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holding "a Title VII suit cannot be maintained against an individual employed by a private employer in his 'official capacity'"
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01 Civ. 1652 (LAK)(FM)
April 26, 2002
REPORT AND RECOMMENDATION
I. Introduction
In this employment discrimination action, pro se plaintiff Cordelia Smith ("Ms. Smith") seeks to recover damages against defendants American International Group ("AIG") and John Reilly ("Reilly"), an AIG manager. Ms. Smith contends that the defendants violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title VII"), through their sexual harassment and wrongful termination of her based upon her gender. The defendants have now moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, I recommend that the motion for summary judgment be granted and the complaint dismissed.
II. Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate only when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
In deciding such a motion, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55. Accord Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id., 477 U.S. at 249-50, 106 S.Ct. at 2511. Accord First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569, 593 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).
By her own admission, Ms. Smith is an attorney licensed to practice law in the State of New Jersey. (Smith Dep. 147). Nonetheless, because she is proceeding pro se in this action, the defendants' motion for summary judgment was accompanied by the notice to pro se plaintiffs required by Local Civil Rule 56.2. That notice to Ms. Smith explained, in part, that
THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by [Fed.R.Civ.P.] 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. . . .
. . . Any witness statements, which may include your own statements, must be in the form of affidavits.
. . . If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by the defendants, the court may accept defendants' factual assertions as true. Judgment may then be entered in defendants' favor without a trial.
(Docket No. 22) (Notice to Pro Se Litigant Opposing Mot. for Summ. J.) (emphasis added). Despite this detailed warning and her own legal training, Ms. Smith's only response to the present motion was a three-page unsworn letter, dated October 22, 2001 ("Smith Letter"), which she asked the Court to "accept . . . as opposition of [sic] the motion for summary judgement filed by defense counsel." (Smith Letter at 1). In that letter, Ms. Smith seeks to identify certain allegedly material factual disputes. (Id. at 1-3). Ms. Smith also complains that the excerpts from her deposition proffered by the defendants should not be considered by the Court because she had made four corrections to the transcript. (Id. at 1). There is no indication in her letter, however, that any of these transcript corrections are in any way material to the legal and factual issues in this case.
Out of an excess of caution, I directed the defendants to furnish me with the entire transcript of Ms. Smith's deposition, including the changes sought by Ms. Smith. My review of those submissions confirms that the changes sought by Ms. Smith were wholly inconsequential. (See letter dated Oct. 19, 2001, from Brian Spang, Esq. to Benjamin Reporting Service).
Because the complaint and the Smith Letter are both unsworn, Ms. Smith has failed to adduce any evidence in opposition to the summary judgment motion. Consequently, the defendants' factual assertions must be accepted as true to the extent that they are supported by admissible evidence. See Brittany Dying Printing Corp. v. Griseto, No. 96 Civ. 9218, 2000 WL 1717554, at *3 (S.D.N.Y. Nov. 16, 2000) ("Unsworn statements cannot be considered as evidence in opposition to summary judgment."); Burns v. N YS. Dep't of Corr., No. 83 Civ. 5570, 1989 WL 90803, at *2 (S.D.N Y Aug. 21, 1989) ("[W]here substantial discovery has occurred a pro se party is subject to all strictures of summary judgment."). I nevertheless have described the key discrepancies between the defendants' evidence and the allegations of the Smith Letter in footnotes to this Report and Recommendation.
III. Factual History
The relevant facts are as follows:
A. Job Performance
Ms. Smith began working as a claims analyst for AIG Technical Services, Inc., a subsidiary of AIG, in or around February 2000. (Smith Dep. 13; Aff. of Michael Petropoulos, sworn to on Oct. 17, 2001 ("Petropoulos Aff."), ¶ 2). She was terminated eleven months later on November 10, 2000. (Smith Dep. 67). During her relatively brief stay at AIG, Ms. Smith was assigned to work in the Environmental Claims Unit ("ECU"), which responds to policyholders's claims seeking coverage for environmental contamination. (Petropoulos Aff. ¶ 2). As a claims analyst, Ms. Smith was required to examine and evaluate claims, to determine whether coverage was warranted, and to assess AIG's potential liability. (Smith Dep. 92). Her responsibilities also included the drafting of coverage letters to policyholders. (Id. at 93-94).
In May or June of 2000, defendant Reilly became Ms. Smith's direct supervisor. (Id. at 15-16). Reilly, in turn, reported to Susan Rona ("Rona"), Director of the ECU, who reported to Michael Petropoulos ("Petropoulos"), Assistant Vice-President of the ECU. (Id. at 16). Reilly and Rona shared responsibility for supervising the ECU claims analysts, including Ms. Smith. (Aff. of John Reilly, sworn to on Oct. 17, 2001 ("Reilly Aff."), ¶ 2).
On or about August 2, 2000, Ms. Smith refused to meet with Rona to discuss a corrected "reservation of rights" letter to a policyholder. (Smith Dep. 170).
After Petropoulos learned of this incident, he met with Ms. Smith and warned her that he considered her refusal to her discuss work with a supervisor to be inappropriate and insubordinate behavior. (Id. at 172, 176; Petropoulos Aff. ¶ 3).
On or about August 28, 2000, Ms. Smith was scheduled to participate in certain training which was intended to culminate in a licensing examination. (Petropoulos Aff. Ex. 1). Upon learning that she had been scheduled to take the exam, Ms. Smith informed Reilly and Petropoulos that she was feeling ill. (Smith Dep. 122, 124, 126). Thereafter, however, when Petropoulos directed her to take a sick day and go home, Ms. Smith refused, claiming that she was well enough to continue working at her desk. (Id. at 124).
Approximately two weeks later, Ms. Smith refused to provide certain information, including the last four digits of her Social Security Number, so that she could register for an in-house training session. (See id. at 195 Ex. 12). She adhered to this position even after Reilly directed her to provide the information. (See Reilly Aff. ¶ 6). As a consequence, Reilly gave Ms. Smith a warning that she had been insubordinate. (See id.; Petropoulos Aff. ¶ 5).
Ms. Smith contends that she was reluctant to give out her Social Security Number because she previously had been a victim of credit card fraud. (Smith Letter at 2). It appears that AIG was sensitive to this concern since the exchange of e-mails related to the request makes clear that she was only being asked to provide the last four digits of the number. (Smith Dep. Ex. 12).
Ms. Smith denies that she received a verbal warning on this occasion. (Smith Letter at 2).
In response to these problems Reilly prepared a Performance Improvement Plan, dated September 20, 2000 ("Plan"), which addressed several areas in which Ms. Smith's performance "need[ed] development or improvement." (See Smith Dep. Ex. 14).
One of the four goals set forth in the Plan required Ms. Smith to "[a]ct in a cooperative manner and be responsive to requests made of [her] regarding work-related matters." (Id. at 3). In addition, to help achieve the goal of writing better coverage letters, the Plan required Ms. Smith to submit "two positional letters" for review each week and to meet with Reilly bi-weekly to discuss her progress. (Id.). Ms. Smith claims not to have received the Plan, or a written warning dated October 19, 2000, until October 25, 2000. (Smith Dep. 215, 254, 340-41). The written warning informed Ms. Smith that her job performance had "not improved," and that her employment could therefore be "terminated without further written notice" unless she showed "immediate, significant and sustained improvement in [her] overall job performance." (Id. Ex. 18).
Reilly began scheduling meetings in accordance with the Performance Improvement Plan on or about September 27, 2000. (See id. Ex. 15 (e-mails from Reilly to Ms. Smith)). On several occasions, however, Ms. Smith refused to meet with him. (Id. at 218 Ex. 15). She also challenged Reilly's instructions to work on certain files that she thought should be handled by other units within AIG. (See id. at 271 Ex. 23 (e-mails between Reilly and Ms. Smith)). When Reilly directed Ms. Smith to turn over any work that she previously had done on those files, she refused, sending him an e-mail which declared that she was "NOT GOING TO GIVE OUT SOMETHING THAT MAKES ME LOOK INCOMPETENT." (See id. Ex. 26 (e-mails between Reilly and Ms. Smith about the "Ethyl" files)).
Ms. Smith maintains that she ultimately completed work on these files. (Smith Letter at 2).
On or about November 8, 2000, Rona again met with Ms. Smith and warned her that one more incident of insubordination would result in her termination. (Id. at 294; see Petropoulos Aff. ¶ 6). Despite that warning, later the same day, Ms. Smith sent Reilly an e-mail challenging his decision to assign her a file in which the plaintiff sought a declaratory judgment. (Smith Dep. Ex. 28). As he explained in a responsive e-mail, in raising her objections Ms. Smith evidently failed to perceive the difference between a declaratory judgment action brought against AIG by a policyholder seeking coverage (which fell within the mandate of another AIG unit) and suits brought against an AIG policyholder in which the plaintiff sought a declaratory judgment that AIG's insured was at fault for environmental contamination (which were routinely assigned to the ECU). (Id.).
Ms. Smith contends that there are facts in dispute regarding the manner in which the meeting with Rona took place. However, she does not dispute that Rona gave her a verbal warning. (See Smith Letter at 2).
Ms. Smith denies that any incident of insubordination occurred on this date. (Smith Letter at 2). However, she does not deny that she challenged Reilly's direction to work on files that she thought should be assigned elsewhere. (Id.).
Reilly forwarded a copy of this e-mail exchange with Ms. Smith to Rona, who notified Petropoulos. (Reilly Aff. ¶ 7; Petropoulos Aff. ¶ 6). As a result, later the same day, Petropoulos made the decision to terminate Ms. Smith's employment and sought the required approval of the AIG Human Resources Department. (Petropoulos Aff. ¶ 7). Reilly did not participate in this decision. (Id.).
On November 10, 2000, Gina Palmisano of the AIG Human Resources Department advised Petropoulos that his request was approved. (Id.; Aff. of Gina Palmisano, sworn to on Oct. 17, 2001, ¶ 4). Petropoulos and Rona then informed Ms. Smith of her termination. (Smith Dep. 105).
B. Alleged Incidents of Sexual Harassment
Ms. Smith alleges that in or around the first week of October 2000, Reilly entered her cubicle and "pressed the front part of his body up against [her] chair." (Compl. ¶ 8; see also Smith Dep. 28-29). Specifically, Ms. Smith contends that Reilly opened his legs, began to behave as if he were dancing, and purposefully bumped his mid-section against her chair and her body. (Smith Dep. 29-33, 37-38). After having touched her twice, Reilly then "snapped out of it and . . . left the cubicle." (Id. at 31). Ms. Smith did not contact anyone at AIG about this incident. (Id. at 33-36, 62-64).
At her deposition, Ms. Smith said that she was unsure of the duration of this incident but thought it probably lasted less than one minute. (See Smith Dep. at 38). In her letter, Ms. Smith says that "[t]he facts are in dispute regarding what I said regarding how long the incident lasted." (Smith Letter at 2).
Ms. Smith also alleges that some time thereafter, Reilly again entered her cubicle and began talking to her "closer than he would usually." (Id. at 41). On that occasion, Ms. Smith asked Reilly to step away from her and he complied. (Id. at 41-42).
Once again, she did not report this incident to anyone at AIG. (Id. at 47). In a subsequent e-mail to Reilly on November 10, 2000, Ms. Smith observed that "there were a couple of times that you walked up on me pretty close in my cubical [sic] which [I] was not comfortable with and I asked you to back up from me which you did." (Id. at 70 Ex. 5). Ms. Smith suggested that any future meetings with Reilly take place "in an area which has more personal space, and of course with the door open." (Id. Ex. 5).
There were no other incidents of alleged sexual harassment while Ms. Smith was employed at AIG. (Id. at 220-21).
C. Procedural History
Following her termination, Ms. Smith filed a charge with the Equal Employment Opportunity Commission ("EEOC") on November 20, 2000. (Compl. ¶ 10).
On January 31, 2001, the EEOC issued her a "right to sue" letter. (Id. Ex. A).
On February 6, 2001, Ms. Smith commenced this action by the filing of her complaint. Ms. Smith contends that AIG violated Title VII by discriminating against her on the basis of her gender. (Compl. at 1). Liberally construed, the complaint alleges that she was sexually harassed by Reilly and that AIG wrongfully terminated her based upon her gender and in response to her November 10th e-mail to Reilly complaining about his harassment of her. In addition to AIG, Ms. Smith's complaint names Reilly individually and as AIG's employee.
IV. Discussion
A. Title VII Claims Against Reilly
It is settled law that an individual cannot be held personally liable under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Cooper v. Morgenthau, No. 99 Civ. 11946, 2001 WL 868003, at *4 (S.D.N.Y. July 31, 2001) (Pauley, J.) (collecting cases). Moreover, the better reasoned cases hold that a Title VII suit cannot be maintained against an individual employed by a private employer in his "official capacity." See, e.g., Gray v. Shearson Lehman Bros, Inc., 947 F. Supp. 132, 136 (S.D.N.Y. 1996) (Mukasey, J.); Bakal v. Ambassador Constr., No. 94 Civ. 584, 1995 WL 447784, at *4 (S.D.N.Y. July 28, 1995) (Martin, J.). Consequently, Ms. Smith's complaint should be dismissed insofar as she seeks damages against Reilly.
B. Sexual Harassment Claims
Under Title VII, an employer may not "discriminate against any individual with respect to [her] 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). An employee may suffer such proscribed discriminatory treatment when she is required to work in a hostile or abusive environment. Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 367, 126 L.Ed.2d 295 (1993)). To make the necessary showing, however, Ms. Smith must prove (1) that her working environment was "objectively hostile" and (2) that a specific basis exists for imputing the harassing conduct to her former employer. See Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000); O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 385 (S.D.N.Y. 2001) (Scheindlin, J.). Here, even if the Court were to accept Ms. Smith's version of the relevant events, she plainly has not alleged facts sufficient to make either required showing.
To determine whether a work environment is "objectively hostile," a court must examine all of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. at 371. "[S]exual harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County Sch. Dist. v. Breedon, 532 U.S. 268, 270, 121 S.Ct. 1508, 1509, 149 L.Ed.2d 509 (2001) (quoting Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998)) (brackets in original) (internal quotations omitted). Isolated incidents of harassment, unless "extremely serious," are not sufficient to create such a hostile work environment. See Breedon, 532 U.S. at 271, 121 S.Ct. at 1510; Howley, 217 F.3d at 153; O'Dell, 153 F. Supp.2d at 386. See also Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (holding that incidents of harassment must be "more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive").
In this case, there were, at most, two instances of harassing conduct. (See Smith Dep. 28-33, 37-38, 41-42). During the first incident, Reilly allegedly bumped against Ms. Smith twice while in her cubicle. (See id. at 37-38). As she herself admits, during the second incident, Reilly did not touch her, but merely started talking to her "closer than he would usually," (id. at 41), and stepped away when she asked him to do so. (Id. at 42). In neither instance, did the alleged behavior place Ms. Smith in any physical danger, nor, apparently, did it occur in the presence of any of Ms. Smith's co-workers. (See id. at 41).
Although it may, at times, be difficult to determine whether a plaintiff has adequately made out a sexual harassment claim, these two limited episodes plainly do not amount to the sort of "extremely serious" behavior that gives rise to a hostile work environment under Title VII. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (finding that an incident in which plaintiff's supervisor deliberately touched her breasts with papers that he was holding was not "of sufficient severity to alter the conditions of [plaintiff's] employment") (quoting Harris, 510 U.S. at 21, 114 s. Ct. at 370; Ballance v. Energy Trans. Corp., No. 00 Civ. 9180, 2001 WL 1246586, at *11 (S.D.N.Y. Oct. 18, 2001) (McKenna, J.) (holding that one incident in which defendant allegedly untied plaintiff's apron and touched her buttocks did not "amount to an environment permeated with discrimination"); Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999 WL 796172, at *11 (S.D.N.Y. Sept. 30, 1999) (Preska, J.) (holding that plaintiff's claims that the defendant "brushed up against her on some occasions" were not sufficient to establish a hostile work environment); Lucas v. S. Nassau Communities Hosp., 54 F. Supp.2d 141, 147 (E.D.N.Y. 1998) (Seybert, J.) (dismissing sexual harassment claims where plaintiff alleged that her supervisor had briefly touched her on several occasions).
Of equal importance, as the undisputed evidence shows, Reilly played no role in Ms. Smith's termination. In such circumstances, where the supervisor alleged to have engaged in the harassing activity did not himself take tangible employment action against the plaintiff, the defendant employer may avoid liability by demonstrating as an affirmative defense: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior;" and (2) "that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 765, 118 S. Ct. at 2270.
With respect to the first required showing, Ms. Smith admits that she received an employee handbook when she began working at AIG. (Smith Dep. 23 Ex.1 (Employee Handbook Receipt)). The handbook included a section detailing AIG's sexual harassment policy, which proscribes conduct akin to that allegedly engaged in by Reilly ("touching, pinching, rubbing or massaging the body"), sets forth two avenues through which an employee can report harassment, provides that complaints will be handled "with as much discretion and confidentiality as circumstances permit," and assures employees that the company "will not tolerate any retaliation" for "bringing inappropriate conduct to the [c]ompany's attention." (Id. Ex. 4). Although Ms. Smith claims not to have read the handbook, she was aware that it was a resource she could use if she had any questions concerning employment issues. (Id. at 23-24). In any event, by establishing an effective sexual harassment policy and providing Ms. Smith with a copy, AIG unquestionably took reasonable steps to prevent improper conduct. See, e.g., Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (concluding that employer established reasonable care when it had an anti-harassment policy and complaint procedure in place); O'Dell, 153 F. Supp.2d at 389 (holding that employer's sexual harassment policy, which employee received and reviewed when she was hired, was sufficient to establish reasonable care in preventing harassment); Donovan v. Big V Supermarkets, No. 98 Civ. 2842, 1999 WL 615100, at *5 (S.D.N.Y. Aug. 12, 1999) (Schwartz, J.) (employer took reasonable care to prevent harassment when it provided employee handbook to employees during orientation and employees were permitted to ask questions about policies); DeWitt v. Lieberman, 48 F. Supp.2d 280, 287, 291 (S.D.N Y 1999) (Scheindlin, J.) (employer exercised reasonable care when it maintained a sexual harassment policy in its employee handbook and in its personnel office).
Turning to the second element of the affirmative defense, Ms. Smith admits that she failed to avail herself of the procedures that AIG had adopted in an effort to prevent sexual harassment. Although she claims to have believed that she would lose her job if she reported Reilly's alleged improprieties, (see Smith Dep. 35-36, 62), she has not alleged any facts to demonstrate that this fear had a reasonable basis. See Leopold, 239 F.3d at 246 (employee's fear of being terminated for informing employer of harassment was unreasonable when not supported by any evidence other than "her apprehension that she would be fired for speaking up"); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999) (a "credible fear" that an employee will suffer some adverse employment action for informing employer of harassment must be based on more than the employee's subjective belief); Patterson v. CBS, Inc., No. 94 Civ. 2562, 2000 WL 666337, at *8 (S.D.N.Y. May 22, 2000) (Duffy, J.) (employee's fear of retaliation found unreasonable because it was not based on any statement or representation). In sum, even if Ms. Smith were able to demonstrate the existence of a hostile work environment, AIG would not be liable because it took reasonable care to prevent such misconduct and Ms. Smith unreasonably failed to avail herself of the corrective opportunities provided by AIG.
C. Discrimination Claim
To establish a prima facie case of gender discrimination at the summary judgment stage, a plaintiff must proffer evidence demonstrating that (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) "the circumstances surrounding [the] action give rise to an inference of . . . discrimination." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Accord Calle v. ISS Cleaning Servs., No. 00 Civ. 3706, 2001 WL 1580242, at *2 (S.D.N.Y. Dec. 11, 2001) (Knapp, J.); Flaherty v. Metromail Corp., No. 98 Civ. 8611, 2001 WL 868011, at *4 (S.D.N.Y. July 31, 2001) (Buchwald, J.). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802; 93 S.Ct. 1817, 1824; 36 L.Ed. 2d 668, 677 (1973). As many courts have noted, this prima facie threshold is not difficult to meet. See, e.g., Abdu-Brisson, 239 F.3d at 467 (describing the burden as "de minimis"). A prima facie showing, in turn, gives rise to a presumption of unlawful discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-54, 101 S. Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).
Once a plaintiff has made the necessary minimal showing, the burden shifts to the employer to proffer a legitimate nondiscriminatory reason for its action. Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
If the employer meets this requirement, the presumption arising out of the prima facie showing drops out of the case, and the burden of persuasion rests with the plaintiff to establish a Title VII violation. Id. at 1336.
At this stage, the "plaintiff then has the opportunity to demonstrate 'that the proffered reason was not the true reason for the employment decision.'" Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993)). In other words, the burden shifts back to the plaintiff to prove that "discrimination was the real reason for the employment action." Graham v. LIRR, 230 F.3d 34, 38 (2d Cir. 2000). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
In its en banc decision in Fisher, the Second Circuit indicated that an explanation by the employer which is pretextual "is not always sufficient to sustain an ultimate finding of intentional discrimination." Id. at 1338. This holding, however, was called into doubt by the Supreme Court's subsequent decision in Reeves, 530 U.S. 133, 120 S.Ct. 2097. Many commentators read Reeves to overrule Fisher and virtually preclude the granting of summary judgment to an employer in circumstances where the employee could establish both a prima facie case and that the employer's asserted rationale for the adverse employment action was pretextual. See, e.g., Tamara Loomis, 'Pretext Plus' Rejected — Employment Discrimination Landscape Changed, N. Y. L. J., June 22, 2000, at 5.
In James v. New York Racing Ass'n, 233 F.3d 149 (2d Cir. 2000), the Second Circuit sought to harmonize Fisher with Reeves. As Judge Leval summarized the applicable case law, "once a minimal prima facie case is proved and the employer's nondiscriminatory explanation has been given, 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, 233 F.3d at 156. This requires a case-by-case analysis of the evidence "to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination." Id. at 157. Stated somewhat differently, the court must "examin[e] the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Uddin v. New York City, Nos. 99 Civ. 5843 00 Civ. 3417, 2001 WL 15694, at *3 (S.D.N.Y. Jan. 8, 2001) (Lynch, J.) (quoting Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (in turn quoting Reeves, 530 U.S. at 143, 120 S.Ct. at 2106)). See also Zimmerman v. Associated First Capital Corp., 251 F.3d 376, 382 (noting that "[t]he task . . . is to examine the entire record and, in accordance with Reeves, make the case-specific assessment as to whether a finding of discrimination may reasonably be made").
In this case, assuming that Ms. Smith were able to establish the first three elements of a prima facie gender discrimination claim, she plainly has not satisfied the fourth element by producing evidence that the circumstances surrounding her termination give rise to an inference of discrimination. See Abdu-Brisson, 239 F.3d at 466. Indeed, in response to an order entered by this Court on June 18, 2001, Ms. Smith has admitted that she is unaware of any other employees at AIG who were treated more favorably than she was, nor has she adduced any evidence that AIG replaced her with a male. (See Docket No. 12 Smith Dep. Ex. 29 (Answer to Court's Interrogatory No. 5)).
Ms. Smith claims that she did not make such an admission in her deposition or any of her pleadings. (Smith Letter at 3). Nevertheless, Fed.R.Civ.P. 56 requires this Court to enter summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added).
Ms. Smith therefore has not established even a prima facie case of wrongful termination. Moreover, even if Ms. Smith had established such a prima facie case, AIG has proffered a legitimate nondiscriminatory reason for its termination of Ms. Smith — namely her failure to perform her duties as a claims analyst adequately. Ms. Smith therefore has the burden of showing that this reason was pretextual and that gender discrimination was the true reason for her termination. No such showing has been made here. Ms. Smith's wrongful termination claim consequently should be dismissed.
D. Retaliatory Discharge
Finally, to establish a prima facie case of retaliatory termination, a plaintiff must demonstrate that (1) she was participating in a protected activity under Title VII; (2) her employer was aware of that activity; (3) she suffered an adverse employment action; and (4) "there was a causal connection between the protected activity and the adverse action." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001) (quoting Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)).
As with the burden of proof for wrongful termination based on gender discrimination, once a plaintiff has made a prima facie case of retaliation, the burden shifts to the defendant to proffer a nondiscriminatory reason for its employment decision. See Holtz, 258 F.3d at 81; Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999). If the defendant supplies such a nondiscriminatory reason, the burden of persuasion shifts back to the plaintiff. See Fisher, 114 F.3d at 1336.
Ms. Smith has failed to make even a prima facie showing of retaliatory discharge. First, Ms. Smith is unable to show that she was engaged in protected activity.
She apparently contends that she was fired on November 10, 2000, because she sent an e-mail to Reilly explaining that she was uncomfortable meeting with him because of two incidents in her cubicle. (See Smith Letter at 2). Those incidents, however, are not sufficiently serious to constitute an objectively hostile work environment. Accordingly, as a matter of law, Ms. Smith's complaint to Reilly about those incidents cannot constitute protected activity under Title VII. See Breedon, 532 U.S. at 270, 121 S.Ct. at 1509 (holding that a retaliatory discharge claim fails when the underlying incident about which the plaintiff complained does not constitute a Title VII violation).
Furthermore, even if Ms. Smith could show that her e-mail to Reilly related to protected activity and that AIG was aware of it, she has not shown the required causal connection between that e-mail and her termination. Indeed, the decision to terminate Ms. Smith's employment due to her repeated acts of insubordination was made by Petropoulos on November 8, 2000, two days before her e-mail was sent. Although the required approval from the AIG Human Resources Department was not received until the date of the e-mail, Ms. Smith also has not shown that there was any causal connection between that approval and her e-mail. Indeed, the undisputed evidence confirms that the temporal proximity between Ms. Smith's email and her termination is mere happenstance.
V. Conclusion
For the foregoing reasons, I recommend that the defendants' motion for summary judgment be granted and the complaint dismissed.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N Y 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).
Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).