Opinion
01-CV-721S.
September 24, 2004
DECISION AND ORDER
I. INTRODUCTION
In this action, Plaintiff Linda C. Smering alleges that Defendant FMC Corporation unlawfully discriminated against her on account of her gender and marital status in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York Human Rights Law, N.Y. Exec. Law § 290, et seq. ("NY HRL"). This Court has federal question jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367.
In her Complaint, Plaintiff also alleged that Defendant discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). (Complaint, ¶¶ 70-75.) However, Plaintiff's counsel withdrew this claim on the record at oral argument. (See Docket, February 2, 2004 Minute Entry.)
Presently before this Court is Defendant's Motion for Summary Judgment. For the following reasons, Defendant's motion is granted in its entirety.
II. BACKGROUND
A. Facts1. Plaintiff's Employment with Defendant and Interaction with Robert Service
Defendant runs a persulfate manufacturing facility in Tonawanda, New York. (Defendant's Statement of Undisputed Material Facts ("Defendant's Statement"), ¶ 1.) Plaintiff began her employment with Defendant as a laborer on November 26, 1984. (Defendant's Statement, ¶ 1.) In April of 1998, Mr. Robert C. Service became Plant Manager for Defendant. (Defendant's Statement, ¶ 4.)
Throughout her employment, Plaintiff bid on and was awarded positions of increasing responsibility and pay in accordance with the provisions of the collective bargaining agreement between her union and Defendant. (Defendant's Statement, ¶ 6.) However, Plaintiff alleges that certain incidents that she was involved in while employed by Defendant were discriminatory in nature.
From the beginning of her employment with Defendant until February 19, 1999, Plaintiff was married to Mr. Donald Wilkolaski. (Defendant's Statement, ¶ 2.) After her divorce from Mr. Wilkolaski, Plaintiff later married one of Defendant's management employees, Robert Smering. (Smering Aff., ¶ 6; Defendant's Statement, ¶ 3.).
Referring to the Affidavit of Linda Smering.
Plaintiff alleges that following her divorce from Mr. Wilkolaski, Mr. Service was romantically interested in her, but she refused his advances. Plaintiff contends that after she and Mr. Smering attended the company Christmas party together in December of 1999, Mr. Service asked to speak to her alone in a training room. (Smering Aff., ¶¶ 6-7.) Mr. Service allegedly asked Plaintiff about what went wrong in her marriage to Mr. Wilkolaski and discussed his own marriage. (Smering Aff., ¶¶ 8-9.) Although Plaintiff was uncomfortable with the content of the conversation, she answered in general terms. (Smering Aff., ¶ 9.) At the conclusion of the meeting, Mr. Service asked Plaintiff: "Why Bob Smering?" then laughed and walked out of the room. (Smering Aff., ¶¶ 12-15.)
On another occasion, Plaintiff and Mr. Smering attended a dinner at Mr. Service's house with several other couples. (Smering Aff., ¶ 16.) At dinner, all of the couples were seated together, except for Plaintiff and Mr. Smering. (Smering Aff., ¶ 18.) Plaintiff was seated at the head of the table next to Mr. Service, and Mr. Smering was seated at the foot of the table next to Mrs. Service. (Smering Aff., ¶ 17.) According to Plaintiff, during the course of the meal Mr. Service dropped things on the floor so that he could look at her legs. (Smering Aff., ¶ 19.) Plaintiff became uncomfortable and draped her napkin over her legs to conceal them. (Smering Aff., ¶ 21.) Mr. Service then stopped dropping things. (Smering Aff., ¶ 22.)
Several months later Mr. Service approached Plaintiff at work in the Control Room and asked if she was mad at him. (Smering Aff., ¶¶ 23-25.) Plaintiff indicated to Mr. Service that if he did not want to talk about work, then they had nothing to talk about. (Smering Aff., ¶ 28.) Plaintiff then left the room. (Smering Aff., ¶ 29.)
In March of 2000, Plaintiff announced her engagement to Mr. Smering. (Smering Aff., ¶ 31.) They were married on November 4, 2000. (Defendant's Statement, ¶ 3.)
Plaintiff contends that Mr. Service targeted her for discrimination on the basis of her gender and marital status. (Plaintiff's Statement, ¶ 31; Defendant's Statement, ¶ 5; Smering Aff., ¶ 42.) Plaintiff asserts that the following incidents were unlawfully discriminatory.
In his Reply Affidavit, Mr. Service flatly denies Plaintiff's allegations regarding his romantic interest in her and his inappropriate conduct. (Service Reply Aff., ¶ 3-30.)
1. Verbal Warning
On March 17, 2000, Plaintiff called the Cell Room Supervisor, Mr. Tom Slomka, a "lazy ass." (Defendant's Statement, ¶ 7; Largis Aff., Exh. G.) She made this comment to John Boyd, who was the Production Supervisor. (Defendant's Statement, ¶ 7.) Mr. Boyd consulted with the Plant Manager, Mr. Service, for guidance on how to handle the situation. (Service Aff., ¶¶ 5-6.) Mr. Service advised Mr. Boyd that Plaintiff should be given a verbal warning at the minimum. (Service Aff., ¶ 7.) On April 10, 2000, Mr. Boyd issued Plaintiff a verbal warning regarding inappropriate conduct in the workplace as a result of her comment. (Defendant's Statement, ¶¶ 8; Largis Aff., Exh. G.) Plaintiff did not, however, incur a loss of pay or any other form of discipline related to this incident. (Defendant's Statement, ¶ 9.)
2. Training Schedule and Failed Test
In 2000, Defendant reorganized its production process and production positions. (Defendant's Statement, ¶ 16.) During the reorganization, Plaintiff successfully bid for the position of Level 3 Panel Board Operator. (Defendant's Statement, ¶ 17.) This position was the highest paying bargaining unit position available in the plant. (Defendant's Statement, ¶ 17.) While Plaintiff was familiar with some of her new duties from past experience, she needed to undergo further training for her new position. (Defendant's Statement, ¶¶ 18-22.)
Plaintiff received Level 2 training from December 11, 2000, to January 19, 2001. (Defendant's Statement, ¶ 20.) During this training period, Plaintiff was reassigned from the B shift to a day shift schedule. (Defendant's Statement, ¶ 40.) This change resulted in Plaintiff working eight, instead of twelve hour shifts, and resulted in a loss of overtime of eight hours per week. (Smering Aff., ¶¶ 100-101.) Three men who were also training for new positions did not have their schedules changed. (Defendant's Statement, ¶ 43.) These individuals were not being trained as Level 3 Panel Board Operators. (Defendant's Statement, ¶¶ 44, 45.) Plaintiff passed her Level 2 test on January 19, 2001. (Defendant's Statement, ¶ 21.)
Plaintiff received Level 3 training from January 22, 2001, to February 23, 2001. (Defendant's Statement, ¶ 20.) Her shift schedule remained changed for this period of training as well. (Defendant's Statement, ¶ 40.) Plaintiff took a Level 3 test on February 14, 2001, but failed at that time. (Defendant's Statement, ¶ 22.) Plaintiff retook the Level 3 test on February 23, 2001, and passed. (Defendant's Statement, ¶ 23.) Because Plaintiff passed her training tests within the time period allowed by contract, she qualified for and received a pay raise. (Defendant's Statement, ¶ 24; Armstrong Aff., ¶ 20.)
3. Plaintiff's Suspension
In early December of 2000, while Plaintiff was training for her Level 3 Panel Board Operator position, she had a conversation with Sue Strauss, one of her co-workers. (Plaintiff's Response to Defendant's Rule 56 Statement ("Plaintiff's Statement"), ¶ 7.) Ms. Strauss is gay. (Defendant's Statement, ¶ 25.) During the course of that conversation, Plaintiff indicated to Ms. Strauss that Defendant refused to give her (Plaintiff) time off to attend her father-in-law's funeral. (Plaintiff's Statement, ¶ 7.) In response, Ms. Strauss advised Plaintiff that Defendant had given her (Ms. Strauss) time off to attend her partner's mother's funeral. (Plaintiff's Statement, ¶ 7.) Plaintiff then commented that she felt that Defendant was discriminating against her because she was not gay. (Defendant's Statement, ¶ 25; Plaintiff's Statement, ¶ 7.)
Ms. Strauss filed a complaint about Plaintiff's comment with Defendant's Human Resources Department. (Defendant's Statement, ¶ 26; Plaintiff's Statement, ¶ 8.) Facts regarding what Ms. Strauss told Plaintiff, what Ms. Strauss told management, and whether Ms. Strauss was pressured into filing a complaint are in dispute. (Defendant's Statement, ¶¶ 26-29; Plaintiff's Statement, ¶¶ 7-11.) There is no dispute, however, that Ms. Strauss filed a complaint and that Plaintiff was placed on paid suspension pending the outcome of Defendant's investigation. (Defendant's Statement, ¶ 30.) After the investigation, Jean Moran, the Human Resources Manager, and Mr. Service suspended Plaintiff for four days for violating Defendant's harassment policy and rules of conduct. (Defendant's Statement, ¶ 30; Service Aff., ¶¶ 9, 25.)
4. Awareness Letter
On March 3, 2001, 35,000 pounds of material were rejected because of a high pH balance. (Defendant's Statement, ¶ 46.) Plaintiff was working as the Panel Board Operator at the time this material was rejected. (Defendant's Statement, ¶ 46.) As a result of the spoilation of this material, Plaintiff received an Awareness Letter from the Manufacturing Engineer, Dana Thompson. (Defendant's Statement, ¶¶ 47-48; Largis Aff., Exh. Q.) The Awareness Letter was instructional, not disciplinary. (Defendant's Statement, ¶ 48.)
5. Plaintiff's Termination
Defendant produces persulfate products by applying significant amounts of power to large cells through which water and chemical solutions flow. (Defendant's Statement, ¶ 54.) On September 26, 2001, three cell sections used in the production of sodium persulfate were totally destroyed. (Defendant's Statement, ¶ 53.) This resulted in a loss of approximately $70,000, interruption of production for several days, and loss of the use of the three cells for several weeks. (Defendant's Statement, ¶ 53.) Moreover, there was the potential for an explosion and fire, which could have resulted in loss of life and additional property damage. (Defendant's Statement, ¶ 53.)
Plaintiff was the Panel Board Operator on the evening of September 26, 2001, and in that position, was the lead person on the shift responsible for identifying and correcting problems. (Defendant's Statement, ¶¶ 55, 57.) Plaintiff's responsibilities included monitoring display screens that showed which cells were receiving power and the amount of amperage to each cell. (Defendant's Statement, ¶ 58.)
Ms. Thompson, the Manufacturing Engineer, was assigned to investigate the incident. (Defendant's Statement, ¶ 85.) Plaintiff was suspended without pay (on September 28, 2001) pending the outcome of the investigation. (Largis Aff., Exh. S.) After conducting her investigation, Ms. Thompson determined that the immediate and direct cause of the incident was Plaintiff's "Failure to check/monitor, Failure to react/correct, Inattention to detail/job task." (Defendant's Statement, ¶¶ 86-89; Thompson Aff., Exh. I, p. 4.) Ms. Thompson, Mr. Boyd, Ms. Moran and Mr. Service then met to discuss the findings of the investigation. (Service Aff., ¶ 62.) It was determined that Plaintiff's employment with Defendant should be terminated. (Service Aff., ¶ 63.) By letter dated October 11, 2001, Mr. Boyd notified Plaintiff that she was being terminated for "gross dereliction of job responsibilities" relative to the September 26, 2001 incident. (Defendant's Statement, ¶ 52; Largis Aff., Exh. T.)
B. Plaintiff's EEOC Charge
Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on April 16, 2001. (Complaint, Exh. B.) Earlier, on February 26, 2001, Plaintiff completed a New Charge Questionnaire for Discipline/Demotion for the EEOC. (Complaint, Exh. A.) Plaintiff alleged that she had been discriminated against because of her sex, age, and marriage to a full-time salaried employee. (Complaint, Exhs. A and B.) She also alleged that she had been retaliated against for complaining about discrimination. (Complaint, Exhs. A and B.)
Plaintiff does not assert retaliation claims in this action.
Between the two EEOC filings, Plaintiff complained about (1) the April 2000 incident in which she received a verbal warning for calling Tom Slomka a "lazy ass"; (2) a June 2000 incident in which Mr. Service, the Plant Manager, announced that Plaintiff was one of three employees who did not "fit in" at the plant; (3) the December of 2000 suspension she received for the comments she made to Sue Strauss; (4) the change in her schedule in late 2000 and early 2001 while she trained for the Level 3 Panel Board Operator position; and (5) the March 9, 2001 Awareness Letter that she received regarding the spoilation of 35,000 pounds of material. (Complaint, Exhs. A and B.)
This allegation is apparently tied to Plaintiff's claim that two men employed by Defendant were offered better retirement incentive packages than she was. This claim was expressly abandoned at oral argument.
The EEOC investigated these allegations, determined that it could not conclude that any violation of Title VII or the ADEA occurred, and therefore issued a Dismissal and Notice of Rights document as well as an explanatory letter to Plaintiff on September 25, 2001. (Defendant's Statement, ¶ 51.)
C. Procedural History
Plaintiff instituted this action on October 12, 2001, by filing a Complaint in the United States District Court for the Western District of New York. Defendant filed its Answer to the Complaint on November 26, 2001. On October 31, 2003, Defendant filed the instant Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. After full briefing on the motion, this Court heard oral argument on February 2, 2004, and reserved decision at that time.
In support of its Motion for Summary Judgment, Defendant filed the following documents: the Affidavit of Judy Hernandez, Esq., the Affidavit of Robert C. Service, the Affidavit of Darryl J. Largis, the Affidavit of Ronald Armstrong, the Affidavit of Dana Thompson, a Rule 56 Statement of Undisputed Facts, a memorandum of law, the Reply Affidavit of Judy Hernandez, Esq., the Reply Affidavit of Robert C. Service, the Reply Affidavit of Dana Thompson, and a reply memorandum of law. In opposition to Defendant's motion, Plaintiff filed the following: the Declaration of Richard Wyssling, Esq., the Affidavit of Robert Smering, the Affidavit of Douglas Parker, the Affidavit of Linda C. Smering, the Affidavit of Richard Collier, a Statement in Response to Defendant's Rule 56 Statement of Undisputed Facts and a memorandum of law.
III. DISCUSSION AND ANALYSIS
A. Summary Judgment StandardFederal Rule of Civil Procedure 56 provides that summary judgment is warranted where 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). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court 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.
In the context of employment discrimination cases, the United States Court of Appeals for the Second Circuit has explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment in employment discrimination cases because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). Nonetheless, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). 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 commercial or other areas of litigation." Id.
B. Defendant's Motion for Summary Judgment
As discussed above, Plaintiff's Complaint alleges disparate treatment marital status and gender discrimination claims. In short, she complains that Defendant treated her less favorably than male employees because she is a woman. Defendant argues that Plaintiff's marital status discrimination claim must be dismissed because marriage to a particular person, as opposed to an individual's status as a married person, is not a cognizable claim. Alternatively, Defendant urges this Court not to exercise jurisdiction over this state law claim.
As to Plaintiff's Title VII gender discrimination claims, Defendant argues that it is entitled to summary judgment for several reasons. First, Defendant argues that Plaintiff's termination claims should be dismissed because Plaintiff has not exhausted her administrative remedies. Second, Defendant argues that the applicable statute of limitations precludes consideration of any alleged incidents of discrimination occurring more than 300 days prior to the filing of Plaintiff's EEOC charge. Third, Defendant argues that it is entitled to summary judgment on Plaintiff's remaining claims because Plaintiff cannot carry her burden under the applicable burden-shifting analysis.
This Court will address each argument in turn.
1. Plaintiff's Marital Status Claim
Plaintiff alleges that Defendant (through Mr. Service) discriminated against her on the basis of her marital status. In particular, Plaintiff contends that she was subjected to adverse employment actions after announcing her engagement to and subsequently marrying Mr. Smering.
It is unlawful for an employer to discriminate against an individual in compensation, terms or conditions of employment because of the individual's marital status. N.Y. Exec. Law § 296(1)(a). It is well settled that this prohibition applies to marital status (e.g., married, divorced, single), not to marriage to a particular person. See Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Bd., 415 N.E.2d 950, 953-54, 51 N.Y.2d 506, 512-13, 434 N.Y.S.2d 961, 964-65 (1980);see also Murphy v. Cadillac Rubber Plastics, Inc., 946 F.Supp. 1108, 1119-21 (W.D.N.Y. 1996). The record in this case demonstrates that Plaintiff has not stated a cognizable marital status claim because she alleges that she was discriminated against because of her marriage to Mr. Smering, as opposed to her general status as a married individual.
Plaintiff alleged in her Complaint that "Defendants took the adverse job actions against Plaintiff because of Plaintiff's marriage to Robert Smering, because of problems between Mr. Service and Plaintiff's husband." (Complaint, ¶ 79 (emphasis added).) Moreover, Plaintiff testified that she believes Mr. Service discriminated against her because he was jealous of her husband, because he was envious of Mr. Smering's personal and professional life, and because Plaintiff and Mr. Smering were happy together. (Smering Tr., p. 246-248.) Further, Plaintiff concedes that Mr. Service did not discriminate against her on the basis of her marital status while she was married to Mr. Wilkolaski. Rather, Plaintiff asserts that Mr. Service targeted her only after she rejected his romantic overtures and instead married Mr. Smering. (Plaintiff's Statement, ¶ 31; Defendant's Statement, ¶ 5; Smering Aff., ¶ 42.)
Finally, accepting Plaintiff's factual allegations as true, Mr. Service's conduct demonstrates that any discrimination he directed at Plaintiff was because of her marriage to Mr. Smering, rather than her status as a married individual. For example, after Mr. Service saw Plaintiff and Mr. Smering together at the December 1999 Christmas Party, he wanted to speak to Plaintiff. (Smering Aff., ¶¶ 6-7.) He wanted to know what went wrong in her marriage, but also wanted to know "Why Bob Smering?" then laughed and left the room. (Smering Aff., ¶¶ 8-15.) Accepting the truth of the facts as Plaintiff has presented them, this comment demonstrates that Mr. Service was upset that Plaintiff chose Mr. Smering, rather than himself, as a partner. Such a conclusion is further buttressed by Mr. Smering's affidavit. Therein, he states that Mr. Service attempted to "shop him around" to Defendant's sites in North Carolina and Maryland in an effort to curtail or terminate Mr. Smering's relationship with Plaintiff. (R. Smering Aff., ¶¶ 15-16.)
Referring to the Affidavit of Robert Smering.
This case is not unlike Cramer v. Newburgh Molded Prods., Inc., 645 N.Y.S.2d 46 (N.Y.App.Div. 1996) (per curiam). InCramer, the Second Department affirmed the New York Supreme Court's grant of summary judgment where the wife-Plaintiff asserted that she was terminated "because she was married to Joseph Cramer." Cramer, 645 N.Y.S. 2d at 47. The court expressly stated that such an assertion "does not set forth a cognizable cause of action under [N.Y. Exec. Law § 296(1)(a)], which prohibits discrimination based upon an individual's marital status rather than upon the fact that the individual is married to any particular partner." Id. (citations omitted). As stated, Plaintiff alleged in her Complaint that "Defendants took the adverse job actions against Plaintiff because of Plaintiff's marriage to Robert Smering," an allegation that is almost identical to the assertion in Cramer. (Complaint, ¶ 79 (emphasis added).)
Plaintiff's Complaint and the evidence in the record clearly reveals that Plaintiff's claim is that she was discriminated against because she was married to Robert Smering. Accordingly, this Court finds that Plaintiff has failed to state a cognizable marital status discrimination claim under N.Y. Exec. Law § 296(1)(a). Defendant's Motion for Summary Judgment on this claim is therefore granted.
2. Plaintiff's Failure to Exhaust Claims Related to her Termination
Defendant argues that Plaintiff failed to exhaust claims related to her termination because she did not first present those claims to the EEOC for investigation. Plaintiff argues that her claims may proceed in this Court despite the fact that they were not exhausted because they are "reasonably related" to the claims set forth in her EEOC charge.
Ordinarily, a plaintiff commencing a Title VII action must exhaust her administrative remedies by first presenting her claims to the EEOC. Bailey v. Colgate-Palmolive Co., No. 99 Civ. 3228, 2003 WL 21108325, at *12 (S.D.N.Y. May 14, 2003). Failure to do so defeats the purpose of Title VII's statutory notice provision, which is "to encourage settlement of discrimination disputes through conciliation and voluntary compliance." Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985); Burnett v. ESL Fed. Credit Union, 198 F.Supp.2d 307, 314-15 (W.D.N.Y. 2002). Consequently, courts routinely dismiss unexhausted Title VII discrimination claims. Bailey, 2003 WL 21108325, at *12 (citing cases).
However, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The Second Circuit has held that "`as a general matter, the failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement.'"Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (quoting Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000));see also Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 n. 5 (2d Cir. 2000); Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999). Thus, the requirement can be waived by the litigants or the court.Zippes, 455 U.S. at 393; Pietras, 180 F.3d at 474.
In this case, it is undisputed that Plaintiff failed to present her termination claim (including the fact that she was suspended without pay on September 28, 2001) to the EEOC. In fact, Plaintiff's suspension and termination post-date her EEOC charge: Plaintiff filed her EEOC Charge on April 16, 2001, and was not terminated until approximately six months later, on October 11, 2001. (Complaint, Exh. B; Defendant's Statement, ¶ 52.) Defendant has the right to insist that Plaintiff exhaust her administrative remedies. See Francis, 235 F.3d at 768 (noting that defendants are entitled to insist that plaintiffs comply with the exhaustion requirements). Here, Defendant exercised its right by asserting exhaustion as an affirmative defense in its Answer and pressing exhaustion as an argument in support of summary judgment. (Answer, ¶ 78.) This, however, does not end the analysis.
Under some circumstances, courts may entertain claims that are "reasonably related" to, but not expressly alleged in the underlying administrative charge. See Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in, Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684, 693 (2d Cir. 1998). In Butts, the Second Circuit discussed three situations where unexhausted claims may be "reasonably related" to properly presented claims: (1) "where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination;" (2) where the "claim is one alleging retaliation by an employer against an employee for filing an EEOC charge" and (3) "where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge."Butts, 990 F.2d at 1402-03 (quotations and citations omitted). Plaintiff does not assert any retaliation claims in her Complaint, so only the first and third Butts factors are applicable.
In this case, the question presented by the first Butts factor is whether it is reasonable to conclude that Plaintiff's suspension and subsequent termination would fall within the scope of the investigation conducted by the EEOC on the claims contained in Plaintiff's April 16, 2001 administrative charge. The EEOC concluded its investigation on September 25, 2001 — three days before Plaintiff's suspension, and sixteen days before her termination. Obviously, it is an impossibility that the scope of the EEOC's investigation could include events that had not yet occurred.
Moreover, by this Court's count, Plaintiff alleged five specific incidents of discrimination in her EEOC charge beginning with the "lazy ass" comment in April of 2000, and ending with the Awareness Letter that she received on March 9, 2001. (Complaint, Exhs. A and B.) Investigation of Plaintiff's suspension and termination would not be reasonably related to the five discrete acts noticed in the charge. Moreover, nothing in the allegations themselves would compel the EEOC to broaden the scope of its investigation to include possible termination. See Samimy v. Cornell Univ., 961 F.Supp. 489, 492 (W.D.N.Y. 1997) (finding that where there was specificity in the charge, a reasonable EEOC investigation would begin and end with the charges specified). Thus, this Court finds that the first Butts factor is not met.
In her papers, Plaintiff sets forth no argument on the first Butts factor.
The question presented by the third Butts factor is whether Plaintiff's suspension and termination were carried out in precisely the same manner as the incidents set forth in the EEOC charge. In this regard, not only must the acts be carried out "in precisely the same manner," Butts, 990 F.2d at 1402-03, but the acts must also be "essentially the same as the earlier allegedly wrongful conduct contained in the EEOC complaint," Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1994).
Plaintiff argues that the exhausted and unexhausted incidents are essentially the same because they were all part of a course of conduct designed to undermine Plaintiff's job performance so that she could eventually be fired for cause. This Court is not persuaded.
As stated, the acts contained in the EEOC charge involved (1) the April 2000 incident in which she received a verbal warning for calling Tom Slomka a "lazy ass"; (2) a June 2000 incident in which Mr. Service announced that Plaintiff was one of three employees who did not "fit in"; (3) the December of 2000 suspension Plaintiff received for the comments she made to Sue Strauss; (4) the change in Plaintiff's schedule in late 2000 and early 2001 while she trained for the Level 3 Panel Board Operator position; and (5) the March 9, 2001 Awareness Letter that Plaintiff received regarding the spoilation of 35,000 pounds of material. (Complaint, Exhs. A and B.)
Plaintiff now attempts to add her September 28, 2001 suspension and October 11, 2001 termination to her claims. This Court finds, however, that the new acts alleged are not essentially the same and were not carried out in precisely the same manner.
First, the incident leading to Plaintiff's termination is different than any previously alleged. Plaintiff's termination came as the result of her responsibility for the destruction of three cell sections used in the production of sodium persulfate, the loss of approximately $70,000, the interruption of production for several days, and the loss of the use of the three cells for several weeks. (Defendant's Statement, ¶ 53.) Second, the incident leading to Plaintiff's termination is far more serious than the incidents presented to the EEOC. There was the potential for an explosion and fire, which could have resulted in loss of life and additional property damage. (Defendant's Statement, ¶ 53.) Third, Plaintiff was terminated after what appears to be a thorough investigation by several members of the management team, several of whom were not involved in the earlier incidents. (Defendant's Statement, ¶¶ 86-89; Thompson Aff., Exh. I, p. 4.) Finally, a period of approximately seven months separates the exhausted and unexhausted claims.
Accordingly, this Court finds that Plaintiff's unexhausted allegations are not essentially the same and were not carried out in precisely the same manner as the incidents set forth in the EEOC charge. Cf. Samimy, 961 F.Supp. at 493 (finding that different incidents involving different times and different decisionmakers were not related for purposes of the third Butts factor). This Court will therefore dismiss Plaintiff's claims related to her termination for failure to exhaust her administrative remedies.
3. Statute of Limitations
Defendant argues that at least one incident that Plaintiff complains of is time-barred because it occurred more than 300 days prior to the filing of her EEOC charge. Plaintiff acknowledges the 300 day time-bar, but argues that the continuing violations doctrine applies because all of the incidents alleged in her Complaint were part of a continuing and concerted effort to terminate her employment.
In order to maintain an action under 42 U.S.C. § 2000e-5, a plaintiff must ordinarily file a timely charge with the EEOC, receive from that agency a right to sue letter, and file an action within 90 days of receipt of that letter. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994). Because New York is a state with a fair employment agency, a charge of discrimination must be filed with the EEOC or the New York State Department of Human Rights within 300 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e);Harris v. City of New York, 186 F.3d 243, 247 n. 2 (2d Cir. 1999).
"The timeliness of a discrimination claim is to be measured from the date the claimant had notice of the allegedly discriminatory action." Van Zant, 80 F.3d at 713 (citing Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir. 1992)). The 300 day filing requirement "functions as a statute of limitations."Quinn v. Green Tea Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). The 300 day statute of limitations is strictly construed in this circuit. See, e.g., Trenchfield v. DuPont Photomasks, Inc., No. 96 CIV. 1135 (AGS), 1997 WL 53238, at *5-*6 (S.D.N.Y. 1997) (Title VII claims filed with the EEOC 338 days after alleged discriminatory employment practice dismissed as untimely); Van Zant v. KLM Royal Dutch Airlines, 870 F.Supp. 572, 575 (S.D.N.Y. 1994) (sexual harassment and retaliation claims dismissed as time-barred where last alleged discriminatory act was 315 days before EEOC filing). Moreover, the Supreme Court recently reiterated its statement that "`strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108, 122, S.Ct. 2061, 2070, 153 L.Ed.2d 106 (2002) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)).
Here, it is undisputed that Plaintiff filed her charge with the EEOC on April 16, 2001. (Complaint, Exh. B.) Accordingly, any alleged incidents occurring prior to June 22, 2000 (300 days prior to April 16, 2001) are time-barred. See Miller v. New York City Health Hosp. Corp., No. 00 Civ. 140, 2004 WL 1907310, at *3 (S.D.N.Y. Aug. 25, 2004) ("An incident that was not charged to the EEOC or DHR within 300 days of its occurrence is time-barred.").
In this case, one alleged incident falls into this category: Plaintiff's allegation relating to the verbal warning she received on April 16, 2000, for calling Tom Slomka a "lazy ass." Plaintiff argues that the continuing violation doctrine saves this untimely claim because all of the incidents alleged are part of a concerted effort carried out by Mr. Service to get her fired. In this Court's view, the continuing violation doctrine does not apply.
"The `continuing violation' doctrine holds that an act that occurs within 300 days of an EEOC charge may implicate — and therefore make timely — incidents otherwise outside of the mandatory filing deadlines." Miller, 2004 WL 1907310, at *3 (citing Morgan, 536 U.S. at 114-21). "[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d at 704. For example, the Second Circuit has stated that: "The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, or discriminatory employment tests. However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (citations omitted).
Thus, discrete acts are generally insufficient to constitute a continuing violation. See Morgan, 536 U.S. at 114 (termination, failure to promote, denial of transfer and refusal to hire are discrete acts constituting separate actionable unlawful employment practices); Lightfood v. Union Carbide Corp., 110, F.3d 898, 907 (2d Cir. 1997) (repeated demotions and denial of pay increases not sufficient for continuing violation theory).
This Court finds that the continuing violation doctrine does not apply here. First, the continuing violation doctrine is disfavored in this circuit. See Samimy, 961 F.Supp. at 493 (citing cases). Only compelling circumstances will warrant application of the continuing violation exception to the statute of limitations. Blesedell v. Mobil Oil Co., 708 F.Supp. 1408, 1415 (S.D.N.Y. 1989) (citing LaBeach v. Nestle Co., 658 F.Supp. 676, 687 (S.D.N.Y. 1987)). No compelling circumstances are presented in this case.
Second, Plaintiff alleges discrete incidents of disparate treatment, not a discriminatory policy or mechanism. See Bailey, 2003 WL 21108325, at *9 (discussing the fact that failure to set forth discriminatory policy or mechanism is fatal to application of the continuing violation doctrine). While Plaintiff argues that there was a continuing effort by Mr. Service to get her fired, she does not identify an ongoing policy, practice or mechanism of a discriminatory nature endorsed by Defendant, and there is no support in the record for a finding that any such policy existed. This is not a case involving seniority lists, employment tests or other institutional discriminatory practices. Moreover, there is no support for a finding that the several instances of discrimination alleged by Plaintiff were permitted by Defendant to continue unremedied for so long as to amount to a discriminatory policy or practice.
It is undisputed that the verbal warning Plaintiff received on April 16, 2000 came as a direct result of Plaintiff calling a supervisor a "lazy ass." Even when considered in conjunction with the timely incidents of discrimination, the only reasonable conclusion is that the April 16, 2000 verbal warning is a discrete act. Moreover, even assuming that the April 16, 2000 verbal warning is similar to the timely incidents, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert, 10 F.3d at 53. As such, the continuing violation doctrine does not save this untimely claim. Accordingly, Plaintiff's claim arising out of her receipt of the April 16, 2000 verbal warning is time-barred. Defendant's Motion for Summary Judgment with respect to this claim is granted.
4. Plaintiff's Remaining Title VII Claims
Before discussing Plaintiff's remaining claims, this Court pauses to note that in opposition to Defendant's motion, Plaintiff appears to argue for the very first time that she was subject to quid pro quo sex discrimination by Mr. Service. (Plaintiff's Memorandum of Law, p. 2 ("Mr. Service's actions were motivated by Ms. Smering's rejection of his sexual overtures, constituting quid pro quo sexual discrimination . . ."); Plaintiff's Memorandum of Law, p. 6 ("[Plaintiff's] complaint is, in essence, a claim of quid pro quo sexual discrimination.") This Court is cognizant of the fact that disparate treatment claims encompass quid pro quo acts. "A disparate treatment claim requires a showing of an adverse employment action `either because of gender or because a sexual advance was made by a supervisor and rejected." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992)). However, quid pro quo was not included in Plaintiff's EEOC Charge as either a claim or theory, nor is it included in the Complaint in this action. It was raised for the first time in opposition to the instant motion. Accordingly, this Court finds that quid pro quo sexual discrimination is not an issue in this case.
Plaintiff goes on to state that Mr. Service's quid pro quo discrimination "took the form of disparate disciplinary treatment imposed upon Ms. Smering by him and others at his direction." (Plaintiff's Memorandum of Law, p. 2.) To the extent this statement is intended to be a theory that Mr. Service's rejection by Plaintiff motivated him to treat her less favorably than men because she is a woman, that claim is addressed below.
Three incidents comprise Plaintiff's remaining Title VII claims: (1) the reassignment of her shifts in December of 2000 while she was training for the Level 3 Panel Board Operator and her initial failure of the Level 3 test, (2) her 4-day suspension for violating Defendant's harassment policy related to Plaintiff's comments to Ms. Strauss, and (3) her receipt of the Awareness Letter on March 3, 2001 related to the spoilation of 35,000 pounds of material. Each of these claims is predicated on disparate treatment based on gender and each is subject to the Title VII burden-shifting analysis.
Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1); Desert Palace, Inc. v. Costa, 539 U.S. 90, 92-93, 123 S.Ct. 2148, 2150, 156 L.Ed.2d 84 (2003). Discrimination claims brought under Title VII are analyzed under the burden-shifting analysis first set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-26, 36 L. Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). This analysis first requires that the plaintiff establish a prima facie case of discrimination by showing that (1) she is a member of a protected class, (2) she is qualified for her position, (3) she suffered an adverse employment action, and (4) the circumstances of the adverse action give rise to an inference of discrimination. Weinstock, 224 F.3d at 42 (citing McDonnell Douglas, 411 U.S. at 802). The burden on the plaintiff at this stage of the analysis is de minimis. See Texas Dep't of Comt'y Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed.2d 207 (1981)). In fact, no evidence of discrimination is required. James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
If the plaintiff meets this initial burden and establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 254. If the defendant succeeds in making this showing, "the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." Weinstock, 224 F.3d at 42 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct. 2742, 125 L.Ed.2d 407 (1993)).
Assuming that the defendant meets its burden at the second stage, the burden returns to the plaintiff to prove that the defendant's discrimination was intentional. In this regard, the plaintiff must produce "evidence that the defendant's proffered, nondiscriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42. "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. However, "evidence contradicting the employer's given reason — without more — does not necessarily give logical support to an inference of discrimination. James, 233 F.3d at 154. Put simply, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. at 156 (quoting St. Mary's, 509 U.S. at 519).
a. Failed Level 3 Test and Issuance of March 3, 2001 Awareness Letter
Plaintiff's Complaint alleges gender-based disparate treatment. Disparate treatment claims arise when an individual is treated less favorably than a member of the opposite gender under circumstances from which a gender-based motive could be inferred.See Schwabenbauer v. Bd. of Ed. of City Sch. Dist. of City of Olean, 667 F.2d 305, 309 (2d Cir. 1981); see also Ott v. Perk Dev. Corp., 846 F.Supp. 266, 275 (W.D.N.Y. 1994). Disparate treatment "is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their [protected characteristic]." Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). "Liability in a disparate-treatment case `depends on whether the protected trait . . . actually motivated the employer's decision." Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (quoting Hazen Paper Co. v. Biggins, 507 U.s. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)).
To establish a prima facie case of disparate treatment, the plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she was subjected to an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). "The burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253; see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (characterizing burden as "minimal"). "A plaintiff may prevail if he submits enough believable evidence for a jury to find that an adverse employment decision resulted because of discrimination." Id.
Here, Defendant concedes that Plaintiff is a member of a protected class (female) and that she is qualified for her position. However, Defendant argues that Plaintiff cannot establish a prima facie case of discrimination as to her failed Level 3 Test and the issuance of the March 3, 2001 Awareness Letter because these incidents did not result in an adverse employment action.
The Second Circuit defines an adverse employment action as a "materially adverse change" in the terms and conditions of an individual's employment. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004); Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).
To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.Galabya, 202 F.3d at 640 (quotations, citations and alterations omitted); see also Sanders, 361 F.3d at 755. However, because each case presents unique circumstances and there is no bright-line rule, "courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse'."Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997).
Defendant argues that the alleged requirement that Plaintiff take her Level 3 test prior to the completion of training (a test that she failed) and the issuance of the Awareness Letter on March 3, 2001, after the spoilation of 35,000 pounds of material were not adverse employment actions. Plaintiff's only opposition to this argument is that these actions must be construed as adverse because they were taken as part of a pattern of continuing violations. As discussed fully above, this Court rejects that argument.
The undisputed facts demonstrate that the two actions identified above were not materially adverse. It is undisputed that Plaintiff took and passed her Level 3 test nine days after she initially failed it. (Defendant's Statement, ¶ 23.) Because she passed the test within the maximum allotted time, Plaintiff actually received a pay raise. (Defendant's Statement, ¶ 24; Armstrong Aff., ¶ 20.) Plaintiff incurred no adverse consequences as a result of her initially failing her Level 3 test. Accordingly, no adverse employment action ensued as a result of Plaintiff's failing her first Level 3 test.
Further, it is undisputed that no adverse action resulted from the issuance of the Awareness Letter on March 3, 2001. Plaintiff was determined to be responsible for the spoilation of 35,000 pounds of material. (Defendant's Statement, ¶¶ 46, 48.) As a result, Plaintiff was issued an Awareness Letter. (Defendant's Statement, ¶ 48.) It is undisputed that the Awareness Letter was instructional, not disciplinary. (Defendant's Statement, ¶ 48.) Moreover, in her papers, Plaintiff concedes that absent the application of the continuing violation doctrine, the issuance of the Awareness Letter does not constitute an adverse action. (Plaintiff's Memorandum of Law, p. 10 (commenting that Defendant's legal conclusion regarding the absence of an adverse job action would be correct if the events are construed as discrete incidents); Plaintiff's Memorandum of Law, p. 8 ("the awareness letter was admittedly not a disciplinary penalty").)
Accordingly, this Court finds that there are no issues of material fact as to whether Plaintiff was subject to an adverse employment action relating to the failed Level 3 test and the issuance of the Awareness Letter on March 3, 2001. The undisputed facts demonstrate that no adverse action was taken. Accordingly, Defendant is entitled to summary judgment on these claims because Plaintiff is unable to set forth a prima facie case of disparate treatment gender discrimination.
Moreover, even if it was determined that Plaintiff's taking of her Level 3 test early and her receipt of the Awareness Letter were adverse employment actions, this Court finds that Plaintiff has failed to set forth evidence from which a reasonable trier of fact could conclude that such actions were taken because she is a woman.
As for Plaintiff's claim that she was forced to take her Level 3 test early, she has failed to set forth evidence of similarly situated men who were treated more favorably. In fact, Plaintiff testified at her deposition that she was the only employee training as a Level 3 Panel Board Operator. (Smering Tr., p. 178.) Moreover, Plaintiff's own statement of facts directly contradicts her assertion that she was forced to take the test. Plaintiff asserts that she was approached by Ronald Armstrong, Defendant's Training Coordinator, about her readiness to take the Level 3 test. (Plaintiff's Statement, ¶ 6.) Plaintiff responded that she did not think she was ready to take the test, "but that she was willing to take it at that time because the test would help her identify the areas in which she still needed to learn more." (Plaintiff's Statement, ¶ 6 (emphasis added).) Thus, no reasonable fact-finder could conclude that Plaintiff was forced to take the Level 3 test early while men were not.
Referring to the deposition transcript of Linda Smering, attached to the Affidavit of Judy Hernandez, Esq. as Exhibit E.
As for the issuance of the "Awareness Letter," Plaintiff contends that she was discriminated against because she was the first employee to receive such a letter. (Smering Tr., p. 189.) She also testified that Mr. Service orchestrated the issuance of the letter. (Smering Tr. p. 189.) Mr. Service, however, did not issue the Awareness Letter; Mr. Boyd and Ms. Thompson did. (Thompson Aff., ¶ 22.) Further, Plaintiff concedes that a man, Brian Sykes, also received an Awareness Letter after she did. (Smering Tr., p. 193; Smering Aff., ¶ 60; Largis Aff., Exh. R.) Mr. Sykes' received his Awareness Letter the same month that Plaintiff did. (Largis Aff., Exh. R.) Simply being the first employee to receive a new form of written reprimand does not constitute evidence of gender discrimination.
Further, Plaintiff does not dispute the fact that she was issued the Awareness Letter after it was determined that she was responsible for the spoilation of 35,000 pounds of material. (Defendant's Statement, ¶¶ 46-48; Smering Aff., ¶ 65.) Plaintiff fails to identify any men who were determined to be responsible for a similar amount of loss and were not disciplined similarly. Accordingly, this Court finds that no reasonable jury could view the evidence presented and infer that Defendant issued Plaintiff the Awareness Letter after the March 3, 2001 incident, because she is a woman.
Accordingly, for the reasons stated, Defendant is entitled to summary judgment on Plaintiff's failed Level 3 test and Awareness Letter claims.
b. Reassignment of Training Schedule and Plaintiff's 4-Day Suspension
Plaintiff's remaining claims are her claim regarding her shift reassignment during her training period in December of 2000, and her claim regarding her suspension for four days following the comments she made to Ms. Strauss. Defendant does not challenge the fact that Plaintiff's shift reassignment and suspension constitute adverse employment actions. Rather, Defendant argues that Plaintiff has not set forth sufficient evidence from which it could be concluded that these incidents arose under circumstances giving rise to an inference of unlawful discrimination. Moreover, Defendant argues that it has proffered a legitimate, non-discriminatory reason for each of its actions, and Plaintiff cannot establish that its reasons are pretext for actual discrimination.
(i) Plaintiff's Prima Facie Case
Given Plaintiff's minimal burden at this stage of the analysis, her recitation of facts allegedly evidencing discriminatory animus, and Defendant's proffer of a legitimate, nondiscriminatory reason for terminating Plaintiffs' employment, this Court finds it most expeditious to assume the existence of a prima facie case and move to the next stage of the analysis.See Besht v. Gen. Motors, 327 F.Supp.2d 208, 212-13 (W.D.N.Y. 2004) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.")); Wado v. Xerox Corp., 991 F.Supp. 174, 187 (W.D.N.Y. 1998).
(ii) Defendant's Legitimate, Non-Discriminatory Reason
The burden is now on Defendant to produce a legitimate, non-discriminatory reason for Plaintiff's schedule change and her suspension. See Reeves, 530 U.S. at 142 (noting that the defendant's burden at the second stage is not one of proof or persuasion, but is more appropriately considered a burden of production.) "This explanation must be `clear and specific.'"Gallo, 22 F.3d at 1226 (quoting Meiri, 759 F.2d at 997).
Defendant states that Plaintiff's schedule was changed during her training period for two reasons. First, Plaintiff was moved off of the B-shift to diffuse the situation between Plaintiff and Ms. Strauss. (Service Aff., ¶ 31.) Second, since Plaintiff was in training, a switch to the day shift afforded her enhanced training opportunities because she was able to work with a qualified Panel Board Operator. (Service Aff., ¶ 31.) In addition, by working the day shift, Plaintiff had access to the Training Coordinator, Production Supervisor and Manufacturing Engineers, who all worked days. (Service Aff., ¶ 31.) At the conclusion of her training, the situation between Plaintiff and Ms. Strauss had subsided, so Plaintiff was returned to the B shift. (Service Aff., ¶ 32.)
With respect to the 4-day suspension for the comments Plaintiff made to Ms. Strauss, Defendant states that the suspension was meted out because it was determined that Plaintiff had violated Defendant's harassment policy and rules of conduct. (Service Aff., ¶ 25.) Ms. Strauss was allegedly distressed by Plaintiff's comments that she was being discriminated against because she was not gay, and considered the comments to be malicious and degrading. (Service Aff., ¶ 11.) The Divisional Human Resource Manager, Ms. Jackie Nickerson, investigated Ms. Strauss's complaint and concluded that Plaintiff's conduct violated Defendant's harassment policy. (Service Aff., ¶ 28.)
Accordingly, this Court finds that Defendant has articulated legitimate, nondiscriminatory reasons for the adverse actions it took against Plaintiff. The presumption of discrimination created by Plaintiffs' assertion of a prima facie case now "drops out of the picture." Hicks, 509 U.S. at 511.
(iii) Pretext for Intentional Discrimination
The burden returns to Plaintiff to demonstrate that Defendant's non-discriminatory reasons are mere pretext for actual discrimination. "Where a plaintiff has alleged that an employer's reasons for an adverse employment action are pretextural, all reasonable inferences must be drawn in favor of the plaintiff's showing of pretext." Joseph v. Manhattan Bronx Surface Transit Operating Auth., No. 96 Civ. 9015, 2004 WL 1907750, at *14 (S.D.N.Y. Aug. 25, 2004). At this stage, the court must "examin[e] the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S. at 143.) This requires the court to determine whether "there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999).
A defendant's proffered non-discriminatory reason, however, "cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Olle v. Columbia Univ., No. 02 Civ. 8552, 2004 WL 1878794, at *15 (S.D.N.Y. Aug. 23, 2004) (quoting St Mary's, 509 U.S. at 502); see also AB v. Rhinebeck Cent. Sch. Dist., No. 03 CIV. 3241, 2004 WL 1944338, at *8 n. 9 (S.D.N.Y. Aug. 24, 2004). Therefore, to avoid summary judgment, Plaintiff must establish the existence of a genuine issue of fact as to whether Defendant's proffered explanations are false and a mere pretext for gender discrimination. Weinstock, 224 F.3d at 42. Unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination, the employer is entitled to summary judgment. See James, 233 F.3d at 154.
Plaintiff has not identified any similarly situated men who were treated more favorably in similar circumstances. That is, Plaintiff has failed to identify men who violated Defendant's harassment policy and were not disciplined, or who were training as a Level 3 Panel Board Operator and did not have their schedules changed. In fact, unrebutted evidence in the record demonstrates that Defendant has imposed disciplinary suspensions on men for use of inappropriate language ranging from suspensions of three to ten days. (Hernandez Aff., Exh. K; Smering Tr., p. 282-84.) In addition, one male employee in particular, Tom Deasy, accepted a resignation package in lieu of termination after he used the term "bitch." (Service Aff., ¶¶ 16-20.)
Moreover, Plaintiff has offered no evidence that men were able to choose their schedules during training. Plaintiff alleged in her Complaint that three men who were also training at the same time were permitted to stay on the day shift. (Complaint, ¶ 42.) However, she conceded during her deposition that these men were not similarly situated because they were training for "packout" positions. (Smering Tr., p. 178.) Plaintiff admitted that she was the only person training for a Level 3 Panel Board Operator position at that time. (Smering Tr., p. 178.)
This Court notes that Plaintiff was asked at her deposition whether anybody else received Panel Board Operator training around the same time that she did. (Smering Tr., p. 181.) Plaintiff responded that "Rick Collier might have been going through it around then, but I think he finished before I did . . . He stayed on his shift, C shift." (Smering Tr., p. 181.) Plaintiff submitted an Affidavit from Mr. Collier in opposition to Defendant's motion. Nowhere therein does Mr. Collier state that he underwent Panel Board Operator training at or near the time that Plaintiff did, nor does he state that he was permitted to choose his shift schedule while undergoing such training. There is therefore no evidence in the record supporting Plaintiff's apparent claim that Mr. Collier was treated more favorably than she in regard to shift schedule during Panel Board Operator training.
Plaintiff further testified at her deposition that she believed she was subject to discrimination because "normally when it came to training an individual, they would give them options." (Smering Tr., p. 177.) However, Plaintiff has not directed this Court to any evidence to substantiate this conclusory allegation. In fact, Article 7 of the Collective Bargaining Agreement specifically provides that an employee who bids into a new job must attend training as designated by Defendant. (Armstrong Aff., Exh. A.)
Accordingly, this Court finds that Plaintiff has failed to carry her burden of setting forth evidence from which a reasonable trier of fact could conclude that Defendant's legitimate, non-discriminatory reasons were false, and that actual discrimination occurred. Summary Judgment in Defendant's favor on these claims is therefore warranted. See James, 233 F.3d at 154.
IV. CONCLUSION
For the foregoing reasons, this Court finds that Defendant is entitled to summary judgment. Defendant's motion seeking such relief is therefore granted in all respects.
V. ORDERS
IT HEREBY IS ORDERED, that Defendant's Motion for Summary Judgment (Docket No. 34) is GRANTED.
FURTHER, that the Clerk of the Court is directed to take the necessary steps to close this case.
SO ORDERED.