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Collins v. Cohen Pontani Lieberman & Pavane

July 31, 2008

CATRIONA COLLINS, PLAINTIFF,
v.
COHEN PONTANI LIEBERMAN & PAVANE, DEFENDANT.



The opinion of the court was delivered by: Wood, U.S.D.J.

Opinion and Order

Plaintiff Catriona Collins ("Plaintiff") brings this action against Defendant Cohen Pontani Lieberman & Pavane ("CPLP" or "Defendant"), alleging (1) employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Administrative Code; and (2) breach of contract. Specifically, Plaintiff alleges that CPLP unlawfully discriminated against her on the basis of sex by (1) denying her promotions; (2) denying her salary and billing rate increases; (3) failing to assign her adequate work; and (4) terminating her employment.*fn1 Plaintiff also alleges that CPLP terminated her employment in retaliation for her complaints about sex discrimination. Finally, Plaintiff alleges that CPLP breached its contract with her, by failing to pay her a 20 percent commission on matters she originated or introduced to CPLP.

Defendant moves for partial summary judgment with respect to Plaintiff's employment discrimination and retaliation claims.*fn2

Defendant argues that: (1) several of Plaintiff's claims are time-barred; (2) Plaintiff fails to establish a prima facie case of discrimination or retaliation with respect to any of her claims; and (3) Plaintiff does not provide any evidence that CPLP's proffered explanations for its actions are a pretext for unlawful discrimination or retaliation.

For the reasons stated below, Defendant's motion for partial summary judgment is GRANTED IN PART and DENIED IN PART.

I. Factual Background

Unless otherwise noted, the following facts are undisputed and are derived from the parties' Local Civil Rule 56.1 statements, affidavits, and other submissions.*fn3

A. The Parties

CPLP is a law firm located in New York City, specializing in intellectual property law ("IP"). CPLP's practice areas include patent, trademark, and copyright litigation; prosecution of patent applications; copyright registration; and related opinion work.*fn4 (See Def. 56.1 ¶ 1.)

Plaintiff is a female intellectual property litigator, who joined CPLP in June or July 1997 as a litigation associate.*fn5

(See Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) Prior to joining CPLP, Plaintiff worked for nine years at another law firm specializing in patents and trademarks. (See Def. 56.1 ¶ 5.) On September 18, 2003, CPLP terminated Plaintiff's employment. (See Def. 56.1 ¶ 13.)

On April 21, 2004, Plaintiff filed a sex discrimination and retaliation charge with the Equal Employment Opportunity Commission ("EEOC") against CPLP. On August 13, 2004, the EEOC issued Plaintiff a Notice of Right to Sue. Plaintiff filed a complaint in this Court on November 12, 2004. (See Def. 56.1 ¶¶ 17-18.)

B. Salary, Billing Rate, and Promotion Decisions

Plaintiff alleges that CPLP's billing and salary cycle is October-September. (See Pl. Ex. CC; Pl. Decl. ¶¶ 40, 67.) CPLP provides annual employee performance reviews in October, at the start of this cycle. As described by Plaintiff, during these reviews, the CPLP partners inform employees about salary increases for the upcoming October-September cycle, as well as about promotion decisions.*fn6 (See, e.g., Pl. Decl. ¶¶ 28, 38, 67-68, 136.)

Plaintiff alleges that she received positive performance evaluations and significant salary increases during 1997 and 1998, her first two years at CPLP. (See Pl. Ctr. 56.1 ¶ 2.)*fn7

She alleges that her first negative interaction with a CPLP partner occurred in or around July 1999, when a partner, Mr. Pavane ("Pavane"), informed her that he "could not talk to her" and was uncomfortable with her.*fn8 (Id.) This incident occurred at about the time Plaintiff began to originate business for CPLP. (Id.)

At her next annual review in October 1999, CPLP again awarded Plaintiff a raise, but did not raise Plaintiff's billing rate for clients. (See Pl. Decl. ¶ 28; Pl. Ex. CC.) CPLP's then-managing partner, Mr. Cohen ("Cohen"), also informed Plaintiff that she would never become a partner in the firm because she made the partners "uncomfortable," and because the partners prided themselves on being "collegial" and like a "family." (Id.)

At Plaintiff's October 2000 review, CPLP denied Plaintiff both a salary increase and an increase in her billing rate for clients. CPLP also did not promote her to partner. (See Pl. Ex. CC.)

At Plaintiff's October 2001 review, CPLP again denied Plaintiff a salary increase and a promotion to partner. (See Pl. Ex. CC.) However, CPLP raised Plaintiff's billing rate immediately following the review. (See Pl. Decl. ¶50.) During her review, Plaintiff complained to the partners that she believed she was being discriminated against on the basis of sex. (See Pl. Ctr. 56.1 ¶ 8.) In his deposition, Pavane stated that he investigated this complaint by "looking in my soul and saying am I discriminating against this woman? No. And I checked with my other partners and no one felt that anybody in the firm had discriminated against her." (See Pavane Dep. 236.) This "investigation" did not comply with CPLP's discrimination policy as described by Pavane in his deposition.*fn9

At Plaintiff's October 2002 performance review, CPLP gave Plaintiff a $10,000 raise and an increase to her billing rate, and Plaintiff alleges that she also received a positive evaluation of her work. (See Pl. Decl. ¶ 68; Pl. Ex. CC.) During her review, Plaintiff asked Thomas Pontani ("Pontani"), one of CPLP's named partners, what, if any, objections he had to promoting her to a non-equity partner. Pavane interrupted, instructed Pontani not to respond, and terminated the review. Plaintiff alleges that Pavane later reprimanded her for raising the topic of promotion at her review, and stated that the partners thought she was "difficult" and that she had not expressed enough gratitude for her raise. (See Pl. Decl. ¶¶ 69-70.)

CPLP terminated Plaintiff's employment prior to her October 2003 review. However, Plaintiff cites a CPLP spreadsheet produced in discovery that lists salary and billing rates for the October 2003-September 2004 cycle. Plaintiff argues that this spreadsheet indicates that prior to her termination, CPLP had already decided not to raise her salary for the following year or promote her to partner. (See Pl. Decl. ¶ 136; Pl. Ex. CC.)

Plaintiff alleges discriminatory treatment with respect to CPLP's salary, billing rate, and promotion decisions, arising from the following actions: (1) CPLP's failure to promote Plaintiff to partner in 1997-2003; (2) CPLP's failure to raise Plaintiff's salary in 2000, 2001, and 2003; and (3) CPLP's failure to raise Plaintiff's billing rate in 1999 and 2000.

C. Failure to Assign Adequate

Work to Plaintiff CPLP requires that their litigators meet an annual billable hours requirement of 1800 hours. (Pavane Decl. ¶ 13.) It is undisputed that Plaintiff did not meet this requirement in 1997-2001 or in 2003.*fn10 (See Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9.) However, Plaintiff alleges that she did not meet the billable hour requirement during these periods because CPLP's partners (1) refused to assign sufficient work to her; and (2) transferred work from her to other associates. (See, e.g., Pl. Ctr. 56.1 ¶¶ 4, 11; Pl. Decl. ¶¶ 95-99.) Plaintiff alleges that the CPLP partners stopped regularly assigning work to her in early 2000, and that this treatment was due to discrimination (the "work assignment claim").*fn11 (See Pl. Decl. ¶¶ 32-33.)

D. Plaintiff's Termination

CPLP terminated Plaintiff's employment on September 18, 2003. The following events leading up to Plaintiff's termination are undisputed. On September 16, 2003, Plaintiff sent an email to the CPLP partners, complaining that "all the women litigators in this firm, regardless of their level of experience or talent, have been relegated to non-partnership track support roles, thus limiting their career development as well as their ability to undertake substantive trial work." (See Pl. Ex. JJ.)

The following day, on September 17, 2003, Pavane sent an email to Plaintiff, expressing concern that she had bypassed CPLP's procedure for docketing papers, and that she had failed to obtain partner approval on various prebills. (See Pl. Ex. JJ.) On September 18, 2003, Plaintiff sent an email in reply to Pavane, which stated, inter alia, that Plaintiff had "good reasons" for bypassing the office procedures because CPLP paralegals failed to follow them.*fn12 (See Pl. Ex. MM.) Pavane sent Plaintiff a reply email that stated, "[b]ottom line is you should not alter our procedures without notifying a partner, regardless of how 'justified' you think you are," and asked Plaintiff to confirm that she would not violate CPLP's procedures. (See Pl. Ex. NN.) Following this email exchange, Plaintiff sent two additional emails, one to Pavane and one directly to the CPLP paralegals copied to Pavane, complaining that the paralegals had not followed CPLP procedures with respect to her case.*fn13

That same day, Pavane informed Plaintiff that he and the other CPLP partners had decided to terminate her employment. Pavane did not give Plaintiff a reason for her termination. (See Pl. Decl. ¶ 126.) Plaintiff alleges that she was fired due to discrimination and in retaliation for her September 16, 2003 email. (See Pl. Opp'n 17-19.) CPLP alleges that it terminated Plaintiff due to her failure to follow CPLP procedures and her subsequent emails to Pavane and the CPLP paralegals. (See Def. Reply 9.)

II. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate only when the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). "[S]ubstantive law will identify which facts are material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and an issue of "material fact is 'genuine[ ]' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). All ambiguities must be resolved, and all inferences drawn, in favor of the non-moving party. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001).

However, "[a] non-moving party cannot avoid summary judgment simply by asserting a 'metaphysical doubt as to the material facts.'" Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A non-moving party "'may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [her] version of the events is not wholly fanciful.'" Id. (quoting Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004)). Thus, a non-moving party "must 'set forth specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed. R. Civ. P. 56(e)).

B. Statute of Limitations

Defendant raises a statute of limitations defense to several of Plaintiff's claims. Before turning to the merits of Plaintiff's claims, the Court therefore considers whether Plaintiff's Title VII, state, and city claims are time-barred.

1. Title VII Claims a. Legal Standard

A Title VII claim is "time-barred if the plaintiff, after filing a charge with an appropriate state or local agency, does not file a charge with the EEOC within 300 days after 'the alleged unlawful employment practice.'" Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-34 (2d Cir. 2003) (quoting 42 U.S.C. § 2000e-5(e)(1)).*fn14 There is a "narrow exception" to the Title VII limitations period, however, "when an otherwise time-barred claim is part of a 'continuing violation,'" and at least one discriminatory act falls within the limitations period. Blake v. Bronx Lebanon Hosp. Ctr., No. 02 Civ. 3827, 2003 WL 21910867, at *5 (S.D.N.Y. Aug. 11, 2003).*fn15

The Supreme Court clarified the scope of this exception in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). In Morgan, the Supreme Court held that the continuing violation doctrine does not apply to "discrete discriminatory acts . . . , even when they are related to acts alleged in timely filed charges." Id. at 113. In contrast, the continuing violation exception does apply to "a series of separate acts that collectively constitute one 'unlawful employment practice,'" such as the acts underlying a hostile work environment claim. Id. at 117. Acts underlying a hostile work environment claim differ from discrete acts because a hostile work environment claim is "based on the cumulative effect of individual acts," id. at 115, while "discrete acts" each constitute a "separate actionable 'unlawful employment practice,'" id. at 114. "Discrete" acts include "termination, failure to promote, denial of transfer, or refusal to hire." Id.

b. Analysis

Plaintiff filed her EEOC claim on April 21, 2004. Thus, unless the continuing violation exception applies, any Title VII claims premised on acts that occurred prior to June 26, 2003 are time-barred. See 42 U.S.C. § 2000e-5(e)(1)); Elmenayer, 318 F.3d at 134. The following claims fall outside this 300-day period:

(1) CPLP's failure to promote Plaintiff from 1997-2002; (2) CPLP's failure to raise Plaintiff's salary at her performance reviews in 2000 and 2001; (3) CPLP's failure to increase Plaintiff's billing rate at her performance reviews in 1999 and 2000; and (4) CPLP's failure to provide Plaintiff with adequate work prior to June 26, 2003.

Plaintiff argues that each of these claims falls under the continuing violation exception. The Court concludes that Plaintiff's promotion, salary, and billing rate claims are discrete acts that do not fall under the continuing violation exception. However, Plaintiff's work assignment claim does constitute a continuing violation.

"Morgan is perfectly clear that when an employee alleges 'serial violations,' i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation." Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162, 2175 (2007). Each of Plaintiff's promotion, salary, and billing rate claims are separately actionable. Accordingly, the Court concludes that these claims do not fall under the continuing violation exception.*fn16 See Morgan, 536 U.S. at 114 (holding that failure to promote is a discrete act); Ledbetter, 127 S.Ct. at 2165 (holding that pay-setting decisions are discrete acts).

In contrast, Plaintiff's work assignment claim is analogous to the hostile work environment claim discussed in Morgan, and therefore falls under the continuing violation exception. Plaintiff alleges that the CPLP partners first began allocating insufficient work to her in early 2000 (see Pl. Decl. ¶¶ 32-33), and she presents multiple examples from 2000 through 2003 of CPLP partners (1) reassigning work from her, (2) denying her requests for work, and (3) conceding that they were not providing her with adequate work. (See, e.g, Pl. Decl. ¶¶ 33, 35-36, 39, 44, 61, 76-79; Pl. Ex. E, P, W.)*fn17 Plaintiff alleges that collectively, these acts harmed her by leaving her with insufficient work, which affected her opportunities for salary increases and promotions. (See Pavane Decl. ¶ 13.) Thus, like a hostile work environment claim, Plaintiff's work assignment claim is "based on the cumulative effect of individual acts," Morgan, 536 U.S. at 115, which "collectively constitute one [allegedly] unlawful employment practice," id. at 117; see also Bascom v. Fried, No. 07 Civ. 677, 2008 WL 905210, at *4 (E.D.N.Y. Mar. 31, 2008). Accordingly, the Court concludes that Plaintiff has alleged a continuing violation beginning in 2000.*fn18 Because Plaintiff alleges that CPLP's failure to assign her sufficient work continued into the limitations period, (see Pl. Decl. ¶ 78-79), Plaintiff's work assignment claim is not time-barred.

Thus, the Court concludes that the following Title VII claims are time-barred, and grants CPLP summary judgment with respect to these claims: (1) CPLP's failure to promote Plaintiff at her performance reviews in 1997-2002; (2) CPLP's failure to raise Plaintiff's salary at her performance reviews in 2000 and 2001; and (3) CPLP's failure to increase Plaintiff's billing rate at her performance ...


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