The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Plaintiff, a former employee of Defendant Fort Greene Senior Citizen's Council, Inc. ("Fort Greene"), filed the instant action alleging discrimination on the basis of sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. ("Title VII"), New York State Human Rights Law, Executive Law § 290 et seq. ("NYSHRL"), and New York City Human Rights Law, New York City Administrative Code § 8-101 et seq. ("NYCHRL"). Fort Greene filed the instant motion, seeking summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth more fully below, Fort Greene's motion is granted in its entirety.
I. Plaintiff's Employment History
The following facts are undisputed or, when disputed, it is either so indicated or they are taken in a light most favorable to non-moving Plaintiff. Plaintiff graduated high school in August 2004. (Boop Decl., Ex. A.)*fn1 Plaintiff neither worked nor attended school during the period between high school and her employment with Fort Greene, which commenced in late June 2005. (Sandyford Dep. 18:12-22:14.) Plaintiff learned about an available clerical position at Fort Greene through her mother, Carolyn Nixon ("Nixon"). Nixon knew Merlyn Bruce ("Bruce"), the director of Fort Greene's Christopher Blenman Center ("Center"), who suggested that Plaintiff apply for the position. (Sandyford Dep. 27:6-18.) Bruce interviewed Plaintiff on June 20, 2005, and immediately hired her on a part-time basis, informing her of her duties and her rate of compensation, which was seven dollars an hour. (Sandyford Dep. 28:2-31:19.) After her employment with Fort Greene ended in September 2005, Plaintiff unsuccessfully sought employment with two employers. (Sandyford Dep. 58:6-62:2.) She then began attending school at Kingsborough Community College in February 2007.*fn2 (Sandyford Dep. 61:4-62:6.) She was unemployed from September 2005 until that time.
II. Employment Status at Fort Greene
The parties dispute whether Fort Greene hired Plaintiff on a temporary or permanent basis. Fort Greene contends that it hired Plaintiff as a temporary employee, a substitute for Leishanna Lawrence ("Lawrence"), while Lawrence worked temporarily at another center. In support of this contention, Fort Greene submitted numerous documents indicating Plaintiff's temporary status. On the second page of Plaintiff's employment application, in a section completed by Bruce, Bruce described Plaintiff as the "Sub for Ms. Lawrence during summer months" and Plaintiff's term of employment as running from "06/20/05-09/30/05." (Boop Decl., Ex. C.) The Center's payroll form for the first week of Plaintiff's employment described her as a "Sub Clerical Aide" and indicated that she was "summer help in Ms. Lawrence's absent [sic]." (Boop Decl., Ex. B.) On internal payroll forms, Plaintiff's name is accompanied by an asterisk as are the names of all temporary employees, to indicate her temporary status. (Boop Decl., Ex. J.) Additionally, as indicated on internal payroll forms, Plaintiff was not assigned an employee number. (Id.) Employee numbers are only assigned to permanent employees. (Id.) Notably, Plaintiff signed her time records each week, which indicated that she was "Summer Help" or a "Sub Clerical Aid." (Id.)
Fort Greene also submitted affidavits indicating Plaintiff's temporary status. Three residents of the Center-Gladys Francis, Enid Simmons, and Oscar Roberts-indicated that Plaintiff was introduced to them as Lawrence's temporary replacement. (See generally Francis Aff.; Simmons Aff.; Roberts Aff.; see also Bruce Aff. ¶ 13.) Lawrence indicated that her transfer to another center was temporary, and that she left personal belongings at her desk (the same desk Plaintiff used), while she worked at the other center. Lawrence observed that those items remained unmoved when she visited the Center at various times during the summer and upon her return in September 2005. (See generally Lawrence Aff.) Plaintiff testified that she never saw Lawrence's personal belongings while working at the Center. (Sandyford Dep. 36.)
Plaintiff contends that Fort Greene hired her as a permanent employee. Plaintiff testified that she first learned that she was temporary "summer help" in late September 2005, after complaining to Bruce about Gordon Bayne, another employee at the Center. (Sandyford Dep. 101-02; see also Boop Decl., Ex. U.) Fort Greene disputes this assertion. Bruce stated that on September 5, 2005, she "reminded" Plaintiff that her last day of work at the Center would be September 30, 2005, and informed her that the residents intended to throw her a farewell party. (Bruce Aff. ¶ 17.) Nixon, Plaintiff's mother, testified that Bruce told her that Plaintiff had a permanent position. (Nixon Dep. 9, 15.) Bruce denied telling Nixon that the position was permanent. (Bruce Aff. ¶ 10.)
The parties also dispute whether Bruce indicated in the interview that she intended to hire Plaintiff as a permanent employee. Fort Greene contends that Bruce made no such statements to Plaintiff. According to Fort Greene, under its internal policies, Bruce needed confirmation from Claudette Macey ("Macey"), Fort Greene's Executive Director, to hire permanent employees. (Macey Dep. 15:21-17:18.) Bruce never sought confirmation from Macey and introduced Plaintiff to residents as Lawrence's temporary substitute. (Bruce Aff. ¶¶ 12, 13.) Macey understood that Plaintiff was hired as a temporary employee as Bruce hired her without seeking confirmation. (Macey Dep. 21:4-10, 29:8-12.) Plaintiff contends that Bruce intended to hire her as a permanent employee. Plaintiff testified that Bruce told her that Bruce would need to speak with Macey about the interview. (Sandyford Dep. 30:22-31:31.) Plaintiff did not state that Bruce told her she would be a permanent employee; rather, Plaintiff apparently inferred from this statement that she was a permanent employee. Regardless of the inference that Plaintiff suggests, the evidence demonstrates that Plaintiff was hired immediately and began working at the conclusion of her interview with Bruce. (Sandyford Dep. 29:12-17, 31:6-10.)
It is the alleged unlawful conduct of Gordon Bayne ("Bayne"), another employee at the Center, that is the subject of this suit. The Center employed Bayne as its full-time Program Assistant. (Bayne Dep. 10:22-11:19.) Bayne was sixty-nine at the time the alleged conduct occurred. (Bayne Dep. 7:14-15.) He was married, with two adult children and four grand children.
(Bayne Dep. 8:2-10.) This complaint is the first and only complaint ever filed against Bayne during his lengthy career. (Bayne Dep. 49:5-12; Macey Dep. 49:23-50:2.)
The parties dispute whether Bayne supervised Plaintiff. Fort Greene contends that Bruce, not Bayne, supervised Plaintiff. Several witnesses, most notably, Plaintiff's mother, stated that they understood that Plaintiff reported to Bruce, not Bayne. (Bruce Aff. ¶ 15; Bayne Dep. 22:15-20, 55:18-22; Nixon Dep. 12:6-8.) Plaintiff testified that Bruce, alone, extended her hours on occasion. (Sandyford Dep. 107:18-22.) Bruce interviewed and hired Plaintiff and set her compensation.
Plaintiff contends that both Bruce and Bayne supervised her. Plaintiff testified that in her interview with Bruce, Bruce told Plaintiff that she would assist both Bruce and Bayne with clerical work. (Sandyford Dep. 30:2-7). Bayne provided training to Plaintiff on certain clerical duties. (Bayne Dep. 21:24-22:5, 24:4-18; Nixon Dep. 11:23-12:5.) Plaintiff testified that she reported to Bayne and that he "was usually in charge of most of the work that [she] had to do." (Sandyford Dep. 114:7-14; see also Sandyford Dep. 115:5-10.) It is undisputed that Bayne occasionally assigned tasks to Plaintiff, such as photocopying records. (Bayne Dep. 22:21-24:13; Bruce Aff. ¶ 16.)
IV. Alleged Unlawful Conduct
Some of the alleged unlawful conduct is undisputed. It is undisputed that, for a period of time, Bayne greeted Plaintiff in the morning with a hand shake and then, after time, greeted her by kissing her hand. (Sandyford Dep. 78:25-79:6.) Plaintiff never asked Bayne to stop or told him that it made her uncomfortable. (Sandyford Dep. 79:4-9; Bayne Dep. 25:15-26:3.) Bayne called Plaintiff at her home on two occasions. Both calls occurred during the three-day period between Plaintiff's complaint to Bruce on Thursday, September 15, 2005, and Macey's return to work and initiation of an investigation on Monday, September 19, 2005. The first call occurred on Friday, September 16, 2005. (Bayne Dep. 36:16.) Bruce instructed Plaintiff to remain at home to insure her separation from Bayne prior to Macey's return. Plaintiff received full compensation for that day. Bayne called Plaintiff to find out where she kept a payroll disc. (Sandyford Dep. 95:8-19; Bayne 36:23-37:2.) Plaintiff testified that she did not think that this call constituted harassment. (Sandyford Dep. 109:20-110:3.) Bayne called Plaintiff a second time, on Sunday, September 18, 2005. (Bayne Dep. 36:19-20.) According to Plaintiff, he called "to ask how [she] was doing." (Sandyford Dep. 77:23-24, 96:14-16.) She believed that this call constituted harassment because "he didn't really have any reason to call." (Sandyford Dep. 110:12-13.) Bayne testified that he had placed an order for perfume for his wife with Plaintiff, who sold cosmetics through a catalog, and called Plaintiff to inquire about the status of his order.*fn3 (Bayne Dep. 37:8-38:11.) Bayne did not learn of Plaintiff's complaint against him until Monday, September 19, 2005, when he met with Macey. (Bayne Dep. 42:3-23.)
The parties dispute the remainder of Plaintiff's allegations. Plaintiff testified that she noticed Bayne observing her arrivals and departures at the Center each day through a window in the lunchroom. (Sandyford Dep. 79:24-80:7.) Bayne stated that he routinely observed residents while they were outdoors to insure their safety, which was part of his duties. (Bayne Dep. 28:15-29:6.) Plaintiff testified that: (i) once, when her boyfriend visited her for lunch, Bayne inquired about her visitor, (ii) once Bayne put his arms around her when she was in his office, (iii) once he asked her for a kiss, and (iv) once he ...