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CHISARI v. LEEDS

July 16, 2004.

DEIRDRE KAMBER CHISARI, Plaintiff,
v.
LEEDS, MORELLI & BROWN, P.C., et al., Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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

  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 anti-discrimination policies.

  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 months.

  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 bonus payments.

  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 decline further.

  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 ...


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