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Bellegar de Dussuau v. Blockbuster

February 28, 2006


The opinion of the court was delivered by: William H. Pauley III, District Judge


Plaintiff Jennifer Bellegar de Dussuau ("Plaintiff" or "Dussuau") brings this suit against Blockbuster Inc. ("Defendant" or "Blockbuster"), alleging that she was "constructively fired" from and harassed by Blockbuster because of her race, national origin and pregnancy in violation of federal and state civil rights laws. By Order dated March 23, 2005 (the "Order"), this Court denied Blockbuster's motion for summary judgment with respect to her claims of race and national origin discrimination. See Bellegar de Dussuau v. Blockbuster Inc., No. 03 Civ. 6614 (S.D.N.Y. Mar. 23, 2005). Defendant now moves for reconsideration of that Order pursuant to Fed. R. Civ. P. 59 and Local Civil Rule 6.3. For the reasons set forth below, Defendant's motion for reconsideration is denied.


Dussuau, a black woman from Haiti, was hired in August 1997 as a customer service representative for Blockbuster, a national chain of video rental stores. (Defendant's Statement of Facts Pursuant to Local Rule 56.1, dated June 22, 2004 ("Def. 56.1 Stmt.") ¶1; Plaintiff's Statement of Facts Pursuant to Local Rule 56.1, dated July 6, 2005 ("Pl. 56.1 Stmt.") ¶A.1.) She worked at a Blockbuster branch on Dyckman Avenue in the Bronx, New York (the "Dyckman store"), and reported to Miguel Del Villar ("Del Villar"), the store manager. From the time of her hiring to April 2001, Dussuau received six performance evaluations. (Pl. 56.1 Stmt. ¶ B.2.) On each evaluation, Plaintiff received an overall rating of "E", meaning "Exceeds Expectations." (Pl. 56.1 Stmt. ¶ B.2.) Plaintiff was twice promoted to assistant manager positions prior to April 2001. (Pl. 56.1 Stmt. ¶ B.1; Def. 56.1 Stmt. ¶ 3.)

On April 30, 2001, Dussuau replaced Del Villar as store manager of the Dyckman store. (Pl. 56.1 Stmt. ¶ B.5; see also Def. 56.1 Stmt. ¶ 6.) As store manager, Plaintiff's responsibilities included marketing, inventory management, customer service, loss prevention, payroll management and the hiring and training of store employees. (Def. 56.1 Stmt. ¶ 7; Pl. 56.1 Stmt. ¶ A.7.) Dussuau was supervised by district leader Yessenia Romero-Salas ("RomeroSalas"), a woman of Hispanic descent. Plaintiff has offered evidence that Romero-Salas initially opposed Plaintiff's promotion to store manager and proposed other employees for the position.*fn1

(Affidavit of Miguel A. Del Villar, dated June 18, 2004 ("Del Villar Aff.") ¶ 10.)

The Dyckman store failed its first internal audit under Dussuau's management. (Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Stmt. ¶ A.9.) The store received an audit score of 53%, while other stores under Romero-Salas' supervision received scores of 25%, 25%, 29%, 44%, 47%, 61% and 67%. (Pl. 56.1 Stmt. ¶¶ B.24-25.) Following that audit, the Dyckman store's performance improved dramatically, receiving scores above 90% for the next several audit cycles. (Pl. 56.1 Stmt. ¶ B.27.) Plaintiff attributes this improvement to the 100-hour work weeks she logged as store manager. (Pl. 56.1 Stmt. ¶ B.28.)

Dussuau claims that despite these achievements, Romero-Salas routinely harassed her in connection with her job performance. (Pl. 56.1 Stmt. ¶¶ B.8-10, 22, 31, 40.) RomeroSalas called Dussuau on a daily basis and threatened to fire her. (Pl. 56.1 Stmt. ¶ B.10.) Romero-Salas berated Dussuau in front of employees and customers concerning matters such as the supply of gum balls in the gum ball machine. (Pl. 56.1 Stmt. ¶ B.17; see Transcript of Plaintiff's Deposition, dated Apr. 7, 2004 ("Pl. Dep.") at 119-20.) Romero-Salas also falsely suggested that Plaintiff was complicit in a robbery of the Dyckman store. (Pl. Dep. at 33; see Pl. 56.1 Stmt. ¶ B.16.) While she criticized Plaintiff's job performance, Romero-Salas failed to provide Plaintiff with the level of assistance that Romero-Salas had provided to Del Villar, who is Hispanic. (Del Villar Aff. ¶¶ 2, 19-20.)

Romero-Salas allegedly indicated to Plaintiff that because of her Haitian national origin, she was being held to a different standard than other employees under Romero-Salas' supervision. Romero-Salas told Plaintiff she thought Haitians were supposed to be "workaholics," implying that Plaintiff's work ethic was inferior to that of other Haitians. (Def. 56.1 Stmt. ¶ 38; Pl. 56.1 Stmt. ¶ A.38.) At some point, Dussuau reported her difficulties with Romero-Salas to regional district trainer Maria Williams, who took no action against RomeroSalas. (Pl. Dep. at 252-54.) Plaintiff also left three voice messages requesting help from human resource manager Michael Moore. (Pl. Dep. at 255.) None of Dussuau's calls to Moore were acknowledged. (Pl. Dep. at 255.)

In March 2002, Dussuau scheduled her only medical appointment of the year. (Pl. 56.1 Stmt. ¶¶ B.15, 38.) While Plaintiff was at her physician's office, Romero-Salas tracked her down and demanded that she address a bag shortage at the Dyckman store. (Pl. 56.1 Stmt. ¶ B.39.) Bag shortages were common at local Blockbuster stores at the time. (Pl. 56.1 Stmt. ¶¶ B.15, 39.) Dussuau previously warned Romero-Salas about a possible bag shortage, but these warnings allegedly went unheeded. (Pl. Dep. at 269.)

When Plaintiff returned to the Dyckman store from her medical appointment, Romero-Salas confronted her. (Pl. 56.1 Stmt. ¶ B.40.) Dussuau asked Romero-Salas for an explanation of her apparent dissatisfaction with Dussuau's work, in light of the perfect scores Dussuau received on recent performance evaluations. Romero-Salas replied: "Well, a hundred doesn't mean anything, you are not doing your job." (Pl. 56.1 Stmt. ¶ B.40.) Dussuau responded by tendering her resignation to Romero-Salas and stating, "[F]rom the beginning you have been giving me a hard time. Now there is no need for you to battle with me any more. You won the battle, [Romero-Salas], okay. If you think you can do a better job than I do, these are your keys, I am quitting my position." (Pl. 56.1 Stmt. ¶ B.40; Def. 56.1 Stmt. ¶ 31.)

On September 2, 2003, Plaintiff initiated this action alleging discrimination on the basis of race, national origin and pregnancy in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; New York State Human Rights Law (the "HRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin Code § 8-101 et seq. On June 22, 2004, Blockbuster moved for summary judgment. On March 23, 2005, this Court denied Blockbuster's motion.

Defendant moves for reconsideration of the March 23 Order on several grounds. First, Defendant argues that this Court failed to apply the correct standard for determining whether the alleged constructive discharge constitutes an adverse employment action. Second, Defendant argues that this Court improperly relied on conclusory allegations in analyzing Plaintiff's constructive discharge claim. Third, Defendant contends that this Court improperly applied the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and that Plaintiff has failed to rebut Blockbuster's non-discriminatory reason for the alleged constructive discharge. ...

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