circumstances that would be sufficient to permit an inference of
discriminatory motive." See Bennett v. Watson Wyatt & Co.,
136 F. Supp.2d 236, 246 (S.D.N Y 2001).
1. Qualified For the Positions
There is no dispute that plaintiff satisfies the first prima facie
requirement, as she is both African American and female. However,
defendant argues that plaintiff was not qualified to receive a promotion
to the Account Manager, District Sales Manager III, or District Sales
Manager II positions. In determining whether an employee is "qualified"
under the second prong of the McDonnell Douglas analysis, a court must
examine "the criteria the employer has specified for the position." See
Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 29 (2d Cir. 1997).
To qualify for promotion to Account Manager, an employee was required
to have a minimum of "two to three years of proven performance working
with medium to large accounts" whose monthly billings exceed $1,800.
(Def Rule 56.1 Stmt. ¶¶ 11, 33.) As of October 1999, when the position
became available, plaintiff did not have the requisite experience. From
the date of her hire to January 1998, she served as a New Business
Development Representative responsible for contacting only small
accounts. Although plaintiff did have six months experience as a full
Account Executive responsible for accounts ranging from $500 to $1,800
per month, she had no experience with clients whose account billings were
in the range typically serviced by an Account Manager. (Id. ¶¶ 11,
18. Plaintiff seemingly concedes that she was not qualified for the
Account Manager position, stating that "it is clear that . . . the
Plaintiff may not have been qualified for the Account Manager position."
(Pl. Mem. Opp. Summ. J. at 2.) Accordingly, there is no genuine dispute
that plaintiff was unqualified for the Account Manager promotion and
summary judgment is granted for defendant as to this issue.
Plaintiff was similarly unqualified for a promotion to the District
Sales Manager III position that became available in January 2000.
Candidates for the position were required to have a minimum of two years'
experience as a District Sales Manager II. (Def. Rule 56.1 Stmt. ¶
56.) Plaintiff was never employed as a District Sales Manager II and
conceded during her deposition that she was not qualified for the
promotion. (Id. ¶ 17.) Therefore, there is no disputed issue of fact
to consider and summary judgment on behalf of defendant is appropriate
with respect to this issue.
Plaintiff further alleges that defendant's failure to promote her to
the District Sales Manager II position left vacant on February 16, 2000
by Gardner's promotion violated Title VII. However, the undisputed
evidence demonstrates that two days prior to the vacancy, plaintiff
submitted evidence from her doctor stating that she was totally disabled
and unable to perform any work. (Def. Rule 56.1 Stmt. ¶ 60.)
Therefore, at the time the position became available, plaintiff was
unable, and therefore unqualified, to perform the job. See Valenzuela v.
Signode Corp., No. 88 Civ. 3301, 1989 WL 88290, at 4 (N.D. Ill. July 28,
1989). Plaintiffs contention that defendant may have known about the job
vacancy sometime in January and therefore should have offered the
position to plaintiff at that time is merely fanciful speculation.
Plaintiff adduces no evidence that defendant was aware of the vacancy
prior to Wagonseller's resignation and fails to allege that anyone was
considered for the vacant District Manager II position prior to February
16. Accordingly, we grant defendant's motion for summary judgment with
respect to this issue.
2. Adverse Employment Action
Plaintiff additionally contends that defendant violated Title VII by
failing to: (1) transfer her laterally to the Account Executive position
she previously held in Las Vegas; and (2) create an Account Manager
position in Las Vegas. As the Second Circuit explained,
[a] plaintiff sustains an adverse employment action
if he or she endures a materially adverse change in
the terms and conditions of employment. To be
materially adverse a change in working conditions
must be more disruptive than a mere inconvenience or
an alteration of job responsibilities. A materially
adverse change might be indicated by a termination
of employment, a demotion evidenced by a decrease in
wage or salary, a material loss of benefits,
significantly diminished material responsibilities,
or other indices . . . unique to a particular
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)
(internal quotation marks and citations omitted). Because neither alleged
act constitutes an adverse employment action under the circumstances,
summary judgment is appropriate.
A failure to transfer may constitute an adverse employment action under
certain circumstances. See Nonnenmann v. City of New York,
174 F. Supp.2d 121, 132 (S.D.N.Y. 2001). Where "the change in position
would have resulted in a significant change in duties and could
potentially lead to increased opportunities for advancement," courts have
held a failure to transfer to constitute an adverse employment action.
Belch v. Jefferson County, 108 F. Supp.2d 143, 154 (N.D.N.Y. 2000); see
also Meckenberg v. New York City Off Track Betting, 42 F. Supp.2d 359,
378 (S.D.N.Y. 1999). Here, however, plaintiff has made no allegation that
salaries, benefits or opportunities for advancement were greater in the
Las Vegas office. In fact, the undisputed evidence demonstrates that the
Las Vegas Account Executive position had a lower salary and was
organizationally a step down from her current Sales Training Manager
position. (Def. Rule 56.1 Stmt. ¶ 8.) While we do not doubt plaintiffs
stated desire to return to Las Vegas, defendant's failure to transfer her
immediately to her prior Account Executive position in December 1999 does
not constitute an adverse employment action. See Nonnenman, 174 F. Supp.
2d at 133 ("I have found no case in which denial of a request for a
purely lateral transfer was found to constitute an adverse employment
action."); Duncan v. Shalala, No. 97 Civ. 3607, 2000 WL 1772655, at 4
(E.D.N Y Nov. 29, 2000) (holding that the denial of a transfer request so
that an employee could live near his wife was not an adverse employment
action although "the difference in location is certainly of tantamount
[sic] importance to Plaintiff"). Moreover, plaintiffs claim is further
undermined by the fact that, upon returning from her disability in July
2000, defendant offered plaintiff a lateral transfer to a choice of two
positions in the Las Vegas office. (Def. Rule 56.1 Stmt. ¶ 64.) As a
result, defendant's motion for summary judgment is granted with respect
to plaintiffs failure to transfer claim.
Plaintiffs claim that defendant failed to create a management position
in November 1999 is likewise flawed. Without some evidence "that an
employer intended to create a position but then did not because the
applicant was [a member of a protected class]," the failure to create a
position for a disgruntled employee does not rise to the level of an
adverse employment action. Brooks v. Hevesi, No. 95 Civ. 3209, 1998 WL
32712, at 2n.2 (S.D.N.Y. Jan. 29, 1998); see also Barakat v. Taco Bell,
Inc., 970 F. Supp. 634, 638 (N.D. Ill. 1997) (granting summary judgment
failure to promote claim where the defendant "decided not to
create the position . . . [and the] [p]laintiff [did] not provide any
evidence that this decision was made to keep employees of his racial,
ethnic, or religious background out of upper management"). Here,
plaintiff offers no evidence suggesting that the decision not to create a
position for plaintiff in Las Vegas was motivated by anything other than
routine budgetary constraints. Thus, plaintiff has utterly failed to
demonstrate that she was the victim of an adverse employment action that
was the product of discriminatory intent. As a result, summary judgment
must be granted in favor of defendant with respect to this issue.
III. Motion For Rule 56 Discovery
FED. R. CIV. P. 56(f) provides that:
[s]hould it appear from the affidavits of a party
opposing the motion that the party cannot for
reasons stated present by affidavit facts essential
to justify the party's opposition, the court may
refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just.
In spite of the fact that discovery has been extended twice at plaintiffs
request, plaintiff contends that this Court should deny defendant's
motion in order to permit further discovery. Plaintiff maintains that the
affidavit of Alecia Warren-Barnes, in which she alleges, inter alia, that
McCormick discriminated against her on the basis of race and sex, raises
"critical factual issues" that require further discovery. (Pl. Mem. Opp.
Summ. J. at 6.) Specifically, plaintiff argues that she should be
permitted to: (1) examine McCormick's entire personnel file to determine
the number and extent of discriminatory complaints levied against him;
(2) examine "all evaluations, environmental surveys, and other data
generated out of the Las Vegas office from 1997 to the (sic) 2000 . . .
in order to shed light on this alleged pattern of discrimination by Tom
McCormick;" (3) reopen McCormick's deposition "so he may be questioned
about his work record with [defendant] as it relates to this alleged
pattern of discrimination;" and (4) depose Steven Fuel and Wanda Mae, both
identified in the Warren-Barnes affidavit. (Id.)
To successfully oppose a motion for summary judgment on the basis of
Rule 56(f), a party must "submit an affidavit explaining, among other
things, what facts are sought and how they are to be obtained; . . . what
efforts the affiant has made to obtain those facts; and . . . why those
efforts were unsuccessful." National Union Fire Ins. Co. of Pittsburgh
v. Stroh Cos., 265 F.3d 97, 117 (2d Cir. 2001) (citations and quotations
omitted). Even if the Rule 56(f) motion is properly supported, a court
may refuse additional discovery "if it deems the request to be based on
speculation as to what potentially could be discovered." Paddington
Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).
Here, plaintiff has failed to comply with the requirements of Rule
56(f) as she has not submitted any affidavit explaining the need for
additional discovery. Even if plaintiff had submitted such an affidavit,
she has completely failed to set forth what efforts have been made to
obtain the requested discovery and to explicate why those efforts were
unsuccessful. Plaintiff initially deposed McCormick on October 16, 2001,
during which deposition McCormick identified Warren-Barnes as an
individual who had accused him of race discrimination. Nonetheless,
rather than depose Warren-Barnes at that time, plaintiff waited until
after her time to respond to the instant motion had lapsed before
requesting, and receiving, an extension of time from this Court to oppose
the motion. Included among plaintiffs belated opposition papers was the
Warren-Barnes affidavit. Plaintiff erroneously seeks to use that
affidavit as a justification for further discovery that could have been
obtained earlier. However, even if we were to permit additional
discovery, the discovery plaintiff requests would not impact this Court's
conclusions that plaintiff was unqualified for the Account Manager,
District Manager III and District Manager II positions, and that
defendant's alleged failure to transfer plaintiff laterally or to create
a new Las Vegas position for her were not adverse employment actions.
Accordingly, because plaintiff has failed to comply with the procedural
requirements of Rule 56(f) and because the requested additional discovery
would have no impact on this Court's decision, the Rule 56(f) motion is
For the reasons stated above, we grant defendant's motion for summary
judgment and deny plaintiffs Rule 56(f) motion for additional discovery.
The action is dismissed with prejudice.