Hesse v. Dolgencorp of New York, Inc.
Filing
61
DECISION AND ORDER GRANTING in part and DENYING in part Defendant's 46 Motion for Summary Judgment. Signed by William M. Skretny, Chief Judge on 3/31/2014. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KELLY J. HESSE,
Plaintiff,
v.
DECISION AND ORDER
10-CV-421S
DOLGENCORP OF NEW YORK, INC.,
a/k/a DOLLAR GENERAL
CORPORATION,
Defendant.
I. INTRODUCTION
Plaintiff Kelly J. Hesse (“Plaintiff”) commenced this action on May 18, 2010 alleging
that Dolgencorp of New York, Inc., a/k/a Dollar General Corporation (“Dollar General” or
“Defendant”) discriminated against her based on her sex, pregnancy, and pregnancyrelated disability in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. EXEC. L. §§
290 et seq. (Docket No. 1.) Specifically, Plaintiff claims that Dollar General subjected her
to a hostile work environment, demoted her, denied her light-duty work, and terminated her
employment due to her pregnancy. (Compl. ¶¶ 60-76.)
Defendant has filed a Motion for Summary Judgment (Docket No. 46) seeking
dismissal of the Complaint on the following grounds: (1) Plaintiff cannot establish that she
was subject to a hostile work environment due to her pregnancy; (2) Plaintiff’s Title VII
claim stemming from her demotion is time-barred; (3) Plaintiff cannot establish a prima
facie case for her NYSHRL demotion claim; (4) Plaintiff cannot establish that Dollar
General’s explanation for demoting Plaintiff was pretextual; (5) Plaintiff cannot establish
a prima facie case for her pregnancy discrimination claim stemming from Dollar General’s
denial of light-duty work and subsequent termination; and (6) Plaintiff cannot establish that
Defendant’s explanation for not offering her light-duty and terminating her employment is
pretextual.1 (Def. Mem. 2-25.)
For the following reasons, Defendant’s motion is granted in part and denied in part.
II. BACKGROUND
A.
Facts2
1.
Business and Organization of Dollar General
Dollar General is a retailer of basic consumable goods, such as home cleaning
supplies, health, beauty aides, food and snacks, pet food and supplies, housewares, lawn
and garden tools, toys, and basic apparel. Defendant operates Dollar General stores in
New York, which are organized into districts. During Plaintiff’s employment, Plaintiff’s
stores, Nos. 9592 (“Fillmore Store”) and 8393 (“Nunda Store” ) were located in District 451.
During the course of her employment, Plaintiff also traveled to and worked at other stores
within District 451. (Pl. Ex. A (“Hesse Aff.”), ¶ 24.)
Each Dollar General Store operates under the direction and supervision of a Store
1
In support of its Motion, Defendant has filed a Local Rule 56(a) Statement of Material Facts
(Docket No. 46), Memorandum of Law (Docket No. 47), and appended Exhibits A-L (Docket No. 48). In
opposition, Plaintiff has filed An attorney Affidavit, a Local Rule 56(a) Counterstatement of Disputed Facts,
Memorandum of Law (Docket No. 53), and appended Exhibits A-MM. (Docket Nos. 54-56).
2
The following facts are undisputed unless otherwise noted. The Court has disregarded any
assertions or counter-assertions of fact which are not supported by admissible evidence or a valid citation.
See Loc. R. Civ. P. 56(a)(3); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (noting that
Local Rule 56 should be interpreted to provide that “where there are no[ ] citations or where the cited
materials do not support the factual assertions in the Statements, the Court is free to disregard the
assertion”).
2
Manager. Dollar General stores are also staffed with “non-exempt” employees, including
one or more Assistant Store Managers, a Lead Sales Associate or Lead Clerk, and several
Sales Associates or Clerks. (Def. Ex. J (“Tilton Decl.”), ¶ 4.) Plaintiff states that the Fillmore
store had three Assistant Store Managers, including herself and a man named Brad
Gayford, who was hired eight days after Plaintiff advised her District Manager that she was
pregnant and eventually replaced Plaintiff after she took leave six weeks later. (Hesse Aff.
¶¶ 32, 35; Pl. Ex. E (“Beardsley Dep.”) 67-71.)
The ability to frequently lift 40 pounds, and occasionally lift up to 55 pounds, is an
essential function of all retail store positions. (Def. Ex. K (“Cherry Decl.”) ¶19 & Ex. 5.)
Plaintiff denies that this is an essential function, and states that Dollar General and/or
District Manager Rhonda Tilton (“Tilton”) would selectively determine when the lifting
requirements applied. For example, Plaintiff claims that Tilton hired a woman named Anita
Christensen, knowing that she could not lift 40 pounds without reasonable
accommodations. (Pl. Ex. F; Beardsley Dep. 223-27.)
2.
Plaintiff’s Employment History
On April 13, 2005, Plaintiff was hired as a Clerk at the Nunda Store by Tilton, a
Manager at the Fillmore Store. Approximately five months later, Plaintiff was promoted to
Assistant Store Manager at the Nunda location. In January, 2006, Tilton promoted Plaintiff
again to Store Manager. At that time, Tilton served as Distirct Manager for District 451 and
was Plaintiff’s direct supervisor. Tilton was aware that Plaintiff already had a child at the
time she hired Plaintiff in April, 2005, and when she promoted Plaintiff in January, 2006.
Shortly after Plaintiff’s promotion to Store Manager, she attended Dollar General’s
two-week Store Manager training session in Lockport, New York. There, she received
3
training in Dollar General’s policies and procedures prohibiting discrimination on the basis
of sex, pregnancy, childbirth, and related medical conditions. As Store Manager, Plaintiff
was responsible for adhering to and enforcing Dollar General’s anti-discrimination policies.
During Plaintiff’s tenure as Store Manager, she struggled to keep her store’s overall
conditions up to Dollar General’s standards. Tilton repeatedly raised concerns about
Plaintiff’s performance with her. Those concerns included that Plaintiff was not holding her
employees accountable for their performance, not properly delegating work tasks, failure
to ensure that the store was properly recovered, cleaned, and overall store conditions kept
up to par. Tilton verbally counseled Plaintiff regarding these issues prior to August, 2006.
(Def. Ex. A (“Hesse Dep.”) 54-57.) Plaintiff specifically denies that she testified that Tilton
had “verbally counseled” her regarding these issues before August, 2006, but admits that
Tilton did “discuss” them with her on multiple occassions. (Id.) Verbal counseling,
according to Plaintiff, is the first level of formal counseling prior to termination and requires
documentation on the Progressive Counseling Record form with dates, times, and main
points of the conversation. (Hesse Aff. ¶¶ 16-17; Pl. Ex. M.)
On August 8, 2006, Tilton visited Plaintiff’s store and observed ongoing conditions
that caused her to issue a written counseling (second level of Progressive Discipline) to
Plaintiff. Tilton wrote up Plaintiff for the following infractions: failing to properly train, teach,
and hold employees accountable; and unacceptable store conditions, including the store
being dirty, not properly recovered, and not merchandised according to the planner.
Tilton met with Plaintiff on August 8, 2006, to inform her of the unacceptable
conditions and let her know that she was going to issue Plaintiff a written counseling. The
written counseling was prepared on August 11, 2006, and issued to Plaintiff on August 25,
4
2006. Plaintiff was advised by Tilton that she would be issued a final counseling if she
failed to correct the issues identified in the written counseling. (Hesse Dep. 49-50, 57 &
Ex. 8). Plaintiff states that Tilton immediately issued the written counseling (second level)
without completing the verbal counseling (first level) of the Progressive Discipline Policy,
and never advised Plaintiff that she was going to issue the written counseling. (Hesse Aff.
¶¶16-17, Pl. Ex. G (“Tilton Dep.”) 328; Pl. Exs. M, N, O.)
On or about August 25, 2006, Tilton returned to Plaintiff’s store and reviewed with
Plaintiff the issues documented in the written counseling. According to Defendant, the
problems outlined therein were not addressed and had not improved at the time of her visit.
When Plaintiff received this progressive counseling, she understood that her position of
Store Manager was in jeopardy and if she did not improve the conditions of her store she
would not be able to continue with Dollar General in that capacity. (Hesse Dep. 50, 54,
57.) Plaintiff disagrees that the problems Tilton previously brought up were not addressed.
She states that while certain issues had not been resolved, the merchandising had been
improved and that she was holding her employees more accountable. (Hesse Aff. ¶ 20.)
Plaintiff further states that the Nunda Store was in poor condition when she became Store
Manager, and that despite its problems, Plaintiff’s store was still meeting sales goals. (Id.,
¶¶ 20-21.) She notes that her Annual Performance Review for the year 2006 was rated as
“meets expectations” for store cleanliness by Tilton. (Pl. Ex. P.)
Plaintiff alleges that in late August, 2006, after Tilton began counseling her
regarding her performance problems, Tilton asked her if she was planning to have any
more children, and Plaintiff responded that she was. This conversation was part of a group
discussion among four women. (Hesse Dep. 83.) Plaintiff felt that the question was
5
inappropriate, unusual, and made her feel uncomfortable. (Hesse Aff. ¶ 15.) Tilton never
said anything negative or derogatory about Plaintiff’s desire to have more children in the
future, and Plaintiff was not pregnant at the time this conversation took place. Further,
Plaintiff did not report the conversation to Dollar General’s Employee Response Center or
to anyone else at Dollar General. However, she states she felt intimated and afraid to
report the matter. (Hesse Aff. ¶ 15.)
The conditions of Plaintiff’s store did not improve, and TIlton placed Plaintiff on final
counseling (third level of Progressive Discipline) as a result. On October 18, 2006, Tilton
informed her supervisor, Brian Obrist (“Obrist”) that Plaintiff’s store failed an audit.
Following the results of the audit, Tilton met with Plaintiff and all of the employees at the
Nunda Store to discuss recovery and improvement of store conditions. Tilton also sent
Plaintiff for additional training with another experienced Store Manager. (Hesse Dep. 64;
Def. Ex. D (“Tilton Dep.”) 375-6 & Ex. 68.) Plaintiff states that Tilton considered her a “hard
worker” with “excellent” customer service skills, and that Tilton did not know that Plaintiff
was not adequately trained before being “plunked in” as a Store Manager at Nunda. (Pl.
Exs. V & O.)
In December of 2006, Plaintiff’s store still was not meeting Dollar General standards,
and as a result Tilton demoted Plaintiff to Assistant Store Manager at the Fillmore Store.
Plaintiff accepted the demotion and testified that, although she was not happy about the
transfer, she expressed to Tilton that the Fillmore Store was closer to her home and that
was a positive. Plaintiff began working as an Assistant Store Manager at the Fillmore Store
on December 9, 2006, reporting to Manager Heather Beardsley (“Beardsley”). Plaintiff’s
performance as Assistant Manager was very good.
6
Plaintiff was replaced by Patrick Harrison (“Harrison”), a male Store Manager who
received a “standard” performance evaluation and was subject to Progressive Counseling
for substandard performance after being transferred. (Pl. Ex. HH.)
3.
Plaintiff’s Participation in the “Alpha Project”
The Alpha Project was a project created by Dollar General to identify and liquidate
aged merchandise and to assist in the process of closing certain unproductive stores. In
January, 2007, Tilton invited Plaintiff to participate in the Alpha Project. Plaintiff felt that
Tilton’s invitation indicated that Tilton believed that Plaintiff was a good merchandiser and
a hard worker. For the duration of the project, Plaintiff and other Alpha team members
traveled to various stores throughout the area to assist with merchandising, which included
scanning, stocking, and restocking merchandise.
The Alpha Project lasted through September, 2007. During this time, Plaintiff
traveled with the Alpha team to various locations within the district. At the project’s
conclusion, Plaintiff returned to her Assistant Store Manager position at the Fillmore Store,
although Tilton still occasionally asked Plaintiff to assist her at other locations. According
to Defendants, Tilton did so because she thought Plaintiff was a good employee and
enjoyed working outside of her store. (Beardsley Dep. 215; Hesse Dep. 110; Tilton Dep.
312.) Plaintiff denies that this was the case, and states that Tilton knew she was pregnant
at the time she was asked to travel throughout the region from store to store. (Hesse Aff.
¶ 34.)
4.
Pregnancy and Lifting Restriction
Plaintiff learned that she was pregnant on or about September 19, 2007, and
7
notified Tilton shortly thereafter. For approximately two months, Plaintiff continued to
perform the essential functions of her job as Assistant Store Manager and also performed
occasional special projects with Tilton. Plaintiff states that only eight days after she
informed Tilton that she was pregnant, Tilton hired Brad Gayford (“Gayford”) as an
additional Assistant Manager for the Fillmore Store. No application exists in any Dollar
General record indicating that Gayford applied for the Assistant Manager position, although
Dollar General required an application for employment. (Tilton Dep. 185-86.)
Plaintiff’s doctors characterized her pregnancy as high-risk due to complications that
Plaintiff had experienced during her first pregnancy, and Plaintiff informed Tilton of the
same. Plaintiff alleges that Tilton suggested to Plaintiff to get a note from her doctor and
take leave from employment. (Hesse Dep. 154-55.) Plaintiff also states that Tilton told her
the following during a work trip:
I was making it hard for [Tilton] not to fire me because other
people had told her that I was bad mouthing my Store
Manager, Heather Beardsley . . . . She also told me that I got
paid too much for what I did . . . . Ms. Tilton told me that her
options were to fire me or see if my doctor would pull me out
of work until I had my baby. After I would deliver my baby, she
said she would try to transfer me out of the Fillmore store when
I came back to work. [She] also told me that I should not return
to work . . . [and] that I should use my one week vacation time,
and then try to obtain a leave under the Family Medical Leave
Act and disability.
(Id., ¶ 35.)
In November, during a routine doctor’s appointment, Plaintiff’s physician placed her
on a 20 pound lifting restriction. Plaintiff communicated her work restriction to Tilton, and
TIlton forwarded the restriction to the leave department at Dollar General. Plaintiff states
that she was instructed to request leave under the Family Medical Leave Act (“FMLA”), and
8
that no attempt was made to accommodate her restrictions, unlike other, non-pregnant
Dollar General employees. (Hesse Aff. ¶¶ 42, 49, 51.)
5.
Requirements and Duties of Assistant Store Manager
Plaintiff’s assigned job duties as an Assistant Manager included: assisting with
unloading merchandise delivered by trucks and assisting with efficient staging, stocking,
and storing of merchandise. The physical requirement of the position also included, inter
alia, frequent walking and standing, bending, stooping, and kneeling to run the check out
station, and proper lifting of up to 40 pounds while occasionally lifting up to 55 pounds.
Plaintiff states that Store Managers had the discretion to schedule employees to
perform certain tasks, and that this discretion permitted employees who may be suffering
from short-term disability not to perform one or more of these tasks. (Hesse Aff. ¶ 7,
Beardsley Dep. 163-64; Tilton Dep. 110-11, 113-14.)
6.
Dollar General Stores
Dollar General sells a wide variety of consumer products, including “core” products
that are expected to always been available for purchase in a Dollar General Store. Core
products were often delivered in bulk or in cases, and could be packaged in cartons or
cases weighing over 20 pounds. Such core products include pasta sauce, 12-packs of
toilet tissue, canned beans and fruit, powdered sugar, ketchup, spaghetti, soup, and maple
syrup. During November, 2007 through March, 2008, trucks made deliveries weighing
14,584 pounds to the Fillmore Store, equaling over seven tons of merchandise. This
merchandise moved from the back stockroom where it was delivered to the sales floor by
the physical work of store employees.
9
Working within the store’s labor hours, employees must unload merchandise coming
in weekly truck deliveries by getting the merchandise from the back stockroom to the sales
floor, and placed upon the shelves (stocking). Store employees must also continuously
replenish merchandise after it is sold (re-stocking).
These merchandising tasks are ongoing, and pursuant to the directions of the Store
Manager, all employees in the store are expected to participate in the stocking and
restocking of the store. Thus, every employee, including Assistant Managers, must be able
to perform the various physical tasks, including lifting, in order to effectively operate the
store within the labor budget.
The Fillmore Store was budgeted for two Assistant Managers; Sandra Gilman
worked as an Assistant Manager along with Plaintiff, although Plaintiff was often out on
assignment with the Alpha team or working on other projects.
On or about September 1, 2007, Sandra Gilman was promoted to Store Manager
and transferred to the Nunda Store. On or about September 28, 2007, Tilton hired Gayford
as an Assistant Manager for the Fillmore Store. According to Tilton, she had been
recruiting Gayford for several months prior to hiring him, and Tilton thought he would be
a good candidate for a future Store Manager position. (Tilton Decl. ¶ 14; Tilton Dep. 181,
186, 208.) Plaintiff states that for a period of time after Gayford was hired on September
28, Sandra Gilman, Plaintiff, and Gayford were all assigned as Assistant Managers to the
Fillmore Store. (Beardsley Dep. 275-76.) Plaintiff further avers that Gayford was hired only
eight days after she told Tilton of her pregnancy, and, while Tilton claims to have been
recruiting Gayford for several months prior to hiring him, no application for employment
exists for Gayford in Dollar General’s records. (Pl. Ex. GG.)
10
7.
Plaintiff’s Leave
Due to Plaintiff’s physician’s order that she not lift anything in excess of 20 pounds,
Dollar General provided her with 12 weeks of FMLA leave, from approximately November
24, 2007 through January 30, 2008. (Hesse Dep. 166; Def. Ex. A, Ex. 13.) Plaintiff states,
however, that she could have performed her essential job functions with reasonable
accommodations. (Hesse Aff. ¶ 43; Pl. Ex. T.)
On or about January 25, 2008, Plaintiff called Dollar General’s leave department to
inquire about whether she would be able to return to work after the expiration of her FMLA
leave. (Hesse Dep. 171.) Upon telling the representative of the leave department that she
wanted to return to work, she was advised that if she had work restrictions she would be
unable to return and would be terminated at the end of February because her leave had
expired. (Id. 171-72.) Because Plaintiff was unhappy with the leave department’s recitation
of Dollar General’s leave policies, she was referred to the Dollar General Employee
Response Center (“ERC”). The ERC told Plaintiff that Obrist, Dollar General’s Regional
Manager, would contact her to discuss the situation. (Id. 171-173.)
Obrist called Plaintiff on or about January 29, 2008, to discuss with Plaintiff her
inquiry about returning to work. At this time, Plaintiff relayed to Obrist that she was still
restricted from lifting more than 20 pounds and that she wanted to be able to return to work
with such restriction. Obrist reiterated Dollar General’s policy to Plaintiff and informed her
that she would be unable to return to work under the current lifting restriction. (Def Ex. B
(“Obrist Dep.”) 261.) Plaintiff claims that she told him that certain other employees were
permitted to work with medical restrictions. (Hesse Aff. ¶ 48.)
11
On January 31, 2008, Dollar General sent Plaintiff a letter explaining that her FMLA
leave had expired, and asked Plaintiff to contact Dollar General within ten days to discuss
her ability to return to work.
After Plaintiff’s conversation with Obrist, she phoned the ERC again and explained
that she was dissatisfied with Obrist’s explanation as to why she was unable to return to
work. Accordingly, the ERC transferred her to Dollar General’s Alternative Dispute
Resolution department. A representative there told Plaintiff that Dollar General could
provide her an additional four weeks of medical leave after the expiration of her FMLA
medical leave. Thereafter, Dollar General granted Plaintiff an additional four weeks of
medical leave, to expire on February 29, 2008. Plaintiff understood that if she was not able
to return to work without restrictions by that date, her employment may be terminated.
Plaintiff’s expected pregnancy due date was May 16, 2008, approximately ten weeks
after the expiration date of her leave of absence. It was therefore anticipated that Plaintiff
would not be able to return to work at the expiration of her extended leave.
During her medical leave, Plaintiff consulted with her physician, who confirmed that
her restrictions would remain in place until she gave birth. Thus, Plaintiff’s restrictions were
expected to last from November, 2007 through mid-May, 2008., or approximately six
months.
On March 4, 2008, Dollar General sent Plaintiff a letter explaining that her medical
leave had expired and asked Plaintiff to contact Dollar General within ten days to discuss
her ability to return to work. The letter also stated that if Dollar General did not hear from
Plaintiff within ten days, the company would process a voluntary resignation of her
employment. Plaintiff’s understanding of this letter was that she had been terminated on
12
the date her leave expired, which was February 29, 2008. (Hesse Aff. ¶ 56; Pl. Ex. W.)
Defendant states that because Plaintiff was unable to perform the necessary
functions of her job at Dollar General, her employment was terminated on March 18, 2008,
a date that Plaintiff disputes. (Def. Ex. K (“Cherry Decl.”) ¶ 4; Hesse Aff. ¶ 56.) Plaintiff
reiterates that although she was under a medical restriction of lifting no more than 20
pounds, she could have performed her essential job functions with an accommodation
rather than being forced to take and exhaust leave time. (Hesse Aff. ¶ 56; Pl. Ex. Q.)
8.
Dollar General’s Leave Policy
Dollar General’s employment leave policies provide eligible employees with up to
12 weeks of FMLA leave. Its employment leave policies further provide a Medical Absence
Leave for employees with a serious health condition who are not eligible for or who have
exhausted their FMLA leave. Plaintiff received all the medical leave of absence to which
she was entitled, 12 weeks under FMLA policies and an additional four weeks under
Medical Absence Leave policies–a total of 16 weeks. Plaintiff was terminated
approximately 19 weeks after first going out on medical leave, though Plaintiff states her
termination was effective on February 29, 2008, which was 16 weeks after she first went
on leave. (Cherry Decl. ¶ 4; Hesse Aff. ¶ 56.)
Following the birth of her second child on May 8, 2008, Plaintiff applied for New York
State Unemployment Insurance Benefits. Dollar General, however, had contested her
claim for benefits on the basis that she voluntarily resigned from her job. Plaintiff received
a letter to that effect dated July 1, 2008. (Hesse Aff. ¶¶ 58-59; Pl. Exs. X &Y.)
Dollar General had previously indicated that if Plaintiff was ready, willing, and able
to return to work after the expiration of her leave, she could re-apply to an available
13
position. (Pl. Ex. U.) On August 7, 2008, Plaintiff wrote a letter to Tilton seeking
reinstatement as an Assistant Manager at the Fillmore Store, but did not re-apply to an
open position. (Pl. Ex. Z.) Plaintiff states that no one at Dollar General responded to her
request. (Hesse Aff. ¶¶ 60-61.) Plaintiff was not reinstated, but claims that Dollar General
then re-hired other individuals who were less qualified, including Harrison and Tanya
Kircherer, both of whom had previous disciplinary issues. (Pl. Exs. HH & MM.)
Store Managers are expected to contact Dollar General’s leave department when
an employee makes them aware of medical issues that may prevent the employee from
working greater than three days or that prevented the employee from performing one or
more of his or her essential job functions. Store Managers are also required to partner with
the leave department to determine how to handle work restrictions or requests for leaves
of absence to ensure employees receive the leave they are entitled to and ensure that
employees are treated consistently. Plaintiff contends that Store Managers used their
discretion to determine whether an employee could work even though he or she did not
meet certain job requirements. (Beardsley Dep. 163-66; Tilton Dep. 219-220.)
Through Dollar General’s Transitional Duty program, employees who are injured on
the job are allowed to continue working in a temporary restricted capacity when medically
approved by the doctor treating the work-related injury. Conversely, when an employee
cannot perform the requisite job functions as a result of a non-work-related injury or
condition, Dollar General does not permit the employee to work on restricted duty. Plaintiff,
as a supervisory employee, received this information in her Store Manager Training
Program (Def. Ex. O.)
Dollar General is self-insured with respect to New York Worker’s Compensation
14
claims and funds the cost of certain wage replacement benefits for qualifying New York
employees injured on the job. Thus, qualifying New York employees who are injured on the
job are paid by Dollar General during periods of incapacity–whether or not they are working
at a Dollar General store.
9.
Employees under Restrictions
a.
Vicki Tisdale
Vicki Tisdale was employed as an Assistant Manager at the Nunda Store in
January, 2006, when she suffered an on-the-job injury to her foot. She filed a worker’s
compensation claim related to her injury, and returned to work with restrictions while she
recovered.
b.
Tanya Kircherer
Tanya Kircherer was employed as an Assistant Manager at the Nunda Store when
she reported a work-related injury to her back. She filed a worker’s compensation claim
related to her injury, and returned to work while she recovered.
c.
Rhonda Tilton
Tilton was employed as a Manager at the Nunda Store when she had separate
surgeries on both of her feet. According to Tilton, she did not have any medical or lifting
restrictions. (Tilton Dep. 110-11, 113-14.) Defendant states that while Tilton wore one
walking boot at a time over a couple of weeks, she was able to perform all of her essential
job functions without accommodation. (Def. Stmt. ¶ 42.) Her testimony, however, indicates
that she could not recall whether she participated in the unloading of delivery trucks and
the stocking of store shelves after her surgeries, and she stated that it was within her
15
discretion as Store Manager to assign employees to different tasks. (Tilton Dep. 110-11,
113-14.) Tilton further testified that she did not bring in any kind of medical statement from
her doctor stating that she was able to return to work following her surgeries because there
were no restrictions. (Id. 113.) This is despite Dollar General’s policy that “an employee
returning to work from FMLA leave (or any other leave) due to the employee’s own serious
health condition will be required to submit a release to return to work (“Fitness for Duty”)
certificate from the employee’s health care provider. (Pl. Ex. DD.)
d.
Scott Rees
Scott Rees (“Rees”) worked as a Store Clerk at the Fillmore Store from June, 2007,
through March, 2010. Rees has physical limitations from cerebral palsy, in that the left side
of his body is weaker than the right, yet Rees still has use of the left side of his body. Rees
states that throughout his employment, he was able to perform the physical requirements
of his job duties, including lifting, without accommodation, did not have any physicianimposed medical or lifting restrictions, and did not ask for an accommodation. (Beardsley
Dep. 125, 259-60; Def. Ex. E (“Rees Decl.”) ¶¶ 3,5.) Plaintiff denies that Rees did not
receive any accommodations and did not have any physician-imposed restrictions. She
states that because of his disability, he had difficulty in performing many of the functions
otherwise required of a Store Clerk, including running a cash register, and was slower at
his duties than other employees. Plaintiff states she assisted Rees with lifting cartons of
product. (Hesse Aff. ¶ 51.) Though Beardsley did not request any physician’s statement
indicating whether Rees could perform the physical requirements of the job, she testified
that she and Tilton discussed his physical limitations, but neither felt that it would be a
16
problem in performing the requisite job duties. (Beardsley Dep. 117-18, 121-22.)
e.
Irene Safford
Irene Safford (“Safford”) was working as a Sales Clerk at the Fillmore Store when
she hurt her back at home and reported her injury to Beardsley. Safford asked Beardsley
if she could temporarily be relieved from mopping due to her injury, and Beardsley excused
Safford from mopping the floor for approximately one week. During that week, Safford
continued to perform all of her other job duties. Safford did not have a physician-imposed
lifting restriction.
f.
Bobbi Jo White
Bobbi Jo White worked at the Fillmore Store as a Sales Clerk for approximately
three weeks during 2007. Beardsley testified that Ms. White acknowledged the physical
requirements to work as a Sales Clerk and affirmed that she could meet those
requirements. According to Defendant, Beardsley was unaware that Ms. White claimed to
have any lifting restriction, Ms. White had never asked Beardsley for any accommodations,
and never presented Beardsley with a doctor’s note regarding any medical or lifting
restrictions. To Beardsley’s knowledge, Ms. White performed all of the essential functions
of her job, including lifting. (Beardsley Dep. 175-76, 272-73.) Ms. White never indicated
to Dollar General’s leave department that she had any restrictions. (Cherry Decl. ¶ 6.)
Plaintiff states, however, that she and Beardsley were both aware of Ms. White’s medical
issues. (Hesse Aff. ¶ 50.) Beardsley’s testimony indicates that Ms. White complained about
her medical problems, but “she never brought those problems to [Beardsley’s] attention,
and . . . she always did whatever her job was. She never got excused from anything.”
17
(Beardsley Dep. 176.)
g.
Anita Christensen
Anita Christensen (“Christensen”) worked as a Sales Associate at the Nunda Store
from August 24 to October 9, 2006. Christensen, on her acknowledgment of the physical
requirements to work in a store as part of her new hire paperwork, wrote “Doctor’s Notice”
next to the requirement of “frequent and proper lifting of up to 40 pounds; occasional lifting
up to 55 pounds” and indicated that she could perform “all essential job functions with
reasonable accommodations.” (Pl. Ex. F.) Tilton denied knowing of Christensen’s limitation,
and testified that if Christensen’s application indicated a work restriction it would be “up to
the [corporate] office to determine what this person is referencing regarding . . . essential
job functions with accommodation and what the doctor’s note was.” (Tilton Dep. 226.)
Christensen failed to present any doctor’s note or notice regarding any restriction.
Rather, Christensen informed Plaintiff, who was at that time her Manager, on October 9,
2006, that she could not lift more than ten pounds. After consulting with Tilton, her District
Manager, Plaintiff informed Christensen that she needed to bring in a doctor’s note
regarding the restriction, and Christensen failed to do so. In response to receiving notice
of Christensen’s restriction, Dollar General placed her on medical leave from October 10
through November 7, 2006. Christensen was terminated on November 4, 2006, after failing
to return to work at the conclusion of her medical leave of absence.
10.
Non-pregnant Employees
Dollar General reviewed requests for leaves of absence and notices of work
restriction for its employees in District 451. During discovery, Defendant provided to
18
Plaintiff information regarding over 100 instances of employees who sought medical leave
and/or requested accommodations in response to Plaintiff’s Interrogatories No. 8 and 9.
These are listed on a prepared chart as “Leave of Absence Events.” (Cherry Decl., Ex. 1;
Pl. Ex. EE.)
Defendant states that there were a dozen instances where Dollar General became
aware of employees with lifting restrictions. (Cherry Decl. ¶ 9.) These instances were
identified to Plaintiff in response to Interrogatories Nos. 8 and 9 as Leave of Absence
Event Nos. 6, 9, 15, 19, 31, 32, 36, 43, 47, 55, 56, and 57a. Six of the twelve instances of
employees having lifting restrictions involved non-pregnant employees (Nos. 15, 32, 43,
47, 56, 57a).
Defendants state that four of the six non-pregnant employees having lifting
restrictions returned to work without restrictions. (Cherry Decl. ¶ 14.) One of those
employees, identified at Leave of Absence Event No. 57a, was inadvertently permitted to
work with a temporary accommodation because the store returned the employee to work
without first consulting the leave department. (Cherry Decl., Ex. 1.)
Another employee, identified as Leave of Absence Event No. 29, returned to work
17 days after her leave expired, and she was not terminated despite Dollar General’s
policy. (Beardsley Dep. 187-89; Pl. Ex. EE.)
Two of the six non-pregnant employees with lifting restrictions did not return to work
at the expiration of their leave of absence periods (Nos. 46, 56).
Plaintiff states that Christensen (No. 47), did not have a leave of absence and was
permitted by Tilton to work with restrictions from August 25 through October 10, 2006. (Pl.
Ex. EE.)
19
Plaintiff also states that the employee identified as No. 46 exceeded Dollar
General’s allotted leave by 1 week. (Id.)
11.
Pregnant Employees
During the time period of January 1, 2005 to December 31, 2008, there were 23
instances of maternity leaves of absence events in District 451. Over half of these
employees returned to work following medical leave, including Nos. 9, 19, 21, 23, 30, 34,
36, 37, 40, 51, 69, and 80.
Six of the 12 Leave of Absence Events involving lifting restrictions were pregnant
women: Nos. 6, 9, 19, 31, 36, and 55. Three of these six pregnant employees had lifting
restrictions that were removed and they returned to work after taking medical leave during
their periods of restriction (Nos. 9, 19, 36). (Cherry Decl., Ex. 1.) Plaintiff states, however,
that one of these employees (No. 19) returned to work with a lifting restriction of 15
pounds, and was permitted to work with those restrictions for two weeks. (Pl. Ex. EE.)
Plainitff also states that the employee identified at No. 36 was out of work under a
combined FMLA and medical leave of 35 weeks, despite that Dollar General’s policy was
to permit only 16 weeks of leave time. (Id.) Plaintiff thus alleges that she was not permitted
to work with restrictions nor was she permitted to extend her leave after it expired, unlike
other pregnant employees.
Three pregnant employees with lifting restrictions did not return to work following
their leaves of absence (Nos. 6, 31, and Plaintiff). Plaintiff states that the employee
identified in No. 6 took a leave of absence of 22 weeks, in excess of the 16 weeks allowed
by Dollar General. (Pl. Ex. EE.) Likewise, the other employee that did not return to work
(No. 31) was provided with an additional two weeks, for a total of 18 weeks of leave. (Id.)
20
III. DISCUSSION
A.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted
where the “pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). A “genuine issue” exists “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if it “might affect the outcome of the suit under governing law.”
Id. “An alleged factual dispute regarding immaterial or minor facts between the parties will
not defeat an otherwise properly supported motion for summary judgment.” Powell v.
National Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. 2004) (citation omitted). In deciding
a motion for summary judgment, the evidence and the inferences drawn from the evidence
must be viewed in the light most favorable to the non-moving party. Weinstock v. Columbia
Univ., 224 F.3d 33, 40 (2d Cir. 2000).
The Second Circuit has noted that trial courts should be particularly cautious in
deciding whether to grant summary judgment in employment discrimination cases,
because the employer’s intent is often at issue. Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997). However, the Supreme Court more recently has “reiterated that trial
courts should not ‘treat discrimination differently from other ultimate questions of fact.’”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). In other words, summary judgment can
21
be appropriate even in the fact-intensive context of discrimination cases. This is consistent
with a principle purpose of the summary judgment rule; “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
B.
Hostile Work Environment
In her First Cause of Action of the Complaint, Plaintiff claims that Defendant
subjected her to a hostile work environment due to her pregnancy. (Compl. ¶ 61.)
Defendant contends that Plaintiff’s claim fails as a matter of law. (Def. Mem. 2-3.) The
Court agrees.
A plaintiff opposing a motion for summary judgment on a hostile work environment
claim must elicit evidence: (1) that discriminatory harassment that 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. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks
omitted). “The sufficiency of a hostile work environment claim is subject to both subjective
and objective measurement: the plaintiff must demonstrate that she personally considered
the environment hostile, and that the environment rose to some objective level of hostility.”
Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001).
Factors to consider in examining whether a work environment is sufficiently hostile
or abusive to support a Title VII claim include “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's performance.”
Leibovitz, 252 F.3d at 188; see also, Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
22
605 (2d Cir. 2006). The appropriate test is whether the “harassment is of such quality or
quantity that a reasonable employee would find the conditions of her employment altered
for the worse.” Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997).
Here, Plaintiff does not allege sufficient facts that would demonstrate conduct that
is severe or pervasive as required to create an objectively hostile or abusive work
environment. Rather, the crux and emphasis of Plaintiff’s Complaint is her disparate
treatment claim, and she does not identify any severe and pervasive conduct that created
a hostile and abusive environment because of her pregnancy. Though she points to a
string of incidents (written counseling, demotion, involuntary leave of absence) in support
of her hostile work environment claim, such discrete acts do not demonstrate continuous
and concerted conduct and thereby cannot constitute a hostile work environment. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002)
(“Hostile work
environment claims are different in kind from discrete [discriminatory] acts . . . [b]ecause
their very nature involves repeated conduct . . . .”); Chin v. Port Auth. of N.Y. & N.J., 685
F.3d 135, 157 (2d Cir. 2012) (citing Morgan);
The only other evidence Plaintiff offers is the conversation between her and Tilton
during which Tilton asked whether Plaintiff and her husband were planning to have more
children. Tilton’s inquiry if she was going to have another child is an isolated remark which
alone does not connote discrimination and clearly does not meet the threshold of severity
or pervasive. Significantly, Plaintiff testified that no one at Dollar General made any other
comments to her that were derogatory or offensive toward pregnant women. (Hesse Dep.
163.) Under these circumstances, Plaintiff does not come close to establishing a prima
23
facie case of hostile work environment.3 See George v. Liverpool, No. 97–CV–1232, 2000
WL 1499342, at *6 (N.D.N.Y. Sept. 29, 2000) (“Absent extraordinary severity, a plaintiff
must show that a series of incidents were sufficiently continuous and concerted to have
altered the conditions of her working environment.”)(internal quotations omitted); compare
Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir.1987) (“Because the claimed
incidents in the instant case were few in number and occurred over a short period of time,
they fail to allege a . . . hostile working environment”), with Brown v. N.Y.S. Dep't of Corr.
Servs., 583 F.Supp.2d 404, 416–17 (W.D.N.Y. 2008) (racial slurs, offensive sexual contact,
threats, punctured car tires, hard shoves and bumps, thrown metal objects, chain wrapped
around neck sufficient to support hostile work environment claim).
Plaintiff’s hostile work environment claim merely repeats the allegations of
pregnancy discrimination elsewhere in her Complaint and is insufficient as a matter of law
for the reasons stated above. Defendant’s motion for summary judgment on this claim is
therefore granted.
C.
Pregnancy Discrimination
The First and Second Causes of Action of Plaintiff’s Complaint assert claims of
pregnancy discrimination pursuant to Title VII and the NYSHRL when she suffered adverse
employment actions (demotion, denial of light-duty work, and termination), and was subject
to different terms and conditions of employment than non-pregnant employees. (Compl.
¶¶ 61-63. 71-72.) Defendants move to dismiss Plaintiff’s pregnancy discrimination claims
3
Even taken together, Tilton’s sole comment coupled with an alleged adverse employment action,
do not constitute a hostile work environment. Cf. Richmond v. Gen. Nutrition Ctrs. Inc., No. 08 Civ. 3577,
2011 WL 2493527, at *16 (S.D.N.Y. June 22, 2011) (frequent, highly offensive remarks over long period of
time in combination with adverse employment actions sufficient to support hostile work environment
claim).
24
on several grounds. (Def. Mem. 3-24). Plaintiff’s claims are discussed in turn below.
1.
Legal Standard
Title VII “makes it unlawful for an employer to discriminate against any individual
with respect to the ‘compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin.’” 42 U.S.C. § 2000e–2(a)(1);
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Disparate treatment discrimination
claims are analyzed using familiar burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Claims under the NYSHRL are
governed by the same standards and will have the same outcome as claims analyzed
under Title VII. See 42 U.S.C. § 2000(e); 29 U.S.C. § 621 et. seq.; Executive Law § 296,
et seq.; see also, Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n. 9 (2d
Cir.2008) (“We typically treat Title VII and NYSHRL discrimination claims as analytically
identical, applying the same standard of proof to both claims.”).
The Pregnancy Discrimination Act (“PDA”), which is an amendment to Title VII,
incorporates “women affected by pregnancy” into the definition of prohibited gender-based
discrimination, 42 U.S.C. § 2000e(k), and requires that pregnant employees not be treated
differently from other employees. A plaintiff may establish a prima facie case of
discrimination under the PDA provisions of Title VII by demonstrating: (1) that she was
within the protected group; (2) she was qualified for the position at issue; and (3) she
suffered an adverse employment action (4) under circumstances giving rise to an inference
of discrimination. See Kerzer v. Kingly, 156 F.3d 396, 401 (2d Cir.1998). “A plaintiff's
burden of establishing a prima facie case is de minimis. The requirement is neither
onerous, nor intended to be rigid, mechanized or ritualistic.” Abdu–Brisson v. Delta Air
25
Lines, Inc., 239 F.3d at 467 (citations and internal quotation marks omitted).
Once the plaintiff presents a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason for its employment decision.
See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Upon the
defendant's articulation of a legitimate, non-discriminatory reason, the presumption of
discrimination arising from the plaintiff's prima facie showing “‘drops out of the picture,’”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)); see Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000).
Assuming that a plaintiff establishes a prima facie case, and that the defendant
provides a non-discriminatory reason for the employment action, at the third tier of the
McDonnell Douglas test, the plaintiff is required “to produce sufficient evidence to support
a rational finding that the non-discriminatory business reasons proffered by the defendant
for the challenged employment actions were false.” Abdu–Brisson., 239 F.3d at 470. If the
plaintiff succeeds, such evidence may, or may not, establish the additional required proof
of discriminatory intent:
The ultimate question is whether the employer intentionally
discriminated, and proof that “the employer's proffered reason
is unpersuasive, or even obviously contrived, does not
necessarily establish that the plaintiff's proffered reason is
correct. In other words, it is not enough to disbelieve the
employer; the factfinder must believe the plaintiff's explanation
of intentional discrimination.
James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000) (quoting Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)). “The relevant factors . . . include
26
the strength of the plaintiff's prima facie case, the probative value of the proof that the
employer's explanation is false, and any other evidence that supports or undermines the
employer's case.” Id. (internal quotation marks omitted).
2.
Demotion Claim
a.
Timeliness of Plaintiff’s Title VII Demotion Claim
For a Title VII claim arising in New York to be timely, a plaintiff must have filed a
charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”)
within 300 days of the allegedly unlawful employment practice. 42 U.S.C. § 2000e-5(e);
Harris v. City of N.Y., 186 F.3d 243, 248 n. 2 (2d Cir. 1999). Here, Defendant argues, and
Plaintiff does not dispute, that her EEOC charge was not filed until August 22, 2008, more
than 300 days after her December 2006 demotion. Plaintiff argues, however, that the
demotion was only one of multiple, continuing acts of discrimination against her, and
therefore this claim should also be considered timely.
“Discrete acts of discrimination, including demotion or termination, cannot be the
basis for recovery by a plaintiff if they occurred outside the 300 day period.” McGrath v.
Thomson Reuters, No. 10 Civ. 4944(JSR)(JCF), 2012 WL 2119112, *8 (S.D.N.Y. Apr. 30,
2012) (citing Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004), aff’d, 537
F. App’x 1(2d Cir. 2013)). Further, this Court has already concluded that the discrete acts
of discrimination alleged here are insufficient to state a prima facie case of a hostile work
environment. See Patterson, 375 F.3d at 220 (where one act contributing to a hostile work
environment occurs within the statutory period, the entire time period of the hostile work
environment may be considered). Plaintiff’s Title VII claim is therefore time-barred to the
27
extent it is based on her December 2006 demotion.
b.
Prima Facie Case
Even if the claim had been timely, Defendant correctly argues that Plaintiff has failed
to establish a prima facie case of discrimination regarding her demotion under either Title
VII or NYSHRL. Defendant argues that this claim fails because: (1) she did not belong to
a protected class at the time of her demotion, and (2) she was not qualified and/or not
performing her job duties satisfactorily. (Def. Mem. 4-6.)
Under the PDA and NYSHRL, Plaintiff must prove that the employment decision
was made “on the basis of pregnancy, childbirth or related medical condition.” Shafrir v.
Ass’n of Reform Zionists of Am., 998 F.Supp. 355, 363 (S.D.N.Y. 1998). As other courts
have noted, pregnancy “differs from most other protected personal attributes in that it is not
immutable. While some effects of pregnancy linger beyond the act of giving birth, at some
point the female employee is no longer ‘affected by pregnancy, childbirth, or related
medical conditions.”’ Solomen v. Redwood Advisory Co., 183 F.Supp.2d 748, 753 (E.D.
Pa. 2002). A woman need not be pregnant at the time of termination to be a member of
the PDA's protected class; rather, this determination is made on a case by case basis. See
Helmes v. S. Colonie Cent. Sch. Dist., 564 F.Supp.2d 137, 147 (N.D.N.Y. 2008). For
example, courts have found that an employee terminated while pregnant, on maternity
leave, or soon after returning from maternity leave, is a member of the protected class. Id.
(holding plaintiff to be a member of protected class where she suffered an adverse
employment action nine weeks after she returned from maternity leave); see also,
Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995) (agreeing plaintiff was a member
of the protected class where plaintiff was terminated less than four months after giving
28
birth); Jones v. Hosp. of Univ. of Pa., No. 03–CV–4938, 2004 WL 1773725, at *3 (E.D. Pa.
Aug. 5, 2004) (holding plaintiff terminated two-and-a-half months after giving birth, and one
week after returning to work, demonstrated sufficient temporal proximity to be a member
of PDA's protected class); Shafrir, 998 F.Supp. at 363 (holding plaintiff to be a member of
protected class under PDA “[e]ven though plaintiff was neither pregnant nor ill at the time
she was discharged, she had recently given birth and was on maternity leave.”).
Whether a female individual may be part of the protected class prior to her
pregnancy, however, is an unsettled issue in this Circuit. Defendants contend that Plaintiff
was not a member of the class protected by the PDA because she was demoted 9 months
before she announced her pregnancy. (Def. Mem. 5-6.) Two district courts outside of this
Circuit have held that women who intended to have children at some point in the future
were not part of the class protected under the PDA and its analogous state statutes. See
Barnowe v. Kaiser Found. Health Plan of the Nw., No. CV 03-1672-BR, 2005 WL 1113855,
at *4 (D. Or. May 4, 2005) (plaintiff informed her supervisor that she was “planning on”
trying to get pregnant); Panizzi v. City of Chicago Bd. of Ed., No. 07 C 846, 2007 WL
4233755, at *3 (N.D. Ill. Nov. 19, 2007) (finding no Circuit precedent that supported
plaintiff’s reading of statute to cover female individuals “planning to become pregnant”).
Plaintiff, on the other hand, cites to a recent case from a district court within this
Circuit, which found that a plaintiff repeatedly discussing her intentions and attempts to
become pregnant prior to her termination from employment satisfied her burden of
establishing a prima facie case. Dantuono v. Davis Vision, Inc., No. 07-CV-2234, 2009 WL
5196151 (E.D.N.Y. Dec. 29, 2009). It is worth noting that the Eastern District analyzed
Dantuono’s argument not with regard to whether she was part of the protected class, but
29
whether she was discharged for a discriminatory reason. Dantuono, 2009 WL 5196151,
at *6-7. That court also considered the temporal proximity between the plaintiff’s
announcement that she was trying to become pregnant and her termination (six months),
the fact that immediately after she announced her pregnancy, her job description changed
to require heavy lifting and bending, and that she was subject to harassment and disparate
treatment despite her complaints to human resources. Id. at *8. The plaintiff in Dantuono
was, in fact, pregnant at the time of her termination. Id. at *2. The Dantuono case is
therefore distinguishable from the instant matter.
This Court’s search has not revealed any controlling Second Circuit precedent
considering whether a plaintiff who was planning to become pregnant at the time of an
adverse employment action could nonetheless be considered a member of the protected
class under the PDA and NYSHRL. Because the parameters of what constitutes a
protected class for purposes of a pregnancy discrimination suit have not been definitively
resolved, this Court assumes, without deciding, that Plaintiff was a member of the class
at the time she was demoted.
Next, Defendant argues that Plaintiff fails to meet her burden of establishing a prima
facie case because she did not perform her job in a satisfactory manner. (Def Mem. 6-7.)
While some cases have interpreted the second prong to mean that a plaintiff must
demonstrate that before being fired she was “performing [her] duties satisfactorily,” McLee
v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997), the Second Circuit has clarified the
standard by explaining that the difference “between ‘qualified for the position’ and
‘performing satisfactorily’ is only a mere variation in terminology.” Velez v. SES Operating
Corp., No. 07 Civ. 10946, 2009 WL 3817461 at *8 (S.D.N.Y. Nov. 12, 2009) (quoting
30
Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001)). Because a plaintiff’s
burden at this stage is de minimis, “all that is required is that the plaintiff establish basic
eligibility for the position at issue, and not the greater showing that he satisfies the
employer.” Slattery, 248 F.3d at 91-92.
Though undisputed that Plaintiff was not meeting the expectations of higher-level
management at Dollar General, she was nonetheless promoted quickly after she was hired
by Defendant in April, 2005, first from Store Clerk to Assistant Manager and then to Store
Manager. Plaintiff retained her position as Store Manager for approximately ten months
before her demotion in December, 2006. This is sufficient to establish that Plaintiff was
qualified for both the Assistant Manager and Store Manager positions for purposes of her
prima facie case. See Augustin v. Yale Club, 03–CV–1924, 2006 WL 269028973, at *23
(S.D.N.Y. Sept. 15, 2006) (finding that “[d]ue to the fact that [d]efendant hired, promoted,
and retained [p]laintiff for a significant period of time, [p]laintiff has sufficiently pled the
second prong of her prima facie . . . claim, that she was qualified for the position”).
Because Defendant has not disputed the remaining two elements–whether Plaintiff
suffered an adverse employment action that occurred under circumstances giving rise to
an inference of discriminatory intent–the Court finds that Plaintiff has met the minimal
requirements of demonstrating her prima facie case of discrimination under the PDA and
NYSHRL.
c.
Non-Discriminatory Reason
Defendant’s assertion that Plaintiff was demoted based on poor performance is a
legitimate, non-discriminatory reason for her demotion. See Goins v. Bridgeport Hosp., ---
31
Fed.Appx. ----, 2014 WL 552676 (2d Cir. 2014) (summary order); Herbert v. City of N.Y.,
748 F.Supp.2d 225 (S.D.N.Y. 2010); Chastven v. CIGNA Corp., No. 97 Civ. 6013, 1999
WL 1034753, at *10 (S.D.N.Y. Nov. 12, 1999) (collecting cases holding poor performance
and failure to meet sales quota is sufficient nondiscriminatory reason for termination of
employment).
d.
Pretext
Because Defendant has articulated a legitimate, non-discriminatory reason for
Plaintiff’s demotion, Plaintiff “must establish a genuine issue of material fact . . . as to
whether the employer's reason for the adverse action is false and as to whether it is more
likely that a discriminatory reason motivated the employer to make the adverse decision.”
Vazquez v. Southside United Hous. Dev. Fund Corp., No. 06–CV–5997, 2009 WL
2596490, at *8 (E.D.N.Y. Aug. 21, 2009) (quoting Gallo v. Prudential Residential Servs.,
Ltd., 22 F.3d 1219, 1225 (2d Cir. 1994)) (emphasis omitted) (internal editing omitted).
Direct evidence of discrimination is not necessary, particularly because “proof is seldom
available with respect to an employer's mental processes.” Carlton v. Mystic Transp., Inc.,
202 F.3d 129, 135 (2d Cir. 2000). Therefore, “[s]ummary judgment is appropriate at this
point only if the employer's nondiscriminatory reason is dispositive and forecloses any
issue of material fact.” Id.
While Plaintiff claims she was terminated under the pretext of poor performance,
she admits throughout her deposition that she was aware of her own deficiencies as a
Store Manager at the time of her demotion, that the issues with her performance were
discussed with her prior to her notifying Tilton she was trying to have more children, and
does not point to any admissible evidence that pregnant employees were treated
32
disparately at Dollar General. Rather, the only evidence of pretext Plaintiff submits is that
after she was demoted she was replaced by Harrison, a male employee. (Pl. Mem. 20.)4
Although evidence that Plaintiff was replaced by a male employee may be sufficient to
meet her burden of establishing a prima facie case of pregnancy discrimination, such
evidence alone is not enough on which a reasonable jury could find that Dollar General’s
non-discriminatory reason for terminating her employment was pretextual. See Brennan
v. Metro. Opera Ass'n, 192 F.3d 310, 317 (2d Cir.1999) (finding that evidence that plaintiff
was replaced by a substantially younger employee, while sufficient to meet “her de minimis
burden of establishing a prima facie case of age discrimination,” was insufficient to show
pretext, where the record contained no other evidence that the defendant “considered
[plaintiffs] age, [the younger employee's] age, or their ages relative to each other,” in
terminating the plaintiff's employment).
Plaintiff also argues that Harrison was unqualified, stating that Harrison’s
performance appraisals as Store Manager prior to replacing Plaintiff were “low.” (Pl. Mem.
20.) “Pretext may be proven by evidence showing a younger, less-qualified,
weaker-performing employee replaced an older employee,” Loeb v. Best Buy Co., 537 F.3d
867, 875 (8th Cir. 2008) (age discrimination case), however the evidence on this record
indicates that while Harrison ranked below standard in certain categories, his performance
appraisal was “standard” in March, 2005 and February, 2006 on a scale that included
“Below Standard,” “Standard,” and “Above Standard.” Accordingly, Harrison’s overall
4
This also relies on the assumption that Tilton understood Plaintiff’s statement that she was trying
to have more children as though she would become pregnant sometime in the immediate future.
33
rankings were not poor, but average.
Plaintiff’s similar assertion that after Harrison replaced Plaintiff that he received
“multiple verbal and written counseling reports . . . pursuant to the Progressive Discipline
policy” is of little probative value as Harrison’s counseling did not begin until January,
2008, one full year after he replaced Plaintiff.5 Finally, though Plaintiff states that Tilton
disregarded the first step of the Progressive Discipline Policy by failing to provide her with
verbal counseling prior to written counseling (Pl. Mem. 20), her own testimony indicates
that Tilton had repeatedly discussed her performance issues with her. Additionally,
Plaintiff’s Progressive Counseling record notes in two places that verbal counseling had
already occurred. (Hesse Dep., Ex. 8.)
Finally, there can be no issue of fact as to whether Dollar General’s reason for
Plaintiff’s demotion is pretextual because her disciplinary issues pre-dated the conversation
between her and Tilton regarding her potential pregnancy. See Forde v. Beth Israel Med.
Ctr., 546 F.Supp.2d 142 (S.D.N.Y. 2008) (Employer's proffered reason for terminating
employee, that she had continued unsatisfactory work performance, which began months
before employer learned that she was pregnant, was not pretext for pregnancy
discrimination under Title VII); see also, Riddick v. MAIC, Inc., Civil No. JKS 09–33, 2010
WL 4904681 (D. Md. Nov. 24, 2010) (rejecting plaintiff’s argument of pretext where
perception of poor performance preceded her pregnancy and leave announcements); but
see Colon v. Fashion Inst. of Tech., --- F.Supp.2d ----, 2013 WL 5677047 (S.D.N.Y. 2013)
5
Plaintiff has submitted duplicate copies of Harrison’s Progressive Counseling forms stamped
with successive bates numbers. As far as the Court can tell, Harrison was counseled on three occasions,
in January, October, and November of 2008. (Pl. Ex. HH.)
34
(finding sufficient evidence of pretext where plaintiff informed her employer of her
pregnancy and subsequently received negative performance evaluations and was
terminated within the same month). A plaintiff attempting to establish pretext “may not
prevail by establishing only [falsity], but must prove, in addition, that a motivating reason
was discrimination.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 447 (2d Cir. 1999) (internal
quotation marks and citations omitted). Plaintiff has failed to meet her burden. Because
she is unable to establish that the allegations of her poor performance are pretext for
pregnancy discrimination, her Title VII and NYSHRL claims arising out of her demotion
must be dismissed, and Defendant’s motion for summary judgment is granted with respect
to these claims.
3.
Light-duty/Termination Claim
Defendants next move for summary judgment on Plaintiff’s remaining claims of
pregnancy discrimination on the grounds that: (1) she fails to prove a prima facie case; and
(2) she does not show pretext regarding Dollar General’s legitimate, non-discriminatory
business reasons. (Def. Mem. 10-25.)
a.
Prima Facie case
As stated earlier, to establish a prima facie case of discrimination, Plaintiff must
show: (1) she belonged to a protected class; (2) she was qualified for the position she held;
(3) she suffered an adverse employment action; and (4) the adverse employment action
occured under circumstances giving rise to a an inference of discriminatory intent. See
Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008).
Defendant argues that Plaintiff fails to meet the second and fourth element of the
35
prima facie test.6 (Def. Mem. 10-12.)
With regard to whether Plaintiff was qualified for the position of Assistant Store
Manager, her own testimony establishes that she was not qualified to perform her Assistant
Manager duties of lifting up to 40 pounds regularly and up to 50 pounds occasionally. Not
only had her physician not cleared her to do so, she was also placed on a job restriction
for the duration of her pregnancy. On this basis, Plaintiff cannot establish a prima facie
case of discrimination. See Holmes v. United Airlines, Inc., No. 94 CV 3564, 1996 WL
560193 (E.D.N.Y. Jan. 2, 1996) (plaintiff not qualified for purposes of prima facie case
where could not perform physical requirements of job due to injury); Appel v. Inspire
Pharm., Inc., 712 F.Supp.2d 538 (N.D. Tex. 2010) (pregnant employee of pharmaceutical
company was not qualified to perform job of territory manager while under medical
restrictions placed upon her by her doctor as required to establish prima facie case of
pregnancy discrimination under Title VII).
In response, Plaintiff argues that Dollar General should have placed her in a lightduty position. (Pl. Mem. 8-9.) Pursuant to Dollar General policy, light-duty positions are
reserved for employees who have suffered on-the-job injuries. Dollar General therefore
contends that the Plaintiff was not “qualified” for light-duty and that its decision to deny her
request cannot give rise to an inference of unlawful discrimination. (Def. Mem. 10-11.) At
the prima facie stage, however, a plaintiff must only show that “she was unable to work fullduty and that there was light-duty work available . . . .” Germain v. Cnty. of Suffolk, 07-CV2523, 2009 WL 1514513, at *5 (E.D.N.Y. May 29, 2009) (citing E.E.O.C. v. Horizon/CMS
6
At the time of her denial of light-duty and termination, Plaintiff was pregnant, and Defendant
does not dispute the remaining elements.
36
Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000)). This is true irrespective of
whether an employer restricts light-duty assignment to employees that suffer on-the-job
injuries. Id. Thus, any employer policy articulating such a restriction is not appropriate for
review in evaluating a plaintiff’s prima facie case. Id.; Horizon, 220 F.3d at 1193 (“When
an employee's failure to meet objective, employer-imposed criteria is one of the legitimate,
non-discriminatory reasons advanced by an employer to dispel the inference of
discrimination raised by an employee at the prima facie stage, it cannot also be used to
defeat the employee's prima facie case.”) Here, Plaintiff has shown that she was unable
to work full-duty and that there was light-duty work available, and therefore she was
qualified for light-duty work.
Next Plaintiff must show that she was denied light-duty work under circumstances
giving rise to an inference of discriminatory intent, which may be established by showing
that she was treated less favorably than her non-pregnant counterparts. Mento v. Potter,
No. 08-CV-7451, 2012 WL 1908920, at *9 (W.D.N.Y. May 25, 2012) (citing Mandell v.
Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). “To be successful, the other employees
to whom a plaintiff compares herself must be ‘similarly situated’ in all material respects and
must have engaged in comparable conduct for which they were treated differently. Id.
(citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)).
Plaintiff submits that non-pregnant employees with both on-the-job and off-the job
injuries or conditions were treated more favorably than her, including Vicki Tisdale, Tanya
Kircherer, Bobbie Jo White, Christensen, Rees, Safford, and Tilton .7 (Pl. Mem. 12- 13.)
7
The Court need not consider whether the named employees who suffered on-the-job injuries
were similarly-situated to Plaintiff. As discussed in this section, Plaintiff has met her burden of stating a
37
On the outset, Rhonda Tilton, Dollar General’s District Manager, cannot be said to
be similarly situated to Plaintiff as her superior, see Prescod v. Am. Broad. Co., 1985 WL
430, at *14 (S.D.N.Y. Mar. 19, 1985) (“Supervisors are not similarly situated employees”);
see also, Mento, 2012 WL 1908920, at *9 (“Factors relevant to this analysis include
whether plaintiff and the comparators shared the same supervisor, were bound to follow
the same procedures, and engaged in conduct of comparable seriousness.”) (citation
omitted), though there is a question of fact as to whether she relieved herself of certain
duties while recovering from foot surgery without following Dollar General’s established
procedures. (Tilton Dep. 110-11, 113-14.)
Bobbi Jo White was not treated differently. Although Ms. White verbally told Plaintiff
she could not lift over 15 pounds, there is no evidence that she could not meet those
requirements or that she could not perform all of the lifting duties during her three-week
employment at Dollar General. White never provided a doctor’s note regarding any medical
or lifting restrictions, and there is no evidence that she did not perform the essential duties
of her job. (Beardsley Dep. 175-76, 272-73; Cherry Decl. ¶ 6.)
Christensen notified Tilton in her employment application that she had a doctor’s
note regarding a lifting restriction, but never provided the same. When Christensen advised
Plaintiff, her supervisor, that she could not lift over ten pounds, she was placed on a
medical leave of absence. Christensen did not to return to work and was terminated at the
conclusion of her leave. There is an issue of fact as to whether Christensen was
accommodated with light-duty during her employment at Dollar General and therefore as
prima facie case.
38
to whether she was treated more favorably than Plaintiff. (Hesse Dep. 174-77; Cherry
Decl. ¶ 8, Ex. 1 (Leave of Event No. 47).)
In the case of Scott Rees and Irene Safford, fact issues exist as to whether their
conditions were accommodated, albeit informally. Rees, who had certain physical effects
from cerebral palsy, states in his affidavit that he performed all of the requirements of the
job without a need for any accommodation, including lifting duties. (Rees Decl. ¶¶ 3-5.)
Plaintiff testified, however, that Rees would request assistance in lifting heavy items.
(Hesse Dep. 193-95.)
Likewise, it is undisputed that Safford was relieved from mopping duty for one week
due to a back injury sustained off-the-job. (Beardsley Dep. 182. ) Defendant makes much
of the fact that Safford’s restriction was not limited to lifting, however, drawing all inferences
in favor of Plaintiff, as the Court must for purposes of summary judgment practice, a
reasonable trier of fact could conclude that an employee that was unable to mop would
also be unable to lift up to 40 pounds–an essential function of the Sales Clerk position.
The fact that Safford’s accommodation was of short duration is of little consequence as
she and Plaintiff were both subject to temporary restrictions. See Ward v. Acme Paper &
Supply Co., Inc., 751 F.Supp.2d 801, 805-06 (D. Md. 2010).
Plaintiff has submitted evidence that Rees and Safford may have been treated
differently by being given accommodations, and has thus met her de minimis burden in
stating a prima facie case of discrimination.8
8
While the evidence presented by Plaintiff is not particularly strong, the role of the Court is not to
weigh the evidence on summary judgment, but to determine whether she has submitted enough to create
a material issue of fact regarding whether similarly-situated individuals were treated differently.
39
b.
Non-discriminatory Reason
Defendant states that its policy of only permitting individuals who have work-related
injuries to perform light-duty work is non-discriminatory. (Def. Mem. 18.) This would be true
if its Transitional Duty policy were administered uniformly. See, e.g., Lee v. Healthfirst,
Inc., No. 04 Civ. 8787, 2007 WL 634445, at * 12-14 (S.D.N.Y. Mar. 1, 2007) (granting
summary judgment where defendant granted and denied salary increases and bonuses
consistent with policy guidelines); see also, Germain, 2009 WL 1514513, at *6 (finding
defendant met its burden of production at second stage of McDonnell Douglas test where
policy was facially neutral and applied “even-handedly to both pregnant and non-pregnant
officers who seek light-duty assignments due to non-occupational injuries.”). The evidence
here, however, suggests otherwise.
Beardsley and Tilton Both testified to incidences where certain employees who were
not injured at work were able to work without proper medical documentation of a stated or
perceived medical condition or disability, and work with informal accommodations. For
example, Beardsley testified that Safford requested that she be excused from certain
duties so not to aggravate her back condition, which Beardsley granted as a “common
courtesy.” (Beardsley Dep. 164.) Another employee was permitted to work with a
temporary accommodation (Leave of Absence Event No. 57a) without forwarding her work
restrictions to the leave department at Dollar General. (Cherry Decl., Ex. 1.) This is
sufficient to raise a material issue of fact. See Ward, 751 F.Supp.2d at 805 (fact issue
existed with respect to whether defendant consistently applied policy of only
accommodating employees with work-related injuries where one employee was advised
to stay home while recovering from a non-work-related injury, another was given a light40
duty assignment without requesting an accommodation, and supervisor testified that he
would occasionally accommodate employees injured outside of work on an informal basis.)
Whether the Transitional Duty policy was uniformly applied throughout Dollar
General is a material question of fact that cannot be decided at this stage in the
proceedings, rendering summary judgment inappropriate. Defendant’s motion is therefore
denied with respect to Plaintiff’s claims of pregnancy discrimination on the basis of her
denial of light-duty and subsequent termination from Dollar General at the conclusion of
her medical leave.
IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (Docket No.
46) is granted with respect to Plaintiff’s claims of hostile work environment and pregnancy
discrimination arising out of her demotion. Its motion is denied with respect to Plaintiff’s
claims of discriminatory denial of light-duty and termination.
V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion for Summary Judgment
(Docket No. 46) is GRANTED in part, and DENIED in part.
SO ORDERED.
Dated: March 31, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
41
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