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McGullam v. Cedar Graphics

August 20, 2008

DONNA L. MCGULLAM, PLAINTIFF,
v.
CEDAR GRAPHICS, INC., DEFENDANT.



The opinion of the court was delivered by: Denis R. Hurley, United States District Judge

MEMORANDUM AND ORDER

HURLEY, Senior District Judge

Plaintiff Donna L. McGullam ("Plaintiff") filed the present action against defendant Cedar Graphics, Inc. ("Defendant") alleging that she was discriminated against on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Defendant moves for summary judgment under Federal Rule of Civil Procedure ("Rule") 56. Plaintiff has not filed any opposition papers. For the reasons stated below, Defendant's motion is granted.*fn1

BACKGROUND

The following facts, which are supported by the record, will be deemed admitted. Defendant is a full-service printing company. Michael Clark ("Clark") is the President. In April 1996, Plaintiff was hired by Defendant as a Production Assistant. She later became a Customer Service Representative within Defendant's Production Department. The vast majority of Plaintiff's claims arise out of her employment in the Production Department, during which time Plaintiff claims she was subjected to a hostile work environment.

In September 1999, Plaintiff requested and received a transfer to Defendant's Estimating Department. At her deposition, Plaintiff testified that she transferred because the new position "offered new growth within the company" (Affirmation of Mark S. Mancher, dated Nov. 9, 2007, Ex. 3 ("Pl.'s Dep.") at 156), and she would be "learning a new skill." (Id. at 101.) She further testified that she did not express to Clark or anyone else that she was requesting a transfer in order to remove herself from an allegedly hostile work environment. (Id. at 110-11.) Because Plaintiff had no experience working as an Estimator, her salary was reduced from $1200 per week to $1050 per week.

At her deposition, Plaintiff admitted that after the transfer, the environment was "better" in that she was "not exposed to that which went on in the production department on a daily basis." (Id. at 127.) Her journal entries*fn2 confirm this as Plaintiff noted that "[w]hile working in the estimating department I was away from the majority of the harassment, hostility and aggravation." (Affirmation of Mark S. Mancher, dated Nov. 9, 2007, Ex. 7 ("Journal") at 22.) There is only one incident reflected in Plaintiff's deposition, as well as her journal, after the transfer. She testified that after the transfer, she had to interact with production personnel on a regular frequency and that there was "a salesman [on the other side of the cubicles] who was quite vocal about very derogatory things about women." (Pl.'s Dep. at 128.) Similarly, her journal reflects the following:

On the opposite side of my cubic[le] wall was a salesman [who] carried on numerous lengthy conversations with male buddies and made frequent comments about women such as referring to them as "chickies". He also remarked that "[i]f it wasn't going to be a sleep-over, she wasn't worth the trip", regarding a woman friend that he was involved with . . . . This was a thoroughly demeaning comment regarding women. (Journal at 22.)

On April 10, 2000, Defendant laid off a male Estimator in Plaintiff's department. In April 2000, Plaintiff's journal reflects that she "was concerned as to the stability of the company." (Pl.'s Journal at 3.) That month, Plaintiff spoke to Clark about her concerns and inquired as to whether the layoffs would affect the department she was working in and whether they would affect her personally. (Pl.'s Dep. at 141.) According to Plaintiff's deposition testimony, Clark told her that the layoffs would not impact Plaintiff's position. (Id. at 143.) Nevertheless, on September 12, 2000, Plaintiff was laid off. Before leaving the building,

Plaintiff met with Clark, at which time she asked Clark why she was being laid off.*fn3 Clark explained that the reason for the layoff was strictly economic. Plaintiff never mentioned sex discrimination, sex harassment or retaliation during her conversation with Clark. Instead, she raised her seniority and productivity relative to other Estimators.

In addition to the lay off of two Estimators (Plaintiff in September 2000 and one male Estimator in April 2000), an additional two Estimators from the same department were laid off in 2001, both female. Ultimately, by mid-2001, Defendant employed only one Estimator, Peter Kremler. Mr. Kremler was hired on December 1, 1995, before Plaintiff was hired on April 15, 1996. Mr. Kremler was later replaced by Karl Riemenschneider, who is the only Estimator employed by Defendant today.

On July 3, 2001, Plaintiff filed a complaint with the New York State Division of Human Rights (the "NYSDHR") and the Equal Employment Opportunity Commission (the "EEOC") charging Defendant with unlawful discrimination. After an investigation, the NYSDHR issued a finding of no probable cause on February 9, 2004, and dismissed her complaint. Thereafter, on April 2, 2004, the EEOC adopted the findings of the NYSDHR, dismissed the complaint, and issued a right-to-sue letter. Plaintiff initiated the instant lawsuit on July 6, 2004.

Plaintiff's pro se Complaint alleges as follows:

While working for the defendant, I, a female employee, was regularly exposed to sexual comments, sexually explicit materials, sexual jokes, hostile [and] vulgar language, sexual in[n]uendos and gross behavior, primarily by male co-workers, including management. Continual complaints to management were fruitless.

I transferred to an alternate dept in the Fall of [19]99, to be further away from the bulk of the problem, though it didn't end completely. [T]his was at the expense of a substantial pay cut.

Less than one year later, I was terminated. I believe I was chosen because I had complained in the past. I was told there were financial setbacks, but two days later, a male worker was replacing me in my duties -- he was a rehire. (Compl. ¶ 8.) The Complaint asserts claims based upon her termination, "[u]nequal terms and conditions of . . . employment," and a "sexually hostile environment." (Compl. ¶ 4.) Although Plaintiff alleges that her claims are brought pursuant to Title ...


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