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Bader v. Special Metals Corp.

United States District Court, N.D. New York

December 4, 2013

DEBRA BADER, Plaintiff,

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For Debra Bader, Plaintiff: AJ Bosman, LEAD ATTORNEY, Daniel W. Flynn, Bosman Law Office, Rome, NY.

For Special Metals Corporation, Defendant: Brian J. Butler, Colin M. Leonard, Bond, Schoeneck Law Firm - Syracuse, Syracuse, NY.

For William Farley, Keith Dabs, Dave Maracek, John Does(s), Defendants: Brian J. Butler, Bond, Schoeneck Law Firm - Syracuse, Syracuse, NY.


Lawrence E. Kahn, U.S. District Judge.

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This action arises out of Plaintiff Debra Bader's (" Plaintiff" ) former employment

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with Defendant Special Metals Corporation (" SMC" ). Plaintiff brings claims under: (1) the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq.; (2) Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq.; (3) the New York Human Rights Law (" HRL" ), N.Y. EXEC. LAW § 290 et seq.; and (4) New York contract law. See Dkt. No. 4 (" Complaint" ) ¶ ¶ 27-67. SMC and individual Defendants William Farley (" Farley" ), Keith Dabbs (" Dabbs" ), and Dave Maracek (" Maracek" ) (collectively, the " Individual Defendants" ; [1] collectively with SMC, " Defendants" ) have moved for summary judgment. Dkt. No. 22 (" SJ Motion" ); see Dkt. Nos. 22-1 at 1-38 (" Memorandum" ); 36 (" Response" ); 40 (" Reply" ). Plaintiff has moved to amend her Complaint. Dkt. No. 35 (" Motion to Amend" ); see Dkt. No. 35-1 (" Proposed Amended Complaint" ). For the following reasons, the Motion to Amend is denied and the SJ Motion is granted in part.


Plaintiff is a New York resident and was employed at the New Hartford, New York, facility of SMC, a division of Precision Castparts Corporation (" PCC" ), during the period relevant to this action. Compl. ¶ 2; Dkt. Nos. 22-11 (" SMF" ) ¶ ¶ 3-4, 6; 38 (" SMF Response" ) ¶ ¶ 3-4, 6. From 1978 to the relevant period, she worked in SMC's Inspection Department, which ensures that SMC's metal alloys are manufactured to specification, errors are captured, and appropriate documentation is maintained about the products. SMF ¶ ¶ 12-13, 37-38; SMF Resp. ¶ ¶ 12-13, 37-38. While Plaintiff was an SMC employee, she was a member of the International Association of Machinists and Aerospace Workers and Local Lodge 2310 (the " Union" ), which had a collective bargaining agreement (" CBA" ) with SMC. SMF ¶ ¶ 5-6, 9; SMF Resp. ¶ ¶ 5-6, 9. Any discipline imposed by SMC on Union workers was subject to CBA requirements. SMF ¶ 25; SMF Resp. ¶ 25. Discipline took several forms, including verbal counseling, written warning, suspension, and termination. SMF ¶ 24; SMF Resp. ¶ 24. Union workers could file grievances challenging discipline. SMF ¶ 26; SMF Resp. ¶ 26.

SMC has a database of employee work records to track employee work histories. SMF ¶ ¶ 28-29; SMF Resp. ¶ ¶ 28-29. Each employee work record lists categories of reviews that may have been presented to an employee, e.g., commendation, training, coaching, reminder, verbal counsel, and written warning. SMF ¶ 30; SMF Resp. ¶ 30. Employee work records were issued for Plaintiff during her employment at SMC, including for discipline. SMF ¶ 40; SMF Resp. ¶ 40. These included: a reminder on February 19, 2008; a verbal counsel on March 16, 2009; two written warnings on February 17, 2010; two written warnings accompanied by a three-day suspension on March 1, 2010; and a written warning on April 13, 2010. SMF ¶ ¶ 46-51; SMF Resp. ¶ ¶ 46-51. The Union filed grievances relating to the two written warnings issued on February 17, 2010, one of the written warnings issued on March 1, 2010, and the written warning issued on April 13, 2010. SMF ¶ ¶ 64-66; SMF Resp. ¶ ¶ 64-66. SMC also issued discipline to five male employees of the Inspection Department in 2010, including written warnings, suspensions, demotion, and " Last Chance Agreements" (" LCAs" ). SMF ¶ ¶ 71-77; SMF Resp. ¶ ¶ 71-77.

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Pursuant to Article 9.01 of the CBA, a disciplinary hearing regarding Plaintiff was scheduled for April 15, 2010, which Plaintiff states she did not attend. SMF ¶ ¶ 53-54; SMF Resp. ¶ ¶ 53-54. Plaintiff was then issued a ten-day suspension with a return-to-work date of April 27, 2010. SMF ¶ ¶ 52, 55; SMF Resp. ¶ ¶ 52, 55. SMC also proposed that Plaintiff sign an LCA, which she declined to do. SMF ¶ ¶ 56-57; SMF Resp. ¶ ¶ 56-57. The Union filed a grievance relating to the ten-day suspension and the request that Plaintiff sign an LCA. SMF ¶ 66; SMF Resp. ¶ 66. Plaintiff did not return to work on April 27, 2010, or thereafter. SMF ¶ 59; SMF Resp. ¶ 59.

SMC maintains an anti-harassment policy, and its parent company, PCC, maintains a " Code of Business Conduct and Ethics," which includes a nondiscrimination statement. SMF ¶ ¶ 78-79, 81; SMF Resp. ¶ ¶ 78-79, 81. Plaintiff received a copy of the PCC Code on February 13, 2007. SMF ¶ ¶ 79-80; SMF Resp. ¶ ¶ 79-80. During the relevant period, PCC employed a service called " EthicsPoint," which enabled SMC employees to complain, via telephone or the Internet, about potential violations of the PCC Code, other company policies, or the law. SMF ¶ ¶ 83-84; SMF Resp. ¶ ¶ 83-84. Plaintiff used this service on July 9, 2009, to file a complaint. SMF ¶ 85; SMF Resp. ¶ 85. Sometime in the next few weeks, Plaintiff received a telephone call from SMC's Division Director of Organizational Development Dan Dohar (" Dohar" ), who spoke to her for approximately half an hour. SMF ¶ ¶ 86, 88; SMF Resp. ¶ ¶ 86, 88. On September 20, 2009, Plaintiff received a response through the EthicsPoint system stating, among other things, that neither her concerns nor interviews conducted as part of a review of her concerns indicated harassment, discrimination, or other violation of company policies, or that she was being targeted for discipline or termination. SMF ¶ 89; SMF Resp. ¶ 89.

On April 22, 2010, Plaintiff, or a former SMC employee on her behalf, filed another EthicsPoint report. SMF ¶ 91; SMF Resp. ¶ 91. SMC's Vice President for Human Resources responded to Plaintiff's report on April 27, 2010, noting that the Union had already filed grievances on Plaintiff's behalf regarding her concerns. SMF ¶ ¶ 92-93; SMF Resp. ¶ ¶ 92-93. On April 29, 2010, Plaintiff submitted medical documentation that she could not return to work until further notice due to carpal tunnel syndrome in her left wrist. SMF ¶ 62; SMF Resp. ¶ 62. On June 21, 2010, the Union advised SMC that it would not proceed to arbitration on Plaintiff's grievances because she was on medical leave of absence. SMF ¶ 68; SMF Resp. ¶ 68.

Plaintiff then filed a complaint with the New York State Division of Human Rights (" Division" ) on December 14, 2010. SMF ¶ 94; SMF Resp. ¶ 94; see also Dkt. No. 35-8 (" Division Complaint" ). The Division Complaint was dismissed for administrative convenience on February 1, 2011, and the U.S. Equal Employment Opportunity Commission (" EEOC" ) issued Plaintiff a Notice of Right to Sue on April 4, 2011. SMF ¶ 95; SMF Resp. ¶ 95. Plaintiff commenced an action in New York Supreme Court, Oneida County, on June 22, 2011, which Defendants removed to the Court pursuant to 28 U.S.C. § 1441 on July 7, 2011. See Dkt. No. 1. Plaintiff filed her Complaint with the Court on September 9, 2011. Thereafter, on October 18, 2011, Plaintiff sent SMC a letter declaring her " intention to retire from employment at SMC-New Hartford; effective October 28, 2011." SMF ¶ 69; SMF Resp. ¶ 69. SMC sent a confirmatory letter, dated October 24, 2011, which Plaintiff countersigned. SMF ¶ 70; SMF Resp. ¶ 70.

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A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 15(a)(1) a party may, within certain defined time periods, amend a pleading as a matter of course. If amendment as a matter of course is not permitted, a pleading may be amended only if the opposing party consents in writing or the court grants leave. See Fed.R.Civ.P. 15(a)(2). Generally, a court " should freely give leave when justice so requires." Id. However, Federal Rule of Civil Procedure 16(b) requires the issuance of scheduling orders that " must limit the time to . . . amend the pleadings." Such scheduling orders " may be modified only for good cause." Id. Thus, when a motion to amend is made after a scheduling order's deadline for doing so has expired, " the lenient standard under Rule 15(a) . . . must be balanced against . . . Rule 16(b)." Grochowski v. Phoenix Constr., 318 F.3d 80, 87 (2d Cir. 2003). There is good cause for permitting modification of pleading-amendment deadlines where the party moving for modification has been diligent in doing so. Id. " [G]ood cause may not be established where the facts underlying the claim were known to the plaintiff at the time the action was filed." Alexander v. Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 118 (E.D.N.Y. 2011). " Moreover, while the absence of prejudice to a non-moving party may be relevant in determining whether leave to amend should be granted under Rule 15(a), it does not fulfill the 'good cause' requirement of Rule 16(b)." Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (quotation marks omitted).

B. Discussion

On December 1, 2011, the honorable David E. Peebles, U.S. Magistrate Judge, entered an Order setting a March 1, 2012 deadline for pleading amendments and an August 31, 2012 deadline for the completion of discovery. See Dkt. No. 13 (" Scheduling Order" ). The discovery deadline was then extended until December 31, 2012; the pleading-amendment deadline was never extended. See Text Order of November 16, 2012. See generally Dkt.

Plaintiff filed her Motion to Amend on April 9, 2013. She seeks to add new allegations regarding the protected activity for which she was allegedly retaliated against by Defendants. See Proposed Am. Compl ¶ ¶ 9, 11, 52, 61. Specifically, she seeks to add allegations that she was retaliated against after she: (1) complained to the Union about her supervisor Brian Allen's (" Allen" ) " sexually charged, offensive, and crude remarks" ; and (2) was named as witness and deposed in her former coworker Linda DiFillippo's (" DiFillippo" ) discrimination lawsuit against SMC (" the DiFillippo Action" ). Id. ¶ ¶ 9, 11. In support of the Motion to Amend, Plaintiff's attorney submits an affidavit in which she argues that: (1) Defendants will not be prejudiced by the amendments; (2) the amendments will not cause any delay; (3) the Motion to Amend is not brought in bad faith; and (4) the amendments are meritorious. Dkt. No. 37 (" Bosman Declaration" ) ¶ 14.

Plaintiff waited until more than a year after the expiration of the pleading-amendment deadline, and more than thee months after the discovery period closed, to bring the Motion to Amend. She has offered no explanation for her delay. See generally id. All of the facts upon which the new allegations are premised were known to Plaintiff well before she filed the Motion to Amend. Plaintiff's counsel was undoubtedly aware by January 11, 2010, that Plaintiff had been named as a witness in the DiFillippo Action, as she herself did

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the naming: Plaintiff's counsel represented DiFillippo and served the Federal Rule of Civil Procedure 26 that identified Plaintiff as an individual likely to have information regarding DiFillippo's claims. Id. ¶ 6. Plaintiff was certainly aware that she had complained to her Union about Allen's remarks. Further confirming Plaintiff and her counsel's knowledge is the August 2010 deposition of Plaintiff in the DiFillippo action, at which Plaintiff's counsel asked Plaintiff about her complaints to the Union regarding Allen's harassment. See Dkt. No. 35-2 at 77-84.[2]

Yet despite being aware, even before she commenced this action, of the protected activity she now seeks to add to her Complaint, Plaintiff failed to move to amend in a timely fashion. She has offered no explanation for this delay; she has not, for example, asserted that she did not learn she was retaliated against for this protected activity until after the amendment and discovery periods expired. See generally Bosman Decl. Plaintiff has not shown good cause for her delay. The Motion to Amend is therefore denied.[3]


A. Legal Standard

Federal Rule of Civil Procedure 56 instructs a court to grant summary judgment if " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Although " [f]actual disputes that are irrelevant or unnecessary" will not preclude summary judgment, " summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the burden shifts to the nonmoving party to demonstrate " the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. This requires the nonmoving party to do " more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 120 S.Ct. 2097 Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736 Gallo v. Prudential Residential

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Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). " Courts are particularly cautious about granting summary judgment to an employer in a discrimination case where, more often than not, it is the employer's intent that is in question." Lawrence v. Thomson Learning, Inc., No. 05-CV-329, 2007 WL 1593270, at *14 (N.D.N.Y. June 1, 2007) (citing Gallo, 22 F.3d at 1224)); See also Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (instructing district courts to " be especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination" ).

B. Gender and Age Discrimination

Plaintiff brings ADEA and HRL claims for age-based disparate treatment and Title VII and HRL claims for gender-based disparate treatment. See Compl. ¶ ¶ 30-32, 39-41, 48-50, 57-59. All of these claims proceed according to the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 92-93 (2d Cir. 2013); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010); Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008).

To make out a prima facie case of disparate treatment, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). " A plaintiff's burden of establishing a prima facie case is de minimis ." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). Once the plaintiff meets this minimal burden, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012). Following this articulation, " the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). A court may examine the " the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case." Id. (alterations in original and quotation marks omitted).

1. Prima Facie Case

Defendants do not dispute that Plaintiff is a member of a protected class by virtue of her age and gender or that she was qualified for her position. However, they argue that she cannot make out a prima facie case of discrimination, because: (1) she was not subjected to any adverse employment action; and (2) even if she was subject to adverse employment actions, they did not take place in circumstances giving rise to an inference of discrimination. See Mem. at 9-12; Reply at 19-21.

a. Adverse Employment Action

Only employment actions that are " adverse" are actionable under the ADEA, Title VII, and the HRL. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003). " An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities."

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Id. at 138 (quotation marks omitted). Adverse employment actions may include " a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Patrolmen's Benevolent Ass'n v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002) (alteration in original and quotation marks omitted).

Plaintiff advances the following putatively adverse employment actions: (1) a January 2007 written warning; (2) a February 2007 written warning; (3) a February 2008 " Reminder" ; (4) a March 2009 verbal counsel; (5) a June 2009 written warning; (5) two February 2010 written warnings; (6) two March 2010 written warnings; (6) a three-day suspension in March 2010; (7) a ten-day suspension in April 2010; (8) a Last Chance Agreement proposed on April 15, 2010; (9) a demotion and written warning on April 30, 2010; and (10) constructive discharge.[4] See Resp. at 8-9. Defendants argue that none of these were adverse employment actions. See Mem. at 9-11.

i. Pre-2010 Discipline

Verbal and written warnings generally do not constitute adverse employment actions unless they lead to more substantial employment actions that are adverse. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 559-70 (2d Cir. 2011) (finding that an employee counseling was not actionable because it did not place the employee in a progressive disciplinary process); Krishnapillai v. Donahoe, No. 09-CV-1022, 2013 WL 5423724 (E.D.N.Y. Sept. 26, 2013) (" Courts in this circuit have found that reprimands, threats of disciplinary action and excessive scrutiny do not constitute ...

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