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February 11, 1999


The opinion of the court was delivered by: Robert L. Carter, District Judge.


This action arises from defendants' termination of plaintiff's employment, allegedly in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), and the New York State Human Rights Law, N.Y.Exec.Law § 290 et seq. (the "NYSHRL"). Now before the court is defendants' motion for summary judgment.


Defendant Charles Van Nostrand ("Van Nostrand"), president of co-defendant Samuel French, Inc. ("Samuel French"), hired plaintiff Henry M. Wallengren ("Wallengren") as his assistant in March, 1992. Samuel French is a publisher and licensor of dramatic and musical plays. Wallengren's responsibilities as Van Nostrand's assistant included corresponding with authors, and with agents, individuals, and organizations seeking to license plays that Samuel French publishes, and generally responding to questions from employees, agents, writers, theaters, and others about a wide variety of matters relating to the company.

In May, 1994, during a bout with PCP pneumonia, Wallengren learned that he had AIDS. Prior to this time, he was not aware that he was HIV positive. In January, 1995, Wallengren informed Van Nostrand that he had AIDS after Van Nostrand inquired about recent illness-related absences. Allegedly, Van Nostrand's immediate reaction to plaintiff's disclosure was, in substance: "This could cost the company a lot of money." (Wallengren Aff. ¶ 4). According to Wallengren, this statement was the beginning of Van Nostrand's subtle yet undeniably discriminatory behavior toward him due to his disclosed AIDS condition. While his duties as assistant remained the same, Wallengren asserts that his relationship with Van Nostrand substantially deteriorated. (Wallengren Aff. ¶ 7). Van Nostrand no longer confided in Wallengren, nor solicited his opinions on broader matters regarding the operation and direction of Samuel French. (Wallengren Aff. ¶ 7). Wallengren was no longer invited to meetings that he had previously attended. (Wallengren Aff. ¶ 7). Furthermore, Wallengren and Van Nostrand no longer attended dinner and theater together every Wednesday night, as they had since the beginning of Wallengren's employment in 1992; such occasions were reduced to three times, or often two times, a month. (Wallengren Aff. ¶ 7). However, while his role at Samuel French may have diminished, Wallengren continued to receive pay raises, one increasing his salary from $49,530 to $54,483 in March, 1995 and another increasing his salary to $59,943 in October, 1995, and bonuses, totaling approximately $10,000 for 1995. (Van Nostrand Aff. ¶ 11).

In light of Van Nostrand's allegedly discriminatory treatment following the disclosure of his AIDS condition, Wallengren began to explore the possibility of other employment opportunities, including opportunities with Samuel French competitors. (Wallengren Dep. at 167). On Thursday, February 15, 1996, Van Nostrand became aware of Wallengren's exploration of other employment while opening all Samuel French mail when he opened a letter by Heather MacDonald ("MacDonald"), some of whose plays are published by Samuel French, addressed to Wallengren. In the letter, MacDonald stated: "Yes, I'm interested in where you are going as far as another publishing house." (Van Nostrand Aff.Ex. 6). Van Nostrand confronted Wallengren with the letter that same morning, and asked whether plaintiff was going to join a competitor. Wallengren responded, in essence: "I'm not stealing your authors, because I have no place to steal them to. I'm working for you. I'm not working elsewhere." (Wallengren Dep. at 166, 167). Wallengren asserts that he and Van Nostrand met again that day, at which time Van Nostrand accused Wallengren of having a poor attitude, and claimed that he had heard from unidentified sources that Wallengren was "rude" and "unhelpful." (Wallengren Aff. ¶ 11). Additionally, Wallengren claims that Van Nostrand commented that he did not know whether to attribute Wallengren's poor reputation and attitude to Wallengren's "medication or illness." (Wallengren Aff. ¶ 6).

Regardless, Wallengren and Van Nostrand agreed to meet again to discuss the matter on Tuesday, February 20, 1996, the next day that both were scheduled to be in the office. Van Nostrand alleges that in the intervening days between February 15 and February 20, he was informed by multiple sources that Wallengren had scheduled a meeting at Music Theater International ("MTI"), a Samuel French competitor, with the purpose of proposing that MTI establish a non-musical play division. (Van Nostrand Aff. ¶ 6). Van Nostrand states that upon learning of this meeting and of Wallengren's disloyalty to Samuel French, he decided to fire the plaintiff. (Van Nostrand Aff. ¶ 20). Van Nostrand personally fired Wallengren, effective immediately, on February 20, 1996 without a verbal or written explanation as to cause. (Wallengren Aff. ¶ 16).

Wallengren does not deny that he had discussions with MTI about the possibility of establishing a non-musical play division. Indeed, defendants have submitted several documents written by Wallengren in December 1995 and January 1996 concerning the proposal; many of those documents contain disparaging remarks about Samuel French and Van Nostrand. (Van Nostrand Aff.Ex. 13-16). However, Wallengren vigorously contests Van Nostrand's claim that Van Nostrand knew about the proposal on the day Wallengren was fired. Wallengren contends that Van Nostrand's knowledge of the MTI proposal came to fruition some time after his termination, perhaps through discovery.

Wallengren filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on March 29, 1996, which Van Nostrand responded to in April, 1996. Wallengren subsequently received a Notice of a Right to Sue letter from the EEOC on December 9, 1996, and filed a complaint in this court on January 24, 1997. Wallengren alleges that he was terminated on the basis of disability, namely, his AIDS condition, in violation of the ADA and the NYSHRL. Van Nostrand denies that Wallengren's AIDS condition had any influence in his decision to terminate, and asserts that he properly fired plaintiff due to his disloyalty to Samuel French. Accordingly, defendants now move for summary judgment pursuant to Rule 56, F.R.Civ.P.


I. Summary Judgment Standard

Under Rule 56(c), F.R.Civ.P., summary judgment is rendered when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." "[T]he substantive law will identify which facts are material . . . [and] [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of showing that no genuine issue of material fact exists rests on the party seeking summary judgment. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Furthermore, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. See Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir. 1994). Thus, "not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them." Donahue v. Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 57 (2d Cir. 1987). On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are any issues to be tried." Chambers, 43 F.3d at 36-37 (quoting Donahue, 834 F.2d at 58).

Additional considerations should be taken into account when deciding whether summary judgment is appropriate in an employment discrimination case. See Gallo, 22 F.3d at 1224. When an employer's intent, motivation, or state of mind is at issue, summary judgment should be granted sparingly. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (summary judgment is "ordinarily inappropriate where an individual's intent and state of mind are implicated."). Nevertheless, the plaintiff must offer "`concrete evidence ...

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