Rossini v. Ogilvy & Mather, Inc.

• Decision Date: 13 November 1984
• Docket Number: No. 78 Civ. 1713.,78 Civ. 1713.
• Citation: 597 F. Supp. 1120
• Parties: Carlotta ROSSINI and Jane Zukofsky on behalf of themselves and all persons similarly situated, Plaintiffs, v. OGILVY & MATHER, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

597 F. Supp. 1120

Carlotta ROSSINI and Jane Zukofsky on behalf of themselves and all persons similarly situated, Plaintiffs, v. OGILVY & MATHER, INC., Defendant.

No. 78 Civ. 1713.

United States District Court, S.D. New York.

November 13, 1984.

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Vladeck, Waldman, Elias & Engelhard, P.C., New York City, for plaintiffs; Judith P. Vladeck, Joseph J. Garcia, Anne C. Vladeck, New York City, of counsel.

Davis & Gilbert, New York City, for defendant; Patricia Hatry, Howard J. Rubin, New York City, of counsel.

OPINION

GAGLIARDI, District Judge.

Plaintiffs commenced this action against Ogilvy & Mather, Inc. ("O & M"), an advertising agency, alleging employment discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").¹ The case was tried without a jury from October 3, 1983 through November 15, 1983. The court now makes the following findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

Facts

At the end of 1976, O & M employed approximately 800 employees in New York City. About 200 of those employees were office and clerical workers; the remainder were classified as officials, managers, and professionals. By 1983, the total number of New York employees had grown to 1,045, of whom approximately four hundred were office and clerical workers.

O & M is divided into four major departments and a number of smaller, supporting departments. The largest departments, in terms of numbers of employees, are account management, creative, media, and research. The smaller, supporting departments at O & M include legal, accounting, personnel, and marketing services. Since the inception of this litigation, there have been as many as sixty-six divisions, departments and/or units within O & M at any one time.

The account management department serves client advertisers, and plans and executes advertising programs. The creative department produces the words and images which are heard and seen as advertising. The media department directs the purchase of advertising space in print media or advertising time in broadcast media. The research department obtains information about ad or product performance which can be used by other departments. The staffs of the major departments often are functionally divided into account groups, that is, groups of employees assigned to service a particular client or product.

An individual seeking a professional position at O & M can apply directly to the O & M personnel department, or can apply through an employment agency, a college or graduate school recruitment program, or a letter to or personal contact with a professional staff member in any O & M department. Entry-level professional jobs may be filled by transfer of O & M employees working in clerical or other support positions. Professional positions higher than entry level frequently are filled by promotion from within the department in which the vacancy occurs.

The personnel department generally recruits candidates and conducts interviews of applicants for professional positions in all departments except the creative department. In addition, interviews usually are conducted by one or more employees in the department or group for which the applicant has applied or is being considered.

Candidates for positions in the creative department generally submit a resume and portfolio as part of their initial application. The creative department has its own personnel manager and deputy or assistant personnel manager, who interview applicants. Candidates for creative department positions also may be interviewed by staff members of that department. On a number of occasions since 1975, O & M has screened creative department applicants by the use of "copy tests," writing exercises to measure ability to create advertising copy. O & M has ceased using such tests.

Until 1982, O & M had no written job descriptions. O & M has not established any minimal educational or experience requirements for any of its professional positions. O & M does not post job listings or otherwise formally advise its staff of opportunities for promotion or transfer within the New York office. Since March 1976, O & M's stated policy has been to require department heads and management supervisors (or account group directors) to advise the personnel office of job openings.²

O & M's stated policy has been to evaluate the performance of supervisory employees once a year and that of non-supervisory employees approximately twice a year, although in practice some employees have been evaluated less frequently. An evaluation form is sent to each employee's department head, or, if the employee works in the account management department, to the employee's management supervisor or account group director. The evaluation form is then sent to the personnel department and to the top officials at O & M, and eventually is retained in the employee's personnel file. A document entitled "category ratings" describes the number ratings, or, during some periods, letter ratings, which may be assigned to an employee as part of the evaluation. The categories in which an employee is rated include "marketing knowledge," "analytical ability," "writing ability," "presentation skill," "initiative/energy/drive," "supervisory skill/leadership," and "ability to take pressure."

With the exception of a few entry level positions, O & M has no written minimum or maximum salary for any professional job title. Because salaries are kept confidential, employees have access only to salary information regarding their supervisees. Each year, department heads and management supervisors/account group directors are given department or account group salary budgets based on O & M's financial situation. Those supervisors make recommendations regarding salary increases, but are not given any written guidelines for the amount of increases permissible. Those requests for pay increases are considered by a salary review committee composed of three or four of the highest members of O & M management. In passing upon a proposed raise, the committee considers, inter alia, the employee's salary history, his or her performance category rating, and the salaries received by those in comparable positions in O & M and in other advertising agencies in New York.

Of the professional and managerial employees at O & M, approximately 150 also have titles as officers. The lowest official title is vice-president. When an employee is elected vice-president, his or her job duties and salary do not change. A new vice-president will receive a small amount of O & M stock and periodically will attend officers' meetings, but will not, by virtue of the official title, be afforded any additional authority in running the agency.

In May 1970, O & M hired plaintiff Jane Zukofsky as an assistant broadcast operations director in broadcast operations. That unit, which is also known as broadcast forwarding, is part of the account coordination and services department.³ On November 16, 1970, Zukofsky was promoted to broadcast operations director. From the date of her hire to the present, Zukofsky's immediate supervisor has been Sally Bieley, manager of the broadcast operations division.

Within a few years of her hire at O & M, Zukofsky began a series of efforts to be transferred from broadcast operations. In or about 1974, Zukofsky met with Jack Silverman, a producer of television commercials in O & M's creative department, in an effort to obtain a position as an assistant producer. In or about the spring of 1975, Zukofsky submitted a "story board," a television commercial outline, and other writing samples to John Rand, a high-ranking employee within the creative department. Sometime in 1978, Zukofsky met with Bob White, a senior employee in account management, to discuss the possibility of her transfer to that department. Zukofsky was not transferred from broadcast operations.

In 1970, O & M hired Carlotta Rossini as an assistant account executive in the account management department. Before working at O & M, Rossini had received a high school diploma and had taken several college courses but never had matriculated for studies leading to a bachelor's degree. Her prior work experience included a number of positions in advertising or fields related to advertising. Rossini worked for approximately one year for W.R. Simmons, Inc., supervising individuals doing field studies of magazine readership. Thereafter, she worked for 11 months for Marplan, Inc., a research subsidiary of the Interpublic Group, in a position which also required her to supervise the work of employees completing market research questionnaires regarding consumer preferences. In 1967, Rossini worked for two months as a media buyer at Wunderman, Ricotta & Kline, Inc., an advertising agency specializing in direct response, that is, consumer purchases through coupons in print advertising or a telephone number in broadcast advertising. She then worked as an account executive for Brownstone Associates, a small agency handling advertisements for restaurants and theaters. When that business disbanded due to financial problems, Rossini formed her own two-person agency where she worked from November 1967 through June 1970. At Rossini/Stevens Associates Inc., Rossini handled accounts including a book club, the Malagasy Republic and Bel Paese cheese. Prompted by difficulties procuring capital and her desire to work for a major ad agency, Rossini closed her firm and came to O & M in 1970.

At O & M, Rossini began work on the junior fashions and home sewing divisions of the Sears account under the supervision of Jim Himonas. In September 1970, she was promoted to account executive and within a few months began work on Sears home fashions. In November 1971, while continuing her work on the...