The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Now before the Court is Defendants' motion for summary judgment. (Docket No. [#16]). For the reasons that follow, Defendant's application is granted and this action is dismissed.
In 1997, Plaintiff began working for Defendant as an Intercompany Accounting Manager, a pay-grade level 10 position with an annual salary of approximately $55,000. (Coffed Aff. ¶ ¶ 10-11). In December 1998 Plaintiff was promoted to pay grade 11. Id. at ¶ 17. In December 1999 Plaintiff left work for two months on maternity leave. Id. at ¶ 13. Upon returning to work, Plaintiff was placed in the Consolidations Group, which was a lateral move from the Intercompany Accounting Manager's position. Id. at ¶ ¶ 14, 16. After working in the Consolidations Group for a time, Plaintiff approached her supervisor and stated that she was "not being fully utilized." Id. at ¶ 19. As a result, Plaintiff was given the title Acting Consolidation Manager, and she assumed duties that were previously performed by a male, Chris Ott ("Ott"), who was a "Band B manager." Id. According to Plaintiff, "Band B managers are bonus level managers who have a different pay scale, become eligible for stock options and other such bonuses including week long vacations and have an actual office. It is [sic] generally starts after grade level 12." Id. at ¶ 20. Plaintiff states, though, that promotion to B Band was "not automatic" and was, instead, "very selective." (Coffed Dep. At 16). In any event, after Plaintiff assumed Ott's duties, she was not promoted to Band B, and remained at pay grade 11.
In November 2000, Plaintiff told her supervisor that she deserved a promotion to pay grade 12. Plaintiff's supervisor responded that he wanted to wait, because he was working on giving Plaintiff a "double promotion," meaning that she would both be promoted to pay grade 12 and made a "B Band." (Coffed Aff. at ¶ 22).*fn1 The supervisor indicated that Plaintiff was "on a B Band ready list," and that "when a position came up that [she] was qualified for, [she] would be approached for that particular position." Id. at ¶ 24. At that time, Plaintiff was not aware of any B Band positions that "suited [her] background." Id. at ¶ 27.
In January 2001, Defendant cut various positions, including those of thirteen B Band managers. (Coffed Aff. at ¶ 23). Nevertheless, Plaintiff was promoted to pay grade twelve, and remained in her same position. Id. at ¶ 23. Additionally, Plaintiff's supervisor told her that she would be notified if B Band position for which she was qualified became available. Id. at ¶ ¶ 24-25.
Sometime in 2002, Plaintiff sought a transfer to another position, to "gain more varied experience." Id. at ¶ 30. Consequently, Plaintiff became a Senior Accountant. Id. at ¶ 34. In April 2002, Plaintiff asked that she be allowed to work part-time, thirty-two hours per week, so that she could "maintain a good work/life balance with [her] two small children." Id. at ¶ 36. Defendant granted Plaintiff's request to reduce her schedule to thirty-two hours per week. Later in 2002, Defendant cut additional jobs, and Plaintiff was given the duties of a woman whose employment was terminated. Id. at ¶ ¶ 37-38. In that regard, Plaintiff kept the same job title, assumed the duties of the terminated employee, and kept two of the three duties that she had previously performed. Id. at ¶ ¶ 38-39. According to Plaintiff, this resulted in her having a full-time volume of work, even though she was working part time. (Coffed Aff. at ¶ ¶ 37-39; see also, Coffed Dep. at 31).
Plaintiff "struggled" to complete the volume of work, and ended up working additional hours. (Coffed Dep. at 41). Despite struggling, Plaintiff continued to receive praise for her work. (Coffed Aff. at ¶ 42). In fact, Plaintiff received "excellent performance appraisals" during that period. (Coffed Dep. At 32). Plaintiff told her supervisor that she was struggling to complete the volume of work, and he responded that he was not surprised, since the employee whose responsibilities Plaintiff had assumed had been "working 50 hours a week to get the job done." (Coffed Aff. at ¶ 43). The supervisor further stated that "everyone was struggling." Id. at ¶ 44. Plaintiff, though, doubts that others were working as hard as her, since she "never witnessed anyone staying late or taking work home." Id. at ¶ 44.*fn2 Plaintiff also believes that she was being discriminated against because of her gender, because "no other men were working part-time and no men were expected to work at a lower salary level- my salary was not a full-time salary but rather a part-time salary level and I was expected to do the same work as my male counterparts who were being paid full time." Id. at ¶ 49. Plaintiff, though, does not identify the males who were supposedly being paid more for the same work.
Eventually, Plaintiff went to her immediate supervisor, Cathy Nadeau ("Nadeau"), and asked if she could be moved to a less-demanding part-time position. (Coffed Aff. at ¶ ¶ 46-48). Nadeau spoke with her supervisor, Shirley Lian ("Lian"), and then reported back to Plaintiff that, "Shirley does not think that it's good for you to move at this point. She doesn't think its going to look good for you as a part-timer to raise your hand and say that you're overwhelmed with our workload and this could mean a black mark by your name." Id. at ¶ 48. Plaintiff disagreed with Lian's purported response, but took no further action. (Coffed Dep. At 35). According to Nadeau, she attempted to reduce Plaintiff's workload, but was limited by staffing cuts: "At the time, I had an open supervisor position which limited my ability to alleviate plaintiff's workload because the other team members were already working to cover the open position. As much as I could, I routed new ad hoc requests and job responsibilities to other employees." (Nadeau Aff. ¶ 4). Plaintiff continued to work in the same position until April 2004, when she decided to voluntarily terminate her employment with Xerox. However, Nadeau, with Lian's approval, counseled Plaintiff to instead take a one-year leave of absence, which Plaintiff did. (Coffed Aff. at ¶ ¶ 57-58; Nadeau Aff. ¶ 5).*fn3
In or about January 2005, while still on leave of absence, Plaintiff began planning to return to work earlier than anticipated, because her husband had lost his job. In that regard, Plaintiff began looking for a new position within Xerox, since her previous position no longer existed. Plaintiff was hired for the position of Post-Sale Revenue Accountant, at the same level 12 pay grade as before her leave of absence. (Coffed Aff. at ¶ 63). The individual who hired Plaintiff was Tim Fogal ("Fogal"), Director of Xerox's North American Finance ("NAF") division. (Coffed Dep. at 131).*fn4 At the time Fogal hired Plaintiff, she was pregnant and did not want to return to work until six weeks after giving birth. Defendant kept the position available for her, so that she could return to work after giving birth. Id. at 49.
Plaintiff returned to work in March 2005. At that time, annual salary reviews were conducted during the month of March. (Coffed Dep. at 66). In June 2005, three months after returning to work, Plaintiff asked her manager, Tim Federation ("Federation"), for a pay raise. Federation spoke with Fogal, and reported back that a pay raise "didn't look good" at that time. (Coffed Aff. at ¶ 67). Federation further told Plaintiff that a raise "was not in the budget." (Coffed Dep. At 71). Plaintiff believed that she was entitled to a raise because she had worked almost a year without receiving a raise before taking her leave of absence. Id. at 67, 72 ("[I]n general, Xerox provides pay increases to all of its high-performing and well-performing employees every year."). In other words, if Plaintiff had worked a full year without a raise prior to taking her leave of absence, she would have been eligible for a pay increase, although such increases were not automatic, but instead, she left to take a leave of absence after working only ten months without a raise. Id. at 67. Because of that, Plaintiff believed that it was fair for her to receive a raise in June 2005, even though she had only recently returned from her leave of absence. Id. at 67-68; see also, Coffed Dep. at 166. Although Plaintiff did not receive a pay increase in June 2005, she received one a year after she returned to work, in keeping with Defendant's normal policy. (Coffed Dep. at 165). In fact, Plaintiff received a pay raise for every year that she worked for Defendant, except for the year in which she took the leave of absence. Id. at 163-164. Nevertheless, in this action Plaintiff maintains that the denial of her June 2005 request was discriminatory, since male employees who had not taken leaves of absence received pay increases. (Coffed Aff. at ¶ 68).
Upon returning to work from her leave of absence, Plaintiff told Federation that she was interested in being promoted to B Band. In December 2005, Plaintiff again told Federation of her interest in B Band, and Federation advised her to meet with Fogal. (Coffed Aff. at ¶ ¶ 70-74). In February 2006, Plaintiff met with Fogal, at which time Fogal told Plaintiff that NAF's Senior Leader staff had met in December to discuss the individuals on the "B Band ready list." (Coffed Dep. at 78). Fogal, Lian, and Terry Hartman ("Hartman") were at the meeting. Fogal stated that he did not know Plaintiff very well, and that he would have to get to know her better before he could support her promotion to B Band. (Coffed Aff. at ¶ ¶ 75-78). For example, Fogal stated that he wanted to "see [Plaintiff] manage people." Id. at ¶ 85. Fogal also stated that Hartman, who had previously worked with Plaintiff, did not remember her very well. Id. Fogal further stated that Lian was "negative" about Plaintiff, although he did not know why. Id. At ¶ ¶ 75-79.
Upon hearing that Lian was "negative" toward her, Plaintiff became very emotionally distraught, and cried throughout the rest of the meeting, which lasted at least an hour. (Coffed Dep. At 79-99; see also, Id. at 81-82: "I'm sobbing uncontrollably...."). Plaintiff protested that Lian had no "business reason" to feel negatively toward her. Plaintiff told Fogal that Lian was probably negative toward her because she had complained about having to perform full-time work on a part-time schedule. Id. at 79 ("I said, 'I will tell you why she is negative on me. I went to her and told her I was doing a full-time job on part-time pay, and she told me 'that's going to make you look bad, and you need to keep your mouth shut.'").*fn5 In that regard, Plaintiff told Fogal how Lian had indicated that it would "look bad" for Plaintiff if she asked for a less-demanding part-time position. (Coffed Aff. at ¶ 81). Plaintiff further told Fogal that in 2001, she had worked in an Accounting Manager's position that was later made a Band B position:
I said, 'Tim, back in 2001, I replaced Chris Ott. He was a male, a Band B employee. I was given his position as a Grade 12. Shirley [Lian] wanted me to take the Accounting Manager job' I said, 'You know, the Accounting Manager job out in Manufacturing. I was offered that job as a Grade 12.
That job is now a Band B." (Coffed Dep. at 80). Throughout this conversation with Fogal, Plaintiff continued "sobbing uncontrollably." Id. at 83. In response to Plaintiff's comments about Lian, Fogal stated: "'I want this conversation to end. I want it to end now. Stop this conversation.... This is water under the bridge.... I really need to get to know you better Beth. This is not about all of that. This is about me and you.' Id. at 81-82. Plaintiff contends, as part of this action, that Fogal's comments were intended to stifle her complaints of "discrimination." (Coffed Aff. at ¶ 84). However, Plaintiff admits that she did not actually accuse Lian of discrimination:
Q: Let me ask you about that. Did you say to him, 'She's discriminating against me because of my sex?
A: I said, 'She was making me work a full-time job and I was a part-time employee.'
Q: But did you say to him: 'I thought she's discriminating against me ...