The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Tina Nowak ("plaintiff" and/or "Nowak" ), brings this action pursuant to Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law, claiming that she was subjected to sexual harassment while working for her former employer, defendant Lowe's Home Centers, Inc., ("defendant" and/or "Lowe's"), and that she was fired from her job in retaliation for complaining of sexual harassment.
Lowe's contends that plaintiff was terminated for violating company policy, and that discrimination or retaliation played no role in its decision. Moreover, Lowe's contends that plaintiff failed to report any alleged harassment, and without knowledge of the alleged harassment, Lowe's argues that as a matter of law it could not have retaliated against plaintiff. Lowe's now moves for summary judgment, arguing that no reasonable jury could find that it discriminated against plaintiff as she claims. For the reasons set forth below, defendant's motion for summary judgment is granted.
Plaintiff Tina Nowak was hired by Lowe's Store Manager Scott Lee ("Lee") on October 8, 2003 for the position of Sales Manager. At that time, Chris Fox ("Fox") was the Administrative Manager, a position that made him a peer of the Sales Manager (plaintiff's position) in the store's hierarchy. See Nowak Dep. Ex. 1 p. 84 ("Ex. 1"). As a result, plaintiff did not have to report to Fox and he did not have input into her evaluations, salary reviews or other personnel matters. See Declaration of M. DeRoche ¶ 2 ("Ex. 4").
From October 2003 through February 2004 Nowak contends that she would often "butt heads" with Fox. See Ex. 1 pp. 117. Similarly, Fox testified that he and plaintiff "butted heads" on their views of how to operate the business.*fn1 See Fox Dep. Ex. 7 pp. 69-70 ("Ex. 7"). For instance, plaintiff described Fox as having an "in your face" personality. See Ex. 1 p. 150-151. Meanwhile, Fox described himself as very "[h]ands on, communicative, direct." See Ex. 7 p. 55. Indeed, according to former Human Resources Manager Susan Holtz ("Holtz"), there was a personality conflict between Nowak and Fox. See Holtz Dep. Ex. 6 p. 215 ("Ex. 6").
Plaintiff also claims that she was sexually harassed by Fox when he once called her a "bitch." See Ex. 1 p. 153. Further, plaintiff contends that on one occasion Fox allegedly looked down her blouse and observed that she was wearing a purple bra. See id. In addition, plaintiff testified that one day, after returning from Starbucks with a drink and commenting that she hated whipped cream, Fox purportedly responded by stating "I'd like to whip your cream." See id. pp. 162-164. Notably, Nowak testified that nobody at Lowe's ever asked her to have sex or no one asked her for sexual favors, nor ever touched her in a sexual or offensive manner, nor ever took any action against her because she rejected a sexual request or advance, or ever showed any sexually offensive pictures, toys or objects. See Ex. 1 pp. 152, 178-179.
With respect to Fox, plaintiff testified that Fox never asked her for sex or sexual favors, never touched her in a sexual or offensive manner, never accused her of engaging in sexual or sexists behavior. He also never made any sexual gestures toward her and never showed her any sexual or offensive pictures, toys or objects in the workplace. See id. pp. 181-182. Moreover, plaintiff never complained to Fox that he treated her in a sexually inappropriate manner and she never reported any of these incidents to anyone at Lowe's.*fn2 See id. Accordingly, notwithstanding her awareness of Lowe's policies relating to harassment, plaintiff never approached any managers concerning the behaviors she now alleges to be sexual harassment. Further, plaintiff's affidavit, which was verified on the same day that plaintiff's opposition papers were due now states, among other things, that she informed Lee on December 18, 2003, January 14, 2004 and February 19, 2004 that the actions Fox was taking towards her were hostile and that Fox was retaliating against her for complaining about sexual harassment against him. Plaintiff claims that Lee failed to take any substantive action to stop the sexual harassment. Significantly, plaintiff testified she has no evidence suggesting that she was fired for complaining of inappropriate sexual conduct or sexual harassment at Lowe's. See Ex. 1 p. 134.
Fox was assertive and confrontational with both male and female employees and indeed several men, not just women, complained about Fox's treatment toward them. See Ex. 6 p. 202. In fact, Lee told Fox that he received complaints from both male and female employees about his working style.*fn3 See Ex. 7 pp. 61-62. As an example, Robert Kettles, a male employee complained that Fox was tough on him. See id. pp. 55-56. Moreover, Ron Hall, another male employee complained about Fox being harsh. See Ex. 6 pp. 199-200. Plaintiff also contends that, although not directed at her, on one occasion Fox referred to women in her presence as a "whole bunch of bitches." See id. pp. 177-178. At another time, Fox allegedly used the word "bitch" when referring to a female dog while telling a joke. See id. In addition, plaintiff testified that she overheard Fox ask Zone Manager Peter Szklanka if he heard the joke, "have you sprayed yourself with Windex lately, because I can see myself in your panties." See id. pp. 167-168. Moreover, plaintiff alleges that she heard Fox ask an Administrative Department employee "have you been a bad girl, bad little girl[?]" and asked her if she needed a spanking. See id.
On January 31, 2004, plaintiff was the manager on duty and her responsibilities included closing down the cash office.*fn4 While admitting that cash register 17 was not shut down and closed on the night of January 31st resulting in the retention of money in the register overnight, plaintiff signed the till log worksheet for January 31, 2004 next to the bag number for register 17 in the "secured in safe" column, indicating that she placed the money from register 17 into the safe, when in fact she did not.*fn5 Further, on February 1, 2004, in violation of yet another Lowe's company policy, plaintiff unlocked and entered the store alone.*fn6 See Ex. 1 p. 117. After entering the store, plaintiff went to register 17, took the money and "put it in one of the till bags and took it to the safe." See id. pp. 118-119. Plaintiff then closed the register alone, once again in violation of Lowe's policy requiring two employees to be present when closing a register.*fn7 See id. Thereafter, plaintiff instructed a Head Cashier to sign where a manager was required to sign verifying that the money was in the safe. See id. pp. 121, 123; Ex. 7 pp. 77-78. The Head Cashier is not a manager and is not authorized to sign such reports. Accordingly, plaintiff's conduct violated Lowe's Money Handling policy, Store Opening and Closing Safety Procedures and the Best Practices: Manager on Duty Program. See Ex. 2 pp.98-99; Ex. 4 ¶¶ 14-21.
The store's surveillance videos verified that plaintiff violated Lowe's procedures. As a result, DeRoche informed Lowe's Regional Human Resources Director, Catherine Keown ("Keown") of plaintiff's conduct on January 31 and February 1, 2004. Keown advised DeRoche that plaintiff's conduct amounted to multiple "Class A"*fn8 violations and recommended that Lowe's terminate plaintiff's employment. See Ex. 4 ¶ 23. DeRoche agreed with Keown's recommendation and spoke with Lee and another Store Manager, Bo Csemez ("Csemez") concerning plaintiff's violation of various Lowe's policies and procedures and Keown's advise was to terminate plaintiff's employment. See id. ¶¶ 15, 24. Csemez agreed to terminate plaintiff's employment based on DeRoche's recommendation that plaintiff's conduct constituted a Class A violation.*fn9 Indeed, Csemez instructed Lee to terminate plaintiff's employment. Accordingly, on February 23, 2004, Lee informed plaintiff that her employment was terminated due to her actions on January 31, 2004 and February 1, 2004. See Ex. 1 pp. 126-128.
I. Defendant's Motion for ...