The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO STRIKE
PLAINTIFF'S REQUEST FOR REINSTATEMENT AND FRONT PAY.
Plaintiff Erika Flores was fired by defendant Buy Buy Baby,
Inc. ("BBB") on December 31, 1998. Flores claims that BBB
discriminated against her on the basis of pregnancy in violation
of the Pregnancy Discrimination Act of 1978 ("PDA"), 42 U.S.C. § 2000e
(k), contained in Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act
of 1991, and the New York State Human Rights Law, N.Y.Exec. Law §
290 et seq. Defendant moves for summary judgment and dismissal
of the claims, and moves in the alternative to strike plaintiff's
request for equitable relief.
For the reasons discussed below, defendant's motion for summary
judgement is denied, as is its motion to strike plaintiff's claim
Flores was hired as a sales associate at the Buy Buy Baby store
in Scarsdale, New York on August 24, 1998. At the time of her
hire, plaintiff was pregnant, though she neither informed
defendant of this nor was she physically showing. After being
hired, Flores was assigned to work in the Scarsdale store's
"center island" under the direct supervision of department
manager Marianne LaBella-Lajos ("LaBella"). Plaintiff's duties
included assisting customers, stocking merchandise, and taking
occasional turns as gift wrapper, cashier or personal shopper.
Among her responsibilities, customer service was paramount.
Flores began as a full-time employee, working approximately
forty hours per week. Her weekly work schedule varied according
to the department-wide schedule, which LaBella usually prepared
on the Wednesday of the preceding week.
Like all new BBB employees, Flores was a probationary employee
for the first ninety days of her employment. The Buy Buy Baby
Human Resources Policies and Procedures Manual says:
All new hires should be evaluated and reviewed after
90 days of continuous employment. This initial review
should determine whether the employee has
performedat[sic] an acceptable level and should move
into regular employee status. Employees who have not
performed at an acceptable level may be subject to
(Bernbach Aff. at Exh. 4, at BBB0054.)
The decision whether a BBB employee successfully completes her
probation rests with her department manager. It was thus up to
LaBella to decide whether Flores should become a regular employee
after 90 days. Plaintiff's probation period ended in late
November, after which date she continued to work at BBB as a
Sometime in November or December 1998, Flores informed LaBella
that she was pregnant. She also told LaBella that she planned to
work until January, or longer if possible, then take a leave to
give birth, and eventually return to work.
Sometime after this conversation, Flores requested a reduction
in her hours, from full-time to part time. Flores says she made
the request "[b]ecause I felt that's what I wanted to do." (Id.)
After consulting with assistant store manager Attilio Capparelli
("Capparelli"), LaBella agreed to the request the next day.
In early December, plaintiff asked LaBella for a two-week
unpaid vacation. LaBella agreed, and she and Flores discussed the
dates the vacation would cover. LaBella claims to have made a
note of the dates in writing, although she no longer has her
note. As LaBella, in conformity with the store's general
practice, would not be preparing the work schedule for the week
of plaintiff's return until after plaintiff had left on vacation,
plaintiff claims to have arranged with LaBella to call in to the
store the week ...