The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Nivia Viera, a former employee of Olsten/Kimberly
Quality Care ("Olsten/KQC"), brings the instant employment
discrimination action under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and
Article 15 of the New York State Human Rights Law, § 296(a) and
(e) ("NYHRL"). Plaintiff alleges that defendants took various
adverse actions against her and ultimately forced her to resign
after she disclosed to defendants Joseph Mann ("Mann"), Assistant
Controller of Olsten/KQC's Finance Department, and
Tom Boelsen ("Boelsen"), Senior Vice President and Chief
Financial Officer of Olsten/KQC, that she was pregnant. Plaintiff
claims that defendants discriminated against her on the basis of
her gender, pregnancy, race, national origin, and status as an
unmarried person, subjecting her to a hostile environment and
ultimately discharging her from employment. Pursuant to Rule 56,
Fed.R.Civ.P., defendant Olsten/KQC moves for partial summary
judgment against plaintiff on plaintiff's claims of
discriminatory discharge, arguing inter alia that plaintiff
voluntarily resigned her position and thus cannot bring any claim
based upon the termination of her employment. The individual
defendants Mann and Boelsen move to dismiss for failure to state
a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., arguing that
individual supervisors may not be liable under Title VII. For the
reasons that follow, the Court grants defendants' motions.
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,
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
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 ...