United States District Court, N.D. New York
March 17, 2004.
DONNA JONES, Plaintiff,
SMITHKLINE BEECHAM CORPORATION d/b/a GLAXO SMITH KLINE, Defendant
The opinion of the court was delivered by: THOMAS McAVOY, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Donna Jones ("Plaintiff") commenced the instant action
pursuant to Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. ("Title VII"), the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
("ADEA"), and the New York Human Rights Law, N.Y. Exec. Law § 296
("HRL"), arising out of her employment with Defendant Smithkline Beecham
Corporation d/b/a Glaxo Smith Kline ("GSK"). Currently
before the Court is Defendant's motion for summary judgment
pursuant to Fed.R.Civ.P. 56 seeking dismissal of the Complaint in its
entirety. Plaintiff has cross-moved for leave to file an amended
complaint alleging a claim of constructive discharge. This latter motion
was initially referred to the assigned magistrate judge for resolution,
but is addressed herein.
Defendant is in the business of developing, manufacturing and selling
prescription pharmaceutical and biologic products and consumer healthcare
products. In 1989, Plaintiff began working for Defendant as a sales
representative.*fn1 At the time she was hired, Plaintiff was 43 years of
age. For the first nine years of Plaintiff's employment with Defendant,
Defendant employed two types of sales representatives (1)
hospital representatives; and (2) field representatives. Hospital
representatives targeted hospitals and physicians within the hospitals.
Field representatives focused on non-institutional buyers, such as
private physicians. In her position, Plaintiff primarily sold to teaching
hospitals in the Albany and Cooperstown, New York areas.
In approximately April 1993, Plaintiff's then supervisor, Richard
Jeffries, accompanied her on certain sales call. Jeffries disapproved of
certain of Plaintiff's tactics, which he stated could cause a client to
feel uncomfortable. Specifically, Jeffries believed that Plaintiff was
standing too close to the physician. Accordingly, Jeffries issued a set
of written objectives for Plaintiff to meet. Plaintiff denies that she
acted inappropriately.*fn2 In support of
her claim, Plaintiff submits the affidavit of the physician to whom
she was selling. The physician states that he did not find Plaintiff to
have acted inappropriately in any way.
Jeffries also claimed to have received several complaints regarding
some of Plaintiff's behavior while on sales calls. Def.'s SMF at ¶¶
20-22. Such behavior included lecturing customers on AIDS,*fn3 failing
to use company sales tactics, using unprofessional language in the
vicinity of medical staff and patients, using religious expressions with
customers, encouraging clients to listen to certain religious radio
stations, and failing to comply with the company's call reporting
procedures and other company policies. See id; Schwartz Aff. at
Ex. 1. Accordingly, Jeffries issued Plaintiff a written warning and
placed her on a sixty-day probation period, Id.*fn4
In December 1993, Plaintiff contacted an attorney who wrote a letter to
Defendant claiming that Jeffries' treatment of Plaintiff was a form of
gender-based discrimination. Jones Aff. at ¶ 14. In early 1994,
Plaintiff was reassigned to another district manager. Id. at
In 1997, a work conflict developed between Plaintiff and a sales
representative from another district, Kelly Fisher. Id. at
¶ 17. Plaintiff believed that Fisher was calling on accounts in
Plaintiff's territory. Id. Plaintiff claims that she attempted
to resolve the matter with Fisher, but that she was not able to do so and
that Fisher became increasingly hostile and belligerent towards her.
Id. at ¶ 19. Plaintiff further states that Fisher's brother
and one of her friends, both of whom worked for Defendant, also began to
treat Plaintiff in a rude and offensive manner. Id. at ¶
20. Sometime in 1997, Plaintiff experienced several flat tires on her
company car. Id. at ¶ 22. Plaintiff was suspicious that the
flat tires were related to her problems with Fisher. Id.
In 1998, Plaintiff complained to her then manager, Maury Crawford,
about Fisher. Id. at ¶ 26. Crawford was unable to resolve
the matter with Fisher's manager. Id. Plaintiff then requested
that Regional Vice President Jay Schwartz assist in resolving the matter.
Id. at ¶ 27. In May 1998, Schwartz met with both Plaintiff
and Fisher.*fn5 Id. at ¶ 28. Schwartz counseled Fisher and
Plaintiff on better communication skills. Def.'s SMF at ¶ 25.
Plaintiff further contends that "Mr. Schwartz brought up the issue of my
`turning in' Mr. Richard Jeffries, which had occurred some five years
previously. I felt that this reference was
completely inappropriate and delivered a clear message to Ms.
Fisher that I was a trouble maker and obviously the one to blame for any
problems." Jones Aff. at ¶¶ 29-30.
During 1997-1998, Plaintiff was instrumental in setting up a
health care related web site in partnership with the New York State
Department of Aging. Id. at ¶ 40. "When the work on the web
site was to be expanded, [Plaintiff] was abruptly told that [she] would
no longer be in charge of [the] project and that it was being turned over
to a male by the name of Jerry Malloy." Id. at ¶ 41.
Plaintiff also maintains that "[d]uring this period when [she] received
company sales awards, they were not announced at company meetings as were
other employees' awards." Id. at ¶ 43.
Plaintiff alleges that in February 1999, Colleen Ziegler, a district
sales manager, overheard Schwartz saying that he was looking for a way to
"get rid of Donna Jones." Id. at ¶ 35; Ziegler Aff. at
¶ 8. Plaintiff contends that her district manager, David Mosher, made
similar comments. Jones Aff. at ¶ 36; Ziegler Aff. at ¶ 10.
In July 1999, Plaintiff filed a written complaint to Defendant's human
relations department. In the complaint, Plaintiff claimed to be the
victim of age and gender-based discrimination. Pl.'s Ex. 4. In December
1998, Plaintiff received her 1998 performance review. Jones Aff. at ¶
37. Although Plaintiff expected the highest rating, she "only received an
adequate rating." Jones Aff. at ¶¶ 37-38. On February 2000, Defendant
responded to Plaintiffs complaint stating that, after investigation, her
complaints were unfounded. Pl.'s Ex. 5.
In early 2000, Plaintiff was assigned to a new district manager, Dan
Fitzpatrick, and a new regional vice president, Joseph Abdalla. Jones
Aff. at ¶. 51. In the Spring of 2000, Plaintiff spoke to Fitzpatrick
about being accepted into a particular management training
program. Id. at ¶ 53. Fitzpatrick and Abdalla met "to
discuss a plan on how best to talk with Donna Jones regarding her
interest in the . . . program." Pl.'s Ex. 7. Plaintiff was not accepted
into the program. Id.
Plaintiff further claims that, throughout 2000, Fitzpatrick, Mosher and
Abdalla openly stated at managers' meetings that they wanted to document
a case against Plaintiff so they could get rid of her. Jones Aff. at
¶ 55; Borgus Aff. at ¶ 7. At some of these same managers'
meetings, another district sales manager, Joseph Burczak, is purported to
have stated that he was adept at getting rid of "old deadwood" employees.
Jones Aff. at ¶ 56; Borgus Aff. at ¶ 8. Abdalla is claimed to
have stated that "Glaxo isn't a home for retired workers." Pl.'s Ex.
At a 2001 meeting, Mosher is claimed to have stated that "[t]here is no
way I am going to let [Plaintiff] see the field doctors." Borgus Aff. at
¶ 11. In 2001, GSK restructured its sales department. According to
Plaintiff, "[t]he intent of this change was to have the former hospital
reps be integrated into selling to field locations outside of hospitals."
Jones Aff. at ¶ 59. Under the change, sales representatives were
assigned to one of two different sales plans: (1) 80% direct sales from
hospitals and 20% field sales ("80/20"); or (2) 50% direct sales from
hospitals and 50% field sales ("50/50"). Id. at ¶ 61.
Plaintiff was placed in the 80/20 plan. Two other males were placed in
the 80/20 plan. Pl.'s Ex. 10. Three males were placed in the 50/50 plan.
Plaintiff contends that her placement in the 80/20 plan is the
effectuation of Mosher's claimed intent not to allow her to see the field
doctors. Jones Aff. at ¶. 65. According to Defendant, "GSK's home
office, not plaintiff's supervisor, . . .
assigned incentive weightings according to market dynamics for
employees with similar job responsibilities and gender was not a factor."
Def.'s SMF at ¶ 48.*fn7
In November 2001, Defendant held a managers' meeting during which there
was discussion concerning a new form that was used to document managers'
meetings with sales representatives. Jones Aff. at ¶ 72. Fitzpatrick,
Mosher and Abdalla discussed the possibility of not using the new form
with Plaintiff because "they were worried about comments which she might
write on the form and how they `didn't want to start all over' in
documenting a case for termination of Ms. Jones." Borgus Aff. at ¶
In January 2002, Plaintiff's district was assigned to a new region that
was headed by Schwartz. Defendant apparently received complaints from
Plaintiff's co-workers that she was making derogatory comments about
other employees. Def.'s SMF at ¶ 27. Schwarz directed Defendant's
human resources department to investigate. Id. After
investigation, Defendant determined that Plaintiff had disrupted the work
environment. Id. at ¶ 29. Accordingly, Plaintiff was placed
on a 30-day warning period. Id. The warning was lifted on May
29, 2002. Id. at ¶ 30.
In March 2002, Plaintiff took a leave of absence. She returned to work
in April 2002. At that time, Mosher assigned two sale representatives,
both of whom are purported to have been in their early 30s, to call on
some of Plaintiff's hospital clients. Jones Aff. at ¶ 83. In March
2003, Plaintiff again went out on leave. Plaintiff's company-provided
disability benefits ran out on September 26, 2003. Plaintiff did
not return to work. On September 26, 2003, Defendant terminated
III. STANDARD OF REVIEW
It is well settled that on a motion for summary judgment, the Court
must construe the evidence in the light most favorable to the non-moving
party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.
1999), and may grant summary judgment only where "there is no genuine
issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine
if the relevant evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden
of informing the court of the basis for the motion and of identifying
those portions of the record that the moving party believes demonstrate
the absence of a genuine issue of material fact as to a dispositive
issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If
the movant is able to establish a prima facie basis for summary judgment,
the burden of production shifts to the party opposing summary judgment
who must produce evidence establishing the existence of a factual dispute
that a reasonable jury could resolve in his favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party
opposing a properly supported motion for summary judgment may not rest
upon "mere allegations or denials" asserted in his pleadings,
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir. 1994), or on conclusory allegations or unsubstantiated speculation.
Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998). With this standard in mind, the Court will
address the defendant's motion.
a. Title VII and ADEA
Plaintiff contends that she was the victim of a gender and/or age-based
hostile work environment. Plaintiff also asserts claims of disparate
treatment on account of her age and gender. In support of all of these
claims, Plaintiff argues that she was humiliated by Schwartz in 1998;
Schwartz failed to address Plaintiff's conflict with Fisher; she was the
victim of several unexplained slashings of the tires on her car; in 1999,
Schwartz and Mosher openly admitted their desire to get rid of Plaintiff;
she was taken off of the web site project; in December 1998, she received
an adequate rating (as opposed to an exemplary rating) on her performance
review; during the period of 1997-1998, the sales awards that Plaintiff
earned were not announced at company meetings; her complaint of
discrimination was not properly investigated; in 2000, Abdalla and
Fitzpatrick indicated a desire to get rid of Plaintiff; Burczak stated at
a manager's meeting that he knew how to get rid of "old deadwood"
employees; Abdalla stated that Defendant is not a place for retired
workers; Defendant devised a "plan" on how to handle Plaintiff's request
to participate in a certain training program; Mosher stated that he would
not let Plaintiff get near certain field customers; Plaintiff was placed
on the 80/20 sales plan; Plaintiff was the target of rude and demeaning
treatment by colleagues and managers at meetings; Mosher asked
certain younger sales representatives to call on some of Plaintiff's
customers without proper coordination; and Defendant issued a verbal
warning to Plaintiff.
1. Hostile Work Environment
Plaintiff first claims that the foregoing is evidence of an age-based
or gender-based hostile work environment.
As the Second Circuit has explained,
In order to prevail on a hostile work environment
claim under Title VII, a plaintiff must show that
the harassment was sufficiently severe or
pervasive to alter the conditions of the victim's
employment and create an abusive working
environment. . . . This test has objective and
subjective elements: the misconduct must be severe
or pervasive enough to create an objectively
hostile or abusive work environment, and the
victim must also subjectively perceive that
environment to be abusive. Among the factors to
consider when determining whether an environment
is sufficiently hostile are the frequency of the
discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a
mere offensive utterance; and whether it
unreasonably interferes with an employee's work
performance. In determining whether a hostile
environment exists, we must look at the totality
of the circumstances. As a general rule, incidents
must be more than episodic; they must be
sufficiently continuous and concerted in order to
be deemed pervasive. While the standard for
establishing a hostile work environment is high,
we have repeatedly cautioned against setting the
bar too high, noting that while a mild, isolated
incident does not make a work environment hostile,
the test is whether the harassment is of such
quality or quantity that a reasonable employee
would find the conditions of her employment
altered for the worse. The environment need not be
unendurable or intolerable. Nor must the victim's
psychological well-being be damaged. In short, the
fact that the law requires harassment to be severe
or pervasive before it can be actionable does not
mean that employers are free from liability in all
but the most egregious cases.
Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003)
(internal citations, quotations and alterations omitted). Of course, to
be actionable, any offensive conduct must be because of a protected
characteristic, such as age or gender. See Alfano v. Costello,
294 F.3d 365, 374 (2d Cir. 2002).
2. Hostile Work Environment Was the Alleged
Conduct Sufficiently Severe or Pervasive?
As an initial matter, considering all the evidence in its totality, the
Court finds that the complained of conduct is neither sufficiently
severe, nor sufficiently pervasive to constitute a hostile work
environment. Plaintiff points to isolated and sporadic events that
occurred primarily during that last five or six years of her fifteen
years of employment with Defendant. There is nothing particularly hostile
or abusive about the conduct to which Plaintiff was allegedly subjected.
Plaintiff's evidence falls far short of the type of conduct that the
Second Circuit has held sufficient to establish a hostile work
environment. In fact, the Second Circuit has found far more egregious
conduct to be insufficient as a matter of law to establish a hostile work
environment. See Alfano, 294 F.3d at 379 (citing cases).
Most of Plaintiff's allegations are not the type of conduct typically
considered to constitute a hostile work environment and can be classified
as minor inconveniences or annoyances or otherwise completely irrelevant
to a claim of unlawful discrimination. For example, the failure to
address the conflict between Plaintiff and Fisher is normally not the
type of conduct attributable to a hostile work environment. This is
simply a disagreement with the way management handled a particular
situation. In any event, it was a discrete incident that does not appear
to have any connection with Plaintiff's other allegations. With
respect to the tire slashings, Plaintiff has no evidence that
Defendant or any of its employees had anything to do with that and to
conclude otherwise would be to accept pure conjecture. Plaintiff also
points out that her supervisors made comments about wanting to get rid of
her. While such comments may be unpleasant and distressing to an employee
to hear, in an at-will employment situation, absent evidence of some
unlawful discrimination behind the comments, they are not
actionable.*fn8 In any event, Plaintiff identified only two such
instances. Defendant's failure to openly announce Plaintiff's sales
awards is not particularly severe, but, at most, is a trivial matter over
which Plaintiff may have been upset. Plaintiff also contends that her
managers devised a "plan" to handle her request to participate in a
manager's training course. It is unclear how this is discriminatory or
how it could be upsetting. To the extent it is upsetting to Plaintiff, it
is not particularly upsetting from an objective standpoint and can only
be characterized as minor.
Next, being the subject of rude and demeaning treatment by managers and
colleagues certainly can be annoying. However, Plaintiff failed to
specify any such rude and demeaning treatment or the severity and/or
pervasiveness of any such treatment. Receiving a verbal warning also can
be upsetting, but the warning alleged by Plaintiff is an isolated event
unrelated to any of the other conduct about which she complains. In fact,
all the events cited by Plaintiff appear to be largely isolated,
unrelated, and to have been committed by different persons. Thus, even
considering the evidence in its totality, there is insufficient evidence
upon which a fair-minded trier of fact could reasonably conclude that
Plaintiff was subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of
her employment and create an abusive working environment.
Accordingly, the hostile work environment claims must be dismissed.
3. Disparate Treatment Claims Whether
Plaintiff Suffered Any Adverse Employment Action
To establish a claim of disparate treatment, Plaintiff must demonstrate
that: (1) she is a member of the protected class (age for her ADEA claim;
female for her Title VII claim); (2) she was qualified for the position;
(3) she was subjected to an adverse employment action; and (4) that the
adverse employment action occurred under circumstances giving rise to an
inference of unlawful discrimination. See Terry, 336 F.3d at
138. Under the familiar McDonnell Douglas burden shifting
scheme, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), if Plaintiff establishes a prima facie case, there is a
presumption of unlawful discrimination. The burden then shifts to the
employer to proffer a legitimate, non-discriminatory reason for its
action. If the employer satisfies this burden, any presumptions of
discrimination are erased and Plaintiff is left to submit sufficient
evidence from which a fair-minded trier of fact could reasonably conclude
that "the defendant's employment decision was more likely than not based
in whole or in part on discrimination.'" Terry, 336 F.3d at 138
(quoting Stern v. Trustees of Columbia Univ. in City of New
York, 131 F.3d 305, 312 (2d Cir. 1997)).
Plaintiff identifies three purported adverse employment actions: (1) a
loss of bonuses due to a discriminatory sales plan; (2) lack of
opportunity for promotion; and (3) constructive discharge. See
Pl.'s Mem. of Law at ¶ 17.
As the Second Circuit has stated
A plaintiff sustains an adverse employment action
if he or she endures a materially adverse change
in the terms and conditions of employment. To be
materially adverse a change in working conditions
must be more disruptive than a mere inconvenience
or an alteration of job responsibilities. A
materially adverse change might be indicated by a
termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly
diminished material responsibilities, or other
indices unique to a particular situation.
Galabya v. New York City Bd. of Educ., 202 F.3d 636
, 640 (2d
Cir. 1998) (internal quotation, citations and alterations omitted).
a. The 80/20 Sales Plan
Here, there is no evidence that placing Plaintiff in the 80/20 sales
plan constituted an adverse employment action. Although Plaintiff claims
that she lost bonuses, she provides no evidence in support thereof.
Defendant, on the other hand, presented undisputed evidence that
Plaintiff received pay increases at least annually, that her sales
territory never changed, that Defendant's changes to its sales structure
had little effect on Plaintiff, and that she always had the teaching
hospitals in the Albany and Cooperstown areas. Def.'s SMF at ¶¶ 8-9,
14-15. It must be remembered that, at all times prior to the new sales
plan, Plaintiff primarily worked with the hospitals, not the "field"
doctors. Thus, the new sales plan did not effectuate much of a change for
Plaintiff, except that she was now afforded the opportunity to make some
field sales. Other than making the unsubstantiated allegation that other
salespeople had higher sales than she, Plaintiff does not offer any
evidence how the new sales plan was materially adverse. For example,
there is no evidence that the new sales plan amounted to a demotion, a
decrease in salary or benefits, a less distinguished title, was less
prestigious, involved significantly diminished responsibilities, involved
a material change
in duties, precluded Plaintiff from obtaining significant bonus
levels, or anything else materially adverse. See Sanders v. New York
City Human Resources Admin., ___ F.3d ___, 2004 WL 504603, at *4-5
(2d Cir. 2004). Accordingly, the Court finds that placing Plaintiff in
the 80/20 sales plan did not constitute an adverse employment action.
b. Lack of Promotional Opportunities
Plaintiff also claims that she was denied promotional opportunities in
June 2000. See Pl.'s Ex. 7. Specifically, Plaintiff claims that
she was not permitted to participate in a certain management training
program. Id. Under Title VII and the ADEA, this claim is
time-barred because it is a discrete act of alleged discrimination that
occurred more than 300 days before the filing of the EEOC charge on June
21, 2002. 42 U.S.C. § 2000e-5(e)(1); see Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109-15 (2002). Any other alleged
adverse employment actions that occurred before August 25, 2001 (such as,
for example, the 1998 performance review) are similarly time-barred.
c. Constructive Discharge
Finally, Plaintiff claims that she was constructively discharged ten
months after she filed the Complaint in this action.*fn9 To establish a
constructive discharge, Plaintiff must demonstrate that her employer
acted deliberately to "make  [her] working conditions so intolerable
that [she] is forced into an involuntary resignation." Lopez v. S.B.
Thomas, 831 F.2d 1184, 1188 (2d Cir. 1987). "[W]orking conditions
are intolerable when, viewed as a whole, they are `so difficult or
unpleasant that a reasonable person in the employee's shoes
would have felt compelled to resign.'" Terry, 336 F.3d at
152 (quoting Chertkova v. Connecticut Gen. Life Ins. Co.,
92 F.3d 81, 89 (2d Cir. 1996). For the reasons previously discussed with
respect to the hostile work environment claim, no fair-minded trier of
fact could reasonably conclude that Defendant intentionally made
Plaintiff's working conditions so intolerable that she was forced to
resign involuntarily. Although Plaintiff may have suffered panic attacks
and anxiety, from an objective standpoint, there is insufficient evidence
in the record that Plaintiff's working conditions were so intolerable
such that an ordinary person would feel compelled to resign.*fn10 Thus,
there was no constructive discharge and it would be fufile for Plaintiff
to amend her Complaint to add allegations of constructive discharge.
4. Hostile Work Environment and Disparate Treatment
Claims Did the Conduct Take Place Under Circumstances Giving Rise
to an Inference of Discrimination
Assuming Defendant's conduct could be considered sufficiently severe
and/or pervasive (which it cannot) and that Plaintiff did suffer adverse
employment actions (which she did not), there is insufficient evidence
from which a fair-minded trier of fact could reasonably conclude that any
such conduct was based on Plaintiff's gender or age. Most of Plaintiff's
evidence is comprised of facially-neutral incidents with which Plaintiff
was displeased. "Facially neutral incidents may be included, of course,
among the `totality of the circumstances' that courts consider in any
hostile work environment claim, so long as a reasonable fact-finder
could conclude that they were, in fact, based on sex [or age]. But this
requires some circumstantial or other basis for inferring that incidents
sex [or age]-neutral on
their face were in fact discriminatory." Alfano, 294 F.3d
at 378. With respect to the discrete instances, there too, Plaintiff must
provide some basis upon which the trier of fact could reasonably infer
that it was motivated by unlawful discrimination.
Here, there is no basis upon which a fair-minded trier of fact could
reasonably conclude that the instances alleged by Plaintiff were based
upon her gender and/or age. The closest Plaintiff comes to demonstrating
evidence of gender-based or age-based conduct are her allegations that
Schwartz humiliated her in front of Fisher by mentioning that Plaintiff
"turned in" Jeffries for sex discrimination, Plaintiff was given the
80/20 sales plan while certain male employees were placed on the 50/50
plan, Plaintiff was removed from the internet project and replaced by a
male employee;*fn11 Burczak discussed getting rid of "old deadwood"
employees; Abdalla stated that Defendant was not a place for retired
workers; and Mosher directed younger sales representatives to call on
some of Plaintiff's customers.*fn12
As the Second Circuit has warned,
Everyone can be characterized by sex, race,
ethnicity, or (real or perceived) disability; and
many bosses are harsh, unjust, and rude. It is
therefore important in hostile work environment
cases to exclude from consideration personnel
decisions that lack a linkage or correlation to
the claimed ground of discrimination. Otherwise,
the federal courts will become a court of
personnel appeals. See, e.g., Byrnie v. Bd.
of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
("[The court's] role is to prevent unlawful hiring
practices, not to act as a superpersonnel
department that second guesses employers' business
judgments.") (quoting Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse
Servs., 165 F.3d 1321, 1330 (10th Cir. 1999)
(internal quotation marks omitted)); see also
Rojas v. Florida, 285 F.3d 1339, 1342 (11th
Cir. 2002) (federal courts "are not in the
business of adjudging whether employment decisions
are prudent or
fair. Instead, our sole concern is whether
unlawful discriminatory animus motivates a
challenged employment decision") (internal
quotation marks omitted). Moreover, many personnel
decisions can be ascribed to discrimination no
matter what the supervisor does. Thus, it is easy
to claim animus whether a supervisor resorts to
counseling (if this is seen as a form of
discipline) or not (if lack of guidance is deemed
to set up an employee for harsher discipline).
Alfano, 294 F.3d at 377-78.
The evidence in the record is that, although Schwartz may have brought
up her complaint against Jeffries, there is no indication, direct or
circumstantial, that he brought up the complaint because of Plaintiff's
age or gender. At the particular meeting when the issue came up, Schwartz
was counseling two female employees regarding communication issues. No
inference of discrimination can be made from this incident. Moreover,
there is no other hostile conduct attributable to Schwartz. There is
simply no indication that Schwartz acted because of Plaintiff's gender or
There is similarly a lacking of any link between Plaintiff's age or
gender to her removal form the internet project. It is easy to jump to
the conclusion that there was gender-based discrimination where a female
who was working on a project was replaced by a male. If that fact alone
were sufficient to withstand summary judgment, then the Courts would be
flooded with discrimination claims. There must be something more,
however, suggesting that Plaintiff was removed from the position because
she was a female. Here, there is nothing more. Defendant has submitted
evidence that it selected a male employee who had particular computer
expertise to work on the internet project. Mosher Aff. at ¶ 9.
Plaintiff has not cast any doubt on this explanation or offered any other
evidence tending to suggest that Plaintiff was removed from the internet
project because of her gender. Thus, the mere fact that Plaintiff, a
female, was taken off the job and replaced by a male, does not give rise
inference of discrimination. Moreover, there is no indication that
this constituted an adverse employment action or that it was in any way
related to an adverse employment action.
Plaintiff next points to the 80/20 sales plan that she was given. The
evidence in the record is that two other males were placed in the 80/20
plan and three males were placed in the 50/50 plan. Pl.'s Ex. 10. Based
on the facts that two other males were placed in the 80/20 plan, it is
difficult to conceive how any inference can be made that Plaintiff was
placed in the 80/20 on account of her gender.*fn13 Moreover, the
undisputed evidence in the record is that none of Plaintiff's managers or
supervisors or any other persons claimed to be involved in any hostile
work environment or other discriminatory conduct were involved in the
decision to place Plaintiff in the 80/20 sales plan. As Plaintiff
admitted, that decision was made by Defendant's home office based on
gender-neutral criteria. Schwartz Aff. at ¶ 14; Def.'s SMF at ¶
48.*fn14 Even assuming Plaintiff's supervisors were involved in the
assignment of sales plans and further taking Plaintiff's assertion as
true that she was not given the 50/05 plan because Mosher refused to
permit Plaintiff to see the field doctors, see Jones Aff. at
¶ 65, there is no evidence that Mosher's actions were attributable to
Plaintiff's gender or age. There is no evidence in the record making it
any more likely that Mosher acted on account of Plaintiff's gender or age
than for any other reason.
In her affidavit, Donna Borgus, a former district sale manager with
Defendant, states that:
6. During my time as a District Manager I attended
many meetings of sales managers.
7. On at least three separate occasions during
this time I heard David Mosher, Dan Fitzpatrick
and Regional Vice President, Joseph Abdalla
discussing how they wanted to document a case
against Donna Jones so that they could get rid of
8. I also heard another District Manager, Mr. Joe
Burczak, state at these same meetings that he was
adept at getting rid of the "old deadwood"
employees and that he could advise other managers
on how to rid themselves of these types of
employees. He joined the discussions mentioned
above for this purpose.
A statement about getting rid of "old deadwood" employees could be
circumstantial evidence of age discrimination. However, there is no
evidence that Burczak was involved in any of the conduct contributing to
the alleged hostile work environment or in any adverse employment
actions. There also is an absence of any evidence that Plaintiff's
supervisors asked for, condoned, or otherwise acted in accordance with
Burczak's comments. The motives of a third-party (Burczak) cannot be
attributable to Plaintiff's supervisors (Mosher, Fitzpatrick and
Abdallah) without some indicia that her supervisors somehow acted
pursuant to the motives of that third-party or that Burczak was a top
executive responsible for setting corporate policy. See Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87
, 92 (2d Cir.), cert.
denied, 534 U.S. 951 (2001). Here, there is no such indicia. In any
event, any adverse employment action that can be related to comments made
in 2000 are time-barred for the reasons previously stated. Further, it is
undisputed that Plaintiff was ultimately terminated because she failed to
return to work after her leave of absence.
Plaintiff also points to Abdalla's alleged statement that Defendant is
not a place for retired workers. Such a statement by a manager could give
rise to an inference of age-based discrimination, although the true
meaning of any such statement is unclear. Assuming
Abdalla made such a statement and that it has a negative
connotation with respect to older workers, Plaintiff does not connect it
in any way to any alleged adverse employment action. First, it is
entirely unclear when any such statement was made. Scofield Dep. at 73
(indicating that the statement was made sometime in the two year period
prior to October 2003). Second, as discussed, Plaintiff has not
identified any adverse employment action.
Plaintiff also alleges that, in or about April 2002, Mosher "began to
assign two sales reps in their early 30s, Caroline Potvin and Connie
Kinney, to call on some of my hospital clients." Jones Aff. at ¶ 83.
Giving Plaintiff's accounts to younger sales representatives could give
an appearance of age-based discrimination.*fn15 Mosher admits that he
did ask these two individuals to call upon certain doctors at the Albany
Medical Center. Mosher Aff. at ¶ 10. Mosher explains that "I asked
Ms. Kinney to call upon a doctor with whom she had developed a
long-standing relationship in her prior employment with another
pharmaceutical company. Ms. Potvin and Ms. Kinney both called on doctors
in AMC along with Ms. Jones." Id. This is a legitimate,
non-discriminatory explanation. In response, Plaintiff has not cast doubt
upon this explanation or otherwise proffered any evidence tending to
suggest that this action was taken on account of Plaintiff's age.
Plaintiff's allegation that "[she] was convinced that Mr. Mosher was
directing these young sales reps to make me look bad in front of the
customers in order to force me out of the company so that he could assign
my customers to younger sales reps" is conclusory and based upon pure
speculation. Plaintiff offers no evidence from which it reasonably may be
inferred that Mosher acted on account of Plaintiff's
age. Moreover, there is no evidence that Plaintiff suffered any
adverse employment action on account of Mosher's actions.
None of the other alleged discriminatory conduct can be linked to any
discriminatory motive. For the foregoing reasons, the Court finds that
there is no evidence in the record upon which a fair-minded trier of fact
could reasonably conclude that Defendant acted on account of Plaintiff's
age or gender. Accordingly, Plaintiff's claims for a hostile work
environment and for disparate treatment under Title VII and ADEA claims
5. Retaliation Claims
Plaintiff next contends that she was retaliated against for having: (1)
complained of discrimination in 1993; (2) complained of discrimination in
1999; and (3) filed a charge of discrimination with the EEOC in June
To establish a prima facie case of retaliation, Plaintiff must show
that: (1) she engaged in protected activity; (2) Defendant was aware of
this activity; (3) Defendant took adverse employment action against her;
and (4) a causal connection exists between the alleged adverse action and
the protected activity. Sanders, 2004 WL 504603, at *3.
As previously discussed, Plaintiff has failed to demonstrate any timely
adverse employment actions. Assuming Plaintiff can demonstrate timely
adverse employment actions, she has failed to submit any evidence of a
causal connection between her protected activity and any adverse
employment actions. Plaintiff was not denied participation in the
training program until at least one year after her July 1999 complaint of
discrimination. Thus, no inferences can be drawn from the timing of these
events. See Hollander v. Am. Cyanamid Co., 895 F.2d 80 (2d Cir.
1990). Plaintiff offers no other evidence tending to suggest that she was
not permitted to participate in the training program on account of
complaints. In fact, Plaintiff's own exhibit concerning the
training program indicates that she was not admitted into the program
because she did not have the proper skill sets. Plaintiff offers nothing
to refute this or to otherwise suggest that her gender or age was the
Similar reasons apply to any claimed adverse employment actions
resulting from her 1993 and 2001 complaints of discrimination. Nothing is
claimed to have happened as a direct result of the 1993 complaint.*fn16
To the extent Plaintiff claims that it was the impetus for later actions,
any causal connection is too attenuated. Id. Plaintiff also is
unable to connect her 2001 charge of discrimination filed with the EEOC
with any adverse employment action. As previously discussed, putting
Plaintiff on the 80/20 sales plan was not an adverse employment action.
Plaintiff's termination in 2003 is far too removed in time from the 2001
charge of discrimination to give rise to an inference of retaliation.
Id. Moreover, the evidence is that Defendant terminated
Plaintiff because she did not return to work after a leave of absence.
Plaintiff does not refute this.
For the foregoing reasons, Defendant's motion for summary judgment is
GRANTED; Plaintiff's cross-motion for leave to file an amended Complaint
is DENIED; and the Complaint is DISMISSED IN ITS ENTIRETY. To the extent
any of Plaintiff's HRL claims remain, the Court declines to exercise
supplemental jurisdiction over any such claims. The Clerk of the Court
shall close the file in this matter.
IT IS SO ORDERED.