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September 7, 1999


The opinion of the court was delivered by: Sprizzo, District Judge.



Plaintiff, a single Hispanic female, was hired by Olsten Corporation as Manager of Infusion Reimbursement on June 8, 1992. See Complaint, dated April 14, 1995 ("Compl."), ¶¶ 9, 10, 14. Plaintiff's position entailed developing and implementing billing and collecting procedures for the infusion therapy program. See Affidavit of Kenneth Kirschner, dated September 4, 1996 ("Kirschner Aff."), Exh. C. From June 1992 until October 1993, plaintiff reported to Mary Wehrberger, Director of Infusion Reimbursement. See id., Exh. A, Deposition of Nivia Viera ("Viera Dep.") 146-147, 152.

In July 1993 Olsten Corporation acquired Kimberly QualityCare ("KQC"), and the operations of Olsten Health Care and KQC were merged, forming a new entity known as Olsten/Kimberly Quality Care ("Olsten/KQC"). See Affidavit of Thomas Boelsen, dated August 30, 1996 ("Boelsen Aff."), ¶ 3. As a result, Olsten's infusion therapy program disbanded beginning in October 1993, and all four members of Olsten's infusion therapy group were either transferred or discharged. See Viera Dep. 152; Boelsen Aff. ¶ 6. Plaintiff was transferred to the finance department of the clinical specialties sector, where Mann was her new supervisor. See Boelsen Aff. ¶ 7.

From November 1993 until her termination in May 1994, plaintiff continued to perform substantially the same duties that she had performed in the infusion therapy program; the only difference in plaintiff's activities was that the scope of her duties expanded to include billing and collection procedures for pediatrics and rehabilitation in addition to infusion therapy. See id.; Viera Dep. 165. The parties dispute what job title plaintiff held during this time. Plaintiff claims that she was promoted to the position of Director of Reimbursement for Specialty Programs ("DRSP"). A November 1993 business plan prepared by Vice-President Gary Cellini called for the appointment of a DRSP for the infusion therapy program. See Viera Dep. 166. However, Cellini's plan did not specifically mention plaintiff, and in any event the plan was not adopted by Olsten/KQC. See Boelsen Aff. ¶ 8. In addition, the Human Resources Department never formally authorized plaintiff's alleged promotion to this position, and none of plaintiff's superiors ever officially informed her that she had received a promotion. See Viera Dep. 173, 369. Nonetheless, because Mann approved plaintiff's request to order business cards bearing the title DRSP and other employees addressed her at staff meetings as DRSP, plaintiff contends that this was her new job title. See id. at 374.

Plaintiff revealed to Mann and Boelsen that she was pregnant in early December 1993, when she requested a day off to have an amniocentesis performed. See id. at 507. Plaintiff alleges that her work environment then "began to change for the worse." See Compl. ¶ 15. Plaintiff alleges that she was excluded from trips, projects, departmental outings, dinners, and the office Christmas gift exchanges and was ignored by Mann and Boelsen. See id. at ¶ 57. In addition, she claims that Mann repeatedly stared at her pregnant abdomen. See Viera Dep. 464. Further, in January 1994, Mann once overheard her speaking with her mother in Spanish, at which time he blushed and stated that he had not known that she was Hispanic. See id. at 443, 445.

In January 1994, plaintiff called Pat Muncy in the Human Resources Department to express concern regarding Mann's failure to return her calls and his alleged attempts to exclude her from meetings because of her pregnancy. See id. at 448. In February 1994, Viera met with Muncy, who instructed plaintiff to express her concerns to Boelsen. See id. at 450. Plaintiff did not do so, however. See id. at 451.

As early as November 1993, plaintiff was aware that Mann would be ultimately responsible for designing a new job description for her as part of the process of integrating the operations of Olsten and KQC. See id. at 339. When Mann presented plaintiff with her new job description in April 1994, the job description did not include the duties of the DSRP. Instead, plaintiff's new title was to be Clinical Specialties Analyst ("CSA"). See id. at 304. When Mann presented plaintiff with her new job description, he told plaintiff that she did not fit into the Finance Department's "anal retentive management style". See id. at 305-308. Plaintiff, dissatisfied with what she viewed as a demotion, approached Al Perry, the new Vice President for Specialty Programs, and expressed her interest in continuing to serve as DRSP. See id. at 333, 335. Perry responded that plaintiff could submit her resume to apply for the position. See id. He then asked her how long she planned to be absent on maternity leave. See id.

The parties dispute whether plaintiff's new position as CSA was a demotion. Although the new position ordinarily carried a lower pay grade, plaintiff's salary, benefits, hours, and eligibility for salary increases would have remained the same. See Compl. ¶ 26; Viera Dep. 348, 570, 573, 698. Plaintiff considered the new position a demotion because it called for less strategic planning and less public visibility than her previous position. See id. at 311-13. However, of the seven tasks that plaintiff was to perform as CSA, three had been taken directly from plaintiff's own proposed job description, and the other four were slightly more analytical and financial variations of tasks proposed by plaintiff. See id. at 333, 348; Kirschner Aff., Exh. H, I.

As of May 1994, plaintiff had not informed Mann whether she would accept the CSA position. See Viera Dep. 344. On May 10, 1994, plaintiff's attorney, Lee Nuwesra, Esq., told Nancy Lanis, Esq., Vice President and Assistant General Counsel of Olsten/KQC, that plaintiff had decided not to accept the CSA position. See Kirschner Aff., Exh. J. The following day, Lanis sent a letter to Nuwesra stating that the CSA position would remain available for another two days and reiterating that plaintiff's compensation would not change. See Viera Dep. 570, 573. Nuwesra responded by letter on May 18, 1994, indicating that plaintiff no longer felt comfortable working in the office. See Kirschner Aff., Exh. J. On May 23, Lanis faxed a letter to plaintiff informing her that if she failed to report to Mann in the CSA position by May 24, she would be deemed to have voluntarily resigned. See Plaintiff's Reply Affirmation in Opposition to Defendants' Motion to Dismiss and/or for Partial Summary Judgment ("Pl.Aff."), Exh. F. Nuwesra responded by letter on the same day, alleging that Olsten/KQC discriminated against plaintiff based on sex, marital status, race, national origin, and disability. See id. Despite plaintiff's failure to report to Mann on May 24, Lanis informed Nuwesra and plaintiff by letter dated May 26 that the position was still available and that plaintiff's salary and eligibility for merit increases would not change upon acceptance of her new position. See Pl.Aff., Exh. G. Finally, at a May 31 meeting between Mann and plaintiff, plaintiff again rejected the CSA position. See Pl.Aff., Exh. H. Accordingly, Olsten/KQC treated plaintiff's decision as a voluntary resignation. See id.

On April 24, 1995, plaintiff commenced the instant action against defendants, alleging discrimination based on race, gender, pregnancy, national origin, and marital status under state and federal law. Plaintiff's complaint pleads claims for hostile work environment and discriminatory discharge. Subsequently, on September 4, 1996, Mann and Boelsen moved to dismiss plaintiff's Title VII claims against them, and Olsten/KQC moved for partial summary judgment.

Olsten/KQC argues that plaintiff voluntarily resigned from her position of employment and therefore cannot bring any claim arising from her alleged discharge. Olsten/KQC further argues that plaintiff is not entitled to back pay or front pay because she did not mitigate her damages by seeking employment although such employment was available to her. Mann and Boelsen argue that plaintiff's Title VII claims against them must be dismissed because supervisors cannot be liable as employers under federal law.

Viera responds by arguing that she did not voluntarily resign but was constructively discharged from employment. She also argues that she is entitled to back pay and front pay. She does, however, concede that Mann and ...

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