UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

ESTER LORUSSO, 

Plaintiff, Case No. 07 CV 3583 (LBS)(RLE) 

-againstALITALIA-LINEE AEREE ITALIANE SpA, 

Defendant. 

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF 

DEFENDANT ALITALIA-LINEE AEREE ITALIANE SpA’S 

 MOTION FOR SUMMARY JUDGMENT 

Alan M. Koral (AK-1503) 

Daniel C. Green (DG-0059) 

VEDDER PRICE P.C. 

1633 Broadway, 47th Floor 

New York, New York 10019 

(212) 407-7700 

Attorneys for Defendant 

Alitalia-Linee Aeree Italiane SpA

 

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TABLE OF CONTENTS 

Page 

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PRELIMINARY STATEMENT .....................................................................................................1 

PLAINTIFF’S ADDITIONAL FACTUAL ALLEGATIONS........................................................3 

ARGUMENT ............................................................................................................................5 

POINT ONE THE UNDISPUTED FACTS SHOW THAT PLAINTIFF’S 

PROMOTION TO MANAGING DIRECTOR OF GA 2000 WAS 

NOT AN ADVERSE ACTION.........................................................................5 

POINT TWO PLAINTIFF HAS FAILED TO RAISE AN INFERENCE OF 

DISCRIMINATORY INTENT AS TO ANY ACTION TAKEN 

TOWARDS HER...............................................................................................7 

POINT THREE PLAINTIFF HAS FAILED TO RAISE AN INFERENCE OF 

RETALIATORY INTENT AS TO ANY ACTION TAKEN 

TOWARDS HER...............................................................................................9 

CONCLUSION ..........................................................................................................................10 

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TABLE OF AUTHORITIES 

Page 

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Cases

Giannone v. Deutsche Bank Sec., Inc., 392 F. Supp.2d 576 (S.D.N.Y. 2005)............................... 9 

Laverack & Haines, Inc. v. NY State Div. of Human Rights, 88 N.Y.2d 734, 

650 N.Y.S.2d 76, 673 N.E.2d 586 (1996) ................................................................................ 10 

Morser v. AT&T Information Systems, 703 F. Supp. 1072 (S.D.N.Y. 1989)................................ 8 

Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70 (S.D.N.Y. 1992)............................ 8 

Tarshis v. Riese Organization, 195 F.Supp.2d 518 (S.D.N.Y. 2002)........................................... 10 

Case 1:07-cv-03583-LBS-RLE Document 31 Filed 06/19/2008 Page 3 of 14
Defendant Alitalia–Linee Aeree Italiane SpA (“Defendant” or “Alitalia”), by its attorneys

Vedder Price P.C., submits this reply memorandum of law in further support of its motion, 

pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing 

the Complaint of Ester Lorusso (“Plaintiff” or “Lorusso”), on the ground that the undisputed 

facts in the record preclude Lorusso from establishing the requisite elements of any of her claims

against Defendant. 

PRELIMINARY STATEMENT

Lorusso has asserted three claims under the New York City Human Rights Law: 

1) gender discrimination (First Cause of Action); 2) age discrimination (Second Cause of 

Action); and 3) retaliation (Third Cause of Action). She apparently acknowledges that certain of 

the events raised in her Complaint cannot legally constitute adverse employment actions, and has 

thus narrowed her contentions to “two adverse employment actions: (a) her transfer in

August/September 2004 to GA 2000... and (b) her 2007 termination from Alitalia” 

(Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment (the 

“Opposition”) pp. 3, 24). Alitalia previously demonstrated in its moving papers that, to the 

extent that Lorusso’s claims spring from her promotion to Managing Director of Alitalia

subsidiary GA 2000, they must fail as a matter of law because, far from suffering an adverse

employment action, she received an enhanced title and a salary increase of more than $25,000 

(see Memorandum of Law in Support of Defendant Alitalia-Linee Aeree Italiane SpA’s Motion 

for Summary Judgment (the “Moving Memorandum”) pp. 14-15). In fact, despite its widelyreported deepening financial crisis, this was but one in a series of executive positions that 

 

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Alitalia provided to Lorusso in order to avoid laying her off, over a period during which it was 

forced to eliminate nearly two-thirds of its New York employees.1

In an effort to salvage her claims, Lorusso’s Opposition alleges comments by two Alitalia 

executives which she claims establish that they actually intended to eliminate GA 2000 at some

point prior to the promotion. The Opposition further identifies a number of alleged biases by the 

same two executives which Lorusso contends evidence their discriminatory intent towards her. 

None of these alleged actions raises an issue of material fact or otherwise warrants denial of 

summary judgment to Alitalia. 

As established in Alitalia’s Moving Memorandum, the lone bona fide adverse 

employment action that Lorusso ever suffered was her ultimate termination by Alitalia in

January 2007 (see Moving Memorandum pp. 14-15, 17-18). The alleged intentions of two 

executives to eliminate GA 2000 at a certain point does not create a material disputed issue that 

they possessed such intentions at the time of Lorusso’s promotion to Managing Director of that 

subsidiary (see Point One, infra). The allegations that Lorusso claims evidence discriminatory 

intent involve biases allegedly expressed two-and-a-half years or more prior to her termination 

by two executives unconnected to the decision to terminate her (see Point Two, infra). Finally, 

Lorusso has failed to identify any evidence whatsoever suggesting that her termination was 

retaliatory or that it was informed by any motivation other than the critical need to respond to 

Alitalia’s ever-deepening financial crisis (see Point Three, infra). Lorusso has thus failed to

adduce facts necessary to state a prima facie case as to any of her claims, much less to identify

 

1

 Over the course of the three years from December 31, 2003 to December 31, 2006, Alitalia 

reduced its presence in New York from 130 employees to 58, and it reduced its presence by a 

further 10 employees over the course of the next year (see the Statement of Uncontested Material 

Facts in Support of Alitalia’s Motion For Summary Judgment ¶ 6). 

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material factual disputes that create a triable issue as to the legitimacy of Alitalia’s 

nondiscriminatory business reasons for taking the various employment actions that Lorusso 

dislikes. 

PLAINTIFF’S ADDITIONAL FACTUAL ALLEGATIONS

In an effort to establish that her promotion to Managing Director of GA 2000 constituted

an adverse employment action, Lorusso has obtained an affidavit from Gabriele M. Mariotti 

(“Mariotti”), a former Alitalia executive, who carefully alleges that: 

As a member of senior management, I frequently participated in management

meetings at the New York Office with Giulio Libutti and Pierandrea Galli and GA 

2000 was discussed on occasion.... In 2003 and 2004, Mr. Libutti and Mr. Galli 

stated in my presence that they intended to close GA 2000. These statements 

were made before Ester Lorusso was transferred to work in GA 2000 in late 2004. 

(Affidavit of Gabriele M. Mariotti ¶¶ 3-4, at Exhibit H to the Declaration of Robert Ottinger (the 

“Ottinger Declaration”); referred to at Opposition pp. 21-23). 

Lorusso also identifies three alleged expressions of bias made by Alitalia executives

which she contends raise questions of fact as to Alitalia’s motives for making various

employment decisions pertaining to her. All three of these allegations are introduced via hearsay 

testimony, and two are purely conclusory in nature. Alitalia disputes that the testimony on which 

they are based is accurate but, even assuming their admissibility, they are insufficient to salvage 

Lorusso’s claims, as demonstrated below. The three allegations are as follows: 

1. Alitalia’s former Senior Vice President for Corporate Affairs, Francesco Gallo (“Gallo”), 

claims to have been “caucusing with” Alitalia’s former Senior Vice President for North

America, Giulio Libutti (“Libutti”) and Libutti’s Supervisor, Pierandrea Galli (“Galli”),

“about how to eliminate Ester Lorusso” in 2004. The “main reason” for their desire to 

“fire” Lorusso, according to Gallo, was that “Ester [Lorusso] was reaching her 50th 

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birthday2

 and there was a program to substitute as much as possible old people at 

Alitalia...”3

 (January 7, 2008 Gallo Deposition pp. 16-17, at Exhibit D to the Ottinger 

Declaration; referred to at Opposition pp. 5-6). 

2. Alitalia’s former Human Resources Director, Andrea Sciarresi (“Sciarresi”), claims that 

in August of 2004, Libutti “wanted to make a reorganization plan in order to fire the old 

people in the company and replace them with young people, new, appoint or maybe 

promoting new manager in the company” and that: 

Mr. Libutti wanted to move Ester Lorusso because he wanted 

Mrs. Lorusso out of the company, out of the organization plan, the 

organization chart of Alitalia. So he wanted to move her to GA 

2000, promoting her with the position of managing director of GA 

2000.4

(April 18, 2008 Sciarresi Deposition pp. 8-9, 11, at Exhibit G to the Ottinger Declaration;

referred to at Opposition pp. 5-6).5

 Notably, Sciarresi does not suggest that Libutti ever 

evinced any intention of firing Lorusso or, indeed, that Libutti’s ambition to “fire the old

people” was ever attempted, much less realized. 

 

2

 In fact, Lorusso was not nearing her 50th birthday in 2004; she was born in 1957, making her

just 47 years old at that time (see Complaint, annexed to the Notice of Motion, ¶¶ 1, 8 & 10). 

3

 Lorusso argues that these purported statements “raise issues of fact” because they were made 

“at a time that Libutti was engaged in cost-cutting efforts at Alitalia, including reducing the 

number of employees” (Opposition p. 2). However, as elaborated upon infra, Lorusso was 

unaffected by this reduction in force, retaining her employment with Alitalia for a further twoand-a-half years. 

4

 Sciarresi’s testimony also ascribes an alternate and nondiscriminatory motivation to Libutti in 

promoting Lorusso out of his direct line of supervision: “[Libutti] told me [Sciarresi] that he

didn’t like her [Lorusso] because she often wasn’t in line with his way of thinking and his

orders” (April 18, 2008 Sciarresi Deposition pp. 13-14, at Exhibit G to the Ottinger Declaration). 5

 Lorusso mis-cites pages 13-15 of the transcript of Libutti’s January 21, 2008 deposition in

support of this claim (see Opposition p. 6; deposition pages at Exhibit E to the Ottinger 

Declaration); those pages do not contain any admissions from Libutti regarding this alleged 

reason for Lorusso’s promotion and are, instead, simply a description of his role within Alitalia’s

North American management structure. 

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3. Finally, Sciarresi alleges that Libutti told him, also in August 2004, that “[H]e wasn’t 

comfortable with a woman in high position” (April 18, 2008 Sciarresi Deposition p. 12, 

at Exhibit G to the Ottinger Declaration; referred to at Opposition pp. 5-6). 

ARGUMENT

POINT ONE 

THE UNDISPUTED FACTS SHOW THAT PLAINTIFF’S PROMOTION

TO MANAGING DIRECTOR OF GA 2000 WAS NOT AN ADVERSE ACTION

As demonstrated in Alitalia’s Moving Memorandum, Lorusso’s elevation to Managing 

Director of GA 2000 was inarguably a promotion and therefore cannot constitute an adverse 

action as a matter of law, regardless of how she chooses to characterize it (see Moving 

Memorandum pp. 4-6, 14-15). Lorusso now attempts to establish—through Mariotti’s 

affidavit6

—that “there is a material issue of fact” as to whether Alitalia effected this promotion 

with the intent of eliminating GA 2000 (Opposition pp. 21-23). Mariotti is careful, however, not 

to suggest that either Libutti or Galli evinced an intention to terminate Lorusso through

promoting her to a doomed subsidiary in any of his frequent meetings with them or, indeed, that 

they wanted to terminate her at all, let alone for discriminatory reasons. 

Even accepting Mariotti’s allegations as true, they are not sufficient to raise an issue of 

fact as to whether Alitalia’s management intended to eliminate GA 2000 at the time of Lorusso’s

promotion to Managing Director. Rather, it is undisputed that on or around July 6, 2004—just 

over a month before Lorusso’s promotion—Libutti and Galli signed a memorandum describing 

the continuing viability of GA 2000, which recorded sales of $25 million in 2002 and was 

“currently subject to re-launch initiatives,” which were generating considerable further 

 

6

 Lorusso never sought to depose Mariotti or, indeed, suggested to Alitalia that she believed him 

to have any knowledge regarding the company’s plans for GA 2000, and so Alitalia has never 

had the opportunity to examine him on this point. 

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improvement (in contrast to another Alitalia subsidiary, whose closure they indeed recommend 

in that memorandum)

7

 (memorandum and certified translation of same annexed as Exhibit R to 

the previously filed Declaration of Alan M. Koral (the “Koral Declaration”)). Consequently, 

even if Libutti or Galli did evince an intention to close GA 2000 in 2003 or at some earlier point 

in 2004, as Mariotti claims, the record is clear that they did not hold that view in July 2004. 

Moreover, Libutti and Francesco Gallo (then GA 2000’s president) both testified at deposition

that they were unaware of any plan to close GA 2000 at the time of Lorusso’s promotion and 

were, in fact, enthusiastic about the subsidiary and Lorusso’s prospects there (January 7 Gallo

Deposition pp. 27, 101, 128-29, at Ex. H to Koral Declaration; January 21 Libutti Deposition

pp. 49-50, 52, at Ex. B to Koral Declaration). Lorusso has thus failed to introduce any evidence 

creating a factual dispute as to Alitalia’s plans for GA 2000 at the time of her promotion (much

less that Lorusso’s promotion was effected with discriminatory intent), and that promotion 

therefore cannot be construed as an adverse action. 

POINT TWO 

PLAINTIFF HAS FAILED TO RAISE AN INFERENCE OF

DISCRIMINATORY INTENT AS TO ANY ACTION TAKEN TOWARDS HER

Lorusso attempts to raise an inference of discriminatory intent by pointing to allegations 

by Gallo and Sciarresi of a desire on the part of Libutti and/or Galli in 2004 to terminate “old 

people”. Lorusso has also offered an alleged statement by Libutti that he “wasn’t comfortable 

with a woman in high position”. However, the statements in question were all made no later

 

7

 Lorusso notes a subsequent Galli memorandum, dated September 2005 (a year after Lorusso’s 

promotion), in which Galli noted that GA 2000 had had “Major difficulties even with regard to 

breaking even” (Opposition p. 7, fn.3; memorandum and certified translation of same annexed as 

Exhibit P to Ottinger Declaration). However, the same memorandum notes that although “the 

making of profits” was not GA 2000’s “primary target,” the subsidiary still returned to 

profitability in 2004, the final quarter of which marked Lorusso’s appointment as Managing 

Director. 

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than August of 2004, and (as demonstrated at Point One, supra), Lorusso did not experience any 

adverse action until nearly two-and-a-half years later, when she was terminated in January 2007. 

More importantly, the record is undisputed that neither Libutti nor Galli was involved in the 

decision to terminate her in 2007. 

The sole decision-maker was Marco D’Ilario (“D’Ilario”), then Alitalia’s Head of 

International Cargo Sales, and—as already demonstrated through the submission of 

contemporaneous e-mails and D’Ilario’s own uncontroverted testimony—that decision came

within the context of a worldwide reduction in force in Alitalia’s Cargo Division that resulted in

the elimination of seven other positions in North America and fifty positions worldwide (see

Moving Memorandum pp. 11, 23-24; the Statement of Uncontested Material Facts in Support of 

Alitalia’s Motion For Summary Judgment ¶¶ 39-42; March 14, 2008 Affidavit of Marco D’Ilario

¶¶ 1-3). Lorusso has offered no evidence whatsoever that could support an inference of 

discriminatory intent on D’Ilario’s part—indeed, she simply ignores his role—and consequently, 

to the extent that her claims spring from her ultimate termination by Alitalia (or from any 

purported discriminatory intent on the part of Libutti or Galli), they must be dismissed. 

Lorusso has further attempted to raise an inference of discrimination by noting that, upon 

the elimination of her position as Director of Marketing for Alitalia’s Passenger Division in

2004, “[s]ome of her responsibilities were redistributed to younger women, Lisa Del Percio, who 

is in her early 30s, and Francesca Forte, who is in her mid 30s”8

 as well as to a “male employee, 

Timothy O’Neill, and his staff” (Opposition pp. 5, 23-24). Setting aside the fact that the 

 

8

 As demonstrated by deposition testimony, both individuals were very low-level employees: 

neither was a manager; Del Percio was an administrative assistant; and Forte was “a junior clerk” 

(Lorusso Deposition pp. 202-205, annexed at Exhibit A to the Koral Declaration; January 21, 

2008 Libutti Deposition pp. 50-51, 77, annexed at Exhibit B to the Koral Declaration). Neither 

individual “replaced” Lorusso as Director of Marketing. 

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elimination of this position followed Lorusso’s promotion to Managing Director of GA 2000, the 

law is still clear that reassignment of a former employee’s duties to other employees does not 

suffice to establish that he or she has been “replaced,” as would be necessary to raise an 

inference of discrimination. Suttell v. Manufacturers Hanover Trust Co., 793 F. Supp. 70, 73 

(S.D.N.Y. 1992) (“[t]he fact that other employees are handling the [duties] previously covered 

by [former employee] does not indicate that [former employee] was ‘replaced’ but merely 

demonstrates that, as in most ‘reduction in force’ cases, the [employer] has been successful in 

reducing the number of employees required to perform certain work”); Morser v. AT&T 

Information Systems, 703 F. Supp. 1072, 1083 (S.D.N.Y. 1989) (employee failed to make out 

even prima facie case of age discrimination, notwithstanding that portion of duties were 

reassigned to younger employee). Lorusso has consequently failed to raise an inference of 

discrimination through the allegations relating to the reassignment of certain of her job duties, or 

through any other evidence. 

POINT THREE

PLAINTIFF HAS FAILED TO RAISE AN INFERENCE OF

RETALIATORY INTENT AS TO ANY ACTION TAKEN TOWARDS HER

Lorusso apparently concedes that, as previously demonstrated by Alitalia (see Moving 

Memorandum pp. 16-17, 19-23), retaliatory motivation would be a factual impossibility as to all 

of the employment actions that she contends are adverse, save for her termination (see

Opposition p. 26). That termination is thus the lone action at issue in her claim for retaliation,

but her Opposition fails to identify facts supporting a causal connection between her protected

activity and her termination, as would be necessary to state a prima facie case, much less to rebut 

Alitalia’s legitimate nondiscriminatory business reasons for terminating her. 

Lorusso has offered only the following conclusory allegation: 

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[A] causal connection exists because Plaintiff’s termination occurred in January 

2007 within just 2-3 months of her most recent allegations of discrimination and 

retaliation in late-September and early-November 2006. 

(Opposition p. 26). However, as demonstrated in the Moving Memorandum (see pp. 24-25), the 

factual record is undisputed that Marco D’Ilario was the sole person responsible for the decision 

to eliminate Lorusso’s position as part of Alitalia’s worldwide reduction in force, and yet none of 

Lorusso’s complaints in 2006 were directed to D’Ilario, he was not the object of any of these

complaints, and Lorusso has adduced no evidence that D’Ilario bore retaliatory animus towards 

her. Indeed, Lorusso has no evidence that D’Ilario was even aware of her complaints. 

Consequently, she cannot establish a prima facie case of retaliation. See Giannone v. Deutsche

Bank Sec., Inc., 392 F. Supp.2d 576, 592 (S.D.N.Y. 2005). 

Even should the Court conclude that Lorusso can establish a prima facie case, the record

is undisputed that the elimination of Lorusso’s position came within the context of a worldwide 

reduction of force in the Cargo Division, pursuant to which 50 positions were eliminated and 

director-level marketing positions were centralized in Rome, in an effort to address the

company’s ongoing financial crisis (see Moving Memorandum, pp. 11, 24-25; the Statement of 

Uncontested Material Facts in Support of Alitalia’s Motion For Summary Judgment ¶¶ 39-42; 

March 14, 2008 Affidavit of Marco D’Ilario ¶¶ 1-3). As discussed in the Moving Memorandum 

(see pp. 17, 24-25) a bona fide reduction in force made in an effort to maintain a deeply troubled 

company’s financial viability is a legitimate non-discriminatory reason for an adverse 

employment action. See Tarshis v. Riese Organization, 195 F.Supp.2d 518, 526 (S.D.N.Y. 

2002) (inability to rebut the legitimate nondiscriminatory reason for “layoff” fatal to 

discrimination claim); Laverack & Haines, Inc. v. NY State Div. of Human Rights, 88 

N.Y.2d 734, 738, 650 N.Y.S.2d 76, 78, 673 N.E.2d 586, 588 (1996) (“[t]he downsizing of a 

company’s employment rolls, due to business failings and economic setbacks, constitutes a 

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sustainable rebuttal and explanation for the decision to terminate a particular employee”). 

Because Lorusso cannot rebut this legitimate non-discriminatory reason for her termination, her 

retaliation claim must be dismissed. 

CONCLUSION

From 2004 to 2007, while Alitalia was in crisis, and reduced the workforce in New York 

from about 130 to under 60, the company gave Lorusso a series of important executive positions

in order to avoid laying her off. She has adduced no evidence whatsoever that any further 

suitable position was available when her final position was eliminated for legitimate reasons. 

She cannot conjure from this history a cognizable claim for discrimination or retaliation. Thus 

Defendant respectfully requests an Order, pursuant to Rule 56, granting its motion for summary 

judgment dismissing the Complaint of Ester Lorusso in its entirety, and granting such other and 

further relief as the Court deems appropriate. 

Dated: New York, New York 

June 19, 2008

VEDDER PRICE P.C. 

By: s/ Alan M. Koral 

Alan M. Koral (AK-1503) 

Daniel C. Green (DG-0059) 

1633 Broadway, 47th Floor 

New York, New York 10019 

(212) 407-7700 

Attorneys for Defendant 

Alitalia–Linee Aeree Italiane SpA

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

ESTER LORUSSO, 

Plaintiff, Case No. 07 CV 3583 (LBS)(RLE) 

-againstALITALIA-LINEE AEREE ITALIANE SpA, 

Defendant. 

CERTIFICATE OF SERVICE

I, Daniel Green, hereby declare, pursuant to 28 U.S.C. 1746, under penalty of perjury, 

that on June 19, 2008, I caused a copy of the REPLY MEMORANDUM OF LAW IN

FURTHER SUPPORT OF DEFENDANT ALITALIA-LINEE AEREE ITALIANE SpA’S 

MOTION FOR SUMMARY JUDGMENT to be served upon Plaintiff by electronically filing 

same, thereby ensuring that Plaintiff’s attorney, Robert Ottinger, Esq. of The Ottinger Firm, P.C., 

received same because he is a registered e-filer and registered to receive e-notices in this case.

DATED: June 19, 2008 s/ Daniel C. Green 

Daniel C. Green

 

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