only one woman general manager out of 14 general managers in the Buffalo region during the relevant time period (approximately .07%), and only seven woman general managers out of 41 general managers throughout defendant's four regions (approximately 17%).
However, this interpretation is perceptibly skewed. Those same statistics show that, for the same regions and during the same time periods, approximately 36% of the assistant managers, and approximately 40% of the associate managers, were women. Overall, approximately 14 of 55 Buffalo area managers (approximately 25.5%), and approximately 44 of 139 managers throughout the four regions (approximately 31.5%), were women. These percentages more closely reflect defendant's policy of hiring woman managers than do the figures put forward by plaintiff reflecting only the ratio of female to male general managers. Plaintiff does not claim, nor has she submitted any evidence to suggest, that she was denied the opportunity for promotion to an associate or general manager position, and plaintiff's complaint does not assert any claims on behalf of a particular class. The ratio of female to male general managers is therefore of questionable relevance to the sexual harassment claim pleaded here.
Plaintiff also argues that despite the fact that she made up 25% of the management work force at the Hamburg Perkins (i.e., she was one of four managers, and the only woman manager), she was assigned 41% of the late night shifts assigned to management personnel during her tenure. As indicated by the discussion above in the factual section, this reading of the shift reports is also skewed. Those statistics show that, during the period between May 1989 and May 1990, plaintiff worked 85 late night shifts while the similarly-situated male assistant manager worked 83 late night shifts, and that plaintiff "worked down" ten fewer times than her male counterparts. Additionally, these same statistics show that during the same period, plaintiff worked the most desirable 7:00 a.m. to 4:00 p.m. shift 49 times, compared to 48 times for the male assistant manager.
The management and work shift statistics as a whole are therefore insufficient to create a genuine issue of fact as to the credibility of, or discriminatory motive for, defendant's stated reason for its evaluations, reprimands or criticisms of plaintiff's work performance. Plaintiff has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof--namely, that defendant intentionally engaged in a course of sexually harassing conduct toward plaintiff. Accordingly, summary judgment should be granted in favor of defendant on plaintiff's sexual harassment claim.
B. Disparate Treatment.
Plaintiff also contends that she was discriminated against based on her sex because she was treated differently than the male managers at the Hamburg Perkins in terms of scheduling for undesirable late night shifts, "working down," performance evaluations, posting of customer evaluation cards, and on-the-job criticism and discipline.
To establish a prima facie case of disparate or discriminatory treatment under Title VII, plaintiff must "show that she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred." Schwabenbauer v. Board of Education, 667 F.2d 305, 309 (2d Cir. 1981); Montana v. First Federal Savings & Loan Ass'n of Rochester, 869 F.2d 100, 106 (2d Cir. 1989). For a plaintiff to prevail on a disparate treatment claim, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); Zahorik v. Cornell University, 729 F.2d 85, 91-92 (2d Cir. 1984).
As discussed above in relation to her sexual harassment claim, plaintiff has failed to produce any evidence of discriminatory motive on the part of defendant. The statistical evidence in the record does not demonstrate a "gross disparity" of treatment among male and female managerial employees, especially among the relevant category of assistant managers, sufficient to provide a basis for an inference of discriminatory motive. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 59 L. Ed. 2d 587, 99 S. Ct. 1355 (1979); Martin v. Citibank, N.A., 762 F.2d 212, 218 (2d Cir. 1985); Silver v. City University, supra, 767 F. Supp. at 498-99.
The weekly shift scheduling reports also fail to show that plaintiff was treated differently from similarly situated male employees under circumstances indicating discriminatory intent. As discussed above, plaintiff has failed to show that she was assigned a disproportionate number of late night or "work down" shifts because she is a woman.
Plaintiff has also failed to submit any evidence tending to show that the posting of the negative customer evaluation card was done to undermine her managerial authority because she is a woman, or for any reason other than that it was common practice to do so.
Plaintiff has failed to produce any evidence, other than conclusory allegations, to show that she was evaluated, reprimanded, or disciplined differently or more harshly than her male counterparts under circumstances from which it could be inferred that any such treatment was based on her gender. She has produced no evidence to rebut defendant's affirmations that it was common practice to conduct managers' evaluations at a table in the back of the restaurant so that managerial staff could supervise the ongoing shift, or to show that any of the male assistant managers were evaluated or reprimanded in any other manner.
Finally, plaintiff's vacated managerial position was filled by a woman.
Accordingly, Plaintiff has failed to meet her burden on this summary judgment motion of producing sufficient evidence to support a reasonable finding of prima facie sex discrimination based on disparate treatment. Summary judgment should therefore be entered in favor of defendant on plaintiff's disparate treatment claim.
C. Constructive Discharge.
To succeed on her constructive discharge claim under Title VII, plaintiff must produce evidence sufficient to satisfy the trier of fact that the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. Martin v. Citibank, supra, 762 F.2d at 221; Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983).
Plaintiff has likewise failed to sustain this burden. The record shows that she was not assigned a disproportionate number of undesirable late night or "work down" shifts, and she has failed to produce any evidence to show that her evaluations were conducted or criticisms of her work were administered any differently than for the similarly situated male managers. The Penthouse magazine incident was resolved in a manner indicating that a reasonable person would have been satisfied that no such incidents would be likely to occur in the future. The record also shows that despite her problems, Bochiechio and Albano considered her to have good management skills, and advised her that she could continue in her position if she made some adjustments in her approach to the job. Finally, during her exit interview, the personnel director indicated a willingness to work with plaintiff in order to attempt to resolve whatever problems she had been having with her supervisors and fellow employees.
These circumstances demonstrate that plaintiff has failed as a matter of law to establish a constructive discharge claim. The record shows that plaintiff was presented with reasonable opportunities to correct perceived difficulties with or deficiencies in her work performance, yet voluntarily chose to resign instead. The evidence produced does not suffice to sustain an inference that a reasonable person, faced with the same situation, would have been compelled to resign.
D. State Law Claims.
Plaintiff has also pleaded violations of New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq., based on the same conduct alleged to have violated Title VII. Defendant moves to dismiss the complaint insofar as it alleges pendent state law claims on the ground that such claims are barred by plaintiff's election of administrative remedies.
N.Y. Executive Law § 297(9) provides, in relevant part:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed. A complaint filed by the equal employment opportunity commission to comply with the requirements of [Title VII] . . . shall not constitute the filing of a complaint within the meaning of this subdivision.
N.Y. Executive Law § 297(9) (McKinney 1993) (as amended effective June 15, 1991). Courts in the Second Circuit have held that, where a claimant voluntarily files a discrimination claim with the NYSDHR, she has elected to proceed with her state law claim in the administrative forum and forfeited her right to assert that claim in federal court, unless the administrative complaint is dismissed by the NYSDHR for administrative convenience. Stout v. International Business Machines Corp., 798 F. Supp. 998, 1008-09 (S.D.N.Y. 1992); Keeley v. Citibank, N.A., 711 F. Supp. 157, 161 (S.D.N.Y. 1989). This bar is not applied to cases in which the complainant originally filed her administrative charge with the EEOC and the state claims came before the NYSDHR only after the EEOC referred the charges to the state agency, as it is required to do under Title VII (and as expressly contemplated by the 1991 amendment to § 297(9)). See, e.g., Long v. AT & T Information Systems, Inc., 733 F. Supp. 188, 198 (S.D.N.Y. 1990).
In the instant case, the record indicates that plaintiff originally filed administrative claims with both the EEOC and the NYSDHR on August 24, 1990 (Item 1, PP 7, 8; Item 11, Ex. A). According to the complaint, EEOC issued a "right to sue" on January 20, 1993, after unsuccessful conciliation (Item 1, PP 10, 11). Plaintiff filed this action on March 4, 1993. The NYSDHR then issued a "Determination and Order After Investigation" on March 12, 1993, finding no probable cause for the charge, dismissing the complaint, and advising plaintiff of her right to appeal to the New York State Supreme Court, or to request review by the EEOC (Item 11, Ex. A).
In the absence of any evidence to the contrary, the court finds that plaintiff's state law claims are barred. The record clearly suggests that plaintiff voluntarily elected to file an administrative charge with the NYSDHR, and that her complaint was not dismissed for administrative convenience but only after a finding of no probable cause. "Under these circumstances, plaintiff is unable under New York law to seek a state court remedy . . .," Stout v. International Business Machines, supra, 798 F. Supp. at 1008, and this court cannot exercise pendent jurisdiction over the state law claims. Promisel v. First American Artificial Flowers, 943 F.2d 251, 257 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 110, U.S. , 112 S. Ct. 939 (1992). Accordingly, it is recommended that defendant's motion to dismiss plaintiff's state law claims be granted.
For the reasons set forth above, it is recommended that defendant's motion for summary judgment be granted dismissing plaintiff's case in its entirety.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
January 28, 1994
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 30(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 30(a)(3), or with the similar provisions of Rule 30(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the plaintiff and the defendant.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
January 28, 1994