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BELLOM v. NEIMAN MARCUS GROUP

August 26, 1997

ELIZABETH BELLOM, Plaintiff, against NEIMAN MARCUS GROUP, INC., Defendant.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff brings this action alleging gender, national origin and retaliatory discrimination on the part of her former employer in violation of Title VII, 42 U.S.C. § 2000-e et seq., and parallel provisions the New York State Human Rights Law. Additionally, plaintiff asserts a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq.

 Currently before this Court is defendant's motion for summary judgment, pursuant to Fed. R. Civ. P. 56. For the reasons stated below, defendant's motion is granted in part and denied in part.

 BACKGROUND

 Elizabeth Bellom began working, as a make-up artist for the Yves Saint Laurent line, in the cosmetics department of the Neiman Marcus store in White Plains, New York in October 1994. Bellom asserts that almost immediately she became the object of unwelcome sexually suggestive comments and behavior on the part of her supervisor, Diane Livingston. In February 1995, Neiman Marcus conducted an investigation of Livingston's alleged sexual harassment of employees, and later that month Livingston was dismissed from Neiman Marcus. *fn1" Bellom contends that Neiman Marcus was aware of Livingston's improper behavior long before February 1995, but failed to take any action until that time.

 In February 1995, Livingston was replaced by Jane Hannigan who, Bellom asserts, discriminated against her on the basis of her national origin. According to Bellom, who emigrated to the United States from Bulgaria in 1989, Hannigan mocked her and other employees with foreign accents and favored "tall, blond, fair skinned, blue eyed" employees. Bellom further asserts that Hannigan retaliated against her for having participated in Neiman Marcus's investigation of Livingston.

 Also occurring during Bellom's employ at Neiman Marcus was a significant construction project, conducted between January 1994 and March 1995. Bellom, who had been suffering from asthma since mid-1994, states that she experienced significant health problems due to the construction project. Bellom concedes that she was told that she could, during the pendency of the construction, work in another part of the store or go home if she was not feeling well. Indeed, Bellom left early once or twice, and she admits that Livingston never denied her permission to leave early. In addition, Livingston and Angela Cory, the Yves Saint Laurent account executive, told Bellom not to worry about meeting her monthly sales goal during the construction period and, in fact, Bellom missed her sales goal five times during the construction period. Bellom was also given a mask to wear during the construction period, but she states that it was ineffective in reducing the symptoms that she claims resulted from construction dust. On August 15, 1995, Bellom had an asthma attack while working at Neiman Marcus.

 In May, June and July 1995, after the construction project was completed, Bellom failed to meet her monthly sales goal. In August 1995, Bellom was put on probation for missing her sales goal for three consecutive months. Bellom concedes that she was aware of Neiman Marcus's policy that failure to meet sales goal for three consecutive months would result in probation. Bellom states that the "prevailing reason" she did not meet her sales goal was that she was consistently out of stock because Hannigan failed to order products.

 On September 21, 1995, Hannigan issued Bellom a final warning relating to her "unprofessional behavior." The text of that warning reads, in relevant part:

 
There has been excessive discussion of personal matters with co-workers during working hours.
 
. . .
 
[Your] behavior is a violation of NM's standards of conduct. Your refusal to stay at your counter despite the request of your supervisor [sic] is one violation. Your discourtesy towards your co-workers by talking about personal matters is another violation. Your discourtesy towards a customer by involving her in your personal issues is another violation.

 On October 5, 1995, Bellom filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and later that month, on October 24, 1995, she resigned. Bellom was replaced by Kaya Dynska Yanitelli, who is of Polish national origin, as the make-up artist for Yves Saint Laurent.

 SUMMARY JUDGMENT STANDARD

 A motion for summary judgment must be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Fed. R. Civ. P. 56 (c); see H.L. Hayden Co. v. Siemens Medical Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989). It is the burden of the moving party to demonstrate initially the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). The burden then shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56 (e). Affidavits in support or opposition of a summary judgment motion must be made on personal knowledge, setting forth facts which would be admissible at trial by an affiant who is competent to testify to the matters within the affidavit. Fed. R. Civ. P. 56(e). A showing that there is a genuine issue of fact for trial requires a showing sufficient to establish the existence of every element essential to the party's case, and on every element for which the party will bear the burden of proof at trial. In deciding whether there is a genuine issue for trial, "the court is required to ...


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