The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Plaintiff, Sanjean Dowrich ("Dowrich"), brings this action against defendant, Aramark Healthcare Support Services, Inc. ("Aramark") alleging gender and race discrimination stemming from Aramark's failure to promote her, denial of a promised salary increase and termination of her employment. Dowrich also alleges retaliation in the form of an audit that led to her termination, all in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and in violation of 42 U.S.C. §1981. Defendant now moves for summary judgment under Fed. R. Civ. P. 56 (c). For the reasons set forth below, defendant's summary judgment motion is granted.
Plaintiff, who is both African-American and female, started working for Aramark in 1997 as a reserve manager at North General Hospital in Manhattan ("North General").*fn1 (Counter Statement ¶ 1). In March 1999, Dowrich became the operations manager of environmental services at North General. (Counter Statement ¶ 4). At the time, Aramark provided both food services and environmental services to North General, which included housekeeping, laundry and linen distribution services. (D. 56.1 Statement ¶¶ 3, 5). As the operations manager of environmental services, Dowrich reported to Mercedes Redwood ("Redwood"). (Counter Statement ¶ 6). Redwood was Aramark's general manager for North General, a position which gave her responsibility for both the Environmental Division and the Food Services Division. (D. 56.1 Statement ¶ 5). Dowrich received much of her training from Redwood in an informal matter. (Counter Statement ¶ 9).
In January 2000, Aramark conducted a "surprise"housekeeping audit of Dorwich, which Dorwich passed. (Counter Statement ¶ 10). The audit was marred by a comment made by Maurice Hundevadt, one of the auditors, that Dorwich "turned stupid since [she] got around Mercedes." Dorwich believed that Hundevadt's comment had racial connotations. (Counter Statement ¶ 12). Dorwich filed a complaint with Aramark's human resources department. (Counter Statement ¶ 13). In response to the complaint, in February 2003, David Marks, one of Aramark's district managers, visited North General and told Dorwich that "she should never have gone to human resources." (Counter Statement ¶ 14). Later that day, Marks had another confrontation with Dorwich where he jabbed his fingers into her ribs. (Counter Statement ¶ 15). Dorwich reported the incident with Marks to other Aramark supervisors and continued to press her case against Hundevadt. (Counter Statement ¶ 16). Hundevadt was counseled by his supervisor, Michael Ronchi, but neither he nor Marks was disciplined for the incident. (Affirmation of Peter G. Eikenberry ("Eikenberry Aff.), Exhibit 13 ). Undeterred, Dorwich pressed her complaint with Ray Walsh, the president of Aramark. (Counter Statement ¶ 17). Walsh was sufficiently concerned about the incident to order David Berkowitz, Aramark's regional vice president for the Northeast Region, to investigate. (Counter Statement ¶ 21). At a later meeting, Berkowitz told Dorwich and Redwood that Marks admitted touching Dorwich but did not mean to hurt her. (Counter Statement ¶ 23). Berkowitz also cautioned Dorwich not to go over his head and lodge complaints with Walsh, but rather to come directly to him. Id.
According to Dowrich, a second related incident occurred in October 2001 when, at a "management development review meeting" in Tarrytown, New York, Raymond Cottrell, an associate district manager for the Northeast Region, publicly stated that any criticism of himself or Berkowitz would lead to termination. (Counter Statement ¶ 139). Dowrich believed that Cottrell's comment was aimed squarely at her because of her complaint to Walsh and her persistent inquiries about a promised salary increase that never materialized. (discussed below). (Counter Statement ¶ 140-141).
Aramark's Contract with North General and Dorwich's Promotion and Salary Increase Aramark's environmental services contract with North General provided that Aramark received a fixed annual service fee. (D. 56.1 Statement ¶ 6). From this service fee, Aramark budgeted its expenses. Id. Besides the service fee, the only expense that North General was responsible for was personnel services. Id. The personnel services fees were subject to a "paid hours guarantee" so that it would not exceed a set annual amount. Id. Manager's salaries -- including Dorwich's -- were not paid for by North General, but rather were paid out of the fixed annual service fee that Aramark received. (D. 56.1 Statement ¶ 7).
Aramark's fiscal year runs from October 1st through September 30th, although budgetary projections are made during the summer months in preparation for the next fiscal year. (D. 56.1 Statement ¶ 47). In the Spring of 2001, North General informed Aramark that, beginning in August 2001, Aramark would no longer be responsible for food services, but only environmental services.
(D. 56.1 Statement ¶ 9). Redwood, who as overall director of North General was responsible for assembling the following year's budget, drafted "a proposed budget of the new structure." (Deposition of Mercedes Redwood annexed to Eikenberry Aff. as Exhibit 24 ("Redwood Dep."), 22). The proposed budget for 2002 assumed that, in the new structure, Dowrich would be promoted to director of environmental services. Accordingly, the 2002 budget included an increased salary for Dowrich. (Redwood Dep. 22-24). Based on the fact that Cottrell approved the budget, as well as Redwood's representation that Dorwich "would be director after she leaves," Dorwich claims she, in fact, was promoted in June 2001. (Counter Statement ¶¶ 60-61). Cottrell and Redwood deny that they approved a salary increase or a promotion in June of 2001. (Declaration of Raymond Cottrell in Support of Defendant's Motion for Summary Judgment ("Cottrell Decl.") ¶20; Declaration of Mercedes Redwood in Support of Defendant's Motion for Summary Judgment ("Redwood Decl.")
¶ 15-17).The $469,284 service fee for 2002, including Dowrich's proposed $65,220 salary, was approved by Berkowitz and was incorporated into the 2002 "Managed Services Agreement" between Aramark and North General. (Counter Statement ¶¶ 82-84).
Although Dowrich was referred to as the "ENV SRV DIRECT" (effective June 2001) on a November 2001 employee profile, on a January 2002 employee profile, and in her termination letter, Dowrich never received the pay increase she was promised. (Counter Statement ¶¶ 89-97; Eikenberry Aff., Exhibits 4,5). In January 2002, Dowrich inquired about the status of the pay increase with the new district manager and her direct supervisor, Jeffrey Thomas. (Counter Statement ¶¶ 102-103). Thomas' response was that he would discuss the issue with Berkowitz.
(Counter Statement ¶ 104). The salary increase was not forthcoming, however, and, when Dowrich next saw Berkowitz, Berkowitz told her that he would schedule a meeting to discuss her compensation. (Counter Statement ¶105). Dowrich made three phone calls after April 2002 to inquire about the meeting, but Berkowitz failed to schedule the meeting or resolve Dowrich's compensation issue. (Counter Statement ¶¶ 106-108).
During this time, Thomas left Aramark and was replaced as district manager by George Hasaka. (Counter Statement ¶ 110). As the new district manager, Hasaka scheduled a meeting with Dowrich on May 22, 2002. (Counter Statement ¶¶ 111). Dowrich took the opportunity to press her compensation issue and those of Monique Kelly and Jeff Howell, two other African-American employees who also had been promised salary increases that never materialized. (Counter Statement ¶¶ 112-114). Dowrich also sent an e-mail message to Karen Flood, the human resources director, again asking why the salary increase had not been forthcoming, especially since North General was paying Aramark an increased annual service fee to cover the additional expenses. (Counter Statement ¶ 116).
Hasaka investigated why Dowrich and others had not received salary increases. Hasaka e-mailed Tom Neuhs and Michael Ronchi, two other district managers and called Berkowitz. (Counter Statement ¶¶ 117, 119-120). Berkowitz responded that if there was to be a pay increase, it should not be retroactive to August, 2001. Neuhs forwarded the e-mail to Cottrell for guidance. (Counter Statement ¶¶ 118, 121). Cottrell responded that he thought there should have been an increase, and that it was overdue, but that Hasaka should speak with him to find out more. (Counter Statement ¶ 122). After speaking with Cottrell, Hasaka explained to Dowrich that she did not receive a pay increase because her duties did not change as environmental services director from the duties she had as operations manager. However, Hasaka asked Dowrich to write a memo delineating the differences between the two jobs. (Counter Statement ¶ 123).
In a memo dated June 24, 2002, from Dowrich to Hasaka, Dowrich explained the differences between her duties as environmental services director and operations manager but also explained that (1) she felt slighted by the fact that Berkowitz promised to meet with her but did not; (2) she knew that "promotional increases are effective at the time the employee begins the new position;" (3) Aramark's management was not "fair and impartial when dealing with other people's livelihood;" and (4) she continues "to fight for equitable treatment in this organization, which to some, comes as their birthright, while others continue to struggle." (Declaration of Robert R. Reed ("Reed Decl."), Exhibit 9; Counter Statement ¶¶ 126-128). According to Dowrich, the June 24, 2002, memorandum was meant to assert that African-Americans and women at Aramark are not treated the same as their white male colleagues. (Counter Statement ¶ 129).
Hasaka received the June 24, 2002, memo and forwarded it to Karen Flood. (Counter Statement ¶ 163). Hasaka also had a conversation with Berkowitz regarding the memorandum and Hasaka recommended that Dowrich receive the salary increase-- although not as large an increase as Dowrich expected. (Counter Statement ¶ 164). However, Dowrich never received the increase because, on July 2, ...