Kizer v. Abercrombie & Fitch Co. et al

Filing 75

MEMORANDUM AND ORDER granting 66 Motion for Summary Judgment; For the foregoing reasons, Defendants' motion for summary judgment (Docket Entry 66) is GRANTED in its entirety. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 11/20/2018. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------x
CHRISTINA KIZER,
Plaintiff,
-against-

MEMORANDUM & ORDER
12-CV-5387(JS)(AKT)

ABERCROMBIE & FITCH CO., ABERCROMBIE
& FITCH STORES, INC., ABERCROMBIE &
FITCH TRADING CO., doing business as
Abercrombie and Fitch, Abercrombie,
And Hollister and Ruehl,
Defendants.
---------------------------------------x
APPEARANCES
For Plaintiff:
Robert D. Salaman, Esq.
Zafer Adem Akin, Esq.
Emre Polat, Esq.
Akin Law Group PLLC
45 Broadway, Suite 1240
New York, New York 10006
For Defendants:

Barbara Vita Cusumano, Esq.
Bond Schoeneck & King PLLC
600 Third Ave., 22nd Floor
New York, New York 10016
Thomas N. McCormick, Esq.
Tyler Pensyl, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, Ohio 43216
Hilary L. McHugh, Esq.
Bond Schoeneck & King PLLC
1399 Franklin Avenue, Suite 200
Garden City, New York 11530

SEYBERT, District Judge:
Plaintiff
commenced

this

Christina

action

Kizer

against

(“Plaintiff”

Abercrombie

&

or

“Kizer”)

Fitch

Co.,

Abercrombie & Fitch Stores, Inc., and Abercrombie & Fitch Trading
Co.

(collectively,

“Defendants”

or

“Abercrombie”)

asserting

employment discrimination and wage and hour claims pursuant to 42
U.S.C. § 1981 (“Section 1981”), Title VII of the Civil Rights Act
of

1964

(“Title

VII”),

the

New

York

State

Human

Rights

Law

(“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), the
Fair Labor Standards Act (“FLSA”), and the New York Labor Law
(“NYLL”).1
judgment.

Before the Court is Defendants’ motion for summary
(Defs.’ Mot., Docket Entry 66.)

For the following

reasons, Defendants’ motion is GRANTED.
BACKGROUND2
Plaintiff,

an

African-American

Abercrombie from 2006 to 2014.

woman,

worked

at

While she worked there, Chris

Plaintiff voluntarily withdrew her Title VII discrimination and
retaliation claims (Counts 4, 5, and 6 in the Amended
Complaint). (See Pl.’s Opp. at 6 n.3.)
1

The facts are drawn from Defendants’ Rule 56.1 Statement
(Defs.’ Stmt., Docket Entry 64); Plaintiff’s Rule 56.1 Response
(Pl.’s Stmt., Docket Entry 65, at 1-29); Plaintiff’s Rule 56.1
Counterstatement (Pl.’s Counterstmt, Docket Entry 65, at 29-30);
Plaintiff’s Amended Complaint (Am. Compl., Docket Entry 7);
Plaintiff’s Deposition (Pl.’s Dep., Docket Entry 61-1); Chris
Parmentar’s Deposition (Parmentar Dep., Docket Entry 62-1); Adam
John’s Deposition (John Dep., Docket Entry 63-1); Scorcese
Declaration (Scorcese Decl., Docket Entry 64-8); Kulikowski
Declaration (Kulikowski Decl., Docket Entry 64-7); John
Declaration (John Decl., Docket Entry 64-6); Defendants’ Motion
for Summary Judgment (Defs.’ Mot., Docket Entry 66); Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment (Pl.’s
Opp., Docket Entry 67); and Defendants’ Reply (Defs.’ Reply,
Docket Entry 69). Relevant disputes have been noted.
2

2

Parmentar

(“Parmentar”)

was

a

“store

director”

in

charge

of

Abercrombie’s northeast stores. Adam John (“John”) was a “district
manager” for Long Island, and he reported to Blake Hoyle (“Hoyle”),
the “regional manager” for New York.
21.)

(Defs.’ Stmt. ¶¶ 22, 20,

Parmentar stated that as a store manager, he did not have a

role in hiring and terminating employees--it was the job of the
district

managers.

Parmentar

did

not

consult

with

district

managers about promotions. (Parmentar Dep. 57:7-23; 59:1-2.) John
described his role as “managing, development of my managers,
running the business, hiring management, supporting staffing.”
(John Dep. 13:18-20.)
When Plaintiff began working for Abercrombie in 2006,
she was hired as a “manager in training” in one of its stores in
Chicago, Illinois.
manager.”

In 2007, she was promoted to “assistant

In 2008, she quit.

(Defs.’ Stmt. ¶¶ 1-5.)

In 2009,

Plaintiff was rehired by Abercrombie and shortly thereafter again
promoted to assistant manager.

In 2010, an assistant manager

position opened in the Roosevelt Field Mall in Garden City, New
York (“Roosevelt Abercrombie”).

Upon her request, Plaintiff was

transferred to the Roosevelt Abercrombie.

She was also given a

pay increase, and she considered the move to be a promotion.
(Defs.’ Stmt. ¶¶ 6-10.)

In May 2012, Plaintiff sought a position

as a store manager at a Hollister Store in Massapequa.

She did

not get the job, which forms the basis of her complaint here.
3

(Defs.’ Stmt. ¶ 19.) Plaintiff quickly filed an internal complaint
with the company regarding the allegations.

One month later, in

June 2012, Plaintiff was promoted to “store manager” at a Hollister
store at the Broadway Mall in Hicksville, New York (“Broadway
Hollister”), where she worked until January 2014.

(Defs.’ Stmt.

¶¶ 75-76.)
I.

The Sunrise Hollister Store Manager Position
In 2012, while Plaintiff was working at the Roosevelt

Abercrombie,

there

was

an

open

store

manager

position

at

a

Hollister store in the Sunrise Mall in Massapequa, New York
(“Sunrise Hollister”).

John considered Plaintiff and another

assistant manager, Cavan Valance (“Valance”), for the job.

(John

Dep. 115:6-16.) He ultimately chose Valance, a white male, because
he was “someone that people looked up to,” had strong recruiting
results, and built good relationships with his fellow employees.
(John Dep. 118:11-119:6.)

John noted that he also considered

Plaintiff for the job because “she was someone that [he] genuinely
liked” who “had strong work ethics.”
decision with Parmentar.

John did not discuss his

(John Dep. 119:11-16; 120:18-20.)

Plaintiff was disappointed when she did not get the
Sunrise Hollister position.

She states that Anthony Scorcese

(“Scorcese”), a loss prevention agent, told her that he had heard
from Cris Kulikowski (“Kulikowski”), another employee, that during
a conference call discussing promotions, Parmentar called her
4

“ghetto” and said he did not want her promoted.

(Defs.’ Stmt.

¶ 19; Pl.’s Counterstmt. ¶¶ 1-2; Pl.’s Dep. 97:21-98:2.) According
to Plaintiff, Scorcese told her that Kulikowski told him that
Kulikowski, Parmentar, John, and Hoyle participated in the call.
(Defs.’ Stmt. ¶ 26.)
Scorcese, however, states he never told Plaintiff that
Parmentar called her “ghetto” and, further, that Kulikowski never
told him that Parmentar did so.

(Scorcese Decl. ¶¶ 7-8, 10.)

Kulikowski agrees that he did not tell Scorcese that Parmentar
called Plaintiff “ghetto” and denies the alleged phone call between
the four men took place.

(Kulikoswki Decl. ¶¶ 7, 11.)

John and

Parmentar also state that the phone call never occurred.
Decl. ¶ 10; Parmentar Dep. at 113:21-114:6.)

(John

John has never heard

Parmentar use the word “ghetto” to refer to an employee or say
anything about Plaintiff that could be considered racist.
Decl. ¶¶ 12, 15; John Dep. 125:11-13.)

(John

Defendants deny that race

had anything to do with Plaintiff not getting the Sunrise Hollister
position.
When Plaintiff was not promoted to the Sunrise Hollister
position, Plaintiff complained to Abercrombie’s Human Resources
Department.

In addition to speaking with Plaintiff, a Human

Resources representative interviewed Parmentar, Scorcese, John,
Hoyle, and Laura Mayo, another manager.

Parmentar denied calling

Kizer “ghetto,” and no one else had heard him call her that.
5

(Defs.’ Stmt. ¶¶ 68-71.) Abercrombie thus found Plaintiff’s claims
could not be substantiated.
In June 2012, one month after her internal complaint,
Plaintiff was promoted to the Broadway Hollister store manager
position.
from

(Defs.’ Stmt. ¶¶ 75-76.)

Abercrombie

“constructively

in

January

discharged”

Plaintiff ultimately resigned

2014.
because

She

claims

Abercrombie

she

was

“creat[ed]

intolerable working conditions” by not taking remedial action
after she made her complaint to Human Resources.3

(Pl.’s Opp. at

11.)
II.

Plaintiff’s Other Allegations4

Plaintiff stopped working for Abercrombie nineteen months after
her complaint to Human Resources and several months after she
was deposed for this case.
3

At her deposition, Plaintiff indicated she believed she had
been denied two other promotions during her time at Abercrombie
based on her race: in Chicago in 2008, and in New York in 2010.
She makes conclusory references to these incidents in her
Counterstatement and Opposition. However, she made no mention
of these allegations in her Amended Complaint, despite the fact
that its factual assertions cover the time period from 2005 to
2012. Further, she does not address her lack of pleading in her
Opposition, nor does she elaborate on the reasons she believes
Abercrombie discriminated against her. The Court thus does not
consider these allegations, because “[a] party cannot amend
their complaint simply by alleging new facts and theories in
their memoranda opposing summary judgment.” Heletsi v.
Lufthansa German Airlines, Inc., 99-CV-4793, 2001 WL 1646518, at
*1 n.1 (E.D.N.Y. Dec. 18, 2001); see also Southwick Clothing,
LLC v. GFT Corp., 99-CV-10452, 2004 WL 2914093, at *6 (S.D.N.Y.
Dec. 15, 2014) (“A complaint cannot be amended merely by raising
new facts and theories in plaintiffs’ opposition papers, and
hence such new allegations and claims should not be considered
in resolving the motion.”).
4

6

In her Amended Complaint, Plaintiff alleged that two
other African-American women were passed over for promotions due
to their race.

(Am. Compl. ¶¶ 56-61.)

But later, at her

deposition, she denied that Defendants discriminated against one
of the women based on race, conceding that what the Amended
Complaint said about the discrimination and failure to promote was
“not true.”

(Pl.’s Dep. at 125:15-126:13.)

She continued to

believe that the second employee, Jody Samuels, had been denied
promotions due to her race and her Jamaican accent.
126:10-128:22.)

(Pl.’s Dep.

Plaintiff also stated that Parmentar asked her to

take out the trash when he saw her and asked another male AfricanAmerican employee to scrub the floor on his hands and knees.
believes

that

employees.

Parmentar

treated

her

differently

than

She
other

(Pl.’s Dep. 130:15-136:24.)

III. Plaintiff’s Performance Evaluations
While
several

employed

performance

improvement.”

by

reviews

Abercrombie,
where

she

Plaintiff
was

scored

received
“needs

She had issues with leadership and management,

recruiting, communication, and general performance.

For instance,

her March 5, 2010 Quality Review noted “there have been many
instances where she has been significantly late coming to work”
and she has “difficulty managing her emotions/behaviors especially
when given constructive feedback.”

Her April 29, 2011 review

stated she was not “tactful when handling difficult situations.
7

She has even been disrespectful to upper management on a few
occasions.

There have even been multiple complaints about her

being disrespectful to other managers and part timers as well.”
On March 23, 2012, her review indicated that she “need[s] a lot of
work when it comes to quality in recruits” and “when dealing with
customers’ issues she can be too aggressive where it comes to being
unprofessional.” (Defs.’ Stmt. ¶¶ 38-40.) Plaintiff also received
several “unsatisfactory performance notes” and “poor performance
notes” for yelling at her managers, hanging up on a manager on the
phone, coming in late, and failing to attend management meetings.
A complaint record was created when another employee alleged that
Plaintiff threatened to grab her and push her through a wall.
(Defs.’ Stmt. ¶¶ 41-46.)
IV.

Plaintiff’s Overtime and Wage Claims
In 2015, numerous employees claimed that Abercrombie

violated the FLSA and the NYLL.

Abercrombie entered into a

settlement agreement (the “Settlement Agreement”) with certain
employees to resolve wage and hour and overtime claims.

See

Settlement Agreement, Robbins et al. v. Abercrombie & Fitch Co.,
15-CV-6187(FPG)(JWF)
Settlement

(W.D.N.Y.),

Agreement,

the

Docket

settlement

Entry
class

46.
included

Under

the

(1)

all

persons employed for one or more weeks as a “manager in training”
or “assistant manager” position in New York from March 2007 until
September 2014; (2) all persons employed in an assistant manager
8

position in Illinois from May 2012 to September 2014; and (3)
employees from several other states and time periods.
Agreement ¶ 3.)

(Settlement

The Settlement Agreement released Abercrombie

from
any and all claims . . . arising under (i)
federal law or (ii) the laws of the states of
. . . Illinois . . . [and] New York . . .
before September 30, 2014 . . . which have
been pled . . . or could have been pled . . .
in the . . . complaint . . . including but not
limited to claims under the [FLSA or New York
Labor Law].
(Defs.’ Stmt. ¶ 96.)
Plaintiff admits that she was a member of the class
because she worked as an assistant manager in New York during the
settlement period.

(Defs.’ Stmt. ¶¶ 86-87.)

She also admits that

she signed and cashed a $5,821.67 settlement check in November
2016.

(Defs.’ Stmt. ¶97.)

The check stated, above the signature

line,
By signing this check and accepting these
funds in compromise of back wages allegedly
due under state and federal law, I provide
written consent to release any claims I may
have
under
the
Fair
Labor
Standards
Act(“FLSA”) prior to September 30, 2014. I
agree there is no bona fide dispute over
whether overtime or other wages are owed to me
under the FLSA, and I accept this check as
full settlement for all overtime or other
wages that may be owed prior to September 30,
2014. I agree I give up any rights I may have
to bring suit under the claims released in the
Settlement Agreement, including claims under
the FLSA.

9

(Defs.’ Stmt. ¶ 98.)
PROCEDURAL HISTORY
On May 31, 2012, Plaintiff commenced this action by filing a
Complaint in Supreme Court, Kings County, New York.

Defendants

removed the case to this Court and filed an Answer.

(Notice of

Removal, Docket Entry 1; Answer, Docket Entry 4.)
an Amended Complaint on November 5, 2012.

Plaintiff filed

(See Am. Compl.)

On

December 2, 2015, Defendants moved to dismiss the action for
failure to prosecute (see Defs.’ Mot. to Dismiss, Docket Entry
33), which this Court denied on September 23, 2016 (see M&O
Adopting R&R, Docket Entry 46).
Summary

Judgment

on

January

Defendants filed this Motion for
29,

2018;

Plaintiff

filed

her

opposition on February 28, 2018; and Defendants filed their reply
on March 14, 2018.

(See Defs.’ Mot.; Pl.’s Opp.; and Defs.’

Reply.)
DISCUSSION
Summary

judgment

will

be

granted

where

the

movant

demonstrates 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).

A genuine factual issue exists where “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, 2510, 91 L. Ed 2d 202 (1986).

In

determining whether an award of summary judgment is appropriate,
10

the

Court

considers

the

pleadings,

deposition

testimony,

interrogatory responses, and admissions on file, together with
other firsthand information that includes but is not limited to
affidavits.

Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).

The movant bears the burden of establishing that there
are no genuine issues of material fact.

Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

Once

the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”

Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).

Conclusory allegations or denials will not defeat

summary judgment.

Id.

In reviewing the summary judgment record,

“‘the court is required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom
summary judgment is sought.’”

Sheet Metal Workers’ Nat’l Pension

Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2
(E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., 109
F.3d 130, 134 (2d Cir. 1997)).
“[S]ummary judgment may be appropriate even in the factintensive context of discrimination cases” (Westbrook v. City
Univ. of N.Y., 591 F. Supp. 2d 207, 222 (E.D.N.Y. 2008) (internal
quotation marks and citation omitted)), and “the non-moving party
may not rely on mere conclusory allegations nor speculation, but
11

instead must offer some hard evidence showing that its version of
the events is not wholly fanciful” (Woodman v. WWOR-TV, Inc., 411
F.3d 69, 75 (2d Cir. 2005)).

Moreover, “[a] party cannot rely on

inadmissible hearsay in opposing a motion for summary judgment.”
Chansamone v. IBEW Local 97, 523 F. App’x 820, 822 n.4 (2d Cir.
2013) (quoting Burlington Coat Factory Warehouse Corp. v. Esprit
De Corp., 769 F.2d 919, 924 (2d Cir. 1985)).
I.

Discrimination Claims (Counts 1, 3, 7, 9, 10, and 12)
Plaintiff brings her discrimination claims under Section

1981, the NYSHRL, and the NYCHRL.
A.

NYCHRL Claims
At the outset, all of Plaintiff’s NYCHRL claims are

DISMISSED because “[t]o state a claim under the NYCHRL, a plaintiff
must allege that the defendant discriminated against h[er] ‘within
the boundaries of New York City.’”

McFarlane v. Iron Mountain,

Inc., No. 17-CV-3311, 2018 WL 3773988 (S.D.N.Y. 2018) (quoting
Shah v. Wilco Sys., Inc., 806 N.Y.S.2d 553, 558 (1st Dep’t 2005)
(defendant

employers

were

entitled

to

summary

judgment

on

plaintiff’s NYCHRL claims where plaintiff did not work in New York
City, even though plaintiff lived in New York City)); see also
Robles v. Cox & Co., 841 F. Supp. 2d 615, 624 (E.D.N.Y. 2012) (a
plaintiff’s residence is “irrelevant to the impact analysis”)
(internal quotation marks and citation omitted).

12

B.

Section 1981 and NYSHRL Claims
The Court will analyze the Section 1981 and NYSHRL claims

together, as “‘[d]isparate treatment claims brought under Title
VII, Section 1981, and the NYSHRL are all analyzed under the same
standard.’”

Johnson v. Long Island Univ., 58 F. Supp. 3d 211, 220

(E.D.N.Y. 2014) (quoting Parra v. City of White Plains, 48 F. Supp.
3d 542, at *7 (S.D.N.Y. 2014); see also Vivenzio v. City of
Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).
Employment discrimination claims are analyzed under the
burden-shifting

framework

the

Supreme

Court

established

in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973).

See also Ruiz v. Cty. of Rockland, 609 F.3d

486, 491 (2d Cir. 2010); Holcomb v. Iona Coll., 521 F.3d 130, 138
(2d Cir. 2008).

That framework requires a plaintiff to first

establish a prima facie case of discrimination.

To establish a

prima facie case of discrimination, a plaintiff must show that:
“(1) [s]he is a member of a protected class; (2) [s]he was
qualified for the position [s]he held; (3) [s]he suffered an
adverse employment action;5 and (4) the adverse action took place
under

circumstances

discrimination.”

giving

rise

to

[an]

inference

of

Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.

The Court notes that an employer’s “refusal to promote” may
constitute an “adverse employment action.” Kiernan v.
Southhampton, 734 F. App’x 37, 41 (2d Cir. 2018).
5

13

2012) (fifth alteration in original) (quoting Ruiz, 609 F.3d at
491–92).

The burden then shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the adverse employment
action.
such

Holcomb, 521 F.3d at 138.

a

reason,

“the

burden

shifts

Once the defendant provides
back

to

the

plaintiff

to

demonstrate by competent evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a
pretext for discrimination.”

Leibowitz v. Cornell Univ., 584 F.3d

487, 499 (2d Cir. 2009) (internal quotation marks and citations
omitted).
Before turning to this framework, the Court notes that
Plaintiff’s primary allegation, upon which she stakes almost her
entire claim, is based upon inadmissible double hearsay:

that

Scorcese told Plaintiff that Kulikowski told him that Parmentar
called her ghetto during a conference call.

(supra at 4-5.)

Plaintiff has failed to identify any reason why this Court should
consider

this

third

hand

statement.

Further,

Scorcese

and

Kulikowski have both denied that Parmentar called her “ghetto” and
stated that the supposed phone call never even took place.
at 5.)

(supra

Courts do not consider inadmissible hearsay when resolving

a summary judgment motion.

See Chansamone, 523 F. App’x at 823

n.4 (“[w]e do not consider [the plaintiff employee’s] testimony
that co-workers told him that [the hiring supervisor] would not
hire him ‘as an Asian,’ because that testimony is inadmissible
14

hearsay”); Friedman v. Swiss Re Am. Holding Corp., 643 F. App’x
69, 71 (2d Cir. 2016) (where the only evidence of a supervisor’s
anti-Semitism was one remark he made to another employee, who then
relayed it to the plaintiff, it was inadmissible hearsay and the
District Court properly granted summary judgment to the defendant
employer on the plaintiff’s Title VII claim); Shepherd v. BCBG Max
Azria Grp., Inc., No. 11-CV-7634, 2012 WL 4832883, at *17 (S.D.N.Y.
Oct. 11, 2012) (where coworker told the plaintiff that their
supervisor

had

made

a

disparaging

remark

about

him,

it

was

inadmissible hearsay and could not be used to defeat defendant
employer’s motion for summary judgment); Kerman–Mastour v. Fin.
Indus. Regulatory Auth., Inc., 814 F.Supp.2d 355, 369 (S.D.N.Y.
Sep. 30, 2011) (“statements of a coworker relating allegedly
discriminatory remarks made by a supervisor do not fall within [a]
hearsay exception of [the Federal Rules of Evidence and a]s such,
the Court will not consider it on summary judgment”).

Thus, the

“ghetto” statement is inadmissible.
Even

assuming

Parmentar’s

alleged

statement

was

admissible, Plaintiff’s discrimination claims would still fail.6
First, if Parmentar did use the term “ghetto,” “stray remarks,
even if made by a decisionmaker, do not constitute sufficient

The Court notes that Abercrombie has an anti-discrimination
policy and trains all employees about diversity. (Defs.’ Stmt.
¶¶ 14-15.)
6

15

evidence to make out a case of employment discrimination.”

Danzer

v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998); see also
Johnson v. Schmid, --- F. App’x ----, 2018 WL 4261672, at *3 (2d
Cir. 2018); Tubo v. Orange Reg’l Med. Ctr., 690 F. App’x 736, 740
(2d Cir. 2017) (“an isolated stray [racially offensive] remark,
unconnected

in

insufficient

any
to

way

to

justify

discrimination]”).

[an

employee’s]

the

termination,

necessary

inference

is
[of

Plaintiff has not alleged that Parmentar ever

made any other racist statements, nor has she claimed that any
other peers or supervisors made similar remarks.7

In any event,

assuming Parmentar made the remark, he was not a “decisionmaker”
here, as had no role in promotions.
promote

Valance

and

he

did

not

John made the decision to

discuss

it

with

Parmentar.

Plaintiff has not demonstrated employment discrimination.
Second, Abercrombie has demonstrated a legitimate, nondiscriminatory reason for promoting Valance instead of Plaintiff.
Though John had positive things to say about Plaintiff, including
that he “genuinely liked her,” ultimately, he believed Valance was
“was the better candidate from a performance standpoint.”

(John

Plaintiff has provided no context or argument regarding her
allegations of discrimination against two other Abercrombie
employees. In any event, her assertion that Parmentar asked her
to take out the trash and asked another employee to clean the
floor are “remote and oblique[ ] in relation to [the alleged]
adverse action.” Westbrook, 591 F. Supp. 2d at 228 (internal
quotation marks and citation omitted).
7

16

Dep.

119:10-16;

123:14-16.)

Valance

was

the

more

effective

recruiter, and recruiting was an issue at the Sunrise Hollister.
Though John liked Plaintiff and considered her as one of two
candidates for the position, the record establishes that she had
documented performance issues over the years. According to reviews
and notes, she had difficulty interacting with other employees and
customers,

became

feedback,

and

emotional

had

and

trouble

hostile

with

when

confronted

recruitment.

with

Plaintiff’s

discrimination claims are DISMISSED.
II.

Retaliation Claims (Counts 2, 3, 8, 9, 11, and 12)
Plaintiff brings her retaliation claims under Section

1981, the NYSHRL, and the NYCHRL. As discussed earlier, Defendants
are entitled to summary judgment on Plaintiff’s NYCHRL claims
because the alleged retaliation did not occur in New York City.
(supra at 12.)
premised

on

Further, the retaliation claims are also primarily

the

one

double

called Plaintiff “ghetto.”
claims,

this

statement

is

hearsay

statement--that

Parmentar

As with Plaintiff’s discrimination
inadmissible

to

defeat

Defendants’

motion here.
Retaliation claims are also analyzed under the McDonnell
burden-shifting framework.

A “plaintiff must set forth a prima

facie retaliation claim by demonstrating: (1) she engaged in a

17

protected activity;8 (2) the employer was aware of this activity;
(3) the employee suffered a materially adverse employment action;
and (4) there was a causal connection between the alleged adverse
action and the protected activity.”

Bamba v. Fenton, 15-CV-1340,

2017 WL 3446806, at *8 (E.D.N.Y. Aug. 10, 2017) (internal quotation
marks and citation omitted).
Plaintiff’s retaliation claims fail because she quite
clearly suffered no adverse employment action after making her
complaint to Human Resources, or even after filing this lawsuit.
To the contrary, she received a promotion and continued working
for Abercrombie until she resigned in 2014.

In response to her

initial complaint, a Human Resources representative interviewed
all relevant parties.
any

way

for

filing

She was not terminated or disciplined in
the

complaint.

Plaintiff’s

conclusory

assertion, not supported in any way, that she was constructively
terminated, is not sufficient to demonstrate unlawful retaliation.
She offers no explanation of the “intolerable” conditions that
“forced” her to resign.

(Pl.’s Opp. at 11.)

Her retaliation

claims thus fail and are DISMISSED.

The Court recognizes that filing a complaint is a protected
activity for purposes of a retaliation claim. See Grant v.
Hazelett Strip–Casting Corp., 880 F.2d 1564, 1569 (2d Cir.
1989).
8

18

III. Intentional Infliction of Emotional Distress (IIED) Claim
(Count 16)
Plaintiff

also

claims

that

Abercrombie

engaged

in

“extreme and outrageous” conduct intending to cause her “severe
emotional distress.”

(Am. Compl. ¶¶ 174-75.)

To succeed on this

claim, Plaintiff must show that Defendants’ conduct was “beyond
all possible bounds of decency.”

Howell v. N.Y. Post Co., Inc.,

81 N.Y.2d 115, 122, 612 N.E.2d 699, 705, 596 N.Y.S.2d 350, 353
(1993).

“Where, as here, the plaintiff premises an intentional

infliction

of

emotional

distress

claim

on

harassment,

discrimination, or retaliation in the employment context, New York
courts are particularly reluctant to find that such conduct is
sufficiently

extreme

or

outrageous

to

satisfy

this

demanding

standard absent a deliberate and malicious campaign against the
plaintiff.”

Robles, 841 F. Supp. 2d at 631 (internal quotation

marks and citation omitted).

Further, “‘[t]he [P]laintiff is

required to establish that severe emotional distress was suffered,
which

must

be

supported

by

medical

recitation of speculative claims.’”

evidence,

not

the

mere

Greenaway v. Cty. of Nassau,

97 F. Supp. 3d 225, 240 (E.D.N.Y. 2015) (granting the defendants’
motion for summary judgment dismissing the plaintiff’s IIED claims
where the plaintiff said he had seen a mental health professional,
but

provided

only

conclusory

statements

19

and

no

testimony

or

documentation that his anxiety was severe) quoting Walentas v.
Johnes, 257 A.D. 352, 353, 683 N.Y.S.2d 56, 58 (1st Dep’t 1999).
At

the

outset,

Plaintiff’s

claim

“ghetto” statement is inadmissible hearsay.

fails

because

the

Further, Plaintiff

admits that she had not been treated for any alleged emotional
issues stemming from her complaint.

(Defs.’ Stmt. ¶ 115.)

She

does not identify any emotional issues she has had, other than her
conclusory

statement

that

she

“felt

extremely

humiliated,

degraded, victimized and embarrassed” by the alleged statement,
(Pl.’s Opp. at 13), and she did not make these claims until well
into this litigation.9

Plaintiff has not met the high burden

necessary to sustain an IIED claim, and it is therefore DISMISSED
IV.

FLSA Claims (Counts 13, 14, and 15)
In

addition

to

her

employment

discrimination

and

retaliation causes of action, Plaintiff has asserted wage and hour
claims under the FLSA and the NYLL.

She argues that she did not

release all her claims by participating in the Settlement Agreement
and cashing the check.

She claims that because she was employed

as an assistant manager in Illinois prior to May 2012, and the
settlement class included assistant managers employed in Illinois

In a prior order, this Court precluded Plaintiff from offering
an expert’s report in support of her IIED claims, adopting the
Report & Recommendation of Judge Tomlinson, which noted that
“Plaintiff did not provide any responsive information concerning
emotional distress damages during the [lengthy] discovery
period.” (See M&O Adopting R&R; R&R, Docket Entry 40.)
9

20

only from May 2012 to September 2014, she is entitled to pursue
wage claims for the period she worked in Illinois.
interpretation

of

the

Settlement

Agreement

is

Plaintiff’s

incorrect:

she

conflates the definition of the settlement class with the scope of
the settlement release.
The

Settlement

Agreement

encompassed

a

class

employees from several states and various time periods.

of
An

employee could thus be a member of the class for different reasons-for example, someone who worked as an assistant manager in
Illinois in 2013 would be included, and someone who worked in New
York in 2008 would also be included.

Plaintiff is a member of the

class (which she admits) by virtue of her time as an assistant
manager in New York.
settlement check.

As a member of the class, she received a

The check advised her that upon cashing it, she

would release any and all wage-related claims she could have
brought under the FLSA or the NYLL prior to September 2014.
admits

that

she

cashed

the

check.

Therefore,

she

She

released

Abercrombie from any and all wage-related claims, in any state,
including Illinois, that may have accrued prior to September 2014.
It is of no moment that she also worked in Illinois outside of the
period that would have made her a member of the class, because she
became a member of the class through her New York employment.
While she would not have become a class member had she only worked
in Illinois, she did become one through her New York work.
21

Additionally, it is clear that Judge Frank P. Geraci
conducted a thorough Cheeks review of the settlement agreement,
which had fair, clear terms.

“Requiring judicial . . . approval

of such settlements is consistent with what both the Supreme Court
and [the Second Circuit] have long recognized as the FLSA’s
underlying purpose: ‘to extend the frontiers of social progress by
insuring to all our able-bodied working men and women a fair day’s
pay for a fair day’s work.’”

Cheeks v. Freeport Pancake House,

Inc., 769 F.3d 199, 206 (2d Cir. 2015) quoting A.H. Phillips, Inc.
v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807, 808, 89 L. Ed. 1095
(1945).

The language on the check tracked the language of the

Settlement Agreement, releasing Abercrombie from certain wage and
hour claims.

As Plaintiff was a member of the class and released

those claims, they fail here and are DISMISSED.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

for

summary judgment (Docket Entry 66) is GRANTED in its entirety.
The Clerk of the Court is directed to enter judgment accordingly
and mark this case CLOSED.
SO ORDERED.

/s/ JOANNA SEYBERT __________
Joanna Seybert, U.S.D.J.
Dated:

November 20, 2018
Central Islip, New York
22