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MULLIN v. ROCHESTER MANPOWER

March 7, 2002

LAUREL MULLIN, PLAINTIFF
V.
ROCHESTER MANPOWER, INC.; MANPOWER, INC.; AND MARYANN DEE, DEFENDANTS



The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge

DECISION and ORDER

Plaintiff raises claims under the Civil Rights Act of 1964, Title VII, the Family & Medical Leave Act and the New York State Human Rights law. Previously, on January 17, 2002, this Court entered a decision and order granting plaintiff's application to amend her complaint. The case is now before the Court on defendants' motion for summary judgment (docket # 19) seeking dismissal of the Amended Complaint. For the reasons stated below, defendants' motion is granted in part and denied in part.

FACTUAL BACKGROUND*fn1

Plaintiff was employed by Rochester Manpower, Inc., from November 15, 1995, until June 8, 1999. Robert Capo was the manager of the Fairport*fn2 branch of Rochester Manpower, Inc., from approximately December 1998 through January 2001 and was also one of plaintiff's supervisors at or near the time of her termination.

In 1997, plaintiff had a child and took a six-week maternity leave from her employment. Plaintiff was not required to submit a written request to take maternity leave. Mullin dep. at 55. At that time, she was a "Service Representative" at the Fairport branch. In January 1998, upon her return to work following her maternity leave, Rochester Manpower, Inc., agreed to adjust her work schedule to allow her more time with her newborn. This accommodation in her working hours was granted by her then supervisor, Giannina Naylon, who cleared it with Maryann Dee. Mullin dep. at 57-59. Approximately in June 1998, plaintiff was promoted to the position of "branch supervisor" at the Fairport office. On or about August 1, 1998, plaintiff's annual salary was increased from $27,875.00 to $30,000.00.

On about May 19, 1999, plaintiff confidentially informed her supervisor, Capo, that she was pregnant. In that regard, she testified in her deposition as follows:

I did tell him that I just learned, I believe that day I had gotten off the phone with my doctor's office and I just learned that I was pregnant. I knew that, you know, we'd have to have a plan in place. he had been talking about Debbie Delaney who was a part-time interviewer, perhaps bringing her upon in the fall as a service representative. And I said, you know, maybe if that was — I said with me being pregnant that might be a good time to train, get her up and running, et cetera. I said I know that there would be a lot of plans that would need to be made so I wanted to let him know right away. And I asked him not to say anything, as I had miscarried before my daughter was born. So I said, "A lot of things can happen to first trimester. Can we please just keep it between us but keep it in mind, as we'll have to have a plan in place for the rest of the year."

Mullin dep. at 99. Capo asked her when she was due, and she responded that she was only about five weeks along and her due date would not be until January. Mullin dep. at 100.

On or about June 7, 1999, Capo asked plaintiff what her commitment was to the office and stated to her that he needed a "what ever-it-takes attitude" from her and, further, needed to know if she was "with him." Mullin affidavit at 2. The following day, Capo informed plaintiff she was being terminated for financial reasons. Mullin affidavit at 2. The day after that, Capo informed plaintiff she was being terminated for both financial and performance reasons. Then, two days later, on June 11, 1999, Dee told her she was being terminated for financial, not performance-related, reasons. Mullin affidavit at 2. However, in a July 26, 1999, letter from defense counsel to plaintiff's counsel, it was represented that after reviewing plaintiff's work history and discussing the matter with the president of Rochester Manpower, Inc., Robert G. Lewis, the plaintiff was being terminated for both financial and performance reasons. Id. On Sept. 21, 1999, defendants reported to the Equal Employment Opportunity Commission that plaintiff's work performance was questionable, and she was being terminated for financial reasons. Id. Mullin affidavit at 3. Yet, in a deposition on May 1, 2001, Capo described plaintiff as a "good worker." Capo dep. at 83.

Steve Schiano, the Controller or Chief Financial Officer of Rochester Manpower, Inc. since May 1995, in an affidavit submitted in support of defendants' application for summary stated,

[a]s a result of poor performance in the second quarter and the fact that staff expenses remained well above the benchmark, I recommended that staff be cut at the Fairport branch in order to improve the financial condition of the branch. I made this recommendation at a meeting with Lewis, Robert Capo . . ., and Dee at some point during the second quarter of 1999.

Schiano aff. at 2-3 (emphasis). There is no dispute that the second quarter was not complete ...


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