Gilderhus v. Concentrix Corporation et al
Filing
25
DECISION AND ORDER granting 16 Motion for Summary Judgment. This action is dismissed. Signed by Hon. Charles J. Siragusa on 10/19/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
CONNIE GILDERHUS,
Plaintiff,
No. 08-CV-6368 CJS
-vsDECISION AND ORDER
CONCENTRIX CORPORATION and
SYNNEX CORPORATION,
Defendants.
__________________________________________
APPEARANCES
For Plaintiff:
Christina A. Agola, Esq.
1415 Monroe Avenue
Brighton, New York 14618
For Defendants:
Linda T. Prestegaard, Esq.
Philips Lytle LLP
28 East Main Street
1400 First Federal Plaza
Rochester, New York 14614
INTRODUCTION
This is an action alleging employment discrimination and retaliation pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII), as amended, 42 U.S.C. § 2000e et
seq., and the New York Human Rights Law (“NYHRL”), Executive Law § 290 et seq.
Now before the Court is Concentrix Corporation’s (“Defendant”) motion for summary
judgment. (Docket No. [#16]). For the reasons that follow, Defendant’s application is
granted and this action is dismissed.
1
BACKGROUND
Unless otherwise noted, the following are the facts of this case viewed in the light
most favorable to Plaintiff. This action arises from a five-month period in which Plaintiff
was employed by Defendant Concentrix Corporation (“Concentrix”). Concentrix is a
“business process outsourcing company” which provides a number of services to clients,
including a telephone call center. At all relevant times, Richard Rapach (“Rapach”) was
Concentrix’s Vice President and General Manager, and Christopher Gelder (“Gelder”)
was Concentrix’s Vice President of Operations. On February 26, 2007, Rapach and
Gelder hired Plaintiff to work for Concentrix as Director of Call Center Operations at
Concentrix’s office in Pittsford, New York. Prior to their employment with Concentrix,
Rapach and Gelder had worked with Plaintiff at another company, Sutherland Group
(“Sutherland”). In fact, Gelder had previously hired Plaintiff to work at Sutherland.
Paintiff’s Deposition (“Pl. Dep.”) at 12. At Sutherland, Plaintiff reported directly to
Rapach, who promoted her to the position of General Manager. Id. at 14. As General
Manager at Sutherland, Plaintiff was responsible for a division of three-hundred
employees. Id. at 15. After two years at Sutherland, Plaintiff resigned on amicable terms
with Gelder and Rapach, because she wanted to adopt a child. Id. at 15-16.
Some years later, on February 14, 2007, Gelder learned that Plaintiff was
unemployed, after being laid off from her position as Director of Sales for Gerber
Homes, where she had earned approximately ninety thousand dollars per year. Id. at 1718. Approximately one week after learning Plaintiff was unemployed, Gelder and
Rapach hired Plaintiff to work at Concentrix. Concentrix hired Plaintiff at an annual
2
salary of $85,000.00., with an indication that she would be eligible for a quarterly bonus
program. Although the terms of the bonus program were not specified in the letter of
engagement which Plaintiff signed, Gelder advised her that with bonuses, her
compensation would be in the range of $125.000.00 to $150,000.00. See, Defendant’s
Exhibit D, Pl. Dep. at 20-21. According to Plaintiff, she and Gelder later agreed to a
proposed bonus plan, and Gelder assured her that Rapach would eventually approve it.
However, Rapach never gave it his required approval prior to the termination of Plaintiff’s
employment. See, Pl. Dep. at 21-22. Consequently, Plaintiff did not receive a bonus
during her five months of employment at Concentrix.
Gelder, Plaintiff’s immediate supervisor, was hired by Concentrix in October 2006
at a starting salary of $87,000.00 per year, which was only $2,000.00 more than
Plaintiff’s starting salary. Moreover, unlike Plaintiff, Gelder was not eligible to participate
in any incentive bonus compensation plan. See, Pl. Resp. to Def.’s Local Rule 56.1
Stmt., ¶ ¶ 51, 54.
Plaintiff’s predecessor in her position, David Holdridge (“Holdridge”), had been
hired two years earlier, at the same starting salary as Plaintiff.1 Thereafter, Holdridge
received a raise and stock options after one year of service, and when Concentrix was
being purchased by a new parent corporation, Synnex, he received a loyalty bonus for
1
Although it m ay seem irrelevant, since Plaintiff belatedly abandoned her Equal Pay Act claim , the
fact that she was hired at the sam e rate of pay at which Holdridge was hired two years earlier seriously
undercuts her contention that he was treated m ore favorably than she. In that regard, Plaintiff adm its that
subsequent to Holdridge’s hiring, Concentrix was sold to Synnex, which decreased starting pay for all new
hires. See, Pl. Resp. to Def. Rule 56.1 Stm t. of Facts, ¶ 43 (Stating that, after the sale of Concentrix to
Synnex, the new m anagem ent philosophy “resulted in decreased com pensation for new hires and
transfers and/or prom otions to the Com pany.”). Despite this across the board reduction, Plaintiff was still
hired at the sam e base rate as Holdridge.
3
remaining with the company during the transition period. Def. Stmt. of Facts ¶ ¶ 36-41.
As a result, at the time Plaintiff was hired, Holdridge’s base salary had increased to
$95,000.00.
Plaintiff worked on a number of projects during her employment with Concentrix,
but for purposes of this Decision and Order, it is sufficient to note two: the Direct Energy
Account and the Citibank Account. As for the Direct Energy Account, it is sufficient to
note that Plaintiff was placed in charge of “launching” a marketing program, which she
managed successfully. Pl. Dep. at 28. In connection with such launch, Plaintiff told two
employees, Mary Pat Smith (“Smith”), a female, and Carlos Mercado (“Mercado”), a
male, that they would receive bonuses to reward them for their hard work. Id. at 104105. The parties disagree as to whether Plaintiff was authorized to offer such bonuses
to Smith and Mercado, but again for purposes of this Decision and Order the Court
assumes that she was so authorized. At deposition, Plaintiff initially indicated that
Rapach had refused to pay the bonuses to Smith and Mercado. Id. at 104 (Referring to
Smith as “one of the two supervisors denied bonuses by Dick Rapach.”). However,
Plaintiff later admitted that the bonuses had been paid. Id. at 107-108. In fact, it
appears that Rapach never denied the bonuses, but merely asked for more information
before approving them. See, Def. Ex. Y. In that regard, it seems that Rapach was
reluctant to pay any bonus in connection with the Direct Energy Account, because Direct
Energy had terminated the account shortly after it launched. Id. In any event, Plaintiff
admits that her efforts to obtain bonuses for Smith and Mercado did not involve
allegations of discrimination, and she further admits that Concentrix did not understand
4
her to be complaining about discrimination. Pl. Resp. to Def.’s Local Rule 56.1 Stmt., ¶
71.
While Plaintiff was working on the Direct Energy Account, Smith complained to
her that she was not being paid what she had been promised at the time of her hire.
The specific details of Smith’s complaint are not in the record, but it appears that she
told Plaintiff that Gelder had indicated that she would receive a raise, but it “hadn’t
materialized.” Pl. Dep. at 109. Plaintiff mentioned Smith’s concerns to Gelder, but then
had no further involvement with the issue. Id. at 110. In that regard, Plaintiff states:
I talked to Chris Gelder about it; and he, I believe, had some conversation
with her about it, but I decided to step back because it was a situation
between them and conversations that had occurred between them before
[Smith] came to work for me [on the Direct Energy Account].
Pl. Dep. at 110. There is no indication or even suggestion that Plaintiff made any
allegations of discrimination to Gelder concerning Smith.2
As for the Citibank Account, Plaintiff took over the management of that account
on June 12, 2007. Prior to that, between February 2007 and June 2007, the account
was managed by Alan Mogray (“Mogray”), who had the same title as Plaintiff, Director of
Operations, but who earned less than Plaintiff. Pl. Dep. at 33. Specifically, Mogray, who
2
Notably, Plaintiff’s deposition testim ony concerning this situation involving Sm ith did not com e up
in connection with any questioning concerning retaliation. That is, Plaintiff did not describe this incident
because she was claim ing she engaged in protected activity by talking to Gelder about Sm ith’s
com pensation. Instead, Plaintiff described the incident when she was asked why she had listed Sm ith on
an interrogatory response as som eone with knowledge about Plaintiff’s case. Now, however, in opposition
to sum m ary judgm ent, Plaintiff feebly attem pts to argue that her em ploym ent was term inated in retaliation
for her discussion with Gelder about Sm ith’s com pensation. See, Pl. Mem o of Law at 6, under the
heading, “Plaintiff Engaged in Protected Activity.” However, as discussed further below, Plaintiff’s
conversation with Gelder on this point was clearly not protected activity under Title VII, and further, there is
no indication that such conversation with Gelder had anything to do with the term ination of Plaintiff’s
em ploym ent.
5
was hired one month prior to Plaintiff, earned a salary of$60,000.00, which was
substantially less than Plaintiff’s salary. Moreover, Mogray, like Plaintiff, did not have an
approved bonus plan, nor did he receive any bonus during the term of Plaintiff’s
employment.3 Upon being removed as Director of Operations for the Citibank Account,
Mogray was demoted to the position of Data Analyst, in which he had “no accountability
for operations or clients.” Pl. Dep. at 34, 137-138.
Plaintiff was aware, from the beginning of her employment at Concentrix, that the
Citibank Account, of which Mogray was then in charge, was “a fiasco.” Pl. Dep. at 27.
Plaintiff was selected to replace Mogray on the Citibank Account, which was
Concentrix’s second largest, because Concentrix was in danger of losing the account.
Id. at 32, 35. Plaintiff understood that it was her responsibility to salvage the Citibank
Account. Id. at 36 ( “My responsibility was to turn that program around.”).
The Citibank Account required Concentrix call center employees to telephone
prospective customers to market Citibank’s student loan consolidation loan products.
Concentrix’s success in that regard was measured by the number of persons who
responded favorably by completing online loan applications. Concentrix indicates that
as part of its agreement with Citibank, call center employees were expected to follow a
script, and were not allowed to quote loan rates over the phone. Plaintiff understood,
when she assumed control of the Citibank Account, that one of Citibank’s biggest
concerns was that Concentrix call center employees were improperly “quoting interest
rates on the phones” to customers. Id. at 37-38. In addition, Citibank was concerned
3
Plaintiff adm its this fact. See, Pl. Resp. to Def.’s Local Rule 56.1 Stm t., ¶ 49.
6
about the “performance and the skill-set of some of the [Concentrix call center
employees working] on the program.” Id. at 38. In short, when she assumed control of
the Citibank Account, Plaintiff understood that Citibank was unhappy with the skills of
the Concentrix employees who were working on the account, and was unhappy that
those employees were quoting interest rates over the phone, since such quoting
apparently violated banking regulations.
When Plaintiff assumed command of the Citibank Account, working directly under
her was the project’s Program Manager, Rae Lattau (“Lattau”), and its Account Manager,
Donna Pratt (“Pratt”), both female.4 According to Plaintiff, Pratt was “the manager
involved with the account from day one and had a personal relationship with the clients.”
Pl. Dep. at 82-84. In or about late July 2007, Plaintiff and Lattau then selected another
employee, Ahmad Abdussamad (“Abdussamad”), to supervise the call center
employees, who numbered approximately twenty. Pl. Dep. at 41-44.
Plaintiff attempted to improve the Citibank Account’s operation by having Citibank
re-train the call center employees. Pl. Dep. at 45-48, 51. In addition, Plaintiff created
performance improvement plans for the seven worst-performing call center employees.
Id. at 48. Subsequently, one of those employees quit the program, and the other was
fired. Of the five remaining employees on performance improvement plans, three met
the goals of their plans, while two did not. Pl. Dep. at 74-76. As for the two employees
who did not meet their performance improvement goals, Plaintiff decided, toward the
4
Plaintiff sought and obtained direct control over the account, in keeping with her view of her role.
In that regard, she asked Gelder, who had previously exercised a supervisory role over the account, to
step back, and even to m ove his office away from the call center, which he did. See, Pl. Dep. at 59-60.
Plaintiff also directed that all com m unications with Citibank were to go through her. Id. at 58. In addition,
she directed Lattau to “push back” whenever Gelder tried to involve him self with the program . Id. at 60.
7
end of July 2007, to place them on a “second and final action plan.” Plaintiff did this for
a number of reasons, including that they had only recently been re-trained, and that
performance of the program overall was improving. Id. On this point, Plaintiff maintains
that the Citibank Account showed improvement in June and July, based on the number
of customers making online loan applications, though Citibank questioned how many of
those applications were obtained through Concentrix’s efforts. Id. at 49, 52-53.
However, Citibank disagreed with Plaintiff’s decision to have any of the five employees
continue working on the Citibank Account. Id. at 77 (“[T]hey had concerns about my
decision to allow these five agents to remain on the program. They did not want them to
remain on the program.”). Despite Citibank’s disagreement, Plaintiff believed that it was
her duty to not allow Citibank to dictate who worked on the account:
It is not uncommon in this industry that clients will try to dictate which
employees remain on their programs and which ones don’t, and it is our
responsibility to make sure they don’t do that. They [the five employees]
are Concentrix employees, and as I said earlier, I felt a responsibility to
make sure they were treated fairly.
Pl. Dep. at 76. Plaintiff vaguely maintains that she notified Gelder that Citibank wanted
the five employees removed from the account. See, id. at 88. Nevertheless, Plaintiff
agrees that, “[i]n a client review meeting at the end of July 2007, [she] assured Mr.
Rapach and Mr. Gelder that the Citibank student loan program results were improving
and that the client was happy.” See, Pl. Resp. to Def.’s Local Rule 56.1 Statement ¶ 15
(Indicating that Rapach and Gelder’s version of events on this point is “uncontested.”).5
5
Plaintiff apparently believed that Citibank was sufficiently “happy” overall, despite its
unhappiness over the five em ployees on perform ance im provem ent plans, since the num ber of esigns
had increased. See, e.g., [#16-2] Def. Ex. J (“The focus was on increasing esigns, per Gelder.”).
8
On July 23, 2007, in connection with an account unrelated to the Citibank
Account, Gelder informed Plaintiff that two of the supervisors working under her, a male
and a female, were caught using the company’s instant messaging system to carry on
an adulterous consensual sexual relationship. Gelder was angry about the employees’
conduct and wanted to fire them, but he permitted Plaintiff to handle the problem since
the employees were “under [her] jurisdiction.” Pl. Dep. at 68. Plaintiff investigated, and
then suspended the two supervisors for two weeks, for misuse of company time and
property. Id. at 69-72. There is no indication that Gelder or Rapach had any objection
to Plaintiff’s handling of the situation.
As mentioned earlier, Citibank was unhappy about Plaintiff’s decision to keep five
underperforming employees on the Citibank Account. Toward the end of July 2007,
Citibank indicated that it wanted to audit the telephone calls of those five employees.
Q. And what did Citibank say about the monitoring se[ssion] and why this
one was more significant?
A. This one was they had concerns about my decision to allow these five
agents to remain on the program. They did not want them to remain on
the program.
Pl. Dep. at 77; see also, id. at 78-79. Citibank indicated that during the upcoming call
monitoring session, it wanted to focus attention on calls handled by the aforementioned
five employees. Id. Gelder was copied in on Citibank’s email.
Plaintiff knew that she would not be at work on the day of the scheduled call
monitoring session with Citibank representatives, because of a prior personal
9
commitment.6 Id. at 78. She further indicates that she would not ordinarily have
attended the session in any event, and that she entrusted Lattau and Pratt with
attending such sessions. See, Pl. Local Rule 56.1 Stmt., ¶ ¶ 81, 87.7 Unfortunately,
Lattau was also scheduled to be out of the office on the day of the call monitoring
session. Pl. Dep. at 82. Consequently, Lattau arranged to have Pratt and the newlypromoted Abdussamad attend the call audit. At deposition, Plaintiff indicated that, prior
to the call monitoring session, she expressly told Lattau to “be careful in the calls we
chose for the client to monitor,” and that Lattau told her that, although she would be out
of the office that day, she “had listened to the calls with [Abdussamad]. There were no
fatal errors.” Id. at 82-83.8 However, during the monitoring session, the Citibank
representatives heard one of the Concentrix agents commit what the parties refer to as a
“fatal error,” in terms of what they said to the potential customer over the phone. Id. at
84. Notably, the error was made by one of the employees that Plaintiff had placed on a
second performance improvement plan, rather than removing him from the account as
Citibank had requested. Upon hearing the mistakes made by the Concentrix employee,
the Citibank representatives became “irate” and threatened to terminate the account. Id.
6
Plaintiff’s brother had recently died, and Plaintiff, as the nom inated executor of his will, had
scheduled an appointm ent to m eet with the estate attorney on the sam e day as the m onitoring session.
7
In opposition to Defendant’s m otion, Plaintiff indicates that it was not her responsibility to attend
the m onitoring session. Instead, she states that her “job responsibilities on the Citibank project was [sic]
to m ake sure that client objectives were being m et, that the program m anager had the support she
needed, to oversee the day-to-day operations.” Pl. Resp. to Def.’s Rule 56.1 Stm t., ¶ 17.
8
Although the Court does not resolve issues of credibility on a sum m ary judgm ent m otion, it notes
that in an em ail written only days after the m onitoring session and term ination of her em ploym ent, Plaintiff
did not indicate that Lattau had told her that she had listened to the calls. Instead, Plaintiff appears to
indicate that she m erely assum ed that Lattau had done so. See, Defendant’s Exhibits, Ex. J (“I don’t fault
Rae [Lattau] entirely, I only thought she listened to the recordings before leaving. She was pinched for
tim e & it m ay have slipped.”).
10
at 84 (“[T]he client was irate and felt, once again, that Concentrix was putting them at
risk.”).
On the day following the monitoring session, Friday, August 3, 2007, Plaintiff and
Lattau were called to a meeting with Rapach and Gelder to discuss the situation, and to
try to find a way to salvage the account. Id. at 86.9 The following week, Rapach and
Gelder met with Citibank to attempt to smooth over the problem, but Citibank
nevertheless terminated its contract with Concentrix. See, id. at 90-92; id. at 91 (“The
plan was to beg for forgiveness and please don’t pull the plug[.]”). As noted earlier, the
Citibank account had been Concentrix’s second largest account.
Almost immediately thereafter, on August 7, 2007, Gelder terminated Plaintiff’s
employment. In that regard, Plaintiff states that Gelder had tears in his eyes, hugged
her, and said, “Connie, you know how this place is. What I want you to do is leave here,
find a job, and hire me.” Id. at 93. In addition to Plaintiff, eight other employees were
terminated by Concentrix as a result of the loss of the Citibank Account. Of those eight
employees, two were female and six were male. See, Def. Ex. G. As far as it appears
from the record, neither Lattau nor Pratt was terminated or disciplined. Abdussamad
also was not terminated, though he was demoted from Supervisor to Sales
Representative and placed within another group at Concentrix. J. Cooper Deposition at
36-37. Mogray, who had no involvement with the Citibank Account after Plaintiff
assumed control of it, was not disciplined as a result of the loss of the account, though,
9
In a proposed action plan to address the problem , Plaintiff changed her position and
recom m ended that the two em ployees that she had placed on second and final perform ance im provem ent
plans be rem oved from the Citibank Account. See, Pl. Exs. Vol. II, Ex. J.
11
as noted earlier, he was previously removed from the account and demoted.
Subsequently, Plaintiff wrote various email messages concerning the events that
led to the termination of her employment. See, Def. Exs. H-J. On August 7, 2007,
Plaintiff wrote, in pertinent part: “I was relieved of my role at Concentrix today. Can’t
say as I’m surprised, someone had to take the fall for the loss of a major account like
Citibank.” Def. Ex. H. On August 8, 2007, Plaintiff wrote:
I won’t pull you into the events that occurred yesterday, but I am asking if
you can insist on conducting a root cause analysis of the fatal errors that
lead to the loss of the Citibank program. I am more than willing to take
accountability for my actions & I am guilty of making a poor judgment call,
however, there are more severe systemic problems that lead to the final
events. . . . Good luck as you continue to educate the leaders of
Concentrix who will continually choose to implement “Band-Aid solutions”
and then hold Ops Managers accountable for clients terminating programs.
I only hope you are able to hear ALL accounts of what lead to the demise
of this program other than the fatal errors I made in Judgment.10
Id. at Exs. H & I. On August 12, 2007, Plaintiff wrote, in pertinent part:
Synnex [Concentrix’s parent company] was not happy to say the least at
the loss of the Citibank program. I believe my termination was a knee-jerk
reaction to Caldwell’s scrutiny! I took over Citibank as you know in June &
was barely there in July. The focus was on increasing esigns per Gelder.
We demonstrated a 20% increase June to July, however during a
monitoring session last week, Patty uncovered a fatal error that put CB
[Citibank] at too much risk & they terminated the program. It started with
my email to Dea/Patty saying that 7 agents were put on action plans
effective 7/1. At the end of the month, I told them that 3 were being
eliminated, 2 met requirements of action plan & 2 demonstrated significant
improvement & were being put on 2nd & final action plan for Aug. The fatal
error was made by one of the two allowed to remain on a 2nd action plan &
they went nuts! Questioned the management of the program.
Unfortunately, when I went out in July it delayed the promotion of Ahmad &
10
This em ail m essage appears in both Defendant’s Exhibits H and I, but the last sentence is not
included in Exhibit H.
12
so no one was conducting proper monitoring & coaching to inspect for
these types of errors. So although, we increased performance, we weren’t
focused on quality per Dick Rapach . . . . and I was ultimately accountable
for the loss of a major account. The question becomes of course, why is
Mogray still there? He screwed the thing up from Feb to June & Gelder
made some bad calls too, but I take the hit when I was only on the
program for a few short weeks & still trying to recover from a tragic
loss???? [referring to her brother’s sudden death in early July]
Unbelievable! I will admit to my mistakes and bad calls in judgment, but
the 48 hours surrounding this were unbelievable & I was focused on
managing things for Gayle & Dan who were experiencing traumatic events
as well! Rae [Lattau] assured me Ahmad could handle [the] monitoring
session & I should have been there. Bad call on my part. I don’t fault Rae
entirely, I only thought she listened to the recordings before leaving. She
was pinched for time & it may have slipped. They [Citibank] wanted to
listen to the calls of the ones being allowed to remain [the employees on
performance improvement plans], I should have been on top of it at that
point & known to be careful on what calls we pulled! Chris [Gelder] asked
why I reported on the action plans & results [to Citibank] & I told him it was
to assure them that we were on top of the non-performers with a plan in
place to turn it around & we did which is why esign performance went up
20%.
Def. Ex. J.
Plaintiff’s position at Concentrix remained vacant for seven months, after which
Concentrix promoted Daniel Sheehan (“Sheehan”), a male, to the position of Director of
Operations. Sheehan’s starting salary was $70,000.00 per year, which was $15,000.00
less than Plaintiff’s salary. Sheehan was eligible for bonuses, but even assuming that
he met all bonus requirements, he could not have earned more than Plaintiff’s base
salary. See, Pl. Resp. to Def.’s Rule 56.1 Stmt., ¶ ¶ 55-56.
On November 5, 2007, with the assistance of her current attorney, Plaintiff filed a
complaint with the Equal Employment Opportunity Commission (“EEOC”). The
complaint alleges that Plaintiff was discriminated against, because her employment was
13
terminated while “males who performed worse than [she] did” were not terminated. Pl.
Exs., Vol II, Ex. A. The EEOC complaint further alleges that Plaintiff was retaliated
against, after she “reported unpaid bonuses to members of a protected class
(female/Italian-American)” and after she “engaged I the course of a sexual harassment
investigation as the investigator.” Id. The Court observes that the complaint’s reference
to a “sexual harassment investigation” is erroneous, since the matter which Plaintiff
investigated did not involve sexual harassment, but instead, involved a violation of the
company’s code of conduct and misuse of company property.11
11
At deposition, Plaintiff indicated that she had “a great deal of HR [hum an resources] training in
the areas of sexual harassm ent, m anaging within the EEOC guidelines, recruiting, term inating em ployees,
m anaging perform ance, creating action plans.” Pl. Dep. at 11. However, it does not appear that this
situation, involving a consensual relationship between a m ale supervisor and a fem ale supervisor,
involved sexual harassm ent. Rather, according to Plaintiff’s own deposition testim ony, the issue was the
m isuse of com pany tim e and property. See, Pl. Dep. at 70-71 (Indicating that the situation “related to
m isuse of com pany equipm ent, unprofessional conduct based on our guidelines.”). Neither of the parties
involved com plained of sexual harassm ent, and the issue only cam e to light because it was discovered
that they were m isusing the com pany’s instant m essaging to have inappropriate conversations.
Consequently, Plaintiff’s counsel’s reference to this incident as “sexual harassm ent,” in both her
com plaints to the EEOC and in this action, in an apparent attem pt to bolster the retaliation claim by
m aking it appear that Plaintiff som ehow engaged in protected activity covered by Title VII, is a false
m isrepresentation of the facts of this case. See, e.g., Plaintiff’s Local Rule 56.1 Statem ent, p. 12 (“Plaintiff
Asked to Conduct Sexual Harassm ent Investigation”); see also, Pl. Response to Defs. Local Rule 56.1
Stm t., ¶ 74 (Indicating that Plaintiff is relying on this incident to support her retaliation claim ); EEOC
Com plaint (Stating that she was retaliated against after she “engaged in the course of a sexual
harassment investigation as the investigator.”) (em phasis added). The Court does not believe that
counsel’s m isleading use of the term “sexual harassm ent” was inadvertent, since she m ade a sim ilar
argum ent in another Title VII case that was recently before the Court. See, Male v. Tops Markets, LLC,
2011 W L 2471449 at *10 & n. 19 (W .D.N.Y. Jun. 22, 2011). In addition, Plaintiff’s counsel continues to
insist that Gelder and Mogray “had bonus incentive plans,” despite having no evidence of that, and despite
conceding elsewhere in her papers that they did not have such bonus plans. See, Pl. Rule 56.1 Stm t. ¶
98; Pl. Resp. to Def. Rule 56.1 Stm t., ¶ ¶ 6, 49, 51, 60. (The inconsistencies on this point alone in
Plaintiff’s papers again cause the Court to wonder who is preparing Plaintiff’s counsel’s papers, and
whether they are bothering to read them before filing them with this Court. See, Rojas v. Roman Catholic
Diocese or Rochester, 783 F.Supp.2d 381, footnote 20 (W .D.N.Y. 2010)). Plaintiff’s counsel has
previously been warned by this Court, on num erous occasions, against m aking such m isrepresentations
to the Court, but apparently those warnings continue to be ignored. See, Rojas v. Roman Catholic Diocese
of Rochester, — F.3d — , 2011 W L 4552460 at * n. 8 (2d Cir. Oct. 4, 2011) (“W e note that the District
Court has been com pelled to warn the law firm that represented Rojas about m aking im proper and
unsupported factual representations to the court on several occasions, both prior and subsequent to this
decision in this case.”) (citing five decisions and orders by this Court).
14
On August 15, 2008, Plaintiff commenced this action.12 Plaintiff purports to assert
claims under Title VII and the NYHRL, for disparate treatment discrimination on the
basis of sex, and retaliation.13 At deposition, Plaintiff was asked to explain how
Concentrix discriminated against her, and she gave the following response:
Q. How have you been discriminated against?
A. The Citibank account was managed by Alan Mogray for four months. I
had it for six weeks. Chris Gelder managed the Citibank account the entire
time.14 The entire four months that, that program was managed by Alan
Mogray, not once was [sic] any of those agents put on an action plan.
There was no supervisor put in place. There were many fatal mistakes
made in managing that program. So the fact that there were two males
and one female involved in the overall management of that program and I
was the only one terminated suggests discrimination.
Q. Any other basis for your claim of discrimination?
A. The fact that other male managers, such as David Holdridge, my
predecessor, Chris Gelder, Alan Mogray, all had bonus plans.15 Concentrix
from day one was in breach of my contract by never providing me a bonus
plan and never giving me an opportunity to earn a bonus.
Q. Anything else?
A. No.
12
In the interim , Plaintiff filed an EEOC com plaint, which was later dism issed and a right-to-sue
letter issued.
13
Plaintiff also asserted a claim pursuant to the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), but
withdrew that claim after Concentrix filed its sum m ary judgm ent m otion.
14
As noted above, Plaintiff indicated that upon assum ing control of the Citibank program , she told
Gelder, her supervisor, to step back from his supervision of the program and m ove his office away from
the call center operations.
15
As discussed above, this assertion is dem onstrably false, but Plaintiff and her attorney have
continued to m aintain it throughout this action.
15
Pl. Dep. at 93-94. Plaintiff further indicated that she was not paid as well as men at
Concentrix:
David Holdridge made a higher base salary than I; and with regards to
compensation in general, the bonus plans, as I stated earlier, I believe the
other gentlemen had bonus plans and I did not, with opportunity to earn
bonus and in some cases did earn bonus.
Id. at 151.
Following the completion of discovery, Defendant filed the subject motion for
summary judgment. As for the disparate-treatment sex discrimination claim, Defendant
contends that Plaintiff cannot demonstrate a prima facie case, since she has not shown
that she was a satisfactory employee or that the termination of her employment occurred
under circumstances giving rise to an inference of discrimination. Alternatively,
Defendant indicates that it had a non-discriminatory reason for terminating Plaintiff’s
employment, which was her failure to properly manage the Citibank Account. See, Def.
Memo of Law at 1 (“Plaintiff’s employment . . . was terminated . . . as a result of [her]
failure to properly prepare her team for a crucial audit, and failure to keep the
Company’s management aware of critical performance issues.”). As for the retaliation
claim, Defendant also contends that Plaintiff cannot establish a prima facie case, since
she did not engage in protected activity, and since there is no causal nexus between any
such activity and the termination of her employment. In support of the motion,
Defendant has submitted affidavits from Rapach and Gelder, both of whom indicate that,
at a client review meeting at the end of July 2007, Plaintiff told them that the Citibank
Account “performance and results were improving and that the client was happy.”
Rapach Aff. ¶ 11, Gelder Aff. at ¶ 12. They further indicate that they were quite
16
surprised on August 3, 2007, when Citibank informed them that it was terminating its
account with Concentrix, and that it had been telling Plaintiff “for some time that Citibank
was unhappy.” Rapach Aff. at ¶ 14. They maintain that as a result, they concluded that
Plaintiff had not been forthcoming about the problems with the account, and that it was
appropriate to terminate her employment. Rapach Aff. at ¶ 14; Gelder Aff. at ¶ 19
(“[Plaintiff’s] failure to report the true performance of the Citibank student loan program
to me made me concerned. I felt that she was hiding information.”). Both Rapach and
Gelder indicate that the decision to terminate Plaintiff’s employment had nothing to do
with her sex, and that she never complained about discrimination. See, Gelder Aff. at ¶
26.
In opposition, Plaintiff states that she was qualified for her position, and that her
firing occurred under circumstances suggesting discriminatory animus, since Mogray
and Abdussamad, both of whom are male, were treated more favorably, and since she
was replaced by a male, Sheehan. She further states that the reason given for
terminating her employment is false, because she improved the Citibank Account, after
Mogray had mismanaged it, and because she kept Gelder informed of the status of the
account. As for her retaliation claim, Plaintiff states that she engaged in protected
activity by pursuing a bonus for Smith, and by telling Gelder of Smith’s complaint that
she was not being paid at her agreed upon rate. She also indicates that she has
established a causal nexus between the protected activity and the termination of her
employment, since she was terminated shortly after the protected activity. In addition,
she contends that she has shown that Defendant’s stated reason for firing her is false
and pretextual, for the reasons already discussed above.
17
In support of her opposition, Plaintiff has submitted affidavits from herself, Mary
Pat Vitelli (“Vitelli”)16, Mercado, Joellen Cooper (“Cooper”), Christine Gambacorta
(“Gambacorta”), and E. Flinn Hackett (“Hackett”). Most of the content of these affidavits
is irrelevant or otherwise inadmissible, and unhelpful to Plaintiff. For example, Cooper, a
former co-worker at Concentrix who commiserated with Plaintiff by email following her
termination, states that she disagrees with the decision to terminate Plaintiff, but admits
that Rapach “made a business decision. It was not atypical or even unreasonable for
there to be a termination attached to the loss of a major account.” Cooper Aff. at ¶ 26.
Cooper further states, “It was my observation that [Plaintiff’s] role dictated that she bear
ultimate responsibility for all accounts, but there was very little tenure on this one, and
probably too short a time to have been effective in turning it around.” Id. at ¶ 21.
Gambacorta, who worked at Concentrix, suggests that Plaintiff’s termination was not due
to her performance, but instead, was because “[s]he was handed ‘poorly performing’
programs and not provided the appropriate amount of time or the support to effectively
turn them around.” Gambacorta Aff. ¶ 9. Vitelli, another former Concentrix employee,
with an obvious axe to grind against Rapach, complains that he did not greet her in the
mornings, “didn’t have a good grasp on what was happening,” “rarely interacted” with the
women on his team, “had a good old boys attitude,” lied to clients, and “had a ‘better
than you’ attitude.” Vitelli Aff. at ¶ ¶ 6, 12, 16. As for Gelder, Vitelli offers that he “was
more about his own self interests, at the expense of doing what was right.” Id. at ¶ 17.
On the other hand, Vitelli gushes that Plaintiff was “direct, honest, fair, “ ”a high quality
16
It appears that Mary Pat Vitelli m ay be the sam e person as Mary Pat Sm ith, though her affidavit
does not indicate that.
18
manager . . . driven by procedure and ethics,” who was “respected and well liked by her
peers.” Id. at ¶ 19. Vitelli states that she had a discussion with Gelder about “salary
inequitites between male and female managers,” and that Gelder agreed that she was
earning less than less qualified males, but that Rapach would not approve a raise. Id. at
¶ 9.17 Notably, Vitelli was only employed by Concentrix until May 2007, when she was
laid off following the demise of the Direct Energy Account, and therefore she has no
firsthand knowledge about the specific events concerning the Citibank Account that led
to the termination of Plaintiff’s employment. Id. at ¶ ¶ 2, 38. Nevertheless, Vitelli
ventures to opine that, “Knowing the inner workings of the Concentrix Corporation, I am
confident that the failure of the Citibank program was not the fault of Connie Gilderhus.”
Id. at ¶ 45. Hackett’s affidavit indicates that Plaintiff previously worked with him at the
Sutherland Group, but he has no personal knowledge about her employment at
Concentrix or the facts of this case. Hackett Aff. at ¶ ¶ 19, 24. As for Mercado, he
indicates that Concentrix fired Plaintiff because she refused Citibank’s request to
remove the underperforming employees from its account:
I believe that Connie was defending the performance of certain staff to
Citibank, who wanted these individuals immediately terminated. Connie
however, did not believe that this was the proper way of dealing with these
employees. She, as she always did, attempted to do the right thing. She
felt that these employees were still adjusting to the training confusion and
that they should be provided additional training and be closely monitored.18
She felt that they were worth saving. So she refused to terminate these
17
Even assum ing that Vitelli and Sm ith are the sam e person, which, again, Plaintiff has not
indicated, Vitelli does not say that she related this alleged conversation with Gelder to Plaintiff. Moreover,
there is no indication whatsoever that Plaintiff m ade any claim of discrim ination on Vitelli’s behalf, or that
this issue had anything to do with the term ination of Plaintiff’s em ploym ent.
18
Plaintiff adm itted, in an em ail written after she was fired, that these em ployees were not closely
m onitored, as they should have been.
19
employees at Citibank’s request. This is why I believe Concentrix targeted
Connie Gilderhus for termination.
Mercado Aff. ¶ ¶ 32-34.
On October 13, 2011, counsel for the parties appeared before the undersigned
for oral argument. Steven Laprade, Esq. appeared of counsel for Plaintiff’s counsel’s
firm.
ANALYSIS
Rule 56
Summary judgment may not be granted unless "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 party seeking summary
judgment bears the burden of establishing that no genuine issue of material fact exists.
See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make
a prima facie showing that the standard for obtaining summary judgment has been
satisfied.” 11 MOORE’S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). “In
moving for summary judgment against a party who will bear the ultimate burden of proof
at trial, the movant may satisfy this burden by pointing to an absence of evidence to
support an essential element of the nonmoving party's claim.” Gummo v. Village of
Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been
established, the burden shifts to the non-moving party to demonstrate "specific facts
showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v.
20
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving
party must present evidence sufficient to support a jury verdict in its favor. Anderson,
477 U.S. at 249. The parties may only carry their respective burdens by producing
evidentiary proof in admissible form. FED . R. CIV. P. 56(e). The underlying facts
contained in affidavits, attached exhibits, and depositions, must be viewed in the light
most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Summary judgment is appropriate only where, "after drawing all reasonable inferences
in favor of the party against whom summary judgment is sought, no reasonable trier of
fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d
Cir.1993).
Courts must be "particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is in question. Because
direct evidence of an employer's discriminatory intent will rarely be found, affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if believed,
would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d
Cir.1997)(citations and internal quotations omitted). Nevertheless, it is “beyond cavil that
summary judgment may be appropriate even in the fact-intensive context of
discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001). Moreover, a plaintiff may not defeat a motion for summary judgment merely by
relying upon “purely conclusory allegations of discrimination, absent any concrete
particulars.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. den. 474 U.S. 829
(1985).
21
Title VII
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.’" Richardson v.
New York State Dep’t of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999)(citations
omitted), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc.
Servs., 461 F.3d 199 (2nd Cir. 2006). It is well settled that “claims brought under New
York State's Human Rights Law are analytically identical to claims brought under Title VII.”
Torres v. Pisano, 116 F.3d 625, 629, n.1 (2d Cir. 1997), cert den. 522 U.S. 997 (1997).
Consequently, unless otherwise noted, references to Title VII herein are also intended to
refer to the NYHRL.
With these general legal principles in mind, the Court will proceed to consider
Plaintiff’s claims.
Disparate Treatment
Disparate treatment discrimination claims are analyzed using the well-settled
McDonnell Douglas19 burden-shifting framework:
A plaintiff establishes a prima facie case of discrimination by showing that
he or she (1) is a member of a protected [group] . . . .; (2) was qualified to
perform the duties required by the position; (3) was subjected to an
adverse employment action; and (4) the adverse employment action
occurred in circumstances that gave rise to an inference of discrimination.
See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003).
***
19
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).
22
Once the plaintiff presents a prima facie case20, 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, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)); see Weinstock v. Columbia Univ., 224 F.3d 33,
42 (2d Cir.2000), and the burden of production shifts back to the plaintiff to
adduce evidence sufficient for a reasonable jury to conclude that
discrimination was a reason for the employment action, see Schnabel v.
Abramson, 232 F.3d 83, 88 (2d Cir.2000). In deciding a motion for
summary judgment, the court is to examine “the entire record to determine
whether the plaintiff could satisfy [her] ‘ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the
plaintiff.’ ” Id. at 90 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097).
Thus, summary judgment is appropriate when the plaintiff “has presented
no evidence upon which a reasonable trier of fact could base the
conclusion that [discrimination] was a determinative factor” in the
defendant's employment decision. Schnabel, 232 F.3d at 91.
Butts v. NYC Dept. of Housing Preservation and Dev., No. 07-1930-cv, 307 Fed.Appx.
596, 2009 WL 190403 at *1-2 (2d Cir. Jan. 28, 2009); see also, Terry v. Ashcroft, 336
F.3d at 138 (“[O]nce the defendant has made a showing of a neutral reason for the
complained of action, to defeat summary judgment the plaintiff’s admissible evidence
must show circumstances that would be sufficient to permit a rational finder of fact to
infer that the defendant’s employment decision was more likely than not based in whole
or in part on discrimination.”) (citations and internal quotations omitted).
In this case, Defendant maintains that Plaintiff cannot satisfy two elements of a
prima facie case, namely, that she was qualified for her position, or that she was
20
“A plaintiff’s burden of establishing a prima facie case is de minimis. The requirem ent is neither
onerous, nor intended to be rigid, m echanized or ritualistic.” Abdu-Brisson v. Delta Air Lines, Inc., 239
F.3d at 467 (citations and internal quotation m arks om itted).
23
terminated under circumstances giving rise to an inference of sex-based discrimination.
As for the first of these,
the cases . . . indicate that in order to satisfy the minimal burden of proof
for a prima facie case, a plaintiff need show only that [s]he possessed the
basic skills necessary to continue [her] employment; occurrence of any
misbehavior, these cases indicate, is more appropriately evaluated in the
context of whether defendant's termination of plaintiff's employment was
somehow impermissibly affected by [her sex].
Murray v. U.S. Dept. of Justice, 821 F.Supp. 94, 104 (E.D.N.Y. 1993), affirmed, 14 F.3d
591 (2d Cir. 1993) (table); see also, De la Cruz v. New York City Human Resources
Admin. Dept. of Social Services, 82 F.3d 16, 20 (2d Cir. 1996) (“To satisfy the second
element of the test, de la Cruz need not demonstrate that his performance was flawless
or superior. Rather, he need only demonstrate that he possesses the basic skills
necessary for performance of the job.”) (citations and internal quotation marks omitted).
Here, Plaintiff has at least made a prima facie showing that she possessed the basic
skills necessary to continue her employment, and accordingly, the Court finds that she
has satisfied that element of her prima facie case.
As for the last element of her prima facie case, Plaintiff contends that she was
terminated under circumstances giving rise to an inference of discrimination because
she was replaced by a male, Sheehan. Defendant disagrees, but given the low
threshold necessary to establish a prima facie case, the Court will assume that Plaintiff
satisfies this element, even though Sheehan was hired many months later at a
significantly lower salary.
Nevertheless, Defendant is still entitled to summary judgment, since it has come
forward with a non-discriminatory reason for firing Plaintiff, and she has not shown that
24
the reason is false, or that the real motive was discriminatory animus. On this point,
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 v. Delta Air Lines, Inc., 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., 120 S.Ct. 2097, 2108-09 (2000)). “The relevant
factors . . . include 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).
Here, Defendant indicates that it terminated Plaintiff’s employment because her
mistakes led to the loss of the Citibank Account, and because she failed to keep Gelder
and/or Rapach advised about Citibank’s unhappiness over her handling of the account.
Of course, as discussed above, immediately after she was let go, Plaintiff admitted that
she had made “fatal errors in judgment” and “poor judgment calls,” and that she “was
ultimately accountable for the loss of a major account.” Nevertheless, she now
25
maintains that the decision to fire her was discriminatory, because Gelder, Mogray, and
Abdussamad were not also fired. In this regard, it is worth reiterating that Lattau and
Pratt, who are female, and who unlike Mogray or Gelder were directly involved in the
disastrous call audit, were not fired. However, even ignoring Lattau and Pratt, the fact
that Gelder, Mogray, and Abdussamad were not fired does not suggest that Plaintiff was
terminated because of her sex. Rather, as she admits, she was the person ultimately
responsible for the Citibank Account, and she had been put in charge of the account
specifically to prevent the loss of the account, which she failed to do. Nor, was the loss
of the account inevitable, as Plaintiff seems to suggest. Instead, the loss of the account
occurred for the very reason about which Plaintiff was briefed when she took over the
account: Citibank’s dissatisfaction with the skill of the call center employees, including
the fact that they were improperly giving out interest rate information over the phone.
Furthermore, the disastrous call audit occurred as a direct result of Plaintiff’s decision to
deny Citibank’s request to remove five underperforming employees from the account.
Neither Gelder, Mogray, nor Abdussamad made that decision.
Alternatively, Plaintiff denies that she failed to keep Gelder and Rapach advised
of Citibank’s dissatisfaction with the mistakes being made by call center employees, as
Concentrix maintains. On this point, she cites to her deposition testimony, in which she
indicates that she told Gelder that Citibank wanted the five employees removed from the
account. At the same time, though, she admits that, “[i]in a client review meeting at the
end of July 2007, [she] assured Mr. Rapach and Mr. Gelder that the Citibank student
loan program results were improving and that the client was happy.” See, Pl. Resp. to
Def.’s Rule 56.1 Stmt., ¶ 15. However, Rapach and Gelder indicate that when Citibank
26
pulled its account, it told them that it had been voicing its dissatisfaction to Plaintiff for
quite some time. See, Rapach Aff. at ¶ 14; Gelder Aff. at ¶ ¶ 17-18. Plaintiff has no
evidence to refute that this is what Citibank told Rapach and Gelder. Nevertheless, she
contends that Gelder and Rapach could not have been surprised by Citibank’s decision
to fire Concentrix, as they claim. See, Pl. Resp. to Def’s Rule 56.1 Stmt., ¶ 21. In that
regard, she seems to argue that Rapach and Gelder must have known the extent to
which Citibank was upset about her decision to keep the five underperforming
employees on the Citibank Account, because Gelder “had regular communications with
the client,” and because “Gelder and Rapach were duly copied on emails notifying them
of the client’s reluctance to keep the five remaining agents and the client’s desire to
have a monitoring session of those agents.” Id. at ¶ 21.21 Plaintiff, though, has failed to
show that Rapach’s and Gelder’s purported belief that Plaintiff was not sufficiently
forthcoming about the extent of the problem was not a basis for their decision to
terminate her employment.
Moreover, the decision to terminate Plaintiff’s employment was made by Rapach
and Gelder, who had hired Plaintiff only six months earlier, at a salary almost equal to
Gelder’s, presumably because they had a favorable impression of her abilities from
having previously worked with her. See, Carlton v. Mystic Transp., Inc., 202 F.3d 129,
137 (2d Cir. 2000) (“When the same actor hires a person already within the protected
class, and then later fires that same person, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire.”) (citation and internal
21
It does not appear that Rapach was copied in on the em ail concerning the phone call audit. Id.
27
quotation marks omitted). There is no indication that Rapach or Gelder had any
personal animus toward Plaintiff at all, much less discriminatory animus. Accordingly,
for all of the foregoing reasons, Plaintiff has not shown that the reasons which
Concentrix has given for terminating her employment are false, or that the real reason
was discrimination.
Retaliation
Title VII retaliation claims are also analyzed using the McDonnell Douglas threetier burden-shifting test discussed above. Valentine v.Standard & Poors, 50 F.Supp.2d
262, 281-82 (S.D.N.Y. 1999)(Citations and internal quotations omitted), aff’d, 205 F.3d
1327 (2d Cir. 2000).
“Retaliation claims under Title VII are evaluated under a three-step
burden-shifting analysis.” Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 173 (2d Cir.2005); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff
must establish a prima facie case of retaliation by showing: “ ‘(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.’ ” Jute, 420 F.3d at 173 (quoting McMenemy v. City of Rochester,
241 F.3d 279, 282-83 (2d Cir.2001)). The plaintiff's burden in this regard is
“ de minimis,” and “the court's role in evaluating a summary judgment
request is to determine only whether proffered admissible evidence would
be sufficient to permit a rational finder of fact to infer a retaliatory motive.”
Id. (internal quotation marks omitted).
If the plaintiff sustains this initial burden, “a presumption of retaliation
arises.” Id. The defendant must then “articulate a legitimate, non-retaliatory
reason for the adverse employment action.” Id. If so, “the presumption of
retaliation dissipates and the employee must show that retaliation was a
substantial reason for the adverse employment action.” Id. A plaintiff can
sustain this burden by proving that “a retaliatory motive played a part in the
adverse employment actions even if it was not the sole cause[;] if the
employer was motivated by retaliatory animus, Title VII is violated even if
there were objectively valid grounds for the [adverse employment action].”
28
Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).
Hicks v. Baines, 593 F.3d 159, 164-165 (2d Cir. 2010).
It is well settled that “[t]he term ‘protected activity’ refers to action taken to protest
or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d
560, 566 (2d cir. 2000). In deciding whether a particular activity amounts to “protected
activity,” “the employment practices opposed by the plaintiff need not have actually
amounted to a violation of Title VII. Rather, the plaintiff must have had a good faith,
reasonable belief that the underlying challenged actions of the employer violated the
law.” McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). Significantly,
for purposes of this case, “implicit in the requirement that the employer have been aware
of the protected activity is the requirement that it understood, or could reasonably have
understood, that the plaintiff's [complaint] was directed at conduct prohibited by Title
VII.” Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 292 (2d
Cir. 1998).
In the instant case, Defendant maintains that Plaintiff cannot establish a prima
facie case of retaliation, because she did not engage in protected activity. Although the
standard for a prima facie case is low, the Court agrees that Plaintiff cannot show that
she engaged in protected activity. More specifically, Plaintiff did not engage in protected
activity under Title VII when she asked that bonuses be paid to a male employee and a
female employee for their work on a failed project, where she admits that she gave no
indication that she was complaining of discrimination. Further, Plaintiff did not engage in
protected activity under Title VII when she mentioned to Gelder that Smith was unhappy
29
with her pay, where again, she gave no indication that she was complaining about
discrimination. Moreover, Plaintiff did not engage in protected activity under Title VII
when she investigated and disciplined a male supervisor and a female supervisor for
misusing company time and property by using the company computers to carry on a
consensual sexual relationship.22
Even assuming, arguendo, that Plaintiff had engaged in protected activity, and
that she could satisfy the causation element based merely on the temporal proximity
between the protected activity and the termination of her employment, Defendant would
still be entitled to summary judgment, for the reasons already discussed above. That is,
Defendant has come forward with non-discriminatory reasons for terminating Plaintiff’s
employment, and she has not come forward with sufficient evidentiary proof in
admissible form to create a triable issue of fact as to whether those reasons are false, or
whether a real reason for Defendant’s decision was retaliatory animus.
CONCLUSION
For the foregoing reasons, Defendant’s summary judgment motion [#16] is
22
Even if the situation had involved “sexual harassm ent,” Plaintiff’s investigation and handling of
the situation in her supervisory role would not qualify as protected activity. See, Ezuma v. City Univ. of
New York, 665 F.Supp.2d 116, 122-124 (E.D.N.Y. 2009) (“[I]f an academ ic chairperson is required as part
of his job to report incidents of sexual harassm ent that com e to his attention, as is the case here, the m ere
perform ance of that function is not “opposition” to his em ployer and does not constitute protected
activity.”); id. at 129 (“[P]laintiff m ust oppose discrim ination, rather than sim ply report it as part of his job, to
have a retaliation claim .”), aff’d, 367 Fed.Appx. 178 (2d Cir. Feb. 22, 2010) (table); see also, Adams v.
Northstar Location Servs., LLC, No. 09–CV–1063–JTC, 2010 W L 3911415 at *4 (W .D.N.Y. Oct. 5, 2010)
(“[P]laintiff's actions in investigating the com plaint of race-based harassm ent would not constitute
protected activity, as plaintiff was acting in the scope of her em ploym ent as a hum an resources director by
interviewing the witnesses to the incident.”).
30
granted and this action is dismissed.23
SO ORDERED.
Dated: Rochester, New York
October 19, 2011
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
23
The action is dism issed in its entirety, as against Concentrix and Synnex. In that regard,
Concentrix indicates that Synnex was never properly served in this action. Plaintiff does not directly refute
that assertion, but nevertheless appears to argue that Synnex is liable as an em ployer in this action. See,
Pl. Response to Defendant’s Rule 56. 1 Statem ent, ¶ 2. The Court finds that Synnex was not served in
this action, and in that regard, notes that the only proof of service that was filed in this action indicates that
the sum m ons and com plaint were served on Ms. Christine Tam , who is em ployed as Director of Hum an
Resources at Concentrix, which is identified by Plaintiff as a wholly owned subsidiary of Synnex. See,
Sansui Electronics Corp. v. American Southern Ins. Co., 1992 W L 77591 at *4 (S.D.N.Y. Mar. 26, 1992)
(“It is hornbook law that service of process on a subsidiary does not constitute service on a parent
corporation, nor does service on a parent constitute service on the subsidiary. Except in exceptional
circum stances not present here, the law respects separate corporate identities even where one
corporation m ay wholly own another....”) (citations om itted). In an any event, even assum ing that Synnex
had been served, there is no basis for liability against Synnex, for the sam e reasons discussed above
pertaining to Concentrix.
31
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