The opinion of the court was delivered by: Hurley, District Judge
Plaintiff Audra Hyek ("Plaintiff") filed the present action against her former employer Defendant Field Support Services, Inc. ("FSSI" or "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, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"). Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons that follow, Defendant's motion is granted.
The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.
On January 1, 2004, the Department of Homeland Security ("DHS") contracted with FSSI*fn2 to provide operational and maintenance services*fn3 on Plum Island Animal Disease Center ("Plum Island").*fn4 Plum Island is located off the North Fork of Long Island and can only be accessed via ferry from docks located in Greenport, New York or Old Saybrook, Connecticut. Plum Island, as well as the two docks that service it, are the property of the DHS. Prior to the DHS contract with FSSI, the DHS contracted with North Fork Services Joint Venture ("North Fork") to provide support services on Plum Island.
North Fork employed Plaintiff, a Caucasian female, to work on Plum Island as a Hazardous Materials Technician. After FSSI contracted with the DHS on January 1, 2004, FSSI hired Plaintiff to work in the same position of Hazardous Materials Technician. Plaintiff's duties in this position included (i) performing laboratory and facility inspections; (ii) maintaining regulated medical waste storage area; (iii) maintaining waste manifests; (iv) performing smoke readings; (v) regulating and disposing of medical waste; (vi) entering gas logs onto the computer; (vii) performing chemical inventories; (viii) decontaminating chemicals; (ix) removing chemicals; (x) preparing reports; (xi) collecting ash samples; and (xii) performing fuel stick readings. While employed at FSSI, Plaintiff was required to continue her educational training as a Hazardous Materials Technician.
Matthew Raynes ("Raynes"), a FSSI Project Manager, created the position of Environmental Manager, and on June 21, 2004, promoted Plaintiff into this supervisory position with a concomitant 8% increase in salary and an increase in benefits. Plaintiff's duties in this position included (i) managing and overseeing hazardous materials; (ii) managing and overseeing the regulated medical waste and universal waste; (iii) developing, implementing and updating procedures and programs; (iv) interacting with the various local, state and federal agencies; (v) managing the spill response team; (vi) supervising one employee; (vii) creating fuel tank reports; (viii) scheduling and directing daily work activities involving hazardous materials (hazardous waste, regulated medical waste and universal waste) to ensure compliance; (ix) directing, scheduling and conducting regulatory inventories as required; (x) coordinating and/or conducting remediation activities at the facility; (xi) ensuring compliance within facility departments and laboratories; (xii) developing plans of action including safety considerations, consistent with the local emergency response plan and the organization's standard operating procedures; and (xiii) ensuring adequate training companywide in support of site procedures and requirements.
On January 1, 2005, Raynes authorized a 3% increase in salary for Plaintiff.
When the Building and Grounds Manager position became available upon the death of the supervisor in March 2005, Raynes promoted Plaintiff to the acting position on an interim basis and then promoted Plaintiff to the position on a permanent basis,*fn5 effective March 21, 2005. The promotion was accompanied by a 13% increase in salary and an increase in benefits. Plaintiff's duties in this position included: (i) managing a staff of employees*fn6 to assure the optimal functioning of building services;*fn7 (ii) overseeing contractors for facilities renovation projects; (iii) providing backhoe support to the Environmental Manager to clean up large oil or contaminated spills; (iv) providing support to the Environmental Manager in the removal of ash; (v) conducting fuel tank readings (until the duty was later transferred to the Environmental Manager); and (vi) training the employees she supervised to conduct fuel tank readings.
In March 2005, based upon Plaintiff's recommendation, Frank Sistare, an FSSI Wastewater Treatment Plant Operator*fn8 , was promoted to Plaintiff's former position of Environmental Manager. For the first six months following his promotion, Raynes directed that Sistare would report to Plaintiff.
For several months after being promoted to Buildings and Grounds Manager, Raynes instructed Plaintiff to maintain responsibility for fuel tank management, including conducting fuel tank stick readings and completing ten-day reconciliation reports. Although Plaintiff objected to the continued responsibility of the fuel tank measurements, Raynes directed Plaintiff to continue to oversee this area until Sistare was ready to assume that duty.
On January 1, 2006, Raynes authorized a 3% increase in salary for Plaintiff. Later that year, in September 2006, Sistare took over the duties of oversight and management of the fuel usage reports and reconciliation. Within the first few days of assuming this responsibility, he and Norma Corwin, the Hazardous Materials Technician, identified a discrepancy in the reports that Plaintiff had filed with the DHS and the EPA relevant to fuel usage.*fn9 The significance of the discrepancy was that there existed a potential fuel leak into the soil, environment, groundwater and/or the seashore. Sistare immediately brought the issue to Raynes, and Raynes instructed Sistare to report the discrepancy to the DHS and the EPA.
(a) The Bulb Crushing Demonstration Incident
Sometime after September 12, 2006, Sistare conducted a demonstration of a new piece of equipment, a bulb crushing machine, for selected members of the FSSI management team. The presentation took place in the shredder room on the loading dock at Plum Island. There were up to seven managers present, including Raynes and Sistare.
On that day, Plaintiff drove up to the loading dock during the demonstration to confront Sistare about reporting her to the DHS and the EPA concerning the fuel tank reading discrepancy. Plaintiff interrupted Sistare's presentation to inform him that she had spoken to Tom Dwyer of the DHS and that it was "all set." (Pl. Dep. 376.) Sistare became irate and started yelling at her for bringing up the subject of fuel tank readings while he was demonstrating a new piece of equipment. Sistare then walked away from her and went outside to the loading platform. Plaintiff pursued Sistare outside to continue the confrontation and to find out "what was the matter with him." (Id. at 380-81.)
Raynes followed Sistare and Plaintiff outside and directed them to report to his office. Raynes then cancelled the presentation meeting. In his office, Raynes told them both that their behavior was unacceptable and that they needed to get along. He issued each of them a performance correction.
(b) The Request for Spill Absorbent Incident
On November 22, 2006, Plaintiff made a verbal request to Sistare for spill absorbent. Sistare left to go to the hazardous waste room to get the absorbent for her. After he left, one of Plaintiff's staff members, Roosevelt Jackson, told her that Sistare was walking down the hall, swearing about something. Plaintiff called Sistare into her office and asked him why he was swearing. In response, Sistare started yelling at her, and Plaintiff claims she feared for her safety.
Instead of calling security or Raynes to report the incident, Plaintiff called her husband, Denny Hyek, at work on his cell phone. Crying into the phone, she left her husband a voice mail message that Sistare "blew up" at her. (Id. at 450.)
Raynes received a radio call from Sistare about the verbal exchange. Within a half hour of the incident, Raynes called Plaintiff and asked her to come to his office. Plaintiff went to Raynes' office, and he advised her that he would "take care of it." (Id. at 457.) Plaintiff returned to her office, had a telephone conversation with her husband, and informed him that Raynes said he would handle the matter.
During his investigation into the matter, Raynes interviewed Plaintiff, Sistare, and Jackson . Sistare told Raynes that he was upset because Plaintiff had previously refused to assist him with the ash removal and he was also upset that there was only one bag of spill absorbent left. By letter dated November 22, 2006, Raynes suspended Sistare for three days without pay "for actions unbecoming of a manager," advised Sistare that "[i]f he was unable to work with other managers and maintain [his] cool in public then [he] will need to find another place of employment." (Raynes Decl., ¶ 17, Ex. 6.) Raynes placed him on a 60 day "win/win program." (Id.)
Later that same day, and after, as noted above, Sistare had been suspended for three days without pay and had discussed his suspension with Raynes, a number of FSSI employees, including Plaintiff, Sistare and Raynes, boarded a ferry to leave Plum Island. As the ferry boat pulled into the dock at Old Saybrook, Connecticut, Plaintiff spotted her husband in the parking lot. Because her husband would not normally be at the boat dock, Plaintiff was "shocked" to see him and thought "he was upset" and "must have come to say something" to Sistare. (Pl. Dep. 467-68.) She anticipated that there would be trouble with her husband and was fearful of an unpleasant confrontation between her husband and Sistare because her husband had a "wild attitude," could loses his temper and could be explosive. (Pl. Dep. 472-83.) Plaintiff was aware that Denny Hyek owned two rifles and a pistol and could possibly have had a gun with him that day on the dock.
As Plaintiff walked off the boat, she approached her husband and asked him not to do anything. Denny Hyek gave her his paycheck, said he was just going to talk to Sistare, and told her to "just go." (Id. at 472.) Plaintiff walked away, got into her car, and drove to a local bar.*fn10 Although Plaintiff was concerned that there might be a serious confrontation between her husband and Sistare that could endanger them and other FSSI employees as well as innocent bystanders, she nevertheless left because "God leaded [her] that way." (Id. at 470.) Despite having a cell phone, Plaintiff did not call the police or Raynes nor did she return to the ferry to solicit assistance from Raynes or others in an effort to defuse the situation.
As they were walking off the ferry, Raynes and Sistare were again engaged in a conversation concerning Sistare's suspension without pay. Once Raynes made it clear there was nothing further to discuss, Sistare turned and walked ahead. Raynes saw Denny Hyek on the dock and noticed that Denny Hyek had blocked Sistare's truck with his own vehicle in the parking lot. As Sistare approached his vehicle, Denny Hyek said to him, "If you want to yell at somebody, yell at me." (Dennis Hyek Dep. 32-33.) Hearing raised voices and Denny Hyek saying to Sistare, "If it doesn't happen here fagot, it is going to happen at Home Depot,"*fn11
Raynes rushed over to them. After attempting to physically separate them, Raynes told Denny Hyek to "move away and get in your car and get out of here." (Raynes Dep. 114-15.)
Because the dock at Old Saybrook was leased by the DHS through FSSI, Raynes had to report the incident as a security infraction. He called Chris Aiello to inform him of the matter who in turn called the head of the DHS security to brief him. Later that day, Raynes received a voice mail from Plaintiff stating that she "understood if [Raynes] was to fire her," (Raynes Decl. ¶ 16; Pl. Dep., Ex. 26.) During a phone conversation on November 24, 2006, Raynes discussed the incident with Plaintiff, told her that he had expected more from her with respect to preventing her husband from taking any actions, and Plaintiff told Raynes that he should have told her that he had suspended Sistare. Raynes documented the incident and his follow-up conversation with Plaintiff.
(c) Plaintiff's Choice of Resignation or Termination
Thereafter, following the altercation at the Old Saybrook dock, Raynes decided to terminate and/or ask Plaintiff for her resignation. Raynes believed that Plaintiff should have remained at the dock to prevent her husband from confronting Sistare, should have gone back to the ferry to inform Raynes of the situation and to seek his help, or should have sought the assistance of others to prevent the threat of danger. Raynes reported the incident on the dock to the FSSI Operations Manager, Jerry LeBeau, and to the Human Resource Administrator, Carin Reinhardt, and informed them of his decision to terminate Plaintiff and/or request her resignation.
On November 27, 2006, Plaintiff resigned from employment with FSSI.
Plaintiff initiated the instant action on November 16, 2007. Her Complaint asserts two causes of action, viz. gender discrimination under Title VII and gender discrimination under the NYSHRL. FSSI has moved for summary judgment. For the reasons stated below, FSSI's motion is granted and this case is dismissed in its entirety.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See SCR Joint Venture, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida,375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertion that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary ...