MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This action arises out of Plaintiff Debra Bader’s (“Plaintiff’) former employment
II. BACKGROUND
Plaintiff is a New York resident and was employed at the New Hartford, New York, facility of SMC, a division of Precision Castparts Corporation (“PCC”), during the period relevant to this action. Compl. ¶ 2; Dkt. Nos. 22-11 (“SMF”) ¶¶3-4, 6; 38 (“SMF Response”) ¶¶ 3-4, 6. From 1978 to the relevant period, she worked in SMC’s Inspection Department, which ensures that SMC’s metal alloys are manufactured to specification, errors are captured, and appropriate documentation is maintained about the products. SMF ¶¶ 12-13, 37-38; SMF Resp. ¶¶ 12-13, 37-38. While Plaintiff was an SMC employee, she was a member of the International Association of Machinists and Aerospace Workers and Local Lodge 2310 (the “Union”), which had a collective bargaining agreement (“CBA”) with SMC. SMF ¶¶ 5-6, 9; SMF Resp. ¶¶ 5-6, 9. Any discipline imposed by SMC on Union workers was subject to CBA requirements. SMF ¶ 25; SMF Resp. ¶25. Discipline took several forms, including verbal counseling, written warning, suspension, and termination. SMF ¶ 24; SMF Resp. ¶ 24. Union workers could file grievances challenging discipline. SMF ¶ 26; SMF Resp. ¶ 26.
SMC has a database of employee work records to track employee work histories. SMF ¶¶ 28-29; SMF Resp. ¶¶ 28-29. Each employee work record lists categories of reviews that may have been presented to an employee, e.g., commendation, training, coaching, reminder, verbal counsel, and written warning. SMF ¶ 30; SMF Resp. ¶ 30. Employee work records were issued for Plaintiff during her employment at SMC, including for discipline. SMF ¶ 40; SMF Resp. ¶ 40. These included: a reminder on February 19, 2008; a verbal counsel on March 16, 2009; two written warnings on February 17, 2010; two written warnings accompanied by a three-day suspension on March 1, 2010; and a written warning on April 13, 2010. SMF ¶¶ 46-51; SMF Resp. ¶¶ 46-51. The Union filed grievances relating to the two written warnings issued on February 17, 2010, one of the written warnings issued on March 1, 2010, and the written warning issued on April 13, 2010. SMF ¶¶ 64-66; SMF Resp. ¶¶ 64-66. SMC also issued discipline to five male employees of the Inspection Department in 2010, including written warnings, suspensions, demotion, and “Last Chance Agreements” (“LCAs”). SMF ¶¶ 71-77; SMF Resp. ¶¶ 71-77.
SMC maintains an anti-harassment policy, and its parent company, PCC, maintains a “Code of Business Conduct and Ethics,” which includes a nondiscrimination statement. SMF ¶¶ 78-79, 81; SMF Resp. ¶¶ 78-79, 81. Plaintiff received a copy of the PCC Code on February 13, 2007. SMF ¶¶ 79-80; SMF Resp. ¶¶ 79-80. During the relevant period, PCC employed a service called “EthicsPoint,” which enabled SMC employees to complain, via telephone or the Internet, about potential violations of the PCC Code, other company policies, or the law. SMF ¶¶ 83-84; SMF Resp. ¶¶ 83-84. Plaintiff used this service on July 9, 2009, to file a complaint. SMF ¶ 85; SMF Resp. ¶85. Sometime in the next few weeks, Plaintiff received a telephone call from SMC’s Division Director of Organizational Development Dan Dohar (“Dohar”), who spoke to her for approximately half an hour. SMF ¶¶ 86, 88; SMF Resp. ¶¶ 86, 88. On September 20, 2009, Plaintiff received a response through the EthicsPoint system stating, among other things, that neither her concerns nor interviews conducted as part of a review of her concerns indicated harassment, discrimination, or other violation of company policies, or that she was being targeted for discipline or termination. SMF ¶ 89; SMF Resp. ¶ 89.
On April 22, 2010, Plaintiff, or a former SMC employee on her behalf, filed another EthicsPoint report. SMF ¶ 91; SMF Resp. ¶ 91. SMC’s Vice President for Human Resources responded to Plaintiffs report on April 27, 2010, noting that the Union had already filed grievances on Plaintiffs behalf regarding her concerns. SMF ¶¶ 92-93; SMF Resp. ¶¶ 92-93. On April 29, 2010, Plaintiff submitted medical documentation that she could not return to work until further notice due to carpal tunnel syndrome in her left wrist. SMF ¶ 62; SMF Resp. ¶ 62. On June 21, 2010, the Union advised SMC that it would not proceed to arbitration on Plaintiffs grievances because she was on medical leave of absence. SMF ¶ 68; SMF Resp. ¶ 68.
Plaintiff then filed a complaint with the New York State Division of Human Rights (“Division”) on December 14, 2010. SMF ¶ 94; SMF Resp. ¶ 94; see also Dkt. No. 35-8 (“Division Complaint”). The Division Complaint was dismissed for administrative convenience on February 1, 2011, and the U.S. Equal Employment Opportunity Commission (“EEOC”) issued Plaintiff a Notice of Right to Sue on April 4, 2011. SMF ¶ 95; SMF Resp. ¶95. Plaintiff commenced an action in New York Supreme Court, Oneida County, on June 22, 2011, which Defendants removed to the-Court pursuant to 28 U.S.C. § 1441 on July 7, 2011. See Dkt. No. 1. Plaintiff filed her Complaint with the Court on September 9, 2011. Thereafter, on October 18, 2011, Plaintiff sent SMC a letter declaring her “intention to retire from employment at SMC-New Hartford; effective October 28, 2011.” SMF ¶ 69; SMF Resp. ¶69. SMC sent a confirmatory letter, dated October 24, 2011, which Plaintiff countersigned. SMF ¶ 70; SMF Resp. ¶ 70.
A. Legal Standard
Pursuant to Federal Rule of Civil Procedure 15(a)(1) a party may, within certain defined time periods, amend a pleading as a matter of course. If amendment as a matter of course is not permitted, a pleading may be amended only if the opposing party consents in writing or the court grants leave. See Fed.R.Civ.P. 15(a)(2). Generally, a court “should freely give leave when justice so requires.” Id. However, Federal Rule of Civil Procedure 16(b) requires the issuance of scheduling orders that “must limit the time to ... amend the pleadings.” Such scheduling orders “may be modified only for good cause.” Id. Thus, when a motion to amend is made after a scheduling order’s deadline for doing so has expired, “the lenient standard under Rule 15(a) ... must be balanced against ... Rule 16(b).” Grochowski v. Phoenix Constr.,
B. Discussion
On December 1, 2011, the honorable David E. Peebles, U.S. Magistrate Judge, entered an Order setting a March 1, 2012 deadline for pleading amendments and an August 31, 2012 deadline for the completion of discovery. See Dkt. No. 13 (“Scheduling Order”). The discovery deadline was then extended until December 31, 2012; the pleading-amendment deadline was never extended. See Text Order of November 16, 2012. See generally Dkt.
Plaintiff filed her Motion to Amend on April 9, 2013. She seeks to add new allegations regarding the protected activity for which she was allegedly retaliated against by Defendants. See Proposed Am. Compl. ¶¶ 9, 11, 52, 61. Specifically, she seeks to add allegations that she was retaliated against after she: (1) complained to the Union about her supervisor Brian Allen’s (“Allen”) “sexually charged, offensive, and crude remarks”; and (2) was named as witness and deposed in her former coworker Linda DiFillippo’s (“DiFillippo”) discrimination lawsuit against SMC (“the DiFillippo Action”). Id. ¶¶ 9, 11. In support of the Motion to Amend, Plaintiffs attorney submits an affidavit in which she argues that: (1) Defendants will not be prejudiced by the amendments; (2) the amendments will not cause any delay; (3) the Motion to Amend is not brought in bad faith; and (4) the amendments are meritorious. Dkt. No. 37 (“Bosman Declaration”) ¶ 14.
Plaintiff waited until more than a year after the expiration of the pleading-amendment deadline, and more than thee months after the discovery period closed, to bring the Motion to Amend. She has offered no explanation for her delay. See generally id. All of the facts upon which the new allegations are premised were known to Plaintiff well before she filed the Motion to Amend. Plaintiffs counsel was undoubtedly aware by January 11, 2010, that Plaintiff had been named as a witness in the DiFillippo Action, as she herself did
Yet despite being aware, even before she commenced this action, of the protected activity she now seeks to add to her Complaint, Plaintiff failed to move to amend in a timely fashion. She has offered no explanation for this delay; she has not, for example, asserted that she did not learn she was retaliated against for this protected activity until after the amendment and discovery periods expired. See generally Bosman Deck Plaintiff has not shown good cause for her delay. The Motion to Amend is therefore denied.
IY. MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Federal Rule of Civil Procedure 56 instructs a court to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Although “[fjactual disputes that are irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc.,
B. Gender and Age Discrimination
Plaintiff brings ADEA and HRL claims for age-based disparate treatment and Title VII and HRL claims for gender-based disparate treatment. See Compl. ¶¶ 30-32, 39-41, 48-50, 57-59. All of these claims proceed according to the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green,
To make out a prima facie case of disparate treatment, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. County of Rockland,
1. Prima Facie Case
Defendants do not dispute that Plaintiff is a member of a protected class by virtue of her age and gender or that she was qualified for her position. However, they argue that she cannot make out a prima facie case of discrimination, because: (1) she was not subjected to any adverse employment action; and (2) even if she was subject to adverse employment actions, they did not take place in circumstances giving rise to an inference of discrimination. See Mem. at 9-12; Reply at 19-21.
a. Adverse Employment Action
Only employment actions that are “adverse” are actionable under the ADEA, Title VII, and the HRL. Terry v. Ashcroft,
Plaintiff advances the following putatively adverse employment actions: (1) a January 2007 written warning; (2) a February 2007 written warning; (3) a February 2008 “Reminder”; (4) a March 2009 verbal counsel; (5) a June 2009 written warning; (6) two February 2010 written warnings; (7) two March 2010 written warnings; (8) a three-day suspension in March 2010; (9) a ten-day suspension in April 2010; (10) a Last Chance Agreement proposed on April 15, 2010; (11) a demotion and written warning on April 30, 2010; and (12) constructive discharge.
i. Pre-2010 Discipline
Verbal and written warnings generally do not constitute adverse employment actions unless they lead to more substantial employment actions that are adverse. See Tepperwien v. Entergy Nuclear Operations, Inc.,
In this case, all pre-2010 impositions of discipline were counselings or warnings and none served as the basis for future adverse employment actions. While Plaintiff alleges that each disciplinary act was “part of a progressive discipline system” that “allowed Defendants to increase the severity of the discipline,” the deposition passage she cites for this proposition states that SMC does not have a progressive discipline system. See Resp. at 9; Dkt. No. 28 (“Dabbs Deposition”) at 28. As discussed infra, Plaintiffs suspensions, demotion, and proposed LCA were premised on her 2010 written warnings; Plaintiff has offered no evidence that any of these adverse employment actions were also based on her pre-2010 discipline. Therefore, the pre-2010 disciplinary actions do not constitute adverse employment actions.
ii. 2010 Suspensions
Defendants argue that Plaintiffs three-and ten-day suspensions do not constitute adverse employment actions because they were merely the “reasonable application of pre-existing disciplinary policies.” Mem. at 10. As Defendants note, the Second Circuit has indicated that, at least with respect to certain kinds of personnel actions, no adverse employment action occurs “where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Joseph v. Leavitt,
Second, even if the “reasonable application of a preexisting disciplinary policy” standard applied to Plaintiffs unpaid suspensions, Defendants have not demonstrated that Plaintiff was disciplined pursuant to a preexisting disciplinary policy. Defendants state that Plaintiff received her first suspension because she had received three written warnings. See Dkt. No. 22-9 at 30-31 (“First Suspension Notice”); see Dkt. No. 22-7 (“Farley Declaration”) ¶35; Resp. at 5. But they point to no preexisting policy requiring or contemplating a suspension after three written warnings. See generally Mem.; Reply. Nor do Defendants point to any preexisting policy requiring the imposition of the warnings upon which the suspension was based; at most, Defendants have demonstrated that they imposed a range of discipline on some of Plaintiffs coworkers for somewhat similar offenses and that some of the conduct for which Plaintiff was disciplined became a focus of SMC’s quality-control efforts. See Reply at 18-19.
As to the ten-day suspension, Defendants state merely that “[t]he Company decided it would suspend [Plaintiff]” and that the ten-day period was chosen because of “the number of disciplinary issues involving Plaintiff.” Mem. at 5. Again, Defendants point to no preexisting disciplinary policy underlying their decisions. While the suspension notice states that Plaintiff was suspended per Article 9.01 of the CBA, see Dkt. No. 22-9 at 34-35 (“Second Suspension Notice”), that CBA provision merely lays out disciplinary investigation and hearing procedures as well as a general “just cause” discipline standard; it does not require or contemplate the suspension of an employee for five written warnings or touch upon the underlying conduct for which Plaintiff was disciplined. See CBA Article 9.01; cf. CBA Article 9.05 (mandating a three-day suspension after two written warnings for absences); Mugavero,
Finally, and most significantly, even if Plaintiff was disciplined pursuant to a preexisting disciplinary policy, Defendants have not demonstrated that the application of that policy was reasonable. Under Joseph and Brown, discipline applied discriminatorily is applied unreasonably. See Joseph,
iii.February and March 2010 Warnings
Plaintiffs three-and ten-day suspensions in 2010 were premised on the four written warnings she received in February and March 2010. See First Suspension Notice; Second Suspension Notice. Thus, because the suspensions were adverse, the warnings were as well. See Aiello v. Stamford Hosp., No. 9-CV-1161,
iv.April 30, 2010 Warning, Demotion, and LCA Proposal
Plaintiff argues that Defendants’ LCA proposal, as well as a warning and accompanying demotion out of the Inspection Department on April 30, 2010, constitute adverse actions. See Resp. at 8-10. But Plaintiff never signed the LCA and it therefore never went into effect. The LCA thus never changed the terms and conditions of Plaintiffs employment and cannot constitute an adverse employment action. See Dkt. No. 35-3 at 41-42 (“Proposed LCA”).
v.Constructive Discharge
However, the combination of the LCA proposal, uneffected demotion, other discipline, and a hostile work environment do give rise to a viable claim of constructive discharge. Constructive discharge occurs where an “employer, rather than discharging [an employee] directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily.” Terry,
Constructive discharge claims are often premised on the same type of non-discrete conduct underlying a hostile work environment claim, although the standard for constructive discharge is higher. Mandel v. Champion Int’l Corp.,
A demotion, particularly one that is accompanied by a significant loss of salary, prestige or responsibilities, or is otherwise “humiliating,” may also, on its own, give rise to a constructive discharge claim. Pa. State Police v. Suders,
An employee is also constructively discharged where she resigns in the face of inevitable termination. See Bragg v. Navistar Int’l Transp. Corp.,
Here, Plaintiff has offered sufficient evidence that her harassment and the prospect of inevitable demotion and termination amounted to a constructive discharge. As discussed infra, Plaintiff has offered evidence of her frequent exposure to a variety of misogynist comments, conduct, drawings, and writings. Moreover, she has offered evidence that her supervisors were repeatedly made aware of this conduct, took no remedial action, and even expressed their approval of the conduct. A reasonable factfinder could determine from Defendants’ knowledge and response that, rather than being merely negligent, they intentionally permitted and encouraged the hostile work environment to which Plaintiff was subjected.
Plaintiffs reasonable perception that she would inevitably be terminated were she to sign the LCA and return to work also gives rise to a constructive discharge claim. As discussed infra, Plaintiff has offered sufficient evidence from which a factfinder could conclude that, in the two months prior to Defendants’ LCA proffer, Plaintiff was given multiple discriminatory
The combination of the permitted and encouraged hostile work environment, pay- and prestige-reducing demotion, and near-inevitable termination are enough for a reasonable factfinder to conclude that Plaintiff was constructively discharged. Cf. id. at 90. (“Certain factors, standing alone are legally insufficient to support constructive discharge. But the effect of a number of adverse conditions in the workplace is cumulative.” (citations omitted)).
b. Inference of Discrimination
Defendants assert that Plaintiff has not demonstrated circumstances giving rise to an inference of discrimination. See Mem. at 11-12. “[T]he question of whether the plaintiff has met h[er] prima facie burden of demonstrating an inference of discrimination is often indistinguishable from the question of whether the
2. Articulated Non-Discriminatory Reason
Defendants have proffered the same non-diseriminatory reason for each of the adverse actions at issue: Plaintiff was disciplined for performance and conduct issues. See Mem. at 11-12, 15-16. The burden therefore shifts to Plaintiff to demonstrate that these reasons were pretext for discrimination.
S. Pretext
a. February 17, 2010, Insubordination Warning
Plaintiff received a February 17, 2010, warning for verbally abusing a supervisor, Robert Wallace (“Wallace”), and making him feel uncomfortable. Dkt. No. 35-3 at 23 (“February Insubordination Warning”). Plaintiff has offered evidence that a male employee repeatedly cursed, screamed, and threatened to kill this same supervisor and received no discipline. See Geddes Deck ¶¶ 19-21; Bader Deck ¶ 39. The failure to discipline this male employee for far more grievous verbal abuse is strong evidence of pretext. See Ruiz,
b. February 17, 2010, Internal-Escape Warning
Plaintiff received another February 17, 2010, warning for permitting an internal escape — an inspector’s improper approval of an inadequate product that is discovered and remedied at SMC’s facility before it is sent to the customer. See Dkt. No. 35-3 at 25 (“February Escape Warning”); Mem. at 4 n. 1. Plaintiff alleges that the product was actually adequate but she mistakenly marked it as inadequate. Bad-er Decl. ¶ 45. The warning notice appears to support her contention. See Feb. 17 Escape Warning. Plaintiff alleges that such typo-only internal escapes are common and were not met with warnings or discipline of any kind. Bader Decl. ¶¶ 41-42. While Plaintiff has not specifically identified any male employees who committed such typo-only internal escapes and were not punished, a factfinder could reasonably infer that some of the hundreds of unpunished internal escapes identified by Plaintiffs coworker Michael Geddes were typo-only. See Geddes Decl. ¶¶ 32-33. While Defendants have offered evidence that they disciplined other employees for internal escapes, they have not shown that any of these were “typo,” rather than “actual,” internal escapes. See Mem. at 14-15; Dkt. No. 22-9, Exs. O-V. Defendants’ discipline of Plaintiff in contravention of their standard practice is evidence of pretext. See Gallo,
c. March 1, 2010, IRR Warning
Plaintiff received a March 1, 2010, warning for failing to complete a required “IRR” form that was to accompany shipped product. Dkt. No. 35-3 at 27 (“March IRR Warning”). Plaintiff alleges that Wallace explicitly told her to ship the product without the IRR form. Bader Decl. ¶ 44. Wallace and other managers then disciplined Plaintiff for her failure to include the form. See March IRR Warning; Bader Decl. ¶ 44. Again, a reasonable factfinder who credited Plaintiffs version over Defendants’ would be all but compelled to find that this discipline was pretextual: supervisors generally do not discipline employees for following orders. Moreover, Plaintiff asserts that Wallace, a male, received no discipline for instructing her to ship the product without the IRR form. See Bader Decl. ¶ 44. Defendants’ failure to discipline Wallace for his related yet more grievous misconduct is evidence of pretext. See Ruiz,
Plaintiff received another March 1, 2010, warning for an actual, rather than a merely typographical, internal escape. See First Suspension Notice. Plaintiff acknowledges that she did permit an internal escape and that this was a serious error. Bader Deel. ¶45. Moreover, Defendants offer evidence of their increased focus on internal escapes and their concomitant meting out of discipline. See Mem. at 14-15; Dabs Deck ¶¶ 13-17. Thus, Plaintiffs conduct was an objectively reasonable basis for imposing discipline.
Nevertheless, Plaintiff has presented sufficient evidence that this warning was pretextual because it resulted from a discriminatory effort to scrutinize her work and thereby find a pretextual reason to discipline her. The male inspector who discovered the internal escape, Sefcheck, relayed his discovery of Plain-. tiffs mistake to other employees by announcing, with visible delight, “I got her. I stuck it in her ass. I got her for the boys. She’ll be gone.” Geddes Deck ¶ 35. A reasonable factfinder could determine from Sefcheck’s sexual and gender-animus-evincing language that he had discriminatorily scrutinized Plaintiffs work so as to cause her termination. Cf. Staub v. Proctor Hosp., — U.S. -,
e. April IS, 2010, Warning
Plaintiff received a fifth 2010 written warning for her failure to follow a supervisor’s instructions regarding the order of tasks she was to perform. See Dkt. No. 35-3 at 32 (“April 13 Warning”). Plaintiff argues that her supervisor, Andy Winsemius (“Winsemius”), gave her confusing directions and management failed to credit her version of the directions she received over her “young and inexperienced male” supervisor’s version. Bader Decl. ¶¶ 52-53. Management’s failure to credit Plaintiffs account over Winsemius’s is not evidence of pretext, especially because Plaintiff has not alleged that male employees’ version of events were usually credited over their supervisors’. Plaintiff has therefore failed to create a triable issue of fact on whether this warning was pretextual.
f April SO, 2010, Warning
On April 30, 2010, Plaintiff was given a warning for not taking a sufficient number of measurements of an ingot and her resulting failure to report that the ingot’s minimum diameter at its tapered bottom was undersized. See Demotion Notice. Plaintiff asserts that it is impossible to measure the tapered part of ingots because SMC does not have a tool with which to do so. See Bader Dep. at 70,127. Plaintiff specifically states that a “pi tape,” the tool she apparently assumes Winsemius used to measure the taper, cannot be used for that purpose, and that pi tape manufacturers have explicitly stated this in their manuals. Bader Decl. ¶ 64. She further alleges that the diameter of tapers was never measured in her thirty-two years at SMC. Id. at 129. Defendants offer no evidence to the contrary. Defendants’ substantial departure from SMC practice in taking and relying upon the measurements underlying this warning is strong evidence of pretext. See Gallo,
g. Suspensions, Demotion, and Constructive Discharge
Plaintiffs suspensions, demotion, and LCA Proffer were premised on some or all of the six warnings she received in February, March, and April 2013. See First Suspension Notice (noting that Plaintiff was to receive a three-day suspension for her third written warning); Second Suspension Notice; Mem. at 10 (noting that Plaintiffs ten-day suspension was issued because of her prior written warnings); Demotion Notice (noting that Plaintiffs demotion was based on Article 9, Section 5 of the CBA, which provides that disciplinary demotions will only be used in the cases of “repeated poor performance”); Proposed LCA (noting that Plaintiffs “latest infraction” warranted termination). Because there is sufficient evidence upon which to find that five of these six warnings were pretextual, there is sufficient evidence to find that the suspensions and demotion were pretextual. With respect to Plaintiffs constructive discharge claim, there is therefore sufficient evidence to find that, in the months before she ceased working, she was repeatedly warned, demoted, and suspended for pretextual reasons.
A Discriminatory Animus
Defendants argue that, even if their proffered explanations for Plaintiffs discipline were pretextual, Plaintiff has not shown that they were pretext for discrimination. See Mem. at 15-17. But a finding of pretext may, on its own, be enough to support a finding of discrimina
Plaintiffs evidence of age-based animus is nonexistent. While she makes general allegations that “younger” male employees were treated more favorably than she was, she does not provide the ages (or age ranges) of any specific comparator. See generally Bader Decl. Nor has she pointed
C. Retaliation
To make out a retaliation claim under Title VII, ADEA, and the HRL, a plaintiff must show that: (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action. See Rivera v. Rochester Genesee Reg’l Transp. Auth.,
1. Protected Activity
An employee engages in protected activity when she complains about or otherwise opposes conduct that she reasonably believes constitutes forbidden discrimination or retaliation. See Sumner v. U.S. Postal Serv.,
Additionally, a plaintiff bringing an ADEA or Title VII claim must have exhausted her administrative remedies by setting forth her claims in a complaint with the EEOC or a qualifying state anti-discrimination agency.
A similar requirement applies to claims or theories that a plaintiff attempts to raise on summary judgment that were not raised in her court complaint. Certainly, a complaint need not include every fact upon which recovery is subsequently premised. See Boakye-Yiadom v. Laria, No. 09 CV 622,
Plaintiff contends that she engaged in protected activity when she: (1) complained in 2007, both directly and through the Union, to management regarding harassment by supervisor Brian Allen (“Allen”); (2) repeatedly complained to management about a gender-based hostile work environment generally; (3) filed EthicsPoint reports on July 9, 2009, and April 22, 2010; and (4) was named as a witness and subsequently deposed in the DiFillippo Action. Resp. at 5. Defendants offer some combination of three arguments with respect to each: (1) Plaintiffs complaints or other conduct do not constitute protected activity; (2) Plaintiff did not exhaust her administrative remedies; and (3) Plaintiff failed to allege this protected activity in her Complaint.
a. Allen Complaints
Defendants argue that Plaintiff failed to exhaust her administrative remedies with respect to the harassment complaints she made regarding Allen in 2007. SeeMem. at 18-19. But Plaintiffs Division Complaint states that, in approximately 2007, she began to be subjected to a hostile work environment and retaliated against, and that such harassment included members of management “demean[ing]” and “yelling” at her. Div. Compl. ¶ 1. She also alleges that, on other occasions, she complained both directly to SMC and through her Union about her treatment by management. See id. ¶¶ 2, 6, 7, 9. Plaintiff now seeks to base her retaliation claim on, inter alia, complaints she made to SMC, both through her union and directly to management, about Allen making “crude jokes” about her, her body, and her relationship with her husband, and his “scream[ing] and yell[ing] at her.” Bader Deck ¶¶ 7-10 (emphasis added). An administrative investigation prompted by the Division Complaint would reasonably be expected to encompass retaliation for Plaintiffs complaints about Allen, because: (1) the complained-of conduct took place at the same time, was carried out in largely the same fashion, and was committed by the same type of actor (management) as the conduct that was the subject of the Division Complaint-described complaints; and (2) Plaintiffs complaints regarding Allen’s conduct were made in the same general manner as Division Complaint-described complaints.
b. Hostile Work Environment Complaints
Plaintiff also alleges that she made numerous complaints to supervisors regarding the gender-based hostile environment to which she was subjected by coworkers, including misogynist drawings and comments regarding Plaintiff and other female employees. See Bader Dep. at 158-170. As discussed infra, Plaintiff has presented sufficient evidence that the complained-of conduct constituted a hostile work environment. Thus, her complaints regarding that conduct certainly constitute protected activity.
Plaintiff exhausted her administrative remedies with respect to the coworker-caused hostile work environment. The Division Complaint indicates that Plaintiff was retaliated against for complaining about “hostile work environment” and “harassment” by “supervisors and individuals,” thereby implicitly referencing coworker harassment. Div. Compl. ¶ 7 (emphasis added). The Division Complaint also points to specific complaints she made to both management and SMC’s human resources department regarding that harassment. Id. ¶¶ 2, 7. Moreover, it details the adverse actions she now claims were retaliation for her harassment complaints. See id. ¶¶ 8, 5, 6, 7. Defendants correctly note that the Division Complaint’s allegations regarding Plaintiffs coworker-harassment complaints are conclusory, and that the only specific complaints she details covered management “demeaning” Plaintiff by yelling at her and making “false claims” against her. Id. ¶ 1. Nevertheless, given the Division Complaint’s general allusions to coworker-harassment complaints, its description of some specific complaints to management, and its detailed coverage of many of the retaliatory adverse actions at issue, an EEOC investigation arising from the Division Complaint might reasonably be expected to cover retaliation for Plaintiffs complaints to management regarding coworker harassment. See Jute,
The Complaint also sufficiently alludes to this protected activity. It describes in detail the harassing conduct about which Plaintiff complained to management. See Compl. ¶ 23. It also discusses Plaintiffs frequent complaints to management and human resources regarding “hostile work environment” and other discrimination, as well as retaliation for those complaints. Id. ¶¶10, 11, 13, 14, 17, 19. Thus, the Complaint plausibly suggests that Plaintiff had complained about the hostile work environment and that she was, or might be, premising her retaliation claim on Defendants’ retaliatory response.
Defendants argue that Plaintiff cannot premise her retaliation claim on her July 9, 2009, telephone EthicsPoint report because: (1) the report does not mention discrimination and therefore does not constitute protected activity; and (2) Plaintiff failed to mention the report in her Division Complaint or Complaint. See Reply at 15; Dkt. No. 22-5 at 55-58
i. Reference to Discrimination
Plaintiff made her 2009 EthicsPoint report by phone. See 2009 EthicsPoint Summary at 55 (noting that Plaintiff made her report to the “Call Center”); id. at 56 (describing Plaintiffs call). The person who received Plaintiffs call then prepared a written summary of that call. See 2009 EthicsPoint Summary. That summary does not include explicit allegations of discrimination. See id. Defendants treat this summary as dispositive. See Reply at 15. But Plaintiff now alleges that she complained about “unfair, discriminating and harassing treatment ... and that there was a double standard for [Plaintiff] and other male employees in the Inspection Department.” Bader Decl. ¶ 23. This double-standard allegation constitutes a discrimination complaint. See Bandhan v. Lab. Corp. of Am.,
Moreover, even the summary of the 2009 EthicsPoint report indicates that Plaintiff complained about discrimination. It notes that Plaintiff complained that four male supervisors had “intentionally been making her work environment unbearable” and that Plaintiff had been “threatened various times” with suspension and termination. 2009 EthicsPoint Summary at 56. Plaintiff also complained that she had been
ii. Exhaustion of Administrative Remedies and Complaint Omission
Defendants argue that the Division Complaint’s failure to mention the 2009 EthicsPoint report or any “specific factual allegations of her opposition to unlawful age or gender discrimination” renders her administrative remedies unexhausted. Mem. at 19. But the Division Complaint states that Plaintiff had been retaliatorily suspended and offered an LCA in response to her 2010 EthicsPoint report. Div. Compl. ¶¶ 7, 9.
For the same reasons, Plaintiffs failure to mention the 2009 EthicsPoint report in the Complaint does not prevent her from premising her retaliation claim on that protected activity. The Complaint explicitly discussed the 2010 EthicsPoint report and the ensuing retaliatory discipline and LCA proffer. See Compl ¶ 17. The Complaint also indicated that Plaintiff “continuously” complained about unfair discipline and scrutiny, and was retaliated against by being further disciplined. Id. ¶¶ 10, 11. The Complaint’s discussion of the 2010 EthicsPoint report and other discrimination complaints was sufficient to put Defendants on notice that Plaintiff might be premising her retaliation claim on the 2009 EthicsPoint report. Plaintiff also gave Defendants additional notice before discovery ended. See Bader Dep. at 109. Thus, Plaintiff may premise her retaliation claim on this protected activity.
d. 2010 EthicsPoint Report
Defendants argue that Plaintiffs 2010 EthicsPoint report also cannot constitute protected activity because it did not cover discrimination. Reply at 15. But in this email report, Plaintiff states that she is complaining about a “hostile workplace” and “ongoing harassment,” terms that are often used in conjunction with gender-based discrimination. Dkt. No. 22-5 at 55-58 (“2010 EthicsPoint Email”). And all three supervisors about whom she explicitly complained, as well as a foreman who putatively “misrepresented” a conversation with. Plaintiff, were male. Id. This raises the specter of gender discrimination. Moreover, Plaintiff states in her 2010 EthicsPoint report that the complained-of activity had been “ongoing for two years”— thereby implicitly referencing her 2009 EthicsPoint report that, as discussed supra, may have explicitly referenced discrimination. Thus, the 2010 EthicsPoint report’s allegations that the April 13, 2013, warning and LCA offer were unfair and the result of “targeting” by her male supervisors can be read to allege gender-based discrimination. Defendants correctly note that the 2010 EthicsPoint report
e. DiFillippo-Action Participation
Plaintiff also seeks to premise her retaliation claim on the Federal Rule of Civil Procedure 26 disclosure of Plaintiff as a possible witness in the DiFillippo Action, as well as Plaintiffs subsequent deposition. See Resp. at 11-12. Plaintiffs Motion to amend the Complaint to include allegations of retaliation for this protected activity has been denied. As discussed supra, this does not necessarily preclude Plaintiff from bringing a retaliation claim based on her DiFillippo Action participation: a complaint need include every fact upon which recovery is subsequently premised. However, Plaintiffs failure to mention any remotely similar protected activity in the Complaint or otherwise give Defendants notice that she might be premising her retaliation claim on her DiFillippo Action participation does so preclude her. All of the protected activity Plaintiff described in her Complaint were complaints she made to the Union and SMC regarding treatment she received. See, e.g., Compl. ¶ 10 (noting that Plaintiff was retaliated against for complaining about the “disparate treatment against her” (emphasis added)); id. ¶ 34 (asserting that Plaintiff had been retaliated against for “complaining about and opposing discrimination on account of her ” (emphasis added)). Moreover, although Plaintiff did mention the DiFillippo action at her deposition, she did not hint that she was retaliated against for her participation. See generally Bader Dep. As neither Plaintiffs Complaint nor anything else gave Defendants, prior to the end of discovery, reasonable notice that Plaintiff was or might be premising her retaliation claims on her participation in the DiFillippo Action, she cannot do so now.
2. Materially Adverse Action
Retaliation is actionable only where it amounts to a materially adverse action — an action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White,
3. Causation
A plaintiff may demonstrate causation by, inter alia, “showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence.” Hicks v. Baines,
As discussed supra, Plaintiff did not suffer an adverse action until February 2010, more than three years after her 2007 complaints regarding Allen, approximately a year after her 2009 EthicsPoint report, and some time after many of her coworker-harassment complaints. However, she points to an intervening pattern of retaliatory conduct. She alleges that she received a written warning for “insubordination” and other discipline for making an allegedly false sexual harassment report soon after she complained about Allen. See Bader Decl. ¶¶ 12-14. This was then followed by a long period of intense criticism and observation by her supervisors, including numerous instances of Marecek spying on Plaintiff and criticizing her for taking too long in the bathroom. Id. ¶ 14. Plaintiff was then repeatedly disciplined for conduct that the disciplining supervisor regularly permitted other employees to engage in. Bader Decl. ¶¶ 20-22; Dkt. No. 22-9, Ex. F.
Plaintiff also alleges that she was disciplined a mere five days
Plaintiff offers substantial non-temporal evidence of causation. Sefcheck’s “I got her for the boys” comment plausibly suggests retaliatory animus and causation.
D. Gender- and Age-Based Hostile Work Environment
Plaintiff alleges that she was subjected to a hostile work environment due to her age and gender. See Compl. ¶¶ 27-29, 36-38, 45-47, 54-56. A hostile work environment constitutes an adverse employment action. See Alfano v. Costello,
1. Severity and Pervasiveness
In order to demonstrate that the conduct to which she was exposed was sufficiently severe or pervasive, a plaintiff may show that “a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc.,
In this case, Plaintiff details a variety of appalling misogynist conduct, including “offensive and sexually suggestive” pictures throughout the plant, including pictures of penises;
Defendants argue that the because some of the conduct and speech at issue was not directed at Plaintiff, that conduct and speech is “far less persuasive in establishing a hostile work environment claim.” Reply at 23. This is incorrect. Highly offensive, inherently misogynist terms and images may reasonably be interpreted to demean all women, and therefore may dramatically affect an employee’s working conditions even when not “directed” at her. See Petrosino,
Defendants also incorrectly argue that Plaintiffs failure to specify the exact time, place, and actor for each and every incident is fatal to her claim. Reply at 21-23. Plaintiff was not required to work with a hammer
In addition to the explicitly gender-based coworker conduct discussed supra, Plaintiff points to mistreatment by her supervisors: Dabbs repeatedly yelled at her and told her to “shut up,” and Mare
2. Exhaustion of Administrative Remedies
Defendants correctly note that the factual basis of Plaintiffs Title VII hostile work environment claim is limited by the allegations in her Division Complaint. See Mem. at 22-23. The Division Complaint’s specific allegations of harassment involve only members of management “demeaning” Plaintiff by yelling at her and making “false claims” against her. Div Compl ¶ 1. Plaintiff now seeks to bring a hostile work environment claim based primarily on coworker’s misogynist language and drawings. These discriminatory acts are of a .very different nature and were committed by different actors than the conduct raised in the Division Complaint. Plaintiffs Title VII hostile work environment claim is not exhausted with respect to this conduct, which therefore cannot serve as the basis for that claim. See Concey v. N.Y.S. Unified Court Sys., No. 08 Civ. 8858,
S. Employer Liability
Defendants argue that, even if the conduct at issue was severe or pervasive enough to create a hostile work environment under the HRL, SMC is not liable. To impose liability on an employer for coworker harassment, a plaintiff must demonstrate negligence, i.e., that her employer either: (1) failed to provide a reasonable avenue for complaint; or (2) knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. Duch v. Jakubek,
Similarly, employers, who are otherwise liable for a hostile work environment created by a supervisor’s conduct, have an affirmative defense, known as the Faragher/Ellerth
Here, Plaintiff has offered sufficient evidence of SMC’s notice and ineffective remedial action. According to Plaintiff, the Individual Defendants and other supervisors were acutely aware of the treatment she was receiving, either because they witnessed it first hand, see Bader Decl. ¶ 4 (noting that pictures of penises were drawn on the time clock and other “regularly frequented areas” and that it would therefore “not be possible for management to be unaware”); id. ¶ 5 (noting that Plaintiff frequently observed Maracek and Wallace participating in conversations where the words “slut,” “whore,” and “cunt” were used, including in reference to a fellow female employee), or because they were explicitly told about the conduct by Plaintiff, see Bader Dep. at 158 (noting that Plaintiff complained to her supervisors, including Wallace and Maracek, about penis drawings and offensive photographs placed around the workplace);
Plaintiff has also offered sufficient evidence that Defendants did not take prompt or effective remedial action despite receiving notice. Defendants argue that then-extant anti-harassment policy automatically renders their response adequate. Mem. at 26. This is not so. An employer’s inadequate response to a complaint of harassment renders its remedial action ineffective whether or not it has such a policy. See Caridad v. Metro-N. Commuter R.R.,
Plaintiff also brings a state-law contract claim alleging that SMC breached a variety of the CBA’s provisions. Compl. ¶¶ 63-67. “Breach of contract claims founded directly on rights created by collective-bargaining agreements, or substantially dependent upon analysis of the terms of such agreements, are completely preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a).” Avedisian v. Quinnipiac Univ.,
However, there are three narrow exceptions to this exhaustion requirement where: (1) the employer has repudiated grievance mechanisms; (2) the union has breached its duty of fair representation (“DFR”); or (3) grievance and arbitration would be futile. Vera v. Saks,
Plaintiff also has not alleged, and cannot show, that the Union breached its duty of fair representation. To the contrary, she points to consistent support and advocacy by the Union on her behalf. See, e.g., Bader Decl. ¶¶ 10-11, 17, 55. Even if Plaintiff had alleged a DFR violation, her claim would be untimely. Section 301 claims premised on a union’s DFR violation must be brought within six months of when the plaintiff “knew or reasonably should have known that a breach [of the duty of fair representation] has occurred.” Ramey v. District 141, Int’l Ass’n of Machinists & Aerospace Workers,
Finally, Plaintiff has offered no evidence that pursing her grievance and arbitration
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiffs Motion (Dkt. No. 35) to amend is DENIED; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED in part and DENIED in part; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED with respect to Plaintiffs First Claim (ADEA hostile work environment); Second Claim (ADEA disparate treatment); Fourth Claim (HRL age-based hostile work environment); Fifth Claim (HRL age-based disparate treatment); Seventh Claim (Title VII hostile work environment); and Thirteenth Claim (breach of contract); and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 22) for summary judgment is DENIED with respect to Plaintiffs Tenth Claim (HRL gender-based hostile work environment); and it is further
ORDERED, that, to the extent Plaintiffs Third Claim (ADEA retaliation) and Sixth Claim (HRL age-discrimination-based retaliation) are premised on her 2009 EthicsPoint report, Defendants’ Motion (Dkt. No. 22) for summary judgment is DENIED; and it is further
ORDERED, that, to the extent Plaintiffs Third Claim (ADEA retaliation) and Sixth Claim (HRL age-discrimination-based retaliation) are premised on other protected activity, Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED; and it is further
ORDERED, that, to the extent Plaintiffs Third Claim (ADEA retaliation); Sixth Claim (HRL age-discrimination-based retaliation); Eighth Claim (Title VII disparate treatment); Ninth Claim (Title VII retaliation); Eleventh Claim (HRL gender-based disparate treatment); and Twelfth Claim (HRL gender-based retaliation) are premised on her April 13, 2010, warning; April 30, 2010, warning and demotion; or any pre-2010 discipline, Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED; and it is further
ORDERED, that, to the extent Plaintiffs Third Claim (ADEA retaliation); Sixth Claim (HRL age-discrimination-based retaliation); Eighth Claim (Title VII disparate treatment); Ninth Claim (Title VII retaliation); Eleventh Claim (HRL gender-based disparate treatment); and Twelfth Claim (HRL gender-based retaliation) are premised on her February 17 and March 1, 2013, warnings; her suspensions; and her constructive discharge, Defendants’ Motion (Dkt. No. 22) for summary judgment is DENIED; and it is further
ORDERED, that, to the extent Plaintiffs Ninth Claim (Title VII retaliation) and Twelfth Claim (HRL gender-based retaliation) are premised on: (1) any aspect of Plaintiffs participation in the DiFillippo Action; or (2) Plaintiffs 2009 complaints to the Union, Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED; and it is further
ORDERED, that, to the extent Plaintiffs Ninth Claim (Title VII retaliation) and Twelfth Claim (HRL gender-based retaliation) are premised on other protected
ORDERED, that, to the extent Plaintiffs Third Claim (ADEA retaliation); Eighth Claim (Title VII disparate treatment); and Ninth Claim (Title VII retaliation) are brought against the Individual Defendants, Defendants’ Motion (Dkt. No. 22) for summary judgment is GRANTED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties.
IT IS SO ORDERED.
Notes
. Plaintiff alleges that the Individual Defendants were her supervisors at SMC. Compl. ¶ 8.
. The pagination corresponds to the page numbers assigned by ECF.
. Moreover, even if the Court were to overlook the dilatoriness with which the Motion to Amend was brought, it would still be denied as futile with respect to Plaintiff's Title VII and ADEA claims that she was retaliated against for her participation in the DiFillippo Action; as discussed infra, Plaintiff failed to exhaust her administrative remedies with respect to these claims.
. Plaintiff also brings separate claims for a hostile work environment, a type of adverse action. These claims are discussed infra.
. Defendants point to two cases where unpaid suspensions were found to not constitute adverse actions. See Mem. at 9-10. Not only are these cases against the weight of authority in the this circuit, they are inapposite. Both were premised on the suspensions' lack of impact on the plaintiffs’ post-suspension employment. See Gibson v. Wyeth Pharm., Inc., No. 07 Civ. 946,
. Had Plaintiff signed the Proposed LCA, she would have been subject to "immediate and automatic termination” upon any violation of an SMC rule. Proposed LCA ¶ 3(b).
. The pagination corresponds to the page numbers assigned by ECF.
. Defendants argue that, because Plaintiff did not mention this demotion in her Complaint, it should “not be considered as part of this case.” Reply at 17-18. As discussed in greater detail infra, a plaintiff may not raise new claims or theories of liability for the first time in opposition to summary judgment and thereby prejudice a defendant by denying her the opportunity to conduct relevant discovery. Here, Defendants had the requisite notice that Plaintiff was, or might well be, pursuing a claim based on her demotion. The Complaint indicated that Plaintiff's discrimination claims were premised on, inter alia, discipline she received in early 2010. See Compl. ¶¶ 12-17. Rather than adding a truly "new” claim or different theory of liability, Plaintiff has clarified that her discrimination claim is also premised on a demotion that overlaps with the Complaint-enumerated discipline in terms of time, manner, and the supervisors who discovered Plaintiff's putative misconduct and decided to impose discipline. Moreover, Defendants received additional notice: at Plaintiff’s deposition, she was asked about the putative misconduct that led to the April 30 warning and concomitant demotion. See Dkt. No. 27 ("Bader Deposition”) at 126-30. Plaintiff clearly stated that her conduct had been proper and that discipline she had received had been discriminatory. See id. Defendants therefore had the requisite notice, and Plaintiff may bring a constructive discharge claim premised on the demotion.
. Defendants argue that Plaintiff has admitted that she was unaware of her written warning and corresponding proposed demotion until her deposition, which took place well after her retirement. See Reply at 17 n. 8 (citing Dkt. No. 32 ("Bader Declaration”) ¶ 63). If Plaintiff was unaware of the demotion, it could not be a basis for her constructive discharge claim because it could not have influenced her decision to retire. But in her declaration, Plaintiff stated merely that, at her deposition, the "written warning for allegedly reporting the wrong diameter on a product on February 27, 2010, was presented to me for the first time. I had never seen it or received it.” Bader Deck ¶ 63 (emphases added). Plaintiff did not state that she had previously been unaware of the written warning and its concomitant demotion; rather, she stated only that it had not been "presented" to her and she had never "seen it” or "received it.” As a plaintiff's depositions and declarations must be construed in the "most favorable” light on a motion for summary judgment, Ibok v. Sec. Indus. Automation Corp.,
. Plaintiff also asserts that she was told by a number of co-workers that Defendants were seeking to terminate her for pretextual reasons if she signed the LCA. Bader Decl. ¶¶ 36-38, 61. The reports from Plaintiff's coworkers, although admissible to demonstrate Plaintiff's belief that her termination was inevitable, see E.E.O.C. v. Univ. of Chi. Hosps.,
. Defendants argue that Plaintiff has offered contradictory explanations for her resignation that undermine her constructive discharge claim. See Reply at 19-20. According to Defendants, Plaintiff stated at her deposition that she chose to resign to pursue retirement benefits, while she states in her declaration that she decided to resign because she was afraid of being terminated should she return to work. See id. at 19-20 (citing Bader Dep: at 12-13; Bader Deck ¶ 67). But Plaintiff states in her declaration that she was afraid of being terminated because of the concomitant loss of retirement benefits. See Bader Deck ¶ 67. At her deposition, she stated that, by retiring, she became eligible for retirement benefits, including health insurance — benefits for which she might not have been eligible had she returned to SMC and been terminated. See Bader Dep. at 12-13. These are two sides of the same coin: retiring to avoid the loss of retirement benefits, and retiring to obtain retirement benefits. While Plaintiff also states that she retired to obtain social security benefits because she was "broke,” this bears on the timing of her resignation as opposed to her decision to retire rather than return to work. Id.
.The two cases cited by Defendant on this point are inapposite. See Reply at 20. In Spence v. Maryland Casualty Co.,
. Pursuant to the “cat’s paw” theory of liability, Defendants’ decision to discipline Plaintiff might give rise to liability even if Defendants were unmotivated by discriminatory animus themselves and were uninvolved in Sefcheck’s putatively discriminatory discovery and reporting of Plaintiff's error. See Staub,
. Sefcheck’s comment would not be hearsay even if offered as evidence that Defendants discriminatorily ordered him to investigate Plaintiff. If Sefcheck was acting on Defendants’ orders, he would be Defendants’ agent, and his statement would therefore be admissible as that of a party opponent. See Fed. R.Evid. 801(d)(2)(D). Moreover, his statement would itself constitute admissible evidence that he was acting in an agency capacity in investigating Plaintiff. See Feis v. United States,
. This is true even though, as discussed infra, these drawings, materials, and comments are not actionable under Title VII and ADEA because Plaintiff failed to raise them in her Division Complaint. Cf. Spell v. Conn. Office of Chief State’s Att’y,
. Defendants argue that Plaintiff admitted at her deposition in the DiFillippo Action that they were not motivated by gender-based animus. See Mem. at 17. Plaintiff was asked whether “women [we]re treated differently than men” at SMC and responded as follows:
It depends upon — some. There are some men that [have] issues there, but I think a lot of their problem there is it's people that are outspoken or people that are adamant union employees or people that know right from wrong ... are treated differently from people that look the other way.
Dkt. No. 22-5 ("Butler Declaration”), Ex. D at 11. Plaintiff's admission that union participation or outspokenness led to mistreatment by SMC management does not preclude the possibility of gender animus — an employee need not demonstrate a lack of any non-gender-based animus to prevail on a gender discrimination claim.
.However, because there is no individual liability under Title VII, see Butts v. City of New York,
. The HRL does not require exhaustion of administrative remedies. See Lumhoo v. Home Depot USA, Inc.,
. "The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action.” Prophete v. Ed Mitchell, Inc., No. 05-CV-0912,
. However, to the extent Plaintiff seeks to premise her retaliation claim on her 2009 complaints to her Union, which she alleges were subsequently relayed to SMC management, she cannot do so, because she has not shown that Defendants had the requisite notice of those complaints. See Bader Decl. ¶ 17. Plaintiff has failed to provide non-hearsay evidence that the Union members to whom she complained relayed her complaints to SMC or that, if they did so, they specifically complained about discrimination. See Bader Deck ¶ 17; Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
. The pagination corresponds to the page numbers assigned by ECF.
. Defendants argue that Plaintiff's “self-serving statement[ ], inconsistent with the record evidence” regarding the substance of her 2009 EthicsPoint report is insufficient to withstand summary judgment. Reply at 15. The authority cited for this proposition, however, holds only that self-serving and conclusory affidavits are insufficient to defeat a motion for summary judgment. See BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn.,
. The pagination corresponds to the page numbers assigned by ECF.
. Moreover, with respect to her ADEA and Title VII claims, Plaintiff failed to exhaust her administrative remedies regarding this protected activity. The Division Complaint does not even mention the DiFillippo Action, let alone Plaintiffs involvement. This protected activity is of an entirely different nature than the protected activity mentioned in the Division Complaint: complaints Plaintiff made regarding discriminatory treatment she was subjected to. See generally Div. Compl. An investigation regarding retaliation for the protected activity alleged in the Division Complaint would not reasonably be expected to cover Plaintiff's participation in the DiFillippo Action. See Padilla,
. Although this is a lesser standard, the pre2010 discipline is still insufficiently adverse to be actionable. See Risco v. McHugh,
. As evidence of a lack of causation, Defendants point to Plaintiff's acknowledgment that, after she made the 2009 EthicsPoint report, Defendants "pretty much left [her] alone" for four to five months. Mem. at 20 (quoting Bader Dep. at 113-14). But this brief period of tranquility began only after Plaintiff had been disciplined in the immediate wake of the report.
. Defendants correctly argue that this warning was not actionable, both because it was insufficiently adverse and because it was never formally “issued.” See Reply at 12 n. 4. But a disciplinary action taken a mere five days after Plaintiff’s protected activity, even one that is non-actionable and not formally issued, may still be evidence of retaliatory animus
. Defendants correctly note that Plaintiff's descriptions of reports she received from coworkers regarding Defendants' retaliatory intentions are inadmissable hearsay. See, e.g., Bader Decl. ¶¶ 36-38.
. Defendants imply that Plaintiffs admission that some drawings were removed renders the conduct at issue less severe or pervasive. Reply at 22. However, Plaintiff acknowledged only that the drawings were removed "after a few years.” Bader Dep. at 157. Moreover, she indicated that, a week after these drawings were removed, they were "all back.” Id. at 160. A one-week hiatus hardly renders these drawings significantly less severe or pervasive. Moreover, while Plaintiff admitted that offensive drawing on the ladies’ room walls "came down” after she complained, she did not indicate that they remained down. Reply at 22. Even if they did, the other conduct at issue is more than sufficient to give rise to a hostile work environment claim.
. Defendants argue that Plaintiff offers only inadmissible hearsay regarding the contents of these writings. Reply at 22 n. 11. But Plaintiff does not offer the comments from her coworkers "to prove the truth of the matter asserted,” i.e., to prove that there were derogatory bathroom writings and that their content was as described. Fed.R.Evid. 801. The comments from her coworkers regarding the writings were themselves harassing whether or not they were true. An employee told that there are offensive writing about her in the men’s bathroom is no less affected if, unbeknownst to her, there are in fact no such writings.
. As Plaintiff states that she was "exposed” to this and other wall comments, the Court presumes that Plaintiff saw these comments herself. Bader Decl. ¶ 4.
. To the extent any of this conduct would otherwise be time-barred, Plaintiff has offered sufficient evidence that the continuing-violations exception applies: Plaintiff has alleged that much of the conduct happened regularly until she stopped working for SMC. See Morgan,
. Plaintiff used a hammer, among other tools, at SMC. See Bader Dep. at 180.
. This affirmative defense was set forth in Faragher v. City of Boca Raton,
. Plaintiff describes some of the persons to whom she complained as "foremen.” She clarifies elsewhere the terms "foremen” and "supervisors” are interchangeable. Bader Dep. at 42.
. Defendants suggest that Dollar's comportment in his follow-up conversation with Plaintiff — he was admittedly "very receptive, very nice and very concerned” during their conversation — constitutes effective remedial action. Reply at 27 (citing Bader Dep. at 102-OS). This is not so. While Dohar’s behavior was certainly an improvement over that of supervisors who openly laughed at Plaintiff’s complaints and celebrated the complained-of conduct, an employer who politely listens to an employee's complaints, but then fails to attempt to remedy the situation, has not taken effective remedial action.
. To the extent Defendants argue that the investigation's failure to unearth gender-based harassment is attributable to Plaintiff's failure to mention discrimination in her 2009 EthicsPoint report, see Reply at 26, there is, as discussed supra, a genuine dispute of material fact as to the subject of Plaintiff's report.
. Because Plaintiff has demonstrated the inadequacy of Defendants' remedial measures, she need not show that she took advantage of Defendants’ reporting procedures. Nevertheless, she has made such a showing. Defendants assert that it is undisputed that "[Plaintiff! did not utilize the employer’s anti-harassment reporting procedure” to report the misogynist drawing and conduct. Reply at 27. This is not so. As described by Defendants themselves, the SMC reporting policy provided that any acts of unlawful discrimination "must be reported immediately to a supervisor, manager, or human resources representative.” Reply at 26 (emphasis added) (citing Farley Decl. 10-11, Ex. C at 6-7). As discussed supra, Plaintiff made numerous complaints to managers and supervisors about this conduct. Defendants have pointed to no basis for their implied assertion that their reporting policy permitted only Ethics-Point reports. Moreover, to the extent Plaintiff's coworkers were responsible for the language and drawings, she need not show that she utilized the reporting procedure; she need show only that Defendants had notice