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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,
V.
KEMPER INSURANCE COMPANIES, DEFENDANT.



The opinion of the court was delivered by: Berman, District Judge.

    DECISION AND ORDER

I. BACKGROUND

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.

II. STANDARD OF REVIEW

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).

III. ANALYSIS

A. Motion to Strike

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 ...


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