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PALOMO v. TRUSTEES OF COLUMBIA UNIVERSITY

July 20, 2005.

YOLANDA PALOMO, MONISHA HARRELL, and DANIELLE POW, Plaintiffs,
v.
THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, ETHAN HANABURY, and JAKI SITTERLE, Defendants.



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

The defendants the Trustees of Columbia University ("Columbia"), Ethan Hanabury ("Hanabury") and Jaki Sitterle ("Sitterle") bring a motion for summary judgment in this employment discrimination action. For the following reasons, the motion is granted. BACKGROUND

  The following facts are undisputed or taken in the light most favorable to the plaintiffs, unless otherwise indicated. The plaintiffs Yolanda Palomo ("Palomo"), Monisha Harrell ("Harrell"), and Danielle Pow ("Pow") each worked in the Executive Education department at the Columbia Graduate School of Business ("Department"). The Department markets and administers non-degree programs to companies and executives throughout the world. Hanabury is the Associate Dean for the Department, which as of February 2002, had 32 non-faculty employees, two-thirds of which were women. As of that time, there were five non-faculty staff members who held Director level positions in the Department, including Palomo and Pow. There were two Executive Directors, each of whom was a woman, and one of whom was defendant Sitterle. Sitterle became an Executive Director at grade level 15 in June 1998, and had at least two Director level employees reporting to her since May 1999.

  While each of the plaintiffs is a woman and brings claims based on gender discrimination, the claims represent two entirely separate sets of issues. Palomo became pregnant in 2002 and contends that Hanabury required her to report to Sitterle instead of him when he learned of her pregnancy, and that she otherwise suffered discrimination due to her pregnancy. Harrell and Pow are lesbians and domestic partners and accuse Hanabury, who is a homosexual man, of sharing too much detail from his personal life with them. Their complaints range over incidents that occurred between 1998 and the dates they left Columbia in 2002 and 2003. The facts underlying Palomo's claims will be described first.

  A. Facts Underlying Palomo's Claims

  Palomo joined the Department in August 1990 as a program coordinator. When Hanabury was appointed Associate Dean in June 1997, Palomo was an Associate Director at grade 12. In June 2000, Palomo was promoted to Director of Sales and Administration for Open Enrollment at Hanabury's suggestion. She reported directly to Hanabury and supervised approximately a dozen employees.

  1. Impact of September 11, 2001

  After September 11, 2001, the demand for the Department's programs declined substantially and to the extent it survived shifted from open enrollment to custom programs, which were the responsibility of Sitterle's group. As a result, Hanabury decided in late 2001 to restructure the Department. Pursuant to this plan, in early 2002, Palomo became Director of Relationship Management and Partnerships with responsibility for alumni relationships, key accounts and relationship management. She continued to report directly to Hanabury, but lost most of her direct reports and supervised only one person. In his June 2002 year-end performance evaluation of Palomo, Hanabury stated that he found her "overall performance less consistent" after the reorganization. He marked as areas for development Palomo's "resistance" to looking at things in a new way; noted an "inconsistent" effort, and suggested that she take a business writing course. He suggested that she concentrate on "driving the overall strategy and creation of new partnerships, partly through your international visits." (Emphasis in original.) Palomo does not bring any claims based on this restructuring of her work or this performance review.

  In the Spring of 2002, Hanabury contemplated additional restructuring. The parties dispute his motives in doing so. Hanabury contends that additional changes were needed to maximize efficiency. Palomo believes Hanabury had learned that she had experienced a miscarriage and suspected that Palomo would again be trying to become pregnant. Palomo has testified that she told Sitterle during a business trip that she had suffered a miscarriage. Harrell has testified that in early 2002, Hanabury told her and Pow that he had learned from Sitterle that Palomo had disclosed to Sitterle during a business trip that she was pregnant. Both Pow and Harrell have testified that Hanabury asked them in early 2002 if they believed that Palomo was pregnant; neither of them were able to shed any light on the issue during that conversation.

  In any event, in the Spring of 2002, Hanabury decided that Palomo would report to Sitterle instead of to him. In May 2002, he met with the Dean of the Business School and presented a draft organization chart reflecting this change in the reporting structure. The Dean approved of the plan. The plan did not result in any change to Palomo's salary, title or grade.

  On August 13, Hanabury told Sitterle and Palomo that he wanted them to act as one department since the custom market was stronger. Hanabury stressed that they had some overlapping responsibilities regarding company visits. The next day, Hanabury met with the Associate Dean for Administration and Finance and showed him the organizational chart reflecting the fact that Palomo would be reporting to Sitterle.

  2. September 5: Palomo Told to Report to Sitterle

  On September 5, Hanabury told Palomo that he wanted her to assist with the custom work and report to Sitterle. He also told her that her direct report, Anthony Madonna, would be moving to the marketing team. Palomo contends that she objected strongly to reporting to Sitterle and threatened to resign if required to do so; she did not object to Hanabury moving Madonna. Hanabury told her that he would consider her request to continue to report to him. Palomo was told that she would retain all of her alumni management responsibilities. When Hanabury discussed this change separately with Sitterle, Sitterle reluctantly agreed to it.

  On September 9, Hanabury informed Palomo that she could continue to report to him while assisting Sitterle's team as needed. The parties dispute whether this was presented as a proposal for a trial basis.

  During a doctor's visit on August 26, Palomo had blood drawn to learn whether she was pregnant. During a September 11 doctor's visit, Palomo learned that she should not travel due to her high risk pregnancy. Palomo left a voicemail message for Hanabury that her doctor had restricted her from traveling and that she would like to meet with him to discuss this. She did not say that she was pregnant. She was scheduled to travel in October to Japan for the Department. In making arrangements to replace Palomo for this trip, Hanabury contends that he realized it was a mistake to not require Hanabury to report to Sitterle.

  3. September 12: Palomo Informs Hanabury of her Pregnancy

  On September 12, Hanabury met with Palomo and immediately informed her that she would be directly reporting to Sitterle; he did not want to be making decisions about who was going to be traveling for the Department. Palomo then informed Hanabury for the first time that she was pregnant with a high risk pregnancy. Hanabury congratulated her on the pregnancy.

  On September 13, Palomo came to work for what was to be her last day before a scheduled vacation. She met with Hanabury and Sitterle, and has testified that she felt that they were putting a lot of pressure on her. She could not identify at her deposition what caused the feeling of pressure, except that she was asked to find an interpreter to translate a document before leaving on vacation.

  On September 18, Palomo told Hanabury that she had been placed on disability leave by her doctor until October 17. Hanabury wished her the best and informed her that should she have any additional restrictions upon her work when she returned, she should submit them in writing by October 11. Palomo did not make any such submission. After an extension of her leave, Palomo returned to work on October 28. She was again out of the office from October 30 to November 4.

  During a meeting on November 8 with Sitterle and Palomo, Hanabury expressed concerns about Palomo's level of effort. While a large part of Palomo's job had involved travel, she was restricted from travel by her doctor when she returned from her disability leave. As a result, Hanabury explained that she would have to be flexible about her job responsibilities. When Palomo requested a written job description, Hanabury suggested that Palomo prepare the initial draft. Palomo did not mention any additional restrictions on her ability to work during the meeting. Palomo contends that she felt under attack at the meeting, although she does not remember anything derogatory being said, other than the complaint about her level of effort. Palomo also asserts that she felt she was being put under a lot of stress at the meeting regarding specific projects, but could not identify any of the projects during her deposition.

  After the meeting, Sitterle sent Palomo several e-mails regarding projects. One requested that Palomo contact a faculty member to find out when that person would have certain material ready for a project for which they had just received the approval from a client. While Palomo admits that it is not unusual to have a short turnaround time for projects, Palomo felt that Sitterle created an unnecessary sense of urgency.*fn1

  On November 11, Sitterle forwarded Palomo an e-mail from the Director of Program Management asking Palomo to respond. The e-mail requested a preliminary budget by 3:00 p.m. that day for a project assigned to Palomo. Palomo asked for and received more time to complete the budget.

  On November 12, Sitterle sent Palomo an e-mail asking her whether she had sent certain information to a client. Palomo did not know whether it was the general practice in Sitterle's group to send such material to custom clients.

  During November, Sitterle's team was very busy, and Palomo tried to leave the office each day at approximately 6:00 p.m., walking to an exit that did not require her to walk past Sitterle's office. Before her pregnancy, Palomo's work often required her to work a 14 hour day.

  4. November 14: Hanabury Criticizes Palomo's Performance

  On November 14, Hanabury met again with Sitterle and Palomo. Hanabury and Sitterle expressed disappointment in Palomo's performance, indicating that she was expected to work as hard or harder than other members of Sitterle's team given her grade level and title. Hanabury and Sitterle suggested that one way for Palomo to integrate herself into Sitterle's team was to ask other members of the team if there was anything she could do to help before leaving for the day. Palomo indicated that she was doing her best and could not work more hours. Hanabury pointed out that if Palomo was having difficulty with her work load due to her health, then paid disability leave was available to her.

  They also discussed Palomo's draft job description. Palomo had listed as one of her proposed responsibilities the managing of key accounts, some of which are located outside the New York metropolitan area. Sitterle pointed out that managing key accounts could not be a large portion of her job responsibilities so long as she was restricted from travel. Palomo did not disagree with that assessment at the meeting.*fn2 Sitterle also pointed out that although Palomo listed having responsibility for the alumni of the Columbia Senior Executive Program ("CSEP"), those responsibilities included travel as well and that Palomo had not met the Fall CSEP class because she was on disability leave and would be on maternity leave when it was time to meet the Spring class. Shortly after the meeting, Palomo sent Sitterle an e-mail stating, "I'm feeling very sick, so I'm going to go home early." 5. November 15: Palomo Learns of her Miscarriage

  On November 15, during a visit to her doctor, Palomo learned she had had a miscarriage. Between September 12 and November 15, Palomo was in the office for thirteen days.

  6. November 29: Palomo Complains of Discrimination

  On November 29, Palomo's attorney wrote a letter to the Dean of the Graduate School of Business, with a copy to Hanabury, alleging that Hanabury and Sitterle had discriminated against Palomo based on her pregnancy, that this misstreatment had caused her miscarriage,*fn3 and that she could not continue to work for Hanabury and Sitterle. On December 24, Palomo filed a charge of pregnancy discrimination with the Equal Employment Opportunity Commission ("EEOC").*fn4 Palomo amended this charge on January 20, 2003 to include allegations of retaliation.

  7. December: Palomo Returns to Work and Takes Vacation

  Palomo returned to work on December 2. On December 10, she requested and was granted vacation from December 20 to January 2, 2003. Before leaving on this vacation, Palomo sent holiday cards to about 800 alumni. The list of clients who would receive holiday cards was not ready before Palomo left on vacation, and in Palomo's absence, Sitterle signed them and sent them out without Palomo's signature. Palomo contends in her affidavit that holiday cards had been sent out late in prior years when they were not ready by the holidays, and that previously she and Sitterle had both signed cards sent to clients that they had jointly visited.

  8. January 2003: Palomo Returns to Work

  On January 16, 2003, Palomo asked to take vacation in February. Susan Glancy, a Human Resources Department employee, drafted Sitterle's response, denying the request and explaining that Sitterle needed Palomo in the office with her in February.*fn5

  Palomo and Sitterle had been scheduled to go on a business trip to Brazil in the Fall of 2002. The trip had been rescheduled to January 2003. When it was learned that Palomo could not travel, Sitterle asked Michael Lendener to take Palomo's place on the trip. After Palomo's miscarriage, she did not request that she be permitted to go on this trip to Brazil and did not object to Lendener going on the trip. On January 7 and 8, however, Palomo and Sitterle exchanged e-mails regarding the trip. It began with Palomo asking Sitterle how she should respond to an inquiry she had just received as to why she wasn't traveling to Brazil on that trip. Sitterle suggested that Palomo tell "the truth, that you had a medical condition that prevented you from traveling." Palomo responded that since she no longer had the medical condition, she would just say that there are "business issues keeping me in the office this month." Palomo then pointed out that on December 11, when a planning meeting was held to choose whom to visit in Brazil, she was no longer pregnant. Sitterle completed the exchange by explaining that Lendener had been asked to go in Palomo's stead before December 11 because the Department was accommodating Palomo's request not to travel.

  On January 17, Sitterle sent Palomo a document entitled "position expectations," and asked for Palomo's "input." That same day, Palomo responded in writing asking whether the document was her new job description. She complained that the document contained "most" of her old job responsibilities "in addition to some other full time responsibilities." Besides complaining about the amount of work required, Palomo also objected that one specific task was administrative work at a grade 10 level. She also observed that it appeared as if she had been stripped of her alumni management responsibilities and would be required instead simply to assist others. She ended with a request for clarification before meeting to discuss the "new" expectations.

  On January 20, Palomo amended her EEOC charge to add allegations of retaliation based on the Department sending holiday cards without her signature, denying her request for a vacation in February, denying her the opportunity to travel to Brazil on business, and giving her administrative responsibilities usually performed by employees working at lower grades.

  On January 23, Hanabury met with Palomo to review her job expectations. Hanabury told Palomo that he wanted to put the EEOC charge aside and focus on moving ahead. He assured her that he wanted her to stay in the Department. Hanabury told Palomo that she would continue to work with Sitterle's team, but report directly to him. They discussed the job description document that described Palomo as responsible for developing and maintaining alumni relationships.

  In January, Palomo saw Sitterle's group meeting without her in a conference room. Palomo does not know the purpose or subject of the meeting, and cannot say whether it related to a project that did not involve her.

  In April 2003, Hanabury gave Palomo her year-end performance review. Hanabury gave Palomo a positive review. He told Palomo that instead of working with Sitterle's team, she would work with the Marketing and Open ...


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