Vermette v. Verizon Wireless
Filing
34
ORDER granting 19 Motion for Summary Judgment. Clerk to close case. Signed by Hon. Michael A. Telesca on September 6, 2011. (MK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DAWN VERMETTE,
Plaintiff,
09-CV-6085
DECISION
and ORDER
v.
VERIZON WIRELESS,
Defendants.
________________________________________
INTRODUCTION
Plaintiff, Dawn Vermette (“Plaintiff”), brings this action
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (“Title VII”), 42 U.S.C. § 1981 and the New York
State Human Rights Law, N.Y. Exec. Law. § 290 et seq. (“NYSHRL”).
Compl. ¶1 (Docket #1).
She alleges that the Defendant, Verizon
Wireless (“Defendant” or “Verizon”), unlawfully retaliated against
her
for
complaining
of
gender
and
racial1
discrimination
by
demoting her, denying her a pay increases, subjecting her to
performance criticism and increased supervision and placing her on
performance improvement plans. She also alleges that these actions
gave
rise
to
an
intolerable
work
environment,
and
she
was
constructively discharged as a result.
Defendant moves for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure (“Rule 56"), contending that
1
Plaintiff’s Complaint alleges discrimination on the basis of her race and states that she is
of Mexican ancestry, ethnicity and origin. Compl. at ¶4.
Page -1-
Plaintiff has not established a prima facie case of retaliation,
nor shown that its legitimate, non-discriminatory reasons for its
actions are a pretext for discrimination.
Plaintiff opposes
Defendant’s motion, arguing that there are material issues of fact
which preclude summary judgment.
For the reasons set forth below, Defendant’s Motion for
Summary Judgement is granted in its entirety. Plaintiff’s Complaint
is hereby dismissed with prejudice.
BACKGROUND
This Court has reviewed Defendant’s Local Rule 56.1 Statement
of Undisputed Material Facts (“Defendant’s Statement”), Plaintiff’s
Responses to Defendant’s Statement2 (“Plaintiff’s Responses”) and
the entire record in this case and finds that the following facts
are not in dispute.
Plaintiff was employed by Verizon from
November 6, 2000 through October 22, 2008.
As she progressed
within the company between 2000 and 2006, Plaintiff was first
employed as a customer service representative, later as a business
2
This Court notes that Plaintiff has submitted “Responses to Defendant’s Local Rule 56.1
Statement” and an additional “Local Rule 56.1(b) Counter Statement.” (Docket #23.) This Court
has instructed Plaintiff’s Counsel on the purpose and requirements of Local Rule 56 on numerous
occasions. And this Court will not consider Plaintiff’s “Local Rule 56.1 Counter Statement”
which does not comport to this rule and which only serves to confuse this Court’s consideration
of the instant motion. See Ikewood v. Xerox, 2011 WL 147896 (W.D.N.Y. 2011); Duckett v.
Wal-Mart Stores, Inc., 2009 WL 995614 (W.D.N.Y. 2009); Szarzynski v. Roche Labaratories,
Inc., 2010 WL 811445 (W.D.N.Y. 2010); Barkley v. Pennyan School Dist., 2009 WL 2762272
(W.D.N.Y. 2009); Kuchar v. Kenmore mercy Hosp., 2000 WL 210199 (W.D.N.Y. 2000); see
also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (discussing Local Rule 56.1
in the Southern and Eastern Districts of New York which is essentially the same as this District).
Page -2-
sales associate (“BSA”) and also as a business sales representative
(“BSR”).
As a BSA, Plaintiff was responsible for providing phone
and email support for Verizon’s business customers.
As she moved
into the BSR position in early 2006, she was expected to directly
market and sell Verizon’s services to its business customers and to
achieve a monthly business sales quota as well as provide timely
and accurate service to her accounts.
Plaintiff struggled to meet her monthly sales quota as a BSR
and several of her supervisors were concerned that when they
attempted to assist her in improving her skills, she “became
defensive, offered excuses, and tried to shift blame to others.”
Defendant’s Statement at ¶¶ 29, 47. Plaintiff continued to struggle
throughout her tenure as a BSR, and continuously failed to meet
sales quotas.
All Verizon employees who fail to meet sales quotas are
subject to a “progressive discipline process” through which an
employee is first issued a Verbal Warning, followed by a written
Letter of Concern if his or her performance does not improve.
Thereafter,
an
employee
may
be
issued
a
Sales
Performance
Improvement Plan (“Sales PIP”) followed by a Final Sales PIP,
should he or she continue failing to meet sales quotas.
Following
these four steps, an employee who continues to fail to meet
Verizon’s expectations may be evaluated for possible termination.
Page -3-
This
progressive
discipline
process
is
administered
by
supervisors and Human Resources (“HR”) representatives together.
Should an employee improve his or her performance and begin to meet
expectations at any point during this process, he or she may avoid
termination or other potential consequences.
However, when an
employee is issued a Sales PIP, they are not permitted to apply for
other positions within the company, in part because Verizon does
not permit employees to “voluntarily demote” to avoid the four-step
disciplinary process. Defendant’s Statement at note 3.
In December 2006, Plaintiff’s supervisor at the time, Mark
Parmalee
failing
(“Parmalee”),
to
meet
her
issued
quota
in
Plaintiff
the
a
Verbal
previous
Warning
month.
for
Sometime
thereafter, Plaintiff discussed the implications of the Verbal
Warning with an HR representative, Kathy Lippa (“Lippa”), and
expressed her concern that other BSR’s had not been issued warnings
for failing to meet quotas.
Lippa informed Plaintiff that she had
time to improve her performance before she would experience any
negative employment consequences and that she would research her
concern that other BSR’s were not similarly issued warnings.
Lippa and Luis Rivera, Associate Director of Human Resources
(“Rivera”) and Mark Harris, Director of Business Sales (“Harris”),
jointly discussed Plaintiff’s concerns and determined that all
Verbal
Warnings
issued
to
employees
for
underperformance
in
November 2006 would be rescinded because the department as a whole
Page -4-
had performed poorly that month. However, the fact that Plaintiff’s
Verbal Warning was rescinded was never communicated to Parmalee,
and the warning inadvertently remained in her file.
On March 1, 2007, Plaintiff’s supervisor changed to Michael
Gisondi
(“Gisondi”).
Later
that
month,
as
Plaintiff
had
continuously failed to meet sales quotas over the previous six
month period, she was issued a written Letter of Concern.
Then in
April 2007 she was issued a Sales PIP, followed by a Final Sales
PIP in June 2007.
Then, in late June 2007, Plaintiff complained to HR about
several concerns related to her previous supervisor, Parmalee. She
also inquired whether other employees were treated equally with
respect
to
the
progressive
discipline
process
and
employee
development,3 and she informed HR of her confusion about the
progressive discipline process generally. She stated that she
believed
she
should
not
have
progressed
to
the
end
of
the
discipline process so quickly, because her initial Verbal Warning
had
been
rescinded.
She
sought
help
with
the
progressive
discipline process and also asked if she might be offered another
position in the company.
She reiterated her concerns in an e-mail to Luis Rivera on
July 20, 2007, in which she also stated that she believed that
3
It appears that this concern was also related to her time working under Parmalee, because
she testified that while she worked under Gisondi, everyone was treated equally. Vermette Dep.
at page 88.
Page -5-
Parmalee only went on sales calls with men.
But, she also stated
in her deposition that she knew that he went on several sales calls
with another female BSR, Kathy Fitzgerald. She then testified that
he treated her differently than other employees by failing to help
her develop as a BSR, and she believed it was partially because of
her gender.
Vermette Dep. at 83-4.
She related in the e-mail to Rivera that she had a discussion
with another manager at Verizon, Russ Preite, in which he told her
that he was working with HR representative Lippa to find her a new
position in the company.
She complained that he then stated that
he believed that she was not able to adequately perform in the BSR
position in part because it required her to work outside of regular
business hours and, being a single mother, this was difficult for
her.
She also stated in her e-mail to Rivera that she was told by
another supervisor, Scott Hartman (“Hartman”), that although she
was on a Final Sales PIP, she had been given some quota relief in
the months leading up to her complaint to HR and she would be given
new accounts to help her achieve her quota.
Hartman also advised
her to discuss her inquiry regarding a transfer within the company
with HR.
Lastly, the e-mail stated that she had overheard a comment at
work that she “speak[s] ghetto.” Def. Exhibit H.
Page -6-
Plaintiff now
attributes this comment to Parmalee, and states that he made the
comment in early 2007 while she worked under his supervision4.
Plaintiff stated that “[t]he outcome I would like to see as I
am a valued tenured employee, is to be offered another position
within Verizon Wireless....I am willing to review any alternative
options that HR will be willing to offer me...” Def. Exhibit H.
HR representative Lippa then researched Plaintiff’s complaint
that other employees were not issued warnings or PIP’s for failing
to
meet
their
sales
quotas.
Following
her
research,
Lippa
concluded that the progressive discipline process was followed
on
a “fair and equitable basis” for all employees. However, she noted
that at that time Plaintiff should not have been on a Final Sales
PIP, because the initial Verbal Warning issued to her in December
2006 had been rescinded, but inadvertently remained in her file.
Accordingly,
Plaintiff
was
then
placed
on
a
Sales
PIP,
the
disciplinary step below the Final Sales PIP.
Lippa also spoke to Plaintiff’s current supervisor, Gisondi,
who related that Plaintiff’s “performance was inconsistent and
lacked follow-through. [He] outlined several steps that he had
taken to assist and coach Ms. Vermette...[and] noted that when he
4
Plaintiff also states that at some point in time, an employee said that she was the
“cancer” of the group. It is not clear from Plaintiff’s Declaration or Plaintiff’s Responses
whether this occurred before or after her transfer or who made the comment. See Vermette Dec.
at ¶46; Plaintiff’s Responses at ¶61. However, as explained below, this fact is not material to the
Court’s decision on the instant motion.
Page -7-
tried to coach [her], she became defensive, offered excuses, and
tried to shift blame to others.” Defendant’s Statement at ¶29.
Lippa and Rivera met with Plaintiff on multiple occassions to
discuss her concerns during June and July 2007. Then, On July 25th
2007, they met with her, reviewed her concerns and their findings
and informed her that they “did not find any support for her
allegations of inconsistent or unfair treatment.”
Rivera then
informed her that she would be treated as if she were on a Sales
PIP, he told her that they had spoken to Preite regarding his
comment about her status as a single parent and he also assured her
that her current supervisors, Gisondi and Hartman were “committed
to her future success.” Defendant’s Statement at ¶34. Rivera asked
Plaintiff what she was seeking, and she stated that she wanted her
warnings rescinded
company.
She
accountable.”
and
testified
to
be
that
offered
she
another
wanted
job
“not
within
to
be
the
held
Vermette Dep. at pp. 51-3.
Later, in September 2007, Plaintiff, still on a Sales PIP and
unable to formally apply for other positions within the company,
was offered an open position as a BSA for a government sales team
by HR.
The position came with a pay decrease, and Plaintiff would
perform tasks similar to those that she performed in her previous
BSA position, prior to 2006.
She was also still subject to the
progressive discipline process, but she would be granted a clean
slate with no warnings or PIP’s in her file for the new position.
Page -8-
Although she could have remained in the BSR position if she
chose, and continued to work toward meeting her sales quotas,
Plaintiff
accepted
the
transfer
effective October 1, 2007.
and
began
working
as
a
BSA
Plaintiff now states that she was
“involuntarily demoted” to the BSA position and cites the decrease
in pay as evidence of an “involuntary demotion.”
She admits,
however, that other employees have been issued PIP’s, continued in
their positions, and ultimately succeeded in coming out of the
progressive discipline process and meeting their sales goals.
However, even after being transferred to the BSA position,
Plaintiff’s performance did not meet Verizon’s expectations.
Her
new supervisor, Mike Makuszak (“Makuszak”) noted that she “lacked
attention
to
detail,
failed
to
follow-up
with
customers
and
internal contacts in a timely fashion, failed to process orders or
complete other assigned tasks in a timely fashion, and lacked
prioritization and management skills.” Defendant’s Statement at
¶45.
He also noted several specific areas where Plaintiff failed
to meet his expectations, including numerous errors in order
processing and authorization.
Makuszak relayed his concerns to Plaintiff, and she states
that she told him that she felt overwhelmed.
said
he
was
“tired
Responses at ¶47.
of
babysitting
[her]
She contends that he
work.”
Plaintiff’s
He then issued a Verbal Warning to her in April
2008 and gave her suggestions on improving her performance, such as
Page -9-
paying close attention to detail, reviewing requests and making
checklists of tasks and procedures.
Plaintiff claims that she was denied a pay raise in March
2008.
However, she does not dispute that employees are not
eligible for yearly pay increases if they are rated as “developing”
for the previous year. Plaintiff was rated as “developing” for the
2007 year, and therefore, she was not eligible for a raise in March
of 2008.
Plaintiff was rated “developing” with the input of her
supervisor for the end of 2007, Fred Hinrichson.5
On May 12, 2008, as Plaintiff’s performance continued fall
below expectations, Makuszak met with HR representatives Rivera and
Lippa, to discuss the possibility of placing her on a PIP.
They
agreed to place her on a PIP, but Plaintiff left that same day on
short-term disability leave before they could administer the PIP.
Plaintiff, represented by counsel, then filed a charge of
discrimination with the Equal Employment Opportunity Commission on
May 19, 2008, alleging retaliation based on the alleged “demotion”
and denial of the March 2008 pay raise.
Plaintiff returned from disability leave in early September,
2008.
Makuszak administered the PIP and Plaintiff states that he
told her “clear up your attitude and everything will be okay.”
5
It is unclear from the parties’ submissions when Plaintiff’s supervisor changed from
Gisondi to Hinrichson, but Plaintiff has not claimed that either of these supervisors treated her
differently than other employees or discriminated against her in any way.
Page -10-
Plaintiff’s Responses at ¶54.
He advised Plaintiff that he would
follow up with her in 30 days.
Plaintiff states that she believed Makuszak was “watching her”
and she felt that she was “being marked” because of her prior
complaints to HR. Plaintiff’s Responses at ¶61.
She believed that
he was unnecessarily monitoring her phone calls and e-mail usage.
In September 2008, Plaintiff amended her EEOC charge to
include allegations that she was retaliated against based on the
most
recent
PIP.
Plaintiff
effective October 22, 2008.
resigned
from
Verizon
Wireless
She told HR representative Lippa that
she had accepted a position with a competitor.
She now claims her
working conditions were so intolerable that she was constructively
discharged.
Plaintiff commenced the instant action on February 20, 2009,
alleging retaliation and constructive discharge. Specifically, she
claims that after she complained of discrimination in early 2007
(she states that it was as early as March 2007), which was
memorialized in an e-mail on July 20, 2007, she was demoted, denied
a pay increase, subjected to unfair criticisms of her performance,
placed on a PIP and overly monitored by her supervisor, Makuszak.
DISCUSSION
Summary judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
Page -11-
movant
is
entitled
to
judgment
as
a
matter
of
law.”
See
Fed.R.Civ.P. 56(c). The court must view all facts in the light most
favorable to the nonmoving party, but “only if there is a ‘genuine’
dispute as to those facts.” See Scott v. Harris, 550 U.S. 372, 380
(2007).
A genuine issue of material fact exists if “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmoving party, however, may not rely on
“[c]onclusory allegations, conjecture, and speculation,” Kerzer v.
Kingly
Mfg.,
156
F.3d
396,
400
(2d
Cir.1998),
but
must
affirmatively “set out specific facts showing a genuine issue for
trial.” See Fed.R.Civ.P. 56(e). To discharge this burden, “a
plaintiff must come forward with evidence to allow a reasonable
jury to find in his favor” on each of the elements of his prima
facie case. See Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d
Cir.2001); see also D'Amico v. City of New York, 132 F.3d 145, 149
(2d Cir.1998) (“non-moving party may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard
evidence
showing
that
its
version
of...events
is
not
wholly
fanciful.”)).
In employment discrimination cases, the Court reviews a motion
for summary judgment pursuant to the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
Page -12-
792 (1973).6
Under this framework, the plaintiff must first
establish a prima facie case of discrimination.
The plaintiff’s
burden at this stage, however, is minimal. See Graham v. Long
Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
burden
shifts
to
the
employer
to
Thereafter, the
“articulate
a
legitimate,
nondiscriminatory reason for the adverse employment action, which,
if proffered, places the burden on the plaintiff to prove that
discrimination was the real reason for the employment action. See
Wolf v. New York City Dept. of Educ., 421 Fed. Appx. 8, 10, 2011 WL
1571890 (2d Cir. 2011).
A. Retaliation
To establish a prima facie case of retaliation, Plaintiff must
present facts in support of the following elements: (1) she engaged
in protected activity of which her employer was aware, (2) the
employer took an adverse employment action against her, and (3) a
causal connection exists between the protected activity and the
adverse employment action. Paulino v. New York Printing Pressman's
Union, Local Two, 301 Fed. Appx. 34,
37 (2d Cir. 2008).
In the
retaliation context, an employment action is adverse if it is
harmful such that it would have “dissuaded a reasonable employee in
[her]
position
from
complaining
of
6
unlawful
discrimination.”
Plaintiff’s claims under Title VII, 42 U.S.C. § 1981 and the New York State Human
Rights Law are analyzed under the same standards. See Spiefel v. Schulmann, 604 F.3d 72 (2d
Cir. 2010); see also Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
Page -13-
Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199,
209 (2d Cir.2006).
Defendant argues that Plaintiff has failed to establish a
prima facie case of retaliation. Specifically, it argues that
Plaintiff’s complaint to HR in 2007 did not constitute a protected
activity and that she was not subjected to adverse employment
actions following her discrimination charge to the EEOC in May
2008. They further argue that none of the employment actions taken
were materially adverse and Plaintiff has not produced evidence of
any causal connection between the actions that were taken and her
alleged protected activity.
Lastly, they argue that Plaintiff has
not rebutted their legitimate, non-discriminatory reasons for their
actions – her poor performance and inability to meet sales quotas,
and that she voluntarily requested and accepted the transfer to the
BSA position and could have remained in the BSR position.
Even assuming that Plaintiff has produced sufficient evidence
to establish a prima facie claim of retaliation, and drawing all
reasonable inferences in her favor, this Court finds that Plaintiff
has not present evidence from which a reasonable jury could find
that Defendant’s proffered reasons for its actions were pretextual,
and its real motive was discrimination.
1. Involuntary Demotion
Plaintiff states that she suffered an “involuntary demotion”
because her pay was reduced when she accepted the transfer to the
Page -14-
BSA position.
She argues that she had no choice but to accept the
position because she could not afford to lose her job.
Plaintiff,
however, has not come forward with any evidence to support the
contention that she “had no choice” but to accept the transfer or
suffer termination or some other negative employment consequence.
She admits that being placed on a Sales PIP is not ultimately
detrimental to a person’s success in a given position at Verizon,
rather, it is meant to assist that person in achieving their sales
quotas by giving them a plan of action to accomplish their goals.
While it is arguably disciplinary in action, it does not carry with
it consequences other than the knowledge that if you do not improve
your performance, you may be placed on a Final PIP.
Only after an
employee is placed on a Final PIP, and ultimately does not improve
his or her performance, is she potentially subject to a review for
termination.
Plaintiff, however, was only on a Sales PIP when she
was offered a transfer to the BSA position.
Further,
Plaintiff
does
not
dispute
the
fact
that
she
requested the ability to seek out other positions in the company as
well a transfer to any open position on multiple occassions.
In
her July 2007 e-mail to HR representative Rivera, she specifically
stated that she was “willing to review any alternative options that
HR will be willing to offer” and she referred to a conversation she
had with Scott Hartman regarding the same. Def. Exhibit H.
The
only evidence she offers that the BSA transfer was involuntary is
Page -15-
that her salary was decreased as a result of the transfer.
This
Court does not find that this is sufficient to overcome Defendant’s
legitimate, non-discriminatory reason for offering Plaintiff the
transfer and allowing her to move into the BSA position with a
clean slate.
It is worth noting that allowing Plaintiff to seek a
transfer was against company policy, as the company does not
typically allow employees to escape the four-step disciplinary
process by “voluntarily demoting” themselves. Plaintiff does not
dispute that she requested another position in the company while on
a Sales PIP and Verizon provided her an accommodation by lifting
company policy, permitting her to transfer and start her new
position with a clean slate in the four-step disciplinary process.
The
facts,
even
viewed
in
the
light
most
favorable
to
the
Plaintiff, do not support Plaintiff’s contention that the real
reason for the transfer was discrimination. See e.g.
Bryan v.
Lucent Technologies Inc., 307 F.Supp.2d 726 (D. Md. 2004)(plaintiff
who was underperforming in her previous position and voluntarily
sought out and accepted a transfer could not establish a cause of
action for retaliatory discrimination).
Plaintiff makes much of the fact that Russ Priete made a
comment regarding her status as a single parent and she also states
that she learned that another employee had referred to her as the
“cancer” in the group at some point in time.
However, it does not
appear that these statements are related to Plaintiff’s gender or
Page -16-
race such that they could support her claim that Defendant’s reason
for allowing her to transfer is a pretext for discrimination and
that discrimination was the real reason for it’s actions. See
Oncale v. Sundowner Offshore Services, Inc., 532 U.S. 75 (1998)
(“Title VII does not prohibit all verbal or physical harassment in
the workplace; it is directed only at ‘discriminat [ion] ...
because of ... [an individual’s race, color, religion, sex, or
national origin].’”); see also Faragher v. City of Boca Raton, 524
U.S. 775 (1998) (noting that Title VII is not a “general civility
code” and Courts must apply standards to “filter out complaints
attacking the ordinary tribulations of the workplace, such as the
sporadic
use
of
abusive
language,
gender-related
jokes,
and
occasional teasing.”).
Accordingly, this Court finds that Defendant has proffered a
legitimate, non-discriminatory reason for offering Plaintiff a
transfer.
Plaintiff has not presented evidence from which a
reasonable jury could conclude that this reason was a pretext for
discrimination.
2. Denial of the March 2008 Pay Raise
Plaintiff also contends that she was denied a pay raise in
March 2008. However, Plaintiff does not dispute that she failed to
meet her sales quota for several months in 2007 and was ultimately
rated as “developing” as a result.
She also does not dispute that
employees rated as “developing” are not eligible for pay increases.
Page -17-
The only evidence Plaintiff offers to support her claim based
on the
denial of a pay increase is her testimony that her
supervisor, Mark Parmalee, failed to properly “develop” her by
going with her on sales calls, that he did not like her and that he
said that she “speak[s] ghetto.”
However, Plaintiff stopped
reporting to Parmalee in March of 2007, prior to her complaints to
HR, and therefore his conduct cannot reasonably support a claim for
retaliation. See Dansler-Hill v. Rochester Institute of Technology,
764 F.Supp.2d 577, 582 (W.D.N.Y. 2011)(“The crux of any retaliation
claim is a cause-and-effect relationship whereby protected activity
precedes, and gives rise to, an adverse employment action. It is
axiomatic that no such relationship can be found to exist where the
alleged adverse employment action began and ended prior to the
commencement of any protected activity.”).
Her performance also continued to fall below expectations
under supervisors Gisondi and Hinrichson, to whom she reported for
the remainder of 2007.
Plaintiff did not complain of unequal
treatment or any discriminatory conduct on the part of Gisondi or
Hinrichson, and she specifically testified that Gisondi treated
everyone equally.
Plaintiff’s “developing” rating was issued with
the input of Hinrichson, and there is no evidence that Parmalee
contributed to the “developing” rating.
Plaintiff also has not
disputed that the rating itself was an accurate depiction of her
performance - as she failed to make sales quotas for several months
Page -18-
in
the
year
and
Gisondi
noted
that
her
“performance
was
inconsistent and lacked follow-through. [He] outlined several steps
that he had taken to assist and coach [her]...[and] noted that when
he tried to coach [her], she became defensive, offered excuses, and
tried to shift blame to others.” Defendant’s Statement at ¶29.
Therefore, this Court finds that Defendant has proffered a
legitimate, non-discriminatory reasoning for denying Plaintiff a
pay increase in March 2008. Plaintiff has not presented evidence
from which a reasonable jury could conclude that Defendant’s reason
was a pretext for discrimination and that discrimination was the
real reason she was denied the pay increase.
3. Work Criticisms and the Progressive Discipline Process
Plaintiff last argues that she suffered retaliation based on
the fact that she was subjected to work criticism, increased
monitoring and placed on PIP’s.
Plaintiff admits, however, that
she continuously failed to meet her sales quotas while she was a
BSR and she further admits that when she was transferred to the BSA
position,
her
expectations.
was
performance
continued
to
fall
below
Plaintiff presents no evidence that the reason she
subjected
progressive
work
to
criticism,
discipline
process
increased
(i.e.
monitoring
her
and
continuously
the
poor
performance), was a pretext for discrimination.
The
only
evidence
of
any
arguably
gender
or
race-based
discriminatory conduct occurred while Plaintiff was under the
Page -19-
supervision of Mark Parmalee, prior to her complaints to HR.
Parmalee’s remarks about Plaintiff’s speech and her allegations
that
he
failed
insufficient
to
to
develop
show
that
her
her
because
work
was
of
her
gender,
criticized,
she
are
was
monitored, or that she was placed on PIP’s for discriminatory
reasons after she made her complaints to HR and after she was
placed
under
other
supervisors.
Additionally,
the
only
disciplinary action taken while Plaintiff was under Parmalee’s
supervision, a Verbal Warning, was later rescinded, following her
complaints to HR, which does not support her claim of retaliation.
As a BSR, she was not officially disciplined again until she came
under the supervision of Gisondi and Hinrichson, with whom she has
no complaints.
When
she
was
transferred
to
the
BSA
position,
Makuszak
continued to have similar criticisms of her performance. Plaintiff
has not provided any evidence to support her contention that
Makuszak’s concerns about her performance were unwarranted or
discriminatory in nature. She merely states that she told Makuszak
that she was overwhelmed and he responded that he was tired of
“babysitting” her work.
Plaintiff has not submitted evidence from
which a reasonable jury could conclude that she was criticized,
monitored, or subjected to the progressive disciplinary progress
for discriminatory reasons, or for any reason other than her
admittedly poor work performance.
Page -20-
Simply put, Plaintiff’s allegations related to Parmalee’s
discriminatory conduct, which occurred prior to her complaints to
HR and the EEOC and prior to any allegedly adverse action taking
place cannot reasonably support her contention that the real reason
that she was subjected to discipline was not her poor performance,
but discrimination.
This is particularly true because Plaintiff
has not presented any other evidence of discriminatory conduct by
any other supervisor, and she was no longer under Parmalee’s
supervision when she made complaints to HR.
B. Constructive Discharge
“Constructive
employer,
rather
discharge
than
of
directly
an
employee
discharging
occurs
an
when
an
individual,
intentionally creates an intolerable work atmosphere that forces an
employee to quit involuntarily. Working conditions are intolerable
if they are so difficult or unpleasant that a reasonable person in
the employee's
shoes
would
have
felt
compelled
to
resign.”
Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d
Cir.
1996).
The
evidence
proffered
by
the
Plaintiff
is
insufficient for a reasonable jury to conclude that her working
conditions were so intolerable that a reasonable person would have
felt compelled to resign.
While Plaintiff felt “overwhelmed” by
the work and failed to meet Defendant’s performance expectations
for 2007 and 2008, and was therefore subject to warnings and
performance improvement plans and did not qualify for a pay raise,
Page -21-
these conditions are not so intolerable that a reasonable person
would have felt compelled to resign. Particularly because Plaintiff
admits
that
her
performance
was
not
satisfactory
during
the
relevant period and it was within her control to improve her
performance. See Petrosino v. Bell Atlantic, 385 F.3d 210, 230 (2d
Cir. 2004) (“[W]here an employee has within her power the means to
eliminate
the
added
condition
that
purportedly
renders
her
employment intolerable and fails to pursue that option, she cannot
demonstrate that she was compelled to resign.”).
It is noteworthy
that Plaintiff states that just prior to her departure, she met
with Makuszak regarding the PIP, and he told her that if she
improved,
“everything
will
be
okay.”
Further,
Plaintiff
acknowledges that being placed on a PIP, even a Final PIP, does not
prevent an employee from improving their performance and eventually
having a successful career with Verizon.
Cf. Chertkova, 92 F.3d
at
fact
89-90
(finding
a
material
issue
of
where
plaintiff
experienced an “onslaught of unfounded criticism coupled with the
threat of immediate termination”)(emphasis added).
Accordingly, this Court finds that Plaintiff has not presented
sufficient evidence for a reasonable jury to find that she was
constructively discharged.
Page -22-
CONCLUSION
For the reasons set forth above, this Court grants Defendant’s
Motion for Summary Judgment in its entirety. Plaintiff’s Complaint
is hereby dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 6, 2011
Page -23-
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