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Chenette v. Kenneth Cole Productions

August 6, 2008


The opinion of the court was delivered by: Denise Cote, District Judge


Defendant Kenneth Cole Productions ("KCP") moves for summary judgment in this employment discrimination action brought by Min Kou Chenette ("Chenette"), a former employee. Chenette alleges that KCP discriminated against her on the basis of her sex, race, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), as well as various provisions of the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL).*fn1 For the following reasons, the defendant's motion for summary judgment is granted as to Chenette's claims of discriminatory failure to promote, constructive discharge, and hostile work environment, but it is denied in part as to her retaliation claims.


Unless otherwise noted, the following facts are either undisputed, taken from the plaintiff's deposition,*fn2 or taken in the light most favorable to the plaintiff. Chenette immigrated to the United States from South Korea as a teenager. While attending college, she began her employment at KCP as an intern in the Retail Planning Department during the fall semester of 2002. In the spring semester of 2003, Chenette worked as an intern in KCP's International Licensing Department. That summer, KCP hired Chenette to work full-time as an International Licensing Coordinator in its International Licensing Department, a position she held until her resignation from KCP in August 2004. Throughout this time, Chenette was working toward obtaining a college degree, but she had not yet graduated by the time of her resignation.

Throughout the time of Chenette's employment at KCP, the defendant maintained written antidiscrimination policies and reporting procedures, which it included in the Employee Handbook and Code of Conduct. Chenette was provided with a copy of the Employee Handbook when she began her full-time employment at KCP. She signed an acknowledgment form stating that she had received and reviewed the Employee Handbook. KCP's reporting procedures provided:

Associates should immediately report any suspected violation of the law or a Company policy in writing to their supervisor. If that action is not practical, or does not correct the perceived violations, associates should contact the appropriate Director of Human Resources or another appropriate executive in the Human Resources Department. (emphasis added).

With the exception of the Department's Vice President, Vince Montemarano,*fn3 all members of KCP's International Licensing Department during Chenette's tenure were women. The employees sometimes socialized with one another outside of the workplace, and the work environment within the department was undoubtedly casual. Conversation among the employees contained sexual and racial content, and topics of discussion included, for example, bras and vibrators. Chenette alleges that on one occasion, Mr. Montemarano, who was also Chenette's supervisor, made a comment suggesting sexual conduct between young brothers. Chenette also alleges that Rachel Packer, a KCP Licensing Coordinator, would imitate how Koreans spoke and made derogatory statements about Korean licensees who fell asleep in meetings. Apart from these statements and those described below, however, the racially charged comments to which Chenette cites referred to African Americans and Hispanics.

In March 2004, when she had been employed by KCP for approximately seven months, Chenette discussed with Mr. Montemarano her interest in being considered for the position of Associate Manager as "the next step" in her employment. On May 17, KCP announced that it had hired Dana Boehmcke to be the Associate Manager for Asia and that Ms. Packer had been promoted to the Associate Manager position for Europe, Canada, and the Middle East. Both Ms. Boehmcke and Ms. Packer are Caucasian.

On May 28, 2004, Cyndi Shapiro, a female employee from another department, kissed Chenette on the lips. Chenette described in her Complaint that Ms. Shapiro was apologizing for having been short with Chenette on the telephone the prior day. In her deposition, however, Chenette testified that she did not know what motivated Ms. Shapiro to kiss her but admitted that she did not believe that her gender or race had played a role. Following the incident, Chenette asked Renee Kim, an employee in the Human Resources Department ("HR"), whether it was appropriate for one employee to kiss her co-worker. Ms. Kim testified at her deposition -- to which Chenette cites with respect to this incident in her affidavit -- that this conversation occurred as the two, along with another co-worker, were waiting for an elevator and that Chenette and her co-worker "were laughing throughout." On June 1, 2004, Chenette reported the kiss to Mr. Montemarano, who, according to Chenette, told her not to report the incident to HR.*fn4 On June 15, 2004, Mr. Montemarano gave Chenette a midyear review. The review stated that Chenette's overall performance was "unacceptable" and that "[her] attitude is having a negative effect on [the] international department." No other member of Chenette's department was given a midyear review.

On June 28, 2004, Chenette complained to Ms. Kim about the midyear review that she had received and about the fact that Ms. Packer had been promoted. In making this complaint, Chenette referred to statements made by Ms. Packer in which she called Chenette a "crazy Korean" and commented on Chenette's large chest size in front of Mr. Montemarano. Ms. Kim informed her supervisor in HR of Chenette's complaint. The supervisor and Ms. Kim set up a meeting for June 30, but Chenette did not attend and, instead, emailed Ms. Kim stating that she needed to reschedule. Chenette ultimately attended another meeting that Ms. Kim set up later that same day, this time with Ms. Kim and the head of the International Licensing Department, Ellen Rodriguez. At the meeting, Ms. Rodriguez apologized for any offensive remarks that had been made and told Chenette that her midyear review was meant only to steer Chenette's career at KCP back on course. Ms. Rodriguez held a meeting on July 12 with the International Licensing Department to discuss proper workplace conduct. No offensive activity took place after this meeting. Indeed, Chenette testified at her deposition that she was not subjected to any comments because of her sex, race, or national origin after June 28, 2004, the date on which she complained to Ms. Kim.

On July 12 and July 19, Chenette's attorney sent letters to KCP's General Counsel alleging workplace discrimination and harassment. The Legal Department commenced an investigation, which involved interviewing various employees including, ultimately, Chenette. Chenette attended her interview in late August with her attorney but she left before its completion and did not return to work. Partway through the interview, KCP had excluded Chenette's attorney from the room after he repeatedly protested Chenette's treatment and questioning. The following day, on August 25, 2004, Chenette resigned from her position at KCP. By letter dated August 26, 2004, KCP asked Chenette to reconsider her decision to resign. Chenette did not respond to KCP's letter, and this lawsuit followed.


Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). In a discrimination case such as this one, the defendant "will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006). The ultimate question is whether the evidence, viewed in the light most favorable to the plaintiff, would support a finding "that the defendant intentionally discriminated against the plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Because direct evidence of discriminatory intent "will only rarely be available, . . . affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (citation omitted). "Even in the discrimination context, however, a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Id.

Chenette's claims in this lawsuit may be reduced to four categories: failure to promote, retaliation, constructive discharge, and hostile work environment. Each of these categories is addressed in turn.*fn5

I. Failure To Promote

Chenette contends that KCP discriminated against her on the basis of her race and national origin when it failed to promote her in May 2004 to the position of Associate Manager for Asia or any other geographic region. The defendant argues that Chenette did not apply for the Associate Manager position and that, in any event, she ...

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