Holtz v. Rockefeller & Co.

• Decision Date: 30 August 2000
• Docket Number: No. 00-7041,00-7041
• Citation: 258 F.3d 62
• Parties: (2nd Cir. 2001) LAURA HOLTZ, Plaintiff-Appellant, - v. - ROCKEFELLER & CO., INC., Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 62

258 F.3d 62 (2nd Cir. 2001)

LAURA HOLTZ, Plaintiff-Appellant, - v. - ROCKEFELLER & CO., INC., Defendant-Appellee.

No. 00-7041

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Aug. 30, 2000

Decided: July 10, 2001

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LAURA HOLTZ, Plaintiff-Appellant, pro se.

DOUGLAS W. HENKIN, Milbank, Tweed, Hadley & McCloy LLP (Russell E. Brooks, of counsel), New York, NY, for Defendant-Appellee.

Before: NEWMAN, STRAUB, and SACK, Circuit Judges.

SACK, Circuit Judge:

Plaintiff-Appellant Laura Holtz, who was employed by Defendant-Appellee Rockefeller & Co., Inc. ("RCI") for approximately one year ending in August 1995, brought an action in the United States District Court for the Southern District of New York alleging that she had been subjected to various forms of employment discrimination on the basis of her age, sex, religion, and national origin. The district court granted summary judgment in RCI's favor on all claims, concluding that several of them were barred because Holtz had failed to raise them in the administrative charge she had previously filed with the Equal Employment Opportunity Commission ("EEOC"), and that Holtz had failed to make out a prima facie case of discrimination as to the remaining claims. We affirm the grant of summary judgment as to the claims not previously raised before the EEOC, as well as the claims of discrimination based on national origin, failure to promote, and wrongful discharge. We vacate the district court's rulings with respect to Holtz's claims of sexual harassment, retaliatory discharge, and failure to train because of age.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non moving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is "material" for these purposes if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."). "We may affirm the award of summary judgment on any ground with adequate support in the record." VKK Corp. v. Nat'l Football League, 244 F.3d 114, 118 (2d Cir. 2001) (citations omitted).

The recitation of "facts" upon which we are about to embark paints several RCI employees in decidedly unflattering colors. We therefore emphasize at the outset that because we are required to construe the evidence in the light most favorable to the plaintiff, and because most of the evidence she presents is her own testimony, the one-sided account that follows may not reflect the facts that will be found at trial.

BACKGROUND

General Background

Holtz, a woman of "English-German national origin" born on December 1, 1951, was employed by RCI from in or about May 1994 through August 18, 1995. She was initially hired as a temporary secretary for Stanley Cowan, head of RCI's Corporate Accounting department. Cowan subsequently offered Holtz a permanent position as an accounts payable clerk in the department. Holtz, an attorney whose goal was eventually to secure employment with a philanthropic foundation, accepted Cowan's offer but made it clear that she was not interested in the accounts payable position as a long-term job and was unlikely to remain for more than a year or two.

Sexual Harassment

Holtz asserts that for several months during her tenure she was sexually harassed by her supervisor, Peter Mumbach, a senior accountant in Corporate Accounting. She stated in her deposition that Mumbach "grabb[ed]" her hand "constantly" or "daily," touching it "every time [she] would try to hand him a paper." She also testified that he "used to touch [her] hair a lot"; that he made "obscene leers at her"; and that he tried to peer down her blouse and up her skirt. Holtz further asserted that Mumbach made approximately ten or twenty remarks insinuating that she was "involved with or had [her] eye on" married men.

At his deposition, Mumbach denied ever touching Holtz's hand or hair or trying to look down her blouse or up her skirt. He apparently was not asked about the other forms of alleged harassment.

Holtz stated that Mumbach's harassment "was ongoing over months and months" and that "it [was] almost impossible for [her] to do [her] work without getting upset" when the harassment occurred. She testified that she complained about Mumbach's conduct to Cowan, who supervised both her and Mumbach, and to Marilyn Kempf Canterbury, RCI's Manager of Personnel Administration. Mumbach and Canterbury denied that Holtz's complaints could be construed as alleging sexual harassment. Holtz said she made numerous requests to have her desk moved away from Mumbach's and tried to keep her interaction with him "to the strictest minimum."

In June 1995, Cowan reprimanded Holtz for her ongoing effort to avoid contact with Mumbach. Cowan was apparently unhappy that Holtz declined to ask Mumbach to approve overtime work and pay. Cowan told Holtz: "Peter Mumbach is supervising you. You will get your orders from Peter Mumbach. You go to Peter Mumbach. He will give you your papers, you will give him papers."

Holtz complained about this incident to Mary M. Massimo, RCI's Director of Human Resources, alleging that Cowan had "publicly humiliated" her. Holtz testified that in explaining the incident to Massimo, she attempted to describe Mumbach's harassment and "burst into tears."

Age Discrimination: Failure to Train and Promote

Holtz also claims that RCI withheld certain benefits from her because of her age. She first alleges that when Cowan offered her a full-time position as an accounts payable clerk, he promised to train her as an accountant. Although Holtz was trained in the duties of her own job, it is undisputed that Cowan did not train her in accounting. Holtz testified that when she asked Cowan why he was not training her, he said: "Laura, it's young women I like to train." It is undisputed that Holtz was not qualified for an accounting position at RCI because she did not have an accounting degree.

Holtz next asserts that she was denied a promotion or transfer on the basis of her age. She told various RCI employees of her interest in working with an RCI-affiliated company in a position more directly related to philanthropy. Canterbury arranged job interviews for Holtz at Rockefeller Financial Services ("RFS") and the Rockefeller Brothers Fund, both not-for-profit institutions that are owned by members of the Rockefeller family but are legally distinct from RCI. Neither interview resulted in a job. Holtz testified that after the position with the Rockefeller Brothers Fund fell through, Canterbury told her that the person with whom she had interviewed at the Fund had said "she had no work for [an] attorney my age.... You will just have to leave altogether. We have nothing for you." Holtz interpreted these remarks as Canterbury "saying there was nothing for me. I was over the hill, so I should leave."

Holtz's Termination

Cowan's June 1995 confrontation with Holtz regarding her reluctance to deal directly with Mumbach set off a series of events that led to Holtz's termination. As noted, on June 29, 1995, Holtz complained to Massimo, the Director of Human Resources, that Cowan had "publicly humiliated" her during the incident. She told Massimo that Cowan "stood at [her] desk and just started screaming at [her], shouting at [her]," and that his tone was "harsh" and "insulting." Massimo investigated the complaint by interviewing Cowan and two witnesses. Cowan denied having raised his voice, and the witnesses said the conversation was "intense" but not particularly loud.

On July 17, 1995, Massimo met with Holtz to discuss the results of the investigation. At that meeting, Massimo broached the subject of Holtz's stated intention to remain at RCI for only a short time. Holtz confirmed that she was actively looking for another job. The contents of the conversation are otherwise in dispute: Massimo testified that Holtz said she would leave RCI no later than August 18, 1995; Holtz testified that Massimo pressured her to set a date certain for her resignation but that she refused to do so.

Later that day, Massimo had a second conversation with Holtz, this time together with John Leyden, RCI's Chief Financial Officer. Massimo and Leyden told Holtz that they viewed her earlier statement that she would leave by August 18 as a notice of resignation, which RCI accepted. Holtz made clear that she did not want to resign, even writing the words "I do...