Cornell University ILR School DigitalCommons@ILR ADAAA Case Repository Labor and Employment Law Program 9-4-2009 Erin Primmer, Plaintiff, -against- CBS Studios, Inc., Defendant. Judge Harold Baer Jr. Follow this and additional works at: https://digitalcommons.ilr.cornell.edu/adaaa Thank you for downloading this resource, provided by the ILR School's Labor and Employment Law Program. Please help support our student research fellowship program with a gift to the Legal Repositories! This Article is brought to you for free and open access by the Labor and Employment Law Program at DigitalCommons@ILR. It has been accepted for inclusion in ADAAA Case Repository by an authorized administrator of DigitalCommons@ILR. For more information, please contact [email protected]. If you have a disability and are having trouble accessing information on this website or need materials in an alternate format, contact [email protected] for assistance. Erin Primmer, Plaintiff, -against- CBS Studios, Inc., Defendant. Keywords Erin Primmer, CBS Studios Inc., 08 Civ. 9422 (HB), Summary Judgment, Disparate Treatment, Termination, Traumatic Brain Injury, Working, Disability - Regarded as Having a Disability, Media, Employment Law, ADAAA This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/120 USDS SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #:___________________ ---------------------------------------------------------------x DATE FILED: ERIN PRIMMER, Plaintiff, 08 Civ. 9422 (HB) -against- OPINION & ORDER CBS STUDIOS, INC., Defendant. --------------------------------------------------------------- x Hon. HAROLD BAER, JR., United States 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 BACKGROUND' 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 1 On summary judgment, all inferences must be drawn in favor on the non-moving party. See Anderson v. Liberty Lobby, Inc., A ll U.S. 242, 255 (1986). Accordingly, unless otherwise indicated, this section is based on Plaintiff’s Response to Defendant’s Rule 56.1 Statement. 1 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 (“Rappaporf’). 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 Aflf.”) f 5; see also id. at ff 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- 2 fleshed out ideas at the meeting so that the February sweeps2 3 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 aneurysm 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 2 November, February and May are “sweeps” months. During the sweeps event, advertising rates are set for the following period, so “shows generally try to put their best foot forward and get the highest ratings they can.” Def.’s 56.1 St. K 59-60. The higher a show’s ratings during sweeps, the more advertising dollars it can attract. 3 A cerebral aneurysm is a bulging weakness in the wall of an artery that supplies blood to the brain. In most cases, a cerebral aneurysm has no symptoms. In rare cases, the aneurysm can rupture, releasing blood into the skull and sometimes causing stroke. Such a rupture in a brain aneurysm is called a subarachnoid hemorrhage. Depending on the severity of the hemorrhage, brain damage or death may result. See generally Jonathan L. Brisman, M.D., et al., Cerebral Aneurysms, 355 NEW ENGL. J. Med. 928 (Aug. 31, 2006). In this case, there is no evidence in the record to show the extent or severity of Primmer’s brain aneurysm.