The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Sara DeLena commenced this action 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, and retaliated against her following her complaints of discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y.Exec. Law § 290, et seq. (Item 45). Presently before the court is defendant's motion for summary judgment dismissing the amended complaint (Item 66). In support of the motion, defendant has filed a Statement of Material Facts (Item 66) with exhibits, and a Memorandum of Law (Item 68). Plaintiff has filed an affidavit in opposition to the motion (Item 71), a Memorandum of Law (Item 72), a Counterstatement of Contested Facts (Item 75), and an attorney's affidavit (Item 74). Defendant filed a reply (Item 77) and affidavit (Item 78).
On July 10, 2001, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that throughout her employment , she had been subjected to different terms and conditions of employment and a hostile work environment because of her sex (Item 75, Exh. Z). Specifically, plaintiff alleged that she was discriminated against based on her sex in the assignment of accounts and personal objectives, performance evaluations, customer positioning events, sales training, technical support, and promotions. Plaintiff also alleged that she was denied a promotion in January 2001. Id. According to the charge, plaintiff was retaliated against after she complained of the discrimination to Verizon management. Id. The EEOC investigated plaintiff's allegations and issued a Notice of Right to Sue Letter dated March 12, 2002 (Item 45, Exh. 1).
Plaintiff initially brought this action on May 21, 2002, alleging gender-based discrimination in her employment (Item 1). Defendant filed an answer to the complaint on August 1, 2002 (Item 4). On March 30, 2003, plaintiff filed an additional charge with the EEOC. She alleged that she had been subjected to a continuing course of discrimination, harassment, and retaliation since the filing of her initial charge and the filing of her first complaint with this court (Item 75, Exh. II).
After a lengthy period of discovery and several contentious discovery motions (Items 13, 16, 27, 30, 32), plaintiff filed an amended complaint on July 8, 2004 (Item 45).
According to the amended complaint, plaintiff commenced her employment at Verizon in 1988 in the position of Associate Account Executive (Item 45, ¶ 10). In 1996, she was promoted to the position of Corporate Account Manager. Id., ¶ 11. Plaintiff claims that throughout her employment, she was subjected to a continuing course of sex-based disparate treatment with respect to the terms and conditions of her employment, required to work in a sexually hostile work environment, and retaliated against for complaining of unlawful discrimination. Id., ¶¶ 15-17.
Defendant filed an answer to the amended complaint on August 2, 2004 (Item 47). Discovery continued, as did the parties' discovery motion practice (Items 48, 58). Defendant filed its motion for summary judgment on September 30, 2005 (Item 66). Plaintiff filed her response to the motion for summary judgment on November 22, 2005 (Items 71, 72), and also cross-moved for a continuance to permit further discovery (Item 73). In an order filed August 2, 2006, this court denied plaintiff's motion for a continuance (Item 80). Oral argument on defendant's motion for summary judgment was heard on September 18, 2006. For the reasons that follow, the defendant's motion is granted in part and denied in part.
Plaintiff commenced her employment with defendant in 1988 (Item 75, ¶ 11). In 1995, she was supervised by Michael McGowan. In 1995, plaintiff attended 29 hours of job-related training, while two male account managers attended only 15 hours. Id., ¶ 16.
In February 1996, plaintiff was promoted to the position of Corporate Account Manager ("CAM"). Id., ¶ 18. In 1996, account assignments were restructured in the Buffalo office into "industry vertical market segments," with plaintiff given primary responsibility for healthcare accounts (Item 66, ¶ 19). Plaintiff complained that male CAM James Keller, who was assigned government and education accounts, had better sales opportunities than her and CAM Robert Gauchet, who was assigned financial accounts (Item 75, ¶ 20). In 1996, plaintiff was assigned a sales objective of $2.1 million, which she surpassed with sales of $3,000,472.66, or 165 percent of her objective. She earned $96,637.16 in 1996, 4.8 percent less than one male CAM and 26 percent more than the other male CAM. Item 66, ¶ 23. In 1996, plaintiff attended 32.75 hours of training, while Keller and Gauchet each received 18.75 hours of training. Id., ¶ 24.
Plaintiff complained that many of the social events, or "customer positioning events," were sporting events to which customers were not allowed to bring their spouses (Item 75, ¶ 25). McGowan advised plaintiff that tickets to sporting events were at a premium, and that she should invite a customer and spouse to an event at Shea's Performing Arts Center or to the Buffalo Philharmonic Orchestra. Id. Plaintiff states that McGowan routinely brought his son to sporting events. Id.
In 1997, three CAMs reported to McGowan--plaintiff, Gauchet, and Michael Finnegan (Item 75, ¶ 27). Plaintiff was assigned the same accounts that she had in 1996. She again exceeded her sales objective and was named to the "Masters Club" for sales excellence (Item 66, ¶ 31). In 1997, plaintiff earned $113,180.51, 16 percent more than one male CAM and 64 percent more than the other. Id., ¶ 32. She attended 14 hours of training, while Gauchet received none. Finnegan attended 60 hours of training. Id., ¶ 36. Plaintiff asked to attend a training session in New York City, but her request was denied. Id., ¶ 34. Instead, a decision was made by the General Manager of Branch Operations to send a data communication manager to New York for the training and have that person report back to other interested employees. Id., ¶ 35. Plaintiff states that sometime during 1997, Finnegan commented during a meeting that someone was "so stupid he could screw up a wet dream." (Item 75, ¶ 30). During that same meeting, during a discussion about a potential new hire, Finnegan stated it will "depend on what she looks like." Id.
In 1998, the same three CAMs reported to McGowan as in 1997. Plaintiff was assigned the same accounts as 1997. Her sales objective was set at $2.3 million, which she surpassed with sales of $3.12 million, or 136 percent of her objective (Item, 67, ¶ 40). She earned the highest rating, "meets/exceeds expectations," and earned $133,076, 20.5 percent more than one male CAM and 72 percent more than the other. Id., ¶¶ 40-41. Plaintiff attended 68.75 hours of training. CAM Finnegan attended 26.25 hours, and Gauchet attended 28.25. Id., ¶ 42.
Sometime in 1998 during a telephone conference call, Finnegan asked plaintiff if she was at home because he could "hear the bed springs creaking" (Item 75, ¶ 39). Plaintiff complained to McGowan about the comment, and McGowan stated that he would speak to Finnegan. Id.
In 1999, five CAMs reported to McGowan--plaintiff, Gauchet, Finnegan, Keller, and Timothy Mitten (Item 66, ¶ 43). Plaintiff had the same accounts as in 1997 and 1998, and was reassigned the Erie County government account. Id, ¶ 44. Her sales objective was $1.61 million, and she surpassed that goal with sales of $1.639 million, or 102 percent of her goal. She also received a rating of "meets/exceeds expectations" for 1999. Id., ¶ 45. Plaintiff earned $97,930.00 in 1999 and was the second highest-paid CAM, earning 25.8 percent less than the highest-paid, 25.6 percent more than the third highest-paid, and 26.2 percent more than the fourth highest-paid CAM. Id., ¶ 46. Plaintiff attended 3.5 hours of training, Finnegan attended 39 hours, Keller and Gauchet received none, and Mitten received 66.5 hours of training. Id., ¶ 47. Plaintiff states that McGowan denied her requests for more training opportunities (Item 75, ¶ 47).
In 2000, plaintiff reported to McGowan, along with CAMs Keller, Finnegan, and Mitten. She was assigned a sales objective of $5.37 million (Item 66, ¶ 51). In December 2000, plaintiff asked McGowan to reduce her objective so that she would attain 100 percent of her goal. Id., ¶ 60. Plaintiff's objective was reduced by $680,000.00, she finished at 90 percent of her objective, and she was rated "improvement needed" for the year 2000. Id., ¶¶ 64-65. Mitten and Finnegan received more objective relief than plaintiff (Item 75, ¶ 61). Plaintiff earned $126,077.00 in 2000, 18.9 percent less than one male CAM, 20 percent more than another male CAM, and 63 percent more than the third male CAM (Item 66, ¶ 67). She attended 48 hours of training, while Finnegan attended 32 hours, Mitten attended 36 hours, and Keller attended 31 hours of training. Id., ¶ 68.
Plaintiff states that sometime in 2000, Finnegan told plaintiff that she "look[ed] good" and asked her to sit on his lap (Item 75, ¶ 53). Additionally, at that time, Finnegan began to refer to plaintiff as a "hottie" two or three times per week. Id. On August 29, 2000, plaintiff received an e-mail from McGowan, in which he told her that she was expected to be in the office until 4:30 unless she was signed out with a customer. Id., ¶ 54. Plaintiff admits that McGowan did not raise the issue again, but states that the men in the office ignored the rule. Id., ¶ 55. Around Christmas 2000, during a lunch at the Park Lane Restaurant, Finnegan told plaintiff that he asked the restaurant to give plaintiff whipped cream so she could have a "hot time" with her husband that night. Id., ¶ 63. Plaintiff also states that McGowan "regularly made comments referring to women as objects." Id. In 2000, McGowan authorized the purchase of two tickets to a charity auction benefitting Kenmore Mercy Hospital, and plaintiff was provided two tickets to a Shea's gala event. Id., ¶¶ 56-59.
In 2001, plaintiff reported to McGowan, along with Keller, Mitten, and Gail Williams (Item 66, ¶ 69). In January 2001, plaintiff applied for a Sales Engineer Manager position that was posted on the Verizon website. Plaintiff was not interviewed for the position, and was not hired. Id., ¶ 74. Dan Irving, a Buffalo-based Sales Engineer, was found to be the most qualified person for the position, possessing supervisory experience, technical competency, and telecommunications industry certifications. Id., ¶ 74. Plaintiff admits that Irving possessed supervisory experience at Verizon and industry certifications (Item 75, ¶¶ 75-76). However, she states that several male candidates with little managerial experience and technical competency were interviewed. Id., ¶ 81. The Sales Engineer Manager position was the same level as the CAM position and paid less compensation at the time plaintiff applied (Item 66, ¶ 82).
In early 2001, prior to a meeting at the Jiminy Peak Resort, Finnegan asked plaintiff whether she had a room to herself and, if so, he would come knocking on her door at night (Item 75, ¶ 70). Finnegan also commented that he hoped to see plaintiff in the hot tub without a bathing suit. Id. Finnegan was transferred from the Buffalo office in early 2001, and his comments to plaintiff ceased. Id. On July 10, 2001, plaintiff filed a charge of discrimination with the EEOC, stating that she was the victim of sexual harassment and a hostile work environment, that she had been subjected to different terms and conditions of employment based on her gender, and that she was wrongfully denied a promotion. Id., ¶ 86.
In 2001, plaintiff was assigned a sales objective of $5.1 million (Item 66, ¶ 85). McGowan shifted the Erie County account, except for 911 service, to Gail Williams. Id., ¶ 83. Plaintiff states that she repeatedly asked to be assigned bank accounts, but her requests were denied, and McGowan transferred the M&T Bank account from Keller to Mitten. In September 2001, plaintiff was advised that her performance was substandard (Item 75, ¶ 90). Plaintiff achieved 76 percent of her goal, after it was reduced by $830,000.00. Id., ¶ 100. Plaintiff earned $120,621.75 in 2001, the highest salary among the Buffalo-based CAMs who reported to McGowan. Id., ¶ 101. She attended 28.5 hours of training, while Mitten and Keller each received 20 hours of training. Id., ¶ 103. In September 2001, McGowan authorized the purchase by plaintiff of 10 tickets to the Hope for Tomorrow Foundation fundraiser. Id., ¶89.
In 2002, plaintiff began to report to Donald C. Donohue (Item 66, ¶ 104). Donahue assigned a sales objective to plaintiff of $6.5 million, Keller was assigned $9.9 million, and Mitten was assigned $5.6 million. Id., ¶ 105. Plaintiff states that in February 2002, Sales Engineer Manager Dan Irving walked up to her, looked at her breasts, and said "hooters."
Id., ¶ 107. Additionally, plaintiff stated that in 2002, she was subjected to numerous comments that were sexual in nature and created a hostile work environment. Technical Support Specialist David Winley referred to plaintiff as a "Bond woman" on approximately six occasions and regularly asked about her perfume (Item 75, ¶ 107). He also told plaintiff that women customers would react badly to her because of the way she looked and dressed. Id. Plaintiff also states that Donohue told her to start exercising and to see a personal trainer. Id. Finally, during a meeting in 2002, Sales Engineer Kevin Dean, in response to a customer inquiry whether he worked for plaintiff, told the customer that plaintiff would be working for him before he worked for her. Id. In April 2002, plaintiff, along with the other CAMs, were placed on a counseling plan which set 30-to-45-day sales objectives (Item 66, ¶ 109). Plaintiff successfully completed the plan. Id., ¶ 110.
Plaintiff took a disability leave from May 16, 2002 until June 17, 2002 (Item 66, ¶ 111). Plaintiff later asked that her sales objective be adjusted downward to reflect the time off. Id., ¶ 115. Donohue told her that the Branch Manager would not adjust the objective for a disability leave. Id., ¶ 117. At the end of 2002, plaintiff had met 92.11 percent of her goal and was rated "improvement needed." Id., ¶ 119. Mitten was rated "does not meet position requirements" and was advised to find another position within Verizon. ...