Opinion
97-CV-0885E (F)
January 5, 2001
Richard J. Hogan, Jr., Esq., Niagara Falls, NY, For Plaintiff.
Richard L. Hartz, Esq. and Christina L. Feege, Esq., c/o Littler Mendelson, New York, NY, For Defendant.
MEMORANDUM and ORDER
Plaintiff, a female residing in the City of Niagara Falls, N.Y, commenced this action November 13, 1997 claiming that defendants Glenn Springs Holdings, Inc. and Occidental Chemical Corporation ("OCC"), New York sister corporations, violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e to 2000e-17, and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206 (d), by discriminating against her on the basis of sex with respect to wages and that OCC violated Title VII by retaliating against her for having lodged complaints about the alleged discriminatory practices of OCC. Plaintiff also propounds a number of state law claims, including false imprisonment, assault and battery, defamation, intentional infliction of emotional distress and violations of Section 296 of New York's Executive Law and Section 194(1) of its Labor Law. Presently before the undersigned is defendants' motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Such motion will be granted in part.
It should be noted that, insofar as any Title VII claims are alleged against Nigro, such claims must fail because Title VII applies only to employers and not to individuals. See Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995). Accordingly and for the purposes this motion, plaintiff's federal claims will be construed to be asserted only against OCC.
By Stipulation to Dismiss dated April 26, 1999, plaintiff dismissed with prejudice her thirteenth and fourteenth causes of action against Manpower, Inc. Accordingly, Manpower, Inc. is no longer a party to the instant action.
The following facts are gleaned from the parties' submissions with all justifiable inferences drawn in plaintiff's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). All material facts set forth in defendants' Statement of Undisputed Facts will however be deemed admitted pursuant to Rule 56 of this Court's Local Rules of Civil Procedure due to plaintiff's failure to controvert such. OCC's Construction Engineering Group is in the business of erecting new construction and remediating hazardous waste sites in upstate New York and providing services such as environmental site investigation and risk assessments, water and wastewater treatment system installations, contaminated soil remediation system installations, air quality monitoring and civil, mechanical, industrial and geotechnical engineexing. Defts' Statement ¶¶ 1-2. Plaintiff began working for OCC in November 1991 as an Engineering Clerk and was initially compensated at $7 per hour. Defts' Statement ¶¶ 25, 28. During her tenure at OCC, plaintiff worked as a contract employee on assignment from Superior Design and Manpower, Inc., which are temporary employment agencies. Defts' Statement ¶ 5. An Engineering Clerk's principal responsibilities are clerical and administrative in nature and include wordprocessing, filing, data input and telephone answering. Defts' Statement ¶¶ 26-27. At all times germane to this action, defendant Nigro supervised a number of clerical and administrative staff — including plaintiff —, security personnel and ten Field Representatives. Defts' Statement ¶ 4. Nigro was not, however, authorized to hire, fire or otherwise affect the relationship of OCC's contract employees without the approval of his superior, Jim Seaman. Defts' Statement ¶ 6. Field Representatives are generally paid between $25 and $30 per hour and are responsible for supervising all contractors and skilled tradesman at OCC work sites, in addition to supervising all work that is performed at such sites, including construction, budgeting, quality, design, environmental and the meeting of health and safety requirements. Defts' Statement ¶¶ 7-9. In this regard, the implementation and supervision of safety provisions mandated by the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. consumed, on average, about twenty-five percent of the time of Field Representatives. Defts' Statement ¶¶ 14-15. Many Field Representatives also have specialties, such as mechanical, electrical or civil work, in which each spends a great deal of his or her work time. Defts' Statement ¶ 16.
Sometime in 1993 or 1994 — and although she had had no construction experience or experience working in a hazardous waste-site environment —, plaintiff informed Nigro that she desired "field experience" so that she could eventually become a Field Representative. Defts' Statement ¶¶ 29, 53. In response, Nigro assigned her duties at certain construction sites in 1994 performing low-level, non-technical tasks and such assignments continued into 1996. Defts' Statement ¶ 31. To illustrate, plaintiff was sometimes assigned to count the number of trucks hauling waste at various work sites, was sometimes assigned to monitor site safety compliance and sometimes issued "hot work" permits to contractors. Defts' Statement ¶¶ 32-34. Nevertheless, it is important to note that OCC's usual practice was to hire Field Representatives with relevant work experience and/or academic credentials and, in furtherance of this practice, Nigro would identify qualified individuals whom he knew either from prior projects or by reputation. Defts' Statement ¶¶ 42-43. In contrast and at all times germane to this action, plaintiff was in possession of only her experience as an Engineering Clerk, a two-year criminal justice degree and attendance at several safety training classes, although these classes did not cover construction methods, metals selection, tool usage, installation of instrumentation or other like areas of technical knowledge needed by OCC's Field Representatives to oversee construction engineers, contractors and workers. Defts' Statement ¶¶ 55, 59, 60. Indeed, each Field Representative whom Nigro selected had had at least seven to ten years of relevant work experience on construction projects and/or hazardous waste sites. Defts' Statement ¶ 44. Several of these individuals also possessed academic degrees in engineering. Defts' Statement ¶ 45.
In January 1995 plaintiff began a three-month leave of absence and Nigro hired Lydia Symington as an Engineering Clerk to perform plaintiff's clerical and administrative duties. Defts' Statement ¶¶ 65-66. When plaintiff returned to work, Symington remained with OCC on a part-time basis as an Engineering Clerk. Id. at ¶ 67. Sometime in March 1996, plaintiff told Nigro that she had accepted employment as a fall-time 911 operator with the Niagara Falls Police Department and, presumably, would not be available for full-time employment at OCC. Defts' Statement ¶ 68. Nonetheless, OCC continued to employ plaintiff on a part-time basis when there was a need for such employment and plaintiff's schedule permitted. Defts' Statement ¶¶ 69-70. Nigro also offered plaintiff an opportunity to return to full-time work at OCC as a Construction Clerk in September 1996 although plaintiff turned down such offer. Defts' Statement ¶¶ 73, 75. The last day on which plaintiff performed work for OCC was October 23, 1996. Defts' Statement ¶ 78.
Sometime prior to October 1996, plaintiff came to OCC's office and reviewed confidential information (allegedly only as such pertained to her duties as a Field Representative) without seeking OCC's permission. Defts' Statement ¶ 82; Plaintiff's Statement of Undisputed Facts ("Response") ¶ 83. After Nigro became aware of such actions, he instructed Symington and security personnel to advise him if plaintiff visited OCC's office when Nigro was not present. Defts' Statement ¶ 85. Consequently, when plaintiff arrived at OCC's office on November 15, 1996 and retrieved, inter alia, OCC time distribution sheets, Symington informed Nigro by telephone that plaintiff was present in the office. Defts' Statement ¶¶ 89, 92. Upon leaving OCC's office, plaintiff entered her car with the materials she had removed from the OCC office and attempted to leave the premises. Defts' Statement ¶ 92. However, a security guard "detained" her at the exit gate by standing in front of her vehicle and not allowing her to leave. Response ¶ 93. Soon thereafter, Nigro arrived with a police officer and told such officer to "arrest her" for "attempting to remove Company documents without authorization." Defts' Statement ¶¶ 94-96. Such arrest was apparently not made, however, because plaintiff relinquished the materials and was allowed to leave OCC's property. Defts' Statement ¶ 100.
Priorly and on October 30, 1996, plaintiff had filed a charge of unlawful employment discrimination based on sex with New York's Department of Human Rights ("DHR") against OCC and Manpower. Specifically, plaintiff alleged therein that those defendants had denied her equal terms, conditions and privileges of employment by not paying plaintiff the same rate as her male counterparts and not assigning her to work. See Nigro Aff. Ex. D (October 30, 1996 DHR Complaint). On December 12, 1996 plaintiff filed separate charges of unlawful retaliation against OCC and Manpower based on the November 15 incident. The state proceedings were dismissed following DHR's learning that plaintiff had commenced the instant action. See Nigro Aff. Ex. L (DHR Determination letters). Curiously and although plaintiff's charges were also filed with the Equal Employment Opportunity Commission ("EEOC"), plaintiff has yet to inform this Court that she has received a right-to-sue notice from the EEOC, even though she requested such notice from the EEOC by letter dated November 11, 1997. However, "plaintiff's failure to obtain a notice-of-right-to-sue-letter is not a jurisdictional bar, but only a precondition to bringing a Title VII action that can be waived by the parties or the court." Pietras v. Board of Fire Com'rs of Farmingville, 180 F.3d 468, 474 (2d Cir. 1999). Because defendants have not asserted such a basis for dismissal, this Court will consider the instant motion and the underlying action insofar as permissible under FRCvP 56.
This Court must grant summary judgment "if [it is shown] 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." FRCvP 56(c). The "party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists" and that party's "burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). However and "[b]ecause employers rarely leave a paper trail — or `smoking gun' — attesting to a discriminatory intent," — Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) —, this Court must be especially mindful of its duty to believe all evidence submitted by the nonmovant and to draw "all justifiable inferences *** in [her] favor." Anderson, at 255. Such heightened scrutiny does not mean that a court should abstain from granting summary judgment where the nonmovant has not satisfied the usual requirements of summary judgment. The "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." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Employers are prohibited under the EPA from discriminating among employees on the basis of sex by paying higher wages to employees of a sex opposite to that of a complaining employee for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206 (d). "In order to state a prima facie case of salary discrimination based on sex under the EPA, *** plaintiff must demonstrate that i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on requiring equal skill, effort, and responsibility; and in) the jobs are performed under similar working conditions." Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995). Once plaintiff has articulated a prima facie case, OCC bears the burden "to prove that the disparity is justified by one of four affirmative defenses: i) a merit system; ii) a seniority system; in) a system which measures earnings by quantity or quality of production; iv) a differential based on any *** factor other than sex." Ibid. "An employer who attempts to justify a pay differential based on a `factor other than sex' must also prove that the gender-neutral factor was adopted for a legitimate business reason." Ibid.
In the instant action, OCC admits that plaintiff was paid less than the Field Representatives who in OCC are males. OCC argues, however, that such pay disparity is immaterial because she has not shown that her position at OCC required the equal skill, effort and responsibility of a Field Representative. Defendants' Mem. of Law at 18. OCC further argues that, even assuming a prima facie EPA claim has been made, plaintiff cannot traverse OCC's contention that the pay disparity was attributable to a differential based on a factor other than sex — i.e., "that the Field Reps' superior job-related experience, credentials, responsibilities and duties warranted higher pay without regard to [plaintiff's] sex." Ibid. This Court agrees.
In support of her EPA claim that, while employed at OCC, her occupational duties required the same skill, effort and responsibilities as those required of more highly paid Field Representatives, plaintiff principally argues: (1) although she remained classified as an Engineering Clerk, she began acting as a full-time Field Representative in June 1994; (2) her Field Representative "specialty" was safety; (3) had she not performed her duties of Field Representative, another Field Representative would have had to perform them; and (4) her six-month training experience as a Field Representative qualified her to be paid as such. Nevertheless, plaintiff's own description of her duties as a purported Field Representative neither belies any suggestion that the skil1s, responsibilities and effort therein required were equal to that of any regular Field Representative nor demonstrates that such work was performed under similar working conditions. In this regard, plaintiff asserts that she "specialized in the safety aspect of the Field Representative's job and devoted most of her time thereto," although the "safety aspect of the Field Representative's job typically consumes approximately 25% of a Field Representative's time." Response ¶ 40. Crediting plaintiff's assertion to be true, plaintiff's specialization would imply that regular Field Representatives — who, she claims, performed jobs requiring equal skill, effort and responsibility under similar working conditions as did the plaintiff — spent about 75% of their time on tasks different than those performed by plaintiff. Such disparity is not insubstantial. Rather, it is indicative of the fact that her position was not substantially equal to that of any regular Field Representative. If "jobs which are `merely comparable' are insufficient to satisfy a plaintiff's prima facie burden" — Tomka, at 1310 —, it stands to reason that, absent other types of proof, "some overlap in the requirements of the two jobs, is not *** `sufficient to show substantial equality under the EPA.'" Detrick v. H E Machinery, Inc., 934 F. Supp. 63, 70 (W.D.N.Y. 1996) (quoting Koster v. Chase Manhattan Bank, N.A., 609 F. Supp. 1191, 1194 (S.D.N.Y. 1985)). Plaintiff's conclusory allegations aside, there are simply no facts in the record indicating that plaintiff performed substantially equal work as any regular Field Representative. Relatedly, it is not insignificant that plaintiff has failed to proffer, other than her own assertions, evidence of the job descriptions of any regular Field Representative. For example, when asked to describe the duties that a particular regular Field Representative performed during a project in 1994, a project wherein plaintiff alleges she was also acting as a Field Representative, plaintiff testified that she "couldn't tell." Mitravich Dep. at 67-68. That said, the record is plainly lacking in evidence that plaintiff's duties were similar to those of any regular Field Representative. Indeed, OCC has proffered undisputed evidence that the regular Field Representatives to whom plaintiff desires to compare herself performed vastly different tasks and possessed skil1s, experience, qualifications and specialties that plaintiff undisputably lacked. See Nigro Aff. ¶ 11; Capen Aff. ¶ 2. Consequently and because there is no evidence in the record which even remotely suggests that plaintiff's duties during her time at OCC required substantially the same skill and effort as those performed by regular Field Representatives, plaintiff cannot establish a prime facie case of wage discrimination under the EPA and her claim must fail.
Even if this Court were to assume that plaintiff has set forth a prima facie case of wage discrimination under the EPA, her claims could nonetheless fail because she has failed to rebut OCC's affirmative defense that "superior, job-related qualifications *** justified the pay disparity at issue." Defendants' Reply Mem. of Law at 6. While plaintiff argues that her six-month training experience in the field and the completion of a variety of safety courses entitled her to a pay rate equal to that of regular Field Representatives, it remains undisputed that all of such with whom plaintiff has compared herself possessed far greater experience and skil1s relating to OCC's business. Again, each of these regular Field Representatives had at least seven years of experience on construction projects anchor waste sites and several possessed academic engineering degrees and had specific technical skills for which OCC had a need; plaintiff had no such comparable qualifications. In light of the undisputed complexity of the projects that OCC undertook, such qualifications — being uncontroverted — justify OCC's regular Field Representatives having a higher rate of pay. Id. at 7; Defendants' Mem. of Law at 22. It is also pertinent to note here that plaintiff's attempt to create a genuine issue of fact as to such justification by arguing that some unnamed "Field Representatives had no more qualifications than that they were unskilled laborers" is unavailing. Mitravich Aff. ¶ 10. FRCvP 56 requires that plaintiff enumerate "specific facts and circumstances supported by deposition, affidavits based on personal knowledge, and admissions," rather than propound mere conclusory allegations or denials, that show a genuine issue for trial. General Elec. v. New York State Dept. of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991). Such allegation by plaintiff does not meet this standard and cannot defeat a summary judgment motion. Consequently and because plaintiff cannot overcome OCC's affirmative defense, her EPA claim cannot withstand the instant motion for summary judgment.
Title VII states that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges employment, because of such individual's *** sex ***." 42 U.S.C. § 2000e-2 (a). Title VII claims are reviewed under the framework first promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to show discriminatory treatment, "plaintiff must [first] establish a prima facie case discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000). As applied to this particular case, plaintiff's prima facie case wage discrimination is "generally analyzed under the same standards used in an EPA claim" although, unlike an EPA claim, plaintiff "must also produce evidence of discriminatory animus in order to make out a prima facie case intentional sex-based [wage] discrimination." Tomka, at 1312-1313. Specifically, plaintiff must show that "(1) she is a member of a protected class; and (2) she was paid less than non-members of her class for work requiring substantially the same responsibility." Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999). Once a prima facie case has been established, OCC has the burden of articulating a "legitimate, nondiscriminatory reason" for the wage differential. McDonnell Douglas Corp., at 803. If OCC carries this burden, plaintiff must present evidence which proves "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, plaintiff need not prove the falsity of the proffered reasons but rather only demonstrate that OCC's "explanation is unworthy of credence." Reeves, at 2106 (citing Texas v. Burdine, at 256).
In light of the aforementioned EPA analysis, this Court's determination as to the legal viability of plaintiff's Title VII is simple — viz., it cannot withstand the instant motion for summary judgment. Because plaintiff did not show that she and the regular Field Representatives performed substantially similar work in furtherance of her EPA claim, her concomitant Title VII claim necessarily fails for the same reasons. Moreover, even if this Court were to assume that she could establish all the elements of a prima facie EPA claim, her Title VII claim would still fail because she has produced neither credible evidence giving rise to an inference of discriminatory animus on the part of OCC nor demonstrated that OCC's explanation for the wage disparity is unworthy of credence.
Title VII also prohibits employers from discriminating against an employee because the employee has opposed any practice made unlawful by the statute, or has filed a charge under the statute. 42 U.S.C. § 2000e-3 (a). A prima facie case of retaliation under Title VII requires plaintiff to show that: "(1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer." Cosgrove Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). If plaintiff establishes a prima facie case of retaliation, her claim is then analyzed according to the McDonnell Douglas burden-shifting analysis. Sumner v. United States Postal Serv., 899 F.2d 203, 208 (2d Cir. 1990).
Plaintiff's retaliation claims are premised on two discrete incidents — viz., OCC's failure to continue to assign her work and Nigro's conduct during the November 15th incident. Insofar as plaintiff alleges that OCC retaliated against her by not continuing to assign her work, this Court notes that it is undisputed that plaintiff's only alleged protected activity, the filing of a DHR complaint October 30, 1996, occurred after OCC had informed plaintiff they had no work for her to perform. See Nigro Aff. Ex. D (DHR Complaint dated October 30, 1996). This admission is obviously fatal to plaintiff's assertion that such nonassignment was in response to, and in retaliation for, her filing of the charge. Moreover, even if this Court were to assume that OCC was somehow so extraordinarily prescient that it anticipated such filing, OCC has articulated legitimate, nondiscriminatory reasons for failing to continue to assign her work. For example, it is undisputed that, after Symington had been hired and after plaintiff began working full time for the Niagara Falls Police Department and after plaintiff declined to take the position of Construction Clerk causing OCC to fill such position with another individual, there was a decrease in the amount of non-technical field and clerical work available for plaintiff to perform at OCC in 1996. Statement ¶ 81. It is also undisputed that, after plaintiff began working full time at the Niagara Falls Police Department in March 1996, plaintiff worked only on "an as-needed basis and when her schedule permitted." Statement ¶ 69. Consequently, OCC had a reduced need for plaintiff's services and plaintiff has proffered nothing substance suggesting that OCC's explanation is unworthy of credence. Insofar as plaintiff alleges that the November 15th incident was precipitated by her having filed a DHR complaint, she has failed to demonstrate a prima facie claim of retaliation because plaintiff proffers nothing to suggest a causal connection between the two events. Specifically, plaintiff fails to demonstrate that Nigro's actions were motivated by retaliatory animus. Indeed and because plaintiff failed to respond to a Request for Admission stating that "Nigro's statements to the Niagara Falls Police Department officers on November 15, 1996 were based on his belief *** that [plaintiff] had entered Occidental's office against orders and removed Company documents without authorization," such is now "conclusively established" pursuant to FRCvP 36, eliminates any fact question as to Nigro's purported discriminatory intent and shows that he was, in fact, motivated by a good faith belief that plaintiff was engaging in wrongful conduct. Feege May 23, 2000 Aff. ¶ 3 Ex. A; see also Donovan v. Carls Drug Co., 703 F.2d 650, 651 (2d Cir. 1983) (noting that FRCvP 36 admissions "may be used for Rule 56 summary judgment"). Consequently, plaintiff's retaliation claims must fail.
After granting defendants' motion for summary judgment dismissing plaintiff's Title VII claims, the only claims left before this Court will arise under state law. However and because this Court declines to exercise supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367, defendants' motion for summary judgment on plaintiff's state law claims is denied as moot. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well").
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted insofar as concerns plaintiff's federal claims, that plaintiff's state law claims are denied as moot and that this case shall be closed.