Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP
869 F. Supp. 2d 378
S.D.N.Y.2012Background
- Zito, born September 24, 1951, was hired by Fried Frank in 1981 and became Evening Secretarial Supervisor in 1998.
- Her duties included coordinating evening staff, assigning desk work, and supervising about 19 employees; she did not supervise after 2008 reductions.
- In 2008 Fried Frank faced economic downturn and planned a reductions-in-force (RIF); Alcott, as Director of Secretarial Services, led the RIF process in New York.
- Zito was terminated on August 18, 2008 as part of the RIF, at age 57 with a base salary of $74,000; no male employees in similar roles were terminated in the RIF.
- Plaintiff had a prior history with alcoholism and a 1993 incident; she was sober since 1998 and did not have workplace incidents after that period.
- Zito filed a charge with the EEOC on October 21, 2008 alleging disability discrimination and retaliation; the EEOC issued a Notice of Right to Sue in 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether age and gender claims were exhausted or related | Zito contends claims are reasonably related to disability claim in EEOC charge. | No, EEOC charge alleged only disability; age/gender not reasonably related. | No exhaustion; age/gender claims dismissed. |
| Whether McDonnell Douglas framework supports discrimination claims | Zito asserts prima facie case of discrimination based on age/gender with RIF. | Defendant shows legitimate, non-discriminatory reasons; Plaintiff cannot show pretext. | Claims fail under McDonnell Douglas; no pretext shown. |
| Whether there is a prima facie case for failure to promote | Zito sought Hudson's position but promotion not offered; age/disability alleged. | Promotion not available during relevant period; no failure to promote. | Failure-to-promote claim not established. |
| Whether retaliation claim under FMLA and ADA survive | Termination followed FMLA leave and alleged relapse framing; challenged as retaliation. | Termination was due to RIF; no causal link shown to protected activity. | Retaliation and ADA claims dismissed. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must show plausible claim, not mere speculation)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination claims)
- Parcinski v. Outlet Co., 673 F.2d 34 (2d Cir. 1982) (employer need only show legitimate, non-discriminatory reason)
- Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219 (2d Cir. 1994) (circumstantial evidence may show discrimination when direct proof lacking)
- Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) (caution about granting summary judgment in discrimination cases)
- Bay v. Times Mirror Magazines, Inc., 936 F.2d 112 (2d Cir. 1991) (retention of older employees can negate inference of pretext)
- Campbell v. Alliance Nat’l Inc., 107 F. Supp. 2d 234 (S.D.N.Y. 2000) (isolated remarks by non-decision makers insufficient to prove discrimination)