The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
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").
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
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
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
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
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
On March 28, 2002, plaintiff filed a discrimination charge with the
Equal Employment Opportunity Commission ("EEOC"), alleging she had been
terminated on the
basis of her gender. After the EEOC determined that no
discrimination had occurred ...