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VALENTINE v. STANDARD & POOR'S

June 24, 1999

PAUL VALENTINE, PLAINTIFF,
v.
STANDARD & POOR'S, DEFENDANT.



The opinion of the court was delivered by:  Sotomayor, Circuit Judge.[fn1] [fn1] Sitting by designation.
    OPINION & ORDER

Plaintiff Paul Valentine, appearing pro se, brings this action alleging that defendant Standard & Poor's ("S & P"), his former employer, discriminated against him in violation of the Americans with Disabilities Act (the "ADA"), as codified, 42 U.S.C. § 12101 et seq., and discharged him in retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons to be discussed, the Court grants the defendant's motion.

BACKGROUND

I. Statement of Facts

Unless otherwise indicated, the following facts are undisputed. Plaintiff graduated from Hobart College in 1976 with a B.A. in political science, and from Cornell Business School in 1980 with an M.B.A. in finance. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Mem.") at 3; Plaintiff's Deposition*fn2 ("Pl.'s Dep.") at 143-44.) In the early 1980s, plaintiff was diagnosed with bipolar disorder, also known as manic-depressive disorder. (Pl.'s Mem. at 6; Valentine's Affidavit in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Exhibit E ("Valentine Aff., Exh. E") at 1.) On March 29, 1982, plaintiff was hired as an Assistant Analyst by S & P, a subsidiary of the McGraw-Hill Companies that employs more than five hundred people. (Valentine Aff., Exh. E at 38; Pl.'s Mem. at 6; Plaintiff's Counter Statement Pursuant to Local Rule 3(g) ("Pl.'s 56.1") ¶ 1; Defendant's Local Rule 56.1 Statement ("Def.'s 56.1") ¶ 1.) Plaintiff was hired about forty-five days after being released from a mental hospital where he was treated upon suffering his second "nervous breakdown" in less than two years. (Plaintiff's First Amended Complaint ("1st Am.Compl.") ¶ 8 at 1.) Plaintiff alleges that although he continued to grapple with severe anxiety problems and suffered from recurring manic-depressive mood swings requiring medication, he prospered at S & P. (Pl.'s Mem. at 6.) By September 26, 1983, S & P promoted plaintiff to an Analyst position. (Valentine Aff., Exh. E at 38.) In the mid-1980s, plaintiff regularly received high marks for his analytical abilities from the editors of S & P's publications*fn3 and was highly ranked in the editors' periodic rankings of analysts. (Pl.'s Mem. at 3, 6.) In April 1984, plaintiff was ranked sixth out of twenty analysts in his department and, by August 1984, he was ranked first out of eighteen analysts by all of the editors in his department. (Valentine Aff., Exh. E at 7, 38; Pl.'s Mem. at 3, 6.)

In September 1985, however, plaintiff abruptly quit his job in the midst of a manic mood swing. (Pl.'s Mem. at 6; Pl.'s Dep. at 429.) Convinced to return to S & P by Steve Sanborn, the Senior Vice President in charge of his department, plaintiff resumed work almost immediately and was promoted to Senior Analyst three months later. (Pl.'s Mem. at 6-7.) Upon his return, plaintiff assumed responsibility for the tracking and analysis of approximately forty electronic stocks and six or seven toy stocks. (Pl.'s Dep. at 314, 453-54; Affidavit of Robert Temme in Support of Defendant's Motion for Summary Judgment ("Temme Aff.") ¶ 2.) Plaintiff's duties included preparing written reports and analyses of these stocks for S & P publications distributed to brokers, investors and securities firms. (Temme Aff. ¶ 2.)

In November 1985, plaintiff was still ranked first out of eighteen analysts, (Valentine Aff., Exh. E at 7.), however, his performance soon began to decline. (Pl.'s Mem. at 7.) Plaintiff was ranked sixth out of nineteen analysts in May 1986, and dropped to eleventh out of twenty analysts by November of that year. Rebounding slightly in 1987, plaintiff was ranked eighth out of nineteen analysts in May and eighth out of twenty analysts in November. (Valentine Aff., Exh. E at 7.) Plaintiff's ranking further plummeted between 1988 and 1990, following a string of personal tragedies which included the death of his mother, grandmother and sister. (Pl.'s Mem. at 7; Pl.'s Dep. at 432-34.) In June 1988, plaintiff was ranked twentieth out of twenty-two analysts and by July 1989, he had slipped to twenty-first. (Valentine Aff., Exh. E at 39.) Ranked eighteenth in July 1990, plaintiff felt that management had failed to sufficiently sympathize with his tragedies and instead used them as "excuses to give [him] viciously biased reviews." (Valentine Aff., Exh. E at 39; Pl.'s Mem. at 7.) Plaintiff initially "began to suspect that [his] reviews were biased . . . because word of [his] homosexual sex life had found its way into the office." (Pl.'s Mem. at 7.)

Plaintiff alleges that S & P's discrimination against him because of his mental illness began in July 1990, after Fortune magazine published plaintiff's letter to the editor disclosing that he was "a lithium-maintained manic-depressive." (Plaintiff's Second Amended Complaint ("2d Am. Compl.") ¶ 8; Valentine Aff., Exh. E at 3.) Until that time, plaintiff had not disclosed to S & P's management that he had been diagnosed as manic-depressive. (Pl.'s 56.1 ¶ 2; Def.'s 56.1 ¶ 2.) Although the record is unclear as to how S & P first became aware of the published letter, plaintiff claims that he "had the approval of Steve Sanborn to send the letter." (Pl.'s Dep. at 439.)*fn4 Plaintiff contends that S & P's discrimination manifested itself in adverse measures taken against him soon after the public disclosure of his mental illness. (2d Am.Compl. ¶ 8.) For instance, in October 1990, David Blitzer, plaintiff's manager, objected to plaintiff's attempts to appear on Wall Street Week, a top rated business program. (Pl.'s Mem. at 4, 8.) Plaintiff postulates that Blitzer objected to his appearance on the show because S & P did not want a manic-depressive to represent the company publicly. (Id.) S & P's alleged discriminatory conduct against plaintiff continued in the form of negative performance evaluations. (2d Am.Compl. ¶ 8.) See discussion of plaintiff's allegations concerning his performance history at S & P, infra at pp. 269 - 276.

S & P's review process of each analyst's performance consisted of evaluations and compiled rankings by the editors of S & P's various publications. (Pl.'s Dep. at 430, 432; Affidavit of Robert Natale in Support of Defendant's Motion for Summary Judgment ("Natale Aff.") ¶ 4.) In early 1991, plaintiff received a critical written evaluation which dropped his ranking at S & P. (Pl.'s Mem. at 8; Valentine Aff., Exh. E at 61-62.) He was also given a "verbal warning of disciplinary action". (Id.) Plaintiff believes that the review reflected a clear intent to discriminate against him because of his manic-depression and marked the beginning of efforts by S & P's management to terminate his employment on the basis of his disability. (Pl.'s Mem. at 8-9.) Plaintiff's next evaluation, in the summer of 1991, was again negative. (Id. at 9.) Robert Natale, plaintiff's new manager, reiterated the earlier verbal warning and advised plaintiff that his performance must improve or further disciplinary action could eventually lead to the termination of his employment. (Valentine Aff., Exh. E at 15.) Natale also told plaintiff that if his poor performance was a result of his illness, "perhaps a doctor would disable [him]". (Id. at 16) Plaintiff believes that Natale's comments illustrated S & P's initial attempt to place him involuntarily on disability. (2d Am. Compl. ¶ 8; Pl.'s Mem. at 9.)

In his review in the summer of 1992, plaintiff's ranking improved. Yet, although plaintiff was a widely quoted analyst (Pl.'s Dep. at 511; Valentine Aff., Exh. B), he was criticized for "impressions created outside the department". (Pl.'s Mem. at 9-10.) In September 1992, plaintiff filed a formal grievance with his union, the Newspaper Guild ("the Guild"), alleging that he had been subjected to discriminatory treatment on the basis of his sexual orientation. (Def.'s 56.1 ¶ 3.) Although he attributed the discriminatory conduct to his sexual orientation, plaintiff also alluded to Natale's comment, about going on disability, as discrimination on the basis of his mental illness. (Valentine Aff., Exh. E at 13.) After investigating plaintiff's grievance, Robert Temme, S & P's Director of Human Resources, concluded, in an inter-office memorandum dated January 15, 1993, that there was no merit to plaintiff's allegations. (Valentine Aff., Exh. E at 14-16; Temme's Aff. ¶¶ 5-9.)

In September 1994, plaintiff received another critical evaluation and verbal warning. (2d Am.Compl. ¶ 8; Pl.'s 56.1 ¶ 5; Pl.'s Dep. at 648-49; Valentine Exh. 23.*fn5) He subsequently filed several grievances with the Guild concerning his review and the perceived discrimination. (Pl.'s 56.1 ¶ 5; Valentine Aff., Exh. E at 64-70, 79, 104-109; Valentine Exh. 23.) By inter-office memorandum dated December 22, 1994, Temme denied plaintiff's grievance of discrimination, determining that the evaluation and disciplinary action were justified by legitimate concerns relating to plaintiff's performance of his responsibilities. (Pl.'s 56.1 ¶ 5; Def.'s 56.1 ¶ 5; Pl.'s Dep. at 692; Valentine Aff., Exh. E at 79.)

On April 10, 1995, S & P informed plaintiff that he was being placed, along with another analyst, in a pilot "stop-loss" program. (2d Am.Compl. ¶ 8; Valentine Exh. 32.) The stop-loss system was designed to change automatically an analyst's rating for a stock if that stock's performance changed. (Valentine Aff., Exh. E at 21; Valentine Exh. 32.) Specifically, for any stock that moved significantly in the direction opposite than that of the analyst's recommendation — e.g. a highly recommended stock that fell more than ten percent — the analyst's recommendation was overridden for thirty days. (Valentine Aff., Exh. E at 21.) S & P's stated reason at the time for placing plaintiff in the stop-loss program was that he covered volatile industries and that during the first half of 1995, he had refused to recommend certain semiconductor stocks that were performing strongly and had been rated favorably by other Wall Street analysts. (Pl.'s 56.1 ¶ 8; Def.'s 56.1 ¶ 8; Natale Aff. ¶¶ 10-11; Temme Aff. ¶ 14.) Plaintiff's failure to recommend these stocks for purchase prompted a series of complaints from at least one portfolio manager, who wanted to purchase the stocks, but was precluded from doing so because Valentine had not recommended them. (Id.) On May 9, 1995, after the stop-loss system was implemented, the Guild filed a grievance alleging that plaintiff had been singled out for inclusion in the "stop-loss" program. (Pl.'s 56.1 ¶ 9; Def.'s 56.1 ¶ 9; Valentine Exh. 33.)

On June 20, 1995, S & P removed plaintiff from covering semiconductor stocks. (2d Am.Compl. ¶ 8.) In addition, S & P diminished plaintiff's analytical and stock picking functions and assigned him new responsibilities of a more factual nature — condensing earning statements and issuing press releases and annual reports. (Pl.'s Mem. at 13; Natale Aff. ¶ 13.) Plaintiff's salary, however, remained unchanged. (Pl.'s Dep. at 745.) On August 1, 1995, plaintiff was issued a written warning for unsatisfactory job performance and during his review on August 30, 1995, plaintiff was informed that his performance was "dismal" and that he had received the worst review in the history of his department. (Pl.'s Mem. at 14; Valentine Exh. 38.) Based on these activities, plaintiff filed a charge of disability discrimination with the EEOC on September 7, 1995. (Valentine Aff., Exh. E at 101-103.)

In mid-October 1995, several of plaintiff's co-workers made complaints about plaintiff's behavior and expressed concerns about his overall mental well-being. (Pl.'s 56.1 ¶ 12; Def.'s 56.1 ¶ 12.) Two analysts reported that plaintiff regularly paced back and forth in the halls and frequently slammed his door. Another co-worker told Natale that plaintiff continually referred to a book that he was writing about a government conspiracy against him. (Id.) On October 16, 1995,*fn6 Temme, Natale, and John Coyle, plaintiff's immediate supervisor, met to discuss plaintiff's behavior. At the meeting, Temme asked plaintiff about his health and stated that plaintiff had the option of using the Employee Assistance Program. (Pl.'s Mem. at 14; Valentine Aff., Exh. E at 95; Pl.'s Dep. at 769.) Plaintiff replied that he was already seeing a psychiatrist and that his co-workers were making these complaints because they resented him for his sexual orientation. (Pl.'s Dep. at 399-400, 769.) Several days later, S & P requested that plaintiff provide a letter from his psychiatrist confirming his ability to perform his job duties. (Pl.'s 56.1 ¶ 13; Def.'s 56.1 ¶ 13.)

Plaintiff sought from his psychiatrist, Dr. Bruce Braverman, a letter affirming his fitness for work. (Bruce Braverman's Deposition*fn7 ("Braverman Dep") at 74-75.) On October 19, 1995, Dr. Braverman sent a letter to S & P stating simply that plaintiff was "fully able to perform all of his job functions and responsibilities." (Valentine Exh. 46.) This statement was based solely on Dr. Braverman's assessment of plaintiff's intellectual capacity and cognitive functioning. (Braverman Dep. at 76-77.) After sending this letter, Dr. Braverman was contacted by Dr. Barbara Nichols from McGraw-Hill on October 25, 1995. (Id. at 81-82.) Dr. Nichols provided Dr. Braverman with information about plaintiff's conduct at work, and asked him, in light of this information, to assess whether plaintiff might require disability leave. (Id. at 84-85.) When Dr. Braverman later discussed this conversation with plaintiff, plaintiff informed the doctor that he did not want to consider disability leave, and did not want Dr. Braverman to discuss that option with S & P. (Id. at 86-91.)

On October 26, 1995, plaintiff left the following voice mail message for a co-worker who had recently accepted a position with another investment company, one Doe Company:*fn8

  My name is Paul Valentine. Actually I do want to say
  not only have they [signaled] me that you were in on
  the cover-up and are an alcoholic, they also tell me
  that you're a fruit and that you really go around to
  gay clubs, and that you're really a total fag but,
  you know, you don't have to worry about me spreading
  the truth around the office. You'll be a[t] [the Doe
  Company]; Wall Street, you know, is not a small
  place. You know, stories like that don't get around.
  Your identity is totally safe and don't worry, of
  course I have nothing to base that on. Bye bye.

(Pl.'s 56.1 ¶ 15; Def's 56.1 ¶ 15.) The co-worker who received this voice mail message forwarded it to Natale, who in turn gave it to Temme. On October 27, 1995, plaintiff was called into a meeting with Temme and a union representative. (Pl.'s 56.1 ¶ 16; Def.'s 56.1 ¶ 16; Pl.'s Mem. at 17-18.) During the course of this meeting, plaintiff admitted that the voice mail message was threatening in nature and that he had previously been warned about threatening another employee's reputation. (Pl.'s 56.1 ¶ 16; Def.'s 56.1 ¶ 16.) At the end of the meeting, plaintiff was suspended with pay. (Pl.'s 56.1 ¶ 17; Pl.'s Mem. at 19.)

On October 31, 1995, S & P notified plaintiff that he was terminated. (Valentine Exh. 47.) S & P's stated reason for plaintiff's termination was plaintiff's gross misconduct in leaving the threatening voice mail message to his colleague. (Id.)

II. Plaintiff's Allegations of Discrimination

A. Plaintiff's Performance History at S & P

As plaintiff's poor performance reviews continued following the July 1990 publication of his letter revealing that he was manic-depressive, plaintiff began to suspect that the motivation for S & P's discrimination had shifted from his sexual orientation to his mental illness. (Pl.'s Dep. at 658-59.) Plaintiff states that:

  I felt that while the numbers had indicated I had
  begun to make some progress about whatever
  discrimination I faced because of the sexual
  orientation, that the discrimination continued, and I
  thought it was primarily because of that letter to
  Fortune, and I got comments directly or indirectly
  from management about that letter from Fortune.

(Id. at 659.) Plaintiff claims that his poor performance review covering the second half of 1990 "made [him] decide that the dynamic now largely driving the discrimination that [he] was facing was not due primarily to [his] homosexual sexual orientation but was caused by [his] mental illness, which had become known in the department." (1st Am.Compl. ¶ 8 at 3.)

1. February 1991 Review

Plaintiff alleges that in his February 1991 oral review, covering the second half of 1990, Blitzer gave him a verbal warning and informed him that his performance was unacceptable and that he would receive a written warning*fn10 that could lead to his dismissal in three months. (Pl.'s Mem. at 8; Valentine Exh. 8.) Plaintiff's ranking had dropped from eighteenth in July 1990 to twenty-third in January 1991. (Pl.'s Mem. at 8; Valentine Aff., Exh E at 61-62.) At his February 1991 review, plaintiff was criticized for his work on Stock Reports, particularly with regard to stock recommendations in the latter part of 1990 which had not done well. (Pl.'s Dep. at 498-500.) Plaintiff notes that his stock performance had improved for the first few weeks of 1991, prior to the February review with Blitzer, but after the end of the time period covered by the review. (Id.) Plaintiff claims that the review made no sense to him given that the strain of his family tragedies had subsided and that he had made every effort to improve his performance. (1st Am.Compl. ¶ 8 at 4; Pl.'s Mem. at 8.) The written review reflected plaintiff's disappointment over the poor evaluation and that "he would fight any dismissal with union support." (Valentine Aff., Exh. E at 61.) Interpreting Blitzer's threat of a written warning as a clear intent to fire him, plaintiff went to the Guild and successfully averted the threatened written warning by expressing the extent of his trauma and grief over his recent family tragedies. (1st Am.Compl. ¶ 8 at 5; Pl.'s Mem. at 9; Pl.'s Dep. at 500-02.)

2. Summer of 1991 Review

Plaintiff alleges that his review in the summer of 1991, covering the first half of 1991, was also discriminatory. Natale, plaintiff's new research director, reiterated the prior verbal warning and informed plaintiff that his performance remained unsatisfactory and advised him that unless his performance improved further disciplinary action might be taken, including the issuance of a written warning that could lead to plaintiff's dismissal in six months. (Pl.'s Mem. at 9; Pl.'s Dep. at 592.) According to plaintiff, Natale also told him he should go on disability, which he took as an indication that Natale considered him an unfit employee because of his mental illness. (Pl.'s Mem. at 9; Valentine Aff., Exh. E at 13.) Plaintiff rated his own performance as satisfactory and felt there was a clear intent on the part of S & P's management to force him out of his job because of his disability. Although, plaintiff concedes that his work had deteriorated earlier on, he claims that he had fully recovered by this time. (1st Am. Compl. ¶ 8 at 5.) Plaintiff contacted Dave Mulcahy, the head of the Guild, and expressed his opinion that he was being discriminated against based on his mental illness and once again successfully averted the issuance of a written warning. (Pl.'s Mem. at 9.)

3. Summer of 1992 Review

In the summer of 1992, plaintiff claims he was given another discriminatory review. Although plaintiff was told at his oral review that his work habits, attitude, hours and writing had improved, along with his ranking, (Pl.'s Dep. at 506-510.), plaintiff took exception to his written review, which indicated that he needed improvement in two out of eighteen categories: "[a]cceptance of constructive criticism" and "[i]mpressions created outside the department." (Valentine Aff., Exh. E at 63, 68.) Plaintiff was particularly upset with the criticism that he needed to improve "impressions created outside the department." (Pl.'s Mem. at 9; Pl.'s Dep. at 510-13.) Plaintiff unabashedly claims that at that time, "[n]ot only was [he] the most widely interviewed analyst in the media from the department, [h]e was one of the best dressed." (1st. Am.Compl. ¶ 8 at 6.) Plaintiff further states:

  [n]ow [the review] struck me as highly
  discriminatory, because I was generating valuable
  publicity for Standard & Poor's in newspapers, in
  magazines, on television and radio. And here I'm
  being told that my impressions rated throughout —
  outside the department, were not favorable, and I
  felt this was prima facie evidence they were taking
  into account my stories about my personal life that
  were flying throughout the department, and that's why
  that box is checked that way.

(Pl.'s Dep. at 511.) Thus, the comment that he needed improvement in "impressions created outside the department" confirmed plaintiff's belief that the rest of the review was "grossly biased" and discriminated against him primarily based on his sexual orientation, rather than based on his work habits or hours. (1st. Am.Compl. ¶ 8 at 6; Pl.'s Dep. at 512-13.) Although plaintiff also claims that the review reflected discrimination against him based on his manic-depression. (1st. Am.Compl. ¶ 8 at 6), he admits to a belief that S & P gave him the unfavorable rating concerning impressions outside the department because of his homosexuality, not his mental illness. (Pl.'s Dep. at 513.)

  I used to be the # 1 ranked analyst in this
  department. And even more impressive, I used to be
  ranked # 1 by the editor of every service. If I am no
  longer burdened with those profound problems our
  family suffered and am giving 100% to improving my
  reviews, why haven't my reviews improved
  dramatically? I maintain the reason the improvement
  in my reviews has been far short of dramatic is
  because I am being discriminated against because of
  my sexual orientation. It is interesting to note that
  when I was ranked # 1 in the department by EVERY
  editor, everyone thought I was a heterosexual.

(Valentine's Aff., Exh. E at 9.) Plaintiff also discussed the review from. Watson, alleging that Watson's actions clearly revealed him to be a "homophobic [who] hates homosexuals." (Id.) Two years earlier, Watson had identified two problems with plaintiff's work: (1) that he was late; and (2) sloppy. Plaintiff claimed he had substantially solved both problems, but his reviews had not similarly improved. Plaintiff noted that back in 1985, Watson had ranked him as the number one analyst for Stock Reports and, thus, plaintiff attributed his lower ranking to discrimination on the basis of his sexual orientation. (Id. at 9-10.) Plaintiff, however, now admits that he had no factual basis for believing that Watson knew of his sexual orientation. (Pl.'s Dep. at 583.)

Plaintiff's September 15, 1992 grievance also claimed that Marketscope, and particularly its executive editor, Walt Arvin, had discriminated against him in his reviews because of his homosexuality. (Valentine Aff., Exh. E at 10.) Plaintiff alleged that the staff of Marketscope had harassed him continuously by making comments which he perceived as innuendos concerning his sexuality. In particular, plaintiff alleged that a staff member of Marketscope regularly ridiculed him by telling openly gay jokes about cabbage patch dolls and that Arvin once passed him in the hallway without saying hello, only to say to another colleague, in a loud voice, "[t]he reason I didn't say hello to him was that I didn't want to get fucked in the middle of the afternoon." (Id.) Plaintiff's belief that Arvin was referring to him was "reinforced by [Arvin's] guilty look and fast exit once he saw [plaintiff] had overheard him." Thus, given this ongoing harassment, plaintiff claims it was reasonable for him to conclude that his poor performance reviews and the failure to select him as the Marketscope contributor of the month when he was one of its leading contributors, reflected discrimination on the basis of his sexual orientation. (Id.)

In his grievance, plaintiff also objected to a prior review by Natale back in 1989. He claimed that Natale "mocked [him] derisively by yelling at [him], `[m]ost computer analysts know more about the semiconductor industry than you.'" (Valentine Aff., Exh. E at 11.) Plaintiff believed that Natale's bias against him stemmed from Natale's resentment "that [plaintiff] was out of the closet and he was in the closet." (Pl.'s Dep. at 542-43.) According to plaintiff. Natale "was living a life in the closet," and was resentful because plaintiff had previously rebuffed his sexual advances and had disclosed these alleged indiscretions. (Id.)

After discussing a litany of other disparaging comments made by various S & P employees, plaintiff's grievance described Blitzer's reaction to the publication of his letter in Fortune. Plaintiff claimed that in the fall of 1990, Blitzer, his then research director, "went bizzerk [sic] about the letter that I had sent to Fortune in the middle of the main public hallway on the 17th floor. He proceeded to threaten to take the toy group away from me and told me to stop trying to get on Wall Street Week, which efforts Steve Sanborn was aware of and supported."*fn12 (Valentine Aff., Exh. E at 11-12.) Plaintiff complained to Sanborn about Blitzer at that time. Plaintiff concluded his grievance with the observation that the ADA did not go into effect until July 26, 1992, after Blitzer's acts occurred. However, plaintiff warned that if in the future he felt he was being discriminated against on the basis of his manic-depression, he would raise his claims under the ADA. (Id. at 13.)

On January 15, 1993, Temme responded to plaintiff's grievance. Plaintiff believes that this response was itself discriminatory because Temme failed to deal directly with his objections. Plaintiff also believes the response reflected management's objection to his sexual orientation and their discomfort with his public disclosure of his manic-depression. (1st: Am. Compl. ¶ 8 at 10.) Plaintiff points to management's comments in the response as an indication of S & P's initial concern about his mental illness:

  [i]n your letter which was published in July of 1990,
  you objected to Fortune's "gratuitous treatment of
  someone's treatment of mental illness." You
  volunteered that you yourself were manic depressive.
  Because you were identified as an analyst for
  Standard and Poor's, the company was concerned how
  our clients would react. Thus, David Blitzer,
  research director for the Analytical Department,
  reviewed this matter and concluded that no action was
  warranted.

(Valentine Aff., Exh. E at 15.) Although plaintiff views S & P's stated concerns about its clients' reaction as discriminatory, he does admit that it was a "legitimate" concern based on the public's misperceptions of the mentally ill. (Pl.'s Dep. at 553.)

Plaintiff also took exception to Temme's reference to his attendance. (Pl.'s Mem. at 10.) In the memorandum, Temme stated that S & P's managers had made every effort to accommodate plaintiff, particularly when plaintiff was absent from work for a week in December 1990 without any prior notice. (Valentine Aff., Exh. E at 16.) Plaintiff claims that he took the week off because of another manic mood swing, and interprets the reference to his absenteeism as discrimination, believing that it reflected S & P's antagonism towards his manic-depression. (1st. Am. Compl. ¶ 8 at 10-11; Pl.'s Mem. at 10.) Plaintiff alleges that he decided not to pursue charges of discrimination, however, because after writing two memoranda contesting Temme's response, (Valentine Aff., Exh. E. at 17-19), Temme begged him not to go to the New York City Human Rights Department and assured him that there would be no future discrimination. (Pl.'s Mem. at 10: 1st. Am. Compl. at 11.)

4. September 6, 1994 Review

Plaintiff maintains, however, that despite Temme's promise, he was again discriminated against in his performance review for the first half of 1994. In August 1994, prior to his review, plaintiff was given a verbal warning regarding his unsatisfactory job performance. (Valentine Aff., Exh. E at 79.) He was issued the warning because two major services, Outlook and Industry Surveys, found his work unacceptable. (Id.) The verbal warning was followed by a formal review on September 6, 1994, with Natale and Susan Stahl Gibney, plaintiff's investment officer. Natale reiterated the verbal warning and advised plaintiff that continued unsatisfactory performance could result in his dismissal in forty-five days. (Valentine Aff., Exh. E at 64.) Plaintiff took exception to this review because over the years he had received numerous letters of praise for his contributions to Industry Surveys. Plaintiff further claims that he was the number one stock picker for Outlook. (Pl.'s Mem. at 11; Valentine Aff., Exh. E at 66-67.) As plaintiff explains:

  I just thought the review was out of, out of context
  with the quality of work I had been producing, and I
  felt a review, especially from Industry Surveys, was
  biased against me; that these were surveys that I was
  receiving compliments from executives in the
  industry . . . . and I thought the Outlook review
  continued to be biased against me; that they
  continued to cite stock recommendations made outside
  the review period, and I didn't think I was given a
  chance there. . . . The MarketScope ...

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