United States District Court, S.D. New York
December 31, 2003.
CHRISTENS E. HAYLES, Plaintiff,
ADVANCED TRAVEL MANAGEMENT CORPORATION, d/b/a ADVANCED TRAVEL GROUP, a/k/a ADVANCED STAFF MANAGEMENT CORPORATION, CHRISTOPHER MAGEE, MICHAEL SHARE, JEANNE M. COLACHICO and MORGAN, BROWN & JOY, LLP, Defendants
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
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. ¶
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
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
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
b. Other Benefits
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.
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.
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
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, "[s]ummary judgment
is warranted when the nonmovant has no evidentiary support for an
essential element on which it bears the burden of proof." Williams v.
R.H. Donnelley Inc., 199 F. Supp.2d 172, 176 (S.D.N.Y. 2002).
Based on the reasons to follow, the Court finds that there are no
material issues of fact in dispute regarding Plaintiff's claims against
ATM on all claims other than the assault claim. Consequently, summary
judgment is granted to the Defendants on these claims.
1. Failure to Pay Severance Benefits Against ATM
Plaintiff alleges that ATM had an unwritten severance policy, which
"[g]enerally speaking . . . provided for four months severance pay for
each year of service with a minimum of four months severance."
(Plaintiff's Revised Memorandum of Law in Opposition to Rule 56 Motion,
dated Aug. 7, 2002 ("Pl's Opp'n") at 11). Plaintiff further asserts that
the policy was administered on a case-by-case. Plaintiff argues that
ATM's plan is covered by ERISA and that she is due severance in the
amount of 4 months pay for each of the 5 years she was employed.
Defendants agree that they do not maintain a written severance policy
and that they have paid severance to a few employees on an ad hoc basis. (Memorandum of Law in Support of
Defendants' Motion for Summary Judgment ("Defs' Mot.") at 4). However,
Defendants contend that only a handful of employees have received
severance in the last 5 years, that the amounts of the pay have differed
and, in many circumstances, were far less than 4 months for every year
employed, and that many of those payments were made in exchange for the
signing of releases of claims against ATM. (Id.). Defendants argue,
therefore, that their policy is not an ERISA-covered policy and that they
are not required to pay Plaintiff severance.
a. Failure to Make Severance Payments Under ERISA
The Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1001 et seq., was enacted "to safeguard employees from
the abuse and mismanagement of funds that had been accumulated to finance
various types of employee benefits." Tischman v. ITT/Sheraton Corp.,
882 F. Supp. 1358, 1368 (S.D.N.Y. 1995) (quoting Massachusetts v.
Morash, 490 U.S. 107, 112 (1989).
ERISA defines an "employee welfare benefit plan" as:
"[A]ny plan, fund, or program . . . established
or maintained by an employer . . . to the extent
that such plan, fund, or program was established or
is maintained for the purpose of providing for its
participants or their beneficiaries, through the
purchase of insurance or otherwise, (A) . . .
benefits in the event of sickness, accident, disability, death or unemployment, or
vacation benefits . . . or (B) any benefit described
in section 186(c) of this title. . . ."
29 U.S.C.A. § 1002.*fn10
Because only "plans" involve administrative activity potentially
subject to employer abuse, the touchstone for ERISA application is the
existence of an undertaking or obligation by an employer that requires
the creation of an on-going administrative program.*fn11 See Hijeck v.
United Technologies Corp., 24 F. Supp.2d 243, 247 (D.Conn. 1998)(citing
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12 (1987)). While the
Second Circuit has not decided which factors should be determinative in
"[it] ha[s] found that an ongoing administrative
program may exist (1) where an employer's undertaking
requires managerial discretion, that is, where the
undertaking could not be fulfilled without ongoing,
particularized, administrative analysis of each case
. . .; (2) where a reasonable employee would perceive
an ongoing commitment by the employer to provide some
employee benefits; and (3) where the employer was
required to analyze the circumstances of each
employee's termination separately in light of certain
criteria." Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 737 (2d
Cir. 2001) (citations and quotations omitted); see also James v. Fleet/
Norstar Fin. Group, Inc., 992 F.2d 463, 468 (2d Cir. 1993) (stating that
a severance policy must bear the hallmarks of managerial discretion and
ongoing administration in order to qualify for ERISA protection as a
Courts have held that one-time, lump-sum payments or payments made over
a short period of time do not satisfy the requirement of an
"administrative scheme" because such payments do not make periodic
demands on an employer's assets that create the need for financial
coordination and control. See James, 992 F.2d at 464, 466 (discussing
Fort Halifax); Tischman, 882 F. Supp. at 1369 (finding that a severance
plan that "envisions payments pursuant to a `regular payroll schedule,'
or, if [the employer] chooses, in a `discounted lump sum,'" does not
implicate on-going administrative scheme).
Similarly, ERISA protection does not extend to plans that require an
employer to make only "[s]imple arithmetic calculations and clerical
determination[s]" in order to decide the amount of severance payments,
see Fort Halifax, 482 U.S. at 12, even where "[e]mployees had different
termination dates and different eligibility for receiving the payment; the payments had to be calculated individually and deductions for
social security taxes, health and medical benefits, and 401k plans had to
be made," because this determination is not sufficiently ongoing,
particularized and discretionary. Cardone v. Empire Blue Cross and Blue
Shield, 884 F. Supp. 838, 846 (S.D.N.Y. 1995)(citing James, 992 F.2d at
Conversely, courts have conferred ERISA protection on plans that call
for ongoing monitoring of compliance with certain conditions in order to
determine individual eligibility. Hijeck, 24 F. Supp.2d at 249. For
instance, the court in Tischmann found that the severance benefits at
issue constituted an ERISA plan because employees who received severance
were required to make themselves continually available after termination
to render the company reasonable assistance, and because the employees
bore continuing responsibility to meet conduct-based obligations, such as
compliance with covenants not to compete and not to disclose confidential
information. Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 566-67 (2d
Cir. 1998); see also Schonholz v. Long Island Jewish Med. Ctr., 87 F.3d 72,
76 (2d Cir. 1996) (finding sufficient managerial discretion where the
employer had to ascertain whether the employee was making a reasonable
good-faith effort to obtain suitable employment elsewhere, and if such employment
was attained, whether it was commensurate with the employee's former
position, in order for the employee to continue to receive severance
In this case, Plaintiff has not established that there are genuine
issues of material fact regarding whether ATM's payment of severance in
certain instances constitutes an ERISA-covered plan. Specifically,
Plaintiff has not demonstrated that ATM's policy calls for managerial
discretion or the establishment of new administrative schemes to disburse
Plaintiff alleges that ATM pays severance over a period of time, and
not in a lump sum. (Plaintiff's Rule 56.1(a) Counterstatement of Facts,
dated August 7, 2002 ("P's 56.1 Counterstatement") ¶ 59; Hayles Dep.
II at 425). Plaintiff does not specify, however, the length of the period
and provides no basis for the Court to distinguish it from a lump-sum
payment or a payment made over a short term. More importantly, Plaintiff
has not alleged or produced any evidence showing that the severance plan requires ATM to set up an
administrative scheme to pay it out over time.*fn13
Plaintiff also argues that ATM calculates an employee's benefit: using
an arithmetic formula of approximately four months pay for every year
worked at ATM. (P's 56.1 Counterstatement ¶ 59; Hayles Dep. II at
419). Assuming that this is the calculation ATM used, it calls for
nothing more than simple arithmetic and does not demonstrate the
requisite managerial discretion that is mandated by the case law.
See James, 992 F.2d at 467.
Further, the Court disagrees with Plaintiff's conclusory statement that
ATM's Employee Manual "creates a perception of an ongoing commitment by
ATM to provide a severance benefit." (P's 56.1 Counterstatement ¶
11-14). The Manual defines the term "severance payment" as "Pay which is
due a terminating [sic] employee based upon written company policy," but
does not provide any further details or indicate the terms of any such
written policy.*fn14 (Boone Aff. Second Ex. P) (emphasis added). In
fact, ATM has created no reasonable perception of ongoing commitment to
provide benefits. (Hayles Dep. at 419)("[A]n employee of ATM wanted to know [why] it wasn't spelled out specifically . . . and I
said we don't put it out, we don't specifically say what's given because
it's on a case-by-case basis."); (see also Boone Aff. Second Ex. P).
There has been no showing that ATM published or publicized any policy
indicating that it normally pays out severance benefits, or pays out any
such benefits over a period of time.
Additionally, there has been no showing that ATM must monitor
employees' on-going compliance with any conditions such as a
terminated employee's maintenance of certain standards of conduct or
attempts to attain comparable employment in order for the
employee to continue to receive severance benefits. Cf. Tischmann, 145
F.3d at 567; Hijeck, 24 F. Supp.2d at 251.
Moreover, Plaintiff has not demonstrated that there are certain
criteria an employee must meet to qualify for severance. Plaintiff
asserts that employees who are terminated without cause receive severance
payments. Plaintiff offers no support, however, that all, or even most,
terminated employees receive severance pay.*fn15 The only evidence cited
by Plaintiff for this contention is her own deposition testimony, in which she is not asked, and does not state, that
all terminated employees received severance. In fact, the testimony cited
does not indicate any requirements, such as length of service at ATM or
termination without cause, necessary to qualify for severance payments
upon departure from ATM. (See Hayles Dep. II at 419; see also Hayles Dep.
I at 295-296) ("There was not a written policy [sic]. It was what Michael
[Share] and Christopher [Magee] wanted it to be," and that "changed from
time to time."); (Hayles Dep. at 403) ("Severance would be allowed on an
individual basis."). Defendants, on the other hand, offer evidence that
many of the employees who were terminated or laid off did not receive
severance payments. (See Bludau Dep. Ex. 28;*fn16 see also Magee Dep. at
93-97; Magee Aff. ¶¶ 4, 5, 10).
The cases cited by Plaintiff in support of her contention that ATM
maintains an ERISA-covered severance "plan" are distinguishable from the
instant facts. (Pl's Opp'n at 12). In Schonholz v. Long Island Jewish
Medical Center, the defendant employer circulated a memorandum to senior
employees spelling out the details of its severance program. Schonholz,
87 F.3d at 74. According to the memo, payment amounts would be based on the length of time the employee held the
position he or she was in and the employee's prospects for re-employment.
The payments were also conditioned upon whether the employee "displayed a
reasonable good-faith effort to obtain a position commensurate with his
former level of responsibility." Id. The Court found that employees had a
reasonable expectation of the employer's ongoing commitment to provide
benefits, and that the terms and conditions of the policy required the
employer to make individual determinations, not only at the time of
termination but on a going-forward basis, of whether an employee was
entitled to severance. Id. at 76-77.
Similarly, in Tischmann v. ITT/Sheraton Corp., the defendant employer
had published a severance plan obligating itself to pay severance when an
executive employee, who was terminated without cause, complied with
certain provisions of the company's code of conduct and refrained from
"activit[ies] which [were] inimical to the best interests of the
company." Tischmann, 882 F. Supp. at 1362; see also Tischmann, 145 F.3d
at 566-67 (conferring ERISA-protection to the severance plan at issue).
In the case at bar, ATM did not disseminate to employees the details or
terms of its alleged severance plan. Plaintiff provided no proof that the average or reasonable employee
was aware that ATM paid severance or was familiar with the conditions
that would entitle him or her to severance. Additionally, Plaintiff made
no showing that ATM committed to pay severance over a substantial time
period or that ATM monitored compliance with certain conditions (e.g.,
good faith attempts to find comparable employment).
Significantly, even if the Court assumed that ATM maintained an
ERISA-covered plan and that Plaintiff was constructively terminated, it
would nonetheless find that Plaintiff did not demonstrate that employees
in her circumstance, or that she herself, would be entitled to severance
payments. Plaintiff does not argue that every terminated employee received
severance payments and admits that ATM's decision to give certain
employees money upon termination is made on an ad hoc basis. All that
Plaintiff has shown is that certain employees most of whom had
signed releases were given severance payments. This proof is
simply inadequate to establish that Plaintiff herself is entitled to
severance pay. See also Kosakow v. New Rochelle Radiology Assocs., P.C.,
116 F. Supp.2d 400, 405 (S.D.N.Y. 2000), abrogated on other grounds,
274 F.3d 706 (2d Cir. 2001) (finding unreasonable plaintiff's argument
that her employer's ERISA-covered severance plan demanded that the employer
pay severance to all terminated employees, where the plan granted broad
discretion to the employer to determine the circumstances under which
severance was paid and stated specifically that severance payments were
made only `where applicable').
For the reasons above, the Court finds that there are no genuine issues
of material fact regarding whether ATM's severance payments constitute an
ERISA-covered plan,*fn17 and grants summary judgment on this issue in
favor of the Defendants.*fn18
b. Breach of Implied "In-Fact" Contract to Pay Severance
Plaintiff pleads, as an alternative to her ERISA claim for severance,
that ATM's Menial of any severance or other Employee Benefits to which
[Plaintiff] is entitled constitutes a breach of the terms and conditions
of [Plaintiff's] implied in fact employment agreement with Advanced
Travel."*fn19 (Am. Compl. ¶ 55). Although neither party briefed the issue, Defendants reference it in their request for
summary judgment on Count 1. The Court addresses this issue sua sponte,
as it is closely related to the other issues raised and briefed by the
An implied contractual relationship may be established by conduct of
the parties as well as by express agreement. See Dooner v. Keefe,
Bruyette & Woods, Inc., 157 F. Supp.2d 265, 286 (S.D.N.Y.
2001)(citing Mirchel v. RMJ Sec. Corp., 205 A.D.2d 388, 613 N.Y.S.2d 876,
878 (1994)). "An implied-in-fact contract `requires such elements as
consideration, mutual assent, legal capacity and legal subject matter.'"
Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368, 377 (2d
Cir. 2000)(quoting Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94 (1999)).
In this case, plaintiff, who is an at-will employee,*fn20 simply
concludes that she had an implied contract with ATM for severance
payment. There is no allegation in the amended complaint or on the record, however, of any conduct by ATM that
indicates satisfaction of the requisite elements for an implied-in-fact
contract for severance, including consideration and mutual assent.
If anything, it appears that the parties understood that Plaintiff was
not entitled to severance. ATM expressly stated to Plaintiff in a
February 2, 1998 letter agreement that, "We want to start out on a
positive note, but it is also important for both of us to understand our
employment arrangements. Our company is an "At Will" employer and we
think it is important to understand that either of us can terminate our
employment arrangement at any time." (Pl's 56.1 Counterstatement Ex. N).
While this letter states that Plaintiff is entitled to certain benefits,
"i.e., Medical, Dental, and Insurance," it is silent as to severance
Second, Plaintiff concedes that all decisions to pay severance were
made on an ad hoc basis and does not allege that Defendants promised
severance payments specifically to her. This undercuts a finding of
mutual assent to severance payments.
Third, Plaintiff's allegations regarding the existence of an
implied-in-fact agreement lacks the specific terms necessary to enforce a
contract. Plaintiff does not allege that ah employee had to work a certain number of years at ATM in
order to be entitled to severance, or under what circumstances of
termination or resignation the parties understood an employee would be
entitled to severance.
Accordingly, the Court finds that there are no genuine issues of
material fact as to whether there was an implied-in-fact contract for
severance benefits and whether Plaintiff would be entitled to such
benefits if such a contract existed. Summary judgment is therefore
granted in favor of Defendants on Plaintiff's implied-contract claim.
2. Unlawful Retaliation for Filing Claims Under ERISA and FMLA Against
Advanced Travel, Messrs. Magee and Share, and Morgan Brown
Plaintiff alleges that Defendants unlawfully interfered with her rights
provided under the FMLA, 29 U.S.C. § 2615,*fn21 and retaliated
against her for filing a claim for severance payments under ERISA, in
violation of 29 U.S.C. § 1140.*fn22 (Am. Compl. ¶ 90). It is not
clear exactly what Plaintiff claims are, but the Court construes
Plaintiff's Amended Complaint to mean that the following should be considered acts of retaliation and/or interference: (1)
ATM's refusal to produce any witnesses without excuse `at a previously
noticed hearing before the Workers Compensation Board; (2) Magee's and
Morgan Brown's "plot" with Lisa Gagnon, a Hartford claim adjuster, to
"knowingly and deliberately attempt to subvert Ms. Hayles' claims for
compensation," which allegedly resulted in Hartford's request for an
Independent Medical Examination that Plaintiff apparently deemed
unnecessary and in "wrongful denial" of Plaintiff's Workers Compensation
claim; and (3) unspecified behavior by the Defendants that led to a
temporary delay of disability payments from Zurich and Guardian. (Am
Compl. ¶¶ 95-96). It is likewise unclear which acts Plaintiff desires
the Court to deem acts of interference as opposed to acts of retaliation.
With regard to her FMLA claim, Plaintiff provides no evidence and
alleges no facts regarding any behavior that could be construed as
"interference" with Plaintiff's rights under the FMLA. The evidence shows
that Defendants mailed Plaintiff FMLA forms almost immediately upon
receipt of the note from her doctor stating that Plaintiff would be
medically unable to return to work. Moreover, according to Plaintiff's
own testimony, she was continuously provided with health and disability benefits while she was on medical leave,
and possibly to date. Summary judgment is therefore granted to Defendants
on this claim.
With regard to Plaintiff's ERISA retaliation claim, 29 U.S.C. § 1140
does not apply because the Court has already found that ATM does not
maintain an ERISA-covered severance plan. Plaintiff does not clearly
argue or provide any evidence to support a finding that ATM maintained
another ERISA plan.
Moreover, even if ATM maintained an ERISA-covered plan pursuant to
which Plaintiff made a claim, the allegedly retaliatory acts that
Plaintiff complains of are not evidenced on the record and would not be
considered a proper basis for a finding of retaliation. Specifically,
Plaintiff supplies no proof, including evidence of any "conspiracy" with
the claims adjuster or evidence that any Workers' Compensation Board
hearing was properly noticed or even took place, to support a finding
that Defendants acted improperly with respect to the denial of her
Workers' Compensation claim.*fn23 Similarly, with regard to the
temporary cessation in Plaintiff's disability payments, Defendants offer
a very reasonable explanation: due to the structure of their disability insurance, described supra, Plaintiff
became ineligible for disability when she filed for Workers'
Compensation. The record demonstrates that soon after her Workers'
Compensation claim was rejected, her short-term disability payments
resumed. (Martin Decl. ¶ 9). To date, Plaintiff admits that she has
received all of the disability to which she is entitled.*fn24
The Court holds that Plaintiff has failed to prove that Defendants
engaged in any acts of retaliation or interference for purposes of her
ERISA and FMLA claims, and accordingly grants summary judgment to
3. Interference with the Attainment of Benefits in Violation of ERISA
§ 510 Against All Defendants
Plaintiff alleges that Defendants schemed and conspired to harass her
by increasing her workload and to accuse her of spreading rumors so as to
deprive her of severance payments in violation of ERISA Section 510,
29 U.S.C. § 1140. (Am. Compl. at ¶ 58). Plaintiff pleads this claim
separately from her "retaliation" claim, even though it falls under the
same statute, but the Court grants Defendants' motion on this Count for the same reason as the previous
claim: Plaintiff has failed to show that ATM maintained an ERISA-covered
To defeat summary judgment on a claim of interference, Plaintiff must
adduce sufficient issues of material fact to show that, (1) ATM
maintained an ERISA employee welfare benefits plan, (2) she was
constructively terminated or else suffered an adverse employment action,
and (3) ATM terminated her employment with the intent to avoid its
obligation to her. Id.; Dister v. Continental Group, Inc., 859 F.2d 1108,
1112 (2d Cir. 1988).
Because the Court has held that Plaintiff has not shown that ATM
established an ERISA-covered severance plan, Plaintiff cannot satisfy
prong one of the test. Additionally, Plaintiff has failed to adduce any
evidence that ATM's actions were motivated by an intent to avoid paying
severance to her. No cause of action exists under Section 510 where the
loss of severance benefits "was a mere consequence of, but not a
motivating factor behind, a termination of employment." Lightfoot, 110
F.3d at 906 (quoting Dister, 859 F.2d at 111).
Accordingly, summary judgment on this claim is granted in favor of the
Defendants. 4. Refusal to Produce "Pertinent Documents" Under ERISA § 502(c)
Against Advanced Travel and Morgan Brown
29 U.S.C. § 1132 (c) allows a private right of action against plan
"administrators" for failure to provide certain documents to
beneficiaries.*fn25 These documents include "the latest updated summary
plan description, plan description, and the latest annual report" amongst
other similar types of documents, see 29 U.S.C. § 1024(b) (2), as
well as information as to the requestor's accrued benefits.
29 U.S.C. § 1025(a).
Plaintiff requested documents relating to ATM's alleged ERISA-covered
severance plan, as well as "all pertinent documents . . . relative to
Plaintiff's employment . . . including those gathered in the course of
[Colachico's] investigation." (Am Compl. ¶ 77, Ex. E). Defendants
admit that they did not produce responsive documents with respect to this
request, but argue that no responsive documents exist because ATM does
not maintain an ERISA-covered severance plan. The Court agrees. Because ATM does not maintain an ERISA-covered
severance plan, it has no duty to produce severance plan documents under
ERISA § 502(c). In addition, Plaintiff's requests for documents
pertaining to her employment and to ATM's investigation are outside of
the scope of this statute.
Accordingly, summary judgment is granted in favor of the Defendants on
5. Tortious Interference with Contractual Relations Against Morgan Brown
Plaintiff alleges that the law firm Morgan Brown tortiously interfered
with her contractual relations with ATM. Under New York law, the elements
of tortious interference are that: (a) a valid contract exists between
Plaintiff and a third party; (b) defendant had knowledge of the
contract; (c) defendant intentionally and improperly induced a breach of
the contract; and (d) the breach resulted in damage to the plaintiff.
Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir. 1996); see also Wolff v.
Rare Medium, Inc., 171 F. Supp.2d 354, 359 (S.D.N.Y. 2001). The third
element of inducement "requires the plaintiff to establish that but for
the allegedly tortious conduct of the defendant, the third party would
not have breached her contract." Perkins School for the Blind v.
Maxi-Aids, Inc., 274 F. Supp.2d 319, 328 (E.D.N.Y. 2003) (citing Michele Pommier Models,
Inc. v. Men Women N.Y. Model Mgmt., 14 F. Supp.2d 331, 335-36 (S.D.N.Y.
1998)). A plaintiff must also plead that a defendant used "wrongful
means" to induce the third party to breach the contract. Wolff, 171 F.
Supp.2d at 359. "Wrongful means" includes "physical violence, fraud, or
misrepresentation, civil suits and criminal prosecutions, and some degree
of economic pressure. . . ." Id. (citing Guard-Life Corp. v. S. Parker
Hardware Mfg. Corp., 50 N.Y.2d 183 (1980)).
In this case, Plaintiff does not satisfy several elements of the prima
facie case for tortious interference. First, as stated earlier, Plaintiff
was an at-will employee and did not have a contract of employment or an
implied-contract for severance. Second, Plaintiff asserts nothing more
than conclusory allegations regarding a `conspiracy' orchestrated by
Morgan Brown. Specifically, she does not allege any "wrongful means,"
including misrepresentation, that Morgan Brown used to induce ATM to
breach a contract. Plaintiff also does not show that Morgan Brown was the
but-for cause of any potential breach of contract, especially in light of
the fact that, according to the events as Plaintiff alleges them, Morgan
Brown had no active role with respect to Plaintiff prior to the date that Plaintiff considered
herself constructively terminated.
Even if Plaintiff proved the elements of tortious interference, Morgan
Brown, who was acting as an attorney and advocate for ATM, cannot be held
liable for inducing any breach by ATM. "[A]n attorney is not liable for
inducing his principal to breach a contract with a third person, at least
where he is acting on behalf of his principal within the scope of his
authority. Absent a showing of fraud or collusion, or of a malicious or
tortious act, an attorney is not liable to third parties for purported
injuries caused by services performed on behalf of a client or advice
offered to that client." Four Finger Art Factory, Inc. v. Dinicola, No.
99 Civ. 1259, 2001 WL 21248, *7 (S.D.N.Y. Jan. 9, 2001) (quoting Kline
v. Schaum, 174 Misc.2d 988 (App. Div. 1997). Here, Plaintiff has not
shown that Morgan Brown engaged in any fraud, collusion, or malicious
Therefore, the Court grants Defendants' motion for summary judgment on
6. Common Law Assault Against Defendant Magee
Assault is "an intentional attempt, displayed by violence or
threatening gesture, to do injury to, or commit battery upon," a person.
Williams v. Port Authority of New York and New Jersey, 880 F. Supp. 980, 994 (E.D.N.Y. 1995) (quoting 6
N.Y. Jur.2d: Assault-Civil Aspects § 1, at 194 (1980); see also Cohen
v. Davis, 926 F. Supp. 399, 402 (S.D.N.Y. 1996) ("An assault is the
intentional placing of another person in apprehension of imminent harmful
or offensive conduct."). New York law also requires a Plaintiff to show
that her apprehension of imminent harmful or offensive contact was
reasonable. Williams, 880 F. Supp. at 994.
Plaintiff argues that Magee assaulted her on August 22, 2001 by
accusing her of spreading rumors and clenching his fist close to her face
in a threatening manner. Defendants respond that Plaintiff does not
allege facts sufficient to withstand summary judgment.
The Court disagrees with the Defendants. Plaintiff has raised a triable
issue of material fact regarding whether Magee's conduct amounted to an
intentional attempt to commit battery upon Plaintiff. Accordingly, the
Court declines to grant summary judgment on this issue.
7. Intentional and/ or Negligent Infliction of Emotional Distress Against
Plaintiff alleges claims of both negligent and intentional infliction
of emotional distress against all of the Defendants. Plaintiff's claims,
however, fall far short of the mark and the Court grants summary judgment to the Defendants
on these claims.
a. Negligent Infliction of Emotional Distress
New York Workers' Compensation Law provides the exclusive remedy for
injuries resulting from negligence in the workplace. See Arroyo v. Westlb
Admin., Inc., 54 F. Supp.2d 224, 232 (S.D.N.Y. 1999); Caraveo v. Nielson
Media Research, Inc., No. 01 Civ. 9609, 2003 WL 169767, *9 (S.D.N.Y.
Jan. 22, 2003), aff'd in part and dismissed in part, 2003 WL 1745064
(S.D.N.Y. March 31, 2003) (citing N.Y. Workers' Comp. Law §§ 10, 11,
29). Therefore, Plaintiff's claim of negligent infliction of emotional
distress is pre-empted.*fn26
Plaintiff further argues that even if Workers' Compensation laws
pre-empt her claim for negligent infliction of emotional distress as
against ATM and the Defendant executives, the Court should nonetheless
allow her claims to go forward against Colachico and Morgan Brown. The
Court disagrees. First, both of these Defendants were acting as agents of
her employer and therefore the claims against them would likewise be pre-empted. Second, as stated
earlier, Plaintiff has not alleged facts sufficient to demonstrate that
their behavior was in any way improper.
Finally, Plaintiff has not proven, and cannot prove, the claim on the
merits against any of the defendants. Under New York law, a plaintiff may
establish a claim of negligent infliction of emotional distress in one of
two ways: (1) the "bystander" theory, or (2) the "direct duty theory."
Mortise v. U.S., 102 F.3d 693, 696 (2d Cir. 1996).
Under the "direct duty" theory, applicable here, a plaintiff has a
cause of action if she suffers an emotional injury from a defendant's
breach of a duty that unreasonably endangered her own physical safety.
Id. (citing Kennedy v. McKesson Co., 58 N.Y.2d 500, 504 (1983)). In the
case at bar, Defendants did not owe Plaintiff a duty of care and did not
"unreasonably endanger" her physical safety.
Accordingly, the Court grants summary judgment to the Defendants on
Plaintiff's claim of negligent infliction of emotional distress.
b. Intentional Infliction of Emotional Distress
The tort of intentional infliction of emotional distress has four
elements: "(i) extreme and outrageous conduct, (ii) intent to cause, or disregard of a substantial probability
of causing, severe emotional distress, (iii) a causal connection between
the conduct and injury, and (iv)severe emotional distress." Howell v. New
York Post Co., Inc., 81 N.Y.2d 115, 121 (1993). The first element
outrageous conduct serves the dual function of filtering
out petty and trivial complaints that do not belong in court and assuring
that a plaintiff's claim of severe emotional distress is genuine. Id.
This element is most susceptible to determination as a matter of law.
Id. (citing Restatement (Second) of Torts § 46 cmt. h).
In this case, Plaintiff has not produced evidence that any of the
Defendants', including Magee's, behavior was so outrageous that it
exceeded all bounds of decency as measured by what the average member of
the community would tolerate. See Williams, 880 F. Supp. at 995 (quoting
61 N.Y. Jur.2d: Fright, Shock and Mental Disturbance Section 8 at 515
The Court, therefore, grants summary judgment on Plaintiff's claim of
intentional infliction of emotional distress to the Defendants. 8. Unlawful Discrimination 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, Against Advanced Travel
a. The EEOC's Right to Sue Letter
As an initial matter, Defendants argue that Plaintiff's Title VII claim
should be barred because the EEOC over-stepped its authority by issuing
Plaintiff's Right to Sue letter prior to the expiration of the 180-day
period. The Court does not agree.
The EEOC is charged with attempting to settle disputes before
instigation of suits. It does not adjudicate matters, and, under
29 C.F.R. § 1601.28(a)(2), can issue right to sue letters prior to
the expiration of 180 days in the interest of judicial economy. Courts
have held in factual situations analogous to the one at bar that a Right
to Sue letter issued prior to the expiration of the period did not
prohibit a court from asserting jurisdiction over a discrimination claim.
See Figueira v. Black Entm't Television, Inc., 944 F. Supp. 299, 308
(S.D.N.Y. 1996); see also Kahn v. Objective Solutions, Int'l,
86 F. Supp.2d 377, 379-380 (S.D.N.Y. 2000). This Court, therefore, can
properly exercise jurisdiction over Plaintiff's Title VII claim. In addition, the Court agrees with the EEOC that the interest of
judicial economy is best served by adjudicating Plaintiff's Title VII
claims along with her other claims, which are brought against the same
defendants and are predicated on the same facts.
Accordingly, the Court addresses the merits of Plaintiff's Title VII
b. Title VII Claim
Plaintiff alleges that she was terminated from ATM, in part, because of
her race, in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., ("Title VII"), and New York State
Human Rights Law, Executive Law Section 296. The analysis of the claim
under these two statutes is identical. Tomka v. Seiler Corp., 66 F.3d 1295,
1305 n.4 (2d Cir. 1995).
1. Burden Shifting Test
In an employment discrimination case, the Court must apply the three
step burden-shifting analysis established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). See Terry v. Ashcroft, 336 F.3d 128, 138
(2d Cir. 2003).
Plaintiff carries the initial burden of making out a prima facie case
of discrimination. See McDonnell Douglas, 411 U.S. at 802. In order to establish a prime facie case, Plaintiff must
show that (1) she belongs to a protected class; (2) she was qualified for
the position; (3) she was discharged; and (4) her discharge occurred
under circumstances giving rise to an inference of discrimination. See
id.; Collins v. N.Y. City Transit Auth., 305 F.3d 113, 118 (2d. Cir.
After a plaintiff establishes a prima facie case, the burden shifts to
the defendant to articulate a legitimate, non-discriminatory reason for
the adverse employment action. Once this occurs, Plaintiff must then
identify specific evidence that would "permit a rational finder of fact
to infer that the defendant's employment decision was more likely than
not based in whole or in part on discrimination." Stern v. Trustees of
Columbia Univ., 131 F.3d 305, 312 (2d. Cir. 1997).
"[I]n Title VII actions . . . summary judgment remains available to
reject discrimination claims in cases lacking genuine issues of material
fact." Boyd v. Presbyterian Hosp., 160 F. Supp.2d 522, 535 (S.D.N.Y.
2001) (internal quotations omitted). The assertion of "mere conclusory
allegations of discrimination" cannot serve to defeat a motion for
summary judgment. Id. Moreover, where a plaintiff alleges that her employers made racial
remarks, she must show that these remarks were temporally linked to the
adverse employment action allegedly suffered. Gorley v. Metro-North
Commuter R.R., 99 Civ. 3240, 2000 WL 1876909, *6 (S.D.N.Y. 2000), aff'd
29 Fed. Appx. 764, 2002 WL 355909 (2d Cir. 2002). When other indicia of
discrimination are present, however, the remarks cannot be deemed as
stray and a jury has the right to conclude that they bear significance.
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001).
Defendants do not challenge Plaintiff's assertion that she belongs to a
protected class and that she was qualified for the position. However, the
parties dispute whether Plaintiff was constructively terminated, and if
so, whether the circumstances surrounding the termination gives rise to
an inference of racial discrimination.
2. Constructive Discharge
Plaintiff claims that she was constructively discharged as of August
24, 2001, because "the deliberate scheme to systematically increase [her]
already heavy workload, the denial of staff assistance . . . and the
tirades and tantrums of Messrs. Magee and Share combined to make her working conditions hostile and intolerable."*fn27 (Am. Compl. ¶
36). Plaintiff contradicts herself, however, regarding the date that she
claims she was constructively discharged: In some of her papers, she
claims she was discharged during the week of August 20, 2001, and in
others, she alleges that the constructive discharge occurred some time
between this week, and mid-November, 2001, when the attorneys concluded
their investigation. (Compare Am. Compl. ¶ 36 ("[Plaintiff] was
therefore constructively discharged from her employment no later than
August 24, 2001. . . .) with Pl's 56.1(b) (giving the range of dates that
Plaintiff was terminated as early as August 24, and no later than
Contrary to Plaintiff's assertion, the Court finds from the facts that
she was not constructively discharged from ATM and that simply declaring
herself constructively discharged does not make it so. As an initial
matter, Plaintiff's conduct immediately after the week of August 20 is
inconsistent with that of a person who believes they cannot return to
work because of an intolerable working environment. It is undisputed that
Plaintiff submitted a note to ATM on August 24, 2001 stating that she was medically unable to return to work, (Boone Aff. Ex. B), and that in
or around the end of August or beginning of September 2001, Plaintiff
filled out a form pursuant to the Family Medical Leave Act, which would
enable her to remain out of work yet retain her job while
she was medically unable to work. (Saunders Decl. Ex. D). In fact, the
record shows that Plaintiff has continued to receive health benefits,
which are paid through the insurance that ATM maintains for its regular
employees and not through COBRA, as well as disability benefits.
(See Saunders Decl. Ex., F, G; Hayles Dep. I at 268-74).
Plaintiff also fails to allege facts sufficient to support a finding of
constructive discharge under Second Circuit law. A person is considered
constructively discharged when her employer, rather than discharging her
directly, intentionally creates a working environment so intolerable that
she is forced to quit. Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.
2003). In order to be sufficiently intolerable, the working conditions
must be "so difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign." Id. (quoting
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.
1996)). The Second Circuit has stated that "a disagreement with management over
the quality of an employee's performance will not suffice to establish
constructive discharge." Chertkova, 92 F.3d at 89 (citing Stetson v.
NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993); see also Katz v. Beth
Israel Med. Ctr., 95 Civ. 7183, 2001 WL 11064, *14 (S.D.N.Y. Jan. 4,
2001) ("An employee is not constructively discharged because she does not
like her assignments, receives unfair criticism, or is yelled at by
supervisors."). Additionally, the fact that an employee develops
stress-related health problems from the demands of her voluntarily
undertaken position or from criticisms of her performance, and
subsequently determines that health considerations mandate her
resignation, does not mandate a finding of constructive discharge by the
employer. Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993)
(finding no constructive discharge where plaintiff "was ridiculed by his
supervisor, blamed for not knowing about certain changes in company
practice of which no one had notified him, harangued by executives,
written up and criticized for poor performance, threatened with
termination, placed on probation, and suffered high blood pressure as a
result of his supervisor's treatment"). In this case, Plaintiff has failed to prove that her working conditions
would have led a reasonable person to consider herself constructively
terminated. Regarding her allegedly heavy Workload, Plaintiff has not
demonstrated that it was extremely difficult or unpleasant. Plaintiff
merely concludes, but provides no evidence to support the contention,
that she was overworked. She does not specify the number of hours that
she worked during an average week or allege that she worked much harder
than those in positions similar to hers.
Likewise, Defendants' confrontations with Plaintiff concerning alleged
rumors do not rise to a level that was so "intolerable" or "unpleasant"
that a reasonable person would have felt compelled to resign. Although
witnessing Magee's behavior might not have been "pleasant," this incident
does not amount to behavior that would have made a reasonable person
quit. Cf. Katz, 2001 WL 11064, at *14 (finding that Plaintiff's
evidence, "even if accepted by a reasonable fact-finder, would show that
she was given insufficient staff assistance to do her work . . . and told
to retire if she didn't like the situation. . . . [Plaintiff] was also
unfairly disciplined five or six times. . . . and her supervisors
routinely yelled at her and berated her, and at least once threatened her
with termination," but was nonetheless insufficient to hold, on a motion for summary judgment,
that "constructive termination" occurred).
Plaintiff also makes much ado over a whole host of allegedly improper
reasons she believes that ATM's attorneys were conducting an
investigation. Plaintiff does not, however, offer a single, supported
claim that any of the attorneys acted improperly or outside the
boundaries of proper advocacy.*fn28 (See, e.g., Pl's Opp'n at 9-10). Her
allegations that she was contacted by an attorney via email and phone,
and that she was upset by the thought of being investigated by
attorneys, are insufficient to demonstrate that these acts contributed to
an environment that would lead a reasonable person to quit.*fn29
Accordingly, the Court holds that, viewed as a whole, the facts in the
case at bar would not permit a rational fact-finder to conclude that a
reasonable person in Plaintiff's position would have felt forced to
resign. Chertkova, 92 F.3d at 90. The Court therefore finds that: Plaintiff was not constructively terminated, and grants Defendants'
motion for summary judgment on this count.
3. Racial Motivation
Even if the Court concluded that there were triable issues of material
fact as to whether Plaintiff was constructively terminated, the Court
would nonetheless grant Defendants' motion for summary judgment on
Plaintiff's Title VII claim on the independent ground that Plaintiff has
not shown that any adverse employment action was motivated by racial bias
and has not rebutted Defendants' non-discriminatory rationale for her
alleged constructive termination.
a. Prima Facie Case
In order to establish her prima facie case, Plaintiff must prove that
her alleged discharge occurred under circumstances giving rise to an
inference of racial discrimination. In support of this claim, Plaintiff
points to Defendants' racial comments made during the course of her
employment. Plaintiff utterly fails, however, to temporally or causally
link these comments to her termination and fails to present any other
persuasive evidence of Defendants' alleged racism. (Hayles Dep. I at
129-133). With respect to Kogen's and Share's racial comments, which were made
throughout the duration of her employment at ATM, Plaintiff admitted at
her deposition that she believed they were joking when they uttered
them. (Hayles Dep. I at 55, 128-33). Plaintiff has not argued or proven
that the frequency or harshness of the remarks increased close to the
time of her alleged termination. Cf. Schwapp v. Town of Avon, 118 F.3d 106,
111 (2d Cir. 1997) (stating, in the context of hostile work environment
analysis, that a court should look to the "the quantity, frequency, and
severity of [the] slurs" to determine whether an environment is
sufficiently hostile or abusive). In addition, Plaintiff remained close
friends with Share and Kogen despite their utterances of these comments.
In fact, Plaintiff testified at her deposition that prior to the events
of August 2001, she did not have any problems or conflicts, and did not
feel unfairly treated or discriminated against, at ATM. (Hayles Dep. at
114, 125-125). Plaintiff also testified that she did not feel that anyone
discriminated against her on the basis of race other than Magee. (Hayles
Dep. I at 309). Accordingly, the proof is insufficient to demonstrate any
racial animus on the part of Kogen or Share. With respect to Magee's comments, Plaintiff has not shown that they
were anything more than stray remarks and does not provide any temporal
link to the events of August 2001. See Grima V. Skidmore College;
180 F. Supp.2d 326, 339 (N.D.N.Y. 2001) ("[S]tray remarks of a
decision-maker, without a more definite connection to the employment
decision, are insufficient to prove a claim of employment
discrimination."); see also Gorley, 2000 WL 1876909, at *6 ("As a general
matter, stray comments are not evidence of discrimination if they are not
temporally linked to an adverse employment action. . . ."). As was the
case with Kogen and Share, Plaintiff has not indicated that the frequency
or harshness of Share's racial remarks increased on or around August
Plaintiff also alleges in a conclusory fashion that since Magee's
hiring, no African-Americans had been hired or promoted by ATM. (Am.
Compl. ¶ 18). Defendants, however, submitted evidence showing that
almost 30% of the employees hired from that time were of minority
(Saunders Decl. Ex. H; see also Magee Dep. at 237-38; Share Dep. at 116-17). Plaintiff has provided no evidence to rebut this
Likewise, although Plaintiff claims that the increase in her workload
was motivated by racism, her testimony evidences a belief that Defendants
increased her workload for non-race-based reasons. (See, e.g., Saunders
Decl. at Hayles Dep. I, 113-118)(stating that Defendant Share was
insensitive to her mounting workload because he wanted to appease
Accordingly, the Court finds that Plaintiff failed to temporally or
causally link any alleged constructive termination to improper
considerations of race, and therefore holds that Plaintiff did not make
out a prima facie case as is required under McDonnell. Defendants'
summary judgment motion on the Title VII claim is therefore granted.
b. Defendants' Non-Discriminatory Rationale
Even if the Court held that Plaintiff successfully established a prima
facie case, it would nonetheless grant summary judgment to Defendants
because Plaintiff did not rebut their legitimate non-discriminatory
reason for her alleged constructive termination.
In response to Plaintiff's claim that her alleged constructive
termination was motivated by race, Defendants assert that they chastised Plaintiff because they believed that she had
circulated rumors concerning Kogen's health and disclosed other
confidential information. Although Plaintiff dismisses this assertion as
mere "pretext," several deponents' testimony supports the contention that
she divulged this information to one employee, Giannadeo, and that Magee
was informed about this by Giannadeo and McCauley. (See discussion supra
at 3; see also Magee Dep. at 136-39; Giannadeo Dep. at 33-41, 59-64).
Additionally, the testimony shows that these conversations took place
immediately prior to Defendants' confrontations with Plaintiff.
Significantly, Plaintiff admits in her Rule 56.1 Counterstatement of
Facts that Magee was informed by the two employees about Plaintiff's
alleged conversation with Giannadeo.*fn31 (Pl's 56.1 Counterstatement
¶¶ 21-24). Likewise, Plaintiff does not address the accuracy of, or
offer any evidence contradicting, Defendants' contention that Magee was
informed about her alleged breaches of confidentiality in her Opposition
brief. In fact, the only contrary evidence offered by the Plaintiff is the conclusory statement in
her motion papers that the accusations were "false." This does not rebut
the fact that her employer was told and believed that she spread false
rumors, and is not sufficient to meet her burden of identifying specific
evidence that would permit a reasonable fact-finder to infer that
Defendants' employment decision was more likely than not based on
discrimination. Cf. Stern, 131 F.3d at 312.
Accordingly, Defendants' motion for summary judgment on this count is
For the reasons above, Defendants' Motion for Summary Judgment is
granted on all claims except for Plaintiff's assault claim.
The parties are directed to participate in a telephone conference with
the Court on Friday January 16, 2004, at 4:00 p.m. to discuss further
scheduling of this case.