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Fredda Malena v. Victoria's Secret Direct

August 16, 2012


The opinion of the court was delivered by: J. Paul Oetken, District Judge:


Before the Court are two motions for partial summary judgment, one filed by the Victoria's Secret entities that are defendants in this case (the "Corporate Defendants") (Dkt. No. 76) and the other filed by the individual defendant, Ann O'Malley (Dkt. No. 82). (O'Malley and the Corporate Defendants are together referred to as the "Defendants"). Defendants' motions seek partial summary judgment dismissing claims brought by Plaintiff Fredda Malena under the Fair Labor Standards Act, 29 U.S.C. § 216 et seq. (the "FLSA"); New York State Labor Law, N.Y. Lab. Law §§ 162(2), 195 et seq. ("NYSLL"); New York state labor regulations, N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4; the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (the "FMLA"); the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. ("NYSHRL"); and the New York City Human Rights Law, New York City Administrative Code § 8-101 et seq. ("NYCHRL").*fn1 (Dkt. Nos. 76, 82; see also Complaint, Dkt. No. 1 ("Compl.").) For the reasons discussed below, both of Defendants' motions are granted in part and denied in part.

I. Background

A. Malena's Employment

From November 2006 to February 2009, Plaintiff Fredda Malena worked as an executive assistant to Defendant Ann O'Malley. (Affidavit of Fredda Malena dated February 24, 2012 ("Malena Aff. II") ¶ 2, appended as Ex. A to Certification of Anthony Carabba, Jr. in Opposition to Defendants' Motion for Summary Judgment, Dkt. No. 92 ("Carabba Decl.").) At the start of Malena's employment, the group headed by O'Malley managed "creative services," including photography, catalog design, and copy for the Victoria's Secret catalog and internet site. (Transcript of September 9, 2010 Deposition of Ann O'Malley ("O'Malley Tr.") at 19-20, 24-25, 361-62, appended as Ex. C to Carabba Decl. and as Ex. 4 to Declaration of Michael C. Griffaton in Support of Defendants' Motion for Summary Judgment, Dkt. No. 78 ("Griffaton Decl. I").)

O'Malley and her group, including Malena, first worked within Victoria's Secret Direct, LLC ("VSD"),*fn2 but were moved in about October 2007 to Victoria's Secret Stores Brand Management, Inc. ("SBM") to oversee creative services at both VSD and SBM. (Declaration of Pia Ferrario, Dkt. No. 79 ("Ferrario Decl. I"), ¶¶ 7-9; Declaration of Shannon Foley, Dkt. No. 80 ("Foley Decl. I"), ¶¶ 8-10.)

Malena's work responsibilities included: opening and sorting mail, organizing files, maintaining O'Malley's calendar, assisting with meeting agendas and materials, and providing various personal assistance to O'Malley, such as watering plants or meeting service providers at O'Malley's apartment. (Position Profile, appended as Ex. H to Carabba Decl.; Affidavit of Fredda Malena dated April 7, 2010 ("Malena Aff. I") ¶ 6, appended as Ex. GG to Carabba Decl.)

O'Malley praised Malena's performance in various notes to Malena. (See Carabba Decl., Exs. I, J, K, L, M, N, O, P, Q.) Malena also received an "Impact Award," recognizing how she had "touched everyone with her amazing, can-do attitude, her enthusiastic creativity, her boisterous spirit and her constant drive to help the company flourish" and how she "consistently [went] above and beyond the call of duty by supporting not only [O'Malley] but also [O'Malley's] direct reports and [was] quick to help anyone and everyone on the creative team in any capacity possible." (See Impact Award, appended as Ex. R to Carabba Decl.; Impact Award remarks, appended as Ex. S to Carabba Decl.) Malena's 2008 performance review shows that she received an overall performance rating of 2, the second-highest of five ratings, about which the review form states, "Few associates fall into this category. This person always accomplishes results well beyond what is expected." (Performance Review Form dated April 16, 2008 at cover, 5, appended as Ex. T to Carabba Decl.)

B. Malena's Pregnancy and Subsequent Workplace Difficulties

Malena became pregnant and took maternity leave, which began in late July 2008. (Malena Aff. II ¶ 10; Transcript of April 16, 2010 Deposition of Beth Fallacaro ("Fallacaro Tr."), appended as Ex. D to Carabba Decl. and as Ex. 5 to Griffaton Decl. I, at 117; FMLA Approval Letter, appended as Ex. II to Carabba Decl.) Malena testified that, shortly after she announced her pregnancy, a "coldness develop[ed]" in her relationship with O'Malley. (Transcript of June 29, 2010 Deposition of Fredda Malena ("Malena Tr."), appended as Ex. B to Carabba Decl. and as Ex. 3 to Griffaton Decl. I, at 241.)

Upon Malena's return from maternity leave, O'Malley began criticizing her for issues that had never been problematic before her maternity leave, including Malena's clothing, her purportedly excessive friendliness, and her email etiquette. (See Malena Tr. 251, 261-62; Malena Aff. II ¶¶ 5-8, 13; O'Malley Tr. at 298; January 16, 2009 Email from Fredda Malena, appended as Ex. W to Carabba Decl.; Undated Email from Fredda Malena to Ann O'Malley, appended as Ex. V to Carabba Decl.) Malena testified that O'Malley never mentioned Malena's pregnancy in Malena's presence (Malena Aff. II ¶ 4; Malena Tr. at 243), but prohibited Malena from posting pictures of her children and co-workers' children in her cubicle as she had done before her maternity leave (Malena Aff. II ¶¶ 8, 13).

O'Malley met with the human resources ("HR") manager assigned to her group, Beth Fallacaro, on January 15, 2008. O'Malley told Fallacaro that she was concerned about Malena's performance and "concerned that a second child may keep her out of the office." (Fallacaro Tr. at 226.) Fallacaro's hand-written notes from the meeting include these bullet points: "Fredda is not 'on' all the time"; "her kid is always sick & taking time off," followed by "not chronic illness" and "now a second child"; "need someone 24/7 (weekends)"; "not getting support she needs from Fredda"; "finding Jen Pincus to be more supportive and better fit w/ what Ann needs"; "hormonal? not focused"; "can Fredda keep up w/ pace." (Fallacaro Notes dated January 15, 2008, appended as Ex. EE to Carabba Decl.; see also Fallacaro Tr. at 221.) In her deposition, O'Malley confirmed that she had been concerned about Malena's absences, purportedly due to her child's illnesses. (O'Malley Tr. at 277-78.)

O'Malley also testified that there had been discussions about the possibility of replacing Malena with Jennifer Pincus, another executive assistant in O'Malley's group, though O'Malley could not recall the timing of these discussions. (O'Malley Tr. 346-47.) A second meeting between O'Malley and Fallacaro took place on September 8, 2008; Fallacaro's notes from this meeting mention a "possible move" or "switch" of Malena and Pincus. (Fallacaro Notes dated September 8, 2008, appended as Ex. JJ to Carabba Decl.) Fallacaro made notes two days later about a discussion with her supervisor, Debra Bierman, about O'Malley and a "confidential search for admin but not too far in advance." (Fallacaro Notes dated September 10, 2008, appended as Ex. KK to Carabba Decl.) O'Malley later testified, "There was no confidential search, just so you know. There was no confidential search." (O'Malley Tr. at 346.)

The evidence shows that Malena, too, met with Fallacaro in HR and raised concerns about O'Malley's unfriendly behavior towards her-once in early February 2009 and once "[a]pproximately two days before [Malena] was terminated" in late February 2009. (Malena Aff. II ¶¶ 15-16.) However, in these meetings, Malena did not attribute any of O'Malley's conduct to dissatisfaction with Malena's pregnancy or maternity leave. (Malena Tr. at 308 ("There was no way I was going to bring up discrimination to Beth Fallacaro.").)

C. Victoria's Secret Reduction-in-Force

In February 2009, SBM and VSD both undertook a reduction-in-force ("RIF"). (Ferrario Decl. I ¶ 12; Foley Decl. I ¶ 13.) As part of the associated restructuring, numerous employees were reassigned to different jobs. (Ferrario Decl. I ¶ 13; Foley Decl. I ¶ 14.) O'Malley's group, which had been at SBM, was returned to VSD. (Ferrario Decl. I ¶ 14-15; Foley Decl. I ¶ 15-16.) Then, thirty-two VSD employees, including Malena, were terminated in the RIF. (Ferrario Decl. I ¶ 13; Foley Decl. I ¶ 14.)

Defendants have adduced evidence that all decisions about terminations in the VSD RIF were made by VSD's CEO Pia Ferrario and VSD's Senior Vice President of Human Resources Sheena Foley. (Ferrario Decl. I ¶ 16; Foley Decl. I ¶ 17.) Ferrario and Foley had been given a dollar figure by which they were to reduce VSD's costs. (Ferrario Decl. I ¶ 17; Foley Decl. I ¶ 18.) The two held discussions with various managers, including O'Malley, regarding which employees were critical to the Victoria's Secret business. (Ferrario Decl. I ¶ 19; Foley Decl. I ¶ 20.) However, Ferrario and Foley insist that they did not ask O'Malley about the people in her own group, including Malena, because O'Malley did not then know that she would be demoted to her previous position at VSD, that her group would be returned to VSD, or that her group would be at all affected by the restructuring. (Ferrario Decl. I ¶¶ 19-21; Foley Decl. I ¶¶ 21-22.) They stress that O'Malley "was not . . . involved in, asked about, or a decision maker with regard to her own team." (Foley Decl. I ¶ 22; see also Ferrario Decl. I ¶ 21; O'Malley Tr. at 364-85.) The RIF and its consequences were announced to VSD employees on February 25 and 26, 2009; only days before, SBM leadership had informed O'Malley that she would be returned to VSD. (Ferrario Decl. I ¶ 15; Foley Decl. I ¶ 16.)

In materially identical language, Ferrario and Foley explain their decision to terminate Malena this way:

Before the 2009 RIF, Lynette Cortez's role was Senior Vice President for Creative Services of VSD, reporting directly to Ms. Ferrario (the CEO). At that time, Jennifer Pincus was employed as Cortez's administrative assistant; Pincus earned $55,000 annually. . . . After the restructuring, Cortez was demoted to a position that would instead report to O'Malley. Due to Cortez's demotion, Cortez was no longer senior enough to have an assistant (Pincus). . . . This meant that Creative Services for VSD had two assistants-Malena and Pincus-but only one open assistant position, the one reporting to O'Malley. . . . Ms. Ferrario and [Ms. Foley] selected Pincus as O'Malley's assistant for O'Malley's new, reduced role, and [they] identified Malena to be terminated as part of the RIF, because Malena's salary was $75,000 and Pincus' salary was $55,000. (Foley Decl. I ¶¶ 23-26; see also Ferrario Decl. I ¶¶ 22-25.) Foley and Ferrario also averred that, "[i]n the year prior to the RIF, 17 associates from VSD took FMLA leave for reasons related to pregnancy, birth, or adoption; only two of those 17 associates (including Malena) were terminated as part of the RIF" and that "to the best of [Ferrario and Foley's] knowledge, none of the other 31 individuals at VSD who lost their jobs in the 2009 RIF were pregnant." (Foley Decl. I ¶¶ 29-30; Ferrario Decl. I ¶ 27.)

D. O'Malley's Authority and Role in Malena's Termination

According to evidence adduced by Defendants and not refuted by Plaintiff, O'Malley did not have authority to hire or fire Plaintiff; did not maintain employment records; did not classify employees as being exempt or non-exempt from federal or state overtime pay requirements; did not have sole authority to set her associates' salary, working hours, or schedules; and did not accept, process, or approve associates' requests for FMLA leave. (Foley Decl. I ¶¶ 32-36.)

Plaintiff's Interrogatory Number 5 asked Defendants to "[i]dentify all persons who have knowledge of any facts and/or circumstances relating to the cessation of Plaintiff's employment with Defendants." (Defendants' Responses to Plaintiff's First Set of Interrogatories on Individual Claims, appended as Ex. BB to Carabba Decl. ("Interrogatory Responses I"), at 6.) While objecting that the "request exceed[ed] the parameters of permissible discovery under Local Rule 33.3(a)," Defendants responded:

Plaintiff Ann O'Malley Beth Fallacaro Debra Bierman Sheena Foley

Pia Ferrario (Id.; see also Verification of Ann O'Malley, appended as Ex. DD to Carabba Decl.)

Plaintiff's Interrogatory Number 6 asked Defendants to "[i]dentify all persons involved in the decision to reassign some, but not all of the employees in Plaintiff's department." (Interrogatory Responses I at 6.) Defendants responded:

Ann O'Malley Sheena Foley

Pia Ferrario (Id. at 7.) With the filing of their reply papers, Defendants amended their answer to Interrogatory Number 6 to remove O'Malley's name from the list given above and to explain that "Ann O'Malley provided some input into the reorganization process regarding certain associates of Victoria's Secret Direct, but not regarding the four-person department" of O'Malley, Malena, and two others. (Defendants' Amended Response to Plaintiff's First Set of Interrogatories on Individual Claims ("Amended Interrogatory Response"), appended as Ex. 6 to Reply Declaration of Michael G. Long, Dkt. No 95.)

II. Legal Standard for Summary Judgment

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks and citation omitted). "A fact is 'material' when it might affect the outcome of the suit under governing law," and "[a]n issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citation omitted).

When determining whether a genuine dispute of material fact exists, a court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).

III. Discussion

This discussion addresses in turn (1) Plaintiff's claims against the Corporate Defendants for discrimination and retaliation; (2) her claims against O'Malley for discrimination and retaliation; (3) her claims for aiding and abetting pregnancy discrimination; (4) her spread-of-hours claim; and (5) certain claims that Plaintiff has withdrawn in the face of Defendants' motions.

A. Discrimination and Retaliation Claims against the Corporate Defendants

Against the Corporate Defendants, Malena asserts claims for pregnancy discrimination under the NYSHRL and NYCHRL and for retaliation under the FMLA and NYSHRL and NYCHRL.

1. Pregnancy Discrimination

Though neither the NYSHRL nor the NYCHRL explicitly names pregnancy as a type of actionable discrimination, courts have deemed pregnancy discrimination actionable under both laws. See Elaine W. v. Joint Disease N. Gen. Hosp., Inc., 81 N.Y.2d 211, 216, 613 N.E.2d 523 (1993) (explaining that, under the NYSHRL, "distinctions based solely upon a woman's pregnant condition constitute sexual discrimination"); Caralp v. Credit Agricole Cheuvreux North America, Inc., 2009 N.Y. Misc. LEXIS 4575, at *8, 2009 N.Y. Slip Op 30174 [U] (N.Y. Sup. Ct. Jan. 26, 2009) (stating that "without question," under both NYSHRL and NYCHRL, "Plaintiff is female and was pregnant, and so is and was a member of a protected class"); Wenping Tu v. Loan Price Corp., 21 Misc 3d 1104[A], at *6, 873 N.Y.S.2d 238, 2008 N.Y. Misc. LEXIS 5606 (N.Y. Sup. Ct., ...

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