Szwalla v. Time Warner Cable, LLC
Filing
37
MEMORANDUM-DECISION AND ORDER granting 30 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment (Dkt. No. 30) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter judgm ent in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/29/15.(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
AIMEE SZWALLA,
Plaintiff,
vs.
3:13-CV-713
(MAD/DEP)
TIME WARNER CABLE, LLC and
TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
POPE, SCHRADER & POPE, LLP
2 Court Street, 4th Floor
P.O. Box 510
Binghamton, New York 13902
Attorneys for Plaintiff
ALAN J. POPE, ESQ.
BOND, SCHOENECK & KING, PLLC
One Lincoln Center
Syracuse, New York 13202
Attorneys for Defendants
JONATHAN B. FELLOWS, ESQ.
SUZANNE O. GALBATO, ESQ.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action on June 20, 2013, alleging sexual harassment, hostile
work environment, and retaliation by Defendants in violation of Title VII of the Civil Rights Act
("Title VII") in connection with Plaintiff's employment as an account executive in Defendants'
Vestal, New York office. See Dkt. No. 1. Presently before the Court is Defendants' motion for
summary judgment. See Dkt. No. 30. Plaintiff opposes the motion. See Dkt. No. 35.
II. BACKGROUND
Plaintiff began employment with Defendants on September 10, 2001 as an account
executive in Defendants' Vestal, New York office. Dkt. No. 30-10 at ¶ 1. Plaintiff's position
involved selling Defendants' "Business Class" services to businesses in the Binghamton, New
York area. Id. at ¶ 9. As an account executive, Plaintiff earned a base salary and could earn sales
commissions. Id. at ¶ 10. Defendants required its account executives, including Plaintiff, to meet
monthly sales quotas. Id.
At all times relevant to Plaintiff's claims, Defendants maintained policies prohibiting
unlawful discrimination and harassment based on gender. See id. at ¶ 4; Dkt. No. 30-2 at 2-3.
Defendants also maintained a Standards of Business Conduct policy that prohibited harassment
and sexual harassment and instructed employees to report instances of possible discrimination or
harassment to Defendants' human resources, legal, or compliance offices. See Dkt. No. 30-10 at ¶
5; Dkt. No. 30-2 at 5-14. In addition, Defendants had an Open Door Process through which
employees could report concerns to their local management or local human resources department
or to Defendants' Corporate Employee Relations Department ("Employee Relations") in
Charlotte, North Carolina. See Dkt. No. 30-10 at ¶ 6; Dkt. No. 30-2 at 30-32. Plaintiff was
trained on and acknowledged receipt of these policies. Dkt. No. 30-10 at ¶ 7.
In or about July 2009, shortly after Plaintiff returned from maternity leave, Plaintiff
complained to human resources that her manager, Paul Noyd, had said that taking maternity leave
was like taking a vacation, in reference to Plaintiff's needing to meet her sales quotas. See id. at ¶
16; Dkt. No. 30-5 at 23. In response to Plaintiff's complaint, Barbara Petitto, Defendants' director
2
of human resources in Syracuse, New York, counseled Mr. Noyd that his comment was
inappropriate. Dkt. No. 30-7 at 49-50; Dkt. No. 30-9 at 14-16.1
Plaintiff also alleges that shortly after this incident, she attended a meeting at which
another account executive, Dana Thurston, made an inappropriate comment to her in front of Mr.
Noyd. See Dkt. No. 30-5 at 41. Specifically, Plaintiff alleges that Mr. Thurston commented,
"[y]ou look nice today" and turned to Tony DiPietro, the vice president of Defendants' Business
Class, and said, "Go ahead, Tony. Take a look. Take a look at Aimee." Id. Plaintiff further
alleges that when she spoke to Mr. Noyd about the inappropriateness of Mr. Thurston's comment
following the meeting, Mr. Noyd taunted Plaintiff about reporting the comment to human
resources and refused to take Plaintiff to human resources to make a report. See id. at 41-42.
Plaintiff contends that she then reported Mr. Thurston's comments and Mr. Noyd's response to
Ms. Petitto. See id. at 42. Ms. Petitto and Mr. Noyd do not recall Plaintiff complaining about Mr.
Thurston's comments to them. See Dkt. No. 30-7 at 29; Dkt. No. 30-9 at 90.
Plaintiff's monthly sales quota for July 2009 was $4,500. Dkt. No. 30-10 at ¶ 12.
Defendants required Plaintiff to meet only fifty percent of her monthly sales quota that month. Id.
at ¶ 14; Dkt. No. 30-2 at 34. Plaintiff actually sold $294 worth of services in July 2009. Dkt. No.
30-10 at ¶ 13; Dkt. No. 30-2 at 34. Defendants required Plaintiff to meet sixty-five percent of her
monthly sales quotas in August, September, and October 2009, seventy-five percent of her
monthly sales quota in November 2009, and eighty percent of her monthly sales quota in
Although Plaintiff disputes that Ms. Petitto counseled Mr. Noyd regarding the
inappropriateness of his comment, Plaintiff's only basis for disputing that this conversation
occurred is the fact that Defendants were unable to produce a record of the conversation. See
Dkt. No. 35-6 at ¶ 53. As both Ms. Petitto and Mr. Noyd testified at their depositions that Ms.
Petitto spoke to Mr. Noyd regarding his comment, and Plaintiff has produced no evidence to the
contrary, the fact that this conversation took place is not genuinely in dispute.
1
3
December 2009. Dkt. No. 30-10 at ¶ 15; Dkt. No. 30-2 at 34. Plaintiff did not meet her reduced
monthly sales quotas in August, September, or October 2009. Dkt. No. 30-2 at 34. On November
2, 2009, Mr. Noyd informed Plaintiff in writing that if Plaintiff did not meet her reduced monthly
sales quota for the month of November 2009, Plaintiff would progress to the termination stage of
Defendants' progressive employee discipline procedure. Id.2
Around April 30, 2010, Defendants reassigned Plaintiff to report to another manager,
Cory Karanik. Dkt. No. 30-10 at ¶ 19. Mr. Karanik worked out of Defendants' Syracuse, New
York office. Id. at ¶ 20. Mr. Karanik was trained on Defendants' anti-harassment, antidiscrimination, and Open Door policies. Id. at ¶ 8. Plaintiff and Mr. Karanik had face-to-face
contact approximately ten times in an eleven-month period. Id. at ¶ 21. According to Plaintiff,
on these occasions, Mr. Karanik made inappropriate comments regarding her appearance and
body. See id. at ¶ 22; Dkt. No. 30-5 at 46. In addition, on June 11, 2010, after an in-person
meeting with Plaintiff, Mr. Karanik sent Plaintiff a text message that read "Your [sic] very
distracting." Dkt. No. 30-10 at ¶ 23. Plaintiff responded with a text message that read "Sorry"
and included a colon and a parenthesis to indicate a smiley face. Id. at ¶ 24. Mr. Karanik sent
Plaintiff an additional text message that read "I'll do my best to behave." Id. at ¶ 25.
On May 23, 2011, Plaintiff notified Employee Relations of Mr. Karanik's comments and
text messages from 2010. See id. at ¶ 27; Dkt. No. 30-2 at 36. Plaintiff also informed Employee
Defendants' corrective action process for employee discipline in place in 2009 involved
four stages: (1) Stage 1 counseling; (2) Stage 2 written warning; (3) Stage 3 final warning; and (4)
Stage 4 termination. See Dkt. No. 30-7 at 45-47. Mr. Noyd's letter to Plaintiff was a Stage 3 final
warning. Dkt. No. 30-2 at 34. Plaintiff contends that she did not receive Stage 1 counseling or a
Stage 2 written warning prior to this letter. See Dkt. No. 35-6 at ¶¶ 60-61. Ms. Petitto indicated
that she "under[stood] there was coaching done" with Plaintiff, Dkt. No. 30-7 at 47, but could not
produce any documentation that Stage 1 and Stage 2 actually occurred for Plaintiff's poor sales
performance prior to the November 2 Stage 3 final warning, see Dkt. No. 35-6 at ¶ 60.
2
4
Relations that Mr. Karanik had attempted to kiss Plaintiff at a café following a funeral for a
colleague's family that Plaintiff and Mr. Karanik attended together. Dkt. No. 30-2 at 36.
Defendants immediately suspended Mr. Karanik pending investigation of Plaintiff's complaint.
Dkt. No. 30-10 at ¶ 31. After investigation, Ms. Petitto and Employee Relations determined that
Mr. Karanik had encouraged Plaintiff not to report his behavior to human resources. See Dkt. No.
30-8 at 50. Defendants therefore terminated Mr. Karanik on June 16, 2011 for violating their
Open Door policy. See id. at 50-51; Dkt. No. 30-10 at ¶ 32.
Plaintiff went on leave from the time she reported Mr. Karanik in May 2011 until
approximately December 2011. Dkt. No. 30-10 at ¶ 33. When Plaintiff returned to work,
Defendants assigned her to report to Michael Stanton, Director of Sales in Defendants' Syracuse
office. See id. at ¶ 35; Dkt. No. 30-8 at 54-57. Plaintiff went on maternity leave from
approximately March 7, 2012 to May 18, 2012. See Dkt. No. 30-1 at ¶¶ 27-28. When she
returned from maternity leave, Defendants afforded Plaintiff a "ramp up" period of reduced sales
quotas. See Dkt. No. 30-10 at ¶ 36. Specifically, Defendants required Plaintiff to meet twentyfive percent of her sales quotas for June, July, and August 2012, fifty percent of her sales quota
for September 2012, and seventy-five percent of her sales quota for October 2012. Id.
Upon her return, Plaintiff complained to Ms. Petitto about reporting to Mr. Stanton, which
Plaintiff viewed as a disadvantage because she did not feel like part of the Vestal sales team and
missed the opportunity to participate in team meetings by having to report to a manager remotely.
See Dkt. No. 30-5 at 70-71. Ms. Petitto thereafter reassigned Plaintiff to report to Mr. Noyd at
Plaintiff's request. See id. at 71. Plaintiff continued to fail to meet her sales quotas after she was
reassigned to Mr. Noyd. See id. at 75.
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Around this time, Plaintiff also expressed to Ms. Petitto that she was not happy conducting
outside sales and face-to-face visits to potential customers. See Dkt. No. 30-8 at 60. Plaintiff told
Ms. Petitto that part of her concern with respect to "[b]eing out on the streets" was that she feared
Mr. Karanik was following her or driving by her house. See id. at 60-61; Dkt. No. 30-5 at 58-59.
Ms. Petitto directed Plaintiff to other job openings with Defendants, including inside sales
opportunities in Defendants' Syracuse office. See Dkt. No. 30-5 at 67. Plaintiff unsuccessfully
applied for media sales and hospital sales positions with Defendants. See id. at 74. In or about
February 2013, Plaintiff transferred to a customer service representative position in Defendants'
Vestal call center. Dkt. No. 30-10 at ¶ 46. Plaintiff's base salary, health benefits, and reduced
cable services remained the same as in her prior account executive position. Id. at ¶ 47.3
From April 18, 2013 through October 24, 2013, Plaintiff progressed through the four
stages of Defendants' corrective action process for employee discipline based on Plaintiff's
excessive tardiness and absenteeism, including documented counseling on April 18, 2013, a
written warning on May 10, 2013, a final written warning on July 10, 2013, and a second final
written warning on October 24, 2013. Id. at ¶ 48. On November 5, 2013, Defendants terminated
Plaintiff because of her continued pattern of attendance violations. Id. at ¶ 50.
On June 14, 2011, Plaintiff filed a complaint with the New York State Division of Human
Rights ("Division of Human Rights"), which alleged gender discrimination and hostile work
environment charges against Defendants and Mr. Karanik. Id. at ¶ 37. On July 12, 2012, Plaintiff
filed a second complaint with the Division of Human Rights, alleging that Defendants subjected
her to retaliation for filing her initial complaint by assigning her to report to Mr. Stanton. Id. at ¶
Plaintiff's potential commission decreased substantially from the account executive
position. See Dkt. No. 30-5 at 79.
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38. On January 8, 2013, the Division of Human Rights made a "no probable cause" determination
pertaining to Plaintiff's retaliation claims and dismissed Plaintiff's retaliation complaint. Id. at ¶
44. On March 22, 2013, Administrative Law Judge Robert M. Vespoli dismissed Plaintiff's
gender discrimination and hostile work environment charges in a Recommended Findings of Fact,
Opinion and Decision, and Order. Id. at ¶ 40. The Division of Human Rights adopted the
recommended decision and order on April 30, 2013. Id. at ¶ 41.
The Equal Employment Opportunity Commission ("EEOC") issued Plaintiff a dismissal
and notice of right to sue regarding her sexual discrimination and hostile work environment
complaint on March 20, 2013. Id. at ¶ 43. On May 17, 2013, the EEOC issued Plaintiff a
dismissal and notice of right to sue regarding her retaliation complaint. Id. at ¶ 44. Plaintiff
commenced this action on June 20, 2013, asserting claims of sexual harassment based upon a
hostile work environment and retaliation in violation of Title VII. See Dkt. No. 1.
III. DISCUSSION
A.
Summary Judgment Standard
A court may grant a motion for summary judgment only if it determines "that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law." See Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment
motion, the court "cannot try issues of fact; it can only determine whether there are issues to be
tried." Id. at 36-37 (quotation and other citation omitted). The movant has the burden of showing
that no genuine factual dispute exists, and "where the movant 'fail[s] to fulfill its initial burden' of
providing admissible evidence of the material facts entitling it to summary judgment, summary
judgment must be denied, '"even if no opposing evidentiary matter is presented,"' for the
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non-movant is not required to rebut an insufficient showing." Giannullo v. City of New York, 322
F.3d 139, 140-41 (2d Cir. 2003) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 160
(1970)).
In assessing the record to determine whether a genuine issue of material fact exists, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36. A party opposing a motion for summary
judgment may not simply rely on the assertions in its pleading, but rather must "by [the party's]
own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)). "If the record contains concrete
evidence from which a rational trier of fact could render a reasonable verdict in favor of the
non-moving party, summary judgment is improper." Gonzalez v. Beth Israel Med. Ctr., 262 F.
Supp. 2d 342, 349 (S.D.N.Y. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
B.
Hostile Work Environment
Title VII makes it unlawful for an employer to "fail or refuse to hire or to discharge any
individual, or otherwise 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). "A plaintiff seeking relief for sex
discrimination [under Title VII] can proceed under two theories: (1) 'quid pro quo' and (2) 'hostile
work environment'." Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.
1992) (citing Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 64-65 (1986)). Here, Plaintiff
proceeds solely on a hostile work environment theory.
8
In order to prove sexual harassment in violation of Title VII based upon a hostile work
environment, a plaintiff must prove "(1) that she is a member of a protected group; (2) that she
was the subject of unwelcome advances; (3) that the harassment was based upon her sex; and (4)
that the harassment affected a term, condition or privilege of employment." Cosgrove v. Sears,
Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993). As to the fourth element, "the harassment
must be sufficiently severe or pervasive so as to alter the conditions of the victim's employment
and create an abusive working environment." Id. "[W]hether an environment is 'hostile' or
'abusive' can be determined only by looking at 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
"An employer is subject to vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or successively higher) authority
over the employee." Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
However, an affirmative defense is available when the employer
does not take any tangible employment action in connection with
the harassment. This defense examines the reasonableness of the
conduct of both the employer and the victimized employee.
Specifically, the Supreme Court held that "[t]he defense comprises
two necessary elements: (a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise."
Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (internal citations omitted) (quoting
Faragher, 524 U.S. at 807; Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998)).
In the present matter, Defendants assert that "Time Warner Cable is entitled to summary
judgment because Ms. Szwalla did not suffer any adverse employment action in connection with
9
the alleged harassment by her supervisor and therefore cannot prove all of the required elements
of a Title VII violation." Dkt. No. 30-11 at 12. However, an adverse employment action is not a
required element of a hostile work environment claim. As set forth above — and as Defendants
acknowledge — Plaintiff must prove only that the harassment was sufficiently severe to affect a
term, condition, or privilege of her employment, not that she suffered a tangible adverse
employment action in connection with the harassment. See id. (setting forth the requisite
elements of a hostile work environment claim). Defendants do not otherwise dispute Plaintiff's
ability to prove the requisite elements of a hostile work environment claim based on Mr.
Karanik's harassment.
However, Defendants argue that they are entitled to the Faragher/Ellerth defense from
vicarious liability for Mr. Karanik's harassment. See Dkt. No. 30-11 at 12-19. Specifically,
Defendants contend that their anti-harassment policies and complaint procedures and swift action
in response to Plaintiff's reporting Mr. Karanik's harassing behavior demonstrate that Defendants
exercised reasonable care to prevent and correct sexual harassment. See id. at 13-15. Defendants
further contend that Plaintiff unreasonably failed to avail herself of Defendants' preventive or
corrective measures by failing to report Mr. Karanik's harassment for nearly one year. See id. at
15-19. Plaintiff argues that she has proffered sufficient evidence that Defendants' policies were
ineffective and that her delay in reporting Mr. Karanik was reasonable to deprive Defendants of
the Faragher/Ellerth defense. See Dkt. No. 35-7 at 14-19.4
1. Defendants' Exercise of Reasonable Care to Prevent and Correct Harassment
"An employer need not prove success in preventing harassing behavior in order to
The parties appear to agree that Defendants may raise the defense because Mr. Karanik's
harassment of Plaintiff did not culminate in a tangible adverse employment action. See Faragher,
524 U.S. at 808.
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demonstrate that it exercised reasonable care in preventing and correcting sexually harassing
conduct." Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999) (citing
Faragher, 524 U.S. at 807). "Although not necessarily dispositive, the existence of an
anti-harassment policy with complaint procedures is an important consideration in determining
whether the employer has satisfied the first prong of this defense." Id. Courts have also found
evidence that an employer reacted promptly and appropriately to the filing of a harassment
complaint probative of the employer's exercise of reasonable care to prevent and correct
harassment. See, e.g., id. (finding that an employer exercised reasonable care to prevent and
correct sexually harassing behavior where it had an anti-harassment policy with a complaint filing
procedure and undisputably "endeavor[ed] to investigate and remedy problems reported by its
employees"); Finnerty v. William H. Sadlier, Inc., 176 Fed. Appx. 158, 162 (2d Cir. 2006)
(concluding that an employer exercised reasonable care as a matter of law based in part on the
employer's investigation and punishment of a harassing supervisor within one week of the
employee's complaint); Gonzalez, 262 F. Supp. 2d at 354-55 (finding that an employer's prompt
response to an employee's harassment complaint was "'sufficient to remove any question of fact
as to [the employer's] liability'" for a supervisor's harassment (quoting Wahlstrom v. Metro-North
Commuter R.R. Co., 89 F. Supp. 2d 506, 525 (S.D.N.Y. 2000))).
Here, it is undisputed that Defendants had in place anti-harassment policies that
encouraged employees to report harassment, including an avenue for reporting harassment that
bypassed the harassing supervisor, and that Defendants provided Plaintiff and her supervisors
with the policies and related training. Cf. Faragher, 524 U.S. at 808 (concluding as a matter of
law that an employer did not exercise reasonable care to prevent supervisors' harassing conduct
where the employer had failed to disseminate its anti-harassment policy to the supervisors and
11
employee being harassed and did not assure employees that harassing supervisors could be
bypassed in registering complaints). Plaintiff argues that Defendants have nonetheless failed to
satisfy the first prong of the Faragher/Ellerth defense because its anti-harassment policies and
complaint procedure were ineffective. As Defendants correctly assert, an employer is not
required to prove that its anti-harassment policies and procedures were effective in order to
satisfy the first element of the defense. See Dkt. No. 36 at 6; see also Caridad, 191 F.3d at 295
(explaining that success in preventing harassment is not required to demonstrate that an employer
exercised reasonable care in attempting to prevent and correct harassment).
To the extent that Plaintiff argues that Defendants have failed to prove that they exercised
reasonable care in preventing and correcting harassing behavior because they failed to follow
their stated anti-harassment policies and procedures, Plaintiff's argument is not supported by the
record. It is undisputed that following Plaintiff's complaint regarding Mr. Karanik on May 23,
2011, Defendants immediately suspended Mr. Karanik pending investigation. It is also
undisputed that Defendants promptly initiated an investigation and terminated Mr. Karanik on
June 16, 2011. Furthermore, as discussed above, the record establishes that following Plaintiff's
complaint regarding Mr. Noyd's maternity leave comment, Defendants counseled Mr. Noyd and
transferred Plaintiff to another manager. See supra n.1.5
Plaintiff also argues that Defendants failed to act in response to her complaint about Mr.
Noyd's inaction in the face of Mr. Thurston's alleged inappropriate comments to Plaintiff in front
of Mr. Noyd. See Dkt. No. 35-7 at 5. However, in her deposition testimony, Plaintiff
acknowledged that Defendants transferred her off of Mr. Noyd's team in response to her second
complaint against Mr. Noyd. See Dkt. No. 30-5 at 42. Plaintiff's contention that Defendants
failed to implement any corrective action in response to her complaints is thus belied by Plaintiff's
own testimony. Furthermore, although Plaintiff may believe that her complaints warranted a
more severe response from Defendants, "'nothing gives her the right to choose the penalty for her
harasser.'" Gonzalez, 262 F. Supp. 2d at 355 (quoting Wahlstrom, 89 F. Supp. 2d at 526). As the
Second Circuit has recognized, "not every response to a complaint should take the form of
5
(continued...)
12
As evidence that Defendants did not enforce their stated anti-harassment policies and
procedures, Plaintiff points to the affidavits of Jon Putrino and Joseph J. Sculley, Jr., who were
employed in Defendants' Vestal office during the time relevant to Plaintiff's claims. Mr. Putrino,
who was employed by Defendants for approximately sixteen years, indicated that Defendants'
human resources department "seldom responded to any serious inquiry or complaint" and "did
little or nothing to support anyone in need or with a complaint." Dkt. No. 35-2 at 1, 3. By way of
example, Mr. Putrino described an incident in which he reported a female customer's complaint
that a technician made inappropriate sexual references to her looks during a home service visit to
human resources. See id. at 2. According to Mr. Putrino, he "did not hear anything more about
this serious complaint" and assumed human resources did not properly investigate or deal with
the technician because approximately one year later, a second female customer filed a complaint
accusing the technician of sexually inappropriate comments and touching. See id.6
Similarly, Mr. Sculley indicated that he "experienced various situations where the Open
Door policy seemed to be discouraged and situations where an employee complained about a
manager or supervisor, but nothing was done to investigate or deal with such a complaint." Dkt.
No. 35-3 at 1. Mr. Sculley did not identify a specific instance in which Defendants failed to
investigate or deal with a particular complaint. See id. at 1-2.
Plaintiff also points to the fact that internal spreadsheets identifying complaints to human
5
(...continued)
discharge," and an employer's response short of termination may be appropriate if it is "sufficient
to make [the harassing supervisor] aware that the harassment would not be tolerated on [the
employer's] premises." Kotcher, 957 F.2d at 63. Notably, Plaintiff later requested to return to
Mr. Noyd's team, a request that Defendants accommodated. See Dkt. No. 30-5 at 70-71.
Mr. Putrino also described an instance in which human resources did not enforce its
policy forbidding the wearing of "dew-rags" against a particular technician despite the filing of a
complaint regarding the technician's attire. See id. at 3.
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resources for the years 2009, 2010, and 2011 do not include Plaintiff's complaints against Mr.
Noyd and Mr. Karanik as proof that Defendants' anti-harassment policies and procedures were
ineffective. See Dkt. No. 35-7 at 15; Dkt. No. 35-1.
The conclusory assertions of Mr. Putrino, Mr. Sculley, and Plaintiff that Defendants' antiharassment policies were generally not enforced are insufficient to overcome the undisputed
record evidence that Defendants promptly investigated and responded to complaints of sexual
harassment.7 Moreover, although the fact that Plaintiffs' complaints about Mr. Karanik and Mr.
Noyd were not tracked on Defendants' internal log of human resources complaints may
demonstrate lack of effective documentation of harassment claims, it does not evidence that
Defendants failed to reasonably respond to complaints, especially in light of the undisputed
record evidence that Defendants timely reacted to Plaintiffs' complaints. Accordingly, the Court
finds that Defendants have satisfied the first element of the Faragher/Ellerth affirmative defense.
2. Plaintiff's Failure to Take Advantage of Preventive or Corrective Opportunities
As to the second prong of the Faragher/Ellerth affirmative defense,
while proof that an employee failed to fulfill [his or her]
corresponding obligation of reasonable care to avoid harm is not
limited to showing an unreasonable failure to use any complaint
procedure provided by the employer, a demonstration of such
failure will normally suffice to satisfy the employer's burden under
the second element of the defense.
Faragher, 524 U.S. at 807-08.
Once an employer has satisfied its initial burden of demonstrating
that an employee has completely failed to avail herself of the
Although Mr. Putrino described an incident in which he assumes that Defendants took no
action in response to a customer's complaint of sexual harassment by an employee, he admittedly
has no firsthand knowledge of how Defendants in fact responded to the complaint. See Dkt. No.
35-2 at ¶ 5. Mr. Putrino's assertion that Defendants did not enforce their policy against dew-rags,
even if true, is not probative of Defendants' efforts to prevent and correct harassment.
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complaint procedure, the burden of production shifts to the
employee to come forward with one or more reasons why the
employee did not make use of the procedures. The employer may
rely upon the absence or inadequacy of such a justification in
carrying its ultimate burden of persuasion.
Leopold, 239 F.3d at 246. In order for an employee's reluctance to report harassment to preclude
the employer's affirmative defense, "it must be based on apprehension of what the employer
might do, not merely on concern about the reaction of co-workers," and must be "based on a
credible fear that [the employee's] complaint would not be taken seriously or that she would
suffer some adverse employment action as a result of filing a complaint." Caridad, 191 F.3d at
295. "A credible fear must be based on more than the employee's subjective belief. Evidence
must be produced to the effect that the employer has ignored or resisted similar complaints or has
taken adverse actions against employees in response to such complaints." Leopold, 239 F.3d at
246.
In the instant matter, Plaintiff argues that she "did report Cory Karanik, but just not as
soon as [Defendants] say[] it should have been reported." Dkt. No. 35-7 at 16. However, once
Plaintiff did complain, Defendants took immediate action to end Mr. Karanik's alleged
harassment by promptly suspending him pending investigation and ultimately firing him.
Defendants have satisfied their initial burden of demonstrating that Plaintiff failed to avail herself
of Defendants' complaint procedures during the eleven-month period of the alleged hostile work
environment for which Plaintiff seeks to hold Defendants liable. Thus, the burden of production
shifts to Plaintiff to come forward with evidence that her failure to report the harassment was
justified.
Defendants argue that Plaintiff has not satisfied her burden of producing evidence that her
delay in reporting Mr. Karanik's harassment was based on a credible fear of suffering an adverse
15
employment action or being ignored. See Dkt. No. 30-11 at 17-19. In response, Plaintiff argues
that her fear of retaliation or inaction by Defendants was credible because (1) Defendants took no
action in response to Plaintiff's prior complaints regarding Mr. Noyd and (2) Defendants ignored
similar complaints about Mr. Karanik's sexually inappropriate behavior from employee Maria
Maoine in February 2010. See Dkt. No. 35-7 at 16-19.
As the Court discussed above, the undisputed evidence of record demonstrates that
Defendants did take action in response to Plaintiff's prior complaints. See supra Section III.B.1.
As to Ms. Maoine's complaints, the record establishes that on February 26, 2010, Ms. Maoine
complained to human resources that Mr. Karanik was "borderline offensive" and described an
incident in which Mr. Karanik stood behind her while she was on the telephone with a customer
and placed a sign or sticker on the front of his fly. Dkt. No. 36-1 at 13. When Ms. Maoine turned
around to face Mr. Karanik, he took the sign off of his fly. Id. According to Ms. Petitto,
Defendants responded to Ms. Maoine's complaint by performing an investigation that concluded
that Ms. Maoine's claim could not be substantiated and therefore did not discipline Mr. Karanik.
See Dkt. No. 30-8 at 16-19, 43-44. Characterizing Defendants' response to Ms. Maoine's
complaint as ignoring or resisting the complaint arguendo, Plaintiff's reliance on Defendants'
reaction to Ms. Maoine's complaint is nonetheless misplaced. Plaintiff concedes that she had no
knowledge of Ms. Maoine's complaint about Mr. Karanik or Defendants' response to it at the time
that Plaintiff failed to report Mr. Karanik's conduct. See Dkt. No. 30-4 at 61. As such,
Defendants' handling of Ms. Maoine's complaint could not have formed the basis for a credible
fear by Plaintiff that Defendants would retaliate against her or fail to take her complaint seriously.
Finally, Plaintiff maintains that "it was common knowledge that if you complained to
[Defendants] about management, the adverse consequences or the 'black eye' so to speak was
16
given to the employee, and only the employee, in the form of retaliation for reporting." Dkt. No.
35-7 at 16. However, as Plaintiff has produced no evidence that Defendants took any adverse
action against an employee in response to an employee's filing of an harassment complaint, "such
conclusory assertions fail as a matter of law to constitute sufficient evidence to establish that her
fear [of retaliation] was 'credible.'" Leopold, 239 F.3d at 246 (quoting Caridad, 191 F.3d at 295).8
Defendants have therefore satisfied their burden of establishing that Plaintiff unreasonably failed
to make use of the available complaint procedures.
Based on the foregoing, the Court concludes that Defendants have established the
Faragher/Ellerth affirmative defense to vicarious liability for Plaintiff's claim of sexual
harassment by Mr. Karanik. Accordingly, Defendants' motion for summary judgment on
Plaintiff's hostile work environment claim is granted.9
Plaintiff's argument that Defendants took an adverse employment action against her for
complaining about Mr. Noyd by removing her from Mr. Noyd's team, thereby providing Plaintiff
with a credible fear that she would face further retaliation if she complained about Mr. Karanik,
see Dkt. No. 35-7 at 19, is rejected based on the Court's finding infra Section III.C.2 that
Defendants' reassignment of Plaintiff was not an adverse employment action.
8
Defendants also argue that any sexual discrimination claim that Plaintiff may allege
based on Mr. Noyd's 2009 conduct is time barred. See Dkt. No. 30-11 at 23-25. Plaintiff does
not respond to this argument other than to state that Plaintiff's claims concerning Mr. Noyd's 2009
comments "[were] part of the Division of Human Rights hearing." Dkt. No. 35-6 at ¶ 17.
9
Title VII claims brought in New York are subject to a 300-day
statute of limitations for filing with the EEOC. Any Title VII
claims that are not encompassed within the administrative
complaint or which accrued more than 300 days prior to the filing
of the administrative complaint are barred by the applicable statute
of limitations.
Mendez v. City of N.Y. Human Res. Admin., No. 04 Civ. 0559, 2005 WL 2739267 (S.D.N.Y. Oct.
24, 2005) (internal citations omitted). It is undisputed that the June 14, 2011 complaint Plaintiff
filed with the Division of Human Rights did not reference Mr. Noyd's 2009 comments. See Dkt.
No. 35-6 at ¶ 17. Furthermore, any claims by Plaintiff related to Mr. Noyd's comments accrued at
the latest by November 2009, well more than three hundred days prior to the filing of Plaintiff's
(continued...)
17
C.
Retaliation
"Title VII's antiretaliation provision forbids employer actions that 'discriminate against' an
employee (or job applicant) because he has 'opposed' a practice that Title VII forbids or has 'made
a charge, testified, assisted, or participated in' a Title VII 'investigation, proceeding, or hearing.'"
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e3(a)). In order to present a prima facie case of retaliation under Title VII, a plaintiff must present
evidence sufficient to permit a rational trier of fact to find [1] that []
he engaged in protected participation or opposition under Title VII .
. . , [2] that the employer was aware of this activity, [3] that the
employer took adverse action against the plaintiff, and [4] that a
causal connection exists between the protected activity and the
adverse action, i.e., that a retaliatory motive played a part in the
adverse employment action.
Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (quoting
Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)).
Title VII "protects an individual not from all retaliation, but from retaliation that produces
an injury or harm." Burlington Northern, 548 U.S. at 67. Thus, in order to establish actionable
retaliation under Title VII, "a plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, 'which in this context means it well might have
"dissuaded a reasonable worker from making or supporting a charge of discrimination."'" Id. at
68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). "Material adversity is to
be determined objectively, based on the reactions of a reasonable employee," and in context.
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011).
9
(...continued)
June 14, 2011 complaint. Plaintiff's claims as to Mr. Noyd's comments would therefore have
been untimely even if they had been included in the administrative complaint. As Plaintiff does
not allege a continuing violation theory, the Court agrees with Defendants that any claim of
discrimination arising from Mr. Noyd's 2009 conduct is time barred.
18
Within the Second Circuit,
[e]mployment actions that have been deemed sufficiently
disadvantageous to constitute an adverse employment action
include "a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsibilities, or
other indices . . . unique to a particular situation." As these
examples suggest, "[t]o be materially adverse a change in working
conditions must be more disruptive than a mere inconvenience or an
alteration of job responsibilities."
Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (internal citations omitted)
(quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). "Alleged acts of
retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on
greater significance when they are viewed as part of a larger course of conduct." Tepperwien,
663 F.3d at 568.
Here, Defendants do not dispute that Plaintiff engaged in activity protected under Title
VII by complaining of sexual harassment by her managers or that they were aware of the activity.
However, they argue that Plaintiff did not suffer any adverse employment action as a result of her
complaints. See Dkt. No. 30-11 at 19-21. Plaintiff claims that she was subjected to the following
adverse employment actions by Defendants: (1) Mr. Noyd's issuance of the November 2, 2009
Stage 3 Final Warning memorandum; (2) Plaintiff's 2010 reassignment to Mr. Karanik's team; (3)
Defendants' insistence that Plaintiff continue to perform door-to-door sales despite her fear of
stalking by Mr. Karanik; (4) Plaintiff's 2011 reassignment to Mr. Stanton's team; (5) Defendants'
changing the type of business customers to which Plaintiff could sell its products and services;
and (6) Defendants' refusal of Plaintiff's request to work inside sales in the Vestal office. See Dkt.
No. 35-7 at 19-22.
1. The November 2, 2009 Warning
19
Plaintiff first contends that "[w]ithin a matter of weeks of [Plaintiff's] complaints to
[Defendants], she was retaliated against by her manager Paul Noyd through his issuance of a
November 2, 2009 memo . . . wherein he states that [Plaintiff] is at a Stage 3/Final Warning of
[Defendants'] progressive discipline." Id. at 20. Plaintiff further contends that Defendants
"condoned and supported this adverse management action . . . without checking or ascertaining
that there is no record of any Stage 1 or Stage 2 action involving [Plaintiff]." Id.
The Second Circuit has recognized that "the terms and conditions of employment
ordinarily include the possibility that an employee will be subject to an employer's disciplinary
policies in appropriate circumstances." Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006).
Accordingly, "an employee does not suffer a materially adverse change in the terms and
conditions of employment where the employer merely enforces its preexisting disciplinary
policies in a reasonable manner." Id. The Second Circuit has further explained that "oral and
written warnings do not amount to materially adverse conduct in light of our reasoning in Joseph .
. . , in which we stated that '[t]he application of the [employer's] disciplinary policies to [the
employee], without more, does not constitute adverse employment action.'" Chang v. Safe
Horizons, 254 Fed. Appx. 838, 839 (2d Cir. 2007) (quoting Joseph, 465 F.3d at 91). The Second
Circuit thus concluded in Chang that an employee did not suffer a materially adverse action when
her employer issued her warnings consistent with its progressive discipline policy. Id.
Here, Mr. Noyd issued Plaintiff a warning consistent with Defendants' progressive
discipline policy for Plaintiff's undisputed failure to meet her reduced monthly sales quotas upon
her return from maternity leave. See Dkt. No. 30-2 at 34. Although Plaintiff disputes that she
received the Stage 1 counseling or Stage 2 written warning required by Defendants' progressive
discipline policy prior to receiving Mr. Noyd's Stage 3 warning, she does not dispute that she did
20
not proceed to the termination stage of the disciplinary process or otherwise face further
discipline as a result of the warning. As such, Defendants' issuance of a warning regarding
Plaintiff's poor sales performance did not constitute a materially adverse employment action.
2. The Reassignment to Mr. Karanik
Plaintiff next argues that Defendants' reassignment of Plaintiff to Mr. Karanik's Syracusebased sales team after Plaintiff complained about Mr. Noyd was "a calculated adverse
employment action" because Defendants "[knew] that [Plaintiff would] not be able to fully
participate as a member of that sales team." Dkt. No. 35-7 at 20.
The Second Circuit has held "that an involuntary transfer may constitute an adverse
employment action if the plaintiff 'show[s] that the transfer created a materially significant
disadvantage' with respect to the terms of her employment." Williams, 368 F.3d at 128 (quoting
Galabya, 202 F.3d at 641); see also Galabya, 202 F.3d at 641 ("[A] transfer is an adverse
employment action if it results in a change in responsibilities so significant as to constitute a
setback to the plaintiff's career."). On the other hand, "'[i]f a transfer is truly lateral and involves
no significant changes in an employee's conditions of employment, the fact that the employee
views the transfer either positively or negatively does not of itself render the denial or receipt of
the transfer [an] adverse employment action.'" Williams, 368 F.3d at 128 (quoting Sanchez v.
Denver Pub. Sch., 164 F.3d 527, 532-33 n.6 (10th Cir. 1998)); see also Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) ("[A] purely lateral transfer, that is, a transfer that
does not involve a demotion in form or substance, cannot rise to the level of a materially adverse
employment action. A transfer involving no reduction in pay and no more than a minor change in
working conditions will not do, either."). Furthermore, "an indirect and minor effect on
commission income . . . is not sufficient to transform a lateral transfer into a demotion." Bristol21
Myers, 85 F.3d at 274.
In the present matter, the only change in working conditions that Plaintiff attributes to her
reassignment to report to Mr. Karanik is that reporting to a Syracuse-based manager precluded
Plaintiff from fully participating in sales meetings. See Dkt. No. 35-7 at 20. First, Defendants
aver that the information on sales promotions and product pricing that Plaintiff claims she did not
receive by not attending sales meetings was actually provided to employees online, an assertion
that Plaintiff does not dispute. See Dkt. No. 30-1 at ¶ 31. Second, requiring Plaintiff to report to
a manager outside of her office does not constitute a significant change in the conditions of
Plaintiff's employment. Plaintiff retained the same job title, responsibilities, salary, benefits, and
commission rate as before the transfer. Moreover, Plaintiff has not even demonstrated that her
commission earnings decreased as a result of the transfer. Although Plaintiff argues that
following the transfer, she did not meet her job performance goals, it is clear from the record that
Plaintiff failed to meet her job performance goals long prior to the transfer. See Dkt. No. 30-2 at
34 (demonstrating Plaintiff's failure to meet her reduced monthly sales quotas for July, August,
September, and October 2009). The Court therefore concludes that Plaintiff's reassignment to Mr.
Karanik was not a materially adverse employment action.
3. Door-to-Door Sales
Plaintiff further contends that Defendants retaliated against her for reporting Mr. Karanik
by forcing Plaintiff to perform door-to-door sales after Plaintiff informed Defendants that she
feared Mr. Karanik was following her because she saw him drive by her home and café in 2011.
See Dkt. No. 35-7 at 21; Dkt. No. 30-5 at 58-59; see also Dkt. No. 30-5 at 78 (indicating that
Plaintiff never saw Mr. Karanik while performing a sales call, but "saw cars that looked like [Mr.
Karanik's and] couldn't say for certain without guessing that that would be him"). However, as
22
Defendants explain, the performance of sales calls was "the very essence of [Plaintiff's] duties as
an Account Executive" prior to Plaintiff reporting the harassment. Dkt. No. 36 at 11-12.
Requiring Plaintiff to continue to perform the same job duties that she was required to perform
prior to filing a complaint against Mr. Karanik cannot be construed as a materially adverse
employment action. Cf. Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) ("An adverse
employment action is one which is more disruptive than a mere inconvenience or an alteration of
job responsibilities." (internal quotation marks omitted) (quoting Galabya, 202 F.3d at 640)).
4. Plaintiff's Reassignment to Mr. Stanton's Team
Plaintiff next avers that she suffered retaliation "by being assigned to Syracuse based
Director Michael Stanton who did not take any required action to work with her to meet her sales
performance goals." Dkt. No. 35-7 at 21. As the Court discussed above, assigning Plaintiff to
report to a manager based in Syracuse, without otherwise altering the terms or conditions of
Plaintiff's employment, does not constitute an adverse employment action. See supra Part III.C.2.
Plaintiff's reassignment to Mr. Stanton involved "no more than a minor change in working
conditions" — namely, communicating with her manager via telephone or email as opposed to
face-to-face and being excluded from sales meetings — which does not rise to the level of a
materially adverse employment action. Bristol-Myers, 85 F.3d at 274. Further, when Plaintiff
complained to Defendants that her inability to participate in sales meetings and sales calls was
detrimentally affecting her sales performance, Defendants accommodated her request to be
reassigned to Mr. Noyd's team. See Dkt. No. 30-5 at 68-70. The relatively minor inconveniences
that Plaintiff suffered as a result of having temporarily to report to Mr. Stanton rather than Mr.
Noyd do not rise to the level of "a 'radical change in the nature of the work'" performed by the
employee that the Second Circuit has found to have "constituted 'interference with a condition or
23
privilege of employment.'" Galabya, 202 F.3d at 641 (quoting Rodriguez v. Bd. of Educ., 620
F.2d 362, 366 (2d Cir. 1980)).
5. Change in Selling Practices
Plaintiff additionally contends that Defendants "knowingly changed the type of business
customer that [Plaintiff] could sell Time Warner products and service to," thereby "placing her on
a track to failure, and eventual termination." Dkt. No. 35-7 at 21. Specifically, Plaintiff claims
that Defendants directed her to sell only to new businesses that were not existing Time Warner
customers, rather than "allowing her to perform inside sales to business customers with whom she
had successful experience." Id. However, Plaintiff does not dispute Defendants' contention that
the change in Plaintiff's customer base was part of a larger Business Class department
restructuring that occurred years prior to Plaintiff's complaints. See Dkt. No. 30-8 at 60
(describing Defendants' restructure of Plaintiff's department); Dkt. No. 36-1 at ¶ 12 (explaining
the change in the telecommunications industry that prompted Defendants to restructure its
Business Class department); Dkt. No. 30-5 at 72-73 (describing changes in customer base for
Plaintiff's sales team led by Mr. Noyd).
As the Second Circuit has articulated, "the addition of several new responsibilities to [an
employee's] job description in connection with a larger restructuring . . . do[es] not . . . rise to the
level of an adverse employment action." Palomo v. Trs. of Columbia Univ., 170 Fed. Appx. 194,
195 (2d Cir. 2006). Accordingly, the alterations in Plaintiff's job responsibilities resulting from a
department-wide restructure do not qualify as an adverse employment action. In Palomo, the
employee's retaliation claim also failed because the employee "[did] not rebut[] [the employer's]
proffer that any changes in the duties [the employee] was asked to perform were either the result
of a departmental restructuring or non-discriminatory responses to the quality of her work."
24
Palomo, 170 Fed. Appx. at 196. Likewise, here, Plaintiff has not rebutted Defendants' assertion
that Plaintiff's job duties changed as a result of the restructuring of her department.
6. Refusal to Permit Plaintiff to Work Inside Sales in Defendants' Vestal Office
Finally, Plaintiff avers that Defendants retaliated against her by refusing to grant her
request "to work inside the office on Business Class sales even though she was in fear to work
outside the office because of Cory Karanik's behavior." Dkt. No. 35-7 at 21.
To the extent that Plaintiff is arguing that she suffered an adverse employment action
because Defendants would not transfer her to an inside sales position, such argument fails
because Plaintiff voluntarily chose not apply for the open inside sales positions that Defendants
notified her were available in Defendants' Syracuse office. See Dkt. No. 30-5 at 65. A plaintiff
alleging that a failure to promote or transfer constituted an adverse employment action must
"allege that she or he applied for a specific position or positions and was rejected therefrom."
Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). This "general rule . . . is subject
to modification where the facts of a particular case make an allegation of a specific application a
quixotic requirement." Id. "[T]he exception is narrow and does not pertain simply because an
employee asserts that an 'aura of discrimination' in the workplace somehow discouraged her from
filing a formal application." Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004) (quoting
Brown, 163 F.3d at 710). Here, requiring Plaintiff to allege that she applied for the position
would be far short of quixotic, as Plaintiff did apply for, was considered for, and received
interviews for other positions with Defendants, but voluntarily decided not to apply for the inside
sales representative openings in Syracuse. See Dkt. No. 30-5 at 65-67; cf. Moore v. Metro.
Transp. Auth., 999 F. Supp. 2d 482, 497 (S.D.N.Y. 2013) (finding that requiring the plaintiff to
allege that he submitted an application for a particular vacancy would be quixotic where the
25
plaintiff submitted a request to his supervisor to be considered for the vacancy and his supervisor
prohibited him from submitting a formal application).
Further, Plaintiff contends that Defendants should have permitted her to work an inside
sales position in Defendants' Vestal office, but admits that at the time she sought such an
accommodation, all of Defendants' outside sales representative positions were located in
Syracuse. See Dkt. No. 30-5 at 65. Plaintiff provides the Court with no precedent, nor is the
Court aware of any, establishing that an employer's refusal to create a new position in an
employee's preferred geographic location constitutes a materially adverse employment action. Cf.
Williams, 386 F.3d at 127-28 (rejecting an employee's argument that her employer's failure to
create a management position for the employee in the employee's preferred office was
discriminatory where the employee offered no evidence that the employer "ha[d] ever created a
position for an employee . . . who sought a transfer for purely personal reasons"); Piccone v.
Town of Webster, No. 09-cv-6266, 2011 WL 322550, *9 (W.D.N.Y. Aug. 2, 2011) ("Plaintiff,
however, admits that this position never existed. Thus, she must demonstrate that the Town
intended to create the position but then did not because Plaintiff was a member of a protected
class." (citing Williams v. R.H. Donnelley, Inc., 199 F. Supp. 2d 172, 178-79 (S.D.N.Y. 2002),
aff'd, 368 F.3d 123 (2d Cir. 2004)).
7. Defendants' Actions in the Aggregate
In addition to each individual action failing to provide a basis for a reasonable jury to
conclude that Defendants subjected Plaintiff to materially adverse employment actions,
Defendants' actions also fail in the aggregate to comprise materially adverse action. Plaintiff
argues that as a result of her complaints, Defendants reassigned her to two remote managers but
assigned her back to a local manager at her request, continued to expect Plaintiff to perform the
26
same job duties as were required of her before her complaints, issued her a written warning for
undisputed poor sales performance but took no further disciplinary action even when her sales did
not improve, and declined to create an inside sales position for Plaintiff in her desired geographic
location. The Court concludes that no reasonable employee in Plaintiff's shoes would have been
deterred from engaging in protected activities as a result of Defendants' actions. See Tepperwien,
663 F.3d at 572 ("Individually the actions were trivial, and placed in context they remain trivial.
Taken in the aggregate, the actions still did not adversely affect [the plaintiff] in any material
way. 'Zero plus zero is zero.'" (quoting MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33,
38 (2d Cir. 1998))).
In light of the foregoing, the Court grants Defendants' motion for summary judgment on
Plaintiff's retaliation claim.10
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment (Dkt. No. 30) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
Defendants also argue that Plaintiff cannot pursue a retaliation claim based upon her
transfer to the call center or ultimate termination because Plaintiff did not present those claims to
the EEOC or equivalent state agency. See Dkt. No. 30-11 at 21. As Plaintiff did not argue
retaliation on these grounds or address this argument in her opposition to Defendants' motion for
summary judgment, the Court deems any such claim abandoned and will not address it. See
Dell's Maraschino Cherries Co., Inc. v. Shoreline Fruit Growers, Inc., 887 F. Supp. 2d 459, 475
n. 16 (E.D.N.Y. 2012) ("Federal courts may deem a claim abandoned when a party moves for
summary judgment on one ground and the party opposing summary judgment fails to address the
argument in any way." (internal quotation marks omitted) (quoting Taylor v. City of New York,
269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003)).
10
27
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 29, 2015
Albany, New York
28
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