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April 5, 2005.

SHELLEY HNOT, et al., Plaintiffs,

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Plaintiff Heidi Scheller brings this employment discrimination action against her former employer Willis Group Holdings, and its affiliated entities (collectively, "Willis"). Plaintiff alleges that she was underpaid and constructively discharged due to her sex, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e-2 et seq. ("Title VII").*fn1 In an Opinion and Order dated March 18, 2005, this Court granted a motion by Scheller and Shelley Hnot for class certification. Hnot v. Willis Group Holdings Ltd., 01 Civ. 6558 (GEL), 2005 WL 659475 (S.D.N.Y. March 21, 2005). Defendants now move for summary judgment against plaintiff Scheller's individual claims on the grounds that they are time-barred, and that plaintiff cannot establish a prima facie case or demonstrate that defendants' alleged non-discriminatory reasons for their actions were pretextual. For the reasons below, defendants' motion will be granted in part and denied in part.*fn2


  Heidi Scheller was hired by Willis, an insurance brokerage company, in August 1993 as an Account Executive with the officer title of Vice President, to work in the Boston, Massachusetts office. (Scheller Dep. 7, 26; Brown Aff. Ex. D.) When she joined Willis, Scheller brought with her a lucrative account, Thermo Electron Corporation ("Thermo"), and three other clients. (Scheller Aff. ¶ 16-22.) In early 1994, Scheller was appointed the "international resource" for Willis in Massachusetts, to advise colleagues and clients about overseas insurance issues. (Scheller Dep. 138-140.) She was promoted to Senior Vice President in 1997. (Brown Aff. Ex. F.) Scheller reported to Jay Sarrey and the Chief Executive Officer ("CEO") of Massachusetts, David Jollin.*fn3 (Scheller Dep. 20, 33.)

  During Scheller's employment, she received a base salary, which increased each year (except 1997 when there was a salary freeze). (Profeta Aff. Ex. 13.) Scheller's salary was lower than the base salaries of a number of male producers/account executives. Scheller was also eligible to receive incentive compensation. (Sarrey Aff. ¶ 36.) In 1996 and 1997, she had an Incentive Bonus Plan where she was paid ten percent of any new business she garnered, plus ten percent of any net annual increase in renewal business. (Scheller Aff. ¶ 94, Ex. 25, 26.) Each employee had his or her own individualized incentive plan. Defendants allege that Scheller's total compensation was one of the highest in the office.*fn4 (D. Reply 15.)

  Willis's contact at Thermo, Richard Somerville, closely monitored how Willis handled the account, and he was a demanding client. (Scheller Aff. ¶ 36; Jollin Dep. 254.) During the first few years at Willis, Thermo generated large revenues for Willis under Scheller's management. (Scheller Aff. ¶ 35.) Defendants claim that Somerville eventually began expressing dissatisfaction with the account's management, and with Scheller's negative attitude. (Sarrey Aff. ¶ 16-17, 23, Ex. A.) Scheller avers, however, that in 1997, she began experiencing difficulties with the Willis Thermo team, including threats of staff departures. (Scheller Aff. ¶ 38.) She contends that it was only after Somerville learned that a critical employee on the team might be transferred to other duties in January 1998 that he requested that Sarrey oversee the Thermo account. (Id. at ¶ 49.) Willis then reorganized staffing of the Thermo team, and Sarrey assumed overall responsibility for the account. (Scheller Dep. 186-87.)

  At the end of August 1998, Scheller was on bereavement leave. When she returned on September 3, 1998, Jollin informed her that she would have to take a paid 30-day leave of absence. (Scheller Aff. ¶ 65.) Defendants allege that after the reorganization of the Thermo team, Scheller refused to accept Sarrey's authority over the Thermo account and was disruptive and insubordinate, and that the leave was intended to give her time to adjust and reconcile herself to the new management structure. (Sarrey Aff. ¶ 29, Ex. A.) Scheller's leave was later extended to 90 days. (Scheller Dep. 226-27.) In a letter from her then attorney dated November 30, 1998, Scheller resigned, effective December 2, 1998. (Sarrey Aff. Ex. C.)


  I. Summary Judgment Standard

  Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show 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). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). In deciding a summary judgment motion, the court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Vill. Of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

  The nonmoving party, however, may not rely on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The non-moving party must make a "showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  II. Statute of Limitations

  Title VII claims must be filed with the EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1).*fn5 Under Title VII, each discrete act of discrimination "constitutes a separate actionable `unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). A plaintiff can "only file a charge to cover discrete acts that `occurred' within the appropriate time period." Id. Recovery is precluded for acts outside the time period, even if related acts occurred within the statutory time period. Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004).

  Scheller's constructive discharge claim is unquestionably timely. The "date that [an employee's constructive discharge] claim accrue[s] [is] the date when she gave definite notice of her intention to [leave]." Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000). Scheller resigned by letter dated November 30, 1998. (Sarrey Aff. Ex. C.) Since that date is within 300 days of ...

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