MORISSEAU v. DLA PIPER No. 06 Civ. 13255(LAK).
532 F.Supp.2d 595 (2008)
Charlene MORISSEAU, Plaintiff, v. DLA PIPER, et al., Defendants.
United States District Court, S.D. New York.
January 23, 2008.
Bettina B. Pleven, Edward Brill, Proskauer Rose LLP, New York City, for Defendants.
LEWIS A. KAPLAN, District Judge.
On December 13, 2007, the Court granted defendants' motion for summary judgment dismissing the complaint in this employment discrimination action.
Plaintiff now moves, pursuant to Rule 59(e),' for reconsideration of the order granting summary judgment against her. She argues that the Court (1) applied an incorrect legal standard in determining that plaintiff had failed to satisfy the "qualification" prong, of a prima facie case,
I. Availability in Present Circumstances of Relief Under Rule 59(e)
Plaintiff in substance here seeks — via Rule 59(e) and after entry of judgment — to litigate defendants' motion for summery judgment after having failed to, oppose that motion when she had the opportunity to do so. Rule 59(e) should not be put to this purpose, at least in the absence of a justifiable reason for the default on the underlying motion.
"[R]econsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources."
Plaintiff here asserts no intervening change in controlling law and offers no newly discovered evidence. She has not shown that relief is necessary to prevent manifest injustice. Moreover, she plainly has no equitable call on a favorable exercise of discretion after having defaulted — without offering any excuse or explanation even to this day — on the motion for summary judgment, not to mention other inappropriate conduct during the course of this litigation. She asserts nothing more than legal error, and this only after having' failed to present her position before the motion was decided.
Nevertheless, little purpose would be served by ignoring clear error if there were any. Doing so would serve only to put the parties and the Court of Appeals to a bootless expenditure of time and resources. The Court therefore exercises its discretion to consider whether plaintiff has shown that the grant of summary judgment was inappropriate.
II. The Motion for Summary Judgment
1. Plaintiff and the Southern Center for Human Rights
Plaintiff, an African-American woman, graduated from the Harvard Law School, where she was an editor of the law review and took a course from Stephen Bright, Esq., the director of the Southern Center for Human Rights ("SCHR"), in 2001.
Plaintiff resigned from the SCHR in June 2002.
2. Plaintiffs Tenure at Piper
In the early spring of 2003, plaintiff applied for a job at Piper and was offered a position as a litigation associate in its New York office by co-hiring partner, Heidi Levine.
Plaintiffs tenure at Piper was troubled. The following is undisputed or reflects the view of disputed evidence that is most favorable to plaintiff. The Court considers only admissible evidence in ruling on a motion for summary judgment.
(a) The Katz Performance Evaluation
Among the Piper partners with whom plaintiff worked in 2003 was Aaron Katz, who had interviewed her and supported her hiring.
In September 2003, Katz filled out a performance evaluation form with respect to plaintiff.
Katz rated plaintiff 4 ("exceeds expectations") on most criteria, 5 ("exceptional") on three, and 3 ("meets expectations") on four. He commended her willingness "to work late and on weekends and holidays to contribute in a crunch time." He described her as conscientious, hard-working and "smart" and as a person with "promise of being an outstanding lawyer here." In response to a request for suggestions for enhancement of plaintiffs development, he wrote:
When plaintiff received this review, she was unhappy with the quoted comment and said that it raised concerns about " whether she would be assigned to "cases that were substantive."
(b) The Ochis Incident
Manilla Ochis was a partner in Piper's New York office who interviewed and met with plaintiff more than once before plaintiff was hired.
On October 20, 2003, plaintiff sent Ochis an e-mail to update Ochis on the status of her assignments.
Plaintiff apparently took offense at the last statement and responded the following day with an e-mail to Ochis stating in part that plaintiff found the last part of Ochis' e-mail "extremely unnecessary."
Believing there had been a misunderstanding, Ochis went to plaintiff's office to explain that she "hadn't meant anything remotely offensive, nothing negative or in any way offensive by the email."
Later that day, Ochis e-mailed plaintiff as follows:
In due course, plaintiff spoke with Johnson and Levine and told them that plaintiff believed that "the underlying problem is . . . I just don't trust Marilla any more."
A short time later, Piper agreed to plaintiff's request that she no longer work for Ochis.
(c) The Rappaport Incident
Plaintiff began working with Douglas Rappaport, another New York litigation partner, on cases involving the 9/11 Victims' Compensation Fund ("VCF") almost. immediately after she started at Piper.
In November or early December' 2003, Morisseau raised with Rappaport a concern with respect to about $700,000 of income included in a tax return previously filed by a victim of the 9/11 attacks that had been provided to Piper by the victim's widow.
Rappaport's team sought additional information about the victim's income. Rappaport asked Linda Thomas, another partner at Piper and an expert on executive compensation, to determine the source of the income. She reported that the income was part of the victim's severance package from a former employer. At Rappaport's direction, the $700,000 was reflected in the application to the VCF as severance received from the former employer.
A short time later, plaintiff claims, Rappaport tried to blame her for, a mistake in connection with the VCF cases.
Rappaport shortly thereafter mentioned the incident to Joseph Finnerty HI ("Finnerty"), the head of Piper's New York litigation practice.
After December 2003, plaintiff was not staffed on the VCF cases.
(d) The Events of February through April 2004
Heidi Levine was among the Piper partners who met with plaintiff before she was hired. She in fact signed the letter offering plaintiff a job.
(1) The Annual Performance Review — Plaintiff Rebuffs Levine
On February 19, 2004, Levine e-mailed plaintiff in advance of a scheduled meeting at which plaintiff was to receive her annual review from Leroy Inskeep, a partner in Piper's Chicago office. The e-mail asked for a copy of a document relating to a matter on which plaintiff and Levine were working and then advised plaintiff that Levine had been asked to sit on the meeting. Levine explained that "we try to always have at least one N.Y. litigation partner in each room with each associate."
The performance review, meeting took place soon thereafter. Plaintiff was present as were Inskeep, Finnerty III, Finnerty Jr., Levine, and Mathias. Johnson was present by phone.
(2) The March 22 Meeting With Cannady
In the meantime, plaintiff claims, she overheard Ochis speaking with Rappaport and Katz about her in the hallways
(3) The Next Incident With Levine
By some time in March, plaintiff was assigned to work with Levine and others on matters for Wyeth Pharmaceuticals. In the middle of that month, Levine spoke to Natalie Zaidman, a Piper lawyer based in its Baltimore office, and the two decided that it would be a good idea for Zaidman to come to New York and to have a meeting "with all of the players."
On March 29, 2004, plaintiff sent Levine and Zaidman an e-mail with an attached chart setting forth what plaintiff described as "a summary of [her] work allocation for the client" and that listed a variety of ongoing responsibilities. The chart listed only plaintiff as responsible for each of the tasks.
Plaintiff, however, did not wait until the next day. She fired back an e-mail denying any implication that she was the only one responsible for the various tasks and emphasizing a concern that she "not become marginalized in [her] work assignments." She went on to explain that "[w]hile it can make sense for all of the firm's clients to have one person allocated to being completely integrated in all the administrative responsibilities for that client, it is counterintuitive to my professional development."
Levine responded briefly, suggesting that they talk on the following day, but pointing out that the work, rather than being administrative, was "part of the most important work we do for Wyeth."
Levine took considerable offense at plaintiff's behavior, regarding the plaintiff as having been "very adversarial and aggressive, and really raising issues unnecessarily about what she was supposed to do versus what other people were supposed to do."
Undisputed evidence shows that plaintiff kept it up at the meeting, which took place late in the morning on the next day.
(4) Levine Complains to Management — March 29-30, 2004
On March 29, 2004, Levine made an appointment to meet with Leroy Inskeep of the Chicago office while he was attending meetings in the New York office.
Levine complained that plaintiff "was acting in a wad that [wa]s not appropriate in a law firm[,] that was offensive and egregious." She said "that [she] needed assistance and advice on how to handle it."
A discussion followed about whether plaintiffs behavior rose to the level of termination. Levine suggested instead that someone with management authority explain to plaintiff that her behavior had been inappropriate, that it needed to change and to give her a warning. At that point, Levine phoned Amy Schulman, a more senior New York litigation partner, and described what was taking place. Schulman was put on a speaker phone and supported Levine's suggestion.
After the meeting, Finnerty asked two of the firm's partners with expertise in employment matters to advise him, Finnerty Jr., and Inakeep — the individuals responsible for decisions concerning plaintiffs employment — about the situation.
(5) The March 80 Meeting With Cannady
Plaintiff also had a meeting with Cannady on March 30, 2004, this to follow up on the March 22 meeting.
According to plaintiff, Cannady reported that she had spoken to Rappaport, who had agreed to stop talking about plaintiff in the hallways. Plaintiff responded that she was not satisfied because Rappaport was not alone. She asked Cannady if she had spoken to Ochis and Katz and added that "this isn't just about the conversations." She went on, she claims, to say that she felt that she was "being treated differently at this firm," that she was "still the only African American M the firm,"
Late in the afternoon of the following day, March 31, 2004, Levine received drafts of escrow instructions and another document, presumably relating to settlement of a Wyeth case, from a lawyer at another firm along with a request for comments on the documents.
At that point, Levine responded that plaintiffs original response had been unacceptable and emphasized that she of course would have agreed to plaintiff getting to the matter on the following day if plaintiff "had simply stated up front that [she] was working on another deadline." She repeated that it was inappropriate for plaintiff simply to refuse to help "with no explanation" and urged that the two discuss any problem there might be between them.
Levine and plaintiff met on April 1, 2004 and together called the outside lawyer. There was no discussion, however, about the contretemps of the preceding day.
In the meantime, Cortis and Kaback gathered information about plaintiffs tenure at the firm pursuant to the request by the employment partners whom Finnerty had consulted. Ochis and Rappaport sent them lengthy e-mails describing their experiences in detail
Rappaport's e-mail recounted the incident of December 23, 2003. He stated that he had asked plaintiff to draft two short letters to the VCF, but that she had "walked into [his] office[,] . . . flatly refused to write the letters," and told Rappaport to "do them" himself. When plaintiff was asked why, Rappaport said, she responded that he had said something in front of two clients at a meeting the preceding week that plaintiff construed as blaming her for an error. Rappaport went on to say that he had spoken to plaintiff again later the same day, told her that he had not intended to blame her for the error and did not recall having done so. He asked that she immediately tell him if in the future he did anything that she
Ochis's e-mail related plaintiffs response to the "ducks in a row" e-mail discussed above. It described as follows what occurred when Ochis went to plaintiffs office to clear up the confusion about the comment:
Ochis attached to her e-mail to Cortis and Kaback two other e-mails that Ochis had sent to Amy Schulman on October 21, 2003, immediately after her confrontation with plaintiff. Those contemporaneously described plaintiff has having "completely flipped out." They said that the incident was "the most bizarre encounter [that Ochis had] ever had to deal with in [her] entire career."
Finnerty read these e-mails and spoke directly with Rappaport and Ochis about their experiences. He concluded that several partners were experiencing great difficulty working with plaintiff because of her unwillingness to conform her conduct to the direction of the partners with whom she worked and the insubordination she had exhibited. He, Finnerty Jr. and Inskeep concluded that plaintiffs conduct was unacceptable and decided that she would have to acknowledge' the problems with her conduct and correct her behavior, perhaps with the assistance of a professional coach, in order to continue with Piper. Accordingly, on April 5, 2004, he
(7) Plaintiff's Departure
Finnerty and Inskeep met with plaintiff on April 8. Kaback was present to document the meeting.
According to Finnerty, he explained to plaintiff that, based on the information he had received, her conduct Was unacceptable. He offered her two options — (1) acknowledging and correcting the problem or (2) discussing separation from the finn — and gave her 0, few days to consider them.
Plaintiffs account of the meeting is not much different save that she testified at her deposition that she "raised [a] concern that [she] was being retaliated against and singled out at the firm."
Following the meeting, Levine sent Kaback an e-mail reminding her that the firm should hire a "coach" for plaintiff if plaintiff chose the first option.
On April 13, 2004, Finnerty and Kaback met with plaintiff, who refused to acknowledge that she had done anything wrong and told them that she would not choose either of the options presented on April 8.
3. Plaintiff's Admission to the Bar
Although plaintiff had passed the July 2001 New York bar examination,
This claim of post-employment retaliation involves two assertions. First, plaintiff alleges that Piper attorney Peter Pantaleo told one of plaintiffs several prior counsel that the firm had not been aware when it hired plaintiff that she had not been admitted to practice and threatened to report this to appropriate authorities unless plaintiff signed a release. Second, the amended
Steven Bright of the SCHR submitted to the Second Department an extremely negative affidavit concerning the plaintiff.
A subcommittee of the Committee held a hearing on February 24; 2005. The principal issues before it were whether plaintiff had engaged in the unauthorized practice of law while at the SCHR and whether the circumstances of her departure from that institution reflected adversely on her fitness to practice law.
The subcommittee report, dated April 19, 2005, questioned plaintiff's judgment, termed her action with respect to the SCHR "extremely, provocative," found that "[c]learly there were severe, personality conflicts at the Center," and described plaintiff as having "an uncompromising point of view and [being] without much flexibility."
While the subcommittee report focused almost entirely on the events in Georgia, it contains the only even arguably admissible evidence supporting plaintiffs post-employment retaliation claim, stating that "an allegation of the unauthorized practice of law by the applicant was alluded to by Piper."
Plaintiff in due course, was admitted by the Second Department.
Plaintiff's `Rule 59(e) motion focuses on four claims, viz. employment discrimination, retaliatory termination of her employment, post-employment retaliation, and breach of contract.
I. The Employment Discrimination Claim
In order to withstand a motion for summary judgment, an employment discrimination plaintiff first must adduce evidence that would permit a reasonable trier of fact to find that (1) she was a member of a protected class, (2) her job performance was satisfactory, (3) an adverse employment action occurred, and (4) the action occurred in circumstances giving rise to an inference of discrimination.
In this case, plaintiff is a member of a protected class. The termination of plaintiffs employment was an adverse employment action
Piper hired plaintiff slightly less than a year before it fired her. Indeed, it went to the effort of having the African American partner who headed its diversity efforts, come from Chicago to recruit plaintiff. Once she was hired, her performances reviews indicated that her substantive work was well regarded. Nevertheless, her behavior, viewed as it must be for this purpose solely as it is depicted in the uncontradicted admissible documents and her own admissions, was quite objectionable. Several of the individuals with whom she had difficulties had been involved in hiring her, including Levine who. actually signed the offer letter. Plaintiff has pointed to no evidence of any questionable race-conscious comment by anyone at Piper during her entire tenure at the firm. She was not even just terminated — she was offered the opportunity to work to correct her problem, an opportunity she did not accept. In short, the Court had no doubt when it decided the motion for summary judgment that no rational jury could find that race was a motivating factor in the decision to terminate plaintiff. Nothing to which plaintiff has pointed in the current motion has altered that conclusion.
Finally, plaintiffs contention on the present motion that application of the McDonnell Douglas burden-shifting analysis was erroneous because there was sufficient direct evidence of discrimination to place the burden on the defendants under Price Waterhouse
Here there is no admissible evidence that race was a motivating or substantial factor in any employment decision.
2. The Retaliatory Discharge Claim
Plaintiff argues that summary judgment dismissing her retaliatory discharge claim was inappropriate. There was, she asserts, a genuine issue of material fact as to whether there was a causal connection between her complaint on March 30, 2004 to Ms. Cannady — viz., that plaintiffs performance reviews, in her opinion, did not reflect her performance and that, also in plaintiffs opinion, this was attributable to her race — and her expression of concern about possible retaliation at the April 8 meeting with Finnerty and others and her termination in April 2004.
In order to make out a prima facie case of retaliation,
If plaintiff makes out a prima facie case of retaliation, the burden shifts to defendants to articulate, not prove, a legitimate, non-retaliatory reason for its adverse employment action.
Piper has offered a legitimate, non-retaliatory explanation for its actions. Accordingly, whatever presumptions or inferences arose out of the prima facie case "drop away." The question is simply whether the admissible evidence, viewed in the light most favorable to the plaintiff, would permit a reasonable trier of fact to conclude that retaliatory animus was a motivating factor in the decision.
The key decision-maker at Piper, Finnerty, has made clear the basis for his decision. After looking into the matter, he determined that a number of partners had had a great deal of difficulty working with plaintiff, who had been insubordinate on more than one occasion. There was ample basis for that conclusion.
That said, it of course is theoretically possible that Finnerty's explanation for the decision was either entirely or partially false and that plaintiffs March 30 complaint to Cannady and her alleged comment
As an initial matter, there surely is no. direct evidence. There is not a single document that even remotely suggests that Finnerty (or anyone else) acted out of a retaliatory motive born of the complaint to Cannady or the alleged comment at the meeting. Plaintiff did not testify to a single such statement by anyone at Piper. So her case in this respect rests entirely on the temporal proximity between those events and her discharge. But there are three basic problems with this argument.
First, so far as the complaint to Cannady is concerned, there is no evidence that anyone at Piper other than Cannady even knew before the termination decision was made that plaintiff had voiced complaints of racial discrimination to Cannady. Moreover, it is undisputed that Cannady left for Texas shortly after her meeting with plaintiff and was gone for a week.
While general corporate knowledge is sufficient to establish an employer's knowledge of protected activity in step one of the McDonnell Douglas analysis, it may not suffice to make out a causal connection at step three. The lack of knowledge of the protected activity on the part of the particular agents of the employer responsible for taking the adverse action is "evidence of a lack of causal connection, countering plaintiffs circumstantial evidence of proximity."
Second, the significance of temporal proximity between protected activity and adverse employment action differs depending upon whether one is at step one or step three of the analysis. While close temporal proximity suffices to establish causation at step one, circuit courts and many district courts in our Circuit have held that it is insufficient to defeat summary judgment at step three.
Finally, it must be borne in mind that the road that led to plaintiff's termination began before Plaintiff met with Cannady, on March 30. Rappaport complained to Finnerty of her behavior much earlier,
The basis for the Court's summary judgment ruling was that no reasonable trier of fact could find that the alleged protected activity — plaintiff's complaint to Cannady and her alleged comment at the April 8 meeting — was a motivating factor in Piper's decision to terminate her. Her behavior and the reactions of several Piper partners to it were sufficiently trouble-some that no jury properly could find that either played any role in the decision.
3. The Post-Employment Retaliation Claim
The analysis of the post-employment retaliation claim follows the same pattern, bearing in mind that the only alleged adverse action as to which there is any arguably admissible evidence is the possible mention by someone at Piper to the Second Department authorities of possible unauthorized practice of law by plaintiff.
The first step is to determine whether and to what extent plaintiff has made out a prima facie case.
The EEOC charge and, as noted above, the March 30, 2004 complaint to Cannady and plaintiff's comment at the April 8, 2004 Meeting all were protected activity. Further, for purposes of step one of McDonnell Douglas, Piper is presumed to have been aware of them. The Court assumes arguendo that an allegation of this sort to the Second Department might constitute an adverse employment action. On that assumption, the existence of a prima facie case would depend upon whether there is sufficient evidence of a causal connection between the protected activity and the adverse action.
There plainly is not, in the case of the EEOC charge. Plaintiff applied for admission to the Bar in June 2004. A member of the Committee on Character and Fitness interviewed plaintiff on December 6, 2004. The EEOC charge was filed on February 5, 2005. On February 17, 2005, Piper's counsel advised the Committee that it did not "believe that [plaintiffs] conduct at the firm raises any issue that should disqualify her from admission to the bar." In the absence of evidence that Piper raised a question of unauthorized practice of law by the plaintiff between learning of the EEOC charge on or after February 5 and before February 17 — and there is none — no rational trier of fact could find any connection between the EEOC charge and any complaint Piper made.
The chronology at least admits of the theoretical possibility of a connection between the March 30 and April 8, 2004 events and whatever communication Piper had with the Second Department. But there is no direct evidence suggesting that Piper raised that question with the Appellate Division to retaliate, against plaintiff for her complaint and comment to Cannady and Kaback, respectively, so plaintiff necessarily must fall back on chronology alone in order to make out a prima facie case.
In order to infer a causal connection between protected activity and an adverse employment activity on the basis of timing alone, the temporal proximity must be "very close."
It was plaintiffs burden to offer admissible evidence of a "very close" temporal
III. The Motion to Alter or Amend the Judgment
Having laid out the basis for the granting of defendants' motion for summary judgment dismissing the complaint, the Court turns to plaintiffs claim that the decision should be set aside because the Court (1) applied an incorrect legal standard in determining that plaintiff had failed to satisfy the "qualification" prong of a prima facie case, (2) did not review documents submitted in connection with a motion to compel discovery, specifically DI 56, 63 and 65, in granting summary judgment against plaintiff, and (3) failed to recognize that deposition testimony submitted by defendants in support of the motion for summary judgment contravened defendants' Rule 56.1 statement and witness declarations.
The first and third arguments may be dealt with swiftly in light of the foregoing discussion. As demonstrated above, the Court did not in fact determine that plaintiff failed to satisfy the "qualification" prong of a prima facie case — it assumed that she had, but dismissed because plaintiff failed at step three of the McDonnell Douglas framework. Likewise, there is no basis for the assertion that there were material inconsistencies between the deposition testimony and defendants' Rule 5(.1 statement and witness declarations save plaintiff's inadmissible statements of personal belief and speculation. There remains only the contention that the Court erroneously failed to consider documents submitted in connection with an earlier motion that were not included in, the summary judgment papers.
A. The Record Considered on a Motion for Summary Judgment
Motions for summary judgment in this court are governed not only by Federal Rules of Civil Procedure, but also by S.D.N.Y. Cry. R. 56.1. The latter provides in relevant part as follows:
In view of the provision stating that all material facts set forth in the movant's Rule 56.1 statement are deemed admitted unless controverted by averments in the opposing party's responsive statement that are supported by citations to admissible evidence, Rule 56.1 necessarily means that the court need not search the entire file in resolving a summary judgment motion. It may confine its review to the evidence cited by the parties. Hence, where a party against whom summary judgment is sought fails entirely to respond to the motion, the court need ensure only that the averments in the movant's Rule 56.1 statement are supported by evidence and show an absence of a genuine issue for trial.
This view is consistent with both the purpose of Rule 56.1 and the practicalities of modern litigation. "Rules" such as this "are essential tools for district courts, permitting them to efficiently decide summary judgment motions by relieving them of the onerous task of `hunt[ing] through voluminous records without guidance from the parties.'"
Accordingly, S.D.N.Y. Civ. R. 56.1 permits a judge dealing with a motion for summary judgment to limit review to admissible evidence properly cited in the parties' Rule 56.1 statements
B. In Any Case, the Documents Relied Upon Would Not Raise a Genuine Issue of Material Fact
Plaintiffs memorandum refers specifically to three groups of documents, all said to have been from the file of Denise Cords, Piper's human resources chief, which she says bear on her discrimination and retaliatory discharge claims.
1 Group 1 — Attachments to Plaintiffs Mooring Affidavit (DI 56)
Plaintiffs earlier affidavit attached six exhibits, consisting mainly of the privilege log produced by defendants' counsel and correspondence between the attorneys. Apart from a letter by plaintiff, written after her termination, to defendants' counsel,
2. Group 2 — Attachments to Declaration of Defendants' Counsel (DI 63)
Plaintiff points next to five documents that were attached to a declaration of one of the defense lawyers in opposition to plaintiffs motion to compel discovery.
The first (DI 65, Ex. 5) is a memorandum of an interview of Sarah Cannady that was conducted by Piper lawyers after plaintiff left the firm. Plaintiff points to two statements in the following passage that were attributed to Ms. Cannady:
This document would add nothing to plaintiffs evidentiary showing on the motion for summary judgment As it is unsworn, it is not admissible for the truth of the matters stated and thus could not properly be considered on the discrimination claim even if it somehow were regarded as evidence of disparate treatment. And while this document, to whatever extent it might evidence protected activity by plaintiff, would be admissible to that extent on a retaliation claim, there `is simply nothing to support the view that there was any connection between plaintiffs alleged statements to Cannady in September 2003 and her firing in April 2004, following Levine's complaint and Finnerty's consideration of the experiences of other partners. Among other things, close temporal proximity is lacking, so this adds nothing to plaintiffs prima facie case, which the Court in any event has assumed in her favor. And there is no evidence that Finnerty or anyone else at Piper (other than Cannady) knew of this incident before plaintiff, was fired, so it adds nothing at step three of the McDonnell Douglas analysis.
The second document to which plaintiff refers is a similar interview memorandum, this one conducted with. Karen Litscher Johnson.
Again, this document, even if it should have been considered, would have added nothing to the disparate treatment claim because plaintiff's belief would not be competent evidence. The document would not have been admissible on the `disparate treatment claim. And while, the fact that
The third document to which plaintiff refers is a similar interview memorandum, this one conducted with Denise Cords.
3. Group 3 — Other Documents Allegedly from the Cortis File (DI 65)
Plaintiff relies most heavily on a group of documents, said to have been `from Ms. Cortis' file, that were attached to plaintiffs unworn reply in support of her motion to compel.
The documents consist of a number of email strings involving communications between and among lawyers at Piper, in some cases including plaintiff; three pages of unattributed and unsigned handwritten notes bearing the date "3/30/04;"
None of the e-mails was sworn. In consequence, statements by plaintiff are admissible only to prove the fact that they were made.
That said, the e-mails add only that plaintiff in early March 2004 complained to Ms. Cannady about her reviews, albeit without suggesting in her e-mails that she thought that race or gender had anything to do with the matter.
In sum, then, even if these documents were part of the record that the Court was obliged to consider on the summary judgment motion, they would not have altered the result.
Following the filing of plaintiff's Rule 59(e) motion, she moved also "for an order granting Plaintiff leave to file a recusal motion, that the recusal motion is decided before any decision is made on Plaintiffs pending Rule 59(e) motion, and for leave to conduct discovery in support of her recusal motion."
The Court denied plaintiffs motion on the grounds that (a) no leave of court was required to Me a recusal motion, (b) no basis for conducting discovery had been shown, and (c) there was no reason to delay disposition of the Rule 59(e) motion in light of the apparent lack of merit in the threatened recusal motion, coupled with the failure to file timely And sufficient papers under 28 U.S.C. § 144.
Plaintiff referred first to a newspaper report indicating that the undersigned testified as a character witness in a professional disciplinary proceeding against" a retired former partner in which he reportedly said that "he suspected [that the former partner's admitted misconduct was attributable at least in part to his] long-standing career disappointment and his `dynamic, ambitious, and aggressive' wife, whose work associated her with extremely wealthy people, [and] created `tremendous pressure' on [the former partner] `to provide more for his family consistent with [his wife's] expectations [and] desires than he could do given where he was professionally.'"
Second, plaintiff referred to the Court's supposed errors in ruling on the defendants' summary judgment motion and other unspecified matters in this case.
Finally, in a subsequent document
None of these circumstances — even if true, even if plaintiff had moved for recusal, and even if any such motion had complied with the statutory requirements — would warrant recusal under either of the two statutes that govern the recusal of federal judges, Sections 144 and 455 of the Judicial Code.
So far as Section 144 is concerned, plaintiff never filed the requisite affidavit sufficiently alleging "that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." Nor did she file the requisite certificate of counsel stating that the affidavit is filed in good faith. Her papers, such as they are and assuming their accuracy, do not allege a personal bias or prejudice.
Section 455(a) requires that a judge recuse when "an objective, disinterested observer fully informed of the underlying facts [would] entertain significant doubt that justice would be done absent recusal."
For the reasons set forth above, plaintiff has failed even to allege that the facts upon which she rests her complaints (the summary judgment ruling aside) only recently came to her attention. In any case, plaintiffs failure to file any motion for recusal between initially raising the issue on December 20 and the date of this decision independently waived any claim she may have had. And even if she had timely raised her contentions, none of plaintiffs allegations would cause an objective, reasonable observer to doubt the impartiality of the Court.
This is a sad case. Plaintiff, according to her academic record and Piper's internal evaluations, appears to be a talented person. But the record indisputably shows that she had serious problems working with others during her employment by Piper.
New York is an employment-atwill state. As judges frequently and correctly instruct juries, an employer, in the absence of a contract of employment, can fire an employee for a good reason, a bad reason, or no reason at all save that it may not do so out of racial or other proscribed motives or to retaliate for an employee's protected activity.
In this case, Piper was entirely with its rights in deciding that plaintiffs behavior was unacceptable unless plaintiff's race or her complaints of racial discrimination was a motivating factor in the firm's decision. There was no admissible evidence from which a jury reasonably could find that either played a role. Accordingly, plaintiff was entitled to summary judgment dismissing the complaint. Nothing plaintiff has advanced on this motion warrants any different result.
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