Opinion
01-CV-0779E(Sr)
January 21, 2003
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Chase commenced this civil action November 5, 2001 against her former employer ("Kaufmann's") claiming violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 211(b), 216, 217. Kaufmann's now moves for summary judgment. Such motion will be granted in part and denied in part.
May Department Stores, Inc. — a corporation affiliated with Kaufmann's — is also named as a defendant. Both defendants will be referred to collectively as "Kaufmann's."
Chase had been employed at Kaufmann's since 1989. Chase worked at the Walden Galleria store from 1995 until the day she quit — June 3, 2001. Immediately before her resignation, Chase was an Assistant Sales Manager ("ASM") in the "better sportswear" department. As such, Chase was responsible for sales, customer service, shortage control and managing staff. Chase's immediate supervisor had been Judy Lisa Chrzanowski, who had hired Chase in 1989. As of August 28, 2002, Chase was 56 years old and Chrzanowski was 61 years old.
Kaufmann's was known as Sibley's when Chase started working.
Chase's resignation followed a demanding day at work. See Chase Dep., at 148-165. Chase had arrived at work at 5:00 p.m. to discover that the store was a mess, staff had been pulled from her department and requests for help were ignored. Chase was in charge of the store from 5:00 p.m. until 7:00 p.m., during which time she investigated the reason for the short-staffing and addressed such. Chase was consequently upset because she had been required to waste time "looking into the staffing issue, finding out why it wasn't filled, why people were pulled, [and] why requests were ignored." Chase Dep., at 164-165. Chase called store manager Roseann Gambino at around 6:00 p.m. to inform her that she was resigning. Chase Dep., at 166; Gambino Dep., at 65. Gambino called Maureen Wood — a Divisional Sales Manager ("DSM") — to investigate Chase's complaints. Wood, who had been managing the store immediately before Chase arrived, indicated that the entire store was short-staffed and that she had made the best overall staffing decisions. See Gambino Dep., at 59-64, 70. Gambino instructed Wood to so inform Chase. Id. at 75-76. Upon speaking to Wood, Chase called Wood a "fat lazy ass that didn't do anything." Chase Dep., at 166-167. Chase also screamed at Chrzanowski and told her that she was quitting. See Chrzanowski Dep., at 21-22. Chase alleges that her resignation under these work conditions constituted a constructive discharge. Additional facts will be discussed below as and where relevant.
A DSM is above an ASM on Kaufmann's organizational chart. See Gambino Dep., at 21-22. Accordingly, Wood was Chase's superior.
Chase has failed to respond to Kaufmann's motion for summary judgment. This Court must nonetheless determine whether Kaufmann's has satisfied its burden under Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") by "demonstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 680-681 (2d Cir. 2001).
Chase violated Rule 56 of the Local Rules of Civil Procedure ("LRCvP") by failing to submit an opposing statement of material facts; she also violated LRCvP 7.1(e) by failing to submit a memorandum of law or any affidavit. Amos v. Quebecor Printing, 1997 WL 251471, at *1 n. 1 (W.D.N.Y. 1997) ("Inasmuch as [plaintiff] failed to submit, as required by [LRCvP 56], an opposing statement of material facts as to which it is contended that there exists a genuine issue to be tried, the facts contained in [defendant's] statement are deemed admitted unless otherwise adequately controverted in the record. It is also noted that, inasmuch as [plaintiff] submitted neither a memorandum of law nor a supporting affidavit, she additionally failed to comply with LRCvP 7.1(e) * * *."). Accordingly, Kaufmann's Undisputed Statement of Facts is deemed admitted where not controverted by the record. See Brainard v. Freightliner Corp., 2002 WL 31207467, at *2 n. 7 (W.D.N.Y. 2002) (discussing LRCvP 56 and LRCvP 7.1(e) and citing cases); Harris Corp. v. McBride Assocs., Inc., 2002 WL 1677695, at *1 (W.D.N.Y. 2002) (same).
FRCvP 56(c) states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law * * *." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars * * *." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).
In employment discrimination cases, district courts must be "especially chary in handing out summary judgment * * * because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
See footnote 6.
Turning to the governing substantive law, Chase alleges that Kaufmann's discriminated against her on the basis of age in violation of the ADEA by constructively discharging her and subsequently hiring a forty-five year old replacement. Section 623(a) of the ADEA, in relevant part, makes it unlawful for an employer:
"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;" 29 U.S.C. § 623(a).
ADEA claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny for Title VII cases. Holtz, at 76. Under the McDonnell Douglas framework,
See also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas framework in ADEA context); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (same); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (same).
"a plaintiff must first establish a prima facie case of age discrimination. Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, non-discriminatory business rationale for its actions. If the employer articulates such a reason, the presumption of age discrimination dissolves, and the burden shifts back to the plaintiff to prove that the employer's stated reasons are merely pretextual and that age discrimination was the true reason for the adverse employment action." Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001) (citations omitted).
In establishing a prima facie case of age discrimination, Chase must show that
"(1) [s]he is a member of the protected class; (2) [s]he is qualified for the position; (3) [s]he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Id. at 466-467 (citing McDonnell Douglas).
This burden is de minimis. Id. at 467. Nonetheless, Chase's ADEA claim fails because she cannot establish the third element.
With respect to the third factor, Chase was not terminated; she resigned. Nonetheless, she claims to have been constructively discharged. The Second Circuit Court of Appeals has held that
Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (noting that a "constructive discharge" satisfies the third element of an ADEA claim).
"[c]onstructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. A court must find a constructive discharge where the employee resigns because an employer causes to exist conditions of such an unpleasant or difficult nature that any reasonable person in the employee's place would do the same." Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000) (citations omitted) ("Flaherty I"); Stetson v. Nynex Serv. Co., 995 F.2d 355, 360-361 (2d Cir. 1993).
This standard "is a high threshold." Carlucci v. Kalsched, 78 F. Supp.2d 246, 256 (S.D.N.Y. 2000).
Applying this standard to the present case, Chase was not constructively discharged because no reasonable person would have considered her working conditions to have been sufficiently intolerable. Indeed, Chase merely alleges (1) that Chrzanowski was indifferent towards her for the entire period of Chase's employment,(2) that a "common figure of speech" used by Chrzanowski was that she would get "an idiot lesson" by her supervisors if lower level managers did something wrong,(3) that Chrzanowski had "favorites" — although Chase concedes that she does not know whether age had any relation to Chrzanowski's selection of such favorites — and (4) that she had had an unpleasant day at work on June 3, 2001 as set forth above. Indeed, Chase does not allege that Kaufmann's made any age-related comments or discriminated against her in any way on the basis of her age.
See Chase Dep. at 53, 61. Chase alleges that Chrzanowski did not treat her like a family member. Id. at 61-63. The law, however, does not require managers to treat subordinates like family members.
See Chase Dep. at 61-65. Notably, Chase offers no evidence that Chrzanowski directed this figure of speech at Chase alone. Ibid.
See Chase Dep. at 68-70. Notably, Chase denies that Chrzanowski's favorites were treated any better. Id.
Accordingly, Chase's allegations fail to establish the "presence of objectively intolerable work conditions deliberately created by her employer" necessary to support her claim of constructive discharge. Indeed, Chase cannot establish that she was constructively discharged "simply through evidence that she was dissatisfied with the nature of [her] assignments" or that she "feels that the quality of [her] work has been unfairly criticized" or that her "working conditions were difficult or unpleasant." Stetson, at 360-361. Chase's allegations with respect to the events of June 3, 2001, discussed above, did not create objectively intolerable work conditions. Moreover, Chase's allegation of constructive discharge is further undermined by the undisputed facts that (1) she was never faced with any loss of pay or job title, (2) Kaufmann's never threatened her with discharge or suggested that she retire and (3) Kaufmann's wanted Chase to remain in its employ — and had even granted her a raise in order to keep her when she previously had threatened to resign. Ibid; Godfrey v. Ethan Allen, Inc., 1997 WL 279933, at *4 (2d Cir. 1997) (holding that a "reasonable jury could not find [plaintiff's] dissatisfaction in his new position amounted to constructive discharge" where plaintiff merely complained that he had "no staff, no department, and nothing to manage" because plaintiff's salary and title remained the same and his employer asked him to remain with the company). Indeed, Chase's alleged working conditions establish no more than ordinary work-related problems that a reasonable person would find tolerable. Inasmuch as Chase fails to create a genuine issue of material fact whether she was constructively discharged, her ADEA claim will be dismissed because she fails to allege a prima facie case of age discrimination.
See Flaherty v. Metromail Corp., 2002 WL 1476308 (2d Cir. 2002) (page references unavailable) ("Flaherty II") (holding that work conditions were not objectively intolerable where supervisor (1) assigned a lucrative account to another employee, (2) did not provide supervisory support and (3) made no discriminatory comments).
See also McKnight v. Graphic Controls Corp., 2000 WL 1887824, at *3 (W.D.N.Y. 2000) (noting that "`[d]ifficult or unpleasant' working conditions are not sufficient to sustain a claim of constructive discharge").
Nor does Chase's allegation that she spent several hours cleaning a fitting room create an objectively intolerable work condition. Indeed, Chase conceded at her deposition that she was not required to clean the fitting rooms and that she did so of her own accord. See Chase Dep., at 195-196. Furthermore, Gambino did not expect Chase to clean the fitting rooms. See Gambino Dep., at 105-106. Moreover, to the extent that Chase disagreed with the Kaufmann's business judgment in staffing the store on June 3, 2001, such is not a sufficient basis for alleging constructive discharge. See Mercury Air Group, Inc. v. Perez, 2001 WL 88228, at *3 (S.D.N.Y. 2001) (citing Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)).
Dean v. Westchester Cty. Dist. Attorneys' Office, 119 F. Supp.2d 424, 430-431 (S.D.N.Y. 2000) ("The most common constructive discharge cases involve scenarios where the employee is threatened with firing unless she resigns.").
See Gambino Dep., at 48, 65, 79-80; Chrzanowski Dep., at 13.
See Gambino Dep., at 72.
See also Sinopoli v. Regula, 1997 WL 624987, at *2 (2d Cir. 1997) (finding no constructive discharge where plaintiff merely alleged, inter alia, that he was dissatisfied with his work assignments and that "stress caused by poor treatment at work created health problems"); Kader v. Paper Software, Inc., 111 F.3d 337, 339-340 (2d Cir. 1997) (finding that employee's "working conditions" were not intolerable where employee was required to work in close proximity with boss, who was having an affair with the employee's estranged wife, who was also an employee); Mercury Air Group, Inc. v. Perez, 2001 WL 88228, at *3-4 (S.D.N.Y. 2001) (finding no constructive discharge where (1) employee's title and salary remained unchanged, (2) employer expressly wanted to retain the employee and (3) the employee never complained about the alleged problem).
Additionally, Flaherty I held that a "resignation is not itself a `discriminatory act' if it is merely the consequence of past discrimination * * *." Flaherty I, at 138. Chase cannot rely on any instances of past alleged discrimination in her attempt to demonstrate that she suffered intolerable work conditions. Accordingly, Chase's claim of constructive discharge is further undermined by the tenuous relationship between much of the alleged mistreatment and her resignation.
Moreover, Chase's discrimination claims fail because she does not allege that Kaufmann's "deliberately made her working conditions intolerable in an effort to force her to resign." Dean, — supra footnote 19 — at 430-431 (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000)). Indeed, there is no evidence that Kaufmann's was attempting to oust Chase.
The ADA and the ADEA have the "same pleading requirements." Sinopoli, see footnote 22 — at *1. Accordingly, Chase must demonstrate, inter alia, that she was "discharged" in order to set forth a prima facie case of discrimination under the ADA. As discussed above, however, Chase fails to establish that her resignation constituted a constructive discharge. Accordingly, her ADA claim likewise fails. Id. at *2. Additionally — inasmuch as she could garden, drive, walk, bathe, brush her teeth and hair, dress, cook, clean her house, and work at another store in essentially the same capacity as she had at Kaufmanns — Chase did not have an impairment that substantially limited her major life activities within the meaning of the ADA. See Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002) (holding that "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.").
Chase's request to transfer to the "dresses department" was denied because, as she conceded, her salary was too high to be placed in a smaller volume department. See Chase Dep., at 188; Gambino Dep., at 46. Accordingly, the denial of Chase's transfer request does not impact this Court's finding that Chase was not constructively discharged.
Chase Dep., at 5, 8, 14-15, 37-39.
Finally, a genuine issue of material fact does not exist with respect to Chase's FLSA claim. The uncontroverted evidence demonstrates that (1) Chase was paid once a month, (2) that she last received a pay check on May 31, 2001, (3) that she worked the weekend of June 2-3, 2001, (4) that she worked the weekend because she had requested two weekdays off instead. Chase Dep., at 198-199; Gambino Dep., at 39-40. Nonetheless, Gambino's deposition testimony appears to indicate that Chase worked June 2-3 because she was going to take two days off that week — i.e., days for which she had not yet been paid. Gambino Dep., at 40 (noting that Chase "was going to be off two of the weekdays that week."). Consequently, it appears undisputed that Kaufmann's owes Chase two days' pay. Such, however, does not implicate the FLSA as opposed to a state law cause of action. Accordingly, Chase's FLSA claim will be dismissed.
Nonetheless, unless Kaufmann's pays Chase for two days' work and notifies the Clerk of this Court of such in writing by February 17, 2003, this Court may grant Chase leave to amend the Complaint to add a state law claim over which this Court may exercise supplemental jurisdiction. In the event that Kaufmann's so complies, this action will be dismissed.
Accordingly, it is hereby ORDERED that defendant's motion is granted in part and denied in part, that plaintiff's ADEA, ADA and FLSA claims are dismissed, that plaintiff will be given leave to amend the Complaint to add a state cause of action if defendants fail to comply with the two-day pay provisions set forth above by February 17, 2003 and that, barring such compliance, the parties shall appear before Part III of this Court on Thursday, the 10th day of April, 2003 at 3:00 p.m. (or as soon thereafter as they may be heard) for a status conference.