99 CV 4072 (JG)
March 20, 2003
ADRIENNE R. BARANOFF, Decker Decker, Staten Island, NY, for Plaintiff.
MICHAEL A. KALISH, DEBORAH S. MARKOWITZ, Epstein, Becker Green, P.C., New York, NY, for Defendant.
MEMORANDUM AND ORDER
Plaintiff Linda Petrosino brings this employment discrimination action against defendant Bell Atlantic, alleging that it subjected her to a hostile work environment, failed to promote her, and constructively discharged her because of her sex, in violation of (1) Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. ("Title VII"); (2) the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYHRL"); and (3) New York City Administrative Code ("NYCAC") § 8-107. Petrosino also brings a state law claim for intentional infliction of emotional distress. The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the defendant's motion is granted.
The following facts are drawn from the parties' Rule 56.1 Statements and the exhibits thereto. To the extent that the parties' versions of the facts differ, the plaintiff's version is included here, provided that it was properly supported with citations to admissible evidence, as required by Local Rule 56.1.
Petrosino was hired by Bell Atlantic (which is now known as Verizon) in May of 1990. She worked in the installation and repair ("IR") department of a Bell Atlantic garage in Staten Island, New York, until 1999. As a field technician, she was responsible for installing and repairing telephone cable for Bell Atlantic's customers. Much of the field work involved climbing telephone poles, stringing cables, and working in tunnels, manholes, and buildings. Like all IR technicians, Petrosino was assigned to a "gang;" the gang met every morning with its level-one supervisors for approximately fifteen minutes, and then the technicians went into the field to perform their assignments. For most of her time at the company, Petrosino was the only female IR technician in her gang.
The level of the supervisor apparently corresponds to the supervisor's place in the company's hierarchy. The level-one supervisors directly supervise the technicians in the gang.
In plaintiff's response to defendant's Rule 56.1 Statement, she admits this fact as true "but states that she had contact with her supervisors and co-workers throughout the day on different jobs." I do not regard this additional statement as creating a factual dispute.
In July of 1998, Petrosino expressed interest in being an "acting" manager to Joseph D'Angelo, a supervisor. Being an acting manager allowed technicians to take on some of the responsibilities of a manager on a temporary basis. Shortly after her conversation with D'Angelo, Petrosino received a couple of one-day acting management opportunities. In October of 1998, she acted as an administrative foreman for a week. Around this time, Petrosino also expressed her interest in an acting manager position to Mike Russo, another supervisor. Following that conversation, Petrosino acted for Will DeLeon, a field foreman, for one week.
In an effort to find more acting manager opportunities, Petrosino volunteered in January of 1999 to transfer to a new "cable maintenance" gang ("CXM") that Bell Atlantic was starting in Staten Island. However, in February of 1999, before the transfer could take effect, Petrosino left Bell Atlantic.
Petrosino filed a complaint of sex discrimination against the company with the Equal Employment Opportunity Commission ("EEOC") on April 13, 1999 and she filed this action on July 21 of that same year.
B. Petrosino's Allegations
1. Unwanted Sexual Contact
In December of 1990, at a Christmas party, Charles Degenhardt, a co-worker, approached Petrosino from behind and began groping and kissing her. She pushed him away, yelled for help, and was aided by other company employees.
While Petrosino also claims in her opposition brief that she was exposed to pornographic material, there is no evidence of this. Nowhere in her deposition testimony does she claim to have been exposed to such material. The only support offered for this assertion is a co-worker's testimony that he had seen pornographic magazines in unspecified co-workers' trucks. (Battista Dep. at 54.)
Petrosino alleges that over the course of her employment she was frequently subjected to graffiti of a sexual nature that was scrawled inside the terminal boxes located at the top of telephone poles. Many of the drawings depicted company employees engaged in various sex acts. Two of the drawings Petrosino saw specifically referred to her. Sometime in 1993 or 1994, Petrosino opened a terminal box to find a drawing suggesting that she was "blowing the boss." In 1995 or 1996, she discovered another drawing stating: "Lisa is on light duty. Fast food joints are going out of business in the area." In 1996, Petrosino was informed of another drawing that depicted her. Other drawings that Petrosino saw included representations of disembodied female and male genitalia and other company employees, most of them male, in various sex acts with each other and animals.
3. Crude and Offensive Language and Behavior
Petrosino alleges that the technicians in the garage where she worked used foul language and behaved crudely when they gathered for their daily assignments. Specifically, Petrosino claims that co-workers often bantered in vulgar and explicit terms about fictitious sexual exploits with each others' wives. On one occasion, sometime after 1995, Bob Murphy, a technician who was particularly prone to crude language, allegedly told Petrosino, who was working as the supply clerk at the time, that he needed "enough silicone to fill the crack of [his] ass." (Pl. Dep. I at 254-255.) Another time, when Petrosino was acting as manager in 1998, one of the technicians made a comment about the size of her "ass." In addition, Petrosino claims that she was subjected to co-workers' constant flatulence.
There were three days of Petrosino deposition testimony: March 15, 2000 ("Pl. Dep. I"), March 30, 2000 ("Pl. Dep. II"), and July 20, 2001 ("Pl. Dep. III").
4. Treatment By Robert Sharib
Petrosino's level-one supervisor from approximately 1990 to 1992 was Robert Sharib. Petrosino complains of Sharib's treatment of her during this period. She alleges that he once got into a company truck that she had left unlocked at a job site, started it, and moved it two blocks away. When Petrosino returned to find the truck missing, she believed it had been stolen, and she was upset. There was testimony by other employees that Sharib had done the same to other technicians in a putative attempt to impress upon them the need to protect company property.
Petrosino alleges that Sharib embarrassed her on several occasions. For example, she claims that he once took a doctor's note, which authorized her to return to work after an injury, and had it enlarged and displayed. On various occasions, he allegedly asked her if she was "on the rag" in front of a room full of men. Petrosino also claims that Sharib called her a "damn woman" and spied on her at work in the field through binoculars.
Petrosino claims that Sharib gave her a geographically inconvenient "light duty" assignment when she was injured. She asserts that when her male co-workers were assigned to work light duty, they were sent to Staten Island, as opposed to Brooklyn, where Petrosino was placed.
Finally, Petrosino alleges that at a company-sponsored seminar in 1992, after she voiced criticism of Sharib's behavior to him, he responded, "Just keep your mouth shut and do what I tell you." (Pl. Dep. I at 206.)
5. Treatment by Frank Mangiero
Frank Mangiero was Petrosino's level-one supervisor in 1996 and 1997. During Petrosino's contact with Mangiero, he frequently used foul language. Specifically, Petrosino claims that he used the words "scumbag" and "cocksucker" often in her presence, though not referring to her. While Petrosino and Mangiero were having a discussion in his office, Mangiero made an inappropriate reference to her breasts. At times, he called her "a damn woman," and told her, "Well, if you can't handle it, maybe women can't handle it," apparently referring to Petrosino's ability to do her job. (Pl. Dep. II at 502.) On one occasion, Petrosino discreetly informed Mangiero that she wasn't feeling well due to menstrual cramps. In response, Mangiero loudly announced her condition in a room full of men and explained that she needed to get a doctor's note.
Petrosino alleges that Mangiero would smack the side of her van, allegedly in an attempt to make her scream.
Petrosino claims that Mangiero once made her do the same assignment three times in an attempt to harass her. On one occasion, he allegedly refused to supply her with a "bucket truck" and an assistant, which she needed to do her assignment. He then allegedly took the assignment away from Petrosino and gave it to a male co-worker who was permitted to use the requested items to complete the job.
6. Treatment by Tom Archdeacon
Tom Archdeacon was Petrosino's third-level supervisor from 1992 through 1999. Petrosino alleges that at some point between 1992 and 1994, Archdeacon said to her: "You don't belong here. You're too thin-skinned. Women are too thin-skinned." (Pl. Dep. I at 279.)
In September of 1992, when Petrosino returned to work after an injury, Archdeacon asked Petrosino why she was not on full duty and suggested in a hostile manner that she must not be taking her medicine.
In 1997, Petrosino was on light duty due to a sprained ankle and was working with a co-worker in an office when Archdeacon asked the co-worker a question to which Petrosino responded. Archdeacon allegedly retorted, "Who is this, your attorney?," and reprimanded Pretrosino for not wearing proper footwear and threatened termination if she didn't remedy the infraction.
7. Failure to Promote
Petrosino alleges that in 1996 Degenhardt asked her if she was interested in acting as manager. (Pl. Compl. at 16.) Petrosino indicated that she was. (Id.) She claims that although Degenhardt never specified when she would receive training, on the following two days he informed her that she had missed her training session and that it had been scheduled for the early morning on those days. (Pl. Dep. I 275-76.)
In 1998, Petrosino allegedly told D'Angelo about her desire to act as manager. According to her deposition testimony, D'Angelo told her, "Forget it. Tom [Archdeacon] will never let you act." (Pl. Dep. I at 277.) Petrosino also claims that DeLeon and Mike Russo told her that she could not become a manager "as long as Tom [Archdeacon] is around." (Pl. Dep. II at 606.) Mangiero is also alleged to have told plaintiff that she would never become a manager. See id.
In her deposition, Petrosino alleges that the company gave the following people acting opportunities before her: (1) Richard Mancino; (2) Sam Cacozza; (3) Richard D'Arpe; (4) Peter DeSocio; (5) Paul Faye; and (6)Lou Luggero. (Pl Dep. I at 147-50; 165-66; 178-82.)
In her memorandum in opposition to the motion to dismiss, Petrosino names various other individuals whom she alleges the company unfairly permitted to act before her. However, they are not mentioned in her deposition or in any other admissible form.
Petrosino alleges that she volunteered to transfer to CXM because she was told by Russo that the transfer "would be [her] only other opportunity to act since of [sic.] all of his slots were filled." (Pl. Dep. II at 578.)
Petrosino alleges that in January of 1999, before the CXM transfer took effect, DeLeon told her that he needed her to act for him while he was on vacation. After some time passed and DeLeon mentioned nothing further about this acting opportunity, Petrosino asked him about it. DeLeon responded that since Petrosino was transferring to CXM, he had to train someone else to act for him. (Pl. Dep. I at 366-68.) Shortly thereafter, Petrosino observed DeLeon training Michael Martine to act for him and she decided to leave the company. (Pl. Dep. at 366.)
C. Petrosino's Complaints to Company Officials
In 1992, Petrosino called a fifth-level manager and complained about her treatment by Sharib. She requested that Sharib "just lay off me a little bit, stand back from me a little bit." (Pl. Dep. I at 211.) The manager offered to transfer her to Brooklyn but Petrosino declined. He then said that Petrosino shouldn't have any more problems with Sharib. Shortly thereafter, Sharib went into early retirement. Prior to Sharib's retirement, however, he allegedly told Petrosino that she had made a mistake going to a fifth-level manager with a complaint and that she should never do it again.
In 1998, Petrosino complained to management that, while she was acting as a manager, a technician she was supervising made a derogatory remark about her "ass." As a result, management and a union representative told the technician that his conduct was unacceptable.
In 1997, Petrosino called the ethics hotline to complain that Mangiero treated her harshly. She spoke with an independent consultant who prepared a memorandum regarding the call. An investigator attempted to speak with Petrosino regarding her complaint but he never got through to her.
A. The Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment "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). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.
In reviewing the evidence on a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
B. The Title VII Claims
Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice 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).
1. The Limitations Period
In order for a plaintiff to bring a Title VII claim, an administrative charge of discrimination must be filed within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e); Van Zant v. KLM Royal Dutch Airlines, 870 F. Supp. 572, 574 (S.D.N.Y. 1994), aff'd, 80 F.3d 708 (2d Cir. 1996). "When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred." Butts v. New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). "In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days." Id.
The Supreme Court recently clarified the application of Title VII's filing requirements to a hostile work environment claim predicated upon wrongful conduct that occurred over a period of time, as opposed to one extremely severe incident. The Court stated that under those circumstances:
A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2074 (2002). Therefore, a hostile work environment claim based on a series of acts is not time barred because some of the acts which comprise the unlawful practice fall outside the three-hundred day period; only one of the acts must fall within the statutory period for the claim to be actionable. See id. at 2075. By contrast, "discrete acts such as termination [and] failure to promote" must fall within the statutory period or are they are time barred. Id. at 2073.
Petrosino filed her charge of discrimination on April 13, 1999. Therefore, only those acts committed on or after June 17, 1998 fall within the statutory period.
2. The Hostile Work Environment Claim
a. The Legal Standard
In order for sexual harassment to be actionable under Title VII, the conduct must be "`so severe or pervasive' that it `alter[s] the conditions of the victim's employment and create[s] an abusive working environment.'" Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Mentor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)). A plaintiff must demonstrate "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment."Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). "[The] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so."Faragher, 524 U.S. at 787.
In order to prevent Title VII from becoming a "general civility code," the Supreme Court has made clear that only "extreme" conduct creates an actionable hostile work environment. Id. at 780. Title VII "does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination . . . because of . . . sex." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (emphasis in original) (citations omitted). "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. at 788 (citations omitted). In order to be deemed pervasive, discriminatory conduct must be "more than episodic;" it "must be sufficiently continuous and concerted."Holtz v. Rockefeller Co., 258 F.3d 62, 75 (2d Cir. 2001) (citations omitted). Ultimately, the existence of an abusive environment in violation of Title VII depends on "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Morgan, 122 S.Ct. at 2074 (citations omitted).
In order to hold an employer liable for sexual harassment committed by a plaintiff's co-worker, the plaintiff must demonstrate that the employer either provided no reasonable avenue of complaint or knew of the harassment and did nothing about it. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).
b. Petrosino's Claim
Viewing the totality of the evidence, I find that there is insufficient evidence for a reasonable jury to find that the abuse Petrosino suffered was so severe or pervasive as to constitute a hostile work environment in violation of Title VII. In so finding, I am mindful that summary judgment should be granted "sparing[ly]" in discrimination cases, where "the conduct at issue often requires an assessment of individuals' motivations and state of mind." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (citation omitted). However, in this case, while the alleged conduct is undeniably boorish and offensive, there is no triable issue of fact as to whether it rises to a level of actionable sexual harassment.
First, much of the conduct about which Petrosino complains, such as the foul language used in the garage generally and the graffiti, is not discrimination based on Petrosino's sex. There is no evidence that the crude language was motivated by hostility toward Petrosino because of her sex. Similarly, with respect to the graffiti, Petrosino has put forth no evidence suggesting that she was depicted because of her sex. Therefore, the fact that men were also depicted gives rise to the inference that the individuals represented were not selected because of their sex. See Brown, 257 F.3d at 254 ("[I]n the absence of evidence suggesting that plaintiff's sex was relevant, the fact that both male and female employees were treated similarly, if badly, does give rise to the inference that their mistreatment shared a common cause that was unrelated to their sex."). The same reasoning applies to Petrosino's allegations regarding Sharib's moving her unlocked and unattended truck. There was undisputed testimony that Sharib also played this prank on male employees to teach them a lesson about safeguarding company property. There is no evidence that Sharib subjected Petrosino to the same treatment because of her sex.
This does not mean, as defendant's counsel incorrectly and inappropriately suggested during plaintiff's deposition see Pl. Dep. at 209, 278, that in order to succeed on a claim of sexual harassment, Petrosino was required to allege that she was subjected to harassing conduct motivated by sexual desire. See Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) (citing Oncale, 523 U.S. at 80); Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) (rejecting district court's finding where it "failed to recognize that a woman's work environment can be hostile even if she is not subjected to sexual advances or propositions"); Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) ("It makes no difference that the assaults and epithets sounded more like expressions of sex-based animus rather than misdirected sexual desire. . . . Either is actionable under Title VII as long as there is evidence suggesting that the objectionable workplace behavior is based on the sex of the target").
Second, viewed as a whole, the allegations of sexual harassment in this case are not sufficiently pervasive to be actionable under Title VII. See Kotcher v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir. 1992) ("The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief."); Hayut v. State Univ. of New York, 217 F. Supp.2d 280, 287 (N.D.N.Y. 2002) ("[S]poradic use of abusive language, gender related jokes, or occasional episodes of harassment will not constitute actionable hostile educational environment."). The alleged incidents occurred sporadically and with limited duration over a nine-year period, and thus they lack the continuity that can establish pervasiveness. See, e.g., Holtz, 258 F.3d at 75 (defendant "placed his hand on [the plaintiff's] hand on a daily basis," "constantly," "whenever he had the opportunity," "every time she would try to hand him a paper . . . This conduct was ongoing over months and months."); Dey v. Colt Contr. Dev. Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (denying defendant's motion for summary judgment where "[plaintiff] maintain[ed] that she was subjected to almost daily comments, gestures and innuendo of a sexual nature whenever [the supervisor] was in the office").
Furthermore, the conduct alleged by Petrosino does not rise to the level of offensiveness or abuse that courts have found sufficient to make out a hostile work environment claim. See, e.g., Gregory v. Daly, 243 F.3d 687, 692-93 (2d Cir. 2001) (holding that allegations that male supervisor made demeaning comments about women, made sexually demeaning statements, initiated unwelcome physical conduct of a sexual nature, intimidated plaintiff by standing "uncomfortably close," and made references to women as easy victims of sexual assault stated a claim for hostile work environment sexual harassment under Title VII); Torres v. Pisano, 116 F.3d 625, 628-33 (2d Cir. 1997) (finding the existence of a hostile work environment where plaintiff's supervisor "repeatedly referred to her as a `dumb cunt,' suggested that she was in the habit of performing oral sex for money, ridiculed her pregnancy, commented on her anatomy and his desire to have sex with her, and allowed friends of his who visited him at the office to make crude sexual remarks about her"). While the instance of unwanted sexual contact that occurred in 1990 is disturbing, it is insufficiently extreme, in and of itself, to constitute an actionable hostile work environment. See, e.g., Saxton v. American Tel. Tel. Co., 10 F.3d 526, 534-35 (7th Cir. 1993) (supervisor's inappropriate conduct was not so severe or pervasive as to create a hostile work environment where he touched and rubbed plaintiff's legs, pulled plaintiff forward attempting to kiss her, and lurched at her as if to grab her). Also, the facts fail to establish that Petrosino perceived the incident to be so offensive that it rendered the working environment hostile. She did not complain of this incident to the company, though she made other complaints, and she worked with Degenhardt in later years without further incident. See Faragher, 524 U.S. at 787 ("sexually objectionable environment must be both objectively and subjectively offensive").
In any event, even if this allegation was sufficiently severe to constitute a hostile work environment, it is time-barred. It was an isolated incident. Therefore, it does not fit within the scope of the unlawful employment practices comprised of a series of incidents of the variety discussed in Morgan, 122 S.Ct. at 2074. Rather, it is one extreme and discrete event. Therefore, Petrosino would have had to file a charge with the EEOC within 300 days of the incident. See Morgan, 122 S.Ct. at 2072. This incident occurred in December of 1990 and plaintiff did not file a charge until April of 1999. Accordingly, to the extent that this isolated incident was sufficiently egregious to constitute a hostile work environment, it is time-barred.
3. The Failure to Promote Claim
a. The Legal Standard
With the goal of "progressively . . . sharpen[ing] the inquiry into the elusive factual question of intentional discrimination," Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 8 (1981), the Supreme Court established the analytical framework for Title VII pretext claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and inBurdine. Under this framework, the burden to persuade the trier of fact "that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," while the burden of production shifts as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.Burdine, 450 U.S. at 252-253 (citation omitted) (quoting McDonnell Douglas, 411 U.S. at 802). In order to satisfy the first part of theMcDonnell Douglas test, a plaintiff must demonstrate that (1) she belongs to a protected class; (2) she applied and was qualified for the job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications. See Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998).
Once established, a prima facie case requires judgment for the plaintiff when the employer cannot articulate a nondiscriminatory basis for termination, since "we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Burdine, 450 U.S. at 254 (citation omitted). The plaintiff's burden of establishing a prima facie case of discrimination is de minimis. See Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998).
Thus, the court must enter summary judgment for the defendant when the plaintiff (1) fails to put forth a prima facie case, or (2) fails to present evidence contradicting a well-presented legitimate reason, offered by the defendant, for the adverse employment action.
b. Petrosino's Claim
I conclude that Petrosino has failed to establish a prima facie case of sex discrimination against the company for its alleged failure to promote her.
Although Petrosino unquestionably belongs to a protected class, she has not specifically identified a position for which she applied and was rejected. The Second Circuit has stated that it reads "McDonnell Douglas and Burdine generally to require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion." Brown, 163 F.3d at 710 (recognizing that certain factual allegations regarding promotion procedures might exempt a plaintiff from the requirement).
Here, the evidence shows only that Petrosino expressed a general interest in acting supervisor opportunities:
Q: You asked Mike Russo, you told him you wanted a permanent management position as soon as possible, correct?
A: No, I wanted to act. I didn't say "permanent." I wanted an acting position. I wanted to act. That was my request.
* * *
A: I was shooting low. I wanted to act. I wasn't looking — I didn't ask for a management position. I asked to act.
(Pl. Dep. I at 317, 323.)
Q: What are some — tell me the names of some of the positions that you believe that you should have gotten as a first line manager that you did not get?
A: That's a very unclear question.
Q: You are contending as part of this lawsuit that Bell Atlantic failed to promote you, correct?
Q: Give me the instances of the job openings that you should have gotten but did not get because of discrimination.
A: The instances of acting, anyone who is acting, even — it's more not that I got it but I wasn't even offered it. I wasn't even offered the opportunity to act as manager.
A: Well, as long as I have been asking, until I finally said something really loud.
Q: And then you got an acting management position?
A: And then I got acting management.
(Pl. Dep. I at 147-48.)
Furthermore, the evidence demonstrates that an acting position is not a promotion. Such technicians essentially fill in for managers who are on vacation or are otherwise absent from work. (Braxton Aff. at 4.) Each manager has the discretion to choose his or her "actor" based on the manager's assessment of a technician's work performance, leadership qualities, ability to handle responsibility, and a clear interest in acting or becoming a manger in the future. (Id.) The fact that a technician is allowed to act for a manager in his or her absence does not necessarily mean that the technician will continue to act for that manager indefinitely or ensure a promotion to a management position. (Id.) Also, there is no evidence that an acting position results in a change in pay or benefits. While it may be true that acting technicians perform supervisory duties, this is insufficient to show that the acting positions qualify as promotions. See McCulley v. Southern Connecticut Newspapers, 98 F. Supp.2d 216, 222 (D.Conn. 2000) (performing supervisory duties on a temporary basis while manager was on leave did not establish position as a promotion and thus plaintiff failed to establish a prima facie case for failure to promote under Title VII).
Even if acting positions could be considered promotions for the purposes of Title VII, Petrosino testified that she was given such opportunities. She identifies only one specific acting opportunity that she was denied, and (assuming arguendo that this establishes a prima facie case), Bell Atlantic has explained that she was refused this opportunity because her CXM transfer was pending and it would have been unfair to the technicians remaining in the IR department to allow Petrosino to continue in an acting position. In an effort to rebut this legitimate business reason offered by the company, Petrosino argues that (1) the transfer was not definite; (2) it might not take effect for several months; and (3) the technician who got the acting opportunity, Martine, also applied for the CXM transfer. However, the undisputed evidence shows that Petrosino had been accepted for the CXM transfer. (DeLeon Dep. at 39.) The possibility that the transfer might have taken several months (or that it might have fallen through altogether) does not contradict the company's explanation. Also, the assertion that Martine had also volunteered and been accepted for the CXM transfer at the same time as Petrosino is contradicted by the evidence. DeLeon's deposition testimony, which Petrosino cites in support of this assertion, demonstrates that Martine was not accepted for the CXM transfer at the time that Petrosino was, and he had not been accepted at the time DeLeon offered him the acting position in IR. (DeLeon Dep. at 39-40, 53-54.)
Petrosino argues that she could not apply for a permanent management position because acting technicians are handpicked to become permanent managers and that management positions are rarely posted. However, her allegations regarding the selection process are inaccurate with respect to the relevant time period. Since July of 1998, Bell Atlantic has had a formal procedure for the selection of permanent managers, whereby available positions are posted on the company's web site and interested technicians submit their resumes to the human resources department. (Braxton Aff. at 3; Archdeacon Dep. at 107-108.) To the extent that Petrosino claims that this process was not followed in practice, she has failed to adduce any evidence to support her claim.
4. The Constructive Discharge Claim
Petrosino claims that she was constructively discharged as a result of the circumstances reviewed above in connection with her hostile work environment claim.
a. The Legal Standard
"A constructive discharge occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation."Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (internal quotation marks omitted); see also Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 73 (2d Cir. 2000); Kader v. Paper Software, 111 F.3d 337, 339 (2d Cir. 1997); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993). "While the meaning of 'deliberate' in this context is unsettled, our case law indicates that something beyond mere negligence or ineffectiveness is required." Whidbee, 223 F.3d at 74.
b. Petrosino's Claim
Petrosino cannot establish a constructive discharge claim because she does not allege that Bell Atlantic intended to make her working conditions intolerable. Nor does the evidence support such an inference. Unlike cases where constructive termination has been found, there is no evidence here that the company expressed either explicitly or implicitly that it intended Petrosino to resign. See, e.g., Stetson, 995 F.2d at 361 (finding no constructive discharge, as employer "neither expressly or implicitly suggested that [plaintiff's] employment would be terminated"); Kirsch v. Fleet St. Ltd., 148 F.3d 149, 160 (2d Cir. 1989) (jury finding of constructive discharge upheld on evidence that, inter alia, employer nodded when plaintiff suggested that the company was trying to force her to leave); Lopez, 831 F.2d at 1188 (finding evidence of constructive discharge because supervisor told employer "he would be fired at the end of a probationary period no matter what he did to improve his allegedly deficient performance"); Pena v. Brattleboro Retreat, 702 F.2d 322, 325-26 (2d Cir. 1983) (finding no constructive discharge when employer asked plaintiff to stay); see also Equal Employment Opportunity Comm'n v. Die Fliedermaus, 77 F. Supp.2d 469, 471 (S.D.N.Y. 1999) ("Where a constructive discharge has been found, the employer has made clear and unequivocal remarks to the employee" threatening termination, demotion, or a change in job status).
C. Discrimination Claims under State and City Laws
Discrimination claims under NYHRL and NYCAC § 8-107 are analyzed under the same standards as Title VII claims. See Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999) (New York State law parallels Title VII claims); Landwehr v. Grey Adver. Inc., 622 N.Y.S.2d 17, 18 (1st Dep't 1995) (New York City law parallels Title VII claims). Therefore, for the same reasons that her Title VII claims are dismissed, so are plaintiff's discrimination claims under NYHRL and NYCAC.
D. The Claim of Intentional Infliction of Emotional Distress
Under New York law, the elements of a claim of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) causal connection between the conduct and injury; and (4) severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). New York sets a high threshold for conduct that is "extreme and outrageous" enough to constitute intentional infliction of emotional distress. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236 (1983) ("so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community") (quoting Restatement of Torts, Second § 46, cmt. d (1965)). The alleged conduct of the defendant in this case clearly does not rise to such a level, and thus fails to establish a claim of intentional infliction of emotional distress
For the reasons set forth above, the defendant's motion for summary judgment is granted in full. The Clerk of the Court is advised that this order closes the case.