EMPLOYMENT DISCRIMINATION IN THE SECOND
CIRCUIT DISTRICT COURTS 1993-94
By Jack A. Raisner*
and Wayne N. Outten**
I.
INTRODUCTION
Among street-toughs, a menacing stare can start a gang war.
Yet, one hardly expects hostilities to break out among federal
judges when one bench takes issue with another bench over a
point of civil procedure. They nearly did in 1994, however, when
the Second Circuit glared at the way district court judges in the
Circuit have been dismissing employment discrimination suits
on motions for summary judgment. The opinion that prompted
the brouhaha was Gallo v. PrudentialResidential Services' in
which the Court of Appeals, for all its apparent exasperation, in
the end left virtually unchanged its criteria for granting summary judgment motions. Yet, so incensed were certain district
court judges by the questioning of their summary judgment
grants that Gallo had moved one of them to upbraid the Second
Circuit in rhymed verse, before the Court of Appeals doused him
with a rare writ of mandamus.2
This survey of the past year's employment discrimination
litigation in the Second Circuit's trial courts will not examine in
detail the Gallo decision itself. Rather, it will focus on the impact of the decision. Taking Gallo as an acid test of sorts, this
article will try to assess whether, in the wake of Gallo, the district courts have changed their approach to summary judgment
motions in employment discrimination cases.
* Assistant Professor of Law, St. John's University, College of Business Administration, J.D., Cardozo School of Law (1983).
** Partner, Lankenau, Kovner & Kurtz, New York, New York; J.D., New York University (1974).
1. Gallo v. Prudential Residential Servs., 22 F.3d 1219 (2d Cir. 1994).
2. McLee v. Chrysler Corp., 38 F.3d 67 (2d Cir. 1994) ("McLee II').
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Besides sparring over Gallo, the district courts of the Second Circuit engaged in heated debate over other employment
law issues in 1993-94. Judge I. Leo Glasser's wholesale repudiation of Title VII litigation overshadowed even the most poisonous critiques of Gallo. This article will follow Judge Glasser's
controversial Title VII jurisprudence over the past year. It will
also touch on Judge Kimba Wood's dramatic judgment notwithstanding the verdict in a high-profile Wall Street discrimination
case that made the front pages of New York City's tabloids.3
And it will explore several significant district court opinions that
addressed important open issues of law in the Second Circuit.
These include opinions which established personal liability for
supervisor-defendants under Title VII,' and opinions which set
limits on the permissible scope of discovery into a plaintiff's personal sexual history, as well as others. 5
II.
A.
SUMMARY JUDGMENT
Gallo v. PrudentialResidential Services6
Perhaps the first strategic question an attorney must ask
when contemplating federal litigation is: What are the chances
of surviving summary judgment? For Title VII litigators, summary judgment is the "great divide." Typically, the defendant
brings a summary judgment motion to avoid trial. The defendant argues that all the evidence, as marshaled by the plaintiff,
fails to prove a case-even when looked at in the light most
favorable to the plaintiff. The plaintiff, on the other hand, argues that a trial is necessary to resolve a genuine issue of material fact, that, when established, will prove its case. Given the
new prospect of a trial before an unpredictable, but often sympathetic, jury under the Civil Rights Act of 1991,1 the ability of
plaintiff to force a trial on any issue can be deemed a victory.
While the summary judgment motion is of the utmost importance to the parties, it also serves as a crucial gate-keeper for
3. Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS 12142
(S.D.N.Y. Sept. 2, 1993).
4. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1988).
5. See infra part III.
6. 22 F.3d 1219 (2d Cir. 1994).
7. Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified as amended at scattered
sections of 2 U.S.C., 29 U.S.C., and 42 U.S.C.).
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EMPLOYMENT DISCRIMINATION
the court. With their bulging trial dockets, district court judges
can minimize their backlogs by granting summary judgment motions. The predilections of particular judges towards granting
such motions also figures prominently in litigation strategy, and
may affect the outcome of the case.
The importance attached to the summary judgment motions
in employment discrimination cases is due to both the high risks
and high volume of the cases. The blurry burdens of proof, the
volatile emotions, and the sheer number of claims make employment discrimination cases acutely prone to summary judgment
motions. Former Southern District Judge Kenneth Conboy alluded to this propensity in a New York Times article in which
he castigated litigators in general, but heaped particular scorn
on employment discrimination claimants:
These cases, rarely settled, are characterized by high levels of acrimony and subjective claims of victimization; they are immensely time
consuming and are controlled by legal standards that, lacking sufficient precision, are overgeneralized and of marginal use. 8
Judge Conboy would probably also attest that these warts
that plague employment cases make it difficult for plaintiffs to
find lawyers to take their employment discrimination cases.
Plaintiffs, therefore, often come to court pro se, without the
benefit of legal help. The Federal Rules of Civil Procedure Rule
56 summary judgment motion then bursts through the quagmire
and sends the plaintiffs reeling out of the courthouse. 9 So predictable and relied-upon is this scenario that when the Second
Circuit Court of Appeals merely cocked an eyebrow and looked
more closely at it in Gallo in April 1994, it caused near-havoc.
Plaintiffs bear the burden of proving intentional discrimination in the majority of employment discrimination cases. 11 Given
8. Kenneth Conboy, Trouble in Foley Square, N.Y. TIMES, Dec. 27, 1993, at A17.
Litigants now routinely challenge the hiring, admission, suspension, firing, tenure, retirement, pension, discipline and promotion decisions-or non-decisions-of businesses, unions, corporations, universities, clubs, governmental
agencies, cities, towns, the armed forces and myriad other organizations at
every level of life in the nation, on the grounds of race, age, sex, gender preference, disability or national origin.
Id.
9. Id.
10. 22 F.3d 1219 (2d Cir. 1994).
11. St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2746 (1993). But if there is
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that direct proof of intent is often lacking, the Supreme Court
set forth a shifting burden-of-proof framework by which plaintiffs can press towards trial and ultimately prevail, based on circumstantial proof alone." Most judges tend to follow this framework scrupulously, step-by-step, when evaluating the plaintiff's
case at the summary judgment stage.
Under the three-step test, the plaintiff must first establish a
prima facie case.1" The prima facie case usually requires allegations that the plaintiff (1) belongs to a protected class; (2) was
qualified to work in the position in question; and (3) was subjected to adverse treatment." It is also necessary that the complained-of job action benefited, or did not adversely affect, a
similarly situated non-protected person.1 5 This gives rise to an
inference of intentional discrimination. Next, the burden shifts
to the defendant who needs only to articulate a legitimate and
nondiscriminatory reason for the job action in order to rebut the
prima facie case."6 Finally, the burden shifts back to the plaintiff to prove that the defendant's articulated reason is unworthy
of credence and is merely a pretext, thus allowing a jury to find
that the preponderance of the evidence supports the claim of
intentional discrimination.'"
Since most discrimination cases rest on circumstantial evidence, district courts have long grappled with the question of
how much circumstantial evidence of intentional discrimination
is required of the plaintiff at the summary judgment stage for a
jury to disbelieve the articulated defense and tip the balance in
favor of a finding of intentional discrimination. The tests that
measure this quantum are usually murky. To survive summary
judgment in the Second Circuit prior to Gallo, the plaintiff had
to present "more than a 'scintilla of evidence' "s for the case to
direct evidence of discrimination, the burden may shift to the defendant. See mixed motives cases, infra part II.E.
12. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
13. Id. at 802.
14. Id.
15. Id.
16. McDonnell Douglas, 411 U.S. at 802-03.
17. Hicks, 113 S. Ct. at 2747.
18. Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d
Cir. 1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 111
S. Ct. 2041 (1991).
19941
EMPLOYMENT DISCRIMINATION
be "sufficient. ' " How much more than a "scintilla" was never
clearly defined. With such an imprecise measure, courts have
had a broad license to dismiss cases on summary judgment. In
Gallo, the Circuit tipped the balance of sufficiency in favor of
the plaintiff, or so it seemed.
Gallo involved an appeal from a grant of summary judgment by Judge Gerard L. Goettel, who had long presided in the
White Plains branch of the Southern District, in favor of the
employer. 20 The plaintiff in Gallo was responsible for publishing
various organs for Prudential's Human Resources Department."
In a retrenchment, Prudential shut down the publications and
discharged the members of the production staff, including
Gallo.22 Within nine months of discharging Gallo, Prudential
started publishing new newsletters that Gallo claimed were
replacements for the discontinued ones.23 Gallo charged that
Prudential's failure to consider her when hiring outside younger
employees to staff the new publications constituted a violation
of the Age Discrimination in Employment Act ("ADEA").2 ' Prudential countered that the new, restructured jobs entailed duties
that were different from Gallo's and argued that it had not discriminatorily replaced Gallo with younger employees. On that
basis, Prudential moved for summary judgment to dismiss
Gallo's action. 6
After describing the facts, the Second Circuit opinion in
Gallo, written by Judge Cardamone (for a panel that included
Chief Judge Newman), wasted no time in admonishing the district courts for their readiness to dismiss actions on summary
judgment motions: "Considering how often we must reverse a
grant of summary judgment, the rules for when this provisional
remedy may be used apparently need to be repeated.
27
The
19. See, e.g., Flynn v. Goldman, Sachs & Co., 836 F. Supp. 152, 158 (S.D.N.Y.
1993) (plaintiff offered "sufficient evidence to permit a rational factfinder to conclude
that defendant's actions were motivated by plaintiff's gender").
20. Judge Goettel now sits in the District of Connecticut.
21. Gallo, 22 F.3d at 1222.
22. Id.
23. Id. at 1223.
24. Id.; Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634
(1988).
25. Gallo, 22 F.3d at 1223.
26. Id.
27. Id.
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court then listed four factors, culled from previous decisions, for
weighing summary judgment motions generally at the district
court level.
In employment discrimination cases, however, the court
went further. The court added a fifth step-a warning to trial
judges to "be cautious about granting summary judgment to an
employer when, as here, its intent is at issue."2 9 The court characterized summary judgment as a "drastic provisional remedy"
and concluded that: "[The district court's] duty, in short, is confined at this point to issue-finding; it does not extend to issueresolution." 0
Applying this standard to the facts presented in Gallo, the
court found that Gallo's circumstantial evidence regarding the
motivation of the decisionmaker supported her claim of discrimination.8 1 The unanimous panel thus reversed Judge Goettel's
grant of summary judgment.3 2
The Second Circuit's antipathy towards summary judgment
dismissals, as revealed in Gallo, quickly attracted attention in
28. Id. at 1223-24. The Court wrote:
First, summary judgment may not be granted unless 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Second, the
burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. Third, in considering that, all ambiguities must be
resolved and all inferences drawn in favor of the party against whom summary
judgment is sought. Fourth, the moving party may obtain summary judgment
by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no
genuine issue of material fact and a grant of summary judgment is proper.'
Id. (citations omitted).
29. Gallo, 22 F.3d at 1224.
Fifth, when deciding whether this drastic provisional remedy should be
granted in a discrimination case, additional considerations should be taken
into account. A trial court must be cautious about granting summary judgment
to an employer when, as here, its intent is at issue. Because writings directly
supporting a claim of intentional discrimination are rarely, if ever, found
among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination.
Id.
30. Id. at 1225. See also Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155-56
(2d Cir. 1993).
31. Id.
32. Id.
EMPLOYMENT DISCRIMINATION
1994]
the lower courts and the legal press. In an article entitled "Summary Judgment in the Second Circuit,"'3 attorney David J.
Grais noted the Gallo panel's unusual denigration of summary
judgment and its "seemingly-exasperated" tone.34 Grais suggested that Gallo may signal a "new swing of the summary judgment pendulum" against the motion. 5 Tracing the path of the
summary judgment pendulum in the Second Circuit over the
past twenty years, Grais pointed out that the Gallo panel's fears
may have been unfounded.36 He referred to the most recent
study of summary judgment reversals in the circuit which had
been done in 1986.23 According to Grais, that study showed that
the affirmation rate of appeals from orders granting summary
judgment was seventy-nine percent, as opposed to the circuit's
eighty-four percent affirmation rate for appeals of civil cases
generally. 8 Grais conjectured that if such a study were done today, it might similarly dispel the misconception that summary
judgment reversals are rampant.3 9 Grais, therefore, took issue
with the Second Circuit's attempt to curb the district courts' use
of summary judgment as a quick dismissal device.
What Grais failed to note, however, is that the Second Circuit in Gallo may have been responding to the 1993-94 dismissal
rate of employment discrimination cases, a phenomenon that
has little connection to the dismissals studied in the 1986 survey. Since 1982, the number of employment discrimination cases
in district courts' dockets have multiplied drastically.' 0 Judging
by the reported grants of summary judgment in discrimination
cases, and by the authors' first-hand observation, there is good
reason to suppose that the number of summary judgment dismissals of employment cases today far exceeds the average number of civil case dismissals on motion or at trial in 1986. It may
33.
David J. Grais, Summary Judgment in the Second Circuit, 212 N.Y. L.J. 1
(1994).
34. Id.
35. Id.
36. Id.
37. Grais, supra note 33, at 1.
38. Id. (citing FINAL REPORT OF THE SECOND CIRCUIT COMMITTEE ON THE PRETRIAL
PHASE OF CivIL LITIGATION 16-17 (June 1986)).
39. Id.
40. From 1982 through 1994, the number of reported federal employment discrimination cases filed doubled, rising from 7,689 to 15,965. Report of the Director, Administrative Office of the U.S. Courts.
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be wishful thinking to assume that trial judges are as circumspect in dismissing employment discrimination cases today as
they were in dismissing the average civil lawsuit in the mid1980's.
It may also be misguided to use statistics based on reversalon-appeal rates, as Grais does, to test the integrity of summary
judgment decisions in employment cases. Few employee-plaintiffs who lose on summary judgment can afford to appeal. With
such a small number of appeals of employment cases, the reversal rate of summary judgment dismissals may not truly represent the number of badly decided summary judgment motions. In short, a less-targeted survey may not reveal whether
trial judges are abusing the summary judgment dismissal in employment cases. 41 From its unique vantage point, however, the
Second Circuit, in Gallo, seemed to have decided that they are.
Perhaps Gallo was a backlash against the growing antipathy
towards employment discrimination cases, echoed by Judge
Conboy. 42 In any event, some district court judges took the rebuff personally.
B. Response to Gallo
The first summary judgment decision citing Gallo was issued by Judge Goettel himself. In McLee 1,43 the plaintiff's race
discrimination case had the earmarks of a case bound for quick
dismissal on summary judgment motion. McLee, a recently
hired night stock supervisor, had been documented as being
chronically tardy and incompetent. Within four months he was
terminated by the same person who had hired him, and was replaced by another black man.45 Instead of dismissing McLee I,
however, Judge Goettel balked, cutting off his own nose to spite
his face, as it were, by both sending the case to trial and, in
doing so, sending the Second Circuit a strong message.
Judge Goettel noted the abundant grounds on which he nor41. By an informal count, claims of discrimination were dismissed in 75 out of 125
reported cases.
42. See supra note 8 and accompanying text.
43. McLee v. Chrysler Corp., No. 93 Civ. 3334, 1994 WL 673513 (S.D.N.Y. Sept. 12,
1994) ("McLee I").
44. Id. at *1.
45. Id. at *3.
1994]
EMPLOYMENT DISCRIMINATION
mally would have granted the summary judgment."O "However,"
he wrote with undisguised despair, "it is clear that in light of
recent Second Circuit authority, as well as a long history of opposition to the granting of summary judgment by the Circuit
Court, we cannot even consider the motion for summary judgment. ' 47 Judge Goettel next noted that since the "reign" of former-Second Circuit Chief Judge Irving Kaufman ("Pope Irving
the First"), the court's "dislike for the granting of summary
judgment has become legendary."' 8 He blamed the Circuit's reversal of his summary judgment dismissal of the complaint in
Russo v. Trifari,Krussman & Fishel,Inc.,"9 an employment discrimination case, Judge Goettel then described the Gallo decision in some detail, on this so-called aversion. 50 Responding to
the Circuit's admonition of caution in cases involving the employer's intent, Judge Goettel wrote that
[o]ther than disparate impact case actions (which are rare) ... I have
never seen an employment discrimination case in which the employer's intent was not an issue5
He then brought the controversy up to date by quoting liberally
from David J. Grais' aforementioned Perspective column in the
New York Law Journal. In conclusion, Judge Goettel warned
that employment actions have "become the largest single type of
case in federal court. 5 2 Then, resignedly announcing his lack of
authority, to "even consider" granting summary judgment to the
defendant after Gallo, Judge Goettel declared that the Second
Circuit had "all but outlawed the use of summary judgment on
the many thousands of employment cases pending."5 3 Judge
Goettel proceeded to deny the employer's summary judgment
46. Id. at *3-4.
47. McLee I, No. 93 Civ. 3334, 1994 WL 673513, at *3 (emphasis added).
48. Id.
49. Russo v. Trifari Krussman & Fishel, Inc., 659 F. Supp. 194 (S.D.N.Y. 1987),
rev'd, 837 F.2d 40 (2d Cir. 1988).
50. McLee I, No. 93 Civ. 3334, 1994 WL 673513, at *4-5.
51. Id. at *12. Judge Goettel's statement seems to imply that because virtually all
discrimination cases involve proof of intentional discrimination, the Gallo decision immunizes them all from dismissal on summary judgment. This, however, overlooks the
fact that a large number of summary judgment motions in discrimination cases are
brought purely on procedural grounds, such as statute of limitations, not on the merits.
52. Id. at *5.
53. Id.
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motion without even attempting to apply the Second Circuit
five-fold criteria." Making it clear that he was putting the case
on the trial calendar against his better judgment, Judge Goettel
expressed his serious "doubt that the Supreme Court would
agree with [the] approach" taken by the Second Circuit in
Gallo."
Judge Goettel's contretemps with the Second Circuit in
McLee I was registered immediately in the other courthouses in
the circuit. The day after a chagrined Judge Goettel signed the
slip opinion order in McLee I, Magistrate-Judge Leonard
Bernikow, in the Southern District, issued an opinion in another
race discrimination case, Peele v. New York City Department of
Social Services/Human Resources Administration.6 This case
came before the court on a motion for partial summary judgment.5 7 The defendants sought to dismiss plaintiff's Section
19838 and Title VII race discrimination claims on the ground
that they were time-barred. 9 Magistrate Bernikow quoted the
Gallo court's criteria for summary judgment in employment discrimination cases.6 0 He then quoted Judge Goettel's observation
in McLee I that "the Second Circuit has 'all but outlawed the
use of summary judgment' in employment cases." 6 1 Unlike
Judge Goettel, however, Magistrate Bernikow then analyzed the
evidence, using the five-fold criteria, before denying the summary judgment motion, in keeping with the spirit of Gallo.2
The first citation of Gallo in the Northern District was less
contentious. Hilow v. Rome City School District" involved age
and sex discrimination claims that the employer contended were
time-barred." On a summary judgment motion by the defense,
54. McLee I, No. 93 Civ. 3334, 1994 WL 673513, at *5.
55. Id.
56. Peele v. New York City Dept. of Social Servs./Human Resources Admin., No.
92 Civ. 3765, 1994 U.S. Dist. LEXIS 10158 (S.D.N.Y. July 25, 1994).
57. Id. at *12.
58. 42 U.S.C. § 1983 (1988).
59. Peele, No. 92 Civ. 3765, 1994 U.S. Dist. LEXIS 10158, at *12-15.
60. Id. See supra notes 28-29.
61. Peele, No. 92 Civ. 3765, 1994 U.S. Dist. LEXIS 10158, at *14.
62. Id. at *20-28.
63. Hilow v. Rome City Sch. Dist., No. 91-CV-567, 1994 U.S. Dist. LEXIS 8953
(N.D.N.Y. July 29, 1994).
64. Id. at *20.
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EMPLOYMENT DISCRIMINATION
Judge Neal P. McCurn quoted the five-part Gallo rules. 65 Analyzing the evidence in depth, Judge McCurn ultimately dismissed the plaintiff's Title VII,"6 Title IX,' 7 ADEA, 8 and retaliation claims, but refused to dismiss her Age Discrimination Act
of 1975' claim, permitting her to submit evidence of compliance
with the statutory prerequisites of the Act. 0
A month later, in Zachery v. Whalen,71 Judge McCurn was
again presented with a motion for summary judgment, this time
against a pro se plaintiff.7 2 The employer sought to dismiss the
action on the ground that the claims were dischargeable in
bankruptcy.73 The court merely cited Gallo for the proposition
that the court's task, on summary judgment, "is confined . .. to
issue-finding . . . not issue-resolution." 4 Finding no exemption
in the bankruptcy law, Judge McCurn dismissed the action .7
In early August, the proverbial pendulum that Gallo had set
in motion already seemed to be on the backswing. The summary
judgment controversy returned to the pages of the New York
Law Journal on August 4, 1994./ In his Southern District Civil
Practice Roundup, Michael C. Silberberg titled his column
"Summary Judgment in Employment Bias Cases. '7 7 He aptly
noted the Second Circuit's "annoyance at the trial court's temerity in granting summary judgment" and Judge Goettel's in73
flamed reaction to Gallo.
C.
Woroski v. Nashua Corp.
For those who felt the Gallo Court had hamstrung judges
65. Id. at *6-10.
66. 42 U.S.C. § 2000e (1988).
67. 20 U.S.C. §§ 1681-1687 (1988).
68. 29 U.S.C. §§ 621-634 (1988).
69. Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-07 (1988).
70. Hilow, No. 91-CV-567, 1994 U.S. Dist. LEXIS 8953, at *15.
71. Zachary v. Whalen, No. 93-CV-36, 1994 U.S. Dist. LEXIS 11177 (N.D.N.Y.
July 26, 1994).
72. Id. at *1.
73. Id. at *11.
74. Id. at *8.
75. Zachary, No. 93-CV-36, 1994 U.S. Dist. LEXIS 11177, at *25.
76. Michael C. Silberberg, Southern District Civil Practice Roundup: Summary
Judgment in Employment Bias Cases, 211 N.Y. L.J. 3 (1994).
77. Id.
78. Id.
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and defendants locked in employment discrimination battles,
the Second Circuit quickly provided some respite. On August 5,
1994, the Second Circuit issued its first post-Gallo decision involving a summary judgment dismissal of a discrimination action: Woroski v. Nashua Corp.7 9 As in Gallo, the laid-off age discrimination plaintiffs in Woroski appealed the dismissal of their
claims on summary judgment.8 0 The lower court judge had
found that the company's business motive of a Reduction-InForce (RIF) of almost 300 workers was non-discriminatory.81,
The plaintiffs had not been replaced, and the RIF had actually
caused the average age of the employees in their small facility to
rise.82 The plaintiffs' only evidence of age bias were remarks by
their supervisor, allegedly heard by an ex-coworker, to the effect
that the older workers needed to be replaced by younger, more
aggressive and less expensive employees (the supervisor denied
making the comments). 8
In sustaining the lower court's dismissal, the Woroski panel,
led by Judge Pierre Leval (and including Judges Van Graafeiland and McLaughlin), recognized that the plaintiffs "did advance some evidence of age bias" in the testimony about the supervisor's statements. 4 It stopped short of heeding the holding
in Gallo (that once an issue-especially of intent-is spotted at
summary judgment, its resolution must be left for trial).8 5 The
Woroski panel obliquely noted Gallo, but without citing other
support, employed the murky distinction between "some evidence" and "sufficient evidence" as its decisive test." Of course,
the requirement that the plaintiff present sufficient evidence
supporting a rational finding had long been part of the Circuit's
criteria and, indeed, was acknowledged in Gallo.8 7 But even in
the presence of age-biased oral statements, the panel nevertheless concluded that evidence of bias was insufficient, given the
79.
80.
81.
82.
83.
84.
85.
86.
87.
Woroski v. Nashua, Corp., 31 F.3d 105 (2d Cir. 1994).
Id. at 107.
Id. at 109.
Id. at 107-08.
Woroski, 31 F.3d at 108.
Id. at 109.
Id. at 109-10.
Id.
Galo, 22 F.3d at 1223-24.
1994]
EMPLOYMENT DISCRIMINATION
evidence of nondiscrimination in the large-scale downsizing."8
Thus, in effect, the Second Circuit weighed the evidence, and
resolved the issue by holding that "no rational jury could find"
age discrimination.89
The Woroski panel cited Gallo, but obviously was not content to stop 9at issue-finding, even in what it admitted was a
"close case." Appearing to counteract much of Gallo, the
Woroski decision was perhaps drafted to dampen the alarmist
cries that summary judgment has been "all but outlawed" in the
Second Circuit. 1 Gallo and Woroski, in short, leave the trial
courts with a choice of positions to take vis-a-vis the contentious
motion: either to send the case to trial under Gallo's strict approach,92 once the issue of intent is raised by some circumstantial evidence, or to dismiss the case using the broad discretion of
"sufficiency" under Woroski9
Later that month, two post-GaIlo/Woroski summary judgments avoided the new split in the summary judgment axis by
citing neither opinion. In Polley v. Federal Reserve Bank of
New York, 9" Judge John F. Keenan dismissed the plaintiff's sexual harassment claim. 5 He preserved, however, her racial discrimination claim that was built on evidence of allegedly biased
performance evaluations.9 6 In Christensen v. Bristol Myers
Squibb Co., 97 Judge Shirley Wohl Kram granted the employer's
motion to dismiss all of the plaintiff's discrimination claims on
summary judgment.9 She, too, omitted any reference to Gallo or
Woroski in stating the criteria for summary judgment (although
she mentioned Gallo tangentially in regard to the statutory burden-shifting framework under Title VII). 9
88. Woroski, 31 F.3d at 109.
89. Id. at 110.
90. Id. at 109.
91.
92.
McLee I, No. 93 Civ. 3334, 1994 WL 673513, at *5.
Gallo, 22 F.3d at 1224.
93.
Woroski, 31 F.3d at 109.
94. Polley v. Federal Reserve Bank of New York, No. 92 Civ. 7114, 1994 U.S. Dist.
LEXIS 11813 (S.D.N.Y. Aug. 23, 1994).
95. Id. at *18.
96. Id. at *17.
97. Christensen v. Bristol Myers Squibb Co., No. 86 Civ. 0183, 1994 U.S. Dist.
LEXIS 12149 (S.D.N.Y. Aug. 31, 1994).
98. Id. at *26.
99. Id. at *17.
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A further indication that the Second Circuit's divergent rulings in Gallo and Woroski may ultimately leave undisturbed certain predispositions towards summary judgment came from
Judge I. Leo Glasser.100 In Wechsler v. R. D. Management
Corp., an Orthodox Jewish plaintiff claimed he was discriminatorily denied a job in a Jewish but non-Orthodox real estate
management company.101 At the point when he told the job interviewer of his religious observance, he said he had felt her interest in him evaporate.102 The company claimed the plaintiff's
personality and inexperience militated against him.103 Judge
Glasser paid lip service to the Gallo panel's adjuration of caution and noted Judge Goettel's now apparently premature
prophesy in McLee I that the summary judgment motion has
been "all but outlawed. ' 104 Retreating to more familiar ground,
however, Judge Glasser turned to Woroski, where the Second
Circuit affirmed summary judgment, even in the face of testimony of age-biased criticisms by a supervisor.10 5 Supported by
Woroski, Judge Glasser thereupon stated that "[t]his court has
not hesitated to grant summary judgment in an employment discrimination action when the evidence did not establish that the
employer's motivation was improper,"'' 06 and referred to two of
his own opinions over the preceding year, one in which he had
leveled Rule 11 sanctions against the plaintiff's counsel,10 7 and
the other in which he had excoriated Title VII plaintiffs in general for abusive litigation. 108 The Wechsler court went on to analyze the evidence under Woroski's "some versus sufficient" evidence test. 0 9 While recognizing that Wechsler had presented
some evidence raising a question of intent, Judge Glasser nevertheless granted the summary judgment motion to dismiss the action for lack of evidence." 0
In Wechsler, Judge Glasser cited previous decisions, dis100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
Wechsler v. R.D. Management Corp., 861 F. Supp. 1153 (E.D.N.Y. 1994).
Id. at 1156.
Id. at 1155.
Id. at 1154-55.
Wechsler, 861 F. Supp. at 1158-59.
Id. at 1161.
Id. at 1159.
Johnson v. Tower Air, Inc., 149 F.R.D. 461, 466 (E.D.N.Y. 1993).
Edwards v. Interboro Inst., 840 F. Supp. 222 (E.D.N.Y. 1994).
Wechsler, 861 F. Supp. at 1161.
Id. at 1162.
1994]
EMPLOYMENT DISCRIMINATION
cussed below, in which he had manifested a certain hostility to
Title VII claimants in general. " It is interesting to note, then,
that despite the dire predictions of Judge Goettel in the aftermath of the Gallo decision, Judge Glasser's approach to summary judgment remained a "business-as-usual" one thanks to
Woroski." 3
The inflammatory exchange between the Second Circuit and
Judge Goettel had yet to burst into full glory. Having been denied summary judgment in McLee I, the defendant Chrysler
Corp. sought leave to appeal and moved to have the Second Circuit remove Judge Goettel from the case via a writ of manda-
mus.114 The Second Circuit sought Judge Goettel's response. 1" 5
He submitted a response, as reported by the New York Law
Journal, that consisted of a two-page letter brief that begged the
appellate court to "give the trial courts a clearer indication of
when it may grant summary judgment in employment discrimination cases where the employer's intent is challenged." 1
Clearly unamused by Judge Goettel's hyperbolic reference to
Gallo's "outlaw[ing]" of summary judgment, the Second Circuit
sharply rebuked Judge Goettel's intransigent "sit-down strike"
posture in McLee .117 In granting the extraordinary writ to have
the judge removed, the unanimous panel (which included both
Judges Newman and Cardamone from the Gallo panel, plus
Judge Kearse), held that
a district judge had declined to exercise decision-making authority entrusted to him, even after precedents obliging him to exercise such
authority have been called to his attention.' 8
111. Id. at 1158.
112. McLee I, No. 93 Civ. 3334, 1994 WL 673513, at *5.
113. Wechsler, 861 F. Supp. at 1161.
114. McLee v. Chrysler Corp., 38 F.3d 67 (2d Cir. 1994) ("McLee IF').
115. Id. at 68.
116. Deborah Pines, Second Circuit Panel Transfers Bias Case To Another Trial
Judge, 212 N.Y. L.J. 1 (1994). In revealing his own befuddlement, and perhaps that of
other District Court judges, Judge Goettel wrote: "To simply say that Gallo does not
preclude the granting of summary judgment in all employment cases would be echoing
the mother in the anonymous nursery rhyme:
Mother, may I go out to swim? Yes, my darling daughter. Hang your clothes on
a hickory limb But don't go near the water."
Id.
117. McLee II, 38 F.3d at 68.
118. Id.
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(Vol. 14:707
Judge Newman's four-page decision termed "unsupportable" Judge Goettel's conclusion in McLee I that the Second
Circuit had disavowed summary judgment in cases where intent
is at issue.11
Revealingly, the Second Circuit panel in McLee II acknowledged Woroski as a complement to Gallo, citing Woroski, and
the 1988 decision of Dister v. Continental Group, Inc.1 20 (in
which summary judgment was granted) as proof of the Second
Circuit's balanced approached to summary judgement.12 1 As the
1994-95 pre-trial litigation in the Second Circuit unfolds, however, it remains to be seen whether the district courts appreciate
this symmetry or are struck by the apparent inconsistency in the
Gallo and Woroski decisions. They will have summary judgment
motion on their minds and calendars. Rumors of the motion's
death, in the words of Mark Twain, have been greatly
exaggerated.
D.
Individual Judges and Summary Judgment.
1. Judge Glasser
It may be necessary for litigators to keep closer scorecards
on trial judges' summary judgment decisions, given the differences among district court judges and, now, even Second Circuit
panels on the subject. Of all the trial judges in the Second Circuit, however, the one whose'stance was the most idiosyncratic
in 1993-94 was Judge Glasser.
As mentioned above, Judge Glasser, in dismissing the claims
of a discrimination plaintiff, took the unusual step of imposing
Rule 11 sanctions on her attorney for bringing "frivolous" civil
rights claims.12 2 In Johnson v. Tower Air, a probationary flight
attendant was terminated after seven months for allegedly failing to follow certain procedures and because of her "general attitude."' 2 8 Johnson claimed that she was fired for reporting, in the
months prior to her discharge, the sexually abusive gestures and
remarks of her immediate supervisor on her flight crew."2 The
119.
120.
121.
122.
123.
124.
Id.
Dister v. Continental Group, Inc., 859 F.2d 1108 (2d Cir. 1988).
McLee II, 38 F.3d at 68.
Johnson v. Tower Air, 149 F.R.D. 461 (E.D.N.Y. 1993).
Id. at 465.
Id. at 463.
1994]
EMPLOYMENT DISCRIMINATION
employer moved to dismiss all of Ms. Johnson's sex discrimination and retaliation claims, and sought Rule 11 fees and sanctions against her and her attorney for asserting 42 U.S.C. § 1983
claims against the airline and its president, Morris Nachtomi
(whom she had also sued individually). 23
The imposition of sanctions had less to do with the sexual
harassment charges than the rather fundamental mistake of
charging Section 1983 violations in the absence of state action. 12 6
Judge Glasser easily found that the lack of state action made the
Section 1983 claims dismissible. 2 7 The plaintiff's attorney, a sole
practitioner, defended his retention of the Section 1983 claims
on the basis of his inexperience in civil rights law and the haste
with which he had had to prepare the complaint (due to the narrow 90-day right-to-sue period under Title VII).128 Nevertheless,
the court noted that the defendant's counsel had given the
plaintiff's attorney ample opportunity to withdraw the Section
1983 claims.12 9 Judge Glasser imposed a $1,000 fine on plaintiff's
counsel for not having done so.130 As to the sexual harassment
claims, the reasoning of Judge Glasser was perhaps more ordinary, yet troubling. There was no dispute that Johnson's supervisor had been offensive. 3 1 There was ample evidence of offensive conduct.1 3 2 Nevertheless, the court simply found his
conduct was not sufficiently pervasive and dismissed the sex discrimination and retaliation claims without a trial.1 33 A more severe castigation from Judge Glasser came in the case which followed, Edwards v. Interboro Institute.3 4 In this case, Judge
Glasser was not asked to award Rule 11 sanctions. 5 However,
he used the opinion as a bully pulpit from which to call for a
reconsideration of whether the "American" rule should be modified to allow courts to award defendants' attorneys' fees and
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
Id. at 465.
Johnson, 149 F.R.D. at 466.
Id.
Id. at 473.
Id.
Johnson, 149 F.R.D. at 473.
Id. at 469.
Id.
Id. at 470.
Edwards v. Interboro Inst., 840 F. Supp. 222 (E.D.N.Y. 1994).
Id.
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[Vol. 14:707
costs in discrimination cases. 18"
In Edwards, the plaintiff, a black instructor of paralegal
studies, had been accused of sexually harassing female students.1 7 He was terminated for failing to provide requested outlines, syllabi, and his own academic transcripts. 138 The plaintiff
maintained that his discharge was in retaliation for his complaints of race and gender discrimination, stemming from his
complaint that he was not allowed to teach discrimination and
that a female teacher earned more than he.139 Judge Glasser
found insufficient evidence on the record to support any of Edwards' claims, and so dismissed them. 14 0 To his decision he then
added the following dicta:
The Civil Rights Act of 1964, 423 U.S.C. § 2000e et seq., was an enactment then long overdue and noble in its objectives. It unquestionably
has served to deter, if not entirely eradicate, the pernicious practice of
discrimination in employment decisions. It has, however, also unquestionably served to embolden disgruntled employees, who have been
legitimately discharged because they were incompetent, insubordinate, or dishonest, to file suits alleging that they have been the
victims of discrimination. The motives prompting those baseless filings may be inferred to be harassment or intimidation with a view
towards being rehired. Whatever the motives, the frequency with
which such cases are filed unduly burdens the federal courts and subjects innocent employers to incredible expense which they cannot
recoup if successful notwithstanding 42 U.S.C. § 2000e5(k). See ChristiansburgGarment Co., v. E.E.O.C., 434 U.S. 412, 54 L. Ed. 2d 648, 98
S. Ct. 694 (1978) (attorney's fees for successful Title VII defendants
are not available unless defendant can demonstrate that the action
was frivolous, unreasonable, or groundless). A reexamination of Chris14 1
tiansburg in the revealing light of experience would be useful.
As Judge Glasser takes up the plight of the defendant in
Edwards, he shows just how antagonistic sitting federal judges
are permitted to be towards the laws they are bound to interpret
and uphold.142 First, he suggests that discrimination of the type
136.
137.
138.
139.
140.
141.
142.
Id.
Id. at 223.
Edwards, 840 F. Supp. at 225.
Id. at 224 n.3.
Id. at 230.
Id. (emphasis added).
Edwards, 840 F. Supp. at 230.
1994]
EMPLOYMENT DISCRIMINATION
prohibited by Title VII may have been "entirely eradicat[ed]" in
the United States.14 This certainly would come as news to the
nearly one hundred thousand employees who lodge EEOC
charges each year, and the hundreds of federal judges who regularly hear such cases and occasionally find for the plaintiff.
Given the purported extinction of legitimate discrimination
claimants, however, it is no wonder that Judge Glasser views Title VII cases as contests pitting the "incompetent, insubordinate, and the dishonest," against "innocent employers."14" Most surprising, however, is Judge Glasser's proposal
that a rule which allows employers to collect their attorneys' fees
should be extended to cases beyond those that are "frivolous,
unreasonable, or groundless. 1 5 Judge Glasser would therefore
make the losing plaintiff pay the defense's fees, even when his or
her claims are reasonable. From an economic standpoint, Judge
Glasser, of course, overlooks the fact that, while employers are
not allowed to "recoup" from the plaintiff, they can, and do,
recoup their litigation expenses by raising industry-wide prices.
Plaintiffs, however, have no such means for recoupment if they
lose. Any suggestion for modifying the law which ignores the fact
that employee victims of discrimination are not on par economically with their employers does violence to Congress' intent in
framing Title VII. Of course, the risk of rendering Title VII a
nullity would not deter someone who believes that discrimination was entirely eradicated long ago.
One issue raised by Judge Glasser's revealing dicta is
whether plaintiffs can effectively argue that Judge Glasser must
recuse himself in future discrimination cases, given his deepseated antagonism. A district judge must "disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned."14 6 The U.S. Supreme Court requires recusal where
the judge displays "deep-seated and unequivocal antagonism." 4 7
Noting how Judge Glasser lashed out at certain Title VII litigants with palpable animosity in Edwards, plaintiffs might question whether his eruption was merely the sort of "impatience,
143.
144.
145.
146.
147.
Id.
Id.
Id.
28 U.S.C. § 455(a) (1988).
Liteky v. United States, 114 S. Ct. 1147, 1150 (1994).
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[Vol. 14:707
dissatisfaction, annoyance and even anger," 8 permitted of federal judges, or grounds for disqualification. One attempt to disqualify a federal judge in the Southern District of New York for
discriminatory bias this past year-which failed-may be
instructive.14 9
In United States v. Ibrahim El-Gabrowny, William M.
Kunstler and Ronald L. Kuby, attorneys for one of the indicted
Word Trade Center bombers, sought to have Judge Michael B.
Mukasy recuse himself on the grounds that he is an Orthodox
Jew and a Zionist.15 0 In denying the motion, Judge Mukasey issued an extensive and thoughtful opinion addressing the procedural rules and ethical dimensions of judicial disqualification.1 51
He included an instructive survey of the instances in which judicial bias and partiality have been charged in employment discrimination cases in the Second Circuit's district courts.
2.
Judge Wood
Another judge whose assessment of a plaintiff's employment
discrimination suit, as a matter of law, came under scrutiny this
past year is Judge Kimba M. Wood. In her breathtaking reversal
of herself after trial, one can see more clearly why summary
judgment is an inopportune moment at which to gauge the evidence. The evidence is apt to look much different during trial,
both to the factfinder and to the judge presiding over the trial.
On defendant's motion for summary judgment in September 1993, Judge Wood found that the plaintiff in Flynn v.
Goldman, Sachs & Co. 52 had proffered sufficient evidence to require "the assessment of credibility and determination of plausibility by the triers of fact."1 53 Flynn was a female training manager who was denied a promotion to a position for which an
outsider, also female, was hired.154 In denying the defendant's
motion for summary judgment, Judge Wood found that a reasonable factfinder could conclude that: (1) the decisionmaker
148. Id. at 1163.
149. United States v. Ibrahim El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994).
150. Id. at 957.
151. Id.
152. Flynn v. Goldman, Sachs & Co., No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS
12142 (S.D.N.Y. Sept. 2, 1993).
153. Id. at *17.
154. Id. at *8.
1994]
EMPLOYMENT DISCRIMINATION
was motivated to deny Flynn the promotion based on stereotypical criticisms of her by a coworker; (2) an outsider was hired for
the purpose of terminating plaintiff, rather than because she was
better qualified than plaintiff; (3) from the outset, her boss was
amassing evidence into order to justify terminating plaintiff; and
(4) Flynn's boss treated her differently from the way he treated
male employees, a fact which supports an inference of discrimination. 155 Given this proffer of evidence, Judge Wood allowed
the jury to hear the case."5 6
The trial ended on October 28, 1993, and Flynn's multimillion dollar jury award made headline news in New York's daily
newspapers.1 5 7 The defendant immediately moved for judgment
notwithstanding the verdict (JNOV). On November 8, 1993,
Judge Wood granted the JNOV motion and issued a lengthy
opinion.15s The question then raised was how could Judge Wood,
on motion papers, find sufficient evidence for a reasonable jury
to find in Flynn's favor, and then, after a two-week trial, find an
insufficient evidentiary basis, despite a jury finding in the plaintiff's favor?1 5 9
Judge Wood summarized the Second Circuit's standard for
granting a Rule 50 JNOV in her November 8th decision."' To
wit, the threshold is very similar to that in Rule 56(c) motions.
As in summary judgment, the Rule 50 motion, whether made
before or after the verdict, is not an opportunity for the judge to
weigh the evidence or assess the credibility of the witnesses.16
All inferences must be drawn in favor of the non-moving
party.1 62 The party with the burden of proof, however, must
have presented some "affirmative evidence that the event occurred." 168 The motion may be granted only where "there is
such a complete absence of evidence supporting the verdict that
the jury's finding could only have been the result of sheer
155.
156.
157.
FIRED A
158.
159.
160.
161.
162.
163.
Id. at *9.
Flynn, No. 91 Civ. 0035, 1993 U.S. Dist. LEXIS 12142, at *17.
See, e.g., This Woman Had to Battle Wall Street for 5 Years Because SHE
MAN, N.Y. DAULy NEWS, October 29, 1993, at 1.
Flynn v. Goldman, Sachs & Co., 836 F. Supp. 152 (S.D.N.Y. 1993).
Id. at 154.
Id.
Id.
Flynn, 836 F. Supp. at 154.
Id.
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[Vol. 14:707
16 4
In a footnote in her JNOV decision, Judge Wood acknowledged that, only weeks before, she had denied Goldman Sachs'
motion for summary judgment. 165 She stated that "[a]t the time,
the evidence appeared to be more favorable to Ms. Flynn than it
was at trial."16 But as for specific differences between the evidence presented in the earlier motion and at trial, Judge Wood
only specified a couple of minor changes concerning rather peripheral matters. 167 Having had the benefit of a two-week trial
and subsequent motions, Judge Wood listed the material facts
supporting the plaintiff's claims and they bore little resemblance
to the ones addressed in the summary judgment motion.16 This
time, Judge Wood showed how these newly-listed facts were unsupported by evidence at trial, thus requiring a dismissal of the
action. 69 The Second Circuit will not have an opportunity to
scrutinize this decision under the lens of either Gallo or
Woroski; Joanne Flynn, having exhausted herself financially and
emotionally after years of litigation, decided not to appeal. As
mentioned above, economics are such in employment law that
even when a multi-million dollar verdict is at stake, the costs of
litigation to the individual plaintiff, as opposed to the corporate
defendant, may be the factor that dictates the outcome in the
end.
Perhaps the most significant revelation of the Flynn case is
how different the evidence looks to the trial judge at the summary judgment stage from the way it looks at trial. In this case,
Judge Wood admitted that the plaintiff's case looked better on
paper. 70 But how many times might the reverse be true, i.e.,
that the defendant's case looks better on paper? The radical difference a trial makes in revealing the merits of the case should
give pause to trial judges predisposed to find some, but not
enough, evidence supporting intentional discrimination.
Before closing the scorecard on Judge Wood, however, it
would be wrong to leave the impression of her as being unduly
164.
165.
166.
167.
168.
169.
170.
Id.
Id. at 164 n.13.
Flynn, 836 F. Supp. at 164 n.13.
Id.
Id.
Id.
Flynn, 836 F. Supp. at 164 n.13.
1994]
EMPLOYMENT DISCRIMINATION
harsh on the question of sufficiency of evidence. Two of her
post-Flynn discrimination opinions were reported on the same
day in April 1994. In Martin v. City College of New York, 1 the
defendant moved for summary judgment against a black custodial assistant whose promotion had been rescinded due to unsatisfactory job performance. 17 2 In Aponte v. Citibank, N.A., 3S the
employer similarly moved to dismiss the national origin and age
discrimination claims of a Hispanic bank branch manager who
had been discharged and replaced by another Hispanic manager
over 40 years of age after several incidents involving discourteous behavior.174 Except for the ADEA claim in Aponte, Judge
Wood denied the employer's summary judgment motions in each
75
case.1
As a final note on Judge Wood's jurisprudence, the past
year saw her issue a truly landmark decision that did more to
reinforce the public policy against employment discrimination
than perhaps any recent district court opinion in the Second
Circuit. 7 6 Yet, in this case, neither a plaintiff employee nor a
defendant employer was even a litigant. In New York City Employees' Retirement System v. Securities and Exchange Commission,17 Judge Wood established that shareholders have the
right to require companies to include in their proxy materials
shareholder proposals regarding equal employment opportunity
matters. 7 8 Plaintiff New York City Employees' Retirement System ("NYCERS") had asked Cracker Barrel Old Country Store,
Inc., to include in its 1992 proxy materials a proposal prohibiting discrimination on the basis of sexual orientation, in view of
the company's discriminatory policy against gay men and lesbians. 7 9 The SEC opposed the right on the ground that such em171. Martin v. City College of New York, No. 91 Civ. 7089, 1994 U.S. Dist. LEXIS
4950 (S.D.N.Y. Apr. 15, 1994).
172. Id. at *1.
173. Aponte v. Citibank, N.A., No. 92 Civ. 4948, 1994 U.S. Dist. LEXIS 5800
(S.D.N.Y. Apr. 15, 1994).
174. Id. at *2.
175. Id. at *1.
176. New York City Employee's Retirement Sys. v. SEC, 843 F. Supp. 858
(S.D.N.Y.), vacated, 45 F.3d 7 (2d Cir. 1994); See infra note 182 for discussion of Second
Circuit opinion.
177. Id.
178. Id. at 881.
179. Id. at 861.
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[Vol. 14:707
ployment-related proposals were related to the companies' "ordinary business operations," and as such could be excluded.180
Judge Wood reversed the SEC's position in which it refused to
enforce action against Cracker Barrel for excluding NYCERS'
proposal. 181 The SEC's position, the court found, was essentially
legislative rulemaking that had been improperly adopted without appropriate public notice and comment.18
E.
Retaliation and Summary Judgment
While the Second Circuit refashioned its summary judgment standards in Gallo and Woroski,' 8 the daily business of
the district courts in deciding such motions resulted in an unsurprising majority of dismissals.18 4 What does it take to withstand
a motion for summary judgment in the Second Circuit's district
courts? Direct evidence of discrimination helps, especially if it
triggers a "mixed-motives" analysis that shifts the burden of
proof to the defendant. 8 5
An example of a rare "smoking gun" sighting appeared in
Fisher v. Vassar College.1 86 The court reviewed the evidence exhaustively and concluded that Vassar intentionally discriminated against Dr. Fisher, a biology professor, as part of a pattern
of denying tenure to women in the "hard" science departments
180. New York City Employee's Retirement Sys., 843 F. Supp. at 862.
181. Id. at 882.
182. Id. at 881. On appeal, the Second Circuit reversed the order for summary
judgment. New York City Employee's Retirement Sys. v. SEC, 45 F.3d 7 (2d Cir. 1995).
The court held that the no-action letter was interpretive rather than legislative rulemaking and therefore did not require the APA's notice and comment procedures. Id. at 12.
The court emphasized, however, that the no-action letter "binds no one: The SEC may
still bring an enforcement action against Cracker Barrel." Id. In addition, the court
noted that if NYCERS brought a federal suit against Cracker Barrel, the no-action letters would not bind the court. Id. at 13. Although no-action letters are given some deference, district courts "almost always have analyzed the issues independently of the letters." New York City Employee's Retirement Sys., 45 F.3d at 13.
183. See supra parts II.A., II.C.
184. See supra note 41.
185. Fisher v. Vassar College, 852 F. Supp. 1193, 1229 (S.D.N.Y. 1994) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989) ("[o]nce a plaintiff in a Title VII
case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same
decision even if it had not allowed gender to play such a role")).
186. Id. Although the reported decision in favor of plaintiff came after trial, not
summary judgment, the direct evidence in question was the type of document that typically is presented in summary judgment motions.
1994]
EMPLOYMENT DISCRIMINATION
because of their gender.18 The evidence in Dr. Fisher's favor included a note by the President of the College on her faculty record card that her Department's negative recommendation was
"overkill." '18 The court found that the "notation [was] direct evidence that the President believed that the Department's recommendation to deny [her] application for tenure was not made
without bias." 89
Similarly, direct evidence of an employer's intent to discriminate was found in Goyette v. DCA Advertising, Inc.19° In
Goyette, the Dentsu Advertising Agency stated that the "possibilities for promotion were limited" for an employee because
he was "not Japanese."'' This was one of several statements
constituting direct evidence. 92 The court held that the presence
of the evidence shifted the burden of proof to the defendant to
show that it would have made the same decision even in the absence of the unlawful motive. 19 8
By the same token, an employer failed in its attempt to use
the "mixed-motives" analysis to its advantage in Moodie v. Federal Reserve Bank of New York. 9 The plaintiff, an AfricanAmerican, had been fired as the result of an altercation.9 In
moving for summary judgment, the Bank asserted that after-acquired evidence of Moodie's resume fraud nullified his discrimination claim since it justified the termination on a separate,
non-discriminatory basis. 196 The court discredited that defense
on the ground that resume fraud was not a factor in the Bank's
actual decision to terminate Moodie. 19 7 Moreover, in the absence
of Second Circuit direction on the use of after-acquired evidence, Judge Morris E. Lasker reasoned that while after-acquired evidence may be used to limit damages, it was not a com187.
188.
189.
190.
191.
192.
193.
194.
1993).
195.
196.
197.
Id. at 1216.
Id. at 1229.
Fisher, 852 F. Supp. at 1229.
Goyette v. DCA Advertising, Inc., 828 F. Supp. 227, 233 (S.D.N.Y. 1993).
Id.
Id. at 233-34.
Id. at 235.
Moodie v. Federal Reserve Bank of New York, 831 F. Supp. 333 (S.D.N.Y.
Id. at 335.
Id.
Id. at 336.
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[Vol. 14:707
plete defense to a charge of discriminatory discharge. 198
In view of the fact that direct evidence of intent to discriminate is unavailable in most discrimination cases, the district
courts dismiss the majority of these actions on summary judgment. By the author's informal count of the reported summary
judgment decisions of the district courts in the Second Circuit,
ninety-seven summary judgment motions were made from June
1993 through August 1994. The defendant prevailed in seventyseven of the granted motions. An interesting common denominator among the cases surviving summary judgment was the presence of a retaliation claim 99 that survived, even if the intentional discrimination claims failed.
For employees who are subjected to discrimination but are
not discharged, the question of whether to complain is a paramount one. Employees who complain internally, or file an EEOC
charge, preserve their claims, but that is of little solace when, as
is often the case, the merits of the underlying claims are made
weak by difficulties of proof. Putting their continued employment at risk may be too high a price to pay for such an assurance. But if it is likely that the complaint will lead to a retaliation that substantially improves their legal claims, then it may
tip the balance-in favor of coming forward-for employees
whose employment relationship is foundering.
An illustrative case in point involved an attorney who complained of age discrimination while employed as corporate counsel. 0 0 In Windover v. Sprague Technologies, the plaintiff had
been employed for twenty-three years with Sprague Electric Co.,
a subsidiary of Penn Central Corp. that was spun off as Sprague
198. Moodie, 831 F. Supp. at 336. This issue was subsequently decided by the
United States Supreme Court in McKennon v. Nashville Banner Newspaper, Co., 63
U.S.L.W. 1105 (U.S. Jan. 24, 1995) (No. 93-1543). In a unanimous decision the Court
held that after-acquired evidence of an employee's wrongdoing does not bar all relief
under the ADEA. Id.
199. To establish a prima facie case of retaliation in the Second Circuit, a plaintiff
must show participation in protected activity known to the defendant, an employment
action disadvantaging the person engaged in the protected activity, and a causal connection between the two. A "plaintiff may establish a causal connection indirectly by 'showing that the protected activity was followed by discriminatory treatment ... or directly
through evidence of retaliatory animus.'" Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,
1039 (2d Cir. 1993) (citing Sumner v. U.S. Postal Servs., 899 F.2d 203, 209 (2d Cir. 1990).
200. Windover v. Sprague Technologies, 834 F. Supp. 560 (D. Conn. 1993).
19941
EMPLOYMENT DISCRIMINATION
Technologies ("Sprague").'( 1 Windover survived a 1988 layoff of
one-third of the corporate staff, which increased the average age
of the executives from 39.9 years to 42.5 years.2 °2 In connection
with a second layoff two years later, the CEO allegedly told the
General Counsel to get rid of the "Sprague old guard" and ultimately discharged everyone in the legal department except the
General Counsel. 2 03 A number of employees from other departments were discharged as well.20 4 This second downsizing caused
the average age of the executives to rise to 43.5 years.205
Windover contended that he should have been retained as
Sprague's General Counsel. 2 0 6 At the time when he complained,
a Japanese firm offered to buy Sprague's semiconductor division
and Windover was offered the General Counsel's position in the
new spin-off.20 7 As the sale date approached, Windover filed a
charge of age discrimination against Sprague with the EEOC
and the Connecticut Commission on Human Rights and Opportunities over the denial of the original General Counsel job and
certain benefits.20 8 Windover accused Sprague of manipulating
the paperwork so as to disqualify him from severance benefits
and delay a portion of his relocation package. 0 9
On the summary judgment motion made by the defendant,
Judge Warren W. Eginton reviewed Windover's charge that he
had been denied the General Counsel position at Sprague because of his age. 210 The court found virtually no evidence of age
discrimination and dismissed those charges. 2 11 With respect to
the complex issue of whether the defendant had properly characterized his status as he transferred from Sprague to the new
spin-off, the evidence was not as one-sided.1 2 The questions as
to his status and the timing of the dispute over his severance
201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.
212.
Id. at 562.
Id. at 562-63.
Id. at 562.
Windover, 834 F. Supp. at 563.
Id.
Id.
Id.
Windover, 834 F. Supp. at 563.
Id. at 564.
Id. at 565.
Id.
Windover, 834 F. Supp. at 565.
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[Vol. 14:707
sufficed to require a trial over the issue of retaliation.21
There have been similar instances over the past year in
which a plaintiff's action was spared the summary judgment
"ax" due to a retaliation claim. In Donato v. Rockefeller Financial Services,214 the pro se plaintiff's prima facie case of sexual
harassment by a coworker was defeated on summary judgment 2 1 6 Nevertheless, Judge Louis Stanton gave credence to her
allegations that, after she complained, her supervisor reduced
her accounts, changed her hours, downgraded her performance,
and gave her poor assignments, causing her to quit.2 16 Her retali21 7
ation claim survived.
Later in the year, Judge Stanton heard a similar summary
judgment motion in Brown v. Fujitsu Business Communications
Systems.2 1 In Brown, a black salesman claimed that he had
been denied sales and branch managerial jobs based on his
race.2 9 He also contended that in retaliation for his continual
complaints to management and his EEOC filing, he had been
denied engineering support, had had accounts taken away from
him, and was ultimately fired.22 0 Focusing again on the timing,
Judge Stanton held that "[b]ecause the alleged retaliation occurred shortly after plaintiff engaged in protected activity, this
establishes a prima facie case. 221
In another case brought by a pro se plaintiff, the court
threw out a case of religion and gender discrimination brought
by a Jewish employee fired from Catholic New York, a publication of the Archdiocese of New York.22 2 In Katzev v. Catholic
New York,22 s Judge Lawrence McKenna denied summary judgment on the plaintiff's retaliation claim.224 It was based on the
213. Id.
214. Donato v. Rockefeller Fin. Servs., No. 93 Civ. 4663, 1994 U.S. Dist. LEXIS
12646 (S.D.N.Y. Sept. 7, 1994).
215. Id. at *8.
216. Id. at *10.
217. Id.
218. Brown v. Fujitsu Business Communication Sys., No. C 89-307TB, 1994 U.S.
Dist. LEXIS 2669 (S.D.N.Y. Mar. 10, 1994).
219. Id. at "1.
220. Id. at *2.
221. Id. at *10-11.
222. Katzev v. Catholic New York, No. 92 Civ. 2664, 1994 U.S. Dist. LEXIS 621
(S.D.N.Y. Jan. 24, 1994).
223. Id.
224. Id. at *1-2.
19941
EMPLOYMENT DISCRIMINATION
allegation that, upon learning of her EEOC filing, Katzev's supervisors confined her to a conference room and denied her access to the telephone, added nineteen complaint letters to her
file (before her complaint she had none), and took other actions
leading to her termination three months later.22 5 Claims of retaliation, even in the hands of pro se plaintiffs, can compensate for
weak or meritless underlying discrimination cases by, at least,
forcing a trial.2 2 6
III.
A.
NOTABLE DECISIONS
PersonalLiability under Title VII
One of the most contentious issues around federal circuits,
which has not been addressed by the Second Circuit, is whether
an employer's managers may be held personally liable for their
discriminatory actions under Title VII. During the past year,
much attention has been focused on the Ninth Circuit's view,
advanced in Miller v. Maxwell's International,27 that individuals who are agents of employers generally cannot be held personally liable for discrimination under Title VII or ADEA.2 28
Two district judges addressed the personal liability issue in
decisions reported between July 1993 and August 1994 in the
Second Circuit. Given the lack of Second Circuit guidance on
this point, it is not surprising that the outcomes were conflicting.
In two cases, Bramesco v. Drug Computer Consultants229
and Archer v. Globe Motorist Supply Co.,230 Judge Vincent L.
Broderick ruled that managers are not personally liable for discrimination.2 31 With respect to the claims against the individual
defendants in these cases, Judge Broderick did not find any
unique claims against them that were not chargeable to the organizational entity. 2 Judge Broderick dismissed the claims and
declared that he would impose personal liability only where the
225.
226.
227.
Miller v.
228.
229.
230.
231.
232.
Id. at *9 n.7.
Katzev, No. 92 Civ. 2664, 1994 U.S. Dist. LEXIS 621, at *20.
Miller v. Maxwell's Int'l, 991 F.2d 583 (9th Cir. 1993), cert. denied sub nom.
LaRosa, 114 S. Ct. 1049 (1994).
Miller, 991 F.2d at 587-88.
Bramesco v. Drug Computer Consultants, 834 F. Supp. 120 (S.D.N.Y. 1993).
Archer v. Globe Motorist Supply Co., 833 F. Supp. 211 (S.D.N.Y. 1993).
Bramesco, 834 F. Supp. at 123; Archer, 833 F. Supp. at 213.
Bramesco, 834 F. Supp. at 123; Archer, 833 F. Supp. at 213.
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[Vol. 14:707
supervisor engages in "individualized personal misconduct as opposed to vicarious responsibility."2 33 In Archer, Judge Broderick
held that personal liability might be warranted where the employer was "undercapitalized" and thus "unlikely to be able to
pay any judgment. 23 4 Concerned over the disruptive effect of
suing managers personally, Judge Broderick held that nothing
was to be gained by including the individual defendant "apart
from consumption of time and creation of bitterness."" Based
on the objectives of a speedy, inexpensive and just determination under the Federal Rules of Civil Procedure, Judge Broderick dismissed the claims against both individual defendants.'3
Judge Lawrence M. McKenna, on the other hand, reached
the opposite conclusion in a detailed opinion that considered
Judge Broderick's opinions and ultimately rejected or distinguished them. 37 In Dirschel v. Speck,'3 8 a female registered
nurse who served an Executive Vice President and Chief Nursing Officer brought a variety of Title VII and New York Executive Law sex discrimination claims against the hospital and its
chief executive officer, William Speck.2 9 Ms. Dirschel claimed,
among other things, that Dr. Speck excluded her from various
meetings with him and other Vice Presidents in an "open and
notorious" fashion before terminating her.24 0 Supporting her
charge of hostility, there was evidence that Dr. Speck thought of
nurses as "pillow plumpers and pill pushers. 2 4 The court first
discussed Ms. Dirschel's failure to name Dr. Speck in her EEOC
charge, and found that dismissing the claims against him on that
basis would be inappropriate if Ms. Dirschel could prove at trial
that, despite the omission, he had contemporaneous knowledge
of her EEOC charge.2 42 The court then focused on the issue of
233. Archer, 834 F. Supp at 214.
234. Id.
235. Bramesco, 834 F. Supp. at 123.
236. Bramesco, 834 F. Supp. at 123; Archer, 833 F. Supp. at 214 n.2. In Archer,
Judge Broderick granted the plaintiff leave to amend the claims of personal liability in
conformance with his ruling. Archer, 833 F. Supp. at 214.
237. Dirschel v. Speck, No. 94 Civ. 0502, 1994 U.S. Dist. LEXIS 9257 (S.D.N.Y.
July 18, 1994).
238. Id.
239. Id. at *1.
240. Id. at *6.
241. Dirschel, No. 94 Civ. 0502, 1994 U.S. Dist. LEXIS 9257, at *7 n.3.
242. Id. at *14. See also Bridges v. Eastman Kodak, 822 F. Supp. 1020 (S.D.N.Y.
1994]
EMPLOYMENT DISCRIMINATION
personal liability.2 ' It noted-and rejected-the majority's reasoning in Miller and Bramesco.2 " Judge McKenna found more
convincing the district court precedents in the Second Circuit
that hold that supervisory employees are agents of the actual
employer for the purposes of Title VII.24 5 According to this line
of reasoning, "the decisive issue is whether the supervisor or intermediate employee was responsible for the adverse employment action (here discharge) of which plaintiff complains. 2 46 Inasmuch as defendant Speck was himself engaged in the
discriminatory treatment that allegedly violated Title VII, Judge
McKenna had no difficulty in denying the motion to dismiss him
from the action. 4
B. Discrimination Via a Supervisors' Use of a Foreign Language
In another case involving Manhattan hospital nurses, a
novel issue was raised by claims of national origin and race discrimination.2 48 According to Judge Sonia Sotomayor, our increasingly polyglot society puts the discrimination and harassment claims of Juanita McNeil, an African-American clerical
aide working for Tagalog-speaking Filipina-American nurses, on
the "cutting edge" of civil rights law. 249 Faced with motions for
summary judgment from both sides in a case of first impression,
Judge Sotomayor recognized the "Catch-22" that arises when
English-only and foreign-language speakers must work together;
an accommodation to one person may be perceived as discrimination against another.2 50 Judge Sotomayor grappled with those
1993) (finding no harm to the individual defendant who was unnamed in the EEOC
charge under the test set forth in Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991)).
243. Dirschel, No. 94 Civ. 0502, 1994 U.S. Dist. LEXIS 9257, at *20.
244. Id. at *21-23.
245. Id. at *21.
246. Id. at *22.
247. Dirschel, No. 94 Civ. 0502, 1994 U.S. Dist. LEXIS 9257, at *22. Judge McKenna further noted that this view is in keeping with the positions taken by the 5th, 10th,
and 11th Circuits. See id. at *24 n.10. Also, he held that it is well-settled that individuals
such as Dr. Speck may be held personally liable for discrimination under New York Executive Law. Id. at *24.
248. McNeil v. Aguilos, 831 F. Supp. 1079 (S.D.N.Y. 1993).
249. Id. at 1087.
250. Id. at 1081.
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[Vol. 14:707
issues in McNeil v. Aguilos.2 1
The nurses in the pediatric unit at New York City's Bellevue Hospital were from the Philippines and frequently spoke
Tagalog. 5 Plaintiff McNeil worked there as a clerical aide from
1985 to 1990, when she claimed she was constructively discharged. 5 3 Appearing pro se, Ms. McNeil claimed that her supervisor, defendant Aguilos, improperly trained and supervised
her, harassed her, denied her promotions, and, following her
complaint, retaliated against her by assigning her extra clerical
2
duties. "
The crux of Ms. McNeil's claim of discrimination under Title VII and Section 19812 5 was that she would not have been
mistreated if she were Filipina. 6 One way in which she alleged
that she was discriminated against for being non-Filipina was
the Filipina nurses' use of Tagalog. 5 7 Her EEOC charge accused
Ms. Aguilos of "using the Tagalog language as a discriminatory
weapon against her and other non-Filipinos. ' 2 " In reviewing the
basis of this claim on summary judgment, Judge Sotomayor
found merit in the allegations in Ms. McNeil's EEOC charge
that Ms. Aguilos once gave the unit report in Tagalog and that
when Ms. McNeil asked her the diagnosis of a specific patient
she refused to tell her.28 Judge Sotomayor noted a newspaper
article about Ms. McNeil's case that was part of her motion papers, describing an incident in which the nurses used the Tagalog word "loka," or "crazy," about a patient in Ms. McNeil's
presence, but then forgot to warn Ms. McNeil of the woman's
demeanor in a potentially harmful situation.2 60 Based on this,
and because the allegation that Bellevue's official policy of allowing nurses to communicate in Tagalog on the job was a "continuing violation," Judge Sotomayor found "sufficient dispute
and ambiguity in the facts" to defeat a motion for summary
251.
252.
253.
254.
255.
256.
257.
258.
259.
260.
831 F. Supp. 1079.
Id. at 1081.
Id.
Id. at 1083.
42 U.S.C. § 1981 (1988).
McNeil, 831 F. Supp. at 1083.
Id.
Id. at 1081.
Id.
McNeil, 831 F. Supp. at 1082.
EMPLOYMENT DISCRIMINATION
19941
judgment.2 6 In allowing the case to go to trial, Judge Sotomayor
emphasized that "[t]here is no simple solution, for just as a
workplace English-only policy potentially violates the rights of
non-English speakers," allowing workers to converse in a foreign
language may, as it did here, violate the rights of a native English speaker. 6
C.
Sexual Histories in Harassment Litigation Discovery
Increasingly, litigators find themselves faced with the task
of handling psychological expert witnesses in cases involving
sexual harassment. Because the parameters of such expert testimony under the revised Federal Rules of Civil Procedure are
just now being drawn by the trial courts, opinions such as Judge
Carter's in Bridges v. Eastman Kodak,6 merit close attention.
Among the questions posed to the court in Bridges were: (1)
When is the defense entitled to perform a Federal Rules of Civil
Procedure Rule 35(a) psychological exam of the plaintiffs? and
(2) Under Federal Rules of Civil Procedure Rule 26(c), can a
plaintiff limit the defendant's discovery into her psychological
2
and sexual histories? 6
First, the plaintiffs in Bridges contended that their assertion of hostile work environment claims did not necessitate their
submission to the defendant's requested Federal Rule 35(a) psychological examinations.26 6 Given the mental anguish component
of the plaintiffs' claims, however, the defendant contended that
it had the right to conduct Federal Rule 35(a) mental examinations because they had placed their mental condition in controversy.26 6 Federal Rule 35(a) provides, in pertinent part:
When the mental or physical condition... of a party... is in controversy, the court ... may order the party to submit to a physical or
mental examination by a physician ....
on a motion for good cause shown ..
261.
262.
263.
264.
265.
266.
267.
The order may be made only
Id. at 1083.
Id. at 1081.
Bridges v. Eastman Kodak, 850 F. Supp. 216 (S.D.N.Y. 1994).
Id. at 220.
Id. at 221.
Id.
Bridges, 850 F. Supp. at 221 (quoting FED. R. Civ. P. 35).
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[Vol. 14:707
The issue, therefore, turns on whether the plaintiffs put
their mental condition "in controversy" and whether the defendant showed "good cause."' 8 In his decision, Judge Carter
showed that most district courts do not consider mental condition to be "in controversy" in sexual harassment claims of psychological injury, or in other claims alleging emotional distress.2 6 9 Accordingly, the court held that unless the plaintiff
claims an ongoing severe mental injury (as opposed to past pain
and suffering) or a separate tort claim of emotional distress, the
defendant will not be entitled to a Rule 35(a) examination. °
Second, the plaintiffs sought a protective order restricting
defendant's discovery of information about their personal histories, since far-reaching inquiries would invade their privacy and
discourage them and others from filing actions for sexual discrimination. 7 1 The defendants argued that they were entitled to
ask plaintiffs and their therapists about the plaintiffs' psychological histories under Federal Rule 26(b), since such information was necessary and relevant to their ability to defend
themselves.' 7 '
In interpreting Rule 26(b), Judge Carter stated that invasive discovery may intrude upon one's privacy and chill future
plaintiffsY.2' Nevertheless, he held that "such an inquiry is warranted, since plaintiffs are seeking compensation for their
mental anguish.' 274 The court held that "defense counsel has a
right to inquire into plaintiffs' pasts for the purpose of showing
that their emotional distress was caused at least in part by
events and circumstances that were not job-related ....
[D]efendants must be allowed to inquire into all relevant information upon which the therapists' opinions is based, not neces'7
sarily only information directly related to their employment.' t
In sum, "the scope of the inquiry must be limited to whether,
and to what extent, the alleged harassment caused plaintiff to
268.
269.
270.
271.
272.
273.
274.
275.
(D. Utah
Id.
Id. at 221-22.
Id. at 222.
Bridges, 850 F. Supp. at 222.
Id.
Id. at 223.
Id.
Bridges, 850 F. Supp. at 223 (citing Mitchell v. Hutchings, 116 F.R.D. 481, 485
1987)).
1994]
EMPLOYMENT DISCRIMINATION
suffer emotional harm. 27 6 Judge Carter cautioned that this
meant that defendants were not to engage in a "fishing expedition," and specifically warned that it would be "inappropriate
for defendants to question plaintiffs about their past sexual histories in order to show that sexually promiscuous people are less
likely to be offended, and thus less damaged, then those who are
not as sexually active. 2' 7 It is significant to note that, in what
appears to be the first reported pronouncement by a district
court within the Second Circuit on the scope of inquiry into personal histories, the only relevant issue is the degree of the plaintiff's harm.27 8 Discovery into such areas cannot be undertaken in
order to support such defense theories in sexual harassment liti27 9
gation as the plaintiff's lack of "unwelcomeness.
It should be noted, however, that as of December 1, 1994,
Federal Rules of Evidence 412 was amended to protect victims
of sexual harassment from being subjected to a "second-stage"
harassment in discovery as well as in court.2 80 Congress thus extended "rape shield" protections to civil actions in law.2 8 1
Amended Rule 412 of the Federal Rules of Evidence was signed
into Law by President Clinton on September 13, 1994.282 In
short, the Advisory Committee comments suggest that courts
should presumptively issue protective orders barring discovery
of past sexual history unless the party seeking the discovery
makes a showing that the evidence "sought to be discovered
would be relevant under the facts and theories of the particular
case, and cannot be obtained except through discovery."28 8 For
example, in an action for sexual harassment, "while some evidence of the alleged victim's sexual behavior and/or predispositions in the workplace may perhaps be relevant, non-workplace
conduct will usually be irrelevant. '"84
276. Id.
277. Id. at 223 n.5. (citations omitted).
278. Id. at 223.
279. Bridges, 850 F. Supp. at 223.
280. FED. R. Evm. 412, amend. subdivision (a) (Sept. 13, 1994).
281. FED.R. EvID. 412.
282. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103322, § 40141, 108 Stat. 1796 (1994).
283. Id.
284. See FED. R. EVID. 412 advisory committee's note.
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[Vol. 14:707
D. Jurisdictionand a Too-Early "Right-to-Sue" Letter
Practitioners will want to note a jurisdictional decision that
broke new ground in the Second Circuit trial courts.2 8 5 The
presented question was whether a Title VII action need be dismissed when it is filed after an EEOC "right-to-sue" letter has
been issued, but before the required 180 day period for EEOC
processing.2 86 Southern District Judge Loretta A. Preska dis28 7
missed such a complaint in Henschke v. New York Hospital.
In Henschke, the Title VII plaintiff had filed her EEOC
charge on September 21, 1992, had received her right-to-sue letter one month later, and filed her complaint in district court less
than a month after that.2 8 Although supported by a long dormant decision in Spencer v. Banco Real,2 89 Judge Preska noted
that her decision was contrary to the one circuit court that had
broached the issue.2 9 In Saulsbury v. Wismer and Becker,
Inc.,2 91 the Ninth Circuit found that an early right-to-sue letter
provided a valid prerequisite for the court's jurisdiction.2 9 2 Nevertheless, Judge Preska held that "the issuance of an early rightto-sue letter does "present a jurisdictional deficiency requiring
suspension and a remand of plaintiff's Title VII claims to the
EEOC."198
Subsequent to Henschke, the Eleventh Circuit concurred
with the Ninth Circuit that an early right-to-sue letter is valid if
it is based on a determination by the EEOC that it will be unable to process the charge within 180 days after filing.2
IV.
CONCLUSION
The sparks have flown in district courts in the Second Circuit over the issue of summary judgment motions in connection
with employment discrimination claims. Those sparks illuminated the ever-increasing pressure under which judges and liti285.
Henschke v. New York Hosp., 821 F. Supp. 166 (S.D.N.Y. 1993).
286. Id.
287.
288.
289.
290.
291.
292.
293.
294.
821 F. Supp. 166.
Id. at 168.
Spencer v. Banco Real, 87 F.R.D. 739 (S.D.N.Y. 1980).
Henschke, 821 F. Supp. at 170.
Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251 (9th Cir. 1980).
Id. at 1257.
Henschke, 821 F. Supp. at 170.
Sims v. MacMillan, 22 F.3d 1059 (11th Cir. 1994).
1994]
EMPLOYMENT DISCRIMINATION
gants must hold forth. Given the desperate need to dismiss the
mounting number of employment disputes, employers, and to
some extent the courts, may have been bending the summary
judgment rules. Wary of such erosion, the Second Circuit made
known its concerns in Gallo but did not appreciably change the
rules. 2 "5 It was enough, however, to detonate a controversy
among certain district court judges. In regard to this issue, and
others, the unabashed and influential district court judges of the
Second Circuit made known their strongly held views, and presumably, they will continue doing so when they feel the need to
do so.
295.
Gallo, 22 F.3d at 1228.