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 Boelsen are not properly named as
defendants under Title VII.
Plaintiff's Claim of Discriminatory Discharge by
A court may grant summary judgment only if it determines that
there are no genuine issues of material fact based on a review of
the pleadings, depositions, answers to interrogatories,
admissions on file and affidavits. See Fed.R.Civ.P. 56(c). The
moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When ruling on a summary judgment motion, a court must construe
the facts in the light most favorable to the nonmoving party and
must resolve all ambiguities and draw all reasonable inferences
against the moving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no
genuine issue as to any material fact exists, the moving party is
entitled to summary judgment as a matter of law. See Celotex,
477 U.S. at 323, 106 S.Ct. 2548.
To prevail on a claim of discrimination under Title VII,*fn1
the plaintiff first bears the burden of establishing a prima
facie case. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This burden,
however, is a light one. See Chertkova v. Connecticut General
Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996). A plaintiff
establishes a prima facie case by showing (1) that she is a
member of a protected class; (2) that she was qualified for the
position she held; (3) that there was an adverse employment
action taken against her; and (4) that the position remained open
and the employer continued to seek similarly-qualified
applicants. See McDonnell Douglas Corp., 411 U.S. at 802, 93
S.Ct. 1817. A plaintiff who establishes a prima facie case has
set forth sufficient facts upon which a finding of discrimination
by the employer can be predicated. See St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981). In addressing these elements in a
motion for summary judgment, the court is to determine whether
there are any issues to be tried. See Spence v. Maryland Cas.
Co., 995 F.2d 1147, 1155 (2d Cir. 1993). The court is not to
weigh the evidence. See id.
The burden then shifts to the defendant to "articulate some
legitimate, nondiscriminatory reason for the employee's
rejection." Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (quoting
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the
defendant carries this burden, then the plaintiff must prove that
the action taken against him was the result of unlawful
discrimination. See id. Plaintiff may do so by establishing by
a preponderance of the evidence that the legitimate reason
offered by the defendant is merely a pretext for the employer's
actual discriminatory reasons for terminating the plaintiff's
employment. See id. If plaintiff fails to make out a prima
facie case initially, there is no need for defendant to
articulate a nondiscriminatory reason. See Spence, 995 F.2d at
Inasmuch as plaintiff does not raise a genuine issue of
material fact with respect to an actual or constructive
discharge, she fails to establish a prima facie case of
discriminatory discharge. An employee is actually discharged when
"the employer uses language or engages in conduct that would
logically lead a prudent person to believe his tenure has been
terminated." Chertkova, 92 F.3d at 88 (quoting N.L.R.B. v.
Trumbull Asphalt Co. of Del., 327 F.2d 841, 843 (8th Cir.
1964)). Here, plaintiff was offered in the context of a corporate
reorganization a new position that provided the same salary and
benefits as she currently received. Further, she was aware that
her failure to accept the position of CSA would be treated as a
voluntary resignation. See Viera Dep. at 728. In light of the
fact that defendants continuously reiterated that the CSA
position remained available to her and waited nearly two months
before they compelled her to decide whether the accept the new
position, a reasonable person in plaintiff's position could not
possibly conclude that she was being discharged.
An employee is constructively discharged when his employer
"deliberately [makes] his working conditions so intolerable that
he [is] forced into an involuntary resignation." Kirsch v. Fleet
Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998), (quoting Pena
v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)). To
prove constructive discharge, plaintiff must show that a
reasonable person subjected to the working conditions experienced
by plaintiff would have felt compelled to resign. See Ternullo
v. Reno, 8 F. Supp.2d 186, 190 (N.D.N.Y. 1998), (quoting Pena,
702 F.2d 322, 325). The employee's subjective assessment of
working conditions as "intolerable" is insufficient, see Neale
v. Dillon, 534 F. Supp. 1381, 1390 (E.D.N.Y.) aff'd without
op., 714 F.2d 116 (2d Cir. 1982), and merely difficult or
unpleasant working conditions do not rise to the level of
constructive discharge. See Martin v. Citibank, N.A.,
762 F.2d 212, 221 (2d Cir. 1985).
Constructive discharge occurs only where an employee is
subjected to an "unreasonable risk of physical harm, to
significant verbal abuse, or is forced to accept significantly
lower pay or inferior working conditions." Ternullo, 8
F. Supp.2d at 191. A change in job responsibilities with no
decrease in pay or benefits does not reach the threshold required
for a viable constructive discharge claim. See Pena, 702 F.2d
at 326; Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d
The action of the employer in this case is similar to that of
the employer in Pena v. Brattleboro Retreat, 702 F.2d 322, 325
(2d Cir. 1983). There, a nursing home administrator was told to
delegate her daily supervisory responsibilities to her successor
and to concentrate instead on governmental regulatory matters.
See id. at 323. In granting defendant judgment notwithstanding
the verdict on plaintiff's discriminatory discharge claim, the
Second Circuit emphasized that the employer wished to retain the
plaintiff as an employee of the nursing home and did not seek to
decrease her salary. See id. at 325.
In the case at bar, plaintiff's department was completely
disbanded following the merger of Olsten Corporation and KQC.
Although Olsten/KQC terminated one of the four members of
plaintiff's former department, the company clearly sought to
retain plaintiff as an employee and specifically directed Mann to
create a new position for her offering her the same compensation
and benefits. Although plaintiff did not like her new job
description, her disappointment did not make her continued
employment so intolerable that a reasonable person would have
felt compelled to resign. Because plaintiff cannot establish a
prima facie case for discriminatory discharge, her discharge
claims under both Title VII and the NYHRL must be dismissed.*fn2
Plaintiff's Title VII Claims against Mann and Boelsen
The individual defendants Mann and Boelsen move to dismiss
plaintiff's Title VII claims against them as supervisors who
allegedly discriminated against her. A plaintiff's complaint may
be dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if no
relief can be granted under the facts alleged. See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). At
the pleading stage of litigation, the court must accept
plaintiff's factual allegations as true, see Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
It is well established that individuals with supervisory
control over a plaintiff cannot be held personally liable for
discrimination or retaliation under Title VII. See Tomka v.
Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); see also
Ponticelli v. Zurich American Insurance Group, 16 F. Supp.2d 414,
441 (S.D.N.Y. 1998). Hence, even accepting as true the facts as
alleged by plaintiff, only Olsten/KQC can be liable to plaintiff
under Title VII, a point which plaintiff concedes. Plaintiff
having offered no opposition to Mann and Boelsen's motion to
dismiss the Title VII claims against them, the Court grants
defendant's motion to dismiss these claims.
For the reasons set forth above, the Court grants Olsten/KQC's
motion for partial summary judgment and dismisses plaintiff's
claims of discriminatory discharge and further grants Mann and
Boelsen's motion to dismiss plaintiff's Title VII claims against
them. All counsel shall appear before the Court for a Pre-Trial
Conference on October 6, 1999, at 1:00 p.m. in Courtroom 705, 40
Centre Street, at which time the Court will schedule a Trial of
plaintiff's remaining claims for hostile environment
It is SO ORDERED.