Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP
| Decision Date | 19 June 2012 |
| Docket Number | No. 09 Civ. 9662.,09 Civ. 9662. |
| Court | U.S. District Court — Southern District of New York |
| Parties | Roseanne ZITO, Plaintiff, v. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP, Defendant. |
OPINION TEXT STARTS HERE
DeLince Law PLLC, by: J. Patrick DeLince, Esq., New York, NY, for Plaintiff.
Proskauer Rose LLP, by: Bettina B. Plevan, Esq., Marc A. Mandelman, Esq., New York, NY, for Defendant.
Defendant Fried, Frank, Harris, Shriver and Jacobson, LLP (“Fried Frank” or the “Defendant”) has moved pursuant to Rule 56(b) of the Federal Rules of Civil Procedure for summary judgment dismissing the first amended complaint (the “Complaint”) of the plaintiff Roseanne Zito (“Zito” or the “Plaintiff”) alleging claims for age, gender and disability discrimination and retaliation. Upon the facts and conclusions set forth below, the motion is granted, and the Complaint is dismissed.
Zito filed her initial complaint on October 22, 2009 and her Complaint on March 1, 2010 alleging unlawful discrimination and disparate treatment against her based on age, gender and disability, in addition to retaliation therefrom, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (the “ADEA”), the Americans with Disabilities Act of 1990, as codified and amended at 42 U.S.C. §§ 12112–12117 (the “ADA”), and the New York State and City Human Rights Law (“NYSHRL” and “NYCHRL”) arising out of her termination as Evening Secretarial Supervisor by Fried Frank on August 18, 2008.
Discovery proceeded and the instant motion was heard and marked fully submitted on February 1, 2012.
The facts were set forth in the Defendant's Statement and attached exhibits, pursuant to Local Rule 56.1, and the Plaintiff's Counter Statement of Disputed Facts and attached exhibits, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 51(b), and are not in dispute except as noted below.
Zito was born on September 24, 1951. On March 23, 1981, she was hired by Fried Frank, a large international law firm with approximately 550 attorneys worldwide. Zito began her employment as a secretary on the day shift and in 1994, she requested and received a transfer to the night shift.
In September 1998, Zito was promoted to Evening Secretarial Supervisor, the position she maintained until her discharge in 2008. The Secretarial Services department had 7 supervisors who covered various shifts. The evening shift had two supervisors, Zito and Maria Rosario (“Rosario”), the Evening Word Processing Supervisor. During her tenure, Zito reported to Kathy Alcott (“Alcott”), the Director of Secretarial Services, who was born on July 3, 1954, and Liz Hudson (“Hudson”), the Manager of the second evening shift.
Zito's primary responsibility as the Evening Secretarial Supervisor was assigning and coordinating evening secretarial assignments. Her other responsibilities included processing document requests, making conference room reservations, responding to any security issues and providing assistance to Fried Frank's midtown conference center. At her request, Zito was also given permission to complete written performance evaluations for those employees who she supervised.
When Zito first became the Evening Secretarial Supervisor in 1998, she was responsible for coordinating staffing for 30 to 40 attorney requests for evening secretarial staffing each night. Over the years, attorney work habits changed, and attorneys became more computer literate. By October 2005, the number of evening secretarial desk assignments requested by attorneys at night was two to three assignments per night.
According to Fried Frank, little work needed to be done to assign and supervise the evening secretarial staff. This contention is denied by Zito, who argues that other secretarial and mini-center assignments required permanent assignments that were unaffected by attorney computer habits. According to Zito, she maintained the responsibility for staffing approximately seven to ten assignments per evening for these assignments. In addition, as the Evening Secretarial Supervisor, Zito supervised approximately 19 individuals (13 were permanent and six were hourly employees). Despite the decline in the individual attorney assignments, Zito maintains that she supervised the busiest shift.
In October 2005, amidst rumors that Hudson may retire soon, Zito sent Alcott an email memo expressing her concern over her future role at the firm and her work assignments. Zito wrote that, She also noted that Zito admitted “feeling a sense of insecurity” and suggested that she “either assume more administrative responsibilities or reinforce my secretarial skills.”
Zito is a recovering alcoholic and has been sober since May 1993, when she was working as a secretary during the day shift.
On May 26, 1993, Zito went to lunch at noon and, without authorization, failed to return to work that day. At approximately 2:15 p.m., a unidentified man called Fried Frank personnel stating that he was taking Zito to Bayridge Hospital.
The next day, Zito called the message desk and left a message stating that she would not be in. At approximately 10 a.m., Zito called and spoke with Alcott, stating that she had no recollection of what happened the prior day. Zito explained that she went to lunch with a man she had met the previous week, and he was supposed to drive her back to work after their meal but did not. Alcott asked several times where the man took her, but Zito responded each time, “I don't know” and that she felt powerless. Zito stated that the man finally took her back home in the evening, but had no recollection of where he had taken her during the day. Alcott recalls that Zito began crying at this point and said, “I have an alcohol problem.”
Zito testified that on May 28, 1993, upon returning from work, she met with Alcott and Gwen Robinson (“Robinson”), Fried Frank's Human Resources Manager. Zito was not disciplined for failure to return to work, but was told that her job was at stake if her behavior continued. As per firm's policy, Fried Frank supported Zito in her recovery and referred her to the Employee Assistance Program.
Zito testified that she attended a rehabilitation program for four weeks. By affidavit in opposition, Zito stated that she attended biweekly meetings and continued Alcoholic Anonymous attendance for a year. After the incident in May 1993, there were no further incidents at work relating to Zito's alcoholism.
On April 28, 2008, Zito broke a toe on her right foot and took a leave of absence pursuant to the Family and Medical Leave Act (the “FMLA”) from April 28, 2008 through June 2, 2008 due to her toe injury.
During her five week leave of absence, Zito claims to have received two telephone calls from Alcott. Zito testified that Alcott first called her approximately two weeks after her leave of absence began to inquire how she was feeling. Zito advised Alcott that she had broken her toe when she slipped on water spilled on new tiles in her basement. Zito testified that she received a second call from Alcott, in which Alcott advised her that her salary continuation payments may be affected while she was on a leave of absence because Zito had not returned the disability paperwork from her doctor. By affidavit, Zito stated that Alcott told her she would not be receiving salary continuation payments.
During her leave of absence, Zito was also in email contact and telephone contact with Toni Frobuccino (“Frobuccino”), Fried Frank's Benefits Manager. Frobuccino explained to Zito, the firm's policies and procedures for taking a leave of absence. At Fried Frank, salary continuation benefits during a leave of absence are dependent upon, among other things, receipt of approximate disability documentation and review and approval by the firm's insurance carrier. Fried Frank's FMLA policy also requires that employees return certification forms for a leave of absence within 15 days. Frobuccino advised Zito that the timely return of the disability forms was required to allow Fried Frank's insurance carrier time to review the forms prior to the continuation of salary benefits.
Zito testified that she did not return the required forms within 15 days. By affidavit in opposition, Zito stated that the delay resulted because Fried Frank had given her doctor an incorrect fax number. As of May 21, 2008, Zito had not returned the required disability forms although she had provided emergency room records and contact numbers for her physician. Zito testified that she received her salary continuation benefits after she returned to work.
Frobuccino left Zito voicemail messages about returning the required forms. By affidavit in opposition, Zito stated that Frobuccino relayed that the deadline was May 2, 2008, but that she did not receive the documentation until May 23, 2008 when it was sent by Federal Express.
While Zito was on a leave of absence, Rosario, the Evening Word Processing Supervisor, was also on a leave of absence. According to Fried Frank, Rosario took a medical leave of absence pursuant to the FMLA from March 2008 until June 2008. According to Zito, she was on worker's compensation leave.
During Zito's and Rosario's leaves of absence, there was no supervisor on duty during the evening shift, although Hudson was the manager on duty. By affidavit in opposition,...
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