forth any nondiscriminatory explanation for this allegedly discriminatory behavior. Therefore, defendants' motion for summary judgment is denied on this issue. Van Zant, 80 F.3d at 714.
6. Doria asserts that when problems arose during her working relationship with Trainor, she alone was called to meetings to discuss the problems and was threatened with dismissal. Defendants put forward the non-discriminatory explanation that they viewed the problems between Doria and Trainor as being due to Doria's behavior and attitude and therefore they thought it would have been inappropriate to invite Trainor to these meetings. The explanation given by the defendants is consistent with a genuine work-related decision
and is a legitimate non-discriminatory reason for the action. Doria has failed to come forward with any evidence which would support a finding by a rational fact finder that the reason asserted by the defendants is false and pretext for discrimination. Therefore, defendants' motion for summary judgment is granted on this issue. See id.
7. Doria asserts that female CRM employees were excluded from company-related social events, such as company lunches and golf and tennis outings. As the defendants have failed to put forth a non-discriminatory explanation for these actions, an issue of material fact remains and defendants' motion for summary judgment is denied on this issue.
8. Doria asserts that she was subjected to harassing and discriminatory conduct, including "rude," "nasty" and "derogatory" comments and behavior directed towards her.
Defendants characterize the conduct as appropriate work-related criticism. In response, Doria asserts that such conduct was exhibited only towards women at CRM and cites herself and one of the female secretaries as among those people who were treated in this fashion. As fact issues remain, defendants' motion for summary judgment on this issue is denied.
9. Doria asserts that she was denied a 1994 year-end bonus, when male CRM employees received year-end bonuses. Yet, Doria concedes that she was told in December 1994 that she would not receive a bonus due to problems with her work attitude and performance, but that if things improved she would receive a bonus at a later time. Doria did receive a bonus in February 1995.
As Doria did receive a bonus (though later than she had expected), she has failed to plead sufficient evidentiary facts to support this contention. Therefore defendants' motion for summary judgment on this issue is granted.
10. Doria asserts that female CRM employees received lower year-end bonuses than male CRM employees. Specifically, Doria alleges that in 1994, four male Vice Presidents (Chin, Prober, Zech and Geller) received bonuses significantly higher than her bonus of $ 6,500, and three of the male Vice Presidents received bonuses in the $ 20,000 to $ 35,000 range. Defendants deny this allegation generally, but do not dispute the figures cited by Doria. Additionally, defendants put forward the non-discriminatory explanation that bonuses are merit-based. As the defendants have failed to show the nexus between their non-discriminatory explanation of a merit system for awarding bonuses and the actual bonuses received by the CRM employees discussed above, an issue of material fact remains. See infra p. 21. Accordingly, defendants' motion for summary judgment is denied on this issue.
11. Doria asserts that she was, due to her gender, forced to resign. Constructive discharge occurs when the employer intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). A work atmosphere is intolerable when a reasonable person in the employee's shoes would have felt compelled to resign. Chertkova, 92 F.3d at 88 (citations omitted). A constructive discharge will have occurred only when the employer "'deliberately makes an employee's working condition so intolerable that the employee is forced into an involuntary resignation.'" Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (citations omitted) (emphasis added). The case law makes clear that the test is not whether an employee's working conditions were difficult or unpleasant. Id. at 1156; Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir. 1993). In addition, a change in work responsibilities, such as the one Doria experienced, when there is no loss of pay or change in job title, is insufficient to establish constructive discharge. Id. The most common constructive discharge case involves veiled or direct threats that failure to resign will result in discharge.
See Spence, 995 F.2d at 1150; Stetson, 995 F.2d at 359.
Doria has not put forth evidence sufficient to support a claim of constructive discharge. The complaints by defendants and Trainor about her work made the environment, at most, difficult or unpleasant. See Spence, 995 F.2d at 1156. The changes in her responsibilities once Trainor joined CRM were not accompanied by a decrease in salary or change in job title.
See Stetson, 995 F.2d at 360. There were instances in which Doria was told that if her performance in certain areas, such as the February 1995 computer run and the alleged failure to provide input into employee performance evaluations, did not improve, she might be terminated. But, when criticisms are both concrete and appropriately work-related, they will not give rise to a claim of constructive discharge. See Spence, 995 F.2d at 1157. Doria does assert that there were times when she was threatened with dismissal and that there was discussion about her possible termination. Doria alleges that in December 1994 Trainor suggested to Cramer and McGlynn that Doria be fired. In Trainor's July 17, 1995 memorandum to Doria, he threatened dismissal and Doria asserts that there had been threats of dismissal in December 1994. In addition, Doria asserts that during her maternity leave Trainor and McGlynn discussed filling her position if she did not return from leave. Yet, none of these instances, even when taken together (see Chertkova, 92 F.3d at 90) are sufficient to create an "intolerable" work environment such that a reasonable person in the Doria's shoes would have felt compelled to resign. See id. at 88. The threats of dismissal that allegedly occurred in December 1994 were related to problems in Doria's work performance, and legitimate complaints about work performance are not the type of deliberate actions on the part of a employer which create an "intolerable" work environment for constructive discharge purposes. See Spence, 995 F.2d at 1157. With respect to the conversations which allegedly took place between Trainor, McGlynn and Cramer, and Trainor and McGlynn, Doria has not pleaded that she knew of these conversations prior to resigning. Without knowledge of the conversations, Doria could not have felt that the defendants deliberately created an environment so intolerable such that a reasonable person would have felt compelled to resign. Id. Accordingly, defendants' motion for summary judgment is granted on the issue of constructive discharge.
Further, defendants' motion for summary judgment is granted with respect to state law claims under N.Y.Exec.Law § 296 et seq brought pendent to those federal claims of retaliatory discrimination and gender-based discrimination under Title VII upon which defendants' motion for summary judgment has been granted. See United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Rodriguez, v. Phillips, 66 F.3d 470, 482-83 (2d Cir. 1995).
Further, defendants' request for costs and disbursements is denied.
BARRINGTON D. PARKER, JR.
Dated: White Plains, New York
October 15, 1996