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September 22, 1998

FRANCES CULLY, Plaintiff, against MILLIMAN & ROBERTSON, INC., Defendant.

The opinion of the court was delivered by: MOTLEY

Motley, J.

 Plaintiff Frances Cully sued her former employer, defendant Milliman & Robertson, Inc., alleging racial harassment and racially-motivated discharge in violation of the New York Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Ordinance, N.Y. City Admin. Code § 8-101 et seq. Defendant has moved for summary judgment, arguing that plaintiff has failed to provide evidence of discriminatory motive, failed to support her hostile environment claim, and failed to satisfy City law prerequisites. For the below reasons, defendant's motion is denied.


 Defendant Milliman & Robertson, Inc. ("M&R") is an actuarial and consulting firm with an office in New York City but based and incorporated in the State of Washington. See Joint Pretrial Order, 1. On September 19, 1994, M&R hired plaintiff Francis Cully, a white female living in New York, as a secretary. See id. at 5. Hiring and supervising plaintiff at M&R were three men, two white and one black: David Appel (white), Philip Borba (white), and William White (black). See id. Initially, plaintiff was one of five female secretaries assigned to a common work area (the "pool"). See id. Plaintiff eventually complained of problems with the other secretaries in the pool; in response, M&R moved plaintiff to a semi-private cubicle. See id. On June 7, 1996, M&R terminated plaintiff's employment. See id.. When terminated, plaintiff earned $ 35,700 annually plus benefits. See id.

 Plaintiff claims the following. Soon after she started at M&R, the four other secretaries in the pool, all nonwhite, began to harass her based on her race. See id at 6. The harassment included derogatory racial comments, sabotaging of plaintiff's work, veiled threats, and general hostility. See id ; Pl.'s Depo., 203-214. Plaintiff complained to Mr. Borba of the harassment, see Pl.'s Mem. Law Opp'n Def.'s Mot. Summ. J., 3-4, which had become common knowledge at the office. See Joint Pretrial Order, 6. In response, M&R moved plaintiff to the semi-private cubicle, but that failed to stop the harassment because plaintiff still had to interact with the pool secretaries. See id.

 Plaintiff also alleges discriminatory treatment and discharge by Mr. White, her one black supervisor. Mr. White, who had a close relationship with one of the pool secretaries harassing plaintiff, tolerated the harassment. See Id at 7. As the harassment increased, he became abusive and hypercritical in dealings with plaintiff. See id. Plaintiff's work otherwise received good reviews: she earned a merit raise in January 1996; no pre-termination records criticized her; and she drew compliments from Mr. Appel in May or June 1996. See id at 8. Plaintiff's discharge occurred in a meeting with Mr. White, Mr. Appel, and Natalie Senko, the office manager, in which only Mr. White criticized her performance. See id. The termination traces, in whole or in part, either to Mr. White's racial hostility, the pool secretaries' racial hostility, or a desire to retaliate against plaintiff's complaints about the pool. See id at 8-9.

 Defendant, in contrast, claims the following version of events. None of plaintiff's supervisors knew of any racial element in plaintiff's complaints about the pool; plaintiff simply reported that the pool was too loud for her to work. See id at 10-11. M&R promptly responded to plaintiff's expressed concerns by moving her away from the problem site. See id at 11.

 Defendant also alleges that plaintiff's work was inadequate. Assigned to work roughly equally for all three supervisors, plaintiff devoted disproportionate attention to Mr. Appel and Mr. Borba, especially Mr. Appel. See id. Consequently, Mr. Borba and Mr. White often had to perform their own secretarial work. See id. All three supervisors agreed that plaintiff "was incapable of performing the basic responsibilities of her position," see Def's Mem. Law Support Mot. Summ. J., 7. All three spoke with plaintiff about her poor performance and eventually agreed to discharge her; race was not a factor. See Joint Pretrial Order, 11.

 Defendant further challenges plaintiff's claimed losses, arguing that she suffered no injury and failed to use reasonable efforts to mitigate her damages until finding the better-paying job she holds today. See id at 12. Plaintiff claims injury and, while admitting that she was unemployed for ten months and then employed only part-time for another ten, asserts that she made reasonable mitigation efforts that resulted in her current job. See id at 6.

 The parties also interpret M&R's hiring history for plaintiff's position differently. Plaintiff replaced a non-white secretary and was replaced by a non-white secretary, who in turn was replaced by a white secretary. See id at 5, 12. Defendant cites its hiring of white secretaries as evidence that it bore no racial animus against whites. Plaintiff counters that the later white secretary only came on board once Mr. White left and M&R terminated plaintiff's non-white replacement; this plaintiff sees as evidence of race-based hiring decisions at M&R.


 A. Summary Judgment Standards

 The basic rule in applying Fed. R. Civ. P. 56 is that "uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Corp., 892 F.2d 1128, 1132 (2d Cir. 1989). The non-moving party's burden is to produce concrete evidence sufficient to establish a genuine unresolved material issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). The court then must view the facts in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). The court neither weighs the evidence nor resolves material factual issues, but only determines whether, after adequate discovery, any such issues remain unresolved because a reasonable fact finder could decide for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gibson, 892 F.2d at 1132.

 In discrimination cases, summary judgment for defendant is appropriate only if "the employer has come forward with evidence of a dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational trier of fact could reject." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Because the issue of the employer's hidden intent is so salient, the Second Circuit has emphasized that trial courts must be especially chary about disposing of claims on summary judgment. See, e.g., Gallo, 22 F.3d at 1224; Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989). "Since it is rare indeed to find in an employer's records proof that a personnel decision was made for a discriminatory reason, whatever other relevant depositions, affidavits and materials are before the district court must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination." Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). This does not mean that plaintiff's summary judgment burden is lower in discrimination cases. It just reflects the reality that discrimination cases are often the sort in which, because they turn on murky issues of intent and inference, plaintiffs need witness testimony and full argument to meet their burdens of proof.

 B. Discriminatory Discharge Claim

 In claims of discriminatory discharge, courts traditionally apply the familiar three-step burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-57, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), as recently clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 505-512, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), and Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc). These standards ...

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