The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff, Felice Miller ("Miller"), brings this action against defendant, Batesville Casket Company ("Batesville" or "Defendant") alleging gender discrimination and retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), New York State Human Rights Law ("N.Y.S.H.R.L.") and the Equal Pay Act. Defendant now moves for summary judgment under Fed. R. Civ. P. 56. Defendant also moves to strike Miller's Local Rule 56 Counter-Statement of Facts ("Pl. Counter-Stat.") and Miller's Affidavit in Opposition to Defendant's Motion ("Miller Aff."). For the reasons set forth below, Defendant's motion to strike is denied, but summary judgment is granted in Defendant's favor.
Batesville is a manufacture and seller of burial and cremation products. Defendant's Local Rule 56 Statement ("Def's Rule 56 Stat.") ¶ 1. Batesville sells its products through regional sales representatives. Id. Miller was hired as a sales representative in January 2000 for Batesville's Mid-Atlantic Region, which encompasses, in part, Queens, Nassau and Suffolk counties. Id. ¶¶ 2-3. Batesville employed multiple sales representatives in the Mid-Atlantic region. Id. Each customer was assigned a single sales representative, thus giving Miller the exclusive right to service customer accounts. Id. at ¶ 5. When Miller started with Batesville she received a salary and was reimbursed for her expenses, but she did not receive commissions. Id. at ¶ 6-7; Plaintiff's Local Rule 56 Counter-Statement ("Pl's Rule 56 Counter-Stat.") ¶ 7.
Batesville's Reorganization, Transfer of Accounts and Changes in Compensation
In December 2001 Batesville combined its Metro Region with its Mid-Atlantic Region. Def's Rule 56 Stat. ¶ 9. The former head of the Metro Region, Paul Theesfeld, was demoted and became a sales representative in the Mid-Atlantic Region. Id. Similarly, Paul Ferris, a former Regional Sales Director and owner of a competing casket company, was made a sales representative in the Mid-Atlantic Region. Id. In March 2002, Batesville reorganized the sales force in the new, larger, Mid-Atlantic Region and terminated several sales representatives. Id. at ¶ 10; Pl's Rule 56.1 Counter-Stat. ¶ 10. Miller kept her job. Def's Rule 56 Stat. ¶ 11. In conjunction with the reorganization, Batesville changed the method of compensating sales representatives. Id. at ¶ 12. Under the new system, sales representatives no longer earned a salary and reimbursement for expenses. Id. Rather, Batesville introduced a system where sales representatives were given a reduced base salary but received commissions. Id. at ¶ 12-13. Sales representatives were no longer reimbursed for their expenses, although Miller alleges that some sales representatives were reimbursed for their cell phone charges. Id.; Pl's Rule 56 Counter-Stat. ¶ 15.
Batesville developed a formula to estimate how much each sales representative would earn under the new commission-based system. Id. at ¶19-20. First, Batesville configured a target list of accounts which the sales representative could visit in a year. Id. Next, Batesville estimated the commissions that could be earned from each account, based on prior years' sales. Id. at 20. Under this system, a large account required more visits than a small one but could also be counted on to produce greater commissions. Id. at ¶ 40. As part of the new system, Batesville offered a "growth bonus" for growing accounts, meaning that a sales representative could be rewarded for servicing an underperforming account. Def's Rule 56 Stat. ¶¶ 27-30. If the projected commissions were less than the sales representative's previous annual salary, the sales representative was given a "salary supplement." Id.
In 2001, under the old compensation structure, Miller earned a salary of approximately $71,000, and was reimbursed for $22,000 in expenses. Miller's total compensation in 2001 was around $93,000. Id at ¶¶ 7, 18; Pl's Rule 56 Counter-Stat. ¶¶ 7; 18. In 2002, under the new compensation structure, Miller earned $46,000 in commissions and was given a salary supplement of $64,417, for a total salary of $110,417. Def's Rule 56 Stat. ¶ 18. However, in 2002 Miller had $22,000 in work related expenses which were not reimbursed. Thus, Miller's net salary for 2002 was $88,417. Pl's Rule 56 Counter-Stat. ¶ 18. Miller's compensation under the new system thus was less than her salary under the old system.
Theesfeld had been a manager in previous years and not a sales representative. For Theesfeld, the formula was used to create account lists (with expected commissions plus a salary supplement) that would approximate his prior year's management salary. Id. at 21, 44. Thus, in 2002, under the new structure, Theesfeld had commissions of approximately $63,413, was given an $88,725 salary supplement and a bonus of $14,098, among other compensations. Miller Affidavit in Opposition to Defendant's Motion ("Miller Aff") Exhibit G. Similarly, in 2002, under the new salary structure, Ferris earned $40,342 in commissions and was given an $87,198.55 salary supplement, among other compensations. Id. at ¶¶ 34-38.
With respect to the way accounts were redistributed, Batesville admits that Miller both gained and lost accounts, but the parties appear to disagree about the quality of the accounts which Miller gained and lost. Def's Rule 56 Stat. ¶¶ 34-40; Pl's Rule 56 Counter-Stat. ¶¶ 93-96. Miller strenuously asserts that she was given substandard accounts in the reorganization while the better accounts were reserved for the male sales representatives. Pl's Rule 56 Counter-Stat. ¶¶ 31, 35, 37, 41, 44, 48, 49, 50. The redistribution of accounts was significant because, although the commissions were uniform for any product, Miller alleges that some accounts could be expected to produce more sales, and, therefore, were more valuable than other accounts. Pl's Rule 56 Counter-Stat. ¶ 25. Miller alleges that Theesfeld's and Ferris' commissions were earned on these "prime" accounts. Miller Aff. ¶ 22. Miller also alleges that Theesfeld and Ferris were given costumers in a large, multi-state area, while her accounts were confined to Long Island and Queens. Pl's Rule 56 Counter-Stat. ¶ 31. Batesville asserts that accounts were distributed based on a variety of factors, including geography, the need to maintain compensation levels and the need to adhere to customers' demands. For added effect, Batesville asserts that some of Miller's accounts were transferred away from her at the customer's request. Def's Rule 56 Stat. ¶¶ 97-107. Miller, for her part, denies that the customers were unhappy with her services. Pl's Rule 56 Counter-Stat. ¶¶ 97-107.
In August 2002, Miller attended a training at Batesville's headquarters. Def's Rule 56 Stat. ¶ 60. Part of the training involved a simulator that tested a sales representative's acumen. Id. at ¶ 59. Miller failed the simulator test. Id. at ¶ 63. Another part of the training required the sales representatives to analyze case studies. Id. at ¶ 64. The case studies were graded by Jan Bell, an instructor for Batesville. Id. at ¶ 67. Miller did not do well on the case studies, and Bell reviewed Miller's answers with her. Id. at ¶¶ 67-69. Bell also commented on the fact that Miller had been seen talking to Tim Cutter, another sales representative, and that Bell believed that other sales representatives thought that Miller and Cutter were flirting. Id. at ¶ 68. Bell's suggestion apparently caused Miller "extreme humiliation" causing her to seek medical attention. Miller Aff. ¶ 15.
Miller believes that Bell did not grade the test fairly. Pl's Rule 56 Counter-Stat. ¶ 80. Although Miller and Batesville initially had some difficulty finding a mutually convenient time to administer a re-test, eventually Miller retook the exam and passed. Def's Rule 56 Stat. ¶¶ 76-80. Miller complained to Batesville's president, Ken Camp, about the alleged harassment. Miller Aff. ¶ 15. Camp allegedly responded with a thinly veiled reference to Miller's "biological clock," which Miller believed also constituted harassment. Id.
Because of the alleged discriminatory effect of the restructuring, and the alleged harassment at the training, Miller filed her first employment discrimination complaint, in New York State Supreme Court, Nassau County in October 2002. Batesville promptly removed the action to this Court. See ECF Docket Entries No. 1. The complaint has been amended twice to allege retaliation and further acts of gender discrimination. For purposes of this motion, the operative pleading in Miller's Second Amended and Supplemental Complaint, ("Complaint") filed on September 15, 2005.*fn1
Golf Outings, Tuition Reimbursement and Other Perks
Miller alleges that Batesville discriminated against her by restricting her access to certain job related perks. First, Miller did not attend several company golf outings. Id. at¶¶ 81-89. Although Miller concedes that she did not golf, she alleges that she was not invited to the outings, even though her clients were. Pl's Rule 56 Counter-Stat. ¶¶ 81-82. Batesville claims that Miller was invited to the outings but chose not to attend. Def's Rule 56 Stat. ¶¶ 82-86. Second, Batesville made a company plane available for sales representatives to fly customers to Batesville's headquarters. Id. at ¶ 90. Miller was never scheduled to use the plane. Id. Third, Batesville had a tuition reimbursement program that allowed sales representatives to earn a master's degree in business administration at the company's expense. Id. at 108-109. Miller took advantage of the program. Id. at 109. In March 2003, Batesville changed the program and required employees to reapply for tuition reimbursement. Under the new program, if an employee did not work at Batesville for a sufficient amount of time after receiving the reimbursement, Batesville could require the employee to pay back all the tuition it had paid. Id; Def's Rule 56 Stat. ¶114.By March 2003, Miller had commenced litigation against Batesville and felt that her time with Batesville was limited. Pl's Rule 56 Counter-Stat. ¶ 112. Thus, the change in policy forced Miller to pay her tuition without reimbursement from Batesville. Miller alleges that this policy change was implemented to retaliate against her for filing suit. Pl's Rule 56 Counter-Stat. ¶ 110. Miller also alleges that Batesville contractually obligated itself to reimburse her. Id.
Miller's Performance Improvement Plan and Separation from Batesville
In 2004, approximately two years after folding its Metro Region into the Mid-Atlantic Region, Batesville reversed itself and reestablished the Metro Region under the leadership of Nectar Ramirez-Gosdin. Def's Rule 56 Stat. ¶116. Miller's territory was in the Metro Region. Id. at¶ 117. Miller was not meeting her sales goals and Ramirez-Gosdin met with her to discuss the problem. Id. at¶¶ ...