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United States District Court, W.D. New York

April 20, 2004.


The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

Plaintiff commenced this action November 20, 2001 alleging that defendants had violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State Human Rights Law, N.Y Exec. Law § 290 et seq., by subjecting her to a hostile work environment, discriminating against her because of her gender and retaliating against her after she complained of the alleged discriminatory conduct. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's claims. For the reasons stated hereinbelow, defendants' motion will be granted.

The following facts, construed favorably for plaintiff, are undisputed unless otherwise noted. Reed was employed by Belknap Heating and Cooling, Inc. ("Belknap") from July 5, 2000 until November 13, 2000. Gorenflo is Belknap's President and sole shareholder. Plaintiff was hired by Baumler to work in the company's service department.*fn2 Three employees worked in the service department — Reed, Baumler and Stephanie Stillwell. Baumler was plaintiff's supervisor and the manager of the service department. Stillwell was out of work on maternity leave from August 30, 2000 until October 16, 2000. Plaintiff contends that, throughout her time as an employee at Belknap, Baumler "regularly made comments of a sexual nature either directly to Plaintiff or in her presence." Compl. ¶ 21. Plaintiff makes the following allegations regarding Baumler's conduct towards her: that (1) in July 2000, he told her that had planned to meet a woman through an answering service and that he made plans to "do it" with the woman, (2) he thereafter told her that he had met the woman but that she was "fat and ugly" and that there was no way he "was going to put his thing in her," (3) he told her that he could never get enough sex, commenting that his hormones were akin to that of a teenager, (4) on several occasions, sometime in October and November, he asked her to sit on his lap and made gestures towards her whereby he would simulate masturbatory acts, (5) throughout her time of employment, he would ask her to look at pornographic materials*fn3 that he had displayed on his computer, (6) in October, he told her that he had driven by her house on a previous occasion and noticed that no lights had been on, commenting that her and her husband must have been "doing it," (7) during one week in September or October, he performed several "puppet shows" whereby he manipulated gourds that he had brought into the office in such a manner as to simulate sexual intercourse,*fn4 (8) he had asked for her e-mail address so that he could send her some "porno," and (9) he and Mark Gerace, another service technician, made several sexual remarks to her on the dispatch radio.*fn5 See Reed Aff. ¶¶ 8-24. Reed alleges that she found such conduct to be offensive, humiliating and inappropriate for the workplace and that she repeatedly complained to Baumler about his behavior. Id. ¶¶ 10, 13-14, 24. Reed also contends that Baumler changed her job duties shortly after she threw the gourds away. According to Reed, Baumler had told her she would no longer be performing dispatch duties and informed her that her duties would be limited to that of a customer service representative.*fn6 Id. ¶ 25. Reed subsequently went to Gorenflo, Belknap's President, and offered her services to work for Belknap as a bookkeeper.*fn7 However, Reed states that Gorenflo never responded to her offer. She also contends that she was never trained for the position of manager of the service department and that she had learned that the job was promised to Gerace. Id. ¶ 27. Reed subsequently requested a meeting with Baumler on November 6 in order to discuss her concerns regarding her lack of training for a manager's position and to complain about his allegedly inappropriate conduct. Id. ¶ 28.*fn8 Immediately prior to the meeting, Reed placed a tape recorder in her coat in order to tape the conversation. Baumler did not know that their conversation was being recorded by Reed. According to a transcript of the conversation, Reed initially questioned Baumler as to why she was not being trained for the service department manager position. See Pl.'s Ex. Q, at 1. Baumler assured Reed that she was still being considered to eventually replace him as the service manager but also explained to her that he didn't feel that she was yet ready, or "up to par," to handle his job. Id. at 1-3.*fn9 In addition, Reed complained about Baumler's "sexual comments" and asked him to stop making them. Id. at 5. Baumler repeatedly apologized to Reed for such behavior. Id. at 5-7. Finally, Reed stated that she was considering whether to inform Gorenflo of Baumler's actions. Later that day, Baumler informed Gorenflo of his conversation with Reed and her complaints regarding the alleged sexual harassment. Reed asserts that Baumler avoided her thereafter during the course of the following week.*fn10 Reed subsequently spoke with Gorenflo on November 11 about her concerns regarding Baumler. Reed again surreptitiously taped the conversation. Reed initially told Gorenflo about her conversation with Baumler and that she had complained to Baumler about his "offensive" conduct. Defs.' Ex. G, at 2.*fn11 Reed also described to Gorenflo some specific incidents involving Baumler and expressed her displeasure with the fact that Baumler had not been training her to take over as the manager of the Service Department as he had originally promised. Id. at 5-9. Reed also informed Gorenflo that her anxiety level was high and that she was experiencing panic attacks. Id. at 3-5.*fn12 Gorenflo acknowledged that Baumler had spoken to him about Baumler's and Reed's previous conversation and assured her that he did not condone Baumler's alleged conduct. Finally, Gorenflo told Reed that he would try to schedule a meeting with Baumler on the following Monday so that they could all discuss the issues that had been brought to his attention. The meeting never occurred.*fn13 After she arrived for work on that Monday, plaintiff left for a previously scheduled doctor's appointment. Reed's physician placed her on total disability, which Reed alleges was due to anxiety, depression and sleeplessness. Reed Aff. ¶ 34; Pl.'s Ex. R. Reed returned to work after her appointment to turn in some disability forms. Upon returning, at Gorenflo's request, Reed met with Mary Lou Vogel, who was Belknap's office manager, in order to discuss her concerns regarding Baumler's conduct. Reed complained to Vogel about Baumler's alleged sexual harassment and detailed some of the specific incidents that she had previously discussed with Gorenflo.*fn14 At the conclusion of the meeting, Reed told Vogel that she needed to go home.*fn15 Reed left work and never returned to work. Gorenflo asserts that he subsequently interviewed Baumler about Reed's allegations. According to Gorenflo,

"Baumler acknowledged making a number of the remarks which Ms. Reed had characterized as sexual harassment, but denied attempting to show Ms. Reed any pornographic video tapes, denied making gestures of a sexual nature to Ms. Reed, and denied that the placement of gourds on a shelf in the service department had been intended to have a sexual connotation. However, Mr. Baumler did acknowledge that Ms. Reed may have construed the gourds to have been arranged in a sexual manner." Gorenflo Aff. ¶ 31.
In addition, after an interview with Stillwell, Gorenflo concluded that she was not "made uncomfortable by anything Mr. Baumler had said or done," and that none of the other women in the office had complained of Baumler's conduct. Id. ¶¶ 30-32. Gorenflo asserts that he intended to resolve the matter upon Reed's return to work from her disability leave, which was originally scheduled for December 17, 2000. However, Reed's period of disability was subsequently extended to January 2, 2001. Gorenflo subsequently placed a letter of reprimand*fn16 in Baumler's file and sent a December 19, 2000 letter to Reed informing her of a final resolution with regard to her complaints. In the letter, Gorenflo noted that Baumler had been warned about his conduct and also that if any similar incidents occurred in the future he could be subject to further discipline, including suspension or termination of his employment. See Defs.' Ex. B, Bates No. 9. In addition, Gorenflo advised Reed that he had distributed a Notice to all of Belknap's employees advising them of Belknap's harassment policy and noting that violations of such policy could result in disciplinary action. Ibid. Reed subsequently contacted Gorenflo via telephone on December 26, 2000 and complained to him about his handling of the matter and the fact that he had not made a better effort to schedule a meeting among the relevant parties. Reed Aff. ¶ 40. Reed also asserts that she had told Gorenflo during the conversation that, although she had been authorized to return to work on January 2, 2001, her doctor had advised her that she could not return if she had to work with Baumler. Id. ¶ 40. During that same conversation, Reed resigned from her position, effective January 2, 2001. See Defs.' Ex. B, Bates No. 11. Plaintiff subsequently filed a charge and complaint of unlawful employment practices with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued plaintiff a right-to-sue letter on September 6, 2001.

  FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact" and that "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party.*fn17 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

  Of course, the summary judgment standard applies with the same force in discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 E Supp.2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.") (quoting Meiri v. Dacon, 759 E2d 989, 998 (2d Cir. 1985)). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.") (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.

  Title VII states that "[i]t shall bean unlawful employment practice for an employer *** to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ***." 42 U.S.C. § 2000e-2(a)(1) (2003). In the absence of direct evidence of discrimination, Title VII claims are analyzed pursuant to burden-shifting framework as espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination.*fn18 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the alleged employment action. Id. at 253 (quoting McDonnell Douglas, at 802). Finally, "should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Ibid.

  For plaintiff to establish a Title VII violation based on a hostile work environment claim, she must show "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotation marks and citations omitted). The discriminatory intimidation alleged by plaintiff must be "offensive or pervasive enough that a reasonable person would find it hostile or abusive and must have been actually perceived by [plaintiff] as abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether an environment is hostile, this Court must look at the totality of the circumstances of the alleged conduct including "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." Harris, at 23. "To withstand summary judgment, a `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous or concerted to have altered the conditions of [his] working environment.'" Horsford, at *9 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000)). Isolated incidents of discriminatory comments or conduct — unless extremely serious — are not sufficient to establish a hostile working environment. See Horsford, at *9 (citing numerous cases as examples for such a proposition).

  Plaintiff has presented sufficient evidence to raise a genuine issue of material fact with regard to her hostile work environment claim. Despite attempts by defendants to characterize Baumler's conduct as "isolated" and "boorish," the record, construed in favor of plaintiff, shows that she was subjected to numerous offensive comments and jokes replete with sexual references. Such comments, which included sexual slurs, sexually-related jokes and various anecdotal references by Baumler in which he had described his attempt to have sex with a woman and his purportedly continuous strong desire to have sex due to his teenage-like hormones, viewed in totality with the fact that Baumler exposed Reed to (1) pornographic images on his computer, (2) the sexual puppet show involving the gourds and (3) his masturbatory simulations are enough to defeat defendants' summary judgment motion.*fn19 See Kotcher v. Rosa & Sullivan Appliance Ctr. Inc., 957 F.2d 59, 61-63 (2d Cir. 1992) (affirming district court's finding that plaintiffs had been subjected to a hostile work environment in which plaintiffs' supervisor had repeatedly subjected them to vulgar comments and gestures, including evidence that the supervisor pretended to masturbate behind the back of one of the plaintiffs); Reimer v. Heritage Asset Mgmt, 1999 WL 409513, at *5 (W.D.N.Y. 1999) (finding four episodes of gender-based harassment over a five-month period to be sufficient to defeat defendant's summary judgment motion); Valentin v. New York City, 1997 WL 33323099, at *6 (E.D.N.Y. 1997) (finding sufficient evidence of a hostile work environment where plaintiff was subjected to, inter alia, daily use of sexually-explicit language, commentary by a supervisor of his sexual exploits and exposed to various pornographic images); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569, 572-573 (W.D.N.Y. 1987) (denying defendant's summary judgment motion where plaintiff had presented evidence of vulgar comments by supervisors and the proliferation of "demeaning pornography"). While defendants dispute plaintiff's account with regard to some of the alleged conduct, as well as the offensive nature of such conduct, such disputes are subject to credibility determinations, and therefore more properly suited for a jury rather than the undersigned on a motion for summary judgment. There is sufficient evidence from which a reasonable trier of fact could conclude that the conduct was severe enough to alter the conditions of Reed's employment*fn20 and that a reasonable person would find such conduct to be offensive.

  Next, defendants argue that, even if Reed had been subjected to a hostile work environment, Belknap is not vicariously liable for such conduct. An employer may be held vicariously liable under Title VII for an actionable hostile work environment that is created by a supervisor with immediate authority over the plaintiff. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). However, in the absence of a tangible employment action taken against the plaintiff, defendant may escape liability by raising an affirmative defense. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, at 765. The parties initially argue over whether plaintiff suffered a tangible employment action. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761. Plaintiff argues that she was subjected to a tangible employment action because (1) she was constructively discharged and (2) Baumler changed her job duties and failed to promote her. Pl.'s Mem. of Law, at 12-13. Plaintiff suffered no tangible employment action. To begin, a constructive discharge does not constitute a tangible employment action in this context. Mack v. Otis Elevator Co., 326 F.3d 116, 127 n.7 (2d Cir. 2003); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294-295 (2d Cir. 1999) (holding that constructive discharge does not constitute a "tangible employment action," as that term is used in the context of the affirmative defense discussed in Ellerth and Faragher). Additionally, defendant did not reduce Reed's compensation, demote her or significantly change her job duties. Any reduction in her job assignments was due to the fact that Stillwell's return from maternity leave had allowed for fewer dispatch duties. Furthermore, although there is evidence that Baumler may have been told initially that she would ultimately be trained for the position of manager, there is no evidence that she was qualified for such a promotion. In fact, if anything, the record shows that Baumler did not think that Reed was ready for such a position*fn21 and that she could not have reasonably expected a promotion after four months on the job.*fn22 In any event, the Court finds that plaintiff was not subjected to a tangible employment action. As such, the Court must determine whether defendants have satisfied their burden in raising their affirmative defense.

  Defendants have satisfied the first prong of their affirmative defense — to wit, that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior — inasmuch as it is undisputed that Belknap had an anti-harassment policy*fn23 in place and that Reed knew about it.*fn24 See Mack, at 128 (finding that the employer had demonstrated the requisite reasonable care because it had an anti-harassment policy in place and because the plaintiff conceded that she knew about it); Caridad, at 295 (same). In addition, defendants have shown that they used reasonable care in correcting the alleged harassment once plaintiff complained to Gorenflo. Two days after Reed first complained to him about Baumler's conduct, Gorenflo asked her to speak with Vogel in order to obtain more details regarding her complaints. As part of the follow-up investigation, Gorenflo interviewed Baumler several times and asked Vogel to interview Stillwell in order to determine whether she witnessed any sexually harassing behavior by Baumler.*fn25 Gorenflo based his ultimate conclusions on such interviews and the fact that no other woman in the office had complained of sexual harassment by Baumler. Plaintiff contends that Belknap's investigation into her complaints was insufficient because, inter alia, Gorenflo neither called at her home with regard to her complaints nor interviewed several other purportedly "key witnesses," — viz., John Wery, Leon Borczynski, Gerace and Rich Whitmier. Pl.'s Mem. of Law, at 15. However, there was no need to re-interview Reed again considering the fact that she had already conveyed her complaints and allegations about Baumler's conduct to him twice before.*fn26 In addition, plaintiff has failed to explain why interviews with the alleged "key witnesses" were vital, or necessary, to Gorenflo's investigation.*fn27 Reed also contends that defendants' "inadequate investigation resulted in a failure to take any remedial action." Id. at 16. However, Reed is not entitled to choose the appropriate penalty. See Gonzalez v. Beth Israel Med. Ctr., 262 E Supp.2d 342, 355 (S.D.N.Y. 2003). "An employer's remedy need not necessarily expel the harasser from the work environment to be effective, but rather it should be `sufficiently calculated to end the harassment.'" Ibid. (quoting Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995). In addition, a "written warning can be an appropriate response if it conveys the message that further harassment will not be tolerated." Ibid, (quotation marks and citation omitted). Baumler's punishment — to wit, the letter of reprimand — was reasonable considering the fact that it explicitly warned him that any further offending conduct may result in his suspension or termination. Thus, the critical inquiry therefore is whether Reed unreasonably failed to avail herself of Belknap's non-harassment policy and any corresponding preventive or corrective measures.

  Defendants bear the ultimate burden of persuasion to show that Reed acted unreasonably in failing to avail herself of Belknap's procedures for complaining about any alleged harassing conduct. If defendants show that Reed failed to avail herself of the relevant complaint procedures, the burden of production shifts to Reed to come forward with one or more reasons why she did not reasonably make use of such procedures. Belknap may rely upon the absence or inadequacy of such a justification in meeting its ultimate burden of persuasion. See Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (discussing the employer's burden in attempting to satisfy the second prong of the Ellerth/Faragher affirmative defense).

  Defendants argue that Reed unreasonably failed to utilize Belknap's anti-harassment policy because, although she initially complained to Baumler about his conduct, she didn't complain to any other member of management until November 11, when she first complained to Gorenflo. Defs.' Mem. of Law, at 11-14. In addition, defendants contend that, once she had complained to Gorenflo about Baumler, plaintiff unreasonably failed to cooperate with Gorenflo in his efforts to resolve the situation. Id. at 14-18. Reed counters that her continual complaints to Baumler about his behavior comported with Belknap's anti-harassment policy inasmuch as he was a manager and because the policy stated that she should "report the matter to the president of or any other member of management."*fn28

  Defendants have satisfied the second prong of their affirmative defense. It is undisputed that plaintiff did not complain to another member of management about Baumler's conduct until November 11, which was two days prior to her last day of work. Plaintiff cannot rely on the fact that she had previously complained to Baumler about his own conduct in attempting to show compliance with Belknap's anti-harassment policy. Although plaintiff may have technically complied with the anti-harassment policy inasmuch as Baumler was a member of management, it was not reasonable for her to continue to complain to him if such complaints had not succeeded in halting his own behavior. When her initial complaints to Baumler did not succeed in preventing his further offensive conduct, the reasonable course of action would have been to complain to a member of management with authority over Baumler, or Gorenflo as the President. Plaintiff contends that she did not do so because she felt that she would lose her job. She bases that assertion on the fact that Baumler had responded to one of her complaints by saying to her that "an employer in New York can fire anyone for any reason." Reed Aff. ¶ 13; see also Reed Dep., at 72. However, plaintiff's subjective fears of retaliation cannot excuse her unreasonable failure to utilize Belknap's anti-harassment policy. For plaintiff's reluctance to report the harassment to preclude defendants' affirmative defense, it must be based on apprehension of what the employer might do in retaliation. Leopold, at 246. The apprehension must be based on a credible fear and it "must be based on more than [plaintiff's] subjective belief." Ibid. "Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against similar employees in response to such complaints." Ibid. Reed has not come forward with such evidence or any evidence which would support a finding that she had a credible fear that her complaints of harassment would result in a reprisal by Belknap. Moreover, plaintiff's apprehension, which was based on what she perceived as a threat from Baumler, is not evidence of a credible fear considering the fact that Belknap's anti-harassment policy included both a confidentiality and a anti-retaliatory provision.*fn29 In sum, the Court finds that defendants have met their burden in asserting the affirmative defense as explained in Faragher and Ellerth and are therefore entitled to summary judgment with regard to plaintiff's hostile work environment claim. Turning to plaintiff's retaliation claim, in order to establish a prima facie case, she must show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [her]; and (3) a causal connection between the protected activity and the adverse employment action." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quotation marks and citation omitted). Plaintiff has not satisfied her burden because she cannot show that she suffered an adverse employment action.

  To constitute an adverse employment action within the context of a Title VII claim, plaintiff must demonstrate that an employment action was one that resulted in a "materially adverse change in the terms and conditions of [her] employment." Richardson, at 446. "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. 2000) (quotation marks and citations omitted). Plaintiff has not alleged anything tangible that could be construed as an adverse employment action for the purpose of establishing her prima facie case. Plaintiff argues that she suffered an adverse employment action because (1) her job duties were reduced — to wit, that her duties were limited to answering phones and that she was no longer permitted to perform dispatch work — after she had complained to Baumler about his actions regarding the gourds, (2) Vogel interrogated her in a "hostile and accusatory" manner after she had complained to Gorenflo and (3) she was required to turn over her keys while out on maternity leave. Pl.'s Mem. of Law, at 21-23. No reasonable trier of fact could find that any one of these actions resulted in a materially adverse change in her working conditions. The only allegation that even comes close to showing a materially adverse change in working conditions is her assertion that her job duties were reduced. However, defendants have explained that any reduction in her job duties was due to the fact that Stillwell, who had been performing such duties prior to her maternity leave, had returned to work after a period of disability. Plaintiff has not come forward to rebut such evidence showing that such explanation is pretextual. Therefore, assuming arguendo that plaintiff could establish a prima facie case of retaliation, she has failed to satisfy the final step of the McDonnell Douglas burden-shifting framework.

  Plaintiff has also failed to raise a triable issue of material fact with regard to her disparate treatment claim. Plaintiff can raise an inference of discrimination by showing that defendants treated her less favorably than a similarly situated employee who is outside her protected group. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Plaintiff argues that she was treated differently than Gerace inasmuch as he has received training for the Service Department manager position while she has not. However, the only evidence that plaintiff has presented in support of such a claim is her assertion that she "learned that [Baumler] had promised *** Gerace the position" of Service Department Manager. Reed Aff. ¶ 27. Such a conclusory assertion, without more, is insufficient to raise a triable issue of fact regarding her disparate treatment claim. See Kerzer, at 400 ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact.").

  Plaintiff has also failed to raise a genuine issue of material fact that she was constructively discharged. In order to maintain her claim, she must show that defendants deliberately made her working conditions so intolerable that she was forced to resign. See Spence v. Maryland Cas. Co., 995 E2d 1147, 1156 (2d Cir. 1993). In addition, plaintiff must also show that such working conditions were "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Stetson v. NYNEX Serv. Co., 995 E2d 355, 361 (2d Cir. 1993) (quotation marks and citation omitted). "[M]ere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge." O'Dell v. Trans World Entm't Corp., 153 E Supp.2d 378, 393 (S.D.N.Y. 2001). Although plaintiff has shown that she suffered panic attacks and anxiety, she has not shown that defendants deliberately made her working conditions so intolerable that a reasonable person would have felt compelled to resign.*fn30

  Finally, summary judgment will be granted to defendants with regard to plaintiff's state law claims under the New York Human Rights Law inasmuch as such claims are analyzed pursuant to the same analysis as that of Title VII claims. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-715 (2d Cir. 1996).

  Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted in its entirety and that the Clerk of this Court shall close this case.

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