The opinion of the court was delivered by: Lindsay, Magistrate Judge
Before the court is a motion for summary judgment by the defendants Tribune Company and Newsday, Inc., (together, "Defendants") pursuant to Fed. R. Civ. P. 56. The parties have consented to the undersigned exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636 (c). For the reasons set forth below, the defendants' motion for summary judgment is granted in part and denied in part.
Plaintiff, who was born in 1956, began her employment with Newsday (a subsidiary of the Tribune Company) in 1984 as an Assistant Editor in its Melville, New York office. (Def. R. 56.1 Statement at ¶¶ 3-4; Suppl. Compl. at ¶ 5; Pl. R. 56.1 Statement at ¶¶ 2-3).*fn1 According to the plaintiff, shortly after commencing her employment with Newsday in 1984, she was sexually harassed by a supervisor and she immediately reported that harassment internally to Newsday. (Suppl. Compl. at ¶¶ 17-18). Plaintiff continued to work as an Assistant Editor until she resigned on May 9, 2005. (Id. at ¶¶ 12-13). Between 1984 and March 17, 2002, the plaintiff was assigned to work on Newsday's Night News Desk. (Def. R. 56.1 Statement at ¶ 22; Suppl. Compl. at ¶ 12). During that time, her assigned work schedule was Saturday through Wednesday from 4:30 p.m. to 12:00 a.m. (Def. R. 56.1 Statement at ¶ 22). In addition to her work as an Assistant Editor, plaintiff often wrote articles on a freelance basis for publication in Newsday. (Id. at ¶ 15).
In January 2002, Newsday offered its senior employees a voluntary early retirement program, referred to as a "buyout. " (Id. at ¶ 17). The buyout, which expired February 28, 2002, was offered to the plaintiff. (Suppl. Compl. at ¶ 25). Plaintiff elected not to take the buyout choosing instead to continue her employment at Newsday. (Def. R. 56.1 Statement at ¶ 18). Her problems at Newsday began shortly after she made that choice.
Immediately following the expiration of the buyout, plaintiff was notified that she was to be transferred to the Features Desk and that her work schedule would be changed. (Id. at ¶ 23). The Features section of the newspaper is dedicated to reporting on lifestyles, arts and entertainment. (Id. at ¶ 20). Plaintiff objected to the transfer both because she considered features to be a less prestigious assignment and because she would be required to work a "daytime" schedule of Sundays from 9:30 a.m. to 4:00 p.m. and Monday through Thursday from 12:30 p.m. to 8:00 p.m. (Id. at ¶29). She was nonetheless assigned to the Features Desk until May 2005 and reported to Jack Millrod, Newsday's Executive News Editor. (Id. at ¶ 23).
In May 2002, plaintiff was contacted by Stephanie Abrutyn, Senior Counsel at the Tribune, regarding one of plaintiff's freelance articles that had been published in Newsday. (Id. at ¶ 42). The article had been posted on an outside website without Newsday's permission. (Id. at ¶ 43). Abrutyn sent a letter to the website owner demanding that they stop posting plaintiff's article as it was the intellectual property of Newsday. (Id. at ¶ 44). Abrutyn was informed that the website had received plaintiff's permission to post the article. (Id.). Abrutyn then contacted plaintiff advising her that Newsday owned the copyright to articles published in Newsday and that plaintiff could not grant a third-party permission to publish those articles notwithstanding her authorship. (Id. at ¶ 45). Plaintiff, who had been submitting freelance articles to Newsday for years, informed Abrutyn that this represented a change in Newsday's policy and that previously she had been permitted to authorize the publication of her own articles as long as Newsday was credited as the original publisher. (Id.¶ 45; Pl. R. 56.1 Statement at ¶37). Abrutyn informed plaintiff that Newsday would no longer accept her freelance articles unless she signed an agreement acknowledging Newsday's sole ownership rights. (Def. R. 56.1 Statement at ¶¶ 47, 50). Plaintiff asserts that she alone was required to sign such an agreement. (Pl. R. 56.1 Statement at ¶40). Although she signed the agreement, she stopped submitting freelance articles to Newsday. (Def. R. 56.1 Statement at ¶ 50).
C. Plaintiff's Repetitive Stress Injury
In December 2002, plaintiff's schedule was again changed. (Id. at ¶ 32). Her schedule was moved from Sunday to Thursday to Monday through Friday. (Id.). Plaintiff claims that Millrod chose to change plaintiff's schedule over a male colleague as a reward for the latter's "personal loyalty" and participation in the company's co-ed softball team. (Pl. R. 56.1 Statement at ¶¶ 28, 31). Plaintiff complained to Tony Marro, then-Newsday's Editor, about the schedule change charging that Millrod showed "favoritism" to persons loyal to him. (Def. R. 56.1 Statement at ¶ 36). Coincidentally, at this same time, plaintiff claimed to have suffered a recurrence of a repetitive stress injury (RSI), a condition she alleged resulted from her employment with Newsday. (Id. at ¶ 67). According to plaintiff, her RSI generated pain in her arms and shoulders making tasks such as carrying a briefcase, typing on a keyboard and sleeping on the affected side of her body more difficult. (Ruhling Dep. at 149-51). In December, 2002 and January 2003, explaining that her RSI prevented her from doing the keystrokes, plaintiff did not comply with several requests that she edit articles. (Def. R. 56.1 Statement at ¶ 69; Pl. R. 56.1 Statement at ¶ 54). Notwithstanding this explanation, plaintiff was issued a written reprimand for failing to complete these tasks. (Def. R. 56.1 Statement at ¶ 70). On January 30, 2003, after being reprimanded, plaintiff sought treatment for her RSI. (Id. at ¶ 73). Her doctor cleared her to continue working, but recommended that she take regular work breaks and undergo a course of physical therapy two times per week for four weeks. (Id. at ¶ 73, Ruhling Dep. Ex. 7).
In February 2003, Ruhling asked Newsday to temporarily change her work schedule back to include Sundays so that she could have a weekday off to go for physical therapy. (Def. R. 56.1 Statement at ¶ 74). As an option, plaintiff proposed that she be permitted to report to work one-hour later two days per week for one month so she could seek therapy before work. Newsday declined her request and instead offered plaintiff the opportunity to apply for leave under the Family and Medical Leave Act ("FMLA"). (Id. at ¶¶ 75- 76). Alternatively, plaintiff was told she could work a split-shift, which would allow her to leave work mid-shift to attend physical therapy. (Id. at ¶ 75). Plaintiff refused the FMLA option surmising that the leave was unpaid and also rejected the split-shift option because it involved added travel back and forth to work. (Id. at ¶ 80; Pl. R. 56.1 Statement at 62; Ruhling Dep. at 132). In April 2005, plaintiff provided Newsday with documentation from her physician indicating that she should limit her use of the computer keyboard and mouse to a maximum of four hours per day. (Def. R. 56.1 Statement at ¶ 81). Newsday permitted her to reduce her computer work accordingly. (Id.).
On January 27, 2003, following an anti-harassment training session, the plaintiff sent Newsdays' then-CEO, John Madigan, a memo indicating that pursuant to this training she felt compelled to disclose information which she believed was the "honorable thing to do" and which "reflect[ed] upon the image of corporate headquarters." (Defs. 56.1 Statement at ¶¶ 54, 56; Ruhling Dep. Ex. 32). In response to that memo, the plaintiff was contacted by telephone on February 4, 2003 by Katie Lawler, then-Vice President of Human Resources for Tribune Publishing, who explained that the plaintiff's concerns had been referred to Lawler for investigation. (Defs. 56.1 Statement at ¶¶ 58-59). Ruhling refused to discuss her complaint with Lawler insisting instead that she speak with the company CEO. (Id. at ¶ 62). Although plaintiff was informed that she must first provide Lawler the specifics of her complaint before a decision would be made on her request to speak with the CEO, she steadfastly refused to discuss the matter with Lawler. (Id. at ¶¶ 62, 65; Ruhling Dep. at 335-36, 342-51). According to the plaintiff, she did not discuss her complaint with Lawler because she was concerned that she would be subject to further retaliation and harassment. (Pl. R. 56.1 Statement at ¶ 51). Lawler contacted the plaintiff again on April 9, 2003. (Def. R. 56.1 Statement at ¶ 62). Plaintiff persisted in her demand that she speak directly with Newsdays' CEO, not Lawler. (Id.).
D. Plaintiff's Suspensions and Subsequent Resignation
Apparently, not unlike other Newsday employees, plaintiff maintained a personal cell phone while at work. (Pl. R. 56.1 Statement at ¶ 65). According to Millrod, plaintiff's cell phone was particularly disruptive to her co-employees and he instructed her to silence it at work. (Def. 56.1 Statement at ¶¶ 83-86). On February 5, 2003, when plaintiff did not comply, Millrod formally reprimanded her and suspended her for one day without pay for insubordination. (Id. at ¶ 87). Plaintiff objected to the suspension both because she was singled out for disciplinary action and because she claims to have complied with Millrod's direction which she believed was simply that she keep her cell phone on her person while at work. (Pl. R. 56.1 Statement at ¶ 69). Coincidentally, this suspension occurred the day after plaintiff's first conversation with Lawler.
On April 29, 2003 plaintiff was suspended for a second time without pay for taking a personal day off without prior approval from her supervisor. (Def. R. 56.1 Statement at ¶ 90). According to plaintiff, during her nearly twenty-year tenure at Newsday, she had never been required to obtain supervisory approval prior to taking a personal day. (Pl. R. 56.1 Statement at ¶ 70). This second suspension took place twenty days after plaintiff's second conversation with Lawler. (Def. R. 56.1 Statement at ¶ 62).
In January 2005, Debby Krenek became the Managing Editor in charge of the News Desks at Newsday. (Id. at ¶ 100). Shortly thereafter, Krenek met with the plaintiff to discuss plaintiff's interest in again working at the news desk. (Id. at ¶ 101). In April 2005, an opening became available in the newsroom on the Fold Desk. (Id. at ¶ 104). Given plaintiff's expressed interest in returning to the news desk, Kreneck transferred plaintiff to the Fold Desk effective May 9, 2005. (Id. at ¶ 105). The Fold Desk position required that plaintiff report to work one hour earlier than her current work schedule. (Id. at ¶ 108). Plaintiff asked that she not be transferred to this position because she could not report to work by 11:00 a.m. given her personal responsibilities. (Id. at ¶ 109). Krenek refused to rescind the transfer. (Id.). On May 9, 2005, the day plaintiff was scheduled to begin work on the Fold Desk, she resigned from Newsday. (Id. at ¶ 111).
On September 25, 2003, plaintiff filed a complaint with the New York State Division of Human Rights, which was also filed with the Equal Employment Opportunity Commission. (Id. at 97). The EEOC issue plaintiff a Notice of Right to Sue dated April 19, 2004. (Id. at 98). Plaintiff filed the instant complaint on June 14, 2004 and, on June 6, 2006, amended her complaint to include a claim for retaliation as a result of her alleged constructive discharge on May 9, 2005.
A. Summary Judgment Standards
"'Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law.'" Jamaica Ash & Rubbish Removal Co. v. Ferguson, 85 F. Supp. 2d 174, 180 (E.D.N.Y. 2000) (quoting In re Blackwood Assocs., L.P.153 F.3d 61, 67 (2d Cir. 1998) and citing Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. SeeCastle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. SeeHolt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). The applicable substantive law determines which facts are critical and which are irrelevant. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
The trial court's responsibility is "'limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.'" B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). When, however, there is nothing more than a "metaphysical doubt as to the material facts," summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Rather, there must exist 'specific facts showing that there is a genuine issue for trial' in order to deny summary judgment as to a particular claim." Jamaica Ash & Rubbish, 85 F. Supp. 2d at 180 (quoting Celotex,477 U.S. at 322). A moving party may obtain summary judgment by demonstrating that little or no evidence may be found in support of the non-moving party's case. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Marks v. New York Univ., 61 F. Supp. 2d 81, 88 (S.D.N.Y. 1999).
"[T]he summary judgment standard applies with equal force to discrimination cases as it does to other cases." Faruq v. Wal-Mart Stores, Inc., 2006 U.S. Dist. LEXIS 4676, *12 W.D.N.Y. Jan. 23, 2006). "The salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Ashton v. Pall Corp., 32 F. Supp. 2d 82, 87 (E.D.N.Y. 1999) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (additional quotation marks omitted)). Thus, "[t]hough caution must be exercised in granting summary judgment where motive is genuinely in issue . . . [it] remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (internal citations omitted). With these standards in mind, the court addresses the plaintiff's claims.
B. Liability of Defendant Tribune Company
As a threshold matter, the court addresses the defendants' argument that there is no basis for imposing liability on the Tribune Company as the parent company of the plaintiff's employer, Newsday, Inc. In support of this argument, the defendants have provided the declaration of Mary Ann Skinner, Newsday's Assistant Managing Editor for Editorial Administration, stating that Newsday's daily "operations and management are not interrelated with or controlled by Tribune" nor does the Tribune "participate in the day-to-day management of Newsday's business affairs, operations or employees." (Skinner Decl. at ¶ 5). Further, she states that the "Tribune does not make personnel decisions regarding Newsday's employees . . . [and] did not make any decisions with regard to plaintiff Nancy Ruhling's employment at Newsday." (Id. at ¶¶ 5-6). In response, the plaintiff asserts that the "single employer doctrine" applies in this case because there is "'sufficient indicia of an interrelationship between the immediate corporate employer [Newsday] and the affiliated corporation [Tribune]'." (Plaintiff's Mem. at 13) (quoting Schade v. Coty, Inc., No. 00 Civ. 1568 (JGK), 2001 WL 709258, at *6 (S.D.N.Y. June 25, 2001)). For the reasons that follow, the undisputed facts do not support a finding that the Tribune and Newsday are a single employer. Accordingly, the claims against the Tribune Company are dismissed.
The Second Circuit has made clear that "the law only treats the employees of a corporate entity as the employees of a related entity under extraordinary circumstances." Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996). In determining whether such circumstances are present, courts apply a flexible, four-part test that examines whether the related entities have: "(1) interrelated operations, (2) common management; (3) centralized control of labor relations, and (4) common ownership." Id.; Schade, 2001 WL 709258, at *6. Satisfaction of all four factors is not required, nor is any one factor determinative. Murray, 74 F.3d at 404. Rather, "'[t]he critical question is what entity made the final decisions regarding employment matters related to the person claiming discrimination.'" Id. at 405, quoting U.S. v. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993).
In determining whether there is a "sufficient interrelation of operation" between the related entities, courts have considered factors such as "whether the parent was involved directly in the subsidiary's daily business decisions; whether the two entities shared employees, services, records, or equipment; and whether the entities commingled assets or finances . . . ." Ennis v. TYCO, Int'l Ltd., No. Civ 02-9070 (TPG), 2004 WL 548796, at *4 (S.D.N.Y. March 18, 2004) (citations omitted); see also Schade, 2001 WL 709258, at *7. In addition, the requisite degree of control over labor relations has been established when the parent reviewed applications for employment at the subsidiary, approved personnel status reports, and approved all major employment decisions for the subsidiary. See, e.g., Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995). The remaining factors, the degrees of common management and common ownership, "are considered less important, owing to the fact that 'they represent ordinary aspects of the parent-subsidiary relationship.'" Ennis, 2004 WL 548796, at *5 (quoting Meng v. Ipanema Shoe Corp., 73 F. Supp.2d 392, 403 (S.D.N.Y. 1999). With these standards in mind the court considers the evidence in this case.
Here, the plaintiff relies on the following undisputed facts in support of her contention that the Tribune and Newsday should be treated as a single employer: (1) the Tribune's Senior Counsel advised Newsday to stop accepting plaintiff's freelance articles for publication in May 2002; (2) Newsday employees including the plaintiff were shown a videotape featuring the Tribune's then-CEO John Madigan as part of its harassment prevention training in January 2003 wherein he advised employees with concerns relating to harassment to contact, among others, the Vice President of Human Resources at the Tribune's corporate office; (3) Newsday also distributed materials at the January 2003 training indicating that concerns over the anti-harassment policy could be brought to the attention of the Tribune's Corporate Human Resources; (4) when plaintiff sought to impart information concerning the harassment policy that she believed "reflected upon the image of corporate headquarters", the Tribune's Vice President of Human Resources responded and explained that Ruhling's concerns had been referred to her for investigation. These facts, however, do not indicate the level of day to day control over employment matters required by the single employment doctrine. There is simply no evidence that the Tribune made the final decisions regarding employment matters as they related to plaintiff. Thus, in the absence of evidence of the interrelation of operations or centralized control over labor relations between the Tribune and Newsday, there is no basis to find that they are a single employer. Accordingly, the claims against the Tribune are dismissed.
C. Ruhling's Claims of Age and Gender Discrimination
Ruhling claims that she was discriminated against on the basis of her age in violation of the Age Discrimination in Employment Act of 1967 ("the ADEA"), 29 U.S.C. §§ 631 et seq. and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000-e, et seq. Her claims of age and gender discrimination are also brought pursuant to the New York State Human Rights Law (the "NYSHRL"), N.Y. Executive Law § 296 (McKinney's 2005).
Title VII prohibits an employer from discriminating against an individual "with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA, which protects individuals over age forty from employment discrimination on account of their age, provides that it is "unlawful for an employer ... to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1); McCarthy v. New York City Technical College of the City of New York, 202 F.3d 161, 165 (2d Cir. 2000). Similarly, the NYSHRL prohibits discrimination against an employee in the "terms, conditions or privileges of employment" because of the individual's sex and age. N.Y. Exec. Law § 296(a) (McKinney's 2005).
To establish a prima facie case of gender or age discrimination, Ruhling must demonstrate that: (1) she is a member of a protected group; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the circumstances surrounding the action permit an inference of discrimination. See Terry v. Ashcroft,336 F.3d 128, 137-38 (2d Cir. 2003); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (recognizing that framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) for Title VII claims of discrimination also applies to ADEA claims); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Lightfoot v. Union Carbide, 110 F.3d 898, 913 (2d Cir.1997) (elements of an age discrimination claim "are essentially the same under the ADEA and the NYSHRL"); David v. Comtech PST Corp., No. 03 CV 6480(JO), 2006 WL 2713936, at * 7 (E.D.N.Y. Sept. 22, 2006) ("The New York Human Rights Law affords similar protection as both Title VII and the ADEA, and is governed by the same legal standards as claims brought pursuant its federal law counterparts."). Although the burden of proving the prima facie case is de minimus, the claim fails if the plaintiff cannot make out a prima facie case of discrimination. Woodman, 411 F.3d at 76.
Once the plaintiff has established the prima facie case, the burden of proof then shifts to the defendant to offer a non-discriminatory reason for the employment action at issue. See Terry, 336 F.3d at 138, citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Once this non-discriminatory reason is established, the presumption of discrimination arising with the establishment of the prima facie case drops from the matter. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). Thereafter, "to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment ...