The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff brings this action against Brown Group Retail, Inc., her former employer, and four employees pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and New York State Human Rights Law. Plaintiff alleges that defendants subjected her to a hostile work environment, and discriminated and retaliated against her due to her gender and for requesting accommodations for her pregnancy. Now before the Court is defendants' motion for summary judgment as to all claims. For the reasons that follow, defendants' motion is granted and plaintiff's case is dismissed.
Plaintiff Annmarie Rooney began work with Brown Group Retail, Inc. ("the Brown Group") (known then as Connie Shoes) in 1986 as a part-time sales associate. (Deposition of Annmarie Rooney dated September 30, 2009 ("Pl. Dep.") at 53-54.) In the ensuing years, she received a number of promotions and transfers, and in 1994 became the Manager of the Company's retail store at the Walt Whitman Mall in Huntington Station, New York (the "Walt Whitman store" or the "Store"). (Id. at 56-57, 63.) Plaintiff would remain in that position for nearly thirteen years.
On or about August 28, 2006, the Brown Group hired Davicka Singh ("Singh") as the District Sales Manager for the sales district that encompassed the Walt Whitman store. (Pl. Dep. at 82-85.) Plaintiff met Singh shortly thereafter in late August or early September 2006 (id. at 83-84), and in September or October of that same year, informed Singh that she was pregnant and that the pregnancy was "high-risk," (id. at 97, 181-82). Plaintiff alleges that this disclosure marked a turning point in Sing's treatment of her. (Affidavit of Plaintiff in Opposition to Defendants' Motion for Summary Judgment ("Rooney Aff.") ¶ 3.) Immediately upon hearing the news, Singh allegedly gave plaintiff a "weird" look and asked her if she would be leaving her job. (Pl. Dep. at 101.) Thereafter, plaintiff claims that Singh made discriminatory remarks related to her pregnancy and that defendants engaged in several purportedly discriminatory and/or retaliatory acts culminating in plaintiff's transfer to another location, and ultimately in what plaintiff characterizes as her constructive discharge. Each of these alleged incidents are detailed below.
Singh's Comments Regarding Assistant Manager Michelle Panero
Early in Singh's tenure as District Manager, and prior to learning that plaintiff herself was pregnant (see id. at 91), plaintiff informed Singh that the Store's Assistant Manager, Michelle Panero ("Panero"), was pregnant. Allegedly without knowing anything else about Panero, Singh referred to the woman as "useless" and informed plaintiff that they would have to find a new assistant manager. (Id. at 90-91; 93; Rooney Aff. ¶ 4.) Panero resigned soon thereafter to spend time with her baby. (Id. at 95.)
Plaintiff's Promised Raise
During a visit to the Store in August 2006, Gregory Beidler ("Beidler"), the Director of Stores for the Brown Group, talked briefly with plaintiff outside the Walt Whitman store. At that time, Beidler was concerned that Singh's predecessor was recruiting the Brown Group's employees to join one of their competitors. During his visit, Beidler allegedly told plaintiff that she was a "great asset" and that to keep her happy "[he] would like to give [her] more money."*fn1
(Pl. Dep. at 77-78.) Plaintiff took this as a "promise" by Beidler that she would receive a raise. (Complaint ("Compl.") ¶ 17.) Plaintiff subsequently informed defendants that she was pregnant and complained to management regarding allegedly discriminatory acts regarding her pregnancy. Plaintiff claims that as a result, she "never received the raise she was promised." (Id.) She did, however, receive a raise the following April during her annual review. (Pl. Dep. at 73-74.)
In October 2006, a large shipment of merchandise was sent to the Walt Whitman store that exceeded the available storage space in the stock room. Plaintiff telephoned Singh at a Company meeting in St. Louis to inform her of the situation. Singh told her to "deal with it." (Id. at 109). Plaintiff then contacted the Brown Group's operations or human resources department, which helped arrange for additional staff to move old merchandise out of the Walt Whitman store to make room for the new items. (Id. at 110, 113- 16, 120.) Plaintiff claims that because of the number of boxes involved, and the limited time with which she had to work, she had to move some of the heavy boxes herself. (Pl. Dep. 124-25.) Shortly thereafter, her doctor ordered bed rest to address vaginal bleeding. (Id. 129.) Plaintiff admits that no one at the Brown Group told her she was required to move the boxes herself, but she "assumed" that her job would be in jeopardy if she did not. (Id. at 128.) As she testified at deposition, "I ran it like it was my own business; you do what has to be done." (Id.)
Singh's Comments Regarding Children and Pregnancy
During a visit to the Store at some time during October 2006, Singh witnessed a child crying in the mall corridor just outside the front door. (Id. at 133.) In front of plaintiff and another employee, Singh allegedly exclaimed that she "hated kids" and that she "does not understand how anyone could get pregnant, it [is] ugly and unattractive." (Id. at 135.)
Singh's October 16, 2006 Store Visit
On October 16, 2006, Singh visited the Store to oversee its merchandising and product display. (Id. at 136-38, 142, 149-50.) On her way to meet Singh at the Store, plaintiff was involved in a car accident. (Id. at 136-38.) Although Singh never told plaintiff to report to the store immediately without seeing a doctor or getting medical treatment, plaintiff contends that such was implied because, "my boss was waiting for me and I had to get there." (Id. at 140.) Plaintiff further claims that Singh did not ask plaintiff if she was "okay" when she arrived. (Id. at 146-47.)
Plaintiff testified that during this and other merchandising visits to the Store, Singh would typically "just ransack the whole store," -- conduct that Singh would allegedly not engage in at the district's other stores where the managers were not pregnant. (Id. at 144-146, 178.) On that particular day, Singh took plaintiff into the Store's back room to discuss the state of the merchandise displays upon her arrival. (Id. at 151.) While out back, Singh began screaming at plaintiff, calling her "a waste of her time," and "stupid." (Id.) Plaintiff responded by criticizing Singh for reordering the displays while the store was busy with customers. (Pl. Dep. at 151-52, 154-56.)
After the visit, plaintiff called three people who worked at the Company to complain: Beidler, Harry Rodriguez ("Rodriguez"), and Marilyn Gonzales ("Gonzales"), a human resources representative. (Rooney aff. ¶ 4.) She told them of the incident that day and stated that ever since she informed Singh that she was pregnant, Singh would mistreat and "speak down to [her] and make her feel uncomfortable." (Id.) She also relayed that Singh told her "that pregnancy is ugly" and "oh you're getting bigger . . . you can't climb on that ladder." (Id.) In a later call*fn2 to Beidler, plaintiff stated that Singh told her she "doesn't like pregnant women" and that "she doesn't want [her] to work at the store anymore." (Id. ¶ 5.) Plaintiff, in her affidavit, concludes that Singh's desire for her not to work at the store was due to Singh's feelings about pregnant women. (Id.) Plaintiff further claims that in response to her complaints, Rodriguez told her that she was a great manager, that she could find a job anywhere, and that maybe she should leave. (Pl. Dep. at 166.)
Plaintiff's Requests for Accommodations
On November 14, 2006, Plaintiff submitted to the Brown Group a note from her physician stating that her work hours should be limited to no more than forty hours per week due to her pregnancy. (Id. at 194-98, 200; Facsimile dated 11/14/06, attached to the Declaration of Michael Pappas ("Pappas Decl.") as Exhibit 4.) Singh told plaintiff that the forty-hour limitation was "fine," but plaintiff claims that "sometimes" she had to work over forty hours in order to cover the Store's staffing needs. (Pl. Dep. at 202-203, 218.)
Although plaintiff admits that she is responsible for recruiting and hiring for the Store, and that no one at the Brown Group told her that the limitation was unacceptable, (id. at 202, 208, 219-20, 245; Rooney Aff. ¶ 6), she states that Singh would not authorize enough money in her budget to hire the number of people necessary to accommodate the new limitation on plaintiff's working hours. (Rooney Aff. ¶ 6.)
In addition, plaintiff claims that on the days where the store is short-staffed or when she is working alone, she is often unable to leave the sales floor to take breaks. (Pl. Dep. 203.) This situation presented a particularly difficult problem for plaintiff because her pregnancy increased the frequency in which she needed to visit the restroom. As a result, on one occasion plaintiff had an accidental urination while on the job. (Id.) Plaintiff admits that no one at the Company ever told her that she was not permitted to take an emergency bathroom break if she was in the middle of helping a customer. (Id. at 216.) Plaintiff adds, however, that Singh directed that an employee must be on the sales floor "at all time[s]" and if an employee was found to have left the sales floor unattended, that employee would be "written up." (Rooney Aff. ¶ 6.)
On or about November 13, 2006, plaintiff discussed the issue with Singh. The record though is somewhat unclear as to how she responded. At her deposition, plaintiff testified that Singh replied, "well, we got to get you some people." (Id. at 203-04, 207.) However, in her affidavit, which was sworn to after her deposition, plaintiff states that she asked for assistance and Singh told her to "deal with it."
The Training of the New Assistant Manager
At some point in November 2006, plaintiff recommended to Singh that the Store hire Anna Marie Sternberg ("Sternberg") as its Assistant Manager. (Compl. ¶ 27; Pl. Dep. 224.) New assistant managers at the Brown Group typically undergo two weeks of training, but not necessarily at the store for which they are hired. (Pl. Dep. at 227:13-19.) In this case, Singh arranged to have Sternberg trained in the Green Acres store in Valley Stream, New York instead of the Walt Whitman store where she would eventually be working. (Pl. Dep. 224-25, 235; Email dated 12/29/06, attached to the Declaration of Davika Singh ("Singh Decl.") as Exhibit 1.) The two stores split the cost of Sternberg's training. (Pl. Dep. 238-39.)
Plaintiff claims that during Sternberg's period of training at the other location, the Store had to endure paying for half of her wages, even though she was not there to provide assistance. Plaintiff also questions the motivation behind sending Sternberg to a different store for training, when plaintiff herself had been commended for her ability to train new managers. Training Sternberg at the Walt Whitman store would also mean that Sternberg could get acclimated to the store faster. (Id. at 225-26.) According to plaintiff, Singh told her that she chose not have plaintiff train Sternberg directly because plaintiff "was pregnant and . . . should just be worrying about [her]self." (Pl. Dep. 231.)
The Loss-Prevention Audit
In January 2007, Singh performed a "loss prevention audit" of the Walt Whitman store, a task that the Brown Group requires all district managers to perform at each of their stores on a quarterly basis. (Id. at 266.) Plaintiff alleges that Singh "unfairly" deducted two or three points from that audit report. (Id. at 271.)
Plaintiff's grade on the audit, however, met with the Brown Group's standard, (id. at 262, 270-71), and plaintiff herself described her score as "good" and "high," (id. at 273). Plaintiff was not written up or given any type of warning as a result of her score on the January 2007 audit, nor was plaintiff's compensation affected as a result of her score on the audit. (Id. at 274:2-10.) While plaintiff concedes that Singh took off points from the audit scores of other store managers as well (none of whom were pregnant), plaintiff nevertheless argues that Singh did not ask other store managers the same question during the audit that purportedly led to her reduced score. (Id. at 269:19-22.)
Plaintiff called Gonzales afterwards to complain about her score on the audit. (Id. at 263-65.) She added that the situation with Singh was causing her great stress, that she was not happy, and that all she did was worry about her job. On February 20, 2007, Singh sent plaintiff an email complimenting plaintiff on a related inventory report for the Store, stating, "great job" (Id. at 275-76; Email dated 2/20/07, attached to Pappas Decl. as Exhibit 4.)
Singh's March/April 2007 Store Visit
Singh returned to the Store in late March or early April 2007. (Id. at 292-93.) During the visit, Singh, with the assistance of two other Store employees, "tore [ ] apart" the displays that plaintiff had created and rearranged the merchandise. (Id.) While Singh occupied the two assistants' time redoing the displays, plaintiff was left to cover the floor and register herself, allegedly causing three or four customers in line waiting to pay to become impatient and walk out, "thereby decreasing the store's revenue." (Id. at 296; Compl. ¶ 34.)
Defendants' records show that the Store exceeded its planned sales by approximately 25 percent that day and that during that week, the Store made its weekly sales goal. (Singh Decl. ¶ 4.) Plaintiff claims she does not "think" the store exceeded its planned sales for that day, but admitted ...