The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. Now before the Court is defendant's motion [#27] for summary judgment. For the reasons that follow, the application is granted and this action is dismissed.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to plaintiff Mary Guerrero ("plaintiff"). Plaintiff was employed at defendant Lowe's Home Centers, Inc.'s ("defendant") retail store in Webster, New York, for approximately three months between November 2003 and February 2004. Plaintiff's job title was "Installed Sales Coordinator." Plaintiff shared an office with two individuals, namely, her immediate supervisor Daren Arrington ("Arrington"), whose title was "Installed Sales Manager," and Tina Nowak ("Nowak"), who was the store's Sales Manager as well as Arrington's immediate supervisor. Susan Holtz ("Holtz") was the store's Human Resources Manager and Scott Lee ("Lee") was the Store Manager. Plaintiff was aware that defendant had an anti-discrimination policy in place at all relevant times, and she also understood that, pursuant to that policy, she had "an obligation" to report instances of harassment. (Pl. Dep. 80).
Plaintiff contends that Arrington made several offensive remarks to her during the brief period of her employment with the defendant. For example, on one occasion Arrington asked plaintiff if she was Mexican, because of her surname, to which she responded that she was not Mexican, but that her husband was. Arrington replied, "I lived in Texas. There was a lot of them there." (Pl. Dep. 134). Plaintiff asked Arrington "what [his comment] was supposed to mean," and he responded "just that a lot of Mexicans live in Texas." (Id. at 138).*fn1 Plaintiff contends that Arrington would not have made this comment if she were a man. Plaintiff also believes that it was inappropriate that Arrington would notify her whenever her husband was in the store shopping. (Id. at 134).
Plaintiff further complains that on one occasion Arrington inappropriately asked her to bring him coffee. Plaintiff states that Arrington made this request of her because she was in the habit of bringing coffee to work for herself that she had purchased at McDonald's. (Pl. Dep. 139). Plaintiff responded by saying, "You're going to make more money than I do. If you're going to give me the money, I will pick you up a cup of coffee every day." (Id.). Subsequently, Arrington never gave plaintiff money for coffee and she never brought him coffee. (Id.).
On another occasion, Arrington asked plaintiff to give him half of a submarine sandwich that she was eating, and when she refused, he told her that she "was being a fucking bitch." (Pl. Dep. 139). Plaintiff claims that she later discussed the incident with both Holtz and Nowak. Plaintiff also claims to have heard from a co-worker that Arrington would "badmouth" her while speaking to other employees. (Pl. Dep. 145-46). In addition, plaintiff contends that Arrington lied to try to get her into trouble, such as, by making false entries about her job performance in the store's logbook. (Pl. Dep. 142).
According to plaintiff, Arrington's final offensive comment to her occurred on January 15, 2004. Arrington was in a part of the store located some distance away from the Installed Sales Office, and had told plaintiff to bring a file to him. When plaintiff brought the file to Arrington, he told her to return to the office and bring him another file as well. When plaintiff asked Arrington why he hadn't called her on her walkie talkie and notified her that he needed the second file, in order to save her a trip, he responded by saying, "Don't you think you need to lose weight anyhow?" (Pl. Dep. 129). Plaintiff responded by telling Arrington, "Screw you!" (Id.). As to Arringtons's comment, plaintiff stated, "I think he thought it was a joke, that it was, you know, Darren was arrogant. He just -- he didn't care what he said." (Id. at 130). Plaintiff complained to Holtz and Nowak about Arrington's comment, and Holtz obtained statements confirming plaintiff's version of events from two male co-workers who had witnessed Arrington's comment. Plaintiff asked, though, that Arrington not be written up for sexual harassment.*fn2 Nonetheless, defendant issued a written reprimand to Arrington concerning the incident, which stated, in relevant part: "Darren is to treat fellow associates with the utmost respect and dignity. Any further violations will result in further corrective action up to and including termination." (Def. Appx. [#28-5] Ex. 9). The written reprimand was issued the same day as Arrington's comment and was signed by Nowak, Holtz, and Lee. (Id.)
More generally, plaintiff contends that Arrington was rude to both males and females at the store and that "everyone complained about Daren." (Pl. Dep. 112, 118-19). Plaintiff states that Arrington "had the attitude that he was the only one that could do anything at Lowe's and do the job." (Id. at 119). For example, plaintiff states that Arrington would criticize two of her male co-workers by "constantly putting 'em down about them not doing their job right." (Id.). Plaintiff states that on one occasion Arrington tried "to make [an employee named] Mike look like he was stupid, [like] he didn't know what he was doing." (Id. at 124). In fact, when plaintiff was asked if she had ever heard male employees complain about Arrington, she responded: "There has been so many, I can't even recall them right now." (Id. at 125). In that regard, plaintiff alleges that Arrington "had no people skills," "didn't have customer service skills," "didn't know how to talk to people," and "just . . . wasn't a people person." (Id. at 123). Plaintiff agreed, in fact, that Arrington "was a big jerk to everybody." (Id. at 148). On the other hand, when asked if she had ever called a male co-worker a "bastard," plaintiff responded that she "might have said something about Daren [Arrington] being one," but was not sure. (Pl. Dep. 109).
Plaintiff states that the problems between her and Arrington culminated in an argument between them over whether or not she should photocopy a sales manual that was several inches thick. Plaintiff states that Arrington told her that she needed to copy the manual immediately, because it had been requested by Lee. (Pl. Dep. 148). Plaintiff objected to photocopying the manual because it was large, and because Nowak had told her that the store could order another copy of the manual rather than having it copied. (Pl. Dep. 151). In any event, plaintiff refused to copy the manual, even though Arrington, who was her "boss" and who had the power to discipline her, had repeatedly requested, over a period of "three, four days," that she do so. (Pl. Dep. 64-65, 148-151). Plaintiff admits that during the ensuing argument, she was "yelling" at Arrington, and he was yelling at her. (Id. at 150-151).
Lee overheard the argument and entered the office. According to plaintiff, Lee stated that he had not requested a copy of the sales manual, and Arrington responded that he believed that Lee should have one anyway. (Id. at 149-150). Lee subsequently called plaintiff and Arrington into a meeting with Holtz in the Human Resources Office, where he stated that it appeared that plaintiff and Arrington could not work together. (Pl. Dep. 150). Lee further stated that he "could not believe that Darren had lied," even though, according to plaintiff, he had already said that he never asked Arrington for a copy of the sales manual. (Pl. Dep. 150, 152). Lee then told plaintiff that "maybe [she] should go on to another position" in the store. (Id.). Specifically, Lee proposed moving plaintiff to a new position as a sales associate in the Hardware department. (Id. at 152). At that time, plaintiff was agreeable to the change because she was tired of working with Arrington. (Id.). More specifically, plaintiff stated that she had "had enough" of Arrington, and she agreed that she had "no problem" moving to a different position:
Q. And at that point the decision was reached to have you go to another department?
Q. And how did you feel about that at the time?
A. At the time I didn't want to -- I had enough of Daren. I think Daren had enough. And they had -- then he ...