Primmer v. Cbs Studios, Inc.

• Decision Date: 08 September 2009
• Docket Number: No. 08 Civ. 9422 (HB).,08 Civ. 9422 (HB).
• Citation: 667 F.Supp.2d 248
• Parties: Erin PRIMMER, Plaintiff, v. CBS STUDIOS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

667 F.Supp.2d 248

Erin PRIMMER, Plaintiff, v. CBS STUDIOS, INC., Defendant.

No. 08 Civ. 9422 (HB).

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

September 8, 2009.

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Christopher E. Murray, Reisman, Peirez & Reisman, L.L.P., Garden City, NY, for Plaintiff.

Laura Sack, Roy Pinchus Salins, Kauff McGuire & Margolis LLP, New York, NY, for Defendant.

OPINION & ORDER

HAROLD BAER, JR., District Judge.

On November 3, 2008, Plaintiff Erin Primmer ("Primmer" or "Plaintiff") filed a Complaint against Defendant CBS Studios, Inc. ("CBS" or "Defendant") alleging that her employment as a television producer on the "Montel Williams Show" was terminated in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., New York State Executive Law § 296 ("NYSHRL") and the Administrative Code of the City of New York §§ 8-107.16, 8-107.73 and 8-107.15(a) ("NYCHRL"). Specifically, Primmer alleges that CBS terminated her employment based on discriminatory animus as a result of her having suffered a brain aneurysm in March 2007. CBS now moves for summary judgment on all of Primmer's claims. CBS has filed a concomitant motion to strike certain portions of the affidavits of Primmer and her attorney Christopher Murray, submitted in opposition to the motion for summary judgment, as well as certain portions of Primmer's Local Rule 56.1 Statement. For the reasons set forth below, Defendant's motions are denied.

I. FACTUAL BACKGROUND¹

Primmer began her employment as a Producer for the Montel Williams Show during Season 15 of the show in August 2005. Primmer was responsible for producing one one-hour show each week, which included "everything, from conception to completion" of the episode. Specifically, in carrying out her job duties, Primmer pitched show ideas for approval by Montel Williams ("Williams"), wrote the script for the show, wrote "pre-interview" notes that related to each guest so that Williams would be prepared to meet the guest on-the-air, briefed each guest, and briefed Williams as to what each guest would say on each show. In developing a pitch for a show idea, Primmer was responsible for drafting a "focus," or an outline that defined the reason for the show, its relevance and what the show would entail. When Primmer was first hired, her supervisor was Executive Producer Diane Rappaport ("Rappaport"). In late 2005, Susan Henry ("Henry") and Kimberly Forman-Brechka ("Forman-Brechka") were promoted to Co-Executive Producers and replaced Rappaport as Primmer's direct supervisors. Although Williams had ultimate creative control over the content of the show and had creative input on each individual episode, during Season 16, CBS executive Alexandra Jewett ("Jewett") became involved in the creative aspects of the show.

CBS contends, based on the deposition testimony of Williams and others, that Primmer's work product during Season 15 was sub-par. E.g., Defendant's Local Rule 56.1 Statement ("Def.'s 56.1 St.") ¶¶ 13-20. Primmer vehemently disputes these characterizations of her work, and attests that "at no time were any complaints with regard to [her] work performance communicated to [her]." Affidavit of Erin Primmer ("Primmer Aff.") ¶ 5; see also id. at ¶¶ 7-8. Indeed, by letter dated September 19, 2005, an executive in charge of production of the Montel Williams Show wrote on Primmer's behalf that "her prospects for continued employment and advancement are excellent." Primmer Aff. Ex. B. However, by May 2006, Primmer herself noted that it had "been a challenging year for [her] with [Forman-Brechka] and even with [Williams]." Declaration of Laura Sack ("Sack Decl.") Ex. J.

Ultimately, Primmer's contract was renewed for Season 16 with a 6% increase in salary. Under the contract, Primmer's employment was on a season-to-season basis, without a guarantee of continued employment for any subsequent season. Primmer understood that CBS was not obligated to offer her continued employment on any subsequent seasons of the Montel Williams Show. During the hiatus between Seasons 15 and 16, Williams and the executive producers denied Primmer's request for a promotion to Senior Producer for Season 16. Defendant contends that Williams and other producers continued to experience problems with Primmer's work performance during Season 16, e.g., Def.'s 56.1 St. ¶¶ 38-46, 65, a fact Primmer vehemently disputes. See Primmer Aff. ¶¶ 12-13. Although CBS contends that Williams communicated to Henry that he wanted to terminate Primmer's employment as early as October 2006, Henry testified that she was not informed of the decision to terminate Primmer until approximately January 30, 2007. See Def.'s 56.1 St. ¶ 54; Deposition of Susan Henry ("Henry Dep.") 44:7-16.

On January 30, 2007, the producers of the Montel Williams Show participated in a pitch meeting to prepare for the February sweeps event. Each producer was asked to present fully-fleshed out ideas at the meeting so that the February sweeps² could be planned out. Accordingly, each producer was expected to come to the meeting prepared to discuss topics and the data to support the topics. Primmer understood that, because CBS was scrutinizing the Montel Williams Show at the time, everyone was trying to "put their best foot forward" in their performance. After the January 30 meeting, Henry and Forman-Brechka warned Primmer that Williams was unhappy with her presentation at the meeting and that her ideas were not "up to par." Henry and Forman-Brechka further informed Primmer that they were dissatisfied because the ideas she had pitched at the meeting had not been as detailed as they had expected. At their request, Primmer submitted revised versions of the ideas she had presented at the meeting. While CBS contends that Primmer's work did not improve, Def.'s 56.1 St. ¶ 92, Primmer disputes this fact, attesting that it was her understanding that Henry and Forman-Brechka were satisfied with her performance after she submitted her revised thoughts.

CBS contends that Williams communicated his desire for Primmer's employment to be terminated immediately following the January 30 pitch meeting. Def.'s 56.1 St. ¶ 94. However, Primmer was not terminated at that time. CBS executives testified that the reason for their failure to terminate her at the time was that pursuant to her contract, if she were to be terminated before a certain date, CBS would be required to pay her out for a designated number of weeks, which the network was apparently unwilling to do. See Def.'s 56.1 St. ¶¶ 98-104. Accordingly, Primmer continued to work on the Montel Williams Show through the spring of 2007.

On March 29, 2007, Primmer suffered a brain aneurysm³ and was rushed to the hospital for emergency surgery. After being released from the hospital two and a half weeks later, Primmer returned to the Montel Williams Show on several occasions, though she did not return to work full time as of yet because she had not yet been cleared to return. CBS continued to pay Primmer's salary through the end of Season 16 and did not deduct from her accrued vacation time for the time she was on leave. Primmer was cleared by her physicians to return to work by the beginning of Season 17. However, in May 2007, before Season 17 began, Henry called a meeting with Primmer. During that meeting, Henry and Primmer discussed Primmer's aneurysm, and Henry informed Primmer that they were sorry but they could not renew Primmer's contract for Season 17 because they needed "someone at the top of their game" and someone "who could handle the pressure." Primmer's employment therefore was terminated as of the end of Season 16. The Montel Williams Show was cancelled after Season 17.

II. MOTION TO STRIKE

CBS has moved to strike certain paragraphs of Primmer's Response to its Local Rule 56.1 Statement and the affidavits of Primmer and Murray submitted in opposition to CBS's summary judgment motion. CBS offers various reasons for the referenced portions of the documents to be stricken, including that they contain legal argument and conclusory statements, are not based on personal knowledge, contain inadmissible hearsay, and/or contradict Primmer's previous deposition testimony. CBS also argues that Primmer's affidavit contains improper characterizations of evidence and makes unwarranted inferences from such evidence.

Defendant's motion to strike the referenced portions of Primmer's Response to its Rule 56.1 Statement based on her failure to support certain contentions with citation to the record or to specifically admit or deny certain assertions is denied. This Court has broad discretion to accept Primmer's 56.1 counterstatement, even if it does not comply strictly with the Rule's requirements. See Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 155 n. 2 (2d Cir.2003); Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (finding "while a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record," even where a party fails to comply with the local rules) (internal quotation marks and citations omitted).

With respect to the challenged portions of the affidavits, Rule 56(e) of the Federal Rules of Civil Procedure states that affidavits filed in connection with a summary judgment motion "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Accordingly, "[a] court may . . . strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.1999) (emphasis added). However, nothing in the Federal Rules or the Local Rules...