United States District Court, E.D. New York
Saul D. Zabell, Esq., Zabell & Associates, P.C., Bohemia, NY, for Plaintiff.
Beth L. Kaufman, Esq., Alycia Sarah Levy, Esq., Schoeman Updike Kaufman Stern, & Ascher, LLP, New York, NY, Defendant.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Plaintiff Sandra Brown ("Plaintiff") commenced this action against her former employer, defendant Northrop Grumman Systems Corporation, s/h/a Northrop Grumman Corporation, ("Defendant" or "Northrop Grumman"), alleging claims of: (1) gender discrimination in violation of the 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 ("NYSHRL"), N.Y. EXEC. LAW § 290 et seq.; (2) perceived disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the NYSHRL; and (3) retaliation in violation of Title VII, the NYSHRL, and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Currently pending before the Court is Northrop Grumman's motion for summary judgment. (Docket Entry 50.) For the following reasons, Northrop Grumman's motion is GRANTED.
I. Northrop Grumman's Local Civil Rule 56.1 Statement
Before discussing the record in this case, the Court must address a preliminary argument raised by Plaintiff. Plaintiff argues that the Court should strike Northrop Grumman's Local Civil Rule 56.1 Statement because it is not supported by citations to admissible evidence. (Pl.'s Br., Docket Entry 54-68, at 2-3.) Plaintiff claims that Northrop Grumman (1) "failed to lay any foundation for the admissibility of statements contained within any of the affidavits upon which it relies in support of its motion, " and (2) "ignored relevant testimony on numerous topics, choosing instead to re-craft its arguments by relying upon selfserving affidavits undoubtedly generated by counsel." (Pl.'s Br. at 3.)
Plaintiff's request to strike Northrop Grumman's 56.1 Statement is DENIED. First, with respect to Plaintiff's argument regarding foundation, "the test of admissibility... is whether a reasonable trier of fact could believe the witness had personal knowledge" of the facts to which he is testifying. N.Y. ex rel. Spitzer v. Saint Francis Hosp., 94 F.Supp.2d 423, 425 (S.D.N.Y. 2000). The Court has reviewed Northrop Grumman's affidavits and finds that they meet this admissibility standard. Thus, Plaintiff's request to strike Northrop Grumman's 56.1 Statement is denied to the extent that Plaintiff bases her request on the affiants' lack of personal knowledge. Second, Plaintiff is correct that an affiant may not submit an affidavit contradicting his or hew own prior sworn testimony, but Plaintiff's wholesale request that the Court strike "all paragraphs contained within [Northrop Grumman's] 56.1 Statement which do not include a citation to admissible evidence" is also denied. To the extent that any affidavit contradicts the affiant's prior deposition testimony, it will not be considered by the Court. See Dominick v. Hospitality Valuation Servs., Inc., No. 11-CV-3452, 2013 WL 5460654, at *1 (E.D.N.Y. Sept. 30, 2013). With this in mind, the Court turns to the evidence before it.
II. Factual Background
This action arises out Plaintiff's employment and subsequent termination as a software engineer for Northrop Grumman. Northrop Grumman claims that Plaintiff "was laid off... because of [a] reduction of work available for her skill set and because the remaining work could be performed by existing staff." (Def.'s 56.1 Stmt., Docket Entry 50-1, ¶ 5.) Plaintiff disputes this, claiming that Northrop Grumman wrongfully terminated her based on gender and perceived disability and also in retaliation for lodging complaints regarding the alleged gender discrimination and for taking medical leave under the FMLA. (Pl.'s 56.1 Counterstmt., Docket Entry 54-69, ¶ 5; Pl.'s Opp. Br., Docket Entry 54-68, at 1.)
A. Northrop Grumman
Northrop Grumman is a subsidiary of Northrop Grumman Corporation-a provider of manned and unmanned aircraft, space systems, missile systems, and advanced technologies for use in the defense industry. (Def.'s 56.1 Stmt. ¶¶ 1-2.) Plaintiff worked as a software engineer in the Aerospace Systems sector in the Northrop Grumman facility in Bethpage, New York until her termination in July 2011. (Def.'s 56.1 Stmt. ¶¶ 4-5.) Northrop Grumman's Aerospace Systems sector obtains work from customers in the defense industry by submitting proposals to work on particular programs. (Def.'s 56.1 Stmt. ¶ 14.) When and if it is awarded a contract, the customer provides a budget that dictates the number of hours Northrop Grumman may allocate to its employees to complete particular tasks on a that program. (Def.'s 56.1 Stmt. ¶ 15.)
B. Plaintiff's Employment History and Termination
Northrop Grumman hired Plaintiff as an engineering aide in January 1986. (Def.'s 56.1 Stmt. ¶ 3.) At the time of her termination, Plaintiff was a Level 4 Software Engineer in Northrop Grumman's Aerospace Sector. (Def.'s 56.1 Stmt. ¶ 6.) As a Level 4 Software Engineer, Plaintiff worked on various contracts, primarily as an Oracle database administrator and developer, (Def.'s 56.1 Stmt. ¶ 10), but she also performed "C" programming on a different software program known as the "line print utility program" (Def.'s 56.1 Stmt. ¶ 12).
From 2005 through 2008, Plaintiff was allocated "fulltime hours" to perform Oracle database work on a program referred to as Advanced Hawkeye ("AHE"). (Def.'s 56.1 Stmt. ¶ 18.) After Northrop Grumman's software engineers set up the Oracle database for the AHE program, however, the program no longer required a full-time employee to perform database development and administration work. (Def.'s 56.1 Stmt. ¶ 23.) The average number of employees working on the AHE program steadily declined between 2005 and 2010 until the program required no more than ten hours per week for Oracle support. (Def.'s 56.1 Stmt. ¶¶ 25-28.) Beginning in October 2008, Plaintiff worked approximately ten hours per week on the AHE program and twenty hours per week performing Oracle-based work on a different program referred to as "A-10." (Def.'s 56.1 Stmt. ¶ 31.)
On July 6, 2009, Northrop Grumman placed Plaintiff on the "release list"-a internal list of employees at risk of running out of sufficient hours for their particular skill sets-because the A-10 program was funded in three to six month intervals, making it unclear to Plaintiff's supervisors whether there would be sufficient Oracle work to support Plaintiff's employment. (Def.'s 56.1 Stmt. ¶¶ 52-54.) On March 18, 2010, Thomas Cunningham ("Cunningham"), Plaintiff's direct supervisor, prepared a Layoff Business Case Analysis that considered Plaintiff and four other Level 4 Software Engineers for layoff. (Cunningham Aff., Docket Entry 50-8, ¶ 37, Ex. P.) The layoff analysis looked at five factors: (1) annual performance ratings, (2) years of service, (3) security clearance, (4) skill rating, and (5) education. (Cunningham Aff. ¶ 40, Ex. P.) Based on these factors, Plaintiff received the lowest rating of the five software engineers considered for layoff. (Cunningham Aff. ¶ 41, Ex. P.) On September 4, 2010, Cunningham prepared an updated layoff analysis, which included an additional software engineer, and Plaintiff once again ranked the lowest of the six software engineers considered for layoff. (Def.'s 56.1 Stmt. ¶¶ 70-76, Ex. W.) Accordingly, Northrop Grumman selected Plaintiff for layoff effective October 8, 2010. (Cunningham Aff. ¶ 58, Ex. X.)
However, Plaintiff was not laid off at this time, because from 2009 until October 1, 2010, Northrop Grumman continued to receive funding for the A-10 program in four separate one to four month intervals that permitted Plaintiff to continue working twenty hours per week on the program. (Def.'s 56.1 Stmt. ¶ 53; Cunningham Aff. Exs. L-O.) Additionally, in late September 2010, Cunningham located additional work on the AHE program that would provide Plaintiff with thirty hours of Oracle-based work per week for six weeks. (Cunningham Aff. ¶ 59, Ex. Y.) As a result, Northrop Grumman extended Plaintiff's release date to work on that program and then extended it again until February 2011, again until March 2011, and once more until July 1, 2011 as work on additional projects arose. (Cunningham Aff. ¶¶ 60-63, Exs. Y, ZZ, AA-DD.)
On May 3, 2011, Cunningham prepared an updated layoff analysis and submitted it to the human resources department. (Cunningham Aff. Ex. EE.) Thereafter, Cunningham continued to look for work for Plaintiff but claims that he could not find anything to extend her release date. (Cunningham Aff. ¶¶ 65-67, Ex. FF.) Consequently, Northrop Grumman decided to layoff Plaintiff effective July 6, 2011. (Def.'s 56.1 Stmt. ¶¶ 88-91.) On June 21, 2011, Cunningham and James Morris, Northrop Grumman's Director of Aerospace Systems, notified Plaintiff of her layoff. (Def.'s 56.1 Stmt. ¶ 89.)
C. Plaintiff's FMLA Requests
Plaintiff suffers from fibromyalgia. (Brown Aff., Docket Entry 54-65, ¶ 13.) In March 2007, Plaintiff submitted an injury report to Northrop Grumman complaining about the setup of her cubicle-specifically, that she had to work between two computer screens placed on different desks in her cubicle. (Sutton Aff., Docket Entry 50-69, Ex. A.) Cunningham assisted in obtaining flat panel monitors for Plaintiff so that she could more easily work between the two computers. (Cunningham Aff. Ex. GG.) In May 2007, Plaintiff claimed that she was still in pain, notwithstanding the flat panel monitors, and requested to be moved to a larger, empty cubicle generally reserved for Level 5 Software Engineers. (Cunningham Aff. ¶¶ 75-76, Ex. GG; Brown Aff. ¶ 14.) Cunningham recommended to his supervisors that Plaintiff be moved to the empty cubicle, and the request was granted. (Cunningham Aff. ¶ 76, Ex. GG.) Plaintiff subsequently requested intermittent medical leave pursuant to the FMLA in 2007, 2008, 2009, and 2010, which were all approved by Northrop Grumman. (Def.'s 56.1 Stmt. ¶¶ 113-17.)
D. Plaintiff's Complaints
On May 3, 2011, Plaintiff e-mailed Cunningham and two other Northrop Grumman employees, David Crovets ("Crovets") and James LaRosa ("LaRosa"),  complaining about e-mails she found inappropriate. (Def.'s 56. 1 Stmt. ¶ 125; Grevstad Aff., Docket Entry 50-42, Ex. D.) Plaintiff also sent the e-mail to the human resources department. Plaintiff's e-mail identified the following three written e-mail comments from LaRosa that Plaintiff believed contained "derogatory comments, " "name calling, " or "inappropriate text":
But this mail is typical... you answered only the first part and ignored the other two comments. And, as always, you don't respond to the whole distribution list.
And thanks for the update to the IDR tracker with HE2K MSSS changes you said you would make before you left on vacation.
To be blunt, although I like you as a person, I find you argumentative, non-communicative and almost secretive about things. And you ignore direction you don't like, case in point is Oracle...
(Grevstad Aff. Ex. D (ellipses in original).) In the e-mail, Plaintiff also stated: "If I were a man, you would not be treating me this way." (Grevstad Aff. Ex. D.)
After receiving the May 3rd e-mail, Northrop Grumman's human resources department began an investigation. At the request of Timothy Grevstad, a Northrop Grumman Human Resources Business Partner, Plaintiff also forwarded additional e-mails the she found inappropriate. (Grevstad Aff. ¶ 10, Ex. J.) On June 15, 2011, Grevstad and Karen Karp, another employee in the human resources department, met with Plaintiff to discuss her complaint. (Def.'s 56.1 Stmt. ¶ 132.) After the meeting, Grevstad concluded that there was no evidence of discrimination (Def.'s 56.1 Stmt. ¶ 134), at which point, Plaintiff informed Grevstad that she would retain outside counsel if she decided to proceed with her claim (Pl.'s 56.1 Counterstmt. ¶ 135.)
Plaintiff commenced this action on March 27, 2012. Northrop Grumman filed its motion for summary judgment on October 28, 2013. (Docket Entry 50.) This ...