Opinion
No. 99 Civ. 12374 (JSM).
December 18, 2000.
Carmen Harris, New York, NY., for Plaintiff.
Geri S. Krauss, Herrick, Feinstein LLP, New York, NY., for Defendant.
MEMORANDUM OPINION AND ORDER
Carmen Harris ("Plaintiff") brings this pro se employment discrimination action alleging discrimination pursuant to Title VII of the Civil Rights Act of 1964, (codified as amended at 42 U.S.C. § 2000eet seq), and 42 U.S.C. § 1981, on the basis of her Hispanic and Puerto Rican ancestry and ethnicity. Plaintiff also alleges the common law tort of intentional infliction of emotional distress. Leboeuf, Lamb, Greene and MacRae, LLP, ("Defendant") moves for summary judgment. For the reasons stated below, Defendant's motion is granted.
BACKGROUND
Plaintiff was employed by Defendant as a legal secretary in its New York office from August 19, 1989, until April 24, 1998. Defendant terminated Plaintiff's services on April 24, 1998. Plaintiff alleges that she was fired because she is Hispanic and Puerto Rican. Defendant contends that Plaintiff was terminated because of her deteriorating work performance, acts of insubordination, negative attitude, inability to acknowledge her performance deficiencies, and her inability to get along with others. In October 1998, following her discharge, Plaintiff filed a claim with the Equal Opportunity Commission ("EEOC") alleging discrimination. After an investigation, the EEOC rejected Plaintiff's claims and issued a right to sue letter on September 23, 1999. Plaintiff filed this action on December 27, 1999.
The complaint alleges the following incidents of discrimination. According to Plaintiff, she was instructed not to speak Spanish in the office in November 1993 when she was accused of making an offensive comment about another employee in Spanish. Plaintiff alleges that other Hispanic secretaries were also asked not to speak Spanish in the office. In June 1995, Plaintiff reported that she heard a white secretary say "I am surrounded by spics and niggers." Plaintiff claims that the same white secretary was permitted to take breaks without being disciplined in 1996 because she was a friend of the secretarial manager. Finally, Defendant denied Plaintiff's vacation request in 1996 and then refused her request to convert the sick days she took during that time period into vacation days.
Plaintiff reported her claims of discrimination to the Head of Human Resources in August 1997, but she was not fired for making those allegations. (Harris Dep. at 388.) In early April 1998, Plaintiff's manager informed Plaintiff in writing that she had been evaluated as not meeting expectations in certain areas and requested that Plaintiff formulate an action plan to address those deficiencies. Plaintiff claims that she did not respond to these requests because she did not agree with the identified problem areas. Plaintiff drafted a memorandum to the Director of Human Resources on April 23, 1998 reporting her previous discrimination complaints, but there is no dispute that the memorandum was neither completed nor sent. (Harris Dep. at 422-23.)
Defendant has produced numerous documents from Plaintiff's personnel file. These documents indicate that several attorneys requested that Plaintiff be reassigned to other attorneys. Although there are positive evaluations in the file, there are also negative evaluations and reports of altercations with other employees.
DISCUSSION
I. Title VII Discrimination Claim
In order to state a timely claim under Title VII, a plaintiff must file a discrimination charge with the EEOC within 300 days of the alleged discriminatory activity. See 42 U.S.C. § 2000e-5 (e); see also Pikulin v. City Univ., 176 F.3d 598, 599 (2d Cir. 1999). Because Plaintiff filed her charge on October 10, 1998, any claim of discrimination occurring prior to December 14, 1997, is time-barred unless it forms part of a continuing violation.
To establish a continuing violation, a plaintiff must either demonstrate a series of related acts where at least one of the acts occurred within the limitations period, or prove that the defendant established a discriminatory policy prior to the limitations period. See Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995). "Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 504 (1980). Moreover, discrete incidents of discrimination that are unrelated to a discriminatory policy or practice do not constitute a continuing violation. See Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993).
Here, the alleged incidents of discrimination are unrelated to each other and do not suggest the establishment of a discriminatory policy. Because there is no evidence of a continuing violation in this case, all claims relating to incidents occurring before December 14, 1997, are time-barred. Thus, only incidents that occurred after that date will be considered.
The only alleged incidents of discrimination that survive the time bar are Plaintiff's receipt of the action plan and her ultimate termination. To bring a claim for employment discrimination under Title VII, a plaintiff must establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Once a plaintiff has made out a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the challenged employment action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094 (1981). If the defendant proffers a non-discriminatory basis for its employment decision, the burden returns to the Plaintiff to demonstrate that the defendant's reason is simply a pretext for discrimination. See id. at 256, 101 S.Ct. at 1095.
For the purposes of this summary judgment motion, the Court will assume, without deciding, that Plaintiff has made her prima facie case. As mentioned above, Defendant has produced many documents from Plaintiff's personnel file that detail negative feedback from attorneys, as well as altercations with other employees. The record thus indicates that Defendant had a legitimate, nondiscriminatory reason both for sending Plaintiff the action plan and for terminating her employment at the firm. Defendant has also provided evidence that an action plan was sent to a white employee on the same day that Plaintiff's action plan was sent. Plaintiff has offered no evidence to rebut Defendant's legitimate reasons for her termination. Although she points to some positive comments and evaluations in her file, Plaintiff cannot refute the fact that most of the attorneys that she worked for asked that she be transferred away from them. Thus, Defendant's motion for summary judgment on the first cause of action is granted.
II. Title VII Retaliation Claim
Plaintiff's second cause of action alleges that she was fired in retaliation for complaints she made about discriminatory acts in August 1997 and April 1998. The allocation of burdens of proof in retaliation cases follows the general rules articulated in the employment discrimination context. See Sumner v. United States Postal Serv., 899 F.2d 203, 208 (2d Cir. 1990). "To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (citing Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).
First, it should be noted that the evidence does not support the assertion in the complaint that Plaintiff complained about her manager to the Head of Human Resources on or about March 1998, one month before she was terminated. Instead, Plaintiff's memorandum reporting discrimination was sent to human resources in August 1997, several months earlier. In her deposition, Plaintiff admits that she was not fired for sending this memorandum. (Harris Dep. at 388.) The memorandum she drafted reiterating those complaints just before her termination was never sent. (Harris Dep. at 422-423.) To the extent that her retaliation claim is based on the first memorandum, the claim fails because it is both time-barred and because Plaintiff admits that it did not result in her termination. There is no other evidence that Plaintiff was engaged in protected activity criticizing her employer. Therefore, Plaintiff does not satisfy the first requirement of the prima facie case for a retaliation claim under Title VII. Defendant's motion for summary judgment on the retaliation claim is also granted.
III. Section 1981 Claim
Section 1981 guarantees to all persons in the United States "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). As amended by the Civil Rights Act of 1991, the phrase "to make and enforce contracts" includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b).
Section 1981 provides a cause of action for "race-based employment discrimination based on a hostile work environment." Whidbee v. Garzarelli, 223 F.3d 62, 69 (2d Cir. 2000). In order to survive a motion for summary judgment based on a claim of a hostile work environment, "a plaintiff must produce evidence that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment."Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotation marks omitted). The determination of whether the alleged workplace harassment is severe enough to be actionable depends on the totality of the circumstances. See id. Recently the Second Circuit Court of Appeals reiterated that the test is whether "the harassment is of such quality of quantity that a reasonable employee would find the conditions of her employment altered for the worse." Whidbee, 223 F.3d at 70 (quoting Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997)).
Even resolving all inferences in her favor, Plaintiff cannot sustain a claim for a hostile work environment. Plaintiff reported one incident of a co-worker uttering a racial slur five years before Plaintiff was terminated. She admits that she believes the incident was investigated by her employer and that the employee was disciplined. Plaintiff further admits that when she was accused of making an offensive comment in Spanish to another employee, she was not disciplined after the investigation. She concedes that it was in the context of this incident that a supervisor asked her not to speak Spanish in front of others who do not understand the language. Finally, Plaintiff claims that she suffered discrimination when she was not allowed to take her vacation during the week of New Year's Eve in 1996. Plaintiff concedes that she did not make a timely vacation request. The record indicates that Plaintiff's manager attempted to accommodate Plaintiff by offering her Christmas week or the week after New Year's as vacation alternatives. Plaintiff admits that she called in sick during New Year's Eve week and she took her planned trip to North Carolina, and then attempted to use accrued vacation time to cover her absence. Plaintiff's request was clearly against firm policy and the human resources staff subsequently met with her to explain the policy. Although Plaintiff's Rule 56.1 statement alleges that the firm allowed a white employee "to use a sick day she had not accrued in 1996," there is absolutely no evidence offered to support this allegation or even to indicate the circumstances surrounding this alleged accommodation of a white employee.
Drawing all inferences in Plaintiff's favor and viewing the totality of the circumstances of her nine-year employment, the harassment alleged was not of such quality or quantity that a reasonable employee would find her employment altered for the worse. In fact, the record indicates an employer that investigated reports of discrimination and attempted to address the concerns of its employees in an equitable manner.
IV. Intentional Infliction of Emotional Distress Claim
In order to sustain a claim for intentional infliction of emotional distress under New York law, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Herlihy v. Metropolitan Museum of Art, 633 N.Y.S.2d 106, 114 (App.Div. 1995) (quoting Murphy v. American Home Prods. Corp., 448 N.E.2d 86, 90 (1983)) (internal quotation marks omitted).
Wrongful termination, even for "retaliatory and discriminatory reasons in violation of various state and federal laws," does not satisfy the standard for intentional infliction of emotional distress. Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 657 (S.D.N Y 1993). Thus, Plaintiff could not base her claim on her termination, even if it were proved to be retaliatory. If Plaintiff attempted to base this claim on any of the other alleged incidents of discrimination, the claim would fail not only because the conduct is not outrageous, but because the claim would be time-barred by the applicable one year statute of limitations in New York. See N.Y. C.P.L.R. § 215 (2000); Bardi v. Warren County Sheriff's Dep't., 687 N.Y.S.2d 775, 777 (App.Div. 1999). Summary judgment is therefore granted in favor of Defendant on Plaintiff's fourth cause of action for intentional infliction of emotional distress.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted with respect to all four causes of action.
SO ORDERED.