Opinion
02-CV-0577E(Sc)
February 6, 2004
MEMORANDUM and Order
This decision may be cited in whole or in any part.
Plaintiff commenced this action alleging that defendant had discriminated against her because of her age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 296. Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's complaint. For the reasons stated hereinbelow, defendant's motion will be granted.
The following facts, construed in plaintiff's favor, are undisputed unless otherwise noted. Plaintiff, who was born March 5, 1948, was employed by MT Bank ("MT") from 1966 to December 15, 1999. Plaintiff held the position of Financial Analyst and Bank Officer in 1999. Karen Merrill became plaintiff's supervisor on May 12, 1999. Merrill's supervisor was Thomas J. Massung, MT's Senior Vice President of Technology and Banking. Plaintiff alleges that Merrill discriminated against her because of her age and treated her less favorably than younger employees. Plaintiff makes the following specific allegations of discriminatory treatment. Plaintiff asserts that (1) she was required to secure permission from Merrill in order to attend doctor's appointments, a requirement normally not required of an "exempt employee that had reached the level of Bank Officer," (2) Merrill "spent a great deal of time tracking [her] whereabouts during the course of the workday *** something younger employees were not subjected to [sic]," (3) Merrill had been verbally abusive to her during an October 1, 1999 meeting, (4) on October 6, a matchbook with a saying written on the front of it that read, "Old men should stick to hitting on old women," and that included a picture depicting an older man with two younger women had been placed on her office chair. Was Aff. ¶¶ 13-22; id., Ex. F. Plaintiff contends that she reported some of these incidents to Susan Steck, MT's Assistant Vice President of Employee Relations, to no avail. On or about November 7, 1999, plaintiff asked Massung for a job transfer. Id. ¶ 25, Ex. G. Plaintiff's request was denied. On the evening of December 14, 1999, Merrill confronted plaintiff and presented her with a copy of MT's Sporadic Absence Policy ("Policy") and told plaintiff to meet with her at 9:00 a.m. the following day in order to discuss it. Plaintiff advised Merrill that she would not discuss the Policy without first checking with Human Resources to see whether it applied to her as a bank officer. Plaintiff then called Steck and left a her a phone message requesting that she call plaintiff the following morning with regard to the matter. The next day, plaintiff arrived to her office at approximately 7:50 a.m. While waiting for Steck to call, plaintiff asserts that her "heart began to race," and that she "became lightheaded and started experiencing crushing chest pains." Id. ¶ 34. Plaintiff called her physician, who advised her to leave the office. Id. ¶ 35. Steck subsequently called plaintiff regarding her message from the previous evening. Upon being advised of the situation, Steck told plaintiff to follow her physician's advice. Id. ¶ 36. Before plaintiff left the office, Frederick Pawlikowski, MT's Vice President of Human Resources, called her and told her that she was not subject to the Policy and also advised her to follow her doctor's advice. Id. ¶ 37. Before plaintiff could leave work, Merrill arrived at her office to discuss the Policy. Plaintiff indicated that she was leaving to go to the emergency room based on her doctor's instructions. However, as plaintiff attempted to leave, Merrill demanded a note from her doctor immediately and blocked the exit. Id. ¶ 38. Plaintiff eventually left the office and drove herself to the emergency room. Plaintiff has not returned to work since that time on the advice of her physicians. Id. ¶ 39. Plaintiff subsequently applied for, and was granted, disability benefits from the Social Security Administration. Id., Ex. H.
Plaintiff also alleges that she was aware, before Merrill became her supervisor, of Men-ill's purported propensity for treating older employees differently than younger ones. Was Aff. ¶ 6. As an example, plaintiff alleges that on one occasion Merrill had disallowed an overtime payment to Carmella Sorrento but that "during the same time period, [she] had permitted younger workers to work overtime." Id. ¶¶ 7-8.
Apparently, plaintiff doubted whether the policy applied to her inasmuch as she was not an hourly employee.
Plaintiff subsequently filed an April 27, 2000 charge of age and sex discrimination with the New York State Division of Human Rights ("DHR"). The complaint was cross-filed with the Equal Employment Opportunity Commision ("EEOC"). After receiving her right-to-sue letter, plaintiff commenced the instant action.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact" and that "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture, and speculation *** are insufficient to create a genuine issue of fact."). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that parry's case, and on which that party will bear the burden of proof at trial." Celotex, at 322.
Of course, the summary judgment standard applies with equal force to discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 E Supp.2d 82, 87 (E.D.N.Y. 1999) ("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") (quotations marks and citations omitted). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 E3d 435, 448 (2d Cir. 1999) ("[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law"). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all the circumstances." Ibid.
Plaintiff's ADEA and HRL claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Under the McDonnell Douglas framework,
"a plaintiff must first establish a prima facie case of age discrimination. Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory business rationale for its actions. If the employer articulates such a reason, the presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual and that age discrimination was the true reason for the adverse employment action." Abdu-Brisson, at 466 (citations omitted).
Section 623(a) of the ADEA, in relevant part, makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age ***." 29 U.S.C. § 623(a)(1991).
See also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas framework in ADEA context); Roge v. JVYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (same); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (same).
To establish a prima facie case of age discrimination, plaintiff must show that "(1) [s]he is a member of the protected class; (2) [s]he is qualified for [her] position; (3) [s]he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Id. at 466-467 (citing McDonnell Douglas, at 802). Plaintiff's burden in establishing her prima facie case is de minimis. Id., at 467. Once the defendant has articulated a nondiscriminatory reason for the complained of action, "to defeat summary judgment the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Terry v. Ashcroft, 336 F.2d 128, 138 (2d Cir. 2003) (quotation marks and citation omitted). Defendant argues in support of its summary judgment motion that plaintiff has failed to establish a prima facie case of age discrimination because she cannot satisfy either the third or the fourth pertinent element. The Court agrees.
Before turning to the merits of defendant's motion, the Court begins by noting that plaintiff has failed to submit a memorandum of law in opposition thereto. Not only has she therefore failed to comply with Rule 7.1(e) of the Local Rules of Civil Procedure ("LRCvP"), but she has failed to offer any legal arguments or authority in opposition to defendant's motion. In addition, although plaintiff has submitted a Rule 56 Statement in Opposition to Summary Judgment, such does not comply with LRCvP 56.1 because it fails to specifically controvert the defendant's statements of undisputed facts. Accordingly, defendant's statement of facts must be deemed admitted. See LRCvP 56.1(c) (stating that the movant's statement of facts will be deemed admitted unless controverted by the opposing party). plaintiff's noncompliance with the Local Rules also requires the Court to speculate with regard to which facts are material inasmuch as plaintiff has not clearly articulated — either in her Complaint or in her opposing papers — the specific theories of liability upon which she relies in support of her generalized ADEA claim. In any event, contrary to defendant's assertion that this Court may grant its motion based solely on plaintiff's noncompliance with the Local Rules, this Court must nevertheless determine if defendant has met its initial burden in demonstrating the absence of any genuine issue of material fact. See Amaker v. Foley, 274 E3d 677, 681 (2d Cir. 2001) (holding that (1) it was improper for district court to grant movant's summary judgment motion based solely on the non-movant's failure to submit opposing papers and (2) the district court must first examine the movant's submissions to determine if it has met its burden of demonstrating that no material issue of fact remains for trial). The Court finds that defendant has met such burden.
Defendant has also failed to comply with LRCvP 56.1(d) by failing to separately file an appendix to its statement of material facts denominated as "Defendant's Appendix to Local Rule 56.1 Statement of Material Facts." LRCvP 56.1(d).
Plantiff cannot establish a prima facie case of age discrimination. First, plaintiff has failed to show that she suffered an adverse employment action. To constitute an adverse employment action within the context of a Title VII claim, plaintiff must demonstrate that an employment action was one that resulted in a "materially adverse change in the terms and conditions of [her] employment." Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999). "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 v. N.Y. City Bd. of Educ., 202 E3d 636, 640 (2d Cir. 2000) (quotation marks and citations omitted). Plaintiff has not alleged anything tangible that could be construed as an adverse employment action for the purpose of establishing her prima facie case. At most, plaintiff has shown isolated and sporadic incidents in which, arguably, Merrill treated her harshly, subjected her to unfair criticism and placed arbitrary restrictions on her. However, such conduct does not rise to the level of adverse employment actions for the purposes of establishing an age discrimination case. See Torres v. Pisano, 116 E3d 625, 640 (2d Cir. 1997) (holding that employee's allegations that employer's conduct had left her feeling "frightened" and "intimidated" does not constitute an adverse employment action). There is simply no evidence that shows that plaintiff suffered a materially adverse change in the terms and conditions of her employment. In addition, assuming arguendo that such actions constituted adverse employment actions, plaintiff has not shown that such actions occurred under circumstances that give rise to an inference of age discrimination. Plaintiff's allegations do not show that Merrill harbored any age-based animus toward her and her allegations of disparate treatment are entirely conclusory and without evidentiary support. Indeed, plaintiff failed to identify any specific employee who was allegedly treated more favorably than herself. The Court further notes that plaintiff's evidence which purportedly supports her assertion that Merrill had treated older employees differently than younger ones prior to the time that she had become plaintiff's supervisor — i.e., Merrill's alleged disallowance of Sorrento's overtime payment — is woefully inadequate to support an inference that she was discriminated against because of her age. To begin, plaintiff does not even give the ages of Sorrento or the other relevant employees whom she claims were treated differently by Merrill. In addition, whatever occurred regarding Sorrento and the other employees regarding overtime payments prior to the time that Merrill began supervising plaintiff is irrelevant. Regardless, Sorrento herself testified that she had not seen anything while working under Merrill that would indicate that she had discriminated against older employees in any way. See Sorrento Dep., at 13-15. In any event, plaintiff has not satisfied her FRCvP 56 burden in opposition to defendant's motion inasmuch as her evidence of age discrimination amounts to nothing more than conclusory allegations. See Kerzer, at 400. Thus, despite drawing all factual inferences in plaintiff's favor, summary judgment must be granted to defendant because plaintiff has failed to establish a prima facie case of age discrimination.
The Court notes that plaintiff has neither alleged nor shown that she was constructively discharged. See, e.g., O'Dell v. Trans World Entertainment Corp., 153 F. Supp.2d 378, 393 (S.D.N.Y. 2001) ("[M]ere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge.") (citing Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993)).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.