The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiff Daisy Early brings this action pursuant to 42 U.S.C. §1981 and the New York State Human Rights Law § 296 against defendants Wyeth Pharmaceuticals, Inc. ("Wyeth"), and two of its individual employees, Walter Wardrop ("Wardrop") and Robert Bracco ("Bracco," and together with Wyeth and Wardrop, collectively, "defendants"). Plaintiff alleges that she suffered adverse employment actions, constructive termination, retaliation for making complaints of discrimination and a hostile work environment due to unlawful discrimination based on her race. Defendants counterclaim, alleging fraud in the inducement and unjust enrichment. Defendants move for summary judgment and plaintiff cross moves for summary judgment on defendants' counterclaims. For the reasons set forth below, the Court grants defendants' motion in its entirety; the Court considers defendants' counterclaims moot and, therefore, does not consider plaintiff's motion for summary judgment.
Unless otherwise indicated, the following facts are undisputed. Wyeth is a company engaged in the development and manufacture of pharmaceutical healthcare and animal products. (Defs. R. 56.1 Stmt. ¶ 1.) Among its various manufacturing sites is a facility located in Pearl River, New York. (Id.) Wyeth's Consumer Health Division is located in its Pearl River facility and is responsible for, among other things, the manufacture of healthcare products such as vitamins and nutritional supplements. (Id. ¶ 2.) The Consumer Health Division is divided into distinct manufacturing areas, known as "trains" or "primary production units." (Id.)
The employment structure at the Consumer Health Division consists of pharmaceutical operators who work directly on the manufacturing lines and report to supervisors, who in turn report to managers. (Id. ¶¶ 3-4.) The pharmaceutical operators are union employees, whose employment is governed by a contract between Wyeth and the International Chemical Workers Union, Local 148. (Id. ¶ 3.)
Plaintiff is an African-American female who worked at Wyeth's Pearl River facility from 1976 until 2005. (Id. ¶¶ 5, 7.) Plaintiff was hired in October 1976 as a night-shift supervisor, during which time she reported to a variety of supervisors due to high turnover in supervisory positions. (Id. ¶¶ 5-6.) Plaintiff became a pharmaceutical operator in 1982 and continued to work in that capacity until 2005, when she discontinued her employment with Wyeth. (Id. ¶ 7.) While working as a pharmaceutical operator, plaintiff again reported to various supervisors, some of whom plaintiff recalled were African American. (Id. ¶ 8; Early Aff. ¶ 2).
Wardrop was employed as a production supervisor in the Consumer Health Division from 1997 to May 2000. (Defs. R. 56.1 Stmt. ¶ 9.) The parties dispute the employment relationship between plaintiff and Wardrop. Defendants contend that Wardrop worked on a different shift than plaintiff did and, thus, did not directly supervise plaintiff unless she worked overtime on the shift that Wardrop supervised. (Id. ¶¶ 9-10.) Defendants further contend that there is no evidence that plaintiff did in fact work overtime during Wardrop's shift. (Defs. R. 56.1 Reply ¶ 10.) Plaintiff counters that Wardrop directly supervised her three-to-eleven overtime shift from 1997 through May 2000 and, further, that in January 2004 Wardrop was transferred to a supervisory position on plaintiff's train. (Pl. R. 56.1 Counterstmt. ¶ 10.)
Bracco served as a "Department Head and/or an Associate Director" in the Consumer Health Division from June 1999 to November 2003. (Defs. R. 56.1 Stmt. ¶ 11.) The parties agree that Bracco did not directly supervise plaintiff at any time; however, plaintiff adds that as Department Head, all supervisors reported to Bracco. (Id. ¶ 12; Pl. R. 56.1 Counterstmt. ¶ 12.)
II. Employment Contract and Grievance Procedures
As a union employee, plaintiff's terms of employment were governed by the union contract, which plaintiff read and with which plaintiff familiarized herself. (Defs. R. 561. Stmt. ¶¶ 13-14 (citing McQuade Decl., Ex. 1 at 30).) Plaintiff notes, however, that she did not understand all of the contractual language and that she was not given new copies of the contract as it was renegotiated over the years. (Pl. R. 56.1 Counterstmt. ¶ 14.) The union contract contained a formal grievance procedure that included the right to have a grievance adjusted without the intervention of a union representative. (Defs. R. 56.1 Stmt. ¶¶ 15-16.) Plaintiff does not dispute the existence of this clause, however, she maintains that she understood that the proper grievance procedure was to report her complaint to her union representative, who would resolve her complaint and inform her of any further steps that might be necessary. (Pl. R. 56.1 Counterstmt. ¶ 16.)
III. Plaintiff's August 1989 Suspension ("Event 1")
In August 1989, plaintiff was engaged in an altercation with her supervisor, Raymond Kelly. (Defs. R. 56.1 Stmt. ¶ 18.) Plaintiff states that the altercation began because she left her area to go to the bathroom. (Pl. R. 56.1 Counterstmt. ¶ 18.) Plaintiff states that Kelly began "yelling and pointing at Plaintiff closely to her face." (Id. ¶ 18.) Defendants claim that plaintiff responded by telling Kelly to "get the hell out of [her] face." (Defs. R. 56.1 Stmt. ¶ 18.) Plaintiff states that she "told Kelly to leave her alone." (Pl. R. 56.1 Counterstmt. ¶ 18.) Plaintiff was suspended after a full hearing with union representation.*fn1 (Defs. R. 56.1 Stmt. ¶ 19.)
At the time of the incident, plaintiff did not state that she believed the disciplinary measures to be discriminatory. (Id. ¶ 20; Pl. R. 56.1 Counterstmt. ¶ 20.) Plaintiff notes, however, that a white male employee left his work area to eat in the canteen and was not admonished by Kelly. (Pl. R. 56.1 Counterstmt. ¶ 21.)
IV. Plaintiff's November 1990 Written Warning ("Event 2")
On November 2, 1990, plaintiff failed to follow established manufacturing procedures while mixing a solution. (Id. ¶ 22; Defs. R. 56.1 Stmt. ¶ 22.) Plaintiff was responsible for signing the product's batch record, thereby certifying that the product had been made properly. (Defs. R. Stmt. ¶ 27.) Butch Babcock, her supervisor at that time, issued a "written interview record," which was a written warning regarding the incident. (Id. ¶ 23.) Plaintiff signed the document, thereby expressing her assent to its content. (Id. ¶ 24.) The document provided space in which plaintiff could write a statement of disagreement, which plaintiff declined to do.*fn2 (Id. ¶ 25.)
Plaintiff believes that Jim Tanner, a white male, and others involved in the mixing of the batch at issue received no written warnings. (Pl. R. 56.1 Counterstmt. ¶ 26.) Plaintiff states that she did complain at the time that she was being treated unfairly, but did not specifically refer to race discrimination. (Id. ¶ 29.)
Defendants contend that plaintiff played a different role than that of Tanner and other product mixers because, by signing the batch record, she was ultimately responsible for any errors therein. (Defs. R. 56.1 Stmt. ¶ 27.) Plaintiff does not dispute this, but adds that, in signing the batch record, she relied on the accurate performance of Tanner and other workers. (Pl. R. 56.1 Counterstmt. ¶ 27.)
The written warning did not directly affect plaintiff's employment. (Defs. R. 56.1 Stmt. ¶ 30.) However, plaintiff notes that it contributed to a hostile work environment, leading to emotional instability and stress. (Pl. R. 56.1 Counterstmt. ¶ 30.)
V. Plaintiff's September 1994 Suspension ("Event 3")
In September 1994, two security guards claimed to have observed plaintiff sleeping while at work. (Defs. R. 56.1 Stmt. ¶ 31.) Plaintiff contends that "someone called the guards to report her," but that she does not know who. (Pl. R. 56.1 Counterstmt. ¶ 32.) Following a hearing with union representation, plaintiff was suspended for three days. (Defs. R. 56.1 Stmt. ¶ 31.) Plaintiff stated that Judy Sperr, the head of the department, defended plaintiff, opposed the suspension and assisted plaintiff in getting the suspension lifted. (Id. ¶ 33.)
Plaintiff maintains that she was not in fact asleep and she refused to sign the interview record, which stated that she was asleep while working. (Pl. R. 56.1 Counterstmt. ¶ 32.1.) According to the suspension report, plaintiff stated that "she leaned on her arm and briefly fell asleep," further explaining that "she was undergoing treatment for asthma and had been using two medications." (McQuade Decl., Ex.1 at Ex. 12.)
Plaintiff asserts that she observed a number of white workers sleeping on the job and, to her knowledge, they were not punished. (Pl. R. 56.1 Counterstmt. ¶¶ 34-35.) Plaintiff concedes, however, that she did not know if they were on a break or had already punched out. (McQuade Decl., Ex. 1 at 105-06.) During her deposition, plaintiff also stated that, at the time of the incident, "my department head fought for me. I don't think she discriminated against me. . . . [i]n 1994, no, I did not feel discriminated against." (Id. at 107.)
VI. Plaintiff's May 2000 Written Interview Record ("Event 4")
In May 2000, plaintiff became involved in an altercation with her then supervisor, Renardz Sylvain, because he instructed her to go home after one shift, while she had expected to work a double shift. (Pl. R. 56.1 Counterstmt. ¶ 36.) Plaintiff states that Sylvain has done the same thing to other people. (Morelli Decl. Ex. A at 120.) Plaintiff admits that she cursed at Sylvain and, in her statement at that time, apologized to the department. (Id. at 118-19.) Another supervisor, Todd Davenport, issued a written interview record in connection with this incident. (Defs. R. 56.1 Stmt. ¶ 37.) Plaintiff contends that Bracco instructed Davenport to issue the written interview record, however, she has no first-hand knowledge of that allegation. (Morelli Decl., Ex. A at 124.)
VII. Plaintiff's October 2000 Verbal Counseling ("Event 5")
In October 2000, plaintiff failed to follow proper operating procedures for checking in material prior to processing. (Defs. R. 56.1 Stmt. ¶ 43; McQuade Decl., Ex. 1 at Ex. 17.) Plaintiff's supervisor, Davenport, issued a "Formal Verbal Counseling" to plaintiff and plaintiff signed the document without providing any written comment. (Defs. R. 56.1 Stmt. ¶ 43; McQuade Decl., Ex. 1 at Ex. 17.) The Formal Verbal Counseling document notes that plaintiff's "job performance has been very well [sic] over the last few months and management believes this deviation is an anomaly." (McQuade Decl., Ex. 1 at Ex. 17.)
While the verbal counseling came from Davenport, plaintiff believes that Bracco told Davenport to issue the verbal counseling, pointing out that Davenport and Bracco met to discuss the incident and that the decision to write up an employee always came from Bracco. (Pl. R. 56.1 Counterstmt. ¶ 45.) Defendants counter that plaintiff has no first-hand knowledge of Bracco's alleged involvement and point to her deposition which states, in pertinent part:
Q: How do you know that Mr. Bracco had any involvement with this?
A: I don't know. But any time a supervisor wrote you up, it came from Bob Bracco.
Q: What's your basis for saying that? Do you have any basis for saying that Mr. Bracco had any involvement with this? This performance counseling document was signed and issued by Mr. Davenport.
A: He had to get the okay in order to do that from Mr. Bracco.
A: No, Sir. (McQuade Decl., Ex. 1 at 129.)
The disciplinary action did not directly affect plaintiff's employment. (Defs. R. 56.1 Stmt. ¶ 46.) However, plaintiff notes that it contributed to a hostile work environment, leading to emotional instability and stress. (Pl. R. 56.1 Counterstmt. ¶ 30.)
VIII. Plaintiff's March 2001 Requests for Overtime Shift Change ("Event 6" and "Event 7")
For a period of time beginning in March 2001, Wyeth adopted a policy that required all pharmaceutical operators to work overtime on Saturdays. (Defs. R. 56.1 Stmt. ¶ 47.) Under that policy, on Saturdays employees would work the same shift to which they were assigned during the week. (Id.) Therefore, plaintiff was assigned to the day shift on Saturday because she worked the day shift during the week. (Id. ¶ 48.) Plaintiff submitted directly to Bracco a request to switch the first Saturday shift that she was to work with that of another employee so that plaintiff could work the night shift. (Id. ¶¶ 49, 52; Pl. R. 56.1 Counterstmt. ¶ 49.) Plaintiff made this request based on the recommendation of Social Services that she become involved in her granddaughter's activities, such as basketball games, which took place on Saturdays.*fn3 (Pl. R. 56.1 Counterstmt. ¶ 51.) Bracco granted this request. (Defs. R. 56.1 Stmt. ¶ 52.)
Sylvain, an African American, supervised plaintiff's Saturday night shift.*fn4 (Defs. R. 56.1 Stmt. ¶ 54.) Plaintiff had expected to work "Train 2" when she arrived at the Saturday night shift because that was the train to which she was usually assigned. (Pl. R. 56.1 Counterstmt. ¶ 52.) Upon arriving at work, Sylvain instead assigned plaintiff to work "Train 1." (Id.) Plaintiff states that this action was improper because employees with the most seniority, as plaintiff had, were generally not reassigned to different trains. (Id. ¶¶ 52-53.) Plaintiff adds that Bracco, in this incident, did not act improperly towards her, but rather accommodated her needs by changing her shift. (Id. at 53.)
After supervising plaintiff's Saturday night shift, Sylvain complained to Bracco that working with plaintiff did not go well and Sylvain requested that he and plaintiff not work together again.
(Defs. R. 56.1 Stmt. ¶ 55.) Plaintiff contends that what Bracco called plaintiff's "harassment" of Sylvain was in fact plaintiff's attempt to notify Sylvain of metal and string in the product that she was working on. (McQuade Decl., Ex. 1 at 141.)
The following Saturday in March 2001, plaintiff again requested to change from the day shift to the night shift. (Defs. R. 56.1 Stmt. ¶ 56.) The second request was denied.*fn5 (Id.) After learning that her request had been denied, plaintiff called union shop steward Jerry Gass and reported that she had been treated unfairly, however, plaintiff did not claim that she had been discriminated against based on her race. (Id. ¶ 57.) Plaintiff also called union representative Jeff Gathers, and together, plaintiff and Gathers spoke to Bracco about the denial of plaintiff's second request for a shift change. (Id. ¶ 58.) Plaintiff contends that, during the course of the meeting, Bracco changed the reason for denying plaintiff's request from "poor work performance" to "harass[ing] Sylvain during the previous weekend shift they worked together." (Pl. R. 56.1 Counterstmt. ¶ 59 (citing Morelli Decl., Ex. A at 155-56).) Defendants counter that Bracco did not change his reason for the denial, but rather initially referred to poor performance and then, by way of clarification, elaborated that Sylvain had reported that plaintiff had harassed him. (Defs. R. 56.1 Reply ¶ 59 ...