Opinion
99 Civ. 3432 (JGK)
February 12, 2001
OPINION AND ORDER
Plaintiff Angela Alleyne ("Alleyne"), who appears pro Se, brings this action against her former employer, Four Seasons Hotel — New York ("Four Seasons"). The plaintiff, who is African-American, alleges that the defendant discriminated against her on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII") and that the defendant breached her employment contract. The defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases)
Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In particular, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See McPherson, 174 F.3d at 281; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999);Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated June 29, 2000, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence and the plaintiff was provided with a copy of Rule 56. The plaintiff thereafter submitted a timely response to the motion, together with a Rule 56.1 Statement of Material Facts of Genuine Issues in Opposition to Defendant's Motion for Summary Judgment.
II.
There is no dispute as to the following facts except where specifically noted. The defendant Four Seasons is a luxury transient hotel located at 57 East 57th Street, New York, New York, which opened to the public on June 6, 1993. (Def.'s 56.1 St. ¶ 1; Pl's. 56.1 Counter-St., Background ¶ 1.) Employment at Four Seasons is governed by a contract entitled "EmPact," which sets forth the benefits and obligations of Four Seasons employees. (Def.'s 56.1 St. ¶ 3; Pl's 56.1 Counter-St., Background ¶ 2; Compl. Ex. B.) EmPact provides that Four Seasons tries to promote from within the hotel and that when an opening occurs, "those employees who have expressed a desire and demonstrated the attitude and qualifications necessary to perform the job will be considered." (Compl. Ex. B at 22.) EmPact also provides that employees are eligible for transfer to a vacant position after six months of employment in their present job, and that notice of vacant positions will be posted for three days before the position is filled. (Compl. Ex. B at 22.) EmPact also guarantees equal employment opportunities for all employees, regardless of, among other things, their race. (Compl. Ex. B at 20.) The defendant contends that when a position becomes available, its regular procedure is to fill out a Requisition form setting forth, among other things, the qualifications for the position and to post the information regarding the position on the bulletin board outside the Human Resources office for at least three days. (Affidavit of Yvonne Mancini, sworn to June 28, 2000, ("Mancini Aff."), ¶ 31.)
The plaintiff was hired on November 8, 1993, as a Front Office Receptionist on the night shift. (Mancini Aff. ¶ 10.) During the plaintiff's orientation at the Four Seasons, the plaintiff reviewed EmPact page by page. (Mancini Aff. Ex. D at 17-18.)
Sometime in November 1993, the plaintiff was issued a bank containing $2,500. In December 1993, Four Seasons' Head Cashier sealed the plaintiff's bank after the plaintiff's cash reports indicated shortages in her bank. (Mancini Aff. ¶ 29; Pl.'s Ex X at 3.) In the process of questioning the plaintiff about the shortage, the Head Cashier discovered that the plaintiff had never been instructed properly on counting her bank. (Mancini Aff. ¶ 29; Pl.'s Ex X at 3.) The defendants allege that the plaintiff was not disciplined for this incident and was not accused of stealing. (Mancini Aff. ¶ 29.)
On Feb. 8, 1994, the plaintiff passed her 90-day probation and her 90-day review indicated that she met expectations in five categories and exceeded expectations in another category. (Mancini Aff. ¶ 13; Ex. E.) On that date, the plaintiff signed her EmPact Summary and Understanding indicating that the plaintiff had read and understood EmPact. (Mancini Aff. ¶ 14 Ex. F.)
In March 1994, Jason Friedlander, an employee who had worked for Four Seasons for more than six months and had worked for several years as an assistant manager in another hotel, was promoted to the position of Front Desk Assistant Manager ("1994 Front Desk Assistant Manager position"). (Mancini Aff. ¶ 32, 34 Ex. P.) Although the plaintiff concedes that she was not eligible for this position because she had not been employed for six months at Four Seasons, and although she concedes that Mr. Friedlander was more qualified for the position than she was (Mancini Aff. Ex. D at 56-61), the plaintiff alleges that the defendant filled this position without posting it pursuant to EmPact. (Pl's 56.1 Counter-St., Background ¶ 7.)
In April 1995, after being advised that it would be helpful to her career to transfer to the day shift, the plaintiff applied for and was granted a transfer to the day shift. (Mancini Aff. ¶ 15.) In mid-1995, Four Seasons promoted Bill Sexton to the position of Night Manager ("1995 Night Manager position"). (Mancini Aff. ¶ 33.) The Requisition for that position stated that previous Front Office supervisory experience was necessary. (Mancini Aff. ¶ 33 Ex. Q.) The plaintiff alleges that Four Seasons had already filled this position prior to posting its availability. (Pl's 56.1 Counter-St., Background ¶ 7.) Also in mid-1995, the defendant promoted Christine Carraguay to the position of Front Office Manager ("1995 Front Office Manager position"). (Mancini Aff. ¶ 34.) The Requisition for that position stated that three years previous management experience was required. (Mancini Aff. Ex. R.)
In July 1995, a vacancy was posted for the position of Front Office Supervisor ("1995 Front Office Supervisor position"). The plaintiff did not apply for the position. (Mancini Aff. ¶ 37; Pl.'s Ex X.) Four Seasons selected Francesca Tozzi ("Tozzi") for the position. (Mancini Aff. ¶ 37; Pl.'s Ex X.) The plaintiff alleges that Tozzi was a family relation of a Four Seasons Senior Vice President and that the position was created especially for her in violation of EmPact. (Pl.'s Ex X; Pl's 56.1 Counter-St., Background ¶ 8.)
In November 1995, the plaintiff's annual Management Development Review indicated that she had exceeded expectations. (Mancini Aff. ¶ 16, Ex. G.) In July or August 1996, the plaintiff was promoted to the position of Front Office Supervisor on the day shift, along with another employee, Tim Stansfield ("Stansfield"), who was promoted to the evening shift. (Def.'s 56.1 St. ¶ 52-53; Pl.'s 56.1 Counter-St., Background ¶ 9; Mancini Aff. Ex. H.) In or about November 1996, Edward Johnson ("Johnson"), then the Front Office Manager, selected Stansfield to begin training as Relief Night Manager ("1996 Relief Night Manager position"). (Pl.'s Ex X.)
The plaintiff's 1996 Management Development Review indicated that she met expectations, although Johnson noted that the plaintiff needed to provide employees with more feedback and monitoring. Johnson recommended that the plaintiff be transferred to the position of Housekeeping Floor Supervisor and then be promoted to an assistant managerial position in either Housekeeping or the Front Office in twelve to eighteen months. (Mancini Aff. Ex. I.) In January 1997, Johnson told the plaintiff that he thought the plaintiff would be a good candidate for a position as Housekeeping Floor Supervisor. (Mancini Aff. ¶ 41; Pl.'s Ex X.) In February 1997, the plaintiff was transferred to the position of Housekeeping Floor Supervisor. (Mancini Aff. ¶ 19 Ex. J.) Although the plaintiff believes that the move was beneficial to her career (Pl.'s Ex. D at 177), she alleges that she was moved to this position in violation of EmPact because she never applied for the position. (Pl.'s Ex X; Pl.'s 56.1 Counter-St., Background ¶ 11.)
In March 1997, the position of Night Manager allegedly became available ("1997 Night Manager position"). (Pl.'s Ex X.) The plaintiff alleges that, although she was qualified for the position, she could not apply for the position because EmPact provides that employees cannot apply for position transfers unless they have successfully completed six months in their present position. (Pl.'s Ex X; Pl.'s 56.1 Counter-St., Background ¶ 13.) Four Seasons allegedly promoted Stansfield to the 1997 Night Manager position. (Pl.'s Ex X; Pl.'s 56.1 Counter-St., Background ¶ 14.)
The plaintiff received a 90-day Management Review in Housekeeping in May 1997 by Karen Dade ("Dade"), the Executive Housekeeper, who is African-American, that contained favorable comments regarding the plaintiff's leadership and management skills. (Pl.'s Notice in Opp. ¶ 31.) In June 1997, a position became available as Front Desk Assistant Manager ("1997 Front Desk Assistant Manager position"). (Mancini Aff. ¶ 48.) The Front Desk Manager, Tulio Hockepler ("Hockepler"), asked the plaintiff if she was interested in applying for the position and said he would support her application. (Mancini Aff. ¶ 48 Ex. D at 182.) Johnson and Dade allegedly advised the plaintiff against leaving the Housekeeping Department after only a few months, although Mark Soman, the plaintiff's assigned mentor at Four Seasons, thought she should apply for the position. (Def.'s 56.1 St. ¶ 66.) As a result, the plaintiff did not apply for the position. (Def.'s 56.1 St. ¶ 67; Pl.'s Ex. X.) Four Seasons promoted Aediza Perez to the position. (Mancini Aff. ¶ 48.)
In early December 1997, the position of Housekeeping Assistant Manager became available ("1997 Housekeeping Assistant Manager position"). (Mancini Aff. ¶ 49; Pl.'s Ex X.) The plaintiff contends that she applied for the position, but was told on the third day that the position was posted that an outside candidate had been hired in violation of EmPact. (Pl's 56.1 Counter-St., Background ¶ 15; Pl.'s Ex X.) The defendant claims that it selected Jennifer James for the position on December 10, 1997, and that she had more than three years of prior assistant managerial experience in other New York hotels. (Mancini Aff. ¶ 49 Ex. T.)
The petitioner's 1998 Management Development Review, conducted by Corine Borer ("Borer"), the Assistant Executive Housekeeper, was generally positive, noting, among other things, that "her `can-do' and positive attitude have been great assets;" that she uses "good judgment to solve . . . problems;" and that she "works harmoniously and effectively with others." (Mancini Aff. Ex. K.) Borer also indicated that:
Ms. Alleyne must regularly review the performance of her whole team. She needs to identify the weak elements in it and help them in their development. . . . Ms. Alleyne must also organize her day and set the tone for her team: she needs to communicate daily goals to her team . . . and guide them through the day with constant feedback. . . .
. . .
She needs to learn to juggle and manage several projects at the same time: she needs to set her priorities daily and monitor her time. . . .
. . .
Follow-up is another essential skill Ms. Alleyne must develop in the coming year. . . .
(Mancini Aff. Ex. K.) Borer projected that the plaintiff would be ready for an Assistant Manager position in Housekeeping or the Front Office in twelve months and a Front Office Manager position in thirty-six months. (Mancini Aff. Ex. K.)
In April 1998, the position of Fitness Center Manager became available ("Fitness Center Manager position"). (Mancini Aff. ¶ 22.) The Fitness Center employs five full-time employees and one part-time employee, all of whom require supervision. (Mancini Aff. ¶ 23.) The job description for the position stated that a minimum of two-years management supervisory experience was necessary. (Mancini Aff. ¶ 22 Ex. L.) The plaintiff applied for the position and was interviewed by Yvonne Mancini ("Mancini"), Rooms Division Manager. (Def.'s 56.1 St. ¶ 26; Pl's 56.1 Counter-St., Background ¶ 16.) Mancini decided that the plaintiff was not the right person for the position of Fitness Center Manager. (Mancini Aff. ¶ 24.) In denying the plaintiff's application, Mancini told the plaintiff on April 28, 1998, that the plaintiff needed to improve her supervisory skills in order to move forward into an Assistant Manager's position; that it was Four Seasons intention to have her succeed as a manager by continuing to develop her skills; and that she "needed to wait a little longer." (Def.'s 56.1 St. ¶¶ 27-28; Mancini Aff. Ex D at 195; Pl.'s Ex. X.)
The defendant contends that on June 17, 1998, Lidia Sanchez ("Sanchez") was promoted to the restructured position of Front of the House Assistant Manager, a position that included the responsibilities of Fitness Center Manager, as well as other responsibilities. (Mancini Aff. ¶ 25.) According to the defendant, Sanchez has a degree in Hotel Management from the University of Barcelona, speaks six languages, had several years of supervisory experience at Four Seasons and at the St. Regis Hotel, and was considered to have better managerial skills than the plaintiff. (Mancini Aff. ¶ 25; Ex. M.) The plaintiff contends that the defendant promoted Sanchez on May 20, 1998, and that Sanchez filled out her application one month earlier than anyone else could apply in violation of EmPact. (Pl.'s 56.1 Counter-St., Genuine Issues of Material Fact ¶ 1; Pl.'s Ex. I.)
On June 5, 1998, the plaintiff submitted her resignation from her position at the Four Seasons. (Mancini Aff. Ex. N.) On October 26, 1998, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the New York State Division of Human Rights ("NYSDHR"). (Def.'s 56.1 St. ¶ 32; Pl's 56.1 Counter-St., Background ¶ 21; Pl.'s Ex. X.) The EEOC determined that the Fitness Center Manager position was the only claim that they could investigate based on the 300-day statute of limitations and that her allegation that Four Seasons discriminated against her based on race with respect to that position was without merit because she resigned before Four Seasons selected a person for that position. (Pl.'s Ex. X.) The EEOC issued a right to sue letter dated February 11, 1999. (Pl.'s Ex. X.) The plaintiff filed this action on May 11, 1999.
III.
As a pro se pleading, the plaintiff's complaint is construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991). The plaintiff alleges causes of action for racial discrimination for failure to promote, constructive discharge, and breach of the EmPact contract. In particular, the plaintiff alleges that, throughout her employment at Four Seasons, she was denied promotions to various positions based on her race. The plaintiff also alleges that she resigned due to the emotional and physical stress that her working environment created as a result of the continued racially motivated breach of Empact, the pattern of denying African Americans promotional opportunities, and the use of Empact as a deterrent to the promotion of African American employees. She also contends that she was denied opportunities for promotion because Four Seasons violated its contractual obligations.
While the complaint alleges that the discrimination was based on race (African American) and color (black), the complaint also refers to a "racially motivated breach of EmPact employment contract." In her pipers in response to the current motion, the plaintiff concentrates on allegations of racial discrimination and does not distinguish any separate allegations based on discrimination because of color. Therefore, this decision will, consistent with the plaintiff's terminology, refer to the plaintiff's allegations of "racial" discrimination.
A.
The defendant argues that it is entitled to summary judgment with respect to certain of the plaintiff's claims because they are time barred. The defendant argues that the Title VII claims based on alleged events that occurred prior to December 30, 1997, are untimely. "In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days." Butts v. City of New York Dep't of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993); see also 42 U.S.C. § 2000e-5(e); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). The defendant contends that all alleged incidents of discrimination in violation of Title VII prior to December 30, 1997, are barred because they occurred more than 300 days before the plaintiff filed her EEOC charge on October 26, 1998, and that the only incident alleged by the plaintiff which occurred after December 30, 1997, was the denial of her promotion to the Fitness Center Manager position in April 1998.
In response, the plaintiff argues that all of her Title VII claims are timely because the discriminatory treatment she was subjected to by the defendant constituted a "continuing violation" of Title VII. Under the continuing violation doctrine, if a plaintiff files a discrimination charge with the EEOC "that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993); see also Connecticut Light Power Co. v. Secretary of the United States Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 703-04 (2d Cir. 1994); O'Malley v. GTE Serv. Corp., 758 F.2d 818, 821-22 (2d Cir. 1985). The continuing violation doctrine typically applies to situations where there are specific discriminatory policies or mechanisms, such as discriminatory seniority lists or employment tests. See Van Zant, 80 F.3d at 713; Cornwell, 23 F.3d at 704; Lambert, 10 F.3d at 53. Ordinarily, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert, 10 F.3d at 53; see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998); Van Zant, 80 F.3d at 713. A continuing violation may be found in the absence of a formal discriminatory mechanism, however, "where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice."Cornwell, 23 F.3d at 704; see also Van Zant, 80 F.3d at 713.
The plaintiff does not allege that the defendant employed a formal discriminatory mechanism; instead, she claims that the defendant permitted related discriminatory practices to go on for several years without remedy. From the time the plaintiff was hired in November 1993 until the time she resigned in June 1998, the plaintiff alleges that the defendant subjected her to racial discrimination by denying her promotional and training opportunities. The plaintiff also alleges that the defendant discriminatorily denied promotions to other African American employees in a similar manner and discriminated against certain African American guests, supporting her claim that there was a pattern of discrimination creating a continuing violation. In particular, the plaintiff alleges that the defendant discriminatorily denied her promotional opportunities for: (1) the 1994 Front Desk Assistant Manager position; (2) the 1995 Night Manager position; (3) the 1995 Front Office Manager position; (4) the 1995 Front Office Supervisor position; (5) the 1996 Relief Night Manager position; (6) the 1997 Night Manager position; (7) the 1997 Housekeeping Assistant Manager position; and (8) the 1998 Fitness Center Manager position. She also alleges that other African American employees were subjected to discrimination, and submits affirmations from three of the defendant's current or former employees, Jaiyevon James Johnson ("James Johnson"), Nicole Jordan-Coombs ("Jordan-Coombs"), and Spurgeon Mansfield ("Mansfield"), alleging instances of discriminatory practices against them with respect to the denial of promotional opportunities. (Pl.'s Notice in Opp. ¶ 2; Exs. C, E, F.) The plaintiff contends that she was also subjected to discrimination when her bank was sealed in 1993, when she was promoted with another employee and that the defendant has discriminated against rap artist Tupak Shakur, an African American, by preventing him from eating at the Four Seasons' restaurant. (Pl.'s Notice in Opp. ¶ 54; Pl.'s Ex. D at 202-205.)
The plaintiff, however, has failed to present evidence raising a genuine issue of material fact that these individual incidents were part of a continuing violation. As the defendant points out, there is no evidence of anything other than isolated complaints alleged against different people in different departments over the course of a five-year period. There is no basis in the record to conclude that there was any connection between the alleged discrimination toward James Johnson, Jordan-Coombs, and Mansfield, and Tupak Shakur and the discrimination that the plaintiff allegedly suffered. In addition, there is no evidence beyond the plaintiff's own conclusory testimony that the alleged time-barred discriminatory acts were sufficiently related to one another or to the later timely-filed claim so as to amount to a discriminatory policy or practice. Indeed, the great majority of the. positions about which the plaintiff now complains are positions for which she did not even apply.
Numerous different supervisors and decision-makers from different departments were involved in the decisions to fill the various positions and there is no evidence that their behavior was related in any way. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 568 n. 4 (2d Cir. 2000) (finding that the fact that two individuals are engaged in similar discriminatory behavior is not enough to demonstrate a discriminatory policy or practice where the record does not indicate their behavior was related). Moreover, there is no evidence in the record that the plaintiff raised the issue of discrimination with anyone at Four Seasons so that it cannot fairly be said that Four Seasons "permitted a pattern of discrimination to continue unremedied such that it amounted to a discriminatory policy or mechanism." Wang v. NYC. Dept. of Finance, 96 Civ. 5170, 1999 WL 529550, at *11 (S.D.N.Y. Jul. 21, 1999) (quotation omitted), aff'd, 216 F.3d 1074 (2d Cir. 2000)
Courts have consistently held that failures to promote are discrete acts that do not constitute a continuing violation. See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (alleged demotions and denials of pay-grade increases); Aggarwal v. New York City Health and Hosp. Corp., 98 Civ. 5063, 2000 WL 172787, at *4 (S.D.N.Y. Feb. 10, 2000) (repeated failure to promote); Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371-72 (S.D.N.Y. 1999) (repeated failure to promote); Nicholas v. NYNEX, Inc., 974 F. Supp. 261, 268-69 (S.D.N.Y. 1997) (repeated failure to promote); Pauling v. Secretary of the Interior, 960 F. Supp. 793, 801-02 (S.D.N.Y. 1997) ("Demotion, failure to promote, and termination have all been deemed discrete acts."). Indeed, in this case, the allegations of a continuing violation based on discrete instances of prior failures to promote is even more untenable than the allegations in other cases which have rejected such a theory because, in this case, the plaintiff did not even apply for most of the positions that the plaintiff alleges she should have been afforded. While the plaintiff does allege and the defendant denies that there was a practice of failing to post notices of job opportunities in violation of EmPact, any such practice is unrelated to the only incident within the statute of limitations — the failure to promote the plaintiff to the 1998 Fitness Center Manager Position. As to that position, there is no question that the plaintiff had knowledge of that position, applied for it, and was denied the promotion.
Here, the plaintiff's allegations amount to no more than the multiple alleged incidents of discrimination found insufficient to create a continuing violation in Lambert. See Van Zant, 80 F.3d at 713 (continuing violation doctrine does not apply where plaintiff fails to show either a connection between the defendant's treatment of her and any discriminatory practice or policy, or that the defendant permitted related acts of discrimination to go on for so long as to amount to a policy of discrimination); Anatsui v. Food Emporium, 99 Civ. 1337, 2000 WL 1239068, at *4 (S.D.N.Y. Sept. 1, 2000) (finding no continuing violation where the plaintiff alleged only that he was subjected to racial harassment on different occasions); Commer v. City of New York, No. 93 Civ. 7408, 1996 WL 374149, at *3 (S.D.N.Y. July 3, 1996) (continuing violation doctrine does not apply where "plaintiff has only alleged multiple incidents of similar acts that do not rise to the level of an official policy"), aff'd, 125 F.3d 843 (2d Cir. 1997); Johnson v. Nyack Hosp., 891 F. Supp. 155, 162-66 (S.D.N.Y. 1995) (to determine whether there is continuing violation, court must examine the subject matter, frequency, and degree of permanence of the alleged acts), aff'd, 86 F.3d 8 (2d Cir. 1996). Accordingly, the defendant's motion for summary judgment dismissing the plaintiff's claims under Title VII based. on discriminatory incidents occurring prior to December 30, 1997, is granted because the claims are untimely, and the plaintiff has failed to present evidence that these alleged incidents were part of a continuing violation of Title VII.
B.
The defendant also argues that it is entitled to summary judgment on the plaintiff's timely claim that she was unlawfully discriminated against by the defendant's failure to promote her to the Fitness Center Manager position that became available in April 1998. The defendant argues that the plaintiff has failed to produce sufficient evidence to support a finding of discrimination under Title VII with respect to that claim.
A plaintiff in a Title VII action carries the initial burden of establishing a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997). The burden of establishing a prima facie case is de minimis. See Chambers, 43 F.3d at 37. To establish a prima facie case of discriminatory failure to promote, a plaintiff must show that (1) she is a member of a protected class; (2) she was qualified for the job for which she applied; (3) she was denied the job; and (4) the denial occurred under circumstances giving rise to an inference of discrimination. See Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citing McDonnell Douglas Corp., 411 U.S. at 802). The fourth element of the prima facie case may be satisfied by a showing that the plaintiff's position remained open and the employer continued to seek applicants having the plaintiff's qualifications. See Cruz, 202 F.3d at 565; Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998).
At oral argument on the motion for summary judgment, the defendant conceded that the plaintiff has met the fourth element of a prima facie case for discrimination.
When a plaintiff has successfully demonstrated the elements of a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Burdine, 450 U.S. at 252-53. After the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that race was. See id. at 254-56;Fisher, 114 F.3d at 1336. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also Reeves, 120 S.Ct. at 2106; Fisher, 114 F.3d at 1336. The Court of Appeals for the Second Circuit has recently instructed that in determining whether the plaintiff has met this burden, a court is to use a "case by case" approach that evaluates "`the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.'" James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 120 S.Ct. at 2109); see also Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). Although summary judgment must be granted with caution in Title VII actions "where intent is genuinely in issue, . . . summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact."Chambers, 43 F.3d at 40.
In this action, the plaintiff has not shown that she was qualified for the Fitness Center Manager position. Being "`qualified' refers to the criteria the employer has specified for the position." Thornley v. Penton Publishing, Inc., 104 F.3d 26, 29 (2d Cir. 1997). Absent a showing that the qualifications were developed in bad faith, "[a] plaintiff is not entitled to get his or her case before a jury by contending that the demands of the employer were not reasonably related to the performance of the job." Id. It is undisputed that the Fitness Center Manager position required a minimum of two years management supervisory experience. (Mancini Aff. ¶ 22 Ex. L.) The plaintiff, in her deposition, conceded that she did not yet have the required two years management supervisory experience and that in April of 1998 she was approximately four or five months short of the requirement. (Mancini Aff. Ex. D at 190; Pl.'s Notice in Opp. ¶ 33.) The plaintiff also agreed that Sanchez, the person who was promoted to the restructured position of Front of the House Assistant Manager which also included the responsibilities of Fitness Center Manager, probably had a total of two years of supervisory experience in the hotel business and possibly had more. (Mancini Aff. Ex. D at 191.) Although the plaintiff argues that she had two years management supervisory experience when her prior ten-month experience as the Assistant Director of the Park Slope Senior Citizens Center is added, that experience was not in the hotel business.
The plaintiff argues that despite the fact that she was short of the two years management supervisory experience requirement, she was more qualified than Sanchez and that because the defendant moved the plaintiff into the Housekeeping Floor Supervisor position without completing six months of supervisory experience, there was no legitimate reason not to promote her to the Fitness Center Manager position. (Mancini Aff. Ex. D at 191-93.) The plaintiff, however, conceded that she would expect Four Seasons to look for more supervisory experience in appointing someone to the Fitness Center Manager position, and that Sanchez had more supervisory experience than the plaintiff had. (Mancini Aff. Ex. D at 191-95.)
The plaintiff also argues that the experience requirement was discriminatorily applied because the defendant promoted Stansfield, a Caucasian, to the 1996 Night Relief Manager position and Chris Hammett, a Caucasian, to the position of Front Desk Assistant Manager even though neither person had two years management supervisory experience. (Pl.'s Notice in Opp. ¶¶ 9, 35.) The Requisitions for both of these positions, however, did not require two years management experience. (Affidavit of Julie Belva, sworn to August 11, 2000, ("Belva Aff."), ¶¶ 4, 5 Exs. A, B.)
The plaintiff has not provided evidence that the two years management supervisory experience qualification for the Fitness Center Manager position was developed in bad faith or that it was developed specifically to pass over the plaintiff or other African Americans. See Thornley, 104 F.3d at 29; Lambert, 10 F.3d at 57; Bloomfield v. Vizcaya, S.A., No. 94 Civ. 56, 1999 WL 675966, at *5 (S.D.N.Y. Aug. 31, 1999). Thus, the plaintiff has not established that she was qualified for the Fitness Center Manager position that she sought and the plaintiff has therefore failed to establish a prima facie case of discrimination.
Moreover, even if the plaintiff had met the requirements of a prima facie case of discrimination, the defendant has articulated legitimate, nondiscriminatory reasons for not promoting the plaintiff to the position of Fitness Center Manager, namely that the plaintiff did not have the requisite two years management supervisory experience, her evaluations in her supervisory position indicated that she needed further development in certain supervisory skills before she would be ready to manage a department, Mancini determined that the plaintiff was not yet ready for the position and that promoting the plaintiff would be a disservice to her since it would likely lead to failure. (Mancini Aff. ¶ 24.)
Having articulated these legitimate reasons for not promoting the plaintiff, the plaintiff has the opportunity to show that these reasons were merely a pretext for discrimination. The plaintiff alleges that she was qualified for the position, despite acknowledging that she did not meet the experience requirement, and that Mancini has "dissuaded and denied African Americans the evaluations and promotions that they deserve." (Pl.'s Notice in Opp. ¶¶ 33, 37-38.) In addition, she challenges the negative comments in Borer's evaluation as the product of "pretext, bias, or blindness." (Pl.'s Notice in Opp. ¶ 31.) The plaintiff, however, fails to offer any acts, statements, or admissions by a decision-maker to support her allegations of bias, See Bickerstaff v. Vassar College, 196 F.3d 435, 451 (2d Cir. 1999), cert. denied, 120 S. Ct. 2688 (2000), and the plaintiff's conclusory and self-serving allegations that she was discriminated against are insufficient to demonstrate that Four Seasons' nondiscriminatory reasons were a pretext for discrimination. See id. (noting that "[t]o satisfy Rule 56(e), affidavits must be based upon `concrete particulars,' not conclusory allegations"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); Brink v. Union Carbide Corp., 41 F. Supp.2d 406, 415 (S.D.N.Y. 1999), aff'd, 210 F.3d 354 (2d Cir. 2000). The plaintiff has failed to adduce any evidence that the reasons offered by the defendant were pretextual. It is not disputed that the decision not to promote the plaintiff was made by Mancini. There is no evidence that Mancini denied the plaintiff the promotion because of her race or that Mancini harbored any racial animus towards the plaintiff. There were no prior complaints made by the plaintiff against Mancini and the plaintiff admits that she did not complain of discrimination prior to applying for the Fitness Center Manager position. (Mancini Aff. Ex. D at 88-89.) The plaintiff points to no derogatory statement, or any other evidence of discrimination or racial animus by Mancini or any other decision-makers at Four Seasons. In fact, the plaintiff admits that she has never heard Mancini say anything discriminatory. (Mancini Aff. Ex. D at 228.)
The plaintiff also alleges that there is a genuine issue of material fact as to whether Sanchez was secretly promoted to the Front of the House Assistant Manager's position a month before the position was posted, because Mancini's signature on Sanchez's application is dated May 20, 1998. (Pl.'s Notice in Opp. ¶ 8; Pl's Supp. Response at 6-7; Pl.'s Ex. I.) The dispute is neither genuine nor material. Four Seasons argues that the plaintiff has misread the document and that the May 20, 1998 date only indicates that the application was received by Mancini, the department head, on that date. Four Seasons has submitted the affidavit of Mancini who testifies that Sanchez's application was originally for the position of Front of the House Manager, a position for which Sanchez was rejected, and that when Sanchez expressed interest in the Front of the House Assistant Manager position, when the position was posted on June 15, 1998, Mancini used the same application and added "Ass't" to the application. (Affidavit of Yvonne Mancini, sworn to January 10, 2001 ("Second Mancini Aff.") ¶ 3; Pl.'s Ex. I.) Four Seasons notes that the Human Resources Department did not receive the application until June 15, 1998, and that Sanchez's Payroll Status Authorization clearly establishes that her promotion was not effective until July 4, 1998. (Belva Aff. ¶ 6 Ex. C; see also Pl.'s Ex. H.) In the face of such documentary evidence, the plaintiff's conclusory allegation does not established a genuine issue of fact as to whether there was a secret arrangement respecting Sanchez's promotion. See Bickerstaff, 196 F.3d at 451.
Moreover, the dispute is not material. The plaintiff has not shown that any alleged departure from procedure was a result of racial animus or that the departure reasonably affected the decision not to promote the plaintiff to the position of Fitness Center Manager sufficient to raise a question as to the good faith of the process. See Weinstock v. Columbia University, 224 F.3d 33, 45 (2d Cir. 2000). The plaintiff was denied promotion to the Fitness Center Manager position on April 25, 1998, before even the plaintiff alleges Ms. Sanchez applied for the restructured position of Front of the House Assistant Manager. In addition, the approval of the Human Resources Department and effective date of Sanchez's promotion occurred after the plaintiff's resignation on June 5, 1998.
The plaintiff argues that she has submitted evidence that Four Seasons discriminated against other African American employees and Tupak Shakur, an African American rap artist, and that this is evidence that Four Seasons' reasons for not promoting her were pretextual. In support of the plaintiff's allegations regarding other employees the plaintiff relies on the affirmations submitted by James Johnson, Jordan-Coombs, and Mansfield. (Pl.'s Exs. C; E; F.) Like the plaintiff's allegations with respect to her own experience at Four Seasons, these affirmations offer only conclusory allegations of racial discrimination on the part of various Four Seasons' managers. With the exception of Jordan-Coombs, who makes allegations concerning Mancini (Pl.'s Ex. E ¶¶ 7, 21-34), different decision-makers were involved in the alleged discriminatory acts against these other employees and the decision not to promote the plaintiff to the Fitness Center Manager position. See Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984). With respect to Jordan-Coombs, although Mancini voiced concerns that Jordan-Coombs did not have experience for particular positions (Pl.'s Ex. E ¶¶ 7, 22), Mancini was helpful in getting Jordan-Coombs promoted on two occasions. (Pl.'s Ex. E ¶¶ 8, 22-24, 32, 35-37.) James Johnson was also promoted after discussing his concerns with a supervisor. (Pl.'s Exs. C at ¶ 20.) In addition, the allegations of discrimination against Tupak Shakur involved, not Mancini, but the restaurant manager, who is not alleged to have had any role in the consideration of the plaintiff for the Fitness Center Manager position. (Pl.'s Notice in Opp. ¶ 54) Moreover, the affirmations submitted by James Johnson, Jordan-Coombs and Mansfield provide no evidence that Mancini made derogatory statements, or any other evidence of discrimination or racial animus by Mancini.
The plaintiff's allegations with respect to Leila Scott Pray and other unnamed employees in her Notice in Opposition and her deposition are hearsay. Hearsay evidence that would be inadmissible at trial may not be considered on a motion for summary judgment. Fed.R.Civ.P. 56(e) ("opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence. . . ."); see also Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985); Griffin v. Ambika Corp., 103 F. Supp.2d 297, 304 n. 11 (S.D.N.Y. 2000); Rosensaft v. The Ashton Tech. Group, Inc., No. 97 Civ. 3138, 1997 WL 749384, at *3 (S.D.N.Y. Dec. 4, 1997).
Moreover, although a plaintiff may use statistical evidence of a pattern or practice of discrimination to rebut an employer's nondiscriminatory explanation, Hollander v. American Cyanamid Co, 895 F.2d 80, 84 (2d Cir. 1990), "[f]or such statistical evidence to be probative . . . the sample must be large enough to permit an inference that [a person's protected status] was a determinative factor in the employer's decision." Haskell, 743 F.2d at 121. In this case the sample size of three other employees and one guest is too small a sample size to create an inference of discrimination. See Haskell, 743 F.2d at 121 (concluding that the district court erred in permitting testimony from six former employees concerning the circumstances of their own terminations); Gray v. The Robert Plan Corp., 991 F. Supp. 94, 104 (finding that a sample size of thirteen of which only one worker was over 40 years of age was too small to create an inference of age discrimination); Beers v. NYNEX Material Enter. Co., No. 88 Civ. 305, 1992 WL 8299, at *11 (S.D.N.Y. Jan. 13, 1992) (finding that two demotions of those in the protected class was too small to give rise to an inference of discrimination); Wolfe v. Time, Inc., 702 F. Supp. 1045, 1050 (S.D.N.Y. 1989) (four out of six discharges in the protected class too small a sample to be statistically trustworthy). Thus, any allegations with respect to James Johnson, Jordan-Coombs, Mansfield, and/or Tupak Shakur evidence only isolated and individual incidents and are insufficient to establish a pattern or practice of discrimination against African Americans. See Ste. Marie v. Eastern Railroad Ass'n, 650 F.2d 395, 405-07 (2d Cir. 1981) (concluding that seven individual instances of actual discrimination are insufficient to demonstrate a pattern or practice of discrimination). Therefore, the plaintiff's allegations of discrimination against three other employees and Tupak Shakur does not create an issue of material fact as to whether the defendant's nondiscriminatory reasons for its decision not to promote the plaintiff were pretextual.
In sum, the defendant is entitled to summary judgment on the plaintiff's Title VII claim based on failure to promote because the plaintiff has failed to proffer any evidence upon which a reasonable trier of fact could conclude that the decision not to promote the plaintiff to the Fitness Center Manager position was motivated by discrimination. See Weinstock v. Columbia University, 224 F.3d 33, 49-50 (2d Cir. 2000);Anatsui, 2000 WL 1239068, at *7; Bloomfield, 1999 WL 675966, at *6; Owens v. Waldorf-Astoria Corp., 92 Civ. 4561, 1997 WL 251556, at 3-4 (S.D.N.Y. May 13, 1997)
C.
The plaintiff claims that her resignation from Four Seasons was forced by discriminatory actions of the defendant in violation of Title VII. The defendant argues that it is entitled to summary judgment on the plaintiff's constructive discharge claim because the plaintiff has failed to establish a prima facie case that she was constructively discharged because of her race.
In an employment discrimination case alleging discriminatory discharge, the plaintiff has the burden at the outset of proving a prima facie case of discrimination. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (citing St. Mary's Honor Center, 509 U.S. at 506). To establish a prima facie case, the plaintiff must prove that she (1) is a member of a protected class; (2) was performing her duties satisfactorily; (3) was discharged; and (4) was discharged under circumstances giving rise to an inference of discrimination. Chambers, 43 F.3d at 37. The "discharge" element of a prima facie case of employment discrimination can be satisfied by either an actual termination or a constructive discharge. See Stetson v. NYNEX Serv. Co., 995 F.2d 355, 359 (2d Cir. 1993).
The plaintiff concedes that she resigned, but contends that she was constructively discharged. (Pl.'s Notice in Opp. ¶ 40, 42.) The defendant argues, however, that the plaintiff has failed to establish a claim of constructive discharge. In order to maintain a claim of constructive discharge, the plaintiff must present evidence sufficient to permit a rational jury to conclude that the employer deliberately created working conditions that were "`so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Stetson, 995 F.2d at 361 (quoting Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 2000). A plaintiff must show more than that she was dissatisfied with her assignments, that she felt that the quality of her work had been unfairly criticized or that working conditions were difficult or unpleasant. Stetson, 995 F.2d at 360; Wilson v. Consolidated Edison Co. of New York, 96 Civ. 7546, 2000 WL 335733, at *3 (S.D.N.Y. Mar. 30, 2000); Ali v. Bank of New York, 934 F. Supp. 87, 92 (S.D.N.Y. 1996); Barbagallo v. General Motors Corp., No. 88 Civ. 1534, 1996 WL 19004, at *5 (S.D.N.Y. Jan. 17, 1996); Sastri v. KLM Royal Dutch Airlines, No. 92 Civ. 5534, 1995 WL 746458, at *3 (S.D.N.Y. Dec. 15, 1995)
The plaintiff in this case has failed to present evidence indicating that the working conditions at Four Seasons were "`so intolerable that [s]he [was] forced into an involuntary resignation.'" Stetson, 995 F.2d at 360 (quoting Pena, 702 F.2d at 325). Many of the alleged incidents, such as the sealing of the plaintiff's bank and the various failures to post available positions, were discrete incidents that took place well in the past and none of them were so severe that any reasonable employee would have resigned over those incidents, and indeed the plaintiff did not. The plaintiff has not established that the cumulative effect of those incidents created an intolerable atmosphere sufficient to constitute a constructive discharge. See Wilson, 2000 WL 335733, at *3-4; Terry v. United States, 98 Civ. 8249, 2000 WL 204522; at *12 (S.D.N.Y. Feb. 18, 2000)
The denial of the promotion to Fitness Center Manager did not amount to a constructive discharge. A discriminatory denial of a promotion, without more, does not amount to a constructive discharge. Halbrook v. Reichold Chemicals, 735 F. Supp. 121, 126 (S.D.N.Y. 1990). Rather, the resulting working conditions must be so intolerable that a reasonable person would have felt compelled to resign. This is not a case where the plaintiff has established that the denial of that promotion dashed her "reasonable expectations of career advancement," id. at 127, or that management personnel indicated that she should resign or impliedly suggested that her employment would be terminated. Stetson, 995 F.2d at 361. The plaintiff received favorable performance evaluations, promotions, and transfers in the past that she concedes were beneficial to her career at Four Seasons. Moreover, the plaintiff admits that, in denying her application for the Fitness Center Manager position, Mancini told her that she needed "to wait a little longer . . . your wait will not be as long as it has been," (Pl.'s Exs. X, Mancini Aff. D at 195-196). Rather than impliedly suggesting that the plaintiff's career at Four Seasons was over, Mancini implied that the plaintiff could expect to be promoted to a management position in the future. Cf. Whidbee, 223 F.3d at 74 (finding that employer did not intend to create intolerable workplace conditions because the evidence showed that employer wanted employees to remain in its employ). Although the plaintiff may have been disappointed with the rate at which she was being promoted, no rational jury could conclude that Four Seasons deliberately created working conditions that would cause a reasonable person to feel compelled to resign. In sum, the plaintiff has failed to proffer any evidence to support the discharge element of her prima facie case. Because the plaintiff has failed to establish a prima facie case of employment discrimination based on her resignation from Four Seasons, the defendant's motion for summary judgment dismissing this claim must be granted.
For the reasons explained above, the plaintiff's constructive discharge claim must also be denied because the failure to promote her to the Fitness Center Manager position — the central allegation of her constructive discharge claim — did not occur under circumstances giving rise to an inference of discrimination.
D.
The defendant also argues that summary judgment should be granted with respect to the plaintiff's breach of contract claim. The plaintiff claims that Four Seasons breached EmPact by: (1) failing to post vacant positions for the 1994 Front Desk Assistant Manager position, the 1995 Night Manager position and the 1995 Front Office Manager position; (2) hiring for the 1995 Front Office Supervisor position based on nepotism and not on job related qualifications; (3) promoting Stansfield to the 1997 Night Manager position before he applied for the position and before he was eligible; (4) transferring the plaintiff to Housekeeping Floor Supervisor; (5) not supporting and encouraging her to realize her full potential by discouraging her to apply for the 1997 Front Desk Assistant Manager position; (6) hiring an outside candidate for the 1997 Housekeeping Assistant Manager position without having posted the position for three days; (7) promoting Sanchez for the restructured position of Front of the House Assistant Manager. The defendant argues that any claim for breach of contract is barred because the plaintiff failed to comply with EmPact's internal grievance procedures and because a provision of EmPact limited the defendant's liability for a breach of EmPact.
EmPact establishes a procedure, known as Complaint, Arbitration Review for Employees ("CARE"), for the resolution of complaints, including those arising from alleged violations of EmPact. (Compl. Ex. B at 51-52.) CARE implements a five-step complaint resolution procedure that culminates with a meeting with Four Seasons' General Manager, who must give the complainant a written decision within seven days of the meeting. (Compl. Ex. B at 51.) In the event that an employee is terminated, binding arbitration is available, and if the arbitrator determines that the termination violated EmPact, the employee's remedy is the award of No-Fault Separation Pay. (Compl. Ex. B. at 51-52.) The EmPact Summary and Understanding signed by the plaintiff provides that the plaintiff had read EmPact and promised to "[u]se C.A.R.E. first for all complaints." (Mancini Aff. Ex. F.)
Although EmPact does not provide for a fixed duration of employment, the defendant does not contest that it is bound by the provisions of EmPact relating to the plaintiff's employment. Where an employer promulgates policies specifying procedures or grounds for termination and provides for severance pay as a result of termination "[t]hese procedures become a part of the employment contract and must be followed." Mycak v. Honeywell Inc., 953 F.2d 798, 801-02 (2d Cir. 1992).
Where parties "set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms."W.W.W. Assoc., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990); see also Genesco, Inc. v. Kakiuchi Co., Ltd., 815 F.2d 840, 845 (2d Cir. 1987) ("Under general contract principles a party is bound by the provisions of a contract that he signs, unless he can show special circumstances that would relieve him of such an obligation."). The plaintiff was required by EmPact to use CARE for all complaints before filing an action, including complaints regarding the breach of EmPact.Cf. Neiman v. Kingsborough Community College, 536 N.Y.S.2d 843, 845 (App.Div. 1989) (dismissing complaint where sole remedy lay in grievance procedure); In re Willard Alexander, Inc., 327 N.Y.S.2d 282, 283-84 (App. Div. 1971) (per curiam) (enforcing a provision of a contract that provided that the exclusive remedy for breach of contract was the adjudication of grievances before an executive board); Zeniuk v. R.K.A. Inc., 472 N.W.2d 23, 25 (Mich.App. 1991) (finding that a plaintiff may not "claim only the benefits of [an employer's] stated policy while rejecting the concomitant obligation to file a grievance and request for arbitration in order to enforce those benefits.").
Here, the plaintiff admits that she was aware of the CARE procedure and that she did not use the CARE procedure. (Pl.'s Notice in Opp. ¶ 22; Mancini Aff. Ex. D at 78-80.) The plaintiff instead argues that the various experiences of many other African American employees that she was aware of with Four Seasons' General Manager, the Director of Human Resources, and their immediate supervisors were so disparaging that resort to the CARE procedure would have been futile. (Pl.'s Notice in Opp. ¶ 19-22.) These allegations, however, are wholly conclusory and do not rely on "concrete particulars." Bickerstaff, 196 F.3d at 451. The plaintiff does not specify which other employees used the CARE procedure and had received written decisions issued by either the Director of Human Resources or the General Manager. Leila Scott Pray, referred to in the plaintiff's deposition, never used the CARE procedure. (Second Mancini Aff. ¶ 6.) None of the affirmations submitted on her behalf by other African American employees assert that those employees used the specific steps of the CARE procedure in dealing with their complaints, although they did speak with various supervisors. (Pl.'s Exs. C at ¶¶ 18, 20; E at ¶¶ 13, 15, 22; F at ¶¶ 15, 22-23, 25-26.) To the extent that Mansfield dealt with Four Seasons' General Manager such that it can be inferred that he used the CARE procedure, his complaints were resolved when he received two weeks severance pay for his voluntary resignation. (Belva Aff. ¶ 9; Ex. D.) The plaintiff has provided no evidence that Four Seasons retaliated against these employees; in fact, two of them received promotions after discussing their situation with a supervisor. (Pl.'s Exs. C at ¶ 20; E at ¶¶ 22, 37)
Although the plaintiff points to her deposition testimony for anecdotal instances where other employees who she alleges were discriminated against discussed complaints with a supervisor or Human Resources Director, this is inadmissible hearsay and cannot be considered in deciding a motion for summary judgment. See Burlington Coat Factory, 769 F.2d at 924; Griffin, 103 F. Supp.2d at 304 n. 11; Rosensaft, 1997 WL 749384, at *3 In any event, there is no evidence that these employees specifically used the steps of the CARE procedure.
In addition, other than the plaintiff's own allegations, there is no evidence of African American employees being discriminated against in their use of the CARE procedure. Other than one allegation by Mansfield that Mr. Gurtner, Four Seasons' General Manager in Human Resources, made unspecified derogatory comments toward him (Pl. Ex. F, ¶ 26), the plaintiff points to no other derogatory statements made by decision-makers, or any other evidence of discrimination or racial animus by decision-makers within the chain of the CARE procedural process at Four Seasons. Thus, the plaintiff has not presented any evidence that her use of the CARE procedure would have been futile or that she should otherwise be excused from her contractual obligation to use it. Because the plaintiff failed to follow the contractual procedures that she was bound to follow, she cannot sue for breach of that contract.
Moreover, the plaintiff's breach of contract claim also fails because the contract specifically limits the defendant's liability for breach of contract. Under New York law, "a party in a contract action is generally confined to the remedies found in the contract." Suzy Phillips Originals, Inc. v. Coville, Inc., 939 F. Supp. 1012, 1016 (E.D.N.Y. 1996), aff'd, 125 F.3d 845 (2d. Cir. 1997); Niagara Mohawk Power Corp. v. Stone Webster Eng. Corp., 725 F. Supp. 656, 664 (N.D.N.Y. 1989). The New York Court of Appeals, in determining that New York's contribution statute did not apply to economic loss resulting from a breach of contract, has noted that:
Parties to a contract have the power to specifically delineate the scope of their liability at the time the contract is formed. Thus, there is nothing unfair in defining a contracting party's liability by the scope of its promise as reflected by the agreement of the parties. Indeed, this is required by the very nature of contract law, where potential liability is determined in advance by the parties.Bd. of Educ. of the Hudson City School Dist. v. Sargent, Webster, Crenshaw Folley, 517 N.E.2d 1360, 1365 (N.Y. 1987)
An unambiguous contractual provision that limits the liability of a party for the breach of a contract is enforceable unless a special relationship between the parties, a statute, or public policy imposes liability. See, e.g., Metro. Life Ins. Co. v. Noble Lowndes Int'l Inc., 643 N.E.2d 504, 507-508 (N.Y. 1994) (upholding provision limiting the defendant's liability for consequential damages); Peluso v. Tauscher Cronacher Prof'l Eng'rs, P.C., 704 N.Y.S.2d 289, 290 (App.Div. 2000) (upholding provision limiting damages to fee paid for services); Canstar v. J.A. Jones Constr. Co., 622 N.Y.S.2d 730 (App.Div. 1995) (upholding unambiguous provision limiting damages to fee paid for services); Rivkin v. Brackmen, 561 N.Y.S.2d 738, 740 (App.Div. 199 0); Songer v. Mack Trucks, Inc., 256 N.Y.S.2d 313, 315 (App.Div. 196 5) (limiting plaintiff to remedies provided for in employment contract where plaintiff was involuntarily terminated). In general, "whether the breaching party deliberately rather than inadvertently failed to perform contractual obligations" does not affect provisions limiting the measure of damages for breach of contract unless stated in the contract. Noble Lowndes, 643 N.E.2d at 507.
In this case, EmPact expressly provides in its Summary and Understanding, which the plaintiff signed, that an employee shall "Accept the No-Fault Separation Pay as [their] relief for any breach of EmPact by the Four Seasons Hotel New York." (Compl. Ex. B at 63-64; Mancini Aff. Ex. F.) (emphasis in original). No-Fault Separation Pay is available only in the event of an involuntary termination either: (1) where an arbitrator has determined that a terminated employee was not at fault; (2) where an employee has received a permanent lay-off with no right of recall; or (3) where an employee is terminated as a result of not being offered comparable employment in the event of the sale of the company or the loss of the management contract. (Compl. Ex. B at 51-53.) The contract also provides that there is no right to arbitrate any decision, policy or practice other than a termination. (Compl. Ex. B at 51.)
The language of the limitation on remedies is clear and unambiguous and "was not so obscured in the contract as to make it probable that it would escape the plaintiff's attention." Sanif v. Iannotti, 500 N.Y.S.2d 798, 797 (App.Div. 1986). The contract provided a means for employees to attempt to resolve contract disputes through a detailed grievance process, thereby allowing the employer to attempt to resolve the grievance. Only the most severe grievance, involving termination, was subject to arbitration and the only damages available under the contract were limited in amount and were only available in the event of certain terminations. The plaintiff has not argued that she fits into any of the categories for which damages were available and it is plain that she does not.
The plaintiff has not argued, and there is no evidence in the record to indicate, that a governing statute, a special relationship between the parties, or a public policy interest warrants relieving the plaintiff of the contractual limitation on damages. Moreover, the plaintiff has not provided evidence of unconscionability to avoid operation of the provision limiting the defendant's liability for breach of contract. See Daily News, L.P. v. Rockwell Int'l Corp., 680 N.Y.S.2d 510 (App.Div. 199 8);Rivkin, 561 N.Y.S.2d at 740. Thus, there are no issues of fact as to whether this provision limiting the defendant's liability is enforceable. Because the plaintiff voluntarily resigned her employment and was not terminated in a manner entitling her to No-Fault Separation Pay, the plaintiff is barred from obtaining monetary relief for a breach of contract by the provision of EmPact limiting monetary damages to No-Fault Separation Pay.
Accordingly, the plaintiff's motion for summary judgment dismissing the plaintiff's breach of contract claim is granted.
CONCLUSION
For the reasons explained above, the defendant's motion for summary judgment is granted and the plaintiff's claims under Title VII and for breach of contract are dismissed. The Clerk of the Court is directed to enter judgment dismissing the complaint and closing the case.
The Court has carefully considered all the arguments presented by the parties. Any argument not expressly discussed above is either moot or without merit.
SO ORDERED.