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July 24, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiffs Salvatore Golia, on behalf of decedent Frank Golia,*fn1 Luigi Marinucci, and Lucilla Bermudez (collectively, "plaintiffs") bring this employment discrimination action against their former employer, Leslie Fay Company, Inc. ("Leslie Fay" or "defendant"), alleging that Leslie Fay terminated them because of their age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-34 (2000) ("ADEA"). Defendant now moves for summary judgment, arguing that plaintiffs have failed to raise genuine issues of material fact that would require a trial. Plaintiffs have also moved for summary judgment, on the grounds that defendant's failure to produce, and eventual destruction of, various relevant documents requires [ Page 2]

that defendant's answer be struck and judgment entered for plaintiffs. For the reasons discussed below, both motions will be denied.


The following paragraphs summarize the facts asserted by the parties, indicating the areas in which disputes exist.

Leslie Fay designs, manufactures, and sells women's apparel under a variety of brand names. (Def. Rule 56.1 Statement ¶ 2; Pls. Rule 56.1 Counterstatement ¶ 2.) Leslie Fay is comprised of several different divisions, each of which produces apparel under one or more brand names, and each of which primarily focuses on a particular style of apparel, such as evening wear or sportswear. (Pls. Rule 56.1 Counterstatement ¶¶ 2-3.) The employees involved in the design stage of the production process, such as designers and their assistants, work only for a particular division, conceptualizing and creating garment designs and samples for that division only. (Londono Dep. A at 61-62.) Once a sample of a newly designed garment has been created, patternmakers use the sample to create patterns of the garments in all of the different sizes in which it will be produced. Unlike designers, patternmakers are not associated exclusively with any particular division, working instead in Leslie Fay's general production department, and consequently may create patterns for any division's garments. (Def. Rule 56.1 Statement ¶¶ 13-14.)

All three plaintiffs were employed in Leslie Fay's production department until the summer of 2000. Frank Golia, aged 63 in 2000, and Luigi Marinucci, aged 62, were hired by Leslie Fay in 1998 as part of its acquisition of The Warren Group, a clothing manufacturer that owned the David Warren, Rimini, and Reggio brand names. Golia and Marinucci had worked as [ Page 3]

patternmakers for The Warren Group, and continued to do so for Leslie Fay. After the acquisition, each remained associated mainly with the divisions that produced clothing under The Warren Group's brand names. (Id. ¶¶ 28-31.) Thus, Golia made patterns primarily for the Reggio division, and Marinucci worked mostly with Rimini patterns, occasionally making Reggio patterns. (Id. ¶ 30-31; Anzaldi Dep. B at 169.) Lucilla Bermudez, aged 67 in 2000, also worked in the production department, although there is some dispute as to her exact function. According to defendant, Bermudez was not a patternmaker, even though she held that title, because she did not create new patterns from production samples. (Londono Dep. B at 71-72.) Instead, Bermudez allegedly performed less skilled "as-body" work, which consisted of copying or modifying existing patterns. (Id. at 68-71.) Bermudez disputes this characterization of her duties, however, stating that she was a patternmaker just like Golia and Marinucci, creating new patterns from production samples. (Bermudez Aff. ¶¶ 2-3.) Her performance evaluations appear to support her claim, as they consistently report her job title as "patternmaker," and a former supervisor wrote that she was a "skilled patternmaker." (Farber Aff. Ex. II.)

In July 1999, Concetta Anzaldi, Leslie Fay's Director of Technical Services, became plaintiffs' direct supervisor, assuming "primary responsibility for hiring, firing and supervising" most of Leslie Fay's patternmakers. (Def. Rule 56.1 Statement ¶¶ 26-27.) According to defendant, Anzaldi was immediately unhappy with Golia's and Marinucci's performance, and she would frequently have to correct or redo the patterns made by Golia and Marinucci. (Anzaldi Dep. A at 127-29.) She discussed these performance issues with Golia and Marinucci, as well as with her supervisors. (Id. at 107-11.) On July 20, 2000, Anzaldi and Suzanne Tully, Leslie Fay's Vice President of Human Resources, held separate meetings with Golia and Marinucci to discuss [ Page 4]

their performance. (Tully Dep. at 96-99.) Tully documented each meeting by preparing a memo summarizing Anzaldi's criticisms and asking each patternmaker to sign it. (Tully Aff. ¶ 12.) The two memos are identical in all respects, except for a brief paragraph in each that summarizes each patternmaker's reaction to the criticism. (Cohen Aff. Exs. R, S.) Thus, both memos state, "For quite some time Connie [Anzaldi] has not been pleased with [Golia's and Marinucci's] speed and in many instances quality of patterns. Connie indicated that in many instances it would be necessary to adjust or re-do patterns that [they] completed." (Id.) Both memos also noted that each patternmaker "appeared to be surprised," and disputed Anzaldi's assessment of his work. (Id.)

Sometime in 2000, Leslie Fay decided to discontinue the Reggio line of apparel because it had been unprofitable since 1998. Defendant asserts that discussion as to Reggio's future began in early 2000 (Ward Dep. at 22), and that the final decision to close the division was made in August 2000 (Def. Rule 56.1 Statement ¶ 47). The closing was not announced; rather, the division was "quietly phased out" over the subsequent months as the remainder of its inventory was sold. (Id. ¶¶ 47-48; Wishart Dep. at 33.) As plaintiffs point out, however, there is considerable conflicting testimony as to when the closure decision was made and approved, most of which suggests that the decision was not made until September 2000 at the earliest. (Wishart Dep. at 34; Tully Aff. ¶ 15; Ward Dep. at 34.)

As a result of the decision to close Reggio, Leslie Fay terminated Reggio's Vice President, Steven Behar, in December 2000, after he had overseen the sale of Reggio's remaining inventory, as well as Reggio's designer, Joey Chew, in September 2000. (Def. Rule 56.1 Statement ¶¶ 52-53.) Leslie Fay asserts that the Reggio closing also resulted in Chief Executive [ Page 5]

Officer John Ward's directing Dominick Felicetti, Vice President of Manufacturing, to discharge patternmakers in order to reduce the workforce. (Id. ¶ 55; Felicetti Dep. at 115.) Felicetti in turn instructed Anzaldi to fire an unspecified number of patternmakers based on their performance. (Felicetti Dep. at 116-18.) Thus, defendant asserts that Anzaldi was responsible for the decision to terminate Golia and Marinucci, and that she did so in order to reduce the workforce and because their performance had been deficient. (Id.; Def. Mem. at 10.) Once again, the testimony on this subject is contradictory, however, as Anzaldi herself disavows any advance knowledge of the firing decision, as well as of the reasons that Golia and Marinucci were fired (Anzaldi Dep. B at 53-56, 94), and Suzanne Tully testified, at least at one point in her deposition, that Anzaldi had no input in the firing decision (Tully Dep. at 326).*fn2 Regardless of who made the decision, however, Golia and Marinucci were informed of Leslie Fay's decision to fire them on August 22, 2000, by Tully and Felicetti. (Marinucci Dep. at 69-76.)

Defendant asserts that Anzaldi and Tully decided to fire Bermudez around the same time, August 2000, not because of any performance issues, but because the workforce could be further reduced by redistributing the as-body work that she performed to other patternmakers. (Tully Dep. at 134-35, 240-41; Def. Rule 56.1 Statement ¶ 75.) Anzaldi testified, however, that Bermudez was fired because her performance was poor, and that her duties were distributed to other employees after her termination. (Anzaldi Dep. A at 144-45.) Bermudez, for her part, testified that she was told that she was being fired because Reggio was closing, and there was [ Page 6]

consequently no work for her to do. (Bermudez Dep. at 120.) As with the other two plaintiffs, it is unclear who actually made the decision to fire Bermudez, as Tully states in her affidavit that Anzaldi made the decision and later informed Tully of it (Tully Aff. ¶ 21), while Anzaldi testified that she was not told why Bermudez was fired until after the decision was made, implying that she had nothing to do with the decisionmaking process (Anzaldi Dep. A at 144-45). Tully informed Bermudez of her termination on August 22, 2000. (Bermudez Dep. at 120.)

Thus, all three plaintiffs were terminated on August 22, allegedly as part of Leslie Fay's decision to downsize by closing the Reggio division and reducing the production staff. Around the same time, however, Leslie Fay hired or rehired several additional patternmakers who were considerably younger than plaintiffs. On June 26, Leslie Fay hired Katalin Votin, aged 54, as a patternmaker, to supplement the existing staff. (Farber Aff. Ex. N.) A month later, on July 24, Spiro Megaloudis, aged 34, was rehired after having been on temporary layoff for two months, as a replacement for another patternmaker who was fired for poor performance. (Id.) Finally, on August 21, the day before plaintiffs were fired, Leslie Fay rehired Josie Hong, aged 41, as a patternmaker, despite the fact that she had left her earlier stint as a Leslie Fay patternmaker on June 28 because "she could not handle the level of work." (Id.; id. Ex. V.) As the patternmakers' supervisor, Anzaldi had input into the decision to hire each of these employees (Anzaldi Dep. A at 177-79), although it is not clear whether she had sole responsibility for hiring decisions, as her testimony contradicts Tully's on this point as well (id.; Tully Aff. ¶ 9).


Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ...

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