Opinion
02-CV-0166E(Sr)
February 17, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this employment discrimination action March 4, 2002 alleging that defendant had violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's Complaint. For the reasons stated hereinbelow, defendant's motion will be granted.
The following facts, construed favorably for plaintiff, are undisputed unless otherwise noted. Calire was hired by Taylor Staffing Services ("Taylor Staffing") in April 2000 to work as a Sales Consultant. Taylor Staffing is a Professional Employer Organization that provides employment-related services to employers. Mark Taylor is Taylor Staffing's President and Dawn Taylor is its Vice President and Secretary. Keith Kuehlewind is Taylor Staffing's General Manager and also a shareholder. Kuehlewind's duties included, inter alia, sales, the hiring of sales representatives and servicing Taylor Staffing's customers by managing their human resources function. Kuehlewind hired Calire at a salary of $40,000 per annum. In addition, Kuehlewind and Calire agreed to a commission schedule whereby Calire would earn a one-time commission for each customer that she was responsible for signing up with Taylor Staffing. Calire's yearly salary was almost twice as much as the highest salary paid to any of Taylor Staffing's previous four sales representatives. Plaintiff received a salary increase in July 2000 — to $46,800 per annum — and again in October 2000 — to $52,000 per annum. At a December 2000 staff meeting, Kuehlewind indicated that Taylor Staffing was losing money. Apparently, some of Taylor Staffing's customers had either terminated its services without fully paying their bills or fallen behind on scheduled payments. One such customer that fell behind on their payments was Step By Step Day Care, Inc. ("SBS"), which, at one point, owed Taylor Staffing more than $30,000 for payroll costs, other advances and administrative fees. As a result, Kuehlewind spent a lot of time prodding SBS to become current on its payments. SBS considered Kuehlewind's manner unprofessional. Rita Molino, SBS's owner, called Mark Taylor in January 2001 to complain about Kuehlewind and to terminate SBS's relationship with Taylor Staffing. Shortly thereafter, Taylor Staffing suspended its services to SBS and terminated their relationship. Taylor Staffing also lost its two largest customers — viz., Avery Dennison and The Pier Restaurant — sometime in the beginning of 2001. Defendant asserts that the loss of these and other customers substantially reduced its revenues and profits. As a result, Taylor Staffing's owners took steps to reduce its costs by, inter alia, reducing their personal compensation. In addition, Kuehlewind agreed to reduce his own compensation by receiving his compensation in the form of a salary with no additional commissions. Mark Taylor and Kuehlewind subsequently decided, in April 2001, to reduce Calire's salary to $30,000 per annum and to revise the structure of her commission pay-outs so that she would earn commissions only when her customers paid their fees instead of receiving it up front. Defendant asserts that the decision to reduce and restructure plaintiff's compensation was done in order to save on its costs and in consideration of its impending financial difficulties. Def.'s Mem. of Law, at 14. On or about April 30, 2001, Mark Taylor and Kuehlewind met with Calire to discuss the new compensation plan. After mulling over the newly proposed compensation plan for a few days, plaintiff agreed to the reduced compensation but requested that she be paid at a $40,000 salary rate for one month in order to give her some time to become acclimated to the new plan. Kuehlewind and Mark Taylor agreed to the proposal and the parties signed the new compensation plan on May 7, 2001. Plaintiff's reduced salary was still more than the highest salary that Taylor Staffing had ever paid to a previous sales representative. The circumstances surrounding plaintiff's subsequent departure from Taylor Staffing is in dispute. Defendant asserts that, on June 4, 2001, Kuehlewind met with Calire and that Calire walked out of the office sometime during the meeting and quit her employment with Taylor Staffing. Calire counters that sometime at the end of May of 2001, Kuehlewind had told her that things were not working out and that her employment was terminated. Calire Aff. § 24. In addition, Calire alleges that Kuehlewind followed her downstairs after the meeting and informed the rest of the staff that she had been fired. Ibid.
Taylor Staffing is not an employment agency inasmuch as it does not recruit employees to work for its customers. Rather, Taylor Staffing hires a customer's existing employees and leases them back to that customer. Taylor Staffing then carries out all of the necessary employment-related functions for the customer — i.e., payroll, benefit administration, human resources, personnel administration, legal compliance, record-keeping and safety management. In exchange, Taylor Staffing receives an administrative fee equal to a certain percentage of the customer's payroll.
Calire asserts that it was agreed between her and Kuehlewind that the $40,000 salary would be increased to $50,000 after a satisfactory review that was to occur 90 days later. Pl's Statement of Facts ¶ 1.
Plaintiff's commission structure was front-loaded, which meant that she was paid her commission as soon as she made a sale — i.e., when a customer that she had solicited signed up for Taylor Staffing's services.
Such delinquencies were a particular problem for Taylor Staffing because it paid out large amounts of money on behalf of its customers for their payroll and benefit costs and therefore depended on prompt payment to recoup such outlays.
Plaintiff objects to defendant's characterization that its customers had found Kuehlewind's manner unprofessional because he prodded them to pay bills. Plaintiff alleges that the customers found his manner unprofessional because Kuehlewind had made "sexually inappropriate comments and jokes." Pl's Statement of Facts ¶ 3.
Molino subsequently sent a letter to Mark and Dawn Taylor wherein she had provided some specific examples of Kuehlewind's unprofessional behavior. Def.'s Ex. R.
Plaintiff asserts that her compensation was reduced shortly after she reported Kuehlewind's sexually harassing behavior and that no other employee's salary was reduced in response to the alleged financial difficulties. Pl's Statement of Facts ¶ 4.
On or about that same day, plaintiff asked Chris Senecal for a letter of reference as she apparently intended to start looking for a new job.
The highest salary that Taylor Staffing had paid any previous sales representative was $23,400. Kuehlewind Aff. ¶ 27.
Specifically, Kuehlewind states: "I started to say that it `was not working out.' I intended to say that her financial performance did not justify more money and talk with her about possible ways to increase sales, but I only got out the first words. She was upset and said something I do not remember, got up and walked out of my office. I learned later from other employees that she told them I had fired her." Kuehlewind Aff. ¶ 41.
Calire also alleges that (1) Kuehlewind continually subjected her to inappropriate comments and unprofessional behavior, (2) Kuehlewind made various derogatory comments about other female employees, (3) she was offended by an incident where Kuehlewind yelled at another female employee to such a degree that she was crying hysterically and referred to an outside caller as a "black asshole," (4) Kuehlewind referred to the all-female office staff as a "henhouse," (5) Kuehlewind called another female employee a "real looker," and (6) Kuehlewind once grabbed her shoulders while speaking to her and put his face very close to hers in order to make a point. Calire Aff. ¶¶ 5-14. Plaintiff asserts that she made several informal complaints about Kuehlewind's allegedly inappropriate behavior towards female employees and clients. Id. ¶ 17. Plaintiff bases her retaliation claim on a January 2001 meeting that she had with Mark Taylor regarding Kuehlewind's behavior. Plaintiff asserts that Molino had previously called her to report that Kuehlewind had told sexually inappropriate jokes to Molino's female employees and that Molino wanted to terminate her relationship with Taylor Staffing. Plaintiff subsequently relayed the conversation to Mark Taylor and also complained to him about "some of the other client incidents involving Mr. Kuehlewind and other incidents between Mr. Kuehlewind and my female co-workers that I considered harassing." Id. ¶ 18. Plaintiff contends that, after this meeting, Kuehlewind's attitude towards her had changed and that their working relationship deteriorated over time to the point of outright hostility during the last month of her employment. Id. ¶ 19.
According to plaintiff, the behavior, which occurred "on a regular basis at least once every week or every other week," consisted of "sexually inappropriate jokes and comments, such as about the length of women's skirts or their legs. These comments were directed at both employees and people coming into the office." Calire Aff. § 6.
Plaintiff filed a September 13, 2001 Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff received her right-to-sue letter on December 4, 2001. Plaintiff subsequently filed the instant action pursuant to Title VII asserting a hosfile work environment claim and a retaliation claim.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact" and that "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact."). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, at 322.
Of course, the summary judgment standard applies to discrimination cases with the same force as it does in other cases. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law."). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.
Title VII states that "[i]t shall be an unlawful employment practice for an employer *** to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1)(2003). In the absence of direct evidence of discrimination, Title VII claims are analyzed pursuant to burden-shifting framework as espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination.
The plaintiff's burden of proof in establishing a prima facie case of discrimination is "minimal." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
For plaintiff to establish a Title VII violation based on a hosfile work environment claim, she must show "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hosfile environment to the employer." Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotations and citations omitted). The discriminatory intimidation alleged by plaintiff must be "offensive or pervasive enough that a reasonable person would find it hosfile or abusive and must have been actually perceived by plaintiff as abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether an environment is hosfile, this Court must look at the totality of the circumstances of the alleged conduct including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, at 23. "To withstand summary judgment, a `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous or concerted to have altered the conditions of [his] working environment.'" Horsford, at *9 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000)). Isolated incidents of discriminatory comments or conduct — unless extremely serious — is not sufficient to establish a hosfile working environment. See Horsford, at *9 (citing numerous cases as examples for such a proposition).
Defendant contends that plaintiff has not demonstrated that Kuehlewind's conduct was frequent or severe enough to raise a genuine issue of material fact with regard to her hosfile work environment claim. In support, defendant points out the fact that plaintiff testified that she had considered her relationship with Kuehlewind to be cordial until the last month of her employment. See Def.'s Mem. of Law, at 7 (citing Calire Dep., at 52-53). The Court agrees.
Plaintiff's evidence falls short of raising a triable issue of fact that she suffered from a hosfile work environment. To begin, plaintiff's own evidence shows that she did not feel that there was any hostility between herself and Kuehlewind until approximately the last month of her employment. See Calire Dep., at 52-53 (stating that she considered her relationship with Kuehlewind to be cordial and that she had not experienced any "hostility" until the last month of her employment). Such an admission by plaintiff not only belies her allegation that Kuehlwind had engaged in sexually inappropriate and offensive behavior throughout her employment but also negates her ability to show that she perceived Kuehlewind's conduct as either offensive or pervasive. In addition, plaintiff's evidence is insufficient to show an objectively hosfile work environment. Kuehlewind's alleged conduct was neither frequent nor severe enough to rise to the level of an actionable hosfile work environment claim. Plaintiff's own allegations regarding Kuehlewind's conduct shows that most of his allegedly inappropriate comments were directed at other employees or clients. Furthermore, some of the alleged incidents had nothing to do with plaintiff's gender and, of those that did, they occurred with neither the requisite degree of frequency nor severity. See Sales v. YM YWHA of Washington Heights and Inwood, 2003 WL 164276, at *2-6 (S.D.N.Y. 2003) (granting summary judgment to defendant with regard to plaintiff's Title VII claim where plaintiff's evidence consisted of eight incidents including sexual advances, an attempted hug and a marriage proposal by a co-worker); O'Dell v. Trans World Entertainment Corp., 153 F. Supp.2d 378, 385-386 (S.D.N.Y. 2001) (granting summary judgment to defendant where plaintiff's evidence comprised repeated requests for a date, comments about plaintiff's appearance, declarations of love, gifts and a song played by a co-worker that offended plaintiff); Feliciano v. Alpha Sector, Inc., 2002 WL 1492139, at *8 (S.D.N.Y. 2002) (granting summary judgment to defendant where plaintiff's evidence consisted of compliments, repeated requests to date, an attempted hug, a kiss and a stated desire to "lay with" plaintiff by her supervisor). In addition, plaintiff has not shown that Kuehlewind's behavior interfered with her work performance or that any single incident was extraordinarily severe. Thus, summary judgment must be granted to defendant with regard to plaintiff's hosfile work environment claim.
Turning to plaintiff's retaliation claim, in order to establish a prima facie case, she must show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [her]; and (3) a causal connection between the protected activity and the adverse employment action." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quotation marks and citation omitted). Plaintiff has not satisfied her burden.
Title VII prohibits an employer from "discriminat[ing] against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a)(2003).
Plaintiff has not shown that she engaged in protected activity. Her allegation is that she was retaliated against after the January 2001 meeting that she had with Mark Taylor by which she had relayed Molino's, as well as other customer's, complaints about Kuehlewind. However, in the absence of any proof that plaintiff complained of Kuehlewind's conduct with regard to herself or other employees, such a complaint cannot be considered protestation of an unlawful employment practice under Title VII. See Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-136 (2d Cir. 1999) (holding that a retaliation claim that is premised on a plaintiff's opposition to discrimination by a co-employee against a non-employee is not cognizable under Title VII); see also Kunzler v. Canon, USA, Inc., 257 F. Supp.2d 574, 579-583 (E.D.N.Y. 2003) (analyzing Wimmer and relevant cases in holding that plaintiff had not established that he engaged in protected activity by opposing his supervisor's alleged harassment of a customer). Plaintiff apparently attempts to salvage her retaliation claim by asserting in her September 26, 2003 Affidavit that, in addition to relaying the various customer complaints, she complained to Mark Taylor about "incidents between Mr. Kuehlewind and [her] female co-workers that [she] considered harassing." Calire Aff. ¶ 18. However, such a statement conflicts with her prior deposition testimony by which she (1) had repeatedly stated that her complaint to Mark Taylor in January 2001 was with regard to customer complaints about Kuehlewind and (2) had answered "no" to the question as to whether she had ever complained to Dawn or Mark Taylor or to any other manager about Kuehlewind's alleged sexually related comments that are alleged in her Complaint. See Calire Dep., at 53-54, 58-63, 183-184, 202, 214. "It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony." Bickerstaff, at 455 (punctuation marks and citation omitted); see also Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony.") Thus, plaintiff's affidavit neither serves as a basis to refute defendant's contention that her retaliation claim is based solely on her complaints that she had made about Kuehlewind's conduct towards customers nor raises a genuine issue of material fact whether she engaged in Title VH-protected activity. Accordingly, summary judgment must be granted to defendant with regard to plaintiff's retaliation claim because she cannot establish a prima facie case of retaliation.
There is no doubt that plaintiff bases her retaliation claim, and her alleged protected activity, solely on the January 2001 meeting with Mark Taylor. See Calire Dep., at 202; Pl's Mem. of Law, at 14.
An "unlawful employment practice" is defined as follows: "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ***." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
The Court is aware that plaintiff need only show that she had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer, at 134. However, plaintiff could not have reasonably believed that Kuehlewind's conduct that occurred outside of the workplace towards Taylor Staffing's customers was an unlawful employment practice. See id. at 136 (holding that plaintiff could not have reasonably believed that he was opposing an employment practice because his evidence did not address a discriminatory employment practice); Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 594 (2d Cir. 1988) (same).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.