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holding that there was no constructive discharge where plaintiff voluntarily resigned after being “unfairly disciplined,” yelled at, and threatened with termination at least once, because, among other things, she could have filed a grievance regarding the unfair reprimands
Summary of this case from Dall v. St. Catherine of Siena Med. Ctr.Opinion
95 Civ. 7183 (AGS).
January 3, 2001.
OPINION AND ORDER
Plaintiff Sara Katz brought this employment discrimination action under 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., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and parallel state, N.Y. Exec. Law § 296 et seq., and city laws. New York City Admin. Code § 8-101 et seq. Defendant Beth Israel Medical Center ("BIMC") now moves for summary judgment dismissing all claims. For the reasons set forth below, the motion is granted.
I. FACTS
The following facts are undisputed. Ms. Katz was born in Poland on June 28, 1932. (BIMC's Statement Pursuant to Rule 56.1 ("Def.'s 56.1") ¶ 1; Plaintiff's Response to Defendant's Statement Pursuant to Rule 56.1 ("Pl.'s 56.1") ¶ 1.) Ms. Katz fled Poland in 1939, and later moved to Israel before emigrating to the United States in 1963. (Aff. of Sara Katz in Opposition to Motion for Summary Judgment dated Apr. 7, 2000 ("Katz Aff.") ¶¶ 5-6.) Ms. Katz began her employment with BIMC in 1964 as a staff nurse. (Def.'s 56.1 ¶ 1; Pl.'s 56.1 ¶ 1.) In or about 1969, Ms. Katz was promoted to Head Nurse in the Newborn Nursery (the "Nursery"). (Def.'s 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.)
In November 1987, a clinical nurse specialist complained to the Associate Director of Nursing, Ventryce Thomas, that Ms. Katz had spoken to her in an unprofessional and abusive manner. (Def.'s 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) In the following year, Ms. Katz was counseled and warned on more than one occasion regarding alleged deficiencies in her behavior and performance. (Def.'s 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.) On January 13, 1988, for example, Ms. Katz received a memorandum from Ms. Thomas alleging that certain forms had not been filled out correctly. (Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶ 7; Decl. of Christopher Berner ("Berner Decl.") Ex. 1.) On or about January 20, 1988, Ms. Thomas gave Ms. Katz a warning about an alleged problem concerning staff assignments in the Nursery. (Def.'s 56.1 ¶ 8; Pl.'s 56.1 ¶ 8.) On February 4 and March 3, 1988, Ms. Thomas gave Ms. Katz memoranda concerning alleged further occurrences of the same problem described in the January 13, 1988 memorandum. (Def.'s 56.1 ¶¶ 9-10; Pl.'s 56.1 ¶¶ 9-10.) On or about May 12, 1988, the Assistant Director of Nursing, Mary Anne Gallagher, gave Ms. Katz a memorandum alleging that Ms. Katz had spoken "loudly and rudely" to Ms. Gallagher in front of other people. (Def.'s 56.1 ¶ 11; Pl.'s 56.1 ¶ 11; Aff. of Mark A. Gloade dated Feb. 25, 2000 Ex. 1 ("Katz Depo.") at Ex. 98) In or about 1988, BIMC hired Margaret Pelkowski to replace Ms. Thomas as Assistant Director of Nursing. (Def.'s 56.1 ¶ 12; Pl.'s 56.1 ¶ 12.)
Ms. Katz disputes the validity and veracity of this complaint, as well as the validity and veracity of all complaints, counseling sessions, warnings, and disciplinary measures. (Pl.'s 56.1 ¶¶ 5-11, 15-20, 37-38, 40-42, 44-45, 58.) She asserts that the alleged incidents were fabricated by BIMC personnel (Pl.'s 56.1 ¶¶ 17-19), or were otherwise part of BIMC's discriminatory campaign against her. (Pl.'s 56.1 ¶¶ 20, 37, 38, 40, 41, 42.) Ms. Katz does not deny, however, that the complaints, counseling sessions, warnings, or disciplinary measures occurred.
On June 14, 1989, Jane Lee, R.N., completed a performance evaluation of Ms. Katz. Ms. Lee generally rated Ms. Katz's performance as "Meets Criteria," but alleged problems with Ms. Katz's behavior. (Katz Depo. Ex 88.) Relevant comments included: "In most interactions communication and the ability to co-operate with staff members, NCC's and other departments is [a] significant problem," and "Miss Katz on occasion discusses unit and personal problems in front of staff members, patients, MDs. . . ." (Katz Depo. Ex. 88 at 350.) Ms. Lee also alleged in the evaluation that Ms. Katz "[s]ometimes accepts criticism well and on other occasions becomes extremely defensive." ( Id. at 351.) In her response, dated June 16, 1989, Ms. Katz denied these alleged problems. ( Id. at 354). She stated that she "consider[ed] this evaluation to be untrue, underscored, unfair, bias[ed], slanderous and defamation of character." ( Id. at 355).
On January 24, 1990, Ms. Katz received a warning for allegedly failing to sign an "AID cart check." (Def.'s 56.1 ¶ 16; Pl.'s 56.1 ¶ 16.) On May 11, 1990, Ms. Katz received a warning alleging that she had used abusive language to two supervisors. (Def.'s 56.1 ¶ 17; Pl.'s 56.1 ¶ 17.) On June 12, 1990, Nursing Care Coordinator ("NCC") Barbara Bowman completed a performance evaluation for Ms. Katz. (Katz Aff. Ex. 1.) Like Ms. Lee, Ms. Bowman generally gave Ms. Katz the rating of "Meets Criteria" in performance categories. ( Compare Katz Aff. Ex. 1 with Katz Depo. Ex. 88.) Ms. Bowman stated that "Ms. Katz practices competently in the Nursery + delivers excellent care to the infants." (Katz Aff. Ex. 1 at 101516.) Also like Ms. Lee. Ms. Bowman alleged certain behavioral problems. ( Compare Katz Aff. Ex. 1 with Katz Depo. Ex. 88.) Relevant comments included: "Has difficulties with cooperating/communicating at times that can be disruptive" and "Ms. Katz at times loses her temper and is being disciplined regarding this issue." (Katz Ex. 1 at 101514.) Ms. Bowman also alleged, with respect to constructive criticism, that Ms. Katz could "become angry + defensive at times/accepts willingly at other times." ( Id. at 101515) In her response, dated June 27, 1990, Ms. Katz again denied the problems. She also wrote that she "consider[ed] this evaluation to be untrue, underscored, unfair, bias[ed], and slanderous." (Aff. of Rory J. McEvoy dated Apr. 28, 2000 ("McEvoy Aff.") Ex. ¶ at 100948.) In August 1990, Ms. Katz's union filed a grievance on her behalf, claiming that, among other things, her responsibilities as Head Nurse in the Nursery were being diminished. (Def.'s 56.1 ¶ 22; Pl.'s 56.1 ¶ 22.) The parties subsequently settled the grievance. Pursuant to the settlement, Ms. Katz relinquished her responsibilities as Head Nurse in the Nursery (other than those held by staff nurses), but retained the title, salary and benefits of that position. (Def.'s 56.1 ¶¶ 24-25; Pl.'s 56.1 ¶¶ 24-25.) In or about 1990, BIMC hired Diane Bonica to replace Ms. Bowman as NCC in the Nursery. (Def.'s 56.1 ¶ 14; Pl.'s 56.1 ¶ 14.)
On March 28, 1991, Ms. Bonica gave Ms. Katz a warning for allegedly being "loud, argumentative and verbally assaultive" to a supervisor. (Def.'s 56.1 ¶ 18; Pl.'s 56.1 ¶ 18; Katz Depo. Ex. 67 at 418.) On July 15, 1991, a meeting was held with Ms. Pelkowski, Ms. Bonica, Ms. Katz, and Ms. Katz's union representative. During the meeting, Ms. Bonica claimed that Ms. Katz was deficient in preparing daily assignments, had poor interpersonal skills, and had ineffective and inappropriate communication skills. (Def.'s 56.1 ¶ 19; Pl.'s 56.1 ¶ 19.) In a memorandum dated July 29, 1991, a physician at BIMC complained to Ms. Gallagher that, although Ms. Katz's long experience could be a positive influence in the nursery, "her strong personality is such a negative influence that it overpowers any value she can be to the Nursery." (Def.'s 56.1 ¶ 20; Pl.'s 56.1 ¶ 20.)
In or about November 1991, Ms. Katz was diagnosed with breast cancer. (Def.'s 56.1 ¶ 26; Pl.'s 56.1 ¶ 26.) Ms. Katz subsequently informed Ms. Bonica of her diagnosis and requested time off from work for surgery and recuperation. As requested, Ms. Katz received a leave of absence. (Def.'s 56.1 ¶ 27; Pl.'s 56.1 ¶ 27.) On December 16, 1991, Ms. Bonica completed a performance evaluation for Ms. Katz. (Katz Aff. Ex. 2) Ms. Bonica gave Ms. Katz lower ratings for performance than Ms. Lee or Ms. Bowman had. ( Compare Katz Aff. Ex. 2 with Katz Depo. Ex. 88 and Katz Aff. Ex. 1.) She also alleged behavioral problems, writing comments such as "responds argumentatively to constructive criticism." (Katz Aff. Ex. 2 at 406.) In December 1991, Ms. Katz underwent a lumpectomy. In January 1992, Ms. Katz underwent a lymphadenectomy. (Def.'s 56.1 ¶ 29; Pl.'s 56.1 ¶ 29.) In or about January 1992, Ms. Katz asked Ms. Bonica for a schedule that would allow her to take a break at the same time each day, in order to both work and receive radiation treatment. Ms. Katz's request was denied. (Def.'s 56.1 ¶ 31; Pl.'s 56.1 ¶ 31.) Instead she received a three-month leave of absence to receive radiation treatment. (Def.'s 56.1 ¶ 33; Pl.'s 56.1 ¶ 33.) Ms. Katz returned to work in May 1992. (Def.'s 56.1 ¶ 34; Pl.'s 56.1 ¶ 34.) On July 9, 1992, Ms. Bonica counseled Ms. Katz regarding an alleged medication error. (Def.'s 56.1 ¶ 37; Pl.'s 56.1 ¶ 37.)
On September 30, 1993, Ms. Bonica completed a performance evaluation for Ms. Katz. On that evaluation, Ms. Katz received no rating lower than "Meet[s] Criteria." (Katz Aff. Ex. 13.) Although Ms. Bonica asserted that Ms. Katz "needs to consistently take constructive criticism as positive + helpful" ( id. at 100275), she also noted that "Ms. Katz has been more consistent in communication skills especially with her peers." ( Id. at 100276.) Ms. Katz responded in relevant part that, "I accept constructive criticism; I had a difficult time [with] Mina Colon, former ANCC who harassed me. This situation changed since she left." ( Id. at 100276.)
Sometime in the first three weeks of March 1994, Ms. Bonica gave Ms. Katz a warning alleging "poor clinical practice," specifically failure to properly assess and document a sick baby's condition. (Def.'s 56.1 ¶ 38; Pl.'s 56.1 ¶ 38; Katz Depo. Ex. 46.) On March 25, 1994, Ms. Katz filed an EEOC charge alleging age and disability discrimination. (Def.'s 56.1 ¶ 39; Pl.'s 56.1 ¶ 39.) On April 15, 1994, Ms. Katz made another EEOC filing, alleging retaliation. (Katz Aff. Ex. 29.) On May 20, 1994, Ms. Katz received a warning alleging "poor clinical performance — failed to administer adequate nursing interventions." (Def.'s 56.1 ¶ 40; Pl.'s 56.1 ¶ 40; Katz Depo. Ex. 26.) The warning stated that Ms. Katz had the option of a one-day suspension or a warning combined with remedial education. (Def.'s 56.1 ¶ 40; Pl.'s 56.1 ¶ 40.) On May 23, 1994, Ms. Katz filed a "Second Addendum" to her EEOC charge, alleging further retaliation. (Katz Aff. Ex. 29.) On June 22, 1994, Ms. Katz filed an "Amended Charge," alleging retaliation. ( Id.) In or about October 1994, Ms. Katz received a warning alleging that Ms. Katz had spoken to a clinical nurse specialist "in a loud aggressive manner." (Def.'s 56.1 ¶ 41; Pl.'s 56.1 ¶ 41; Katz Depo. Ex. 78.)
On or about December 6, 1994, Ms. Katz was involved in a verbal altercation with a supervisor in front of other nursery staff. (Def.'s 56.1 ¶¶ 42-44; Pl.'s 56.1 ¶¶ 42-44.) Ms. Katz testified at her deposition that:
I asked for a pencil for work a day before [i.e. on December 5, 1994] and the unit clerk, Yvonne Wanlis, refused to give me a pencil. She said she didn't have any.
The following morning [i.e. December 6] at 7:00 a.m. I saw Frieda Gindoff holding a pencil not even sharpened yet, so I asked her, because it's surprising why could I not get a pencil for work? And she said, Yvonne gave it to me.
(Katz Depo. at 1008.) Ms. Katz then spoke with Assistant NCC Patricia Robinson. (Def.'s 56.1 ¶¶ 42-44; Pl.'s 56.1 ¶¶ 42-44.) The parties disagree about the exact substance of the conversation and who, if anyone, acted inappropriately; however, they both describe the incident as an "altercation." ( Compare Def.'s 56.1 ¶¶ 42-44 with Pl.'s 56.1 ¶¶ 42-44 and Katz Depo. at 1008-10.) Later on December 6, 1994, Ms. Katz left the nursery. (Def.'s 56.1 ¶ 45; Pl.'s 56.1 ¶ 45.) After she returned to the nursery, Ms. Katz asked Ms. Bonica for permission to go to BIMC's Employee Health Department. At some point, Ms. Katz received permission. (Def.'s 56.1 ¶ 46; Pl.'s 56.1 ¶ 46.) The Employee Health Department instructed Ms. Katz to go home. She returned to the Nursery, signed out, and went home. (Def.'s 56.1 ¶ 47; Pl.'s 56.1 ¶ 47.)
Ms. Katz never worked after December 6, 1994. (Def.'s 56.1 ¶ 56; Pl.'s 56.1 ¶ 56.) She requested and received a medical leave of absence based on her physician's representation that she was ill and under the physician's care. (Def.'s 56.1 ¶ 48; Pl.'s 56.1 ¶ 48.) The initial leave of absence was for the period December 7, 1994 through February 6, 1995. (Berner DecI. Ex. 7 at 100227.) Ms. Katz applied for and received six extensions of her leave of absence. (Def.'s 56.1 ¶ 49; Pl.'s 56.1 ¶ 49.) With the sixth extension, Ms. Katz's leave of absence was to end on July 1, 1995. (Berner Decl. Ex. 7 at 100215.) On May 18, 1995, Ms. Katz submitted her resignation, effective July 1, 1995. (Def.'s 56.1 ¶¶ 51-52; Pl.'s 56.1 ¶¶ 51-52.) Ms. Katz's resignation letter stated, in relevant part, "I am presently on Disability. I am not able to return to work, therefore, I am compelled after 30 years of Loyal Service to go on Early Retirement effective 7/1/95." (Def.'s 56.1 ¶ 52; Pl.'s 56.1 ¶ 52; Katz Depo. Ex. 1.) At the time of her resignation, Ms. Katz still retained the title of Head Nurse in the Nursery. (Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) At the same time she resigned, Ms. Katz applied to her union for retirement benefits under the union pension plan. (Def.'s 56.1 ¶ 53; Pl.'s 56.1 ¶ 53.) Ms. Katz began to receive such benefits on July 1, 1995. (Def.'s 56.1 ¶ 54; Pl.'s 56.1 ¶ 54.) Ms. Katz also applied for and received SSA benefits. (Def.'s 56.1 ¶ 55; Pl.'s 56.1 ¶ 55.) Ms. Katz did not seek work as a nurse, and did not work, after December 6, 1994. (Def.'s 56.1 ¶ 56; Pl.'s 56.1 ¶ 56.)
II. SUMMARY JUDGMENT
A court may grant summary judgment only if it is satisfied that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, which may be satisfied if it can point to the absence of evidence necessary to support an essential element of the non-moving party's claim. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving party meets its burden, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. See Kolp v. New York State Office of Mental Health, 15 F. Supp.2d 323, 326 (W.D.N.Y. 1998). "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarell v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). All reasonable inferences and ambiguities are resolved in favor of the party against whom summary judgment is sought. See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The court's function on a motion for summary judgment is not to weigh the evidence, but to determine if there is an issue for trial. See Anderson, 477 U.S. at 249. There is an issue for trial if the party opposing summary judgment offers sufficient evidence for that party to obtain a favorable jury verdict at trial. See id. Summary judgment is proper when reasonable minds could not differ as to the import of the proffered evidence. See id. at 250-52; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
III. DISCUSSION
Ms. Katz's First Amended Complaint contains five counts: (i) national origin or ethnicity discrimination and retaliation under Title VII; (ii) failure to accommodate a disability and retaliation under the ADA; (iii) age discrimination and retaliation under the ADEA; (iv) age, ethnicity, and disability discrimination and retaliation under N.Y. Exec. Law § 296 et seq.; and (v) age, ethnicity, and disability discrimination and retaliation under "the New York City Human Rights Commission." (Presumably plaintiff meant New York City Admin. Code § 8-101 et seq.) The claims under city and state law are analyzed under the same framework as the federal law claims. See, e.g., Stringfellow v. Wyckoff Heights Medical Center, No. 95 CV 3041, 1998 WL 760286, at *6 (E.D.N Y Sept. 9, 1998). Accordingly, for convenience, the claims under all laws are discussed below by subject matter: national origin or ethnicity; disability; age; and retaliation.
A. National Origin or Ethnicity Discrimination
Plaintiff alleges that BIMC discriminated against her on the basis of her national origin or ethnicity. (Compl. ¶¶ 32, 38, 40.) Defendant argues that the Court should dismiss this claim because plaintiff failed to raise it in her filings with the Equal Employment Opportunity Commission (the "EEOC"). (Mem. of Law in Supp. of Beth Israel Medical Center's Mot. for Summ. J. ("Def.'s Mem.") at 18-19.) The Court agrees.
An individual wishing to bring a claim under Title VII must file a charge with the EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e). A district court may only consider a claim under Title VII when that claim is either included in a charge filed with the EEOC or is "reasonably related" to what is asserted in the charge. Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). A claim not included in an EEOC charge is "reasonably related" if it falls into one of three categories. The first is "where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 1402 (internal quotations omitted). The second is where the claim not included in the EEOC charge is one for retaliation. Id. The third is where the claim not included in the EEOC charge "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.
Plaintiff's filings with the EEOC never included a claim for national origin discrimination. (Katz Aff. Exs. 27, 29.) Plaintiff claims, however, that her national origin or ethnicity claim falls into the first category of reasonably related claims. (Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (Revised) ("Pl.'s Mem.") at 29-30.) Ms. Katz argues that in an "Amended Charge" filed with the EEOC on June 22, 1994, she claimed that BIMC retaliated against her by, among other things, forbidding her to speak Hebrew. (Pl. Mem. at 29-30.) Ms. Katz's original EEOC charge also alleges, as part of her age discrimination claim, that BIMC would not let her speak on the telephone because she spoke Hebrew. (Katz Aff. Ex. 27 at 3.) Even under the first reasonably related category, courts will not consider a claim that is based on an entirely different theory of discrimination than the claim or claims asserted in the EEOC charge. See Blanke v. Rochester Tel. Corp., 36 F. Supp.2d 589, 594 (W.D.N.Y. 1999); see also McLean-Nur v. Department of Transp., No. 98 CIV 819 (NRB), 2000 WL 297176, at *4 (S.D.N.Y. Mar. 21, 2000) ("Claims alleging discrimination on a completely different theory or basis from those stated in the EEOC charge are not reasonably related to those in the charge. . . . "); Peterson v. Insurance Co. of North Am., 884 F. Supp. 107, 109 (S.D.N.Y. 1995) ("[C]ourts will not permit a claim that is based on a wholly different type of discrimination to be brought if it was not initially asserted in the EEOC charge."). In Blanke, the plaintiff filed a charge with the EEOC alleging race and age discrimination. 36 F. Supp.2d at 592. In that charge, Blanke also stated that "he had `observed that different qualifications were used to promote white men vs. other personnel.'" Id. When he filed his complaint with the court, Blanke added a claim of sex discrimination. Id. at 591. The Court held that Blanke's sex discrimination claim was not reasonably related to his EEOC charge, even though he had alleged to the EEOC that white men were treated differently than other employees. The Court found that Blanke's sex discrimination claim was based on a different theory than the claims in his EEOC charge, and that allowing the sex discrimination claim would stretch the first reasonably related category too far. Id. at 594.
The Amended Charge states, in relevant part:
After rec[ei]ving notice of my charges, Respondent has retaliated against me in that I have been subjected to closer supervision and by doing so intimidating me, brought up on false charges, threatened with termination, made to take remedial courses in nursing functions and told not to speak Hebrew. I am the only person in my department forbidden to make or receive telephone calls.
(Katz Aff. Ex. 29 at 10).
The initial charge states, in relevant part:
I believe I have been treated in this manner because I am the oldest nurse in the nursery[.] I also have more seniority than any of the nurses in the nursery. I am not allowed to speak on the phone because I speak Hebrew. I am being treated less favorablly [sic] than the younger nurses.
(Katz Aff. Ex. 27 at 3.)
This case is very similar to Blanke. Ms. Katz's EEOC charge, including the amendments and addenda thereto, nowhere alleges discrimination based on national origin or ethnicity. (Katz Aff. Exs. 27, 29.) The fact that Ms. Katz stated, as part of her age discrimination and retaliation claims, that BIMC forbid her from speaking Hebrew at work, is an insufficient basis for finding her national origin or ethnicity claim reasonably related to her EEOC charge. Since it is neither included in, nor reasonably related to, her EEOC charge, Ms. Katz's claim for national origin or ethnicity discrimination is not properly before this Court. Accordingly, it must be dismissed. See Blanke, 36 F. Supp.2d at 594-95; McLean-Nur, 2000 WL 297176, at *4-*5.
B. Disability Discrimination
Plaintiff alleges that BIMC failed to accommodate her disability. (Compl. ¶¶ 34, 38, 40.) Defendant argues that it is entitled to summary judgment because it provided Ms. Katz with a reasonable accommodation and because her claim is time-barred. (Def.'s Mem. at 20-22.) The Court finds that plaintiff's claim for failure to accommodate her disability is not properly before the Court.
Like her national origin or ethnicity discrimination claim, plaintiff's claim for failure to accommodate her disability is not properly before this Court because it was not raised in her EEOC charge (including the addenda and amendments thereto). In her initial charge, Ms. Katz alleged, in relevant part:
I have a serious recorded illness.
I have been belittled, subjected to harassment, stress, humiliation, and on March 18, 1994 I was threaten[ed] with termination.
I believe I have been discriminated against in violation of the American[s] with Disabilit[ies] Act of 1990. I further believe I have been discriminated against because of my age, in violation of the Age Discrimination in Employment Act of 1967, as amended.
(Katz Aff. Ex. 27 at 1.) Nowhere after that vague, sweeping allegation did she mention any scheduling concerns (the subject of her claim for failure to accommodate). In fact, the closest she came to raising a failure to accommodate was to state that she was not supposed to be subjected to stress. (Katz Aff. Ex. 27 at 2.) Even if such a thing were possible in the newborn nursery of a hospital, such an allegation is not specific enough to raise a claim for failure to accommodate. There is simply no mention of any request for accommodation. See Butts, 990 F.2d at 1403 ("vague, general allegations, quite incapable of inviting a meaningful EEOC response" are inadequate basis for discrimination claim). Ms. Katz's later filings with the EEOC are no better. In them, she simply alleged that BIMC was harming her health with unfounded disciplinary measures, stress, and a lack of staff support. (Katz Aff. Ex. 29) Thus, Ms. Katz did not raise the failure to accommodate her disability with the EEOC.
Nor is the alleged failure to accommodate reasonably related to the contents of plaintiff's EEOC filings. The failure to accommodate claim does not fit the first reasonably related category because, as stated above, those allegations are too vague to invite a meaningful investigation of accommodation by the EEOC. See Butts, 990 F.2d at 1403. This claim does not fit the second reasonably related category because there is no assertion that the alleged failure to accommodate was retaliatory. Although the Complaint refers to "repeated" requests for accommodation (Compl. ¶ 34), there is only evidence in the record of two such requests. Both requests were made prior to Ms. Katz's first filing with the EEOC. (Pl.'s Mem. at 22; Katz Aff. ¶ 73.) This claim also does not fit the third reasonably related category because Ms. Katz has not alleged any acts of failure to accommodate. Logically, then, this claim cannot concern incidents of discrimination carried out in the manner alleged in the EEOC charge. Since Ms. Katz's claim for failure to accommodate her disability was not raised before the EEOC, and is not reasonably related to the claims asserted in her EEOC charge, the Court cannot consider this claim. Accordingly, it must be dismissed. See Muse v. New York City Dep't of Housing, No. 96 CV-6221 (FB), 2000 WL 1209427, at *5 (E.D.N.Y. Aug. 22, 2000); Garcia v. Coca-Cola Botthng Co., No. 96 Civ. 6072 (AGS), 1998 WL 151032, at *2 (S.D.N.Y. Mar. 12, 1998).
Moreover, even if this claim had been included in plaintiff's EEOC charge, it is partially time-barred. Ms. Katz first requested an accommodation in or about January 1992. At that time, she asked Ms. Bonica for a schedule allowing her to take a break at the same time every day, in order to get radiation treatment. See supra pp. 5-6. To the extent that Ms. Katz's disability claim is based on this request, it is untimely. A claim for failure to accommodate a disability must be raised in an EEOC charge within 300 days of the alleged failure. 42 U.S.C. § 12117(a) (incorporating by reference 42 U.S.C. § 2000e-5(e)). Ms. Katz did not file her initial EEOC charge until March 25, 1994. (Def.'s 56.1 ¶ 39; Pl.'s 56.1 ¶ 39.) This is more than 300 days after Ms. Bonica refused plaintiff's 1992 request. Nonetheless, plaintiff argues that there is a continuing violation, allowing her to bring a claim based on conduct that occurred more than 300 days prior to the filing of her EEOC charge. (Pl.'s Mem. at 21-22.)
"[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). The continuing violation doctrine is disfavored in the Second Circuit and should only be applied upon a demonstration of compelling circumstances. Nicholas v. NYNEX, 974 F. Supp. 261, 266 (S.D.N.Y. 1997). Plaintiff claims that BIMC allowed specific and related instances of non-accommodation to continue for long enough to amount to a discriminatory policy or practice. (Pl.'s Mem. at 22.) "To qualify as a series of related acts, the events, as alleged, must not be isolated and sporadic outbreaks of discrimination, but a dogged pattern." Sunshine v. Long Island Univ., 862 F. Supp. 26, 29 (E.D.N.Y. 1994) (internal quotations omitted). Ms. Katz offers evidence of two incidents of failure to accommodate her disability, one in Jnanuary 1992 and one in February or early March 1994 (when she supposedly requested a scheduling change). (Pl.'s Mem. at 22; Katz Aff. ¶ 73.) Even accepting for purposes of this motion that these incidents occurred and were discriminatory, these incidents do not form a dogged pattern, but are isolated and sporadic. Plaintiff has failed to show a continuing violation. Accordingly, any claim arising out of her 1992 request for accommodation would be time-barred.
C. Age Discrimination
Plaintiff claims that BIMC discriminated against her based on her age. (Compl. ¶¶ 36, 38. 40.) Defendant argues that it is entitled to summary judgment on plaintiff's age discrimination claim because plaintiff cannot raise a prima facie case. Specifically, defendant argues that plaintiff cannot show a constructive discharge (Def.'s Mem. at 11-18) or discriminatory animus. (Def.'s Mem. at 22-24.) The Court finds that plaintiff cannot raise a prima facie case of age discrimination because she has not offered evidence demonstrating an adverse employment action.
A "minimal" prima facie case of age discrimination under the ADEA requires a showing of (i) membership in a protected class, (ii) qualification for the position, and (iii) an adverse employment action. James v. New York Racing Assoc., No. 00-7040, 2000 WL 1752908, at *3 (2d Cir. Nov. 29, 2000) (construing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If a plaintiff makes out the minimal prima facie case, a presumption of discrimination arises. This moves the burden of production to the defendant to put forth a nondiscriminatory reason for its challenged action or actions. Id. If the defendant offers a nondiscriminatory reason, the presumption of discrimination is eliminated. Id. at *4. The burden of persuasion remains with the plaintiff at all times; ultimately it is the plaintiff's responsibility to convince the trier of fact that illegal discrimination occurred. Id. Thus, if the defendant meets its burden of production and the plaintiff cannot "point to evidence that reasonably supports a finding of prohibited discrimination" the defendant is entitled to summary judgment. Id.
Only the first element of plaintiff's prima facie case is entirely undisputed. The ADEA protects anyone over forty years of age. 29 U.S.C. § 623, 631. Born in 1932, Ms. Katz was over forty at all relevant times. See supra pp. 1-9. As to the second element, it is not clear if BIMC is arguing that Ms. Katz was unqualified for the position she held. BIMC does point to alleged problems with Ms. Katz's performance and behavior (Def.'s 56.1 ¶¶ 5-11, 15-20, 37-38, 40-45); however, the record evidence shows that BIMC never attempted to fire Ms. Katz. Most of the performance evaluations in the record indicate that Ms. Katz was at least competent, although they do suggest a history of behavioral problems. (Katz Depo. Ex. 88; Katz Aff. Exs. 1, 13; but see Katz Aff. Ex. 2.) In fact, in her September 1993 performance evaluation, Ms. Katz received ratings of "meets criteria" or meets and exceeds criteria" from Ms. Bonica. (Katz Aff. Ex. 13.) (Ms. Katz also offers her own testimony that she was an excellent nurse. ( E.g. Katz Aff. ¶ 16.)) Accordingly, the Court accepts for purposes of this motion that Ms. Katz was qualified for her position.
As to the third element, Ms. Katz's primary argument is that she was constructively discharged. An employer constructively discharges an employee when it intentionally creates a work atmosphere so intolerable that the employee is forced to quit involuntarily. E.g. Irvine v. Video Monitoring Services of American, L.P., 98 Civ. 8725 (NRB), 2000 WL 502863, at *7 (S.D.N.Y. Feb. 18, 2000) (citing Kirsh v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998)). The work atmosphere is sufficiently intolerable if it is so unpleasant that a reasonable person in the employee's circumstances would have felt compelled to resign. E.g., Irvine, 2000 WL 502863, at *7 (quoting Cherktova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)).
In support of her constructive discharge claim, Ms. Katz asserts that she was repeatedly threatened, berated and mocked by her supervisors, was yelled at, and was criticized without basis." (Pl.'s Mem. at 16.) Ms. Katz also claims she was warned and disciplined for fabricated incidents and incidents where she was not at fault. Furthermore, Ms. Katz claims that her supervisors gave her extra work and less assistance, denied her bathroom breaks, instructed other nurses not to help her, and refused her permission to obtain medical care for herself. She claims that her supervisors did this with the intent to threaten her health. Lastly, she claims that her supervisors discharged the second-oldest nurse in the Newborn Nursery, Aurora Pantua, for alleged faults similar to those attributed to Ms. Katz. ( Id.) BIMC responds that some of these allegations are not supported by legitimate record evidence. BIMC asserts that others are time-barred. The remainder, BIMC argues, are legally insufficient to establish a constructive discharge. (Reply Mem. of Law in Supp. of Beth Israel Medical Center's Mot. for Summ. J. ("Reply Mem.") at 4-7.)
BIMC is correct that Ms. Katz's only evidence that her supervisors instructed other nurses not to help Ms. Katz is inadmissible hearsay. ( Id. at 7.) Ms. Katz presents only her own testimony that certain nurses told her that the supervisors told them not to assist Ms. Katz. (Katz Aff. ¶¶ 36-37; Katz Depo. p. 498.) There is no testimony from any of the other nurses about the alleged instructions. Accordingly, there is no admissible evidence that Ms. Katz's supervisors told other nurses not to help her. See Fed.R.Evid. 801-804.
BIMC also objects to the affidavit testimony concerning the discharge of Ms. Pantua. BIMC argues that it asked Ms. Katz, at the end of her deposition, if she had testified to all facts that supported her claims. Ms. Katz said yes; however, there is no deposition testimony in the record regarding Ms. Pantua's termination. (Reply Mem. at 6.) It is generally true that a witness cannot offer an affidavit covering material that she did not recall during her deposition. E.g. Reid v. IBM Corp., No. 95 Civ. 1755, at *2 n. 2 (MBM), 1997 WL 357969 (S.D.N.Y. June 26, 1997). However, Reid and the cases cited therein concern situations in which a witness offered an affidavit concerning a subject about which he was actually questioned. See Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1210 (7th Cir. 1993); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir. 1982); Reid, 1997 WL 357969, at *2 n. 2. There is no record evidence here that BIMC ever questioned Ms. Katz about Ms. Pantua's termination, although Ms. Katz identified Ms. Pantua as the second-oldest nurse. (Katz Depo. at 791.) BIMC only asked, at the end of nine days of testimony, if Ms. Katz could recall any relevant facts about which she had not previously testified. (McEvoy Aff. Ex. 2 at 1142.) This is an insufficient basis for excluding the affidavit testimony concerning Pantua.
More generally, BIMC objects to testimony concerning incidents that took place more than 300 days before Ms. Katz's first EEOC filing, on March 25, 1994. ( E.g. Def.'s Mem. at 22-23.) Ms. Katz responds that she can base her claim on earlier incidents because there is a continuing violation. (Pl.'s Mem. at 21-25.) To support this argument, she offers testimony that her supervisors consistently provided her with insufficient staff assistance to do her work and take standard breaks. She also offers testimony that her supervisors consistently berated and yelled at her. ( Id. at 23-25.) This testimony indicates the presence of specific, ongoing practices. Ms. Katz also asserts a continuing violation with respect to the use of disciplinary measures. ( Id. at 25.) This does not establish a continuing violation. As stated above, a continuing violation requires proof of specific, ongoing discriminatory practices or policies, or specific and related instances of discrimination that are allowed to continue long enough to amount to discriminatory practices or policies. See Cornwell, 23 F.3d at 704. Disciplinary warnings or actions, however, are discrete acts, "more in the nature of an isolated employment decision than a persistent pattern." Nicolas v. NYNEX, Inc., 974 F. Supp. 261, 268-69 (S.D.N.Y. 1997) (failure to promote is discrete act not supporting a continuing violation). Second, even if disciplinary measures might theoretically constitute a continuing violation, they do not do so in this case. The undisputed facts contain the following disciplinary measures: one in 1987, five in 1988, zero in 1989, two in 1990, two in 1991, one in 1992, zero in 1993, and five in 1994. (Def.'s 56.1; Pl.'s 56.1.) Even if discriminatory, these disciplinary measures are "isolated and sporadic outbreaks of discrimination" rather than "a dogged pattern." Sunshine v. Long Island Univ., 862 F. Supp. 26, 29 (E.D.N.Y. 1994) (internal quotations omitted). As such, they do not constitute a continuing violation. See id. The one incident involving Ms. Pantua (her termination and reinstatement) does not represent a continuing violation. (Pl.'s Mem. at 24.) Accordingly, of the incidents from before June 1993, only the alleged yelling and lack of assistance may be considered as part of Ms. Katz's claim.
Given all of the admissible evidence that may be considered as part of Ms. Katz's claim, the Court cannot say that a factfinder could conclude that a reasonable person in Ms. Katz's circumstances would have felt compelled to resign. Plaintiff argues that she was constructively discharged on her last day of work, December 6, 1994, rather than on the day she submitted her resignation, May 18, 1995. Plaintiff cites no authority supporting this argument. A recent Second Circuit decision suggests that plaintiff's argument is wrong. In Flaherty v. Metromail Corp., No. 00-7467, 2000 WL 1854079 (2d Cir. Dec. 19, 2000), the court considered when a claim for constructive discharge based on age and gender discrimination accrued for limitations purposes. The district court had found that the claim accrued on the date when the plaintiff received "definite notice of her impending termination." Id. at 1. In vacating the district court's decision, the Second Circuit held that "the date that Flaherty's claim accrued was the date when she gave definite notice of her intention to retire, and the rule should be the same in all cases of constructive discharge." Id. at 4. Under Flaherty, then, Ms. Katz's constructive discharge claim accrued on May 18, 1995, the date of her letter of resignation. Since the constructive discharge claim accrued on that date, it is hard to see how this Court could ever find that Ms. Katz was constructively discharged at an earlier time.
At the time of any constructive discharge, then, Ms. Katz had been out on leave for approximately five months. She had initially taken a sixty-day leave of absence. Subsequently, she requested six extensions. Five had been granted by May 18, 1995; the sixth request, apparently made shortly before Ms. Katz's resignation, was granted on May 22, 1995. (Berner Aff. Ex. 7.) The only allegedly discriminatory event that Ms. Katz claims took place while she was out on leave was her December 8, 1994 receipt of a telegram notifying her of a disciplinary hearing relating to the events of December 6. (Katz Aff. ¶ 12.) Undisputed evidence shows that BIMC granted Ms. Katz's extension requests and informed her how she should go about returning to work when she was ready. (Berner Aff. Ex. 7.) The fact that a plaintiff had been out on leave for a time prior to her resignation makes it less likely that the resignation was prompted by an atmosphere so intolerable that a reasonable person would have felt compelled to resign. See Terry v. United States, No. 98 CIV 8249 (NRB), 2000 WL 204522, at *12 n. 6 (S.D.N.Y. Feb. 18, 2000); see also Spence v. Maryland Cas. Co., 995 F.2d 1147, 1157 (three allegedly discriminatory events that occurred after "uneventful six months" insufficient to establish constructive discharge). Moreover, in her letter of resignation, Ms. Katz did not claim that she had been forced out or discriminated against. She wrote, in relevant part, "I am presently on Disability. I am not able to return to work, therefore I am compelled, after 30 years of Loyal Service, to go on Early Retirement effective 7/1/95." (Katz Depo. Ex. 1.) This text also indicates the absence of an intolerable atmosphere. Given the amount of time between the alleged discrimination and Ms. Katz's resignation, as well as the absence of any mention of discrimination or mistreatment in her resignation letter, the Court does not believe that a factfinder could conclude that a reasonable person in Ms. Katz's circumstances would have felt compelled to resign in May 1995.
That is not to say that a plaintiff must write "I have been constructively discharged" in order to later make such a claim. The point is, rather, that a resignation letter lacking any mention of intolerable conditions, or even mistreatment, undermines a later claim of constructive discharge.
Even consideration of the alleged atmosphere on and before December 6, 1994 would not suffice to show a constructive discharge here. Ms. Katz's evidence, if accepted by the factfinder, would show that she was given insufficient staff assistance to do her work, given insufficient staff relief to take ordinary breaks, and told to retire or work part-time if she did not like the situation in the newborn nursery. Ms. Katz was also unfairly disciplined five or six times in 1994. Ms. Katz's testimony also indicates that she was the only nurse disciplined for performance deficiencies, even though BIMC's witnesses acknowledged that other nurses had such deficiencies. Ms. Katz's testimony further indicates that her supervisors routinely yelled at her and berated her, and at least once threatened her with termination. Finally, on what turned out to be Ms. Katz's last day at work, Ms. Bonica did not let Ms. Katz go to the Employee Health Division for several hours, even though another nurse was available to cover for Ms. Katz. (Pl.'s Mem at 14-18.)
BIMC challenges this as a contradiction of Ms. Katz's deposition testimony. (McEvoy Aff. ¶ 2 and Ex. 1 at 33.) Ms. Katz testified that the other nurse was available, but did not say expressly for what. (McEvoy Aff. Ex. 2 at 1017.) This is not a contradiction justifying exclusion of the affidavit testimony on this point.
Even accepting these facts for purposes of this motion, this action is distinguishable from the case upon which Ms. Katz primarily relies here, Cherktova. In that case, according to Ms. Katz, the Second Circuit found a constructive discharge where the plaintiff's new supervisors yelled at her and insulted her during coaching sessions, told her that she was too expensive and mocked her explanations that her pay was low, repeatedly threatened to fire her, continually engaged in baseless criticism, and fired her former supervisor on grounds similar to those on which they criticized her. (Pl.'s Mem. at 15) As BIMC points out, however, in Cherktova, another employee testified that "it was a recognized practice to document a pattern of failure in order to get rid of an undesirable employee." 92 F.3d at 84 (internal quotations omitted). There is no such evidence here. Also, Cherktova's former supervisor was fired only two months before Cherktova's constructive discharge. Id. at 84-85. Ms. Katz relies on Ms. Pantua's termination, but that took place over three years before Ms. Katz's alleged constructive discharge. (Katz Aff. ¶ 18.) Moreover, Ms. Pantua was reinstated soon after her discharge. (Katz Aff. ¶ 20 and Ex. 9.) Finally, Cherktova was denied training in areas where she was told further deficiencies could lead to her termination. Id. at 85. Ms. Katz, on the other hand, was given remedial education and a warning in lieu of a suspension after one 1994 incident. (Def.'s 56.1 ¶ 40; Pl.'s 56.1 ¶ 40.) This case just does not rise to the same level as Cherktova.
On the other hand, this case does bear important similarities to the case upon which defendant relies, Spence. In Spence, the plaintiff was ridiculed by his supervisor, blamed for not knowing about certain changes in company practice of which no one had notified him, harangued by executives, written up and criticized for poor performance, threatened with termination, placed on probation, and suffered high blood pressure as a result of his supervisors' treatment. 990 F.2d at 1149-54. First, the Spence court noted that the "constant criticisms" by Spence's supervisors did not prompt Spence's resignation at the time. Spence only stopped working months later. The fact that Spence did not resign in response to the "constant criticisms" suggested that a reasonable person would not have felt compelled to do so. 995 F.2d at 1157. Here, Ms. Katz did not resign in response to the alleged discriminatory conduct that ended on December 6, 1994. the last day she actually worked. She resigned five months later, at which time she had been on leave without incident since at least December 9, 1994. This suggests that a reasonable person in Ms. Katz's position would not have felt compelled to resign in December 1994.
In Spence, the Second Circuit may have taken as the time of possible constructive discharge the date that Spence stopped working, rather than the date he actually resigned. 995 F.2d at 1156-1158. This Court believes, however, that the recent decision in Flaherty precludes a similar conclusion here.
Second, the Court of Appeals noted that, instead of resigning, Spence could have lodged a complaint about his supervisors with his employer. Another employee had done so, resulting in action against Spence's supervisors. 995 F.2d at 1157. Here, Ms. Katz had the alternative of a grievance under her union's collective bargaining agreement with BIMC. Prior to 1990, Ms. Katz had been reprimanded for alleged failures to properly carry out her responsibilities as Head Nurse in the Nursery. (Def.'s 56.1 ¶¶ 6-10.) She claims that these reprimands were unfair. (Pl.'s 56.1 ¶¶ 6-10.) In 1990, Ms. Katz and her union filed a grievance against BIMC regarding Ms. Katz's responsibilities as Head Nurse. The parties subsequently settled, allowing Ms. Katz to keep her title and attendant salary and benefits. (Def.'s 56.1 ¶¶ 22-25; Pl.'s 56.1 ¶¶ 22-25.) Ms. Katz could have done the same in 1994 or 1995. Moreover, Ms. Pantua filed a grievance after she was terminated (discriminatorily, according to plaintiff), and was reinstated by BIMC. (Katz Aff. ¶¶ 18-20 and Ex. 9.) A facifinder would have to conclude that a reasonable person in Ms. Katz's situation would have seen filing a grievance as a viable alternative to resigning.
A court may find a constructive discharge where the evidence shows that the employer deliberately sought to endanger the employee's health. Spence, 995 F.2d at 1156 (citing Meyer v. Brown Root Constr. Co., 661 F.2d 369, 371-72 (5th Cir. 1981)). However, a stress-related condition resulting from the employer's insistence on a high standard of performance does not constitute a constructive discharge, even if the employee chooses to resign as a result of the condition. Spence, 995 F.2d at 1156. This case is much closer to Spence, in which the employer's conduct resulted in the employee suffering a stress-related illness, id., than it is to Meyer, in which the employer transferred a pregnant employee to a new position requiring difficult manual labor. 661 F.2d at 371-72. The Court accepts for purposes of this motion that the situation in the Nursery caused Ms. Katz to suffer stress-related illnesses. However, Ms. Katz offers only unsubstantiated conjecture to support her argument that her supervisors intended to harm her health. Her evidence indicates, at most, that they knew that she was suffering stress and that stress was bad for her health. This is insufficient to establish a constructive discharge. See Spence, 995 F.2d at 1156-57 (finding no constructive discharge even though plaintiff told his supervisors that their actions had given him high blood pressure).
An employee is not constructively discharged because she does not like her assignments, receives unfair criticism, or is yelled at by supervisors. See Stetson v. NYNEX Service Co., 995 F.2d 355, 360 (2d Cir. 1993) (evidence of employee's dissatisfaction with work assignments, or disagreement with criticism of work quality, insufficient to establish constructive discharge); Spence, 995 F.2d at 1149-50, 1156-58 (no constructive discharge even though supervisors had "harangued" plaintiff while pounding on table and had "ranted and cursed" at plaintiff); see also Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir. 1985). Ms. Katz's evidence here does not amount to much more than that. The combination of the admissible evidence of alleged discriminatory conduct, the five months of leave prior to resignation, and the text of Ms. Katz's resignation letter does not provide a sufficient basis for a factfinder to conclude that Ms. Katz worked in an atmosphere so intolerable that a reasonable person in her circumstances would have felt compelled to resign.
Absent a constructive discharge, there is no evidence of an adverse employment action that would enable plaintiff to make out a prima facie case. "[T]here are no brightline rules" for determining what constitutes an adverse employment action. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). A court must examine the facts of each case to determine if the challenged conduct is "adverse." Id. "Not every unpleasant matter short of [discharge or demotion] creates a cause of action. . . ." Id. (internal quotations omitted; alteration in the original). Disciplinary measures do not constitute adverse employment actions unless they "affect ultimate employment decisions such as promotion, wages, or termination." Regis v. Metropolitan Jewish Geriatric Center, No 97-CV-0906 (ILG), 2000 WL 264336, at *8 (E.D.N.Y. Jan. 11, 2000); see also Irvine, 2000 WL 502863, at *6 (reprimand resulting in no further action was not sufficiently adverse). Ms. Katz offers no evidence that the disciplinary measures taken against her in 1994 affected her wages, any possible promotion, or any other "ultimate employment decision" by BIMC. Being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments, and being told to retire or work part time if she did not like the schedule also do not rise to the level of adverse employment actions; they do not affect any ultimate employment decisions. Since plaintiff cannot establish an adverse employment action, she does not raise a prima facie case of age discrimination. Accordingly, defendant is entitled to summary judgment dismissing plaintiff's age discrimination claim.
D. Retaliation
The prima facie case for retaliation, like the prima facie case for age discrimination, requires an adverse employment action. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000) (defining prima facie case for retaliation claims). Consequently, Ms. Katz cannot raise a prima facie case of retaliation for the same reason she cannot raise a prima facie case of age discrimination: even accepting plaintiff's evidence for purposes of this motion, she has not demonstrated an adverse employment action. Accordingly, defendant is entitled to summary judgment dismissing this claim as well.
IV. CONCLUSION
For the reasons set forth above, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of defendant and close the file in this action.
SO ORDERED.