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March 26, 1998


The opinion of the court was delivered by: CHIN


 Before going on maternity leave, plaintiff in this action purportedly agreed with her employer that she would return to work on a certain date. While she was on maternity leave, her supervisor ordered her back to work nearly a month early, disavowing any agreement on her return date and stating that she was not entitled to any additional time off. Plaintiff did not return to work as ordered by her supervisor and she was fired. She brings this action against her former employer, Association of Reform Zionists of America ("AZRA"), and its affiliate, Union of American Hebrew Congregations ("UAHC"), alleging that they discriminated against her by terminating her employment because of her decision to have a child and continue working. Plaintiff also claims that she and her employer entered into an enforceable oral contract extending the date she was to return to work and that her employer failed to notify her of the continuation of her health insurance benefits after the termination of her employment.

 Defendants move for summary judgment on each of plaintiff's claims. For the reasons stated herein, the motion for summary judgment is denied as to the discrimination claim and granted as to the remaining claims.


 A. The Facts

 Plaintiff was employed as AZRA's Assistant Director from May 1993 until her dismissal in April 1995. She reported directly to AZRA's Executive Director, Ammiel Hirsch. The parties do not dispute that plaintiff's work performance was satisfactory throughout her employment.

 In June 1994, plaintiff notified AZRA that she was pregnant and expected to deliver in January 1995. (Feinberg Aff., Ex. C at 72). At that time, requests by AZRA employees for maternity and paternity leave were to be governed by "the general 'Leave of Absence Policy' of the UAHC and affiliates in effect at the time of the request." (Shafrir Aff., Ex. 3 at 14). When plaintiff's maternity leave began in January 1995, UAHC had a new "Family and Medical Unpaid Leave of Absence Policy" in effect.(See Feinberg Aff., Ex. J effective 11/15/94). This policy granted employees "unpaid leaves of absences up to 12 weeks within a 52 week period . . . ." (Id.). Notwithstanding this language, the parties agree that plaintiff was entitled to twelve weeks of maternity leave -- 6 weeks paid and 6 weeks unpaid. (See, e.g., Feinberg Aff., Ex. 3 at 134; Defs. Rule 56.1 Statement at P 9).

 According to plaintiff, in approximately October or November 1994, she discussed her maternity leave with Hirsch. Plaintiff told Hirsch that she was going to spend Passover -- from April 15, 1995 to April 23, 1995 -- in Hawaii with her family. AZRA planned to have a conference in Los Angeles from April 6, 1995 to April 10, 1995. Plaintiff offered to return to work prior to the conference, go to the conference, and then leave from Los Angeles to Hawaii for Passover. Hirsch decided that it did not make sense to have plaintiff go to the conference or to come to work while the office was virtually empty and then leave again for Passover. Thus, according to plaintiff, Hirsch agreed at that time that plaintiff could return to work on May 1, 1995. Hirsch and plaintiff also discussed allowing plaintiff to use accrued vacation and as-yet-accrued vacation for plaintiff's leave beyond the 6 weeks of paid maternity leave. (See Shafrir Aff. P 7; Feinberg Aff., Ex. C at 67-70).

 Hirsch admits that he knew, before plaintiff went on maternity leave, that she wanted to go to Hawaii. (Feinberg Aff., Ex. D at 173-75). Nonetheless, Hirsch denies that he agreed to allow plaintiff to return to work on May 1, 1995 or that he agreed to advance her vacation time for her trip to Hawaii. (Id. at 171-78). *fn1" According to Hirsch, he and plaintiff discussed when she would return from maternity leave but did not work out the details -- they "would be resolved at some time during her maternity leave." (Id. at 79). For purposes of this motion, I accept plaintiff's representation that she and Hirsch discussed her maternity leave prior to her departure and that Hirsch orally agreed, at that time, to allow plaintiff to extend her leave until May 1, 1995. The oral understanding was not reduced to writing, and the specific details were presumably going to be ironed out at some point during plaintiff's absence.

 Plaintiff alleges that Hirsch made a number of comments that she claims proves his discriminatory animus and intent. For the purpose of this motion, I accept that Hirsch made these comments to plaintiff. In addition to repeatedly asking plaintiff what her plans were and when she would come back to work (Feinberg Aff., Ex. C at 72-75), Hirsch made the following comments to plaintiff prior to her maternity leave:

 (2) "Everyone is always pregnant";

 (3) "What is it with you -- there's either miscarriages, D&Cs or pregnancies";

 (4) "A woman doesn't need the entire six weeks of maternity leave. Though she is legally entitled to it, she shouldn't take it. My wife didn't take the full six weeks of leave"; and

 (5) "Lori, you know things at AZRA are going to be more difficult. There will be programming, more work -- can you handle it? You have an obligation to travel -- meetings, speaking engagements -- will you be able to handle the travelling?" (See Shafrir Aff. PP 6, 9).

 Plaintiff gave birth on January 6, 1995 and her maternity leave commenced the following Monday, January 9, 1995. *fn2" She contends that Hirsch immediately started pestering her to return to work, including making the following comments to her after she gave birth:

 (1) "So, we'll see you at the office on Monday?" [comment to plaintiff on day she gave birth]; and

 (2) "You like this kind of life -- you could live like this, couldn't you? Not working, just having fun, shopping and going to lunch -- an easy life." [comment to plaintiff when she visited the office during her maternity leave].

 Plaintiff had approximately 11 days accrued vacation when she commenced her maternity leave. After the 6 weeks paid leave expired, she used her accrued vacation. Once her paid leave was exhausted, plaintiff went into an unpaid leave status.

 On March 1, 1995, Hirsch sent a memorandum to plaintiff informing her that he expected her to return to work on April 3, 1995 despite the fact that he was "aware of [her] desire to continue [her] maternity leave until May 1." (Feinberg Aff., Ex. F). The memorandum unequivocally notified plaintiff that she did not have approval to "vacation during April" and that if she did not return to work by April 3, 1995 that Hirsch would not hold her position open for her. (Id.). Apparently, plaintiff and Hirsch had several telephone conversations about her return date both before and after the March 1, 1995 memo. Hirsch sent plaintiff another memorandum dated April 4, 1995 informing her that "if I do not hear from you by Friday, April 7 that you will return to full-time work by Monday, April 10, at the latest, I shall consider your decision to cease your employment at AZRA as final, and your employment shall be terminated, effective, April 10, 1995." (Feinberg Aff., Ex. G).

 Plaintiff responded to the April 4, 1995 memo by letter dated April 7, 1995. She expressed shock and disbelief at Hirsch's "hard line" because they had agreed that she would be out on maternity leave until May 1, 1995. Plaintiff noted that she relied on Hirsch's promise about the duration of her leave and was not in a position to change her plans. (Shafrir Aff., Ex. 6). Plaintiff came into the office on April 10, 1995 as ordered. She had no intention, however, of returning to full-time work as of that day. She maintained that she was entitled to go to Hawaii as planned and as agreed upon. When plaintiff returned on April 10, 1995, Hirsch was in California.

 Plaintiff's employment was terminated effective April 10, 1995. Hirsch notified plaintiff of her discharge in a memorandum dated April 11, 1995. In that memo, Hirsch claimed that "at no time did I ever agree that your maternity leave would extend to May 1." (Feinberg Aff., Ex. K). He also claimed that plaintiff's shock was insincere because plaintiff told him that she would understand if he decided to fire her and that she was no longer committed to her job. (Id.).

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