United States District Court, S.D. New York
July 16, 2004.
DEIRDRE KAMBER CHISARI, Plaintiff,
LEEDS, MORELLI & BROWN, P.C., et al., Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants Leeds, Morelli & Brown, P.C. ("LM&B" or "the Firm"),
Lenard Leeds ("Leeds"), Steven Morelli ("Morelli"), and Jeffrey
K. Brown ("Brown") (collectively, "Defendants") have moved to
dismiss the amended complaint of plaintiff Deirdre Kamber Chisari
("Chisari") and for summary judgment, pursuant to Fed.R.Civ.P.
12(b)(6) and 56(c), or, in the alternative, for a change of
venue. For the reasons set forth below, Defendants' motion to
dismiss and for summary judgment is granted and their motion to
change venue is denied as moot.
Chisari commenced this action against Defendants on November 6,
2002, alleging that Defendants terminated her employment upon
learning that she was pregnant and bringing claims pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e),
et seq. ("Title VII") and the New York State Human Rights Law
("NYSHRL"). She filed an amended complaint on February 19, 2003.
On January 22, 2004, this Court granted the request of Chisari's
attorney to be relieved as counsel and granted Defendants' motion
to disqualify Chisari's proposed subsequent attorney of record. The instant motion was filed on August 8, 2003. Following
various adjournments, by order entered on March 26, 2004, the
return date for Defendants' motion was set for April 28, 2004 and
Defendants were directed to file and serve on Chisari a notice
pursuant to Local Civil Rule 56.2 of the Local Rules of the
United States District Courts for the Southern and Eastern
Districts of New York. Chisari submitted no papers in opposition
to Defendants' motion and the motion was deemed fully submitted
on April 28, 2004.*fn1
The facts are set forth based upon Defendants' Local
Rule 56.1 statement and supporting declarations. In the absence of any
opposition by Chisari to Defendants' motion, these facts are
deemed admitted by Chisari and are taken as true for the purposes
of this motion. See Vermont Teddy Bear Co. v. 1-800 BEARGRAM
Co., ___ F.3d ___, No. 03 Civ. 7030, 2004 WL 1472675, at *5 (2d
Cir. July 1, 2004); LeSane v. Hall's Sec. Analyst, Inc.,
239 F.3d 206, 211 (2d Cir. 2001).*fn2 LM&B is a law firm that primarily represents plaintiffs in
employment litigation. The majority of the Firm's clients pursue
claims of discrimination on the basis of race, national origin,
gender, disability, age, pregnancy and other protected classes.
In light of the work LM&B performs, Defendants are sensitive to
discrimination issues and go out of their way to ensure there is
no discrimination in the workplace. Indeed, the Firm's attorneys
are aware of the laws prohibiting discrimination and Defendants
have discussed these issues with all staff members. The Firm has
an equal employment opportunities policy, which was provided to
all employees, including Chisari. Defendants have held meetings
with all employees, including Chisari, to discuss the Firm's
Chisari commenced employment with the Firm on or about
September 1998. She was hired by the Firm right out of law school
and was admitted to practice law in New York State in December
2000. During the course of Chisari's employ at LM&B, the vast
majority of her work and her primary job responsibility was to
handle the Firm's representation of a group of approximately 175
Insurance Agents in a confidential alternative dispute resolution
process (the "ADR process" or the "ADR project") against one
company. In March of 2000, while working on the ADR project, Chisari
threatened to leave the Firm. Because Chisari had intimate
knowledge of the claims in the ADR process and because of her
working relationship with the clients, Defendants believed that
it was important to retain her as an employee. Accordingly,
Defendants met her demand to increase her salary from $40,000
annually to $70,000, constituting a 75% raise. The parties
entered into an employment contract to reflect the raise and
other terms of the parties' agreement.
In addition to the salary increase, the Firm also agreed to
allow Chisari to hire an attorney and/or interns to assist her,
to receive a new computer, to obtain an additional five days of
annual personal leave, and to receive a guaranteed $15,000 raise
as of January 1, 2001. In January of 2001, Chisari was granted
the $15,000 raise she had been promised and her salary was raised
to $85,000, which was the second highest salary of any employee
at the Firm. The primary reason the Firm gave Chisari such a
large increase in compensation was to maintain her as an employee
so that she would continue working on the ADR process.
Chisari was granted the second highest salary despite the fact
that there were other attorneys who were earning less but had
similar and/or more experience as a lawyer than Chisari. In
January of 2001, at the time Chisari was given a raise to
$85,000, she had only been out of law school for two and a half
years and she was only admitted to practice in New York for less than two
The employment agreement between Chisari and the Firm was
specifically designated an "at will" employment contract. Under
the employment agreement, Chisari was to receive only salary.
There was no provision in the contract for Chisari to receive any
By January of 2002, the majority of the insurance agent claims
were resolved in the ADR process on which Chisari was working.
From January to March 2002, most of the substantive work on the
ADR process had been performed and Chisari's responsibilities
with respect to the ADR process were primarily administrative in
nature. At or about the same time, in early 2002, another major
project at the Firm was nearing completion. The amount of work
that the Firm had was drastically reduced and was expected to
In early 2002, Defendants decided that the Firm had to cut its
payroll expenses. At the time, LM&B employed 18 support staff
members and 13 lawyers, not including the Firm's partners.
Defendants decided to eliminate some positions and/or reduce
salaries while allowing people to earn bonuses when the Firm
earned money on the matters they handled. This decision was
based, in part, upon the reduced workload and upon the fact that the
Firm primarily represents plaintiffs in contingency fee matters.
In or about March or April of 2002, the Firm informed a number of
employees that their salaries would be reduced, but that they
would be given the opportunity to earn bonuses.
In late March 2002, the gross annual salary of one female
attorney at the Firm was reduced from $95,000 to $60,000. The
weekly change in that attorney's net pay (excluding taxes) was a
reduction from $1,378 to $789. At the time of her salary
reduction, the female attorney was promised the opportunity to
earn additional monies in the form of bonuses. The female
attorney was not pregnant at the time of her salary reduction,
nor has she been at any time that she worked with the Firm. She
had five years of experience at the time of the salary reduction.
In or about early April 2002, the gross annual salary of a male
attorney was reduced from $60,000 to $52,000. The weekly change
in that attorney's net pay (excluding taxes) was a reduction from
$882 to $682. At the time of his salary reduction, the male
attorney was promised the opportunity to earn additional monies
in the form of bonuses. The male attorney had three years of
experience at the time of the salary reduction.
In or about early April 2002, the gross annual salary of
another male attorney was reduced from $80,000 to $50,000. The weekly change in that attorney's net pay (excluding taxes) was a
reduction from $1,116 to $754. Prior to his salary reduction, the
male attorney was also guaranteed a $20,000 annual bonus. Upon
his salary reduction, the guarantee was removed. Including the
guaranteed bonus, his annual salary prior to the reduction was
$100,000, which was reduced to $50,000. At the time of his salary
reduction, the male attorney was promised the opportunity to earn
additional monies in the form of bonuses and Defendants agreed to
allow him to call himself a partner. The male attorney had twelve
years of experience at the time of the salary reduction.
A third male attorney approached Brown in or about March or
April 2002 to remind Brown that when the attorney had commenced
employment at the Firm in approximately April 2001, he had been
promised a raise after one year of employment. As a result of
Defendants' decision to reduce payroll, the male attorney was
informed that the Firm could not give him the raise. The male
attorney subsequently left the Firm in August 2002. The male
attorney was earning an annual salary of $50,000 at the time and
had over 15 years of experience.
A male member of the support staff was laid off on or about
February 4, 2002. On or about that same date, a non-pregnant
female member of the support staff was also laid off. On or about March 14, 2002, a non-pregnant female paralegal who
had worked on the same ADR process with Chisari was laid off. The
female paralegal had worked primarily under Chisari's supervision
and was laid off because of the fact that the Firm wanted to cut
expenses and because the vast majority of the work that need to
be done on the ADR process was complete.
On or about March 22, 2002, a non-pregnant female member of the
support staff was laid off, and on April 12, 2002, a nonpregnant
female lawyer with over six years of experience was laid off. On
or about May 24, 2002, a non-pregnant female paralegal/secretary
wad laid off. None of the individuals who were laid off were
terminated for cause.
On March 6, 2002, Brown approached Chisari to inform her that
her compensation package would have to be restructured. As Brown
initiated discussion with Chisari, she informed him that she was
pregnant. He congratulated her but told her that the Firm was
experiencing financial difficulties and that it would be unable
to continue to pay her salary in a large base and wanted to
discuss restructuring her compensation package.
Although Chisari was informed of the possibility that her
compensation package would be restructured on March 6, 2002, when
she informed Brown of her pregnancy, the decision to reduce
salaries had been made prior to that date. Brown is only one of three equity parties and would not have unilaterally made the
decision to restructure Chisari's salary. Given the fact that
Chisari was earning the second highest salary at the Firm, it was
discussed and agreed upon by all partners that her salary would
be one of the salaries to be eliminated or reduced.
The decision to reduce Chisari's salary was made based on the
fact that payroll needed to be cut and that Chisari's salary was
raised twice in order to entice her to stay at the Firm and work
on the ADR project, a project that was, at the time, nearly
The female attorney and male attorney with salaries that were
comparable to Chisari's also had their salaries reduced.
In March 2002, rather than eliminate Chisari's position, the
Firm made Chisari an offer to remain with LM&B at a reduced
salary of $45,000. The Firm also offered her the opportunity to
get paid bonuses and the possibility of becoming a partner.
In a memorandum of March 21, 2002 addressed to "Jeff," Chisari
wrote: ". . . I appreciate that you tried to improve the
opportunity by offering me a possible bonus arrangement and the
remote possibility of partnership. And even after I told you last
Wednesday that I would not accept the reduced position, you
brought me into your office last Friday to convince me again to
stay under the proposed conditions." (Affirmation of Jeffery K. Brown, dated
Aug. 8, 2003, Exh. H, at 1.)
In the same memorandum, Chisari wrote: "You have continuously
told me that the firm's decision `isn't personal' and it doesn't
reflect on me as an individual, my professional worth or the
quality of my work. You advised me on several occasions that
`this is an economic decision; you aren't the only one, you just
happen to be the first. This will happen to others as well.' I
believe you; everything that has happened here has supported your
statement. Consistently, for three and a half years, the firm has
told me how outstanding my work is and how professional I
am. . . . You must understand that your statement that this is
just an economic decision does not assuage my frustration with
this inequitable decision." (Id. at 3.)
Subsequent to the March 21, 2002 memorandum, the Firm increased
its offer to Chisari to $60,000 in salary for her to stay.
Chisari refused and quit her employment. Her last official day at
the Firm was April 12, 2002, but she chose not to come to work
during the last two weeks of her employment.
Between January 2002 and August 2003, the Firm hired two
additional attorneys. A male attorney was hired on August 12,
2002 at a salary of $45,000, and a female non-admitted law school
graduate was hired in September 2002 at a salary of $35,000. Neither of the two attorneys was hired to replace Chisari. They
were hired after the Firm was informed that two other attorneys,
both experienced lawyers, had decided to quit their employment,
giving notice in August 2002.
A. The Summary Judgment Standard
If, as here, on a motion to dismiss made pursuant to
Rule 12(b)(6) "matters outside the pleading are presented to and not
excluded by the court, the motion shall be . . . disposed of as
provided for in Rule 56." Fed.R.Civ.P. 12(b).
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc.
v. Herrick Co., Inc., 350 F.3d 329, 338 (2d Cir. 2004); see
generally 11 James Wm. Moore, et al., Moore's Federal
Practice ¶ 56.11 (3d ed. 1997 & Supp. 2004). The court will not
try issues of fact on a motion for summary judgment, but, rather,
will determine "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). "The party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish her right to judgment as a
matter of law." Rodriguez v. City of New York, 72 F.3d 1051,
1060-61 (2d Cir. 1995). In determining whether a genuine issue of
material fact exists, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d
Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon
reviewing the evidence in the light most favorable to the
nonmovant, the court determines that there is no genuine issue of
material fact and that the movant is entitled to judgment as a
matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.
A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v.
Shane, 112 F.3d 54, 57 (2d Cir. 1997).
It is the law of this Circuit that "even when a nonmoving party
chooses the perilous path of failing to submit a response to a
summary judgment motion, the district court may not grant the
motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no
material issue of fact remains for trial" and that summary
judgment is appropriate as a matter of law. Amaker v. Foley,
274 F.3d 677, 681 (2d Cir. 2001); see also Vermont Teddy
Bear, ___ F.3d ___, 2004 WL 1472675, at *2; Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 74 n. 1 (2d Cir. 2001);
Booker v. Fed. Reserve Bank of New York, Nos. 01 Civ. 2290 (DC)
& 01 Civ. 2291 (DC), 2003 WL 1213148, at *12 (S.D.N.Y. Mar. 17,
2003); Mattel, Inc. v. Pitt, 229 F. Supp.2d 315, 320 (S.D.N.Y.
2002). Thus, "[w]here, as here, a nonmoving pro se party has
failed to submit papers in opposition to a motion for summary
judgment, summary judgment may be granted as long as the Court is
satisfied that the undisputed facts `show that the moving party
is entitled to a judgment as a matter of law,' and plaintiff has
received notice that failure to submit evidence in opposition may
result in dismissal of his case." Blackett v. Pathmark Stores,
Inc., No. 01 Civ. 6913 (DLC), 2002 WL 31385817, at *2 (S.D.N.Y.
Oct. 21, 2002) (quoting Champion v. Artuz, 76 F.3d 483, 486 (2d
B. Title VII and NYSHRL Standard
Claims of discrimination under Title VII are analyzed under the
three-part test announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). First, in order to establish a prima
facie case of discrimination, a plaintiff must show (1) that he
or she is a member of a protected class, (2) that he or she was qualified for the position in question, (3) that he or she
suffered an adverse employment action, and (4) that the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Collins v. New York
City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Weinstock
v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). As the Second
Circuit Court of Appeals has recently observed,
An "adverse employment action" is one which is "`more
disruptive than a mere inconvenience or an alteration
of job responsibilities.'" Galabya v. New York City
Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)
(quoting Crady v. Liberty Nat'l Bank & Trust Co. of
Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Examples
of materially adverse employment actions include
"`termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly
diminished material responsibilities, or other
indices . . . unique to a particular situation.'"
Id. (quoting Crady, 993 F.2d at 136).
Feingold v. New York, 366 F.3d 138
, 152 (2d Cir. 2004).
Where a plaintiff makes out a prima facie case, the
defendant may then rebut the plaintiff's showing by articulating
a legitimate, non-discriminatory reason for the employment action
in question. See Burdine, 450 U.S. at 254; Weinstock, 224
F.3d at 42. Upon defendant's articulation of such a reason, the
presumption of discrimination arising with the establishment of
the prima facie case "drops from the picture," and for the
case to continue, the plaintiff must present evidence that the proffered reason is "a
mere pretext for actual discrimination." Weinstock, 224 F.3d at
42; see also Feingold, 366 F.3d at 152 ("If the defendant
has stated a neutral reason for the adverse action, `to defeat
summary judgment . . . the plaintiff's admissible evidence must
show circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant's employment decision
was more likely than not based in whole or in part on
discrimination.'") (quoting Stern v. Trustees of Columbia
Univ., 131 F.3d 305, 312 (2d Cir. 1997)).
"[S]ince claims under the NYSHRL are analyzed identically to
claims under the ADEA and Title VII, the outcome of an employment
discrimination claim made pursuant to the NYSHRL is the same as
it is under the ADEA and Title VII" and need not be addressed
separately. Smith v. Xerox Corp., 196 F.3d 358, 363 n. 1 (2d
Cir. 1999) (citing Leopold v. Baccarat, Inc., 174 F.3d 261, 264
n. 1 (2d Cir. 1999)); see also Mack v. Otis Elevator Co.,
326 F.3d 116, 122 n. 2 (2d Cir. 2003) ("`Our consideration of
claims brought under the state and city human rights laws
parallels the analysis used in Title VII claims.'") (quoting
Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir.
Discussion Defendants concede, for the purposes of this motion, that
Chisari was in a protected class and that she has been subjected
to an adverse employment decision,*fn3 and they do not
contest her qualification. They claim, however, that Chisari
cannot demonstrate an inference of discrimination such as would
satisfy her initial burden of establishing a prima facie
Construing the facts set forth above in Chisari's favor, the
record nonetheless does not support an inference of
discrimination concerning the circumstances surrounding Chisari's
departure from the Firm. There is ample evidence on the record
that the decision to restructure Chisari's compensation was
motivated by financial constraints impacting the Firm as a whole,
and that these financial constraints affected a number of
employees, many of whom were subjected to similar restructuring
of their compensation packages. Moreover, the record demonstrates
that Defendants had begun to take steps regarding employee
compensation and retention prior to Brown being informed of
Chisari's pregnancy, and that the overall reduction in payroll
affected Chisari and her similarly situated, non-pregnant
colleagues comparably. These circumstances do not support an
inference of discrimination; accordingly, Chisari has not
established a prima facie case of discrimination. Even if Chisari had satisfied her initial burden of
establishing a prima facie case of discrimination, Defendants
have articulated non-discriminatory reasons for their decision to
restructure her compensation as set forth above, and there is
nothing on the record to suggest that Chisari could raise a
triable issue of pretext here.
For the reasons set forth, Defendants' motion to dismiss and
for summary judgment is granted and their motion to change venue
is denied as moot.
This action is closed.
It is so ordered.