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July 2, 1997

THEODORE H. ROSENBLATT, Plaintiff, against BIVONA & COHEN, P.C., Defendant.

The opinion of the court was delivered by: SCHEINDLIN


 Plaintiff Theodore Rosenblatt ("Rosenblatt") is suing Bivona & Cohen, P.C., alleging unlawful employment discrimination on the basis of race in violation of 42 U. S. C. § 2000e-2(a)(1), 42 U. S. C. § 1981 and New York Human Rights Law ("NYHRL") § 296. *fn1" Defendant now moves for summary judgment and plaintiff cross moves for partial summary judgment on the affirmative defense that plaintiff was not an employee for purposes of Title VII. The parties bring these motions pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is denied and plaintiff's cross motion is granted.

 I. Factual Background

 A. Undisputed Facts

 Rosenblatt maintained a relationship with Bivona & Cohen, P.C., for a dozen years. He joined the firm, then known as Levy, Bivona & Cohen, as a senior associate in 1982. Defendant's 3(g) Statement ("Def.'s 3(g)") at P 1; Plaintiff's 3(g) Statement ("Pl.'s 3(g)") at P 1. Initially, plaintiff was viewed as a competent attorney. Deposition of John Bivona ("Bivona Dep."), Bivona & Cohen President, at 86; Deposition of Marlene Monteleone ("Monteleone Dep."), Bivona & Cohen partner, at 17-18; Deposition of Joseph Figliolo ("Figliolo Dep."), Bivona & Cohen partner, at 29-30; Deposition of Marc Lust ("Lust Dep."), Bivona & Cohen partner, at 57-59. Plaintiff worked for several years in Unit 2 under the supervision of partner Marc Lust, until plaintiff was promoted to manager of Unit 3 and made a non-equity partner of the firm in 1986. Def.'s 3(g) at P 4; Pl.'s 3(g) at P 4. As director of Unit 3, plaintiff supervised the work of several associates and a junior partner. Def.'s 3(g) at P 3; Pl.'s 3(g) at P 3. His duties included several projects of firm-wide significance, including production of master forms and billing practices, handling of firm insurance matters, and negotiation of the lease for the current office space. Affidavit of Theodore Rosenblatt ("T. Rosenblatt Aff.") at P 6; Defendant's Reply Memorandum in Support of Motion for Summary Judgment ("Def.'s Reply") at 2.

 In 1987, plaintiff, who is white, entered into an extramarital relationship with his secretary, Babsie Gould-Henry, who is black. Def.'s 3(g) at P 8; Pl.'s 3(g) at P 8. The pair remained co-workers throughout the majority of their affair of six years' duration, following which they were married in 1993. Def.'s 3(g) at PP 14-16; Pl.'s 3(g) at PP 14, 16. In December 1989, when Gould-Henry was pregnant with plaintiff's child, he permitted her, without prior authorization by the Partnership Governing Committee, to take an extended unpaid leave of absence. Def.'s 3(g) at PP 9-10; Pl.'s 3(g) at PP 9-10. Although Gould-Henry gave birth to plaintiff's child during this absence, plaintiff explained to defendant that the reason for the leave was caring for a sick relative in England. Def.'s 3(g) at PP 9-10; Pl.'s 3(g) at PP 9-10. Gould-Henry was terminated by letter dated February 1, 1990, and later rehired by defendant in mid-1990. Def.'s 3(g) at P 14; Pl.'s 3(g) at P 14; Defendant's Appendix ("Def.'s App."), Exh. D.

 Plaintiff's ongoing relationship with Gould-Henry eventually became known throughout the firm. Def.'s 3(g) at PP 11, 13; Pl.'s 3(g) at P 11; T. Rosenblatt Aff. at P 9. In March 1992, plaintiff left his first wife and children to live with Gould-Henry, Def.'s 3(g) at P 13, after which plaintiff alleges that he felt "increasing harsher criticism and pressure from Sidney Cohen and others." T. Rosenblatt Aff. at PP 10-11. In early 1992, Gould-Henry terminated her employment with defendant. Def.'s 3(g) at P 15; Deposition of Theodore Rosenblatt ("T. Rosenblatt Dep.") at 138-39.

 Two controversial events characterize the deterioration of plaintiff's relationship with the firm. First, although their accounts differ, the parties do not dispute that in December 1992, plaintiff became intoxicated at a firm Christmas party, leading to an encounter that a firm secretary reported as sexual harassment. Affidavit of John Bivona ("Bivona Aff.") at P 9; Def.'s 3(g) at PP 18-20; Pl.'s 3(g) at P 19; T. Rosenblatt Aff. at PP 27-28. Unable to recollect the incident, plaintiff nevertheless formally apologized at Bivona's direction. Def.'s 3(g) at P 19; Pl.'s 3(g) at P 19; Bivona Aff. at P 9; T. Rosenblatt Aff. at PP 27-28.

 Second, in mid-1993, AIG, one of defendant's significant clients, audited the firm's work and identified 34 late attorney status reports, 15 of which had been the responsibility of associates assigned to plaintiff's Unit 3. Def.'s 3(g) at PP 21-23; T. Rosenblatt Aff. at PP 30-35; Plaintiff's Appendix ("Pl.'s App."), Exhs. 9, 13-14; Bivona Aff. at PP 7-8; Cohen Dep. at 154-60. An additional six files belonged to Monteleone's Unit, five to Lust's, and four to Figliolo's. Pl.'s App., Exh. 14. The parties dispute the details of this audit and the resultant effect on defendant's business; however, it is undisputed that AIG sent a letter to defendant in August 1993, reporting its findings and observing that changes needed to be made in the handling of its account. T. Rosenblatt Aff. at PP 37-38; Pl.'s App., Exh. 9. AIG reported several inappropriately handled matters and suggested improvements in defendant's performance. Following the audit, AIG files were transferred from Unit 3 in late 1993, and the Unit was reorganized, including the demotion, transfer to another Unit and subsequent discharge of Mark Kalmanowitz, the junior partner directly under plaintiff's supervision. Def.'s 3(g) at PP 23-25; Pl.'s 3(g) at P 25; Answer and Counterclaim ("Ans.") at P 48; T. Rosenblatt Dep. at 236, 240.

 In August 1994, John Bivona terminated plaintiff's employment. Def.'s 3(g) at P 2; Pl.'s 3(g) at P 2. None of the other Unit supervisors was terminated. At the time of plaintiff's discharge, Bivona & Cohen was organized as a professional corporation, the sole shareholders of which were John Bivona and Sidney Cohen. Pl.'s 3(g) in Support of Cross-Motion ("Pl.'s 3(g) in Support") at P 2; Defendant's Second 3(g) Statement ("Def.'s Second 3(g)") at P 2. Only Bivona and Cohen had the authority to discharge plaintiff from the firm. Pl.'s 3(g) in Support at P 2; Def.'s Second 3(g) at P 2. Plaintiff's employment was at all times at will. Pl.'s 3(g) in Support at P 4; Def.'s Second 3(g) at P 4.

 B. Disputed Issues

 1. Disagreement over specific events

 Controversy surrounds several pivotal events during plaintiff's tenure with the firm. While both parties agree that plaintiff misrepresented the reasons for his extension of an unauthorized leave to Gould-Henry in 1989, plaintiff alleges that, on learning of it, Bivona did not object to reserving Gould-Henry's position as plaintiff's secretary until her return. T. Rosenblatt Aff. at P 18. By contrast, Cohen objected that the extended leave was in contravention of company policy. Id.; T. Rosenblatt Dep. at 136-38. Plaintiff maintains that Cohen ordered plaintiff to send a letter to Gould-Henry formally terminating her employment with the firm. T. Rosenblatt Aff. at P 18; T. Rosenblatt Dep. at 136-38. Cohen testifies that although he was aware of the letter, he did not direct plaintiff to send it. Deposition of Sid [sic] Cohen ("Cohen Dep."), Bivona & Cohen Vice President and Secretary, at 89-92. Plaintiff maintains that the passage of approximately five years between this incident and his termination, as well as the history of extended leaves granted to the secretaries of other partners, indicates that defendant did not consider this a serious infraction. Affidavit of Babsie Rosenblatt ("B. Rosenblatt Aff.") at P 11; Deposition of Tammy Hoffman ("Hoffman Dep."), Bivona & Cohen secretary, at 14-19.

 Defendant contends that plaintiff attended a client-sponsored ski weekend on defendant's behalf in 1991, to which he brought Gould-Henry without permission. Bivona Aff. at P 4. Defendant claims that while there, plaintiff became intoxicated and flaunted his extramarital affair in contravention of the conduct expected of a representative of defendant's firm at a business event. Id. In addition, defendant characterizes the 1992 Christmas party incident as an "extremely serious indiscretion" for which "plaintiff was severely reprimanded by the Partnership Governing Committee." Defendant's Memorandum of Law in Support of Motion for Summary Judgment ("Def's Mem.") at 5. While plaintiff admits to having become intoxicated and to having been directed to apologize, he asserts that once his apology was accepted, the issue was not raised again during his tenure at the firm. Pl.'s 3(g) at P 19; T. Rosenblatt Aff. at PP 27-29.

 2. Plaintiff's interracial relationship

 The parties are also in dispute as to when plaintiff's romantic involvement with Gould-Henry was first perceived by defendant. Defendant alleges that the Partnership Governing Committee became aware of the relationship in 1987, and regarded it as "Plaintiff's personal business." Ans. at P 41. Defendant contends further that plaintiff's interracial relationship "was common knowledge throughout the entire firm at all times from 1990," that the birth of plaintiff and Gould-Henry's child was known of "more than four years prior to Plaintiff's termination," and that defendant was already aware of this occurrence when it re-hired Gould-Henry in 1990. Id. at P 42; Def.'s 3(g) at P 12. Plaintiff denies these statements, conceding only that "over time, . . . knowledge of our relationship became more commonly known in the firm," despite his and Gould-Henry's efforts to keep the relationship private. Pl.'s 3(g) at P 12; T. Rosenblatt Aff. at P 9.

 Notwithstanding defendant's argument that the Partnership Governing Committee knew of plaintiff's relationship as early as 1987, and that the rest of the firm knew by 1990, Cohen testified that he himself was unaware of the existence of this relationship as late as 1991. Ans. at PP 41-42; Cohen Dep. at 97-98. Cohen also testified to having seen Gould-Henry on only a few occasions and to having formed no opinion as to her race, despite the fact that she was employed by defendant for seven years and in contrast to partner Martin Stewart's testimony that "everybody knew" that plaintiff's wife was black. Cohen Dep. at 82-83; Deposition of Martin Stewart ("Stewart Dep."), Bivona & Cohen partner, at 23.

 Defendant contends that "no one at Bivona & Cohen, P.C. ever voiced disapproval of plaintiff's relationship" and that plaintiff never heard any racially derogatory comments made by Cohen or Bivona. Def.'s 3(g) at PP 28, 30. Plaintiff alleges, however, that "over the years" other partners made various remarks "designed to inflict pain on [him] because of the color of [his] wife's skin." T. Rosenblatt Aff. at PP 12-13. Plaintiff contends that partners commented on his sexual preference for "dark meat," referred to a black street beggar or black waiter as a member of plaintiff's "family" or his "cousin," and asked whether plaintiff would be eating "chicken again" for dinner. Id. at P 12. Plaintiff states that he felt himself an "outsider" and an "outcast" at the firm because of his relationship with Gould-Henry. Id. at P 13. While plaintiff does not attribute racially discriminatory remarks directly to Cohen or Bivona, he alleges that Cohen was present when at least two such comments were made by others. Id. at P 12; T. Rosenblatt Dep. at 166-67, 172-73. Plaintiff also asserts that when he informed Cohen of his decision to live with Gould-Henry, Cohen responded with an expression of disapproval of and hostility toward his interracial relationship. T. Rosenblatt Aff. at PP 10, 12; T. Rosenblatt Dep. at 61, 114.

 3. Plaintiff's relationship with Cohen

 The timing of the initial downturn in plaintiff's relationship with Cohen is also disputed. According to the testimony of defendant's partners, the relationship began to sour in 1991 following the client-sponsored ski weekend; yet plaintiff testifies that the turning point was March 1992, when he informed Cohen of his cohabitation with Gould-Henry. Figliolo Dep. at 93, 97-99; ...

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