Opinion
02 Civ. 4096 (SAS) 88950
August 22, 2003
Marc W. Garbar, Esq., New York, NY, for Plaintiff
Lauren Reiter Brody, Esq., Katten Muchin Zavis Rosenman, New York, NY, for Defendants
OPINION AND ORDER
Robin Rinsler, a Caucasian woman, is suing Sony Pictures Entertainment, Inc. ("Sony"), Columbia Tristar Entertainment, Inc. ("Tristar"), Entrada Productions, Inc. ("Entrada"), and the Judge Hatchett Show, alleging discrimination on the basis of race and pregnancy as well as retaliation. Defendants Sony and Entrada (collectively, "defendants") now move for summary judgment on all claims. For the reasons set forth below, defendants' motion is granted and this case is dismissed. I. FACTS
Defendants contend that there is no corporation named "Columbia Tristar Entertainment, Inc." and that "The Judge Hatchett Show" is not a legal entity and request that these names be stricken from the caption.See Defendants' Memorandum in Support of Their Motion for Summary Judgment ("Def. Mem.") at 1 n. 1. Because plaintiff has not objected and the case is being dismissed on summary judgment, defendants' request is granted.
The following facts are undisputed, unless otherwise indicated.
A. Rinsler's Position as an Administrative Assistant
In July 2000, Gerette Allegra, the Vice President of Programming for Sony, hired Rinsler to work full-time as an administrative assistant to Allegra and Judge Glenda Hatchett on the Judge Hatchett Show (the "Show"). See 3/6/03 Deposition of Gerette Allegra ("Allegra Dep."), Ex. 1 to Garbar Aff., at 25, 27; Rinsler Aff. ¶ 2. The Show is a courtroom television program in which Judge Hatchett, the former Chief Presiding Judge of the Juvenile Court for Fulton County, Georgia, resolves family and small claims disputes. See Judge Glenda Hatchett Bio, Ex. 5 to 6/2/03 Affidavit of Lauren Reiter Brody, counsel for defendants ("Brody Aff."); Hatchett Dep. at 98. Allegra oversees production of the Show. See Allegra Dep. at 17-18, 55.
Allegra and Rinsler had been friends for more than twenty years.See 1/23/02 Deposition of Robin Rinsler ("Rinsler Dep."), Ex. 3 to 7/2/03 Affirmation of Marc W. Garbar, counsel for plaintiff ("Garbar Aff."), at 44-45. Although Rinsler met with Hatchett prior to being hired, Hatchett was not involved in the decision to hire Rinsler. See 3/8/03 Deposition of Judge Glenda Hatchett ("Hatchett Dep."), Ex. 2 to Garbar Aff., at 11-12, 14; 7/2/03 Affidavit of Robin Rinsler ("Rinsler Aff.") ¶ 2.
Hatchett is African-American and Allegra is Caucasian. Both women are working mothers. See Defendants' Rule 56.1 Statement ("Def. 56.1") ¶¶ 5, 9.
Production of the first season of the Show began around the time that Rinsler was hired. See Rinsler Dep. at 81.
Rinsler's responsibilities included maintaining Allegra's and Hatchett's schedules, handling their correspondence, answering their telephones, organizing case files, and acting as a liaison with other members of the Show's staff. See Rinsler Dep. at 63-64, 68-70; Hatchett Dep. at 19-20; Allegra Dep. at 26, 49. Rinsler's starting salary was approximately $800 per week plus benefits. See Rinsler Dep. at 73, 282.
According to Hatchett and Allegra, it quickly became apparent that Rinsler was disorganized, unprofessional, and unskilled. See Hatchett Dep. at 25-26; Allegra Dep. at 37, 76. Rinsler contends, however, that during the first season of the Show, she was not made aware of any performance problems. See Rinsler Dep. at 117-18; Rinsler Aff. ¶ 3. On the contrary, Rinsler was often commended by both Hatchett and Allegra, hugged by Hatchett, and told by other employees that the Judge loves her. See Rinsler Dep. at 260-61; Rinsler Aff. ¶¶ 3, 6.
Allegra and Hatchett allege, in particular, that Rinsler dressed inappropriately, made frequent scheduling errors, kept her office in disarray, and had computer and attendance problems. See Allegra Dep. at 32, 47-49, 77-78; Hatchett Dep. at 35-36, 55. As a result, Hatchett and Allegra were compelled to perform some of Rinsler's duties themselves or have other employees complete them. See Hatchett Dep. at 23-25, 63-64; Allegra Dep. at 20-21, 47-49.
Rinsler does acknowledge one incident that took place in the first few months of her employment. Rinsler made a statement that some employees construed as offensive — namely, that she would "crack the whip" to keep Hatchett on schedule. Rinsler Aff. ¶ 4; see also Hatchett Dep. at 39 (stating that some African-American members of the staff thought Rinsler's comment had connotations of slavery). After Allegra questioned Rinsler about the comment, Rinsler apologized to Hatchett and told Hatchett that she would never do anything to offend or hurt her. See Rinsler Aff. ¶ 5; Allegra Dep. at 122. Hatchett then hugged Rinsler. See Rinsler Aff. ¶ 5; Hatchett Dep. at 40.
Allegra and Susan Sobocinski, one of the head producers, testified that Hatchett was upset by Rinsler's comment. See Allegra Dep. at 79; 3/6/03 Deposition of Susan Sobocinski ("Sobocinski Dep."), Ex. 4 to Garbar Aff., at 106-08. Hatchett, however, claims that she was not offended by the comment and knew that it was not meant with any "ill will." Hatchett Dep. at 39-40.
In late November 2000, Rinsler received a telephone call at work from her doctor advising her that she was pregnant. See Rinsler Dep. at 51, 86-87. Allegra was in the office when Rinsler received the phone call and Rinsler told Allegra the good news. See Rinsler Dep. at 92; Rinsler Aff. ¶ 20. Allegra advised Rinsler not to tell Hatchett about her pregnancy. See Rinsler Aff. ¶ 20. Rinsler followed Allegra's suggestion. See id. Hatchett does not recall specifically how and when she learned of Rinsler's pregnancy, but believes she was told by a staff member sometime after December 2000. See Hatchett Dep. at 84-85.
Allegra testified that she told Hatchett about Rinsler's pregnancy during a telephone conversation in February 2001 because they were both "invested in the fact of whether she could get pregnant or not." Allegra Dep. at 70.
It was no secret that Rinsler was undergoing fertility treatments to become pregnant. See Hatchett Dep. at 85; Allegra Dep. at 64; Sobocinski Dep. at 135. In fact, Rinsler was permitted to use a car service, at company expense, to go for her fertility treatments. See Rinsler Dep. at 100-01.
On December 18, 2000, production of the Show's first season concluded.See Sobocinski Dep. at 37-38. Hatchett returned to her home in Atlanta and all of the production and audience assistants were let go. See Rinsler Dep. at 146-47, 167. Rinsler remained as Allegra's assistant, with the same salary and benefits. See id. at 293; Allegra Dep. at 199.
In January 2001, Allegra told Rinsler that she would no longer be Hatchett's assistant because she was not sensitive enough to Hatchett's black issues. See Rinsler Aff. ¶¶ 4, 6; Rinsler Dep. at 113-14. Rinsler contends that during the same conversation, Allegra also commented that she thought Hatchett's next assistant would be African-American. See Rinsler Dep. at 258. After her conversation with Allegra, Rinsler felt uncomfortable in her position as Hatchett's assistant, but continued to act in that capacity until a replacement was found in April 2001. See Rinsler Aff. ¶ 6; see also Hatchett Dep. at 22; Rinsler Dep. at 153-56.
Since the end of the Show's first season, Hatchett has been directly involved in the hiring of her administrative assistants, all of whom have been African-American. See Hatchett Dep. at 73-75, 78-79, 84; Sobocinski Dep. at 101-02; Rinsler Aff. ¶ 4.
B. Rinsler's Transfer to Audience Assistant Position
On April 12, 2001, Allegra asked Rinsler to meet with her and Sobocinski. See Rinsler Dep. at 105; Sobocinski Dep. at 118. At that meeting, Rinsler was told that she was not doing her job well and was therefore being transferred to the position of audience assistant. See Rinsler Dep. at 106. Rinsler was also informed that her salary would be reduced by $150 per week. See id. at 172. Rinsler accepted the new position, although she considered it demeaning. See id. at 109, 145; Rinsler Aff. ¶ 28.
In April 2001, Allegra was pregnant with her second child.See Allegra Dep. at 15.
Defendants contend that Hatchett was not involved in Rinsler's transfer to the audience department. See Hatchett Dep. at 106-07, 114. Rinsler claims that she "does not know who was instrumental" in that decision. Rinsler's Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment ("PI. 56.1") ¶ 51.
Even with that reduction, Rinsler was still paid $150 more than the other audience assistants. See id. at 175-76.
The duties of an audience assistant included recruiting and assisting audience members. See id. at 167; Sobocinski Dep. at 119-20.
Rinsler began working as an audience assistant at the end of April 2001. See Rinsler Dep. at 171. She was moved to an office in the basement of the building, which meant that she had to climb a long flight of stairs throughout the day while six months pregnant.See id. at 180; Sobocinski Dep. at 124. Rinsler also had to stand on her feet for most of the day. See Rinsler Dep. at 213. Rinsler complained to Sobocinski about her office location and requested an office on the main level. See id. at 180-82; Sobocinski Dep. at 124. During that time, Sobocinski asked Rinsler, "when are you leaving, because we don't know what to do with you?" Rinsler Aff. ¶ 11. After Rinsler submitted doctors' notes, she was moved to an office on the main floor of the building. See Rinsler Dep. at 183; Rinsler Aff. ¶ 31.
Defendants contend that Sobocinski's statement related to the need to find a different office for Rinsler in accordance with her request. See Def. Mem. at 5.
On or about July 2, 2001, Rinsler took maternity leave without pay.See Rinsler Aff. ¶ 33. Although the company's maternity leave policy required at least one year of employment, Rinsler was permitted to take leave after eleven and one-half months. See id. Rinsler gave birth in August and returned to work in mid-October. See Rinsler Dep. at 165, 199-200.
Rinsler contends that the combination of vacation time and personal days she was owed made her eligible for maternity leave.See id. ¶ 34.
C. Rinsler's Termination
In October 2001, Rinsler was informed that her employment, as well as that of all other audience assistants, would terminate in November 2001 upon the completion of production. See PI. 56.1 ¶ 69. On November 16, 2001, Rinsler received a phone call informing her that she need not come to work the following week, but would get paid for that week. See Rinsler Aff. ¶ 35. The other audience assistants worked the last week. See id.
Defendants contend that none of the audience assistants returned to the Show for the third season of production. See Defendants' Supplemental Response to Plaintiff's First Set of Interrogatories, Ex. 12 to Brody Aff., at 2. Rinsler claims that she is aware of at least one audience assistant who returned for the third season. See Rinsler Aff. ¶ 36.
After Rinsler's employment ended in November 2001, she did not send resumes or cover letters to prospective employers. See 2/12/03 Letter from Garbar to Brody. Rinsler alleges, however, that since July 2002, she has worked with her husband on a home-based personal training business. See Rinsler Aff. ¶ 40; 4/1/03 Deposition of Michael R. Rinsler ("M. Rinsler Dep."), Ex. 9 to Garbar Aff., at 77, 79-80, 83. To date, the Rinslers have earned no income from their home-based business. See Rinsler Aff. ¶ 40.
Rinsler contends that she incorrectly testified at her deposition that she is a "stay home mother." See Rinsler Aff. ¶ 40. Rinsler has provided defendants with corrected testimony in an "errata sheet." See Errata Sheet, Ex. 11 to Garbar Aff.
D. Rinsler's Complaints of Discrimination
In May 2001, Rinsler's attorney sent a letter to Sony's human resources department alleging that Rinsler was being subjected to race and pregnancy discrimination. See 5/24/01 Letter from Garbar to Kathryn Brutto, Human Resources Business Partner ("5/24/01 Ltr."), Ex. 7 to Garbar Aff.
On October 24, 2001, Rinsler filed a Charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), complaining of race and pregnancy discrimination. See Charge of Discrimination ("EEOC Charge"), Ex. 8 to Garbar Aff. In January 2002, the EEOC sent Rinsler's Charge to defendants. See EEOC Dismissal and Notice of Rights ("EEOC Dismissal"), Ex. 11 to Brody Aff., at 4-8. Defendants had no knowledge of Rinsler's EEOC Charge prior to that time. See Rinsler Dep. at 280. On March 6, 2002, the EEOC dismissed Rinsler's Charge. See EEOC Dismissal at 1 (stating that "the EEOC is unable to conclude that the information obtained establishes violations of the statutes").
II. SUMMARY JUDGMENT STANDARD
Summary judgment is permissible "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonvea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, she "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and she "`may not rely on conclusory allegations or unsubstantiated speculation.'" Fujitsu Ltd. v. Federal Express Cor., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports her pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
In determining whether a genuine issue of material facts exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See id. Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marve, 310 F.3d at 286 (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
"[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."Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997). Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact — intensive context of discrimination cases." Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)." [A] party may not `rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). III. DISPARATE TREATMENT CLAIMS
Before addressing the merits, defendants contend that the action should be dismissed for Rinsler's failure to certify her interrogatory responses, in violation of Rule 33 of the Federal Rules of Civil Procedure. See Def. Mem. at 4. Because plaintiff's counsel has since provided defendants with a signed copy of Rinsler's interrogatories, discovery sanctions are unwarranted here. See 7/29/03 Letter from Garbar to Brody. I will therefore address the merits of defendants' motion.
A. Legal Standard
Title VII of the Civil Rights Act of 1964 makes it 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 of employment, because of such individual's race, color, religion, sex, or national origin. . . .42 U.S.C. § 2000e-2. In this Circuit, courts analyze discrimination claims brought under Title VII and state and city human rights laws in the same manner. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (citations omitted).
Title VII was amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), to express Congress' view that "discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Newport News Shipbuilding Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983).
Plaintiff is suing under the federal Civil Rights Act, New York States Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL").
The Supreme Court has "established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory treatment cases." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Where, as here, the plaintiff has not alleged any direct evidence of discrimination, she must proceed under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this analysis, the plaintiff must first prove a prima facie case of discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of disparate treatment, a plaintiff must show that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties of her position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997).
If the plaintiff establishes a prima facie case, "a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action." Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). "If the defendant meets this burden of production, `the presumption drops out of the analysis,' and the plaintiff must prove that he or she was actually the victim of intentional discrimination." Little v. National Broad. Co., 210 F. Supp.2d 330, 376 (S.D.N.Y. 2002) (quoting Farias. 259 F.3d at 98). At that point, "the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n., 233 F.3d 149, 156 (2d Cir. 2000) (emphasis added).
B. Discussion
Rinsler identifies two actions that form the basis of her complaint of race and pregnancy discrimination: (1) her transfer to the position of audience assistant in April 2001; and (2) her termination as an audience assistant in November 2001. Defendants are entitled to judgment as a matter of law with respect to both of these actions.
Defendants analyze a third action — the termination of Rinsler's responsibilities as Hatchett's assistant in January 2001 — and argue that Rinsler cannot make out a prima facie case of discrimination based on this action. However, Rinsler does not contend that her responsibilities as Hatchett's assistant were actually terminated. On the contrary, Rinsler alleges that she continued to perform her duties as Hatchett's assistant until a replacement was found in April 2001, at which time she was transferred to the position of audience assistant. See Rinsler Aff. ¶ 6. Because the threatened diminution of responsibilities never came to pass, there was no adverse employment action and therefore no basis for a discrimination claim arising out of this action.
1. Transfer to Audience Assistant Position a. Pregnancy Discrimination
Rinsler has not established a prima facie case of pregnancy discrimination based on her transfer to the position of audience assistant because she has not shown that the circumstances surrounding the transfer give rise to an inference of discrimination. Rinsler's claim of pregnancy discrimination is based almost exclusively on her allegation that she was demoted soon after she announced that she was pregnant. See Pl. Mem. at 3. One of the categories of circumstantial evidence typically used to prove a pregnancy discrimination case is "suspicious timing." See Venurelli v. ARC Cmty. Servs., Inc., 336 F.3d 606, 615 (7th Cir. 2003). But Rinsler's transfer occurred more than three months after Allegra learned about Rinsler's pregnancy. The timing of these events is not "suspicious" enough to alone create an inference of discrimination.The only other evidence that Rinsler cites in support of her claim of pregnancy discrimination is a question asked by Sobocinski — namely, when Rinsler would be leaving so that Sony could figure out what to do with her in the interim. See Rinsler Aff. ¶ 11. Sobocinski's desire to know when Rinsler's maternity leave would begin so that Sony could plan appropriately suggests, if anything, that the company was trying to accommodate Rinsler — not discriminate against her. In fact, the record is replete with examples of defendants' sensitivity to Rinsler's condition. See, e.g., Rinsler Dep. at 100-01 (admitting that defendants provided Rinsler with paid time off and a car service to obtain fertility treatments); id. at 183 (stating that after she submitted the requisite documentation from her doctor, defendants moved her desk and amended her duties); Rinsler Aff. ¶ 34 (explaining that defendants credited her vacation and personal days so that she could take maternity leave even though she was not entitled to it). Thus, Rinsler has failed to raise an inference of discrimination and therefore has failed to meet her burden of establishing a prima facie case of pregnancy discrimination.
b. Race Discrimination 1. Rinsler's Prima Facie Case
Nor has Rinsler established a prima facie case of race discrimination based on her transfer. The only evidence that Rinsler proffers to demonstrate that her transfer was motivated by discriminatory animus is a single comment, allegedly made by Hatchett and repeated to her by Allegra in January 2001, that "as a white person, [Rinsler] could not be sensitive to black issues." Rinsler Aff. ¶ 6; Rinsler Dep. at 113-14. This stray remark is insufficient to create an inference of discrimination for a number of reasons.
First, the statement was not made by the person who decided to transfer Rinsler — Allegra. See McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. 1997) (holding that plaintiff failed to establish a prima facie case where the individual who made the racial remarks was not a decisionmaker); see also Pisok v. Hebrew Union Coll. — Jewish Inst. of Religion, 235 F. Supp.2d 281, 288 (S.D.N.Y. 2001) (finding plaintiff failed to meet fourth element of prima facie case because he had not "demonstrated the existence of any discriminatory animus (e.g., through derogatory comments or conduct) of any decisionmakers during his employment"). Second, the statement is not bolstered by any other evidence of racial animus. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (evidence of one stray comment by itself is usually not sufficient proof to show discrimination); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 247 (S.D.N.Y. 2000) (finding isolated, stray remark insufficient to establish racial animus and defeat a motion for summary judgment); Morris v. New York City Dep't of Sanitation, No. 99 Civ. 4367, 2003 WL 1739009, at *6 (S.D.N.Y. Apr. 2, 2003) (acknowledging that "many courts have held that stray remarks in the workplace, by themselves, and without a demonstrated nexus to the complained of personnel actions, will not defeat the employer's motion for summary judgment"). Third, the statement was made three months before plaintiff's transfer. See Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by non-decisionmakers . . . are rarely given great weight, particularly if they are made temporally remote from the date of decision.").
Rinsler offers no evidence to rebut defendants' showing that Hatchett was not involved in the decision to transfer Rinsler. In fact, Rinsler admits that she does not know who made the decision. See supra n. 12.
The factual dispute regarding Rinsler's allegedly offensive "crack the whip" statement is immaterial because Rinsler's own statement is not evidence of her employer's discriminatory intent.
Rinsler offers no evidence whatsoever to demonstrate that Allegra, the decisionmaker, was motivated to transfer Rinsler because of her race. On the contrary, there is a strong inference that discrimination was not a determining factor because Allegra is the person who hired Rinsler, her friend for twenty years, nine months prior. See Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997) (*[W]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially true when the firing has occurred only a short time after the hiring.") (citations omitted); Campbell, 107 F. Supp.2d at 249 (holding that the "same actor inference" recognized in Grady applies where the time period between plaintiff's rehiring and her termination was approximately nine months). Moreover, Allegra belongs to the same protected classes as Rinsler as both are pregnant women. See Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 210 (S.D.N.Y. 2000) (holding that plaintiff failed to demonstrate discrimination where decisionmakers were members of the same protected class) (citing Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1471 (11th Cir. 1991)); see also Shabazz-Allah v. Guard Mgmt. Serv., No. 99 Civ. 8194, 1999 WL 123641, at *4 (S.D.N.Y. Mar. 8, 1999) ("Not only did [plaintiff's supervisor] both hire and fire [p]laintiff, and not only were both actions taken within two years, . . . [plaintiff's supervisor] is himself [a member of plaintiff's protected classes]"), aff'd, 201 F.3d 432 (2d Cir. 1999). Because Rinsler cannot show that the circumstances surrounding her transfer to the position of audience assistant give rise to an inference of discrimination, she has not established a prima facie case of race discrimination.
2. Defendants' Non-Discriminatory Reason
Even if Rinsler has established a prima facie case of pregnancy and/or race discrimination, defendants have articulated a legitimate, non-discriminatory reason for Rinsler's transfer to the audience department — i.e., her poor performance. It is certainly legitimate for an employer to take action where an employee's performance is not satisfactory. See McLee, 109 F.3d at 135. Because defendants have proffered a legitimate non-discriminatory reason for their action, Rinsler's claims of discrimination must fail, unless she can prove that defendants' reason is pretextual. However, just as there is insufficient evidence in the record to establish a prima facie case, there is no evidence in the record from which a reasonable juror could conclude that Rinsler was actually the victim of intentional discrimination. See Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 38 (2d Cir. 1994) ("Pretext may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, . . . or by reliance on the evidence comprising the prima facie case, without more. . . .") (internal quotation marks and citations omitted).
2. Termination of Audience Assistant Position
Lastly, Rinsler has failed to establish a prima facie case of either race or pregnancy discrimination based on the termination of her position as an audience assistant. There is no basis to infer that the action had anything to do with her race or pregnancy because all of the audience assistants were let go at the same time. Rinsler's contention that she, unlike all of the other audience assistants, believed that she would not be let go at the end of the season because she was originally hired to work full-time, is immaterial. Rinsler's faulty assumption cannot establish discriminatory animus on the part of defendants.
The fact that one audience assistant may have been retained is insignificant because Rinsler cannot prove that she was treated differently than those similarly situated to her.
Defendants argue, in the alternative, that summary judgment is appropriate because Rinsler is not entitled to damages as a matter of law. See Def. Mem. at 18-21. Defendants contend, in particular, that Rinsler is not entitled to: (1) back pay or front pay because she did not mitigate her damages, see id. at 18-19; (2) compensatory damages because she has not demonstrated emotional distress, See id. at 19-20; and (3) punitive damages because she has not shown defendants acted with malice or reckless indifference to her rights, see id. at 20-21. Defendants are wrong on two of these bases. Rinsler has submitted evidence of her attempt to mitigate her damages (i.e., her work on her husband's internet business), see Rinsler Aff. ¶ 40; M. Rinsler Dep. at 77, 79-80, 83, and evidence of emotional distress (i.e., testimony that defendants' actions have caused her great stress, embarrassment, and emotional turmoil, which she has communicated to her husband, sister, and friends), see Rinsler Dep. at 232-33, 237, 239, 241; Rinsler Aff. ¶¶ 41-42). In any event, the issue is moot because Rinsler has failed to establish a prima facie case of discrimination.
IV. RETALIATION CLAIM
Title VII prohibits an employer from retaliating
against an employee because she "has opposed any practice made an unlawful employment practice by [Title VII]. . . ." 42 U.S.C. § 2000e-3(a). The NYSHRL and the NYCHRL also proscribe retaliation for engaging in activities protected by those statutes. See N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7).
Rinsler alleges that her termination was in retaliation for two complaints about race and pregnancy discrimination: (1) on May 24, 2001, Rinsler's attorney sent a letter to Sony's human resources department,see 5/24/01 Ltr.; and (2) on October 24, 2001, Rinsler filed a charge with the EEOC, see EEOC Charge. Defendants contend that they are entitled to summary judgment on Rinsler's retaliation claims because: (1) Rinsler has failed to exhaust her administrative remedies, see Def. Mem. at 13-14; and (2) Rinsler has failed to establish a prima facie case of retaliation, See id. at 14-16.
A. Exhaustion
Defendants argue that Rinsler's retaliation claims are barred because Rinsler "did not check off the retaliation box on the [EEOC] charge sheet" and, as a result, the EEOC did not investigate or make findings with respect to retaliation. Def. Mem. at 14 (noting that Rinsler allegedonly race and pregnancy discrimination in her EEOC complaint). Defendants are wrong.
A Title VII claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See 42 U.S.C. § 2000e-5(e) and (f); see also Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001). Federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC Charge. See Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613-14 (2d Cir. 1999) (citing Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)). "This exhaustion requirement is an essential element of Title VII's statutory scheme and is designed to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Id. (internal quotation marks and citations omitted).
Nonetheless, claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are "reasonably related" to those that were filed with the agency. See Legnani v. Alitalia Linee Aeree Italians, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (citing Shah, 168 F.3d at 613, andMalarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993)). It is well-settled that allegations of retaliation made after an administrative complaint has been filed are "reasonably related" to the administrative complaint. See Butts v. City of N.Y. Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993). The rationale for this rule is that "[to] requir[e] a plaintiff to file a second EEOC charge . . . could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination." Id.
Because the incident upon which Rinsler's claims of retaliation are based — namely, her termination on November 16, 2001 — occurred after she filed an EEOC charge, the claims are "reasonably related" to her original EEOC complaint. Thus, Rinsler's failure to plead retaliation before the EEOC does not bar her assertion of such claim in this action. Moreover, to require Rinsler to file a second EEOC claim with respect to her termination, which she alleges is inextricably linked to the discrimination about which she has already complained, would not only delay this case, but also waste valuable administrative resources.
B. Prima Facie Case of Retaliation
In order to establish a prima facie case of retaliation, a plaintiff must prove that: (1) she engaged in protected activity; (2) defendant was aware of the activity; (3) she was subjected to an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).
Rinsler cannot establish a prima facie retaliation claim based on either of her two complaints of discrimination. With respect to her EEOC Charge, Rinsler cannot satisfy the second element because defendants were unaware of the Charge until January 2002, which was two months after the alleged retaliatory act. See Jalal v. Columbia Univ., 4 F. Supp.2d 224, 242 (S.D.N.Y. 1998) ("If [the decisionmaker] was unaware of [plaintiff's] complaint, his decisions could not have been motivated by the fact that [plaintiff] made them."). The May 24, 2001 letter from plaintiff's counsel provides no basis for a claim of retaliation because Rinsler cannot establish causation.
There are two methods of establishing a causal connection: indirectly by "showing that the protected activity was followed by discriminatory treatment . . . or directly through evidence of retaliatory animus."Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Because Rinsler has presented no direct evidence of retaliatory animus, she must rely on temporal proximity alone. For mere temporal proximity to establish causality, the intervening period must be "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The almost six-month lag between counsel's May 24, 2001 letter and the alleged retaliatory termination on November 16, 2001 is too temporally remote to support a retaliation claim. See Cruse v. G J USA Publ'g, 96 F. Supp.2d 320, 327 (S.D.N.Y. 2000) ("[T]he passage of more than six months from the date [plaintiff] complained . . . to the date of the [alleged adverse action] refutes any causal link."). Although there is no bright line test for how close in time the adverse action must be to the protected activity, courts have found less time to be insufficient to establish a causal connection. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (finding period of three months between the protected activity and the adverse action to be insufficient to make out a prima facie case); Cobian v. New York City, No. 99 Civ. 10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (dismissing retaliation claim where there was four-month lapse between protected activity and adverse action). Because Rinsler cannot establish that defendants were aware of her EEOC complaint prior to her termination nor that there was a causal connection between her counsel's letter and her termination, she has failed to establish a prima facie case of retaliation and her retaliation claim must be dismissed.
Rinsler cannot base her retaliation claim on the transfer to the position of audience assistant in April 2001 because that transfer preceded any alleged protected activity.
Even if Rinsler could establish a prima facie case of retaliation, defendants have articulated a legitimate, non — retaliatory reason for Rinsler's termination (i.e., the position of audience assistant ended when the Show completed production in November 2001) and Rinsler has not met her burden of proving that this reason is a pretext for retaliation. See Philippeaux v. Fashion Inst. of Tech., No. 93 Civ. 4438, 1996 WL 164462, at *10 (S.D.N.Y. Apr. 9, 1996) (granting summary judgment because plaintiff failed to show defendant's actions were pretextual where others who had not engaged in protected activities were subjected to the same treatment), aff'd, 104 F.3d 356 (2d Cir. 1996).
V. CONCLUSION
Although Rinsler is genuinely upset by her transfer and ultimate termination, she has offered no evidence that her treatment was motivated by discriminatory animus. Because there are no genuine issues of material fact, defendants' motion for summary judgment is granted. The Clerk of the Court is directed to close this case.
SO ORDERED: