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February 4, 2004.

KIMBERLY BATKA Plaintiff, -against- PRIME CHARTER, LTD. Defendant

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiff Kimberly Batka ("Batka") brings this action against her former employer, Prime Charter, Ltd. ("Prime Charter") alleging discrimination on the grounds of gender and pregnancy in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), and the corresponding New York State and New York City statutes; and violation of her rights under the Family Medical Leave Act of 1993 ("FMLA"). Batka claims that while she was on FMLA leave following the birth of her child, Prime Charter wrongfully terminated her. Prime Charter counters that its reasons for terminating Batka were non-discriminatory and moves this Court to grant summary judgment against Batka on all her claims. The Court finds that the evidence contained in the record raises genuine issues of material fact as to Prime Charter's motives for terminating Batka. Accordingly, Prime Charter's motion for summary judgment is denied. Page 2


  Prime Charter, a securities firm headquartered in New York, hired Batka to work in its Compliance Department in November 1997.*fn2 Batka was responsible for, among other things, the out-of-state registration of the stock brokers in Prime Charter's New York and Florida offices. Batka claims that she began receiving quarterly raises shortly after commencing her employment. In April of 1999, Prime Charter hired James Gianni ("Gianni") as its new Director of Compliance. When Batka's immediate supervisor resigned in October 1999, Batka was promoted, granted another increase in salary, and began reporting directly to Gianni. In her new position, Batka assumed most of her former supervisor's responsibilities. According to Batka, she performed her duties satisfactorily, occasionally receiving praise for her good work, along with the periodic increases in salary.

  On or about December of 2000, Batka informed Gianni that Page 3 she was pregnant and that she would be taking maternity leave around the time of the birth of her child. Batka further informed Gianni that she intended to return to Prime Charter at the end of her maternity leave. According to Batka, once she notified Gianni that she was pregnant, Gianni became antagonistic toward her and critical of her work product. Batka claims that Gianni would have Batka's part-time assistant, Stephanie Napolitano ("Napolitano"), re-do the work Batka had already performed when there was no need to do so.

  On May 15, 2001, Batka informed Prime Charter's Vice President of Human Resources, Kathleen Coakley ("Coakley"), that due to medical necessity, her maternity leave would commence on that day. Batka further informed Coakley that she planned on returning to work on or about August 13, 2001, which gave Batka some time on leave under the FMLA. Coakley had previously provided Batka with a memorandum outlining her benefits under the FMLA and other conditions during her leave. Around the time of Batka's departure on maternity leave, Prime Charter hired Napolitano as a full-time employee and gave her most of Batka's responsibilities.

  While Batka was out on maternity leave, approximately two weeks prior to her anticipated return date, Prime Charter sent Batka a severance package. When Batka called Coakley to inquire why she was being terminated, Coakley responded that Page 4 her termination was a result of staff reductions brought on by the downturn in the economy. Coakley did not mention to Batka that work performance was a factor in the decision to terminate her employment.

  Batka's discrimination claims center on her termination during her FMLA leave. According to Batka, Prime Charter discriminated against her based on her gender and/or pregnancy in violation of Title VII; and violated her rights under the FMLA. To buttress her claim that she was a good performer and that her termination was induced by a discriminatory bias, Batka points to her promotion approximately two years after she was hired, to her periodic pay raises, and to the absence of any negative performance evaluations or complaints communicated to her.

  In support of its motion for summary judgment, Prime Charter counters that discrimination was not a factor in its decision to terminate Batka. Rather, Prime Charter asserts that Batka's termination was a result of staff reductions prompted by the economic downturn in the financial sector in 2000 and 2001. Prime Charter further argues that Batka was one of 23 employees terminated during this period of down-sizing and that she was selected due to her alleged poor performance in carrying out her responsibilities. Page 5

  In support of its allegation that Batka was a poor performer, Prime Charter submits various affidavits of its employees, including those of Gianni and Coakley, attesting that they received complaints regarding the timeliness of Batka's work and some instances when Batka was careless in carrying out her assignments. Prime Charter further asserts that Batka had a problem with absenteeism. During her employment with Prime Charter, Batka never received any written evaluation of her work or a performance review, as it was Prime Charter's policy not to issue such evaluations to its employees. Prime Charter explains that Batka's periodic raises were not performance-based, but rather, were part of firm-wide salary increases.

  To support: its claim that Batka's dismissal was part of a firm-wide effort to cut costs, Prime Charter submits articles and documents to demonstrate that the financial sector was beset with significant economic losses in the period of 2000-2001, which prompted wide-spread layoffs throughout the industry. As a further indicator of the times, Prime Charter also provides documentation that several of its high-level employees took reductions in salary during the same period. Prime Charter explains that despite the down-sizing, Napolitano was hired as a full-time employee during Batka's absence because Napolitano was a stellar performer and her Page 6 services were needed on a full-time basis to assume Batka's responsibilities in her absence.

  With regard to Batka's allegations as to how Gianni treated her, Gianni denies that he changed his attitude toward Batka once he was notified of her pregnancy. (See Affidavit of James Gianni In Support Of Defendant's Motion For Summary Judgment, dated Aug. 26, 2003 ("Gianni Aff."), at ¶ 4.) Gianni explained at his deposition that when Batka notified him that she would be taking maternity leave, he merely diverted his attention away from Batka and toward Napolitano because he knew that Napolitano would be assuming Batka's responsibilities in her absence. (See Transcript of Deposition, James A. Gianni, June 18, 2003 ("Gianni Dep."), at 97:4-12; 98:17-22.)

  In her complaint, Batka seeks monetary and injunctive relief based on alleged gender/pregnancy discrimination arising from her termination in August 2001 in violation of her rights under Title VII, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law ("NYSHRL"), New York Exec. Law § 296 et seq. (McKinney 1993 & 2001 Supp.); the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq.; and the FMLA, 29 U.S.C. § ...

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