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granting summary judgment, inter alia, as to the plaintiff's Title VII discrimination claims, and declining to exercise supplemental jurisdiction in part where "plaintiff will not be barred from bringing her claim before the state court, since her claim is tolled under New York Civil Practice Law § 205"
Summary of this case from Murray v. Visiting Nurse Services of New YorkOpinion
01 Civ. 4255 (AKH)
March 4, 2003
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Galina Henkin brings suit against defendant Forest Laboratories, Inc. ("Forest Labs"), claiming that defendant's termination of her employment was a discriminatory action based on national origin and religion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (2002), and based upon age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634 (2002). In addition, she claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207 (2002), and for quantum meruit for defendant's failure to pay overtime and bonuses, and asserts a claim for retaliation under New York Labor Law § 740(2) (2002). Defendant moves for summary judgment. dismissing all of plaintiffs claims.
I hold that plaintiff has failed to show merit with respect to her Title VII, ADEA, FLSA and quantum meruit claims, and that defendant is entitled to summary judgment, dismissing them. I decline to exercise supplemental jurisdiction over plaintiffs remaining state claim.
I. Background
A. Plaintiff's Discrimination Claims
Plaintiff is a Russian-Jewish immigrant. She began her employment with defendant Forest Labs, a pharmaceutical company, on August 9, 1995, when she was fifty-seven years old. She was hired for the position of Scientist I in Forest Lab's Research and Development Department. During her first two years of employment, plaintiff received satisfactory performance evaluations and received annual performance bonuses.
In 1997, Forest Labs brought in new management. Soon after that, in the summer of 1997, the Research and Development unit was transferred from a facility in Inwood, N.Y. to Farmingdale, NY. The Inwood facility remained open for other functions. Plaintiff was displeased with the transfer because it increased her commute by about three hours a day, but she continued to work for defendant. She claims, however, that the Human Resources Manager and the Director of Research and Development at the time promised her that the transfer was only temporary. Defendant claims that no such promise was, nor could have been, made, since there were no longer Research and Development positions at the Inwood facility, the whole unit having been transferred to Farmingdale.
Plaintiff alleges that, after the transfer, she was subjected to disparaging and humiliating behavior because she was Jewish, a Russian immigrant, and older than most of the other employees in her division. For example, plaintiff complains that on one occasion, when she was helping the Section Head of the Research and Development Department, Kostas Lambiris, fix a machine needing repairs, he threw a wrench at her. Plaintiff also alleges that, on another occasion, she was asked to move forty one-gallon bottles of solvent while younger chemists were allowed to play computer games. In addition, she claims that after Benedict Albolote became her supervisor in March of 1998, he paged her up to fifteen times a day, often asking her to bring numerous reports with her, despite knowing that recent foot surgery made it difficult for her to carry heavy objects. She claims that Mr. Albolote approached younger chemists at their desks, but made plaintiff come to him in his office. Finally, plaintiff complains that when she and other members of her team made mistakes, she alone would be singled out for criticism.
Plaintiff alleges that from 1997 until the time she was discharged, defendant fired or constructively discharged all the other Jewish chemists, chemists over the age of forty, and Russian chemists. She complains that younger, non-Jewish chemists with less experience than she were promoted, pointing to Mr. Albolote, who, when he was promoted to plaintiffs supervisor, had fewer years of education and less experience than plaintiff. Plaintiff also claims that she was the last older, Jewish immigrant chemist left when her employment was terminated. However, the evidence shows that, of the two older Jewish chemists who left, one did so in order to pursue other business opportunities, and the other was terminated after failing to return from an extended FMLA leave.
B. Plaintiffs Performance Evaluations and Warning Letters
While plaintiff complains that she was singled out for criticism and was not promoted, an examination of her job evaluations reveals that her performance was evaluated as below average. During the course of her employment, plaintiff received three job performance evaluations and two letters regarding the performance of her duties. Plaintiff's performance evaluations show that while her work was not unsatisfactory, her cumulative ratings always fell below expectations. Under the assessment system followed by Forest Labs, a mark of "1" indicated unsatisfactory performance, a "2" indicated that improvement was needed, a "3" indicated that expectations were attained, a "4" indicated that expectations were exceeded, and a "5" indicated that expectations had been substantially exceeded. On her first evaluation, in 1996, after one year of work at the company, plaintiff received a cumulative overall performance rating of 2.6. Her second evaluation, done at the end of 1997, indicated a performance rating of 2.7. The third evaluation, done at the end of 1998, gave plaintiff a performance rating of 2.8. Each of these evaluations was completed by a different supervisor, and all reflected that plaintiff's work was below expectations and needed improvement.
Moreover, two letters plaintiff received from management indicate that she was not carefully following laboratory procedures. In August 1997, plaintiff received a letter from Mr. Lambiris, inquiring into a change of data file names that was made without proper authorization. Plaintiff responded by blaming the computer system. In March 1999, plaintiff again received a performance warning from Mr. Lambiris, citing her carelessness in following written procedures for sample preparations and analyses.
C. Forest Lab's Discharge of Plaintiff
Plaintiffs substandard performance was not, however, defendant's immediate reason for terminating her employment. In early May 1999, a lab supervisor in Forest's Research and Development Department noticed irregularities in calibration reports done by two chemists, Seung-Yeon Won, who had been trained by plaintiff, and Albert Gall, both of whom admitted to discarding test results. Plaintiff admitted that she, also, discarded test results, claiming that she had been instructed to do so and that such practices were consistent with Forest Lab's procedures. Finding that plaintiff had violated FDA regulations, defendant suspended plaintiff, and two weeks later formally discharged her. Mr. Gall was also discharged, and Ms. Won and Mr. Albolote, the Project Team Leader, were disciplined.
This was not the first time that defendant had discharged an employee for discarding data. A few months before plaintiff's discharge, in February 1999, a Scientist II who had admitted to throwing out eight test reports was terminated.
D. Plaintiff's Retaliation Claim
Plaintiff claims that it was not she, but the Research and Development Department at Forest Labs that was violating FDA regulations, and she contends that her negative performance evaluations and discharge constituted retaliation for her reports of these violations and her refusal to take part in violative activity. Plaintiff alleges that her training did not follow FDA requirements, so that instead of being trained to use certain equipment, as required by the FDA, she had to learn by self-study. She also contends that before a 1999 inspection by FDA auditors, the management of the Research and Development department instructed team leaders to discard any experiment result receipts that were not included in the official record, again in violation of FDA regulations. Plaintiff claims that she complained of these violations to management. She also claims that she refused to engage in testing practices that she believed violated the FDA. For example, in April 1999, she claims that she was ordered to perform tests on tablets enclosed in rusty packaging, in direct violation of FDA regulations, and refused to do so.
Plaintiff filed a charge with the New York State Division of Human Rights ("Human Rights Division") on October 19, 1999. On November 28, 2000, the Human Rights Division issued a determination and order finding that there was no probable cause to believe that Forest Labs had engaged in unlawful discrimination. On or about November 19, 1999, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which issued a Right to Sue letter on February 8, 2001. Plaintiff filed the instant Complaint on May 18, 2001, and defendants, after discovery, now move for summary judgment.
II. Summary Judgment Standards
Summary judgment is warranted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show 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." Fed.R.Civ.P. 56(c). A "genuine issue" of "material 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). Although all facts and inferences therefrom are to be construed in favor of the party opposing the motion, see Harlen Assocs. v. Village of Mineola, 273 F.3d 494, 498 (2d Cir. 2001), the non-moving party must raise more than just "metaphysical doubt as to the material facts,"Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen, 273 F.3d at 499. "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
While the court views the evidence in the light most favorable to the non-moving party, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48. Rather, summary judgment is appropriate "when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."Matsushita, 475 U.S. at 587.
In an employment discrimination case, such as this, where intent is an issue, the Second Circuit has urged caution in granting summary judgment, since direct evidence of intentional discrimination is available only in the rarest of instances. Belfi v. Prendergast, 191 F.3d 129 (2d Cir. 1999) (noting that "the trial court must be especially cautious in deciding whether to grant [summary judgment] in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination"); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). However, summary judgment is by no means precluded in employment discrimination cases. Indeed, the Second Circuit has noted that the "salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Meiri, 759 F.2d at 998.
III. Plaintiff's Title VII and ADEA Discrimination Claims
Plaintiff claims that her termination was a discriminatory action taken on the basis of national origin and religion in violation of Title VII, 42 U.S.C. § 2000e-2000e-17, and on the basis of age, in violation of the ADEA, 29 U.S.C. § 621-634. Title VII, in relevant part, makes it unlawful for an employer to "discharge any individual or otherwise discriminate against any individual with regard 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). The ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a) (1.
A. Burden-Shifting Analysis
Courts analyzing claims under Title VII and the ADEA apply the three step burden-shifting approach established by the Supreme Court inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972); see Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001);Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999). At the first stage, the burden of production rests with the plaintiff to prove by a preponderance of the evidence a prima facie case of discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999),cert. denied, 530 U.S. 1242 (2000). If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action of which plaintiff complains. See Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Holt v. KMI-Continental Inc., 95 F.3d 123, 129 (2d Cir. 1996). If the defendant satisfies its burden, the burden shifts back to the plaintiff to demonstrate that the reasons proffered by the defendant are merely pretexts for discrimination. St. Mary's Honor Ctr., 509 U.S. at 507-08. At this stage, in order to prevail on a summary judgment motion, the plaintiff must submit "evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). Evidence "contradicting the employer's given reason — without more — does not necessarily give logical support to an inference of discrimination," and is therefore not enough to meet plaintiff's burden. James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). Instead, the court must conclude, based on the factual record taken as a whole, that a reasonable jury could find discrimination to have been at least a contributing factor in the defendant's decision. Wolde-Meskel v. Argus Cmty. Inc., No. 99 Civ. 10112, 2001 U.S. Dist. Lexis 11261, at *15-*16 (S.D.N.Y. Aug. 6, 2001). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr., 509 U.S. at 507 (citation omitted).
B. Plaintiff's Prima Facie Case
In order to establish a prima facie case under Title VII, plaintiff must demonstrate that: (1) she belongs to a protected class; (2) she was performing her duties satisfactorily; (3) she was discharged; and (4) her discharge occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in that class. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). The test for making out a prima facie case under the ADEA is substantially the same. See Slattery, 248 F.3d at 91 (in order to make out a prima facie case of age discrimination, plaintiff had to demonstrate that he was within the protected age group, meaning that he was over the age of forty; was qualified for the position; was discharged; and that such discharge occurred under circumstances giving rise to an inference of discrimination).
Plaintiff is a Russian immigrant, is Jewish, and at the time she was discharged, was 61 years old. The first and third prongs of the test are therefore satisfied. With respect to the second prong, the Second Circuit has held that "all that is required is that the plaintiff establish basic eligibility for the position at issue." Id.. at 92; Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (holding that plaintiff need only show that he "possesses the basic skills necessary for performance of [the] job."). When plaintiff started her employment at Forest Labs, she had almost 30 years of experience as a chemist, including two years at a pharmaceutical company in the United States, and had published various articles and books, some of which had been translated into English. Such experience is sufficient to show that she possessed the basic skills necessary for the position she held as Scientist I at Forest Labs. The only question that remains is whether her discharge occurred in circumstances giving rise to an inference of discrimination.
Recognizing that the burden at this stage is de minimis, McLee, 109 F.3d at 134, plaintiff's allegations of being singled out for harsh treatment while younger non-Jewish coworkers were not disciplined for the same or similar mistakes; that defendant put a younger, non-Jewish employee in the position plaintiff held at the Inwood facility; that defendant promoted younger, less experienced chemists over her; and that she was the only older, Jewish chemist left in the department when she was fired may be enough to make out a prima facie case. I will assume that plaintiff has satisfied at this stage her minimal burden.
C. Defendant Has a Legitimate Non-Discriminatory Reason for Discharge That Plaintiff Fails to Show is Pretextual
Defendant explains that plaintiff was discharged because she admitted to discarding data, in violation of FDA and Forest Labs regulations, and points to her substandard job performance evaluations and two performance warning letters as further cause for discharge. Defendant thus proffers a legitimate, nondiscriminatory reason for terminating plaintiffs employment, and any presumption of discrimination is rebutted. See Wolde-Meskel, 2001 U.S. Dist. Lexis 11261, at *26 (finding that defendant had carried burden in rebutting presumption of discrimination where defendant had presented evidence to show that plaintiff was fired due to documented poor work product). The burden is therefore shifted to plaintiff to show that defendant's reasons for discharging her are pretextual.
Plaintiff contends that defendants had no basis for discharging her, claiming that she did not discard data, that if she did, it was under the direction of management, and that she did satisfactory work as illustrated by the performance bonus she received after her first year of work. Plaintiff also criticizes her performance evaluations as being inconsistent and untruthful. She insists on her professionalism, and points not only to her considerable experience as a chemist, but also to a number of occasions when, because of her expertise, she was asked by the management at Forest Labs to give demonstrations to the other chemists.
Although plaintiff challenges the reasons behind her termination, "the creation of a genuine issue of fact with respect to pretext alone is not sufficient" to make out a case of discrimination. Grady, 130 F.3d at 561. Instead, plaintiff must also proffer evidence that would permit a rational factfinder to infer that her termination was actually motivated, in whole or in part, by discrimination. Id.; see also St. Mary's Honor Ctr., 509 U.S. at 515 (holding that an employer's proffered reason for termination "cannot be proved to be a pretext `for discriminations' unless it is shown both that the reason was false, and that discrimination was the real reason"); Wolde-Meskel, 2001 U.S. Dist. Lexis 11261, at *28 (ruling that even if plaintiffs defenses and explanations with respect to his poor job performance create a genuine issue of fact, plaintiff must "come forward with evidence suggesting discrimination and not just the falsity of his employer's proffered reasons" for discharge). Thus, an employee's disagreement with her employer's perception of her work does not satisfy her burden of showing that the employer's proffered reason for termination was a pretext for discrimination. See McLee, 109 F.3d at 135; Abouzied v. Roy H. Mann Jr. H.S. No. 78, No. 97-CV-7613, 2000 U.S. Dist. LEXIS 14038, at *12 (E.D.N.Y. Aug. 30, 2000). Although plaintiff contests her evaluations and her discharge, this alone cannot provide the basis for her discrimination claims. Indeed, even assuming that a jury could believe that plaintiff's disposal of data and substandard job evaluations could not have sufficed to make defendant fire her, the evidence presented by plaintiff is not enough to permit a jury to find that the real reason she was fired was because of her national origin, her religion, or her age. See Slattery, 248 F.3d at 94.
Plaintiff, attempting to buttress her claim of pretext, contends in her deposition that at least one of her supervisors referred to her as "an old Jew witch." Not only does defendant categorically deny that any such remarks were made, but plaintiff did not make these allegations in her filing before the Human Rights Division, in her Complaint, or in the body of her supporting affidavit. The first time that plaintiff made this charge was in rebuttal of Mr. Lambiris' affidavit. Plaintiffs late charge cannot supplant the absence of proof of discrimination.
Plaintiff also claims that Mr. Gall, who was fired at the same time that she was, was Jewish. While this fact is disputed, it makes little difference. The Second Circuit has cautioned against attributing much, if any, significance to the fact that another member of the protected class was discharged along with the plaintiff. Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 382 (2d Cir. 2001). Moreover, because defendant provides a legitimate non-discriminatory reason for Mr. Gall's termination, his discharge does not support an inference of discrimination.
Plaintiff also seeks to support her discrimination claim with her allegations that at the time she was terminated, she was the last older person left in the Research and Development department. However, the record shows that after her termination, in 2000, Forest Labs hired two chemists over the age of forty. of the six workers who held positions as Scientist I and were terminated between 1997 and 2000, only two were over the age of forty and three were below the age of thirty. Finally, of the two Russian, Jewish immigrants whom plaintiff identifies as having been constructively discharged by defendant, defendant explains that one left after failing to return from FMLA leave and an additional 10-week leave, and the other resigned to pursue alternate business opportunities, thanking the staff at Forest Labs by letter for their kindness. Given this evidence, and evidence that defendant continued to hire people in plaintiff's age group, plaintiff cannot meet her burden of showing that her discharge was motivated by discrimination.
Finally, plaintiff intimates that the chronology of events surrounding her discharge impugns the credibility of Forest Lab's reasons for her termination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2d Cir. 2000). The chronology, however, is not enough to show discrimination. Defendants allegedly discovered that data was being destroyed on May 5, 1999. Mr. Gall was fired within two days of the discovery, and plaintiff was fired two weeks later, on May 21, 1999. Ms. Won, who was new, was issued a warning on August 13, 1999, three months after the incident. Plaintiff argues that the delay was because plaintiff retained counsel, but that argument, whether true or not, does not show that her termination occurred because of discriminatory animus.
Plaintiff also does not rebut defendant's proof with respect to Mr. Albolote's promotion and her transfer to the Farmingdale facility. Although plaintiff asserts that younger workers, like Mr. Albolote, were promoted while she was not, since plaintiffs performance reviews were substandard, it is clear that there would be no basis to promote her. In addition, the evidence is clear that plaintiff's position at the Inwood laboratory was transferred to a position at the Farmingdale facility, and was not given to someone else. There is no showing, therefore, that defendant's actions were motivated by discrimination.
Instead, the record makes clear that plaintiff was not reaching adequate levels of performance and was not following procedures correctly. On the basis of such a record, a rational factfinder would have no grounds for finding discrimination to have been even a contributing factor in the defendant's decision to discharge plaintiff.See Wolde-Meskel, 2001 U.S. Dist. Lexis 11261, at *15-*16. Plaintiffs claims for discrimination based on national origin and religion under Title VII and on age under the ADEA are therefore dismissed.
IV. Plaintiff's Hostile Work Environment Claim
In addition to her discrimination claims, plaintiff also brings a hostile work environment claim under Title VII and the ADEA. Under both statutes, a plaintiff bringing a hostile work environment claim must demonstrate that she belongs to a protected class, she suffered unwelcome harassment, she was harassed because of her membership in a protected class and that the harassment was sufficiently pervasive to alter the conditions of her employment and create an abusive work environment.Mentor Sav. Bank FSB v. Vinson, 477 U.S. 57, 65, 91 L.Ed.2d 49, 106 S.Ct. 2399 (1986); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (Title VII); Brennan v. Metro Opera Ass'n Inc., 192 F.3d 310, 316-17 (2d Cir. 1999) (ADEA).
Plaintiff alleges that Mr. Lambiris screamed at her and, on one occasion, threw a wrench at her. She claims that she was forced her to carry bottles and files back and forth after undergoing foot surgery. She also complains that Mr. Albolote would constantly page her to call her to his office, and would sometimes page her and then leave his office. She also alleges that a coworker called her an "old Jew witch." She claims that these incidents show a hostile work environment.
In order to make out a hostile work environment claim under either Title VII or the ADEA, plaintiff must show that the alleged hostile behavior was discriminatory. Richardson v. N.Y. State Dep't of Corr. Servs., No. 97-CV-0818E, 2001 U.S. Dist. LEXIS 7164, at *23 (W.D.N.Y. May 25, 2001) ("Plaintiff must present evidence that the acts complained of were motivated by discriminatory intent."). Plaintiff has not met her burden in this respect. The evidence is clear that plaintiff's supervisors may have been hostile towards her, but there is no evidence that this hostility was because of her protected class. Plaintiff does not show that hostility to her arose out of any animus towards plaintiff based on her religion, national origin, or age. Title VII and the ADEA are not general civility codes. Brennan, 192 F.3d at 314-16, 319. And, as for the alleged epithet of an "old Jewish witch," this one isolated allegation does not create a hostile work environment. See Stembridge v. City of New York, 88 F. Supp.2d 276, 286 (S.D.N.Y.) (finding use of epithets "uppity nigger" and "boy" on two isolated occasions over the course of three years not sufficient to create hostile work environment). Summary judgment is therefore granted to defendant on plaintiff's hostile work environment claim.
V. Plaintiff's FLSA and Quantum Meruit Claims
In addition to her Title VII and ADEA claims, plaintiff brings a claim under the FLSA, 29 U.S.C. § 207, and for quantum meruit, complaining that defendant was unjustly enriched because the amount of her bonuses for 1997 and 1998 were lower than was stipulated in her hiring letter and because beginning on January 1, 1999, defendant stopped paying her overtime. Defendant asserts that the FLSA claim is time-barred, and challenges the merits of both claims. Whether the FLSA claim is timely is irrelevant because neither claim has merit.
First, plaintiff's claim that she was not afforded the bonuses she was promised must fail because defendant's employment offer letter never guaranteed plaintiff a particular bonus level, but only suggested that past bonuses had been in the range of five to ten percent. It is axiomatic that without a promise there can be no contract and no action in quasi-contract. See Restatement (Second) of Contracts, §§ 1-2, § 90 (1981). Plaintiff's claim for quantum meruit is therefore dismissed.
Second, the discontinuance of plaintiff's overtime after January 1, 1999, was in no way a violation of the FLSA. In January 1, 1999, defendant began to treat its chemists as exempt employees, increasing their salary level, but terminating the payment of overtime. This decision fully accords with the FLSA and the regulations promulgated pursuant to it.
Under section 13(a) of the FLSA, "any employee employed in a bona fide executive, administrative or professional capacity" is exempted from the minimum wage and maximum hour requirements of the Act. 29 U.S.C. § 213 (a). The regulations promulgated under the FLSA provide that an employee will be deemed to be working in a "professional capacity" if her "primary duty consists of the performance of . . . [w]ork requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study." 29 C.F.R. § 541.3 (a)(1). Plaintiffs work as a chemist certainly meets this criteria. Indeed, the regulations expressly contemplate that chemists would fit within the purview of exempt employees under section 13(a). See id. § 541.306(a) (providing example of a professional chemist to illustrate what it means to be engaged in work predominantly intellectual and varied in character as required by 29 C.F.R. § 541.3). Since plaintiff was properly deemed an exempt employee, she has no claim under the ELSA for overtime. Defendant's motion for summary judgment is granted.
VI. Plaintiffs Retaliation Claim Under New York Labor Law § 740(2)
New York Labor Law § 740(2) prohibits an employer from taking "any retaliatory personnel action against an employee because such employee . . . discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" where the violation "creates and presents a substantial and specific danger to the public health or safety," or because the employee "objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation." N.Y. Lab. Law § 740(2) (2002). An employee who has been subjected to a retaliatory personnel action and wishes to institute a civil action on these grounds must do so within one year after the alleged retaliatory personnel action was taken. N.Y. Lab. Law § 740(4)(a).
Plaintiff claims that her discharge was a retaliatory personnel action taken because she complained to management about violations of FDA regulations and refused to take part in tests that she believed violated such regulations. Defendant urges the Court to find the claim time-barred, since plaintiff filed her Complaint on May 18, 2001, two years after her discharge, and a year after the statute of limitations on the § 740(2) claim had run. Plaintiff, in response, urges the court to follow those courts who have tolled the statute of limitations on an independent state claim during the pendency of an EEOC filing. I shall not, however, address either this issue, nor the merits of plaintiff's claim. Having dismissed plaintiff's Title VII, ADEA, and ELSA claims, I decline to take supplemental jurisdiction over her state claim.
It should be noted that plaintiff has not brought, and in fact would have no basis for, a claim for retaliation under Title VII. In order to make out a retaliation claim under Title VII, a plaintiff must demonstrate that (1) she engaged in an activity protected by Title VII; (2) her employer was aware of that activity; (3) she suffered an adverse employment action; and (4) there is a causal connection between the protected activity and that employment action. McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). Because plaintiff never openly opposed any alleged unlawful employment practice, never reported any alleged discrimination to anyone in defendant's Human Resources department, and, before her discharge, never made any claims before either the Human Rights Division or the EEOC, she did not engage in activity protected by Title VII, and therefore would not be able to demonstrate the first factor in the test.
Under 28 U.S.C. § 1367 (c)(3), a district court may decline to exercise supplemental jurisdiction if the district court has dismissed all claims over which it has original jurisdiction. Once the federal claims in a case have been dismissed, the court, in its discretion, should consider whether the considerations of judicial economy, convenience, and fairness to litigants require that supplemental jurisdiction be exercised. Castellano v. Bd. of Trustees, 937 F.2d 752, 758 (2d Cir. 1991). Where, as here, plaintiffs claims are dismissed before trial, these considerations weigh in favor of dismissing the state claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . judicial economy, convenience, fairness, and comity . . . will point toward declining to exercise jurisdiction over the remaining state-law claims."); Castellano, 937 F.2d at 758 ("If the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."). Other factors, too, demonstrate that these considerations favor declining jurisdiction. In particular, the state policies behind § 740(2) differ considerably from those implicated in Title VII and the ADEA, see Swanston v. Pataki, No. 97 Civ. 9406, 1999 U.S. Dist. Lexis 10756, at *19 (S.D.N.Y. July 15, 1999) (holding that the "[w]histleblower cause of action incorporates policies, elements and remedies distinct from those of Title VII"), weighing strongly in favor of allowing the state court to hear plaintiffs claims. Moreover, plaintiff will not be barred from bringing her claim before the state court, since her claim is tolled under New York Civil Practice Law § 205(a). Taking all of this into consideration, then, I decline to exercise supplemental jurisdiction over plaintiff's § 740(2) claim.
VII. Conclusion
As summary judgment has been granted to defendant on plaintiff's Title VII, ADEA, FLSA, and quantum meruit claims, and I have declined to exercise supplemental jurisdiction over plaintiffs remaining state law claim, the Clerk of the Court is directed to mark this case as closed.
SO ORDERED.