The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Dawn Vermette ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 and the New York State Human Rights Law, N.Y. Exec. Law. § 290 et seq. ("NYSHRL"). Compl. ¶1 (Docket #1). She alleges that the Defendant, Verizon Wireless ("Defendant" or "Verizon"), unlawfully retaliated against her for complaining of gender and racial*fn1 discrimination by demoting her, denying her a pay increases, subjecting her to performance criticism and increased supervision and placing her on performance improvement plans. She also alleges that these actions gave rise to an intolerable work environment, and she was constructively discharged as a result.
Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), contending that Plaintiff has not established a prima facie case of retaliation, nor shown that its legitimate, non-discriminatory reasons for its actions are a pretext for discrimination. Plaintiff opposes Defendant's motion, arguing that there are material issues of fact which preclude summary judgment.
For the reasons set forth below, Defendant's Motion for Summary Judgment is granted in its entirety. Plaintiff's Complaint is hereby dismissed with prejudice.
This Court has reviewed Defendant's Local Rule 56.1 Statement of Undisputed Material Facts ("Defendant's Statement"), Plaintiff's Responses to Defendant's Statement*fn2 ("Plaintiff's Responses") and the entire record in this case and finds that the following facts are not in dispute. Plaintiff was employed by Verizon from November 6, 2000 through October 22, 2008. As she progressed within the company between 2000 and 2006, Plaintiff was first employed as a customer service representative, later as a business sales associate ("BSA") and also as a business sales representative ("BSR"). As a BSA, Plaintiff was responsible for providing phone and email support for Verizon's business customers. As she moved into the BSR position in early 2006, she was expected to directly market and sell Verizon's services to its business customers and to achieve a monthly business sales quota as well as provide timely and accurate service to her accounts.
Plaintiff struggled to meet her monthly sales quota as a BSR and several of her supervisors were concerned that when they attempted to assist her in improving her skills, she "became defensive, offered excuses, and tried to shift blame to others." Defendant's Statement at ¶¶ 29, 47. Plaintiff continued to struggle throughout her tenure as a BSR, and continuously failed to meet sales quotas.
All Verizon employees who fail to meet sales quotas are subject to a "progressive discipline process" through which an employee is first issued a Verbal Warning, followed by a written Letter of Concern if his or her performance does not improve. Thereafter, an employee may be issued a Sales Performance Improvement Plan ("Sales PIP") followed by a Final Sales PIP, should he or she continue failing to meet sales quotas. Following these four steps, an employee who continues to fail to meet Verizon's expectations may be evaluated for possible termination.
This progressive discipline process is administered by supervisors and Human Resources ("HR") representatives together. Should an employee improve his or her performance and begin to meet expectations at any point during this process, he or she may avoid termination or other potential consequences. However, when an employee is issued a Sales PIP, they are not permitted to apply for other positions within the company, in part because Verizon does not permit employees to "voluntarily demote" to avoid the four-step disciplinary process. Defendant's Statement at note 3.
In December 2006, Plaintiff's supervisor at the time, Mark Parmalee ("Parmalee"), issued Plaintiff a Verbal Warning for failing to meet her quota in the previous month. Sometime thereafter, Plaintiff discussed the implications of the Verbal Warning with an HR representative, Kathy Lippa ("Lippa"), and expressed her concern that other BSR's had not been issued warnings for failing to meet quotas. Lippa informed Plaintiff that she had time to improve her performance before she would experience any negative employment consequences and that she would research her concern that other BSR's were not similarly issued warnings.
Lippa and Luis Rivera, Associate Director of Human Resources ("Rivera") and Mark Harris, Director of Business Sales ("Harris"), jointly discussed Plaintiff's concerns and determined that all Verbal Warnings issued to employees for underperformance in November 2006 would be rescinded because the department as a whole had performed poorly that month. However, the fact that Plaintiff's Verbal Warning was rescinded was never communicated to Parmalee, and the warning inadvertently remained in her file.
On March 1, 2007, Plaintiff's supervisor changed to Michael Gisondi ("Gisondi"). Later that month, as Plaintiff had continuously failed to meet sales quotas over the previous six month period, she was issued a written Letter of Concern. Then in April 2007 she was issued a Sales PIP, followed by a Final Sales PIP in June 2007.
Then, in late June 2007, Plaintiff complained to HR about several concerns related to her previous supervisor, Parmalee. She also inquired whether other employees were treated equally with respect to the progressive discipline process and employee development,*fn3 and she informed HR of her confusion about the progressive discipline process generally. She stated that she believed she should not have progressed to the end of the discipline process so quickly, because her initial Verbal Warning had been rescinded. She sought help with the progressive discipline process and also asked if she might be offered another position in the company.
She reiterated her concerns in an e-mail to Luis Rivera on July 20, 2007, in which she also stated that she believed that Parmalee only went on sales calls with men. But, she also stated in her deposition that she knew that he went on several sales calls with another female BSR, Kathy Fitzgerald. She then testified that he treated her differently than other employees by failing to help her develop as a BSR, and she believed it was partially because of her gender. Vermette Dep. at 83-4.
She related in the e-mail to Rivera that she had a discussion with another manager at Verizon, Russ Preite, in which he told her that he was working with HR representative Lippa to find her a new position in the company. She complained that he then stated that he believed that she was not able to adequately perform in the BSR position in part because it required her to work outside of regular business hours and, being a single mother, this was difficult for her.
She also stated in her e-mail to Rivera that she was told by another supervisor, Scott Hartman ("Hartman"), that although she was on a Final Sales PIP, she had been given some quota relief in the months leading up to her complaint to HR and she would be given new accounts to help her achieve her quota. Hartman also advised her to discuss her inquiry regarding a transfer within the company with HR.
Lastly, the e-mail stated that she had overheard a comment at work that she "speak[s] ghetto." Def. Exhibit H. Plaintiff now attributes this comment to Parmalee, and states that he made the comment in ...