The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Plaintiff Matricia Moore ("Moore") brings this action for employment discrimination, libel, and defamation against Defendants Consolidated Edison Company ("Con Ed"), her former employer, and John Morrill ("Morrill"), her former supervisor. Moore brings her discrimination claims against both Defendants under 42 U.S.C. § 1981, New York State Executive Law § 296 and New York City Administrative Code § 8-502, and additional claims against Con Ed under Title VII of the 1964 and 1991 Civil Rights Acts, 42 U.S.C. § 2000e, et sec. ("Title VII"). Moore alleges that she was subjected to differential treatment on the basis of race and sex, a hostile workplace environment, and retaliation for complaining about these conditions. Moore also alleges violations of the sick leave provisions of the Family and Medical Leave Act, 29 U.S.C. § 2601 et sec. ("FMLA"), including retaliation for taking such leave. Defendants now move for summary judgment on all claims.*fn1 The motion is granted in part and denied in part.
Moore, an African-American woman, was employed by Con Ed between 1989 and 2004. Moore's claims arise from events occurring during her tenure as a Real Estate Representative in the Con Ed Real Estate department, from on or about October 1996 to January 30, 2004.*fn3
Sexual and Racial Harassment by Co-Worker
Moore alleges that Louis Carnevale ("Carnevale"), a Senior Real Estate Representative, made racially and sexually offensive statements and engaged in other harassing conduct from on or about November 1997 up to on or about November 2000. These statements and conduct allegedly included regularly asking Moore if she wanted sex, referring to his penis size and sexual prowess, staring at her body while she worked, making unwelcome efforts to touch Moore, and generally making sexually suggestive comments to her. He also regularly squeezed between Moore and Jeanette Grant ("Grant"), an African-American female clerk in the department, and said, "Let's do an oreo cookie," or some variation of that remark. Fields Dec. Exhibit K, 134-35. Moore recalled one particular incident in which Carnevale stroked Moore's arms and, after she pushed him away, said to her and Grant that "back in the days the two of you would be having my babies." Id. at 130-31. Carnevale allegedly harassed Moore in this fashion "continually" and attempted to touch her "weekly," amounting to "countless" incidents during the entire three year period. Id. at 132-35, 746-48.*fn4
Moore complained about Carnevale's conduct to her supervisor Domenick Lorenzon ("Lorenzon"), and two Directors of the Real Estate department: Robert Mele ("Mele"), Director until December 1, 1997, and his successor Robert Flock ("Flock"). It is not clear precisely how detailed those complaints were in describing Carnevale's conduct, though Moore admitted that she never mentioned that Carnevale touched her.*fn5
In any event, both Flock and Lorenzon allegedly witnessed "oreo cookie" incidents personally, Lorenzon apparently more than once. Moore did not contact Con Ed's Equal Employment Opportunity Affairs office ("EEOA") or any EEOA official regarding Carnevale, and no disciplinary or remedial action was taken by Con Ed at any time.
Exclusionary Treatment by Morrill
Moore alleges that between 2000 and 2004 Morrill excluded her from work related meetings and denied her necessary feedback and guidance on her assigned tasks. She further alleges that the white males in the department were included in meetings and other related professional development opportunities that were denied to her. Defendants dispute Moore's general allegations, and also present evidence that any meetings or instructional opportunities denied to Moore were unrelated to her actual job responsibilities. It is undisputed that the white males in the Real Estate department were higher-ranking Senior Real Estate Representatives, and had different and greater responsibilities than Moore.
Internal Complaints of Discrimination
In addition to her complaints regarding Carnevale, Moore was persistent in filing repeated internal complaints concerning discrimination in the Real Estate department. On September 22, 2000, Moore wrote a letter to Eugene McGrath ("McGrath"), Con Ed's Chairman, alleging that she was facing a hostile work environment, and adding an allegation that Flock was not promptly reimbursing her for college courses taken while she was absent for health reasons.*fn6 Moore refused to cooperate with the ensuing EEOA investigation. On April 6, 2001, Moore sent another email to McGrath complaining that a February 21, 2001 assignment to clean and furnish a corporate apartment with Senior Real Estate Representative Edmund Corini ("Corini"), a white male, had constituted sex discrimination. Moore alleges that she was ordered to perform this assignment, as well as particular tasks such as ironing that reflected gender stereotypes. Defendants allege that Moore volunteered for the task, that Corini assisted her in all aspects of the assignment, and that she did not complain about the assignment at the time. The ensuing EEOA investigation, with which Moore again refused to cooperate, found no discrimination.
Starting in or about August 2001 and continuing through October 11, 2001, Moorecommunicated on six separate occasions -- twice a month for three months -- with various Con Ed officers, including Richard Cowie, Director of Human Resources, Lilliana Gonzalez ("Gonzalez"), Director of EEOA, and McGrath, for the purpose of complaining that Morrill was discriminating and retaliating against her. In the final communication, an email sent on October 11, she accused Morrill of lying, "terroristic tactics" and discrimination against female employees under his supervision. Fields Dec. Exhibit ZZ. EEOA subsequently investigated and determined that Moore's complaints were unfounded.
Performance Reviews and Salary Treatment
In March 1998, Moore received an annual performance review noting a variety of areas in which she needed to improve while stating she had potential to be a productive member of the department. She subsequently received a salary increase she believed was "minimal." Fields Dec. Exhibit K, 728. On January 8, 1999, Moore received a poor annual performance review, and was subsequently denied a salary increase. Flock also warned her that failure to improve could result in termination. In March of 2000, Moore received a much-improved performance review and received another "minimal" salary increase. Id.
On July 30 2001, Moore received a negative performance review, the first prepared by Morrill, and was denied a salary increase.On February 27, 2002, Moore discovered a draft of her annual performance review, prepared by Morrill, on an office printer. The draft summary of her performance stated that her performance was poor, that her behavior was argumentative and erratic, and that "the department will never be able to function as an effective team under these conditions." Mitchell Cert. Exhibit D. One of the three paragraphs in the performance summary read:
Matricia filed a harassment and discrimination claim with EEO in the fall of 2001. EEO investigated that claim and the claim was determined to be unfounded. The claim caused significant morale damage to this department.
Id. Morrill also wrote in the review's "Initiative" section that, "Her primary focus appears to be perpetuating her claims of harassment and discrimination as evidenced by the many emails she distributes to that effect." Id. This statement was accompanied by another reference to Moore's October 2001 EEOA complaint.
Moore complained to Rosemary Stewart, the Manager of Performance Management, and in response Stewart assisted Morrill in revising the performance review to omit reference to Moore's complaints. The new report continued to rank her performance as "below an acceptable level" and Moore was again denied a salary increase.On March 24, 2003, Moore's performance review was negative, summed up by the statement that "Although Matricia has made some improvement in her cooperation over the past year, overall her performance continues to be below an acceptable level for her position." Grodnitzky Dec. Exhibit F. She was once again denied a salary increase.
On October 24, 2003, Moore received an interim performance review and Performance Improvement Notice ("PIN") warning that she would be terminated if her performance did not improve. Following the delivery of the PIN, Morrill and Moore met weekly to review her progress in meeting the PIN requirements. Defendants allege Morrill worked regularly with Moore to help her meet and understand the PIN requirements. Moore alleges Morrill sabotaged her performance in a variety of ways, and that the PIN requirements were set by Morrill to ensure her failure. The deadline for completion of the specific improvements contained in the PIN was 30 days, but Morrill extended the deadline. On November 23, Moore complained to EEOA that she was being set up to fail her PIN. In January 2004, Moore asked Morrill to approve her participation in a mentoring program, and Morrill refused. Moore filed a complaint with EEOA on January 23, 2004 alleging that this refusal was retaliatory. Defendants assert that Human Resources guidelines reserved the program for high performers. On January 30, 2004, Con Ed Treasurer Robert Stelben, Morrill and two Human Resources officers met to discuss Moore's performance and agreed to terminate her.
II. Relevant Procedural History
On September 29, 2000, Moore filed the initial Complaint in this action against Con Ed, alleging violations of FMLA, § 1981, and New York State Executive Law § 296. On October 3, 2002, Moore was granted leave to file an amended complaint. On December 11, 2002, she filed a charge against Con Ed for race and sex discrimination and retaliation with the United States Equal Employment Opportunity Commission (EEOC), and was issued a right-to-sue letter on April 15, 2003. In the interim, on February 26, 2003, Moore filed a complaint against Morrill alleging violations of, inter alia, § 1981, New York State Executive Law § 296, and New York City Administrative Code § 8-502.
On May 27, 2003, Judge Mukasey granted Moore's unopposed application for leave to amend her complaint, and ordered the separate cases against Con Ed and Morrill consolidated for discovery purposes. To facilitate mediation and settlement, the Court repeatedly extended Moore's deadline for filing an amended complaint, with the final order being that "[a]bsent a settlement plaintiff will serve an amended complaint by September 19, 2003." Mitchell Cert. Exhibit KK. The procedural history of Moore's multiple complaints and the various amendments and consolidations is less than clear, but subsequent procedural events are even murkier.
Moore's attorney, Stephen Mitchell ("Mitchell") asserts that he served Defendants with an amended complaint on September 19, 2003 and filed a stamped copy with the Clerk of the Court's office two days later. Moore has produced an amended complaint against Con Ed that includes Title VII and New York City claims and bears such a stamp with a September 21, 2003 date. Mitchell Cert. Exhibit NNN. He further argues that the amended complaint was discussed at a conference on September 26, 2003 and that the Defendants did not object to the amended complaint. Mitchell asserts that Judge ...