UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 28, 2006
JENNIFER BELLEGAR DE DUSSUAU, PLAINTIFF,
BLOCKBUSTER, INC., DEFENDANT.
The opinion of the court was delivered by: William H. Pauley III, District Judge
MEMORANDUM AND ORDER
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. Fourth, Defendant contends that this Court failed to consider its affirmative defenses. Finally, Defendant seeks dismissal of Plaintiff's pregnancy discrimination claim.
I. Standard for Rule 59(e) Motion for Reconsideration
A motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); accord Durant v. Traditional Inv., Ltd., No. 88 Civ. 9048 (PKL), 1990 WL 269854, at *1 (S.D.N.Y. Apr. 25, 1990). Such a motion "cannot assert new arguments or claims which were not before the court on the original motion." Koehler v. Bank of Berm., Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005). The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983); In re Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237, 246 (S.D.N.Y. 2005); Wechsler v. Hunt Health Sys, Ltd., No. 94 Civ. 8294 (PKL), 2004 WL 2210261, at *6 (S.D.N.Y. Sept. 30, 2004). The same standard applies to motions for reconsideration pursuant to Local Civil Rule 6.3. See Naiman v. N.Y. Univ. Hosp. Ctr., No. 95 Civ. 6469 (RPP), 2005 WL 926904, at *1 (S.D.N.Y. Apr 21, 2005); JPMorgan Chase Bank v. Cook, 322 F.Supp.2d 353, 354 (S.D.N.Y. 2004).
II. Summary Judgment Standard
A court may grant summary judgment only if "there is no genuine issue of material fact" and "the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); accord McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Once the movant satisfies this requirement, the burden shifts to the non-moving party "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The court is required to resolve any ambiguities and to make all reasonable inferences in favor of the non-moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
Courts should be cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is at issue. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nevertheless, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[M]ere speculation and conjecture" is likewise insufficient. See W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Rather, a plaintiff "must come forward with evidence that would be sufficient to support a jury verdict in [her] favor." Goenaga v. March of Dimes Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Plaintiff may show the existence of material facts through circumstantial, direct or statistical evidence. Gallo, 22 F.3d at 1225.
A. Race/National Origin Discrimination
Defendant requests reconsideration of this Court's determination that Plaintiff's claim of discriminatory constructive discharge raises a triable issue of material fact under the McDonnell Douglas burden-shifting framework. Under that analysis, the plaintiff has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a prima facie case, the plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); see McDonnell Douglas, 411 U.S. at 802.
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-03; Holt v. KMI-Cont'l, Inc ., 95 F.3d 123, 129 (2d Cir. 1996). The burden then shifts back to the plaintiff to show that the employer's reason is mere pretext and that discrimination was the true motivating factor. St. Mary's, 509 U.S. at 507-08; McDonnell Douglas, 411 U.S. at 804-05. Ultimately, the question is whether the evidence supports a rational inference that "more likely than not discrimination was the real reason" for the adverse action of which the plaintiff complains. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (internal quotation omitted).
1. Constructive Discharge Standard
"Adverse employment actions . . . may be either an actual termination of the plaintiff's employment or a 'constructive' discharge." Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001); accord Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987). Defendant contends that this Court failed to apply controlling precedent in assessing Plaintiff's prima facie case for constructive discharge. In its Order, this Court held that to establish constructive discharge, Plaintiff must demonstrate that "[w]orking conditions . . . [are] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Dussuau, No. 03 Civ. 6614, slip op. at 6 (quoting Lopez, 831 F.2d at 1188). The standard advanced by Defendant would require a plaintiff to establish "working conditions so intolerable that a reasonable person would have felt compelled to resign." Penn. State Police v. Suders, 542 U.S. 129, 147 (2004). Defendant does not explain how these standards differ, and this Court is aware of no material distinction between them. Plainly, this Court used the correct standard in denying summary judgment.
2. "Conclusory" Allegations
Defendant contends that the Order relied on Plaintiff's conclusory allegations, and therefore improperly denied summary judgment on Plaintiff's hostile work environment and constructive discharge claims.*fn2 According to Defendant, this Court should have disregarded as conclusory Dussuau's testimony that she was threatened with termination on a "daily basis." (Pl. Dep. at 32.) However, it was proper for this Court to consider Plaintiff's testimony as to the frequency of Romero-Salas' conduct. See Holtz, 258 F.3d at 75 (denying summary judgment based on plaintiff's uncorroborated testimony of "daily" and "constant" harassment). "Although plaintiff provides details only with respect to a limited number of incidents [of harassment], plaintiff has testified to continual racial abuse. Whether the allegations of continual abuse could reasonably constitute pervasive harassment is a determination best left for a jury." Wishner v. Continental Airlines, No. 94 Civ. 8239 (LAP), 1997 WL 615401, at *2 (S.D.N.Y. Oct. 6, 1997); see also Hussain v. Long Island R.R. Co., No. 00 Civ. 4207 (THK), 2002 WL 31108195, at *7 (S.D.N.Y. Sept. 20, 2002) (denying summary judgment when plaintiff testified that the offensive behavior occurred "many times" and was "a regular thing" over the course of approximately two years, even though plaintiff could recall only a few specific instances of offensive conduct). Contrary to Defendant's contention, Plaintiff is not required to corroborate her allegations as to the frequency of Romero Salas' harassment. See Holtz, 258 F.3d at 75; cf. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (reversing summary judgment where plaintiff "made out her prima facie case by offering evidence of discriminatory comments . . . even [though the evidence was] uncorroborated").
In addition to the daily threats, Romero-Salas suggested that Plaintiff was responsible for robbing her own store, screamed at her in such a way that she would feel like a "child," prevented her from taking time off for medical appointments, and verbally abused her in front of subordinates and customers.*fn3 "[A] reasonable person in [Dussuau's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of immediate termination, that she was compelled to leave." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996); see also Gonzalez v. Bratton, 147 F. Supp. 2d 180, 198 (S.D.N.Y. 2001) (evidence of employer's "unreasonable level of scrutiny, excessive hostility and unmerited disciplinary charges" sufficient to sustain jury's finding of constructive discharge).
3. Defendant's Non-Discriminatory Reason
Defendant claims that Plaintiff failed to rebut its proferred non-discriminatory reason for harassing Plaintiff. According to Defendant, Romero-Salas merely intended to "coach and counsel Plaintiff in an entirely appropriate effort to improve Plaintiff's performance and that of the Dyckman Store." (Defendant's Memorandum of Law in Support of Summary Judgment, dated June 22, 2004, at 13.) "Summary judgment [would be] appropriate . . . only if [Blockbuster's] nondiscriminatory reason is dispositive and forecloses any issue of material fact." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). Because an employer rarely leaves direct evidence of its discriminatory intent, this Court must review the entire record in determining whether there is circumstantial proof to undermine the employer's explanations for its actions. Chertkova, 92 F.3d at 87; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) ("A victim of discrimination . . . is usually constrained to rely on the cumulative weight of circumstantial evidence.")
Based on the evidence, this Court concludes that there is a genuine issue as to whether Defendant's proffered reason is a pre-text for discrimination. A reasonable juror could find Plaintiff to have been an accomplished employee who did not require Romero-Salas' abusive "coaching" and "counseling." Dussuau received stellar performance evaluations prior to her promotion, and Del Villar attested that Plaintiff is a "hard-working, dedicated, talented employee." (Del Villar Aff. ¶ 5.) See, e.g., Carlton, 202 F.3d at 137 (denying summary judgment on race discrimination claim when plaintiff had received positive performance reviews); Zhang v. Barr Labs., Inc., No. 98 Civ. 5717 (DC), 2000 WL 565185, at *4 (S.D.N.Y. May 8, 2000) (same). Although the Dyckman store initially faltered following Plaintiff's promotion to store manager, the store improved substantially thereafter. (Pl. 56.1 Stmt. ¶ B.27.) There is evidence tending to show that Plaintiff's hard work contributed to the turnaround. Yet Romero-Salas continued to harass Plaintiff even after the Dyckman store began to thrive. See Chertkova, 92 F.3d at 89 (reversing grant of summary judgment when harassment continued despite plaintiff's improved job performance). Further, to the extent Plaintiff's performance suffered, Plaintiff contends it was because Romero-Salas failed to provide the Dyckman store with support.
It is also unclear whether Romero Salas' actions actually constituted "coaching" or "counseling." Plaintiff claims, inter alia, that Romero-Salas made daily phone calls threatening Plaintiff with termination, falsely accused Plaintiff of participating in a theft and screamed at Plaintiff in public without just cause. A rational juror could conclude that there was no relationship between these abusive tactics and Defendant's purported desire to improve Plaintiff's job performance.
Defendant contends that Romero-Salas' comment about Haitians being "workaholics" may not be used to rebut its proffered non-discriminatory reason. This Court disagrees. Circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers. Back, 365 F.3d at 124; Holtz, 258 F.3d at 77-78. "In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative 'stray remark,' a court should consider the following factors: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process." Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 519 (S.D.N.Y. 2004).
The "workaholics" comment was made by Romero-Salas, the supervisor who was responsible for the alleged hostile work environment. Although it is unclear from the record whether the comment was made close in time to Plaintiff's departure from Blockbuster, that consideration is less significant where, as here, Plaintiff alleges continuous harassment over an extended period of time. See Gonzalez, 147 F. Supp. 2d at 198. Clearly the remark embodies a stereotype of Haitians that could be deemed offensive by a reasonable factfinder. Moreover, the remark is directly related to Plaintiff's allegations of discrimination. See Zhang, 2000 WL 565185, at *4 (comments are evidence of discriminatory motivation when there is a nexus between the discriminatory statements and the plaintiff's termination); Campbell v. Daytop Village, Inc., No. 97 Civ. 4362 (JSM), 1999 WL 292576, at *3 (S.D.N.Y. May 7, 1999) (same); Orisek v. Am. Inst. Of Aeronautics & Astronautics, 938 F. Supp. 185, 192 (S.D.N.Y. 1996) (same). According to Plaintiff, Romero-Salas subjected her to draconian discipline, while applying a more lenient standard to non-Haitians. The stereotypical comment about Haitians could support Plaintiff's claim that Romero Salas had disparate expectations for Haitains and non-Haitians. The remark is susceptible to a discriminatory inference, and it creates "a factual issue as to which the non-movant's (plausible) interpretation must, at summary judgment, be accepted." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); see also Millin v. McClier Corp., No. 02 Civ. 6592 (GEL), 2005 WL 351100, at *6 (S.D.N.Y. Feb. 14, 2005) ("Even a few, relatively mild incidents of biased remarks can permit a factfinder to infer racial . . . motivation for a more serious, even if not explicitly discriminatory, difference in treatment.").
In determining that a reasonable factfinder could infer discriminatory intent from the circumstantial evidence, this Court also considered the claim that Romero-Salas treated Del Villar better than she treated Plaintiff. Del Villar has stated that in his experience as a store manager, "Romero-Salas was supportive and assisted me whenever I sought assistance. She filled in when my absence was necessary and helped to ensure that I had sufficient supplies and personnel." (Del Villar Aff. ¶ 20.) Plaintiff claims that Romero-Salas was unsupportive of her, and refused to provide her with the appropriate personnel and supplies. "If a jury credits plaintiff's allegations, it may reasonably conclude that [Romero-Salas] acted with discriminatory intent towards plaintiff and thus aided in the creation of a hostile work environment." Hill v. Taconic Dev. Disabilities Servs. Office, 283 F. Supp. 2d 955, 960 (S.D.N.Y. 2003) (holding that an employer's "unequal treatment of white and black supervisors" raised an inference of discrimination); see also Dodson v. CBS Broad. Inc., No. 02 Civ. 9270 (AJP), 2004 WL 1336231, at *22-23 (S.D.N.Y. June 15, 2004) (holding that allegations of discriminatory conduct together with a supervisor's comment raised an inference of discrimination); Golia v. Leslie Fay Co., No. 01 Civ. 1111 (GEL), 2003 WL 21878788, at *6 (S.D.N.Y. Aug. 7, 2003) (same).
4. Defendant's Affirmative Defense
Blockbuster again requests summary judgment on its Faragher/Ellerth affirmative defense. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Under Faragher and Ellerth, an employer is vicariously liable for the harassing acts of supervisory employees, but may escape liability if: (1) it "exercised reasonable care to prevent and correct promptly any [racially] harassing behavior," and (2) Plaintiff "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Regarding the second prong, Dussuau claims that she reported "everything she was going through with Romero-Salas" to Maria Williams and left three telephone messages with Michael Moore. None of these pleas for help elicited a response from Defendant. Plaintiff clearly has proffered sufficient evidence to defeat summary judgment on Defendant's Faragher/Ellerth defense. See Cerros v. Steel Techs., Inc., 398 F.3d 944, 952 (7th Cir. 2004) ("The relevant inquiry is . . . whether the employee adequately alerted her employer to the harassment, thereby satisfying her obligation to avoid the harm.").
B. Pregnancy Discrimination
Defendant seeks dismissal of Plaintiff's pregnancy discrimination claim. Because Plaintiff did not oppose Defendant's motion for summary judgment on this claim, summary judgment on the claim is granted. Douglas v. Victor Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (deeming plaintiff's claims to be abandoned after plaintiff failed to oppose a summary judgment motion specifically addressing those claims).
For the foregoing reasons, Defendant's motion for reconsideration is denied. The parties are directed to submit a joint pretrial order in accord with this Court's individual practices by March 24, 2006. A final pretrial conference is scheduled for March 31, 2006 at 11:00 a.m.
WILLIAM H. PAULEY III U.S.D.J.