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December 21, 2004.


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


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 dismissed.

  I. FACTS*fn2

  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 id.

  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. ¶ 108.

  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 Cummings boutique).

  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. See id.

  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. ¶ 30.

  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 ...

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