Robinson v. Zurich North America Insurance
Robinson v. Zurich North America Insurance
Opinion of the Court
MEMORANDUM AND ORDER
Plaintiff Herma Robinson (“Robinson” or “plaintiff”) commenced this action against Zurich North America Insurance Company (“Zurich”) and Jennifer Robbie (“Robbie”) alleging that Zurich and Robbie violated Robinson’s constitutional rights, pursuant to 42 U.S.C. §§ 1981, 1983, and Robinson’s rights under the New York State Human Rights Law (“NYSHRL”) pursuant to N.Y. Exec. L. § 290 et seq. Robinson also alleges that Zurich violated her rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”). Plaintiff is an African-American woman who was hired by Zurich in 2003 as a Quality Assurance Auditor in the Melville, New York office. Plaintiff alleges that she was the subject of (1) race and age discrimination, as well as retaliation, when she was terminated from employment in August 2009, and (2) a hostile work environment arising from, inter alia, an increased workload, heightened supervision, additional training, a decrease in bonus pay, placement on probation and eventual termination. Plaintiff seeks actual, compensatory and punitive damages, and attorneys’ fees and other costs. Defendants contend, inter alia, that their adverse employment action against plaintiff was not based upon any discriminatory or retaliatory motive, but rather was based upon the plaintiffs poor job performance over an extended period of time, which ultimately ended in her termination from employment in August 2009. Defendants also contend that the hostile work environment claim has no merit.
Defendants now move for summary judgment on all claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Although plaintiff has no evidence to controvert the above-referenced evidence of poor performance, she does attempt to provide explanations for portions of the poor performance. For example, with respect to the second lowest score in the Company on the litigation management test, plaintiff asserts that she had just returned from leave and did not receive sufficient training. In short, plaintiffs efforts to explain certain aspects of her poor performance simply do not address the uncontroverted evidence and are insufficient to create a genuine issue of disputed fact to allow this claim to survive summary judgment. In any event, even though plaintiff disagrees with defendants’ assessment and even assuming arguendo that she had evidence to dispute their evidence regarding her poor performance, there is simply nothing in the record that would
The retaliation claim also cannot survive a motion for summary judgment even construing the evidence most favorably to plaintiff. Even though plaintiff claims she complained to Robbie about discrimination in an October 2007 conversation, the first arguably adverse action did not occur until March 2008. This five-month lapse is simply too remote in time to support a causal connection for retaliation. Similarly, the over one-year gap between her EEOC complaint in July 2008 and her termination in August 2009, is also insufficient to support an inference of retaliation. In any event, even assuming arguendo that plaintiff could establish temporal proximity, there is simply not a scintilla of evidence to demonstrate that the defendants’ proffered reason of plaintiffs poor performance — supported by the above-referenced, uncontroverted evidence — was a pretext for retaliation.
In sum, none of the federal claims can survive summary judgment, and the Court declines to exercise supplemental jurisdiction over the state law claims.
I. Background A. Factual Background
The Court has taken the facts set forth below from the parties’ depositions, affidavits, and exhibits, and from the parties’ respective Rule 56.1 Statements of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Unless otherwise noted, where a party’s 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.
1. Plaintiffs Role as a Closed File Auditor
In 2003, plaintiff interviewed for an auditor position with Zurich. (Defs.’ 56.1 ¶ 5.) Kostkowski was among the individuals who interviewed plaintiff for the position, and was the individual who made the decision to hire her. (Id.) At the time of her interview, plaintiff was over fifty years-old. (Id. ¶ 6.) On or about September 8, 2003, plaintiff began her employ
From the start of plaintiffs employment to sometime between 2006 and 2007, plaintiff conducted closed file liability audits. (Id. ¶ 10.) Auditors reviewing closed files were responsible for reviewing all aspects of the claim handling process in a concluded case, from the creation of the file to its end. (Id.)
2. Plaintiffs Transition to Transactional Auditing
On or about April 2007, Kostkowski appointed plaintiff to the role of transactional auditor. (Id. ¶ 11.) Transaction audits focused on one specific aspect of an open file, rather than a review of the entire file from beginning to end. (Id.) After auditing the file, plaintiff scored the particular aspect of the file that she reviewed. (Id.) The claims adjuster then had an opportunity to submit a “rebuttal” if he or she believed that plaintiffs score was incorrect. (Id. ¶ 12.) On a transactional audit, a negative score can impact the whole file, and the scoring often created conflict and contention among the auditors and the audited claims adjusters and team managers. (PL’s 56.1 Statement of Additional Facts ¶ 41-42.) In addition to performing transactional audits, plaintiffs job duties included compiling the transactional audits completed by other employees into a master comprehensive report. (Defs.’ 56.1 ¶ 16.)
According to Kostkowski’s deposition testimony, plaintiff met with Patty Magid (“Magid”), a Zurich employee who performed transactional audits before plaintiffs reassignment, over “expectations and the audits.” (PL’s Ex. 1, Kostkowski Deposition Transcript (“Kostkowski Dep.”) at 115.) According to Magid, she did not think it was her job to give plaintiff support, but Magid provided plaintiff with “what [she] had in terms of spreadsheets and guidelines and things like that, audit results.” (PL’s Ex. 4, Magid Deposition Transcript (“Magid Dep.”) at 64-65.) According to plaintiffs deposition testimony, Magid “throw [sic] the documents to me” and told plaintiff how upset she was. (PL’s Ex. 2, Robinson Deposition Transcript (“Robinson Dep.”) at 90.) On May 1, 2007, Magid forwarded plaintiff an audit guide.
3. Robbie’s Supervision of Plaintiff and Zurich’s Concerns Regarding Plaintiffs Transactional Audits
Also in the spring of 2007, Zurich reorganized its auditing team and, as a result, Kostkowski was promoted to Vice President of Customer Services Auditing, a position two levels removed from the auditor
According to plaintiffs deposition testimony, on June 1, 2007, prior to Robbie’s appointment as plaintiffs team manager, Robbie sent plaintiff her monthly audit ■without a salutation. (Pl.’s Ex. 2, Robinson Dep. at 87.) According to plaintiff, the other auditors normally say, “Hi, Herma,” or “Hello, here it is,” or some “acknowledgement of who [plaintiff is].” (Id. at 87-88.)
Though the parties dispute minor details regarding transactional audits as of 2007, it is undisputed that, in 2007, Zurich incorporated a subjéctive element into transactional audits. (Defs.’ 56.1 ¶ 20; PL’s 56.1 Counter Statement ¶ 20.) According to Robbie’s deposition testimony, in 2007, transactional auditors began looking at the “quality of an action” in addition to ensuring that claims adjusters were following the rules. (Walker Decl. Ex. D, Robbie Deposition Transcript (“Robbie Dep.”) at 32-33.)
Plaintiff alleges that, in September 2007, Robbie assigned her 110 more audits than any other employee as part of an “N3” audit. (PL’s 56.1 Statement of Additional Facts ¶ 58; Defs.’ 56.1 ¶ 122.) According to Robbie’s spreadsheet tracking audits, plaintiff had 431 audits in September 2007; the other auditors had 384, 325, 308, 228, and 360.
According to Kostkowski’s deposition testimony, plaintiff sought perfect, as opposed to critical, information. (Walker Deck Ex. E, Kostkowski Dep. at 143 — 44.
By email dated November 19, 2007, Robbie provided plaintiff with comments regarding plaintiffs review of an adjuster’s file and informed plaintiff that files should
In October 2008, plaintiff was informed by Pamela Burris, a Zurich employee in quality assurance, that plaintiffs “wanting to know if claimant was wearing a dress or pants or wearing glasses would be perfect vs[.] critical information.” (Walker Decl. Ex. XX, Email dated October 21, 2008.)
4. Concerns Regarding Plaintiffs Communication Skills
According to Kostkowski, around 2005, Kostkowski became aware of a complaint from a manager who believed that plaintiff was “not professional” in her style of writing, and plaintiff did not want to discuss the case despite having discussed it many times before. (Walker Decl. Ex. E, Kostkowski Dep. at 51-52.) According to Kostkowski’s deposition testimony, while he was plaintiffs supervisor, the audit team discussed “that the recommendation was made that [Robinson] needs to communicate more thoroughly in her responses in her audits to support the position that she was taking, as well as through the discussion phase or the rebuttal phase, as we called it, when there was a face-to-face discussion with the field.” (PL’s Ex. 1, Kostkowski Dep. at 60.)
According to Robbie’s deposition testimony, around August 2007, she reached out to Kostkowski for guidance with respect to plaintiff. (Walker Decl. Ex. D, Robbie Dep. at 79-80.) Robbie had received information from the field offices that the relationship between plaintiff and the offices were “not going well and that [Kostkowski] had been involved in trying to resolve this issue and then it was transferred to [Robbie].” (Id. at 80.) According to Robbie, Kostkowski specifically mentioned that plaintiff was having problems with the Boston field office. (Id. at 90.) Around August 2007, four Zurich employees had contacted Robbie to voice complaints regarding interactions with the plaintiff. (Id. at 81-83.)
According to Robbie’s deposition testimony, in late August 2007, Robbie and Kostkowski decided to have plaintiff take a communications class. (Walker Decl. Ex. D, Robbie Dep. at 93.) Plaintiff completed this one-day class. (Walker Decl. C, Robinson Dep. at 265.)
On September 10, 2007, Robbie sent plaintiff an email stating “[c]ommunication is crucial in the transactional audits. Your emails is [sic] so brief that the team manager does not understand what your intention [is].” (Robbie Decl. Ex. A, Email Chain dated September 10, 2007.) On September 11, 2007, Robbie emailed plaintiff stating, “I understand and I am glad that you have rectified the situation. I do not think the team managers understand your intent or how you are scoring a file when you provide the brief type of communication below. This is something that needs to improve. The team manager should have clear understanding of how you have scored the file based on your communication going forward.... Clear communication is our responsibility.” (Robbie Decl. Ex. B, Email Chain dated September 11, 2007.)
Between August 23 and September 18, 2007, Robbie attempted to set up a meeting to discuss communications issues with team managers and plaintiff, but the meeting did not take place. (PL’s Ex. 3, Robbie Dep. at 99-100.) According to Robbie’s
On April 4, 2008, in response to an email chain between plaintiff and another Zurich employee, Robbie stated, “Herma: You need to be clearer in your explanations of findings and the reasons behind the findings to the claim offices.” (Robbie Decl. Ex. GG, Email Chain dated April 4, 2008.)
According to Robbie’s deposition testimony, Robbie moved plaintiff to audits that required less contact with the outside offices. (Walker Decl. Ex. D, Robbie Dep. at 87.)
5. Calibrations and Reviews of Plaintiffs Audits
Throughout plaintiffs tenure at Zurich, auditors commonly participated in calibration exercises. (Defs.’ 56.1 ¶ 31.) Calibration exercises involve having multiple auditors review the same file and thereafter discuss their findings. {Id.) When Kostkowski was plaintiffs direct supervisor, there was “some inconsistency” between plaintiffs scores for an audit and her peers’ scores. (Walker Decl. Ex. E, Kostkowski Dep. at 58-59.) To correct this problem, Kostkowski stated, “[W]e would calibrate some more. I would have a direct dialogue with [Robinson], or through an e-mail when I would review a file.” {Id. at 59.) Kostkowski did not believe that this issue warranted a formal verbal or written warning, but it did warrant “a response, either verbally or through an email, indicating these are some improvement opportunities that we need to really concentrate on and here is what we need to do to make sure that we reach that improvement.” {Id. at 59-60.)
On September 21, 2007, Robbie sent plaintiff an email requesting that she “please slow down and make sure we are accurate.” (Robbie Decl. Ex. P, Email Chain dated September 21, 2007.) In an email earlier in that same email chain, Robbie requested that plaintiff “please double check your work.” {Id.)
According to plaintiffs deposition testimony, in October 2007, there was a calibration exercise. (Walker Decl. Ex. C, Robinson Dep. at 104.) Plaintiff, Robbie, Magid, Burris, and another auditor, John Morales, participated in a conference call regarding the exercise. {Id. at 104-05.) Robbie left the conference call early, and after Robbie’s departure, Magid stated that “anybody [who] audit[s] like this should no longer be auditing inside Zurich.” {Id.) According to Kostkowski’s deposition testimony, Magid stated that plaintiff should be fired in a meeting with Kostkowski and two other Zurich employees, Deb Ligda and Charles Bono.
On October 11, 2007, Robbie forwarded to Kostkowski an email that she had previously sent plaintiff. (Walker Deck Ex. E, Kostkowski Dep. at 126-128; Walker Deck Ex. V, Email Chain dated October 12, 2007.) In the email to Kostkowski, Robbie states, “Fyi. [Plaintiff] is really struggling from a skill perspective on all of these
6. Plaintiffs Development Plan
In response to Robbie’s email dated October 11, 2007 requesting that plaintiff consider a plan to increase her strength in a particular area, plaintiff responded to Robbie: “thank you very much. I am willing to be educated. Have a blessed weekend.” (Walker Decl. Ex. Q, Email Chain dated October 12, 2007.) Robbie responded, “Herma, Please put together a plan together [sic] for yourself and we will discuss your ideas next week.” (Id.) According to the deposition testimony of Catherine Spera (“Spera”), individual development plans have existed at Zurich for her entire tenure there, though there had been a push in recent years for all employees to do them. (Pl.’s Ex. 5, Spera Deposition Transcript (“Spera Dep.”) at 60-61.)
According to Robbie’s deposition testimony, during a phone call on October 23, 2007, plaintiff informed Robbie that it was Robbie’s job to create the plan for plaintiff. (Pi’s. Ex. 3, Robbie Dep. at 110-11.) According to plaintiffs deposition testimony, in that same call, plaintiff informed Robbie that she felt she was being singled out because she was “the only black person reporting to” Robbie and “one of the oldest.” (Pl.’s Ex. 2, Robinson Dep. at 117.) After this call, Robbie spoke with Spera, who documented the call and told Robbie to document all conversations with plaintiff and be clear in her expectations. (Walker Deck Ex. W, Notes dated October 24, 2007.) According to Spera’s deposition testimony, Spera asked Robbie if there “was anything she thought might be construed as discrimination.” (Walker Deck Ex. F, Spera Dep. at 134.) Robbie informed Spera that plaintiff did not talk about disparate treatment or discrimination.
On October 29, 2007, Robbie emailed plaintiff with the development plan. (Walker Deck Ex. S, Email dated October 29, 2012.) Among other things, the plan required plaintiff to send her completed audits to Robbie every Friday before the audits were finalized and released to the finance department. (Id.) Robbie also recommended that plaintiff take “AEI General Liability course number 217.” (Id.) In Robbie’s deposition, she acknowledged that the completion of the AEI course may have increased plaintiffs workload. (PL’s Ex. 3, Robbie Dep. at 132.)
Robinson spoke with Kostkowski regarding the action plan. (Robbie Deck Ex. S, Email dated October 29, 2007; Walker Deck Ex. C, Robinson Dep. at 123-124.) Plaintiff did not tell Kostkowski that Robbie had singled her out because of her race or age. (Walker Deck Ex. C, Robinson Dep. at 124.)
7. Plaintiffs Presentation in Omaha
On March 13 and 14, 2008, plaintiff traveled to Omaha, Nebraska to give a presentation to “Programs,” a business unit within Zurich. (Defs.’ 56.1 ¶43.)
8. Plaintiffs Performance Reviews
Zurich’s 2005 Performance Management Current Review form rated employees on a scale of 0.0 (goal is not met) to 1.5 (goal is exceeded). (Walker Deck Ex. U, Plaintiffs 2005 Review.) With respect to plaintiffs 2005 review, signed by Kostkowski, plaintiff received 1.0’s (goal is fully met) for most of the listed tasks. (Id.) Plaintiff received two 1.1’s. (Id.) The comments included remarks such as, “customer service is extremely important to [plaintiff]” and “[plaintiff] is a strong listener which helps her resolve many of the issues that surface during the discussion process.” (Id.) The review also included comments that plaintiff “needs to seek more guidance with larger coverage issue claims” and “needs to be more demonstrative and clearer in her presentation of the issues and solutions.” (Id.) Kostkowski testified at his deposition that no one under his supervision performed worse than plaintiff, and others were performing better. (Walker Deck Ex. E, Kostkowski Dep. at 52-53.)
In 2007, Zurich instituted a more demanding performance management culture and no longer permitted employees to receive mediocre performance ratings. (Defs.’ 56.1 ¶ 48.) According to Robbie’s declaration, in 2007, “the company ... implemented a more demanding performance management culture. Managers were advised that they needed to document performance deficiencies and utilize corrective action for underperforming employees, rather than tolerating mediocre performance ratings year after year.” (Robbie Deck ¶ 4.) The 2007 Year-End Assessment appears to have been scored on a scale of one through five. (Walker Deck Ex. J, 2007 Year-End Assessment.) Plaintiffs overall assessment was a two, partially meets expectations.
Around the same time as plaintiffs 2007 year-end performance evaluation, Robbie and Kostkowski agreed to issue plaintiff a verbal warning advising her that she needed to improve her accuracy and her communication skills. (Defs.’ 56.1 ¶ 50.) The final draft of the warning noted that plaintiffs re-audit accuracy for January and February was calculated at 50% compliance, which was below the company’s 93% expectation, and her communications were unclear. (Id. ¶ 51.) The warning required that plaintiff improve her accuracy scores and her style of communicating within the next thirty days. (Id.)
On March 19, 2008, Robbie asked plaintiff to meet her in the Rocky Hill, Connecticut office to discuss plaintiffs performance review. (Id. ¶ 52.) After learning that she would be traveling to Rocky Hill to meet with Robbie, plaintiff called Spera and informed Spera that she was “not treated properly.” (Id. ¶ 53.) Plaintiff stated that she was not being treated equally to her peers. (Walker Decl. Ex. Y, Spera Notes.) Plaintiff expressed her dissatisfaction with having to take a communications course. (Id.)
Robbie met with plaintiff on March 25, 2008, in Rocky Hill. (Defs.’ 56.1 ¶ 56.) During the meeting, Robbie issued the verbal warning and the 2007 year-end evaluation, and then provided plaintiff with an opportunity to discuss the documents. (Id.) Plaintiff stated that she did not have any questions or comments, and the meeting ended quickly. (Id.) Plaintiff refused to sign the verbal warning. (Id. ¶ 57.) Plaintiff refused to sign the review. (Walker Decl. Ex. J, 2007 Year-End Assessment.) Plaintiff did not discuss her 2007 performance evaluation with Kostkowski, who had signed off on the evaluation. (Defs.’ 56.1 ¶ 57.)
On March 25 and 27, 2008, plaintiff contacted Spera regarding the meeting and her review. (Defs.’ 56.1 ¶ 60-61; Walker Decl. Ex. Y, Spera Notes.) Plaintiff informed Spera that she was retaining an attorney. (Defs.’ 56.1 ¶ 62.) Spera offered to come to plaintiffs office in Melville to speak to plaintiff in person. (Id.) Plaintiff informed Spera that she would review her performance evaluation and get back to Spera. (Id.)
According to plaintiffs declaration, on March 27, 2008, Robbie revisited the March 2008 assignments and assigned plaintiff 587 files to audit; another auditor, Deb Conley received 535 files and Burris received 249. (Robinson Decl. ¶ 22.) According to Robbie’s audit spreadsheets, plaintiff had 494 files to audit in March 2008; the other auditors had 525, 496, 336, 613, 100, and 496. (Robbie Supp. Decl. Ex. A, Audit Spreadsheets.) In April 2008, plaintiff had 667 files to audit; the other auditors had 525, 646, 407, 469, 1369, and 596. (Id.)
Plaintiff began forwarding emails to Spera expressing her dissatisfaction with Robbie and questioning decisions made with respect to other auditors and Zurich employees. (Walker Decl. Exs. AA, BB, CC, FF, GG, II, & OO, Emails from Robinson to Spera.)
In April 2008, plaintiff received her 2007 bonus which was approximately thirteen thousand dollars less than what she had received the previous year. (PL’s 56.1 Statement of Additional Facts ¶ 102.) As noted supra, on April 9, 2008, Robbie informed plaintiff that she was shifting the more intensive Programs audits to Burris to provide plaintiff with extra time. (Robbie Decl. Ex. K, Email dated April 9, 2008.)
On May 8, 2008, plaintiff was issued a written warning for her performance. (Defs.’ 56.1 ¶ 68; Walker Decl. Ex. Z, Written Warning.) The warning indicated that plaintiffs year-to-date re-audit accuracy was calculated at 43% compliance against a goal of 93% compliance. (Id.) The warning also indicated that plaintiff requested an extension of time to complete her quarterly reports on the date they were due, and the quarterly reports “did not demonstrate subject matter expertise or professional and effective written communications.” (Id.) Plaintiff was advised that her performance would be monitored for the next thirty days to determine improvement, and that a failure to meet the performance standards outlined in the warning may result in termination. (Id.)
10. Plaintiffs Probation
On July 2, 2008, Spera, Robbie and plaintiff met to discuss plaintiffs performance. (Defs.’ 56.1 ¶ 71.) Robbie participated via telephone. (Id.) Robbie informed plaintiff that she was still not performing proficiently and consequently was being placed on probation. (Id.) Plaintiff did not say anything in response and did not, at any point during the meeting, mention her race, color or age, or claim that she was placed on probation as a result of race, color, or age. (Id.) After Robbie disconnected from the call, Spera informed plaintiff that she was going to mail plaintiff a Separation Agreement for her review. (Id. ¶ 72.) According to Spera’s deposition testimony, under Zurich’s corrective action policy at the time, when an employee was placed on probation, the employee was offered a separation option. (Walker Decl. Ex. F, Spera Dep. at 188.)
Plaintiff was placed on probation for forty-five days; this was the final step in Zurich’s corrective action process. (Defs.’ 56.1 ¶ 70.) The written warning indicated that plaintiffs year-to-date re-audit accuracy was calculated at 47.6% compliance against a goal of 93%. (Walker Decl. Ex. L, Probation Final Warning.)
From July 2, 2008 through October 1, 2008, while plaintiff was on probation, plaintiff took a medical leave of absence. (Defs.’ 56.1 ¶ 74.) On July 17, 2008, plaintiff filed a complaint of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that Zurich was discriminating against plaintiff on the basis of her race, color, age, and national origin. (Id. ¶ 75.)
On October 1, 2008, when plaintiff returned from leave, Zurich extended plaintiffs probationary period for another forty-five days; according to Spera’s deposition testimony, this was so that plaintiff “wouldn’t lose time because of being out.” (Id. ¶76; Walker Decl. Ex. F, Spera Dep. at 202.) Robbie arranged for plaintiff to engage in practice calibration exercises that would not be scored. (Defs.’ 56.1 ¶ 76.)
When plaintiff returned from leave, she was asked to complete a year-end report compiling information from plaintiffs audits and the other auditors’ files. (Id. ¶ 77.) Killgore, a vice president in quality assurance and training, offered to have Jackie Grebitus, another auditor within the group, Burris or Robbie assist plaintiff with completing the report. (Defs.’ 56.1 ¶ 77; Walker Deck Ex. O, Email Chain dated January 13, 2009.) Although plaintiff acknowledged in her deposition that she had the skills to write the report, and that she had written this kind of report previously, she felt that she needed training to complete the report because she was told that “writing the report has changed.” (Walker Deck Ex. C, Robinson Dep. at 202-03.) Plaintiff ultimately did not create her year-end report. (Defs.’ 56.1 ¶ 79.)
In December 2008, Killgore decided to conduct a “100% reaudit” of plaintiffs work, which entailed having other team members re-audit all of plaintiffs audits. (Defs.’ 56.1 ¶ 88.) Plaintiff was informed of the re-audit on December 9, 2008. (Id.) When plaintiff discovered that she and Grebitus had been assigned the same file, she complained to Killgore and Spera that it was “strange” that this occurred after she brought a complaint against the Company. (Id. ¶¶ 89-90.) Killgore responded that the review and re-audit process had nothing to do with a complaint against the Company. (Walker Deck Ex. O, Email Dated January 13, 2012.)
On December 31, 2008, during the reaudit, Burris informed Robbie that plaintiff was then at a 45.22% accuracy rate. (Defs.’ 56.1 ¶ 91.)
Plaintiff received a “below expectations” rating for her 2008 year-end review. (Id. ¶ 85.) The review noted that plaintiffs work results yielded a 59% year-to-date accuracy and that plaintiff had difficulty with the creation of quarterly reports. (Id.) The review noted that plaintiffs reports contained illegible graphs and did not demonstrate a strong grasp of the subject matter. (Id.) On March 19, 2009, plaintiff met with Robbie via telephone to discuss her 2008 performance evaluation. (Id. ¶ 87.) During this call, plaintiff did not make any comments regarding her race, age or color. (Id.)
11. Litigation Examination
On March 11, 2009, Zurich’s Claims Technical Training department tested the Company’s claims adjusters and auditors on their litigation management skills. (Id. ¶ 83.) Plaintiff failed the exam and received the second lowest score in the company.
12. Facts Surrounding Plaintiffs Vacation Time
In plaintiffs complaint, plaintiff alleges that defendants “denied her vacation” in 2009. (Id. ¶ 94.) However, plaintiff concedes she was able to take her vacation, but contends she had to “fight” for it. (PL’s 56.1 Counter Statement ¶ 94.)
On August 23, 2007, plaintiff informed Robbie that she would be on vacation from August 27 through August 31, 2007. (Defs.’ 56.1 ¶ 95.) Robbie asked whether plaintiff had cleared the vacation with Kostkowski previously, as Robbie was only given two days’ notice. (Id.) Plaintiff responded that “[djuring the Month of August, I would go away on a Missionary trip
On June 3, 2009, Robbie received notification that plaintiff would be on vacation from August 12 through August 25, 2009. (Walker Decl. Ex. UU, Email Chain dated June 8, 2009.) Robbie asked plaintiff if she had submitted the August vacation dates for approval and stated that a lot of people had already scheduled vacation days in August. (Id.) Plaintiff responded ‘Tes! My missionary trip is booked. Zurich is aware that I am a missionary when I was hired.” (Id.) Robbie then again asked whether plaintiff had submitted the vacation request for approval and noted that Robbie’s calendar reflected that plaintiff “just put the days in last week.” (Id.) Plaintiff responded that she posted the time off to Robbie’s calendar and the “GEMS” and asked if there was a procedure she was missing. (Id.) Robbie responded by including the policy for Paid Time Off (“PTO”) which stated that PTO had to be approved by an immediate supervisor. (Id.) Plaintiff responded that her vacation was “planned and set in stone. There are no other N3 Liability Auditor [sic] out during my time.” (Id.) Robbie then responded that auditors back different lines of business, and that when three other auditors are out on approved PTO, other auditors would back the vacationing auditors regardless of the line of business. (Id.) In response, plaintiff forwarded the emails and wrote to Chris Theros, Zurich’s Group Head of Human Resources, detailing her work as a missionary and stating, “I have posted PTO on August 12, 2009 to August 25, 2009 as I will be leaving for an International Missionary trip. You should note that various media organizations cover these events.” (Id.)
On June 9, 2009, Killgore responded to plaintiff’s email, stating, “[p]lease note that the procedure that Jennifer requested you follow is appropriate and is outlined for you in the email based on the HR guidelines currently published.” (Id.) Killgore stated that she had confirmed with Robbie that individuals on another team could handle plaintiffs work, and because of that, plaintiff’s PTO was approved. (Id.) Killgore noted that PTO must be approved in advance by plaintiffs immediate supervisor. (Id.)
13. Plaintiffs Termination
On August 31, 2009, Spera and Robbie met with plaintiff in a conference room in the Melville, New York office and informed plaintiff that her employment was terminated. (Defs.’ 56.1 ¶ 93.)
B. Procedural Background
Plaintiff filed the complaint in this action on August 26, 2010. Defendants answered the complaint on September 21, 2010. On October 7, 2011, defendants moved for summary judgment. Plaintiff submitted her opposition on November 21, 2011. Defendants submitted their reply on December 9, 2011. The Court held oral argument on February 17, 2012. At the oral argument, the Court requested additional information from defendants, which was provided on March 8, 2012. The Court has fully considered the submissions of the parties.
II. Standard of Review
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396
Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere eonclusory allegations or denials but must set forth “ ‘concrete particulars’ ” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ ” BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).
The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:
We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, “summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.” McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).
Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001)).
Defendants moved for summary-judgment on the following grounds:
For the reasons set forth below, the Court grants summary judgment with respect to (1) plaintiffs Title VII and 42 U.S.C. § 1981 (“Section 1981”) race discrimination claims, (2) plaintiffs ADEA claims, and (3) plaintiffs Title VII and ADEA retaliation claims because, even assuming plaintiff has established a prima facie case on these claims, defendants have articulated legitimate, non-discriminatory reasons for the termination, and plaintiff has submitted insufficient evidence from which a rational jury could find pretext.
A. Plaintiffs Employment Discrimination Claims.
1. Legal Standard
The “ultimate issue” in any employment discrimination case is whether
First, a plaintiff must establish a prima facie case of unlawful discrimination by showing that (1) he is a member of a protected class (2) who performed his job satisfactorily (3) but suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination (or retaliation).
Second, if the plaintiff establishes a prima facie case, “a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision.” Stratton, 132 F.3d at 879; see Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097. The purpose of this step is “to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent.” Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Third, if the employer articulates a nondiscriminatory reason for its actions, the presumption of discrimination is rebutted and it “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citation omitted); see also James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000). The burden then shifts back to the plaintiff to show, without the benefit of any presumptions, that more likely than not the employer’s decision was motivated, at least in part, by a discrimina
To meet this burden, the plaintiff may rely on evidence presented to establish his prima facie case as well as additional evidence. Such additional evidence may include direct or circumstantial evidence of discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). It is not sufficient, however, for a plaintiff merely to show that he satisfies “McDonnell Douglas’s minimal requirements of a prima facie case” and to put forward “evidence from which a factfinder could find that the employer’s explanation ... was false.” James, 233 F.3d at 157. Instead, the key is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue, that is, whether the record contains sufficient evidence to support an inference of discrimination. See id.; Connell, 109 F.Supp.2d at 207-08.
As the Second Circuit observed in James, “the way to tell whether a plaintiffs case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination.” 233 F.3d at 157; see also Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir. 1998) (“The thick accretion of cases interpreting this burden-shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases. In these, as in most other cases, the plaintiff has the ultimate burden of persuasion.”).
2. Application
Defendants argue that plaintiff cannot establish a prima facie case of race and discrimination in connection with the termination because her poor performance rendered her unqualified for the position and that plaintiff was not terminated under circumstances giving rise to an inference of discrimination.
Defendants have put forth a legitimate, non-discriminatory reason for plaintiffs discipline and termination — namely, that plaintiff performed poorly in her position. Defendants state that plaintiff “failed to understand concepts behind her audits, often made mistakes, failed to grasp the skills necessary for her position, had unac
Hence, the Court proceeds directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find race or age discrimination by examining each party’s evidence individually and then proceeding to evaluate the evidence as a whole. See Tommy v. Int’l Ctr. for the Disabled, 357 F.Supp.2d 721, 742 (S.D.N.Y. 2005); Stern v. Trs. of Columbia Univ., 131 F.3d 305, 314 (2d Cir. 1997); see also Siano v. Haber, 40 F.Supp.2d 516, 519-20 (S.D.N.Y. 1999), aff'd mem., 201 F.3d 432 (2d Cir. 1999).
For the reasons set forth below, the Court finds that plaintiff has proffered no evidence from which a reasonable jury could conclude that discriminatory animus based on race or age motivated defendants’ decision to discipline and terminate plaintiff.
In support of her race and age discrimination claims, plaintiff argues that (1) plaintiff did not receive proper training on transactional audits and a learning curve existed for these audits, (2) Zurich’s “best practices” model included a subjective element, and (3) plaintiff received some positive performance feedback, an increased workload and trained another employee, Karen Prudent, which indicates that plaintiff was a trusted employee.
Defendants, however, have set forth, inter alia, the following uncontroverted evidence: (1) when plaintiff was hired in 2003, she was over fifty years-old; (2) Kostkowski received complaints about plaintiffs communication style when he was her supervisor; (3) while plaintiff was under Kostkowski’s supervision, though no other employees were performing worse than plaintiff, others were performing better; (4) after complaints, Kostkowski and Robbie determined that plaintiff should take a communications course; (5) Kostkowski and Robbie jointly rated plaintiff a two, or “partially meets expectations” in her 2007 performance review; (6) Robbie delivered, and Kostkowski approved, a verbal warning to plaintiff in 2008 regarding her accuracy and communication skills; (7) plaintiff received a written warning in May 2008 advising her that she needed to improve her accuracy and the quality of her quarterly reports; (8) plaintiffs accuracy scores in 2008 and 2009 fell below Zurich’s goal of 93%; and (9) plaintiff received the second lowest score on the litigation management test.
None of plaintiffs arguments or purported factual disputes regarding the quality of plaintiffs work are sufficient to allow a rational jury to find that the legitimate, non-discriminatory reason for terminating plaintiff was a pretext for discrimination. With respect to plaintiffs first argument, it is unclear from the record whether other Zurich employees were offered training while plaintiff was not. Kostkowski believed that plaintiff had received training on transactional audits, and there is nothing in the record to suggest that Robbie was aware that plaintiff was working off of a guide that had yet to be implemented.
With respect to plaintiffs second argument, although the parties agree that there is a subjective element to auditing, there is nothing to suggest that because there is this subjective element, the defendants’ dissatisfaction with plaintiffs work was pretextual. The question in this Title VII case is not whether defendants’ decision to terminate plaintiff was correct but whether it was discriminatory. It is well settled that the mere fact that an employee disagrees with an employer’s evaluation of that employee’s misconduct or deficient performance, or even has evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself, that the employer’s proffered reasons are a pretext for termination. See, e.g., McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In a discrimination case ... we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer.” (quotations and citations omitted)); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (finding summary judgment appropriate on Section 1981 and Title VII discriminatory discharge claims where plaintiffs “disputations [of his employer’s proffered explanations] were rationalizations for his deficiencies rather than demonstrations of any genuine issue of material fact to be tried”); Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir. 1998) (stating that “the relevant inquiry was whether [plaintiff] created a genuine issue of material fact as to whether her discharge was gender-based and not whether her termination was reasonable” and noting that “[i]t is not the task of this court to determine whether [the investigator’s] investigation was sufficiently thorough or fair”); Miller v. Nat’l Assoc. of Sec. Dealers, Inc., 703 F.Supp.2d 230, 247 (E.D.N.Y. 2010) (“The relevant inquiry is not whether the performance-based justification for plaintiffs termination articulated by defendant is accurate or fair, but whether plaintiff can show any evidence that it was not the actual justification” and plaintiff “cannot accomplish this by stating his disagreement with his supervisors’ negative assessment of his performance, even [if he] has evidence that the decision was objectively incorrect.’ ” (citations and quotations omitted)); Brown v. Soc’y for Seaman’s Children, 194 F.Supp.2d 182, 191 (E.D.N.Y. 2002) (“[A]l-though plaintiff felt she had been treated unfairly, ... [t]here simply is no basis in the record from which a rational juror could find that the reasons given for plaintiffs termination ... were false or a pretext for discrimination.”); Ricks v. Conde Nast Publ’ns, Inc., 92 F.Supp.2d 338, 347 (S.D.N.Y. 2000) (“The mere fact that an
With respect to plaintiffs third argument, the evidence in the record demonstrates that the number of audits each auditor completed varied from month to month and that at times plaintiff had more audits, and at times, plaintiff had fewer audits.
With respect to plaintiffs claim that the termination was based on race, there is no evidence of racial comments or actions during the course of plaintiffs employment, or any other evidence that could remotely support an inference of race discrimination. The only time race was ever mentioned was in plaintiffs own comment to Robbie, and in Spera’s notation of this conversation. Though plaintiff argues that Robbie favored White employees over her, the Court notes that John Morales, a coworker who plaintiff alleges made mistakes similar to plaintiffs and was not disciplined, is classified by plaintiff as “non-white.” (PL’s 56.1 Statement of Additional Facts ¶ 52.) Robbie also issued verbal warnings to two White employees, Conley and Pruden, in January 2009 and February 2009, respectively, for inadequate accuracy scores. (Spera Decl. ¶ 4.) Conley was terminated as part of a reduction-in-force in November 2011. (Spera Suppl. Decl. ¶ 3.) Pruden left Robbie’s team in 2009, prior to the expiration date of the verbal warning issued by Robbie. (Id. ¶ 4.) Given this uncontroverted evidence, no rational jury could find that race discrimination motivated defendants’ decision to terminate plaintiff.
Accordingly, the Court grants summary judgment with respect to plaintiffs Title VII and Section 1981 race discrimination claims, as well as plaintiffs ADEA claim.
B. Plaintiffs Retaliation Claims 1. Legal Standard
The McDonnell Douglas burden shifting analysis also applies to plaintiffs retaliation claims based on Title VII and the ADEA. See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (“The McDonnell Douglas burden shifting analysis used in claims of discrimination in violation of Title VII also applies to retaliation claims brought pursuant to Title VII.... The same standards and burdens apply to claims of retaliation in violation of the ADEA.” (citations omitted)).
Under Title VII, it is unlawful “for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in a protected activity; (2) defendant was
Under this framework, “[a] plaintiff must establish a prima facie case; the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the [adverse action]; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citing Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999)). “Title VII is violated when ‘a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause.’ ” Terry, 336 F.3d at 140-41 (internal citations omitted).
As noted above, it is well settled that if a retaliatory motive played a part in the adverse employment actions, even if it was not the sole cause, the law is violated. Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (citing Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986)); De Cintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 116 n. 8 (2d Cir. 1987). Likewise, if the employer was at all motivated' by retaliatory animus, the law is violated even if there were objectively valid grounds for the adverse employment action. Sumner, 899 F.2d at 209. A plaintiff may establish a causal connection between the protected activity and the adverse employment action either through direct evidence of retaliatory animus, or by circumstantial evidence. Id.
2. Application
Defendants contend that plaintiff cannot establish a prima facie case of retaliation because (1) plaintiff did not engage in protected activity, (2) several of the alleged adverse employment actions are not sufficiently adverse as a matter of law,
a. Failure to Establish a Prima Facie Case
The Court concludes that plaintiff cannot establish a prima facie case of retaliation because plaintiff cannot demonstrate a causal connection between the protected activity and the adverse employment actions alleged.
Plaintiff has not produced direct evidence of retaliatory animus or made a showing of disparate treatment of fellow employees who engaged in the same conduct. Instead, plaintiff attempts to simply rely on temporal proximity between the protected speech and the alleged retaliatory action. Plaintiffs only alleged complaints of age and race discrimination occurred during her October 23, 2007 conversation (the “October 23 conversation”) with Robbie and her July 17, 2008 EEOC charge. Although plaintiff made other complaints regarding her treatment by Robbie, none of these complaints referenced race or age discrimination, and are not protected activity under the relevant statutes. See Aspilaire v. Wyeth Pharmas., Inc., 612 F.Supp.2d 289, 308 (S.D.N.Y. 2009) (“mere complaints of un
Plaintiffs first alleged retaliatory activity, the reduced bonus, occurred in April 2008, over five months after plaintiffs October 23 conversation with Robbie.
With respect to plaintiffs July 17, 2008 EEOC charge, the only adverse events following the charge were the 100% re-audit and plaintiffs termination. By the time plaintiff filed her EEOC charge, the defendants had already implemented various forms of discipline against plaintiff, including placement on a development plan, directives regarding communication skills, a verbal warning, a low performance evaluation, and probation. Where, as here, gradual adverse actions began well in advance of the alleged protected conduct, an inference of discrimination does not arise from plaintiffs filing of the EEOC charge. See Slattery, 248 F.3d at 95.
b. Failure to Establish Pretext
Even assuming that plaintiffs prima facie case of retaliation could be established by temporal proximity, the defendants have articulated legitimate, non-discriminatory reasons for plaintiffs termination, and “temporal proximity is insufficient to
C. Plaintiffs Hostile Work Environment Claims
1. Legal Standard
Under Title VII, a hostile work environment is established by a plaintiff showing that his workplace was “permeated with ‘discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); accord Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003). “Isolated instances of harassment ordinarily do not rise to this level.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Petrisch v. JP Morgan Chase, 789 F.Supp.2d 437, 451 (S.D.N.Y. 2011) (same).
The conduct in question must be “severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (quotation marks omitted). In addition, a plaintiff seeking to establish a hostile work environment claim must demonstrate that “a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quotation marks omitted). Other factors to consider include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Terry, 336 F.3d at 148. The Second Circuit has noted, however, that “[w]hile the standard for establishing a hostile work environment is high, .... [t]he environment need not be ‘unendurable’ or ‘intolerable.’ ” Id. (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)). Moreover, although a hostile work environment generally consists of “continuous and concerted” conduct, “a single act can create a hostile work environment if it in fact work[s] a transformation of the plaintiffs workplace.” Feingold, 366 F.3d at 150 (quotations marks omitted).
Further, to succeed on a hostile work environment claim in the instant case, plaintiff must link the actions by defendants to her race or age. Although “[flacially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim,” Alfano, 294 F.3d at 378, plaintiff nevertheless must offer some evidence from which a reasonable jury could infer that the facially neutral incidents were in fact discriminatory. See Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999), abrogated on other grounds, (“But to sustain a Title VII hostile environment
The standard under Title VII is applicable to hostile work environment claims under the ADEA. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (“The same standards apply to hostile work environment claims brought under the ADEA.”).
2. Application
In a conclusory fashion, plaintiff argues that “Robinson was harassed on a continual basis: she was assigned tasks without training or with incorrect manuals, subject to high scrutiny, resulting in inaccurate and unfair performance assessments, denied vacation time, subject to substantial lost income, and a workload that was both unmanageable and substantially higher than her peers.” (Pl.’s Opp. at 25.)
With respect to these claims, plaintiff has put forth no evidence from which a rational jury could conclude that her workplace was “permeated with ‘discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Howley, 217 F.3d at 153 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). In addition, these events are facially-neutral, work-related conduct, and plaintiff has offered no evidence from which a rational jury could infer that these facially-neutral actions were discriminatory. In other words, plaintiff has not provided any evidence that would provide a circumstantial basis, or any other basis, for a rational jury to infer that the race-neutral and age-neutral conduct alleged was discriminatory. Plaintiff has simply not shown, through evidence of race or age related comments or actions, or through evidence of other similarly situated co-workers who were not subjected to the same conduct, or through any other evidence, how the alleged conduct was discriminatory based on plaintiffs race or age.
In sum, the Court recognizes that it must proceed with great caution in granting summary judgment in discrimination cases where intent, as drawn from inferences, is a core issue. However, as the Second Circuit has noted, “[t]o allow a party to defeat a motion for summary judgment by offering purely conclusory al
D. New York State Claims
Plaintiffs complaint also asserts causes of action under New York State law. Having determined that the federal claims do not survive summary judgment, the Court concludes that retaining jurisdiction over any state law claims is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “In the interest of comity, the Second Circuit instructs that ‘absent exceptional circumstances,’ where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should ‘abstain from exercising pendent jurisdiction.’ ” Birch v. Pioneer Credit Recovery, Inc., No. 06-CV-6497T, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)).
Therefore, in the instant case, the Court, in its discretion, “ ‘decline[s] to exercise supplemental jurisdiction’ ” over plaintiffs state law claims because “it ‘has dismissed all claims over which it has original jurisdiction.’ ” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (“We have already found that the district court lacks subject matter jurisdiction over appellants’ federal claims. It would thus be clearly inappropriate for the district court to retain jurisdiction over the state law claims when there is no basis for supplemental jurisdiction.”); Karmel v. Claiborne, Inc., No. 99 Civ. 3608(WK), 2002 WL 1561126, at *4 (S.D.N.Y. July 15, 2002) (“Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not violated by refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether or not to pursue the matter in state court.”).
Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over the remaining state law claims given the absence of any federal claims that survive summary judgment and dismisses such state claims without prejudice.
IV. Conclusion
For the foregoing reasons, the Court grants defendants’ motion for summary judgment in its entirety with respect to the federal claims. The Court declines to exercise supplemental jurisdiction over the state law claims, and dismisses the state law claims without prejudice. The Clerk of the Court shall enter judgment accordingly and close the case.
SO ORDERED.
. Although there is a Section 1983 claim in the complaint, it is undisputed that the state action requirement is not met. Thus, at oral argument, plaintiff agreed to dismissal of the Section 1983 claim.
. In addition, where the parties’ Rule 56.1 Statements contain specific citations to the record to support their statements, the Court has cited to the Rule 56.1 Statements, rather than the underlying citation to the record, when utilizing the 56.1 Statements for purposes of this summary of facts.
. According to the email chain, Magid requested the existing audit guidelines from Robbie, who sent guidelines back to Magid. Magid then forwarded what she had received from Robbie to plaintiff. (PL's Ex. 11, Email Chain dated May 1, 2007.)
.In April 2007, plaintiff had 402 audits; the other auditors had 315, 537, 410, 447, and 264. (Robbie Supp. Decl. Ex. A, Audit Spreadsheets.) In August 2007, plaintiff had 218 audits; the other auditors had 227, 609, 199, 128, and 283. (Id.) In October 2007, plaintiff had 550 audits; the other auditors had 379, 480, 417, 401, 410, and 163. (Robbie Supp. Decl. Ex. A, Audit Spreadsheets.) In November 2007, plaintiff had 399 audits; the other auditors had 328, 518, 367, 355, 410, and 236. (Id.) In December 2007, plaintiff had 327 audits; the other auditors had 330, 569, 349, 413, 410, and 236. (Id.)
. According to an email dated April 9, 2008 from Robbie to plaintiff, Robbie "switched the more intensive Programs audits over to Pam [Burris] to handle and replaced them with standard claim office audits.” (Robbie Decl. Ex. K, Email Dated April 9, 2008.) Robbie told plaintiff, "[t]his should provide you with some extra time.” (Id.)
. Because the parties submitted only portions of the deposition transcripts, certain transcripts will be identified as both plaintiff's exhibit and defendants’ exhibit.
. In an email from Kostkowski to himself on October 23, 2007, Kostkowski wrote that Magid stated "[t]hat we never should have hired [REDACTED] and Herma should be fired.” (Pl.'s Ex. 17, Email dated October 23, 2007.)
. According to Spera’s notes of the phone call with Robbie, "[plaintiff] also said [Robbie] is treating her differently from the rest of the staff. [Spera] asked [Robbie] if she was referring to anything that might be construed as discrimination. [Robbie] said that [plaintiff] said [plaintiff] felt it was because Joe Salerno had complaints about her. [Robbie] added that [plaintiff] is an African American woman over the age of 40. [Plaintiff] did not talk about disparate treatment or discrimination: but she only wants to communicate with [Robbie] by email.” (Walker Decl. Ex. W, Spera Notes.)
. According to an email dated March 20, 2008, a Zurich employee named "Karen” had a "meeting with Pollution” without Robbie’s supervision. (Pl.’s Ex. 22, Email dated March 20, 2008.)
. Earlier in the email chain, Robbie states that "a lot of the concerns are around the best practices application and those discussions should be held directly with Tom Lysaught. My team is only able to audit to standards set forth by Tom....” (Walker Decl. Ex. AAA, Email Chain dated March 3, 2008.) Michelle Mobrach, the correspondent on the email with Robbie, then wrote that "there are many issues that [she was] hoping to resolve." (Id.) Later emails specified concerns regarding plaintiff's audit decisions. (Id.)
.On November 29, 2007, Robbie sent plaintiff an email indicating that the rating at that time was a placeholder, and that her “pmp” would be completed at the end of the year. (Pi’s Ex. 25, Email dated November 29, 2007.) Plaintiff's notes with respect to that email indicate that she received a two rating at that time. (Id.) The two rating remained the score on the review.
. According to emails between plaintiff and Robbie, while plaintiff was on vacation in 2007, there had been a litigation management calibration exercise, which plaintiff did not have to make-up because it was not an audit that she completed on a regular basis. (Pl.’s Ex. 51, Email Chain Dated December 10, 2007.) Although plaintiff states that she was not given training in advance of test, there is no evidence that the calibration exercise had anything to do with the test. In fact, the above-referenced exhibit cited by plaintiff on this issue appears to be a specific transactional audit calibration with no apparent relationship to the exam.
. Defendants also argued that summary judgment should be granted on plaintiff's claim pursuant to 42 U.S.C. § 1983 ("Section 1983”) because defendants were not acting under color of state law. Plaintiff did not respond to that portion of the brief and, at oral argument, plaintiff's counsel consented to dismissal of that claim.
. In their reply papers, defendants argue that plaintiff’s opposition and 56.1 Statement do not comply with Local Rule 56.1. (Defs.’ Reply at 4-6.) In particular, the defendants argue that plaintiff’s 56.1 Statement in Opposition lacks citations to evidence, mischaracterizes the record, or contains arguments. The Court agrees that plaintiff’s Rule 56.1 Statement is deficient, in many instances, for the reasons articulated by the defendants. However, "[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); see also Giliani v. GNOC Corp., No. 04 Civ. 2935(ILG), 2006 WL 1120602 at *2 (E.D.N.Y. Apr. 25, 2006) (exercising court’s discretion to overlook the parties’ failure to submit statements pursuant to Local Civil Rule 56.1). In their reply, defendants were able to respond fully to plaintiff's arguments regarding the factual record notwithstanding these defects in the Rule 56.1 Statement. Moreover, the Court has fully examined all of the cited evidence in the 56.1 statements to ensure there is admissible evidence in the record to support each and every contention. Thus, the Court is only considering facts supported by the record, and defendants have not been prejudiced by any inaccurate or unsupported assertions in the plaintiff's Rule 56.1 statement. As discussed infra, after fully considering all of plaintiff’s submissions and carefully examining the record, there is insufficient factual basis (even construed most favorably to plaintiff) for any of the federal claims to survive a motion for summary judgment.
. As discussed below, plaintiff cannot establish a prima facie case of retaliation under Title VII or the ADEA.
. The plaintiff’s opposition brief states that "Plaintiff's counsel previously included an additional cause of action under 42 U.S.C. § 1981 et seq. on the Complaint in error, and agrees to discontinue this claim.” (Pl.’s Opp. at 1 n.l.) However, elsewhere in the opposition, plaintiff refers to a claim for race dis
. As the Second Circuit has explained, “pursuant to the Supreme Court’s recent decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350-51, 174 L.Ed.2d 119 (2009), a claimant bringing suit under the ADEA must demonstrate that age was not just a motivating factor behind the adverse action, but rather the 'but-for' cause of it. See id. Title VII, on the other hand, does authorize a 'mixed motive’ discrimination claim.” Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009) (citation omitted).
. It is clear from the complaint, as well as plaintiff's opposition papers, that the discrimination claims are based upon the termination, and not any other alleged adverse employment actions. In fact, the heading of "Point II" of plaintiff’s opposition brief confirms that fact. (PL's Opp. at 6.) In any event, discrimination claims regarding any other allegedly adverse employment actions would fail for the same reasons, discussed infra, that apply with respect to the termination claim.
. Defendants also argue that plaintiff misrepresented certain facts, which demonstrates the weakness of her arguments. (Defs.' Reply at 1-3.) The Court agrees that plaintiff's opposition papers contain a number of factual inaccuracies. For example, plaintiff contends that “Robbie was made aware of mistakes that John Morales, a younger, White coworker [made]” but did not discipline Morales. (PL's Opp. at 10.) However, defendants noted in their reply (and plaintiff conceded at oral argument) that Morales is a non-White employee. In addition, plaintiff claimed that she was the "oldest [employee] on her team” reporting to Robbie, but defendants submitted uncontroverted evidence that there was an employee older than plaintiff on Robbie’s team. However, as noted supra, the Court has carefully checked the record to ensure that any statements in the 56.1 statements are supported by admissible evidence.
. Plaintiff argues in her opposition that “Robbie was aware that she and Magid provided Robinson with the incorrect manual, and yet did nothing to correct that error, encouraging negative evaluations of Robinson's audits and establishing a pretext for her eventual termination Specifically, Robinson's 2007 performance evaluation was negatively impacted by these actions.” (Pl.’s Opp. at 15.) Plaintiff's evidence for this argument,
. The Court notes that plaintiff argues elsewhere that an increased audit workload was actually a result of discriminatory animus. (PL's Opp. at 10.)
. In reaching this decision, the Court has also considered the arguments made by plaintiff with respect to establishing an inference of discrimination for plaintiff’s prima facie case. (PL’s Opp. 9-13.) Plaintiff has produced no evidence that White coworkers were given additional guidance or training while she was not. With respect to Morales’ alleged mistakes, as noted supra, plaintiff herself classifies Morales as "non-white.” With respect to Conley's alleged poor performance and low 2008 performance review, the Court notes that plaintiff has not produced any admissible
. In the supplemental submission, defendants also provided evidence that "between 2010 and 2011, Robbie had several employees reporting to her that were Plaintiff's age or were older than Plaintiff, including David Dillon (65 years old in 2010; White); Charles Bono (55 years old in 2010; White), and Barbara Parks (60 years old in 2010; White).” (Defendants' March 8, 2012 Letter, at 2, ECF No. 45.) According to the supplemental Declaration of Catherine Spera, none of these employees had any formal discipline in their personnel files from Robbie. (Spera Supp. Deck ¶ 6.) However, even without this supplemental declaration, the other uncontroverted facts (summarized supra) demonstrate that plaintiff's claims cannot survive summary judgment.
. In plaintiffs opposition papers, plaintiff focuses on the following alleged adverse employment actions: (1) a reduced bonus, (2) Spera's presentation of a separation agreement, (3) the 100% re-audit, (4) probation, and (5) termination. (Pl.’s Opp. at 21-22.) The Court considers these to be the alleged adverse employment actions with respect to the retaliation claim.
. In her opposition papers, plaintiff alleges that the reduced bonus occurred weeks after plaintiff's counsel "contacted Defendants restating Plaintiff's continuous complaints of discrimination and retaliation due to race and age.” (Pl.’s Opp. 19.) Although the opposition specifically refers to a letter, the letter is not contained in the record, and plaintiff’s only evidence of this complaint is plaintiff's declaration, in which plaintiff states that, on April 4, 2008, she had her attorneys "contact Zurich to make a formal complaint on my behalf that I was being held to different standards and expectations in comparison to [her] White co-workers.” (Robinson Decl. § 26.) It is unclear what plaintiff's counsel actually said to defendants, and whether or not plaintiff's counsel actually complained of race or age discrimination. In any event, by April 2008, plaintiff had already been placed on a development plan and cautioned regarding her communication skills, and plaintiff had received a verbal warning and a score of two, or partially meets expectations, on her performance review. As the Second Circuit has noted, "[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). As such, the alleged April 4, 2008 letter and the subsequent reduced bonus cannot create an inference of retaliation.
. The Court notes that, in the opposition papers, plaintiff devotes six sentences to the hostile work environment claims, and treats those claims in a cursory manner. In any event, the Court has carefully analyzed the record and concludes that there is no evidence to support a hostile work environment claim.
. In addition, the Court notes that the record does not even support plaintiffs factual contentions with respect to the facially-neutral conduct. With respect to the improper manuals, nothing in the record suggests that Robbie, Kostkowski, or any supervisor was aware that plaintiff was given the wrong manual, and as such, there is an insufficient basis for imputing this conduct to Robbie or Zurich. With respect to the claim of an increased workload, as noted supra, the record indicates that at times plaintiff had more audits to complete than her co-workers, and at times she had fewer. The Court notes that plaintiff argues that when audits were taken away from plaintiff to provide her with more time to complete her audits (Robbie Decl. Ex. W, Email Memo to File dated March 21, 2008; Robbie Deck Ex. K, Email dated April 9, 2008), this reduction in workload was also discriminatory. (Pl.’s 56.1 Statement of Additional Facts ¶ 103.) With respect to plaintiffs claim that she was denied vacation, this claim is simply false based upon the uncontroverted record. Plaintiff was allowed to take her planned vacation despite the fact that she had not requested the time off from Robbie. Finally, with respect to the lower bonus in 2007, there is no evidence to controvert Robbie's statement that she played no role in determining the amount of money plaintiff received as a bonus. (Walker Suppl. Deck Ex. E, Interrogatory Responses.)
Reference
- Full Case Name
- Herma ROBINSON v. ZURICH NORTH AMERICA INSURANCE COMPANY, and Jennifer Robbie
- Cited By
- 11 cases
- Status
- Published