The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination and
retaliation pursuant to Title VII of the Civil Rights Act of 1964
("Title VII), as amended, 42 U.S.C. § 2000e et seq.
, and the New York Human Rights Law ("NYHRL"), Executive Law § 290
et seq . Now before the Court is Concentrix
Corporation's ("Defendant") motion for summary judgment. (Docket No.
[#16]). For the reasons that follow, Defendant's application is
granted and this action is dismissed.
Unless otherwise noted, the following are the facts of this case viewed in the light most favorable to Plaintiff. This action arises from a five-month period in which Plaintiff was employed by Defendant Concentrix Corporation ("Concentrix"). Concentrix is a "business process outsourcing company" which provides a number of services to clients, including a telephone call center. At all relevant times, Richard Rapach ("Rapach") was Concentrix's Vice President and General Manager, and Christopher Gelder ("Gelder") was Concentrix's Vice President of Operations. On February 26, 2007, Rapach and Gelder hired Plaintiff to work for Concentrix as Director of Call Center Operations at Concentrix's office in Pittsford, New York. Prior to their employment with Concentrix, Rapach and Gelder had worked with Plaintiff at another company, Sutherland Group ("Sutherland"). In fact, Gelder had previously hired Plaintiff to work at Sutherland. Paintiff's Deposition ("Pl. Dep.") at 12. At Sutherland, Plaintiff reported directly to Rapach, who promoted her to the position of General Manager. Id . at 14. As General Manager at Sutherland, Plaintiff was responsible for a division of three-hundred employees. Id . at 15. After two years at Sutherland, Plaintiff resigned on amicable terms with Gelder and Rapach, because she wanted to adopt a child. Id . at 15-16.
Some years later, on February 14, 2007, Gelder learned that
Plaintiff was unemployed, after being laid off from her position as
Director of Sales for Gerber Homes, where she had earned approximately
ninety thousand dollars per year. Id . at 17-18.
Approximately one week after learning Plaintiff was unemployed, Gelder
and Rapach hired Plaintiff to work at Concentrix. Concentrix hired
Plaintiff at an annual salary of $85,000.00., with an indication that she would be
eligible for a quarterly bonus program. Although the terms of the
bonus program were not specified in the letter of engagement which
Plaintiff signed, Gelder advised her that with bonuses, her
compensation would be in the range of $125.000.00 to $150,000.00.
See , Defendant's Exhibit D, Pl. Dep. at 20-21.
According to Plaintiff, she and Gelder later agreed to a proposed
bonus plan, and Gelder assured her that Rapach would eventually
approve it. However, Rapach never gave it his required approval prior
to the termination of Plaintiff's employment. See ,
Pl. Dep. at 21-22. Consequently, Plaintiff did not receive a bonus
during her five months of employment at Concentrix.
Gelder, Plaintiff's immediate supervisor, was hired by Concentrix in October 2006 at a starting salary of $87,000.00 per year, which was only $2,000.00 more than Plaintiff's starting salary. Moreover, unlike Plaintiff, Gelder was not eligible to participate in any incentive bonus compensation plan. See , Pl. Resp. to Def.'s Local Rule 56.1 Stmt., ¶ ¶ 51, 54.
Plaintiff's predecessor in her position, David Holdridge ("Holdridge"), had been hired two years earlier, at the same starting salary as Plaintiff. *fn1 Thereafter, Holdridge received a raise and stock options after one year of service, and when Concentrix was being purchased by a new parent corporation, Synnex, he received a loyalty bonus for remaining with the company during the transition period. Def. Stmt. of Facts ¶ ¶ 36-41. As a result, at the time Plaintiff was hired, Holdridge's base salary had increased to $95,000.00.
Plaintiff worked on a number of projects during her employment with Concentrix, but for purposes of this Decision and Order, it is sufficient to note two: the Direct Energy Account and the Citibank Account. As for the Direct Energy Account, it is sufficient to note that Plaintiff was placed in charge of "launching" a marketing program, which she managed successfully. Pl. Dep. at 28. In connection with such launch, Plaintiff told two employees, Mary Pat Smith ("Smith"), a female, and Carlos Mercado ("Mercado"), a male, that they would receive bonuses to reward them for their hard work. Id . at 104-105. The parties disagree as to whether Plaintiff was authorized to offer such bonuses to Smith and Mercado, but again for purposes of this Decision and Order the Court assumes that she was so authorized. At deposition, Plaintiff initially indicated that Rapach had refused to pay the bonuses to Smith and Mercado. Id . at 104 (Referring to Smith as "one of the two supervisors denied bonuses by Dick Rapach."). However, Plaintiff later admitted that the bonuses had been paid. Id . at 107-108. In fact, it appears that Rapach never denied the bonuses, but merely asked for more information before approving them. See , Def. Ex. Y. In that regard, it seems that Rapach was reluctant to pay any bonus in connection with the Direct Energy Account, because Direct Energy had terminated the account shortly after it launched. Id . In any event, Plaintiff admits that her efforts to obtain bonuses for Smith and Mercado did not involve allegations of discrimination, and she further admits that Concentrix did not understand her to be complaining about discrimination. Pl. Resp. to Def.'s Local Rule 56.1 Stmt., ¶ 71.
While Plaintiff was working on the Direct Energy Account, Smith complained to her that she was not being paid what she had been promised at the time of her hire. The specific details of Smith's complaint are not in the record, but it appears that she told Plaintiff that Gelder had indicated that she would receive a raise, but it "hadn't materialized." Pl. Dep. at 109. Plaintiff mentioned Smith's concerns to Gelder, but then had no further involvement with the issue. Id . at 110. In that regard, Plaintiff states:
I talked to Chris Gelder about it; and he, I believe, had some conversation with her about it, but I decided to step back because it was a situation between them and conversations that had occurred between them before [Smith] came to work for me [on the Direct Energy Account].
Pl. Dep. at 110. There is no indication or even suggestion that Plaintiff made any allegations of discrimination to Gelder concerning Smith. *fn2
As for the Citibank Account, Plaintiff took over the management of that account on June 12, 2007. Prior to that, between February 2007 and June 2007, the account was managed by Alan Mogray ("Mogray"), who had the same title as Plaintiff, Director of Operations, but who earned less than Plaintiff. Pl. Dep. at 33. Specifically, Mogray, who was hired one month prior to Plaintiff, earned a salary of$60,000.00, which was substantially less than Plaintiff's salary. Moreover, Mogray, like Plaintiff, did not have an approved bonus plan, nor did he receive any bonus during the term of Plaintiff's employment. *fn3 Upon being removed as Director of Operations for the Citibank Account, Mogray was demoted to the position of Data Analyst, in which he had "no accountability for operations or clients." Pl. Dep. at 34, 137-138.
Plaintiff was aware, from the beginning of her employment at Concentrix, that the Citibank Account, of which Mogray was then in charge, was "a fiasco." Pl. Dep. at 27. Plaintiff was selected to replace Mogray on the Citibank Account, which was Concentrix's second largest, because Concentrix was in danger of losing the account. Id . at 32, 35. Plaintiff understood that it was her responsibility to salvage the Citibank Account. Id . at 36 ( "My responsibility was to turn that program around.").
The Citibank Account required Concentrix call center employees to telephone prospective customers to market Citibank's student loan consolidation loan products. Concentrix's success in that regard was measured by the number of persons who responded favorably by completing online loan applications. Concentrix indicates that as part of its agreement with Citibank, call center employees were expected to follow a script, and were not allowed to quote loan rates over the phone. Plaintiff understood, when she assumed control of the Citibank Account, that one of Citibank's biggest concerns was that Concentrix call center employees were improperly "quoting interest rates on the phones" to customers. Id . at 37-38. In addition, Citibank was concerned about the "performance and the skill-set of some of the [Concentrix call center employees working] on the program." Id . at 38. In short, when she assumed control of the Citibank Account, Plaintiff understood that Citibank was unhappy with the skills of the Concentrix employees who were working on the account, and was unhappy that those employees were quoting interest rates over the phone, since such quoting apparently violated banking regulations.
When Plaintiff assumed command of the Citibank Account, working directly under her was the project's Program Manager, Rae Lattau ("Lattau"), and its Account Manager, Donna Pratt ("Pratt"), both female. *fn4 According to Plaintiff, Pratt was "the manager involved with the account from day one and had a personal relationship with the clients." Pl. Dep. at 82-84. In or about late July 2007, Plaintiff and Lattau then selected another employee, Ahmad Abdussamad ("Abdussamad"), to supervise the call center employees, who numbered approximately twenty. Pl. Dep. at 41-44.
Plaintiff attempted to improve the Citibank Account's operation by having Citibank re-train the call center employees. Pl. Dep. at 45-48, 51. In addition, Plaintiff created performance improvement plans for the seven worst-performing call center employees. Id . at 48. Subsequently, one of those employees quit the program, and the other was fired. Of the five remaining employees on performance improvement plans, three met the goals of their plans, while two did not. Pl. Dep. at 74-76. As for the two employees who did not meet their performance improvement goals, Plaintiff decided, toward the end of July 2007, to place them on a "second and final action plan." Plaintiff did this for a number of reasons, including that they had only recently been re-trained, and that performance of the program overall was improving. Id . On this point, Plaintiff maintains that the Citibank Account showed improvement in June and July, based on the number of customers making online loan applications, though Citibank questioned how many of those applications were obtained through Concentrix's efforts. Id . at 49, 52-53. However, Citibank disagreed with Plaintiff's decision to have any of the five employees continue working on the Citibank Account. Id . at 77 ("[T]hey had concerns about my decision to allow these five agents to remain on the program. They did not want them to remain on the program."). Despite Citibank's disagreement, Plaintiff believed that it was her duty to not allow Citibank to dictate who worked on the account:
It is not uncommon in this industry that clients will try to dictate which employees remain on their programs and which ones don't, and it is our responsibility to make sure they don't do that. They [the five employees] are Concentrix employees, and as I said earlier, I felt a responsibility to make sure they were treated fairly.
Pl. Dep. at 76. Plaintiff vaguely maintains that she notified Gelder that Citibank wanted the five employees removed from the account. See, id. at 88. Nevertheless, Plaintiff agrees that, "[i]n a client review meeting at the end of July 2007, [she] assured Mr. Rapach and Mr. Gelder that the Citibank student loan program results were improving and that the client was happy." See , Pl. Resp. to Def.'s Local Rule 56.1 Statement ¶ 15 (Indicating that Rapach and Gelder's version of events on this point is "uncontested."). *fn5
On July 23, 2007, in connection with an account unrelated to the
Citibank Account, Gelder informed Plaintiff that two of the
supervisors working under her, a male and a female, were caught using
the company's instant messaging system to carry on an adulterous
consensual sexual relationship. Gelder was angry about the employees'
conduct and wanted to fire them, but he permitted Plaintiff to handle
the problem since the employees were "under [her] jurisdiction." Pl.
Dep. at 68. Plaintiff investigated, and then suspended the two
supervisors for two weeks, for misuse of company time and property.
Id . at 69-72. There is no indication that Gelder
or Rapach had any objection to Plaintiff's handling of the
As mentioned earlier, Citibank was unhappy about Plaintiff's decision to keep five underperforming employees on the Citibank Account. Toward the end of July 2007, Citibank indicated that it wanted to audit the telephone calls of those five employees.
Q. And what did Citibank say about the monitoring se[ssion] and why this one was more significant?
A. This one was they had concerns about my decision to allow these five agents to remain on the program. They did not want them to remain on the program.
Pl. Dep. at 77; see also, id . at 78-79. Citibank indicated that during the upcoming call monitoring session, it wanted to focus attention on calls handled by the aforementioned five employees. Id . Gelder was copied in on Citibank's email.
Plaintiff knew that she would not be at work on the day of the
scheduled call monitoring session with Citibank representatives,
because of a prior personal commitment. *fn6 Id .
at 78. She further indicates that she would not ordinarily have
attended the session in any event, and that she entrusted Lattau and
Pratt with attending such sessions. See , Pl. Local
Rule 56.1 Stmt., ¶ ¶ 81, 87. *fn7
Unfortunately, Lattau was also scheduled to be out of the office on
the day of the call monitoring session. Pl. Dep. at 82. Consequently,
Lattau arranged to have Pratt and the newly-promoted Abdussamad attend
the call audit. At deposition, Plaintiff indicated that, prior to the
call monitoring session, she expressly told Lattau to "be careful in
the calls we chose for the client to monitor," and that Lattau told
her that, although she would be out of the office that day, she "had
listened to the calls with [Abdussamad]. There were no fatal errors."
Id . at 82-83. *fn8
However, during the monitoring session, the Citibank representatives
heard one of the Concentrix agents commit what the parties refer to as
a "fatal error," in terms of what they said to the potential customer
over the phone. Id . at 84. Notably, the error was made by one of the employees that
Plaintiff had placed on a second performance improvement plan, rather
than removing him from the account as Citibank had requested. Upon
hearing the mistakes made by the Concentrix employee, the Citibank
representatives became "irate" and threatened to terminate the
account. Id . at 84 ("[T]he client was irate and felt, once again, that
Concentrix was putting them at risk.").
On the day following the monitoring session, Friday, August 3,
2007, Plaintiff and Lattau were called to a meeting with Rapach and
Gelder to discuss the situation, and to try to find a way to salvage
the account. Id . at 86. *fn9
The following week, Rapach and Gelder met with Citibank
to attempt to smooth over the problem, but Citibank nevertheless
terminated its contract with Concentrix. See, id .
at 90-92; id . at 91 ("The plan was to beg for
forgiveness and ...