The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Anne M. Byrne ("Byrne") commenced this action on February 2, 2004, alleging that Defendant Telesector Resources Group, Inc., d/b/a Verizon Services Group, a/k/a/ Verizon New York, Inc. ("Defendant" or "Verizon") discriminated against her based on her sex, subjected her to a sexually hostile work environment, retaliated against her following her complaints of discrimination and paid her less than male employees performing the same duties, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the New York State Human Rights Law ("HRL"), N.Y. EXEC. L. §§ 290 et seq., andthe Equal Pay Act ("EPA"), 29 U.S.C. §§ 206 et seq.(Docket No. 1). Byrne subsequently filed an Amended Complaint on May 7, 2004. (Docket No. 12.) Certain of the claims set forth in the Amended Complaint were dismissed by this Court's February 25, 2005 Decision and Order on Verizon's Motion to Dismiss. (Docket No. 21.)
Presently before this Court is Verizon's Motion for Summary Judgment*fn1 seeking dismissal of the Amended Complaint in its entirety. (Docket No. 43.) For the following reasons, Verizon's motion is granted in part and denied in part.
Verizon is a provider of telecommunication products and services. (Docket No. 43-2 ("Def's Statement") ¶ 1.)*fn2 Byrne was hired in or about December 1974 by a predecessor of Verizon, New York Telephone,*fn3 and spent the first 22 years of her employment working in union represented, hourly positions.*fn4 (Docket No. 44, Ex. 1 ("Byrne Depo.") at 27:9-28:7.) In March 1996, Byrne was asked to work on a temporary assignment in a salaried position in NYNEX's Systems Marketing Branch. (Def's Statement ¶ 14.) When the assignment concluded, in September 1996, Byrne was offered a permanent salaried Systems Analyst position in that department. (Id. ¶ 16.) She initially rejected the offer, but ultimately accepted the job after negotiating a higher starting salary. (Id. ¶¶ 17-18; Docket No. 59 ("Pl's Statement") ¶¶ 17-18.) In 1999, Byrne's Systems Analyst title was changed to Sales Engineer I. (Def's Statement ¶ 21.)
In January 2000, Byrne complained that women were treated unfairly at the Bell Atlantic (later Verizon) Enterprise Solution Group office in Buffalo. (Id. ¶ 41.) This is the working group in which Byrne was employed from 1996 through 2004.*fn5 (Id. ¶¶ 3-5, 7-8.)
On June 30, 2000, Bell Atlantic merged with a former competitor, GTE, to form Verizon. (Id. ¶ 22.) Prior to the merger, GTE marketed and sold voice and data customer premise equipment ("CPE") and certain other equipment that Bell Atlantic did not offer. (Id. ¶¶ 23-25.) One challenge facing the Verizon (former Bell Atlantic) sales team was their lack of hands-on experience in selling these voice and data CPE products. (Id. ¶ 26.) Verizon budgeted for two new positions in its Buffalo office titled Senior Specialist-Technology Solutions, to be filled in early 2002, one of which was to focus on voice CPE and the other on data CPE. (Id. ¶¶ 26, 29.)
In February 2001, Byrne received a performance evaluation rating her as "very effective" and, effective March 15, 2001, her base salary increased by 4.3 percent from $57,900.00 to $60,400.00. (Id. ¶¶ 33-34.) On April 1, 2001, Byrne was promoted to Sales Engineer II and received a 4.9 percent salary increase to $63,400.00. (Id. ¶¶ 35-36.)
In 2001, after the Bell Atlantic/GTE merger but before the Buffalo CPE positions were advertised and filled, Verizon sold a package of services to HSBC bank that included a Nortel PBX, a type of voice CPE system. (Pl's Appx. Ex. O.) Byrne worked on that project. (Id.)
Early in 2002, Byrne's supervisor, Sales Engineering Manager Daniel Irving, posted the Buffalo office voice and data CPE positions on VZ Jobs, Verizon's internet-based job posting system. (Id. ¶¶ 32, 38 and Pl's Appx. Ex. P.) Byrne requested that the outside posting be withdrawn and that she be "allowed to step into the position, which would be a lateral move" for her. (Def's Appx. Ex. 9; Pl's Statement ¶ 39.) Irving subsequently posted the CPE positions internally as well as externally, and Byrne applied for the voice CPE job. (Def's Statement ¶¶ 38, 42-45, Pl's Statement ¶ 39.) The voice CPE position was at least two levels above the Sales Engineer II position Byrne then held. (Def's Statement ¶ 40.) Byrne was selected as one of six individuals meeting the minimum screening criteria for the position and the slate of candidates was forwarded to Daniel Irving. (Id. ¶¶ 44-45; Pl's Appx. Ex. L at 185.) All told, there were three external candidates and three internal candidates on the list, with Byrne being the only female. (Id. ¶ 45.)
In March 2002, Irving completed Byrne's 2001 performance assessment, in which he noted that she was the first Sales Engineer in the branch to assist in a PBX sale and described her as "an integral part of the success of the design and installation of that new system." (Def's Statement ¶ 68; Pl's Appx. Ex. O.) He further noted that Byrne "took ownership of creating a design, obtaining pricing and meeting difficult customer timelines for a product/service that she had very little exposure to." (Pl's Appx. Ex. O.) Byrne received a 4.73 percent salary increase on March 31, 2002, to $66,400.00. (Def's Statement ¶ 69.)
In or around that same time, Irving offered the voice CPE position to David Winley, one of the candidates on the list he had received. (Def's Statement ¶¶ 44-45, 59.) The data CPE position, for which Byrne did not apply, was offered to a candidate named Kevin Dean. (Id. ¶ 61.)
Beginning on July 26, 2002, Byrne complained about being bypassed for the voice CPE position. (Pl's Appx. Exs. S-Y, XX.)
Sometime during the summer of 2002, Byrne requested that she be assessed as a Sales Engineer III, but was told in a slide presentation at a branch meeting, and also by a manager, that there was a freeze on assessments. (Pl's Statement ¶ 87.) Byrne later learned that two male Sales Engineers in the Albany office had been assessed and promoted during the freeze. (Id.; Def's Statement ¶ 88.)
In early 2003, Daniel Irving was moved to the position of Enterprise Advanced Specialist and Christopher Gaglione, to whom Byrne had reported in 2000, again became her manager. (Def's Statement ¶¶ 32, 89.) Also in early 2003, Verizon changed the Senior Specialist title to Sales Engineer IV, and David Winley and Kevin Dean experienced that change in job title. (Id. ¶ 90.)
In March 2003, Daniel Irving, who had been Byrne's supervisor in 2002, evaluated her performance and gave her a rating of "meets expectations." (Id. ¶ 96; Def's Appx. Ex. 16.) Byrne received an annual discretionary salary increase of 3.77 percent, to $68,900, which she believed was below average based on what she had received in prior years. (Def's Statement ¶¶ 98-99.)
Byrne complained about certain of the comments in her 2002 appraisal, first to her manager, Christopher Gaglione, and then to Antoinette McDermott of Verizon's EEO office, describing the comments as retaliatory. (Pl's Appx. Exs. DD-NN, VV.) McDermott requested that Irving give a written explanation for the specific comments Byrne objected to and afforded Byrne the opportunity to provide a written response. (Id. Exs. MM, NN, VV.) Patrick Koseski, Verizon's Human Resources Manager, assured Byrne that a "meets expectations" rating would not negatively impact her opportunity for an upgrade from Sales Engineer II to Sales Engineer III. (Def's Appx. Ex. 18.)
On August 17, 2003, Byrne was promoted to Sales Engineer III, along with two other women, and received a pay increase of $6,900 to $75,800. (Def's Statement ¶ 107; Pl's Appx. Ex. OO.)
In November 2003, David Winley resigned his Sales Engineer IV position and the position was eliminated. (Def's Statement ¶¶ 108-109.) In November 2003, Christopher Gaglione posted a job opening in Syracuse for a Sales Engineer IV to focus on the broadband product segment. (Def's Statement ¶ 110.) A requirement for the job was that the successful candidate report to, and work out of, the Syracuse office. (Id. ¶ 111; Docket No. 56 ("Byrne Aff.") ¶ 96.) Byrne applied for the job and was interviewed. (Def's Statement ¶ 112.) However, while she was willing to engage in "some travel back and forth to Syracuse [from Buffalo]," she declined to relocate to Syracuse for the position and was not considered further. (Id.; Byrne Aff. ¶ 96; Pl's Statement ¶ 123.) The individual eventually hired for the position reported to and worked out of the Syracuse office. (Def's Statement ¶ 115.)
In March 2004, Christopher Gaglione met with Byrne and told her he had assessed her as having met expectations during 2003. (Id. ¶ 119.) Byrne complained that she believed she should have received a "very effective" rating, to which Gaglione responded that "'met expectations' was a good rating." (Id.) Byrne received a 3.56 percent salary increase to $78,300. (Id. ¶ 120.)
In May 2004, Kevin Dean, the remaining Sales Engineer IV in Buffalo, resigned and his position was eliminated. (Id. ¶ 122.) In December 2004, Branch Sales Engineer Manager, Robert Dixon, and Sales Engineer Manager, Christopher Gaglione, advised the three Sales Engineers and one Project Manager still working in the Buffalo office that their positions would be moved to Syracuse in a restructuring. (Id. 130; Pl's Statement ¶ 123.) Their manager, Gaglione, worked out of the Syracuse office. (Def's Statement ¶ 125.) The Buffalo employees were given the options to relocate to Syracuse, transfer to another job in Verizon's Buffalo office, or accept a severance package. (Id. ¶ 130.)
Byrne and the Project Manager each transferred to a different job at Verizon. (Id. ¶¶ 131-32.) The two remaining Sales Engineers transferred to Syracuse. (Id. ¶¶ 133-34.) Byrne remains employed in Buffalo at Verizon's outside plant engineering department at a salary in excess of $80,000. (Id. ¶ 131.)
Byrne filed her administrative charge with the Equal Employment Opportunity Commission ("EEOC") on July 17, 2003 and the EEOC sent notice of the charge to Verizon on July 23, 2003. (Def's Statement ¶¶ 105-106; Def's Appx. Ex. 19.) Therein, Byrne alleged that, since April 1996, she had been subjected to different terms and conditions of employment and a hostile work environment because of her sex (Docket No. 16, Ex. B). Specifically, Byrne alleged that she was denied a promotion in November 2002 and given a negative performance evaluation in March 2003 (Id.). According to the charge, Byrne was retaliated against after she made complaints to Verizon management, its human resources department and one of its EEO advocates (Id.).
The EEOC investigated Byrne's allegations and issued a Determination, which also served as the notice of suit rights, dated November 4, 2003 (Docket No. 12, Ex. A). Therein, the EEOC noted that all of Byrne's allegations, except with regard to the disputed performance review, were untimely (Id.).
Byrne instituted this action on February 2, 2004, by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Verizon moved to dismiss the Complaint, except with regard to Byrne's claim of retaliation based on her receipt of a negative performance evaluation and below average raise in 2003. (Docket Nos. 3, 4.) Byrne responded by filing an Amended Complaint. (Docket No. 12.) Verizon then moved to dismiss the Amended Complaint on the ground that Byrne's amendment has not cured the deficiencies set forth in its original Motion to Dismiss (Docket Nos. 18-20).
Verizon's Motion was granted in part and denied in part pursuant to this Court's Decision and Order dated February 25, 2005. (Docket No. 21.) Specifically, this Court dismissed Byrne's Title VII claims of disparate treatment and hostile work environment in their entirety as untimely or not reasonably related to her EEOC charge, and dismissed her Title VII retaliation claim to the extent it is based on conduct occurring prior to her March 2003 performance review. Thus, the only Title VII allegations remaining relate to purported retaliation occurring in March 2003 and thereafter.
Verizon's motion was denied as to Byrne's claims under the HRL (disparate treatment, hostile work environment and retaliation) and the Equal Pay Act, to the extent that those claims are based on conduct occurring on and after February 2, 2001.
Verizon has now moved for summary judgment dismissing each of the remaining claims.
III. DISCUSSION AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. "An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment." Powell v. National Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (citation omitted). In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be viewed in the light most favorable to the non-moving party. Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000).
The Second Circuit has noted that trial courts should be particularly cautious in deciding whether to grant summary judgment in employment discrimination cases, because the employer's intent is often at issue. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, the Supreme Court more recently has "reiterated that trial courts should not 'treat discrimination differently from other ultimate questions of fact.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L. Ed. 2d 105 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)). In other words, summary judgment can be appropriate even in the fact-intensive context of discrimination cases. This is consistent with a principle purpose of the summary judgment rule; "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986).
B. Disparate Treatment and Retaliation
Byrne contends that she was discriminated against in her employment in Verizon's Enterprise Solutions Group because of her sex and that after she made various complaints, she was subjected to treatment that constituted further acts of discrimination and retaliation. Verizon seeks summary judgment as to each alleged incident of discrimination and/or retaliation.
Under N.Y. EXEC. LAW § 296(1)(a), it is unlawful for an employer to discriminate against an individual in compensation or in terms, conditions or privileges of employment because of that individual's sex. In evaluating claims of sex discrimination, this Court applies the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973) and Texas Dep't of Comt'y Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981).*fn6 To make out a prima facie case of discrimination, Byrne must show that (1) she is a member of a protected class, (2) she is qualified for her position, (3) she suffered an adverse employment action, and (4) the circumstances of the adverse action give rise to an inference of discrimination. Weinstock, 224 F.3d at 42 (citing McDonnell Douglas, 411 U.S. at 802). The burden Byrne carries at the prima facie stage of summary judgment is minimal. Fisher v. Vassar College, 114 F.3d 1332, 1340 n.7 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed. 2d 752 (1998). In fact, no evidence of discrimination is required. James v. New York Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000).
If Byrne meets her initial burden to establish a prima facie case, a rebuttable presumption of discrimination arises and the burden then shifts to Verizon to articulate a legitimate, non-discriminatory reason for the challenged employment action. Burdine, 450 U.S. at 254. If Verizon succeeds in making its showing, "the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." Weinstock, 224 F.3d at 42 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)).
The burden then shifts back to Byrne to produce "evidence that [Verizon's] proffered, non-discriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42. "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. However, "evidence contradicting the employer's given reason-without more-does not necessarily give logical support to an inference of discrimination." James, 233 F.3d at 154. Put simply, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. at 156 (quoting St. Mary's, 509 U.S. at 519).
It is also unlawful, under both Title VII and the HRL, to discriminate against an employee because that individual has opposed any practice forbidden under those statutes or filed an administrative complaint thereunder. 42 U.S.C. § 2000e-3(a); N.Y. EXEC. LAW § 296(1)(e). The allocation of burdens of proof in retaliation claims parallels that of discrimination claims. Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (citations omitted). However, the elements of a prima facie case differ somewhat. To prevail on her retaliation claims, Byrne must show that (1) she was engaged in a protected activity, (2) Verizon was aware of her participation in this activity, (3) Verizon took an action against her that was so materially adverse a reasonable employee would have been dissuaded from engaging in protected activity, and (4) there is a ...