DeJohn v. Wal-Mart Stores East, LP et al

Filing 45

MEMORANDUM-DECISION AND ORDER granting in part and denying in part Defendants' 37 Motion for Summary Judgment. Parties are to report to the Court no later than 30 days from the filing of this order re: settlement progress. Signed by Senior Judge Neal P. McCurn on 8/17/2012. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Amy G. DeJohn,
Plaintiff,
-v.-

5:09-CV-01315
(NPM-ATB)

Wal-Mart Stores East, LP; Wal-Mart
Stores East, Inc.; Wal-Mart Stores, Inc.;
and Donald DeFeo,

Defendants.
APPEARANCES:

OF COUNSEL:

Attorneys for Plaintiff:
O’HARA O’CONNELL & CIOTOLI
7207 East Genesee Street
Fayetteville, NY 13066

STEPHEN CIOTOLI, ESQ.

Attorneys for Defendants:
LITTLER MENDELSON, P.C.
900 Third Avenue
New York, NY 10022-4834

MICHAEL KESSEL, ESQ.
JOEL L. FINGER, ESQ.

One Biscayne Tower
2 South Biscayne Boulevard
Suite 1500
Miami, FL 33131

SCOTT, FORMAN, ESQ.

Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER
I. Introduction
Presently before the court in this employment discrimination action is a
motion for summary judgment by defendants (“Defendants”), Wal-Mart Stores
East, LP; Wal-Mart Stores East, Inc.; Wal-Mart Stores, Inc. (collectively,
“Walmart”); and Donald DeFeo (“DeFeo”), seeking dismissal of the entire action
against them by plaintiff, Amy G. DeJohn (“Plaintiff”). Plaintiff opposes and
Defendants reply. Decision on the pending motion is rendered based solely on the
parties’ written submissions, without oral argument.
II. Procedural Background
Plaintiff commenced this action on November 24, 2009, after receiving a
right-to-sue letter from the United States Equal Employment Opportunity
Commission (“EEOC”) on October 28, 2009.1 See Dkt. Nos. 1, 5. By her
Amended Complaint, filed December 11, 2009, Plaintiff alleges claims against
Walmart of gender discrimination, hostile work environment, disparate treatment
and retaliation under both Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., (“Title VII”) and the New York Human Rights Law,
N.Y. Executive Law § 290, et seq. (“NYHRL”), as well as a claim for violation of
her rights under the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). In addition,
Plaintiff alleges a claim against DeFeo for aiding and abetting discrimination

1

Plaintiff filed her complaint with the New York State Division of Human Rights
(“DHR”), which has a work-sharing agreement with the United States Equal
Employment Opportunity Commission (“EEOC”). Thus, in New York,
complaints are deemed to be cross-filed with both DHR and EEOC whenever a
New York claimant files with either agency. See Francis v. Blaikie Group, 372 F.
Supp. 2d 741, 746. n.7 (S.D.N.Y. 2005) (aff’d 177 F. App’x 121 (2d Cir. 2006)).
2

under the NYHRL.
Following completion of discovery, Defendants filed the pending motion for
summary judgment.
III. Factual Background
In accordance with the Local Rules of this court, the following facts, which
are undisputed unless otherwise indicated, are gleaned from Defendants’
Statement of Material Facts and Plaintiff’s response thereto. In addition, in
Plaintiff’s memorandum of law in opposition to Defendants’ motion for summary
judgment, she sets forth a lengthy recitation of the facts, which includes facts not
addressed in Defendants’ Statement of Material Facts or her response thereto.2
For the sake of completeness, these facts, where relevant and admissible, have also
been considered.3
2

Also in her opposition memorandum of law, Plaintiff erroneously asserts that for
purposes of deciding Defendants’ motion for summary judgment under Rule 56 of
the Federal Rules of Civil Procedure, the allegations of fact in Plaintiff’s
complaint must be accepted as true, apparently confusing the Rule 56 standard
with the standard for deciding a motion to dismiss under Rule 12(b)(6).

3

Plaintiff also encourages the court to consider the probable cause determination of
the New York State Division of Human Rights (“DHR”). To be sure, “a finding
of probable cause by an administrative agency . . . though not determinative, is
admissible to help establish [a] prima facie case [of discrimination under Title
VII].” Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985).
Whether the DHR decision is admissible evidence, however, is subject to the
sound discretion of the district court. See Sadki v. SUNY College at Brockport,
310 F. Supp. 2d 506, 517 (W.D.N.Y. 2004) (citing Paolitto v. John Brown E. &
C., 151 F.3d 60, 65 (2d Cir.1998)). Here, the DHR’s decision is apparently based
solely on unsworn allegations from Plaintiff and DeFeo, and includes credibility
findings that are appropriately left to the province of a jury. Moreover, the human
rights specialist that conducted the investigation noted that “[t]here are several
questions of fact that would be best answered in a public hearing where witnesses
will be under oath.” Ex. G to Ciotoli Aff. Accordingly, while the subject of
Plaintiff’s complaint to DHR and the fact of a probable cause finding are
3

Plaintiff was hired by Walmart as a management trainee in 1993. Later that
year, she was promoted to assistant manager. Plaintiff became co-manager of the
Rome, New York store in 1998. Almost two years later, Plaintiff was promoted to
store manager of the Oneida, New York store. At all relevant times, defendant
DeFeo was a market manager, and Plaintiff’s direct supervisor. There is a dispute
in the record as to whether Plaintiff was promoted by, or at the recommendation
of, DeFeo, or whether Plaintiff was promoted by regional vice president Todd
Harbaugh, without recommendation by DeFeo.4 It is undisputed, however, that
DeFeo terminated Plaintiff on October 2, 2008.
On November 7, 2008, Plaintiff filed a complaint against Walmart with the
DHR charging unlawful discriminatory practices under the NYHRL. After an
investigation, the DHR found probable cause that Walmart engaged in unlawful
discriminatory practices. On September 1, 2009, at the request of Plaintiff, the
DHR dismissed her complaint for administrative convenience so that she could
seek remedies in federal court. After receiving a right-to-sue letter from the
EEOC, Plaintiff commenced this action.
admissible to establish this court’s jurisdiction, the DHR’s specific findings are
not admissible evidence in this case and will not be considered in deciding
Defendants’ motion for summary judgment.
4

See Decl. of Amy G. DeJohn, Jan. 11, 2012, ¶ 2, Dkt. No. 40-6 (“DeJohn Decl.”)
(Plaintiff was promoted by Todd Harbaugh, not DeFeo); Dep. of Amy G. DeJohn,
Feb. 16, 2011, 57:1-58:13, Ex. A to Decl. of I. Michael Kessel, Nov. 30, 2011
(“Kessel Decl.”), Dkt. No. 37-7 (“DeJohn Dep.”) (Harbaugh told Plaintiff she was
promoted and Plaintiff speculates that DeFeo did not recommend her for the
promotion, without personal knowledge of same); Decl. of Donald DeFeo, Nov.
26, 2011, ¶ 3, Dkt. No. 37-5 (“DeFeo Decl.”) (DeFeo interviewed Plaintiff and
thereafter recommended that she be promoted); Dep. of Donald S. DeFeo, May 5,
2011, 115, Ex. B to Kessel Decl., Dkt. No. 37-7 (“DeFeo Dep.”) (DeFeo
promoted Plaintiff).
4

A. Plaintiff’s Complaints Regarding Compensation
During the time of Plaintiff’s employment, she was compensated with a
salary and a bonus based on her store performance. In January 2006, the end of
fiscal year 2006, Walmart changed its bonus compensation structure for all store
managers. According to Defendants, the structure was changed from one based
solely on profit to one based on yearly profit and store revenues. Plaintiff
complained about the new plan, but Walmart, through its regional vice president,
Paul Busby, decided the plan would stand. According to Plaintiff, while she was
on maternity leave in 2005, her store received the most difficult sales and profit
plan for fiscal year 2006, and her bonus was based on that plan. She began
complaining to Busby about the plan change in April 2005, stating that she felt she
was being discriminated against, but nothing was done to change the bonus plan
policy. See DeJohn Aff., ¶ 12. At his deposition, DeFeo admitted that Plaintiff
had been complaining that she was short on a bonus. See DeFeo Dep., 56-57, at
Ex. C to Aff. of Stephen Ciotoli (“Ciotoli Aff.”), Jan. 13, 2012, Dkt. No. 40-3. It
is undisputed that in 2008, Plaintiff again complained about being short on a
bonus. Thereafter, an investigation took place, resulting in Plaintiff being paid
approximately $12,000 that she was due in bonus compensation. While DeFeo
claims the shortage was from fiscal year ending 2006, the supporting
documentation submitted by Defendants reflects that the shortage was actually for
fiscal year ending 2007, not 2006. See Ex. B to DeFeo Decl. The 2007 fiscal year
ended January 31, 2007. See id. DeFeo testified that the shortage was a mistake
on the part of Walmart’s finance department. See DeFeo Dep., 56-57. DeFeo
further testified that Plaintiff was the only store manager in his market who was
short on her bonus, and that none of the male managers experienced a shortfall.
5

See DeFeo Dep., 58:4-9.
B. Plaintiff’s February 2008 Coaching
Walmart employees are disciplined according to its “Coaching for
Improvement Policy.” There are generally four steps of coaching, including a
verbal coaching, a written coaching, a “Decision-Making Day” coaching, which is
a final opportunity for an employee to evaluate and change his or her behavior or
job performance before termination, and finally, termination. Coaching levels may
be skipped and more serious levels of coaching may be used depending on the
conduct at issue.
In February 2008, Plaintiff received a verbal coaching for poor business
judgment as a result of her improper use of Cash Fund Transfers (“CFTs”), which
are Walmart funds budgeted for store initiatives such as associate picnics, charity
donations, and local invoices. All CFTs were to be made to authorized Walmart
vendors, and all transactions over $100 required approval of a market manager.
During a routine audit, market asset protection auditor, Vincent Santilli, observed
a number of CFTs that were either unexplained or were for the exact amount of
$100. Suspecting that expenses were divided to $100 or less so that they would
not be reviewed by the market office, Santilli further reviewed the records with
DeFeo and discovered that several of Plaintiff’s CFTs were for expenses that were
not authorized by DeFeo. Consequently, Plaintiff was given a verbal coaching for
failure to seek market office approval for CFTs and for using unauthorized
vendors. Further, Plaintiff was told that going forward, she should not break down
CFTs of greater than $100 into amounts of $100 or less, not use unauthorized
vendors, and ensure that her management team was aware of those directives.
According to Plaintiff, prior to February 2008, DeFeo instructed her to
6

break down CFTs into increments of $100 or less so that it would not show up on
a report for his supervisor to see. See DeJohn Aff., at ¶ 38. By way of example,
Plaintiff alleges that when she needed to purchase approximately 600 picture
frames for employee awards, DeFeo told her to split up that expense into
increments of $100 or less. See id., ¶ 39. According to the listing of CFTs from
the Oneida store, Plaintiff purchased those frames on February 1, 2008. See Ex. A
to Decl. of Vincent Santilli (“Santilli Decl.”), Dkt. No. 37-6. Plaintiff alleges that
DeFeo again instructed her to account for CFTs in this away at a meeting in March
2008, after she received the coaching, thereby giving her a mixed message
regarding how she should account for CFTs in excess of $100 going forward. See
DeJohn Aff. at ¶ 39. DeFeo testified that there was one occasion when he gave
Plaintiff permission to break down a large purchase into CFTs of $100 or less, and
that was for the purchase of picture frames. See DeFeo Dep., 296:14-18. DeFeo
testified that this occurred around the time of Plaintiff’s coaching, and that prior to
the coaching she was told not to account for purchases in this way. See id., 169:216. In September 2008, Plaintiff gave a signed, written statement to market asset
protection manager David Oakes during his investigation of questionable CFTs
found in August 2008. See Ex. N to Decl. of Elizabeth Hatch, Dkt. No. 37-4. In
this eight-page statement, Plaintiff never mentioned that DeFeo told her to break
up CFTs into increments of $100 or less after her February 2008 coaching. See id.
C. Plaintiff’s Complaint Regarding Scheduling
In 2008, Walmart implemented a new scheduling system for store managers
nationwide, which required all managers to work a rotating work schedule instead
of a fixed one. According to Plaintiff, during a meeting in June 2008, DeFeo
handed out the new schedule to Plaintiff and the other managers in attendance, but
7

singled Plaintiff out, telling her alone not to ask for any special requests. See
DeJohn Aff., ¶ 23. Plaintiff complained to the regional vice president’s human
resources director, Baldomero Silva, that the new schedule was unfair to her and
all female store managers, especially those with children, but Silva told her to just
get used to it. See id. Plaintiff next complained to Walmart’s executive vice
president, Bill Simon. Eventually, however, DeFeo changed the managers’
schedule in his market back to a fixed schedule. See id. ¶¶ 23-24. DeFeo decided
to go back to the fixed schedule on his own, without a directive from his superiors,
after all of the managers except one said that they wanted the fixed schedule. See
DeFeo Dep., 158. Plaintiff admits that the schedule change was a nationwide
action that impacted both men and women. See DeJohn Dep., at 207-208.
D. Plaintiff’s Termination
Plaintiff was terminated on October 2, 2008. According to Defendants,
Plaintiff was terminated for (1) failing to report a sexual harassment complaint, (2)
the unauthorized sale of Walmart property, (3) use of an unauthorized vendor, (4)
failing to properly use and account for vending machine income, and (5) failing to
properly account for CFTs.
1. Failure to Report a Sexual Harassment Complaint
On June 10, 2008, a Walmart associate in the Oneida store told another
associate, Patty Keller, that an assistant manager at the store was making her feel
uncomfortable, including that he gave the associate his cell phone number and
private email address, told her he was married but getting a divorce, and told her
he wanted to hang out with her. Later that week, Ms. Keller saw Plaintiff at a
charity event. At that time, Ms. Keller told Plaintiff that an associate complained
that the assistant manager was sexually harassing her. Plaintiff told Ms. Keller
8

that Plaintiff was off the clock and that Ms. Keller should have the associate come
to see Plaintiff when they are back at the store. After the charity event, neither the
associate, nor Ms. Keller, ever came to see Plaintiff about the alleged harassment.
During the following week, when Plaintiff was at the store, and the week
thereafter, when she was out on vacation, Plaintiff did nothing about the report of
alleged sexual harassment. After Plaintiff went on vacation, her co-manager,
Chris Lahue, received a report of the alleged sexual harassment, and immediately
opened an investigation.
In July 2008, Lahue contacted market human resources manager, Elizabeth
Hatch, and informed her of the investigation against the assistant manager. Once
Hatch understood that Plaintiff had failed to commence the investigation, Hatch
took over the investigation against the assistant manager and began to investigate
the report that Plaintiff failed to take any action in response to the report of alleged
sexual harassment. Hatch concluded that the assistant manager engaged in
sexually inappropriate conduct and that Plaintiff improperly failed to respond to a
report of sexual harassment against the assistant manager.
Walmart’s Discrimination and Harassment Prevention Policy, last updated
October 16, 2007, provides, among other things, that if a member of management
receives a report, or otherwise becomes aware of any violations of the Policy, he
or she must immediately report such conduct to the appropriate level of
management for investigation. See Ex. D to DeFeo Decl. The Policy also advises
that “[a] Salaried Member of Management who fails to report a violation of this
Policy may be subject to discipline, up to and including termination.” Id.
Plaintiff contends that she was not trained in the “new reporting
requirements” under the anti-discrimination policy until July 2008, which required
9

follow-up on a claim of discrimination no matter where it is first learned of or
from whom. DeJohn Aff., ¶ 27. Walmart store manager Scott Louer testified that
while this training was the most in-depth training he had received about the antidiscrimination policy, it was not training on a new policy. See Dep. of Scott
Louer, 12-13, 22, at Ex. F to Ciotoli Aff. Plaintiff also contends that it is
Walmart’s policy that if a manager is approached “off the clock,” the proper
procedure is to have the associate contact the manager at work. See id. ¶¶ 26-27.
DeFeo also testified that this is a proper procedure. See DeFeo Dep., 103:3-22.
Moreover, a Power Point presentation at the July 2008 training, included the
directive to ensure the associate is “on the clock” when meeting to discuss a report
of discrimination. See Ex. M to Ciotoli Aff. However, this same Power Point
includes the directive to respond promptly when put on notice of allegations of
misconduct. See id.
2. Unauthorized Sale of Walmart Property
During Hatch’s investigation into the handling of the June 2008 sexual
harassment allegation, she discovered that Plaintiff sold a used industrial stand
mixer from the Oneida store to an assistant manager for $200. Because Plaintiff
did not have authorization to sell this Walmart asset, Hatch assigned market asset
protection manager David Oakes to conduct a separate investigation. Oakes
interviewed Robert Bird, the assistant manager that purchased the mixer. Mr. Bird
stated that he was aware of a mixer in the bakery department that wasn’t being
used and had some missing parts. He asked Plaintiff if he could purchase the
mixer, and offered to pay $200, since it was missing parts and he was unsure if it
worked. Later, Mr. Bird stated, he checked online and saw that the mixer “could
be worth about $4000.” Ex. I to Hatch Decl. Oakes requested a depreciated value
10

from the corporation that manufactured the mixer, stating that it was in “excellent
condition” at the time of sale. Ex. K to Hatch Decl. According to the corporation,
“street value” for the mixer, in “top shape,” would have been $9500 - $10,000. Id.
Plaintiff stated that she accepted the $200 for the mixer and added it to a
charitable donation account. Plaintiff admitted that she had no idea how much the
mixer was worth, but that in the past she had been given direction to sell old
equipment. By way of example, Plaintiff stated that she previously sold
equipment from the meat department, with permission from the district manager.
See Ex. J to Hatch Decl. Plaintiff testified that she sold the mixer to Mr. Bird for
$200 without permission from DeFeo and without knowing the value of the mixer.
See DeJohn Dep., 167:5-168:13. See also DeJohn Aff. ¶ 31. However, Plaintiff
alleges that DeFeo told managers to sell unused equipment “for whatever we could
get for it.” Id. ¶ 32. Plaintiff alleges that another store manager sold a television
to a contractor for his personal use at a significantly reduced price, and although
this manager was demoted, he was not fired. See id. at ¶ 33.
Another Walmart store manager, Scott Louer, testified that he has seen old
equipment being thrown away in the past, but that he is unsure whether it was
approved by a market-level manager. See Louer Dep., 26:4-9. Louer further
testified that it was always his understanding that the approval and authorization
of a market-level manager was required in order to sell old equipment. See id., at
27:22-28:1. According to Louer, he understood that managers were required to
get what they could for old equipment via a bidding process, albeit an informal
one, whereby word of mouth with associates and customers was used. See id.,
28:2-15.
Finally, it is important to note that while Plaintiff does not dispute that she
11

sold the mixer for $200 and that she was investigated regarding the sale, she does
dispute that this was a basis for her termination. In support of this dispute,
Plaintiff cites her exit interview paperwork, which states that she was terminated
for gross misconduct “[a]s a result of Redbook Investigations, PD-195 violations,
poor business judgement, and repetitive performance previously coached on
2/29/08 (sic),” Ex. I to Ciotoli Aff., but states nothing about the sale of the mixer.
3. Use of an Unauthorized Vendor
During the investigations of the alleged sexual harassment and the sale of
the mixer, it was discovered that Plaintiff used an unauthorized vendor for an
inflatable bouncer toy for children, which was used at an associate picnic, without
permission from DeFeo. In her statement to Oakes, Plaintiff says that “it never
dawned on her” that she was using an unauthorized vendor. Ex. N to Hatch Decl.,
at 675. Plaintiff testified that in this statement she explained that she erroneously
failed to keep her market manager informed of the expenditures for associates
within her store. See DeJohn Dep., 183. See also Ex. N to Hatch Decl., at 676. In
her affidavit, Plaintiff points out that another store in her area used an
unauthorized vendor for an inflatable bouncer at an associate picnic on the same
day as the Oneida store’s picnic. See DeJohn Aff. ¶ 37.
Plaintiff also argues, without foundation, that she was terminated for the use
of unauthorized vendors as it relates to the vending machines in her store’s break
room. Accordingly, Plaintiff’s supporting arguments regarding male managers’
use of these same vendors need not be considered.

5

PD-19 is Walmart’s Discrimination and Harassment Prevention Policy, and a
RedBook investigation is an investigation into allegations of discrimination and/or
harassment under that Policy. See DeFeo Decl. ¶¶ 12,13.
12

4. Failure to Properly Use and Account for Vending Machine
Income
Another issue that arose during these investigations was Plaintiff’s failure to
properly use and account for vending machine income. An associate in the Oneida
store’s accounting department reported to Oakes that money from the store-owned
vending machines in the break room was being used to fund store functions on
occasion, including the associate picnic. See Ex. M to Hatch Decl. This associate
further reported that money from the vending machines was not being kept in the
“vending income account,” but was kept as cash in a blue bag that was hidden
inside the snack machine. See Ex. O to Hatch Decl., at 664. Oakes reported that
Plaintiff stated she was aware of the cash being kept in the snack machine for the
past six years and “had no real answer” when asked why the income was not
reported in the vending income account. Id., at 665.
Plaintiff testified at her deposition that she was not aware that the money
from the vending machines was being kept in cash instead of being deposited into
the vending machine account, and did not learn that this was being done until her
investigation. See DeJohn Dep., 178:16-180:18. Plaintiff agreed, however, that
the income from the vending machines was taxable income and should be
reported. See id., at 179:16-25. By affidavit, Plaintiff alleges that DeFeo
“previously[] asked [her] invoice clerk while she was filling the [vending]
machines how we managed the machines and he was fine with it. He never stated
that we were doing something wrong or told [sic] to stop.” DeJohn Aff., at ¶ 37.
5. Failure to Properly Account for CFTs in August 2008
Also during the investigations, Santilli discovered unusual CFT activity in
the Oneida store related to expenditures for the associate picnic. See Santilli Decl.
13

¶ 5, Ex. B. The CFTs for the picnic were recorded in a series of $100 amounts,
with the reason given as “associate picnic” and one entry of $421.19 with “store
picnic” as the stated reason. See id., Ex. B. Oakes interviewed Oneida store
assistant manager John Dermody about the CFT invoice. According to Dermody’s
signed statement to Oakes, he broke up the expenditures for the inflatable structure
used at the picnic into $100 increments with the approval of Plaintiff. See Ex. L to
Hatch Decl. Plaintiff refers back to her allegation that she received mixed
messages regarding the proper procedure for recording CFTs, in particular her
allegation that in March 2008, after her February 2008 coaching on this issue,
DeFeo directed her to record CFTs in increments of $100.
IV. Discussion
A. Legal Standard
A motion for summary judgment shall be granted “if 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). The movant has the initial
burden to show the court why it is entitled to summary judgment. See Salahuddin
v. Goord, 467 F.3d 263, 272 (2d Cir.2006) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden
shifts to the non-movant to identify evidence in the record that creates a genuine
issue of material fact. See id., at 273 (citing Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)).
When deciding whether a material issue of fact is in dispute, the court is
cognizant that “[a] fact is material when it might affect the outcome of the suit
under governing law.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir.2010)
(internal citation omitted). Also, a material fact is genuinely in dispute “if ‘the
14

evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir.2010)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505
(1986)).
“In ruling on a motion for summary judgment, the district court may rely on
any material that would be admissible or usable at trial.” Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008) (internal quotation
and citation omitted). Finally, when the court is deciding a motion for summary
judgment, it must resolve all ambiguities and draw all reasonable inferences in the
non-movant’s favor. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co.,
373 F.3d 241, 244 (2d Cir.2004) (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 157, 90 S. Ct. 1598 (1970)).
It should also be noted that, pursuant to Local Rule 7.1(a)(3), the court
deems admitted any properly supported statement of material fact that is not
specifically controverted by the opposing party. See N.D.N.Y. R. 7.1(a)(3). See
also Figueroa v. Tri-City Highway Prods., Inc., No. 08-CV-868, 2010 WL
3635247, at *2 (N.D.N.Y. Sept.10, 2010) (citations omitted).
B. Claims Against Walmart
1. Title VII & NYHRL Claims
Plaintiff seeks relief against Walmart on her claims of disparate treatment,
gender discrimination, hostile work environment and retaliation, under both Title
VII and NYHRL. The analysis of each claim is identical under both statutes.6

6

See Madray v. Long Island Univ., No. 10-CV-3841, 2012 WL 2923500, at *13
(E.D.N.Y. Jul. 16, 2012) (citing Crespo v. New York City Transit Auth., No. 01CV-671, 2002 WL 398805, at *10 (E.D.N.Y. Jan. 7, 2002)) (analysis of claim for
15

To be sure, Plaintiff alleges claims of gender discrimination and hostile
work environment based on disparate treatment. A plaintiff may establish a claim
of disparate treatment under Title VII based on gender either (1) by showing that
she has suffered an adverse job action under circumstances giving rise to an
inference of discrimination on the basis of sex, or (2) by demonstrating that
harassment based on sex amounted to a hostile work environment. Price, 829 F.
Supp. 2d at 219 (quoting Feingold v. State of New York, 366 F.3d 138, 149 (2d
Cir.2004)). Here, Plaintiff’s disparate treatment claim is subsumed by her claims
of gender discrimination and hostile work environment, and will be analyzed
accordingly.
a. Gender Discrimination
To survive a motion for summary judgment, a plaintiff claiming
discrimination under Title VII and the NYHRL must satisfy the burden-shifting
test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817
(1973). See Sotomayor v. City of New York, — F. Supp. 2d —, 2012 WL
1889780, at *18 (E.D.N.Y. 2012). First, under the McDonnell Douglas
framework, a plaintiff must establish a prima facie case of gender discrimination

hostile work environment is the same under Title VII and NYHRL); Stewart v.
City of New York, No. 11-CV-6935, 2012 WL 2849779, at *5 n.1 (S.D.N.Y. Jul.
10, 2012) (citing Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.2010); Torres v.
Pisano, 116 F.3d 625, 629 (2d Cir.1997)) (NYSHRL claims of discrimination are
subject to the same analysis as Title VII claims); Caban v. Richline Group, Inc.,
No. 10-CV-559, 2012 WL 2861377, at *14 (S.D.N.Y. Jul. 10, 2012) (citing
Patane v. Clark, 508 F.3d 106, 115-17 (2d Cir.2007)) (retaliation claims are
subject to the same analysis under Title VII and NYHRL); Price v. Cushman &
Wakefield, Inc., 829 F. Supp. 2d 201, 219 n.15 (S.D.N.Y. 2011) (disparate
treatment claim under NYHRL is subject to same analysis as the identical claim
under Title VII).
16

by demonstrating that (1) she was within the protected class; (2) she was qualified
for the position; (3) she was subject to an adverse employment action; and (4) the
adverse action occurred under circumstances giving rise to an inference of
discrimination. See Leibowitz v. Cornell University, 584 F.3d 487, 498 (2d Cir.
2009). Once the plaintiff meets this burden, the burden then shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. See id. If the employer can meet its burden, the burden shifts back to the
plaintiff to demonstrate that the legitimate reasons offered by the employer were
not its true reasons, but were a pretext for discrimination. See id. (internal
quotation marks and citation omitted). “The plaintiff can sustain her burden by
proving that ‘the evidence in [her] favor, when viewed in the light most favorable
to the [her], is sufficient to sustain a reasonable finding that [the adverse
employment decision] was motivated at least in part by ... discrimination.”
Sotomayor, — F. Supp. 2d —, 2012 WL 1889780, at *19 (quoting Tomassi v.
Insignia Fin. Group, 478 F.3d 111, 114 (2d Cir.2007)).
Plaintiff argues that she was discriminated against by Defendants based on
her gender when she was subjected to an unfair schedule, was not compensated
appropriately, and was terminated.
i. Termination
Defendants argue they are entitled to summary judgment on Plaintiff’s
gender discrimination claim as to her termination because Plaintiff cannot meet
her initial burden to establish the fourth element of this claim, which is that
Plaintiff was terminated under circumstances giving rise to an inference of

17

discrimination.7 Defendants argue that (1) because DeFeo is the same person that
both promoted and terminated Plaintiff, an invidious motivation may not be
imputed to him; (2) DeFeo based his decision to terminate Plaintiff on information
given to him by Oakes and Hatch, neither of whom Plaintiff claims discriminated
against her; (3) Plaintiff cannot show that a similarly situated male store manager
was treated more favorably; and (4) Plaintiff cannot show that anyone at Walmart
ever said anything derogatory to her about her gender.
Defendants also argue that even if Plaintiff can establish a prima facie case
of gender discrimination, they have met their burden to articulate legitimate, nondiscriminatory reasons for Plaintiff’s termination, and Plaintiff cannot show that
these reasons are a pretext for discrimination.
Same Actor Inference
Regarding Defendants’ argument that they are entitled to the “same actor

7

Defendants apparently do not dispute that Plaintiff is a member of a protected
class or that she was qualified for her position. They do dispute Plaintiff’s claim
that she was terminated under circumstances giving rise to an inference of
discrimination. Because Plaintiff was disciplined, but not terminated, for her
failure to follow company policy in promoting an hourly associate to a department
manager position in 2006, Defendants argue, Plaintiff cannot rely on same in
support of her discrimination claim. Plaintiff does not dispute this argument
anywhere in her papers. Further, it is clear that “an employee does not suffer a
materially adverse employment change in the terms and conditions of employment
where the employer merely enforces its preexisting disciplinary policies in a
reasonable manner.” Rozenfeld v. Department of Design & Const. of City of
New York, — F. Supp. 2d —, 2012 WL 2872157, at *9 (E.D.N.Y. 2012) (quoting
Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006). Accordingly, the court need
not, and will not, discuss or consider the details of the aforementioned 2006
discipline of Plaintiff by Defendants.

18

inference,” while it is true that “where the person who made the decision to fire
was the same person who made the decision to hire, it is difficult to impute to
[him] an invidious motivation that would be inconsistent with the decision to
hire[,]” Cordell v. Verizon Communications, Inc., 331 F. App’x 56, 58 (2d Cir.
2009) (quoting Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000)), here there
is a question of fact as to whether DeFeo promoted Plaintiff to store manager.
Accordingly, this is not an appropriate inference for the court to consider on
summary judgment.
Discriminatory Animus of Investigators
Next, Plaintiff does not dispute Defendants’ argument that she has failed to
establish discriminatory intent on behalf of DeFeo, since he relied on the results of
investigations by Oakes and Hatch, both of whom Plaintiff testified did not have
any discriminatory bias against her. See DeJohn Dep., at 91. Defendants cite
caselaw in support of this argument, wherein a court concluded that the plaintiff
failed to establish discriminatory bias against his employer, where the employer
relied on the results of an investigation to terminate the plaintiff’s employment,
and the plaintiff did not allege any discriminatory animus on behalf of the
investigator. See Octobre v. Radio Shack Corp., No. 07-CV-3311, 2010 WL
850189, at *9 (S.D.N.Y. Mar. 11, 2010) (finding that an employer may rely on
even erroneous information in making employment decisions, so long as it does so
in good faith). While not alone dispositive of Plaintiff’s discrimination claim, the
fact that DeFeo took an adverse employment action against Plaintiff based on the
results of investigations by Oakes and Hatch is relevant to establish a lack of
discriminatory intent on his part.

19

Treatment of Similarly Situated Male Managers
Defendants also argue that Plaintiff fails to establish that a similarly situated
male manager was treated more favorably than her. Plaintiff disputes this
argument. The parties agree that in order for Plaintiff to establish the fourth
element of her prima facie case of gender discrimination based on disparate
treatment, she “must show that she was treated differently from similarly situated
males.” Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997)
(citation omitted). The issue of whether fellow employees are similarly situated is
somewhat strict. See Brown v. Middaugh, 41 F. Supp. 2d 172, 184 (N.D.N.Y.
1999). To be similarly situated, the individuals with whom plaintiff attempts to
compare herself must be similarly situated in all material respects. See Shumway,
118 F.3d at 64. The individuals “must have reported to the same supervisor as the
plaintiff, must have been subject to the same standards governing performance
evaluation and discipline, and must have engaged in conduct similar to the
plaintiff’s, without such differentiating or mitigating circumstances that would
distinguish their conduct or the appropriate discipline for it.” Brown, 41 F. Supp
.2d at 184. See also Aiello v. Stamford Hosp., No. 09-CV-1161, 2011 WL
3439459, at *15 (D. Conn. Aug. 8, 2011).
Defendants argue that there is no evidence in the record that any of their
male employees were terminated under the circumstances giving rise to Plaintiff’s
termination, including failing to act on a report of sexual harassment; allowing
CFTs to be broken up into increments of $100; using poor business judgment by
disposing of a company asset; and failing to properly account for vending machine
income. Plaintiff argues that she was terminated for failure to immediately
investigate a sexual harassment claim against one of her assistant managers, when
20

Walmart failed to immediately investigate her claims of discrimination after she
was terminated. Plaintiff also points out that a male manager that was demoted for
selling a television to a contractor at a significant discount, but then later promoted
to store manager, when she was terminated for selling the stand mixer for $200.
See DeJohn Aff., ¶ 33.
Plaintiff further identifies disciplinary action taken against several male
managers, none of whom were terminated as a result. By affidavit, Plaintiff
alleges that a male manager was promoted to store manager in Rome, New York
after having forged an associate evaluation. See DeJohn Aff. at ¶ 17. Plaintiff
alleges that another manager was given a Decision Day Coaching for
inappropriate conduct, failing to follow the open door communications policy and
disrespect of individuals. Plaintiff alleges that before this coaching was to expire,
DeFeo and Hatch decreased this manager’s coaching level by one step, and one
hour after this decrease, instituted another Decision Making Day Coaching for
poor business judgment, which Plaintiff alleges should have been a termination
had his previous Decision Making Day Coaching not been decreased one level.
See id. ¶ 1. The circumstances surrounding this manager’s coaching for poor
business judgment were that he allowed employees to work for many months
outside of their job code. See Ex. S to Ciotoli Aff. DeFeo also testified regarding
disciplinary action taken against several male managers, who were never
terminated: verbal coaching for failing to meet deadlines associated with an
inventory program; verbal coaching for poor inventory control and failure to keep
shopping carts stacked in the store; and verbal coaching for work safety issues.
Another male manager received a verbal coaching for poor business judgment due
to sanitation issues in the deli and a written coaching for allowing assistant
21

managers to take meal breaks either too early or too late. Finally, Plaintiff
identified a male manager who received a Decision Making Day Coaching for use
of profanity, inappropriate conduct and lack of respect for individuals due to his
behavior during closed door meetings with other managers. See DeFeo Dep., 237248; Ex. S to Ciotoli Aff.
Defendants counter that none of the male managers identified by Plaintiff
are similarly situated to her in that each of them was either not disciplined by
DeFeo, not disciplined for integrity issues, as was Plaintiff, and/or not disciplined
for multiple issues, as was Plaintiff. Moreover, Defendants note that there was a
male manager, Dan Snelling, who was terminated by DeFeo because of an
integrity issue. See Supp. Decl. of Elizabeth Hatch, Feb. 8, 2012, ¶ 2, Dkt. No.
44-3 (“Hatch Supp. Decl.”). According to Mr. Snelling’s exit interview
paperwork, he was terminated and labeled “non-hireable” by DeFeo for falsely
reporting that he had interviewed three associates . See Ex. A to Hatch Supp.
Decl.
To be sure, viewing the evidence in a light most favorable to Plaintiff, there
is a factual dispute regarding whether she knew, in August 2008, that she should
not record CFTs in excess of $100 in increments of $100 or less, and there is also
a factual dispute as to whether Plaintiff was aware that cash from the vending
machines was not being deposited into the appropriate account. However, it is
undisputed that Plaintiff failed to follow Walmart policy to investigate a report of
sexual harassment against an assistant manager in her store. It is true that Plaintiff
first learned of the alleged harassment during non-working hours, and
appropriately directed the person making the report to contact Plaintiff, or have the
employee alleged to have been harassed contact Plaintiff, during work hours.
22

However, there is no dispute that Plaintiff was required to investigate or report the
allegation of sexual harassment once she returned to work but failed to do so.
Also, it is undisputed that Plaintiff sold Walmart equipment without first assessing
its value. While there is a factual dispute about the value of the equipment, there
is no dispute that Plaintiff failed to assess its value before selling it, and did so
without notifying DeFeo. None of the male managers who were disciplined
engaged in similar behavior, and therefore are not similarly situated in all material
respects. Therefore, Plaintiff is unable to establish a fact question that she was
terminated under circumstances giving rise to an inference of discrimination on
this basis.
Derogatory Treatment Based on Gender
Finally, Defendants argue, Plaintiff cannot establish that she was
terminated under circumstances giving rise to an inference of discrimination
because no one at Walmart said anything derogatory to Plaintiff based on her
gender. The only incident Plaintiff identifies is the alleged use of the term “you
guys” directed at Plaintiff and her male colleagues during a manager meeting led
by Mr. Santilli, regarding which Plaintiff complained to DeFeo. First, the term
“guys” as used in this context is commonly known to refer to persons of either sex
and therefore, could not be deemed discriminatory. Nonetheless, DeFeo acted on
Plaintiff’s complaint by immediately advising Santilli to never use the term “guys”
again to address the group of managers in his market. Accordingly, Plaintiff is
unable to establish a fact question that she was terminated under circumstances
giving rise to an inference of discrimination on this basis.
For the aforementioned reasons, Plaintiff is unable to identify a question of
fact regarding any element of her gender discrimination claim based on her
23

termination, and therefore is unable to meet her burden to establish a prima facie
claim of gender discrimination on that basis.
Even assuming Plaintiff could meet her burden to establish a prima facie
case of gender discrimination, Defendants have met their burden to articulate
legitimate, non-discriminatory reasons for Plaintiff’s termination: Plaintiff failed
to report a claim of sexual harassment in accordance with Walmart Policy, and
Plaintiff failed to obtain the requisite approval before disposing of a Walmart
asset. Plaintiff argues that the court should infer discrimination from the falsity of
Defendants’ reasons for Plaintiff’s termination. However, for the reasons stated
above, Defendants have articulated legitimate reasons for Plaintiff’s termination
that are non-discriminatory. Plaintiff is unable to raise any issues of fact to
support a conclusion that such reason is a pretext for discrimination, because the
record, viewed in a light most favorable to Plaintiff, does not sustain a reasonable
finding that her termination was motivated in part by discrimination. Plaintiff is
unable to identify any evidence to support her allegation that she was
discriminated based on her gender. Accordingly, Defendants are entitled to
summary judgment on Plaintiff’s claims of gender discrimination regarding her
termination.
ii. Schedule Change
Plaintiff also claims that Defendants discriminated against her based on her
gender by subjecting her to an unfair work schedule. Plaintiff alleges that the
schedule change negatively impacted female managers, especially those with
children. However, the record shows that Plaintiff admits this schedule change
impacted both men and women, and it is undisputed that DeFeo reverted to the
fixed schedule after the majority of managers in his market complained about it.
24

Finally, Plaintiff fails to identify how the schedule change effected her more
negatively than her male counterparts. Accordingly, Defendants are entitled to
summary judgment on Plaintiff’s disparate treatment gender discrimination claims
regarding the schedule change.
iii. Compensation
Finally, Plaintiff claims that she was discriminated against by Defendants
based on her gender by failing to compensate her in the same manner as her male
counterparts.
Defendants first argue that they are entitled to summary judgment on
Plaintiff’s compensation claim, whether pursuant to Title VII, NYHRL or the
EPA, because it is barred by the applicable statute of limitations and because
Plaintiff has proffered no evidence that she was paid less than similarly situated
store managers.
Plaintiff counters that her compensation claim is timely under a continuing
violation theory. Plaintiff’s argument that a continuing violation theory applies in
deciding whether her compensation claims are barred by the statute of limitations
is not supported by law. The Court of Appeals for the Second Circuit has held that
payment of unequal compensation under the EPA does not constitute a continuing
violation as it is “fundamentally unlike other claims of ongoing discriminatory
treatment because it involves a series of discrete, individual wrongs rather than a
single and indivisible course of wrongful action.” Pollis v. New Sch. for Soc.
Research, 132 F.3d 115, 119 (2d Cir. 1997). See also Calvello v. Electronic Data
Sys., No. 00-CV-800, 2004 WL 941809, at *2 (W.D.N.Y. Apr. 15, 2004); Fox v.
CUNY, No. 94-CV-4398, 1998 WL 273049, at *3 (S.D.N.Y. May 27, 1998).
Courts in this circuit have also applied that reasoning in Title VII discrimination
25

claims for disparate compensation. See Kearney v. ABN Amro, Inc., No. 04-CV6885, 2006 WL 2354819, at *3 (S.D.N.Y. Aug. 10, 2006); Quarless v. BronxLebanon Hosp. Ctr., 228 F. Supp. 2d 377, 382 (S.D.N.Y. 2002); Calvello, 2004
WL 941809, at *2; Fox, 1998 WL 273049, at *3. Accordingly, the court will not
consider a continuing violation theory when deciding whether Plaintiff’s
compensation claims are time-barred.
Claims are timely under Title VII if an administrative complaint is filed
within 300 days of the alleged discriminatory act, and a judicial action is filed
within 90 days of receipt of a right-to-sue letter by the administrative body. See
Ruggerio v. Dynamic Elec. Sys. Inc., No. 12-CV-100, 2012 WL 3043102, at *6
(E.D.N.Y. Jul. 25, 2012) (citing 42 U.S.C. § 2000e–5(e)–(f)). Under NYHRL,
however, the limitations period runs for three years from the date on which an
action asserting NYHRL violations is filed, but this limitations period is tolled for
the period between the filing of an administrative charge and the issuance of a
right-to-sue letter. See Sloth v. Constellation Brands, Inc., — F. Supp. 2d —,
2012 WL 2090079, at *10 (W.D.N.Y. 2012) (citing N.Y.C.P.L.R. § 214(2)
(McKinneys 2008)). Claims under the EPA are timely if filed within two years, or
three years for willful violations. See Morales v. City of New York Dep’t of
Juvenile Justice, No. 10-CV-829, 2012 WL 180879, at *7 (S.D.N.Y. Jan. 23,
2012.) (citing 29 U.S.C. § 255(a)).
Here, Plaintiff’s administrative complaint was filed on November 7, 2008,
her right-to-sue letter was issued on September 1, 2009 and this action was
commenced on November 24, 2009. The issue of when Plaintiff’s claim accrued,
however, is not known from the current record, although presumably it cannot
have been before the conclusion of the 2007 fiscal year, which is January 31,
26

2007, as Plaintiff’s challenged bonus would have been based on profits and
revenues for that year. Therefore, Plaintiff’s NYHRL claim, which carries a threeyear statute of limitations that was tolled between November 7, 2008 and
September 1, 2009, is clearly timely. Plaintiff’s Title VII claim, however, must
have accrued no earlier than January 12, 2008 in order for it to be considered
timely, and Plaintiff’s EPA claim must have accrued no earlier than November 24,
2007, or November 24, 2006 if the violation was willful. Because there are factual
questions, on which the record is silent, regarding when Plaintiff’s compensation
claim accrues, including when Plaintiff received her bonus pay for fiscal year
ending January 31, 2007, and when she should have known that a claim arose, the
court cannot determine as a matter of law whether Plaintiff’s EPA claim or her
Title VII claim regarding her compensation are timely. Moreover, neither party
briefed the issue of whether the alleged EPA violation was willful under that
statute.
Defendants argue that regardless of the timeliness issue, they are entitled to
summary judgment on Plaintiff’s compensation claims because she has proffered
no evidence that she was paid less than similarly situated store managers.
Specifically, Defendants argue that because Plaintiff has no knowledge of other
store managers’ compensation or why they received the figures they did, she
cannot prevail on her compensation claims. Nonetheless, the record reflects that
male store managers in DeFeo’s market did not experience the same shortfall in
bonus compensation as did Plaintiff. DeFeo testified that Plaintiff was the only
store manager in his market who was short on her bonus, and that none of the male
managers experienced a shortfall. Moreover, Plaintiff complained about the
unfairness of the new compensation structure as early as April of 2005. DeFeo
27

testified that he was aware Plaintiff had been complaining that she was short on a
bonus. It was not until after Plaintiff was fired and she again complained about
her bonus shortfall, that the matter was investigated and it was discovered that
Plaintiff was due approximately $12,000 in bonus compensation for fiscal year
ending January 31, 2007. Therefore, Plaintiff has identified material fact issues
regarding whether Defendants’ intentionally discriminated against her based on
her gender regarding her bonus compensation.
Accordingly, Defendants’ motion for summary judgment is denied
regarding Plaintiff’s Title VII and NYHRL discrimination claims based on her
compensation. The merits of Plaintiff’s EPA claim are discussed infra, at 33.
b. Hostile Work Environment
Plaintiff also alleges she was subjected to a hostile work environment by
Walmart. To be sure, the prohibition of discrimination under both Title VII and
the NYHRL “is not limited to economic or tangible discrimination. The phrase
terms, conditions, or privileges of employment evinces a congressional intent to
strike at the entire spectrum of disparate treatment of men and women in
employment, which includes requiring people to work in a discriminatorily hostile
or abusive environment.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 546 -548
(2d Cir.2010) (citing 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510
U.S. 17, 21, 114 S. Ct. 367 (1993)) (quotations omitted). A hostile work
environment is created “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victims’ employment.” Id. (citing Harris, 510 U.S. at 21, 114 S.
Ct. 367) (quotations omitted). Where such an environment has been created,
“Title VII is violated so long as there is a basis for imputing the conduct that
28

created the hostile environment to the employer.” Id. “[A]n employer is presumed
to be responsible where the perpetrator of the harassment was the plaintiff’s
supervisor.” Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.
Ct. 2257 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct.
2275 (1998)).
Whether an environment is hostile or abusive can be determined only by
looking at all the circumstances. Kaytor, 609 F.3d at 547 (citing Harris, 510 U.S.
at 23, 114 S. Ct. 367. Such circumstances “may include 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.” Id. “Isolated incidents generally will not
suffice to establish a hostile work environment unless they are extraordinarily
severe.” Id.
“It is axiomatic that to prevail on a claim of hostile work environment based
on gender discrimination, the plaintiff must establish that the abuse was based on
her gender.” Kaytor, 609 F.3d at 547.
Facially neutral incidents may be included among the
totality of the circumstances that courts consider in any
hostile work environment claim, so long as a reasonable
fact-finder could conclude that they were, in fact, based on
sex. But this requires some circumstantial or other basis
for inferring that incidents sex-neutral on their face were in
fact discriminatory. Circumstantial evidence that facially
sex-neutral incidents were part of a pattern of
discrimination on the basis of gender may consist of
evidence that the same individual engaged in multiple acts
of harassment, some overtly sexual and some not.
Id. at 547-548 (citations and quotations omitted).
29

Defendants argue that they are entitled to summary judgment on Plaintiff’s
hostile work environment claim because Plaintiff is unable to establish that she
was subject to conduct that was severe or pervasive enough to constitute
harassment nor can Plaintiff establish that she was subject to discriminatory
conduct based on her gender. Plaintiff counters that Defendants actions “affected
the ‘terms, conditions, or privileges’ of [her] employment, including pay issues
(bonus), scheduling, discipline, enforcement of company policy, lack of training,
responding to complaints, showing favoritism to male store managers and holding
Plaintiff to a different standard than the male store managers.” Pl.’s Mem. of Law,
at 27, Dkt. No. 40. However, Plaintiff fails to specifically identify the
“discriminatory intimidation, ridicule, and insult” that she alleges is severe or
pervasive, instead referring the court to the entire record. A review of the record
to identify “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,” reveals that in the
first instance, there is no evidence to establish any physically threatening conduct
on behalf of Defendants. Moreover, the only evidence of intimidation, ridicule or
insult, viewed in a light most favorable to Plaintiff, are Santilli’s referral to
Plaintiff and her male co-workers as “guys,” DeFeo singling Plaintiff out during a
meeting with other managers by telling her alone not to complain about the subject
schedule change, and DeFeo saying to Plaintiff “where is the duct tape so I do not
have to listen to you when we tour the store,” see Pl.’s Aff., ¶ 8. No reasonable
juror could conclude that those incidents rise to the level of severe or pervasive
conduct. Accordingly, Defendants’ motion for summary judgment is granted
regarding Plaintiff’s hostile work environment claims.

30

c. Retaliation
Plaintiff next alleges a claim for retaliation. In order to establish a claim for
retaliation under Title VII and the NYHRL, a plaintiff must prove that: (1) she was
engaged in a protected activity; (2) her employer was aware of that activity; (3)
she suffered a materially adverse action; and (4) there was a causal connection
between the protected activity and the adverse employment action. See Stewart,
2012 WL 2849779, at *9 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 126 S. Ct. 2405 (2006); Torres, 116 F.3d at 629 n.1).
Defendants argue that they are entitled to summary judgment on Plaintiff’s
retaliation claim because she failed to exhaust administrative remedies. Even if
her retaliation claim is exhausted, Defendants argue, they are still entitled to
summary judgment because (1) there is sparse evidence in the record to support
Plaintiff’s argument that her complaints were based on a protected category, i.e.,
here, gender, and (2) Plaintiff cannot establish a causal connection between her
complaints and her termination.
“A district court only has jurisdiction to hear Title VII claims that either are
included in an EEOC charge or are based on conduct subsequent to the EEOC
charge which is ‘reasonably related’ to that alleged in the EEOC charge.” Findlay
v. Reynolds Metals Co., 82 F. Supp. 2d 27, 32 (N.D.N.Y. 200) (citing Butts v. City
of New York Dep’t of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).
“Courts generally have no jurisdiction to hear claims not alleged in the employee’s
EEOC charge, as the purpose of the exhaustion requirement is to give the
administrative agency the opportunity to investigate, mediate, and take remedial
action.” Id. (citing Butts, 990 F.2d at 1401 (“[T]he purpose of the notice provision,
which is to encourage settlement of discrimination disputes through conciliation
31

and voluntary compliance, would be defeated if a complainant could litigate a
claim not previously presented to and investigated by the EEOC.”)) (internal
quotations and citations omitted).
Plaintiff opposes Defendants’ argument that she failed to exhaust her
retaliation claim before the DHR, arguing that (1) she appeared pro se before the
DHR and cannot be held to the same pleading standard as a party represented by
counsel would be, and (2) the DHR investigator observed that “[t]he record shows
that [Plaintiff] brought the problems she was having with management to human
resources, but was unsuccessful in having a meeting to discuss the problems.” See
Pl.’s Mem. of Law at 28-29, Dkt. No. 40, citing Ex. G to Ciotoli Aff.
Here, it is clear from the DHR report that Plaintiff did not allege that any of
the adverse action taken against her was done in retaliation for any complaints of
discrimination. Moreover, the cited observation from the DHR investigator
merely conveys that Plaintiff brought the problems she was having to the attention
of her employer’s human resources department. There is nothing in the DHR
report to indicate that Plaintiff claimed she was retaliated against by Defendants
for making that complaint. For this reason alone, the court does not have
jurisdiction to hear Plaintiff’s retaliation claim. Plaintiff’s argument that she was
somehow held to a lower standard of “pleading” when making a DHR complaint
has no basis in the law. Where, as here, a pro se plaintiff fails to allege conduct
giving rise to a Title VII claim in his or her administrative complaint, the court
lacks jurisdiction to decide such a claim. See, e.g., Falso v. Salzman Group, Inc.,
545 F. Supp. 2d, 295, 299 (W.D.N.Y. 2008).
Accordingly, Defendants’ motion for summary judgment is granted as to
Plaintiff’s retaliation claims.
32

2. EPA
Plaintiff also alleges that Walmart violated her rights under the EPA when it
willfully compensated her at a rate lower than its male employees. In order to
prove a claim of discrimination under the EPA, a plaintiff must show that (1) the
employer pays different wages to employees of the opposite sex; (2) the
employees perform equal work on jobs requiring equal skill, effort, and
responsibility; and (3) the jobs are performed under similar working conditions.
See Butler v. New York Health & Racquet Club, 768 F. Supp. 2d 516, 528-529
(S.D.N.Y. 2011) (citing Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d
Cir. 2001)). A plaintiff need not show that her job is identical to a higher paid
position, but only must show that the two positions are substantially equal in skill,
effort, and responsibility. Id.
Once a plaintiff has established the elements of her claim, the burden shifts
to the employer to prove that the pay differential is based on (1) a seniority
system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production; or (4) a differential based on any other factor other than sex.
Id. (citing 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188,
196, 94 S. Ct. 2223 (1974)).
Finally, it is important to note that in order to prove a claim under the EPA,
a plaintiff need not prove that the defendant intentionally discriminated against
her; it is sufficient that some pay differential exists. See Butler, 768 F. Supp. 2d at
529 (citing Lavin–McEleney, 239 F.3d at 483).
Here, Plaintiff has identified evidence in the record to support her claim that
male managers in her market were paid differently than she was for substantially
similar work, and Defendants have failed to meet their burden to establish that the
33

pay differential was based on a factor other than Plaintiff’s sex. For these reasons,
and for the reasons articulated above regarding Plaintiff’s Title VII and NYHRL
discrimination claims based on compensation, Defendants’ motion for summary
judgment regarding Plaintiff’s EPA claim is likewise denied.
C. NYHRL Aiding & Abetting Claim Against DeFeo
In order for a plaintiff to recover against an aider or abettor of NYHRL
violations, she must establish “(1) that she engaged in conduct protected by the
NYHRL; (2) there is a causal connection between the protected conduct and the
alleged [violations] of the NYHRL; and (3) that [the defendant] ‘actually
participated’ in the discrimination.” Beattie v. Guilderland Cent. Sch. Dist., 124
F. Supp. 2d 802, 805 (N.D.N.Y. 2000) (citations omitted). See also N.Y. EXEC.
LAW § 296.1(a) (McKinney 20). Further, a plaintiff must show that the defendant
“aided or abetted a primary violation of the NYHRL committed by another
employee or the business itself.” Jordan v. Cayuga County, No. 01-CV-1037,
2004 WL 437459, at *4 (N.D.N.Y. Feb. 9, 2004) (quoting Bennett v. Progressive
Corp., 225 F. Supp. 2d 190, 213 (N.D.N.Y. 2002) (internal quotation and
emphasis omitted)).
DeFeo argues that he is entitled to summary judgment on Plaintiff’s
NYHRL claim against him because Plaintiff cannot establish a claim of
discrimination against their employer, Walmart. Because Defendants’ motion is
granted as to Plaintiff’s NYHRL claims of hostile work environment, retaliation,
and gender discrimination based on her termination and schedule change, DeFeo is
likewise entitled to summary judgment on Plaintiff’s NYHRL aiding and abetting
claim against him on those bases. However, because questions of fact remain as to
Plaintiff’s NYHRL gender discrimination claim against Defendants based on
34

disparate compensation, Plaintiff’s NYHRL aiding and abetting claim against
DeFeo shall go forward as well. Although DeFeo alleges that the bonus shortfall
was a mistake, and attributes that mistake to the finance department, he also
admits knowing that Plaintiff had been complaining about the shortfall, but an
investigation into the matter did not commence until after Plaintiff was terminated.
Accordingly, a reasonable fact finder could determine that DeFeo aided and
abetted discrimination against Plaintiff under the NYHRL.
V. Conclusion
For the aforementioned reasons, it is hereby ORDERED that Defendants’
motion for summary judgment, see Dkt. No. 37, is GRANTED in part and
DENIED in part.
Remaining for resolution at trial are factual issues regarding Defendants’
liability on Plaintiff’s Title VII and NYHRL gender discrimination claims based
on disparate compensation as well as Plaintiff’s EPA claim, including underlying
fact questions regarding the accrual of those claims, as well as factual issues
regarding DeFeo’s liability on Plaintiff’s NYHRL aiding and abetting claims as to
Plaintiff’s allegation of gender discrimination based on disparate compensation.
The parties are strongly urged to negotiate a settlement regarding these
remaining liability issues, as well as any damages, and shall report their progress
to the court no later than thirty days from the filing of this order.
IT IS SO ORDERED.
DATED:

August 16, 2012
Syracuse, New York

35