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United States District Court, S.D. New York

November 16, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Laura Ferraro is suing her former employer, Kellwood Company ("Kellwood"), for violations of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. In particular, plaintiff brings the following claims: (1) failure to provide a non-discriminatory environment;*fn1 (2) discriminatory reduction in salary and demotion; and (3) hostile work environment and constructive discharge. The alleged discriminatory conduct resulted from plaintiff's status as a disabled person, or a person perceived as disabled, due to breast cancer. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant now seeks dismissal of the Complaint on summary judgment. For the following reasons, defendant's motion is granted.


  A. Plaintiff's Employment History

  Kellwood Company ("Kellwood"), headquartered in St. Louis, Missouri, markets apparel and consumer soft goods. See Kellwood Corporate Profile at Kellwood has numerous divisions throughout several states, Canada and Hong Kong that sell women's and men's sportswear and other soft goods. See Corporate Division/Management and Locations at Vintage Blue, one of Kellwood's divisions based in New York City, manufactures and distributes women's sportswear. On April 30, 2001, Ferraro began working as President of Vintage Blue. See Plaintiff's Local Rule 56.1(b) Counter Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment ("Pl. 56.1") ¶ 9. Ferrraro was hired by Arthur Gordon, Chief Executive Officer of Kellwood's Western Region, for the specific purpose of improving the troubled division. See Defendant Kellwood Company's Local Rule 56.1 Statement of Material Facts in Support of its Motion for Summary Judgment ("Def. 56.1") ¶¶ 1-2. Ferraro reported directly to Gordon until her demotion in May 2003.*fn2 See Pl. 56.1 ¶ 10.

  Ferraro was diagnosed with breast cancer on September 5, 2002, and had a lumpectomy on September 17, 2002. See id. ¶ 22. Ferraro took a short leave of approximately one week for treatment. See Def. 56.1 ¶ 30. Following surgery, Ferraro received radiation treatments but continued to work throughout the treatments. Ferraro's illness did not affect her ability to work or her attendance. See Pl. 56.1 ¶ 22.

  On June 10, 2003, Ferrraro requested a leave of absence. See Request for Leave of Absence, Ex. A to the Affidavit of Laura Ferraro in Opposition to Defendant's Motion for Summary Judgment ("Ferraro Aff."). The reason for the request was: "To recuperate from cancer and stress caused by harassment at work, which is making me ill, comprising my immune system and is interfering with my recovery." Id. Approximately one month later, Sue Hammond, Director of Human Resources, sent Ferraro a letter enclosing a Harassment Complaint Form. See 7/9/03 Letter from Sue Hammond, Ex. G to Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def. Reply"). Ferraro was asked to complete the enclosed form, detailing the alleged harassment, so that Kellwood could investigate. See id. Ferraro did not respond to this letter. On January 7, 2004, Ferraro's employment was terminated. See 1/7/04 Letter from Sue Hammond, Ex. O to Appendix to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Opp.").

  B. The Restructuring of Vintage Blue

  Gordon planned to reorganize Vintage Blue before Ferraro began working at Kellwood. See Pl. 56.1 ¶ 17. Pursuant to his plan, and prior to Ferraro's arrival, Gordon eliminated Vintage Blue's dress division, which accounted for $7-$8 million worth of business. See id. ¶ 18. In late 2002, Gordon and Ferraro learned that Vintage Blue would lose approximately $4.5 million of the junior apparel business it had with J.C. Penney, through no fault of Ferraro. See id. ¶ 35. In December 2002/January 2003, Gordon decided to move the remaining $5-$7 million of Vintage Blue's junior apparel business to Kellwood's My Michelle division. See id. ¶ 36.

  Vintage Blue's sales volume did not improve in fiscal year 2002. In fact, in June 2002, Allyson Twomey, one of Ferrraro's subordinates, recalled Gordon calling Ferraro and her entire staff "fucking idiots" and threatened to fire all of them if Vintage Blue's sales numbers did not improve.*fn3 See id. ¶ 24. During the summer of 2002, Ferraro fired two of her subordinates because of poor sales performance. See id. ¶ 27. During the first quarter of fiscal year 2003, Ferraro anticipated $1.7 million in sales but Vintage Blue only brought in $1.1 million in actual sales volume. See Def. 56.1 ¶ 40. During the second quarter of 2003, Ferraro anticipated $1 million in sales but Vintage Blue only brought in $461,000. See id. Gordon held Ferraro partially responsible for these results. See id. Ferraro admits that Vintage Blue's sales numbers were decreasing and that her projections for the third quarter of 2003 were below the threshold for Vintage Blue remaining a free-standing division. See id. ¶ 45. In May 2003, Gordon decided to fold Vintage Blue into ENC, a larger division within Kellwood's Western Region, which was headed by Penny Aschkenasy. See id. ¶ 43. Gordon made this decision because Vintage Blue's sales numbers were not high enough for it to survive as a stand-alone division. See id. ¶ 47. Gordon also became frustrated because Ferraro constantly revised her sales projections downward and her projections were consistently off. See id. ¶¶ 32, 36, 48. By reorganizing Vintage Blue, Kellwood benefitted from economies of scale and was able to cut overhead. See id. ¶ 44.

  After the reorganization, Ferraro reported directly to Aschkenasy instead of Gordon. See id. ¶ 49. Plaintiff ostensibly retained the title of President but could no longer attend "Presidents Meetings."*fn4 See Pl. 56.1 ¶ 58. In addition, in an unprecedented move, Gordon cut Ferraro's base salary from $270,000 to $200,000.*fn5 See id. ¶ 60. Ferraro was admittedly relieved that she no longer had to report directly to Gordon. See id. ¶ 59. C. Plaintiff's Relationship with Gordon

  During the course of her employment, Ferraro had daily telephone contact with Gordon. See id. ¶ 16. In addition, Ferraro had in-person contact with Gordon approximately once a month at the Presidents Meetings. See id. Gordon admittedly uses profanity, including the word "fuck," in the workplace and raises his voice and yells when he gets upset. See Def. 56.1 ¶ 10. In fact, Love testified that Gordon uses the word "fuck" on a normal basis and that Gordon has yelled and cursed at him in the past. See id. ¶ 14. While those who reported to Gordon agree that he can be difficult and that he raises his voice and uses profanity, none found Gordon to be personally abusive.*fn6 See Pl. 56.1 ¶ 12.

  When Ferraro first started working at Kellwood, her relationship with Gordon was positive. See id. ¶ 15. However, Gordon's treatment of Ferraro drastically changed after she returned to work following her surgery. See id. ¶ 23. Gordon first abused Ferraro in front of others during her October 2002 business trip to Kellwood's Los Angeles office. At one meeting during this trip, in front of Love and Twomey, Gordon screamed that Ferraro was a "fucking idiot" who "didn't know how to run a business." See id. ¶¶ 24-26. During this trip, Gordon also told Ferraro to "shut up, you fucking idiot" in front of McCarthy.*fn7 See id. ¶ 31. At other meetings during this trip, Gordon pointedly ignored Ferraro. See id. ¶ 29.

  Gordon's harassment continued unabated. After the October 2002 business trip, Gordon called Ferraro and was verbally abusive on a near daily basis. See id. ¶ 50. For example, in December 2002, on the first and only day Ferraro had taken off from work since her surgery, Gordon called her doctors' offices no less than four times. See id. ¶¶ 44-46. In January 2003, Ferraro was on the phone with Gordon who was screaming so loud that he could be overheard by a visitor in Ferraro's office. See id. ¶ 49. Gordon also became completely unreasonable in his demands with respect to the plans for the 2003 fiscal year. See id. ¶ 39. By April 2003, Gordon had gotten so abusive during his daily calls that Ferraro dreaded speaking to him and would sometimes pretend she was not present when he called.*fn8 See id. ¶ 54. Gordon's abuse did not end when she began reporting to Aschkenasy. Gordon would return calls Ferraro placed to Aschkenasy and continue to abuse her. See id. ¶ 59.

  Nor was Gordon's harassment limited to phone calls. At a meeting with Gordon and Aschkenasy after the decision was made to fold Vintage Blue into EFC, Gordon shouted: "[Aschkenasy] was the only one who wanted you. . . . You're not worth shit." Id. ¶ 65. The next day, if front of approximately thirty people including merchandisers and designers, Gordon screamed that Ferraro "destroyed all of Kellwood West's business." Id. ¶ 66. On May 19, 2003, Ferraro attended a meeting where Gordon announced to the other Presidents that Ferraro "fucked up all the businesses." Id. at ¶ 67. On another occasion, and in the presence of Aschkenasy, Gordon screamed at Ferraro, calling her a "stupid motherfucker." Id. ¶ 70. On May 21, 2003, Ferraro was unable to leave her hotel room, fearing what Gordon might say about her. See id. ¶ 71. Ferraro's therapist, Alan Bernstein, convinced her to go to the Kellwood office, but to avoid Gordon if possible. See id. Ferraro soon afterward reached her breaking point where she was no longer able to go to work because of her fear of Gordon. See id. ¶ 74. On June 2, 2003, while Ferraro was at Bernstein's office, she asked him to call Hammond and tell her that she was going to be out for a while. See id. ¶ 76. Bernstein informed Hammond that Ferraro was "stressed, anxious and very upset about the way she was treated." Id. Hammond did not consider Bernstein's call a complaint by Ferraro as to how she was being treated in the workplace. See id. ¶ 78. Ferraro's last day of work was May 30, 2003. See Request for Leave of Absence. Ferraro never returned to Kellwood after going out on disability leave. See Pl. 56.1 ¶ 85.

  D. Kellwood's Anti-Harassment Policy

  During plaintiff's tenure, Kellwood had in place an anti-discrimination and harassment policy (the "Policy"). See Def. 56.1 ¶ 6. The Kellwood Employee Handbook states: "The company's policy strictly prohibits sexual harassment and harassment because of race, religious creed, color, national origin, ancestry, disability, medical condition, marital status, sex, sexual orientation, age or any other basis protected by federal, state or local laws." Id. The Policy states that all complaints will be handled in a timely and confidential manner and includes an anti-retaliation provision. See id. ¶ 8. The Policy includes a complaint procedure whereby an employee may complain about conduct regarding a supervisor to a representative of Human Resources. See id. ¶ 7. Alternatively, the employee may contact the Corporate Vice President of Human Resources or call the 1-800 Kellwood Hotline if the employee does not feel comfortable complaining through the regular channels. See id. Kellwood also conducted computer-based harassment training in which all supervisory management personnel participate. See id. ¶ 9. Kellwood's internal documents indicate that Gordon completed its "Preventing Workplace Harassment Discrimination" training, including the "Supervisor's Supplement," on February 7, 2003. See Kellwood Company, Employee Course Completions, Ex. E to Def. Reply.

  Ferraro never told anyone at Kellwood that she felt she was a victim of harassment or discrimination. See id. ¶ 17. Nor did she ever complain about Gordon's conduct to Hammond, Kellwood's Human Resources Manager. See id. ¶ 18. Ferraro claims that Kellwood's formal Policy is not followed in practice. See Pl. 56.1 ¶ 80. For example, by screaming at his subordinates, Gordon repeatedly violated the Policy, which explicitly describes yelling at workers to be a form of verbal abuse. See id. II. LEGAL STANDARDS

  A. Summary Judgment Standard

  Summary judgment is appropriate if the evidence of record "show[s] 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." Fed.R. Civ. P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).

  The movant has the burden of demonstrating that no genuine issue of material fact exists. See Powell v. National Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.*fn9 To do so, the non-moving party "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and must "come forward with `specific facts showing that there is a genuine issue for trial.'" Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). "If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotation marks, citations and alterations omitted). "The `mere existence of a scintilla of evidence supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc. 315 F.3d 171 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).

  "[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." Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing or quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997). Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson, 239 F.3d at 466.

  However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "`[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.'" Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (brackets in original)). B. McDonnell Douglas Burden-Shifting Framework

  The Supreme Court has set forth the basic allocation of burdens and order of presentation of proof in Title VII cases where there is no direct evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The framework established in McDonnell Douglas also applies to cases brought under the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA").*fn10 See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). First, the plaintiff must establish, by a preponderance of the evidence, a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination in federal disability cases, the plaintiff must allege that: (1) the employer is subject to the ADA: (2) the employee was disabled within the meaning of the ADA;*fn11 (3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered an adverse employment action*fn12 because of her disability. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). In other words, the plaintiff must have suffered an adverse employment action under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802.

  Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some "legitimate, nondiscriminatory reason" for the adverse employment action taken. Id. See also Terry, 336 F.3d at 138. Third, 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.*fn13 See McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Ctr. v. Hicks, 509, U.S. 509, 515-16 (1993). "Although intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).

  C. Hostile Work Environment/Constructive Discharge

  1. Hostile Work Environment

  A hostile work environment exists where "the workplace is permeated with `discriminatory intimidation, ridicule and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'. . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)) (emphasis added). See also Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) ("In order to prevail on a hostile work environment claim, a plaintiff must first show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.") (internal quotation marks and citations omitted). To establish a hostile work environment claim based on disability, a plaintiff must demonstrate: "(1) that she is disabled under the [NYSHRL/NYCHRL]; (2) that she was the subject of harassment; (3) that the harassment was based upon her disability; and (4) that the harassment affected a term, condition or privilege of employment." Ragusa v. Teachers Ins. & Annuity Ass'n-Coll. Ret. Equities Fund, Inc., No. 96 Civ. 3127, 1998 WL 483461, at *4 (S.D.N.Y. Aug. 17, 1998) (citing Cosgrove v. Sears Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993)) (emphasis added).

  A hostile work environment has both objective and subjective elements: the misconduct shown 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. See Harris, 510 U.S. at 21. Courts must look to "the totality of the circumstances, 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 the victim's . . . performance." Hayut v. State Univ. of New York, 352 F.3d 733, 745 (2d Cir. 2003) (internal quotation marks and citations omitted).

  2. Constructive Discharge

  Constructive discharge can be seen as an aggravated case of hostile work environment. See Suders v. Pennsylvania State Police, 124 S. Ct. 2342, 2355 (2004). However, "[a] hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Id. In other words, to establish constructive discharge, a plaintiff must show that "the abusive working environment became so intolerable that her resignation qualified as a fitting response." Id. at 2347. A prerequisite to a finding of constructive discharge is proof that the "employer deliberately created working conditions" which effectively forced the employee to resign. Kader v. Paper Software, Inc., 111 F.3d 337, 341 (2d Cir. 1997). Intolerable working conditions have been described as conditions "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996) (internal quotation marks and citation omitted). III. DISCUSSION

  A. Plaintiff's Demotion and Pay Reduction Claims

  1. No Inference of Discrimination

  Kellwood argues that Ferraro has failed to establish a prima facie case of discrimination because there is no evidence that the actions it took were in any way motivated by discriminatory animus. A plaintiff may establish the fourth prong of her prima facie case by showing: "(1) more favorable treatment of employees not in the protected group; or (2) the sequence of events leading to the [adverse employment action]." Abdu-Brisson, 239 F.3d at 468. Ferraro was diagnosed with breast cancer in September 2002. However, the decision to fold Vintage Blue into ENC occurred in May 2003, more than seven months later. While it is indisputable that Ferraro suffered an adverse employment action upon this reorganization, namely, a reduction in salary and what can be considered a de facto demotion,*fn14 there simply is no evidence that her perceived disability played any part in these decisions. In an attempt to prove discrimination, plaintiff argues that "[n]one of the other presidents were demoted or had their salaries cut, even though their divisions were also experiencing difficult times financially, as was Vintage Blue." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 7. Plaintiff's comparison to non-disabled Kellwood Presidents is of limited utility because they are not similarly situated to plaintiff.*fn15 See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) ("To be `similarly situated,' the individuals with whom [plaintiff] attempts to compare herself must be similarly situated in all material respects."). As discussed below, because Vintage Blue was performing poorly, there was a legitimate, nondiscriminatory reason to fold it into ENC. Therefore, the more appropriate comparison is between plaintiff and non-disabled former Vintage Blue employees.

  When viewed through this lens, it becomes apparent that plaintiff was actually treated better than at least one non-disabled employee, Michael McCarthy. After the reorganization, McCarthy was not permitted to retain his former position of Vice President of Merchandising for Vintage Blue, which was completely eliminated. It was only through his own ingenuity that McCarthy secured a new, unrelated position at Kellwood, albeit at a $50,000 salary reduction. Thus, the comparison to similarly situated, non-disabled Kellwood employees does not raise an inference of discrimination. See Bertuzzi v. Chase Manhattan Bank, No. 98 Civ. 5968, 1999 WL 759997, at *5 (S.D.N.Y. Sept. 24, 1999) (granting summary judgment where no similarly situated employees were treated differently than plaintiff).

  Nor does plaintiff's argument that Vintage Blue was "singled out and dismantled" unlike any other Kellwood division carry any weight. Pl. Mem. at 12. According to plaintiff, Vintage Blue's sales volume was too low for it to remain a free-standing division because Gordon "essentially eviscerated Vintage Blue by taking its healthy business and placing it elsewhere." Id. at 13. Whether or not it was good business, Gordon's decision to move business out of Vintage Blue pre-dated Ferraro's arrival; before she even started, Gordon eliminated $7-$8 million in sales by eliminating Vintage Blue's dress division. Moreover, plaintiff admitted that Gordon lowered Vintage Blue's sales budget to account for the decrease in business. See Def. 56.1 ¶ 20; see also Pl. Mem. at 13 ("[Gordon] even admits that he did not expect plaintiff to `make up' for the business he removed from her division."). Plaintiff has offered no proof that Gordon took any adverse employment action against her because of her perceived disability. Without an inference of discrimination, Ferraro has failed to prove a prima facie case of disability discrimination.

  2. No Evidence of Pretext

  Assuming, arguendo, that Ferraro has shown a prima facie case of disability discrimination, her demotion and salary reduction claims must still fail. Kellwood has offered a legitimate, nondiscriminatory reason for the restructuring of Vintage Blue. According to Kellwood, it was motivated solely by economic concerns — its decision to fold Vintage Blue into ENC was done to reduce overhead in an attempt to make Kellwood more profitable. See Def. 56.1 ¶ 44 ("By folding Vintage Blue into ENC, Kellwood created efficiencies through an economy of scale [and was] able to cut overhead."); Pl. 56.1 ¶ 62 (acknowledging that Ferraro's salary was reduced by $70,000 in order to "cut overhead"). The decision to reduce Ferraro's salary and her "demotion" were corollaries to the restructuring of Vintage Blue. Ferraro has failed to rebut Kellwood's stated reason as pretextual. Because plaintiff lacks any evidence of pretext, her demotion and salary reduction claims must fail as a matter of law. See Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (dismissing age discrimination claim where plaintiff offered no evidence beyond the minimal proof required for her prima facie case); Minott v. Port Auth. of New York & New Jersey, 116 F.Supp. 2d 513, 522 (S.D.N.Y. 2000) (granting summary judgment for defendant where plaintiff failed to rebut employer's legitimate, nondiscriminatory reason for plaintiff's termination).

  B. Hostile Work Environment/Constructive Discharge

  1. Absence of Causal Link

  In order to be actionable, a plaintiff must demonstrate that the alleged discrimination took place because of the plaintiff's disability in order to be actionable. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (placing the burden on plaintiff to demonstrate that the conduct at issue occurred "because of" his or her protected status). See also Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162 (2d Cir. 1998) (stating that plaintiff must show that the alleged discrimination occurred "because of" the protected status). "In other words, an environment which is equally harsh for both men and women or for both young and old does not constitute a hostile working environment under the civil rights statutes." Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999).

  Here, Gordon was responsible for the alleged harassment to which Ferraro was subjected; he became personally abusive toward Ferraro; he insulted her in front of others, often using profanities; he screamed at her and became verbally abusive on telephone calls on a near daily basis; and he ignored her at Presidents Meetings. Ferraro claims that Gordon's behavior was in response to her disability, or perceived disability, because he only began treating her this way after she returned to work following her surgery. The record, however, does not support plaintiff's temporal argument. Ferraro admits that Gordon "became loud" with her six or seven months after her arrival, approximately one year before her cancer diagnosis. See Def. 56.1 ¶ 22. Furthermore, Allyson Twomey, an employee reporting directly to Ferraro, recalled that in June 2002, Gordon called Ferraro and her entire staff "fucking idiots" in front of plaintiff, Twomey, and two other employees. See id. ¶ 24. These examples indicate that Gordon's abusive behavior began before Ferraro's breast cancer diagnosis, thereby breaking the causal link necessary to an actionable hostile work environment claim.

  2. Nondiscriminatory Nature of the Harassment

  Furthermore, the harassment perpetrated by Gordon was not itself discriminatory in nature. In Stephens v. Thomas Publ'g Co., Inc., 279 F. Supp.2d 279, 284 (S.D.N.Y. 2003), the court denied defendants' motion for summary judgment with respect to plaintiff's hostile work environment claim. In Stephens, however, many of the remarks made to the plaintiff were in some way directly related to her perceived disability due to breast cancer. For example, Stephens testified that her supervisors made the following comments: "the chemotherapy . . . seemed to be causing a problem with [her] memory;" the drugs were "making [her] kind of exaggerate things;" that she was overly sensitive and overly emotional and that these symptoms were caused by the "medications for her breast cancer;" that she wasn't healthy and aggressive any more and that she had "lost her edge;" that she didn't look well; that she "looked like shit;" that she should have never come back; that she should go out on disability; and that her illness was interfering with the business. Id. at 284-85. Comments were also made about plaintiff's thinning hair, red face and memory problems. See id. at 284. The court held that

[a] reasonable jury could find from this testimony . . . that defendants discriminated against [plaintiff] by engaging in a pattern of severe and pervasive conduct based on their perception that she was disabled and that altered the conditions of her employment.
Id. at 285 (emphasis added).

  By contrast, Gordon's harassment was of a neutral, nondiscriminatory tone. For example, Gordon screamed at Ferraro and insulted her with generic profanities such as "fucking idiot" and "stupid motherfucker." Although Ferraro was understandably offended by such phrases, they do not implicate her perceived disability, either directly or indirectly. The standards for judging a hostile work environment "are sufficiently demanding to ensure that [the discrimination statutes do] not become a `general civility code.'" Faragher v. City of Boca Raton, 525 U.S. 775, 788 (1998) (quoting Oncale, 523 U.S. at 80). Cf. Oncale, 523 U.S. at 80 ("Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discriminat[ion] . . . because of . . . sex.'") (quoting Harris, 510 U.S. at 21) (emphasis, brackets and ellipses in original). Thus, Gordon's harassment and abuse of Ferraro, albeit egregious in scope and severity, does not encompass the type of "discriminatory intimidation, ridicule and insult" envisioned by the Supreme Court in Meritor and Harris. Plaintiff's hostile work environment claim must therefore be dismissed.

  3. Faragher/Ellerth Defense

  In the twin cases of Faragher v. City of Boca Raton and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court delineated two categories of hostile work environment claims: (1) harassment that "culminates in a tangible employment action," for which employers are strictly liable, Faragher, 524 U.S. at 808; accord Ellerth, 524 U.S. at 765, and (2) harassment that takes place in the absence of tangible employment action, to which employers may assert an affirmative defense. Faragher, 524 U.S. at 807; accord Ellerth, 524 U.S. at 765. In the latter situation, the employer may raise an affirmative defense to liability.*fn16 "No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Faragher, 524 U.S. at 808 (emphasis added); accord Ellerth, 524 U.S. at 762-63.

  Recently, the Supreme Court extended the Faragher/Ellerth defense to constructive discharge cases. See Suders, 124 S.Ct. at 2347. "[A]n employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a `tangible employment action,' however, the defense is available to the employer whose supervisors are charged with harassment." Id. at 1251 (emphasis added). In other words, the Faragher/Ellerth affirmative defense "will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions." Id. at 1247.

  Kellwood argues that if this Court finds that the decision to fold Vintage Blue into ENC, and plaintiff's subsequent salary reduction, were nondiscriminatory business decisions, then plaintiff suffered no "tangible employment action" and the Faragher/Ellerth defense is available to defeat her hostile work environment and constructive discharge claims. See Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment at 9, n. 8. However, Kellwood misconstrues the definition of tangible employment action. As defined by the Supreme Court, a tangible employment action is "an official act of the enterprise, a company act" and "the means by which the supervisor brings that official power of the enterprise to bear on subordinates." Ellerth, 524 U.S. at 762. Examples of such tangible employment actions include "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761. Nowhere in the Supreme Court's definition is there any requirement that the tangible employment action be motivated by discriminatory animus. Therefore, whether Kellwood took action against Ferraro because of her disability is beside the point — she still suffered a tangible employment action regardless of the basis for that action. Furthermore, Ferraro argues that she was forced to leave Kellwood based on a combination of her demotion/salary reduction and Gordon's abuse. See Pl. Mem. at 20 ("These tangible employment actions by Defendant along with the long-standing abuse Ferraro had to endure at the hands of Gordon, forced Ferraro out on disability leave."). Accordingly, the Faragher/Ellerth defense is not available to Kellwood.

  Notwithstanding the unavailability of the Faragher/Ellerth defense, plaintiff's constructive discharge claim still fails as a matter of law. Constructive discharge is regarded as an aggravated case of hostile work environment. See Suders, 124 S.Ct. at 2354. For an atmosphere of hostility to be actionable, the offending behavior must be discriminatory in nature. See Meritor, 477 U.S. at 65 (stating that an actionable hostile work environment exists where the workplace is permeated with "discriminatory intimidation, ridicule, and insult"). Thus, an abusive work environment is not actionable if the harassing conduct cannot be linked to a form of prohibited discrimination. Plaintiff's hostile work environment claim was dismissed because the conduct in issue was not inherently discriminatory. Without an actionable hostile work environment claim, plaintiff's constructive discharge claim must also fail. IV. CONCLUSION

  For the foregoing reason, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this motion (# 16 on the docket) and this case.


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