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Brollosy v. Margolin

March 20, 2006


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


Plaintiff Ellen Brollosy ("Plaintiff") brings the present action against defendant Margolin, Winer & Evens LLP ("Defendant") for violations of the Age Discrimination in Employment Act (the "ADEA") and the New York State Human Rights Law ("NYSHRL"), claiming that she was discriminated against on the basis of her age. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, Defendant's motion is granted and this case is dismissed in its entirety.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted. In September 2001, Plaintiff was hired by Defendant, an accounting firm, to work as a Human Resources Manager (the "Staffing Position"). At the time she was hired, Plaintiff was 54 years old. Plaintiff was interviewed by Teddy Selinger ("Selinger"), Defendant's managing partner, as well as several other partners. Selinger conveyed to Plaintiff the firm's decision to hire her and signed Plaintiff's offer letter. The offer letter is dated September 17, 2001 and provides that "[m]erit increases based on performance would be made on your anniversary date." (Pl.'s Dep., dated Oct. 11, 2004 ("Pl."s Dep."), Ex. G.) Defendant contends that Selinger alone made the decision to hire Plaintiff; Plaintiff claims it was a group decision by the executive committee. At the time of Plaintiff's hire, Selinger was 49 years old. Plaintiff's annual salary was $85,000, plus a starting bonus of $2,000.

Stan Stempler ("Stempler") was the Administrative Partner and the Director of Human Resources when Plaintiff was hired and was her immediate supervisor until he left the firm in July 2002. Ann Flanagan ("Flanagan") was hired as Human Resources Director in July 2002 and replaced Stempler as Plaintiff's immediate supervisor. Flanagan was 40 years old when she was hired.

From September 2001 through November 2002, Plaintiff was primarily responsible for coordinating the teams on projects for accountants at the firm and providing for the appropriate level of staffing on those projects. Prior to joining Defendant, Plaintiff did not have any significant experience in this area and had to be trained by Stempler. Selinger mistakenly thought that Plaintiff had experience staffing attorneys on legal projects at her prior job; Plaintiff denies ever making any such representations. Stempler spent a substantial amount of time with Plaintiff teaching her how to perform her staffing and scheduling functions. He also spent a great deal of time introducing her to the partners and other accountants at the firm and discussed whom their clients were.

Defendant claims that through the spring of 2002, Selinger had received substantial feedback from other partners, managers, and some staff indicating that they were dissatisfied with Plaintiff's performance. Although Selinger contends that he verbally conveyed this dissatisfaction to Plaintiff, Plaintiff denies ever receiving any complaints about her performance.

Stempler was terminated in July 2002. Defendant maintains that despite Plaintiff's poor performance, the partners did not also discharge Plaintiff because they did not want the human resources department to be understaffed. Selinger claims he also wanted to give Plaintiff the opportunity to work with someone other than Stempler and to improve her performance. Flanagan was hired in July 2002 to oversee the human resources department and became Plaintiff's direct supervisor.

Plaintiff and Flanagan had a cordial and amicable professional relationship. Nonetheless, after a few months, Flanagan agreed that Plaintiff could not satisfactorily perform her job duties. Again, Plaintiff claims that Flanagan never conveyed any of her alleged dissatisfaction to Plaintiff.

Plaintiff did not receive a salary increase or a performance review on her anniversary date in the Fall of 2002. Defendant contends that Plaintiff did not receive a salary increase because of her poor performance. Defendant further alleges that Plaintiff's performance could not be evaluated because Flanagan had only been working with Plaintiff for a few months.

Plaintiff again denies ever being informed of her alleged poor performance.

Selinger claims that at this point, he wanted to terminate Plaintiff but instead agreed with Flanagan to transfer Plaintiff to a newly created position called Manager of Administrative Services (the "Administrative Position"). Flanagan believed that based on Plaintiff's experience, this would be a more suitable role for her. The transfer was effective November 2002 and Plaintiff's compensation remained unchanged. Plaintiff was pleased and excited about the reassignment and agreed that this new position was more in line with her background. Her new duties included: (1) managing administrative personnel; (2) recruiting; (3) various human resources projects, as directed by Flanagan; (4) managing employee relations; (5) assisting with the Mentor Program process; and (6) maintaining audit staff seating, according to length of service and public experience.

Robin Molensky ("Molensky") was hired to assume the Staffing Position. Molensky was 30 years old when she was hired and her starting salary was in the low $50,000 range. Flanagan included Plaintiff in the recruiting process and Plaintiff interviewed Molensky herself. Plaintiff admittedly was impressed with Molensky's credentials and recognized that Molensky had a number of years of experience performing staffing functions.

According to Defendant, Plaintiff continued to perform poorly in the Administrative Position. Examples cited by Defendant are sending out memoranda to the entire firm with inaccurate information; misinforming a part-time employee who was being terminated that she was eligible for unemployment insurance when in fact, she was not; misinforming new hires of their vacation entitlements; excessive cell phone use in the office during working hours; failing to return phone calls; not dressing in a professional manner; and having to ask questions for which she should have known the answer. (Def.'s Rule 56.1 Stmt. ¶¶ 85-93.)

Flanagan prepared a performance evaluation for Plaintiff in March or April of 2003. Plaintiff received an overall evaluation of "Does Not Meet Expectations" in the following performance areas: (1) Technical/Functional performance; (2) Management Skills; (3) Understanding the Business; (4) Client Service; and (5) Communication. (Pl.'s Dep. Ex. O.) Plaintiff received a grade of "Meets Expectations" in a limited number of areas.

In or about June 2003, Selinger, who was 50 years old at the time, made the decision to fire Plaintiff. Flanagan informed Plaintiff of Selinger's decision. It is undisputed that Flanagan did not have the authority to terminate Plaintiff without approval from Selinger. Plaintiff was offered three weeks severance pay. Her last official day was June 6, 2003.

After Plaintiff's termination, Flanagan, Helen Mangones ("Mangones"), a benefits administrator at the firm, and Pat Messa ("Messa"), the office manager, all assumed some of Plaintiff's job duties. Mangones is three years younger than Plaintiff; there is no information in the record as to Messa's age.


I. Applicable Law and Legal Standards

A. Summary Judgment

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and ...

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