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Noreen A. Bundschuh v. the Inn On the Lake Hudson Hotels

November 2, 2012


The opinion of the court was delivered by: Siragusa, J.



This is an action alleging hostile work environment, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the New York State Human Rights Law ("HRL"), N.Y. EXEC. LAW §§ 296 et seq. Now before the Court is Defendant's motion for summary judgment, filed February 22, 2010, ECF No. 14, and motion to opt-out of Alternative Dispute Resolution ("ADR"), filed October 5, 2012, ECF 27. The application for summary judgment is granted, and the request to opt-out is denied as moot.


Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff. Plaintiff worked for the Inn on the Lake*fn1 ("Inn") as its Director of Sales and Marketing from May 1, 2006, to July 5, 2007. The 134-room Inn is a largely seasonal resort, with its "busy season" lasting from Memorial Day to Labor Day. Christopher Burns ("Burns"), the Inn's Managing Director, is the person who interviewed Plaintiff, reviewed the position requirements with her, and offered her a position as one of five Directors reporting directly to him. All Inn personnel, including Burns, ultimately are answerable to the President and Chief Executive Officer of Canandaigua Hotel Corporation, Tom Blank.

Plaintiff supervised a three-person staff responsible for booking business and social events at the Inn's facilities. This involved calling on existing and potential clients, reserving blocks of rooms and hotel facilities, overseeing the preparation of contracts, and coordinating with others, such as the Director of Food and Beverage and the Director of Hotel Operations, to ensure that the requested facilities were available and to oversee the execution of events. Plaintiff was the Inn's only female director.

Early in her tenure, Inn employees complained that Plaintiff was heavy-handed and demanding, and Burns describes her as having a "prickly personality." Burns Aff. ¶ 10. In or about August 2006, Burns spoke to Plaintiff, in the presence of Food and Beverage Director Walt Berkstresser ("Berkstresser"), and advised that she needed to be more cooperative with Burns and her co-workers, and less heavy-handed with subordinates. Id. ¶¶ 10-11. According to Burns, he was required to discuss Plaintiff's heavy-handedness with her on several other occasions, including in approximately January 2007, when one of Plaintiff's staff, Judy White, broke down in tears over difficulties she had dealing with Plaintiff. Id. ¶¶ 12-14.

For her part, Plaintiff felt that Burns belittled and humiliated her. In late summer 2006, Plaintiff felt "belittled" by Burns when the two met with a local trade organization. After the meeting, she went to Roger Miller ("Miller"), the Inn's Director of Finance, who also administers corporate HR policy at the Inn, and asked who she could speak to about human resources issues. Miller gave her the phone number for Wendy Blank, the Inn's corporate HR Director. Plaintiff opted not to call Blank at that time. Pl's Dep., 46:4-20. She did not contact Blank until June 8, 2007, when she left a voicemail asking that the HR Director return her call. In the meantime, she continued to approach Miller with grievances about her treatment by Burns. Plaintiff states that she repeatedly told Miller that Burns was treating her differently because she was a female, Pl's Dep. 202:11-23, a claim Miller calls "absolutely incorrect," Miller Reply Aff. ¶¶ 11-12. There were no witnesses to Plaintiff's and Miller's discussion.

After Plaintiff's first meeting with Miller, Burns called an emergency Directors' meeting. During the meeting, Burns "yelled" at Plaintiff for wanting to call CEO Tom Blank, questioned why he hired her, and stated he could not trust her.

As a Director who attended regular meetings with both of them, Miller observed that "Plaintiff and Mr. Burns generally did not communicate well with one another." Miller Reply Aff. ¶ 19. Miller describes Burns as occasionally having a "rough style," and as someone who did not hesitate to single out a particular Director-"as virtually all of the Inn's Directors have been on occasion"-and criticize him or her for making a mistake. Id. ¶¶ 7-9. Berkstresser offered a similar view, noting that Burns criticizes the performance of individual Directors during meetings in a way that can be "embarrassing and unwanted," such as his recent reference to Berkstresser as a "crybaby." Berkstresser Reply Aff. ¶ 8. Berkstresser describes Burns as having "frequently" criticized Director of Hotel Operations, Mike Reinhard, due to performance problems until his termination, in December 2007. Id. ¶ 9. Miller opines that Plaintiff's mistakes stood out at their meetings because no other Director during her tenure made mistakes of a sort that cost the Inn significant amounts of money, as Plaintiff's did. Miller Reply Aff. ¶ 8.

Plaintiff describes certain incidents, occurring after she first spoke with Miller, which she believes were harassing and/or retaliatory. These the following: Burns: approved her taking her sales team to dinner for reaching a goal, but later questioned the bill and delayed paying it; Burns directed her to discuss with Food and Beverage Director Berkstresser the various events that she arranged; Burns became upset with her for booking an expensive band during the off-season; Burns assigned her to work on a project beyond her job responsibilities and then marched into her office when she experienced challenges with the project; Burns indicated he wanted all of the Directors to lie about underage drinking at an employee event; Burns took an event away from her and assigned it to one of her subordinates; Burns gave her the "silent treatment;" Burns called her last for, or excluded her from, director meetings; and Burns unfairly disciplined her. Pl's Rule 56 Counter Stmt.¶¶ 39-152. To the extent necessary, these various actions will be discussed more fully below.

During her tenure, Burns addressed a number of performance-related issues with Plaintiff. In September 2006, at the end of the Inn's busy summer season, Burns requested that Plaintiff begin making outside sales calls to local businesses over the next six weeks, advise him how many calls she could reasonably make per week, and provide him with a call summary at the end of each day. At some point in December 2006, Burns met with Plaintiff at his desk in the Inn's lobby to express his disappointment at the level of her outside sales activities and to again advise her that she needed to actively start doing sales calls. Pl's Dep. 56:14-57:25. Burns sent Plaintiff a follow-up email, dated December 21, 2006, "to put this in writing so there is no misunderstanding." He then set out a detailed call schedule for Plaintiff, explaining that "[t]his is the only way we can pick up new business in the first quarter when we badly need it." Burns thanked Plaintiff for her hard work, and assured her the sales calls "will pay off in spades." Def's Rule 56 Stmt., Ex. C. Plaintiff disagreed with Burns' approach, and believed his comments were unfair, because as "director of the department, [she] was trying to make the best decisions for the department and the hotel. If [she] needed to be in the office to assist [her] team, that was more important." Pl's Rule 56 Stmt. 62:3-7, 63:21-64:2.

At-will Inn employees, such as Plaintiff, are subject to a progressive discipline program that incorporates both verbal and written warnings. Written warnings are administered on Personnel Action Forms ("PAFs") which are placed in the employee's personnel file. During the course of her employment, Plaintiff received four PAFs. The first, dated January 12, 2007, related to an error Plaintiff made in September 2006, when she booked a banquet event for Latinas Unidas, a charitable organization. Plaintiff did not put pricing information on the order submitted for the event and, afterward, the organization disputed the bill, stating they did not know the event would cost so much. Def's Rule 56 Stmt., Ex. F. The Inn ultimately was able to collect only half of the disputed bill, which cost it approximately $3,200.00. Burns met with Plaintiff on January 12, 2007, to discuss the matter and give her the PAF. Plaintiff did not dispute the error and signed the written warning.

The next PAF, dated June 8, 2007, related to a singles dating event Plaintiff arranged for May 11, 2007. This warning was issued because she did not enter the event into the datebook kept by the Inn to track upcoming functions, and did not complete a Banquet Event Order until the day before the event, necessitating a hasty set-up. Id. Ex. G. Plaintiff explained to Burns that she had entered the event in the book a month or two prior, but that the client called and cancelled due to a low response, so she removed it. After the client left a late night message two days before the event to say it would, in fact, go forward, Plaintiff prepared the BEO. Pl's Dep. 115:5-116:8, 117:16-118:8. Nevertheless, Burns issued the PAF, stating "[w]hat we don't understand is why a tentative BEO was not issued in our May 9 staff meeting as the event was advertised in the newspaper a week before." Def's Rule 56 Stmt., Ex. G. Plaintiff refused to sign this PAF due to her disagreement with Burns' final comment that "[t]his gives the appearance that the singles dating event may be for [Plaintiff's] personal benefit as she attends them." Id., Pl's Dep. 118:21-119:7.

A third PAF also was issued to Plaintiff on June 8, 2007, due to her failure to submit sales reports to Burns, as he had requested. Plaintiff signed this PAF, noting that she had organized a sales blitz on March 20th which generated a minimum of three contracted events. Def's Rule 56 Stmt., Ex. E. She did not dispute her failure to submit call reports after November 2006.

According to Plaintiff, the two PAFs she received on June 8, 2007, were issued in retaliation for an anonymous letter Burns believed she had written. The circumstances were as follows. Burns organized an employee morale-boosting event to be held on May 20, 2007, in advance of the busy summer season. All Inn employees were invited and the event featured food, a bar, and live music. After the party, a 20-year-old Inn employee was stopped by police and cited for public intoxication. Approximately a week to ten days later, Tom Blank, Tony Gullace, who operated a restaurant on Inn property, and Richard Sands, the President and CEO of Constellation Brands, Inc., each received an anonymous letter written by an individual purporting to be an Inn employee. The writer was "appauld [sic] and disgusted by what happened at Sunday's employee pep rally" and opined that "[u]nattended alcohol, drinking games and under-aged drinking is a poor example of good management practices." Id. Ex. H. Plaintiff denies writing the letter and denies knowing who did. Burns nonetheless came to believe Plaintiff was the author because she had used the word "appalled" in conversations about the party, and because the letter was signed "respectfully," which is the closing Plaintiff uses in all her emails and letters. At the next Wednesday staff meeting after the letter came to light,*fn2 Burns "told the entire team there was a rat among us," and he "was going to find out who did this," while looking directly at Plaintiff. Pl's Dep. 174:19-176:14. On June 8, after receiving the two PAFs, Plaintiff called and left a voice mail for Ms. Blank, the corporate HR Director. Immediately after June 8, Plaintiff began looking for another job. Id. 232:18-22.

Ms. Blank returned Plaintiff's call the following Monday, June 11, 2007, and arranged to meet with Plaintiff the next day. The June 12 meeting lasted five-and-a-half hours, during which Plaintiff detailed the difficulties she had with her employment. Plaintiff stated she felt Burns exposed her to a hostile work environment and "harassed" her by humiliating her in front of the other Directors after she sought an HR contact number from Miller, giving her the "silent treatment," failing to praise photos she had taken to pair with a fishing package advertisement, and insinuating at the June 6 staff meeting that she was a "rat." Ms. Blank advised Plaintiff she would be turning the matter over to Tom Blank, and relayed the substance of Plaintiff's complaints to him the following day. Ms. Blank followed up with Plaintiff on June 15 to advise that Tom Blank had met with Burns that day, and would be coming to the Inn to interview other employees. Blank Aff. ¶ 28; Def's Rule 56 Stmt., Ex. K. On June 19, Ms. Blank again updated Plaintiff "with respect to the next step in the process of assisting with a resolution to the employment-related problems you are experiencing" and advised that an individual from VitalWorks, with whom Plaintiff was comfortable, would be engaged to conduct "development/coaching sessions" with Plaintiff and Burns. Def's Rule 56 Stmt., Ex. L. VitalWorks is a workforce development consulting firm the Inn had previously retained to study employment relations and offer recommendations. In the meantime, Tom Blank continued his investigation by interviewing the Inn's other Directors and Plaintiff's subordinates on June 20 and 21.

Plaintiff's fourth PAF is dated June 25, 2007, and was written after she admitted lying to a client. Plaintiff told Xerox rooms were available for a business function it wished to book, and signed a contract on behalf of the Inn. In fact, the rooms already had been booked by another organization. After becoming aware of the double-booking, Plaintiff untruthfully told Xerox the rooms were not available because they had been damaged in a windstorm. When Xerox learned of the falsehood, the Inn was required to place the group at another facility, and compensate Xerox for the difference in room rates and food and beverage costs. The total loss to the Inn was approximately $8,900.00. As a consequence, Plaintiff was placed on a 90-day probation. The PAF also confirmed the prior decision that she and Burns would participate in a coaching session with VitalWorks. Plaintiff signed the PAF without comment on June 27, 2007. Def's Rule 56 Stmt., Ex. L. On June 28, Burns sought to schedule an initial coaching session for July 10. Id. Ex. M.

On July 3, 2007, Plaintiff notified Burns, by email and a letter placed in his mailbox, that she was submitting her two-week notice and would resign effective July 17, 2007. She accepted another position in the hotel services industry later that day. Burns accepted Plaintiff's resignation and had her escorted from ...

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