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finding that plaintiff alleged adverse employment action where she "received no extra compensation" for duties that "fell outside of her job description"
Summary of this case from Edwards v. Elmhurst Hosp. Ctr.Opinion
No. 99 Civ. 10015 (LTS)(KNF)
October 8, 2003
Mitchell Gittin, Esq., FITZGERALD FITZGERALD.P.C., Yonkers, NY, for Plaintiff
Daniel J. Kornstein. Esq., KORNSTEIN VEISZ VVEXLER. LLP, New York, NY, for Defendants
James N. Foster Jr., Esq., McMAHON, BERGER, HANNA, LINIHAN, CODY MCCARTHY, St. Louis, MO, for Defendants
OPINION AND ORDER
Before the Court in this employment discrimination case is the motion of defendants Kellwood Company ("Kellwood"), Pat Wallace and George Smolen (collectively, "Defendants") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants seek the dismissal of all of Plaintiffs claims and an award of costs and attorneys' fees.
Plaintiff Maria Hernandez ("Plaintiff") alleges that Defendants engaged in discriminatory employment practices in violation of Title YE of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), Section 296 of the New York State Executive Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, Title 8, § 8-107 et seq. Plaintiff asserts claims of discrimination based on age, national origin and gender in connection with a series of alleged wrongs, including: 1) pay disparities between Plaintiff and her younger, male co-workers; 2) the requirement that Plaintiff perform work outside of her job description by cleaning Kellwood's corporate apartment; and 3) unwarranted criticism, scrutiny and negative evaluations given to Plaintiff by her supervisor, Pat Wallace. In addition, Plaintiff claims that Defendants retaliated against her by firing her for complaining about Defendants' allegedly discriminatory employment practices. Plaintiff also asserts a hostile work environment claim. The Court has subject matter jurisdiction of Plaintiffs federal claims pursuant to 28 U.S.C. § 1331, and of her state and local law claims pursuant to 28 U.S.C. § 1367.
The Court has considered thoroughly all of the parties' submissions and arguments pertaining to Defendants' motion. For the following reasons, Defendants' motion is granted in part and denied in part.
The Court's factual recitation is predicated upon Defendants' statement of material facts pursuant to Local Rule 56.1 and the accompanying affidavits and other evidentiary materials filed in support of Defendant's motion for summary judgment, as well as Plaintiffs declaration, statement of contested material facts and the accompanying evidentiary material filed in response to Defendants' statement and in opposition to Defendants' motion. The facts are undisputed except as specified otherwise.
Plaintiff is a female of Guatemalan descent and was born in 1937. (Compl. ¶ 1.) Plaintiff began working for Defendant Kellwood in 1971. (Tr. 5/30/2000 Hernandez Dep. at 78, 139.) Plaintiff alleges that she was hired solely to perform the duties of mail clerk. (Hernandez Decl. ¶ 8.) Defendants have produced documentation which they contend indicates that Plaintiffs job title at the time of her hiring and during the rest of her employment was that of "maid" and "cleaning woman." (Kellwood Company Control Information Sheet, 9/21/81; Kellwood Company Employee Status Change Report, 3/30/77.) Plaintiff argues that she did not apply for a maid position when she applied to Kellwood, and that she never considered maid-related work to be part of her job description. Plaintiff further contends that she was never made aware of any of the above-referenced documents referring to her as a maid until the commencement of this litigation. (Hernandez Decl. ¶ 6.) Payroll documentation from 1993 and an annual performance evaluation from 1995 describe her job title as "Mail/Office Services Clerk" (although the words "Custodial/Office Svc" are handwritten above that title and the words "Correcting Title" arc handwritten in the section labeled "Remarks") and "Mailroom Clerk," respectively. (Id. ¶ 9; Hernandez Payroll Document, 11/19/93; Sportswear Dept. Job Performance Evaluation, 12/8/95.)
During her employment at Kellwood, Plaintiff performed a variety of functions including receiving and distributing mail, watering plants in the office, keeping track of office supplies, cleaning the refrigerator and employees' kitchen, and aiding employees with the pressing of clothing samples. (Plaintiffs Statement of Contested Material Facts at 3-4; Hernandez Decl. at ¶ 11.) While Plaintiff admits performing non-mail room related functions in addition to her duties in the mail room, she contends that such work was not a mandatory part of her job, and that her principal function at all times was that of mail room clerk. (Hernandez Decl. at ¶ 11).
In the 1980's, Kellwood began leasing an apartment on 50th Street in New York City for the use of corporate executives and guests. The apartment was cleaned by building management. (Tr. 6/12/2000 Smolen Dep. at 53; Plaintiffs Statement of Contested Material Facts at 7.) In the early 1990's, Kellwood decided to move its corporate apartment to another location on 40th Street. For the six years immediately following the move, the apartment was used exclusively by two of Kellwood's corporate officers: Chairman of the Board William McKenna and an officer named Berman. Prior to Kellwood's acquisition of the 40th Street apartment, Plaintiff had on occasion been asked to clean another of Kellwood's corporate apartments, which was used by Enoch Harding, President of Kellwood's sportswear division. That apartment was cleaned primarily by the J.C. Taylor cleaning company, and Plaintiff was only asked to clean the apartment less than once per year. Sometime after the acquisition of the 40th Street apartment, however, McKenna asked Defendant George Smolen, consultant for office services in Kellwood's New York office, to request that Plaintiff clean that apartment after each use. (Plaintiffs Statement of Contested Material Facts at 7-8.) Defendants assert that Smolen then asked Plaintiff if she would clean the apartment and that her response was that she would be happy to do such work for McKenna. (Tr. 6/12/2000 Smolen Dep. at 68.) Plaintiff contends that she did not say she was "happy" to perform the task, and that she acceded to the request only in an effort to be cooperative and because of her high regard for McKenna. Plaintiff asserts that it did not seem in the beginning that Smolen was suggesting that cleaning the apartment was going to be one of her required duties. (Hernandez Decl. at ¶¶ 16-19.)
Soon thereafter, Plaintiff began cleaning the 40th Street apartment after its use on a regular basis. Cleaning the apartment after a particular use generally took about four and a half hours. (Tr. 7/19/2000 Hernandez Dep. at 208; Plaintiffs Statement of Contested Material Facts at 9.) At the outset, only McKenna and Berman used the apartment so Plaintiff was only required to clean it about twice monthly. (Tr. 6/12/2000 Smolen Dep. at 52-53; Plaintiffs Statement of Contested Material Facts at 9.) After about six years, people other than McKenna and Berman began using the 40th Street apartment so that the apartment was being used about once or twice every week. (Tr. 6/12/2000 Smolen Dep. at 59-60; Plaintiffs Statement of Contested Material Facts at 9.) During that time, Plaintiff continued to clean the apartment and Plaintiffs supervisor, Defendant Pat Wallace, provided Plaintiff with a schedule detailing the days on which she was to clean. (Plaintiffs Statement of Contested Material Facts at 9-10.) Plaintiff testified in her deposition that, in 1997, she cleaned the apartment between one and three times per week. (Tr. 5/30/200 Hernandez Dep. at 271.)
During her tenure at Kellwood, Plaintiff was assisted in the mail room first by Edwin Alejandro and later by Phillip Simmons. (Tr. 6/12/2000 Smolen Dep. at 83-84; Plaintiffs Statement of Contested Material Facts at 4.) Plaintiff describes both Alejandro and Simmons as young men, and notes specifically that Alejandro was 20 years old at the time he was hired (a fact Alejandro confirmed in his deposition). (Hernandez Decl. at ¶¶ 21-22; Tr. 7/27/2000 Alejandro Dep. at 8.) Plaintiff asserts that Alejandro was hired to be her assistant in the mail room around the same time that Plaintiff began cleaning the 40th Street apartment. (Hernandez Decl. at ¶ 21.) In his deposition, Alejandro testified that he was hired to work in the mail room in 1990 and that he was promoted to Merchandiser Assistant in 1993. Prior to his promotion, in addition to performing the usual mail room-related tasks, Alejandro's duties included lifting heavy boxes and operating the switchboard as a relief for the receptionist-duties which Defendants argue Plaintiff was not required to perform. (Defendants' Rule 56.1 Statement at ¶ 11.) Plaintiff contends that she did lift heavy boxes, and that the only time she was not required to engage in such lifting was when an assistant such as Alejandro happened to be present. (Plaintiffs Statement of Contested Material Facts at 4.) Defendants also allege that Alejandro cleaned Kellwood's offices and did repair work; it is undisputed that Plaintiff was not required to do repair work. Plaintiff disputes that Alejandro ever performed such tasks. (Id.)
In 1996, Phillip Simmons began assisting Plaintiff in the mail room. (Hernandez Decl. at TI 22.) Besides his mail room-related duties, Simmons also served as a messenger, performed general utility functions, relieved the receptionist, faxed documents and delivered faxes, repaired furniture, fixtures and other office equipment, moved heavy equipment and furniture, took inventory of office equipment and computers and replaced water bottles. (Plaintiffs Statement of Contested Material Facts at 4-5.)
Defendants assert that, according to payroll records, Alejandro's monthly pay rate in 1990 when he started working with Plaintiff in the mail room was $1,365.00. Defendants further allege that Alejandro's monthly pay rose during the time he worked in the mail room to $1,433.25 in 1991, $1,509.00 in 1992, and $1,585.00 in 1993 before he was promoted to Merchandiser Assistant in 1994. (Defendants' Rule 56.1 Statement at ¶ 82.) Plaintiff disputes the accuracy of these figures and contends that Alejandro negotiated a salary of $25,000 per year at the time of his hiring in 1990. (Hernandez Decl. at ¶ 27; Tr. 7/27/2000 Alejandro Dep. at 86-89). Defendants produced payroll records indicating that Simmons was paid $10.00 per hour upon his hiring in 1996.
Plaintiffs pay rate when she began working at Kellwood in 1971 was $3.00 per hour. (Kellwood Company Inter-Office Memo, May 3, 1971; Plaintiffs Statement of Uncontested Material Facts at 1.) She received raises at various intervals during her employment with Kellwood. Plaintiffs hourly pay rate was increased to $3.50 in 1973, $3.75 in 1975 and $4.00 in 1976. Plaintiffs annual pay rate was $8,060 in 1977 and $8,625 in 1978. By 1981, Plaintiffs monthly rate of pay was $830.61. Plaintiff received pay raises in 1981, 1982, 1983, 1987, 1988, 1989, 1991, 1992, 1993 and 1996. Her hourly pay rate in 1996 was $9.80. (Plaintiffs Statement of Uncontested Material Facts at 2-3) Plaintiff alleges that her monthly pay rate when Alejandro became her assistant in 1990 was $1,213.33. (Hernandez Decl. at ¶ 23.)
In their Rule 56.1 Statement and supporting evidentiary documentation, Defendants proffer a series of facts relating to Plaintiffs job performance during her employment at Kellwood. Plaintiff was absent from work 25 times in 1985 and 43 times in 1986. (Memorandum to Personnel File Re: Maria Hernandez, 1/19/87). Plaintiff was counseled on a number of occasions regarding her attendance record and received a "final" warning on August 20, 1986. (Id.) Despite the warning, Plaintiff was absent from work September 22-24 and October 28-31. (Id.) On January 8, 1987, Plaintiff did not report for work and failed to call in to explain her absence. Plaintiff was reached at home, at which time Plaintiff stated that she would not be returning to work. Plaintiff was then informed that if she did not come back, Kellwood would assume that she had resigned. Plaintiff did not return to work and failed to call in for the next week. (Id.). Despite the warnings, McKenna decided that Plaintiff would not be fired for her unreported absences. Defendants claim that, on January 19, 1987, Harding instructed Plaintiffs supervisors to make an effort to bring Plaintiff back to work. (Id.) A psychological consultation and reference for counseling ensued, although Plaintiff missed some of the sessions she was scheduled to attend. (Health Insurance Claim Form, 1/31/87; Correspondence from Freeport Medical Associates, P.C. to J. McCoy at Kellwood, 8/21/87; Correspondence from Freeport Hospital Outpatient Clinic to J. McCoy at Kellwood, 12/11/87, 12/18/87, 2/2/88, 2/24/88, 5/11/88 and 6/1/88.)
In Plaintiffs response to Defendants' Rule 56.1 Statement, Plaintiff does not (except as indicated otherwise here) dispute the factual accuracy of Defendants' assertions outlined in this paragraph regarding her job performance, but, instead, objects to the proffered information on the ground that it is immaterial. Plaintiff also moves to strike on the ground that the information is unfairly prejudicial. The assertions are clearly relevant and not unfairly prejudicial given that one of the elements of a prima facie case under Title VII is satisfactory job performance. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Whether Plaintiffs job performance was satisfactory is also relevant to the purportedly non-discriminatory rationales offered by Defendants in response to Plaintiffs Title VII claims based on allegedly unwarranted negative evaluations and the allegedly retaliatory discharge of Plaintiff The materiality of this information is discussed in the course of the Court's analysis, infra, of Plaintiffs claims.
In 1993, Wallace gave Plaintiff a generally positive salary review and recommended her for a raise. (Kellwood Apparel Group Salary Review for 1993.) In 1995, Wallace rated Plaintiffs performance as "good" in most areas and "very good" in job knowledge and interpersonal relationships. However, Wallace gave Plaintiff "unsatisfactory" ratings in planning/organizing and attendance, noting on the bottom of the form that "attendance has been very poor-also excessive lateness." (Kellwood Sportswear Division Employee Evaluation, 12/8/95.) Plaintiff does not dispute that such ratings were given, but asserts that they were unwarranted. (Plaintiffs Statement of Contested Material Facts at 11.) Plaintiff alleges that she suffered from health problems in 1995 and that she missed some time while recovering from surgery. (Hernandez Decl. at ¶ 42).
Wallace testified in her deposition that, in 1997, Plaintiffs job performance declined and Plaintiffs attitude toward her job became negative. Plaintiff disputes these assertions, contending that it was Wallace's attitude that changed in 1997. In her declaration, Plaintiff states that "[i]t is a difficult thing to describe, but after June, 1997 Ms. Wallace became noticeably more rude and curt to me." Hernandez Decl. at ¶ 47. Plaintiff also points to George Smolen's deposition, during which he testified that he did not want to say that Plaintiffs performance "deteriorated" in the early part of 1997 (a word suggested to him by Plaintiffs counsel), but, rather, that "[Plaintiffs] personality was changing and [he] didn't know why. Nobody knew why." (Tr. 6/12/2000 Smolen Dep. at 104-05.)
Wallace also stated in her deposition that Plaintiff was not careful enough in making sure that she both delivered mail to the right people and distributed faxes in a timely manner. (Tr. 6/12/2000 Wallace Dep. at 37.) She also testified that Plaintiff had trouble taking direction. (Id. at 49). Plaintiff disputes Wallace's contentions, asserting that Wallace spoke to Plaintiff like she was a child and gave her specific instructions about what to clean in the apartment despite the fact that Plaintiff had already been cleaning the apartment for years. Plaintiff also maintains that Wallace frequently checked up on her while she cleaned the apartment, and asserts that she had trouble cleaning the apartment due to various health problems including migraine headaches. (Hernandez Decl. ¶¶ 44-46.) Smolen testified in his deposition that, also in or around 1997, he began receiving complaints from more than two employees that Plaintiffs performance in the mail room had declined. Smolen then asked Wallace to discuss the problem with Plaintiff (Tr. 6/12/2000 Smolen Dep. at 98-99, 107-08, 110.) When Wallace asked Plaintiff if she was having problems, Plaintiff responded that she was "fine." (Tr. 6/12/2000 Wallace Dep. at 37-38.)
On May 6, 1997, Plaintiff left for a lunch break at 12:15 p.m. and did not return to the office until 2:00 p.m., Wallace asked Plaintiff to inform her if she were going to take more than an hour for lunch, and Plaintiff responded by saying that she was not Wallace's maid and that both Smolen and Wallace hoped that she would quit. (Defendant's Rule 56.1 Statement at ¶ 38.) On May 23, 1997, Wallace informed Plaintiff that she would not be required to clean the corporate apartment that day. Plaintiff told Wallace that she did not want to clean the apartment after families used it as opposed to executives. (Id. at ¶ 39.) On May 30, 1997, Defendants allege, Plaintiff shouted at Wallace after Wallace left Plaintiff a note asking her to send a package by second-day mail rather than UPS. Plaintiff denies shouting at Wallace. Later that day, Wallace told Plaintiff that she was not implying that Plaintiff did not do her work and that there was no need for her to shout. Plaintiff responded that she had been too busy to be interrupted and that Wallace should pick on Simmons instead of her. (Id. at ¶¶ 40-41.)
On June 3, 1997, Plaintiff did not go to clean the corporate apartment, although she was scheduled to do so. Plaintiff told Wallace that she did not realize that she was supposed to clean it on that day, that by the time she found out it was too late in the day to do the cleaning, and that she would, therefore, do it the next day. On June 4th, Plaintiff called in sick and failed to clean the apartment. (Id. at ¶ 45.) On June 16th, Plaintiff told Wallace that she would clean the corporate apartment that day but not in the future after families had stayed there. Plaintiff also told Wallace that she would clean the apartment if she were paid more. (Id. at ¶ 47.) On June 17th, Plaintiff told Wallace that she would no longer clean the corporate apartment. Wallace responded by giving Plaintiff a copy of her job description and telling her that cleaning the apartment was part of her duties. Defendants allege that Plaintiff had been given a copy of such job description the year before. Plaintiff contends that she had never before seen the job description. (Id. at ¶ 48; Plaintiffs Statement of Contested Material Facts at 16.) Plaintiff replied that she would retain a lawyer and sue the company. On June 24th, Wallace provided Plaintiff with a memorandum relating to Plaintiffs job performance and detailing some of the problems Wallace had been having with Plaintiff. The memorandum also warned Plaintiff that further acts of insubordination would be met with disciplinary action, up to and including termination. (Defendant's Rule 56.1 Statement at ¶¶ 49-51.)
Sometime in June 1997, Plaintiff told Smolen that she no longer wanted to clean the corporate apartment, and he replied that she would no longer have to do so. In June or early July, Plaintiff presented Wallace with a doctor's note stating that Plaintiff suffered from migraine headaches and arthritis. Wallace responded by reiterating Smolen's words and informing Plaintiff that she would no longer have to clean the apartment. After June 1997, Plaintiff did not clean the corporate apartment. Plaintiffs pay rate was unaffected by this change. (Id. at ¶¶ 52-55.)
Plaintiff alleges that Alejandro was never asked to clean the corporate apartment. (Hernandez Decl. at ¶ 32.) Plaintiff also asserts that, when she permanently stopped cleaning the apartment, the task was assigned to an independent contractor rather than another Kellwood employee. (Id. at 35.) Plaintiff further alleges that, prior to the time she stopped cleaning the apartment, an independent contractor was brought in to clean the apartment on days Plaintiff was out ill. (Id. at 36).
Wallace reviewed Plaintiffs job performance again in February 1998. Wallace rated Plaintiff as "fair" in 12 categories and "unsatisfactory" in six, including productivity, accuracy, attendance, pressure, dependability, and promotability. Plaintiff received one rating of "good" (interpersonal relationships) and no ratings of "very good" or "outstanding." (Kellwood Company Sportswear Division Employee Evaluation, 2/12/98.) Plaintiff contests the substance of these ratings, contending that her performance was actually better than Wallace's evaluation suggests.
Defendants further allege that, in 1998, Plaintiff signed for a Federal Express package without looking at the package despite being warned not to sign for packages without inspecting them. Plaintiff disputes the accuracy of this assertion. (Defendant's Rule.56.1 Statement at ¶ 58; Plaintiffs Statement of Contested Material Facts at 19.) Defendants also argue that, during 1998, they received complaints from Kellwood employees about Plaintiffs performance and that Plaintiff continuously distributed mail to the wrong people. Plaintiff disputes both assertions. (Defendant's Rule 56.1 Statement at ¶¶ 59-60; Plaintiffs Statement of Contested Material Facts at 19.) In July 1998, Wallace instructed Plaintiff on how to organize LIPS mail slips and Plaintiff responded that she knew how to do her job. She refused to follow Wallace's instructions. (Defendant's Rule 56.1 Statement at ¶ 63.)
On September 30, 1998, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that she had been discriminated against by Kellwood on the basis of age, national origin, and in retaliation for complaining about Kellwood's alleged discriminatory practices. Wallace never spoke to Plaintiff directly about the charge. (EEOC Charge of Discrimination, 9/30/98.)
In the months following Plaintiffs filing of the EEOC charge, Plaintiff was asked on two occasions to perform cleaning duties with respect to the office of Kellwood Chief Executive Officer Hal Upbin. Plaintiff complained in both instances but performed the work. (Defendant's Rule 56.1 Statement at ¶¶ 68-69.) Defendants also allege that Plaintiff complained about being asked to distribute faxes before eventually agreeing to perform that task. (Id. at ¶ 71.) In February 1999, Plaintiff was asked, along with a number of other employees, to clean Kellwood's china, crystal, and silver in connection with corporate review meetings that were going to be held in Kellwood's offices. The task was not within the job description of any of the employees who were asked to help. While others participated, Plaintiff refused on the grounds that such work was not her job. (Id. at ¶¶ 72-73.) Plaintiff admits that she refused to participate, but contends that she was advised to do so by the EEOC investigator who had helped her file her charge of discrimination. According to Plaintiff, the investigator advised her not to do anything outside of her regular duties outlined in her job description because otherwise "people would eventually become displeased when [she] stopped." Since she believed cleaning was not in her job description, she refused to perform the work. (Hernandez Decl. at ¶ 54.)
Plaintiff alleges that, during her tenure with Kellwood, Wallace spoke to Plaintiff in a patronizing manner and overly scrutinized her work, often calling the corporate apartment merely to make sure she was there. (Hernandez Decl. at ¶¶ 44-45.) Plaintiff also alleges that Wallace criticized her unduly. After she notified Defendants that she no longer wished to clean the corporate apartment, Plaintiff alleges, Wallace constantly reminded Plaintiff of the work Plaintiff had to do, and intentionally ordered fewer supplies than Plaintiff requested and then blamed the resulting supply shortages on Plaintiff. (Compl. at ¶¶ 21, 33.)
On March 23, 1999, Plaintiff was fired by Tom Baird, Kellwood's Human Resources Director. (Id. at ¶ 76.) Simmons was terminated on the same day. (Id. at ¶ 78.) Defendants claim that Plaintiff was terminated for her repeated insubordination and unsatisfactory job performance, although Plaintiff disputes the basis for her firing. On March 26, 1999, Plaintiff filed an amended charge of discrimination with the EEOC, alleging that she had been retaliated against for filing her original charge.
DISCUSSION
Summary Judgment Standard
Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). A fact is material "if it might affect the outcome of the suit under the governing law." A material fact is genuinely disputed only if the evidence is such that a reasonable jury could find in favor of the non-moving party based on that fact. Holtz v. Rockefeller Co. 258 F.3d 62, 69 (2d Cir. 2001) (citing Anderson, 477 U.S. at 248). The non-moving party must make "a showing sufficient to establish the existence of [every] essential element of that party's case, and on which that party will bear the burden of proof at trial."Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The trial court is required to "resolve all ambiguities and draw all reasonable references in the light most favorable to the party opposing the motion." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (citing Inst. forShipboard Educ. v. Cigna Worldwide Ins. Co., 22 F.3d 414, 418 (2d Cir. 1994)). "Mere conclusory allegations, speculation or conjecture," however, will not provide a sufficient basis for a non-moving party to resist summary judgment. Cifarelli, 93 F.3d at 51.
Claims Under the Equal Pay Act
Congress passed the Equal Pay Act ("EPA") in 1963 "to legislate out of existence a long-held, but outmoded societal view that a man should be paid more than a woman for the same work." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). To prove a violation of the EPA, a plaintiff must first establish the elements of a prima facie case of discrimination. A plaintiff must show that: "i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions." Id. at 135 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)); 29 U.S.CA. § 206(d)(1) (West 1998). Unlike Title VII, the EPA does not require the plaintiff to prove intentional sex discrimination or disparate impact to succeed on a wage differential claim. See Belfi. 191 F.3d at 139; Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 528 (2d Cir. 1992). Satisfying the elements of a prima fade case gives rise to a presumption of discrimination. BelFi, 191 F.3d at 135-36.
Once the plaintiff has successfully made out the elements of a prima facie case, the burden of persuasion shifts to the employer to establish that the salary disparity can be explained by at least one of four affirmative defenses described in the Act. Id at 136. The employer must show that pay rates were the result of "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1). If the employer can make out at least one of these defenses, the plaintiff is afforded an opportunity to counter the defense(s) "by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination." Belfi, 191 F.3d at 136 (citing Aldrich, 963 F.2d at 526). Pretext, in the context of a claim that the disparity arises from one or more factors other than sex, is discerned by examining whether the factors or policy cited by the employer as explanatory of the differential have in fact been used reasonably in the particular case. Id at 139. As the Second Circuit explained in Aldrich,
[W]e hold that an employer bears the burden of proving that a bona fide business-related reason exists for using the gender-neutral factor that results in a wage differential in order to establish the factor-other-than-sex defense . . . The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor reasonably in light of the employer's stated purpose as well as its other practices.
963 F.2d at 526 (internal citations and quotation marks omitted). Timeliness of Plaintiffs Claims Under the EPA
Before analyzing whether Plaintiff has satisfied the elements of a prima facie case under the EPA, the Court will address Defendants' contention that certain of Plaintiff s EPA claims should be dismissed as barred by the statute of limitations. An EPA action must be commenced within two years of accrual of the underlying claim, or within three years of accrual if the violation is willful. 29 U.S.C.A. § 255(a) (West 1998). In the case of a discriminatory pay claim, the Second Circuit has held, each pay check received during a period when a pay disparity exists amounts to a separate actionable wrong. A plaintiff cannot recover based on a particular pay check unless that pay check was received within the limitations period. Pollis v. New Sch. For Soc. Research, 132 F.3d 115, 119 (2d Cir. 1997) (citing Bazemore v. Friday, 478 U.S. 385, 395-96 (1986)). Thus, "a cause of action based on receipt of a paycheck prior to the limitations period is untimely and recovery for pay differentials prior to the limitations period is barred irrespective of subsequent, similar timely violations." Pollis, 132 F.3d at 119.
All of Plaintiffs EPA claims arising prior to September 27, 1996 are thus clearly barred. These barred claims include any predicated on disparities between Plaintiffs pay and that of her co-worker Alejandro, because it is undisputed that the two did not hold similar positions after 1994. Defendants argue that their alleged EPA violations were not willful and, therefore, since Plaintiff filed her complaint on September 27, 1999, that all of Plaintiffs EP A claims arising prior to September 27, 1997 are barred. The Second Circuit has determined that, for an EPA violation to be considered willful, the employer must have either known or shown "reckless disregard for the matter of whether its conduct was prohibited by statute," although it is not necessary for the plaintiff to "show that an employer acted with intent to discriminate or in bad faith." Id. Plaintiff has proffered no evidence to support a contention that any alleged EPA violation by Defendants was willful. Accordingly, all of Plaintiffs EPA claims accruing prior to September 27, 1997 are barred.
Plaintiffs Remaining Claims Under the EPA
As for her remaining EPA claims, Plaintiff has alleged facts sufficient to satisfy the elements of a prima facie case. It is undisputed that disparities existed between the pay afforded to Plaintiff and the pay of her two male co-workers in the mail room. Defendants argue, however, that, the disparity between Plaintiffs pay and that of her co-worker Simmons was so small that the difference should be considered de minimis and, therefore, insufficient to establish that element of the prima facie case. Neither the language of the EPA nor the relevant case law, however, carves out an exception for de minimis differences in pay. Assuming arguendo that such a de minimis exception does exist, this difference in pay does not seem trivial given Plaintiffs low annual rate of income, as well as the fact that Plaintiff had been working for Kellwood for 25 years prior to Simmons' hiring and was being compensated at a rate lower than that of the person who allegedly had been hired to assist her.
As for the second prong of the prima facie case, there are genuine issues of material fact concerning whether Plaintiff and Simmons were called upon to perform equal work on jobs requiring equal skill, effort and responsibility. It is clear from the record that while Plaintiff and Simmons shared a similar core of duties within the mail room, each performed tasks that were not required of the other. Plaintiff regularly cleaned the corporate apartment, while Simmons performed a number of extra tasks, including acting as a messenger, relieving the receptionist, faxing documents and delivering faxes, repairing furniture, fixtures and other office equipment, moving heavy equipment and furniture, taking inventory of office equipment and computers and replacing water bottles, that Plaintiff was not required to perform. In satisfying the equal work prong, "a plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are `substantially equal' in skill, effort and responsibility." Lavin-McEleney v. Marist College, 239 F.3d 476, 480 (2d Cir. 2001) (quoting Tomka, 66 F.3d at 1 3 1 0). A showing that the jobs are merely "comparable," however, would not be sufficient.Lambert v. Genesee Hosp. 10 F.3d 46, 56 (2d Cir. 1993).
Here, Plaintiff has proffered sufficient facts to enable a reasonable jury to find that the jobs were substantially equal. Simmons was hired to assist Plaintiff in her duties in the mail room. (Tr. 6/12/2000 Smolen Dep. at 83-84.) Simmons was also hired to perform a number of other tasks in addition to his mail room-related duties that Plaintiff was not required to perform. (Plaintiffs Statement of Contested Material Facts at 4-5.) Defendants assert that the disparity in the pay afforded to Plaintiff and Simmons is accounted for by the differences in the tasks they performed. (Defendants' Mem. of Law in Support of Motion for S.J. at 4-5; Tr. 7/27/00 James T. Mays Dep. at 60-62.) There is a dispute, however, over how substantial these additional tasks were and whether such tasks were reflected in Simmons's salary. Defendants contend that Simmons's extra duties were substantial, noting in particular that his work as a messenger "took a lot of his time." (Tr. 6/12/2000 Smolen Dep. at 85.) Plaintiff, however, asserts that the extra tasks performed by Simmons were insubstantial compared to the work he performed in the mail room, and questions whether those tasks were reflected in his compensation. Plaintiff contends that Simmons served as a messenger and provided switchboard relief only occasionally, and notes that Defendants have produced no documentation detailing the nature and frequency of the non-mail room related work performed by Simmons. (Plaintiffs Mem. In Opp. to Def's Motion for S.J. at 8.) Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could find that Plaintiff and Simmons spent enough time doing similar tasks that they that can be considered to have engaged in substantially equal work. Assuming for purposes of this analysis that Plaintiff and Simmons did perform under similar working conditions, Plaintiff has met her burden of establishing a prima facie case.
Once the plaintiff has made out a prima facie case, the burden shifts to the defendant to establish one of the four affirmative defenses outlined in the EPA. Belfi, 191 F.3d at 136. Defendants contend that they have satisfied their burden by establishing that Plaintiffs pay was based on a merit system under which Plaintiff would receive raises when her job performance was good, and no increase in pay when her job performance was rated as unsatisfactory by her supervisor.
In assessing whether a bona fide merit system is in operation for EPA purposes, the Second Circuit has pointed to the logic of some of its sister circuits which have determined that a genuine merit system "must be an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria." Ryduchowski v. The Port Auth. of New York and New Jersey. 203 F.3d 135, 142-43 (2d Cir. 2000) (quoting EEOC v. Aetna Ins. Co., 616 F.2d 719, 725 (4th Cir. 1980)). Defendants argue that Kellwood employees' pay rates were based on regular performance evaluations, and that employees were generally denied raises in years when their performance was "unsatisfactory or poor." (Wallace Aff at ¶ 20.) Defendants have proffered evidence that Plaintiff received pay raises in a number of the years that she worked for Kellwood. Defendants have also proffered evidence that Plaintiff received a positive evaluation in at least one of the years in which she was awarded a raise, and that she received a mixed, albeit far more negative, evaluation in at least one of the years in which she was denied a raise. Defendants also offer various internal memoranda indicating deficiencies in Plaintiffs job performance in certain years in which she did not receive a raise.
On the several evaluation forms Defendants have offered as evidence, the categories in which Plaintiff was rated appear uniform from year to year. However, Defendants have articulated no criteria for determining how well an employee had to do in any one category or combination of categories to be eligible for a raise. Furthermore, Defendants offer no evidence to establish that Simmons, Alejandro or any other Kellwood employee was evaluated in a fashion similar to Plaintiff, or that performance evaluations played any role whatsoever in determining their respective salaries. In addition, the evidence offered by Defendants does little to explain or justify the disparity in Simmons's pay upon his hiring versus Plaintiffs pay despite the fact that Plaintiff had already worked for Kellwood for 25 years. Hence, Defendants have failed to proffer evidence sufficient to establish that a merit-based system in which employees were evaluated based on predetermined criteria was in existence, was in systematic operation, was applied in a reasonable fashion and was the driving force behind the pay disparities at issue in this case.
Defendants also argue that the differences in pay between Plaintiff and her co-workers can be attributed to the fact that Simmons, Alejandro and Plaintiff did not perform the same work. Defendants contend that, at Kellwood, similarly situated employees would receive pay within a certain range, and that within that range, one employee might be paid less than another employee who performs some of the same tasks performed by the first employee, but also performs additional tasks that the first employee does not perform. (Tr. 7/27/2000 Mays Dep. at 60-62.) Thus, they argue, the differential in pay can be explained by a factor "other than sex." Id. The Second Circuit has held that "employers cannot meet their burden of proving that a factor-other-than-sex is responsible for a wage differential by asserting use of a gender-neutral classification system without more." Aldrich, 963 F.2d at 525. An employer must also prove that "the job classification system resulting in differential pay is rooted in legitimate business-related differences in work responsibilities and qualifications for the particular positions at issue." As noted above, there are factual disputes as to the specifics of the tasks that the three employees were required to perform, as well as regarding the significance of the disparate tasks in relation to overall workload. For this reason, and because Defendant has failed to proffer evidence as to the business justifications for its allocations of tasks and the method and reasonableness of its assignment of pay levels within the alleged ranges, Defendant is not entitled to judgment as a matter of law on Plaintiffs EPA claim on this record. Read in the light most favorable to Plaintiff, the record could support a finding that Defendants' proffered justifications for the pay disparities are pretextual.
Defendants' motion for summary judgment is denied with respect to Plaintiffs EPA claim regarding pay disparities postdating September 27, 1997.
Claims Under Title VII the ADEA, 42 U.S.C. S 1981, NYSHRL and NYCHRL
Because Plaintiff has not proffered any direct evidence of discrimination, her claims arising under Title VII, the ADEA, Section 1981, the NYSHRL and the NYCHRL are all analyzed under the three-step burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In the context of a motion for summary judgment, Plaintiff must first establish a prima facie case of discrimination. Id. at 802. To establish a prima facie case of discrimination, Plaintiff must show that (1) she belongs to a protected class; (2) she suffered adverse employment action; (3) she was performing her duties satisfactorily; and (4) the circumstances surrounding the adverse employment action give rise to an inference of discrimination. Id. In employment discrimination cases, the burden of establishing aprima facie case is minimal. McGuinness v. Lincoln Hall 263 F.3d 49, 53 (2d Cir. 2001). Once the Plaintiff has made out a prima facie case, the burden shifts to the employer to offer some legitimate, nondiscriminatory rationale for its actions. McDonnell Douglas, 411 U.S. at 802. An employer sustains its burden "by producing any evidence of nondiscriminatory reasons, whether ultimately persuasive or not." Weeks v. New York State Division of Parole, No. 00 CV 5865 SJ, 2002 WL 32096593, at *4 (E.D.N.Y Nov. 25, 2002) (emphasis in original) (citingSt. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). "The employer need not prove by a preponderance of the evidence that the reasons for his actions were not discriminatory, but may simply `present clear and specific reasons for the action.'" Gibbs v. Consolidated Edison Co. of N.Y., Inc., 714 F. Supp. 85, 89 (S.D.N.Y. 1989) (citation omitted). If the employer meets its burden, the Plaintiff is required to show that the defendant's stated reason is a pretext for prohibited discrimination. Ghose v. Century 21. Inc., 12 Fed. Appx. 52, 54 (2d Cir. 2001).
The following analysis applies to Plaintiffs claims under Title VII, see McDonnell Douglas. 411 U.S. at 802-804, the ADEA, see Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000), § 1981, see McLee v. Chrysler Corp., 109 F.3d 130, 134-35 (2d Cir. 1997), the NYSHRL and the NYCHRL, see Abdu-Brisson v. Delta Airlines. Inc., 239 F.3d 456, 466 (2d Cir. 2001); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir 2000): Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046-47 (2d Cir. 1992).
Plaintiff has alleged in her complaint that Defendants engaged in a number of discriminatory employment practices, including giving Plaintiff unwarranted negative evaluations, overly scrutinizing her work and criticizing her, demanding that she perform work outside of her job title, paying her lower wages than similarly situated non-Guatemalan employees, and terminating her employment in retaliation for Plaintiffs complaints of discrimination. Defendants argue that they are entitled to judgment as a matter of law on the grounds that Plaintiff has failed to establish the second, third and fourth prongs of a prima facie case on any of her claims. Defendants also contend that, even if Plaintiff has satisfied her burden of establishing a prima facie case, Defendants have proffered legitimate, non-discriminatory reasons for their employment actions which Plaintiff cannot show to be pretextual.
Before delving into the substance of Plaintiffs claims, the Court turns first to the question of whether Defendants Pat Wallace and George Smolen can be sued in their individual capacities under Title VII and the ADEA. The Court will then examine Defendants' arguments that they are entitled to summary judgment on certain of Plaintiffs claims based on Plaintiffs failure fully to exhaust her administrative remedies, as well as on statute of limitations grounds.
Title VII and ADEA Claims Against Individual Defendants
Plaintiff asserts her Title VII and ADEA claims against Pat Wallace and George Smolen in their individual capacities. Individual supervisors are not "employers" amenable to suit under Title VII or the ADEA. Houston v. Fidelity (Nat'l Fin. Servs.), No. 95 Civ. 7764, 1997 WL 97838, at *8 (S.D.N.Y. Mar. 6, 1997). Accordingly, Plaintiffs Title VII and ADEA claims against Wallace and Smolen are dismissed. Exhaustion of Administrative Remedies
In her complaint, Plaintiff alleges that she was discriminated against on the basis of age, gender, national origin, and in retaliation for complaining about Defendant's allegedly discriminatory employment practices. However, Plaintiffs administrative charge filed with the EEOC alleged only discrimination based on age, national origin, and retaliation. Plaintiff did not file an administrative charge alleging gender discrimination.
With respect to Title VII, the Second Circuit has determined that, "if a claimant has failed to pursue a given claim in administrative proceedings," the federal court generally cannot hear the claim.Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001); Butts v. City of N.Y., 990 F.2d 1397, 1401 (2d Cir. 1993); Legnani v. Alitalia Linee Aeree Italians S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). "Exhaustion of administrative remedies through the EEOC is an `essential element' of the Title VII . . . statutory [scheme] and, as such, a precondition to bringing such claims in federal court." Legnani, 274 F.3d at 686 (citations omitted). The purpose of the exhaustion requirement "is to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. United States Immigration and Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985). An exception to the requirement exists, however, for claims not expressly raised with the EEOC but that are "reasonably related" to those that were alleged before the agency. A claim is reasonably related if the conduct alleged is within "the scope of the EEOC investigation which can reasonably be expected to grow out of a charge" that was filed with the agency.Fitzgerald, 251 F.3d at 359-60 (quoting Butts. 990 F.2d at 1401-02).
Unlike Title VII and the ADEA, Section 1981 and the NYSHRL do not require a plaintiff to exhaust administrative remedies prior to filing a claim of discrimination. Lumhoo v. Home Depot USA, Inc., 229 F. Supp.2d 121, 136 nn. 12 13 (E.D.N.Y. 2002). The NYCHRL does have an exhaustion requirement, but it is different in substance, requiring the plaintiff to serve a copy of the complaint upon the city commission on human rights and on the city's corporation counsel. Branker v. Pfizer, Inc., 981 F. Supp. 862, 865 (S.D.N.Y. 1997).
Here, Plaintiffs assertion that she was discriminated against on the basis of gender is not so intertwined with her other claims that one could reasonably expect that the EEOC would have focused on gender as part of its investigation. See Murray v. The Brooklyn Public Library. No. 96-CV-2786, 1997 WL 1048899 (E.D.N.Y June 13, 1997) (dismissing charge of gender discrimination when administrative complaint had only alleged discrimination based on age and race). Defendants are therefore entitled to judgment as a matter of law with respect to Plaintiffs Title VII claims based on gender.
Timeliness of Plaintiffs Claims
In New York State, Title VII and ADEA claims are time-barred if a plaintiff docs not file a charge of discrimination with the EEOC within 300 days after an alleged unlawful employment practice occurs. Pikulin v. City Univ. of New York, 176 F.3d 598, 599 (2d Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328-29 (2d Cir. 1999). Plaintiff filed her charge with the EEOC on September 30, 1998. Therefore, the limitations period for the purposes of Plaintiffs Title VII and ADEA claims begins on December 4, 1997.
Plaintiff argues that her claims under Title VII and the ADEA accruing prior to December 4, 1997 are not time-barred because the "continuing violation" rule applies to extend the limitations period. Under this exception, the limitations period is extended "for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations."Quinn, 159 F.3d at 765 (internal quotation marks and emphasis omitted). "Multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation," although a "continuing violation maybe found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. at 765-66 (internal quotation marks omitted).
In Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that the continuing violation doctrine does not apply to a series of discrete discriminatory acts. "Discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges."Id. at 113. Each discriminatory act starts a new clock for filing charges, although "the existence of past acts and the employee's prior knowledge of their occurrence . . . does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." Id. An employee may, however, use prior acts "as background evidence in support of a timely claim." Id.
It is clear from Morgan and the relevant Second Circuit case law that the allegedly unwarranted negative evaluations, the pay disparities, the fact that Plaintiff was asked to do work allegedly outside her job description, and the allegedly retaliatory discharge are to be considered discrete acts and, therefore, cannot be lumped together to form a "continuing violation" so as to permit Plaintiff to bring all of her claims despite the fact that a number of them arise from events occurring, or actions taken, outside the applicable statute of limitations period. The Morgan Court did not define exactly what it meant by "discrete discriminatory acts," but mentioned termination, failure to promote, denial of a transfer, and refusal to hire as examples of the kinds of employment actions that would qualify. In addition, "well-settled law in [the Second Circuit] under the `continuing violation' doctrine, predating the Morgan decision, dictates that `discrete acts' include allegedly discriminatory transfers, job assignments and non-promotions, and failures to compensate adequately." Costanzo v. The United States Postal Service, No. 00 Civ. 5044, 2003 WL 1701998, at *5 (S.D.N.Y. March 31, 2003) (citations omitted).
Plaintiff complains of unlawful termination, which the Morgan Court mentioned as an example of a discreet act, as well as of allegedly discriminatory job assignments and inadequate pay, which are two types of acts specifically recognized as discrete by Second Circuit case law. As to the allegedly unwarranted evaluations, they are discontinuous in time with each other as well as with the other alleged discriminatory acts. Hence, the "continuing violation" doctrine does not apply and, as a result, none of Plaintiffs Title VII and ADEA claims arising from events that occurred before December 4, 1997 is actionable. All of Plaintiffs Title VII and ADEA claims relating to her work cleaning the corporate apartment are, thus, barred by the statute of limitations because it is undisputed that she stopped performing that activity permanently in June 1997.
New York State's three-year statute of limitations applies to Plaintiffs claims under Section 1981, the NYSHRL and the NYCHRL. Butts, 990 F.2d at 1412;Quinn, 159 F.3d at 765; Greene v. Trustees of Columbia Univ., 234 F. Supp.2d 368, 377 (S.D.N.Y. 2002). Plaintiff filed her complaint on September 27, 1999. Thus, the relevant limitations period for her Section 1981, NYSHRL and NYCHRL claims begins on September 27, 1996. As a result, all of Plaintiffs claims under Section 1981, the NYSHRL, and the NYCHRL arising from events that occurred before September 27, 1996 are dismissed as time-barred.
In sum, all of Plaintiffs Title VII and ADEA claims based on her work cleaning the corporate apartment are time barred. Any of her Title VII and ADEA claims based on the other categories of alleged discriminatory conduct (excessive scrutiny, unwarranted negative evaluations and undue criticism, pay disparities and wrongful termination) arising from actions which occurred prior to December 4, 1997 are also barred. Finally, all of Plaintiffs claims under Section 1981, the NYSHRL and the NYCHRL based on any of the categories of alleged discriminatory conduct arising from actions occurring prior to September 27, 1996 are time barred as well. As to Plaintiffs Section 1981, NYSHRL and NYCHRL claims based on her work cleaning the corporate apartment, there is a factual issue, which cannot be resolved based on the current record, as to whether an allegedly significant change in Plaintiffs duties, namely, a marked increase in the frequency with which Plaintiff was asked to clean the corporate apartment, occurred before or after September 27, 1996 and, hence, whether those claims are timely. As a result, the Court reserves judgment at this time as to whether those claims are timely, and will consider the merits of those claims along with the merits of Plaintiffs other remaining claims. The Court will now examine whether Plaintiff has alleged facts in support of her remaining claims that are sufficient to show that any of the wrongs she alleges rises to the level of satisfying the "adverse employment action" prong of a prima facie case. Remaining Discrimination Claims Based on Age, National Origin and In Retaliation
The "continuing violation" analysis applied above to Plaintiffs Title VII and ADEA claims also applies to her Section 1981, NYSHRL and NYCHRL claims. Blake v. Bronx Lebanon Hosp. Center, 02 Civ. 3827(CBM), 2003 WL 21910867, *5-7 (S.D.N.Y. Aug. 11, 2003). Hence, the continuing violation doctrine does not apply in connection with Plaintiffs claims under those statutes either.
In making out a prima facie case for a particular claim of discrimination, a plaintiff must show that the wrong alleged rises to the level of an "adverse employment action." An employee suffers an adverse employment action when "he or she endures a `materially adverse change' in the terms and conditions of employment." Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Richardson v. N.Y. Dep't of Correctional Servs., 180 F.3d 426, 446 (2d Cir. 1999)). The change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Actions that might be considered materially adverse include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to the particular situation." ld. "While adverse employment actions extend beyond readily quantifiable losses, `not everything that makes an employee unhappy is an actionable adverse action.'" Pimentel v. City of New York, No. 00 Civ. 326(SAS), 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002) (quoting Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002)). "There are no bright-line rules," and, therefore, "courts must pore over each case to determine whether the challenged employment action reached the level of' adverse.'" Richardson, 180 F.3d at 446 (quoting Wanamaker v Colombian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)).
Plaintiff has alleged that she was subjected to undue criticism and that her work was overly scrutinized, that she received unwarranted negative evaluations, that she was asked to perform tasks outside her job title, that she was paid wages lower than those paid to similarly situated co-workers, and that she was discharged in retaliation for her complaints of discrimination. The Court will evaluate each of these allegations in turn.
Excessive Scrutiny
Plaintiffs allegation that she was subject to excessive scrutiny does not rise to the level of an adverse employment action and, therefore, cannot form the basis of an actionable discrimination claim. "Courts in this district have found that reprimands, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions" when they are not attended by unfavorable consequences. Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) (citations omitted). Id. Here, Plaintiff has not alleged facts sufficient to show that any tangible negative effects arose from the allegedly excessive scrutiny. Hence, Plaintiff has failed to satisfy the adverse employment action prong of her prima facie case with respect to that allegation. All of Plaintiffs claims based on excessive scrutiny, therefore, are dismissed.
Unwarranted Negative Evaluations/Undue Criticism
The Second Circuit has specifically recognized negative performance evaluations as a type of action that could be considered adverse. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). However, courts have found that negative evaluations and criticism only form the basis of an adverse action in situations like the one at bar where there is evidence linking the evaluations and criticism to an attendant tangible loss, such as termination, so that they have the effect of "materially alter[ing] employment conditions." Castro v. New York City Bd. of Educ. Personnel No. 96 Civ. 6314(MBM), 1998 WL 108004, *7 (S.D.N.Y. Mar. 12, 1998). As to the other elements of a prima facie case, the fact that the substance of the evaluations is in dispute creates a triable issue of fact as to whether Plaintiffs performance was satisfactory, and the circumstances surrounding the evaluations, namely, that Plaintiff had complained about her work cleaning the corporate apartment and threatened litigation around the time that her performance reviews declined, gives rise to an inference of discrimination.
Plaintiff, however, has not alleged facts sufficient to show that the legitimate rationale articulated by Defendants is a pretext for unlawful discrimination. Defendants assert that the negative evaluations were the proper result of Plaintiffs poor performance. Defendants have proffered evidence of Plaintiffs poor attendance record, insubordination, attitude problems, and mistakes on the job to support Plaintiffs poor evaluations. Plaintiffs factual proffers in support of her contention that the negative evaluations and criticisms were really unwarranted consist of her assertion that Wallace had false motives in rendering the negative evaluations, reliance (in connection with Defendants' assertions that other employees had complained about Plaintiffs performance) on Alejandro's deposition testimony that he knew of no employees who had complained about Plaintiffs job performance in the three years that he worked alongside Plaintiff in the mail room, and reliance on Smolen's deposition testimony that he would not say that there was a "deterioration" in Plaintiffs performance in early 1997.
Plaintiffs bald assertion that Wallace had a motive to lie is conclusory, and Alejandro's testimony as to his lack of knowledge of other employees' complaints, even if true, is insufficient to create a triable issue of fact as to whether the evaluations and criticisms were unwarranted because Plaintiff proffers no factual basis for any inference that Alejandro would necessarily have been aware of complaints about Plaintiff to management. As to Smolen's deposition testimony, although he was careful to say that he did not want to use the word, "deterioration" when describing Plaintiffs performance in early 1997 (a word that was suggested to him by Plaintiffs lawyer) and that, instead, he preferred to say that Plaintiffs personality was changing during that period and that he did not know why, Smolen also testified shortly thereafter that two specific individuals, as well as others whose names he could not remember, complained that Plaintiffs performance had declined during that period. When viewed in the context of his other testimony, Smolen's careful phrasing is not sufficient to create a triable issue of fact as to whether the evaluations were unwarranted. Thus, Plaintiff has not satisfied her burden of coming forward with sufficient evidence to raise a question of fact as to whether Defendants' stated rationale is pretextual. Defendants are therefore granted summary judgment with respect to Plaintiffs claims based on the allegedly unwarranted negative evaluations.
Performing Tasks Outside Her Job Title
Taking the evidence presented by Plaintiff as true and viewing the facts in the light most favorable to Plaintiff, requiring Plaintiff to clean the company's corporate apartment and perform the duties of a maid on a frequent basis when she had been hired to work in the mail room constitutes an adverse employment action. Although generally a mere alteration of responsibilities is not sufficient, see Galabya, 202 F.3d at 640, requiring Plaintiff to clean the corporate apartment on a regular basis was a significant and permanent change from her prior duties which arguably fell outside of her job description. While Plaintiff did admit to performing some cleaning around the office even prior to the time she was asked to clean the corporate apartment, being required to leave the premises and spend a substantial amount of her time cleaning an apartment was a major departure from her prior responsibilities (especially after the apartment began being used more frequently). Further, Plaintiff received no extra compensation for her maid-related work and was still expected to perform all of the duties in the mail room that were required of her prior to the time she began cleaning the apartment regularly. Drawing all inferences in Plaintiffs favor, these facts are sufficient to establish a materially adverse change in the terms and conditions of employment.
As for the other elements of the prima facie case, Plaintiff has met her minimal burden. Although Defendants allege that Plaintiffs performance was unsatisfactory, the substance of her evaluations are in dispute. In addition, Plaintiff alleges that she was the only mail room employee who was asked to clean the corporate apartment and that on the days when she was out ill, as well as during the time after she stopped cleaning the apartment permanently in 1997, none of Plaintiffs co-workers in the mail room (or any other Kellwood employee) was asked to do the cleaning. Instead, an independent contractor was brought in to do the work. Plaintiff was the only female mail room employee at relevant times and was also substantially older than her co-workers. Such evidence is sufficient for prima facie case purposes to give rise to an inference of discrimination.
Defendants have met their burden of offering a non-discriminatory rationale for their action by proffering evidence that Plaintiffs job description included her maid-related duties. Defendants have offered payroll documentation referring to her job title as "maid" and "Custodial/Office Svc." Plaintiff responds to Defendants' contentions by arguing that she was never made aware of the existence of such documentation until the inception of this lawsuit and that her understanding at all times was that she was a mail clerk and that maid work was not part of her job description. Plaintiff, thus, has alleged evidence suggesting that Defendant's stated reason could be false.
Plaintiff has also satisfied her burden of coming forward with evidence sufficient to raise a genuine issue of fact as to whether Defendants' employment action was really the result of discrimination based on age, national origin and/or gender. As noted above, Plaintiff asserts that no other Kellwood employees were asked to clean the apartment, even when she was unable to do so. In light of the genuine factual disputes regarding the nature of the duties that Plaintiff and her mail room colleagues were required to perform and the current state of the record on the demographics of the mail room, a rational jury could conclude that Plaintiffs employers decided to give the cleaning assignment to Plaintiff rather than her similarly situated colleagues on the basis of age, national origin and/or gender. Hence, Plaintiff has proffered sufficient evidence for a rational jury to conclude that Defendants' stated reason was a pretext for intentional discrimination. Defendants' motion for summary judgment is therefore denied as to Plaintiffs claims related to work she performed that was allegedly outside her job description.
Pay Disparities
A claim of unequal pay for equal work under Title VII is generally evaluated under the same standards used in analyzing EPA claims. Simpri v. New York City Agency For Children's Servs., No. 00 Civ. 6712, 2003 WL 169803, at *2 (S.D.N.Y. Jan. 23, 2003) (citation omitted). To establish aprima facie case, "a plaintiff must show that (1) she is a member of a protected class; and (2) she was paid less than non-members of her class for work requiring substantially the same responsibility." Belfi, 191 F.3d at 139. In addition, "a Title VII plaintiff must also produce some evidence of discriminatory animus in order to establish a prima facie case of intentional salary discrimination." Simpri., 2003 WL 169803, at *2. Finally, a plaintiff must also show that she was qualified for the job in question. Belfi, 191 F.3d at 139-140.
It is undisputed that Plaintiff was paid less than her two younger, male co-workers in the mail room. Further, Plaintiff has alleged facts from which a reasonable jury could conclude that she was similarly situated to her better-paid co-workers. In McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001), the Second Circuit vacated a district court's decision to grant summary judgment for an employer on plaintiffs claims of being discriminated against on the basis of receiving a less attractive severance package than a colleague of a different race and gender. The court pointed out that, to make out a prima facie case, a plaintiff must establish disparate treatment of a similarly situated employee by "showing that she shared sufficient employment characteristics with that comparator so that they could be considered similarly situated." McGuinness, 263 F.3d at 53 (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d. Cir. 1997)). To establish that they are similarly situated, Plaintiff need not show that they are identically situated, but, rather, only that they are similarly situated in all material respects. Id. Here, although it is undisputed that Plaintiff and her co-workers did not perform an identical array of duties, Plaintiff has offered evidence that she, Alejandro and Simmons shared a common core of mail room-related duties. This is enough to satisfy Plaintiffs minimal burden. As for the requirement that she be qualified for the job in question, as noted above in the Court's analysis of Plaintiffs other categories of Title VII claims, Plaintiff has alleged facts sufficient for a reasonable jury to conclude that her work was satisfactory and that she was qualified. As for the final prong, the fact that Plaintiff received less pay despite her seniority and her time and effort spent cleaning the corporate apartment on top of her mail room work — a task not required of her co-workers — is sufficient to give rise to an inference of discrimination.
Although Plaintiffs claims relating to disparities in Plaintiffs pay versus Alejandro's pay are untimely because Alejandro ceased working in a position comparable to Plaintiffs position in 1993, the Court still can consider pay disparities between Plaintiff and Alejandro as "background evidence in support of Plaintiffs timely claims. Morgan, 536 U.S. at 113.
Defendants respond to Plaintiffs prima facie showing by contending that Plaintiffs pay rate vis-a-vis her co-workers was the result of a bona fide merit system, under which an employee's pay rate was determined by the quality of his or her performance. Defendants further try to explain and justify the disparities in pay by asserting that Simmons (and Alejandro before him) performed different work than Plaintiff requiring greater skill, effort and responsibility. While Defendant has proffered enough evidence to meet its burden, Plaintiff, however, has set forth facts sufficient to create a jury question as to whether the Defendants' stated reasons are false. Plaintiff had been working for Kellwood for 19 years when Alejandro was hired to assist her in the mail room. She had been working for Kellwood for 25 years when Simmons was hired. She alleges that both were hired to assist her in her duties. Yet, both were paid more than Plaintiff upon their hiring and throughout their tenures with the company. As noted earlier in the Court's discussion of Plaintiffs EPA claims, Defendants have not proffered evidence sufficient to establish that a merit-based system was in existence, was operating in a systematic and reasonable fashion and was actually the driving force behind the pay disparities. As to Defendant's contention that Alejandro and Simmons did not perform work equal to that performed by Plaintiff, Plaintiff disputes whether Alejandro and Simmons really performed some of the additional tasks that Defendants allege that they performed, and raises questions about the frequency with which they performed these tasks. Further, not only did Alejandro and Simmons perform some tasks that were not required of Plaintiff — Plaintiff performed a significant task not required of her co-workers, namely, cleaning the corporate apartment. As a result, the Court concludes that Plaintiff has offered sufficient evidence so that a rational jury could find that this adverse action was really the result of discrimination based on national origin, age or gender. As a result, Defendant's motion for summary judgment is denied with respect to Plaintiffs timely claims arising from the pay disparities.
Retaliatory Discharge
Plaintiff claims that she was wrongfully terminated in retaliation both for threatening to sue the company in an exchange with Wallace in May 1997, and for filing an administrative charge with the EEOC, alleging discrimination, in September 1998. In the context of a motion for summary judgment, retaliation claims are also analyzed using the burden shifting rules established in McDonnell Douglas. To make out a prima facie case of retaliation, a plaintiff must show that: (1) he or she was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action taken by the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003). If the plaintiff can make out a prima facie case, the burden shifts to the defendant "to articulate a `legitimate, nondiscriminatory reason' for its actions." Johnson v. Palma, 931 F.2d 203, 207 (2d. Cir. 1991) (citation omitted). If the defendant is successful, "the plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered reason merely a pretext for impermissible retaliation." Richardson, 180 F.3d at 44.
Plaintiff has met her burden of establishing a prima facie case of retaliation. Termination is clearly a materially adverse change in the terms or conditions of employment so as to satisfy the third prong. In addition, both filing formal administrative charges alleging discrimination as well as making less formal complaints to management about alleged discriminatory practices suffice to establish that Plaintiff engaged in a protected activity for the purposes of the first prong. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Since Plaintiff made her informal complaint directly to Wallace and there is ample evidence in the record that Defendants were aware of Plaintiffs filing of an administrative charge with the EEOC, Plaintiff has also satisfied the second prong. As for the causal connection prong, a plaintiff can establish such a connection indirectly through a showing that the protected activity was followed closely in time by a discriminatory act, through evidence of disparate treatment of other employees who engaged in similar conduct, or through direct evidence of retaliatory animus. Johnson, 931 F.2d at 207 (citing DeCintio v. Westchester County Med. Ctr, 821 F.2d 111, 115 (2d Cir. 1987)). Here, Plaintiff filed her charge with the EEOC on September 30, 1998 and was fired less than six months later, on March 23, 1999. This is a close enough temporal connection to establish the fourth prong of the prima facie case. See, e.g., Suggs v. Port Auth. of N.Y. N.J., No. 97 Civ. 4026, 1999 WL 269905, at *6 (S.D.N.Y. May 4, 1999) (finding that a 6-month period between plaintiffs filing of EEOC charge and his firing was a close enough gap to raise an inference of retaliation).
Defendants have met their burden of proffering a legitimate, non-discriminatory rationale to explain Plaintiffs termination. Wallace asserts in her affidavit that "Plaintiff was terminated for her unsatisfactory performance and her repeated insubordination and for no other reasons." Plaintiff, in turn, has satisfied her burden of proffering facts that, when viewed in the light most favorable to the Plaintiff, could lead a reasonable jury to conclude that Defendants' stated rationale is a pretext for retaliation. Here, Plaintiff argues that Defendants might have been motivated to fire her out of fear that, had she remained in the workplace, the EEOC investigation might have revealed such facts as the non-existence of a bona fide merit system. While it is questionable whether such an assertion, if true, would constitute evidence of retaliation and not something else, Plaintiff offers no facts to support her speculation. Plaintiff also alleges, however, that Wallace's memoranda detailing Plaintiffs poor performance might not be genuine both in substance and authenticity. The only support Plaintiff offers for this contention is that her job reviews were generally positive prior to 1997 and that they took a turn for the worse after she complained to Wallace and threatened litigation. It is undisputed that Plaintiffs reviews declined around the time that Plaintiff complained to management about cleaning the corporate apartment, although Defendants have provided evaluations and internal memoranda generated before Plaintiff complained to management which indicate that Defendant's personnel perceived significant deficiencies in Plaintiffs performance (particularly her poor attendance record) well before Plaintiff made her initial complaint to management. A material issue of fact does exist as to whether insubordination and poor performance on the part of Plaintiff were the real grounds for the firing or whether Plaintiffs discharge was actually retaliatory. Thus, the Court concludes that a rational jury could find that Defendants' stated rationale is a pretext for retaliation. Defendants' motion for summary judgment is, therefore, denied with respect to Plaintiffs claim of retaliatory discharge.
Hostile Work Environment
To resist a motion for summary judgment, a plaintiff making a hostile work environment claim must establish that "(1) the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer." Mack, 326 F.3d at 122 (quoting Richardson, 180 F.3d at 436). In evaluating the severity and pervasiveness of the allegedly discriminatory workplace conduct, a court must look at all the circumstances. See Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). A non-exclusive list of factors courts often consider in making such a determination includes "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." Id. Courts also look at the psychological effect, if any, that the alleged conduct had on the victim. Id. Plaintiff must show that the "workplace is 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.'" Id. at 21 (citation omitted). The standard for evaluating a hostile work environment claim is both subjective and objective: the victim must subjectively perceive the environment to be abusive so that it actually alters the conditions of the victim's employment, and the conduct must also be so pervasive or severe that a reasonable person would find the environment abusive. Id.
The Supreme Court in Morgan addressed the question of whether acts allegedly creating a hostile work environment could be taken into account to the extent those acts fell outside the Title VII's 180-or 300-day limitations period for filing a charge with the EEOC. Since "a hostile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice,'" the Court determined that "it does not matter, for the purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period." Morgan. 536 U.S. at 117 (citation omitted). Hence, "provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id.
Plaintiff alleges that Wallace subjected her to a hostile work environment by insisting that Plaintiff perform tasks outside her job title, overly scrutinizing and finding unwarranted fault with her work, attempting to have Plaintiffs co-workers place blame on Plaintiff and giving her unwarranted negative evaluations. Plaintiff also claims that, after she complained about having to clean the corporate apartment and was subsequently relieved of that duty, Wallace increased the harassment by intensifying her scrutiny of Plaintiffs work, constantly reminding Plaintiff of the work Plaintiff had to do, and intentionally ordering fewer supplies than Plaintiff requested and then blaming the resulting shortage on Plaintiff. Since it is undisputed that some of these acts contributing to the claim occurred after December 4, 1997 and, thus, were within the filing period, the Court has considered all of Plaintiff s contentions in determining whether Plaintiff has alleged facts sufficient to survive a motion for summary judgment on her hostile work environment claim.
Viewing all the facts in the light most favorable to Plaintiff, Plaintiff has not alleged facts sufficient to support a finding that a reasonable person would deem the work environment to be abusive. Giving unwarranted negative evaluations, scrutinizing the work of an employee, criticizing an employee in a non-abusive fashion and reminding an employee of work that needs to be done do not, even in their totality, rise to the level of discriminatory intimidation that alters the terms and conditions of a working environment. See,e.g., Nwanji v. The City of New York, No. 98 Civ. 4263, 2000 WL 1341448 (S.D.N.Y. Sept. 15, 2000) (even though plaintiff provided "ample evidence" that his supervisors were constantly reprimanding him and documenting his poor work performance, a reasonable jury could not find that such criticisms and write ups were severe or pervasive enough to support a hostile work environment claim even assuming plaintiff could show discriminatory animus). In addition, Plaintiff has not established that Wallace's alleged practice of not ordering enough supplies and blaming it on Plaintiff happened with enough frequency to be considered pervasive or severe. As for Plaintiffs claim of being asked to do tasks outside her job title, requiring Plaintiff to clean the apartment was not severe enough, either on its own or in conjunction with the other wrongs alleged by Plaintiff, for a reasonable juror to find that the workplace was so permeated with discriminatory intimidation that it created an abusive environment. Summary judgment is, thus, granted in Defendants' favor with respect to Plaintiffs hostile work environment claim.
Attorneys' Fees
Defendants' notice of motion includes a request for an award of attorneys' fees, but Defendants neither cited any legal authority for the request nor addressed it in their memorandum of law or supporting affidavits. This request is denied without prejudice.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted with respect to Plaintiffs EPA claim regarding pay disparities predating September 27, 15, 97.
Summary judgment for Defendants is also granted with respect to Plaintiffs Title VII claims based on gender, as well as Plaintiffs Title VII and ADEA claims asserted against individual Defendants Wallace and Smolen. Summary judgment is also granted with respect to Plaintiffs Title VII and ADEA claims predating December 4, 1997, including all her Title VH and ADEA claims relating to the work she performed cleaning the corporate apartment, and her Section 1981, NYSHRL and NYCHRL claims predating September 27, 1996. Summary judgment is also granted with respect to Plaintiffs Title VII, ADEA, Section 1981, NYSHRL and NYCHRL claims relating to the alleged excessive scrutiny, undue criticism and unwarranted evaluations. Judgment as a matter of law is also granted with respect to Plaintiffs hostile work environment claim. Defendants' motion for summary judgment is in all other respects denied. Defendants' request for attorneys' fees and costs is also denied without prejudice.
The parties shall appear before the undersigned for a final pre-trial conference on December 3, 2003 at 3:00 p.m.
SO ORDERED.