The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #8.
Plaintiffs commenced this action seeking damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and the New York State Human Rights Law, Article 15 of the New York State Executive Law ("NYSHRL"). Dkt. #1. Specifically, plaintiffs complain of: (1) age discrimination pursuant to the ADEA; (2) sex discrimination pursuant to Title VII; (3) retaliation pursuant to Title VII; (4) retaliation pursuant to the ADEA; (5) age discrimination pursuant to the New York Human Rights Law; (6) sex discrimination pursuant to the New York Human Rights Law; and (7) retaliation pursuant to the New York Human Rights Law. Dkt. #1.
Currently before the Court is defendant Hopevale Union Free School District's ("School's"), motion for summary judgment (Dkt. #14); Hopevale, Inc.'s ("Hopevale's"), motion for summary judgment (Dkt. #16); and plaintiffs' motion for partial summary judgment against Hopevale. Dkt. #20. For the following reasons, defendants' motions are granted and plaintiffs' motion is denied.
Defendant Hopevale is a non-profit corporation providing residential care and services to abused, destitute, delinquent, abandoned or dependent girls. Dkt. #24, ¶ 5. Defendant School is a special act school district created by the New York State Legislature to educate students placed by the New York State Family Court, Department of Social Services, Department of Child & Family Services or local school districts. Dkt. #24, ¶ 4.
Plaintiffs were hired by the School in 1984 to work as cleaners for Hopevale, which contracted their services to the School at an hourly rate of $4.50. Dkt. #33, ¶¶ 1 & 2; Dkt. #35, ¶ 4. Plaintiffs' receive one paycheck from Hopevale for their work for both Hopevale and the School. Dkt. #35, ¶ 6. As part of his responsibilities for Hopevale, Kenneth Mangione, Administrator of Finance and Support Services for Hopevale and Business Manager for the School, supervised plaintiffs' work for both Hopevale and the School until July, 2002. Dkt. #17, ¶ 5.
John Borowski was hired as a cleaner by the School on April 29, 1985 at an hourly rate of $5.00. Dkt. #20, Exh. 14. At that time, plaintiffs were still earning $4.50. Dkt. #20, Exh. 15& 16. When Mr. Borowski was transferred to a maintenance position on October 6, 1986, he received a salary increase to $6.25 per hour, while Ms. Kazmierczak's hourly rate as a cleaner was $5.375 and Ms. Petrillo's hourly rate as a cleaner was $5.176. Dkt. #20, Exh. 14-16. When Mr. Borowski resigned in 1988, he was earning $7.15 per hour, while Ms. Kazmierczak was earning $6.15 per hour and Ms. Petrillo was earning $5.92 per hour. Dkt. #20, Exh. 14-16.
James McGowan became principal of the School in 1992, which is the same year in which the School expanded into a new building and Hopevale took over the building vacated by the School. Dkt. #24, ¶ 13; Dkt. #33, ¶ 8. At that time, plaintiffs' hours were increased at the School and they were also assigned cleaning duties at Hopevale's offices. Dkt. #24, ¶ 14. Since then, plaintiffs have been scheduled to work two hours a day for Hopevale and six hours a day for the School. Dkt. #24, ¶ 19. Plaintiffs generally work from 6:30 a.m. until 8:30 a.m. cleaning the offices at Hopevale and from 4:00 p.m. until 10:00 p.m. cleaning the School. Dkt. #20, ¶ 9; Dkt. #24, ¶ 15. Plaintiffs are the only people regularly scheduled to be working in the School after hours. Dkt. #24, ¶ 16.
In May of 1997, Mr. Mangione and Mr. McGowan suggested that plaintiffs' work schedule be consolidated into an eight-hour shift from 3:30 p.m. until 11:30 p.m. Dkt. #14, Exh. H; Dkt. #24, ¶ 33; Dkt. #30, Exh. 10, pp.73-76. As part of this proposal, plaintiffs would no longer be paid separate hourly rates from the School and Hopevale, but would be reimbursed for all of their time at Hopevale's lower rate of pay. Dkt. #33, ¶ 32. During a meeting to discuss this proposal, plaintiffs allege that Mr. Mangione and Mr. McGowan commented that plaintiffs were expendable and getting old, and had to be able to "bend and stretch." Dkt. #33, ¶ 32. Plaintiffs opposed the proposal to consolidate their hours and pay rate and, after meeting with Hopevale's Executive Director, Stanfort Perry, the proposal was withdrawn. Dkt. #24, ¶ 34; Dkt. #30, Exh. 10, p.76 & Exh. 11, p.32.
Ray Murphy was hired by Hopevale on May 28, 1997 at the age of 32 for a temporary summer maintenance position earning $6.20 per hour. Dkt. #14, Exh. J; Dkt. #20, Exh. 6, p.84 & Exh. 18. As of July 1, 1997, Ms. Kazmierczak was earning $11.11 per hour from the School and $8.60 from Hopevale, while Ms. Petrillo was earning $10.72 from the School and $8.60 from Hopevale. Dkt. #20, Exh. 15-16.
Plaintiffs allege that Mr. McGowan entered the building after hours to intentionally scare plaintiffs. Dkt. #33, ¶¶ 1-2. For example, plaintiffs allege that Mr. McGowan hid in a dark lavatory on June 16, 1997 and often walked the halls in his stocking feet.*fn1 Dkt. #33, ¶¶ 1, 26-27 & Exh. 2. In a note dated June 17, 1997, plaintiffs requested that Mr. Caliguri instruct Mr. McGowan to announce his presence at night over the red telephone so that he would not scare them. Dkt. #33, ¶ 8. Plaintiffs wrote a letter to Mr. Perry in October of 1997, informing him of two separate incidents in which Mr. McGowan entered the building without announcing himself. Dkt. #33, ¶ 10. On November 5, 1997, plaintiffs tied a set of bells to the front door so that they would hear Mr. McGowan enter the building. Dkt. #33, ¶ 28. Mr. McGowan complained to Mr. Caliguri, who forbid plaintiffs from repeating this action even though plaintiffs explained that they had done so in order to prevent Mr. McGowan from scaring them. Dkt. #33, ¶ 28. During this time period, i.e., 1997-1998, Mr. Caliguri was aware of four formal complaints against Mr. McGowan involving inappropriate kissing (two incidents), statements, and staring, at least one of which resulted in discipline. Dkt. #33, Exh. 7, pp.107-12. However, plaintiffs admit that Mr. McGowan never made sexual advances, asked for sexual favors, or physically touched them. Dkt. #16, Exh. G, pp.553-54 & Exh. H, pp.72-73, 82.
On June 2, 1998, while questioning Mr. Mangione regarding the pay rates shown on their pay stubs, Mr. Mangione allegedly asked plaintiffs, "why don't you just quit?" Dkt. #33, Exh. 2.
On July 1, 1998 plaintiffs received a pay increase from Hopevale which raised their hourly rate to $8.86. Dkt. #20, Exh. 15-16. On October 19, 1998, Ray Murphy's hourly wage as a cleaner was increased to $6.65. Dkt. #20, Exh. 18.
On November 23, 1998, Mr. McGowan allegedly scared plaintiffs as they were leaving the building. Dkt. #33, ¶ 29. In December of 1998, Mr. McGowan allegedly scared Ms. Petrillo as she was exiting a lavatory. Dkt. #33, ¶ 30. When she complained that she could have had a heart attack, he allegedly responded, "yeah, you could." Dkt. #33, ¶ 30. Plaintiffs assert that they subsequently found an article entitled, "How to survive a heart attack when you're alone," in their mailbox. Dkt. #33, ¶ 30. The article is photocopied onto a sheet of paper with the following handwritten caption: "To: All Staff; From: JAC; Date: 9/28/2000; FYI." Dkt. #33, Exh. 1 & 7, p.162-63.
On January 1, 1999, plaintiffs allege that Mr. McGowan was waiting for plaintiffs in a darkened hallway outside the lavatory. Dkt. #33, Exh. 2. When Ms. Kazmierczak exited the lavatory, she exclaimed: "Are you crazy?" Dkt. #33, Exh. 2. Mr. McGowan responded, "I came down here so I wouldn't scare you." Dkt. #33, Exh. 2. On January 19, 1999, Mr. McGowan, in his stocking feet, allegedly told plaintiffs, "I'm smiling . . . I'm not mean." Dkt. #33, ¶ 31. The next day, Ms. Kazmierczak telephoned Mr. Caliguri to report that Mr. McGowan had scared her. Dkt. #33, ¶ 32.
During a meeting in February of 1999, plaintiffs allege that Mr. Mangione again commented that plaintiffs were "getting old," and had to be able to "bend and stretch." Dkt. #14, Exh. C, pp.596-97.
In March of 1999, Hopevale gave Mr. Murphy additional hours and assigned him to clean Building 20, which had recently been renovated. Dkt. #20, ¶ 11. This resulted in a cost savings for Hopevale, as it was able to pay Mr. Murphy his regular hourly rate, whereas plaintiffs were receiving two hours per week overtime to complete this work. Dkt. #17, ¶¶ 26-27; Dkt. #30, Exh. 9, p.355 & Exh. 11, p.328.
Plaintiffs concede that they had expressed concern to Mr. Perry about their ability to complete their cleaning duties during their scheduled hours. Dkt. #16, pp 45-46. Mr. Murphy continues to clean Building 20 during his regularly scheduled hours, spending approximately one-half hour per day on this task. Dkt. #30, Exh. 2, ¶ 20.
In a memorandum summarizing a meeting on March 25, 1999, Mr. Mangione wrote the following:
This memo will serve to summarize the results of the meeting held today between yourselves and Joe Caliguri and Jim McGowan from the school and Stanfort Perry and me from Hopevale, Inc.
1. Your work schedule at the school will be from 4:00 PM until 10:00 PM, Monday through Friday.
2. Mid way through your school work day, you may take a one-half hour break. This break is not to be taken at either the beginning or end of your work day.
4. We will hold regular meetings to review Hopevale and School items of interest and/or concern on the first and third Tuesdays of the month. I suggest that we hold these meetings at 7:30 AM so that you will not have to make a special trip here.
5. Due to constraints of time we were not able to deal with whether or not you feel that you can meet all of the school's cleaning needs.
Dkt. #33, Exh. 2. At his deposition, Mr. Mangione testified that Hopevale did not have a written policy with respect to lunch breaks and formulated this policy with respect to plaintiffs in response to concerns regarding the appropriateness of the School paying plaintiffs for a one hour break during the course of a six hour shift. Dkt. #16, Exh. I, pp.320-24.
Ray Murphy transferred to a maintenance position with Hopevale as of July 1, 1999, earning $8.77 per hour. Dkt. #20, Exh. 18. Despite this transfer, Mr. Murphy referred to himself as a cleaner on his time sheets and continued to wear an employee name tag identifying him as a cleaner. Dkt. #20, ¶¶ 15, 20. However, Mr. Murphy affirms that his position requires him to deliver meals, food and supplies to the cottages; perform minor repairs to sinks, toilets, doorbells, lights, and windows; move furniture; maintain lawn equipment; paint buildings; mow and trim the lawn in the summer; and shovel and salt walkways in the winter. Dkt. #30, Exh. 2, ¶¶ 6-19. Mr. Mangione avers that maintenance workers have different work hours and responsibilities than cleaners. Dkt. #17, ¶¶ 17-19. Specifically, Mr. Mangione affirms that maintenance workers are responsible for the upkeep and proper operation of the physical plant of Hopevale, including the administrative office building, seven residential cottages, the Family Activity Center, Building 20 and the health clinic. Dkt. #17, ¶¶ 17-19. Mr. Mangione concedes that maintenance workers perform occasional cleaning tasks as needed. Dkt. #17, ¶ 19.
In addition to their hourly salary, plaintiffs were included in the distribution formula for a bonus paid by the School when it ended the year with a budget surplus. Dkt. #24, ¶¶ 21-22. Plaintiffs also received a longevity bonus from Hopevale which was pro-rated based upon hours worked for Hopevale. Dkt. #24, ¶¶ 23-24. Beginning in the 1999-2000 fiscal year, plaintiffs' began receiving a full longevity payment from Hopevale and no longer shared in the School's budget surplus bonus. Dkt. #24, ¶ 25. School Superintendent Joseph Caliguri testified at his deposition that the School decided to stop paying the bonus to plaintiffs "because the expense was getting to the point where it would have been cheaper to engage a cleaning company compared to what the cleaners were earning." Dkt. #14, Exh. F, p.92.
Since approximately March 4, 2000, Mr. Murphy has been receiving two hours of overtime per day to clean the Family Activity Center. Dkt. #20, ¶ 18. Mr. Mangione affirms that Mr. Murphy was offered the opportunity to clean the Family Activity Center when it opened because he worked alone, whereas plaintiffs worked together, and because
Plaintiffs were unavailable to do the cleaning because of the split work schedule they had chose and fought hard to maintain. The Family Activity Center had to be cleaned when the building was not in use. The only feasible time to clean the building was in the early morning hours. Since Plaintiffs already worked the early morning hours, Murphy was offered the building to clean.
Dkt. #17, ¶¶ 29, 42. Mr. Murphy cleans the Family Activity Center from 6:00 a.m. until 8:00 a.m. each work day. Dkt. #30, Exh. 2, ¶ 21. Plaintiffs did not ask to clean the Family Activity Center. Dkt. #16, Exh. H, pp.339-42.
By memorandum dated March 10, 2000, Mr. Mangione informed plaintiffs that Lights should be turned off when you are not in an area. If you leave the building for dinner, all lights should be turned off.
Dkt. #33, Exh. 2. Plaintiffs responded by informing Mr. Caliguri that they could not comply with this directive because they were afraid of Mr. McGowan lurking in the dark and scaring them. Dkt. #33, ¶ 54.
By memo dated April 18, 2000, Mr. Mangione informed Mr. Caliguiri that he spoke again today with Kathy and Marie regarding their concerns. They both state that Jim has continued to enter the school unannounced despite his statements to the contrary. I have asked them to provide me with a written statement to that effect and to cite dates if possible.
I am not sure what is going on but I feel that we need to take a very strong pro-active position to ward off any potential for any harassment charge. I will continue to press Kathy and Marie for written documentation regarding their concern. I suggest that we schedule a meeting with them to discuss this matter to insure that we are not accused of disregrard.
Dkt. #14, Exh. H. In a memo to the file, also dated April 18, 2000, Mr. Mangione summarized the following meeting between plaintiffs:
We then discussed the concern that they both have over Jim McGowan coming into the school when they are working at night. They still maintain that he does not let them know when he is in the building. I asked if they were referring to recent incidents or past incidents. They stated that these occurrences continue and that they have dates when he has come in the building unannounced. I again asked them to provide these dates as was requested in my memo to them on April 11th. I specifically asked if he had ever made any sexual comments or any comments regarding their appearance. After a long delay, they stated that he had not.
In a letter dated April 17, 2000, and received April 18, 2000, plaintiffs' attorney informed Mr. Mangione that
It is my understanding that [plaintiffs] have raised certain concerns with you and with Stanford Perry, the former executive director of Hopevale, relative to lighting conditions.
There are occasions when Mr. McGowan will enter the building unannounced and has remained in various building areas without announcing himself or letting Ms's. Kazmierczak or Petrillo aware [sic] that he is in the building.
As you can appreciate, they are basically alone in the building and have concerns about their security and safety issues.
My clients want to be sure where Mr. McGowan is during the times that he is in the building.
My clients have been put in a position where Mr. McGowan could be anywhere in the building unannounced, without shoes, socks, behind various rooms in the dark and to be quite honest, they are fearful.
It is under these circumstances that you can appreciate that they desire that there be proper lighting conditions in general areas.
In response to that letter, Mr. Caliguri reminded Mr. McGowan to "try to announce himself when entering the building." Dkt. #33, ¶ 20. However, Mr. Mangione and Mr. Caliguri both stated that they did not know why a principal would have to announce himself when entering his own building. Dkt. #33, ¶ 23. With respect to plaintiffs' security concerns, Mr. Caliguri testified at his deposition that
There is no security for the School at night. There is no need for security at [t]he School at night. . . . All of my 18 years there we never had a problem or an incident that required security.
During a meeting with plaintiffs in April of 2000, Mr. Mangione allegedly informed plaintiffs that he doesn't "get 10 extra dollars for dealing with [plaintiffs] . . . I'm sick of getting harassed by the School." Dkt. #33, Exh. 2. When plaintiffs informed Mr. Mangione that they were afraid of Mr. McGowan, Mr. Mangione allegedly responded that he wasn't going "to sit across from a federal ...