that this figure renders Schoenberg's declaration "unbelievable," in the
absence of any reason why NCA sales representatives would escape the
American propensity towards obesity, and particularly in light of NCA's
denial of Marks's charges that it pursued a policy of refusing to hire
overweight individuals as sales representatives.
The statistic, however, while disturbing, does not raise a "genuine
issue of material fact" for the purposes of this motion. First and
foremost, Marks has failed to demonstrate the statistical significance of
this percentage because she has not established how many individuals make
up NCA's sales force. The fewer in number the sales representatives, the
less their uniform slenderness would constitute a statistical anomaly.
See Pollis v. New School for Social Research, 132 F.3d 115, 121 (2d Cir.
1997) ("The smaller the sample, the greater the likelihood that an
observed pattern is attributable to other factors and accordingly the
less persuasive the inference of discrimination to be drawn from it"). In
addition, Marks cannot argue both sides of the same factual issue by
relying on the accuracy of NCA's denial. Having throughout this
litigation advanced the theory that NCA refused to hire her on account of
her weight, she cannot now deny the possibility that the lack of
overweight sales representatives at NCA was due to some sort of
weight-conscious hiring policy. Finally, it is not at all clear that
either Schoenberg's statement or any NCA hiring policy defines
"overweight" using the same standard as the studies discussed in the
articles. As the articles recognize,*fn16 there is considerable debate
in the medical community over the definition of the medical term
"overweight;" surely lay persons would have similar difficulties agreeing
upon such a standard. Regardless, Marks has offered no proof that
Schoenberg's definition of "overweight" is in any way related to any of
the standards mentioned in the articles.*fn17
Accordingly, Marks is unable to show "specific facts" sufficient to
render Schoenberg's credibility or the issue of whether NCA employed any
overweight male sales representatives a "genuine issue of material fact."
In the end, Marks's "gender plus" claims amount to nothing more than bald
assertions that she was discriminated against on account of her weight,
and discrimination based on weight alone is not illegal under Title VII.
*fn18 "To be actionable,
gender-plus discrimination must be premised on gender." Coleman v. B-C
Maintenance Mgmt., 108 F.3d 1199, 1203 (10th Cir. 1997); see also
Malarkey, 704 F.2d at 674 (dismissing complaint for failure to state a
'cause' of action because plaintiff did not allege disparate treatment
among male and female "employees). Because Marks has shown no connection
between NCA's failure to promote her and her gender, nor any evidence of
disparate weight policies for men and women, her "gender plus" claims
III. Plaintiff's retaliation Claims
Plaintiff also claims that she was terminated from her position as a
telemarketer in retaliation for complaining about gender discrimination.
See Am. Compl. at ¶¶ 33-43, 46-47, 54-55, 62-63. Title VII provides
that "[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees ... because [the employee] has
opposed any practice made an unlawful employment practice by [Title VII]."
42 U.S.C. § 2000e-3 (a). In order to establish a prima facie case of
retaliation under Title VII, a plaintiff must show "(1) participation in
a protected activity that is known to the defendant, (2) an employment
decision or action disadvantaging the plaintiff, and (3) a causal
connection between the protected activity and the adverse decision."
Richardson, 180 F.3d at 443 (citing Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 713 (2d Cir. 1996)). NCA contends that it is
entitled to summary judgment on Marks's retaliation claims because: (1)
"there is no evidence that Marks complained about gender discrimination
before she was sent home or that her supervisors understood or reasonably
could have understood that Marks had complained about gender
discrimination;" and (2) "Marks was not discharged against her will, but
chose to leave NCA." Def. Mem. at 12-13.
A. Plaintiff's Complaints to Her Supervisors Did Not Raise the Issue
of Gender Discrimination
Marks cannot meet her burden on the first element of a prima facie
claim of retaliation because there is no evidence that she ever
complained about gender discrimination before leaving NCA, and thus no
way that NCA could have understood her complaints to be gender-based. To
prove that she engaged in protected activity by opposing a practice
forbidden by Title VII, Marks must show that she had a "good faith,
reasonable belief that the underlying challenged actions of the employer
violated the law." Manoharan v. Columbia Univ. College of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). The reasonableness of
plaintiffs belief must be assessed "in light of the totality of the
circumstances." Galdieri-Ambrosini, 136 F.3d at 292. The conduct
complained of need not necessarily be illegal, so long as the employee
reasonably believed at the time of the complaint that a violation of the
anti-discrimination laws had occurred. See Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 769 (2d Cir. 1998). Moreover, the employer had to
have been aware of the complaint and must have "understood, or could
reasonably have understood, that the plaintiffs opposition was directed
at conduct prohibited by Title VII." Galdieri-Ambrosini, 136 F.3d at
The record plainly contradicts Marks's contention that she had a good
faith belief that NCA's employment practices were unlawful. First, for
the reasons discussed above, see supra at 11-21, there was "no semblance
of gender-oriented motivation in the events or conversations" Marks has
described. Galdieri-Ambrosini, 136 F.3d at 292. Second, at the time she
complained to her supervisors, Marks had yet to allege any discrimination
based on gender or any other Title VII violation. Marks has testified
that she protested to McGuire and Chase that the decision to promote
Thomas over her was "justly unfair" because she was such an effective
telemarketer. Marks Dep. at 160-61. She also stated that she had
complained to co-workers about "discrimination due to the weight." Pt at
69. But there is no evidence that Marks ever once suggested, before her
employment was terminated, that NCA's decision not to promote her had
anything to do with her gender. See, e.g., Brands-Kousaros v. Banco Di
Napoli S.P.A., No. 97 Civ. 1673, 1997 WL 790748 (S.D.N.Y. Dec. 23, 1997)
("[T]he protected activity must involve some sort of complaint about a
type of discrimination that Title VII forbids").
Perhaps the best evidence of Marks's state of mind at the time of her
complaints is the transcript of her telephone call with co-worker John
Reynolds the day she was sent home from work. During that conversation,
Marks told Reynolds,
[B]etween you and [me], I spoke to already my cousin, who is an
attorney, [and] he said I definitely have a lawsuit. Never mind, you
know that whole thing with [Thomas] which my mother had told me she
would have done something about it anyway? You know [Thomas] being
promoted and not me? Because of her elbowing in. I can claim
discrimination on that. I never realized it. But I just spoke to the
attorney about it. Discrimination doesn't have to be black and white, I
never knew that people have won based on weight, that you can actually
use that, that you can't hire someone just because they are thinner.
Reynolds Tape Tr. at 9 (emphasis added). This comment disproves Marks's
assertion in two different ways. First, it shows that even after she had
left NCA, never to return, her complaints were based solely on a theory
of "weight discrimination." She did not mention any connection whatsoever
to her gender. Second, her statement acknowledges that she "just spoke to
the attorney" after leaving work, and that before that consultation, she
"never realized" that she had a discrimination claim. This admission
belies her argument that her grievances referred to NCA's violation of
federal antidiscrimination laws despite not using "magic words" such as
"sexual," "gender," or "sex plus discrimination." P1. Mem. at 12. She
never knew she had a discrimination claim, let alone a claim for gender
discrimination. Thus, if anything, she complained of injustice,
unfairness, and perhaps weight discrimination, though prior to her
conversation with the attorney, it appears that she never thought any of
these were illegal.
Marks's situation is strikingly similar to Galdieri-Ambrosini, 136 F.3d
at 292, in which the Second Circuit held that a disgruntled secretary's
retaliation claims were insufficient as a matter of law. First, as in
Galdieri-Ambrosini, there is no evidence that Marks's belief that "she
was being discriminated against because she was a woman-even if
genuine-was reasonable." Id. Having recognized that Marks's "gender plus"
claims have no merit, the Court cannot find that her belief in the
validity of such a claim would have been reasonable at the time. Second,
Marks's complaints about alleged discriminatory practices were similar to
Galdieri-Ambrosini's in that both claimed that the unfair treatment they
received was grounded in sexual stereotypes. Marks maintains that NCA's
requirement that sales representatives be "thin and cute" "impl[ied] a
broader critique of a stereotyped focus on physical appearance whe[re]
female employees in positions of importance [we]re concerned." P1. Mem.
at 13. This allegation is analogous to Galdieri-Ambrosini's contention
that certain tasks assigned to her were "women's work" because they were
"traditionally secretarial tasks" that were often "related to the
employer's personal business." Galdieri-Ambrosini, 136 F.3d at 290. The
Second Circuit found that Galdieri-Ambrosini's objections to being
instructed to work on her boss's personal matters could not reasonably
have been construed as gender-based complaints because they never
"averted to gender as a basis for
[her boss's] assignments" nor did she ever "protest that the
requirement was gender-based." Id. at 292. Similarly, because Marks
failed to couch her complaint in terms of gender discrimination, "there
was nothing in [Marks's] protests that could reasonably have led [NCA] to
understand that [gender] was the nature of her objections." Id.
Marks's attempt to distinguish her case from Galdieri-Ambrosini is
unconvincing. She maintains that NCA cannot justify its criteria of
"thinness and cuteness" for sales representatives as a "normal" or
"traditional" requirement for such employees. Cf id. at 292 (finding no
semblance of gender discrimination because "virtually all of the tasks
[Galdieri-Ambrosini] was assigned are tasks that are normally performed
by secretaries"). However, as discussed above, there exists no credible
evidence that NCA judged male sales representatives any differently than
their fe-male counterparts. Consequently, it is apparent that, assuming
NCA utilized any weight criteria, such criteria were applied
even-handedly and without regard to gender. Moreover, NCA's rationale for
employing a slim and attractive sales force is obvious, certainly normal
in the industry, and, in all probability, a long-established tradition.
In fact, Marks, in her own words, related Chase's explanation:
"[L]os[ing] the weight ... was important for outside sales because you
were — you weren't just on the telephone, you were going around
from person to person and therefore presentation was extremely
important." Marks Dep. at 161.
Accordingly, because Marks has not shown that her complaints in any way
related to gender, there is no way NCA could have known of the nature of
such allegations. "As a result, Marks has failed to establish the first
element of a prima facie case of retaliation under Title VII.
B. NCA's Decision to Discharge Plaintiff Was Not an Adverse Employment
Even if Marks could show that her grievances were gender-based, she
cannot maintain a claim of retaliatory discharge because she was not
disadvantaged by NCA's employment decision. A plaintiff may establish
this second element of her prima facie case by demonstrating either
"actual" or "constructive" discharge. In an actual discharge, the
plaintiffs employment is terminated against her will. See Chertkova v.
Connecticut General Life Ins. Co., 92 F.3d 81, 88 (2d Cir. 1996). In
contrast, if the employee is forced to resign due to intolerable working
conditions, she may have suffered a constructive discharge. See id. at
1. Actual Discharge
Although she was formally fired, Marks's complaint "misrepresents the
factual circumstances surrounding her departure and has failed to satisfy
her burden of establishing a credible prima facie case of retaliation."
Gutierrez v. Henock, 998 F. Supp. 329, 336 (S.D.N.Y. 1998). Contrary to
her assertions, NCA did not make "an employment decision or action
disadvantaging [her], " as Marks must prove to establish a prima facie
case. Richardson, 180 F.3d at 443
It is indeed undisputed that NCA did discharge Marks in the wake of its
attempt to suspend her without pay for one week. See P1. Mem. at 9. The
transcript of the taped conversation between Marks and Chase, however,
illuminates the true circumstances and motivations behind NCA's action.
The transcript shows that plaintiff asked to be fired to avoid a
suspension because she wanted to leave NCA and, as a result, collect
unemployment benefits. A few excerpts from the transcript clearly
illustrate that the so-called "firing" was intended to benefit —
not disadvantage — the plaintiff. For example, at the beginning of
the conversation, Chase told Marks that, following her suspension, "[i]f
everything goes well then you [can] continue to work here." Chase Tape
Tr. at 1. Yet Marks replied,
OK, the bottom line is that I would rather be fired[.] I cannot
afford ... not to work for a week, I was out last month for weeks[.] I
was honestly ill with the flu OK and that killed me financially OK[.] I
honestly cannot afford, I mean, not to work for a week, at least if I'm
fired I get — I can collect — I am not in that type of
financial position. I'm moving, OK, I need the money for that which is
Id. Later in the call, Chase informed Marks that she could either accept
her suspension or voluntarily resign. See id. at 17. Marks reiterated
that she could not afford a week without pay, and reminded Chase that he
had the right to fire her. See id; see also id. ("Well I would rather
then be fired because I cannot afford a week . . . ."). Chase
acknowledged that McGuire had given him permission to fire her, but
stated unequivocally: "I don't choose to fire you, I choose to suspend
you." Id. (emphasis added). The two went back and forth, with Marks
begging to be fired and Chase maintaining that he wanted her to stay with
DM: Alright then I would like to be fired.
SC: I don't have, I'm not giving you that option.
DM: You said that Richie [McGuire] gave you the option to fire [me]
or to suspend me.
SC: But I don't want to fire you Debbie.
DM: Because you don't want to pay unemployment.
SC: Why is that, how is that going to bother me you haven't been
here long enough to make a significant impact.
DM: Yes I have.
SC: Debbie, why do you want to leave and get pennies when I can
DM: Because I can not afford to be out of work for a week, I can
not afford it . . .
SC: Debbie, I understand your position.
DM: OK in my building, in my building.
SC: Debbie, you have to learn when to stop talking, you better learn
when to stop talking Debbie, because you're getting real close to me
making the final decision that I don't want to make unnecessarily. So
listen, hang on one, hang on one second I got to talk to someone.
SC: You're fired.
Id. at 18-19. Before Chase hung up, Marks remarked that she preferred to
be fired because she could make more money on unemployment than she could
as a telemarketer. See id. at 20.
Marks's allegation that she was discharged against her will is clearly
belied by this transcript. Marks cannot dispute that Chase only
terminated her employment because she so persistently requested, if not
insisted, that he do so. Cf Maldonado v. Esmor Correctional Servs.,
Inc., No. 97 Civ. 7087, 1998 WL 516118, at *1 (S.D.N.Y. Aug.19, 1998)
(denying summary judgment because plaintiff disputed "whether [she] asked
Esmor to terminate her so that she could receive unemployment
benefits"); see also Erit v. Judge, Inc., 961 F. Supp. 774, 776 n. 2
(D.N.J. 1997) (recognizing dispute between parties over whether plaintiff
asked to be terminated, but holding that the dispute was not material for
the purposes of the instant motion). Although NCA formally discharged
Marks to satisfy her desire to collect unemployment, in effect, her
departure was completely voluntary. Cf Delgado v. Morse Indus. Corp.,
No. 85 C 224, 1986 WL 3309 (N.D.Ill. Mar.7, 1986) (ruling that plaintiffs
separation from employment did not violate ERISA because plaintiff asked
his supervisor to fire him so that he could collect unemployment
Having begged for the firing, Marks may not now claim that the decision
was, under the circumstances, adverse to her interests. *fn19 As such,
she cannot establish that she was actually discharged.
2. Constructive Discharge
Alternatively, Marks argues that if she was not actually discharged by
NCA, she was constructively discharged. "Constructive discharge of an
employee occurs when an employer, rather than directly discharging an
individual, intentionally creates an intolerable work atmosphere that
forces an employee to quit involuntarily." Chertkova, 92 F.3d at 89. A
work atmosphere is "intolerable" if conditions are "'so difficult or
unpleasant that a reasonable person in the employee's shoes would have
felt compelled to resign.'" Id. (quoting Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1188 (2d Cir. 1987)).
Marks has failed to demonstrate that a reasonable person in her
circumstances would have felt compelled to quit. See Castaldo v. New York
City Board of Educ., 166 F.3d 1199, 1998 WL 777038, at *1 (2nd Cir.
Oct. 27, 1998); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.
1993). For one thing, no one at NCA ever suggested to Marks that she
quit. See, e.g., Lopez, 831 F.2d at 1186. Rather, Chase urged her to
accept the suspension and return to work, despite the numerous
distractions she had engendered. Nor is it sufficient for Marks to claim
that her personality conflict with her supervisors rendered working
conditions merely difficult or unpleasant. See, e.g., Martin v.
Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985). Finally, Marks has
offered no evidence that she was ridiculed or even criticized for being
overweight. See, e.g., Chertkova, 92 F.3d at 89. A mere one week
suspension — which Marks has not demonstrated was unjustified
— does not constitute an "intolerable" work condition that would
compel a reasonable person to resign. Consequently, Marks cannot
establish constructive discharge either.
IV. Plaintiff's State Law Claims
Marks's pendent state law claims must also be dismissed. First, the
Court notes that "[t]he standards for recovery under section 296 of the
Executive Law are in accord with the Federal standards under [T]itle VII
of the Civil Rights Act of 1964." Ferrante v. American Lung Assn,
90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308, 1311 (1997); see also
Bond v. Sterling, Inc., 997 F. Supp. 306, 309 n. 1 (N.D.N.Y. 1998).
Therefore, because Marks's "gender plus" claim fails as a matter of law
under Title VII, it is most likely also deficient under N.Y. Exec. Law
In any event, because all of Marks's federal claims have been
dismissed, and because the allegations in the complaint do not establish
diversity jurisdiction, *fn20 there is no independent basis for
jurisdiction over Marks's pendent state law claims. Under
28 U.S.C. § 1367 (c)(3), a district court may decline to exercise
supplemental jurisdiction if it has dismissed all claims over which it
has original jurisdiction. The court, in its discretion, must "weigh and
balance several factors, including considerations of judicial economy,
convenience, and fairness to litigants." Purgess v. Sharrock, 33 F.3d 134,
138 (2d Cir. 1994). ""[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered
under the pendant jurisdiction doctrine — judicial economy,
convenience, fairness and comity — will point toward declining
jurisdiction over the remaining state-law claims.'" In re Merrill Lynch
Limited Partnerships Litigation, 154 F.3d 56, 61 (2d Cir. 1998) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614,
98 L.Ed.2d 720 (1988)); see also Castellano v. Board of Trustees of
Police Officers' Variable Supps. Fund, 937 F.2d 752, 758 (2d Cir. 1991).
Consequently, the Court declines to exercise pendent jurisdiction over
the remaining state law claims. See United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Women in City
Gov't United v. City of New York, 563 F.2d 537, 541 (2d Cir. 1977). They
shall be dismissed without prejudice.
For the foregoing reasons, defendant's motion for summary judgment is
HEREBY GRANTED. Plaintiffs disability and Title VII claims (i.e., first,
second, third, fourth, seventh, eighth, eleventh, and twelfth causes of
action) shall be dismissed with prejudice. Plaintiffs remaining claims
under New York State and New York City law (i.e., fifth, sixth, ninth,
tenth, and thirteenth causes of action) shall be dismissed without
prejudice. The Clerk of the Court shall enter judgment dismissing the
complaint in its entirety.