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
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 ...