Opinion
01-CV-0757E(Sr).
April 12, 2005
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Plaintiffs Bruce Cramer ("Mr. Cramer") and his wife Paula Cramer ("Mrs. Cramer") commenced this employment discrimination action on October 25, 2001 pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York's Human Rights Law ("NYHRL"), Executive Law § 290 et seq. (McKinney 2004). Plaintiffs allege that former employer, defendant Fedco Automotive Components Company, Inc. ("Fedco"), discriminated against Mrs. Cramer, subjected her to a hostile work environment and retaliated against her for complaining of discriminatory and harassing activity. Plaintiffs also allege that Mr. Cramer was retaliated against as a result of his wife's complaints of and opposition to Fedco's allegedly discriminatory practices and for helping his wife with her complaints and opposition to the practices. On December 19, 2003 Fedco moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") seeking to dismiss all of plaintiffs' claims. Fedco contends that plaintiffs have failed to establish their respective claims of retaliation and, with respect to Mrs. Cramer, discrimination and hostile work environment. For the following reasons, Fedco's Motion will be granted and plaintiffs' claims will be dismissed.
Both plaintiffs filed a charge and complaint of unlawful employment practices with the New York State Division of Human Rights, who then caused a copy of said charges to be filed with the Equal Employment and Opportunity Commission ("the EEOC"). The EEOC sent both plaintiffs right to sue letters without making a determination as to the validity of their claims. Mrs. Cramer received her first right to sue letter on July 27, 2001 and her second on August 3, 2001. Mr. Cramer received his right to sue letter on August 14, 2001. Following the receipt of their right to sue letters, plaintiffs filed their Complaint with this Court.
This Court will analyze plaintiffs' federal and state law claims together because the Second Circuit applies federal standards of proof to discrimination claims brought under NYHRL. Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997) (finding that claims under NYHRL are analytically inseparable from Title VII claims).
Mrs. Cramer's hostile work environment claims under Title VII and NYHRL have since been withdrawn.
On May 3, 2002 Fedco had filed a Motion Requesting Separate Trials pursuant to FRCvP 42(b). This Court's July 18, 2002 Order held that Fedco's motion for separate trials was premature and dismissed the motion without prejudice. On October 17, 2003 and then again on December 4, 2003 plaintiffs moved to amend their Complaint to include additional defendants each of whom had control over Fedco at various times. This Court's May 26, 2004 Order denied plaintiffs' motions to amend because plaintiffs did not provide a reasonable justification for the delay in moving to amend and Fedco would be unduly prejudiced if the Court were to grant the motions to amend.
The Court need not address plaintiffs' withdrawn hostile work environment claims.
Mrs. Cramer's Employment with and Termination from Fedco.
The facts, in the light most favorable to plaintiffs — the non-moving parties —, are found as follows and are undisputed except where otherwise noted. Mrs. Cramer began working part-time for Fedco, a manufacturer of automobile heater cores, in April 1993 as an independent contractor performing primarily AutoCAD duties. In this capacity, Mrs. Cramer gained an understanding of the design and manufacturing of Fedco's heater core models. In December 1994 Mrs. Cramer was asked by engineer manager Timothy O'Connor to apply for a full-time permanent product engineer position at Fedco — the only salaried non-managerial job title in Fedco's engineering department — and on January 3, 1995 she began working as a product engineer. She was laid off on June 18, 1999.
AutoCAD, also known as CAD or Computer Aid Design, is a computer program that allows the user to design and view engineering drawings in two or three dimensions and allows manual drawings to be entered into a computer.
Prior to working for Fedco, Mrs. Cramer was self-employed as a drafter doing mainly architectural work and had no work experience in a manufacturing plant. Mrs. Cramer does not have an engineering degree and on her application she indicated that she was applying for a "drafting/engineering" position and was limited to drafting in the mechanical, electrical and civil fields.
Throughout her employment at Fedco, Mrs. Cramer was the only female employee at Fedco's engineering department, which consisted of product engineer supervisor O'Connor and product engineers Leo Schwartz, John Slaughter and Mrs. Cramer. When Mrs. Cramer joined the engineering department, the department cross-trained its employees: Schwartz and Slaughter assisted Mrs. Cramer in performing some of the engineering and manufacturing duties of her job and Mrs. Cramer assisted them in their use of AutoCAD.
O'Connor did not have an engineering degree and had never worked as an engineer before being named engineer manager at Fedco. He did have, however, approximately ten years of experience working in manufacturing and engineering-related fields, with particular experience in AutoCAD and was hired for his managing — not engineering — abilities.
Schwartz was the only licensed engineer in Fedco's engineering department and had twenty-five years of experience as a manufacturing engineer but had no experience with Fedco's manufacturing process prior to commencing employment with Fedco in 1993. Additionally, he did not have any experience working with AutoCAD and had a difficult time learning 3-D AutoCAD.
Slaughter started working for Fedco as a production worker in 1983, was promoted to supervisor in 1986 and worked as a foreman in Fedco's production department prior to joining the engineering department in July 1994. Such experience gave Slaughter more knowledge of Fedco's products than any other individual in the engineering department. He was not, however, a licensed engineer and did not have an engineering degree, although he had taken some engineering classes. Slaughter was not very versed at using AutoCAD and various other engineering equipment.
Mrs. Cramer claims that she faced discrimination based on her sex immediately after commencing employment with Fedco. The alleged discrimination exacerbated after July 1997 when Mrs. Cramer's assignments became more limited and ultimately resulted in her termination on June 18, 1999. Mrs. Cramer claims that she (1) did not receive the same type of work assignments as the male engineers, (2) was subjected to stricter scrutiny and was treated with disrespect more often than her male colleagues, (3) faced different evaluation standards and received a lower salary and smaller pay raises than the male engineers and (4) was terminated for complaining about the aforementioned discrimination.
First, Mrs. Cramer alleges that, throughout her employment, her skills were underutilized and her work assignments, although she was allegedly qualified to do more, demanded less ability, less responsibility and less respect than those assigned to her male colleagues. Mrs. Cramer claims that simply due to her gender, her career opportunities were limited and her acceleration was discouraged in the following ways: (1) Fedco failed to assign her new model releases during her first two years of employment although, according to her, she had the skills but lacked the experience to be so assigned and although Slaughter and Schwartz were so assigned immediately upon the commencement of their product engineer positions, (2) Fedco did not assign her to new equipment projects while her male colleagues were assigned to all such projects — to wit, Slaughter was assigned to one and Schwartz was assigned to two —, which she claims denied her the opportunity to learn about the functions, forms and manufacturing of new machinery, (3) Fedco limited her assignments to only AutoCAD and engineering change notices ("ECNs") and (4) Fedco did not allow her to be a product development leader ("PDL") on new model releases.
A new model release is either (1) a heater core model that had already been developed by another company but had yet to be produced by Fedco itself or (2) a new heater core model conceptualized, developed and manufactured by Fedco.
In the summer of 1997 Fedco's former President, Timothy Brodene, told O'Connor that the engineering department was getting "bogged down" and that O'Connor needed to dedicate one product engineer — without specifying which one — exclusively to performing AutoCAD duties and to staying current with ECNs. O'Connor decided that Mrs. Cramer should be so assigned and informed her on July 24, 1997 that she would no longer be assigned new model releases as a PDL and instead would be restricted to only AutoCAD drawings and ECNs. The goal of this change was to increase the engineering department's efficiency because Slaughter and Schwartz had more experience with new model releases and Mrs. Cramer had more experience with and was better at using AutoCAD. Mrs. Cramer claims that although said changes would have increased efficiency, they also resulted in Schwartz and Slaughter falling behind in their projects.
Brodene thought that staying current with ECNs and having accurate AutoCAD drawings was "invaluable" to the engineering department. (Brodene Dep. at 170: 19.)
A PDL's main responsibility is to coordinate the new model release among the various departments involved in the project, ensuring that the departments complete their respective functions on a timely basis. The PDL completes and signs the Production Release Form, which is circulated for the department heads' approvals and signatures.
Although being a PDL did not include additional compensation, Mrs. Cramer viewed it as a position of prestige that allowed the product engineers to demonstrate leadership skills and interact with other departments and management. Being denied the opportunity to be a PDL allegedly adversely impacted Mrs. Cramer's employment because she could not demonstrate her skills to management and, as a result, she suffered from low self-esteem and felt like she "was just a clerk * * * given * * * menial functions as compared to the male engineers". (P. Cramer Dep. at 98: 5-8.) It is undisputed, however, that Mrs. Cramer continued to perform engineering functions and PDL duties after her reassignment and that her signature accompanied the Production Release Forms received by department heads. O'Connor was aware that Mrs. Cramer was acting as a PDL on various projects as per the request of Slaughter and Schwartz and did not prevent her from doing so. Hence, Fedco claims that Mrs. Cramer's allegations that her career and self-esteem were negatively affected by her reassignment are misplaced. Mrs. Cramer contends, on the other hand, that her PDL-like responsibilities were not accompanied by the benefits of being a PDL — controlling the projects, presiding over meetings, delegating tasks and demonstrating the ability to manage people.
Even though she was not a PDL, Mrs. Cramer signed Production Release Forms for many projects in the space designated for the PDL's signature.
Second, Mrs. Cramer claims that she felt "singled-out" when O'Connor scrutinized her more strictly and treated her with less respect than Slaughter or Schwartz for the same conduct and under the same circumstances. This ill-treatment included O'Connor doing the following: (1) making sarcastic comments to her if she was a few minutes late from returning from her lunch breaks, (2) looking at his watch and back at her if she was talking with coworkers, (3) denying her requests to take time off between two and four times between January 1995 and July 1997 and on April 30, 1999, (4) giving her "a very hard time" about taking time off and making sure her work was up to date before she could take time off, (5) throwing files on her desk and telling her to file them, (6) referring to her once as "little one, the drafter", (7) limiting her personal phone usage to her breaks and lunches and issuing her a written warning for personal calls made during business hours and (8) modifying the male engineers' product schedules but not doing so for Mrs. Cramer, which allegedly gave the false impression that the male engineers were completing their projects in a timely manner. Mrs. Cramer contends that such scrutiny and disrespect were not warranted and that her gender was the sole reason for O'Connor's negative behavior towards her and not towards the male product engineers.
In April 1999 O'Connor issued a memorandum to the product engineers stating that April 30 marked the end of the fiscal year and that, due to the large workload, some engineers may be required to work during the weekend of May 1 and May 2. Mrs. Cramer claims that her request to take April 30 off was denied while Slaughter's was granted. However, whether Slaughter actually took the day off is in dispute.
Fedco claims that if O'Connor did make this comment, it was made in an endearing manner because Mrs. Cramer is short.
Mrs. Cramer admits to having made more personal phone calls than usual during the summer of 1997. That same summer, the entire engineering department was directed to limit their personal phone calls. Mrs. Cramer claims, however, that Slaughter continued to talk with his wife every day without any repercussions.
Third, Mrs. Cramer claims that, in 1997, 1998 and 1999, different evaluation standards applied to her than to the male engineers, which, among other things, resulted in her receiving a lower salary and smaller pay raises than the male employees. Examples of her allegedly unfair and discriminatory evaluations include: (1) her 1996 evaluation, which indicated that she needed to take more time to analyze problems before bringing them to others, (2) her 1997 evaluation, in which she was rated as "needs improvement" in the areas of "ethics" because of her extensive phone usage and was rated as "meets" expectations with respect to quality of work, setting objectives and priorities, interpersonal skills and motivation, education, floor time, initiative and communication and (3) her 1998 evaluation rated her lower than Slaughter and Schwartz. Mrs. Cramer claims that she was rated lower than she should have been rated because of her gender.
Mrs. Cramer contends that this evaluation contradicted the fact that O'Connor did not have a complaint that Mrs. Cramer had engaged in unethical behavior. Additionally, Slaughter was rated as "outstanding" in the category of "ethics" on his performance review although Mrs. Cramer claims that he called his wife on a daily basis.
Mrs. Cramer believes that she should have been rated at least as high as her male colleagues. For example, Mrs. Cramer was rated as "meets" with respect to education even though she was taking college courses and was receiving better grades than Slaughter who was rated as "exceeds" with respect to education. Moreover, Mrs. Cramer was rated as "meets" with respect to "initiative" whereas Slaughter was rated as "outstanding." Mrs. Cramer contests this evaluation because she claims she performed all of the duties assigned to her and voluntarily assumed other engineering duties from Slaughter and Schwartz.
These performance evaluations served as bases for the employees' annual pay raises. As measured in actual dollar amounts, Mrs. Cramer's raises never exceeded and averaged less than those awarded to Slaughter or Schwartz during her employment at Fedco. The percent by which her salary was raised was greater than either Slaughter or Schwartz in 1996 and 1997 and averaged higher than Slaughter's salary raises from 1996 to 1999. It is undisputed, however, that in 1998 and 1999, after Mrs. Cramer received negative evaluations, both Slaughter and Schwartz received higher pay raises, measured both as an absolute number and as a percentage of their salaries. Such was not the case, however, after Mrs. Cramer received her 1996 evaluations, which she also claims were negative.
Mrs. Cramer's pay raises from 1996-1999 averaged $1,320 per year, while Slaughter's averaged $1,715 and Schwartz's averaged $1,874.
Mrs. Cramer's pay increased by 4.29 percent in 1996, 5.14 percent in 1997, 4.23 percent in 1998 and 4.00 percent in 1999. Slaughter's pay increased by 4.09 percent in 1996, 3.93 percent in 1997, 4.50 percent in 1998 and 5.00 percent in 1999. Schwartz's pay increased by 4.12 percent in 1996, 5.08 percent in 1997, 6.18 percent in 1998 and 5.06 percent in 1999. Mrs. Cramer's average pay increase from 1996 to 1999 was 4.42 percent, Slaughter's was 4.38 percent and Schwartz's was 5.11 percent.
In 1998 Mrs. Cramer received a 4.23 percent pay raise, while Slaughter received a 4.50 and Schwartz a 6.18 percent pay raise. In 1999 Mrs. Cramer's pay raise was 4.00 percent, Slaughter's was 5.00 percent and Schwartz's was 5.06 percent.
Finally, Mrs. Cramer contends that she was laid-off as a result of her complaints of gender-based discrimination. Mrs. Cramer wrote a letter to Brodene on September 25, 1997 — after her assignments had became more limited — complaining about the way O'Connor treated her. The letter did not use the word "discrimination" to describe her circumstances, but did discuss Mrs. Cramer's feelings of being "singled-out" and her confusion as to why she was being treated unfairly by O'Connor without asserting that the allegedly unfair treatment was due to her gender. Thereafter, Mrs. Cramer met with Brodene, resulting in slightly better interactions with O'Connor for a short period of time, although her duties, salary, raises and evaluations did not change.
Mrs. Cramer claims that, once Brodene left Fedco around May 1998, O'Connor once again began treating her unfairly and with disrespect.
At a managers' meeting held on May 28, 1999, Fedco managers agreed that a reduction in employees was necessary to meet the new budget. O'Connor determined that he could run the engineering department with one less employee because of the decreasing workload. O'Connor said that he would do a formal evaluation but that it would most likely be Mrs. Cramer who should be laid off. O'Connor set forth his evaluation of the engineering department in a June 1, 1999 memorandum in which, after assessing each engineer's respective strengths, he determined that Mrs. Cramer was the most logical choice for laying off — Slaughter's manufacturing experience and Schwartz's engineering degree were more valuable than Mrs. Cramer's AutoCAD skills because O'Connor's AutoCAD abilities were just as good as, if not better than, Mrs. Cramer's.
Mrs. Cramer claims that she overheard managers say that the layoff was a good opportunity to get rid of "problem employees," which included her and two other women. Fedco, however, denies any such statement being made by a Fedco agent and one of the allegedly "problem employees" was later rehired by Fedco. Additionally, Mrs. Cramer alleges that she overheard O'Connor say that this layoff was going to be a good opportunity for him to get the sales engineer he wanted, although no such engineer has been hired and no such position has been opened.
In his memorandum recommending the termination of Mrs. Cramer and containing his evaluation, O'Connor, according to Mrs. Cramer, was not consistent in his assessments as between Mrs. Cramer and Slaughter and Schwartz. For example, he reviewed Slaughter with respect to his history of overtime and Schwartz with respect to being "detail oriented and reviewing work prior to release", without evaluating Mrs. Cramer in the same categories.
Mrs. Cramer wrote a letter on June 11, 1999 to Reynel Rodriguez, the General Manager of Operations and Executive Vice President of Fedco, complaining of O'Connor's unfair treatment. After she had overheard that Fedco had decided to lay her off, Mrs. Cramer had gone to the New York State Division of Human Rights ("NYSDHR") who advised her to write the letter. In this letter, Mrs. Cramer did allege that she felt discriminated against because of her gender. Having already made the decision to lay off Mrs. Cramer, Fedco did not respond to this letter or investigate the matter and claims that her layoff was not in retaliation to the letter. On June 17, 1999 Mrs. Cramer filed a complaint with the NYSDHR and Mrs. Cramer was terminated on June 18, 1999.
Mr. Cramer's Employment with and Termination from Fedco.
Plaintiff Bruce Cramer was originally hired by Fedco in 1983 as an hourly production worker. Sometime in 1989 Mr. Cramer was promoted to production supervisor at Fedco's copper and brass heater department where he was a salaried employee. Mr. Cramer later reverted to an hourly-pay position where he worked until he was reassigned to the production supervisor position in Fedco's second-shift copper and brass heating department in September 1990. In 1992 Mr. Cramer was once again reassigned, this time to the position of maintenance supervisor in Fedco's maintenance department. As maintenance supervisor, Mr. Cramer was responsible for plant maintenance, grounds maintenance, machine maintenance and repair, preventative maintenance on equipment and supervision of the fifteen to twenty union employees who reported to him. Mr. Cramer's direct supervisor during this time was Michael Plotner, Fedco's then-maintenance manager.
On February 2, 1992 Fedco hired Matthew Nycek as a second-shift production supervisor. While Nycek was undergoing training, Mr. Cramer acted as a second-shift production supervisor and also helped train Nycek. After Nycek completed his training, Mr. Cramer returned to his first-shift supervisor position in the maintenance department. In that capacity, Mr. Cramer was involved in Fedco's purchase of a multi-cell machine and, after the machine had arrived in Buffalo, Mr. Cramer acted as the machine's troubleshooter. Plotner was the only supervisor in the maintenance department aside from Mr. Cramer who had experience with the multi-cell machine. On January 31, 1995 Fedco hired Dennis Glover to its maintenance department as a project planner responsible for running the preventative maintenance program. Glover performed some supervisory duties in the maintenance department in 1997 and 1998. In 1998 Mr. Cramer was injured in a motorcycle accident and was unable to work. While he was on leave, Plotner assumed most of Mr. Cramer's maintenance department supervisory duties and Glover assumed additional maintenance duties. In December 1998 Rodriguez asked Mr. Cramer to return to work three months before he was scheduled to return in order to temporarily fill the second-shift production supervisor position. Mr. Cramer was concerned that working the second-shift would result in having to leave his children home alone. In exchange for Mr. Cramer's return to work, Fedco agreed to pay $40 a week for the Cramers' child care services and that Mr. Cramer would work as a production supervisor on the second-shift for no more than six months, after which he would return to his first-shift maintenance supervisor position.
The multi-cell machine is a piece of manufacturing equipment that was originally designed to produce 45 percent of Fedco's copper and brass products.
Mr. Cramer claims that, upon his return to his first-shift maintenance supervisor position, he suffered adverse employment actions ultimately resulting in his March 2000 termination. He contends that such actions were taken in retaliation for Mr. Cramer helping Mrs. Cramer file her charge of discrimination with the NYSDHR on June 17, 1999. In particular, Mr. Cramer alleges that, after he had helped Mrs. Cramer file her discrimination claims, Fedco (1) denied him a retroactive five percent shift differential for working as the second-shift supervisor from January to June 1999, (2) limited his job responsibilities and altered his work hours, (3) prohibited him from wearing steel-toed shoes, (4) reassigned him and (5) terminated him.
In June 1999 Mr. Cramer returned to his first-shift maintenance supervisor position. To accomplish this, however, Fedco had to rearrange different managers' job assignments in the midst of a hiring freeze. In consideration for losing their promotions, being reassigned and/or receiving additional responsibilities, some managers received a five percent shift differential in addition to their normal salaries. The five percent was later revoked when the managers were reassigned to their original positions. Mr. Cramer requested but was denied a retroactive five percent shift differential for working as the second-shift supervisor from January to June 1999 because he was given money for child care services and no such shift differential was distributed to any employees prior to June 1999.
When he returned to his first-shift maintenance supervisor position, Mr. Cramer was given the assignment of working exclusively on the multi-cell machine because Fedco was having difficulties running the machine — to wit, the machine would break down between ten and twenty-five times per day — and Mr. Cramer was familiar with the machine. In July 1999, during Fedco's regular summer plant shutdown, Fedco had manufacturer representatives work on the machine and had Mr. Cramer oversee such, which required him to work different hours than normal. Mr. Cramer continued to work these hours after the summer shutdown. Mr. Cramer asserts that Glover could have been so assigned to alleviate the hardship placed on Mr. Cramer. However, it is undisputed that Mr. Cramer was far more experienced with the multi-cell machine than was Glover. Mr. Cramer alleges that this assignment was "monotonous" because he had to monitor when the machine started and stopped. Mr. Cramer contends that the information he was assigned to collect was never reviewed and was also produced by the machine and collected by the machine operators. Fedco asserts, however, that such was necessary to resolve the problems with the machine.
Next, Mr. Cramer alleges that Fedco allowed him to wear steel-toed shoes prior to June 1999 but not thereafter. During summer 1999, Fedco provided $50 to each employee in its plant for the purchase of safety shoes from a pre-arranged subcontractor, who was instructed that no steel-toed shoes were to be sold, but mistakenly sold several steel-toed shoes to plant employees. Fedco, thereafter, arranged for the subcontractor to exchange sold steel-toed shoes for other safety shoes. All employees were required to follow Fedco's policy against steel-toed shoes. Mr. Cramer, however, initially refused to exchange his steel-toed shoes, claiming the policy was new and thus retaliatory.
Finally, Mr. Cramer complains of being reassigned by Fedco after June 1999. In August 1999 Mr. Cramer was reassigned from the first-shift to the second-shift supervisor position, for which he received a five percent shift differential. Other managers were also reassigned at this time. Mr. Cramer alleges that he was closely monitored on the second-shift. This reassignment was similar to that which occurred in 1992 — to wit, Mr. Cramer was temporarily assigned to the second-shift while Fedco hired a new second-shift supervisor, who Mr. Cramer then helped train. After training was completed in October 1999, Mr. Cramer was reassigned to the first-shift.
One week after being assigned to the first-shift maintenance supervisor position, Mr. Cramer was reassigned to the second floor warehouse because the second floor warehouse had been experiencing problems. Mr. Cramer complained to Fedco's Comptroller and Vice President of Finance, Barbara Maczka, that he felt that he was being retaliated against by being moved around. Mr. Cramer claims that Maczka took no action and did not inform anyone of his complaint. Fedco contends that Mr. Cramer was so reassigned because the maintenance department had been functioning without him and could continue to do so. While on the second floor warehouse, Mr. Cramer was responsible for creating a computerized product locator and supervising employees who were assigned to the second floor warehouse. Fedco built Mr. Cramer an office when he was assigned to the second floor warehouse, which Mr. Cramer alleges was intended to mock him because of its small size.
In March 2000 Fedco laid off six non-union employees, one of whom was Mr. Cramer. Rodriguez instructed Plotner that either Mr. Cramer or Glover had to be laid off. Plotner decided to lay off Mr. Cramer because he determined that he could perform Mr. Cramer's duties but could not perform Glover's duties. Mr. Cramer contends, however, that he should have been retained instead of Glover because of his experience with the multi-cell machine. On October 5, 2000 Fedco recalled Mr. Cramer to work at Fedco on a temporary basis. Mr. Cramer initially accepted Fedco's recall but subsequently rejected it after receiving an offer from another employer.
Summary Judgment Standard.
Summary judgment may be granted if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). However, the non-moving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." FRCvP 56(e); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
Of course, the summary judgment standard applies with equal force to discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 F. Supp. 2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.") (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.") (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid. Mrs. Cramer's Claims.
Title VII states that "[i]t shall be an unlawful employment practice for an employer * * * to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin * * *." 42 U.S.C. § 2000e-2(a)(1) (2003). In the absence of direct evidence of discrimination, Title VII claims are analyzed pursuant to the burden-shifting framework espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, the plaintiff bears the initial burden of making out a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the alleged employment action. Burdine, at 253 (quoting McDonnell Douglas, at 802). Finally, "should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 253 (quoting McDonnell Douglas, at 804).
To make out a prima facie case of discrimination under Title VII, Mrs. Cramer must allege that (1) she is a member of a protected class, (2) she was performing her job satisfactorily, (3) she was subjected to an adverse employment action and (4) either the adverse employment action occurred under circumstances giving rise to an inference of discrimination or similarly situated males were treated differently. McDonnell Douglas, at 802; Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000); Reimer v. Heritage Asset Mgmt., 1999 U.S. Dist. LEXIS 9295, at *11 n. 3 (W.D.N.Y. June 15, 1999). In moving for summary judgment, Fedco asserts that Mrs. Cramer, although a member of a protected class who was qualified for her product engineer position and was discharged, cannot show that she was terminated or subjected to an adverse employment action under circumstances raising an inference of discrimination. In particular, Fedco claims that (1) the discriminatory acts to which Mrs. Cramer was allegedly subjected prior to her layoff do not rise to the level of adverse employment actions, (2) Mrs. Cramer was not similarly situated to Slaughter and Schwartz in all material respects and (3) Fedco is able to articulate a legitimate, non-discriminatory reason for Mrs. Cramer's termination and for any alleged adverse employment action — to wit, conducting a required reduction in workforce due to market demands and performing the legitimate functions of managing a business and its employees. Mrs. Cramer, on the other hand, contends that (1) Fedco's alleged acts of discrimination against her rise to the level of adverse employment actions, (2) such adverse employment actions and her discharge occurred under circumstances giving rise to an inference of discrimination and (3) the male engineers were similarly situated to but treated differently than was Mrs. Cramer.
Fedco also contends that alleged acts of discrimination against Mrs. Cramer prior to August 21, 1998 are time-barred under Title VII, which requires a complaining party to file a charge within 300 days of the alleged unlawful employment practice. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). This Court need not address this issue because Mrs. Cramer's claims, taken in their entirety, cannot meet her prima facie burden.
The Second Circuit Court of Appeals has held that, to constitute an adverse employment action within the context of a Title VII claim, a plaintiff must demonstrate that an employment action was one that resulted in a "materially adverse change in the terms and conditions of her employment[,]" which "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quotations and citation omitted). "To be adverse, an employment action must involve the deprivation of some tangible job benefits such as compensation, terms, conditions or privileges of employment." Murphy v. Bd. of Educ. of the Rochester City Sch. Dist., 273 F. Supp. 2d 292, 304 (W.D.N.Y. 2003) (citations and quotations omitted). Examples of what constitute a materially adverse change 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." Galabya, at 640 (internal quotations omitted). "Adverse employment actions are considered material if they are of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Murphy, at 304 (citation and quotations omitted). "[T]rivial complaints about an unpleasant working environment", however, do not constitute adverse employment actions. Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002). The test is objective where a reasonable person under the circumstances would view the employment action as materially adverse; "[o]therwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Murphy, at 304 (citations and quotations omitted).
Mrs. Cramer's termination is an adverse employment action. Her additional claims, however, do not constitute adverse employment actions as they did not result in the deprivation of any tangible job benefits. Mrs. Cramer claims that, in addition to her termination, she suffered adverse employment actions as a result of the discriminatory methods Fedco distributed assignments, enforced discipline, performed evaluations, formulated salaries and pay raises and enforced company policies. In particular, Mrs. Cramer claims that (1) Fedco reduced her job duties — to wit, her duties were limited to AutoCAD drawings and ECNs —, (2) Fedco decreased her pay raises after she received what she alleges to be unfairly negative performance evaluations and (3) O'Connor treated her in a discriminatory manner. None of these allegations amounts to anything tangible — such as a decrease in wage or salary, a loss in benefits or any other "material adverse" consequence — that could be construed as an adverse employment action for the purpose of establishing Mrs. Cramer's prima facie case. Mrs. Cramer neither was demoted nor was forced into a stigmatizing or less prestigious position; rather, her responsibilities became more defined to meet Fedco's objectives without a change in her title and with a continued increase in her wages. Fedco viewed her assignment of producing accurate AutoCAD drawings and staying current with ECNs as invaluable to the engineering department and essential in improving it. In fact, O'Connor took over Mrs. Cramer's duties upon her termination, indicating that her duties were important and did not carry with them negative implications. See, e.g., Castro v. New York City Bd. of Educ. Pers. Dir., 1998 U.S. Dist. LEXIS 2863, at *19-20 (S.D.N.Y. Mar. 11, 1998) (holding that the plaintiff did not suffer an adverse employment action because she was not transferred to a stigmatizing or less prestigious position but merely was given a class assignment that she had listed last among her top three choices).
Mrs. Cramer was hired for her AutoCAD abilities and her skills and experience were limited to drafting work. As Fedco's needs in performing AutoCAD work grew, it was only reasonable for O'Connor to assign Mrs. Cramer to performing all the AutoCAD work. Mrs. Cramer herself admits that she was more proficient than either Slaughter and Schwartz at performing AutoCAD duties and assigning her to such would accomplish the goal of improving the efficiency of the engineering department. Although initially she received training in other aspects of Fedco's engineering department, her duties never expanded enough to warrant a claim that her responsibilities were reduced. Mrs. Cramer admits that her complaints rest on her never or very rarely having been assigned certain duties — viz., not being assigned to new model releases until two years after commencing her employment and never being assigned to new equipment projects or as a PDL. Mrs. Cramer further admits that she lacked the experience to be assigned to new model releases or to new equipment projects and that Slaughter and Schwartz had more experience with Fedco's products and, as such, were better able to be so assigned. See, e.g., Bennett v. Watson Wyatt Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y. 2001) (finding that the plaintiff's alleged underutilization does not constitute an adverse employment action).
Even with this lack of experience, Mrs. Cramer still performed PDL duties of which Fedco's department heads were aware. Because being assigned as a PDL was not accompanied by an increase in salary, Mrs. Cramer received the alleged career benefits accompanied with being a PDL by signing in the place of the PDL on the Product Release Forms, which were distributed to department heads. Mrs. Cramer claims that the reallocation of her duties caused her to suffer from low self-esteem. This alone, however, does not amount to an adverse employment action. See, e.g., Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (holding that a "bruised * * * ego," without other evidence, is insufficient to establish a materially adverse employment action). Thus, Mrs. Cramer's allegations of discriminatory assignment distributions are not adverse employment actions and, therefore, will be dismissed.
Mrs. Cramer's claims of negative evaluations and decreased raises also do not rise to the level of adverse employment actions because they did not deprive Mrs. Cramer of an opportunity nor cause her to suffer any attendant negative result such as a demotion, suspension or loss of wages. "Negative evaluations * * * that are unattended by a demotion, diminution of wages, or other tangible loss do not materially alter employment conditions." Castro, at *21. Mrs. Cramer alleges that she suffered an adverse employment action because her wage, although it did increase, did not increase at the rate that she would have liked. Mrs. Cramer asserts that her raises were negatively affected by her allegedly negative evaluations. This claim, however, is factually inaccurate because Mrs. Cramer's allegedly negative evaluations were accompanied by higher pay raises than her male colleagues. In 1996 and 1997, Mrs. Cramer's pay raises measured as a percentage of her salary were greater than either Slaughter's or Schwartz's pay raise even though Mrs. Cramer alleges that her evaluations for the same years were unfairly negative. Mrs. Cramer's raises during the course of her employment at Fedco measured as a percentage of her salary, moreover, were greater than either Slaughter's or Schwartz's. Therefore, no reasonable trier of fact could conclude that Mrs. Cramer's evaluations and raises altered the conditions of her employment.
Finally, Mrs. Cramer contends that the way in which O'Connor treated her constituted adverse employment actions — viz., he allegedly enforced break time and phone usage policies in a discriminatory manner, refused to grant Mrs. Cramer time off on a few occasions and made one sarcastic comment. Such minor inconveniences, absent some other negative result, are not, as a matter of law, adverse employment actions. Hicks v. Rubin, 2001 U.S. App. LEXIS 4243, at *6 (2d Cir. Mar. 20, 2001); Bennett, at 248. Mrs. Cramer does not allege that she suffered a decrease in wages or salary, a loss in benefits or any other materially adverse change in her employment as a result of O'Connor's behavior. Simply because something was not to Mrs. Cramer's liking, did not make it an adverse employment action. Murphy, at 304. "[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions." Castro, at *21. As such, Mrs. Cramer's claims of discriminatory enforcement of policies and discipline do not amount to adverse employment actions.
Mrs. Cramer's termination, therefore, is the only alleged adverse employment action. To meet her prima facie burden, Mrs. Cramer must demonstrate that her termination occurred under circumstances giving rise to an inference of discrimination, which can be done in a variety of ways. The Second Circuit has held
"The circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, preferential treatment given to employees outside the protected class and, in a corporate downsizing, the systematic transfer of a discharged employee's duties to other employees, or a pattern of recommending the plaintiff for positions for which he or she is not qualified and failure to surface the plaintiff's name for positions for which he or she is well-qualified. A plaintiff might also rely upon the fact that the defendant, following plaintiff's termination, continued to seek applicants to fill the position, or, more generally, upon the timing or sequence of events leading to the plaintiff's termination." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (citations omitted).
Mrs. Cramer cannot demonstrate any of the above and thus fails to meet her burden. First, she does not allege that any discriminatory remarks were made. As explained above, her job duties were never reduced, reflected her skills and experience levels and were in response to a need to increase the efficiency of the engineering department. The decision to terminate her was based on an evaluation of the needs of the department and the skills of each product engineer. As she had less experience and more limited skills, the decision to terminate her was reasonable and, absent other evidence, does not reflect a discriminatory animus. Following her termination, the three remaining product engineers assumed Mrs. Cramer's duties and functioned as a smaller department.
Mrs. Cramer alleges that O'Connor treated Slaughter and Schwartz more favorably, thus raising an inference of discriminatory motive. To so assert, Mrs. Cramer must show that she was treated differently from were employees outside her protected class with whom she was "similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). Mrs. Cramer, however, was not similarly situated to Slaughter or Schwartz. First, Slaughter had had eleven years of experience producing Fedco's products upon joining the engineering department and Schwartz had had over twenty-five years of experience as a manufacturing engineer as compared to Mrs. Cramer's complete lack of experience working in a manufacturing plant. Secondly, Mrs. Cramer had been hired primarily for her AutoCAD experience whereas O'Connor was hired for his managing abilities, Slaughter for his knowledge of Fedco's products and Schwartz for his engineering experience and degree. Thus, Mrs. Cramer was not similarly situated to the other product engineers.
Further cutting against an inference of discriminatory motive is the fact that O'Connor was responsible for hiring Mrs. Cramer and for terminating her. There is a strong presumption against discrimination where, as here, the same supervisor who hired the employee is alleged to have taken adverse actions against the employee within a few years. Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997); Dedyo v. Baker Eng'g New York, Inc., 1998 U.S. Dist. LEXIS 132, at *19 (S.D.N.Y. Jan. 13, 1998). Mrs. Cramer, in attempting to meet her burden, alleges that O'Connor selected her for termination and then prepared an evaluation of the engineers to support his recommendation. Without more, however, such does not warrant an inference of discriminatory motive because a supervisor of only three product engineers can, without a thorough evaluation, anticipate who is the least valuable employee.
Even assuming arguendo that Mrs. Cramer can show a prima facie case of discrimination, Fedco has asserted a legitimate, non-discriminatory reason for her termination — namely, assessing the needs of the business and responding to a corporate-mandated reduction in workforce. To satisfy its burden, Fedco need only "produce evidence, which taken as true, would permit the conclusion that there was a non-discriminatory reason for the adverse action." St. Mary's Honor Ctr., at 509. It is not necessary for Fedco to "persuade the court that it was actually motivated by the proffered reasons"; an articulation of reason is all that is required. Burdine, at 254. Fedco claims that Mrs. Cramer was laid off because her skills and experience were not as valuable to Fedco's engineering department as were those of Slaughter and Schwartz. This, if true, clearly results in a finding that Mrs. Cramer's termination was based on a non-discriminatory business necessity reason.
The burden now shifts back to Mrs. Cramer to show that Fedco's reasons are not its true reasons but a mere "pretext for discrimination." Burdine, at 253. In support of her claim that Fedco terminated her because she was female rather than due to a required reduction in workforce, Mrs. Cramer alleges that (1) O'Connor decided to terminate her before conducting an evaluation of each product engineer, (2) O'Connor did not evaluate all three product engineers using the same criteria and (3), if O'Connor had used fair criteria in his evaluations, he would have retained Mrs. Cramer because her skills were more valuable than were those of the other product engineers. However, Mrs. Cramer's "personal opinion of her performance neither creates an inference of discrimination nor constitutes evidence of pretext." Crawford-Mulley v. Corning, Inc., 194 F. Supp. 2d 212, 221 (W.D.N.Y. 2002). Fedco asserts that Schwartz's background as a licensed engineer with over twenty-five years of manufacturing experience and Slaughter's extensive knowledge of Fedco's products and manufacturing processes were more valuable to Fedco than were Mrs. Cramer's AutoCAD abilities. Moreover, while Mrs. Cramer could not replace Schwartz's experience and Slaughter's knowledge, O'Connor could replace Mrs. Cramer's AutoCAD abilities. Mrs. Cramer does not provide any evidence that her work was more valuable than that of any of the other product engineers or that the engineering department could function effectively without Slaughter or Schwartz. Mrs. Cramer's subjective view of her performance is insufficient to create a triable issue of fact on the issue of pretext. See, e.g., Wado v. Xerox Corp., 991 F. Supp. 174, 193 (W.D.N.Y. 1998). She merely asserts that she was unfairly evaluated. But, simply disagreeing with O'Connor's assessments of her work cannot, standing alone, show that Fedco's reason for terminating her was pretextual. See Ricks v. Conde Naste Publ'ns, Inc., 92 F. Supp. 2d 338, 347 (S.D.N.Y. 2000); see also Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 718 (2d Cir. 1994) (finding that because "[d]ismissals are often preceded by adverse performance reviews[,] * * * view[ing] this pattern as suspect, without more, [would allow] many employees * * * to appeal their personnel evaluations to a jury"). Therefore, Mrs. Cramer has not met her burden in establishing a claim of discrimination and, as such, her discrimination claims will be dismissed.
Turning to Mrs. Cramer's retaliation claim, Title VII makes it unlawful for an employer to retaliate against an employee because she has opposed discrimination in the workplace. To establish a prima facie case of retaliation, Mrs. Cramer must show "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging [her]; and [3] a causal connection between the protected activity and the adverse employment action." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quotations and citation omitted). Mrs. Cramer alleges two instances in which she engaged in protected activity known to Fedco: (1) her September 25, 1997 letter to Brodene and (2) her June 11, 1999 letter to Rodriguez pursuant to her contacting the NYSDHR. This Court has already held that the only adverse employment action Mrs. Cramer suffered was her termination. Therefore, to satisfy her prima facie burden, Mrs. Cramer must show a causal connection between her termination and her complaints of discrimination. "This causal connection may be shown (i) indirectly by showing that the adverse employment action followed closely in time after the protected activity, (ii) through other indirect evidence such as similar treatment of other employees who engaged in similar activity, or (iii) directly through evidence of retaliatory animus directed at the plaintiff." Monahan v. United Techs. Corp., Pratt Whitney Div., 1997 U.S. App. LEXIS 12278, at *5 (2d Cir. May 27, 1997) (citation omitted). Because her September 1997 letter was received almost two years before her termination and because her June 1999 letter was received after Fedco had decided to terminate Mrs. Cramer, no causal connection can be made and Mrs. Cramer's retaliation claim will be dismissed.
Mrs. Cramer admits that she first learned that she was going to be laid off when she overheard her name mentioned during a management meeting held on May 28, 1999. On June 1, 1999 O'Connor submitted his recommendation that Mrs. Cramer should be laid off. Mrs. Cramer subsequently contacted the NYSDHR who advised her to write a letter to Rodriguez alleging discrimination. This letter was written on June 11, 1999 and she was given an appointment with the NYSDHR on June 17, 1999, well after the decision to lay off Mrs. Cramer had been made. This timeline is evidence enough that the decision to lay off Mrs. Cramer was not in retaliation for her subsequent letter. See, e.g., Bennett, at 250 (holding that the fact that the adverse employment action preceded the protected activity negates a finding of retaliation because there can be no retaliation for "an act not yet taken").
The September 1997 letter, assuming arguendo that it also constitutes a protected activity, is not temporally proximate to Mrs. Cramer's termination, which occurred nearly two years later. The Supreme Court has held that an allegedly adverse employment action taken 20 months after the protected activity "suggests, by itself, no causality at all." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-274 (2001) (citing other circuit court cases holding that three months and four months are respectively too long to establish a causal connection). See also Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (three months too long); Lambert v. New York State Office of Mental Health, 2000 U.S. Dist. LEXIS 5197, at *38-39 (four months too long). Here, Mrs. Cramer's termination occurred 21 months after her claimed protected activity and Mrs. Cramer has not alleged anything else that suggests a causal connection. As such, Mrs. Cramer's retaliation claim will be dismissed.
Mr. Cramer's Claim.
Mr. Cramer alleges that he was retaliated against by Fedco because Mrs. Cramer filed a complaint with the NYSDHR and that Fedco knew of or believed that he had helped his wife file that complaint. Fedco claims that Mr. Cramer cannot establish a prima facie case of retaliation because he cannot show that (1) he engaged in protected activity, (2) he was subjected to an adverse employment action and (3) a causal connection exists between his protected activity and any alleged adverse employment action. Essential to a claim of retaliation is a showing of an adverse employment action. Mr. Cramer cannot show that he has suffered an adverse employment action as a matter of law other than his termination. Mr. Cramer's termination occurred nine months after he had engaged in what he claims to be protected activity. As such, he cannot show a causal connection between his termination and Mrs. Cramer's filing of her complaint; therefore, his retaliation claim will be dismissed.
This Court need not determine whether Mr. Cramer engaged in a protected activity.
Mr. Cramer asserts five ways in which he allegedly suffered an adverse employment action as a result of his wife's June 1999 complaint of discrimination — viz., (1) not receiving the five percent shift differential, (2) being required to monitor the multi-cell machine and working later hours, (3) not being allowed to wear steel-toed shoes, (4) being reassigned frequently and (5) being terminated. None of these allegations except for his termination amounts to an adverse employment action because Mr. Cramer cannot show and does not allege that he was deprived of an opportunity or suffered a demotion, suspension or loss of wages.
First, the evidence shows that Mr. Cramer received the five percent shift differential under the same circumstances as the other managers who received the shift differential. Also, Mr. Cramer does not assert and cannot show that Fedco's policy against wearing steel-toed shoes was not universally applied or was directed specifically at him. Furthermore, as this Court has previously stated, simply disliking an action, without more, is not enough to establish an adverse employment action. Murphy, at 304. Therefore, said claims will be dismissed.
Mr. Cramer's claims of being given the assignment of monitoring the multi-cell machine and being reassigned also are not adverse employment actions because Mr. Cramer does not assert any loss of a tangible job benefit as a result of said actions. Transfers and shift changes involving no reduction in pay, absent extraordinary circumstances, are insufficient to establish an adverse employment action. DiBrino v. Dep't of Veteran's Affairs, 2004 U.S. App. LEXIS 25929, at *3 (2d Cir. Dec. 14, 2004) ("A shift change, without anything else, has been held insufficient to establish an `adverse employment action.'"); Murphy, at 304 ("A transfer involving no reduction in pay and no more than a minor change in working conditions will not [rise to the level of a materially adverse employment action]."). In Murphy, the plaintiff's transfer to and from different schools caused him to lose a number of committee posts and advisory positions. The Second Circuit, however, held that certain "loss[es]" are "merely an inevitable consequence of * * * reassignment" and the plaintiff's alleged losses were "ancillary to his employment". Murphy, at 304-305. Although the plaintiff claimed that his transfers were "devastating" to his career, the court found that such was the plaintiff's subjective evaluation and thus insufficient to state a claim. Ibid. (recognizing that "a transfer may constitute an adverse action under some circumstances, such as where it `results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career'") (citing Galabya, at 641). Here, Mr. Cramer does not even allege that his reassignments affected his career. He simply did not like his reassignments after June 1999 but had not minded being reassigned prior to June 1997. Mr. Cramer was never demoted inasmuch as he was always reassigned to managerial positions and his salary did not decrease. Although Mr. Cramer did not like working different hours, his child care needs were provided for by Fedco and he agreed to such in exchange for working those hours. Mr. Cramer's assertion that he did not like monitoring the multi-cell machine was not accompanied by an allegation that his career suffered because of such an assignment and, in arguing that he should not have been laid off, Mr. Cramer admits that he was the most versed with the operations and details of the multi-cell machine. As such, it was reasonable for Fedco to assign Mr. Cramer — the employee who helped purchase and was most familiar with the multi-cell machine — to monitor the machine. Mr. Cramer's claims, therefore, except for his termination do not amount to adverse employment actions and will be dismissed.
As this Court held above with regard to Mrs. Cramer's retaliation claim, a finding of a causal connection requires very close temporal proximity between the protected activity and the adverse employment action. See Clark County Sch. Dist., at 274. Courts have held that a three or four month span between the protected activity and the adverse employment action is too long to establish a causal connection; hence, nine months is too long. See Hollander, at 85-86 (2d Cir. 1990) (three months too long); Lambert, at *38-39 (four months too long). Therefore, Mr. Cramer cannot establish his prima facie case of retaliation and such will be dismissed.
Accordingly, it is hereby ORDERED that defendant Fedco's Motion for Summary Judgment is granted, that all of plaintiffs Mr. and Mrs. Cramer's claims are dismissed and that the Clerk of this Court shall close this action.