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December 31, 2003.


The opinion of the court was delivered by: BARBARA JONES, District Judge



Plaintiff, Christine E. Hayles, instituted suit against (1) her employer, Advanced Travel Management Corporation ("ATM") and its related entities, (2) Michael Share, the Chairman and CEO of ATM and a managing partner, (3) Christopher Magee, the President and COO of ATM and a managing partner, (4) Jeanne M. Colachico, an attorney hired by ATM to conduct an in-house investigation, and (5) Morgan, Brown & Joy, LLP ("Morgan Brown"), a law firm retained by ATM.

  Plaintiff asserts several employment-related claims, including an ERISA claim for unpaid severance benefits, a retaliation claim under the FMLA, and a Title VII claim of racial discrimination, as well as claims of assault and negligent and intentional infliction of emotional distress stemming from an incident that occurred between Plaintiff and ATM's president. For the reasons given below, the Court grants summary judgment to the Defendants on all counts except for Plaintiff's assault claim.


  The following are the undisputed facts of the case except where otherwise noted.

 1. Plaintiff's Alleged "Constructive Termination"

  Plaintiff was employed by ATM from January 3, 1997 until August 24, 2001, when, according to Plaintiff, she was "constructively terminated." (Plaintiff's Amended Complaint ("Am. Compl.") ¶ 2). Plaintiff was hired originally as an administrative assistant to Share, but was promoted to the position of Director of Human Resources. (Id.; Id. ¶ 13; Defendants' Rule 56.1(a) Statement of Facts, dated June 28, 2002 ("Defs' 56.1 Statement") ¶ 4). In this capacity, Plaintiff was responsible for ATM's employee benefits programs, compliance with state and federal employment laws and regulations and administration of ATM's employment policies. (Am. Compl. ¶ 14). Plaintiff also had access to the administrative records of ATM's employees, which numbered over 250 people. (Id. ¶ 15). Prior to April 2000, Plaintiff reported directly to ATM's owners, Frank Kogen and Michael Share. (Id. ¶ 16). In or about March 2000, ATM hired Christopher Magee as President and COO, and as of that time, Plaintiff reported directly to Magee. (Id. ¶¶ 17, 19).

  Plaintiff contends that, coincident with Magee's hiring, Plaintiff's "already heavy" workload began to "increase markedly." (Id. ¶ 20). Plaintiff did not have any staff assistance, and alleges that her repeated requests for permission to hire additional staff were denied. (Id. ¶ 21).

  On August 21, 2001, ATM employee Michelle McCauley told Magee about a conversation she had with another employee, Joseph Giannadeo. In that conversation, Giannadeo stated that Plaintiff told him that one of ATM's managing partners, Kogen, had HIV and cancer, and that a senior person in management would be terminated. (Giannadeo Dep. at 33-41, 59-64; Magee Dep. at 136-39). Magee called Giannadeo into his office for confirmation of the information, and Giannadeo repeated the same details of his alleged conversation with Plaintiff. (Giannadeo Dep. at 59-64; Magee Dep. at 114-117, 121-23). Magee then relayed this information to Share. (Magee Dep. at 117, 119).

  Later that day, Share called Plaintiff into his office and accused her of spreading rumors about Kogen and disclosing other confidential information that was entrusted to her as Director of Human Resources. (Id. ¶¶ 25-26). Plaintiff contends that she was extremely upset by these accusations and left the office physically ill. (Id. ¶ 29).

  The next day, Magee summoned Plaintiff to his office and repeated the same accusations. According to Plaintiff, Magee also "menaced [her] and shook his clenched fist at her." (Id. ¶ 30; see also Hayles Dep. I at 210-15).

  On August 24, 2001, Share telephoned Plaintiff while she was at work and again repeated the accusations that she circulated false rumors. He then informed her that he turned the matter over to ATM's attorneys for investigation. (Am. Compl. ¶ 33). Plaintiff left her office that day and never returned.

  On that same day, a doctor treating Plaintiff faxed a letter to ATM stating that she was medically unable to return to work because of her "severe anxiety/panic attacks."*fn1 (Id. ¶ 35; Declaration of Diane Saunders in Support of Defendants' Motion for Summary Judgment, dated June 28, 2002 ("Saunders Decl.") Ex. B). In response, ATM sent Plaintiff a letter, dated August 27, 2001, confirming receipt of the doctor's note, and enclosing "paperwork regarding [her] benefits for FMLA leave." (Id. Ex. C). Plaintiff completed and returned the forms. (Id. Ex. D).

  On September 6, 2001, counsel for Plaintiff*fn2 contacted counsel for ATM and stated that, due to Plaintiff's "extreme emotional distress inflicted, apparently with deliberation, by Mr. Magee and others at Advanced Travel," Plaintiff considered herself "constructive[ly] discharge [d]." (Affidavit of Daniel Boone, dated July 15, 2002 ("Boone Aff.") Ex. V).

 2. ATM's Investigation

  Approximately one week after the date that Plaintiff alleges she was "constructively terminated," she was contacted by Jeanne Colachico by phone and by email regarding ATM's investigation of her "performance as Human Resources Director." (Am. Compl. ¶ 40, Ex. C).*fn3 When Plaintiff's attorney inquired as to the details of the investigation, Colachico advised him that he should contact Jaclyn Kugell, an attorney at Morgan Brown, rather than her. (Am. Compl. ¶ 43, Ex. D; Boone Aff. Ex. W). Kugell confirmed that ATM was investigating Hayles, but declined to provide any further information. (Am. Compl. ¶¶ 37-44, Ex. F).

  The only additional information that Plaintiff supplies regarding ATM's investigation is that Colachico ultimately drafted a Final Report, and that an attorney at Morgan Brown "impound[ed] it." (Id. ¶ 45). Plaintiff nonetheless alleges that Colachico's and Morgan Brown's investigation were part of a "cynical scheme intended to manufacture a `pretext' or excuse to fire [her]."*fn4 (Id. ¶ 46).

 3. Plaintiff's Racial Allegations3

  Plaintiff alleges that her constructive termination was motivated, in part, by inappropriate considerations of race.*fn5 Plaintiff claims that since Magee's arrival, "all but one person of African descent have lost their jobs at [ATM]." (Id. ¶ 18). Plaintiff also asserts, based on "information and belief," that "no person of African descent has been hired by Advanced Travel since Magee's arrival." Defendants, on the other hand, provided documentary evidence that 17.72% of the employees hired after the date that Magee joined ATM were of African-American decent, and that an additional 10.2% were from other minority groups. (Saunders Decl. Ex. H); (see also Magee Dep. at 237-38; Share Dep. at 116-17).*fn6

  Plaintiff claims that Magee made several racist comments about her and other people. Magee referred to a male, African-American employee as the "black queen" after ending a call with him.*fn7 (Hayles Dep. I at 137-38). Magee also stated that "black women had the biggest asses," and called an ATM messenger a "spook" on one occasion. (Hayles Dep. II at 458-59). Plaintiff does not temporally place these comments. (Id. at 460). Another employee at ATM heard Magee call Plaintiff a "stupid black bitch" in May 2001 after getting off the phone with her. (Gollub Dep. at 58-59).

  Defendants Share and Kogen called Plaintiff "Big Black Jew" throughout her years of employment; but, according to Plaintiff, called her this in a joking manner. (Hayles Dep. I at 55, 128-33). At some point, Magee also called her this name. (Hayles Dep. II at 318). Plaintiff was good friends, and spent holidays, with Share and Kogen both during and after the time that they called her this name.

 4. EEOC Involvement

  On or about November 23, 2001, Plaintiff filed a charge of discrimination based on race with the U.S. Equal Employment Opportunity Commission ("EEOC") against ATM. (Am. Compl. at ¶ 11, Ex. A). She received a "right to sue" letter from the EEOC on March 1, 2002, a date prior to the expiration of the 180-day time-limit afforded to the EEOC to make a determination on a matter. (Id. Ex. B). The EEOC, pursuant to 29 C.F.R. § 1601.28 (a)(2), issued this letter after it "reviewed all of the circumstances in this case to ascertain whether we will be able to complete our administrative process within 180 days" and "concluded that our issuing you the requested Notice of Right to Sue is warranted at this time." The EEOC based its decision on the fact that Plaintiff had already initiated suit against the defendants in this Court on other grounds and that the EEOC was taking an average of 227 days to complete similar cases. (Id. Ex. B). 5. Plaintiff's Attempts to Receive Severance Benefits

  a. Severance Payments

  Plaintiff made a written claim to ATM for severance benefits on September 11, 2001. (Am. Compl. ¶ 10). According to Plaintiff, ATM maintained an unwritten Severance Policy for the benefit of terminated employees, which generally provided terminated employees with four months salary for every year of service to ATM.*fn8 (Id. ¶¶ 4, 48). Plaintiff calculated that she was due at least twenty months severance, as she was employed by ATM for approximately 5 years. (Id. ¶ 50).

  Defendants responded by letter dated September 17, 2001, stating that they considered Plaintiff to be out on medical leave, rather than constructively terminated. In support of its contention, Defendants pointed to the note faxed to ATM's office by Plaintiff's doctor and to Plaintiff's return of a completed medical certification necessary for Family and Medical Leave Act leave, which Defendants argued "again confirm[ed] her inability to work and need for a leave of absence." (Id. Ex. F). In this letter, Defendants also stated that they did not maintain a severance policy. (Id.)

  b. Other Benefits

  1. Health

  Throughout her Amended Complaint, Plaintiff makes a variety of allegations regarding health benefits that she asserts she is entitled to. Plaintiff testified at her deposition, however, that she has continued to receive health benefits from ATM since her departure. (Hayles Dep. I at 273-74). These benefits have been provided through the regular health plan that ATM maintains for its employees, and not through COBRA. (See also Hayles Dep. I at 273-74, 276-77; Kogen Dep. at 26-27). The Court, therefore, assumes that Plaintiff's claims regarding health benefits are moot and does not address them further in this opinion.

  2. Disability

  ATM maintains mandatory New York State Disability Insurance through Zurich American Insurance Company. ("Zurich"), under which employees are entitled to a maximum weekly benefit of $170 for a period of 26 weeks. ATM's policy with Zurich is secondary to its Workers' Compensation insurance for work-related injuries, which is provided to ATM by The Hartford ("Hartford"), such that Zurich does not pay out proceeds if an insured employee is receiving Workers' Compensation payments. (Declaration of Greg Martin, dated June 21, 2002 ("Martin Decl.") ¶ 2).

  ATM also maintains non-mandatory short- and long-term disability insurance through Guardian Life Insurance Company of America ("Guardian"). Under the short-term program, employees are entitled to a maximum of $500 for a period of 11 weeks, minus any benefits that are paid pursuant to, among other things, the mandatory New York State Disability Insurance and/or Workers' Compensation insurance. (Defs' 56.1 Statement ¶ 51). Under the long-term disability policy with Guardian, employees under age 60 are entitled to a maximum monthly benefit of $5000 until age 65.

  On September 7, 2001, Plaintiff submitted claim forms to Guardian for short-term disability benefits and to Zurich for New York State Disability benefits. (Martin Decl. ¶¶ 2-3, Exs. 1-2; Hayles Dep. I at 268-70). Guardian began making payments on September 25, 2001. (Martin Decl. ¶ 4, Exs. 3-4).

  On September 18, 2001, Zurich rejected Plaintiff's claim for New York State disability insurance because Plaintiff had indicated that her claim arose out of, and in the course of, her employment. (Id. ¶ 6, Ex. 5). Zurich encouraged Plaintiff to apply for Workers' Compensation. (Id. ¶ 6).

  On September 24, 2001, Plaintiff filed a claim for Workers' Compensation benefits with Hartford. Around that time, Plaintiff alleges that her disability payments from Guardian stopped.*fn9

  By notice dated October 3, 2001, Hartford sent Plaintiff a notice stating that her Workers' Compensation claim had been "controverted." (Id. ¶ 7). The notice indicated that Plaintiff's injuries might have been preexisting. (Id.)

  When Plaintiff's claim was "controverted" by Hartford, Plaintiff's disability insurance provided by Zurich and Hartford became primary again. Plaintiff's payments from Guardian resumed as early as November 5, 2001. (Saunders Decl. Ex. F). Thereafter, Plaintiff received the full amount of short-term benefits that she was entitled to under the Guardian policy. (Hayles Dep. I at 272-73). In addition, Plaintiff received, at least through the time of her deposition, long-term disability benefits from Guardian in the amount of $3000 per month. (Martin Decl. ¶ 5, Ex. 5; Hayles Dep. I, 270-73). With respect to the New York State Disability provided by Zurich, which originally rejected Plaintiff's claim, ATM filled out forms on November 29, 2001 to enable Plaintiff to receive benefits. (Martin Decl. ¶ 11, Ex. 7). However, ATM neglected to complete the section on Plaintiff's earnings, (Id.). It received notice that it had not supplied all the information necessary, and supplied the missing data on January 3, 2002. (Id. ¶ 11, Ex. 8). Plaintiff began receiving benefits from Zurich on January 7, 2002. Plaintiff confirmed at her deposition that she has received disability benefits from Zurich since that time. (Hayles Dep. I, 271-72).

 6. Plaintiff's Amended Complaint

  Plaintiff filed a complaint in this Court on November 13, 2001, and amended it first on January 2, 2002 and then again on March 28, 2002. Plaintiff's Second Amended Complaint alleges that: (1) ATM failed to pay severance and other benefits in violation of ERISA § 502; (2) ATM, Magee, Share, and Morgan Brown unlawfully retaliated against Plaintiff for filing claims under ERISA and the FMLA; (3) All Defendants interfered with Plaintiff's attainment of benefits in violation of ERISA § 510; (4) ATM and Morgan Brown refused to produce "pertinent documents" as required by ERISA § 502(c); (5) Morgan Brown tortiously interfered with Plaintiff's contractual relations; (6) Magee committed common law assault against Plaintiff; (7) All Defendants intentionally and/or negligently inflicted emotional distress upon Plaintiff; and (8) ATM unlawfully discriminated against Plaintiff based on race, in violation of Title VII, 42 U.S.C. § 2000e-2, and the New York State Human Rights Law, Executive Law § 296. Defendants moved for summary judgment on all claims.


  Summary Judgment Standard

  Summary judgment is appropriate 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden to show the absence of a genuine issue of material fact. Once the moving party has met this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Speculative and conclusory allegations are insufficient to meet this burden." Hogan v. 50 Sutton Place S. Owners, Inc., 919 F. Supp. 738, 742 (S.D.N.Y. 1996) (citing Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995). Further, ...

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