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EPSTEIN v. KEMPER INS. COMPANIES
March 27, 2002
JOEL D. EPSTEIN, JAMES J. GLENN, MARINA DUSHAS, LAWRENCE R. MILES, AND JULIA PORPER, PLAINTIFFS,
KEMPER INSURANCE COMPANIES, DEFENDANT.
The opinion of the court was delivered by: Berman, District Judge.
Joel Epstein ("Epstein"), James Glenn ("Glenn"), Marina Dushas
Lawrence Miles ("Miles") and Julia Porper ("Porper")
(collectively "Plaintiffs") bring this' action under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 620 et
seq. (the "ADEA"), and the New York City Human Rights Law, §§
8-107.1(a) and 8-502 ("NYCHRL"). Plaintiffs claim that
Defendant, Kemper Insurance Companies ("Defendant" or "Kemper")
discriminated and retaliated against Plaintiffs because of their
age. Plaintiffs seek, among other things, monetary damages,
attorneys fees, a declaratory judgment, reinstatement and a
"cease and desist" order. On August 7, 1999, Defendant moved for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure ("Fed.R. Civ.P."), and on August 8, 1999,
Defendant moved in the alternative to sever the individual
Plaintiffs' claims. On August 31, 1999, Plaintiffs opposed
Defendant's motion for summary judgment ("Pl. Mem."). On
September 8, 1999, Defendant also moved to strike Plaintiffs'
Amended Rule 56.1 Counter-Statement of Disputed Material Facts
("Amended Rule 56.1 Statement") and the affidavit of Joel
Epstein, dated August 30, 1999 ("Epstein Aff."). For the
following reasons, Defendant's motions are resolved as follows:
(i) motion to strike is granted in part; (ii) motion for summary
judgment is denied; and (iii) motion to sever is denied.*fn1
Plaintiffs were employed as attorneys in Kemper's New York
City litigation department. Plaintiff Epstein was hired in
December 1979 as a Staff Attorney and, subsequently, held the
position of Supervising Attorney. See Epstein Aff. at ¶¶ 2-3.
Epstein has not returned to Kemper following a vacation in
February 1999, claiming disability. See Defendant's Statement
of Fact ("Def.SOF") at ¶ 77. Plaintiff Dushas was hired as a
Trial Attorney in July 1980; she subsequently held the position
of Supervising Attorney; and she was terminated in January 1999.
See id. at ¶¶ 9, 79 and 138. Plaintiff Porper was hired as a
Staff Attorney in December 1989; she resigned in April 1999.
See id. at ¶¶ 24 and 44. Plaintiff Glenn was hired as a Staff
Attorney in May 1988; he was terminated in January 1999. See
id. at ¶¶ 139 and 160. And, Plaintiff Miles was hired as a
Senior Trial Attorney in July 1992; he was terminated in July
1998. See id. at ¶¶ 162 and 178.
Anne Pope ("Pope") was hired as Managing Attorney in Kemper's
New York City litigation department in January 1997. See
Affidavit of Anne D. Pope, dated August 4, 1999 ("Pope Aff.") at
¶ 4. "[S]he began implementing procedures requiring attorneys in
the office to handle their cases in a more aggressive manner,"
see Def. SOF at ¶ 10, presumably because "Kemper had raised
the bar on performance expectations." See id. at ¶¶ 3, 13, 14
and 16. Plaintiffs allege that Pope "engaged in a campaign to
systematically harass and abuse Plaintiffs . . . who were all
over 40 years old," by leveling "unjustified and at times
trivial criticisms of their performances." See Pl. Mem. at 2.
Over a two-year period during Pope's tenure, Plaintiffs'
performance ratings were consistently lowered. See Def. SOF at
¶¶ 33, 40, 60, 65, 69, 74, 96, 107, 111, 123, 126, 138, 151, 154,
160, 165, 171, 178.
Between May and June of 1998, Plaintiffs filed age
discrimination charges with the United States Equal Employment
Opportunity Commission ("EEOC"). See id. at ¶ 21. In August
1998, Plaintiffs filed this action. See id.
Affidavits submitted in support of, or opposition to, a motion
for summary judgment "shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein." Fed.R.Civ.P. 56(e). The
court acts "well within its discretion by striking 
inappropriate portions of [an] affidavit." Hollander v.
American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999).*fn2
Summary judgment shall be granted "if 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 that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp., v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[T]he court must draw
all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also
Fran Corp. v. United States, 164 F.3d 814, 816 (2d Cir. 1999).
The nonmoving party "must come forward with `specific facts
showing that there is a genuine issue for trial.'" Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
"[S]ummary judgment may be appropriate even in the
fact-intensive context of discrimination cases." Abdu-Brisson
v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
However, "[a] trial court must be cautious about granting
summary judgment to an employer when, as here, its intent is at
issue." Gallo v. Prudential Residential Services, L.P.,
22 F.3d 1219, 1224 (2d Cir. 1994). Because direct evidence of
discrimination is rarely found, "whatever other relevant
depositions, affidavits and materials are before the district
court must be carefully scrutinized for circumstantial evidence
that could support an inference of discrimination." Curley v.
St. John's Univ., 19 F. Supp.2d 181, 187 (S.D.N.Y. 1998)
(quoting Montana v. First Federal Savings and Loan Ass'n,
869 F.2d 100, 103 (2d Cir. 1989)).
A motion to sever may be denied if Plaintiffs "assert any
right to relief . . . in respect of or arising out of the same
transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
these persons will arise in that action." Fed.R.Civ.P. 20(a);
see also Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1421
(S.D.N.Y. 1989). Whether or not to grant a motion to sever lies
within the broad discretion of the district court, and the party
making the motion bears the burden of showing that severance is
"necessary to prevent prejudice or confusion, and to serve the
ends of justice." Lewis v. Triborough Bridge and Tunnel
Authority, 97 Civ. 0607(PKL),
2000 WL 423517 at *2 (S.D.N.Y. Apr. 19, 2000).
Defendant argues that the Epstein Affidavit is "rife with
statements not based on personal knowledge," and contains "pure
unadulterated argument" and "inadmissible hearsay." See
Defendant Motion to Strike, dated September 8, 1999 ("Mot. to
Strike") at 6-10. Defendant also argues that Plaintiffs' Amended
Rule 56.1 Statement is "argument or conclusory," and its
citations are "wildly misleading and incorrect." See "Mot. to
Strike" at 2, 4; Defendant Response to Am. Rule 56.1 Statement,
dated September 14, 1999 ("Def. Resp. to Rule 56.1 Statement")
at 3-7. Plaintiffs contend that the Amended Rule 56.1 Statement
"correct[s] inadvertent omission[s] of citations . . ." and
"delete[s] conclusory paragraph[s]," and further argue that
Epstein is competent to testify as to events which occurred even
after he took his leave of absence. See Affidavit of Norman
Mednick, dated September 9, 1999 ("Mednick Aff.") at ¶¶ 3-4.
Statements in an affidavit or Rule 56.1 statement are
inappropriate if they are not based on personal knowledge,
contain inadmissible hearsay, are conclusory or argumentative,
or do not cite to supporting evidence. See Fed.R.Civ.P. 56(e);
Local Rule 56.1; Holtz, 258 F.3d at 71 ("`[W]here the cited
materials do not support the factual assertions in the
statements, the Court is free to disregard the assertion.'");
Morris v. Northrop Grumman Corp., 37 F. Supp.2d 556, 568
(E.D.N.Y. 1999) ("Hearsay statements set forth in an affidavit
. . . which cannot be ...