SEIBEL, District Judge.
Before the Court is the Motion for Summary Judgment of Defendants Christmas Tree Shops and Bed Bath & Beyond
The following facts are set forth based on Defendants' Local Civil Rule 56.1 statement and the parties' supporting materials, and are undisputed except as noted below.
Plaintiff, an African-American woman,
As the Office Coordinator, Plaintiff was responsible for assisting management with new employee orientation and training, generating employee schedules, completing clerical tasks, and most importantly, monitoring and logging employee attendance issues. (Ds' 56.1 Statement ¶ 14.) Bartlett, Plaintiff's supervisor, reviewed and documented Plaintiff's own attendance. (Riolo Aff. Ex. D ("Bartlett Aff."), ¶¶ 9, 13.)
Christmas Tree Shops uses an "occurrence system" to record attendance, whereby employees receive a half occurrence for arriving to work late, leaving early, or failing to clock in or out at the proper time, and a full occurrence when absent for a scheduled shift. (Id. Ex. H, at 1.) If an employee receives three occurrences within a three-month rolling period, an employee will receive a written warning. (Id. at 2.) A second written warning is given if the employee receives three more occurrences within a year of the receipt of the first written warning. (Id.) If an employee receives an additional three occurrences in the same year, the employee is subject to termination. (Id.)
Plaintiff testified that she was late one day during her first week of work, but Bartlett excused the half occurrence. (Id. Ex. M ("Dabney Dep."), at 80-81.) Plaintiff was also tardy and received half occurrences on June 17, 2009, August 11, 2009, and September 4, 6, 7, and 23, 2009. (Id. Ex. I, at 1.) Bartlett issued Plaintiff her first written warning on September 23, 2009. (Ds' 56.1 Statement ¶ 18.)
After Plaintiff was employed for ninety days, she received a performance evaluation in accordance with company policy. (Baldes Aff. ¶ 28.) During her review, Baldes told Plaintiff that she needed to pay more attention to detail, prioritize her work assignments, and try to meet deadlines. (Id. ¶ 29.) On October 9, 2009, after several informal discussions regarding her performance, Plaintiff received a Corrective Action Notice for Unsatisfactory Job Performance (the "Corrective Action Notice"). (Bartlett Aff. ¶ 11; Riolo Aff. Ex. J.) The Corrective Action Notice addressed Plaintiff's sense of urgency with respect to her assignments, inaccuracy in her work, and difficulty meeting deadlines for assigned tasks. (Bartlett Aff. ¶ 11; Riolo Aff. Ex. J.) Plaintiff met with Scott Phleger, the store manager, and Bartlett to discuss the Corrective Action Notice and how the three of them could work together to improve her performance. (Bartlett Aff. ¶ 12.)
On October 11, 2009, Plaintiff began keeping a journal of work-related events to document allegedly unfair practices and treatment. (See Journal 2.) Plaintiff wrote multiple entries while at work, (see id. at 3-4), and saved the Journal on a Christmas Tree Shops computer, (Ds' 56.1 Statement ¶ 32). She also printed out emails and checked out HR-related books from the library to help her document examples of alleged discrimination. (Journal 2.)
Plaintiff did not punch in at the scheduled time on October 4 and 6, 2009, was tardy on October 20 and 29, 2009, and was absent on November 3, 2009. (Ds' 56.1 Statement ¶ 20; Riolo Aff. Ex. I, at 1-2.) As she had accumulated three additional
In December 2009, Bartlett discovered Plaintiff's Journal and informed Baldes. (Baldes Aff. ¶ 45.) On December 14, 2009, Baldes and Phleger met with Plaintiff to address her concerns.
Following the meeting, Plaintiff was absent on December 26, 2009 and late on January 1, 2010. (Ds' 56.1 Statement ¶ 23.) Bartlett and Baldes excused the half occurrence on January 1, 2010. (Id. at ¶ 24; Baldes Aff. ¶ 34). Plaintiff arrived late again on January 16, 2010, (Ds' 56.1 Statement ¶ 25), and after reviewing her attendance record and prior written warnings, Baldes concluded that Plaintiff had accumulated six more occurrences within one year of the first written warning and therefore termination was in accordance with the attendance policy, (Baldes Aff. ¶¶ 36-37).
Accordingly, Plaintiff was terminated on January 21, 2010. (Ds' 56.1 Statement ¶ 25.) Plaintiff called Baldes the following day because she believed she only had seven and a half occurrences at the time she was terminated,
Plaintiff now brings claims for gender and race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; a claim for age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; claims for disability discrimination under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973 ("Section 504"),
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he dispute about a material fact is `genuine' ... 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. The movant bears the initial burden of demonstrating "the absence of a genuine issue of material fact," and, if satisfied, the burden then shifts to the non-movant to present "evidence sufficient to satisfy every element of the claim." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted).
"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials...." Fed. R.Civ.P. 56(c)(1). Where an affidavit is used to support or oppose the motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008). In the event that "a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may," among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(2), (3).
Although summary judgment should be used "sparingly" where the material issue concerns an employer's intent, motivation, or state of mind, "[a] plaintiff must nevertheless offer concrete evidence from which a reasonable juror could return a verdict in his favor and is not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir.1988) (citation and internal
Pro se parties are entitled to "extra consideration" on summary judgment motions, Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y.1998) (internal quotation marks omitted), and submissions of pro se parties "must be construed liberally and interpreted to raise the strongest arguments that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir.2006) (emphasis and internal quotation marks omitted). Even pro se litigants, however, "must present the court with more than a scintilla of evidence demonstrating the validity of their cause." O'Connor v. Viacom Inc./Viacom Int'l Inc., No. 93-CV-2399, 1996 WL 194299, at *3 (S.D.N.Y. Apr. 23, 1996) (internal quotation marks omitted), aff'd, 104 F.3d 356 (2d Cir.1996).
Plaintiff brings claims under Title VII, the ADEA, and the NYSHRL, alleging that her termination was the result of discrimination based on race, gender, and age.
Plaintiffs claims are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and its progeny.
Under the ADEA, the final stage is different. The plaintiff must show not only that the defendant discriminated on the basis of age, but also that age discrimination was the "but-for" cause of the adverse action, and not merely one of the motivating factors. Gross, 557 U.S. at 180, 129 S.Ct. 2343; accord Gorzynski, 596 F.3d at 106.
Title VII makes it unlawful for an employer to "discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Similarly, it is a violation of the ADEA for an employer to "discharge any individual ... because of such individual's age." 29 U.S.C. § 623(a)(1).
As to her race discrimination claim, Plaintiff contends other employees indicated that Christmas Tree Shops treats black employees differently than white employees. (P's Opp. 6.) The alleged comments must be disregarded because Plaintiff has provided no admissible evidence that they are true. It is well settled that the evidence considered in connection with a summary judgment motion must be admissible at trial. See Fed. R.Civ.P. 56(c); Major League Baseball Props., 542 F.3d at 310; Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997). Plaintiff here offers only inadmissible hearsay: that some of her co-workers expressed to her the opinion that Christmas Tree Shops discriminated. See Fed.R.Evid. 801(c), 802. But there is no evidence of the truth of these statements that I can consider. No first-hand or even second-hand specifics of any such conduct are provided. It is well-settled, however, that "the mere fact that a plaintiff was replaced by someone outside the protected class will suffice" to establish the required inference of discrimination at the prima facie stage. Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001). Thus, Plaintiff's replacement by Williams, who is
Regarding her gender discrimination claim, Plaintiff alleges that while meeting with Phleger in his office, she began crying and tried to close the office door to discuss a matter privately, but he opened the door and indicated that he was uncomfortable being in the office alone with her and wanted somebody else to join them. (AC ¶ 4.) It is not clear how Phleger's actions could be perceived as gender discrimination, as even Plaintiff acknowledges that Phleger's behavior merely suggests a concern — unfounded or not — that being alone in his office with an agitated woman could give rise to a sexual harassment claim against him. (Id.) Moreover, Plaintiff undermines her claim by acknowledging that Phleger had previously met with several women in his office with the door closed, suggesting that his actions were in no way motivated by Plaintiff's gender. (Id.; Dabney Dep. 131-32.) Indeed, his conduct is completely consistent with discomfort over an employee who has become emotional. Finally, Christmas Tree Shops replaced Plaintiff with another woman, further weakening her claim of gender discrimination. See Jean-Gilles v. Cnty. of Rockland, 195 F.Supp.2d 528, 533 (S.D.N.Y.2002) (racial discrimination claim weakened when one minority was replaced with another minority).
Finally, as to her age discrimination claim, Plaintiff contends that her co-worker, Natasha Edwards, told Plaintiff that Edwards was required to do more tasks than an older employee even though they both had the same title and job responsibilities. (AC ¶ 5.) Plaintiff's claim fails for several reasons. Principally, the ADEA does not prohibit so-called "reverse age discrimination." Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) ("We see the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one."). Even if Plaintiff's claim were viable under the ADEA, the alleged comment is hearsay and, as discussed above, cannot be considered in resolving this motion. See Fed. R.Civ.P. 56(c); Major League Baseball Props., 542 F.3d at 310; Raskin, 125 F.3d at 66. Finally, even if it could be considered, it has nothing to do with Plaintiff.
Aside from her replacement by a white person, there is simply nothing connecting Plaintiff's membership in any protected class to her termination.
The question accordingly arises as to whether Plaintiff has produced evidence suggesting that this reason was false — in other words, that in terminating Plaintiff, Defendants did not genuinely believe that Plaintiff had violated the attendance policy, but rather acted for some other reason. The record reveals no such evidence.
Furthermore, the "same-actor inference" undermines Plaintiff's claim for discrimination. "When the same actor hires a person already within the protected class, and then later fires that same person, it is difficult to impute to [him] an
It is well settled that courts in discrimination cases should not serve as "super-personnel departments," reviewing employer disciplinary decisions. See Ghent v. Moore, 324 Fed.Appx. 55, 57 (2d Cir.2009) (summary order); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir.2001). "Only where an employer's business decision is so implausible as to call into question its genuineness should [a] [c]ourt conclude that a reasonable trier of fact could find that it is pretextual." Fleming v. MaxMara USA, Inc., 371 Fed.Appx. 115, 118 (2d Cir.2010) (summary order). The trier of fact could not so conclude on this record.
Accordingly, Defendants' Motion for Summary Judgment is granted with respect to Plaintiff's claims for discrimination under Title VII, the ADEA, and the NYSHRL.
Plaintiff brings claims under Title VII, the ADEA, and the NYSHRL, alleging that Christmas Tree Shops terminated her in retaliation for her documentation of employment discrimination and her potential to act as a whistle-blower concerning the store's discriminatory practices. (AC ¶ 1.) Title VII prohibits the firing of employees in retaliation for their opposition to discriminatory practices. See 42 U.S.C. § 2000e-3(a). Likewise, the ADEA prohibits retaliation. See Gomez-Perez v. Potter, 553 U.S. 474, 491, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008).
Plaintiff's claims for retaliation are also analyzed under the McDonnell Douglas burden-shifting framework discussed above. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177-78 (2d Cir.1996) (analyzing Title VII and NYSHRL retaliation claims under the same standard). To make out a prima facie case of retaliation under any of the statutes, see Terry, 336 F.3d at 141 (same standards apply to retaliation claims under Title VII and ADEA), a plaintiff must establish that: "(1) she participated in a protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between her protected activity and her adverse employment action." Dixon, 416 Fed.Appx. at 110. As with direct discrimination under the ADEA, the Supreme Court recently held that this final step of the retaliation analysis under Title VII requires the plaintiff to show "that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013).
Defendants assert that Plaintiff has not established that she was engaged in a protected activity because the AC and her opposition to the Motion merely
Defendants further contend that Plaintiff's Journal is also not a protected activity. (Ds' Mem. 12.) Although Title VII protects more than "the filing of formal charges of discrimination," Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990), it does not protect the kind of behavior in which Plaintiff was engaged. Plaintiff has not alleged that she sent the Journal to anyone inside or outside of Christmas Tree Shops, used it to critique the company in any way, or raised with anyone at the company the issues described in it.
In any event, even if Plaintiff could prove that she participated in a protected activity, she cannot demonstrate the requisite causal nexus. In general, in the absence of direct evidence, the causal connection "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). Bartlett discovered Plaintiff's Journal prior to the December 14, 2009 meeting, approximately five weeks prior to her termination on January 21, 2010. (Baldes Aff. ¶ 45; Ds' 56.1 Statement ¶ 25.) In a vacuum, this temporal proximity might support that a causal nexus existed between the Journal's discovery and Plaintiff's termination. See Treglia v. Town of Manlius, 313 F.3d 713, 720-21 (2d Cir.2002) (one month between engaging in protected activity and adverse employment action sufficient to show causal connection); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (causal connection evidenced where employee's termination came less than two months after she filed complaint with management). Before the Journal was discovered, however, Plaintiff had already received two written warnings and a Corrective Action Notice. (Ds' 56.1 Statement ¶¶ 15, 18, 21, 33.) Furthermore, even after Barlett and Baldes found the Journal, they excused Plaintiff's half occurrence knowing it would otherwise lead to her termination. (Baldes Aff. ¶ 34.) Although temporal proximity can sometimes demonstrate a causal nexus, where (as here) the termination was ultimately the product "of an extensive period of progressive discipline" that began when Plaintiff received her first written warning three months before the Journal's discovery, a claim for retaliation cannot be maintained. See Slattery, 248 F.3d at 95 ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.").
Moreover, even if Plaintiff had alleged a sufficient connection to establish a prima facie case, she has, as discussed above, offered no evidence to suggest that Defendants' stated reasons for Plaintiff's termination were a pretext for retaliation. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010) ("[W]ithout more, ... temporal proximity is insufficient to satisfy [Plaintiff's] burden to bring forward some evidence of pretext.").
Accordingly, Defendants' Motion for Summary Judgment is granted with respect to Plaintiff's claims for retaliation under Title VII, the ADEA, and the NYSHRL.
Plaintiff alleges that Christmas Tree Shops violated the ADA and Section 504 of the Rehabilitation Act of 1973 when Bartlett chose not to hire an applicant because he was disabled, even though he was allegedly qualified for the position. (AC ¶ 6; P's Opp. 6-7.)
Claims under the ADA and Section 504 may be analyzed in tandem. See Rodriguez v. City of N.Y., 197 F.3d 611, 618 (2d Cir.1999). To sufficiently allege a claim for disability discrimination, a plaintiff must show, among other things, that she has a disability as defined by the statutes. See Weixel v. Bd. of Educ., 287 F.3d 138, 146-47 (2d Cir.2002). A person with a disability is defined as someone who has "a physical or mental impairment that substantially limits one or more major life activities of the individual" or is "regarded as having such an impairment." 42 U.S.C. § 12102(1)(A), (C).
Plaintiff's claim for disability discrimination is based entirely on the incident between
"A plaintiff seeking relief against an employer for sexual harassment in the work place can proceed under two theories: quid pro quo harassment and a hostile work environment." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). Plaintiff alleges that in 2009, another female employee complained to her that Jose Plaza, a store manager, occasionally made offensive remarks about female customers and used "ridiculous" language in the store's back room. (AC ¶ 3.) Although Plaintiff does not specify under which theory she is proceeding, her claim is properly construed as one for a hostile work environment: she cannot be alleging quid pro quo harassment because she has not alleged that Plaza did anything to her.
Title VII prohibits an employer from discriminating "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). In order to make out a prima facie case for hostile work environment, a plaintiff must show that she is a member of a protected class and: "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Smith v. New Venture Gear, Inc., 320 Fed.Appx. 33, 37 (2d Cir.2009) (summary order) (internal quotation marks omitted).
To establish the first element, a plaintiff must come forward with "evidence not only that [she] subjectively perceived the environment to be hostile or abusive," but also that an objectively reasonable employee would perceive it to be hostile as well. Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir.2003) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); see Dawson v. Cnty. of Westchester, 351 F.Supp.2d 176, 186 (S.D.N.Y.2004). Furthermore, "[a] plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class." Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir.1999).
"[T]he Second Circuit has cautioned [that] the existence of a hostile work environment is a mixed question of law and fact. These kinds of questions are especially well-suited for jury determination and summary judgment may be granted only when reasonable minds could not differ on the issue." Hill v. Taconic Developmental Disabilities Servs. Office, 181 F.Supp.2d 303, 321 (S.D.N.Y.) (citation and internal quotation marks omitted), vacated on other grounds, 57 Fed.Appx. 9 (2d Cir. 2002). Nevertheless, summary judgment is appropriate where the "evidence does not rise to the level of severity or pervasiveness needed to support a hostile work environment claim." Smith v. New Venture Gear, Inc., 319 Fed.Appx. 52, 56 (2d Cir.2009).
Plaintiff's allegations of sexual harassment arise from her female co-worker's opinion that Plaza and other back-room employees used "ridiculous" language and that Plaza made inappropriate remarks to other back-room employees about the looks of female customers, in addition to one instance in which Plaintiff heard Plaza make a comment about a female employee. (AC ¶ 3; Dabney Dep. 94-95.)
First, the record contains no evidence of the events allegedly witnessed by Plaintiff's co-worker. Plaintiff has provided only hearsay — that the co-worker said these things happened. See Fed. R.Evid. 801(c), 802. There is thus no admissible evidence that these things in fact happened. See Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 190 n. 8 (2d Cir.2001). Accordingly, I may consider only the fact that the co-worker's statements were made, and what effect these statements might have had on Plaintiff, whether or not they were true. Evidence of harassment directed at other co-workers or occurring outside Plaintiff's presence can be relevant to a hostile work environment claim, id. at 190, but it must occur in the same work environment as Plaintiff and adversely affect the terms and conditions of her employment, see id. at 189. "Title VII's prohibition against hostile work environment discrimination affords no claim to a person who experiences it by hearsay." Id. at 182. Because the conduct reported by the coworker occurred in the "backroom or pre-processing area," (AC ¶ 3), not in the office area where Plaintiff worked, and because she learned of it only through hearsay, it cannot be said that that conduct adversely affected the terms and conditions of Plaintiff's employment.
Even putting that issue aside, Plaza's remarks about female customers may be inappropriate, but his "occasional use of sexist language does not create a hostile work environment." Nugent v. St. Luke's/Roosevelt Hosp. Ctr., No. 05-CV-5109, 2007 WL 1149979, at *17 (S.D.N.Y. Apr. 18, 2007) (collecting cases), aff'd, 303 Fed. Appx. 942 (2d Cir.2008); see Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir.1998) (no hostile work environment where supervisor made, on occasion, racist remarks, including one directed at plaintiff); Garone v. United Parcel Serv., Inc., 436 F.Supp.2d 448, 469 (E.D.N.Y.2006) (supervisor's use of phrases "office bitch," "brooklyn bimbettes," and "cat fight" not hostile work environment) (internal quotation marks omitted), aff'd, 254 Fed.Appx. 108 (2d Cir.2007); Diaz v. Weill Med. Coll. of Cornell Univ., No. 02-CV-7380, 2004 WL 285947, at *18 (S.D.N.Y. Feb. 13, 2004) ("Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.") (internal quotation marks omitted), aff'd, 138 Fed.Appx. 362 (2d Cir. 2005).
Even if Plaintiff had set forth facts sufficient to demonstrate a hostile work environment, it would be improper to
An employer's liability under Title VII for workplace harassment depends on the status of the harasser. See Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013). "If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions." Id. If, on the other hand, the harassing employee is the victim's supervisor, "different rules apply." Id. The Supreme Court recently made clear that "an employee is a `supervisor' for purposes of vicarious liability under Title VII if he... is empowered by the employer to take tangible employment actions against the victim." Id. A "tangible employment action" is defined as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 2442 (internal quotation marks omitted).
Plaintiff has not even alleged any facts suggesting that Plaza, as the manager on duty, "directed [Plaintiff's] day-to-day activities" in the HR office, let alone that he had the authority to significantly change Plaintiff's employment status. Therefore, under Title VII, Plaza should not be classified as a supervisor. Id. at 2454 (finding co-worker was not a supervisor even though plaintiff called her a supervisor and her job descriptions indicated she led and directed some employees, because there was no evidence she supervised plaintiff on a day-to-day basis). Accordingly, as Plaza is properly characterized as Plaintiff's co-worker, Christmas Tree Shops is only liable for his actions under Title VII "if it was negligent in controlling working conditions." Id. at 2439.
Plaintiff must therefore demonstrate that "the employer has either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995) (emphasis and internal quotation marks omitted). "[O]nce an employer has knowledge of the harassment, the law imposes upon the employer a duty to take reasonable steps to eliminate it." Torres, 116 F.3d at 636 (internal quotation marks omitted). Notice accrues when the employer "knew or should have known of the conduct." Murray, 57 F.3d at 249 (citing 29 C.F.R. § 1604.11(d)) (internal quotation marks omitted).
Christmas Tree Shops maintains an Equal Employment Opportunity and Diversity Policy and a Mutual Respect/Anti-Harassment Policy, which prohibit unlawful discrimination and/or harassment, provide employees with several avenues of complaint, and protect employees from retaliation if they report or complain about a violation of the policy. (Baldes Aff. ¶ 7; see Riolo Aff. Exs. E-G.) At the December 14, 2009 meeting Plaintiff had with Baldes and Bartlett, Baldes personally informed Plaintiff of the various avenues by which she could express any employment-related concerns. (Baldes Aff. ¶ 52.) Plaintiff does not contend that she was unaware of Christmas Tree Shops' policies, and she does not dispute that Defendants provided a reasonable avenue for complaint. See Arias v. Nasdaq/Amex Mkt. Grp., No. 00-CV-9827, 2003 WL 354978, at *7-8 (S.D.N.Y. Feb. 18, 2003) (finding reasonable avenues for complaint where employer had a written policy prohibiting illegal
Furthermore, Plaintiff cannot allege that Christmas Tree Shops had actual knowledge of the harassment because she conceded that she did not tell anyone about the incidents with Plaza. (Dabney Dep. 95 ("Q: After [your co-worker] told you about this behavior that [Plaza] was engaging in what, if anything, did you do? A: I did not do anything. Q: Did you tell anybody about what [your co-worker] had told you? A: No, I did not.").) Nor has Plaintiff alleged any facts suggesting that Christmas Tree Shops had constructive notice of the harassment. See Murray, 57 F.3d at 250-51 (plaintiff's allegations that other students knew of harassment did not support inference that any university official had constructive notice).
Accordingly, Defendants' Motion for Summary Judgment is granted with respect to Plaintiff's sexual harassment claim.
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED as to all claims. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 40), enter judgment for Defendants, and close the case.
