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Memnon v. Clifford Chance US

October 29, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


On July 2, 2009, Plaintiff Caroline Memnon ("Memnon" or "Plaintiff") filed her Third Amended Complaint against Defendants Clifford Chance US LLP ("Clifford Chance") and Sullivan & Worcester, LLP ("S&W") (collectively, "Defendants") alleging various claims arising out of her separation from her former employer Clifford Chance and her subsequent hiring and termination from S&W. Specifically, based on allegations that Clifford Chance "blackballed" her by providing "back channel" negative information to prospective employers and "blacklisted" her by failingto provide an agreed-upon letter of recommendation, Memnon brings claims against Clifford Chance for employment discrimination and retaliation under CivilRights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, N.Y. Exec. Law, Article 15, § 296 ("NYSHRL"), Human Rights Law of New York City, §§ 8-107 and 8-502 ("NYCHRL"), breach of contract and tortious interference with business relations. As against S&W, Memnon brings claims for retaliation and discriminatory wrongful termination under Title VII, § 1981, NYSHRL and NYCHRL. Defendants now move for summary judgment on all claims. For the reasons set forth below, some of the claimsare granted and othersdenied.


Plaintiff is an African-American woman of Haitian descent. After emigrating to the United States, Plaintiff completed her undergraduate degree at Cornell University in 1993 and graduated from Columbia University School of Law and the Columbia School of International and Public Affairs in 2000 after having transferred from Vanderbilt Law School after her first year. In the fall of 2000, Plaintiff began her employment as a full-time associate at Clifford Chance. After having made complaints to Clifford Chance management of perceived discriminatory practices, Memnon resigned effective September 1, 2002 pursuant to a Settlement Agreement. James Paul, General Counsel of Clifford Chance, negotiated and drafted the Settlement Agreement on the firm's behalf. Under the terms of the settlement agreement, Plaintiff received substantial monetary payments and other benefits from Clifford Chance, including a lump sum payment, contributions to her tax-deferred savings plan, COBRA health insurance contributions through August 2003, contributions toward outplacement services and reimbursement of legal fees. See Declaration of Bettina Plevan ("Plevan Decl.") Ex. 9 ¶ 2-7. Clifford Chance also agreed to provide Memnon "with a letter of recommendation substantially in the form of the letter attached [to the Agreement] as Exhibit A," but no letter was ever attached to the Agreement. Id. ¶ 5. Clifford Chance contends that it was Paul's understanding that Memnon would obtain a recommendation letter from a lawyer with whom she had worked and who was familiar with her work product; Memnon disputes this contention and maintains that the firm was to provide the letter of recommendation.*fn2

In addition to a general release of all claims "from the beginning of the world to [September 1, 2002]," id. ¶ 8, the Settlement Agreement contained an integration clause that stated that the agreement "represents the complete agreement between the parties," id. ¶ 14, and a provision that directed that any disputes over "the interpretation of or performance under" the Settlement Agreement are to be resolved in arbitration, id. ¶ 17.

Between 2003 and 2007, Memnon periodically worked in temporary positions she obtained through employment agencies, in addition to several non-legal jobs. During this time, she also sought employment with numerous law firms in New York, including Sullivan & Cromwell, LLP ("Sullivan & Cromwell"), Thacher Proffitt & Wood LLP ("Thacher Proffitt"), Chadbourne & Parke LLP ("Chadbourne"), Manatt, Phelps & Phillips, LLP ("Manatt"), DLA Piper, S&W and Simmons & Simmons. Memnon alleges that all of her interviews at these firms went extremely well, but she was not offered employment at any firm until early 2007, when she was offered a position at S&W. First, in September 2003, Memnon had an "informational" interview session with several associates at Sullivan & Cromwell. However, Memnon was never invited for an interview with any partner at Sullivan & Cromwell and neither she nor her recruiter was ever given any reason why no interview was ever scheduled. Although Plaintiff believes that Clifford Chance provided certain "negative and confidential" information to Sullivan & Cromwell that caused the latter firm to deny her an opportunity to interview for a position, she has no evidence to support this contention. See May 5, 2009 Deposition of Caroline Memnon Transcript ("5/5/09 Dep. Tr.") at 82:18-83:9.

Plaintiff then interviewed with Thacher Proffitt some time in 2004, but was not invited for a callback interview and was never provided with a reason why no callback interview was ever scheduled. In approximately April 2006, Memnon interviewed with Chadbourne twice. Memnon claims that her recruiter informed her that Chadbourne would be making her an offer, but no offer was evermade and no reason was ever provided why Memnon was not given at offer at that firm.*fn3

Then in July 2006, Memnon had two sets of interviews at Manatt, but did not receive a job offer. According to documents produced by Memnon's recruiter, Manatt had mentioned various problems with Memnon's writing sample. Thereafter, Memnon had several interviews at DLA Piper, which she claims were all positive, but she did not receive an offer from that firm. The record reflects that Memnon's first-year law school transcript, which was provided to DLA Piper, contained several grades in the "C" range. Plaintiff has conceded that she can identify no specific communications between any prospective employer and Clifford Chance, nor any information that Clifford Chance provided to any other law firm about Memnon.*fn4

Finally, in late 2006 and early 2007, Memnon interviewed with S&W. During the interview process, Memnon provided the names oftwo references, both of whom provided positive feedback on her behalf. S&W offered Memnon a position as a fourth-year associate in its corporate department in the New York office, and Memnon began to work there on February 5, 2007. The decision to hire Memnon was made jointly by Jon Jenkins, George Lindsay, Truman Bidwell and Martha Coultrap, all partners in S&W's New York office. After she began work at S&W, Memnon requested from Clifford Chance's counsel a copy of the Settlement Agreement, which was mailed to her at her work address; the envelope was sealed when she received it. S&W contends that in only a few weeks of working there, several partners experienced disappointment in Memnon's performance and contends that she demonstrated unfamiliarity with basic principles that any mid- to senior-associate would be expected to know. Memnon vehemently disputes these characterizations of her work, noting that she was never informed of any sub-par work product, that she consistently sought evaluations and was told that her work was satisfactory, and that the proof of the pudding was that when she left S&W, one of the firm's clients for whom she had worked went with her. See Declaration of Caroline Memnon ("Memnon Decl.") ¶ 31b-37. In any event, on March 22, 2007, only 7 weeks after she began to work at S&W, Jenkins informed Plaintiff that she was terminated effective immediately. The decision to fire Memnon was made by Jenkins in consultation with Lindsay, Bidwell and Coultrap, as well as David Goss, a partner in S&W's New York office and Susan Barnard, a partner in the firm's Boston office. Plaintiff concedes that she can point to no specific communications between anyone at S&W and anyone at Clifford Chance, nor can she identify any information that was passed from her former employer to S&W.

In 2008, Memnon applied for a position in the Paris office of Simmons & Simmons and was given an offer to join the firm as an associate, which she accepted. See May 4, 2009 Deposition of Caroline Memnon Transcript ("5/4/09 Dep. Tr.") at 270:15-271:22. Memnon contends that Simmons & Simmons rescinded her offer right before she was supposed to receive her visa and "one or two days approximately" after she filed her complaint in this action. She believes that this action was the result of negative information communicated to Simmons & Simmons by Clifford Chance. Id. at 273:1-10; Plevan Decl. Ex. 11 ¶ 25.


A motion for summary judgment must be granted if the moving party shows "there is no genuine issue as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255. Summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In showing the existence of a genuine issue of material fact, "the non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." Golden Pac. Bancorp v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004). Rather, she "must come forward with evidence sufficient to allow a reasonable jury to find in her favor." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); see also Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in [the] rule, . . . the adverse party's response . . . must set forth specificfacts showing that there is a genuine issue for trial."). The facts presented must be in a form that would be admissible at trial. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Even if the parties dispute material facts, summary judgment must be granted "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id.

It has oft been noted that courts should be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, summary judgment in a discrimination case "may still be appropriate if the plaintiff relies on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct." Figueroa v. New York City Health & Hosps. Corp., 500 F. Supp. 2d 224, 228 (S.D.N.Y. 2007). "Indeed, the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trial -- apply no less to discrimination than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("Trial courts should not treat discrimination differently from other ultimate questions of fact.").



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