Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP
OPINION AND ORDER re: 17 MOTION for Summary Judgment filed by Quinn Emanuel Urquhart & Sullivan, LLP. For the foregoing reasons, Defendant's motion for summary judgment is granted. This Memorandum Order resolves docket entry no. 17. The Clerk of Court is requested to enter judgment in Defendant's favor and close this case. (Signed by Judge Laura Taylor Swain on 1/3/2013) (mro)
Ii FCfRONICALLY F1LED
UNITED STATES DISTRICT COURT
SOUTHER;\[ DISTRICT OF NEW YORK
l~~:-TE FILED: JAN 0 3 2013~
No. 11 Civ. 7706 (LTS)
QUINN EMANUEL URQUHART &
OPINlON AND ORDER
LIDDLE & ROBINSON, LLP
By: James William Halter
800 Third Avenue, 8th Floor
New York, NY 10022
Counsel for Plaintiff
PROSKAUER ROSE LLP (Newark)
By: La"'Tence Roy Sandak
One Newark Center
Newark, NJ 07102
Counsel for Defendant
LAURA TAYLOR SWAIN, UNITED STATES
Kisshia Simmons-Grant ("Plaintiff') brings this action against her former
employer, the law finn Quinn Emanuel Urquhart & Sullivan, LLP ("Quinn" or "Defendant"),
asserting claims for race discrimination and retaliation under Title VII of the Civil Rights Act,
42 U.S.c. § 2000e
42 US.c. § 1981a; the New York State Human Rights Law, N.Y.
Exec. Law § 296; and the New York City Human Rights Law, N.Y.C. Admin Code § 8-107 et
seq. The gravamen of Plaintiffs discrimination claim is that, as an African American contract
attorney, she was assigned less lucrative work than other non-African American contract
attorneys retained by Quinn. The Court has jurisdiction of this matter pursuant to 42 U.S.C.
§ 2000e-5f and 28 U.S.C. §§ 1331 and 1367.
Defendant has moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. The Court has carefully considered all of the parties' submissions, and for the
following reasons, Defendant's motion is granted.
The following facts are undisputed unless otherwise noted. Plaintiff, an African
American woman, was employed as an hourly contract staff attorney by the Defendant law firm
from November 2006 until her resignation on August 5,2010. (Defs 56.1 St. 1 'I~ 6, 7,178.)
When Plaintiff worked at Quinn, contract attorneys were paid by the hour, and were only paid
Citations to the parties' S.D.N.Y. Local Civil Rule 56.1 Statements incorporate by
reference the evidence cited in those Statements.
Plaintiffs Title VII Retaliation Claim
Retaliation claims are evaluated under the same McDonnell Douglas burdenshifting framework as discrimination claims. Gorzynski v. letBlue Airways Corp., 596 F.3d 93,
110 (2d Cir. 2010). In order to establish a prima facie case of retaliation, Plaintiff must show
"( 1) that she participated in a protected activity, (2) that she suffered an adverse employment
action, and (3) that there was a causal connection between her engaging in the protected activity
and the adverse employment action." Id. A plaintiffs burden is
minimis; the court must
"detern1ine only whether proffered admissible evidence would be sufficient to permit a rational
finder of fact to infer a retaliatory motive." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010).
Under these facts, Plaintiff may show that she has suffered an adverse employment action by
prevailing on her claim of constructive discharge; she may also defeat Defendant's summary
judgment motion by adducing sufficient evidence from which a reasonable fact finder could
conclude that a reasonable employee would have been dissuaded by Quinn's actions from
making a complaint of discrimination. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006).
With respect to the first prong of Plaintiffs prima facie case, the record plainly
shows that Plaintiff engaged in a protected activity by making a complaint to the firm about
together all "non-African American" attorneys, including Asian, Hispanic and "Other"
individuals for her comparison average although her assertion is that Riegler favored
Caucasian attorneys. Plaintiff also offers a group comparison for part of 2010, but
these statistics suffer from the same lack of relevant comparator groups as the 2009
evidence. For the same reason, the statistical evidence is insufficient to raise an
inference of discrimination when offered in conjunction with Plaintiffs alleged
instances of discrete, allegedly adverse, employment actions.
QUIIi>JEMA NUELSJ _
racial discrimination by her supervisor. Although Quinn claims that Plaintiff merely made a
complaint of "favoritism," Calamari clearly understood Plaintiffs complaint to be based on
racial discrimination, and accordingly commenced an investigation.
As to the second prong, Plaintiff asserts that she was constructively discharged
when Defendant did not immediately grant her request that either she or Jennison be reassigned
from the United Guaranty project. "Constructive discharge occurs when the employer, rather
than discharging [his employee] directly, intentionally creates a work environment so intolerable
that the employee is forced to quit involuntarily," but it is not enough to show "that the working
conditions were merely difficult or unpleasant." Stroud v. New York City, 374 F. Supp. 2d 341,
350 (S.D.N.V. 2005) (internal citation and quotations omitted). Moreover, "[a]n employee who
fails to explore alternative avenues offered by her employer before concluding that resignation is
the only option cannot make out a claim of constructive discharge." Cooper v. Wyeth Ayerst
Lederle, 106 F. Supp. 2d 479, 495 (S.D.N.V. 2000).
Plaintiffs proffer is wholly inadequate to raise a fact issue as to whether Quinn
intentionally subjected her to an intolerable work environment. She has introduced evidence of a
personality conflict between co-workers, focused on a disagreement about scheduling. Plaintiffs
email complaint to Riegler centered on her conversation about scheduling issues with Jennison
on July 14,2010, and Jennison's general level of anger. She did not personally witness any of
the incidents in which Jennison allegedly yelled at other attorneys to which she refers in her
email. Working with Jennison was likely unpleasant for the Plaintiff, but it does not on this
record rise to the level of objectively intolerable. Riegler and Fogler responded promptly after
Plaintiffs complaint about her interactions with Jennison, and the next day, July 21, 2010,
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attempted to address Plaintiffs concerns within the constraints of Quinn's staffing situation. In
the July 21, 20 10, meeting, Plaintiff repeated these concerns, and stated that she did not want to
work with Jennison. Plaintiff argues that she could have switched places with another attorney,
even tfthere were no open assignments. However, she has not introduced any evidence to
contradict Riegler's statement that all of the contract attorneys were, at that time, working on
time-sensitive matters which would have been disrupted by a transfer, and that no alternative
placement was available. Riegler could not immediately transfer Plaintiff, but it is undisputed
that he offered to help resolve the scheduling conflict by taking over responsibility for
scheduling. Plaintiff tendered her resignation before this measure could be put in place, and
therefore, cannot claim constructive discharge. Quinn is entitled to summary judgment to the
extent Plaintiffs claim is premised on constructive discharge.
Plaintiff does not, however, have to demonstrate that she suffered a constructive
discharge to establish a prima facie retaliation claim. A material adverse employment action in
the retaliation context is one which would deter a reasonable employee from making or
supporting a claim of discrimination. Burlington N. and Santa Fe Ry. Co., 548 U.S. at 6S.
While "[a] retaliation plaintiff need not show that she ... suffered economic harm, severe
humiliation, or threats of violence," Spector v. Bd. of Trustees of Cmty. Tech Colleges, 316 F.
App'x IS, 21 (2d Cir. 2009), it is necessary "to separate significant from trivial harms .... An
employee's decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that all employees
experience." Burlington, 548 U.S. at 68. "Context matters," and so the Court must consider the
"patiicular circumstances" of the act. Id. at 69.
Plaintiffs evidentiary proffer is insufficient to meet this lower Burlington
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"materIally adverse" standard as well. Her account of the confliets with Jennison and the
undisputed record concerning Quilm's reaction to her complaint are insufficient, even when
viewed in the light most favorable to Plaintiff, to frame a set of conditions under which a
reasonable employee would be dissuaded from reporting an instance of discrimination.
The crux of Plaintiffs argument is that she feared for her physical safety when
she was around Jennison. Evidence of an objectively dangerous situation can, in some
circumstances, be sufficient for such a claim to survive summary judgment. See M.,., Hicks, 593
F .3d at 169-70 (when employee-plaintiff was transferred to a facility housing a troubled youth
who had previously threatened violence against the plaintiffs family, and another employee
plaintiff was scheduled to work shifts alone in a facility when such a practice was known to be
hazardous, the court found that these specific facts established that the situations were
objectively dangerous). However, in contrast to the objectively dangerous situations in Hicks,
Plaintiff here has not shown that her fear of Jennison was objectively reasonable, or that a
reasonable employee would be dissuaded from reporting discrimination if her supervisors
provided her with suggestions and formulated measures to ameliorate the situation in lieu of an
immediate transfer. While she may have been uncomfortable when Jennison confronted her
about his schedule, Plaintiff has proffered no evidence that Jennison was prone to violence or had
a history of violent confrontations, other than her conc1usory statements regarding hearsay
allegations of verbal abuse by other workers. Although Jennison admitted to once banging on the
desk of a sleeping attorney, this does not constitute evidence that he represented a danger to his
co-workers. Furthermore, Riegler and Fogler showed a willingness to take practical steps to
separate her from Jennison. Accordingly, PlaintifIhas not established a prima facie case of
retaliation, and Quinn is entitled as a matter of law to summary judgment dismissing Plaintiffs
Title VII retaliation claim in its entirety.
Plaintiffs State Law Claims
Because the Court will dismiss all of Plaintiff s claims of which it has original
jurisdiction, it declines to exercise supplemental jurisdiction over Plaintiffs claims under the
New York State and New York City Human Rights Laws. See Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988) (noting that "judicial economy, convenience, fairness, and comitywill point toward declining to exercise jurisdiction over the remaining state-law claims" when
federal-law claims are eliminated before trial); Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118,
122 (2d Cir. 2006) (holding the exercise of supplemental jurisdiction inappropriate if federal law
claims are dismissed before trial).
For the foregoing reasons, Defendant's motion for summary judgment is granted.
This Memorandum Order resolves docket entry no. 17. The Clerk of Court is requested to enter
judgment in Defendant's favor and close this case.
Dated: New York, New York
January 3, 2013
United States District Judge
QUINNE\1A NI;ELSJ. WPD
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