Kump v. Xyvision, Inc.

• Decision Date: 02 February 1990
• Docket Number: No. 88 CV 1249.,88 CV 1249.
• Citation: 733 F. Supp. 554
• Parties: Barbara KUMP, Plaintiff, v. XYVISION, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

733 F. Supp. 554

Barbara KUMP, Plaintiff, v. XYVISION, INC., Defendant.

No. 88 CV 1249.

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

February 2, 1990.

David M. Liva, Garden City, N.Y., for plaintiff.

Olwine, Connelly, Chase, O'Donnell & Weyher by Michael Twomey, Grace M. Healy and Catherine Botticelli, New York City, for defendant.

MEMORANDUM AND ORDER

PLATT, Chief Judge.

In March, 1988, plaintiff Barbara Kump, a New York resident, commenced this action in New York State Supreme Court, Nassau County. Defendant Xyvision, a Delaware corporation with its principal office in Massachusetts, removed the suit to this Court on diversity grounds in April, 1988.

Plaintiff's complaint alleges four causes of action: 1) breach of employment agreement for failing to promote plaintiff to the position of account manager on April 1, 1987; 2) discrimination in employment on the basis of her sex in violation of New York State Executive Law § 296 for failure to promote plaintiff to the position of account manager before November 1, 1987; 3) discrimination in employment on the basis of her sex in violation of New York Executive Law § 296 for termination of plaintiff's employment; and 4) discrimination in employment on the basis of her pregnancy also in violation of § 296 for termination of plaintiff's employment. Plaintiff's complaint also requests attorney's fees under New York Executive Law and Title VII, SECTION 706, 42 U.S.C. § 2000e-5.

Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

For the reasons stated below, defendant's motion for summary judgment is granted with regard to the contract claim and denied as to the three discrimination claims. Further, plaintiff's request for attorney's fees is denied.

FACTUAL BACKGROUND

Defendant, Xyvision, is a Delaware corporation with its principal offices in Massachusetts. It is engaged in the manufacture, sale, and servicing of computer systems used by businesses that require sophisticated document production. Plaintiff, Barbara Kump, was hired by defendant as a customer and sales support specialist in October, 1983.

In 1984, defendant split the customer and sales support functions. Plaintiff elected to be placed in sales support. In October, 1986, defendant's Vice-President for Sales and Support Services, Alphonse Lucchese, announced that he was instituting a new program in which people would be promoted to account manager from within the company and that plaintiff would be the first person so promoted. Later, Lucchese told plaintiff that since plaintiff would be assigned to either New York or Washington, she and her husband would have to relocate.

On December 5, 1986, Lucchese "gave" plaintiff a vacant territory in Philadelphia and assigned her to the Washington office. The promotion was to be effective January 1, 1987 but plaintiff's supervisor requested a postponement until April 1, 1987 so she could find a replacement for plaintiff. Shortly after the December 5th meeting, Lucchese resigned from defendant. Plaintiff concerned about her promotion communicated with the new national sales manager, Tom Heiber. On January 8, 1987, Heiber told plaintiff "All bets are on. Go ahead and look in New York and Washington."

On February 3, 1989, plaintiff again spoke to Heiber who confirmed the April 1, 1987 starting date and a base salary of $25,000 with a $1,000,000 quota. Heiber told plaintiff to look in Boston or Washington. Plaintiff explained that as a result of her previous conversations with Lucchese and himself, her husband had looked for and found a new job in New York and thus she was no longer as flexible in where she was able to relocate. Heiber's response was that he wanted her to report to either John DelFavero in Washington or George Wiseman in Boston because Bradley in New York was a "male chauvinist". Deposition of Barbara Kump, p. 59. He also told her that she should complete the sale of her house in Chicago.

On March 16, 1987, plaintiff had another meeting with Heiber. At this meeting, Heiber stated that a sales person position in the upstate New York area was open. He also stated that the company had created a new position in between sales support specialist and account manager, a Technical Sales Support Representative ("TSSR"). Heiber suggested that plaintiff take a TSSR position. At this meeting, he again stated that Bradley was a male chauvinist for whom it would be very difficult to work.

Plaintiff then met with Bradley who told her that the upstate New York position was not open. Following this meeting, plaintiff talked to Heiber who stated that the upstate New York position was open but suggested that she take a TSSR position to gain Bradley's confidence and so Bradley could get used to the idea of a woman sales person. Deposition of Barbara Kump, p. 74.

On March 18, 1987, plaintiff wrote Heiber a letter in which she accepted the account manager position covering the upstate New York area. In response, defendant's vice president of sales, Lloyd Sappington, called plaintiff and told her that the only position open to her was a TSSR position in New York City because he did not want her covering the upstate New York area from New York City.

Plaintiff claims that she was not anxious to accept the TSSR position because she had heard various of the defendant's employees, including the company's president Jim Sole state that Bradley was a male chauvinist who had difficulties dealing with women. However, since she had sold her house and her husband had left his Chicago job for a job in New York, she accepted the TSSR position in New York City in April, 1987.

On November 1, 1987, plaintiff was made account manager for Brooklyn, Queens, and Long Island. As an account manager, plaintiff's sales quota was $500,000. Plaintiff was also required to make ten face to face calls per week, perform 3.5 systems demonstrations per month, make two selling proposals per month with cost qualifications, and plan and conduct one open house for potential prospects once every three months. Company policy allowed only one open house per year for other account managers and other account managers were not required to conduct their own open houses. In early November 1987, she met with Bradley to discuss these requirements. At that time, Bradley explained that he knew she would have trouble meeting these requirements at first but that he expected the numbers would even out over the year.

On February 11, 1988, plaintiff advised Bradley that she was pregnant and would need a maternity leave in June of 1988. At this time, Bradley advised plaintiff that her employment was to be terminated the following day as part of a reduction in force. Plaintiff had not yet made a sale.

DISCUSSION

SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment if it determines that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Second Circuit has explained that "in considering the (summary judgment) motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Company, 804 F.2d 9, 11 (2nd Cir.1986) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The identification of material facts for summary judgment purposes "rests on the substantive law." H.L. Hayden Co. of N.Y. v. Siemens Medical Systems, 879 F.2d 1005 (2nd Cir.1989) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1989)). Here, defendant moves for summary judgment of plaintiff's breach of employment agreement claim, which is governed by New York contract law, and plaintiff's sex and pregnancy discrimination claims, which are based on New York Executive Law § 296.

Contract Claim

Defendant moves for summary judgment of plaintiff's claim of breach of employment agreement on the ground that there was no binding contract obligating defendant to promote plaintiff to an account manager position on April 1, 1987 and if a contract existed, it was orally modified and fully performed as modified.

Defendant bases the argument that no contract existed first, on the supposition that any representations by defendant were merely "suggestions" and as such they were not definite nor certain enough to constitute a contract. Second, these were oral suggestions and, therefore, unenforceable under the Statute of Frauds which requires contracts to be in writing. Third, these oral suggestions required no commitment running from the plaintiff to defendant and therefore lacked consideration.

In response to defendant's first supposition, plaintiff maintains that in October 1986, Al Lucchese made a public announcement that plaintiff was to be promoted to account manager based on her performance and under the pilot project to promote internal employees to the sales staff. Furthermore, in December 1986 and January 1987, the national sales manager, Al Lucchese and Tom Heiber respectively, told her that on April 1, 1987, she would be promoted to one of two possible locations. They also advised her of her salary and her sales quota.¹ Since a trier of fact could find that such promises were sufficiently definite to constitute a contract, believing the plaintiff, they might determine that contract did exist.

In response to defendant's allegation that as an oral agreement, it is unenforceable since it did not comply with the Statute of Frauds, plaintiff points out that the agreement was to be performed in four months and, therefore, is not required to be in writing. Under § 5-701(a)(1) of McKinney's N.Y. Gen'l Obl. Law, an agreement which, by its terms, is to be performed within one year...