The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Arlene Krikelis ("Plaintiff") brings this case complaining of "discrimination based on sex and disability and retaliation for resisting illegal discrimination" in connection with her employment by Defendant Vassar College ("Vassar") at a campus dining facility managed by Defendant Aramark Campus Services ("Aramark"). (Compl. ¶ 1.) The Complaint seeks relief against Vassar pursuant to: (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (2) the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and (3) New York Human Rights Law § 296. The Complaint also seeks to hold Aramark liable under the NYHRL as an aider and abettor of Plaintiff's employer, Vassar. Defendants' joint motion seeks summary judgment on four issues: (1) Plaintiff's disability discrimination claims; (2) Plaintiff's gender discrimination claim based on her pay as a cook; (3) Plaintiff's gender-based harassment claim; and (4) Plaintiff's retaliation claim. For the reasons stated herein, Defendants' Motion is GRANTED IN PART and DENIED IN PART.
Plaintiff has been employed at Vassar's campus dining facilities since 1987. (Defs.' Rule 56.1 Statement of Material Undisputed Facts ("Defs.' 56.1") ¶ 1.) Throughout her employment, Plaintiff has worked principally at Vassar's main dining hall, the All Campus Dining Center ("ACDC"). (Id. ¶ 4.) She was initially hired as a Kitchen Worker, the most junior of five levels of ACDC food service workers, and was sequentially promoted to Cook, the third or intermediate of the five levels. (Id. ¶¶ 3-4.) Following her promotion, Plaintiff was the only woman at her level of seniority or higher (Plaintiff was the only female Cook; there were no female Assistant Chefs, the level of seniority between Cook and Head Chef; and the Head Chef was and had always been a male). (Id. ¶ 2.)*fn1
Vassar contracts with Aramark to provide food services on campus, and Aramark's managers supervise Vassar employees working in the ACDC. (Id. ¶ 4.) During the period of events giving rise to this case, Aramark's managers included Senior Director of Dining Maureen King ("King"), Associate Food Services Director Bruce Harms ("Harms"), and Assistant Director Terri Bettencourt ("Bettencourt"). (Id. ¶ 5.) In addition, Diane Dalton ("Dalton") served as Assistant Director prior to 2004, when she became Production Manager, and Anna Reeves ("Reeves") was the Employee Manager. (Id.) Donald Nervik ("Nervik") has been Plaintiff's co-worker as a Vassar dining services employee since she started her job in 1987. (Id. ¶ 18).
Plaintiff has been diabetic for approximately eleven to twelve years. (Defs.' 56.1 ¶ 51.) By medication and a managed eating schedule, Plaintiff generally is able to control her blood sugar with only occasional problems. (Id. ¶¶ 52-53; Pl.'s Response in Opp. to Def.'s Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 52-53.) In the spring of 2004, however, Plaintiff's issues with low blood sugar increased and her physician advised her that she was taking too much medicine and was not properly spacing her meals. (Defs.' 56.1 ¶ 54.)
On September 2, 2004, Plaintiff received a doctor's note on a prescription pad stating: "Arlene is being treated for diabetes[;] she has been advised to take dinner at 6PM." (Pl.'s Attorney Affirmation ("Pl.'s Atty. Aff."), Ex. 2.) According to Plaintiff, she gave a copy of this doctor's note to Harms sometime before September 7, 2004, and she again gave copies to Harms and to King in November 2004. (Pl.'s 56.1 ¶ 55.) Thereafter, King told Plaintiff that, when she needed food, she could go into a corner to eat something. (Id.)
At oral argument, Plaintiff's counsel clarified the relevant factual issue in Plaintiff having been allowed only a "quick bite" when she believed that she required a "full break" to eat a "balanced meal." The Parties agree that in the fall of 2004, Plaintiff was given special permission to eat on the line when necessary; Plaintiff was not, however, given leave to take a "full break" at 6 p.m. by going into another room. The distinction, explained Plaintiff's counsel, was that a "full break" would entail having another employee cover Plaintiff's work station so that Plaintiff was not dependent on a break in student customer traffic to take her "quick bite" of food.
In August 2006, Aramark managers granted Plaintiff the 6 p.m. meal break she sought. (Pl.'s 56.1 ¶ 55.)
ii. Plaintiff's Title and Compensation History
Plaintiff was promoted to Cook in October 2001 (Pl.'s Statement Pursuant to Local Rule 56.1 ¶ 1.) Since the fall of 1999, Defendants have had in place a "Code of Conduct" stating that employees were required to submit accurate time cards on a daily basis and that the employee "will not be paid for time worked outside of your schedule or classification unless your time card has been initialed by the manager on duty." (Defs.' 56.1 ¶ 78.)
In approximately August 2004, Plaintiff learned from her predecessor in the Cook position, Daniel Burns ("Burns"), that Burns had received "out-of-class" pay (that is, pay at the rate of Assistant Chef) when he had held the Cook position. (Id. ¶ 76.) On the basis of this conversation, Plaintiff believed that she should be entitled to the same higher compensation and raised the issue with Dalton, then the production manager, who told Plaintiff she would talk with King. (Id. ¶ 77.) Plaintiff also raised the issue with Harms. (Id.)
King investigated the issue. (Id. ¶¶ 79-83.) She determined that Burns had marked on his time cards for the relevant periods that he had performed out-of-class work and that each request for out-of-class pay had been authorized by a manager. (Id. ¶ 80.) She also determined that Plaintiff's time cards showed that when Plaintiff worked as a Cook but covered for an Assistant Chef, she followed the same procedure for requesting out-of-class pay by noting it on her time card and obtaining managerial approval. (Id. ¶ 81.) Plaintiff accepts all this, but contends that none of the Aramark managers made her aware that she could obtain Assistant Chef pay for performance of some of her regular assigned job duties. (Pl.'s 56.1 ¶ 81.) Put differently, the material fact claimed by Plaintiff revolves around management instruction as to when she could request (and record on her time card) out-of-class pay, not around whether she was paid out-of-class on the occasions that she did request it and note it on her timecard.
iii. Plaintiff's Relationship with Donald Nervik
Plaintiff has known Nervik, a fellow Vassar dining services employee, since she became a Vassar employee. (Defs.' 56.1 ¶ 18.) During the 1990s, they were collegial as co-workers. (Id. ¶ 20; Pl.'s 56.1 ¶ 37.) In the course of their friendship, Plaintiff allowed Nervik to put his arm around her shoulders and she sometimes allowed other male employees to hug her. (Defs.' 56.1 ¶ 21.)
Plaintiff alleges that her relationship with Nervik deteriorated in 2003 when he allegedly began to verbally and physically assault her. (Id. ¶ 36.) Plaintiff asserts that Nervik was going through a divorce at this time, and his conduct toward her and toward other women changed. (Pl.'s 56.1 ¶ 37.) Plaintiff acknowledges that the alleged harassment was not directed at her in a sexual manner, but maintains that it was on account of her gender. (Defs.' 56.1 ¶ 36, 48; Pl.'s 56.1. ¶ 48)
For example, Plaintiff has offered deposition testimony of Joseph Symkiewicz, an Assistant Chef at ACDC, stating that he observed Nervik intimidate Plaintiff, stand over her, and invade her space; yell at Plaintiff; and tell her: "You are the woman and I am the man and you will do as I say." (Pl.'s 56.1 ¶ 39; Pl.'s Atty. Aff., Ex. 5 ("Szymkiewicz Aff.") ¶ 10.)
With respect to physical harassment, Plaintiff alleges that Nervik put his arm around her "very few times" in 2003 and that, when he did, Plaintiff moved away from him and said she did not want to be hugged. (Defs.' 56.1 ¶ 42.) Plaintiff has also alleged that Nervik interfered with her work by removing her recipes, and that Nervik asked Plaintiff to spank him on more than one occasion (although she admits he may have been joking in these statements). (Id. ¶¶ 46-47.)
iv. Reaction of Aramark and Management
According to Plaintiff, she repeatedly complained about Nervik's conduct in 2003 to Dalton, Harms, and King, but did not make written complaints at that time. (Defs.' 56.1 ¶ 49.) When she complained, the Aramark managers told her that they would respond to it; afterward, the abuse would pause temporarily before resuming. (Id. ¶ 50.)
Plaintiff has introduced evidence showing that Aramark managers had direct and substantial knowledge of Nervik's misconduct toward her. For example, Szymkiewicz has stated in an affidavit that "Nervik's misconduct toward plaintiff was common knowledge in the kitchen and all the Aramark managers, including Maureen King, Bruce Harms and Diane Dalton, were aware of it." (Szymkiewicz Aff. ¶ 7.) Cathy Bradford, another ACDC employee, stated in an affidavit that "[e]veryone in the ...