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KEY v. HEARST CORP.

May 1, 1997

KEVIN KEY, Plaintiff, against HEARST CORPORATION and HEARST MAGAZINE DIVISION, Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Kevin Key ("Key") alleges that his dismissal by defendants Hearst Corporation and Hearst Magazine Division (together "Hearst") upon his return from military leave violated the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 4301(b)(1) and 4303(d). *fn1" Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, the motion is granted and the complaint is dismissed in all respects.

 BACKGROUND

 Key, an African-American male, was hired as an Assistant Advertising Coordinator for Hearst's Country Living magazine in July 1989. (Pl. Dep. 6, 9, 11, 17). *fn2" Key joined the National Guard Reserves in 1991. (Pl. Dep. 73). Accordingly, Key was required to train for 13 weeks as well as to perform reserve duty two weeks a year and one weekend per month. (Pl. Dep. 73-74). Key's department head at the time, Allan Bittner, replied "Okay, fine" when notified of Key's military commitment. (Pl. Dep. 75). Other Hearst employees, including Key's subsequent supervisor, Susan Gon ("Gon"), congratulated Key. (Gon Dep. 114-15, Alfred G. Feliu Aff. Ex. E.). Hearst hired a temporary employee to fill in for Key during Key's 13-week training leave. (Pl. Dep. 76). Key took a one-week vacation upon completing his training in September 1991. (Pl. Dep. 73-74).

 In July 1992, Key applied for, and was granted, a transfer to a different Hearst magazine, Colonial Homes. (Pl. Dep. 22-23). Key asked Josephine Duryea ("Duryea"), the Group Manager for Colonial Homes, to consider him for the position because he was "unhappy" at Country Living. (Pl. Dep. 25; Duryea Dep. 60-61, Alfred G. Feliu Aff. Ex. F). Key stated that he was having problems with his supervisor at Country Living, JeanMarie Hayes. (Pl. Dep. 25; Duryea Dep. 60-61). Duryea stated that she was "happy to have him" join her team. (Pl. Dep. 25). Consequently, Duryea recommended Key to Gon, the supervisor at Colonial Homes. (Id.). Gon authorized the transfer and met with Key to discuss the responsibilities of the Assistant Advertising Coordinator position at Colonial Homes. (Pl. Dep. 25-26).

 Three weeks after Key began working at Colonial Homes, Key took a two-week military leave from August 8-22, 1992, which Gon had authorized in late July. (Pl. Dep. 78-79). Following his military leave, Key took a one-week vacation. (Pl. Dep. 79).

 Soon thereafter, Key asked Duryea to consider him for the Advertising Coordinator position at another Hearst magazine, Esquire. (Pl. Dep. 33; Duryea Dep. 58; Gon Dep. 80). The Advertising Coordinator position would have been a promotion for plaintiff. (Pl. Dep. 32-34, 131-32, 168, 228-29). Key sought the position because it was a "challenge" and he would no longer need to "try[] to look busy." (Pl. Dep. 34). Duryea recommended Key for the position at Esquire to Gon who, in turn, hired Key, with a pay raise. (Pl. Dep. 34-35; Gon Dep. 80).

 By November 1992, however, Key failed twice to appear for work; he did not inform Duryea of his absence on those occasions. (Duryea Dep. 74-6, 88). Consequently, Duryea drafted a memorandum dated November 16, 1992 ("November Notice") reminding Key of proper working hours and instructing Key to call by 9:00 a.m. if he was to be absent that day. (Calitri Aff. Ex. 1). The November Notice also stated that Key had a problem getting information to sales representatives on time and requested that Key not delegate work to others without first going to Duryea. (Id.). For example, Peter Fisher ("Fisher"), a sales representative, complained to Duryea that Key had failed to respond for three weeks to Fisher's request for account information. (Calitri Aff. Ex. 1; Duryea Dep. 126). Although Duryea testified that she placed the November Notice on Key's desk (Duryea Dep. 90-91), Key testified that he never received the notice. (Pl. Dep. 97).

 On December 3, 1992, Duryea informed Gon that she, along with the credit department and sales representatives, was having problems with Key's performance. (Duryea Dep. 121-24). Consequently, Gon held a counseling session with Duryea and Key, while also reprimanding Key for a shouting confrontation with Duryea. (Gon Dep. 144; Duryea Dep. 135-36). Gon's memorandum ("December Memorandum") of the meeting confirmed that it was "expressed to you and clearly understood that your tardiness and indifference towards Josephine [Duryea]'s supervision of you and your position will not be condoned." (Calitri Aff. Ex. 3). The December Memorandum requested that Key arrive to work on time and follow Duryea's direction without constant challenge. (Id.).

 In February 1993, because Key's reserve unit was being closed, his military duties were accelerated. This required Key to go out on military leave for an entire week in each of March, April and May 1993 rather than one weekend a month. Duryea testified that she believed that Key would be obligated to go out on military leave for one week "every month for the foreseeable future" *fn3" as opposed to the next three months. (Duryea Dep. 92).

 Furthermore, Duryea stated in the March Memorandum that Key yelled at her on several occasions, telling her that he "[didn't] want to hear it" when reminded of proper working hours. (Calitri Aff. Ex. 4). Duryea noted that Key's attitude had not improved since the December meeting because he was still extremely rude to her. (Id.) Duryea concluded that although Key was "very capable" of performing the duties ...


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