United States District Court, S.D. New York
December 21, 2004.
DARNELLA THOMAS, Plaintiff,
BERGDORF GOODMAN, INC., WILLIAM BROBSTON, LORI DeROCCO, DAVID ENGLISH and ALEX YEE, Defendants.
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
Darnella Thomas brings this employment discrimination action
against her former employer, Bergdorf Goodman, Inc. ("Bergdorf"),
and several individuals employed by Bergdorf*fn1 claiming
retaliation, hostile work environment, constructive discharge,
intentional infliction of emotional distress, and prima facie
tort. Plaintiff brings these claims under Title VII of the Civil
Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e
et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the
New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296
et seq.; the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq.; and New York
common law. Plaintiff also brings a conspiracy claim under
42 U.S.C. § 1985. Defendants now move for summary judgment pursuant
to Federal Rule of Civil Procedure 56(c). For the following
reasons, defendants' motion is granted and this case is
A. Plaintiff's Employment Background
Plaintiff was first hired by Bergdorf on November 27, 1995, as
a temporary sales employee for the holiday season. See Def.
56.1 ¶ 7. She became a full-time Sales Associate in Women's First
Floor Jewelry on December 28, 1995, and was promoted to Selling
Manager of that department on March 13, 2000. See id. ¶¶ 7-8.
Upon her request, plaintiff became a Sales Associate in
Bergdorf's Fine Jewelry department as of August 1, 2000. See
id. ¶ 9. Plaintiff was a Fine Jewelry Sales Associate from
August 2000 until October 2001, when she resigned. See id. ¶¶
10, 16. On January 15, 2002, plaintiff filed a dual charge with
the Equal Employment Opportunity Commission ("EEOC") and the New York State
Division of Human Rights. See id. ¶ 115. The New York State
Division of Human Rights dismissed plaintiff's complaint on
February 3, 2003, on grounds of administrative convenience. See
B. Excessive Monitoring and Surveillance
Plaintiff claims that beginning in October 2000, Bergdorf's
security personnel began paying extra close attention to her by
closely monitoring her actions. See Thomas Decl. ¶¶ 4-6, 8, 10.
They also made comments to plaintiff and others implying that she
was dishonest and a thief. See id. ¶¶ 6, 7, 9. In November
2000, security officers started recounting every showcase
plaintiff worked out of instead of recounting a single, randomly
selected showcase. See id. ¶¶ 13-15. Plaintiff did not report
this surveillance to anyone until early February 2001. See Def.
56.1 ¶ 90.
On February 6, 2001, as plaintiff was signing out of work, a
newly-hired security guard named Eric Santiago approached
plaintiff, pointed to the ring she was wearing, and asked her
where she had gotten it because it looked just the like the one
that had been stolen from Fine Jewelry. See Thomas Decl. ¶ 23.
The next day, plaintiff relayed Santiago's comment to DeRocco and
told her that she felt that she was under suspicion by the Loss
Prevention Department. See Def. 56.1 ¶ 92. On plaintiff's behalf, DeRocco immediately went to
David English, Director of Loss Prevention. See id. ¶ 93.
English began to investigate the matter and, in so doing, met
with Santiago. See id. ¶ 95. English also inquired whether
anyone in the Loss Prevention Department was watching plaintiff
in particular. See id. ¶ 96. The next day, on February 8, 2001,
plaintiff met with DeRocco, Alex Yee, the Operations Manager of
the Loss Prevention Department, and Thomas A. Roche, an
assistant, to discuss the Santiago incident. See id. ¶ 97.
According to plaintiff, Yee was protective of Santiago at the
meeting and both Yee and Roche were dismissive and did not appear
to believe plaintiff's story. See Pl. 56.1 ¶ 97.
On February 23, 2001, plaintiff had an encounter with a Loss
Prevention investigator named Quintin Alvarez (known as "Que").
See Def. 56.1 ¶ 99. While plaintiff was photographing jewelry
for a customer, Que approached her from behind and began
observing her. See Thomas Decl. ¶ 27. Plaintiff told Que that
she was only taking pictures. See id. Que responded to this
statement by saying something to the effect, "Well, you must be
doing something, you must be guilty of something." Def. 56.1 ¶
99. Plaintiff proceeded to contact the Human Resources Department
and spoke with her counselor, Kim Richardson. See id. ¶ 101.
Plaintiff claims she told Richardson that she was being singled
out and harassed because she is African American. See Thomas
Decl. ¶ 28. On February 26, 2001, plaintiff met with Richardson who then sent English an
e-mail informing him that plaintiff was very upset about the
harassment from the Loss Prevention Department. See Def. 56.1 ¶
101. A meeting was held on March 2, 2001, with plaintiff,
Richardson and English. See id. ¶ 102. Plaintiff raised her
continuing concerns including the recounting of her showcases and
the Santiago incident. See Thomas Decl. ¶ 29. English told
plaintiff that she was not under suspicion for anything. See
Def. 56.1 ¶ 103. English then investigated the incidents and took
statements from Santiago, Alvarez and Roche. See id. ¶ 104.
English also instructed Santiago and Alvarez to avoid any
interactions with plaintiff. See id. ¶ 105.
On March 12, 2001, plaintiff called Richardson and told her
that she was still very upset at being treated like a thief. See
id. ¶ 106. Richardson conveyed this to DeRocco as well as
plaintiff's desire to meet with DeRocco. See id. DeRocco met
with plaintiff the next day and told her that in the future she
should get a third-party as a witness if security personnel
followed her or made comments. See id. DeRocco confirmed to
plaintiff that she was not a suspect and that if she thought
plaintiff was stealing, she would have fired her. See id. ¶
The excessive surveillance continued unabated. See Thomas
Decl. ¶ 33 (Yee search of plaintiff's work area), ¶ 34 (physical
intimidation by a security officer), ¶ 35 (Yee's monitoring from extremely close proximity),
¶ 36 (DeRocco recounting plaintiff's Caroline Ellen showcase). On
April 13, 2001, plaintiff sent a letter to Richardson, copied to
DeRocco and Al Schaefer, Director of Human Resources, in which
she recounted the past events and meetings. See Def. 56.1 ¶
109. This letter never asserted that the surveillance was
racially motivated. Despite Schaefer's assurance that plaintiff
was not under security surveillance or under any type of
investigation, the harassment did not stop. See Thomas Decl. ¶
42 (video surveillance by Roche), ¶ 43 (monitoring by Que), ¶ 47
(constant all day monitoring by a security guard).
On July 2, 2001, plaintiff wrote to Bill Brobston, Bergdorf's
Senior Vice President and General Manager. See Thomas Decl. ¶
46. Plaintiff met with Brobston shortly thereafter and expressed
her belief that she was under surveillance. In particular,
plaintiff told Brobston that no other sales associate in Fine
Jewelry or any other jewelry department had been monitored the
way she had been. See id. ¶ 50. Plaintiff also told Brobston
that she was being singled out and targeted but did not tell him
that she believed this action was racially motivated. See id.
Plaintiff claims she informed Richardson and English of racial
animus several months before she contacted Brobston. See id. On
July 16, 2001, Brobston promised he would meet with plaintiff and
English, as well as Schaefer, but that meeting never occurred. See id. ¶¶ 51, 54. Plaintiff
encountered further incidents of harassment. See id. ¶ 53
(surveillance by a security officer while plaintiff was with a
client), ¶ 61 (monitoring by a security guard), ¶ 62 (DeRocco
recounting plaintiff's Donna Lewis showcase); ¶ 63 (English and
three other officers staring into the Pavilion room where
plaintiff was working), ¶ 64 (incident with a sign out guard), ¶
65 (a guard commenting that he was watching plaintiff), ¶ 66
(surveillance by Roche as plaintiff checked out a gift she
purchased for a customer), ¶ 67 (recounting of Angela Cummings
boutique after plaintiff went there to measure pearls), ¶ 72
(observance by Yee while plaintiff was working in the Angela
C. Plaintiff's Preliminary MAS Warning and 2001 Evaluation
1. The Preliminary MAS Warning
During the time plaintiff was employed at Bergdorf, the
productivity of jewelry sales associates was measured in terms of
"Sales Per Hour" or "SPH." See Def. 56.1 ¶ 38. SPH is computed
by dividing an associate's net sales by the number of productive
hours worked for a given period, such as monthly. See id. The
individual SPH for each sales associate is measured against the
"Minimum Acceptable Standard" or "MAS" for her particular
department. See id. ¶ 39. MAS was determined by taking the net
sales for a department for the preceding month and dividing by the number of productive hours worked and then
reducing that figure by fifteen percent. See id. ¶ 40. To
review departmental productivity, the individual SPH for each
sales associate was compared with the departmental MAS for the
preceding month. See id.
If a sales associate was repeatedly deficient against the MAS,
she would be given a "Preliminary MAS Warning" which contained a
time frame within which to improve. See id. ¶ 42. An associate
would be given such a warning if he or she fell below the
departmental MAS for three consecutive months or in fifty percent
of the preceding six month rolling period. See id. A
Preliminary MAS Warning sets forth the actual MAS for the months
involved and the associate's SPH for those months. See id. ¶
45. It further states that: "You will be given ___ month(s) to
achieve the MAS (Minimum Acceptable Standard) of productivity
within your selling area. Going forward you must meet the MAS
each month continuously, or you will be placed on further
disciplinary action." Id. If an associate does not achieve the
MAS within the prescribed time frame, the associate could receive
a "Final MAS Warning." See id. ¶ 46. That warning states that
failure to meet MAS will result in termination of employment.
Although plaintiff was a productive sales associate, and met
her overall goal for the fiscal year ending July 31, 2001, her
productivity fell below the monthly MAS in some months. See id. ¶ 49. For example, in
December 2000, the MAS for Fine Jewelry was $735 while
plaintiff's SPH were $659. See id. ¶¶ 50-51. The MAS for Fine
Jewelry in March 2001 was $376 while plaintiff's SPH were $166.
See id. ¶¶ 53-54. The MAS for Fine Jewelry in April 2001 was
$359 while plaintiff's SPH were $317. See id. ¶¶ 56-57. Because
of these deficiencies, plaintiff was given a Preliminary MAS
Warning on May 15, 2001, which gave her two months to achieve her
departmental MAS. See id. ¶ 59.
Although plaintiff claims that DeRocco told her that she would
be "out the door" if she didn't meet her goal in June or July,
see Thomas Decl. ¶ 40, she was never placed on further
disciplinary action. See Def. 56.1 ¶ 62. The warning itself had
no adverse consequences and was not reflected in plaintiff's
annual evaluation. See id. Furthermore, plaintiff was not the
only Fine Jewelry sales associate to be given a Preliminary MAS
Warning. During the same approximate time period, at least three
other sales associates with SPH numbers similar to plaintiff's
numbers received warnings. See id. ¶ 66. These other sales
associates were white. See id.
2. Plaintiff's Annual Evaluation
Plaintiff was presented with her annual evaluation on August 7,
2001, which was completed by DeRocco. See id. ¶ 25. Plaintiff
was one of the three sales associates out of a total eighteen in the Fine Jewelry
department who received a raise. See id. ¶ 26. Plaintiff, who
did not receive a single negative rating in any of the
evaluation's twenty-seven categories, received "Outstanding" and
"Above Standard" in several categories. See id. ¶ 29. Only two
other sales associates received a higher "Promotability Status"
than plaintiff, who was marked "Appropriately placed." See id.
Plaintiff's evaluation does contain a mistake. See id. ¶ 32.
Plaintiff's SPH percentage is shown as 89%. See id. However,
when calculated correctly, plaintiff sold at a rate of $500 per
hour which represents 149% of plaintiff's "Floor Sales Per Hour"
of $335.*fn3 See id. Although this error did not result in
a demotion, diminution of compensation or benefits, nor any other
negative consequence, see id. ¶ 33, plaintiff contends that she
was wrongly treated as an ordinary, middle-of-the-road sales
person when her sales production for a first year associate was
very high. See Pl. 56.1 ¶ 33.
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.*fn4 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 . . . other areas of litigation.'"
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (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."
Alphonse v. State of Connecticut Dep't of Admin. Servs., No.
Civ.3:02CV1195, 2004 WL 904076, at *7 (D. Conn. Apr. 21, 2004)
(internal quotation marks and citation omitted). Indeed, "`[i]t
is now beyond cavil that summary judgment may be appropriate even
in the fact-intensive context of discrimination cases.'"
Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (quoting Abdu-Brisson, 239 F.3d at 466) (alteration in
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 Feingold,
366 F.3d at 149. 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."' Sadki
v. SUNY Coll. at Brockport, 310 F. Supp. 2d 506, 515 (W.D.N.Y.
2004) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448
(2d Cir. 1999) (internal quotation marks and citation omitted,
brackets in original)). But "`[e]ven in the discrimination
context, a plaintiff must prove more than conclusory allegations
of discrimination to defeat a motion for summary judgment.'"
Flakowicz v. Raffi Custom Photo Lab, Inc., No. 02 Civ. 9558,
2004 WL 2049220, at *8 (S.D.N.Y. Sept. 13, 2004) (quoting
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) (alteration in original)). See also Cameron v.
Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d
Cir. 2003) ("`[P]urely conclusory allegations of discrimination, absent any concrete particulars,'
are insufficient" to satisfy an employee's burden on a motion for
summary judgment.) (quoting Meiri, 759 F.2d at 998) (alteration
B. Hostile Work Environment/Constructive
1. Hostile Work Environment
To prevail on a race discrimination claim based on a hostile
work environment theory, a plaintiff must show: "(1) that the
workplace was permeated with discriminatory intimidation,
[ridicule or insult] that was sufficiently severe or pervasive to
alter the conditions of [his or] her work environment, and (2)
that a specific basis exists for imputing the conduct that
created the hostile environment to the employer." Petrosino v.
Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (internal
quotation marks and citations omitted, second alteration in
original). See also Feingold, 366 F.3d at 149 ("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).
A hostile work environment has both 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." Alfano v.
Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). 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
For a hostile work environment to be actionable, there must be
a link to plaintiff's membership in a protected class. In other
words, the hostile work environment must be the result of
discriminatory animus. Work environments that are hostile for
non-discriminatory reasons do not fall within the ambit of Title
VII. See Alfano, 294 F.3d at 377 ("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.").
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). "The same circumstances and facts that
a court examines in reviewing a plaintiff's hostile work
environment claim are examined on a plaintiff's constructive
discharge claim." Legrand v. New York Rest. Sch./Educ. Mgmt.
Corp., No. 02 Civ. 2249, 2004 WL 1555102, at *8 (S.D.N.Y. July
12, 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."
Suders, 124 S. Ct. at 2355. 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. An employee is
constructively discharged when her employer, rather than
terminating her, deliberately makes working conditions so
intolerable that the employee is forced into involuntary
resignation. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149,
161 (2d Cir. 1998). 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.'" Terry v. Ashcroft, 336 F.3d 128, 152 (2d
Cir. 2003) (quoting Chertkova v. Connecticut Gen. Life Ins.
Co., 92 F.3d 81, 89 (2d Cir. 1996)). Finally in order to state a prima facie case for constructive discharge, a plaintiff
must establish that the constructive discharge "`occurred in
circumstances giving rise to an inference of discrimination on
the basis of her membership in [a protected] class.'" Terry,
336 F.3d at 152 (quoting Chertkova, 92 F.3d at 91) (brackets in
A plaintiff raising a claim of retaliation must first establish
a prima facie case. See Collins v. New York City Transit Auth.,
305 F.3d 113, 118 (2d Cir. 2002). To prove a claim of
retaliation, a plaintiff must demonstrate that: (1) she was
engaged in activity protected by Title VII, i.e., complaining
of discrimination; (2) the employer was aware of this activity;
(3) the plaintiff suffered an adverse employment action; and (4)
there was a causal connection between the protected activity and
the adverse employment action. See Holtz v. Rockefeller & Co.,
Inc., 258 F.3d 62, 79 (2d Cir. 2001).
An adverse employment action is defined as a "materially
adverse change" in the terms and conditions of employment. See
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000); Richardson v. New York State Dep't of Corr. Serv.,
180 F.3d 426, 446 (2d Cir. 1999). To be materially adverse, a
change in working conditions must be "`more disruptive than a
mere inconvenience or an alteration of job responsibilities.'"
Terry, 336 F.3d at 138 (quoting Galabya, 202 F.3d at 640). Examples of such a change
include "`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.'" Id. (quoting Galabya, 202 F.3d at 640).
C. Plaintiff's Common Law Claims
1. Intentional Infliction of Emotional Distress
To sustain a claim for intentional infliction of emotional
distress, there must be a course of extreme and outrageous
conduct exceeding "all possible bounds of decency [such that it
was] atrocious and utterly intolerable in a civilized community."
Holwell v. New York Post Co., 81 N.Y.2d 115, 122 (1993)
(internal quotation marks and citations omitted). Determining
whether the alleged conduct is sufficiently outrageous to be
actionable is a question of law for the court. See id.
2. Prima Facie Tort
In order to recover for prima facie tort in New York, a
plaintiff must prove: (1) the intentional infliction of harm, (2)
resulting in special damages, (3) without any excuse or
justification, and (4) by an act or series of acts which would
otherwise by lawful. See Freihofer v. Hearst Corp.,
65 N.Y.2d 135, 142-43 (1985). In addition, the complaint must allege that defendants
were motivated solely by the malicious intention to injure the
plaintiff. See Rodgers v. Grow-Kiewit Corp., 535 F. Supp. 814,
816 (S.D.N.Y.), aff'd, 714 F.2d 116 (2d Cir. 1992).
A. Hostile Work Environment
Plaintiff has failed to show the required "linkage or
correlation" between the race-neutral workplace incidents she
alleges and any race-based discriminatory animus. Plaintiff
offers only the conclusory statement that the harassment she
claims to have suffered occurred because she is African American.
See Thomas Decl. ¶¶ 28, 50 ("I told [Richardson] I was sure I
was being singled out and harassed because I am African
American."). This conclusory statement is not supported by any
evidence. Plaintiff has offered no proof as to whether any of the
other sales associates in Fine Jewelry were monitored by the Loss
Prevention Department. Such evidence, if it exists, might have
been discovered, for example, by reviewing complaints filed with
Human Resources, but apparently this was not done. Based on the
record before this Court, plaintiff has failed to adduce evidence
sufficient to link the offensive acts to any race-based animus by
her employer. Plaintiff's attempt to rely on the experiences of a co-worker,
Mamadou N'Djiae, to prove discrimination is unavailing. At his
deposition, N'Djiae testified that when he first started working
in Fine Jewelry, he was singled out and watched by security.
See Deposition of Mamadou N'Djiae, Ex. Q to the Reply
Declaration of Andrew P. Saulitis, defendants' counsel, at 39. A
security officer followed him into the street as he exited the
store, stopped him, grabbed his arm, and asked to see what he was
carrying in his gym bag. See id. at 42-43. However, N'Djiae
never attributed these incidents to any race-based
discrimination. He testified as follows:
Q. When Darnella reported the incident of what Erica
had said to her, did you say to her in words [of]
some kind, now you know what it's like to be a black
man in America?
Q. Did you ever say that to her about an incident she
was reporting to you?
A. Not that I recall. Because I was not born and
raised here. And when I was born, I was not raised by
people calling things. I was raised as human being
and respect people. I never have that thing on my
mind as black, white. Or I never I mean, I never thought anything like that.
Id. at 38-39.
Q. And you believe that he checked your bag because
you were a black man; is that correct?
A. No, I never I never told him. I don't know what
his motive. I never told him because I was black or
Id. at 42-43.
Plaintiff's own Declaration is further evidence that she is
merely speculating as to the reasons underlying the alleged
incidents of harassment. In her Declaration, plaintiff states: "I
told [Richardson] I was sure I was being singled out and harassed
because I am African American." Thomas Decl. ¶ 28. Plaintiff
later states: "I became very sure from all this that Bergdorf had
decided I was a thief and that since they did not dare to accuse
me of that because they had no proof they decided to drive me
out of the company." Id. ¶ 69. Plaintiff has therefore offered
two contradictory explanations for defendants' behavior: (1)
because she is African American, and (2) because Bergdorf thought
she was a thief. Neither explanation, however, is supported by
admissible evidence. "[G]eneralized speculation, conjecture, and
[plaintiff's] own opinion . . . are insufficient to withstand a
motion for summary judgment" in a discrimination case. Crossland v. City of New York, 140 F. Supp. 2d 300,
307-08 (S.D.N.Y. 2001) (citing Finnegan v. Board of Educ.,
30 F.3d 273, 274 (2d Cir. 1994)). With only conclusory allegations
of discrimination, plaintiff's hostile work environment claim
cannot withstand summary judgment and must be dismissed.
B. Constructive Discharge
Plaintiff claims that she was constructively discharged due to
the combined effect of the following four interrelated factors:
(1) English accepted and supported Santiago's
explanation for her accusation of plaintiff and
English untruthfully told other managers that
plaintiff was not being watched and followed; (2) the
harassment and accusations continued despite her
complaints and request for remediation; (3) the May
MAS warning and the June Evaluation indicated to
plaintiff that management was critical of her
performance and threatened to fire her despite
plaintiff's understanding that she had excellent
sales; and (4) the requested meeting with Brobston
and English (to be joined by Schaefer) originally
scheduled for July 16, 2001 was postponed, repromised
and then never held.
Plaintiff's Memorandum of Law in Opposition to Defendants' Motion
for Summary Judgment Motion at 21.
While plaintiff's resignation may have been a fitting response
to this combination of events, it certainly cannot be said as a
matter of law that the conditions of her employment were so
intolerable that a reasonable person would have felt compelled to resign. In any event, plaintiff's
constructive discharge claim fails for the same reason that
doomed her hostile work environment claim namely the failure to
show that the constructive discharge occurred under circumstances
giving rise to an inference of discrimination on the basis of
plaintiff's race. Furthermore, plaintiff has not shown that
defendants deliberately forced her to resign.*fn5 The fact
that she was one of the few employees to have received a raise
Before filing a Title VII retaliation claim in federal court, a
plaintiff must first file a complaint with the EEOC. See Criales
v. American Airlines, Inc., 105 F.3d 93, 95 (2d Cir. 1997). If
the EEOC charge does not contain a retaliation claim, a plaintiff
cannot thereafter raise such a claim in federal court. There is
an exception, however. Where the alleged retaliation claim is
"reasonably related" to the claims contained in the EEOC charge,
they might be justiciable. See Butts v. New York City Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401
(2d Cir. 1993). For example, claims of retaliation by an employer
against an employee for filing an EEOC charge may be considered
"reasonably related" to the underlying EEOC charge. This is not
the case here. In her Charge of Discrimination, plaintiff's MAS
warning is mentioned only once, as follows:
31. During this period, the company conducted monthly
evaluations of employee performance in jewelry sales,
a policy that subsequently was abandoned. I was given
a preliminary warning in May, 2001 for not making my
monthly goal in April. (Though my goal for 2000-2001
was $800,000 in sales, I sold $900,000 worth of
jewelry during the marketing year, so my annual
performance superseded my goal.)
Charge of Discrimination, Ex. C to the Declaration of Andrew P.
Saulitis. The above excerpt nowhere mentions that the MAS warning
plaintiff received was in retaliation for complaining about race
discrimination. Nor is it reasonable to conclude that the EEOC
could have made this inference based on the other allegations
contained in the Charge. Therefore, plaintiff's retaliation
claims are precluded as a matter of law.
Even if these claims were not precluded, they must be dismissed
for two other reasons. First, neither the MAS warning, with the
claimed threat of termination by DeRocco, nor plaintiff's
evaluation represent adverse employment actions. Courts have held that negative evaluations, standing
alone without any accompanying adverse results such as demotion,
diminution of wages, or other tangible loss, are not cognizable.
See Valentine v. Standard & Poor's, 50 F. Supp. 2d 262, 284
(S.D.N.Y. 1999) ("Given that plaintiff's negative reviews did not
lead to any immediate tangible harm or consequences, they do not
constitute adverse actions materially altering the conditions of
[her] employment."), aff'd, 205 F.3d 1327 (2d Cir. 2000);
Castro v. New York City Bd. of Educ. Pers., No. 96 Civ. 6314,
1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) ("Courts have held
that negative evaluations . . . that are unattended by a
demotion, diminution of wages, or other tangible loss do not
materially alter employment conditions."). Surely, if a negative
evaluation does not constitute an adverse employment action, nor
does an evaluation that is not as glowing as the employee thought
it should be.
Similarly, the MAS warning plaintiff received, whether deserved
or not, is not a materially adverse action. It is undisputed here
that the MAS warning had no effect on plaintiff's employment
status she was not demoted, her wages were not decreased, and
no further disciplinary action was taken. The mere threat of
disciplinary action, including the threat of termination, does
not constitute an adverse action materially altering the
conditions of employment. See Castro, 1998 WL 108004, at *7
("[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences
are not materially adverse alterations of employment
conditions."). Furthermore, an employer is "permitted to make bad
business judgments and misjudge the work of employees as long as
its evaluations and decisions are not made for prohibited
discriminatory reasons such as race or gender." Brown v. Society
For Seaman's Children, 194 F. Supp. 2d 182, 191 (E.D.N.Y. 2002)
(internal quotation marks and citation omitted). Here, the fact
that other white sales associates received similar MAS warnings
during the same time period negates any inference of
discrimination.*fn6 Thus, without an adverse employment
action, there can be no retaliation.
Finally, even if the MAS warning and the evaluation could be
considered adverse employment actions, there is no causal
connection between plaintiff's protected activity and the claimed
retaliatory acts. In her Declaration, plaintiff claims that in
February 2001, she told Richardson that she was sure she was
being singled out and harassed because she is African American.
See Thomas Decl. ¶ 28. Later on, plaintiff claims that she told
Richardson and English that she was being targeted because she
was black months before her meeting with Brobston. See id. ¶ 50. Nowhere in her Declaration does
plaintiff allege that she told DeRocco that she was being singled
out on account of her race. See id. ¶¶ 24, 32, 41, 57. Nor does
she allege that anyone told DeRocco that race was the motivating
factor behind the harassment. Yet it was DeRocco that signed
plaintiff's MAS warning and completed her evaluation. There can
be no causal link without any evidence that DeRocco knew that
plaintiff was claiming race discrimination.*fn7 For all of
these reasons, plaintiff's retaliation claims must be dismissed.
D. Conspiracy/Equal Rights
1. 42 U.S.C. § 1985
The four elements of a section 1985(3)*fn8 claim are: (1)
a conspiracy; (2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of equal protection of the laws,
or of equal privileges and immunities under the laws; (3) an act
in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right of a
citizen of the United States. See Mian v. Donaldson, Lufkin &
Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (citing
United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825,
828-29 (1983)). Furthermore, the conspiracy must also be
motivated by "some racial or perhaps otherwise class-based,
invidious discriminatory animus behind the conspirators' action."
Local 610, 463 U.S. at 829.
Plaintiff's conspiracy claim fails for two reasons. First,
there is no evidence of a conspiracy among members of Bergdorf's
Loss Prevention Department. Second, there is no evidence that
defendants' actions were motivated by racial animus or ill-will.
See Grillo v. New York City Transit Auth., 291 F.3d 231, 234-35
(2d Cir. 2002) ("Even if Grillo's highly dubious claim that he
was unfairly singled out for punishment by the instructors is
credited, Grillo has `done little more than cite to [his alleged]
mistreatment and ask the court to conclude that it must have been
related to [his] race. This is not sufficient.'") (quoting
Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001).
2. 42 U.S.C. § 1981
To establish a claim under section 1981,*fn9 a plaintiff
must allege the following elements: (1) the plaintiff is a member of a racial
minority; (2) an intent to discriminate on the basis of race by
the defendant; and (3) the discrimination concerned one or more
of the activities enumerated in the statute (i.e., make and
enforce contracts, sue and be sued, give evidence). See Mian,
7 F.3d at 1087. Because plaintiff has proffered no credible
evidence that defendants intentionally discriminated against her
on the basis of race, her section 1981 claim must fail as a
matter of law. See Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 69 (6th Cir. 1985) (dismissing section 1981 claim where
plaintiff failed to sufficiently proffer a prima facie case of
race discrimination under Title VII).
E. Plaintiff's State/City Claims*fn10
1. Discrimination Claims
"Discrimination claims under the NYSHRL and the NYCHRL are
analyzed using the same standards as those that apply to Title
VII . . . claims." Darrell v. Consolidated Edison Co. of New
York, Inc., No. 01 Civ. 8130, 2004 WL 1117889, at *10 (S.D.N.Y.
May 18, 2004) (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000)). See also Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001)
("Plaintiffs' claims of discrimination under the Human Rights
Laws of New York City and New York State are evaluated using the
same analytic framework used in Title VII actions."). Because the
hostile work environment, constructive discharge and retaliation
claims brought under Title VII are hereby dismissed, so too are
plaintiff's claims brought under the NYSHRL and the NYCHRL.
2. Intentional Infliction of Emotional Distress
This claim can be summarily dismissed on statute of limitations
grounds. The statute of limitations for intentional infliction of
emotional distress is one year. See Dreizis v. Metropolitan
Opera Ass'n, No. 01 Civ. 1999, 2004 WL 736882, at *4 (S.D.N.Y.
Apr. 5, 2004) (citing N.Y.C.P.L.R. § 215(3)). This action was
filed in March 2003, yet the acts complained of occurred in
2000-2001. Accordingly, plaintiff's claim for intentional
infliction of emotional distress is untimely. In addition, such
claim lacks merit because defendants' conduct was not
sufficiently outrageous or extreme to sustain a claim for
intentional infliction of emotional distress. This claim is
therefore dismissed with prejudice.
3. Prima Facie Tort
This claim can also be summarily dismissed as untimely. As with intentional infliction of emotional distress, the statute of
limitations for prima facie tort is one year. See Fazio Masonry,
Inc. v. Barry, Bette & Led Duke, Inc., No. 196-01, 2004 WL
2903646, at *2 (Sup.Ct. Albany Co. Nov. 3, 2004) ("The statute
of limitation for intentional infliction of emotional distress
and prima facie tort is one year."). Furthermore, plaintiff has
not proved that defendants intentionally inflicted harm upon her
without excuse or justification. In her Declaration, plaintiff
states that the Loss Prevention Department "became very concerned
about merchandise thefts, credit card scams and other losses in
the fine jewelry department." Thomas Decl. ¶ 3. This statement
provides an alternative explanation for the excessive monitoring
and surveillance of plaintiff and thereby defeats her claim for
prima facie tort, which is also dismissed with prejudice.
E. Costs and Fees
Section 706(k) of Title VII provides:
In any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing
party, other than the Commission or the United
States, a reasonable attorney's fee (including expert
fees) as part of the costs, and the Commission and
the United States shall be liable for costs the same
as a private person.
42 U.S.C. § 2000e-5(k). While the statute is silent as to who
shall pay the fees, courts have held that the statute does not
authorize an assessment of fees against the loser's attorney. See, e.g., Quiroga v. Hasbro, Inc.,
934 F.2d 497
, 504 (3d Cir. 1991). Furthermore, "[a]lthough the text
of the statute does not distinguish between prevailing plaintiffs
and prevailing defendants, the Supreme Court has held that a
defendant is not entitled to an award of fees on the same basis
as a prevailing plaintiff." AFSCME v. County of Nassau,
96 F.3d 644, 650 (2d Cir. 1996) (citing Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 418-19) (1978)) (emphasis in original). With
this distinction in mind, the Supreme Court held that
a district court may in its discretion award
attorney's fees to a prevailing defendant in a Title
VII case upon a finding that plaintiff's action was
frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.
Christiansburg, 434 U.S. at 421. Finally, "because fee awards
are at bottom an equitable matter, . . . courts should not
hesitate to take the relative wealth of the parties into
account." Faraci v. Hickey-Freeman Co., Inc., 607 F.2d 1025
1028 (2d Cir. 1979).
Here, an assessment of fees against plaintiff is not
appropriate. Crediting plaintiff's version of the story, she was
subjected to a humiliating and degrading course of conduct that
would have demoralized just about anyone. The fact that she was
unable to ultimately prove race-based animus, which is often difficult to prove in discrimination cases, does not mean that
the case was frivolous, unreasonable, or without foundation when
it was first brought. I cannot know whether plaintiff or her
attorney insisted on pressing this case when the lack of evidence
became apparent. Without the benefit of this knowledge, I am
loathe to assess fees against plaintiff, a woman of modest means,
in favor of Bergdorf Goodman, a multi-million dollar department
store. Accordingly, defendants' request for attorney's fees and
costs is denied. See Quiroga, 934 F.2d at 503 ("It is clear
from Christiansburg that attorney's fees [to defendants] are
not routine, but are to be only sparingly awarded.").
For the foregoing reason, defendants' motion for summary
judgment is granted. The Clerk of the Court is directed to close
this motion (# 33 on the docket) and this case.