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, ...