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Pinkney v. EMI Music Publishing

August 22, 2006

VENOLA PINKNEY, PLAINTIFF
v.
EMI MUSIC PUBLISHING, DAVID REGAN AND JOSEPH PUZIO AS AIDER AND ABETTOR, DEFENDANTS.



The opinion of the court was delivered by: McKENNA, D.J.

MEMORANDUM AND ORDER

Venola Pinkney ("Pinkney" or "Plaintiff"), an African-American female over forty years of age, brings this action against EMI Music Publishing, David Regan and Joseph Puzio as aider and abettor ("Defendants") alleging race and age discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law, N.Y. Exec. Law Sec 296 et. seq., and the New York City Human Rights Law, N.Y. Admin. Code Sec. § 8-101 et seq. Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing Plaintiff's complaint in its entirety. For the reasons stated below, Defendants' motion is GRANTED.

I. Background

A. Plaintiff's Employment at EMI Music Publishing

The facts of this case, taken in the light most favorable to Plaintiff, as the nonmoving party, are as follows.

Pinkney began as a temporary employee in the Corporate Finance department of EMI Music*fn1 in October 1996. (Pl.'s 56.1 Stmt. ¶ 52.) Later, Pinkney began working as a temporary employee in the Corporate Finance and Strategy Planning Group ("CFS") of EMI Music Publishing in January 1999. (Roche Aff. ¶ 3.) Pinkney reported to Manager of Corporate Reporting Rena Zemnovich ("Zemnovich"). (Roche Aff. ¶ 3.)

As a temporary employee, Pinkney's responsibilities consisted of assembling books of financial reports, copying, and assisting with projects as needed. (Zemnovich Dep. 28, 114, Mar. 30, 2005.) Pinkney performed capably and Zemnovich recommended to CFS Vice President David Regan ("Regan") and CFS Sr. Vice President Joe Puzio that Pinkney be hired full-time. (Zemnovich Dep. 29-32.) Pinkney began working in CFS as a full-time employee on April 1, 1999. (Pl.'s 56.1 Stmt. ¶ 52.) As a Staff Accountant, Pinkney's duties included preparing reports of EMI financial data, coding and copying invoices, reviewing invoice reports, and communicating with EMI offices worldwide concerning their financial data. (Roche Aff. ¶ 4, Ex. A.) Although a new hire, Pinkney was given a $1,000 bonus in 1999 as a gesture of good faith. (Regan Aff. ¶ 3.)

When Pinkney became a full-time employee, there were two vacant exterior offices. (Pl.'s 56.1 Stmt. ¶ 59.) Puzio and Regan decided to give Pinkney an interior office (Pl.'s 56.1 Stmt. ¶ 62) and the exterior offices were later given to Fortunato Diana ("Diana"), a Senior Accountant who was a Certified Public Accountant (CPA), and to Joe Grant ("Grant"), a Financial Analyst who had a Masters in Business Administration (MBA) (Pl.'s 56.1 Stmt. ¶ 59; Roche Aff. ¶ 7). Microcontrol Administrator Gerard Boucher ("Boucher"), David Petruzziello (Diana's predecessor), and Zemnovich all had exterior officers and were not CPAs. (Pl.'s 56.1 Stmt. ¶ 60.)

Pinkney received Internet access several weeks after beginning as a full-time employee (Pl.'s Opp'n 3; Pinkney Dep. 204, Oct. 27, 2003) and only after she complained (Pl.'s 56.1 Stmt. ¶ 63). Diana and Grant received immediate Internet access. (Pl.'s 56.1 Stmt. ¶ 63.) Pinkney was the only employee who did not have a stereo system in her office. When she was offered a portable stereo, or "boombox," she retrieved the stereo system from her prior office at EMI Music (where she worked before joining CFS). (Pl.'s 56.1 Stmt. ¶ 31; Pinkney Dep. 150.)

EMI Music Publishing employees are eligible for "ticket buys" -- where the company purchases tickets for employees to upcoming concerts by EMI artists. Pinkney was not informed of "ticket buys" both when she was in and out of the office. (Pl.'s 56.1 Stmt. ¶ 26.) Puzio's Administrative Assistant, Kim Fracassi ("Fracassi"), told Pinkney that Puzio restricted ticket buys to those who were actually in the office. (Id.; Pinkney Dep. 39). However, when other employees were out of the office, they were able to participate in ticket buys if they left instructions and/or called in their requests. (Puzio Dep. 90, Mar. 23, 2005.) Puzio said that he never instructed Fracassi to deny requests made from outside the office. (Id.)

Puzio granted Diana and Zemnovich compensatory time off and granted none to Pinkney (Pl.'s 56.1 Stmt. ¶ 95) even though she frequently stayed late (Pl.'s 56.1 Stmt. ¶ 68, 95). Pinkney complained to Zemnovich and Puzio about the lack of compensation for her long hours, and they did not take any action. (Pl.'s 56.1 Stmt. ¶ 95.) Pinkney claims she felt ignored and isolated within CFS. (Pl.'s 56.1 Stmt. ¶ 72.) Pinkney also believes she was excluded from departmental lunches. (Pl.'s 56.1 Stmt. ¶ 73.)

One occasion, Boucher referred to Pinkney as "my nigger" (Pinkney Dep. 63) in the presence of Zemnovich and Diana (although Zemnovich denies that she was aware of the incident (Zemnovich Dep. 41)). Boucher then related an offensive story about his "very prejudice[d]" family who had a "big brawl" with a black waitress. (Pinkney Dep. 64.) Neither Diana nor Zemnovich took any action in response to Boucher's statements. (Pl.'s 56.1 Stmt. ¶ 101.)

Pinkney claims that Zemnovich harassed her on a near daily basis. According to Pinkney, Zemnovich would yell at her, unfairly criticize her work before it was completed, demean her by assigning her "menial, clerical and janitorial tasks," and give her incorrect information and instructions and then blame her when the work was faulty. (Pl.'s 56.1 Stmt. ¶ 65.) Zemnovich often referred to Pinkney as "grandma" in a condescending manner and ignored Pinkney's protests to the usage. (Pl.'s 56.1 Stmt. ¶ 104; Pinkney Dep. 69, 71.)

Zemnovich states that she was attempting to congratulate Pinkney on the birth of her grandson. (Zemnovich Dep. 46.) However, Pinkney's grandson was born in 1998, before Pinkney joined CFS (Pinkney Aff. ¶ 17), and was not a newborn when she worked with Zemnovich.

On Febrary 8, 2000, Pinkney met with Zemnovich to discuss Zemnovich's harassment and mistreatment of her. (Pl.'s Opp'n 7; Pl.'s 56.1 Stmt. ¶ 67.) Zemnovich states that they met at Puzio's suggestion so that Zemnovich could discuss problems with Pinkney's work. (Zemnovich Dep. 89-90.) Zemnovich recorded several deficiencies in Pinkney's performance (Defs.' 56.1 Stmt.89-90, 92-93): Pinkney was unable to generate off-quarter and quarterly reports for the parent company (Zemnovich Dep. 108-110); she failed to retain originals of balance sheets and profit and loss statements for reconciliation (Id. 106-108); she failed to accurately generate monthly inter-company reconciliation reports (Id. 110-112, 117); she labeled reports incorrectly, with the wrong year, month, or currency (Id. 114-115); she excessively used the telephone for personal calls or gossiped with the Chief Financial Officer's Administrative Assistant during work time (Id. 113-114, 120-121); she generated ledger reports for the wrong month (Id. 116-117); and she took time off without enough notice to arrange coverage (Id. 118-120). Pinkney states that she only used the telephone for non-urgent personal calls when there was "down time" at the office. (Pl.'s 56.1 Stmt. ¶¶ 9, 88.) Pinkney believes that Zemnovich did not like her and used these alleged performance problems as an excuse to criticize her because of her race and age. (Pl.'s 56.1 Stmt. 69.)

Pinkney requested and was granted a two-week unpaid leave of absence in March 2000 during CFS's busiest time. (Pinkney Dep. 101-102.) In April 2000, Zemnovich completed Pinkney's annual review, giving her an overall rating of 4-5 (on a scale of 1 to 5, with 5 being the lowest). (Le Roux Affirm. Ex. F.)

Pinkney complained several times to Regan about Zemnovich's harassment and discriminatory mistreatment but Regan took no action. (Pl.'s 56.1 Stmt. ¶ 74.) Pinkney sent an email on February 9, 2000 to the department complaining of the disrespect she felt in CFS, stating in relevant part:

In as much as some of the things you brought to my attention lacks merit, let me reiterate that any mistakes made on my behalf must always be brought to my attention, if not, I will assume there were none. Let me also reiterate the level of DISRESPECT I have experienced and continue[] to experience is appalling. (Pl.'s 56.1 Stmt. ¶ 70.) In response to her email, Regan ignored Pinkney and later told Pinkney to never send such an email again. (Pinkney Dep. 123.)

After the February 9, 2000 email, Defendants did not explain to CFS employees what was appropriate and acceptable workplace behavior. (Pl.'s 56.1 Stmt. ¶ 99.) Aside from receiving manuals when hired, neither Zemnovich nor any other EMI CFS personnel received training regarding EMI's anti-harassment and discrimination policy (Pl.'s Opp'n 8; Puzio Dep. 77-78), and management did not conduct such a training after Pinkney filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in July 2001.

On March 22, 2000, Pinkney and the rest of the CFS group received an email (forwarded by Puzio) from Anne Roche ("Roche"), Director of Human Resources, with the subject "April 1st Salary Increases." The email stated in relevant part:

Due to the fact that EMI [Music Publishing's] Budget will not be reviewed by EMI Group until April 4th, we will be unable to process the April 1st salary increases during the April 15th payroll. Increases will be reflected in the April 30th paychecks. Please pass this information to your staff and assure them that increases will be processed retroactively to April 1st. Tom Kelly or Joe Puzio will be forwarding salary increase spreadsheets to you shortly. Please DO NOT discuss salary increase amounts with your employees until you receive notification of approval from the Finance department. (Le Roux Affirm. Ex. E.)

On April 28, 2000, after learning that her co-workers received raises, Pinkney sent an email to Joe Puzio asking why she did not receive a raise. (Pl.'s 56.1 Stmt. ¶¶ 76-77; Le Roux Affirm., Ex. E.) On May 1, 2000, Pinkney met with Regan, Zemnovich, and Roche who read to her from a document that detailed criticisms of her work performance and reasons why she did not receive a raise (Pl.'s 56.1 Stmt. ¶ 77.) After it was read to her, Pinkney was asked to sign it, but she refused because she disagreed with the entirety of its contents. (Pl.'s 56.1 Stmt. ¶¶ 79-80.) Defendants state that Pinkney was told that they would meet again to assess whether she had improved her performance. (Roche Aff. ¶ 12; Regan Aff. ¶ 11.)

In order to make extra money, since she did not receive a raise in 2000, Pinkney took a baby-sitting position for a period of time. Pinkney asked to leave by 6:00 pm to accommodate that job. (Regan Aff. ¶ 9.) Pinkney was unable to continue the baby-sitting job due to her long hours at EMI. (Pl.'s Opp'n 9.)

On May 25, 2000, Zemnovich emailed Pinkney asking her to "tidy up the workspace outside" Pinkney's office. (Le Roux Affirm. Ex. H.) In response to Zemnovich's email, Pinkney sent an email to Roche on May 26, 2000, asking if Pinkney was "promoted to housekeeping." (Le Roux Affirm. Ex. H.) Pinkney complained to Roche on at least two occasions about Zemnovich's harassment; including that Zemnovich asked her to do degrading "maid service work" in cleaning up the area outside her office (Pl.'s 56.1 Stmt. ¶ 90), delivering work to other floors, and do photocopying and filing (Pinkney Dep. 61). Pinkney states that Roche did nothing to address these complaints. (Pinkney Dep. 138-139.) In July 2000, Zemnovich recommended to Puzio and Regan that Pinkney not receive a bonus because of her continued poor work performance. (Regan Aff. ¶ 12.)

Others in the office also had a negative opinion of Zemnovich. Diana, a Senior Accountant and his predecessor Petruzziello, both white men, and Pinkney's successor, Zaheda Ansari ("Ansari"), a South Asian woman, all complained about Zemnovich's poor treatment of them. (Pl.'s 56.1 Stmt. ¶ 102; Puzio Dep. 105-106.) Ansari complained about staying late unnecessarily and Zemnovich's management style. (Pl.'s 56.1 Stmt. ¶ 102; Puzio Dep. 105-106, 116.)

Ultimately, in July 2000, Pinkney inquired about transferring to another EMI department. (Roche Aff. ¶ 13; Pl.'s 56.1 Stmt. ¶ 107.) In her meeting with Roche, where they discussed available EMI positions, Pinkney stated she would not consider lower salaried positions and did not want to work with other departments that required contact with CFS. (Roche Aff. ¶ 13.) Roche claims that, given Pinkney's restrictions, there were no available positions to which she could be transferred. (Roche Aff. ¶ 14.) Pinkney states that she was aware of at least one other EMI position that was available outside the department, but Pinkney claims that Roche did not assist her and the position was ultimately filled by a white employee. (Pl.'s 56.1 Stmt. ¶ 107.) According to Pinkney, Roche told her that she was not suited to any other position at EMI due to her age and that EMI preferred younger people for certain positions. (Id. ¶ 108.) Roche denied those allegations in her supplemental affidavit. (Roche Suppl. Aff. ¶ 3.)

In late August 2000, Puzio and Roche met with Pinkney and informed her of their decision to terminate her employment. (Pl.'s 56.1 Stmt. ¶ 112.)

B. Procedural Background

On July 2, 2001, Plaintiff filed race and age discrimination claims with the EEOC. After the EEOC determined it was unable to resolve Plaintiff's claims, it issued a 90-day right to sue letter on December 11, 2001. Thereafter, Plaintiff filed the instant lawsuit on ...


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