Opinion
No. 03 Civ. 5062 (CBM).
March 14, 2005
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
American Express Bank Ltd. ("American Express") moves this court to grant summary judgment in its favor and against plaintiff Diana Snowdon. Snowdon alleges in her complaint that she was terminated from her position with American Express in August 2002 in retaliation for complaining of sexual harassment. Because this court concludes the movant is entitled to summary judgment, defendant's motion is GRANTED.
II. BACKGROUND
A. Procedural History
Diana Snowdon filed this action on July 8, 2003, alleging discrimination on the basis of her sex and wrongful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq., New York State Human Rights Law, and the New York City Human Rights Law.
American Express answered on September 16, 2003, and filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 on May 31, 2004.
A summary judgment schedule was entered on May 10, 2004 that provided for plaintiff to file its opposition to defendant's motion for summary judgment on or before June 15, 2004. On June 17, 2004, this court extended plaintiff's deadline to file its opposition to defendant's motion for summary judgment until June 28, 2004, with the caveat that no further extensions to the summary judgment schedule would be granted. On June 29, 2004, one day after the deadline for filing its opposition had passed, plaintiff requested a three-day extension to file opposition papers. On June 30, 2004, this court denied the extension on the grounds that an earlier request to extend the deadline had already been granted. Plaintiff's request for reconsideration of this order was denied because plaintiff did not furnish a satisfactory explanation as to why the prior decision should be vacated. Consequently, defendants motion for summary judgment is unopposed by the plaintiff.
Because defendants motion is unopposed, the facts are derived from Defendant's Local Rule 56.1 Statement ("Def.'s 56.1 Stmt.") unless otherwise indicated.
Plaintiff Diana Snowdon was employed by American Express as Director of the Foreign Exchange Department from mid-April, 2002 to August 8, 2002. (Def.'s 56.1 Stmt. ¶¶ 3, 4, 115). Her position was Director of Foreign Exchange Sales, which involved marketing foreign exchange products to certain existing American Express clients. (Id. ¶ 2, 13).
Snowdon's direct supervisor was Victor Polce. (Id. ¶ 5). Polce oversaw six other salespersons, three of whom, Michael McGuinness and Brett Glenn, along with Snowdon, were responsible for targeting international clients. (Id. ¶¶ 11, 13). McGuinness, Glenn, and Snowdon shared a computer database containing confidential information such as client profiles with annual foreign exchange volume, sales call activity, contact information and corporate card account activity. (Id. ¶¶ 15-16). This database was housed on a shared drive on which McGuinness, Glenn, and Snowdon maintained and updated client information, with access restricted to McGuinness, Glenn, and Snowdon. (Id. ¶ 17).
The relevant chronology of events centers around a falling out between Snowdon and Polce in May 2002, when Snowdon disagreed with a directive from Polce to the sales team to contact prospective clients and tell them that the Eurodollar had "topped out," signaling that prospects should buy. (Def.'s 56.1 Stmt., ¶ 24, Exhibit B, Deposition of Diana Snowdon, p. 148). This disagreement allegedly brought about a change in Polce's behavior toward Snowdon. (Def.'s 56.1 Stmt. ¶¶ 25, 26, 28).
Thereafter, at two meetings with American Express clients, Snowdon neglected to adhere to a policy requiring that client meetings be held only with representatives authorized to make decisions on behalf of the client with regard to foreign exchange transactions. (Id. ¶¶ 30-34, 36). The first meeting was on June 10, 2002, with Clear Channel, and was held with a representative of the company who did not have authority to make decisions relating to foreign exchange transactions. The second meeting was on July 11, 2002, in Miami, Florida, where Snowdon and McGuinness had traveled to meet with three prospective clients: Burger King, Bacardi, and IVAX. (Id. ¶ 42). According to McGuinness, the meeting with Bacardi did not go well because the individual with whom Snowdon and McGuinness met was not a decision-maker for Bacardi. (Id. ¶ 44). McGuinness testified that the individual with whom Snowdon and McGuinness met stated at the beginning of that meeting, "Like I told you, Diana, I don't do any foreign exchange. I just do dollar wire transfers." (Id. ¶ 44, 48; Affidavit of Michael F. McGuinness, ¶ 12).
The facts are not clear as to whether this policy was instituted by American Express or Polce. Snowdon testified that it is "good business," and would traditionally be required before traveling to see a client, but that Polce had never explicitly expressed that this was a standing policy. (Def.'s 56.1 Stmt., Exhibit B. Deposition of Diana Snowdon, pp. 186-87).
Snowdon's deposition testimony, however, provides a different characterization of these events. Regarding the June 10, 2002, meeting, Snowdon had been previously forwarded an email that originated from Clear Channel and indicated an interest in American Express' foreign exchange products. (Snowdon Dep. at 188). According to Snowdon, Snowdon relayed the message to Polce, who instructed Snowdon to conduct the meeting because he was going to be golfing the following day. (Id. at 188). The instruction from Polce led Snowdon to believe that the contact had already been established, since that person had spoken with Polce, and because Polce told her to "take the meeting." (Id.). However, the person Snowdon contacted was not the ultimate decision-maker, but was "part of the decision-making process." (Id. at 249). This signified to Snowdon that although he was not the ultimate decision-maker, her time in contacting him was not ill-spent. (Id. at 251).
Snowdon testified that in response to the June 10, 2002, meeting with the non-ultimate-decision-maker at Clear Channel, Polce told her she "should strive to always go to the ultimate decision maker," and that "[i]nfluences are nice, but the decision maker is the one you want to talk to." (Id. at 251). Polce did not take Snowdon out of the trading room to discuss the matter, and the issue was "put . . . aside." (Id.).
Polce, in contrast, testified that he offered to accompany Snowdon to the June 10, 2002 meeting with Clear Channel, and that Snowdon declined the offer. (Def.'s 56.1 Stmt., Exhibit D, Deposition of Victor M. Polce, p. 73). Polce also stated he was "very surprised" to learn from Snowdon on her return that she did not meet with the decision-maker at Clear Channel. (Id.).
With regard to the July 11, 2002 meeting with Bacardi, Snowdon testified to a miscommunication with Robert Higdon, who initially communicated to Snowdon that he was responsible for handling Bacardi's foreign exchange transactions. ((Snowdon Dep. at 191). Only upon meeting Higdon in Miami was it discovered that he in fact was not a decision-maker. (Id. at 192). Nevertheless, Snowdon viewed this meeting in a positive light, stating that as a result, Snowdon and McGuinness were "point[ed] . . . in the right direction" by Higdon, who indicated the correct decision-maker, and established an introduction to the prospect from which a professional relationship with the company may further be developed. (Id. at 192).
Nevertheless, these incidents caused Polce to admonish Snowdon and to contact Rosann Ashe, Director of Human Resources for the Bank, regarding his dissatisfaction with Snowdon's work performance. (Def.'s 56.1 Stmt. ¶ 35). Polce informed Ashe that Snowdon lacked an understanding of financial markets and cited her failure to ascertain decision-makers among client prospects. (Id. ¶ 35). Polce requested that Snowdon be placed on a performance improvement plan, which is a formal opportunity for an employee not currently meeting expectations to remedy shortcomings over a period of 30, 60, or 90 days. (Id. ¶ 37). An employee failing to effect improvement upon completion of the plan results in discharge. (Id. ¶ 37). Human resources forwarded Polce the requisite forms to implement the performance improvement plan, including a coaching log template. (Id. ¶ 38). Polce prepared a coaching log, in accordance with the template, that documented conversations with Snowdon in which her work performance deficiencies were discussed. (Id. ¶¶ 38-39). However, aside from these preparatory measures, the performance improvement plan was never implemented. (Id. ¶ 41).
On July 15, 2002, files were deleted from the confidential database under circumstances that defendants allege suggested Snowdon's culpability. The facts of this episode are related below.
Snowdon came to work earlier than usual on Monday, July 15, 2002. (Id. at ¶ 47). She testified that she wanted to write up a report for Polce on the three companies with whom she had met. (Snowdon Dep. at ¶ 276). She had handwritten the report over the weekend and desired to produce it electronically to present to Polce. (Id.). Polce, who was out of the office that day, telephoned in the morning to inquire as to the July 12 meeting. (Def.'s 56.1 Stmt. ¶ 48). Polce learned from McGuinness, who had accompanied Snowdon, that Snowdon had again failed to comply with the decision-maker policy and that the meeting had not gone well. (Id.). Consequently, Polce asked to speak with Snowdon and told her he wanted to meet with her concerning this incident when he returned to the office the next day. (Id.). He asked that in the meantime she turn over her files to McGuinness. (Id. ¶¶ 51-52). Snowdon became ill following this discussion and excused herself to the restroom. (Id. ¶ 55). When Snowdon returned from the restroom, she could not access the shared database and she informed Glenn of this fact. (Id. ¶ 56). She then became panicked and distraught and left work. (Id.). Glenn telephoned Polce to relay that the database had disappeared, and that Glenn suspected Snowdon because she was the last to access the database and because of her abrupt departure. (Id. ¶¶ 57-58). It was later confirmed by company technicians that Snowdon had accessed the database on the morning of July 15, 2002, and the time of this access coincided with its disappearance. (Id. ¶ 80). Technicians also stated that Snowdon had e-mailed recruiters that morning. (Id.).
Snowdon's account provides a different version of this episode. Snowdon testified that McGuinness lied to Polce about the July 15, 2002 meeting with Bacardi by telling Polce that Higdon had indicated to Snowdon that he was not the decision-maker at Bacardi prior to their meeting. (Id. at 192, 234-36). Snowdon claims that because McGuinness could not "get any appointments," with clients, her performance "made him look bad." (Id. at 234) ("He couldn't get any appointments, and he had been at it for three years. I had been there two months and had a calendar full."). Additionally, Snowdon testified that McGuinness and Polce "are golfing partners and have been for several years." (Snowdon's Dep. at 129). Polce testified that he golfed with McGuinness once a year, and did not otherwise socialize with McGuinness. (Polce Dep. at 78).
Regarding the disappearance of the shared database, Snowdon testified that when she excused herself to the restroom after speaking with Polce on the telephone, she left her computer signed on, which was general practice in the trading room because of the time it takes to reboot when the employees return to their desks. (Snowdon Dep. at 287). Upon her return to her desk, she attempted to access the remaining accounts that had not been transferred to McGuinness by Polce's order, and could not. (Id.). When Snowdon queried Brett Glenn, who had been seated next to Snowdon and was there while she was in the restroom, as to what had happened, he "kept his head down and totally ignored" Snowdon. (Id.). After being asked a second time, Glenn stated, "I don't know what you're talking about." (Id.). According to Snowdon, Polce had arranged to have the files removed. (See Id. at 289).
Snowdon's allegations surfaced the next day, July 16, 2002, in an e-mail to Richard Holmes, President of the Bank, and Andrew Grant, Executive Director and Polce's manager. (Id. ¶ 68). Snowdon alleged that because of her disagreement with the directive from Polce about the Eurodollar, Polce thereafter became physically and verbally abusive toward her. (Id. ¶ 69). Specifically, Polce allegedly slammed his keyboard on several occasions, and on one occasion Polce knocked plaintiff in her shoulder with his fist, shouted at her to follow him to the front of the building and slammed each door behind him and in front of Snowdon. (Id. ¶ 73). Snowdon claimed that once Polce allegedly shouted at Snowdon to assist a co-worker, and when Snowdon responded that she was busy, Polce slammed his keyboard and glared at her. (Id. ¶ 74). On another occasion, Snowdon alleged that Polce screamed at her for not answering his telephone, then yelled at her for complying because he had originally meant for her to only answer particular calls. (Id. ¶ 75).
According to Snowdon, Polce never threw his keyboard at her or any employee, but would throw it "in front of him[self] all the time," in a direction "inward and down" just below his computer monitor on his desk. (Snowdon Dep. at 133-34).
In the course of the company's subsequent investigation into the database incident a few days later, Tanisa Williams, an Employee Relations Manager within the Employee Relations Group, interviewed Snowdon. (Id. ¶ 89-90). In that interview, Snowdon related other examples of Polce's misconduct: Every time Polce exited or entered the trading room, he would hit the back of her chair and push her into her desk; Polce demanded that Snowdon, and not a male employee, answer Polce's telephone and retrieve his faxes and prints when he was not present; Polce socialized with male employees, but excluded Snowdon from lunch and golf outings. (Id., and Snowdon's Dep. at).
On Polce's return to the office on July 16, 2002, he completely revoked Snowdon's access to American Express computer systems because he believed she was involved in the disappearance of the database and that she posed a security risk. (Id. ¶ 60). Polce related the database incident to Ashe, and together they decided to suspend Snowdon pending investigation into the database incident, subject to approval from the Employee Relations Group. (Id. ¶ 63).
The Employee Relations Group appears to work with the human resources department.
The investigation into the database incident turned up violations of company policy involving use of Snowdon's American Express corporate card to purchase personal items. (Id. ¶ 81). In an interview with Snowdon on July 18, 2002, conducted by Ashe, along with Dave Enders and Joan Colucci, Security Department employees at American Express, Snowdon denied tampering with the client database, but admitted to accessing the database and sending e-mails to herself, as well as using the corporate card in the manner alleged. (Id. ¶ 79, 84-86).
The facts indicate that although the investigation into the database incident was ongoing, the violations of company policy with regard to the American Express corporate card were discovered subsequent to Snowdon's email alleging abuse on the part of Polce.
According to defendants, no other employee in Polce's group was in the practice of charging personal items on his or her corporate card. (Id. ¶ 87).
Snowdon testified that she accessed the database the morning of July 15, 2002 because she had calls to make. (Snowdon Dep. at 278). As set forth above, she accessed her e-mail because she was preparing a report for Polce. She was typing the report in e-mail format in order to save Polce time and to make the documents easier for Polce to access. (Id. at 278). Regarding her using the corporate card, Snowdon did not deem it significant because she had knowledge of co-workers using their cards in a similar manner, including McGuinness. (Id. at 312).
Williams' investigation, which included personal interviews with a number of Snowdon's co-workers, failed to substantiate Snowdon's allegations against Polce. (Id. ¶ 89-91, 94, 96-97). After Williams shared a summary of her findings with Ashe, Ashe and Polce decided to discharge Snowdon. (Id. ¶ 98-99). A meeting was thereafter scheduled with Snowdon for August 6, 2002. (Id. ¶ 102). On August 5, 2002, Snowdon sent an email to Kenneth Chenault, President and CEO of American Express, which included her previous email to Holmes and Grant, and alleged additional examples of "attacks" on her by Polce. (Id. ¶ 106). Snowdon alleged that Polce admonished her for being late for work one day, and threw a report of Snowdon's on her desk. (Id. ¶ 107). The next day, August 6, 2002, Snowdon sent yet another email, this one to Ursula Fairbairn, Executive Vice President for Human Resources at American Express, claiming sexual harassment and bullying of female employees in the trading room. (Id. ¶ 109). Snowdon alleged in the email to Fairbairn that Polce once spent a day commenting to Glenn about the "asses" and "tits" of certain female employees in American Express' Minneapolis office. (Id. ¶ 111). Again, Williams' investigation into the matter, which included the questioning of two female employees in the trading room, failed to corroborate Snowdon's allegations. (Id. ¶ 112-114).
Snowdon refused to attend the August 6, 2002 scheduled meeting because Polce would be present. (Id. ¶ 108). It is unclear at what point Snowdon conveyed this to American Express.
According to Snowdon, however, each employee under Polce had reason to lie to Williams. Generally, Snowdon testified, everyone was afraid of retaliation by Polce. (Snowdon Dep. at 130) ("That's how [Polce] manages the [trading] room. If you ever cross him once, you're dead."). Another reason that employees were unwilling to complain about Polce's behavior was because there were no jobs to be had in the trading market at the time as a consequence of the events of September 11, 2001. (Id.). Elba Cash, an employee under Polce's supervision, claims Snowdon, was six months away from retirement and had said to Snowdon many times that she was not going to "rock the boat." (Snowdon Dep. at 129). Snowdon testified that Danielle Sasson, also an employee under Polce, told her that "the key to dealing with [Polce] is never argue with him, do whatever he says and he'll leave you alone." (Id. at 291). Snowdon claims that Sasson further stated that men were not treated like women in the trading room because Polce is "fearful that one will hit him, but women he loves to bully." (Id. at 291, 356). Sasson, Snowdon alleges, stated that it was her policy not to "fight back" against Polce, and suggested Snowdon do likewise. (Id. at 291). Therefore, Snowdon testified, Sasson was "under [Polce's] thumb." (Id. at 341). Additionally, Snowdon explains Polce's treatment of her as resulting partially from her accomplishments while at American Express: "I gave him a contact management system, I created a report for the Fortune 500, and I had gotten most of the appointments [Polce] had wanted, there was no reason to keep me around any longer." (Id. at 262).
Snowdon was discharged on August 8, 2002, for poor performance, misuse of her corporate card, and suspected tampering with the confidential database. (Id. ¶ 115-16).
American Express maintains a stated and written policy prohibiting discrimination of harassment in the workplace based on race, color, religion, national origin, disability, age, sex, marital status or sexual orientation, as well as other protected categories under federal, state, and local laws. (Id. ¶ 117). This policy is called the Individual Treatment Policy, and is published and made available to all employees on American Express' website. The Individual Treatment Policy is also regularly reinforced through hard copy distributions. (Id.). American Express states that it maintains a "zero tolerance" policy for retaliation against employees who come forward with complaints of discrimination or workplace harassment. (Id. ¶ 118). This policy is also contained in the Individual Treatment Policy. (Id.). American Express' policy against workplace discrimination and harassment also appears in the American Express Company Code of Conduct. (Id. ¶ 119). The Code of Conduct encourages employees to come forward and to alert the Bank to any incidents of discrimination and harassment. (Id.).
III. DISCUSSION
A. Summary Judgment Standard
According to Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted).
The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Of particular significance to the matter at hand, the Second Circuit has held:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). "[T]he burden of the nonmovant to respond arises only if the motion is properly `supported' — and therefore summary judgment only `appropriate' when the moving party has met its burden of production under Fed.R.Civ.P. 56(c) `to show a genuine issue concerning any material fact.'" Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001) (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
"If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original). However, where the nonmoving party does not respond to a summary judgment motion, the district court is not excused from its obligation to examine the moving party's submission to determine if it has met its burden. Amaker, 274 F.3d at 681. If the movant does not meet its burden of production, then "summary judgment must be denied even if no opposing evidentiary matter is presented." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241 (2d Cir. 2004) (quoting Amaker, 274 F.3d at 681 (quoting Fed.R.Civ.P. 56 advisory committee notes to the 1963 amendments); citing Gianullo v. City of N.Y., 322 F.3d 139, 141 n. 5 (2d Cir. 2003) (emphasis in original)).
Defendants' facts will be accepted as true here because the motion is unopposed. Local Rule 56.1(c); Universal TV Distribution Holdings LLC v. Walton, 2004 WL 2848528, *2 (S.D.N.Y. 2004). Nevertheless, all ambiguities must be resolved and all reasonable factual inferences must be drawn in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
B. Applicable Standard
Courts analyze discrimination claims brought under Title VII under the familiar burden-shifting framework first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See e.g., Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376 (2d Cir. 2001). Under the analysis set forth in McDonnell Douglas, the plaintiff "has the initial burden of `proving by the preponderance of the evidence a prima facie case of discrimination.'" Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). This burden is met by using a "mixed-motives" analysis, or by proving "pretext," the theory forwarded by the court in McDonnell Douglas.
Plaintiff's claims brought under the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Human Rights Law, New York City Admin. Code, Title 8, are analyzed under the same burden-shifting scheme as plaintiff's Title VII claims. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992).
Under the McDonnell Douglas formulation, a plaintiff first establishes a prima facie case of discrimination based on sex by showing (1) she is a member of a protected class (2) who performed her job satisfactorily (3) who was discharged (4) under circumstances giving rise to an inference of discrimination (or retaliation). Stratton v. Department for the Aging for City of New York, 132 F.3d 869, 878-79 (2d Cir. 1997) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)).
If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision. Stratton, 132 F.3d at 879. If defendant surmounts this obstacle, the presumption of discrimination is rebutted and it "simply drops out of the picture." Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2105-06 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2748-50 (1993)). Plaintiff must then show, by a preponderance of the evidence, that the employer's given reason for the decision is "in reality a pretext for unlawful discrimination, i.e., that it is a `mask for unlawful discrimination.'" Stratton, 132 F.3d at 879.
A finding of pretext does not necessarily compel the conclusion of discrimination. The ultimate issue is whether the plaintiff has proven that the adverse employment action was motivated at least in part by discrimination. Stratton, 132 F.3d at 879.
The elements delineated above are not a "rigid, unyielding standard," Sanders v. City of New York, 200 F.Supp.2d 404, 406 (S.D.N.Y. 2002), as actions under Title VII may differ in several respects. Id. However, McDonnell sets forth the "baseline formulation which has become the starting point for actions pursuant to Title VII." Id.
C. Hostile Work Environment
A "`workplace permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment" constitutes a hostile work environment. Olle v. Columbia Univ., 332 F.Supp.2d 599, 611 (2d Cir. 2004) (internal quotation marks and citations omitted). To demonstrate a hostile work environment, a plaintiff must show "that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Id. It is clear that isolated remarks, unless extremely serious, and incidents that are relatively minor will not suffice to sustain a hostile environment claim. Id. "`The incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" Olle, 332 F.Supp.2d at 611 (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Further, the work environment will not be considered hostile if a reasonable person would not agree that it is.Olle, 332 F.Supp.2d at 611 (quoting Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)). Factors guiding the determination of whether a reasonable person would find a work environment hostile are: frequency of the discriminatory conduct; severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance. Clark County School Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 1509-10 (2001) (citations omitted).
The conduct Snowdon complains of is not sufficient to form a claim of hostile environment sexual harassment. Snowdon alleges the following incidents: being knocked on the shoulder and subsequently berated for disobeying a directive; Polce repeatedly pushing Snowdon's chair; being told to answer Polce's telephone and retrieve his faxes and prints when he was not present; being admonished for being late for work one day, and having a report thrown on her desk; Polce shouting at Snowdon on one occasion to assist a co-worker, and when Snowdon responded that she was busy, Polce slammed his keyboard and glared at her; being yelled at for not answering Polce's telephone, then yelled at again for complying because he had originally meant for her to only answer particular calls; Polce's socialization with male employees, excluding Snowdon from lunch and golf outings; being subjected to inappropriate commentary on the "asses" and "tits" of female colleagues in another office.
Being admonished for being late, being yelled at or glared at for noncompliance, and being excluded from social outings do not rise to the requisite level of hostility. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("[The] standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code.'" (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998))). "Properly applied, they will filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'" Id. (quoting Oncale, 523 U.S. at 81; B. Lindemann D. Kadue, Sexual Harassment in Employment Law 175 (1992)). The only incident that occurred more than once was Polce's hitting of Snowdon's chair. Although this conduct was continuous, the court is reluctant to deem it pervasive considering that the conduct only occurred over the span of one and a half weeks.
The court does not believe that the remaining episodes rise to the level of hostility that is contemplated in the relevant case law. The court is mindful that a single act can meet the threshold if it can and does transform plaintiff's workplace.Jackson v. Citiwide Corporate Transp., Inc., 2004 U.S. Dist. LEXIS 2279, 8-9 (S.D.N.Y. 2004). Yet, the single act must be extraordinarily severe. Id. Although being knocked on the shoulder on one occasion, repeatedly having one's chair pushed, and being subjected for one day to inappropriate commentary on the "asses" and "tits" of female colleagues in another office, taken together, come closer to the mark, the conduct found by other courts to be sufficiently hostile is more severe. For example, in Holtz v. Rockefeller Co., 258 F.3d 62, 70 (2d Cir. 2001) the court found a hostile work environment to exist where a supervisor "touched plaintiff in an unwelcome manner on a `daily basis,' made `obscene leers at her,' `tried to peer down her blouse and up her skirt,' and made `approximately ten or twenty' remarks about her sex life." Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58-59 (2d Cir. 2004) (quoting Holtz, 258 F.3d at 70, 75-76). In Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998) the court held that a hostile environment did not exist where plaintiff's supervisor made an appreciative comment about plaintiff's buttocks and deliberately touched plaintiff's breasts with papers he was holding. Mormol, 364 F.3d at 58-59 (citing Quinn, 159 F.3d at 768). In Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001), the court held that "where plaintiff proffered evidence that, over the course of two and one-half years, she was subjected to `offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm,'" a hostile environment existed. 364 F.3d at 58-59 (quotingRaniola, 243 F.3d at 621). The only conduct which occurred with frequency was the pushing of Snowdon's chair. Of the remaining instances, Snowdon claims to have been humiliated only by one event in which she was knocked on the shoulder and taken out of the room for not following a directive. Snowdon does not claim that Polce's conduct was physically threatening, nor that it unreasonably interfered with her ability to do her job. See Mormol, 364 F.3d at 59.
Even if any of the actions alleged could be deemed sufficiently hostile, plaintiff has not shown that they constitute "discrimination . . . because of . . . sex." Oncale, 523 U.S. at 80-81. The only gender-based conduct alleged by plaintiff concerns Polce's inappropriate comments about the anatomy of female colleagues. This conduct, while certainly offensive, does not rise to the requisite level of hostility because it was an isolated incident, and because plaintiff does not suggest that it interfered with her work. See Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004). Regarding the other incidents, Snowdon draws a connection to gender by arguing that she alone was singled out among her coworkers by Polce. Plaintiff alleges she was the only employee in the trading room to have been subjected to mistreatment. In particular, no other employees, including the other female employees in the Trading Room, were required to answer Polce's telephone or retrieve his faxes. However, this argument fails because Snowdon was singled out among male and female co-workers. Further, the fact that no other female employees in the trading room were similarly treated militates against finding of discrimination based on sex. Snowdon alleges nothing more aside from this singling out that would indicate a connection between the alleged mistreatment and her gender.
Because plaintiff has failed to make a prima facie case of discrimination based on hostile work environment, summary judgment on this issue is GRANTED.
D. Discrimination in the Terms and Conditions of Employment
Plaintiff does not expressly make out a claim for "terms and conditions" discrimination, however, American Express focuses an argument for summary judgment on such a claim. Here, to establish a prima facie case of discrimination, Snowdon must demonstrate that "(1) she is a member of a protected class, (2) she satisfactorily performed the duties of her position, (3) she was subject to an adverse employment action, and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination." Sanders v. City of New York, 200 F.Supp. 2d 404, 406-07 (S.D.N.Y. 2002). American Express contends that plaintiff fails to establish the third element because she has not suffered a "materially adverse change" in the terms and conditions of her employment. A materially adverse change is signaled by "`an attendant negative result, a deprivation of a position or an opportunity.'" Henriquez v. Times Herald Record, 1997 U.S. Dist. LEXIS 18760, at *15 (S.D.N.Y. Nov. 24, 1997) (quoting Davis v. City Univ. of New York, 1996 U.S. Dist. LEXIS 6345, 1996 WL 243256, at *7 (S.D.N.Y. May 9, 1996). The employer action must "rise above mere inconvenience to a dissatisfied employee." Sanders v. City of New York, 200 F.Supp. 2d 404, 407 (S.D.N.Y. 2002). The change contemplated is "one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Davis, 1996 U.S. Dist. LEXIS at *21-24 (citation omitted). Frequently cited as examples of a materially adverse change are "`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.'" Monica, 1995 LEXIS at *11-12 (quotingCrady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132 (7th Cir. 1993)); Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000);Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)). Because plaintiff was terminated on August 8, 2002, she suffered an adverse change. However, as set forth above, plaintiff has not shown that the adverse action was executed under circumstances giving rise to an inference of discrimination. Therefore, defendant's motion for summary judgment with respect to this issue is GRANTED.
E. Discriminatory Discharge
A plaintiff establishes a prima facie case of discriminatory discharge under Title VII by proving (1) that she belongs to a protected class, (2) that she was competent to perform the job or performing her duties satisfactorily, (3) that she was discharged, and (4) that her discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. Olle v. Columbia Univ., 332 F.Supp.2d 599, 615 (2d Cir. 2004) (citing Mario v. P C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997)). Defendant argues that plaintiff cannot prove her employment was terminated "because of' her gender. 42 U.S.C. § 2000e-2(a)(1). Liability depends on whether gender "actually motivated the employer's decision."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 123 L.Ed. 2d 338, 113 S. Ct. 1701 (1993)). "That is, the plaintiff's [protected trait] must have `actually played a role in [the employer's decision making] process and had a determinative influence on the outcome.'" Id.
Given the evidence presented in this case, a reasonable juror could not find that plaintiff was discharged under circumstances giving rise to an inference of discrimination. Snowdon alleges she was the only employee under Polce to have been subjected to the described treatment, and that no other employee was required to retrieve Polce's faxes and prints, or to answer his telephone. (Def.'s 56.1 Stmt. ¶ 153; Park Aff., Ex. K of Def.'s 56.1 Stmt. at § 5). However, there are no facts from which to infer a causal connection between plaintiff's gender and her termination. See Henriquez, 1997 U.S. Dist. LEXIS at *14-19 (stating on racial discrimination claim, "[m]oreover, even if plaintiff were the only employee given additional work as a result of the reorganization, [plaintiff] still points to no evidence whatsoever suggesting that [plaintiff's employer] gave her the additional work on the basis of her [protected trait]" Id.).
Therefore, summary judgment is warranted on the issue of discriminatory discharge, and defendant's motion is accordingly GRANTED.
F. Retaliation
An employee makes out a prima facie case of retaliation by showing "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (internal quotations and citations omitted).
American Express argues that plaintiff did not engage in protected activity and the decision to terminate her was made before plaintiff raised a complaint of sexual harassment or discrimination. In the alternative, American Express argues plaintiff cannot prove that the stated reasons for her discharge are pretextual.
The term "protected activity" refers to action taken to protest or oppose statutorily prohibited discrimination. Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). Although a plaintiff need not file a formal complaint to constitute protected activity under Title VII, James v. Newsweek, Inc., 2000 U.S. App. LEXIS 8805, at *3 (2d Cir. May 2, 2000), the allegations contained in the initial complaint Snowdon sent to defendant's CEO do not support the inference that the complaint had alleged discrimination. By the time Snowdon had annexed additional complaints referencing discrimination and sexual harassment, on August 6, 2002, American Express had already decided, and taken action towards, Snowdon's termination.
Polce and Ashe had decided to terminate Snowdon no later than July 24, 2002. (Def.'s 56.1 Stmt. ¶ 100).
Therefore, plaintiff cannot establish the first element of her prima facie case of retaliation, and defendant is entitled to summary judgment on this claim.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED. The clerk is directed to enter judgment for the defendant and remove this case from the active docket.
SO ORDERED.