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WILLIAMS-VELASQUEZ v. GUARDIAN LIFE INSURANCE

United States District Court, Southern District of New York


August 29, 2003

DEBORAH R. WILLIAMS-VELASQUEZ, PLAINTIFF,
v.
GUARDIAN LIFE INSURANCE CO., TIMOTHY ENGLISH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, STEVEN TOBY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND SANDY HERMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS

The opinion of the court was delivered by: Laura Taylor Swain, District Judge [ Page 2]

OPINION AND ORDER

Defendants in this employment discrimination case move for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing Plaintiff's claims and for an order awarding Defendants their costs and attorneys' fees. Plaintiff asserts that Defendants violated Title VII of the Civil Rights Acts of 1964, as amended ("Title VII"), 42 U.S.C.A. sections 2000e-2 and 2000e-3 (West 1994), the Americans with Disabilities Act of 1990, as amended (the "ADA"), 42 U.S.C.A. section 12112 (West 1995), 42 U.S.C. § 1981 ("section 1981"), and Section 296 of the New York Executive Law in connection with denials of promotions and the terms and conditions of her employment. Plaintiff has also asserted claims of breach of contract, promissory estoppel, and intentional infliction of emotional distress. Plaintiff cross-moves for summary judgment on her contract and estoppel claims. The Court has subject matter jurisdiction of Plaintiff's Title VII, ADA, and section 1981 claims pursuant to 28 U.S.C. § 1331, and of the state law claims pursuant to 28 U.S.C. § 1367.

The Court has considered thoroughly all submissions in connection with the instant motions. For the following reasons, Plaintiff's motion is denied, and Defendants' motion is granted in part and denied in part.

Background

The following facts are undisputed unless characterized otherwise. Plaintiff Deborah Williams-Velasquez ("Plaintiff" or "Williams"), a black woman born in Grenada, West Indies, began her employment with defendant The Guardian Life Insurance Co. ("Guardian") in 1981 as a Group Issue Reviewer in the Group Issue Department at "Grade 3" level. (Pl.'s Aff. ¶ 3; Defs.' Local Rule 56.1 Statement ("DR56.1") ¶ 10.) Guardian is a mutual insurance company that provides various financial services to individual and institutional clients. (DR56.1 ¶ 4.) In May [ Page 3]

1987, Plaintiff joined Guardian's Group Contracts Department as a Junior Contract Consultant at a "Grade 7" level. (Pl.'s Aff. ¶ 4.) Plaintiff's responsibilities involved reviewing insurance policies for compliance with relevant state law, drafting proposed contract language for submission to state insurance departments, and developing computer language for approved insurance forms. (Pl.'s Local Rule 56.1 Statement ("PR56.1") at 10-11.)

1991 Promotion

Plaintiff began working with Defendant Steven Toby ("Toby") when she joined Group Contracts in 1987. In 1990, Toby became the supervisor of Group Contracts, making him Williams' supervisor as well. (PR56.1 at 5 and evidence cited therein.) Toby became manager of Group Contracts in 1991. Id. In 1991, Linda Ilkowitz, a white woman, was the Assistant Vice President in Charge of Group Contracts and Jack David was the departing manager. (DR56.1 ¶ 17.) When Toby was promoted to Manager, Sharon Wayne, a white woman, was promoted to the Group Contracts supervisor position. Id. ¶¶ 17-18.

At the time of Wayne's promotion to supervisor, she had been working in Group Contracts for one year. Id. ¶ 19. Williams had been working in Group Contracts for four years. Familiarity with Guardian products was a factor in evaluating employees for promotions. (PR56.1 at 33-34 and evidence cited therein.) Prior to being employed at Guardian, Wayne had supervisory and training experience. (Id. and evidence cited therein.)

Defendants assert that Ilkowitz and David made the decision to promote Wayne to supervisor. (DR56.1 ¶ 18.) Plaintiff contends that Toby made the decision, and that in doing so Toby failed to "do a direct comparison of how each person lined up with each person." (PR56.1 at 33-34 and evidence cited therein, quoting Toby Dep., Ex. E to Cerasia Aff., at 42.) [ Page 4]

Williams received a 6.2% pay increase in 1991, and pay increases in 1992, 1994, 1995, 1996, 1997, and 1998. (DR56.1 ¶ 11.) In 1993, Williams was promoted to Senior Contract Analyst Grade 13, and in 1994 she was promoted to Advanced Contract Analyst Grade 14. Id. Williams had requested both promotions. (Williams Dep., Ex. A to Cerasia Aff., at 46.) Grade 14 was the highest grade level available for an Advanced Contract Analyst. (DR56.1 ¶ 11.) Williams consistently received positive performance reviews during her time at Guardian. (Id. ¶ 12.)

1995 Promotion

In July 1995, Ilkowitz left Group Contracts to join Guardian's legal department. (DR56.1 ¶ 22.) In October 1995, Defendant Timothy English ("English") replaced Linda Ilkowitz as Assistant Vice President for Group Contracts. (Id. ¶ 5.) Prior to 1995, English did not have any managerial relationship to Williams. Id. Before Ilkowitz left Group Contracts, she recommended that Toby be promoted from Manager to Director of Group Contracts, an officer-level position that did not involve any changes in his job duties. (Id. ¶¶ 22-23.) On July 1, 1995, Toby became Director of Group Contracts. (Id. ¶ 6.)

At all times relevant to this case, Defendant Sandy Herman ("Herman") was the Vice President of Group Pricing and Standards for Guardian; Group Contracts was one of the departments that reported to Herman. (Id. ¶ 7.) Williams had an "excellent working relationship" with Toby, a good working relationship with English, and there was no animosity between Williams and Herman. (Williams Dep. at 77, 102).

Concurrently with Toby's promotion to Director, Terry Fedenczak-Bober ("Fedenczak-Bober"), a white female, was promoted from Manager to Director of the Document Automation Department, another department that reported to English and Herman. (DR56.1 ¶ 24.) [ Page 5]

Before leaving her Vice President position, Ilkowitz recommended that Wayne and Anton Tibbe ("Tibbe") be promoted to the Manager positions vacated by Toby and Fedenczak-Bober. Id. After Toby and Fedenczak-Bober were promoted to Director, their Manager positions were eliminated by Guardian's Product Improvement Department ("PIP"). (Id. ¶ 26.) PIP, a department separate from Human Resources, monitored, maintained, and recommended appropriate organizational structure and staffing levels within Guardian. Id. Eliminating the Manager positions was a condition of the promotion of Toby and Fedenczak-Bober to Director, in order to avoid having a single supervisor who reported to a single manager who in turn reported to a single director, a structure Guardian refers to as a "single line reporting system." (Herman Dep., Ex. F to Cerasia Aff., at 46-48; DR56.1 ¶ 30 and evidence cited therein.)

In 1995 when Toby first learned that he was to be promoted to Director, he believed that Wayne would be promoted to Manager, opening the Supervisor of Group Contracts position for Williams. (Toby Dep. at 58-60.) Plaintiff asserts that in April or May 1995, after informing her of his and Wayne's upcoming promotions, Toby said to Williams, "I would like to offer you the position of supervisor in the department." (Williams Dep. at 70.) Defendants claim that Toby merely told Williams that he would recommend her for the Supervisor position. (DR56.1 ¶ 35 and evidence cited therein.) Toby believed that Williams was the best candidate for Supervisor. (Id. ¶ 36.) Williams testified at her deposition that, from time to time in 1995, Toby would update her on the progress of her promotion paperwork by telling her "[the papers] were on Sandy's desk," or "[the papers] were on Jack Palotta's desk." (Williams Dep. at 75.) Williams believed that her promotion papers were being processed and that it was just a question of "when [the papers] would be signed off." Id. [ Page 6]

Toward the end of 1995, Wayne took maternity leave, and Toby asked Williams to assume some of Wayne's duties, including supervising the work of other employees. (Toby Dep. at 76-78.) Williams testified at deposition that, when Toby approached her about handling Wayne's duties, he told her: "If you do this for me and if by the time your promotion is due — if by the time your review is due, your promotion has not yet gone through, I will take care of you." (Williams Dep. at 76.)

In the fall of 1995, Jack Palotta, then Senior Vice President of Group Insurance and Herman's superior, asked English for his input on the proposed promotions of Wayne and Tibbe from Supervisor to Manager in their respective departments. (DR56.1 ¶ 27.) English agreed with Ilkowitz's recommendations regarding Wayne and Tibbe, but in order to complete their promotions, the eliminated Manager positions had to be reestablished. (Id. ¶¶ 30.) Wayne and Tibbe's promotions received final approval in April 1996. A condition of their promotion, and of the reinstatement of the Manager positions, was the elimination of the Supervisor positions they had occupied. (DR56.1 ¶ 30.) Supervisor positions were eliminated in Group Contracts, Document Automation, and Group Pricing and Standards, and those positions have never been reinstated. (Id. ¶¶ 31, 34.)

After Wayne's promotion was announced in the spring of 1996, Williams grew concerned about her own promotion and asked Toby about it. Toby told her not to worry about it, "Tim is working on it. Now that Sharon's promotion has gone through, Tim is working on getting yours through." (PR56.1 at 58 and evidence cited therein.)

In 1995, Guardian began to review staffing and promotions within a smaller budget. (DR56.1 ¶ 40.) In 1996, Guardian engaged in the Process and Cost Transformation initiative, [ Page 7]

known as "PACT," which included a revamping of Guardian's Group division and a re-evaluation of all positions in Group Contracts. (Id.) Defendants submit that PACT had no direct impact on the elimination of the Supervisor position, but that department heads maintained a hiring freeze and were focused on reducing expenses during 1995-1996. (Id.) Plaintiff maintains that the hiring freeze only halted the hiring of employees from outside the company, and that the phase of PACT that was to affect Group Contracts was never implemented. (PR56.1 at 59 and evidence cited therein.)

The July 1996 Mortgage Letter

In July 1996, Williams asked Toby on two separate occasions to write a letter to her mortgage company to help Plaintiff and her husband get a mortgage. (DR56.1 ¶ 41 and evidence cited therein.) Defendants contend that Williams specifically requested a letter mentioning that she was to be promoted to supervisor within one month, and that the promotion would involve a pay increase. Id. Plaintiff asserts that she asked Toby to put in writing the promises he had been making to her. (PR56.1 at 62.) After the first request, Toby informed Williams that he would have to speak with English before writing the letter. (Id.) On or about July 12, 1996, Toby wrote a letter on Guardian stationery to National Standard Mortgage, stating in part that "Ms. Williams has been a valued employee in my Department for many years. She is due an annual raise of $2182.80, which will take effect on August 1, 1996. An additional promotional increase of $2112.00 will take effect on September 1, 1996." (Ex. A to Compl.)

Defendants assert that Toby did not inform English about the letter, and that none of Toby's supervisors reviewed the letter. (DR56.1 ¶ 46.) Defendants further assert that Toby's only purpose in writing the July 12, 1996, letter was to assist Williams in obtaining a mortgage, although [ Page 8]

they concede that, when Toby wrote the letter, he was unaware that the Supervisor job had been eliminated, and he still expected Williams to be promoted to Supervisor. (Id. ¶¶ 43, 47.) Toby did not learn that the Supervisor position had been eliminated until the Summer of 1998. (Id. ¶ 49.)

Throughout the duration of her employment with Guardian, Plaintiff did not apply for any positions outside the company, and she applied for only one other position within the company, a "Product Supervisor" position, in 1997. (Id. ¶ 48; PR56.1 at 67-68.)

1997 Product Supervisor Position

In July 1997, Mickey Schreiber ("Schreiber"), a Grade 16 analyst in the Group Pensions Department, was transferred on the recommendation of Herman to Group Contracts as a Grade 16 Product Supervisor. (DR56.1 ¶ 51.) Defendants contend that Guardian's hiring freeze did not apply to intra-company transfers, and characterize the transfer as a "lateral move." (Id.)

Plaintiff asserts that Schreiber's transfer to the Product Supervisor position violated Guardian personnel policy. (PR56.1 at 70-71.) Specifically, Plaintiff contends that the position was never posted, and that English did not interview any applicants other than Schreiber for the position. (Id.)

Ray Rickenbaugh ("Rickenbaugh"), a Grade 14 Advanced Contract Analyst in Group Contracts, also received a Grade 16 Product Supervisor position. (PR56.1 at 73.) Defendants assert that Rickenbaugh was the "most important employee" in Group Contracts, and that the second Product Supervisor position was created in order to retain him. (DR56.1 ¶¶ 52-54.) Rickenbaugh had informed Group Contracts' management that he was contemplating leaving Guardian. (Id. ¶ 53.) Furthermore, Toby and English thought that it would be unfair to give Schreiber a higher grade-level position within Group Contracts than Rickenbaugh's with a similar [ Page 9]

job description. (Id. ¶ 52.)

Guardian's Human Resources department instructed Group Contracts management to post the second Product Supervisor position and open it up to Group Contracts employees. (Id. ¶ 56.) In July 1997, both Rickenbaugh and Williams applied for the second Product Supervisor position. (Id. ¶ 59.) Defendants assert that the qualifications for the position included knowledge of group variable life insurance and a college degree, and that Williams lacked such qualifications. (Id. ¶¶ 59, 61.)

Plaintiff disputes that the listed qualifications for the position were legitimate; instead, she contends that the qualifications were written to match Rickenbaugh's qualifications and work experience because the Defendants never intended to give the second Product Supervisor position to anyone other than Rickenbaugh. (PR56.1 at 87.)

Herman did not know that Williams was receiving kidney dialysis treatments at the time the Product Supervisor positions were created in Group Contracts in 1997.*fn1 (DR56.1 ¶ 68.)

William's Work Space

In February 1998, Williams asked Toby for a larger cubicle because of the limited filing space in her assigned cubicle. (PR56.1 at 96.) Plaintiff also wanted a different work space because the cubicle next to Plaintiff's had been occupied by a co-worker of Williams' who had passed away. (Id. at 103.) Toby informed Plaintiff that English was responsible for cubicle allocation decisions. (Id. at 96.) Neither English nor Toby responded to her request for two or three months. (Id.) In May 1998, English moved Eric Dischinger, a contracts analyst in Group [ Page 10]

Contracts who had been with Guardian for three years, to a larger cubicle. (DR56.1 ¶ 72.) Defendants assert that English moved Dischinger because Dischinger needed the larger space for meetings held at his cubicle (whereas Williams did not hold meetings), and because Dischinger was considering leaving Group Contracts. (Id.) Plaintiff contends that she also held meetings in her cubicle. (PR56.1 at 98.)

Defendants assert that cubicle assignment did not depend to any degree on employee seniority; Plaintiff contends that seniority was a factor in work space allocations. (DR56.1 ¶ 74; PR56.1 at 102.)

In May 1998, English also moved Sharon Huffman ("Huffman"), a black female employee, into a larger cubicle. (DR56.1 ¶ 73.) Plaintiff submits that Huffman had made repeated requests to English before he agreed to the move. (PR56.1 at 101.)

By interoffice memorandum dated May 13, 1998, which Williams sent to Toby with a copy to English, Plaintiff explained that she found her cubicle situation and the delay in her promised promotion to Supervisor "extremely disturbing." (Id. at 106.) Toby did not respond to the memorandum until May 19, 1998, at which time he informed Williams that English was on vacation and that they would meet about her complaints the following week. (Id. at 107.) Williams was not contacted for the next two weeks. (Id.) In the interim, she engaged an attorney. At her direction, the attorney wrote a letter, dated June 9, 1998, to Guardian about her complaints. (Id.) When Toby did contact Williams to arrange a meeting about her complaints, she asked him to speak to her attorney. (Id.)

Defendants contend that Herman was neither aware of nor involved with work-space assignments in Group Contracts, and that he never saw Plaintiff's May 13, 1998, memorandum. [ Page 11]

(DR56.1 ¶¶ 77, 79.) Plaintiff asserts that Herman did know about her complaints and that he directed English to "do something about" Williams' cubicle assignment. (PR56.1 at 106.)

Williams' Work Assignments

In 1996, Williams began dialysis, receiving treatments three times a week. (PR56.1 at 109) English and Toby permitted Plaintiff to leave work early for her treatment. (DR56.1 ¶ 80.) Defendants contend that, after beginning dialysis, Williams continued to receive important work assignments from Toby on the basis of her experience and expertise. (Id. ¶ 82.) Plaintiff asserts that, after she began dialysis, she only received assignments to the same types of projects that she had been working on before, primarily those dealing with the Health Insurance Portability and Accountability Act ("HIPAA"), despite repeated requests for assignments to "new" and "challenging" products. (PR56.1 at 111; DR56.1 ¶ 82.) Herman and English did not assign work to Williams. (DR56.1 ¶ 82.)

Plaintiff does not assert that any race-, national origin-, gender-, or disability-related comments were ever made to or about her during her employment at Guardian. (PR56.1 at 126.)

On October 9, 1998, Williams filed charges of discrimination against Guardian with the EEOC. (Compl. ¶ 12.) Williams was on short-term disability from January 11, 1999 through February 16, 2000. (Williams Dep. at 13.) Since that time, she has been collecting long-term disability ("LTD") and Social Security Disability Insurance ("SSDI") benefits. (Id.. at 13-14; Exs. 19, 20 to Williams Dep.) On her LTD forms, Williams declared under penalty of perjury that she was "totally disabled." (Ex. 20 to Williams Dep. at 446.) On her SSDI application, Williams declared under penalty of perjury that she "became unable to work because of [her] disability on January 11, 1999" and that she is "still disabled." (SSDI Application, Ex. C to Affidavit of Edward [ Page 12]

Cerasia II, Esq. ("Cerasia Aff."); Williams Dep. at 13.)

Williams commenced the instant action on February 1, 1999.

Discussion

Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In the summary judgment context, a fact is material "if it might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal citation omitted).

In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.
Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (internal quotation marks omitted). The Second Circuit has emphasized that district courts should exercise caution in granting summary judgment in discrimination cases where the employer's intent is at issue "and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). [ Page 13]

Plaintiff's Discrimination Claims

Plaintiff asserts various claims of discrimination on the basis of race, national origin, gender, and disability, under Title VII, section 1981, the ADA, and the New York Human Rights Law (the "HRL"), as well as claims for retaliation. The Court analyzes all of these claims under the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Scaria v. Rubin, 117 F.3d 652, 653-654 (2d Cir. 1997) (applying McDonnell Douglas framework in Title VII context); Martin v. Citibank, N.A., 762 F.2d 212, 216-217 (2d Cir. 1985) (section 1981); Sarno v. Douglas Elliman-Gibbons & Ives Inc., 183 F.3d 155, 159 (2d Cir. 1999) (ADA); Norville v. Staten Island University Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (HRL); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-769 (2d Cir. 1998) (retaliation).

Under the McDonnell Douglas burden-shifting analysis, Plaintiff first must show a prima facie case of discrimination or retaliation. Scaria v. Rubin, 117 F.3d at 653; Quinn v. Green Tree Credit Corp., 159 F.3d at 768. The burden of production then shifts to Defendants to articulate legitimate, nondiscriminatory reasons for the challenged actions. If Defendants meet their burden of production, the presumption of discrimination or retaliation raised by Plaintiff's prima facie case disappears, and the "sole remaining issue" is whether Defendants intentionally discriminated or retaliated against Plaintiff. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

For the case to continue, the plaintiff must then come forward with evidence that the defendant's proffered, non — discriminatory reason is a mere pretext for actual discrimination. The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action. [ Page 14]
Weinstock v. Columbia University, 224 F.3d 33, 44 (2d Cir. 2000) (internal quotation marks and brackets omitted).

Title VII and ADA Claims Against Individual Defendants

Plaintiff asserts her Title VII and ADA claims against Toby, Herman, and English in their official and individual capacities. Title VII and the ADA do not impose liability on individuals. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) ("individuals are not subject to liability under Title VII"); Briggs v. New York State Dept. of Transp., 233 F. Supp.2d 367, 373 (N.D.N.Y. 2002) (recognizing and collecting cases for proposition that "there is no individual liability under the ADA"). Furthermore, Title VII and the ADA do not provide for suits against individuals in their official capacity where, as here, the employer entity can be named as a defendant. See Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371 n. 2 (S.D.N.Y. 1999) ("individual supervisors are not liable . . . in their official capacity under Title VII"); Coddington v. Adelphi, 45 F. Supp.2d 211, 217 (E.D.N.Y. 1999) ("Official capacity lawsuits are appropriate in cases involving the naming of government officials. Where, as here, there is a private entity to name, there is no reason to allow a plaintiff to proceed [under the ADA] against an individual in his `official capacity.'") Accordingly, Plaintiff's Title VII and ADA claims against Toby, Herman, and English are dismissed.

Timeliness of Plaintiff's Claims

In New York State, Title VII and ADA claims are time-barred if a plaintiff does not file a charge with the EEOC within 300 days of the alleged unlawful employment practice. See Harris v. City of New York, 186 F.3d 243, 247-248 (2d Cir. 1999). Williams filed her EEOC charge on October 9, 1998; thus, the relevant limitations period for Plaintiff's Title VII and ADA [ Page 15]

claims begins December 13, 1997.

Plaintiff argues that the "continuing violation" doctrine applies to any of her claims that accrued prior to December 13, 1997. The continuing violation doctrine or exception "extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations." Quinn v. Green Tree Credit Corporation, 159 F.3d 759, 765 (2d Cir. 1998) (internal quotation marks and emphasis omitted). The Second Circuit has held that "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation," but that "a continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. at 766 (internal quotation marks omitted).

Plaintiff's argument must be evaluated in light of the Supreme Court's decision in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002). In Morgan, the Supreme Court explained that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire [each constitute] a separate actionable `unlawful employment practice.'" Id. at 114. The fact that certain claims may be related does not alter this principle. "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113. Moreover, although the Court did not address the timeliness of "pattern-or-practice" claims, it noted that "[t]here is simply no indication that the term `practice' converts related discrete acts into a single unlawful practice for the purposes of timely filing." Id. at 111. [ Page 16]

Plaintiff has offered no evidence that Defendants acted in furtherance of a specific policy in the allegedly discriminatory actions they took prior to December 1997. Likewise, Plaintiff has offered no evidence that Defendants permitted "specific and related instances of discrimination" to continue "unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). In Cornwell, the plaintiff presented evidence that her supervisors had known about the sexual harassment that the plaintiff experienced over a period of several years. Id. at 698-700. By contrast, Williams did not raise any complaints regarding discriminatory treatment with Defendants until May 13, 1998. In the absence of any evidence of a specific or de facto policy guiding Defendants' decisions, Plaintiff alleges at best a series of related, discrete acts. Morgan thus forecloses the application of the continuing violation exception to Plaintiff's claims. Cf. Glaser v. Fulton-Montgomery Community College, 50 Fed. Appx. 17, 20 (2d Cir. 2002) ("[t]he Supreme Court recently iterated that a failure to promote is considered a discrete act, to which the continuing violation doctrine does not apply").

Morgan does not, however, forbid the application of equitable doctrines such as tolling or estoppel. "Court may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly." National Railroad Passenger Corporation v. Morgan, 536 U.S. at 113. An employment discrimination limitations period may be tolled if an employer "actively misleads" the plaintiff-employee. Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 24 (2d Cir. 1985). Plaintiff did not learn until July 1998 that the Supervisor position promised her had been eliminated. Until that time Toby had still given her reason to believe that she would receive the promotion. Indeed, Defendants assert that Toby himself did not learn that the Supervisor position had been eliminated until the summer of 1998. (DR56.1 ¶ 49.) It was certainly reasonable for Williams to have relied on the knowledge of the Director of Group [ Page 17]

Contracts as to the presumed existence of the Supervisor position. The Court therefore treats the 300-day limitation period with respect to Plaintiff's Supervisor position claim as tolled through July 1998 and the claim is timely for that reason. Plaintiff's 1991 Title VII and 1997 Title VII and ADA failure-to-promote claims are dismissed as time-barred.

New York State's three-year statute of limitations applies to Plaintiff's claims under section 1981 and the HRL. Butts v. City of New York Dept. of Housing Preservation and Development, 990 F.2d 1397, 1412 (2d Cir. 1993); Murphy v. American Home Products Corporation, 58 N.Y.2d 293, 307 (1983). Plaintiff commenced this action on February 1, 1999; her section 1981 and HRL claims regarding the 1991 promotion are thus time-barred and must be dismissed.

Accordingly, the following claims are dismissed as time-barred:

1. Plaintiff's Title VII, section 1981, and HRL claims regarding the 1991 promotion;
2. Plaintiff's Title VII and ADA claims regarding the 1997 Product Supervisor position; and
3. Plaintiff's Title VII and ADA claims regarding work assignments prior to December 13, 1997.
Judicial Estoppel

Defendants argue that Plaintiff is barred by the doctrine of judicial estoppel from asserting her denial of promotion claims because she must have been qualified for the promotions she sought in order to prove her promotion claims, but she stated in her application for SSDI, dated August 12, 1999, that she "become unable to work because of [her] disabling condition on January 11, 1999." (SSDI Application, Ex. C to Cerasia Aff., at 1.) A party invoking judicial estoppel [ Page 18]

must show, in part, that "the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding." Mitchell v. Washingtonville Central School District, 190 F.3d 1, 6 (2d Cir. 1999). The promotions at issue occurred prior to January 1999, before Plaintiff asserted that she was no longer able to work. Accordingly, Defendants have not shown that Plaintiff's position in her SSDI application is inconsistent with the position taken in her failure-to-promote claims, and that she is thus estopped from asserting them. See also Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) (SSDI application does not automatically preclude ADA employment discrimination claim).

Plaintiff's Failure-to-Promote Claims*fn2

Plaintiff asserts that Defendants discriminated against her by failing to promote her to the Supervisor and Product Supervisor positions because of her race, national origin, gender, and disability. To establish a prima facie case for discriminatory failure to promote, Plaintiff must show that "(1) she is a member of a protected class, (2) she was qualified for the job for which she applied, (3) she was denied the job, and (4) the denial occurred under circumstances giving rise to an inference of discrimination [on a forbidden basis]." Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). The burden Plaintiff must meet to survive summary judgment at the prima facie stage is de minimis. Id.

Defendants contest only the second and fourth elements of Plaintiff's prima facie case with respect to each of the promotions at issue. [ Page 19]

Product Supervisor Position

Plaintiff has established her prima facie case for her race, national origin, gender, and disability discrimination claims with respect to the Product Supervisor promotion:*fn3 she is a member of the relevant protected classes, she was at least minimally qualified for the position, as reflected in her years of experience in Group Contracts and her positive performance evaluations,*fn4 and individuals outside of the protected classes of which she is a member received the Product Supervisor positions, namely, a white, non-disabled American-born male, and a white, American-born female. See Velez v. Project Renewal, 2003 WL 402500, *3 (S.D.N.Y. 2003) (inference of discriminatory intent can be drawn where employees not in plaintiff's protected group are treated more favorably than members of protected group).

Defendants explain that the Grade 16 Product Supervisor position was created initially for Schreiber, who was already a Grade 16 analyst highly valued by Herman, in order to provide her with a transfer, which she desired, and to provide Group Contracts with another analyst during a hiring freeze. (DR56.1 ¶ 51.) Defendants characterize Schreiber's transfer to a Product Supervisor position as a "lateral move," not a promotion, and assert that no other employees were considered for Schreiber's position. (Id. ¶ 63.) Defendants justify the decision to create another Grade 16 Product Supervisor position for Rickenbaugh on the ground that bringing Schreiber into Group Contracts at a higher level than Rickenbaugh, when she would be performing the same tasks [ Page 20]

as Rickenbaugh, would have been unfair. (Id. ¶ 52.) Furthermore, Defendants assert that English and Toby considered Rickenbaugh the most important employee in the department, and that English wanted to create another Grade 16 Product Supervisor position "with Rickenbaugh in mind" both to reward Rickenbaugh and to entice him to remain at Guardian. (Id. ¶¶ 53-55.) Defendants also explain the decision not to promote Williams by identifying several qualifications they claim the Product Supervisor position required and that Williams lacked, such as a college degree and experience with group variable life insurance products. (DR56.1 ¶ 61.)

Plaintiff attempts to discredit Defendants' rationale for not promoting Williams by presenting evidence that the Product Supervisor job description identified by Defendants did not constitute a list of objective requirements for the position, but had been created to match the job description of Rickenbaugh (a white male), to ensure that he received the promotion. Plaintiff has pointed, for example, to the deposition testimony of Steven Toby that creating the second Product Supervisor position "was [English's idea] to keep Ray happy for a longer period of time by establishing this position which really met what he was doing any way [sic]." (Toby Dep. at 106.) Although Toby could not remember at his deposition the exact duration of his interview of Williams for the position, he believed it had taken less than ten minutes. (Id. at 104.) When asked whether he thought Williams would have needed additional product experience in order to become a Product Supervisor Toby replied, "The [second product supervisor] slot was designed to fit Ray, so I never really thought about it." (Id. 115.)

Plaintiff's evidence, however, does not contradict the explanation offered by Defendants, namely, that they thought Rickenbaugh was the top employee in Group Contracts and they did not want to risk losing him by paying Schreiber more than him to do the same job. Toby's [ Page 21]

deposition testimony about the creation of the second Product Supervisor position does support an inference that Defendants' explanation that Williams failed to meet certain qualifications for the position is disingenuous and that Defendants intended to give Rickenbaugh the position all along. But Plaintiff has failed to present any evidence that casts doubt on Defendants' other proffered reason for promoting Rickenbaugh, a reason independent of whether Williams' qualifications were reviewed in good faith: that Rickenbaugh was a favored employee because of his performance history. Cf. Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, *11 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997) ("`favoritism' based on proven performance is surely a valid reason for promotion"). Nor has Plaintiff presented any evidence that Schreiber was transferred to a Product Supervisor position for any other reason than to reward a valued employee with a transfer that would also benefit Group Contracts. Therefore, Plaintiff has not raised a material issue of fact as to whether Defendants' reasons for not promoting Williams are a pretext for unlawful discrimination. Defendants' motion is granted to the extent it seeks dismissal of Plaintiff's race, national origin, gender, and disability claims regarding the Product Supervisor promotion.

Supervisor Position

Plaintiff has established her prima facie case with respect to her claims that Defendants failed to promote her to the Group Contracts Supervisor position because of her race, national origin, gender, and disability. There is no dispute that she was qualified for the position and that white, American-born, non-disabled individuals in Group Contracts received promotions (albeit to positions other than Supervisor) at the time Plaintiff was to be promoted. The burden of production thus shifts to Defendants to articulate a legitimate, non-discriminatory reason for their decision not to promote Plaintiff. [ Page 22]

Defendants assert that Williams was not promoted to Supervisor because the Supervisor position was eliminated in 1996 in connection with the promotions of Toby from Manager to Director and Wayne from Supervisor to Manager of Group Contracts. (DR56.1 ¶ 30.) According to Defendants, Guardian's PIP had decided to eliminate the Supervisor position because it would not make "business sense" to have a single Supervisor reporting to a single Manager reporting to a single Director. (Id.) Toby promised Williams the Supervisor promotion before Toby was aware of PIP's elimination decision. (Id. ¶ 38.) Herman, English, and Toby worked to justify the reinstatement of the Manager position in order to promote Wayne, but PIP conditioned that reinstatement on the elimination of the Supervisor position so that a single-line reporting decision could still be avoided. (Id. ¶¶ 27, 30.) Supervisor positions were also eliminated in other departments. (Id. ¶¶ 33-34.)

Plaintiff does not dispute that PIP made the decision to eliminate the Supervisor position without knowledge of her promised promotion. Plaintiff argues, however, that the Supervisor position could have been reestablished if Herman and English had provided PIP with a business rationale for it, and thus that Defendants' rationale for denying her the promotion is pretextual. Plaintiff's evidence for pretext consists of the fact that the Manager position was reinstated after Herman and English's efforts, and the fact that Defendants created two new Grade 16 Product Supervisor positions in 1997. Plaintiff characterizes all of these promotions as having been motivated to some extent by a desire to reward the particular employees who were promoted. Plaintiff asserts that Defendants could similarly have created a position for Williams, and they failed to do so because of her race, national origin, and gender. [ Page 23]

Plaintiff's discrimination claims regarding the Supervisor position cannot survive summary judgment because she has presented no evidence that would allow a rational fact-finder to disbelieve Defendants' explanation for the elimination of the Supervisor position, and thus their decision not to promote Williams to Supervisor. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996) ("[i]n order to survive a motion for summary judgment . . . plaintiff must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false"). Nor has Plaintiff presented any evidence undermining the credibility of Defendants' explanation for why the Supervisor position was never recreated for Plaintiff. Plaintiff asserts repeatedly that Defendants could create any position they wanted to, but she offers no evidence of Defendants creating a position that would have entailed a return to single-line reporting. Williams does not dispute that Toby and Wayne's promotions did not involve a change in their duties, and Plaintiff herself argues that Rickenbaugh's position was created to match what he was already doing. Nor does Plaintiff deny that none of the eliminated Supervisor positions has ever been reestablished. Thus, Plaintiff has presented no evidence from which a jury could conclude that Defendants' proffered rationale for their refusal to recreate the Supervisor position for Plaintiff is a pretext for prohibited discrimination.

Plaintiff also appears to argue that she deserved some promotion, even if not to the eliminated Supervisor position. Plaintiff states a failure-to-promote claim, however, only to the extent she alleges that she was denied a specific position. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) (plaintiff must allege that she "applied for a specific position or positions and was rejected therefrom"). Accordingly, Defendants' motion is granted to the extent it seeks dismissal of Plaintiff's discrimination claims regarding the Supervisor position. [ Page 24]

Williams' Work Space Claims

Williams argues that her request for a larger cubicle was denied because of her race, national origin, gender, and disability. (PR56.1 at 98.) She further alleges that Defendants continued to deny her request to change cubicles after she sent her May 13, 1998, memorandum complaining about her work space and the promised Supervisor promotion. Plaintiff has not established a prima facie case of discrimination or retaliation with respect to her work space, because she has not shown that she suffered a legally cognizable adverse employment action in connection with her cubicle assignment. See Galabya v. New York City Board of Education, 202 F.3d 636, 639 (2d Cir. 2000) (to establish prima facie case of discrimination plaintiff must show an adverse employment action); Quinn v. Green Tree Credit Corporation, 159 F.3d at 769 (plaintiff must show adverse employment action to establish prima facie case of retaliation).

The Second Circuit has explained that a plaintiff "sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. New York City Board of Education, 202 F.3d at 640 (internal quotation marks omitted). In Galabya, the plaintiff, who had taught special education classes for fourteen years, was reassigned to teach keyboarding at a different school with undisputedly inferior facilities. Teachers at the school to which the plaintiff was reassigned lacked their own classrooms, desks, and closets. Id. at 639. The Second Circuit upheld summary judgment dismissing the plaintiff's case because plaintiff had not "produced evidence to show that the transfer was to an assignment materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement," and had thus failed "to create a genuine issue of material fact on the issue of whether his reassignment . . . was an adverse employment action." Id. at 641. [ Page 25]

Plaintiff here asserts that her cubicle was too small because of its limited space for filing. (PR56.1 at 96.) She also contends that she held meetings in her cubicle. (Id. at 98.) Plaintiff has presented no evidence that the size of her cubicle materially limited her ability to perform her required tasks, or that a larger space would have been more suited to her skills in any respect other than size. Nor does Plaintiff offer any evidence as to the size differential between the available cubicles and her own. Plaintiff has therefore failed to identify a genuine issue of material fact as to whether she suffered an adverse employment action in connection with her work space assignment, and Defendants' motion is granted to the extent it seeks dismissal of Plaintiff's discrimination and retaliation claims regarding work space.

Williams' Work Assignment Claims*fn5

Plaintiff argues that, after she began dialysis in 1996, she no longer received assignments to work on new types of insurance products despite repeated requests for such assignments. She further asserts that, after her attorney sent the June 9, 1998, letter to Guardian, she did not receive any work assignments other than HIPAA and projects that had been assigned to an analyst that left Guardian. (Williams Dep. at 210.) Williams has thus established a prima facie case with respect to her discrimination and retaliation claims relating to her work assignments.

Defendants contend that Toby assigned Williams "high priority" projects on the basis of her experience and expertise, and that her assignments were not altered after Williams began dialysis or after Guardian received her lawyer's June 1998 letter. (DR56.1 ¶¶ 82, 84.) Williams' area of expertise, the parties agree, was medical products, especially HIPAA. (Id. ¶ 82; [ Page 26]

PR56.1 at 111.) Plaintiff contends that the consistency explanation is pretextual for discrimination and retaliation because the HIPAA project was near completion in 1998 and thus was no longer a "high priority" project. (PR56.1 at 114-115.) Even assuming that the HIPAA project was near completion in 1998, Plaintiff offers no evidence as to its reduced importance to Defendants at that time, and she does not dispute its significance prior to 1998.

Williams has offered no evidence that projects in Group Contracts were assigned on any basis other than an analyst's experience and expertise. Plaintiff has not presented evidence from which a jury could conclude that Defendants' work assignment criteria are "so lacking in merit as to call into question [their] genuineness." Dister v. The Continental Group, 859 F.2d 1108, 1116 (2d Cir. 1988). Accordingly, Defendants' motion is granted to the extent it requests dismissal of Plaintiff's discrimination and retaliation claims relating to her work assignments.

Plaintiff's Remaining State Law Claims

Having dismissed all of Plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) (3) over Plaintiff's state law claims for breach of contract, promissory estoppel, and intentional infliction of emotional distress. Accordingly, Plaintiff's motion for summary judgment on her contract and promissory estoppel claims is denied, and Defendants' motion is granted to the extent that Plaintiff's breach of contract, promissory estoppel, and intentional infliction of emotional distress claims are dismissed without prejudice. [ Page 27]

Conclusion

For the foregoing reasons, Plaintiff's motion for summary judgment is denied, and Defendants' motion is granted to the extent that the Complaint is hereby dismissed. Plaintiff's discrimination claims are dismissed with prejudice, and Plaintiff's breach of contract, promissory estoppel, and intentional infliction of emotional distress claims are dismissed without prejudice. Defendants' motion is denied to the extent it seeks an award of costs and attorneys' fees, because Defendants have not shown that Plaintiff's claims are unreasonable or frivolous. See Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976).

SO ORDERED.


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