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United States District Court, S.D. New York

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, "[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 every case,

  "[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 covered "plan").

  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 466-67).

  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 benefits).*fn12

  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 severance benefits.

  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 parties.

  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 pay. (Id.).

  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 Defendants.

 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 plan.

  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 this count.

 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 acts.

  Therefore, the Court grants Defendants' motion for summary judgment on this count.

  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 All Defendants

   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 (1987)).

   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 claim.

   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. 2002).

   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 November 2001).

   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 2001.

   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 backgrounds.*fn30

   (Saunders Decl. Ex. H; see also Magee Dep. at 237-38; Share Dep. at 116-17). Plaintiff has provided no evidence to rebut this claim.

   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 clients).

   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 granted. CONCLUSION

   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.


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