Dineley v. Coach, Inc.

Filing 50

OPINION & ORDER......Coachs motion for summary judgment is granted in part. Dineley was exempt from the overtime provisions of the FLSA and NYLL under the administrative exemption. Summary judgment is also granted on Dineleys constructive discharge claim. Triable issues of fact remain as to Dineleys claim of hostile work environment discrimination under the ADA and NYCHRL. (Signed by Judge Denise L. Cote on 7/11/2017) (gr)

Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 1 of 22

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
:
DANIELLE DINELEY,
:
Plaintiff,
:
:
-v:
:
COACH, INC.,
:
:
Defendant.
:
:
---------------------------------------X

16cv3197 (DLC)
OPINION & ORDER

Appearances:
For Plaintiff:
Casimir Joseph Wolnowski
Phillips & Associates, PLLC
45 Broadway, Suite 620
New York, NY 10006
For Defendant:
Jonathan Stoler
Lindsay Colvin Stone
Sheppard, Mullin, Richter & Hampton, LLP
30 Rockefeller Plaza, 24th Fl.
New York, NY 10112
DENISE COTE, District Judge:
Plaintiff Danielle Dineley (“Dineley”) was formerly employed
by defendant Coach, Inc. (“Coach”) as an Executive Assistant.
Dineley seeks back pay for hours worked in excess of forty hours
per workweek, alleging violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law
(“NYLL”) Articles 6 & 9.

Dineley also alleges she was

discriminated against and subjected to a hostile work environment
and constructively terminated based on her perceived or actual
disability in violation of the Americans with Disabilities Act of

Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 2 of 22

1990, 42 U.S.C. § 12101, et seq. (“ADA”) and the New York City
Human Rights Law, as codified in the Administrative Code of the
City of New York § 8–107 et seq. (“NYCHRL”).
Coach moved for summary judgment on December 16, 2016,
arguing that Dineley was properly classified as exempt from the
FLSA and the NYLL, and that Dineley cannot establish that she was
subject to a hostile work environment or constructively
discharged.

For the reasons that follow, Coach’s motion for

summary judgment is granted in part.
BACKGROUND
The following describes the evidence which is either
undisputed or taken in the light most favorable to the plaintiff,
unless otherwise noted.

Coach is a New York design house

headquartered in New York City.

During Dineley’s employment,

Coach had approximately 17,000 employees worldwide.

Dineley was

employed as an Executive Assistant at Coach from January 18,
2011, until she resigned her employment, effective September 4,
2015.

Dineley was classified as an overtime exempt employee and

thus was not paid overtime during her employment at Coach.

Coach

does not dispute that Dineley worked more than 40 hours a week,
or her accounting of such hours.
Plaintiff served from January 18, 2011 to November 4, 2013
as the Executive Assistant for a Vice President of Human
Resources and the second most senior member of the HR department
(the “HR VP”), and a Senior Director of Human Resources (the
2

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“Senior Director”).

Dineley’s starting base salary was $65,000,

and had increased to $75,850 by November 3, 2013, when she
transferred to work in the Design Department.
Dineley’s job duties in HR were to support the HR VP in
overall management and coordination of team activities, manage
schedules for the HR VP and Senior Director, arrange travel and
prepare travel expense reports, answer telephone calls, plan and
coordinate meetings, and participate in human resources meetings
and on special project teams.

Dineley served as a gatekeeper for

emails, calls, and meeting requests for the HR VP and Senior
Director.

She developed organizational/filing systems for the

Senior Director.

She independently learned Coach’s personnel

policies in order to better advise her co-workers on Coach’s
policies.

Dineley was “a point person for general HR questions,

especially for other [Executive Assistants] who usually reach[ed]
out to [her] first.”

She also helped train and “on-board” new

assistants at Coach.

In her self-evaluations of her performance

in 2011 and 2012, Dineley stated that she also managed temporary
employees who staffed the seasonal Coach Sample Sale.

On her

resume Dineley stated that during this time she handled
confidential and highly sensitive information on a daily basis.
On November 4, 2013, Dineley became an Executive Assistant
in Coach’s Design Department.

Her salary had increased to

$92,000 when she resigned from Coach.

In addition, Dineley

received annual bonuses of up to $10,000 each year she worked at
3

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Coach.
Dineley was initially assigned to support two senior
executives within the Design Department.

In about January 2014,

Dineley was assigned to support only Coach’s Vice President of
Design, the second most senior executive in the Design Department
(the “Design VP”). 1

Dineley managed the Design VP’s schedule and

fielded incoming emails and calls, and helped prepare travel
arrangements.

Dineley was required to use her judgment to decide

when a matter was sufficiently important that she needed to
interrupt the Design VP during meetings.

As the Design VP’s

Executive Assistant, Dineley was responsible for scheduling and
coordinating the Design Department’s Design Time meetings, an
important meeting at which designers would discuss their
projects.

She also helped manage and improve the Design

Department’s sample sales and made sure that the Design
Department’s sales at the sample sale were properly credited to
the Department.

Dineley was also responsible for monitoring and

reordering the Design Department’s supplies.

She had authority

to approve expense reimbursement requests for under $100, and
requests for more than $100 that she felt did not require any
further review.
In her role as Executive Assistant, Dineley was responsible
for selecting and interviewing applicants for full-time and
The Design VP reported to Coach’s Executive Creative Director,
who in turn reported to Coach’s CEO.
1

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temporary administrative assistants and executive assistants, as
well as making hiring recommendations.

The designers and

executives only met with those candidates that she recommended.
Dineley supervised and delegated assignments to two
administrative assistants.

The administrative assistants were

classified as non-exempt employees and were paid base salaries of
approximately half that of Dineley’s and received smaller
bonuses.

The two administrative assistant’s primary duties were

to support multiple, less senior members of the design team, as
Dineley supported the Design VP.

Dineley’s self-evaluations of

her performance, and her resume, stated that she managed the two
administrative assistants, as do most contemporaneous company
documents. 2

Dineley drafted the assistants’ performance reviews

based on her own observations and feedback from the designers,
and followed up by holding one-on-one meetings with the
assistants to review their ratings.

She tracked the assistants’

hours and had some role in deciding when they could take
vacation.

In one instance, Dineley received complaints from

designers about one of the assistants, and at the Design VP’s
direction worked with HR to prepare a “note to file.”
had a one-one-one meeting with the assistant.

Dineley

Per the Design

VP’s instruction, after the disciplinary incident, Dineley
Dineley stated in her deposition that she didn’t “actually
ha[ve] any managerial authority over” the two administrative
assistants. Dineley avers in opposition to this motion that she
“delegated responsibilities and projects to them based on what
was told to [her] by the designers or [the Design VP].”
5
2

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required that the two assistants check in with Dineley each
morning when they arrived, had fifteen minute “touch base”
meetings with them each morning, and a thirty minute meeting once
a month to discuss long-term projects and accomplishments.
Dinely experienced difficulties working for the Design VP
nearly from the start, which was months before she first advised
Coach of her disability.

In April 2014, Dineley met with an HR

Representative to discuss the mid-year performance review Dineley
had received from the Design VP, and reported that she was having
a “hard time” working with the Design VP.

Dineley reported to

the HR Representative that the Design VP gave conflicting
directions and took her stress out on Dineley.

From at least

April 2014, the Design VP required Dineley to interrupt her
during meetings to relay important updates, and tell her each day
when she was leaving the office for the day.

The Design VP also

required Dineley to meet with her each morning to review the
day’s schedule and to create an end-of-day report for the Design
VP’s review.

Dineley felt that the Design VP “micro-managed” her

work.
On October 6, 2014, the plaintiff informed the Design VP
that she needed to take a medical leave of absence to seek
inpatient treatment for alcoholism.

This was the first time she

informed anyone at Coach about her alcoholism, and the first time
she requested any accommodation from Coach related to this issue.
The Design VP granted Dineley’s request for leave.
6

After

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interviewing and recommending a temporary replacement, Dineley
began her leave of absence on October 12.
Dineley returned to work on November 16.

Dineley returned

to the same position supporting the Design VP and with the same
salary and benefits.

Beginning in mid-December, Dineley asked

the Design VP for permission to leave the office by 6:00 p.m.
four days a week in order to attend outpatient treatment
services.

The Design VP granted Dineley’s request.

In March

2015, Dineley’s outpatient schedule was reduced to two days a
week, for which she asked and was granted permission to leave the
office by 6:00 p.m.

The Design VP continued to require Dineley

to notify her when she was leaving the office for the day,
including during meetings with top executives, but did not
require her to state the reason.
According to Dineley, after she returned to work from her
leave of absence, the Design VP subjected her to “general
mistreatment” and was “nasty to her all the time.”

It was as

though the Design VP “suddenly just decided she didn’t like
[Dineley] anymore and wanted to make [her] as uncomfortable as
possible.”

While Dineley acknowledges that the Design VP was

difficult to work for before she took leave, she asserts that the
Design VP’s mistreatment of her increased after the leave.
According to Dineley, the Design VP would frequently “criticize
and yell at [her].”

According to Dineley, “it started happening

a couple times a week [and] [a]s time went on, it became more and
7

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more frequent until toward the end it was basically like
[Dineley] couldn’t ever do anything right in her eyes and she
made that very clear.”

The Design VP said things to Dineley such

as, “Are you okay?”; “Is everything all right”; Is there anything
going on with you?”; and “You’re letting everything fall apart.”
Dineley also alleges that the Design VP once called her “stupid.”
Dineley reports that the day after an evening for which she had
to leave early for treatment, she addressed the Design VP to the
effect of “Oh, I hope you weren’t here too late last night,” to
which the Design VP responded by saying, “Yes, we were here very
late.

A lot of people have to work late at night.

all get to leave early like you.”

They don’t

On another occasion the Design

VP told her “this isn’t a 9 to 5 job.”

According to Dineley,

these types of comments were “never” made to her before the
leave, and they were made in a condescending tone.

Dineley

understood all of these comments to be in relation to her leave
of absence, need for accommodation, and substance abuse problems
based upon “[t]he way she said it to [Dineley] . . . [her] tone,
her body language, [and] the way she looked at [Dineley] while
she said it.”

For example, Dineley believes that when the Design

VP asked if everything was all right, she was implying that
Dineley was drinking again.

When the Design VP mentioned

personal issues, Dineley believes she was referring to her
addiction issues and need for accomodation.
On August 21, 2015, the Design VP gave Dineley her annual
8

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performance evaluation with an overall rating of “solid
performance.”

During Dineley’s 2015 performance review the

Design VP purportedly said “you have a lot of personal issues and
who knows how much of that has had an effect on your performance
problems.”

Dineley viewed this as a poor performance review.

That day Dineley notified the Design VP of her intent to resign.
During her final two weeks, Dineley participated in an exit
interview.

She stated that she was resigning because she was

dissatisfied with her 2015 performance review and because she no
longer wanted to work for the Design VP.

Dineley’s employment at

Coach ended two weeks later on September 4, 2015.
DISCUSSION
Defendants move for summary judgment as to Dineley’s claims
for overtime pay and for discrimination on the basis of
disability.

Summary judgment may not be granted unless all of

the submissions taken together “show[] 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).

“Summary

judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.
9

Eastman Kodak Co.

Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 10 of 22

v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink v.
Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).

If the moving

party makes this initial showing, the burden then shifts to the
opposing party to establish a genuine dispute of material fact.
El-Nahal v. Yassky, 835 F.3d 248, 256 (2d Cir. 2016).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, “the party opposing
summary judgment may not merely rest on the allegations or
denials of his pleading; rather his response, by affidavits or
otherwise as provided in [Rule 56], must set forth specific facts
demonstrating that there is a genuine issue for trial.”

Wright

v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation omitted).
“[C]onclusory statements, conjecture, and inadmissible evidence
are insufficient to defeat summary judgment,” Ridinger v. Dow
Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (citation
omitted), as is “mere speculation or conjecture as to the true
nature of the facts.”

Hicks v. Baines, 593 F.3d 159, 166 (2d

Cir. 2010) (citation omitted).

“An issue of fact is genuine and

material if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Cross Commerce Media,

Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016).

The

court must draw all inferences and all ambiguities in a light
most favorable to the nonmoving party.

Sista v. CDC Ixis N. Am.,

Inc., 445 F.3d 161, 169 (2d Cir. 2006); United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).

In cases involving claims of
10

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employment discrimination there is a “need for caution about
granting summary judgment to an employer in a discrimination case
where . . . the merits turn on a dispute as to the employer’s
intent.”

Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015)

(citation omitted).
A.

Administrative Exemption

The Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§ 201–
219, protects “the minimum standard of living necessary for
health, efficiency, and general well-being of workers.”
Id. § 202(a). 3

The FLSA generally provides that employees be

paid time-and-a-half for hours worked in excess of forty in a
week.

Id. § 207(a)(1).

Specific classes of employees, however,

are exempted from this general provision.

Id. § 213(a). 4

“Because the FLSA is a remedial act, its exemptions . . . are to
be narrowly construed. . . .

Accordingly, an employer bears the

The NYLL explicitly incorporates certain provisions of the
FLSA, and thus similar analyses govern both the federal law and
state law claims here. See, e.g., Zheng v. Liberty Apparel Co.,
355 F.3d 61, 78 (2d Cir. 2003). For simplicity, this Opinion
proceeds by discussing the FLSA only.
3

The NYLL’s administrative employee exemption is interpreted
similarly to the FLSA exemption, except that: (1) the minimum
salary required to qualify for the exemption is $675 per week;
(2) the employee is required to “customarily and regularly”
exercise discretion and independent judgment (but not with
respect to “matters of significance”); and (3) an employee must
“regularly and directly assist[] an employer, or an employee
employed in a bona fide executive or administrative capacity
(e.g., employment as an administrative assistant), or . . .
perform[] under only general supervision work along specialized
or technical lines requiring special training, experience, or
knowledge.” 12 NYCRR § 142-2.14.
4

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burden of proving that its employees fall within an exempted
category of the [FLSA].”

Ramos v. Baldor Specialty Foods, Inc.,

687 F.3d 554, 558 (2d Cir. 2012) (citation omitted).
“The exemption question under the FLSA is a mixed question
of law and fact.

The question of how the employees spent their

working time is a question of fact.

The question of whether

their particular activities excluded them from the overtime
benefits of the FLSA is a question of law.”

Pippins v. KPMG,

LLP, 759 F.3d 235, 239 (2d Cir. 2014) (citation omitted).
Although the level of discretion that Dineley exercised in her
day-to-day activities is disputed in part, based on what is not
in dispute and viewing the evidence in the light most favorable
to Dineley, the activities in which Dineley engaged made her an
exempt employee as a matter of law.
The administrative exemption under the FLSA applies to
employees “employed in a bona fide executive [or]
administrative . . . capacity.”

29 U.S.C. § 213(a)(1). 5

This

applies to:
any employee: (1) Compensated on a salary or fee basis
at a rate of not less than $455 per week . . . ;
(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or
general business operations of the employer or the
Coach argues that Dineley was also an exempt employee under the
executive exemption when she worked in the Design Department.
This exemption requires that the employee’s “primary duty is
managing the enterprise, or managing a customarily recognized
department or subdivision of the enterprise.” 29 C.F.R.
§ 541.100. The issue need not be decided, as Dineley is an
exempt employee under the administrative exemption.
5

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employer’s customers; and (3) Whose primary duty
includes the exercise of discretion and independent
judgment with respect to matters of significance.
29 C.F.R. § 541.200(a).

Coach bears the burden of showing that

all three elements are satisfied.

Ramos, 687 F.3d at 558.

Dineley does not dispute that her work at Coach satisfies the
first and second factors, but disputes that the third element has
been met.
“In general, the exercise of discretion and independent
judgment involves the comparison and the evaluation of possible
courses of conduct, and acting or making a decision after the
various possibilities have been considered.”
§ 541.202(a).

29 C.F.R.

“The exercise of discretion and independent

judgment must be more than the use of skill in applying wellestablished techniques, procedures or specific standards
described in manuals or other sources.”

Id. § 541.202(e).

The

factors to be considered in whether an employee exercises
discretion and independent judgment include, but are not limited
to, the following:
whether the employee has authority to formulate,
affect, interpret, or implement management policies or
operating practices; whether the employee carries out
major assignments in conducting the operations of the
business; whether the employee performs work that
affects business operations to a substantial degree,
even if the employee’s assignments are related to
operation of a particular segment of the business;
whether the employee has authority to commit the
employer in matters that have significant financial
impact; whether the employee has authority to waive or
deviate from established policies and procedures
without prior approval; whether the employee has
authority to negotiate and bind the company on
13

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significant matters; whether the employee provides
consultation or expert advice to management; whether
the employee is involved in planning long- or shortterm business objectives; whether the employee
investigates and resolves matters of significance on
behalf of management; and whether the employee
represents the company in handling complaints,
arbitrating disputes or resolving grievances.
In re Novartis Wage & Hour Litig., 611 F.3d 141, 155 (2d Cir.
2010) (quoting 29 C.F.R. § 541.202(b)).
“An executive assistant or administrative assistant to a
business owner or senior executive of a large business generally
meets the duties requirements for the administrative exemption if
such employee, without specific instructions or prescribed
procedures, has been delegated authority regarding matters of
significance.”

29 C.F.R. § 541.203.

“The term ‘matters of

significance’ refers to the level of importance or consequence of
the work performed.”

Id. § 541.202(a).

An employee’s “primary duty” depends on such factors as “the
relative importance of the exempt duties as compared with other
types of duties; the amount of time spent performing exempt work;
the employee’s relative freedom from direct supervision; and the
relationship between the employee’s salary and the wages paid to
other employees for the kind of nonexempt work performed by the
employee.”

29 C.F.R. § 541.700(a).

The amount of time an

employee spends performing exempt work, as opposed to nonexempt
work, is a “useful guide in determining whether exempt work is
the primary duty of the employee,” but “[t]ime alone ... is not
the sole test.”

Id.

14

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A reasonable jury could only conclude that Dineley’s primary
duties required the exercise of discretion and independent
judgment on matters of significance to such an extent that she
qualified for the administrative exemption to the laws requiring
overtime pay.

Dineley was paid a salary that was commensurate

with her level of experience and responsibilities.

Her salary

was approximately double that of the non-exempt administrative
assistants over whom she shared supervisory responsibilities.
Dineley directly supported high level executives within a
large company of approximately 17,000 people, the type of
position explicitly contemplated in the regulations.

She first

worked for the second most senior member of Coach’s HR
department.
judgment.

Her work in HR required constant exercise of
Dineley also trained new assistants and “on-boarded”

them when they joined Coach.

Dineley next directly supported the

Design VP, the second most senior executive in the Design
Department.

Again, her primary duties required the exercise of

discretion and judgment regarding matters of significance.

She

was also the person given primary responsibility for supervising
and delegating work to two administrative assistants in the
Design Department.

Further, she interviewed applicants for

administrative and executive assistant positions, including one
of the assistants she supervised, and made recommendations on who
should be hired.

Because nothing in the record, when viewed in

the light most favorable to Dineley, raises a triable issue of
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fact as to whether Dineley’s primary duties included the exercise
of discretion and independent judgment with respect to matters of
significance, Coach has shown that it is entitled to a
determination that the administrative exemptions to the FLSA and
NYLL applied to Dineley.
B.

Hostile Work Environment

Dineley asserts that she was subjected to a hostile work
environment because of disability in violation of the ADA and
NYCHRL.

The ADA prohibits “discriminat[ion] against a qualified

individual on the basis of disability in regard to . . .
discharge of employees . . . and other terms, conditions, and
privileges of employment.”

42 U.S.C. § 12112(a). 6

Whether the

ADA provides a basis for a hostile work environment claim has not
yet been decided by the Second Circuit, although it has been
recognized in other circuits.

See Shaver v. Indep. Stave Co.,

350 F.3d 716, 719 (8th Cir. 2003); Flowers v. S. Reg’l Physician
The NYCHRL similarly prohibits employment discrimination based
on the actual or perceived disability of any person. N.Y.C.
Admin. Code § 8–107(1)(a). NYCHRL discrimination claims must be
analyzed “separately and independently from any federal and state
law claims, construing [the NYCHRL’s] provisions broadly in favor
of discrimination plaintiffs to the extent that such a
construction is reasonably possible.” Ya-Chen Chen v. City Univ.
of New York, 805 F.3d 59, 75 (2d Cir. 2015) (citation omitted).
To establish a hostile work environment for NYCHRL claims, a
plaintiff need not meet the “severe and pervasive” standard, and
instead need only prove the “differential treatment -- that she
is treated ‘less well’ -- because of a discriminatory intent.”
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,
110 (2d Cir. 2013). Because summary judgment is denied under the
stricter federal standard, it is also denied under the NYCHRL.
6

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Servs. Inc., 247 F.3d 229, 232-33 (5th Cir. 2001); Fox v. Gen.
Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001). 7

The ADA

includes the same critical phrase as Title VII, which prohibits
discrimination as to the “terms, conditions, and privileges of
employment.”

The Second Circuit has held that this phrase

“evinces a congressional intent to strike at the entire spectrum
of disparate treatment, which includes requiring people to work
in a discriminatorily hostile or abusive environment.”
Littlejohn v. City of N.Y., 795 F.3d 297, 320 (2d Cir. 2015)
(citation omitted).

Moreover, as the Second Circuit has

recognized, while hostile work environment doctrine is “most
often encountered in connection with actions asserting Title VII
violations, its application is by no means limited to that
context.”

Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015).

Accordingly, this Opinion will proceed on the assumption that a
hostile work environment claim is cognizable under the ADA.
In order to prevail on a hostile work environment
claim, a plaintiff must make two showings: (1) that the
harassment was sufficiently severe or pervasive to
alter the conditions of the victim’s employment and
create an abusive working environment and (2) that
there is a specific basis for imputing the conduct
creating the hostile work environment to the employer.
Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013).
Several other circuits have assumed without deciding that such
a cause of action exists. See Mannie v. Potter, 394 F.3d 977,
982 (7th Cir. 2005); Rivera-Rodriguez v. Frito Lay Snacks
Caribbean, 265 F.3d 15, 23 (1st Cir. 2001); Walton v. Mental
Health Ass’n. of Se. Pennsylvania, 168 F.3d 661, 666–67 (3d Cir.
1999); Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir.
1998).
17
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[A] plaintiff must show that the workplace is permeated
with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an
abusive working environment. This standard has both
objective and subjective components: the conduct
complained of must be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and
the victim must subjectively perceive the work
environment to be abusive. The incidents complained of
must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed
pervasive. In determining whether a plaintiff suffered
a hostile work environment, we must consider the
totality of 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.
Littlejohn, 795 F.3d at 320–21 (citation omitted). 8

“It is

axiomatic that the plaintiff also must show that the hostile
conduct occurred because of a protected characteristic.”

Tolbert

v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
Summary judgment is denied as to Dineley’s hostile work
environment claim.

Dineley identifies her disability as

addiction to alcohol.

The NYSHRL and ADA treat alcoholism as an

impairment that can form the basis of a disability discrimination
suit.

Makinen v. City of N.Y., No. 16-1080-CV, 2017 WL 2218716,

at *2 (2d Cir. May 22, 2017).
Dineley has a disability.

The parties do not dispute that

Viewing the evidence in the light most

favorably to Dineley, she has offered evidence that a jury could
find demonstrates that the Design VP’s mistreatment of her after
Again, the more lenient NYCHRL standard requires only that the
plaintiff “show that she has been treated less well” because of
her protected characteristic. Mihalik, 715 F.3d at 110.
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Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 19 of 22

she took a disability leave in October 2014 was pervasive, and
that it was because of her disability, or need for accommodation
because of her disability.

Dineley avers that comments relating

to her disability were made repeatedly, and that this conduct
began only after she took leave to attend rehabilitation.
Ultimately, a jury must decide what comments were made by the
Design VP, whether they were motivated by knowledge of Dineley’s
disability and need for treatment, and whether they were
sufficiently pervasive to create a hostile work environment.
C.

Constructive Discharge

“Where an alleged constructive discharge stems from an
alleged hostile work environment, a plaintiff must show working
conditions so intolerable that a reasonable person would have
felt compelled to resign.”

Fincher v. Depository Trust &

Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010) (citation
omitted).

A hostile-environment constructive discharge is a

“graver claim . . . than its lesser included component, hostile
work environment.”
129, 149 (2004).

Pennsylvania State Police v. Suders, 542 U.S.
“[C]onstructive discharge is a claim distinct

from the underlying discriminatory act.”
S. Ct. 1769, 1779 (2016).

Green v. Brennan, 136

The analysis of a constructive

discharge claim “generally focuses on . . . the employer’s
intentional conduct and the intolerable level of the work
conditions.”

Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir.

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Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 20 of 22

2004). 9

Whether the employee’s work conditions were so

intolerable as to compel resignation “is assessed objectively by
reference to a reasonable person in the employee’s position.”
Id. at 230.

“[I]f a plaintiff suing for constructive discharge

cannot show specific intent, he or she must at least demonstrate
that the employer’s actions were ‘deliberate’ and not merely
negligent or ineffective.”

Id. at 229-30 (citation omitted).

In

several instances, the Second Circuit has found issues of fact as
to a hostile work environment claim, while granting summary
judgment as to a constructive discharge claim due to a lack of
deliberate employer action.

See id. at 230–31; Mack v. Otis

Elevator Co., 326 F.3d 116, 123, 128 (2d Cir. 2003); Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 71, 73–74 (2d
Cir. 2000).
Summary judgment is granted with respect to Dineley’s
constructive discharge claim.

Dineley has failed to offer

evidence that would permit a jury to find that her working
conditions, viewed in the light most favorable to Dineley, were
so intolerable person that a reasonable person would feel
compelled to resign.

She has also failed to offer evidence of

conduct by the Design VP from which a jury could conclude that
The standard for constructive discharge under the NYCHRL is
similar to the federal standard. Under the NYCHRL, a plaintiff
must demonstrate that an employer “deliberately creat[ed] working
conditions that were so intolerable that a reasonable person
would have felt compelled to resign.” Teran v. JetBlue Airways
Corp., 18 N.Y.S.3d 25, 27 (App. Div. 2015) (citation omitted).
9

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Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 21 of 22

supervisor acted deliberately to force Dineley’s resignation.
Dineley has not met her burden to demonstrate a constructive
discharge.
Dineley relies primarily on Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81 (2d Cir. 1996), to support her
constructive discharge theory.

This comparison is not apt.

In

Chertkova, summary judgment was inappropriate for the
constructive discharge gender discrimination claim because: (1)
the plaintiff’s male supervisor and his boss yelled insults at
the plaintiff, including: “What do you hope for?
you are going to outlive us?

There is no chance!

Do you think
You are not

going to be here!”; (2) the plaintiff was told she would be fired
immediately if, over the course of two years, she did not
maintain satisfactory performance levels, demonstrate
satisfactory behavior, and improve her listening skills, which
might be viewed as using her undoubted technical competence at
work so long as she only listened and never spoke; and (3) the
plaintiff had a nervous breakdown during this time causing her to
leave work.

Id. at 89-90.

All of this evinces far more severe

workplace misconduct and a direct intent to force a resignation,
evidence that is entirely lacking in this case.
CONCLUSION
Coach’s motion for summary judgment is granted in part.
Dineley was exempt from the overtime provisions of the FLSA and
NYLL under the administrative exemption.
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Summary judgment is

Case 1:16-cv-03197-DLC Document 50 Filed 07/11/17 Page 22 of 22

also granted on Dineley’s constructive discharge claim.

Triable

issues of fact remain as to Dineley’s claim of hostile work
environment discrimination under the ADA and NYCHRL.
Dated:

New York, New York
July 11, 2017

_________________________________
DENISE COTE
United States District Judge

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