Opinion
98 Civ. 3641 (MBM)
October 14, 2003
LINDA BARRIERA, Woodside, NY, for Plaintiff
PETER A. WALKER, LORI M. MEYERS, Seyfarth Shaw, New York, NY, for Defendant
OPINION AND ORDER
Plaintiff Linda Barriera sues Deutsche Bank AG, as successor in interest to Bankers Trust Corporation, alleging race discrimination, gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. (2000) ("Title VII"); 42 U.S.C. § 1981 (" § 1981"); the New York Civil Rights Law ("NYCRL"); the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. ("NYCHRL"). Plaintiff also asserts New York common law claims of intentional infliction of emotional distress (IIED) and breach of contract. Defendant moves for summary judgment on all claims pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the motion is granted as to all Title VII claims, all § 1981 claims, and the NYSHRL and NYCHRL race discrimination and retaliation claims. Because I decline to exercise supplemental jurisdiction over plaintiff's remaining state-law claims, those claims are dismissed for lack of jurisdiction.
I.
The following relevant facts are either undisputed or presented in the light most favorable to plaintiff.
In June 1996, Linda Barriera was hired as an administrative assistant by Bankers Trust, a New York corporation. (Second Amended Complaint ("Compl.") ¶ 7) Barriera, a black female, worked in the Corporate Analysis and Development Department under the supervision of Jack Murrin and Robert Shepler, two white males. (Rule 56.1 Statement of Material Facts ("Rule 56.1 Stmt.") ¶¶ 6-7)
Initially, Barriera's hours of employment were 8:00 a.m. to 6:00 p.m., with an hour for lunch. (Id. ¶ 9) In late 1996 or early 1997, Murrin changed Barriera's official starting time from 8:00 a.m. to 8:30 a.m. because Barriera was sometimes late. (Id. H 10-11)
During her tenure at Bankers Trust, Barriera received two formal evaluations from Murrin. (Barriera 2/8/00 Dep., Walker Aff. Ex. C ("Barriera Dep."), at 117). In her first evaluation, Barriera was given positive feedback, and she was criticized only for her tendency to be "chatty". (Id. at 114-17; Barriera Affidavit in Opposition to Summary Judgment ("Aff. in Opp.") ¶¶ 4-9) In the second evaluation, Murrin reminded Barriera that she needed to arrive at work on time. (Barriera Dep. at 118)
On May 7, 1997, Murrin sent Barriera an e-mail in which he stated that she been late to work twice that week and reminded her that her hours had been changed because of her "chronic lateness." (Walker Aff. Ex. E; Rule 56.1 Stmt. ¶ 20) The e-mail also asked Barriera how many times she had been late that year. (Walker Aff. Ex. E; Rule 56.1 Stmt. ¶ 20) Within an hour, Barriera sent a reply e-mail in which she apologized for being late and explained that she had been delayed because of transit problems. (Walker Aff. Ex. F; Rule 56.1 Stmt. ¶ 21) In response, Murrin sent Barriera a second email that morning, asking her again how many times she had been late and reminding her that she needed to be ready to work by 8:30 a.m. (Walker Aff. Ex. G; Rule 56.1 Stmt. ¶ 22)
Throughout 1997, Barriera recorded her late arrivals in her desk calendar at work. (Rule 56.1 Stmt. ¶¶ 24, 26) Between January 7 and October 23, Barriera arrived at work after 8:40 a.m. on 13 occasions, often because of transportation or family problems. (Id. ¶ 28-29) She received advance permission from Murrin for three of these late arrivals. (Id.; Barriera Dep. at 148, 153, 158, 164) Barriera also arrived between 8:33 a.m. and 8:35 a.m. eight times during the same period, but personnel in Human Resources told her that these arrivals were not considered late. (Rule 56.1 Stmt. ¶ 31; Barriera Dep. at 156-57, 197) Barriera did not go to work at all on October 27, but she gave Murrin advance notice that she needed to take half a vacation day, and she also called him that afternoon when her errand took longer than she had anticipated. (Barriera Rebuttal to Final Warning, Walker Aff. Ex. A ("Rebuttal to Final Warning"); Barriera Dep. at 167-172)
On November 3, 1997, Murrin and Shepler called Barriera into Murrin's office, told her that she was on Final Warning, and showed her a form that explained the Final Warning. (Barriera Dep. at 173-75) The form identified three problems in Barriera's job performance: (1) leaving the job or work location for extended periods without permission; (2) taking extended meal periods; and (3) late arrivals in excess of 12 per year, the "dischargeable number". (Walker Aff. Ex. K ("Final Warning Form"); Rule 56.1 Stmt. ¶ 62) The Final Warning placed Barriera on probation for three months, during which time she would be ineligible for promotion, transfer, salary increases, or tuition reimbursement. (Compl. ¶ 10; Final Warning Form) Murrin informed Barriera that she would be fired if she made one more mistake or had one more late arrival, extended meal period, or absence from the workplace without permission. (Barriera Dep. at 175; Final Warning Form) Murrin also told Barriera that he would make sure that she did not receive "one penny" if she were fired for failing to live up to the requirements of the Final Warning. (Barriera Dep. at 175) Before leaving the meeting, Barriera told Murrin that she was being treated unfairly. (Id. at 175-76; Rule 56.1 Stmt. ¶ 38)
On or after November 5, Barriera submitted a written rebuttal to the Final Warning. (Compl. ¶ 13; Rebuttal to Final Warning) In her rebuttal, Barriera stated that Shepler called her into his office on November 5 and verbally abused her. (Rebuttal to Final Warning) Specifically, Barriera said Shepler told her she would be fired if she had one more lateness, or unexcused absence, and if that occurred, he and Murrin would ensure that she "wouldn't get one cent." (Id.) After the incident, Barriera called Human Resources and informed Paula Dean that she wanted to file a complaint against Shepler for verbal assault. (Id.)
In the Second Amended Complaint, Barriera states that she submitted her rebuttal "[o]n or about November 4, 1997." (Compl ¶ 13) Because the rebuttal describes events that occurred on November 5, it must have been written on or after November 5.
On November 5, Barriera met with Gene Favours, an African-American woman who worked in human resources for Bankers Trust. (Barriera Dep. at 188-90) Barriera told Favours that Murrin had excused many of her late arrivals when they occurred. (Id. at 191-92) Barriera also met several times with Dean, who is white. (Id. at 199-200) During one of these meetings, Dean and her colleague Evana Nardi told Barriera that the Bankers Trust job was not right for her because it was not a healthy situation for her. (Id. at 203-04; Rule 56.1 Stmt. ¶ 47) Barriera asked for revocation of the Final Warning or a transfer to another department, but Dean informed her that transfer was not permitted under the conditions of the Final Warning. (Barriera Dep. at 207) At one point, Dean told Barriera that she should speak to Jack Murrin instead of Dean because Barriera did not "belong" to Dean; Barriera believed this comment to be racially discriminatory. (Id. at 207-08, 211-12)
Barriera told Dean that it would be impossible for her to comply with the requirements of the Final Warning. (Walker Aff. Ex. I ("Dean Dep."), at 80-81; Rule 56.1 Stmt. ¶ 53) Dean informed Barriera that she would be terminated if she could not comply and then gave Barriera a separation agreement containing a release. (Rule 56.1 Stmt. ¶ 52; Compl. ¶ 15) At some point between November 5 and November 20, Barriera stopped going to work at Bankers Trust. (Dean Dep. at 152; Rule 56.1 Stmt. ¶ 55) On November 20, 1997, Barriera met with Dean and other Bankers Trust personnel and informed them that she was not accepting the severance package offered to her. (Compl. ¶ 16) Barriera was told that she had resigned; Barriera insisted that she had not resigned and said that she would go to work the following day, even though the Bankers Trust representatives told her not to come in. (Id.; Barriera Dep. at 217) Barriera reported to work at Bankers Trust at 8:00 a.m. on November 21, at which time four Bankers Trust security guards accosted her and confiscated her badge. (Compl. ¶ 17; Rule 56.1 Stmt. ¶ 55; BT Security Incident Report, Walker Aff. Ex. L)
On November 21, 1997, Barriera filed an Equal Employment Opportunity Commission ("EEOC") claim in which she alleged that she had been subjected to harassment and race discrimination at Bankers Trust. (Rule 56.1 Stmt. ¶¶ 68-69; EEOC Charge of Discrimination, Walker Aff. Ex. A ("EEOC Charge")) Barriera also filed for unemployment benefits; Bankers Trust opposed this benefits claim and informed the EEOC and the appropriate unemployment insurance authority that Barriera had resigned. (Barriera Dep. at 215-16; Decl. in Supp. of Req. to Proceed in Forma Pauperis, Walker Aff. Ex. A ("Pro Se Decl.")) Barriera eventually did receive unemployment benefits after the unemployment office ruled in her favor. (Pro Se Decl.) Barriera's EEOC charge was dismissed on December 30, 1997, for failure to state a claim, and Barriera received a right-to-sue letter. (Rule 56.1 Stmt. ¶ 70) Barriera then filed an initial complaint with this court on March 26, 1998. She amended the complaint twice and filed her current Second Amended Complaint on December 6, 2000. Barriera was represented by counsel in connection with the filing of her Second Amended Complaint, but she is now acting pro se.
In her Second Amended Complaint, Barriera alleges the following causes of action: (1) race and gender discrimination in violation of Title VII, § 1981, NYCRL, NYSHRL, and NYCHRL; (2) retaliation in violation of Title VII, § 1981, NYCRL, NYSHRL, and NYCHRL; (3) intentional infliction of emotional distress in violation of New York common law; and (4) breach of contract in violation of New York common law. On July 11, 2002, Deutsche Bank, as successor in interest to Bankers Trust, filed this motion for summary judgment, including notice pursuant to Local Civil Rule 56.2 informing Barriera of her obligations in opposing a motion for summary judgment. On August 26, 2002, Barriera submitted her Affidavit in Opposition to Summary Judgment, challenging the defendant's description of the evaluations she had received from Bankers Trust but raising no other issues of material fact.
In its Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment, defendant argues that it is entitled to summary judgment because Barriera failed to submit a counterstatement of contested facts in response to defendant's Rule 56.1 Statement of Facts. However, Barriera, acting pro se, did respond to defendant's Rule 56.1 Statement by submitting an Affidavit in Opposition to Summary Judgment, in which she attempted to raise a few factual issues. Accordingly, I have resolved all factual disputes in favor of Barriera in determining whether the defendant is entitled to judgment as a matter of law.
II.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law if the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In considering a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Byrnie v. Town of Cromwell. Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001).In a discrimination case, the entire record must be examined to determine whether the plaintiff can satisfy her ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her. Lizardo v. Penny's. Inc., 270 F.3d 94, 101 (2d Cir. 2001). The court should be particularly stringent in applying the summary judgment standard when the non-moving party is proceeding pro se and alleges civil rights violations. See Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (Rule 12(c) motion); Sank v. City Univ. of New York, 219 F. Supp.2d 497, 500 (S.D.N.Y. 2002) (summary judgment motion). However, an employee's "[p]urely conclusory allegations of discrimination, absent any concrete particulars," are insufficient to defeat a summary judgment motion.Cameron v. Cmty. Aid for Retarded Children. Inc., 335 F.3d 60, 63 (2d Cir. 2003) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
III.
Barriera first alleges that she suffered race discrimination, gender discrimination, and retaliation in violation of Title VII. As a precondition to filing a Title VII claim in federal court, a plaintiff must first exhaust available administrative remedies and file a timely complaint with the EEOC.Deravin, 335 F.3d at 200. Claims that were not asserted before the EEOC may be pursued in federal court, but only if they are "reasonably related" to the claims that were filed with the agency.Id.
Here, Barriera marked "race" as the cause of discrimination in her EEOC charge, leaving the "retaliation" and "gender" boxes unmarked. (EEOC Charge) She also provided the following description of her charge:
I was hired as an Administrative Assistant on June 29, 1996. During my employment, I was subjected to harassment and subsequently discharged on November 21, 1997.
I believe that I was discriminated against because of my Race (Black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
(Id.) Barriera's EEOC charge contained no other allegations of discrimination.
In defendant's submission of exhibits for summary judgment, Barriera's EEOC charge was followed by an unidentified four-page handwritten document on New York State Department of Labor Summary of Interview Forms. (See Walker Aff. Ex. A) In this document, which is partly illegible, Barriera provides a first person account of the events of November 1997; the legible portions contain no allegations of discrimination or retaliation. The EEOC's file for this case was lost in the September 11, 2001, terrorist attacks, but a cursory examination reveals that the handwritten document was not part of Barriera's EEOC charge. First, this account was written on New York State Department of Labor forms and not EEOC forms. Second, the handwritten document was dated December 1, 1997, but Barriera's EEOC charge was signed and notarized on November 21, 1997. Accordingly, in determining which claims Barriera has exhausted with the EEOC, I will examine only Barriera's one-page typewritten and notarized EEOC charge.
Barriera's EEOC charge plainly satisfies the exhaustion requirement for her race discrimination claim, but it does not allude to gender discrimination or retaliation. Accordingly, Barriera may raise these claims in federal court only if they are "reasonably related" to her EEOC charge. The Second Circuit has recognized three types of unasserted claims that are "reasonably related" to an EEOC charge: (1) claims that fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; (2) claims that allege retaliation against an employee for filing an EEOC charge; and (3) claims that allege further incidents of discrimination carried out in the precise manner alleged in the EEOC charge. Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) In determining whether claims are reasonably related, the court must examine the factual allegations of discriminatory conduct that are contained in the EEOC charge.Deravin, 335 F.3d at 201.
As defendant argues in its summary judgment motion, Barriera's claim of gender discrimination is not reasonably related to her EEOC charge of race discrimination because the scope of an investigation into alleged race discrimination cannot be expected to evolve into an investigation of gender discrimination. See Clements v. St. Vincent's Hosp. and Med. Ctr. of New York, 919 F. Supp. 161, 163 (S.D.N.Y. 1996) (finding that a sex-based claim is not "reasonably related" to a blanket EEOC claim for race discrimination that lacks any factual specificity); Coleman v. Board of Educ., City of New York, No. 96 Civ. 4293 (GBD), 2002 WL 63555, at *3 (S.D.N.Y. Jan. 16, 2002), aff'd, 45 Fed. Appx. 79 (2d Cir. 2002) ("[A] claim of gender discrimination is not reasonably related to a claim of national origin, race, or color discrimination."). Accordingly, Barriera's gender discrimination claim under Title VII is dismissed for failure to exhaust administrative remedies.
Defendant argues also that it is entitled to summary judgment on Barriera's Title VII retaliation claim because Barriera did not refer to retaliation in her EEOC charge. However, the Second Circuit has broadly construed the "reasonably related" rule to allow judicial redress for most retaliatory acts arising subsequent to an EEOC filing. Malarkey v. Texaco, Inc., 983 F-.2d 1204, 1209 (2d Cir. 1993). In this case, Barriera appears to argue that Bankers Trust retaliated against her for filing discrimination complaints with Dean and with the EEOC. I find that these claims of alleged retaliation are reasonably related to Barriera's original EEOC charge of race discrimination and thus should not be dismissed for failure to exhaust administrative remedies.
IV.
To the extent relevant here, the law applicable to Barriera's Title VII, NYSHRL, and NYCHRL race discrimination claims is the same.See, e.g., Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). Accordingly, in the analysis that follows, I apply Title VII jurisprudence to Barriera's claims of race discrimination under these laws.
Defendant argues that Barriera's NYCHRL claims must be dismissed for failure to "serve a copy of the complaint upon the city commission on human rights and corporation counsel." N.Y.C. Admin. Code § 8-502(c) I reject this argument because filing a complaint with these agencies is not a prerequisite to bringing suit under NYCHRL. See Puffy v. Drake Beam Morin, No. 96 Civ. 5606 (MBM), 1998 WL 252063, at *11 n. 8 (S.D.N.Y. May 19, 1998).
Barriera argues that Bankers Trust racially discriminated against her by applying its policies unfairly, subjecting her to harassment, and discharging her from her position. To prevail on her claims of race discrimination, Barriera "has the burden at the outset to prove by a preponderance of the evidence a prima facie case of discrimination."Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (internal quotation marks omitted). To establish her prima facie case, Barriera must show that (1) she was a member of a protected group; (2) she was qualified for her position at Bankers Trust; (3) she was subject to adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.Id.
The initial burden of establishing a prima facie case of employment discrimination is minimal, but not all plaintiffs meet even this low threshold. See id. In this case, Barriera's allegations satisfy the first three requirements of a prima facie case. First, she is a member of a protected group because she is black. Second, she was qualified for her position because she received good performance evaluations from Murrin. Third, she was subject to adverse employment action when she was placed on Final Warning and later discharged. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (explaining that a plaintiff sustains an adverse employment action if she endures a "materially adverse change" to the terms and conditions of her employment, such as termination of employment or a material loss of benefits).
Defendant argues that Barriera was not qualified for her job because she repeatedly arrived late to work. In support of this argument, defendant cites numerous district court cases which found that chronically late employees were not qualified for their position.See, e.g., Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 246 (S.D.N.Y. 2001). However, because Barriera has argued that most of her late arrivals were excused by Bankers Trust, I assume arguendo that Barriera was qualified for her position.
Even though she has established the first three requirements of a prima facie case, Barriera's race discrimination claims fail because she does not present any evidence that the Final Warning and discharge occurred under circumstances giving rise to an inference of race discrimination. Barriera specifically admits that she cannot identify a single white employee whose tardiness problems were treated more favorably than her own. (Barriera Dep. at 189-90) Barriera also does not allege that anyone at Bankers Trust ever made any statements about her race or race in general, aside from Dean's innocuous remark that Barriera did not "belong to her." Indeed, Barriera identifies Bankers Trust's failure to follow its own policies and procedures as her only basis for believing that she was the victim of race discrimination. (Id. at 213-14)
Although Barriera has complained that Shepler verbally abused her on November 5, she has not claimed that the alleged harassment involved any statements about race.
The following exchange occurred at Barriera's deposition:
Q. Do you believe that Paula Dean discriminated against you on the basis of race in any way?
A. I believe that I was discriminated. According to Bankers Trust's policies and procedures, they were not followed. I was given a verbal warning and the information that's contained in this warning is not true, not all the truth. So therefore, yes, I would say I was discriminated. They did not follow their policy.
Q. And your sole basis for believing that you were discriminated against on the basis of your race was that they didn't follow their policy?
A. According to their procedures that I have read that everyone is treated fairly, equally, yes I do.
Q. Is there anything else other than your view that they didn't follow their policy that supports your belief that you were discriminated against on the basis of race?
A. Other than the policies and procedures, no.
(Barriera Dep. at 213-14)
Even if, as plaintiff alleges, Bankers Trust was unreasonably strict about enforcing its punctuality policy with Barriera, unequal enforcement of this policy cannot give rise to an inference of race discrimination absent some evidence that Barriera was targeted because of her race. Barriera supports her allegations of a discriminatory motive only with conclusory statements about being a victim of race discrimination. Such conclusory allegations, without more, do not give rise to an inference of discriminatory motive in this case. Cf. Hawana v. City of New York, 230 F. Supp.2d 518, 528 (S.D.N.Y. 2002) ("The plaintiff's evidence is based on his conclusory assumptions that four separate supervisors took actions against him based on discriminatory motives. But the plaintiff's personal conclusory assumptions are insufficient to support such an inference.").
Because Barriera does not present evidence of any circumstances giving rise to an inference of race discrimination, she fails to establish the prima facie case required under Title VII. Accordingly, defendant's summary judgment motion is granted on Barriera's race discrimination claims in violation of Title VII, NYSHRL, and NYCHRL.
V.
Barriera argues also that she was subject to race and gender discrimination in violation of § 1981. Section 1981 prohibits race discrimination in making and enforcing contracts, a prohibition which extends to the discriminatory termination of an at-will employee.See Lauture v. Int'l Bus. Machs. Corp., 216 F.3d 258, 260-61 (2d Cir. 2000). However, that statute does not prohibit gender discrimination, which means that defendant's summary judgment motion must be granted for Barriera's § 1981 gender discrimination claim.See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998).
To establish a § 1981 claim, Barriera must show that: (1) she is a member of a racial minority; (2) Bankers Trust intended to discriminate against her on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in § 1981.Lauture, 216 F.3d at 261. As discussed in Part IV, supra, Barriera fails to allege any facts that indicate Bankers Trust intended to discriminate against her on the basis of race. Because Barriera's conclusory allegations of discriminatory treatment cannot support a finding that Bankers Trust intentionally discriminated against her based on her race, defendant's summary judgment motion is also granted as to Barriera's § 1981 race discrimination claim.
VI.
As the relevant law is the same for Barriera's Title VII, NYSHRL, NYCHRL, and § 1981 retaliation claims, I apply Title VII jurisprudence to all of these claims. See McMenemy v. City of Rochester, 241 F.3d 279, 283 n.l (2d Cir. 2001) (Title VII and NYSHRL claims); Dooner v. Keefe, Bruyette, and Woods, Inc., 157 F. Supp.2d 265, 283-84 (S.D.N.Y. 2001) (NYSHRL and NYCHRL claims);Lizardo, 270 F.3d at 105 (§ 1981 claim).
To sustain a claim for retaliation, Barriera must first present sufficient evidence to make out a prima facie case that (1) she engaged in protected activity; (2) Bankers Trust was aware of this activity; (3) Bankers Trust took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action.Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). If she presents a prima facie case, then the defendant has the burden of presenting evidence of a legitimate, non-retaliatory reason for the challenged employment decision. Id. Barriera must then point to evidence that would be sufficient to permit a rational factfinder to conclude that the defendant's explanation is merely a pretext for impermissible retaliation. Id.
Barriera appears to allege that Bankers Trust retaliated against her because she complained about race discrimination to Bankers Trust and the EEOC after she was fired. These claims cannot defeat summary judgment because Barriera fails to show adverse employment action, which is required to make out a prima facie case of retaliation.
A plaintiff suffers an adverse employment action if she suffers a materially adverse change in the terms or conditions of her employment.Galabya, 202 F.3d at 640. If a plaintiff has been fired, she may still be subjected to adverse employment actions by her former employer after her employment ends. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). However, not every unwelcome act creates a cause of action for retaliation. See id. To qualify as adverse, an employer's actions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities."Terry, 336 F.3d at 138 (quoting Galabya, 202 F.3d at 640). Because there are no bright-line rules, courts must examine each case to determine whether the challenged employment action reaches the level of "adverse." Wanamaker, 108 F.3d at 466.
In her deposition, Barriera claimed that Bankers Trust retaliated against her by (1) opposing her unemployment benefits claim, (2) failing to give her severance pay, and (3) informing the EEOC that she had resigned. (Barriera Dep. at 215-16) None of these three actions rises to the level of an adverse employment action.
Barriera's deposition testimony about Bankers Trust's retaliatory actions is vague but nonetheless provides more detail about her retaliation claims than any other part of the record:
Q. In what way do you contend that you were retaliated against by Bankers Trust?
A. Bankers Trust tried to make it so that I couldn't get unemployment. She had said that I had resigned and when I met with them, met with Paula Dean, she said that — she was the one that told me that I would be able to get unemployment and that it wouldn't be a problem.
Q. So you claim that Bankers Trust retaliated against you because they opposed your unemployment?
A. That and also I had gotten only one check from Bankers Trust and that check I had earned. I never got any of, I guess, what they would have been paying me.
Q. I'm not sure I understand what they would have been paying you. What does that mean?
A. My opinion, they definitely retaliated against me.
Q. In what way? I understand by opposing your unemployment. In what other ways do you contend?
A. Also by saying that I was no longer an employee. I was no longer an employee of the bank; that I had resigned.
Q. By saying that to whom?
A. By saying that to the unemployment and also to the — I believe to the EEOC. I didn't resign.
(Barriera Dep. at. 215-16)
Bankers Trust did not subject Barriera to an adverse employment action when it opposed her unemployment benefits claim by informing the appropriate authority that Barriera had resigned. As Barriera's former employer, Bankers Trust was entitled to oppose her unemployment claim.See Whalley v. Reliance Group Holdings, Inc., No. 97 Civ. 4018 (VM), 2001 WL 55726, at *12 (S.D.N.Y. Jan. 22, 2001). In this case the nature of Bankers Trust's opposition is unclear from the record — Barriera alleges no facts to indicate that Bankers Trust did more to oppose her unemployment benefits claim than characterize her departure from the company as a resignation.
Even if Bankers Trust's opposition had been active and vigorous, Barriera suffered no major disruption as a result of the company's actions. First, Barriera was awarded unemployment benefits even though Bankers Trust opposed her claim. (Pro Se Decl.) Second, Barriera does not identify any harm that she suffered from the opposition, apart from delay in receiving unemployment benefits. (Id.) She also fails to specify the length of this delay or present any evidence to suggest that the delay "was more disruptive than a mere inconvenience."Terry, 336 F.3d at 138 (quoting Galabya, 202 F.3d at 640). Accordingly, because Barriera does not show that Bankers Trust's opposition to her unemployment benefits subjected her to materially adverse consequences, she does not demonstrate a prima facie case of retaliation based on that action. See Galabya, 202 F.3d at 640-41.
In her deposition, Barriera also implied that Bankers Trust retaliated against her by failing to provide her with severance pay. (Barriera Dep. at 215-16) However, Barriera admits that she did not accept the severance package that Bankers Trust offered. (Id. at 216-17) She also does not identify any Bankers Trust policies or practices that would entitle her to severance pay absent a signed severance agreement. Because Barriera fails to show that she had any right to collect severance pay, she cannot claim that Bankers Trust took adverse employment action against her when it paid her only the money she had earned.
Barriera claims that Bankers Trust retaliated against her also by informing the EEOC that she had resigned from her job. However, Bankers Trust is permitted to defend against an EEOC claim by advancing reasonable legal positions, even if those positions are adverse to the complaining employee. See United States v. New York City Transit Auth., 97 F.3d 672, 677 (2d Cir. 1996). Here, Bankers Trust could reasonably characterize Barriera's separation from the company as a resignation because Barriera stopped coming to work after she was offered a severance package. Although Barriera argued in her EEOC charge that she was terminated from her job on November 21, 1997, when she returned to work after rejecting the package, it was not unreasonable under the circumstances for Bankers Trust to take the position that Barriera's prolonged absence from work (constituted a resignation. By informing the EEOC that Barriera had resigned, Bankers Trust adopted a defensible legal position, and this tactic does not constitute adverse employment action giving rise to a retaliation claim See id. at 677.
Accordingly, Barriera fails to satisfy the third requirement of her prima facie case because she does not present evidence to show that Bankers Trust's allegedly retaliatory behavior resulted in adverse employment action. Because Barriera does not make her prima facie case, the defendant's summary judgment motion is granted as to Barriera's retaliation claims under Title VII, NYSHRL, NYCHRL, and § 1981.
VII.
Barriera's remaining claims arise under state law. Because there is no diversity of citizenship between the parties, jurisdiction over Barriera's state-law claims is supplemental. See 28 U.S.C. § 1367(c)(3) (2000). This court may decline to exercise supplemental jurisdiction over these claims because all of Barriera's federal claims have been dismissed. See id. In deciding whether to retain supplemental jurisdiction over state law claims, this court balances several factors, including judicial economy, convenience, fairness, and comity. See Valencia ex. rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). If all federal law claims are dismissed before trial, this balance of factors typically points toward declining to exercise jurisdiction over the remaining state law claims.Id. at 305.
For reasons of judicial economy, I have exercised supplemental jurisdiction over Barriera's claims of race discrimination and retaliation under NYSHRL and NYCHRL because identical standards apply to these claims and to her Title VII claims. Accordingly, defendant's summary judgment motion has been granted as to these claims. By contrast, Barriera's Title VII claim of gender discrimination was dismissed for failure to exhaust administrative remedies, and so this court does not exercise jurisdiction over her NYSHRL and NYCHRL gender discrimination claims. Cf. McKnight v. Dormitory Auth. of State of N.Y., 995 F. Supp. 70, 81 (N.D.N.Y 1998) (declining to exercise supplemental jurisdiction over state law claims when corresponding Title VII claims were dismissed for failure to exhaust administrative remedies).
I decline to exercise supplemental jurisdiction also over Barriera's NYCRL, IIED, and contract claims. Cf. Valencia, 316 F.3d at 305-06 ("[I]n the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state-law claims."). Therefore, I need not address defendant's arguments in favor of summary judgment on these claims.
For the above reasons, Deutsche Bank's motion for summary judgment is granted as to Barriera's Title VII, § 1981, NYSHRL, and NYCHRL claims of race discrimination and retaliation, and as to her Title VII and § 1981 gender discrimination claims. Because I decline to exercise supplemental jurisdiction over Barriera's remaining state-law claims, those claims are dismissed without prejudice for lack of jurisdiction. Barriera's complaint is dismissed, and Deutsche Bank's request for costs and attorneys' fees is denied.