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November 5, 1998


The opinion of the court was delivered by: RAKOFF



 Employment discrimination cases now compose a material portion of the federal docket. While the Courts of Appeals grapple with the questions of law these cases sometimes present, see, e.g., Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)(en banc), the District Courts' biggest job, it seems, is to separate the colorable cases from those that cannot survive summary judgment. This typically turns, not so much on legal niceties, as on a close scrutiny of the specific facts of record. The instant case, in which the Court grants summary judgment, and the roughly similar case of Smith v. Alexander & Alexander, 1998 U.S. Dist. LEXIS 17543, No. 97 Civ. 6319 (S.D.N.Y. November 3, 1998), in which the Court recently denied summary judgment, collectively illustrate the point.

 Defendant Nickelodeon is one of several programming services that make up defendant MTV Networks, a wholly-owned subsidiary of defendant Viacom, Inc. Two-thirds of Nickelodeon's employees and nearly half of its top executives are women. Nearly all of the top executives have children, and many have taken maternity or paternity leave at company expense.

 Plaintiff Elizabeth Noyer, the former Senior Vice President of Communications at Nickelodeon, had just returned from such leave when she resigned, claiming her job responsibilities had been significantly reduced. There followed this lawsuit, in which plaintiff contends that Nickelodeon and its corporate parents intentionally discriminated against her on account of her gender, her marital status, and her pregnancy, violated her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and breached their obligations to her under her employment contract. She also contends that a fourth defendant, Kenneth B. Lerer, tortiously interfered with that contract. *fn1"

 Following discovery, all defendants timely moved for summary judgment. On May 28, 1998, the Court telephonically advised the parties that defendants' motions would be granted. This memorandum will serve to formally confirm that determination and briefly state the reasons therefor.

 The pertinent facts, either undisputed or taken most favorably to plaintiff, are as follows:

 Prior to assuming her duties as Nickelodeon's Senior Vice President of Communications in April 1994, plaintiff had held public relations jobs with various other firms and companies including a stint with the public relations consulting firm run by defendant Lerer. Lerer and his firm, in turn, had a longstanding relationship with Nickelodeon, MTV Networks, and Viacom. It was Lerer who suggested that Nickelodeon create the post of Senior Vice President of Communications and who recommended that plaintiff, then working at ABC, be hired for the job.

 Upon assuming her duties at Nickelodeon, plaintiff received a written "Job Description," which described her primary responsibilities as developing and executing a Nickelodeon communications strategy, providing public relations insight into Nickelodeon's business decisions, and managing Nickelodeon's use of outside suppliers and consultants in the public relations area. In April 1995, plaintiff signed a written contract with MTV Networks that provided that plaintiff would be Senior Vice President of Communications at Nickelodeon and perform "such duties," as well performing "such other duties reasonable and consistent with such office as may be assigned to [her] from time to time." See Aff. of Edward J.M. Little in Opp'n to Defs.' Mots. for Summ. J. ("Little Aff."), Ex. 17. Although the contract contained a merger clause, "such duties" was not otherwise defined; but plaintiff alleges that she was told when she signed it that "such duties" referred to the duties enumerated in the pre-existing Job Description. The contract further provided that plaintiff could terminate her contract for "good reason," defined as "the assignment to you by MTVN or Viacom of duties substantially inconsistent with your positions, duties, responsibilities, titles or offices, the withdrawal of a material part of your responsibilities as set forth in [plaintiff's agreement to perform 'such duties'], or the breach by MTVN of any of its material obligations hereunder." See Little Aff., Ex. 17.

 Although Lerer had recommended her for the job at Nickelodeon, plaintiff, shortly after assuming her position there, complained about the adequacy of Lerer's services to Nickelodeon and the amount of his bills. Thereafter, the Nickelodeon "Executive Team," of which plaintiff was a member, decided to reduce the use of outside consultants, including Lerer, to the maximum extent possible -- dubbing 1995 the "Year of No Consultants." As a result, Lerer's 1993 agreement with Nickelodeon, pursuant to which he had received a monthly retainer of $ 25,000, was terminated, although he continued to do consulting work for Nickelodeon on a piecework basis.

 From April 1994 through the end of 1995, plaintiff performed her job to Nickelodeon's complete satisfaction and received one of the two highest bonuses given by the network at year-end 1995. In December 1995, the President of Nickelodeon, Geraldine Laybourne, who had hired plaintiff, announced that she would shortly be leaving. She was replaced as President by Herbert Scannell in early February 1996. Scannell, who had previously expressed misgivings about decreasing Lerer's role, met with Lerer for breakfast two days before becoming President, although neither recalls exactly what they discussed. Thereafter, in April 1996, Scannell told plaintiff that he wanted her to rehabilitate her relationship with Lerer. Plaintiff accordingly arranged a breakfast meeting with Lerer, at which Lerer asked plaintiff (who was then seven months pregnant) about her plans for maternity leave. Although the two hugged at the end of the meeting, plaintiff subsequently testified that she found his inquiry suspect.

 Plaintiff went on paid maternity leave at the beginning of June 1996. She was told both by Scannell and by Marva Smalls, Nickelodeon's Senior Vice President of Administration and Public Affairs, that she could take as much time as she needed. Although plaintiff named a female subordinate, Piper Parry, as acting Senior Vice President for Communications in plaintiff's absence, plaintiff voluntarily continued to work from home on a variety of projects. Nonetheless, plaintiff alleges, rumors surfaced that she did not plan to return to work, and she had to reassure a number of people that she was intending to return at the end of the summer.

 During plaintiff's absence, Scannell, with the encouragement of his superior, Thomas Freston, Chairman and CEO of MTV Networks, began to use Lerer's firm once again for certain work that plaintiff had brought in-house. Although a new Lerer retainer agreement (for $ 10,000 a month), dated July 24, 1994, was apparently never executed, Lerer's bills to Nickelodeon increased somewhat from a range of $ 5,000 to $ 6,500 in the immediately preceding months to a range of $ 7,000 to $ 9,000 in the months of August through October 1996. Scannell kept plaintiff apprised of these developments, but only in general terms.

 Also during plaintiff's absence, Freston suggested to Scannell that he take advantage of Lerer's press contacts so as to get a story about Nickelodeon's high ratings "planted" in the Wall Street Journal. Although plaintiff disapproved of the idea, Lerer went ahead with ...

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