Felty v. Regeneron Pharmaceuticals, Inc.
Filing
65
OPINION & ORDER re: 54 MOTION for Summary Judgment filed by Regeneron Pharmaceuticals, Inc. For the foregoing reasons, Defendant's motion for summary judgment is DENIED as to Plaintiff's retaliation but GRA NTED as to the hostile work environment and employment discrimination claims. The parties are directed to appear for a telephonic pre-trial conference on April 14, 2021 at 11:30 am. To access the telephonic pre-trial conference, please follow these instructions: (1) Dial the meeting number: (877) 336-1839; (2) enter the Access Code: 1231334#; (3) press pound (#) to enter the conference as a guest. The Clerk of Court is directed to terminate the motion at ECF No. 54. (Signed by Judge Nelson Stephen Roman on 3/8/2021) (mro)
Case 7:18-cv-05667-NSR Document 65 Filed 03/08/21 Page 1 of 40
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADRIENNE FELTY,
3/8/2021
Plaintiff,
No. 18 Civ. 5667 (NSR)
OPINION & ORDER
-againstREGENERON PHARMACEUTICALS, INC.,
Defendant.
NELSON S. ROMÁN, United States District Judge:
Plaintiff Adrienne Felty (“Plaintiff” or “Felty”) commenced this action against her former
employer, Regeneron Pharmaceuticals, Inc. (“Defendant” or “Regeneron”) alleging gender-based
discrimination, hostile workplace based on gender, and retaliation under both Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the New York State Human Rights
Law (“NYSHRL”), New York Executive Law § 296. 1 Defendant has moved for summary
judgment dismissing all of Plaintiff’s claims. For the following reasons, Defendant’s motion is
GRANTED in part and DENIED in part.
BACKGROUND
The facts herein are drawn from Defendant’s Rule 56.1 Statement of Undisputed Material
Facts (“Def.’s SUMF”) (ECF No. 55), Plaintiff’s Local Rule 56.1 Counterstatement of Material
Facts (“Pl.’s CSUMF”) (ECF No. 64), the parties’ declarations, exhibits, and affidavits, and are
undisputed except as indicated.
1
62).)
Plaintiff withdrew her claim under the New York City Human Rights Law. (Opp’n Mem. at 1 n.1 (ECF No.
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A.
The Parties
1.
Defendant Regeneron
Defendant is a company headquartered in Tarrytown, New York that maintains various
facilities throughout the world, including in Rensselaer, New York, and Dublin, Ireland. (Def.’s
SUMF ¶¶ 1-2; Pl.’s CSUMF ¶¶ 1-2.) During the relevant time period, Patrice Gilooly, Vice
President for Quality Assurance, supervised Teresa Rivenburgh, Senior Director of Quality
Assurance Operations, who in turn supervised department managers and their direct reports. (Decl.
of Linda Fletcher (See Decl. of Linda Fletcher (“Fletcher Decl.”) ¶ 7 (ECF No. 59); Tr. of May
17, 2019 Dep. of Filomena Grady “Grady Dep.” at 81 (ECF Nos. 63-5, 60-2).) Denise Kemp and
Linda Fletcher both served as managers in the Quality Assurance Department. Within the Quality
Assurance department is “Regeneron’s GMP Auditing Department[, which] is responsible for,
among other tasks, conducting audits of manufacturing sites and suppliers and internal departments
and processes to ensure that policies, standards and regulations are followed.” (Id. ¶¶ 5-6.) New
auditors go through a training period during which they are familiarized with different types of
audits and the leading and supporting roles. (Tr. of May 8, 2019 Dep. of Adrienne Felty (“Felty
Dep.”) at 50, 66 (ECF Nos. 63-3, 60-1).)
Defendant has Human Resources (“HR”) staff in both the United States and Ireland. (Grady
Dep. at 21.) During the relevant time period, Theresa Thompson and Filomena Grady were United
States-based HR staff and Susan Kearney, Erica Gunnigle, and Brian Healy were Ireland-based
HR staff. Defendant has adopted policies that expressly prohibit any form of discrimination,
harassment, and retaliation, which new employees are advised to review when they commence
their employment, are electronically available to all of Defendant’s employees via a company
intranet, and upon which employees receive annual training. (Decl. of Theresa Thompson
(“Thompson Decl.”) ¶¶ 8-11 (ECF No. 57); Tr. of May 30, 2019 Dep. of Theresa Thompson
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(“Thompson Dep.”) at 48 (ECF Nos. 63-6, 60-3); Oct. 14, 2019 Tr. of Denise Kemp Dep. (“Kemp
Dep.”) at 53 (ECF Nos. 63-4, 60-4); Def.’s SUMF ¶¶ 5, 8; Pl.’s CSUMF ¶¶ 5, 8.) Defendant’s
Anti-Harassment Policy proscribes “any form of sexual or otherwise unlawful employee
harassment including, but not limited to, actions, words, jokes, or comments based on an
individual’s sex, . . . sexual orientation, . . . or any other legally protected characteristic.” (Ex. A
to Thompson Decl. (“Def.’s Anti-Harassment Policy”) (ECF No. 57-1).) The policy further
“prohibits any form of retaliatory action against any employee availing him/herself of the benefits
of [the complaint] procedure.” (Def.’s Anti-Harassment Policy.) Under Defendant’s policy,
employees who believe they have experienced or witnessed job-related harassment are responsible
for reporting the conduct to their supervisors, HR, or any member of management. (Id.; Def.’s
SUMF ¶ 6; Pl.’s CSUMF ¶ 6.)
2.
Plaintiff Adrienne Felty
In January 2014, Felty began working as an auditor in the Quality Assurance Department
for Defendant in the United States. (Ex. B to Thompson Decl. (ECF No. 57-2); Def.’s SUMF ¶¶ 3,
11; Pl.’s CSUMF ¶¶ 3, 11.) Effective January 2016, Felty was promoted to Senior GMP Auditor,
which meant that she would be responsible for training new auditors and reviewing their work.
(Felty Dep. at 59; Ex. F to Thompson Decl. (ECF No. 57-6); Def.’s SUMF ¶ 15; Pl.’s CSUMF
¶ 15.) In December 2016, Plaintiff learned she would be promoted to Associate Manager for
Quality Assurance effective January 30, 2017, which meant she would become the supervisor of
two junior auditors, Anthony Cummins and Erin Duncan, who were both remote employees based
out of Defendant’s Ireland office 2 (Felty Dep. at 60-61; Def.’s SUMF ¶¶ 17-18; Pl.’s CSUMF
¶¶ 17-18; see Ex. G to Thompson Decl. (ECF No. 57-7)), and that Plaintiff in turn would be
2
Around mid-April 2017, Plaintiff began supervising a third employee, Martin Brounstein. (Fletcher Decl.
¶ 17; Felty Dep. Tr. at 87; Ex. 3 to Felty Dep. (“Felty Notes”) (ECF No. 63-16).)
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supervised by Linda Fletcher (Fletcher Decl. ¶ 5; Felty Dep. at 137; Grady Dep. at 150.) Prior to
this promotion, Plaintiff reported to Denise Kemp. (Felty Dep. at 61; Def.’s SUMF ¶ 19; Pl.’s
CSUMF ¶ 19.)
Plaintiff went on medical leave on May 9, 2017. (Def.’s SUMF ¶ 90; Pl.’s CSUMF ¶ 90.)
On June 30, 2017, before she returned from medical leave, Plaintiff submitted her resignation.
(Def.’s SUMF ¶ 95; Pl.’s CSUMF ¶ 95.)
B.
Cummins Tenure with Defendant and Interactions with Plaintiff
Anthony Cummins began working for Defendant in May 2016 as an associate GMP
Auditor in Defendant’s Quality Assurance Department based out of Dublin, Ireland, and was
initially supervised by Denise Kemp. (Def.’s SUMF ¶ 19; Pl.’s CSUMF ¶ 19.)
Cummins did not have a male supervisor while he worked for Defendant and Felty testified
that there were no male supervisors in her department during the time she worked for Defendant
(Felty Dep. at 105, 108-09; see Kemp Dep. at 77 (confirming that Cummins did not report to any
males).)
1.
Cummins Job Performance Prior to Plaintiff’s Supervision
Cummins’ employment was subject to a six-month probationary period during which he
received training. (Def.’s SUMF ¶ 20; Pl.’s CSUMF ¶ 20.) During the probationary period,
Cummins struggled to satisfactorily perform the requirements of his position. (Thompson Decl.
¶ 24; Def.’s SUMF ¶ 21; Pl.’s CSUMF ¶ 21.) The parties agree that Cummins lacked attention to
detail, demonstrated poor writing skills, resisted feedback from his manager and trainers, and
became argumentative and aggressive when receiving criticism of his performance with which he
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did not agree. 3 (Thompson Decl. ¶ 24; Def.’s SUMF ¶ 22; Pl.’s CSUMF ¶ 22; also Felty Dep. at
63 (stating that Cummins was the weakest staff member Plaintiff ever trained).)
Kemp testified that when she worked with Cummins, he was “regularly condescending and
aggressive” toward her and became red in the face and lost control with her a half dozen times and
specifically described two particular instances. (Kemp Dep. at 60-64, 79, 147.) The first instance
occurred during a performance review meeting during which Kemp was providing Cummins with
feedback and Cummins “became aggressive” and “got in [her] space . . . red in the face, yelling at
[her].” (Kemp Dep. at 61.) Kemp reported this incident to Rivenburgh and Rivenburgh was
“outraged” by Cummins’ behavior. (Kemp Dep. at 76.) During the second instance, which also
occurred while Kemp was providing feedback, Cummins “screamed at [her] so loudly and so
fiercely on speakerphone” that Rivenburgh, whose office was next door to Kemp’s, “came running
into [Kemp’s] office to see if [she] was ok” (Kemp Decl. ¶ 16; Kemp Dep. at 66-69.) Kemp
testified that during both instances she directed Cummins to calm down and the meetings ended
without incident. (Kemp Dep. at 65-66, 69-70.)
Kemp testified that based on her supervision and observation, “Cummins ‘had a problem’
with females, and . . . he believed that males were superior to women, that women were ‘weaker’
than men, and that he should not have to answer to a woman. He routinely attempted to intimidate
females in the office. His beliefs and behaviors were known to [Defendant].” (Kemp Dep. at 59-
3
Kemp testified that Cummins “reacted better” when he received feedback from males than females. (Kemp
Dep. at 140, 146.) This opinion is based at least in part on two memoranda Kemp received in September 2016 from
audit trainers other than Plaintiff who had interacted with Cummins. The male trainer commented on specific skills
Cummins needed to improve and indicated that Cummins accepted feedback but was frustrated by the training process.
(Ex. 8 to Goddard Decl. (ECF No. 63-8).) The female trainer noted, inter alia, that when she provided Cummins with
feedback, his “body language appeared defiant . . . . He became obstinate in his tone,” she further noted that Cummins
“is very dismissive of [her] feedback.” (Ex. 9 to Goddard Decl. (ECF No. 63-9).) Kemp also testified that a female
trainer complained to Kemp about Cummins getting up at screaming at her in a meeting while she and a male colleague
were providing Cummins with feedback. (Kemp Dep. at 83-84, 138, 142.) While Kemp’s opinion itself is admissible,
the second-hand accounts within the memoranda and described by Kemp are inadmissible hearsay. See Fed.R.Evid.
801(c), 802.
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60.) Kemp was “concerned for both the women on [her] team and the gay people on [her] team”
because “Cummins behavior was incredibly scary-he would turn red in the face and completely
lose control of himself. [Kemp] was extremely concerned about what he might be capable of. At
times [she] was fearful for [her] physical safety because [she] thought that he might hit [her] and
[she] told her manager Theresa Rivenburgh that.” (Decl. of Denise Kemp (“Kemp Decl.”) ¶¶ 6, 89 (ECF No. 63-3); Kemp Dep. at 59.)
Kemp avers that she first raised concerns with Rivenburgh about Cummins’ beliefs about
and behavior toward gay people and women in the spring of 2016 (Kemp Dep. at 59), and that she
raised similar concerns “on many occasions” and that on more than one occasion Rivenburgh
“expressed to [Kemp] that [Rivenburgh] was appalled by Anthony Cummins homophobia and
chauvinistic and hostile attitudes and behavior towards women” (Kemp Decl. ¶¶ 10-12, 17, 20).
Kemp further avers that she reported her concerns about how Cummins treated gay people and
women to HR, including her concerns for gay and female members of the team who had to work
with and travel with Cummins. (Id. ¶¶ 13, 15.) Thompson admits that she had “numerous
conversations” with Kemp and with HR employees in Ireland regarding Cummins’ unsatisfactory
performance and how to address it. (Thompson Decl. ¶ 25.)
Kemp testified that in the summer or early fall of 2016 she recommended to Thompson on
at least two occasions that Cummins be terminated because he was not a good employee and he
was discriminatory in that he did not like females, especially reporting to a female, and was
aggressive and condescending toward them. (Kemp Dep. at 127-31, 136-37.) Kemp avers that she
“assumed Mr. Cummins would be let go as a liability for the company, but for whatever reason,
[she] was told that [she] had to put him on a Performance Improvement Plan [(“PIP”)].” (Kemp
Decl. ¶ 15; Kemp Dep. at 152.) Thompson avers that she, Kemp, and HR staff in Ireland
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“collectively decided” to place Cummins on a PIP and to extend his probationary period.
(Thompson Decl. ¶ 26.)
On November 7, 2016, Kemp, Thompson and Gunnigle met with Cummins to discuss his
unsatisfactory performance and the need to put him on a PIP, which would extend his probation
period three additional months through February 2017. (Thompson Decl. ¶ 27; Ex. H to Thompson
Decl. (ECF No. 57-8); Def.’s SUMF ¶ 24; Pl.’s CSUMF ¶ 24.) The PIP identified six areas where
Cummins’ work performance was deficient and needed to improve, including that “during audit
debriefs [Cummins] is argumentative and somewhat aggressive in [his] tone and body language.”
(Ex. I to Thompson Decl. (ECF No. 57-9); Def.’s SUMF ¶ 25; Pl.’s CSUMF ¶ 25.) Kemp testified
that she thought the PIP should have included Cummins’ aggressiveness toward women but did
not because Thompson told her to only include “tangible, measurable items,” to comply with Irish
law. (Kemp Dep. at 108-10, 116-17, 153.) Plaintiff avers that in November, when it was initiated,
Kemp told all of the trainers in the department, including Plaintiff, that Cummins was put on a
PIP. (Tr. of May 8, 2019 Dep. of Adrienne Lynne Felty (“Felty Dep. Tr.) at 62, 79-80 (ECF No.
63-2).)
Shortly after the PIP was issued, Kemp gave notice of her resignation. (Kemp Dep. at 44.)
Plaintiff avers that in December 2016, after Kemp gave notice of her resignation and before her
last day of employment around January 12, 2017, Kemp knew that Felty might be taking over as
Cummins’ supervisor and warned Plaintiff that Cummins was aggressive with her and regularly
screamed at her when she gave him constructive feedback. (Decl. of Adrienne Felty (“Felty Decl.”)
¶ 8 (ECF No. 63-1); Felty Dep. at 10, 101.) Felty avers that Kemp told her that Cummins behaved
this way towards Kemp because she is a woman and the he especially had issues with being
managed by a woman. (Id.) Felty further avers that Kemp told her that Kemp had reported her
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concerns about Cummins’ behavior to HR. (Felty Decl.¶ 8; Felty Dep. at 101.) Felty testified that
despite this warning from Kemp, she “wanted to keep an open mind” and since she had not
personally experienced gender-based treatment from Cummins, she “was willing to continue to
treat him . . . with an open mind.” 4 (Felty Dep. at 102.)
2.
Felty’s Pre-Supervision Interactions with Cummins
Felty first met Cummins in May 2016 over email. (Felty Dep. at 63-64; Def.’s SUMF ¶ 31;
Pl.’s CSUMF ¶ 31.) Her interactions with Cummins in 2016 were “limited” (Felty Dep. at 71;
Def.’s SUMF ¶ 32; Pl.’s CSUMF ¶ 32)—although she was involved in his training (Felty Dep. at
65-66)—as she reviewed his work by telephone and email and did not travel with him (Felty Dep.
at 72-73; Def.’s SUMF ¶ 35; Pl.’s CSUMF ¶ 35). Plaintiff testified that when she provided
Cummins with feedback during 2016, “typically there was some push-back from his end or a bit
of argumentative tone” (Felty Dep. at 74), but there were no problems between them at that point
(id. at 72-73). She also reported to Cummins’ supervisor at the time, Kemp, that Cummins did not
accept feedback well. (Felty Dep. at 74-75.)
Before she became his supervisor, Felty had only interacted in person with Cummins
during a weeklong training in Rensselaer in March 2016 and a January 2017 auditing trip to Basel.
(Felty Dep. at 68-69, 112, 212-13.) During the January 2017 trip, Cummins made a “sexually
inappropriate” comment (Felty Dep. at 80-81, 84; Def.’s SUMF ¶ 38; Pl.’s CSUMF ¶ 38), which
Felty admits did not convey a sexist attitude (Pl.’s CSUMF ¶ 42). She also admits that she did not
immediately report it to Defendant because she believed that telling Cummins that it was
unwelcome was sufficient. (Felty Dep. at 83-84; Def.’s SUMF ¶ 41; Pl.’s CSUMF ¶ 41.)
4
Defendant claims that during her deposition Kemp disclaimed having provided any warning to Felty. (Reply
Mem. at pp. 6-7 n.2.) However, the pages of the Kemp Deposition on which Defendant claims such statements are
transcribed were not provided to the Court by either party.
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3.
Closing Cummins’ PIP
Fletcher avers that by late January she and Felty “jointly decided” to close Cummins’ PIP
and present him with a memorandum identifying areas for continued improvement. (Fletcher Decl.
¶ 10.) On January 27, 2017, Fletcher emailed Thompson, copying Felty and Rivenburgh, stating
that Fletcher and Felty had agreed to close out Cummins’ PIP and that they would put together a
memo setting expectations and outlining areas for continued improvement. (Thompson Decl. ¶ 28;
Ex. J to Thompson Decl. (ECF No. 57-10).)
On February 3, 2017, Felty sent HR the memorandum she had drafted with Fletcher closing
out Cummins’ PIP. In an email exchange between Gunnigle, Thompson, Fletcher, and Felty on
February 10, 2017, Felty stated “I can’t say the assumption that any ongoing issues are ‘very minor
in nature’ is true as Anthony is still in the training and qualification process . . . . [h]owever, in
regards to items identified in the PIP, he did improve and we tried to convey in the memo the
specific areas where we still think he needs to focus.” (Ex. J to Thompson Decl. (ECF No. 57-10).)
The PIP closure memorandum signed by Felty on February 15, 2017 states in relevant part:
Based on Improvement that has been observed during the period of your PIP,
specifically with respect to listening, audit report writing, and understanding of
report expectations, it has been determined that this PIP may be considered closed.
However, continued sustained improvement is expected in the following areas:
Training – Be honest, open, and communicative with your trainer
during the training process . . . .
Audit Conduct – When auditing with multiple team members, it is
important to know the roles/responsibilities and if auditing in a
support function, to fulfill the duties of that role . . . . While
representing Regeneron in any audit capacity, you must refrain from
showing outward signs of disagreement with the lead auditor,
frustration or aggression in front of auditees as this is not only a
reflection of you, but a reflection of Regeneron . . . .
(Ex. K to Thompson Decl. (ECF No. 57-11).) Felty admits that she was involved in in the
determination to close Cummins’ PIP and to put him back into regular training status (Felty Dep.
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at 95-96; Def.’s SUMF ¶ 29; Pl.’s CSUMF ¶ 29), but avers that she told Fletcher and Rivenburgh
that she objected to closing the PIP because she did not feel she had enough information to
determine whether he had succeeded in the actions identified in the PIP or that he would
successfully complete the training (Felty Dep. at 96-98). Plaintiff testified that the memorandum
she drafted to close out the PIP was not part of the normal process. (Felty Dep. at 98.)
4.
Felty’s Interactions with Cummins as his Supervisor
Felty became Mr. Cummins’ official supervisor on January 30, 2017. (Def.’s SUMF ¶ 28;
Pl.’s CSUMF ¶ 28.) Felty conducted two audits with Cummins in February 2017. After one of the
audits, Felty and Cummins had a telephone debrief and as soon as Felty provided him with
feedback, he aggressively screamed at her and claimed that it was Felty’s time management skills
not his deficiencies that caused problems during the audit. (Felty Dep. at 113, 124-25, 177, 179.)
Felty testified that Cummins’ behavior on this call was inappropriate and insubordinate and that
she told him that it was inappropriate for him to raise his voice at her. (Felty Dep. at 121.) She also
testified that she followed up the conversation with Cummins with an email documenting her
feedback on the audit. (Felty Dep. at 126.)
Felty avers that she immediately reported Cummins’ behavior on the debrief call to
Fletcher and stated her belief that Cummins was yelling at Felty because she is a woman. (Felty
Decl. ¶ 15; Felty Dep. at 121, 127, 129-30, 135-37.) Felty testified that his was the first time she
notified Defendant that she believed she was being treated differently by Cummins because of her
sex and that she believed that she was complying with Defendant’s policy that employees who
believe they are being discriminated against inform Defendant. (Felty Dep. at 139-40, 218.) Felty
admits that her notes from the time period do not reflect conversations with Fletcher regarding
Cummins prior to March 2017 but avers that she was not required to and did not make notes from
every interaction with Fletcher, which were frequent. (Felty Dep. at 168-70.)
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She further avers that on the drive back from one of the February 2017 audits, Cummins
stated that in his country it was unacceptable to be gay and he felt gays did not belong there. (Felty
Dep. at 88-89; Def.’s SUMF ¶¶ 43-44; Pl.’s CSUMF ¶¶ 43-44.) Felty changed the subject (Felty
Dep. at 90; Def.’s SUMF ¶ 45; Pl.’s CSUMF ¶ 45), and did not immediately report this comment
to Defendant (Def.’s SUMF ¶ 46; Pl.’s CSUMF ¶ 46), but made a note for herself to report it at
her next meeting with either HR or management (Felty Dep. at 92). Felty avers that after Cummins
made this homophobic comment she “started to realize that Mr. Cummins’ patriarchal and
misogynist viewpoints ran so deep that any threat to his ‘masculinity’ by a woman or someone he
perceived to be ‘like a woman’ (a gay man) was a serious problem for him” (Felty Decl. ¶ 14).
Plaintiff admits that she never heard Cummins make a sexist comment (Felty Dep. at 183), or other
comment about sexual orientation (Def.’s SUMF ¶¶ 47-48; Pl.’s CSUMF ¶¶ 47-48).
Felty further avers that while she was Cummins’ supervisor he “regularly screamed at [her]
. . . . [A]ny type of normal course feedback resulted in him losing his temper and getting
argumentative and aggressive with [her]. He routinely challenged [her] authority . . . . Mr.
Cummins would get so upset that he often hung up the phone on [her] in the middle of
conversations.” (Felty Decl. ¶ 15; Felty Dep. at 137-38, 189-90.) Plaintiff avers that she “regularly
reported these screaming incidents to . . . Fletcher, and told her that [she] thought he was behaving
this way towards [her] because [she] is a woman.” 5 (Felty Decl. ¶ 15; Felty Dep. at 137-38.) Felty
believes Cummins was disrespecting her and screaming at her because she is a woman and Plaintiff
never saw Cummins be disrespectful to or scream at male coworkers. (e.g. Felty Dep. at 193.)
5
Felty believes that Fletcher should have acted on her February 2017 complaints but admits that she is not
certain whether Fletcher took any action at the time or whether any of her February 2017 complaints were documented.
(Felty Dep. at 207-08, 217-18.)
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Fletcher’s declaration does not mention any report by Plaintiff to her regarding Cummins’ behavior
during February 2017. (See Fletcher Decl.)
5.
March 2017 Performance Review Meetings
On March 16, 2017, Felty met in person with Cummins in Troy, New York for a required
performance review meeting. (Def.’s SUMF ¶ 53; Pl.’s CSUMF ¶ 53.) At the outset of the meeting,
she asked Cummins for the form that he was required to complete in advance of the meeting, and
he defiantly told her he had not completed it because he thought Defendant’s review process was
“stupid and useless.” (Felty Dep. at 196-97.) Cummins then asked when he would be certified as
a qualified auditor and stated that his prior manager, Kemp, had treated him unfairly. (Felty Dep.
at 197; Def.’s SUMF ¶ 55; Pl.’s CSUMF ¶ 55.) When Felty asked for examples of Kemp’s unfair
treatment, Cummins became loud and red in the face, clenched his fists, and yelled at Felty that
she was treating him unfairly like his prior manager. (Felty Dep. at 197-98; Def.’s SUMF ¶ 56;
Pl.’s CSUMF ¶ 56.) Cummins stood up with his hands on the edge of the table and Felty got up
and left the room. (Felty Dep. at 198-202, 205; Def.’s SUMF ¶ 57; Pl.’s CSUMF ¶ 57.)
Felty “escaped out of the building to [her] car because [she] feared for her physical safety
and well-being. [She] was petrified to be in the same building as Mr. Cummins because [she] did
not know what he was capable of as he was clearly volatile and violent.” (Felty Decl. ¶ 16; see
Felty Dep. at 206 (“I grabbed my stuff from the conference room and I went to my car”), 302.) In
the car, Felty called Fletcher to report Cummins’ behavior and Fletcher told Plaintiff to report the
incident to HR the next day. (Fletcher Decl. ¶¶ 12-13; Felty Dep. at 206-07; Def.’s SUMF ¶ 58;
Pl.’s CSUMF ¶ 58.) Felty did not attend an auditing team dinner that evening because she was
scared that she might see Cummins. (Felty Decl. ¶ 16.) Instead, she “regroup[ed]” because she
“knew [she] had a job to get done.” (Felty Decl. ¶ 17.) She also called Kemp to discuss what had
occurred that day. (Felty Dep. at 17-21.)
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The following morning, Felty resumed the performance review meeting with Cummins.
(Felty Dep. at 208-09; Def.’s SUMF ¶ 59; Pl.’s CSUMF ¶ 59.) Felty was “careful to make sure
others were around in neighboring conference rooms and that [she] sat close to the door, so [she]
could easily escape if he turned violent and physically aggressive again.” (Felty Decl. ¶ 17.) During
the meeting, Cummins yelled that the issues from the Jersey Shore audit were the result of a
scheduling mistake by Felty—which Felty avers is untrue—and Felty ended the meeting. (Felty
Dep. at 209; Def.’s SUMF ¶ 60-61; Pl.’s CSUMF ¶¶ 60-61.) Felty admits that when Cummins
became aggressive with her in the meeting, his comments were not “sexist” per se but insists that
his verbal abuse of her was related to her gender. (Pl.’s CSUMF ¶ 62.)
Felty admits that she had no in-person contact with Cummins after March 17, 2017.
(Fletcher Decl. ¶ 15.)
6.
Felty’s Obervations of Cummins’ Interactions with Male Colleagues
Plaintiff avers that when Cummins interacted with other male managers (i.e. supervisors
to whom Cummins did not directly report) Cummins’ interaction with these men was “friendly,
very respectful.” (Felty Dep. at 105, 107.) Plaintiff also testified that during an internal audit she
“witness[ed] [Cummins] being questioned or pushed on from male colleagues in a supervisory role
. . . and [she] did . . . not witness . . . him get aggressive or argumentative,” in fact, in the specific
situation, because Cummins was the auditor and final decision maker, he should have pushed back.
(Felty Dep at 118-20.)
C.
Felty’s Complaint Against Cummins
After she ended the meeting with Cummins on March 17, 2017, Felty emailed Grady and
Thompson in US HR to request a meeting to discuss Cummins’ behavior. (Ex. M to Grady Decl.
(ECF No. 58-1); Def.’s SUMF ¶ 63; Pl.’s CSUMF ¶ 63; see Grady Decl. ¶ 5; Grady Dep. at 42,
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170-71.) Grady responded to Felty’s email within minutes and they met early that afternoon.
(Def.’s SUMF ¶ 64; Pl.’s CSUMF ¶ 64.)
Before she met with HR, Felty met with Rivenburgh, to whom she described the March
performance review meetings as well as the sexually inappropriate comment on the January 2017
audit trip and the February 2017 homophobic comment, and to whom she voiced concern about
an upcoming audit she was supposed to do with Cummins on March 20th. Rivenburgh instructed
Felty to tell HR that Plaintiff did not need to conduct the upcoming audit with Cummins. 6 (Felty
Dep. at 83, 91, 213-14.)
During the meeting with HR, Felty described Cummins’ behavior during the performance
review meetings and provided Grady and Thompson with a list of individuals who may have
overheard Cummins yelling at her. (Grady Decl. ¶¶ 7-8; Thompson Decl. ¶¶ 32-35; Def.’s SUMF
¶ 66; Pl.’s CSUMF ¶ 66.) Felty avers that she also told HR that she believed Cummins was
mistreating her because she is a woman and that she “felt it was turning into a hostile work
environment.” (Felty Dep. at 83, 91, 215-216.) Thompson testified that Felty described her
complaint against Cummins as a “hostile work environment.” (Thompson Dep. at 16.) Grady and
Thompson also testified that, despite respective tenures with Defendant since 2014 and 2001,
respectively, neither could recall ever having investigated a claim of unlawful discrimination.
(Grady Dep. at 26-27, 56; Thompson Dep. at 15-16, 19-20.) Plaintiff also requested not to have
any in-person contact with Cummins in the future. (Felty Dep. at 213, 225; Def.’s SUMF ¶ 67;
Pl.’s CSUMF ¶ 67.)
6
Felty’s motion papers state that she told Rivenburgh about Cummins’ “patriarchal” and homophobic beliefs
(CSUMF ¶ 63.1) but neither her declaration nor her testimony state that she told Rivenburgh that Cummins aggression
toward her was gender-motivated.
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Plaintiff admits that prior to March 17, 2017, she had not told anyone other than Fletcher
that she believed Cummins was mistreating her because she is a woman. (Felty Dep. at 166.)
D.
Defendants’ Response to Plaintiff’s Complaint Against Cummins
1.
Defendants’ United States Investigation
During the initial meeting on March 17, 2017, Grady and Thompson agreed that Cummins
would not travel with Felty for the upcoming audit (Grady Decl. ¶ 9; Thompson Decl. ¶ 36;
Thompson Dep. at 49; Def.’s SUMF ¶ 69; Pl.’s CSUMF ¶ 69; see Felty Decl. ¶ 24 (emphasizing
that Defendant only took Cummins off the March 20 audit because Plaintiff demanded it); Felty
Dep. at 215 (describing Plaintiff first raised the March 20 audit issue with Rivenburgh who told
Plaintiff to tell HR); Grady Dep. at 170), and agreed that Felty would not have any further inperson contact with Cummins (Felty Dep. at 213, 225; Grady Dep. at 170; Def.’s SUMF ¶ 67; Pl.’s
CSUMF ¶ 67). Later that day, Grady and Thompson met with Cummins, who denied raising his
voice in the meetings with Plaintiff and claimed he complimented her thorough audit preparations. 7
(Felty Dep. at 307; Grady Dep. at 171-73; Thompson Decl. ¶¶ 37-38; Def.’s SUMF ¶¶ 70-71; Pl.’s
CSUMF ¶¶ 70-71.) Grady and Thompson informed Cummins that he would not be permitted to
attend the March 20 audit and instructed him to return to his office in Ireland. (Thompson Dep. at
49; Grady Decl. ¶ 10; Grady Dep. at 174; Def.’s SUMF ¶ 72; Pl.’s CSUMF ¶ 72.)
Between March 20 and March 24, 2017 Grady and Thompson interviewed three employees
Plaintiff identified as having potentially overheard Cummins yelling at her during the March 2017
performance review meetings, and each employee confirmed that Cummins had raised his voice
and did not accept feedback well. (Thompson Decl. ¶ 39; Felty Dep. 301-02; Def.’s SUMF ¶ 73;
7
At one point, Grady testified that Cummins admitted to raising his voice at Plaintiff (Grady Dep. at 10507); however, at another point Grady testified “I don’t remember if Anthony had admitted exactly that he had raised
his voice or not, but he had said that things had gotten heated” and that Cummins admitted to having disagreements
with Plaintiff (Grady Dep. at 173-74).
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Pl.’s CSUMF ¶ 73.) Thompson also spoke with Fletcher and Susan Kearney, an associate director
of HR in Ireland. (Thompson Decl. ¶ 39; Def.’s SUMF ¶ 74; Pl.’s CSUMF ¶ 74.) Thompson avers
that “[n]o employee, including Felty, alleged that Cummins engaged in any discriminatory conduct
during the March 16 and 17 meetings, or at any other time.” (Thompson Decl. ¶¶ 40-41.)
Thompson further testified that the US investigation was “about [Cummins’] behavior and
[Plaintiff] feeling uncomfortable” and that she did not recall whether she investigated whether
Cummins had any specific gender bias. (Thompson Dep. at 97.) Thompson “believe[d] [she] had
enough information to see that [Cummins] was argumentative with all the employees, women and
men the same.” (Thompson Dep. at 96; see also Thompson Decl. ¶ 41 (“in the course of our
investigation, both men and women reported that Cummins did not follow direction well, and that
he was argumentative with everyone”).)
When asked whether the US investigation “determined whether or not [Cummins] was
more argumentative with Adrienne [or other female employees] than he was with men” Thompson
testified “no.” (Thompson Dep. at 96.) Thompson “did not consider Felty’s complaint to be a
complaint of discrimination. Based on my conversations with Felty, Cummins, Fletcher, [and
others], I understood Felty’s complaint to be a complaint about the non-discriminatory
insubordination of an employee who Felty supervised.” (Thompson Decl. ¶¶ 40-41.) Grady and
Thompson testified that they did not recall whether the US investigation involved any inquiry into
whether Cummins had a problem with women or gender bias. (Grady Dep. at 162; Thompson Dep.
at 96-97.)
Based on their investigation, on March 24, 2017, Grady and Thompson recommended that
Cummins be terminated. (Grady Dep. at 84; Thompson Dep. at 175; Def.’s SUMF ¶ 77; Pl.’s
CSUMF ¶ 77.) Felty avers that Grady and Thompson told her that, along with Fletcher,
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Rivenburgh, and Gilooly, that they were recommending that, pending Felty’s assent, Cummins be
terminated. (Felty Decl. ¶ 18; Felty Dep. at 241-42.) Plaintiff avers that they told her that it was
her decision and she agreed to proceed with termination. (Felty Decl. ¶ 18; Felty Dep. at 243.) She
further avers that Grady and Thompson directed Felty to write a statement for Defendant’s HR
staff in Ireland, which they assured Plaintiff was simply a formality, and in which they directed
Felty to focus on performance-based concerns about Cummins during audits to demonstrate how
he could impact Defendant’s professional reputation. (Felty Decl. ¶¶ 18-19.) Thompson avers that
she told Felty that the US office was “forwarding our findings to our human resources counterparts
in Ireland so they could address Cummins’ behavior. We asked Felty to draft a statement
summarizing her complaints about Cummins’ behavior, which could be forwarded to our
colleagues in Ireland, and we committed to providing updates to Felty as we received them.”
(Thompson Decl. ¶ 43.) Grady avers that they “advised [their] Irish human resources counterparts
of [their] investigation and recommended that Cummins’ employment be terminated in accordance
with Regeneron Ireland’s policies.” (Grady Decl. ¶ 12.)
On the morning of March 27, 2017 Plaintiff emailed Grady and Thompson a two-page
statement summarizing her concerns, which states in relevant part:
Anthony’s demeanor and actions when receiving constructive criticism on his job
performance is argumentative and aggressive. Anthony will interrupt feedback
sessions if he does not agree with what is being stated and rather than listening to
the entire information being provided, will become argumentative to portray his
point. Often times, feedback sessions are given over the phone with Anthony (as he
is based in Dublin). It is frequent he will have a raised voice on the phone, and I
find it hard to communicate as I can’t interrupt over his raised voice. During a week
both Anthony and I were in the Rensselaer office, Anthony started a conversation
regarding him being treated unfairly last year, and Anthony escalated to the point
where he was physically upset and appeared to be reaching an aggressive point. I
removed myself from the situation; however, I no longer feel comfortable to be in
a position alone with Anthony.
....
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Overall, the concerns I have regarding Anthony impact both the people he is
working with in the Auditing department and also the reputation of Regeneron
when on audits with our external suppliers. Anthony’s behaviors while in the office
and auditing are unprofessional and concerning. . . .
(Ex. N to Grady Decl. (ECF No 58-2.) That afternoon, Grady forwarded Plaintiff’s written
statement to Susan Kearney and Defendant’s HR Director, asking about next steps. (Ex. O to
Grady Decl. (ECF No. 58-3); Def.’s SUMF ¶ 80; Pl.’s CSUMF ¶ 80.) Grady testified that during
this outreach to Defendant’s Irish HR team she first learned that the Irish team would have to
conduct their own disciplinary process. (Grady Dep. at 45.)
2.
Defendant’s Irish Investigation
By letter dated March 30, 2017, Kearney formally advised Cummins of Felty’s complaint
against him—“on 10 March 2017 you displayed hostile behavior towards her that was not
appropriate for the workplace, aggressively raised your voice to her and failed to follow her
instructions. Ms. Felty has alleged that this behaviour was repeated, and had been ongoing for a
significant period”—and ordered him to participate in an investigatory meeting on March 31, 2017.
(Ex. P to Grady Decl. (ECF No. 58-4); Def.’s SUMF ¶ 81; Pl.’s CSUMF ¶ 81.) Cummins was
informed that he could have a peer representative at the disciplinary meeting and Cummins
selected Martin Brounstein. Felty was concerned that by participating in the investigation as
Cummins’ peer representative, Brounstein, who was soon to become Plaintiff’s direct report,
would only hear Cummins’ side of the story. (Felty Dep. at 229, 232-33.)
Plaintiff avers that she was “blindsided” when on or around March 30, 2017, Healy
contacted her to “interview” her about her claim against Cummins and stated that he would also
get Cummins’ side. (Felty Decl. ¶ 20.) She was “completely confused because [her] understanding
from HR Grady and HR Thompson was that Defendant would be terminating Mr. Cummins and
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that the Ireland office was just going to process the paperwork.” (Id.) Nonetheless, Plaintiff
admitted that Healy’s first call to her was appropriate. (Felty Dep. at 236.)
Between March 31, 2017 and April 4, 2017, Healy interviewed Cummins and others
regarding Cummins’ behavior on March 16 and 17, 2017. (Ex. Q to Grady Decl. (ECF No. 58-5);
Def.’s SUMF ¶ 82; Pl.’s CSUMF ¶ 82.) When Healy called Felty again on or around April 3, 2017
he “rudely victim-blamed [her] for [her] complaints against Mr. Cummins,” told her that she was
being overly sensitive and needed to get past this and work with Cummins (Felty Decl. ¶ 22; Felty
Dep. at 231, 236, 309-10.) Felty believes Healy’s suggestion that Plaintiff was being overly
sensitive was a form of gender discrimination. (Felty Dep. at 287.)
Healy concluded in a report dated April 6, 2017, that despite Cummins’ claim that he did
not “shout, raise his voice, clench his fists or otherwise intimidate [Plaintiff]”:
In light of the corroborating evidence of the occurrence of the incident I find that
on balance of probabilities, the evidence supports that [Cummins] did behave in the
manner outlined by [Plaintiff] in her complaint. I find that the evidence of
independent witness (CB) establishes that [Cummins] was screaming at [Plaintiff].
I prefer the evidence of [Plaintiff] in relation to the meeting. I also believe that
[Cummins] was acting aggressively towards her given that the clenched fists while
shouting is an aggressive and intimidating gesture. I also note that the [PIP]
documentation refers to similar conduct by [Cummins], and therefore I accept
[Plaintiff’s] evidence that [Cummins’] inappropriate and aggressive conduct was
repeated. Based on the findings of fact, I recommend that the matter should now
proceed to disciplinary hearing.
(Ex. Q to Grady Decl. (ECF No. 58-5).) On April 7, 2017, Kearney sent Cummins a second letter
summarizing Healy’s findings, enumerating the allegations against Cummins, and informing him
that a disciplinary hearing was scheduled for April 10, 2017. (Ex. R to Grady Decl. (ECF No. 586).) The day before the hearing, Cummins informed Kearney that he was sick and requested that
the meeting be rescheduled. (Ex. S to Grady Decl. (ECF No. 58-7).) Cummins took medical leave
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on April 10, 2017. (Fletcher Decl. ¶ 16; Ex. T to Grady Decl. (noting that Cummins has been on
sick leave).)
3.
Plaintiff’s Continued Supervision of Cummins
Plaintiff avers that despite her reports of verbal abuse and physical threats, Defendant
required Plaintiff to continue to supervise Cummins. (Felty Decl. ¶ 24; Felty Dep. at 220-21, 22425; Grady Dep. at 175-76, 231.) Grady testified that, according to Irish law, Cummins’ terms of
employment could not change during the investigation (Grady Dep. at 195-96, 234), and Grady
was not allowed to give Plaintiff updates during the Irish investigation because Plaintiff was
involved (Grady Dep. at 152-53). Grady admits that she does not know any details about Irish
employment law, including how investigations needed to be conducted under Irish law, and that
prior to the Cummins investigation, US HR had not been involved with an Irish investigation.
(Grady Dep. at 44-45, 47, 56-57.)
Felty further avers that even though company policy entitled her to receive a copy of
Defendant’s investigation (Felty Dep. at 228, 245), Defendant kept her in the dark about its
investigation of Cummins, including the role that Irish law might have (Felty Dep. at 249).
Felty was “constantly contacting Supervisor Fletcher and Human Resources about the
difficulty [she] was having being able to perform her job duties.” (Felty Decl. ¶ 30.) For example,
on April 4, 2017, Plaintiff emailed Rivenburgh and Fletcher to let them know that Cummins did
not show up to the regular monthly group call and that Felty was “having a really hard time being
responsible for him.” (Ex. 13 to Goddard Decl. (ECF No. 63-13).) She further avers that on or
around April 4, 2017, Cummins refused to sign a form acknowledging that he was present for an
audit. 8 (Felty Decl. ¶ 27; Felty Dep. at 243-44.) Felty forwarded the relevant email chain to
8
Plaintiff further avers that on or around April 5, 2017, Ms. Duncan called Plaintiff and reported that
Cummins had sexually harassed her. (Felty Decl. ¶¶ 32-33; Felty Dep. Tr. at 299-300.) Plaintiff avers that she elevated
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Rivenburgh and Fletcher specifically asking for permission to reach out to HR “regarding how
[she is] to move forward and continue performing [her] job as a manager in a GMP environment
at this point? For example, it is a requirement to document training, but [is she] allowed to push
him for this or how [should she] do this?” (Ex. 14 to Goddard Decl. (ECF No. 63-14).) Rivenburgh
confirmed that the audit was set up as a training event before it occurred, so Cummins does not
get to choose whether it counts. (Id.) Fletcher confirmed that Plaintiff could reach out to HR and
suggested how Plaintiff could complete the paperwork without Cummins’ compliance. (Id.)
Plaintiff avers that Cummins’ “unwillingness to sign off on the audit was a serious concern from
a regulatory standpoint, which impacted [her] as it was ultimately [her] responsibility.” (Felty
Decl. ¶ 27.) Plaintiff further avers that because Cummins did not sign the form, he could not work
on follow-up items related to the audit, further increasing Plaintiff’s workload because she had to
do the follow-up work. (Felty Decl. ¶ 27.) Felty avers that she reported Cummins’ refusal to sign
to HR, but HR never got back to her. (Felty Decl. ¶ 27; Felty Dep. at 244.) Grady testified that the
email exchange amounts to “disagreement on the work.” (Grady Dep. at 234.)
On April 5, 2017, Felty emailed Fletcher, stating that Cummins had had a meeting with the
client regarding whether certain responses in an audit would be deemed adequate, that Cummins
is not yet qualified to make such determinations, that Felty should have been made aware of the
meeting because she was the qualified auditor for the audit, and asking Fletcher how and whether
Felty could raise this issue with Cummins because she was “unsure when [she] can step in as a
Duncan’s claim to Fletcher. (Felty Decl. ¶ 32-34; Felty Dep. at 300.) Grady testified that after the Irish investigation
of Cummins was already underway, Fletcher reached out to Grady regarding Duncan’s complaints against Cummins
and that Duncan subsequently spoke to someone on the Irish HR team regarding her complaints. (Grady Dep. at 52,
54.) Thompson testified that that she understood Irish law to require a formal claim in order to start an investigation,
which Duncan did not make. (Thompson Dep. at 100.)
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manager, but [was] also concerned as the lead auditor of this audit.” (Ex. 15 to Goddard Dep. Tr.
(ECF No. 63-15).)
Felty avers that on April 6, 2017, Fletcher made Felty join a call with Cummins to review
substantive work issues but did not want Cummins to know that Plaintiff was on the phone so
Fletcher instructed Felty not to speak and to text message her if there was something she needed
to communicate. (Felty Decl. ¶ 28.) Felty avers that actions like Fletcher’s stripped Plaintiff of the
authority to do her job. (Felty Decl. ¶¶ 28-29.)
Felty avers that on or around April 13, 2017, days after Cummins began his medical leave,
she formally asked Fletcher to remove Cummins from Felty’s supervision. (Felty Decl. ¶ 35; Felty
Dep. at 220-21, 224-25.) On April 19, 2017 Fletcher emailed Plaintiff stating “I was contacted by
HR today and they said that they advised us to wait to make the reporting structure change for
Anthony until the investigation is closed.” (Ex. 10 to Goddard Decl. (ECF No. 63-10).) Thompson
and Grady admitted that Cummins’ refusal to take orders from Plaintiff, and the limitations on her
ability to interact with him would have prevented Plaintiff from successfully doing her job as his
supervisor. (Thompson Dep. at 132; Grady Dep. at 194.) Plaintiff testified that even though
Cummins was on leave, because she was kept in the dark about the disciplinary proceedings against
him, she feared that he could return to work at any time and that she would again be subject to
mistreatment by him.
On May 11, 2017, Fletcher sent a memorandum to Grady regarding Cummins’
performance, which “documented examples whereby Anthony has failed to demonstrate
continuous and sustained performance improvement.” (Ex. 11 to Goddard Decl. (ECF No. 63-11).)
Specifically, the memorandum critiques Cummins’ report/memo writing and lack of appropriate
follow up, his inability to receive and use feedback or take responsibility for his actions and his
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“unprofessional behavior” which is “creating an adversarial and uncomfortable environment.”
(Id.) The memorandum also notes that around April 5 a member of GMP auditing contacted
Fletcher to express concerns about working with Cummins, stating that Cummins is creating a
“toxic” environment and that the co-worker was hesitant to lodge a formal complaint because she
feared retaliation by Cummins. (Id.) Fletcher noted that she informed HR of this complaint. (Id.)
4.
Cummins’ Resignation
Kearney rescheduled Cummins’ disciplinary meeting for May 24, 2017. (Ex. T to Grady
Decl. (ECF No. 58-8).) On May 22, 2017, Kearney emailed Cummins to confirm that he was
medically cleared to return to work and that she had sent a disciplinary notification letter that
morning. (Ex. W to Fletcher Decl. at 3 (ECF No. 59-1).) The following day, May 23, 2017,
Cummins responded to confirm when he would be able to return to work, informing Defendant
that he required certain days off, and requesting additional time to prepare for the disciplinary
hearing. (Id.) Kearney responded that, since Cummins had been aware of the pending disciplinary
hearing since April 7, 2017, no additional preparation time would be afforded. (Id. at 2.) Cummins
responded in relevant part “[u]pon reflection I have decided that I will not be attending the
disciplinary hearing and instead intend to resign from my position with Regeneron.” (Id. at 1.)
Cummins forwarded the email he sent to Kearney to Fletcher to let her know that he was resigning
his employment. (Id.; Ex. U to Grady Decl. (ECF No. 58-9).) Because Cummins resigned, the Irish
investigation was never concluded. (Grady Dep. at 179-81.)
Later that day, Fletcher emailed the GMA distribution list, of which Plaintiff was a
member, informing them that Cummins had resigned effective that day. (Ex. X to Fletcher Decl.
(ECF No. 59-2); Felty Dep. at 245.)
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E.
Felty’s Leave and Separation from Defendant
Felty went on medical leave on May 9, 2017. (Def.’s SUMF ¶ 90; Pl.’s CSUMF ¶ 90.) She
avers that while she was on leave and prior to learning that Cummins had resigned, Plaintiff
decided to resign because Defendant was “not supporting [her] in a management position where
[she] was being discriminated against.” (Felty Decl. ¶ 36; Felty Dep. at 33-34, 246-47.)
Nonetheless, Felty admits that she checked emails periodically while she was on leave and learned
that Cummins had resigned his employment with Defendant. (Felty Dep. at 239-41, 245-46; Def.’s
SUMF ¶¶ 91-92; Pl.’s CSUMF ¶¶ 91-92.)
In mid-June, Felty and Fletcher corresponded about changes Fletcher was making to the
audit calendar and Fletcher’s plan to hire and train new auditors, including a replacement for
Cummins. (Def.’s SUMF ¶ 93; Pl.’s CSUMF ¶ 93.) Felty responded “All of that is great news!
I’m feeling pretty good, but am worried I’m not going to physically be up to traveling for some
time.” (Ex. Y to Fletcher Decl. (ECF No. 59-3).)
On the morning of June 30, 2017, Felty emailed Fletcher and one of Defendant’s benefits
analysts to inform them that she would be returning to work on July 6, 2017. (Ex. Z to Fletcher
Decl. (ECF No. 59-4); Def.’s SUMF ¶ 94; Pl.’s CSUMF ¶ 94.) Later that day, Felty emailed
Fletcher, Gilooly, and Grady her letter of resignation, which indicates that her last day of work
would be July 14, 2017. (Ex. AA to Fletcher Decl. (ECF No. 59-5); see Felty Dep. at 34-35
(admitting that she resigned and that it was her own choice).) Fletcher responded to Felty’s
announcement stating “I’m so very sorry to hear this. I wish we could have had an opportunity to
speak directly before you made a decision like this. I enjoyed working with you and really wish it
could have been longer. I view this as a big loss to the team and to Regeneron. I respect your
decision and wish you the very best.” (Ex. BB to Fletcher Decl. (ECF No. 59-6).)
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Grady also reached out to Felty to ask whether she would be interested in a position in one
of Defendant’s other departments and put her in touch with the director of another department to
discuss a potential position. (Grady Decl. ¶¶ 26-27; Felty Dep. at 270-71; Felty Decl. ¶ 27; Grady
Dep. at 150; Def.’s SUMF ¶¶ 101-02; Pl.’s CSUMF ¶¶ 101-02.) Felty met with the director of the
other department and then informed Grady that she would not take the position. (Grady Decl. ¶¶
28-29; Def.’s SUMF ¶ 102; Pl.’s CSUMF ¶ 102.) Felty claims that she did not take the position
because it was a demotion and she would have no direct reports. (Felty Dep. at 272, 283.) Grady
avers and a text message Felty sent to Grady suggests that Felty was concerned that the new
position would require more travel and she may be medically restricted from traveling. (Grady
Decl. ¶ 29; Ex. V to Grady Decl.) Felty admits she told Grady that she was concerned about the
travel involved in the other position but testified that the travel was not the real reason Plaintiff
declined to take the position. (Felty Dep. at 273-75.)
Felty testified that she “returned for her two weeks.” (Felty Dep. at 256, 270.) She also
testified that when she left the company, she met with Gilooly who “apologized again for the
[Cummins] situation, and she said it was the worst she had ever experienced in the years that she
was working [for Defendant].” (Felty Dep. at 317.)
F.
Procedural History
Plaintiff filed this action on June 21, 2018 (ECF No. 1), and amended her complaint shortly
thereafter, on June 22, 2018 (ECF No. 4) and June 25, 2018 (ECF No. 9). Defendant answered on
September 9, 2018. (ECF No. 17.) On September 19, 2018, the matter was reassigned to this Court.
(ECF No. 20.) Magistrate Judge Judith C. McCarthy oversaw discovery (ECF No. 26), which was
completed on October 14, 2019 (ECF No. 49). Currently pending before the Court is Defendant’s
motion for summary judgment (ECF No. 54), which Plaintiff has opposed (ECF No. 62), and in
support of which Defendant has filed a reply (ECF No. 61).
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LEGAL STANDARDS
I.
Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment shall be granted if “there
is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). “[G]enuineness runs to whether
disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs
to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the
applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.
1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material
fact exists, a plaintiff “may not rest upon the mere allegations or denials of the pleading[s],” but
must by affidavit or otherwise “set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). “Conclusory statements, conjecture or speculation by the party
resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63,
71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of
the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine
issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). If the
initial burden is met, the non-moving party “must produce specific facts indicating that a genuine
issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is
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not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
II.
Employment Claims
Under Title VII, it is unlawful for an employer to “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Similarly, the NYSHRL states that it is “an
unlawful discriminatory practice” for an employer, based on an individual’s sex, “to discriminate
against such individual in compensation or in terms, conditions or privileges of employment.”
N.Y. State Exec. Law § 296(1)(a). “[A] hostile work environment is one form of disparate
treatment on the basis of” membership in a protected class. Raniola v. Bratton, 243 F.3d 610, 617
(2d Cir. 2001). “Whereas other disparate treatment claims may scrutinize discrete harms such as
hiring or discharge, a hostile work environment claim analyses a workplace environment as a
whole to discover whether it is “abusive.” Id. (citing Harris v. Forklift, 510 U.S. 17, 22 (1993)).
In addition, both Title VII and the NYSHRL have anti-retaliation provisions. 42 U.S.C. § 2000e3(a); N.Y. Exec. Law § 296(7).
Title VII and the NYSHRL claims are evaluated under the burden-shifting analysis
articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
See, e.g., El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932-33 (2d Cir. 2010) (per curiam)
(retaliation claims); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir.
2010) (“We review discrimination claims brought under the NYSHRL according to the same
standards that we apply to Title VII discrimination claims.”).
Under the McDonnell Douglas framework, the plaintiff must establish a prima facie
case. 411 U.S. at 802. The plaintiff’s burden at this stage is “minimal” or “de minimis.” Weinstock
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v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (describing burden for discrimination claims);
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (describing burden for
retaliation claims). Once a plaintiff has made a prima facie case, the burden shifts to the employer
to articulate a “legitimate, nondiscriminatory reason” for the employment action. McDonnell
Douglas, 411 U.S. at 802. In other words, “[t]he defendant must clearly set forth, through the
introduction of admissible evidence, reasons for its actions which, if believed by the trier of
fact, would support a finding that unlawful discrimination was not the cause of the employment
action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks and
emphasis omitted).
Upon the defendant’s proffer of a non-discriminatory reason, the presumption of
discrimination arising with the prima facie case “drops from the picture,” Weinstock, 224 F.3d at
42 (citing Hicks, 509 U.S. at 510–11), and the “final and ultimate burden” then returns to the
plaintiff to demonstrate that “defendant’s reason is in fact [a] pretext for unlawful discrimination,”
Cortes, 802 F.3d at 231; see McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 42. The
plaintiff must “produce not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and
that more likely than not the discrimination was the real reason for the employment action.”
Weinstock, 224 F.3d at 42 (internal quotation marks omitted) (citation omitted). Alternatively, a
plaintiff may meet its final burden by relying on direct or indirect evidence demonstrating that “an
impermissible reason was a motivating factor, without proving that the employer’s proffered
explanation played no role in its conduct.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 81 (2d
Cir. 2001) (internal quotations omitted)). “In short, the question becomes whether the evidence,
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taken as a whole, supports a sufficient rational inference of discrimination.” Weinstock, 224 F.3d
at 42.
Where a plaintiff alleges discrimination or retaliation by a co-worker rather than a
supervisor, Plaintiff must demonstrate that defendant “either provided no reasonable avenue for
complaint or knew of the harassment but did nothing about it. An employer will be liable in
negligence for a . . . hostile work environment created by a victim’s co-workers if the employer
knows about (or reasonably should know about) that harassment but fails to take appropriate
remedial action.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000)
(alteration and internal citations omitted); accord Bentley v. AutoZoners, LLC, 935 F.3d 76, 90-91
(2d Cir. 2019). “An employer need not prove success in preventing harassing behavior in order to
demonstrate that it exercised reasonable care in preventing and correcting sexually harassing
conduct. However . . . if harassment continues after complaints are made, reasonable jurors may
disagree about whether an employer’s response was adequate.” Whidbee, 223 F.3d at 72.
Reasonableness in the employer’s response, rather than perfection, is the standard imposed by law.
Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997).
The Second Circuit has “repeatedly expressed the 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. At the same time, . . . the salutary purposes of summary
judgment-avoiding protracted and harassing trials-apply no less to discrimination cases than to
other areas of litigation.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (quotation marks,
citations, and alterations omitted.) As in any other case, a plaintiff in an employment
discrimination or retaliation case “must ‘do more than simply show that there is some metaphysical
doubt as to the material facts.’ She must come forth with evidence sufficient to allow a reasonable
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jury to find in her favor.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal citations
omitted). “[C]onclusory statements,” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018),
and “affidavit[s] that contradict[ ] the party’s previous sworn testimony,” In re Fosamax Prods.
Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013), cannot defeat summary judgment.
DISCUSSION
Felty avers that she was subjected to a hostile work environment and discrete acts of
disparate treatment on the basis of gender and that reporting such discrimination also resulted in
unlawful retaliation. The Court will address each claim in turn.
I.
Retaliation
A.
Legal Standards
To make out a prima facie case of retaliation, plaintiff must establish “(1) participation in
a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse
employment action.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks
omitted). “Protected activity is action taken to protest or oppose statutorily prohibited
discrimination.” Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019) (quotation marks
omitted).
Title VII and the NYSHRL protect “the filing of formal charges of discrimination . . . as
well informal protests of discriminatory employment practices.” Littlejohn v. City of New York,
795 F.3d 297, 317 (2d Cir. 2015) (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990)). “While it is unnecessary for an individual to specifically invoke the word discrimination
when complaining in order to alert her employer to her protected activity, there must be some basis
to conclude that the employer was aware that the plaintiff engaged in protected activity.” Lucio v.
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New York City Dep’t of Educ., 575 F. App’x 3, 6 (2d Cir. 2014); see also Sherman v. Fivesky,
LLC, No. 19-CV-8015 (LJL), 2020 WL 2136227, at *7 (S.D.N.Y. May 5, 2020) (“although
complaints need not mention discrimination or use particular language, ambiguous complaints
must make the employer aware of the alleged discriminatory misconduct to put the employer on
notice”). Further, “[t]o establish that his activity is protected under Title VII, a plaintiff need not
prove the merit of his underlying discrimination complaint, but only that he was acting under a
good faith, reasonable belief that a violation existed.” Sumner, 899 F.2d at 209.
Accordingly, Courts have held that a letter merely alleging that demotion was “illegitimate
and contrary to law” “is too general to indicate that [the plaintiff] was protesting his demotion as
discriminatory. Natofsky, 921 F.3d at 354 (citing Lucio, 575 F. App’x at 6); see McDowell v. TMobile USA, Inc., 307 F. App’x 531, 534 (2d Cir. 2009) (rejecting plaintiff’s claim, based on his
testimony regarding his intent, that he had “implicitly” complained about racial discrimination
despite “undisputed” record “that plaintiff never explicitly complained about racial discrimination
in any of his oral complaints”); Jain v. Tokio Marine Mgmt. Inc., No. 16CV8104, 2018 WL
4636842, at *8 (S.D.N.Y. Sept. 27, 2018) (complaints of “harassment” or “unfair treatment”
without any mention that victim viewed aggressor’s actions as racially discriminatory not
protected activity).
B.
Application
1.
Prima Facie Case
a)
Protected Activity
Felty clearly believes that Cummins mistreated her because of her gender. The question,
though, is whether her complaints about Cummins were such that Defendant knew or should have
known that she was complaining about unlawful gender discrimination or merely about his
inappropriate behavior more generally. Plaintiff avers that she first complained to her supervisor,
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Fletcher, regarding Cummins’ allegedly discriminatory behavior in February 2017. Fletcher avers
that Plaintiff complained about Cummins’ behavior, including “that Cummins had raised his voice
at [Felty] during a performance review meeting” on March 16, 2017, and that Fletcher had
numerous conversations with Thompson and Grady about how to address Cummins’ behavior
(Fletcher Decl. ¶¶ 12-14), but does not mention whether Plaintiff ever expressed to Fletcher her
belief that she was being subjected to gender-based discrimination.
Plaintiff further avers that she reported Cummins’ allegedly discriminatory behavior to
Grady and Thompson on March 17, 2017. Defendant admits that Plaintiff raised concerns
regarding Cummins with HR on March 17, 2017 but avers that her complaint was insufficient to
put Defendant on notice that that she was complaining about unlawful discrimination as opposed
to generalized workplace grievances. In support of this position, Defendant relies on Thompson
and Grady’s accounts of conversations with Felty regarding Cummins’ behavior.
The conflicting accounts by Plaintiff on the one hand and Grady, Thompson, and Fletcher
on the other raise a material factual dispute as to whether Plaintiff informed Defendant of her belief
that Cummins was discriminating against her on the basis of her gender. See, e.g., Meyers v. Medco
Health Sols., Inc., No. 09 CIV. 09216 RKE, 2012 WL 4747173, at *7 (S.D.N.Y. Oct. 4,
2012), reconsidered in part on other grounds, No. 09 CIV. 09216 RKE, 2015 WL 1500217
(S.D.N.Y. Mar. 31, 2015) (holding that there was a dispute of material fact regarding whether
plaintiff engaged in protected activity where plaintiff testified that her harasser treated her
differently than her male colleagues and defendant contended that plaintiff testified that she could
not recall whether she reported gender-based discrimination specifically, the people she
purportedly reported to unequivocally said that she did not report gender discrimination, and
plaintiff lacked any notes of such complaints despite other detailed contemporaneous notes).
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But the standard is not just whether Defendant knew; a defendant can be liable if, based on
the circumstances, the employer should have known that an employee was engaging in protected
activity. Plaintiff’s contention that she engaged in protected activity must be viewed in the context
of the accounts of Kemp, Cummins’ former supervisor, who avers that she raised concerns to
Defendant that Cummins’ targeted misbehavior was motivated by his beliefs toward gay people
and women. Kemp avers that she raised such concerns with her boss, Rivenburgh, in the Spring of
2016 (Kemp Dep. at 59; Kemp Decl. ¶¶ 10-12, 17, 20), and with HR (Id. ¶¶ 13, 15). This evidence
that prior to Felty’s complaints supervisors and HR had been warned that Cummins’ behavior was
discriminatory toward gay people and women could lead a reasonable jury to conclude that
Defendant should have understood Felty to be making a complaint about discrimination rather than
general workplace grievances at least by March 17, 2017. Cf. cf. Lenzi v. Systemax, Inc., 944 F.3d
97, 113 (2d Cir. 2019) (holding that plaintiff made a prima facie case of retaliation where plaintiff’s
email alleging disparate payment relative to peers “standing alone” might not establish protected
activity, it was sufficient when read in context of subsequent discussion in which plaintiff stated
that she was “concerned that [she] wasn’t paid relative to peers and . . . [she] wanted to be treated
similarly to the males,” which is how such claims must be evaluated).
b)
Adverse Action
The Court next considers whether Plaintiff has suffered an adverse action. In the context
of a retaliation claim, “an adverse employment action is any action that ‘could well dissuade a
reasonable worker from making or supporting a charge of discrimination.’” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 57 (2006)). The Supreme Court has advised that
Context matters. The real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and relationships which
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are not fully captured by a simple recitation of the words used or the physical acts
performed. A schedule change in an employee's work schedule may make little
difference to many workers, but may matter enormously to a young mother with
school-age children. A supervisor's refusal to invite an employee to lunch is
normally trivial, a nonactionable petty slight. But to retaliate by excluding an
employee from a weekly training lunch that contributes significantly to the
employee's professional advancement might well deter a reasonable employee from
complaining about discrimination.
White, 548 U.S.
Plaintiff avers that after she complained about Cummins’ behavior toward her, Defendants
denied her request that Cummins be supervised by someone else and simultaneously prohibited
her from assigning him any work, which significantly increased Plaintiff’s work and decreased
Cummins’ work, and significantly impeded her ability to do her job as a supervisor to Cummins
and others. Courts have held that a disproportionately heavy workload can constitute an adverse
employment action. See Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (holding that
increasing an employee’s workload may be an adverse action for the purposes of a retaliation
claim if the increase is heavily disproportionate to those similarly situated); cf. Feingold v. New
York, 366 F.3d 138, 153 (2d Cir. 2004) (stating that an excessive workload allocated disparately
based on membership in a protected class could amount to adverse action in Title VII
discrimination claim). Felty provided unrebutted testimony that her hours increased after she
complained on March 17, 2017.
Plaintiff further avers that Defendant’s actions coupled with Cummins’ increasing
dismissiveness and lack of cooperation—including his refusal to attend meetings or sign a form
for an audit he had attended—stripped her of her ability to do her job. See Howley v. Town of
Stratford, 217 F.3d 141, 155 (2d Cir. 2000) (holding that plaintiff should be allowed to testify
about likelihood of her harasser being insubordinate because “whether he would comply . . . may
affect [plaintiff’s] ability to perform her job”); see also Kirkweg v. N.Y.C. Dep't of Educ., 633 F.
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App’x 40, 41 (2d Cir. 2016) (“Acts that humiliate or undermine an employee's authority with
subordinates can constitute adverse action supporting a claim for retaliation whether or not
accompanied by any pecuniary injury” (citing Howley, 217 F.3d at 154-55)).Accordingly, this case
is distinguishable from Mathirampuzha v. Potter, in which the Second Circuit determined there
was no adverse employment action because after the alleged assault “the plaintiff continued to
work at the [same place,] in the same position, at the same pay, and with the same responsibilities.
Indeed, there is no evidence that the assault brought lasting harm to the plaintiff's ability to do his
job.” 548 F.3d 70, 79 (2d Cir. 2008). Because the conditions Defendants imposed on her materially
altered Felty’s ability to do her job, they constitute adverse employment actions.
Accordingly, the Court finds that Plaintiff has adduced evidence from which a reasonable
jury could conclude that following her complaint to HR, Defendant subjected Plaintiff to
conditions that would deter a reasonable employee from challenging discrimination.
c)
Causal Connection
Viewing the facts in the light most favorable to Plaintiff, after she complained, her
workload increased while that of her harasser was significantly diminished. Accordingly, the Court
finds that Plaintiff has met the de minimis prima facie burden.
2.
Non-Discriminatory Reason
Defendant’s only justification for requiring Plaintiff to continue supervising Cummins and
prohibiting her from assigning him work is that Irish law prevented them from changing Cummins’
supervisor while the disciplinary charges were pending. However, Defendant has failed to adduce
any legal authority or admissible evidence that it was so bound by Irish law. In fact, the only
evidence regarding the constraints of Irish law is in the form of testimony from Defendant’s US
HR employees, Thompson and Grady who aver that colleagues in Ireland told them about these
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constraints and both admitted that they were themselves unfamiliar with Irish law. Such statements
are hearsay, and are therefore inadmissible. Accordingly, Defendant has failed to proffer a
legitimate non-discriminatory reason for subjecting Plaintiff to the aforementioned conditions.
***
Accordingly, the Court must deny Defendant’s motion as to the retaliation claim.
II.
Hostile Work Environment
A.
Legal Standards
To prevail on a hostile work environment claim under either Title VII or the NYSHRL, a
plaintiff must show: “[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 a
specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello,
294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks and citations omitted). Finally, (3) the
plaintiff must show that the employer “create[d] such an environment because of the plaintiff’s
sex” or another protected classification. Patane v. Clark, 5008 F.3d 106, 113 (2d Cir. 2007).
“In a situation such as this, when the harassment is attributable to a coworker, rather than
a supervisor, . . . the employer will be held liable only for its own negligence.” Duch v. Jakubek,
588 F.3d 757, 762 (2d Cir. 2009) (quotation marks omitted, alteration in original).
B.
Application
Even assuming that Cummins’ harassment was severe or pervasive, Plaintiff has failed to
adduce sufficient evidence from which a reasonable jury could conclude that Cummins
discriminated against her because of her gender. Plaintiff’s evidence that Cummins’ behavior was
motivated by gender animus is one sexually inappropriate comment and one homophobic comment
coupled with various instances of Cummins becoming aggressive towards her and his previous
female supervisor when receiving feedback. While Plaintiff and Kemp both aver that they believe
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that Cummins had gender-discriminatory beliefs that caused him to act aggressively towards them
and other females on the team, they point to no specific gender-based language that confirms that
Cummins held such beliefs. Additionally, they both admit that all of Cummins’ aggression toward
female employees occurred when he was receiving feedback. Plaintiff essentially asks the Court
to adopt her opinion and that of her former supervisor without that Cummins was aggressive
because they were women not because they were giving him feedback.
Lacking evidence of Cummins’ motivation, Plaintiff hangs her hat on a quad of cases that
she avers make her evidence sufficient under a “totality of the circumstances” analysis; however,
all four cases are readily distinguishable.
The first two cases hold that where a harasser has made discriminatory comments, the
discrimination can be imputed to other, facially neutral incidents. In Kaytor v. Elec. Boat Corp.,
the court vacated in part a grant of summary judgment in favor of an employer whose employee
was alleged to have engaged in “continuous sexual harassment by means of his insulting and
degrading remarks and actions and his threats to kill [the plaintiff],” where the trial court had
explicitly disregarded admissible evidence that the alleged harasser had made certain statements
but that those statements had not been directed at the plaintiff or “sexual in nature.” 609 F.3d 537,
548 (2d Cir. 2010). The court held that “[e]ven if they did not evince sexual desire, a factfinder
would be entitled to take them into consideration in assessing the work environment and in
determining whether the abuse to which McCarthy subjected Kaytor was motivated by her
gender.” Id. In Pucino v. Verizon Wireless Commc’ns, Inc., the court found that the defendant’s
foreman (who supervised the plaintiff) “subjected women to disparately harsh working conditions
. . . [including] the disparate assignment of work in dangerous areas and the refusal to provide
assistance to female workers that was provided male co-workers” in addition to “constant use of
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the word [“bitch”] over several years in the context of the present record was sex-based and
reflected hostility to women.” 618 at 118. Plaintiff has not adduced sufficient evidence of explicit
gender-based discrimination to impute such discriminatory motive to the various instances in
which Cummins became aggressive while receiving feedback.
The third case held that the record supported a reasonable inference of sex-based hostile
work environment where on separate occasions the defendant directed physical threats at three
female employees, including plaintiff, but there was no evidence whatsoever that defendant
physically threatened men and defendant’s “most extreme outbursts were directed at women.”
Castagna v. Luceno, 558 F. App’x 19, 21 (2d Cir. 2014). Even if, as Plaintiff avers, Cummins’
most severe outbursts were directed at women, the present case does not contain the same clear
disparate treatment where Defendant’s investigation concluded that Cummins was aggressive
toward both male and female employees.
The final case held that explicit racial and sexual language coupled with physical threats
amounted to a hostile work environment on the basis of race and gender discrimination where a
supervisor’s repeated use of racial terms including “nigger,” and “spic,” as well as testimony that
he remarked “the only other job you [Hispanic] people can do is sweep the floors in McDonald’s,”
coupled with gender-based remarks such as “women should be barefoot and pregnant” in
conjunction with “repeatedly . . . backing [plaintiff] into the wall.” Cruz v. Coach Stores, Inc., 202
F.3d 560, 571 (2d Cir. 2000). Again, a single facially neutral physical incident such as the March
16, 2017 in-person meeting does not become gender-based discrimination without some additional
evidence of discriminatory intent.
In sum, Plaintiff has provided no authority and the Court is aware of none under which the
personal opinions of the Plaintiff and one of her former colleagues regarding the intent of an
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alleged harasser is sufficient to raise a dispute of material fact as to Cummins’ intent. Accordingly,
Plaintiff has failed to adduce sufficient facts from which a reasonable jury could conclude that
Plaintiff was subjected to a hostile work environment because of her gender.
III.
Gender-Based Discrimination
A.
Legal Standards
To establish a prima facie case of gender-based discrimination, a plaintiff must demonstrate
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.” Liebowitz v. Cornell Univ., 584 F.3d 487, 498 (2d
Cir. 2009).
B.
Application
Defendant concedes that Plaintiff meets the first two elements of the prima facie case as
she is a woman and was qualified for the position. (Mem. in Supp. 8-13.) Even if Plaintiff can
demonstrate that Defendant subjected her to least one adverse employment action, she fails to
adduce any evidence that Defendants’ actions were motivated by her gender.
First, the only incident Plaintiff cites in which anyone other than Cummins mistreated her
because of her gender was a single phone call with Irish HR staffer Healy. Even if Healy’s
comment that perhaps Plaintiff was overly sensitive was a gendered comment, Plaintiff has not
adduced any evidence that Healy had any ability to alter the conditions of her employment in any
way. Accordingly, any alleged discrimination by Healy is not cognizable.
Second, to the extent Plaintiff contends that she was constructively discharged, she is
mistaken. “Constructive discharge of an employee occurs when an employer, rather than directly
discharging an individual, intentionally creates an intolerable work atmosphere that forces an
employee to quit involuntarily. Working conditions are intolerable if they are so difficult or
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unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”
Whidbee, 223 F.3d at 73. Plaintiff avers that she was constructively discharged because Defendant
so grossly mishandled its investigation into Cummins’ behavior that she was forced to resign. This
argument fails because, even if Defendant mishandled the investigation, Plaintiff did not resign
under conditions that would force a reasonable person to resign. Even if Plaintiff may have
reasonably feared that while Cummins was on leave and still under her supervision, he could return
to torment her at any time, the possibility of this occurring disappeared when Cummins resigned
on May 23, 2017. Since Plaintiff admits that she was aware that Cummins had resigned before she
submitted her own resignation, her insistence that she decided to resign before she learned that
Cummins had resigned is inconsistent with the timeline and, even if true, would not change the
fact that at the time Plaintiff resigned, Cummins no longer worked for Defendant.
Because Plaintiff has failed to adduce evidence from which a reasonable jury could
conclude that Defendant took an adverse employment action against her because of her gender,
the Court must grant Defendant’s motion as to the discrimination claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is DENIED as to
Plaintiff’s retaliation but GRANTED as to the hostile work environment and employment
discrimination claims. The parties are directed to appear for a telephonic pre-trial conference on
April 14, 2021 at 11:30 am. To access the telephonic pre-trial conference, please follow these
instructions: (1) Dial the meeting number: (877) 336-1839; (2) enter the Access Code: 1231334#;
(3) press pound (#) to enter the conference as a guest. The Clerk of Court is directed to terminate
the motion at ECF No. 54.
Dated:
March 8, 2021
White Plains, New York
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