Opinion
98-CV-4420 (ILG)
January 25, 2002
MEMORANDUM AND ORDER
SUMMARY
Plaintiff Gloria Woodcock ("Woodcock"), an American citizen of Panamanian origin, is a former employee of defendant Montefiore Medical Center ("Montefiore"). Upon her resignation, Woodcock filed this action alleging discrimination based on race and national origin. By Memorandum and Order dated March 11, 1999, this Court dismissed portions of plaintiffs First, Second, and Third Causes of Action and the Fourth Cause of Action in its entirety pursuant to Rules 12(b)(1), 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure. Familiarity with this decision will be presumed. Defendant now moves for summary judgment as to the remaining claims. Plaintiff cross-moves for reconsideration of the March 11, 1999 Order's dismissal of certain claims. For the reasons that follow, summary judgment is granted and reconsideration is denied.
BACKGROUND
I. The Underlying Facts
On July 1, 1989, Woodcock was hired by Montefiore as a Patient Care Coordinator ("PCC") for the Pediatric Unit of the hospital's Comprehensive Family Care Center ("CFCC") (See Woodcock Tr. at 43-44, 49-50.) For several years thereafter, Woodcock's normal working hours were from 8:00 a.m. to 4:30 p.m. (Id. at 236.) Woodcock's weekly shifts changed in 1995 when Montefiore expanded the CFCC's hours of operation. (Id. at 235-36.) To assist in implementing the schedule change, Woodcock's administrative supervisor, Jo-Ann Richardson, sought scheduling recommendations from Woodcock and the other two PCCs working in the clinic. (Id. at 243-45.) Woodcock met with her two co-workers, but apparently none of their scheduling suggestions were satisfactory to Richardson. (Id. at 245-46.) Instead, Richardson, Dr. Ellis Arnstein, the CFCC Medical Director, and other CFCC physicians devised the new schedule whereby Woodcock was required to work from 10:30 a.m. to 7:00 p.m., Monday through Friday. (Id. at 249; Deposition of Jo-Ann Richardson ("Richardson Tr.") at 50-51.) The other two PCCs were assigned to the evening shift one night per week. (See Woodcock Tr. at 242-43, 249.) According to Richardson, Woodcock was assigned to more evening shifts, despite her seniority, because there was a greater need in pediatrics at night and pediatrics was Woodcock's area of expertise. (See Richardson Tr. at 51-53; Woodcock Tr. at 49.)
Woodcock had been employed by Yeshiva University's Albert Einstein College of Medicine, Montefiore's teaching hospital, since 1974. (See Deposition of Gloria Woodcock ("Woodcock Tr.") at 42.)
Woodcock remained in her position as a PCC until she resigned on July 3, 1996. (See Woodcock Tr. at 178.) In her letter of resignation dated May 21, 1996, she stated the following:
I have enjoyed my association with Comprehensive Family Care Center for the past twenty two years. I have grown professionally and the cohesive working relationship which I have experienced with other departmental staff in addition to the family-like atmosphere we shared, is something I will carry with me for a very long time. It has been a pleasure caring for my patients, their children, grandchildren, and watching them develop over the years.
However, the mandated changes in my working conditions and the increase in my traveling time aggravates a pre-existing physical condition which makes it difficult for me to continue my association with CFCC. In addition, it has been and continues to be increasingly difficult for me to take my vacations appropriately due to staff shortage.
Therefore, I am resigning my position as the Patient Care Coordinator of Pediatrics. . . . Effective July 3, 1996.
(See Resignation Letter, attached to Affirmation of Eric B. Sigda ("Sigma Aff.") as Ex. 3.)
Woodcock was highly regarded at Montefiore. She received a Director's award because, according to Woodcock, she was "doing above and beyond" what was expected of her. (See Woodcock Tr. at 353-54.) In addition, Dr. Arnstein wrote Woodcock a complimentary reference letter, after her resignation, which stated that "the qualification scale doesn't go high enough above excellent where Ms. Woodcock should be rated." (See Deposition of Dr. Ellis Arnstein ("Arnstein Tr.") at 17, attached to Sigda Aff. as Ex. 10.)
II. The Procedural History
Despite the glowing assessment of her employment relationship with Montefiore. Woodcock filed a charge of discrimination directly with the New York State Division of Human Rights ("NYSDHR") on April 9, 1997, alleging that Montefiore discriminated against her on the basis of her national origin in violation of Title VII 42 U.S.C. § 2000e, et seq. and New York's Human Rights Law (N.Y. Exec. Law § 290. et seq.). (See NYSDHR Charge. attached to Reply Affirmation of Eric B. Sigda ("Sigda Reply Aff.") as Ex. 1.) That agency forwarded plaintiffs complaint to the Equal Employment Opportunity Commission ("EEC"), which actually investigated the claim and ultimately issued plaintiff a "Right to Sue" letter. (See Right to Sue Letter, attached to Compl.)
Woodcock then filed the present action, which, in addition to the charge of national origin discrimination alleged in her NYSDHR complaint, alleges discrimination based on her race and ethnicity in violation of Title VII, New York's Human Rights Law and 42 U.S.C. § 1981, and a claim for breach of contract. Regarding the discrimination complained of, plaintiff alleges that her former supervisor, Richardson, began to harass her in July 1995 "by making derogatory remarks about `people from the Island' and by speaking to [her] in a[n] unprofessional manner using many profanities." (See Compl. ¶ 7.) Woodcock claims that these alleged comments triggered a pre-existing asthmatic condition which was in remission, and aggravated a lymph edema (swelling of the ankles), thereby forcing her to resign. (Id. ¶¶ 10, 13.) She also alleges that defendant denied her approved vacation time and changed her work hours despite her seniority over the other PCCs. (Id. ¶ 12.)
On March 11, 1999, this Court issued an Order dismissing several of plaintiffs claims, including her race discrimination claims; her claims based on allegations of discriminatory conduct occurring before June 13, 1996; her New York State Human Rights Law claims; her Section 1981 claim based on national origin discrimination; and her breach of contract claim. (See Memorandum and Order dated Mar. 11, 1999 ("Mem. and Order")). Thereafter, the only claims remaining in the action was a Title VII claim based on national origin discrimination and a Section 1981 claim based on race discrimination.
Defendant now moves for summary judgment as to these remaining claims. Plaintiff opposes the motion and cross-moves for reconsideration of the dismissal of her Title VII claim based on race discrimination and the claims based on allegations of discriminatory conduct occurring prior to June 13, 1996.
In opposition to defendant's motion for summary judgment, Woodcock again defends the viability of her breach of contract claim. However, because Woodcock does not move for reconsideration of that claim under Rule 60(b), the Court declines to reconsider its previous dismissal of that claim.
DISCUSSION
I. Motion for ReconsiderationRule 60(b) of the Federal Rules of Civil Procedure permit the court to relieve a party from final judgment for five enumerated reasons or for "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). The granting of such relief is committed to the sound discretion of the district court and should be granted only upon a showing of exceptional circumstances bearing in mind the importance of finality of judgments and the interests of justice. Mendell in Behalf of Viacom Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd, 501 U.S. 115 (1991); Julio v. United States, No. 94-CV-5836, 1996 WL 68559, at *1 (E.D.N.Y. Feb. 6, 1996). "A postjudgment change in the law having retroactive application may, in special circumstances, constitute an extraordinary circumstance warranting vacation of a judgment."Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986).
A. Race Discrimination Claims
Woodcock argues that the Court erroneously dismissed her race discrimination claims for lack of jurisdiction. In support of this contention, Woodcock relies on the Second Circuit's holding in Francis v. City of N.Y., 235 F.3d 763 (2d Cir. 2000), which was decided after this Court entered its March 1999 Order. Woodcock's argument thatFrancis somehow requires this Court to reverse its prior dismissal is simply incorrect. In Francis, the Court modified its earlier decision inButts v. City of N.Y. Dep't of Hous. Pres. and Dev., 990 F.2d 1397 (2d Cir. 1993), which had referred in passing to the filing of an administrative charge in Title VII cases as a jurisdictional requirement, and clarified that the filing requirement was actually a precondition subject to waiver. Francis, 235 at 767-68. Perhaps, in anticipating that Title VII plaintiffs would attempt to have district courts reconsider prior dismissals made under Butts in light of its decision in Francis, the Francis Court specifically eliminated that possibility by stating that, while "[d]ecisions following Butts have occasionally repeated its reference to EEOC exhaustion requirements as `jurisdictional'; like Butts . . . th[o]se opinions had done so only in circumstances where the disposition was not affected by whether or not those requirements were jurisdictional in character." Id. at 768 n. 2. Shortly after Francis, the Second Circuit was faced with the precise issue it had anticipated in Francis, and which is now at issue before this Court. In Holtz v. Rockefeller Co., 258 F.3d 62 (2d Cir. 2001), the Court recognized that the district court had issued its decision before Francis and thus understandably viewed plaintiffs failure to exhaust as jurisdictional. However, the Court held that the distinction drawn by Francis had no impact on the appeal because the claims had properly been dismissed under Butts' reasonably related analysis. Id. at 82 n. 5.
Signficantly, while the law has now been made clear that Title VII's exhaustion requirement is a precondition that may be waived by either party, the defendant had objected to plaintiffs Title VII claim for failure to exhaust by moving to dismiss the claim under Rule 12(b) of the Federal Rules of Civil Procedure. Thus, the exhaustion requirement had not been waived in this case. See Francis, 235 F.3d at 768 (holding that defendants had waived the pre-condition by failing to oppose the claim on exhaustion grounds in their answer to the complaint, or by objecting at any time prior to entry of the judgment).
Notably, the Court in Francis felt no need to overturn its holding in Butts, because it found that "th[e] characterization [of Title VII's exhaustion requirements as jurisdictional] [citations omitted] played no part in our holding in Butts." Francis, 235 F.3d at 767-68.
Notwithstanding the Second Circuit's recent clarification, a Title VII plaintiff must still show that "the conduct complained of would fall "within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge' that was made." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (quoting Butts, 990 F.2d at 1402). This Court has already considered and rejected the argument that Woodcock's race-based discrimination claims are reasonably related to the allegations in the administrative charge. (See Mem. and Order at 5-7.) Woodcock's arguments on reconsideration do not compel this Court to change it's previous determination nor is there any basis under Rule 60(b) for the Court to do so.
Woodcock also argues that the Court's decision must be reversed because it mistakenly held that, under Butts, pre-EEOC charge allegations of discriminatory conduct could not be "reasonably related" to the allegations in the EEOC charge. While Francis clarifies that precharge conduct is subject to the reasonably related test articulated in Butts, see 235 F.3d at 266, the March 11, 1999 Order clearly held that plaintiffs race discrimination claims were not reasonably related to the allegations in the administrative charge regardless of when the alleged discrimination occurred. (See Mem. and Order at 5-7.)
B. Allegations of Discrimination Prior to June 13. 1996
Woodcock argues that the Court erroneously dismissed her discrimination claims for failure to raise them within Title VII's 300 day statutory period. She also argues that the Court should have applied the continuing violation doctrine to toll the time in her case. With respect to the continuing violation doctrine, the Court has already considered its applicability to this case and has determined that it does not apply. (Id. at 8-9.) Woodcock provides no compelling reason why this Court should reconsider it's prior holding.
Woodcock also argues that the Court erroneously dismissed her claims as time-barred and that the Court "resolved ambiguities" in her complaint in favor of the defendant. Specifically, she argues that the Court incorrectly assumed that her race-based allegations of discrimination occurred in July of 1995, and therefore dismissed them as time-barred, when her complaint states that she had been discriminated against "since July 1995," thus implying that the discriminatory conduct was ongoing. Woodcock has misread the Court's Order. The Court did not dismiss Woodcock's race-based discrimination claims as time-barred because it assumed that they only occurred in July of 1995. Rather, the Order dismissed all of Woodcock's claims of discrimination based on any allegations occurring prior to June 13, 1996 because those allegations had not been raised in her NYSDHR charge within 300 days after the alleged discriminatory conduct. 42 U.S.C. § 2000e-5(e). Thus, contrary to plaintiffs assertion, the Court did not resolve ambiguities in favor of the defendant. Having provided no other basis for reversing the Court's prior dismissal, the motion for reconsideration is denied.
II. Motion for Summary Judgment
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Grady v. Affiliated Cent. Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether the movant has met this burden, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion.Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citingUnited States v. Diebold. Inc., 369 U.S. 654, 655 (1962)). Although courts should be particularly cautious about granting summary judgment in employment discrimination cases when intent is at issue see Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994);Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp.2d 414, 425 (S.D.N.Y. 1998) "summary judgment may be appropriate even in the fact-intensive context of discrimination cases," Abdu-Brisson v. Delta Air Lines, Inc. 239 F.3d 456, 466 (2d Cir. 2001). Thus, to defeat a motion for summary judgment, "a plaintiff must provide more than conclusory allegations of discrimination." Schwapp v. Town of Avon. 118 F.3d 106, 119 (2d Cir. 1997).
A. Title VII Claim: National Origin Discrimination
The only viable claims that Woodcock may raise under Title VII must have arisen from conduct that occurred after June 13, 1996. (See Mem. and Order at 8.) However, Woodcock does not allege, nor does the record in this case indicate, that any of the alleged discrimination, including the derogatory remarks made by Richardson, the denial of pre-approved vacation time, being-forced to work five nights a week despite her seniority, and the denial of a transfer to another department, occurred after June 13, 1996. Moreover, Woodcock sent her letter of resignation twenty-two days before the June 13, 1996 cut-off date, thus further suggesting that none of the alleged conduct occurred after that date. Accordingly. summary judgment is granted as to plaintiffs Title VII claims.
B. Section 1981 Claim: Hostile Work Environment
Section 1981 states, in pertinent part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to make and enforce contracts . . ., and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." 42 U.S.C. § 1981(a). In analyzing claims under 42 U.S.C. § 1981, court's use the same standards as applied in Title VII cases. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). As in Title VII cases, Section 1981 provides a cause of action for race-based employment discrimination based on a hostile work environment. Id. at 69; Lopez, 831 F.2d at 1189. To prevail on a hostile work environment claim, a plaintiff is required to show "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Van Zant v. K.L.M. Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (quotation marks and citation omitted); accord Whidbee, 223 F.3d at 69;Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). A hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult, that is `sufficiently severe to alter the conditions of the victim's employment.'" Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "[A] `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.'" Whidbee, 223 F.3d at 69 (quoting Cruz, 202 F.3d at 570 (internal quotation marks omitted)). A "few isolated incidents of racial enmity," Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986), or a "mere utterance of an . . . epithet which engenders offensive feelings in an employee" is insufficient to establish a hostile work environment, Harris, 510 U.S. at 21 (internal quotation marks and citation omitted). Evaluating whether a work place was sufficiently severe or pervasive depends on the totality of the circumstances. Whidbee, 223 F.3d at 69.
Unlike Title VII, a plaintiff may bring claims under Section 1981 without first exhausting administrative remedies. Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1981).
Here, Woodcock's allegations do not amount to the severity or pervasiveness required to establish a hostile work environment and therefore summary judgment must be granted. Woodcock alleges that Richardson (who is African American) created a hostile environment by using profanity and commenting that Woodcock was "from the Islands"; interrupting Woodcock in midsentence; remarking that, while she would go to the houses of the other two PCCS and cook and wash their dishes, she would not go to Woodcock's house; and stating, "[w]e're going to put tight jeans on you and parade you through Spanish Harlem." (See Woodcock Tr. at 317; Compl. ¶ 7.) These isolated comments, while certainly improper and unprofessional, fall far short of the "steady barrage of opprobrious [racial] comments necessary" to establish a hostile work environment. Schwapp, 118 F.3d at 110; see Griffin v. Ambika Corp., 103 F. Supp.2d 297, 313 (S.D.N.Y. 2000) (defendants alleged use of the phrases "street person," "break up the gang" and "you people" were not "inherently racially offensive" even when directed at black employees "without greater specificity as to the context of their usage"); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 263 (E.D.N.Y. 1999) ("[Defendant] may have harassed, insulted and criticized [plaintiff], but Title VII does not make employers liable for being mean or petty. . . .").
In addition to these derogatory comments, Woodcock alleges that Richardson's denial of her vacation requests, change of her work hours, and denial of a work transfer also contributed to a hostile work environment. However, Woodcock fails to show that any of these actions were racially motivated and therefore they cannot support her hostile work environment claim. See Murray-Dahnir v. Loews Corp., No. 99-CV-9057, 1999 WL 639699, at *4 (S.D.N.Y. Aug. 23, 1999) (holding that non racial forms of hostility cannot support a hostile work environment claim) (citing Ortega v. N.Y.C. Off-Track Betting Corp., No. 97-CV-7582, 1999 WL 342353, at *4 (S.D.N.Y. May 27, 1999) (dismissing hostile work environment claim where facts alleged failed to support claim that defendant's actions "created atmosphere that was abusive or hostile because of plaintiffs race, ethnicity or sex — i.e., that the alleged hostile environment was created by race-related, ethnicity-related, or sex-related conduct on the part of the defendant").
It is apparent from Woodcock's own deposition testimony that, in addition to having nothing to do with Woodcock's race, Richardson had nothing to do with Woodcock not being transferred out of the clinic. Woodcock testified that she did not know whether Richardson had anything to do with the transfer decision. (See Woodcock Tr. 222-23, 457.) She also later admitted that, although she needed one of her supervisor's signatures in order to apply for a transfer, she was able to obtain Ms. Edwards' signature because Richardson was not present at the time. (Id.)
In addition, Woodcock cannot establish that Richardson's alleged discriminatory conduct may be imputed to Montefiore. See, e.g., Whidbee, 223 F.3d at 72 (a plaintiff pursuing a hostile work environment claim [under Section 1981] must also establish a basis on which to hold an employer liable for the conduct of its employees); O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 387 (S.D.N.Y. 2001). When no adverse employment action has been taken, an employer may avoid liability by demonstrating that it (a) exercised reasonable care to prevent and promptly correct any harassment by such a supervisor, and (2) the employee unreasonably failed to avail [her]self of any corrective or preventative opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) andFaragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Woodcock's alleged constructive discharge, see infra, does not constitute a "tangible employment action," for purposes of employer liability. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999).
Although Ellerth and Faragher dealt with claims of sexual harassment, the Second Circuit has applied the affirmative defense first articulated in those cases to race-based discrimination claims. See, e.g., Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 442 (2d Cir. 1999).
Echoing the Supreme Court in Ellerth and Faragher, the Second Circuit has stated "[a]lthough not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of th[e] defense." Caridad, 191 F.3d at 295 (citation omitted). It is undisputed that Montefiore had a comprehensive anti-harassment policy in place at the time of the alleged harassment. That policy directed any employee who felt she was being harassed to report the harassing conduct to the employee's supervisor, the office of Employee Relations, or the Director of Human Resources. (See Employee Handbook, attached to Sigda Aff. as Ex. 8.) The existence of Montefiore's anti-harassment policy is sufficient in this case to satisfy the first prong of the affirmative defense to employer liability. See, e.g., DeWitt v. Lieberman, 48 F. Supp.2d 280, 291 (S.D.N.Y. 1999) (holding that existence of anti-harassment policy at time harassment occurred satisfied first element of affirmative defense); Donovan v. Big Supermarkets, Inc., No. 98-CV-2842, 1999 WL 615100, at *6 (S.D.N.Y. Aug. 12, 1999) (same); Fierro v. Saks Fifth Ave., 13 F. Supp.2d 481, 491 (S.D.N.Y. 1998) (same). As for the second prong of the affirmative defense, the facts reveal that Woodcock never complained to anyone at Montefiore specifically about the alleged discrimination. Thus, Woodcock cannot show that she reasonable availed herself of Montefiore's complaint procedures and thus no liability may be imputed to Montefiore.
At her deposition, Woodcock testified to the following:
Q: In this conversation which took place in either March or April of 1996, did you tell Anita Wilenken [a supervisor] that you felt you were being discriminated against?
A: You asked me that. No.
(See Woodcock Tr. at 88.)
She also testified that she told a co-worker that she believed Richardson treated her differently from the other PCCS, but she never stated that Richardson discriminated against her because of her race or national origin. (Id. at 109).
Woodcock also claims that Richardson "singled her out," and treated her differently from other white employees. (Id. at 353, 447-48.) As examples of such treatment, Woodcock points to the fact that Richardson allegedly yelled at her, cut her off, and did not listen to her during meetings with the other PCCs. (Id. at 447-48.) These examples however do not show that Woodcock was treated differently because of her race and her conclusion to the contrary is wholly unsupported by the evidence in this case. See Schwapp, 118 F.3d at 119 (plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment).
III. Constructive Discharge Claim
In order to establish a claim for constructive discharge, an employee must show that the "employer rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Lopez, 831 F.2d at 1188. "In determining whether or not a constructive discharge has taken place, `the trier of fact must be satisfied that the . . . working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). Here, no reasonable trier of fact would conclude that Woodcock's working environment was "so intolerable" that she was constructively discharged.
The facts make clear that the alleged incidents, including use of unprofessional and profane language, denial of vacation requests, change in shift schedule, and denial of job transfer were unrelated incidents and which, for the most part' occurred several months before Woodcock eventually resigned in June of 1996. See, e.g., Alleyne v. Four Seasons Hotel, No. 99-CV-3432, 2001 WL 135770, at *14 (S.D.N.Y. Feb. 15, 2001) (discrete incidents occurring well in the past will not create issue of fact as to whether employee was forced to resign); Wagner v. Sanders Associates, Inc., 638 F. Supp. 742, 745 (C.D. Cal. 1986) ("The undisputed fact that he remained in his new position for several months before resigning goes a long way toward destroying his assertion that the transfer created an intolerable situation."). Woodcock also does not show that any of these alleged incidents, whether regarded separately or cumulatively, were so intolerable that any reasonable person would have resigned. See, e.g., Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993) (employee's dissatisfaction with assignments, employee's perception of undue criticism, excessive monitoring, difficult or unpleasant conditions, does not support constructive discharge claim). Moreover, while Woodcock claims that the totality of these events aggravated a pre-existing health condition causing her to resign, she has failed to show that the various acts, except for perhaps the derogatory comments, had anything to do with her race.
Woodcock also argues in opposition to the motion that she was forced to resign after complaining of the discrimination to her union representative, Ruth Gee, Dr. Arnstein, and her fellow colleagues. However, this assertion is belied by the very deposition transcript pages cited in support of her claim. Those pages reveal that Woodcock never in fact complained to these individuals of discrimination based on her race. (See Woodcock Tr. at 133-34, 96, 308, 130, 108, 135.)
Woodcock complains that her asthma and lymph edema became worse while working with Richardson, and because nothing was done by Montefiore to remedy the situation despite her complaints, she was forced to leave. Based on her deposition testimony however, it is apparent that Woodcock's main complaint was the fact that her work hours were changed which caused her to have to take public transportation.
Q: And when did that condition change?
A: It got worse. It got aggravated and got worse when I was standing for the bus when the shift changed around. I had to take public transportation to go to work, so it got worse then.
(See Woodcock Tr. at 383-84.)
Indeed, Woodcock cannot show that Montefiore acted deliberately to make her resign. Lopez, 831 F.2d at 1184; Stetson, 995 F.2d at 361. To the contrary, Woodcock was highly regarded at Montefiore, as evidenced by the fact that she received the Director's award for "doing above and beyond" what was expected of her. She also received a highly flattering reference letter upon her resignation, in which Dr. Arnstein referred to Woodcock as an employee who's excellence went beyond what any qualifications scale could measure. Perhaps the most telling evidence however is Woodcock's own resignation letter, in which she states how much she enjoyed working at Montefiore, and grew both professionally and personally from her twenty-two years of service. These facts demonstrate that, contrary to Woodcock's allegations, Montefiore was not deliberately attempting to force her to quit her employment.
Woodcock alleges a fleeting claim of retaliation based on her national origin; however, she presents no evidence whatsoever to show that Montefiore retaliated against her. To establish aprimafacie case of retaliation, Woodcock must show that: (1) she engaged in a statutorily protected activity; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took an adverse employment action against the plaintiff; and (iv) a causal connection exists between the plaintiffs protected activity and the adverse employment action.Simmons v. N.Y.C. Health Hosp. Corp., No. 99-CV-3 181, 2001 WL 483675, at *7 (E.D.N Y Mar. 30, 2001) (citing Cosgrove v. Sears Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993)). While complaints to management of discrimination may be deemed a protected activity, the record is clear in this case that Woodcock never specifically complained to anyone at Montefiore that she believed she was being discriminated against based on her national origin. See Ramos v. City of N.Y., No. 96-CV-3783, 1997 WL 410493, at *3 (S.D.N.Y. Jul. 22, 1997) (plaintiff did not engage in "protected activity" when he complained to employer that he was being treated unfairly, because he did not state that such treatment was caused by his being a member of a protected class). Moreover, Woodcock's filing of her administrative charge was not a protected activity for purposes of her retaliation claim because she resigned prior to filing that charge.See, e.g., Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 249 (S.D.N.Y. 2001) (holding that denial of raise which preceded filing of EEOC charge could not be retaliatory action). Thus, because Woodcock cannot show that she engaged in a protected activity, her retaliation claim must fail.
CONCLUSION
For the foregoing reasons, the motion for reconsideration is denied and summary judgment is granted on the remaining claims.SO ORDERED: