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February 12, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  Plaintiff Lisa A. Burniche ("plaintiff") brought suit against defendant General Electric Automation Services, Inc. ("defendant"), alleging she was terminated on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"), and New York Executive Law § 296(1) ("New York Human Rights Law"). Page 2

  Defendant filed a motion for summary judgment pursuant to Fed.R. Civ. P. 56. Plaintiff opposed. Oral argument was heard on December 1, 2003, in Albany, New York. Decision was reserved.


  On October 5, 2000, in anticipation of acquiring TRS Staffing Solutions, where plaintiff then worked, defendant offered to plaintiff a pay raise and a position as a drafter. Even though plaintiff believed that the increased pay rate was inadequate, she accepted the offer "[t]o pay the bills." (Docket No. 20, p. 66.) From the outset of her employment with defendant, plaintiff sought a pay increase because of her belief that she was performing duties outside the scope of a drafter.

  On February 25, 2001, defendant hired Thameem Ismail ("Ismail"). Though the parties dispute the scope of his authority, Ismail was in some respect plaintiff's supervisor. He began to investigate ways to accommodate plaintiffs request for a pay raise, and even sought to create a new position for her.

  On April 20, 2001, plaintiff wrote to defendant's manager of staffing, detailing the efforts she had made to secure a pay raise. After Ismail received a copy of the correspondence, he met with his contact at General Electric Silicone ("GES"), defendant's internal client, to explore promotion possibilities for plaintiff. He left the meeting with the understanding that a promotion was possible, subject to a performance review, customer needs, and human resources approval.

  In July of 2001, after nothing had yet been done, plaintiff wrote defendant's manager of human resources, commending Ismail's efforts on her behalf, and claiming that the manager of staffing was the individual blocking her efforts to secure a pay raise. The Page 3 letter was referred to a regional human resources manager, who denied her request for a pay raise. He explained that she was mistaken as to the pay range for a drafter — she had confused billing rates with pay rates — and that the pay rate she was requesting was equivalent to that of a designer, for which she did not meet the qualifications.*fn1

  Finally, in September of 2001, defendant began the performance evaluation process for plaintiff. Ismail interviewed two of plaintiffs primary contacts at GES regarding her performance, and then spoke with his primary contact at GES. Thereafter, he typed notes of these meetings and incorporated them into a performance review form. He placed the notes and the performance review in an envelope, which he stored in his office desk drawer.

  On November 7, 2001, Ismail entered his office to find plaintiff behind his desk. Defendant claims Ismail saw plaintiff leaning over an open desk drawer, that when she saw Page 4 him she immediately closed the drawer and moved toward the exit, and that she had in her hand an interoffice envelope similar to the one in which he placed the notes and performance review. Plaintiff claims she was in Ismail's office trying to locate engineering drawings that needed to be filed, and that such practice was common for those under his authority. Later that day, another of defendant's employees came into Ismairs office and handed him a copy of plaintiff's performance review, which he had found on a copy machine.

  That same day, Ismail told a human resources representative, Michelle Hughes ("Hughes"), of what he had observed and his own informal investigation of the incident to that point. Hughes called the human resources manager, explained the situation, and recommended that plaintiff be suspended pending an investigation. The manager concurred, and Hughes instructed Ismail to inform plaintiff of her suspension the next day when she arrived for work. As part of the subsequent investigation, the manager spoke with Ismail, and Hughes spoke with plaintiff to get her account of what had happened. Plaintiff denied taking anything from Ismail's office or even opening or closing a desk drawer. The manager eventually directed Hughes to complete the paperwork necessary for plaintiff's termination.

  On November 16, 2001, Ismail informed plaintiff that she was terminated. The official termination notice stated, under the heading "Statement of the problem," "Employee in unauthorized area — Lisa was found in manager's office, behind desk with drawer open." (Docket No. 20, Ex. O.) Under the heading "Statement of company policy on this subject" appeared the language, "Employee Conduct and Work rule infractions may result in disciplinary actions, up to and including termination, id.

  On March 28, 2002, plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), alleging she had been terminated on the Page 5 basis of her gender. After the EEOC determined that no discrimination had occurred ...

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