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HELLER v. KREISLER BORG FLORMAN GEN. CONSTR. CO.

June 26, 1997

PHYLLIS HELLER, Plaintiff, against KREISLER BORG FLORMAN GENERAL CONSTRUCTION COMPANY, INC., Defendant.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) (1994 & Supp. 1997) et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 (1985) et seq., and New York State Executive Law § 290 (1995) et seq., plaintiff Phyllis Heller brings the instant action against defendant Kreisler Borg Florman General Construction Company, Inc. ("KBF"), alleging that KBF terminated her from her position as Corporate Treasurer on the basis of her gender and age. Pursuant to Federal Rule of Civil Procedure 56(c), KBF moves for summary judgment. For the reasons that follow, KBF's motion is denied.

 BACKGROUND

 Heller's duties included supervising payroll, maintaining various financial records, supervising KBF's funds on deposit with area banks, negotiating for better interest rates, contacting owners and subcontractors to collect payments due, assisting with union and insurance company audits, and assisting the outside accountants with the year-end and semi-annual audits. See Affidavit of Phyllis Heller Sworn to November 16, 1995 ("Heller Aff.") PP 10.

 Over the course of Heller's employment, her title changed three times and she received numerous salary increases and bonuses. See Deft.'s Rule 3(g) Stmt. P 10; Heller Aff. P 11. In November 1977, Heller was hired as Head Bookkeeper at a starting salary of approximately $ 20,000 per year. Id. In December 1978, her salary increased to approximately $ 21,600, plus a bonus of $ 3,000. See Heller Aff. P 11. In December 1979, Heller's salary increased to approximately $ 23,300, plus a bonus of $ 6,000. Id. The next year, 1980, Heller became Controller for KBF, and then in 1981 she received the title of Corporate Treasurer. See Deft.'s Rule 3(g) Stmt. P 10. By December 1983, Heller's salary reached approximately $ 34,600, plus a bonus of $ 20,000, and in December 1986, her salary increased to $ 41,600, plus a bonus of $ 23,000. See Heller Aff. P 12. In December 1988, Heller's salary increased to $ 49,400, plus a bonus of $ 25,000. Id. In December 1989, KBF informed Heller that she was going to receive a raise which would have increased her salary to $ 54,600, plus a bonus of $ 22,000. Id.

 KBF indicates that Heller's job functions remained essentially the same, while Heller maintains that as the company grew, the demands for information changed in both volume and content. See Deft.'s Rule 3(g) Stmt. P 10; Plaintiff's Statement Pursuant to Local Rule 3(g) ("Pltf.'s Rule 3(g) Stmt.") P 10.

 Heller testified in her deposition that during her employment, KBF's outside accountants constantly asked her to furnish more information and documentation, but that she couldn't effectively respond to their requests because they never explained precisely what they expected. See Deposition of Phyllis Heller dated December 16, 1992 ("Heller Dep.") at 140-42, 149-50, 358, 371, attached as Exh. C to Defendant's Notice of Motion for Summary Judgment; Pltf.'s Rule 3(g) Stmt., Exh. 1. Beginning in the mid 1980's, Florman and Borg observed that KBF's outside accounting costs were rising substantially. See Florman Aff. P 14. They addressed their concern to Howard S. Garlick and Fabio R. Berkowicz, the partners at Edward Isaacs & Company *fn1" who responded that Heller's failure to properly prepare needed schedules caused the increase. Id. The accountants also explained that they spent significant time correcting Heller's errors and creating necessary documents, which was being charged primarily to KBF. See Berkowicz Aff. P 9.

 Borg and Florman asked Garlick and Berkowicz to explain Heller's duties to her. See Florman Aff. P 15. Berkowicz made such an effort, but advised Borg and Florman that he did not believe Heller was capable of performing or learning the needed work. See Berkowicz Aff. P 13. A few months prior to April 1990, Borg and Florman consulted with their outside accountants to locate a replacement for Heller. See Florman Aff. P 17. Florman claimed that the decision to replace Heller was based solely on the advice of Edward Isaacs & Company that Heller "simply was not capable of performing all of the functions that a person in her position should have been capable of performing, and that KBF's outside accounting fees could be substantially reduced by replacing her with a more qualified person." Id. P 21.

 On April 5, 1990, KBF terminated Heller's employment. See Deft.'s Rule 3(g) Stmt. P 11. She was 57 years old. See Heller Aff. P 31. KBF advised Heller that she would be given an additional six months salary as severance pay. See Deft.'s Rule 3(g) Stmt. P 19. At Heller's request, Florman provided Heller with an employment letter of recommendation. *fn2" See Florman Aff. P 22. Shortly after April 5, 1990, Heller was replaced by David Stein, a 30 year old accountant who had previously been employed by KBF's outside accountants. See Deft.'s Rule 3(g) Stmt. P 20.

 On November 7, 1990, Heller filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that KBF engaged in discriminatory practices against her, based on her gender and age, by replacing her with a younger male. See Defendant's Notice of Motion for Partial Summary Judgment dated July 25, 1994, Exh. A. *fn3" On or about November 28, 1990, the EEOC forwarded the charge to the New York State Division of Human Rights. Id., Exh. B. By letter dated June 27, 1991, Heller requested a "right to sue letter" from the EEOC, id., Exh. E., which was issued on July, 8, 1991. Id., Exh. F.

 On October 7, 1991, Heller filed the instant action alleging that KBF terminated her on the basis of her gender and age, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and New York State Executive Law § 290 et seq.

 Heller states that after being promoted to Corporate Treasurer, she repeatedly asked to be allowed to attend KBF's regular officers' meetings, but was only allowed to attend after several discussions with Borg and Florman, and only to give a financial report, after which she would be excused. See Heller Aff. PP 16-17. Ultimately, she was permitted to stay for an entire meeting. Id P 17. In contrast, Heller states that KBF immediately asked her replacement, David Stein, who was not yet an officer, to attend these same meetings. Id. P 18. Heller also claims that ...


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