their jobs. The plaintiff argues that her pregnancy and subsequent twelve week absence would have burdened her supervisor, who was having difficulties with her work load already, such that the supervisor decided to terminate the plaintiff's employment. The defendants, of course, deny the plaintiff's charge.

 In the present motion, the defendants allege that they are entitled to summary judgment as to the Title VII, New York Human Rights, and intentional infliction of emotional distress claims. As to the Title VII and New York Human Rights claims, the defendants claim that the plaintiff cannot make out a prima facie case of discrimination because she cannot establish the second prong of the McDonnell Douglas test, i.e., that she was performing her work satisfactorily. The plaintiff claims that all she must establish is that she was qualified for the job to meet this contested prong of the prima facie case. As to the intentional infliction of emotional distress claim, the defendants argue that there are no facts in the record rising to level of intentional infliction of emotional distress.

 The Court now turns to the issues presented.


 A. Claims One and Four as Against the Defendant Schecter

 Pursuant to a Stipulation of the parties, the plaintiff's first claim, alleging a violation of Title VII and the third claim, alleging tortious interference with contract, are dismissed, with prejudice, as against the defendant Schecter. The remaining claims for a violation of Title VII as against the defendant CHP, a violation of the New York Human Rights law, and intentional infliction of emotional distress are considered below.

 B. Standard for Summary Judgment

 The standard for granting a motion for summary judgment is well-settled. Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Rwy. Co. v. Conrail Corp., 902 F.2d 174, 178 (2d Cir. 1990), quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994), quoting 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil s 2721 at 40 (2d ed. 1983). However, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Celotex, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548; Azrielli, 21 F.3d at 517. Any assessments of credibility and all choices between available inferences are matters to be left for the fact finder, not matters to be decided by the Court on summary judgment. Id. ; See, e.g., Fed. R. Civ. P. 56(e), 1963 Advisory Committee Note; Agosto v. INS, 436 U.S. 748, 756, 56 L. Ed. 2d 677, 98 S. Ct. 2081 (1977). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

 Although the Court recognizes that "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated," such as in the context of claims of sexual harassment, Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (citation omitted), it is clear that "conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e)." Id. (citations omitted). Nevertheless, the Court's ultimate role when analyzing any summary judgment motion is not to weigh the evidence and determine the truth of the matter, but ...

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