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United States District Court, S.D. New York

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 ordinary, middle-of-the-road sales person when her sales production for a first year associate was very high. See Pl. 56.1 ¶ 33.


  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 original).

  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 in original).

  B. Hostile Work Environment/Constructive Discharge/Retaliation

  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 citations omitted).

  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 original).

  3. Retaliation

  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?
A. Me?
Q. Yes.
A. No.
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 white.
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 indicates otherwise.

  C. Retaliation

  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.


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