The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Barbara Anne Ikewood ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., alleging discrimination on the basis of her age and unlawful retaliation by her current employer, Xerox Corporation ("Defendant" or "Xerox"). See Compl. at ¶1. Plaintiff also alleges several state law tort claims. See Compl. at ¶42-59. Specifically, Plaintiff alleges that she was denied several promotions because of her age, that she was retaliated against after complaining that her supervisor was "sexist" and protecting "the boys," and that she was injured after an altercation with a co-worker who refused to train her for a promotional opportunity. See Compl. at ¶9-22.
Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant contends that Plaintiff has not established a prima facie case of age discrimination or retaliation and that Plaintiff's state law claims are barred by the exclusivity provisions of the New York Worker's Compensation Law ("WCL"). See Def. Mem. of Law at 1. Plaintiff opposes Defendant's motion and argues that she has established a prima facie case of age discrimination and retaliation. See Pl. Mem. of Law. Plaintiff admits that her common law negligence claims for assault and battery and negligent hiring are barred by the WCL, however, she contends that her claims for intentional and negligent infliction of emotional distress fall within an exception to the exclusivity provisions of the WCL. Id. at 21-23. For the reasons set forth below, this Court grants Defendant's Motion for Summary Judgment in its entirety. Accordingly, Plaintiff's Complaint is hereby dismissed with prejudice.
Plaintiff was born on July 12, 1949 and began working at Xerox in 1973. See Pl. Resp. to Def. Local Rule 56.1 Statement of Material Facts ("Pl. Resp.") ¶1-2*fn1 . Plaintiff is still employed by Xerox, but has been on disability leave since August 2008. See Ikewood Aff. at ¶11.
Plaintiff is a member of the production employees union, Local 14A Rochester Regional Joint Board Xerographic Division, known as UNITEHERE! ("UNITEHERE"). Id. at ¶3. During the relevant time period, Xerox and UNITEHERE were parties to a collective bargaining agreement ("CBA") that governed the terms of their employment relationship. Id. at ¶4. Employees in Plaintiff's department were classified as either a Z2 or a Z4 pay grade. Id. at ¶5. Plaintiff was classified as a Z2. Id. at ¶6. The CBA provided that promotions from a Z2 to a Z4 pay grade were filled by selecting the applicant with the most seniority, and a promotional opportunity was to be posted within the department prior to seeking outside applicants. Id. at ¶7-8; See Waidl Dep. at 24.
A promotional opportunity from a Z2 to a Z4 position ("DT Prep") was posted in 2005 or 2006. See Waidl Dep. at 24; cf. Ikewood Aff. at ¶46. The hours posted for the DT Prep position were approximately 8:30a.m. through 4p.m. See Pl. Resp. at ¶9. Plaintiff did not apply for the position because she could not work the posted hours. See Pl. Resp. at ¶10. Plaintiff informed her supervisor, Joseph Waidl ("Waidl"), that she would be interested in the position if the hours were 6a.m. though 2:30p.m., as they had been for the previous DT Prep. See Waidl Dep. at 36. However, Waidl testified that the later shift was posted to correspond with customer schedules, as well as the schedules of those working with the DT Prep within Xerox. Id. Michael Stolt, who had less seniority than Plaintiff, was promoted to DT Prep because he was the only applicant, and therefore, the most senior person to apply. See Pl. Resp. at ¶10-11. Mike Stolt was approximately 46 or 47 at the time of his promotion.
In March 2005, the position of "Team Lead" was posted in Plaintiff's department. Id. at ¶12. Team Lead is a Z2 position, but the selected individual receives a pay increase based on increased responsibility. Id. at ¶13. The CBA provides that the Team Lead position is chosen by a vote among the production employees themselves. Id. at ¶14. Plaintiff applied for the position, but she lost the vote to Bill Galski, a co-worker who was the same age as the Plaintiff at the time. Id. at ¶15-17.
In the Spring of 2007, Plaintiff requested training to serve as a back-up for the DT Prep position held by Stolt. Id. at ¶18. While Plaintiff would continue to be classified as a Z2, she would be paid as a Z4 for the time she actually filled in for Stolt. Id. at ¶19. The DT Prep back-up at that time, Ron Fiorentino ("Fiorentino"), was less senior than Plaintiff, and therefore, Plaintiff could "bump" Fiorentino if Stolt required a back-up. Id. at ¶20-21.
Xerox instructed Stolt to train plaintiff for the back-up position, but he continuously failed to do so. Id. at ¶22; Waidl Dep. at 63. Later, in April 2007, Stolt again refused to train Plaintiff for the position, threw a binder at her and told her that he would not train her. Id. at ¶22; Waidl Dep. at 65. Plaintiff claims that she followed Stolt to his office and he yelled "piss on the union" and that he would "cut [her] throat." Id. at ¶22. Stolt denied that he threatened to cut Plaintiff's throat, but told management that he said, "You would cut your own mother's throat for a nickel!" Id. at ¶25; see also Williams Aff. Exhibit E.
Plaintiff reported the incident to management, and management went to Stolt's office and escorted him out of the building. Id. at ¶27-28. After investigating the incident, Xerox suspended Stolt for 5.25 days and issued Stolt a "D" level labor report. Id. at ¶30-31. Xerox then asked another employee to train plaintiff for the position. Id. at ¶34-5. Plaintiff met with this employee, but a DT Prep back-up was not needed between April 2007 and August 2008, when Plaintiff began disability leave. Id. at ¶35-38; Ikewood Aff. at ¶11. Plaintiff states that following this incident she was alienated and isolated within her department as managers and co-workers "kept their distance." Id. at ¶44. In September 2008 Plaintiff's department at Xerox was closed. Id. at ¶36.
On May 25, 2007 Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") in which she alleged retaliation and age discrimination based on the DT Prep back-up position and the April 2007 incident with Stolt. The EEOC issued a Notice of Right to Sue on August 7, 2007, and Plaintiff filed this action on November 7, 2007.
A party is entitled to summary judgment if it can demonstrate "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c). Once the movant has "'show[n]'" or "point[ed] out...that there is an absence of evidence to support the non-movant['s] case," the burden shifts to the non-movant. See Celotex Corp. v. Catrett, 477 U.S. 317, 325-27 (1986). To discharge his burden, "a plaintiff must come forward with evidence to allow a reasonable jury ...