136 F.3d 276 (2nd Cir. 1998), 88, Galdieri-Ambrosini v. National Realty & Development Corp.

Docket Nº:88, Docket 96-9447.
Citation:136 F.3d 276
Party Name:Marilyn GALDIERI-AMBROSINI, Plaintiff-Appellant, v. NATIONAL REALTY & DEVELOPMENT CORP., Defendant-Appellee.
Case Date:February 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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136 F.3d 276 (2nd Cir. 1998)

Marilyn GALDIERI-AMBROSINI, Plaintiff-Appellant,

v.

NATIONAL REALTY & DEVELOPMENT CORP., Defendant-Appellee.

No. 88, Docket 96-9447.

United States Court of Appeals, Second Circuit

February 4, 1998

Argued Aug. 27, 1997.

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Jacqueline DeSalvo, White Plains, NY (DeSalvo & Rovira, White Plains, NY, on the brief), for Plaintiff-Appellant.

Steven H. Gaines, White Plains, NY (Pirro, Collier, Cohen & Halpern, White Plains, NY, on the brief), for Defendant-Appellee.

Before: KEARSE and McLAUGHLIN, Circuit Judges,and TRAGER, District Judge [*].

KEARSE, Circuit Judge:

Plaintiff Marilyn Galdieri-Ambrosini ("Ambrosini") appeals from so much of a judgment of the United States District Court for the Southern District of New York, Jed S. Rakoff, Judge, as dismissed her complaint against defendant National Realty & Development Corp. ("National Realty") for alleged gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1994). Following a jury verdict in Ambrosini's favor for a total of $100,000 in compensatory and punitive damages, the district court entered judgment as a matter of law in favor of National Realty on the ground that, based on the evidence presented, no reasonable juror could have found that National Realty had discriminated against Ambrosini on the basis of gender. On appeal, Ambrosini contends that judgment as a matter of law was improperly granted (1) because National Realty's motion for that relief prior to the jury's commencement of deliberations was not sufficiently specific to reach her claim of unlawful retaliation, and (2) because the evidence was sufficient to allow a reasonable juror to find gender discrimination and retaliation. Though we have difficulties with some of the procedural aspects of the case, we conclude that judgment as a matter of law was appropriate, and we therefore affirm.

I. BACKGROUND

During the pertinent period, National Realty was a real estate company whose business included developing new properties and leasing properties that it owned and managed. It had, inter alia, a retail leasing department and a commercial leasing department. The director of the retail leasing department was Clifford ("Cliff") Simon. In November 1993, National Realty hired Ambrosini to work as Simon's secretary.

Ambrosini had received a college degree in 1990 and a paralegal certificate in 1991. She had had some sixteen years of experience as a secretary with five employers and was proficient with office computer software. At National Realty, Ambrosini's secretarial duties for Simon included typing, filing, answering the telephone, generating form letters, preparing marketing packages for mass mailings, and, for a time, maintaining Simon's database of tenants. As described below, Ambrosini was also required to perform work for Simon on certain of his personal matters.

Ambrosini was fired in November 1994. National Realty asserted that the reason was poor work performance. Ambrosini commenced the present action, alleging that National Realty had discriminated against her on the basis of age and gender, and had retaliated against her, in violation of Title VII. The action was tried to a jury. The main points of Ambrosini's testimony as to the basis for her claims are summarized below. Since, in reviewing the granting of judgment as a matter of law against Ambrosini we consider the trial evidence in the light most favorable to her, we omit reference to the evidence presented by National Realty except to the extent that it could reasonably have been viewed as supporting Ambrosini's claims.

A. Ambrosini's Evidence at Trial

One of Ambrosini's principal complaints was that she was overworked at National Realty, largely because of the conduct of "BJ" Olivieri, a receptionist, and of Dana

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Cinque, a secretary in the commercial leasing department. Olivieri was hired by National Realty as a receptionist in June 1994. Ambrosini described her as "a female about--in her early 20s, petite, very well kept, very nice in her appearance like she had very beautiful fingernails. I remember them. They were always long and manicured. She loved jewelry. She was a very attractive young woman." (Transcript of Trial, October 9-11 ("Tr.") 129.) Simon and office manager Patricia ("Tesha") Chiaro had told Ambrosini that one of the jobs of the receptionist was to help Ambrosini compile and mail the marketing packages. There came a time, however, when Olivieri stated that she was no longer responsible for assisting in that task. Ambrosini complained to Simon, and perhaps to Chiaro, but they did nothing.

Cinque, described by one of Ambrosini's witnesses as a 5'7" blond woman who wore short skirts and tight clothes, was a secretary who reported to Jerry Birmingham, director of the company's commercial leasing department, and to his assistant. Cinque was frequently absent because of doctors' appointments, often arrived late or left early, and took numerous smoking breaks. When Cinque was away from her desk, Ambrosini was responsible for covering the telephones and performing other tasks for the commercial leasing department; Cinque's absences resulted in more work for Ambrosini. Ambrosini complained to Simon; he did not speak about the matter with Cinque and, so far as Ambrosini was aware, took no action. She also complained to Chiaro, who took no action. Ambrosini testified that she never observed Birmingham or his assistant reprimand Cinque for taking time away from work.

Ambrosini herself had requested permission to leave the office early on two occasions. Once she wanted to visit her mother-in-law in the hospital; Simon inquired why she could not complete the work day and make her visit afterwards; Ambrosini followed that suggestion. On the other occasion, Ambrosini asked to leave early because of the weather; Simon allowed her to leave a bit early but not as early as she had requested.

Ambrosini also complained that two male employees, Matt Brudner and Thor Headley, neither of whom was a secretary, spent time during business hours on personal matters. Brudner, a recent college graduate who was the son of a friend of the company's president, was hired to work in site acquisitions and reported to Simon. Brudner traveled a good deal to inspect various sites. When he was in the office he spent time on his personal problems. Headley, an assistant site acquisitions manager who reported at first to the company's vice president in charge of retail leasing, and later to Simon, received numerous telephone calls from his girlfriend. When Headley was away from his office, it was Ambrosini's responsibility to try to find him. Ambrosini complained to Simon that Headley's "girlfriend call[ed] quite frequently, like 20 times a day. Either they missed each other or they had a lot to share"; Ambrosini told Simon "it was an interference with my workday and the things I had to do." (Tr. 118, 119.) Simon said he was aware of the problem. However, Ambrosini never observed Simon reprimand Headley or Brudner for the time they spent on personal projects. In contrast, Ambrosini felt that Simon intimidated her. He once hovered over her when she was talking to her husband on the telephone.

Ambrosini's other major complaint was that Simon required her to perform work on his personal matters. Once, as he was leaving his office, he asked her to remove his coffee cup from his desk. On another occasion, he had her call his dry cleaners and attempt to negotiate payment for a lost shirt; this required several calls because the manager was unavailable and did not return Ambrosini's calls. Ambrosini's work for Simon on his personal affairs peaked in the spring and summer of 1994 when he was in the process of buying a house. For example, he had Ambrosini type letters and mortgage applications, photocopy documents, fax materials to his bank, and type lists of projects for renovation contractors. He had her call the cable installer to set up an appointment at a time that Simon or his wife could be at home. Ambrosini fielded many calls from Simon's realtor. Simon also once asked Ambrosini to

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deal with a package that had been delivered to his house for the previous tenants; if she could not locate them, she was to have the delivery company retrieve the package.

Ambrosini objected to performing work for Simon on these personal matters, and she complained twice to him and once to Chiaro. She first complained in August or September 1994, telling Simon that doing work on his personal matters was "really inappropriate and that I had work to do for the company," and that "[i]t was time consuming for me to do all his personal things." (Tr. 152.) Simon did not respond and continued to give her such tasks. She complained to him again in early October, when he asked her to deal with the package addressed to the former tenants of his house: "again, I told him, you know, Cliff, you continue to give me the personal work again. I reiterated it was a problem and it was a conflict for me and just said, you know, I think I would really like to know what the company policy is on doing this, do you know?" (Tr. 153.) Ambrosini testified that Simon's response was that "he didn't have the time to do it. I said, wouldn't it be appropriate for your wife to do it?" (Id.) Simon responded that his wife did not have time either and that Ambrosini would have to do the work. Ambrosini then complained to Chiaro:

Q. What did you say to Tesha?

A. I asked Tesha what the company policy was on doing personal work for your boss, that Cliff was giving me a lot of personal work; and I just really wanted to clarify the policy.

Q. And what did Tesha say to you?

A. Tesha said to me I had to deal with it with Cliff.

....

She...

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