The opinion of the court was delivered by: John T. Curtin United States District Judge
This is an action for sex discrimination in employment brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"). Plaintiff alleges that she was subjected to a hostile work environment and then terminated from her employment in a discriminatory fashion and in retaliation for protected activity. Defendant filed a motion to dismiss the federal causes of action and the court, in a decision and order filed July 24, 2008, dismissed plaintiff's hostile work environment claim as time-barred (Item 8). On January 6, 2010, defendant filed a motion for summary judgment dismissing the complaint (Item 22). Plaintiff filed a response to the motion on March 15, 2010 (Item 27), and defendant filed a reply on April 6, 2010 (Item 33). The court determined that oral argument was unnecessary. For the reasons that follow, the defendants' motion is granted, and the complaint is dismissed.
Plaintiff commenced her employment with AMI Leasing Fleet Management ("AMI") in June 2004. She worked as an operations manager, providing on-site staffing for truck shipments for AMI's customer, CertainTeed. In August 2004, AMI became part of Penske, and plaintiff continued to work at the CertainTeed facility. Her duties included the coordination of truck shipments for CertainTeed and supervision of drivers (Item 22, Att. 12, ¶¶ 1-2; Kranack Aff., ¶ 3).
Plaintiff complained of disparaging comments made to and about her by co-workers and truck drivers. She complained that drivers were not following her policies and that her supervisor moved costs from his facility to hers so as to make her appear unproductive. She also complained that her supervisor yelled at her inappropriately during conference calls (Item 26, ¶¶ 6-8, 13). On May 31, 2005, plaintiff submitted a letter of resignation, but was convinced to stay on the job by Dick St. Gelais, a Penske executive, who did not want to lose such a valued employee. Id. ¶ 17.
In approximately late May 2005, plaintiff was physically assaulted by her boyfriend (Dutton Dep. 1, pp. 197-98). At the time, she had been on the telephone with a co-worker, Chris Walsh. Id., pp. 198-99. Following the assault, she telephoned Walsh and met with him in the parking lot of a donut shop (Dutton Dep. 1, pp. 205-08). Plaintiff decided to move out of her boyfriend's apartment and accepted an offer of help from Walsh and another co-worker, Dave McCarley. The two men came to plaintiff's apartment and helped her pack her things. Id., p. 214.
At her deposition, plaintiff testified that she "had an issue" with Walsh (Dutton Dep. 1, p. 216). She felt he was interested in her romantically, yet she had a policy against dating co-workers (Dutton Dep. 1, pp. 216-17). Some people at work told plaintiff that Walsh was "obsessed" with her, and that he was "loony," "psychotic," and had a bad temper. Id., pp. 221-24, 228. Plaintiff also testified that she saw Walsh drive past her house when he was supposed to be in Pennsylvania. Id., pp. 229-30. Plaintiff thought Walsh was "stalking" her. Id., p. 278. Plaintiff could not recall when these incidents occurred. Id., pp. 246-47. She also testified that she reported Walsh's behavior to Jason Kranack, the Director of Staffing, but could not recall the date of the conversation. Id., p. 247.
In his deposition, Walsh stated that he helped plaintiff pack her things on June 8 and 9, 2005 (Walsh Dep., p. 25). He offered to borrow his son's pick-up truck to help her move and arranged to meet plaintiff on June 10, 2005 at approximately 6:00 pm. Id.
On June 10, 2005 at approximately 3:00 pm, plaintiff was in the parking lot of the CertainTeed facility in her car smoking a cigarette (Dutton Dep. 1, p. 264). Walsh arrived at the plant in his son's pick-up truck. Plaintiff asked him what he was doing at the plant as he was on vacation. Walsh stated that he was in the area. Plaintiff told Walsh that if he didn't have business at the plant he should leave the property. She then went inside the building and into the ladies' room. Id., pp. 265, 269. Plaintiff stated that she heard Walsh speaking with someone in the shipping office, but most of the employees were in a meeting. Id. Plaintiff then heard "pounding" on the bathroom door. Id., p. 273. She attempted to lock the door, but noticed the handle of the door turning as if Mr. Walsh was going to enter the bathroom. Id., p.274. Plaintiff struggled to keep the door closed, but then opened the door, punched Walsh in the chest repeatedly and kicked him. Id., pp. 274-75.
In her affidavit, plaintiff stated that she entered the ladies' restroom in an attempt to hide from Walsh, that he followed her into the building, and that Walsh was banging on the door and tried to force his way in. Plaintiff stated that she fought him off first by pulling the door handle, and then by hitting and kicking him. She escaped from the bathroom "to avoid further hostile action" by Walsh (Item 26, ¶ 19).
Walsh stated that plaintiff became angry when she saw him at the plant (Walsh Dep., p. 29). He followed her inside, and heard her blowing her nose in the bathroom. Id., p. 34. Walsh stated that he knocked on the door and asked plaintiff why she was so upset. She came out of the bathroom screaming at him. Walsh did not remember if he was hit. He stated that he was shocked at plaintiff's behavior and left the building. Id., p. 35.
On June 15, 2005, Jason Kranack, Director of Staffing, and Colleen Shearn, Human Resources Recruiter, conducted an investigation of the June 10 incident. They interviewed both plaintiff and Walsh and reviewed an incident report prepared by plaintiff's supervisor, David Hess (Kranack Aff., ¶ 4). The notes of their investigation indicate that Walsh assisted plaintiff with her packing on June 9, 2005 and then was going to meet her at 6:30 p.m. on June 10, 2005 with his son's truck to help her move (Kranack Aff. Exh. A). Kranack and Shearn contacted Tracy Schrey, Employment Counsel for Penske. Those three individuals decided that Walsh should be suspended without pay and plaintiff's employment should be terminated (Kranack Aff. ¶ 9). They based their decision on the fact that plaintiff was a management employee who had used unreasonable physical force against a subordinate. While Walsh was not without fault, his culpability was less than plaintiff's and warranted a lesser sanction (Kranack Aff. ¶ 10). Plaintiff's employment was terminated effective June 21, 2005 (Kranack Aff. Exh. B).
Following her termination, plaintiff spoke on the telephone and met several times with Walsh, often at a truck stop in Cheektowaga. On one occasion, Walsh gave plaintiff a CB radio. On other occasions, they discussed a book she was ...