OPINION AND ORDER
Julie O’Dell brings this action against her former employer Trans World Entertainment Corporation (“Trans World”) alleging: (1) sexual harassment in violation of Title VII of the CM Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law (“HRL”), Exec. Law § 296 et seq.; (2) unlawful retaliation in violation of Title VII and the HRL; and (3) breach of contract. Defendant now moves for summary judgment on all of plaintiffs claims pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendant’s motion is granted.
I. LEGAL STANDARD
Rule 56 provides for summary judgment “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). “An issue of fact is ‘material’ for these purposes if it might affect the outcome of the suit under the governing law [while] [a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Shade v. Housing Auth. of City of New Haven,
No. 00-6160,
“In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable
II. BACKGROUND
In late 1997, Trans World, a corporation that operates music and video stores throughout the United States, hired O’Dell to be the manager of a record store opening in early 1998 in West Nyack, New York. See Defendant’s Local Rule 56.1 Statement of Material Facts as to Which There Is No Genuine Issue to be Tried (“Def.56.1”) ¶¶ 2, 4; Complaint ¶ 7. Plaintiffs offer of employment referred to the Managers’ Bonus Program (“Bonus Program”). See Def. 56.1 ¶¶ 5, 6. Pursuant to its terns, the Bonus Program, with which plaintiff was familiar, had two components. See id. ¶ 11. First, upon reaching a certain threshold of sales as dictated in a store’s operating plan, a manager would earn a quarterly bonus. See id. Second, a manager who achieves operating profits in excess of the store’s operating plan would be eligible to receive a year-end bonus consisting of a percentage of the incremental profits in excess of the store plan. See id.; see also Store Manager Bonus Program, Ex. N to 4/2/01 Affidavit of E. Johan Lubbe, counsel for defendant, in Support of Defendant’s Motion for Summary Judgment (“Lubbe Aff.”) at 3. However, pursuant to the terms of the Bonus Program, payment of the year-end bonus is contingent upon the employee’s continued employment as of the date the award checks are issued. See Store Manager Bonus Program at 5.
In its first year of operation, the sales target in the operating plan for O’Dell’s store was raised twice. See Def. 56.1 ¶ 15. Although plaintiff received a quarterly bonus of $2,000 for the first, second and third quarters of 1998, see id. ¶¶ 20, 21, she did not receive a year-end bonus. See 4/22/01 Affidavit of Julie O’Dell (“O’Dell Aff.”) ¶ 15. O’Dell contends that she would have received a year-end bonus had her sales target not been raised. See id.
A. Trans World’s Sexual Harassment Policy
Trans World has a written sexual harassment policy. See Def. 56.1 ¶41. The policy is set forth in the company’s employee handbook, which plaintiff received on November 3, 1997. See id ¶ 40. The sexual harassment policy states in relevant part:
It is the policy of Trans World Entertainment (“TWE”) and its subsidiaries to prohibit all forms of unwelcome sexual contact or sexual harassment towards Associates, either during or outside of business.
No Associate — male or female — may harass another Associate by making unwelcome sexual advancements or favors, or other verbal or physical conduct of a sexual nature, a condition of employment; ... or by creating an intimidating, hostile or offensive work environment by engaging in such conduct....
Sexual Harassment will not be tolerated by TWE, and allegations will be investigated promptly and confidentially. Any associate who feels they [sic] were sexually harassed by a fellow Associate, Supervisor, or any person(s) involved within the working environment must take the responsibility to advise management. To do so you can contact your store Manager, District Manager, or Regional Manager. Also you may call your Human Resources Associate Relations Manager at (518) 452-1242, or the Loss Prevention Hotline at 1-800-888-6299.
Id. ¶ 42 (emphasis in original).
B. Plaintiffs Allegations of Sexual Harassment
For the first several months of her employment, O’Dell trained to be a manager by “shadowing” Scott Rosen, the Manager of Trans World’s White Plains store. Def. 56.1¶¶ 47, 49; O’Dell Aff. ¶ 2. During this time, O’Dell and Rosen had several dates, but never engaged in sexual relations. See Def. 56.1 ¶¶ 56, 57, 59; O’Dell Aff. ¶3.
Starting on January 1, 1998, Rosen sent O’Dell several e-mails, and at least one letter, professing his love for her. See Def. 56.1 ¶¶ 60, 61; O’Dell Aff. ¶ 4. O’Dell, however, repeatedly informed him that she was not interested in a romantic relationship. See Def. 56.1 ¶ 63; Plaintiffs Statement of Material Facts Pursuant to Local CM Rule 56.1 (“PI.56.1”) ¶ 62. Nonetheless, Rosen continued to pursue O’Dell. For example, on May 1, 1998, Rosen sent O’Dell the following e-mail:
I want to be the person who is your shelter in the rain. I want to be your anchor. I want to be your touchstone. I want to be the person who makes it all better. I want to be the person you love. Me. I do....
I’ve heard your arguments. I’ve heard the reasons why it’s not a good idea; why it won’t work. [Y]eah, yeah. It doesn’t wash. It’s like you are trying to convince yourself.
Look, maybe you’re right. Maybe I’m barking up the wrong tree. I still love you. I can’t control it. It’s like a force of nature.
Julie [ ] I love you. Purely. Unconditionally. You are my warmth in winter, you are my shade in summer....
I talk to you, and I want so much more. I want to see you. I want to spend time with you. I want to be the person you hold dearest in your heart.
5/1/98 E-Mail, Ex. S to Lubbe Aff. In addition, in February 1998, Rosen gave plaintiff gift certificates for her birthday and for Valentine’s Day. See Defendant’s Objections to Plaintiffs Statement of Material Facts Pursuant to Local Civil Rule 56.1¶ 30.
When the West Nyack store opened on March 9, 1998, O’Dell became its manager.
See
Def. 56.1 ¶ 52. Then, in August 1998, Rosen was promoted to the position of District Manager, a supervisory position over O’Dell.
See id.
¶ 65; PI. 56.1 ¶ 186. Even after his promotion, Rosen continued to profess his feelings for O’Dell.
See
Def. 56.1¶¶ 66, 67. According to O’Dell, Rosen would call her several times a day both at work and at home, would stop by her store at the end of the work day and suggest they go out, and routinely suggested that they schedule their days off to coincide so that they could tour New York City together.
See
O’Dell Aff. ¶¶ 6-7. Although Rosen did not expressly ask her for sexual relations,. O’Dell alleges that it was implied in his repeated requests for a relationship as well as his sexual comments.
See
Def. 56.1¶¶ 72-74; PI. 56.1 ¶ 74. Such sexual
Shortly before Christmas 1998, Rosen arrived at the West Nyack store humming a song. See id. ¶ 76. At plaintiffs request, Rosen played the CD of the song in her presence and that of a male employee. See id. ¶¶ 77, 80. The song, “Santa’s Beard”, alludes to an extra-marital affair. See id. ¶ 82. O’Dell regarded this song as “disgusting” and “inappropriate”. PI. 56.1 ¶ 83. Around this time, Rosen gave O’Dell a third gift: cooking supplies for Christmas. See 12/12/00 Deposition of Scott Ro-sen (“Rosen Dep.”) at 89.
O’Dell contends that after she rejected Rosen, he created obstacles which interfered with her performance. Specifically, plaintiff alleges: that Rosen withheld necessary information from her, such as changes in pricing and scheduled meetings; that he shared information with O’Dell’s subordinates rather than with her; and that he failed to provide her with certain equipment. See Def. 56.1 ¶ 89; PI. 56.1 ¶ 87. Then, in late November 1998, Rosen performed a “holiday audit” of O’Dell’s store and gave her a rating of 55%, which is considered “unsatisfactory”. Def. 56.1 ¶¶ 99-101. Rosen spoke to the regional manager, Alan Lauritsen, about the audit score and was directed to conduct a second holiday audit. See id. ¶¶ 102-03. On the second store audit, O’Dell’s store received a score of 90%, which is considered “good”. Id. ¶ 105.
C. Trans World’s Knowledge of and Response to Rosen’s Conduct
When she first learned that Rosen would be promoted to District Manager, O’Dell informed Nicholas Perruccio, the acting District Manager, that it would be a “grave mistake” to promote Rosen. PI. 56.1 ¶ 185. She also told Joe O’Neill, the acting Regional Manager, that is was not “a good idea” for Rosen to become a District Manager. 12/4/00 O’Dell Dep. at 131. Trans World did not inquire further of O’Dell. See PL 56.1 ¶ 187.
Shortly after his promotion, Rosen told Lauritsen that he was “concerned with how O’Dell was accepting his position, his authority ...” in part “because of the fact that while they were both store managers they had one or two dates_” PI. 56.1 ¶ 188. Then, toward the end of 1998, Ro-sen complained to Lauritsen about O’Dell, saying that she was “noncooperative”, “brusk”, and “emotional”. Id. ¶ 190. Ro-sen also asked Lauritsen to remove O’Dell’s store from his district. See id. Lauritsen never asked either O’Dell or Rosen to elaborate on their prior relationship or the apparent tension between them. See id. ¶¶ 189,191.
On December 24, 1998, O’Dell spoke with Lauritsen during his visit to her store. See Def. 56.1 ¶¶ 116, 117. O’Dell recalls that he told her he was aware of the “situation” between her and Rosen and that he would “make some changes after the holiday season”. Id. ¶ 119. O’Dell perceived Lauritsen’s comments as threatening her with a negative employment action. See PI. 56.1 ¶ 119.
On December 29, 1998, plaintiff called Paula Heller, a Trans World Human Resource officer in Albany.
See
Def. 56.1 ¶35. During their conversation, O’Dell complained of sexual harassment by Ro-sen.
See id.
¶¶ 124, 125, 132. Plaintiff .asked Heller to keep the conversation con
During those ten days, plaintiff decided not to return to Trans World because she feared she would be stigmatized as a troublemaker and would face retaliation. See id. ¶¶ 152, 154. She also hired an attorney. See O’Dell Aff. ¶ 11. When Trans World contacted O’Dell in an attempt to interview her for its investigation, plaintiff directed Trans World to her attorney. See Def. 56.1 ¶ 157-58. However, throughout much of January, Trans World refused to communicate with O’Dell’s attorney, Anne Vladeck, or even to identify Trans World’s counsel. See PI. 56.1 ¶¶ 154, 159. Then, on January 27, 2000, defendant’s counsel contacted Vladeck. See PI. 56.1 ¶ 159. On four occasions, Trans World asked Vladeck to make plaintiff available to participate in Trans World’s internal investigation. See Def. 56.1 ¶¶ 159-61. Each time, plaintiff, through her counsel, refused to participate in any investigation because she believed that Trans World was investigating her conduct, rather than her complaint, in an effort to construct a defense. See id. ¶1¶ 160, 162; PL 56.1 ¶¶ 154,156, 159. Following Trans World’s investigation, Rosen was never reprimanded or counseled regarding his conduct toward O’Dell. See PI. 56.1 ¶ 207.
After leaving Trans World, O’Dell contacted independent recruiters seeking new employment. See Def. 56.1 ¶ 163. In January 1999, she interviewed with Sony Music, but was not offered employment. See id. ¶ 167. Thereafter, one of the independent recruiters informed O’Dell that Trans World had given her a negative reference, but could not identify the Trans World employee’s name. See id. ¶¶ 171, 172, 174.
On June 10, 1999, plaintiff filed a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). See Complaint ¶ 2. The EEOC issued plaintiff a right-to-sue letter on April 27, 2000. See id. ¶ 3.
C. The Instant Complaint
Plaintiff filed this Complaint on July 13, 2000. The Complaint asserts five claims arising under both federal and state law. In claims I and II, plaintiff alleges that as a result of Rosen’s sexual harassment defendant discriminated against her in violation of Title VII and the HRL, respectively.
See
Complaint ¶¶ 25-31. Claims III and IV are also brought under Title VII and the HRL, respectively. In those claims, plaintiff asserts that Trans World retaliated against her for her opposition to defendant’s unlawful employment practices — specifically, her complaint to Human Resources of Rosen’s alleged sexual harassment.
See id.
¶¶ 32-38. Plaintiff
III. DISCUSSION
A. Hostile Work Environment
Title VII prohibits employers from “dis-eriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e-2(a)(l). The phrase “terms, conditions, or privileges of employment” is broad enough to render actionable an employer’s requirement that an employee work in a discriminatorily hostile or abusive environment.
See Gregory v. Daly,
In order to prevail on a hostile work environment claim, a plaintiff must establish two elements: (1) a hostile work environment; and (2) a specific basis for imputing the conduct that created the hostile environment to the employer.
See Distasio v. Perkin Elmer Corp.,
Defendant contends that summary judgment is appropriate on O’Dell’s claim of sexual harassment discrimination for two reasons: (1) Rosen’s conduct was not sufficiently severe or pervasive as to render O’Dell’s work environment objectively hostile; and (2) there is no basis for holding Trans World vicariously liable for Rosen’s alleged discriminatory acts. See Defendant’s Memorandum of Law in Reply to Plaintiffs Opposition to Defendant’s Motion For Summary Judgment at 3, 5.
1. Objectively Hostile Work Environment
The Supreme Court has emphasized that the standard for judging whether a work environment is objectively hostile must be sufficiently demanding so as to prevent Title VII from becoming a “general civility code”.
Oncale,
[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment.... We [the Supreme Court] have always regarded that requirement as crucial, and as sufficientto ensure that courts and juries do not mistake ordinary socializing in the workplace — such as male-on-male horseplay or intersexual flirtation — for discriminatory “conditions of employment.”
Id.
at 81,
In determining whether a workplace is objectively hostile, a court should examine “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Harris,
Plaintiff has failed to adduce sufficient evidence of a hostile work environment. Plaintiff has presented evidence that while Rosen was both a co-employee and her supervisor, he repeatedly asked her out. Rosen made comments about her appearance, sent her e-mails professing his love for her, called her at work and at home, invited her to tour New York City with him, gave her three gifts, and played her a song that she found offensive.
See supra
Part II.B. This conduct, however pervasive, was not sufficiently severe as to alter the conditions of her employment, particularly in light of the fact that Rosen was not O’Dell’s supervisor throughout the period of time during which he pursued her, and that plaintiff has not alleged any “inappropriate touching” or “a pattern of verbal abuse”.
Grossman v. The Gap, Inc.,
No. 96 Civ. 7063,
Indeed, with the exception of the “Santa’s Beard” song played by Rosen, plaintiff has not alleged that Rosen engaged in any vulgar conduct or made any sexually inappropriate comments.
Cf. Franklin v. Consolidated Edison Co. of New York, Inc.,
98 Civ. 2286,
Finally, although evidence that an employer has undermined an employee’s authority may, in appropriate circumstances, contribute to a hostile work environment,
see Howley v. Town of Stratford,
Here, by contrast, plaintiff primarily complains that Rosen withheld certain information from her and talked directly to her subordinates about things that needed to be done at the store. See supra Part II.B. Plaintiff has not alleged that Rosen spread untrue rumors about her or made sexual comments that impugned her credibility or authority. Indeed, plaintiffs allegations are not supported by any evidence that her authority or credibility had been tarnished. Therefore, Rosen’s actions, even examined in concert with his other conduct, were not sufficiently abusive as to render plaintiffs work environment hostile.
In sum, while Rosen’s dogged pursuit may have been irritating, possibly even exasperating, his conduct fell far short of altering the conditions of O’Dell’s employment. Accordingly, plaintiffs hostile work environment claims are dismissed.
2. Trans World’s Vicarious Liability
A plaintiff pursuing a hostile work environment claim must also establish a basis on which to hold an employer liable for the conduct of its employees.
See Meritor Sav. Bank, FSB v. Vinson,
As plaintiff admits, the actions taken by Rosen against O’Dell when she rejected his advances — such as the withholding of certain information and giving her a negative performance review — do not satisfy the high standard required to prove a tangible employment action.
See
Plaintiffs Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment (“Pl.Mem.”) at 15 n. 20;
see also Ellerth,
a. The First Prong of the Faragher /Ellerth Defense
In determining whether an employer has met the first prong of its affirmative defense, the existence of an anti-harassment policy with complaint procedures is an important, although not dispositive, consideration.
See Caridad v. Metro-North Commuter R.R.,
Plaintiff argues that there is a genuine issue of material fact as to whether Trans World had an effective anti-harassment policy because it failed to take reasonable steps to remedy O’Dell’s complaint of sexual harassment. Specifically, plaintiff complains that: (1) Lauritsen did not take any action to determine if it was appropriate for Rosen to supervise O’Dell; and (2) Trans World’s investigation was ineffective. See PI. Mem. at 16-18.
Before an employer can reasonably respond to sexual harassment, it must have adequate notice of the harassment.
See Fierro v. Saks Fifth Ave.,
Furthermore, no reasonable jury could conclude that Trans World’s sexual harassment policy was ineffective. Heller sought to meet with O’Dell promptly after O’Dell complained of sexual harassment.
See
Def. 56.1 ¶¶ 140, 145. Indeed, on several occasions, Trans World asked O’Dell’s attorney to permit plaintiff to participate in its investigation.
See id.
¶¶ 159, 161. Plaintiff repeatedly refused Trans World’s requests.
See id.
¶¶ 160, 162. This was patently unreasonable.
See Woodward v. Ameritech Mobile Communications, Inc.,
No. IP 98-0744-C H/G,
b. The Second Prong of the Faragher /Ellerth Defense
The second prong of the
Faragher /Ellerth
defense requires the employer to show that the employee unreasonably failed to take advantage of its sexual harassment complaint procedures. See
Ellerth,
In analyzing whether an employee acted unreasonably in failing to avail herself of an employer’s internal complaint procedures, the Second Circuit has employed a burden-shifting analysis. The employer has the initial burden of demonstrating that an employee has failed to avail herself of the complaint procedures.
See Leopold,
Trans World has satisfied its initial burden of demonstrating that O’Dell unreasonably failed to take advantage of Trans World’s remedial procedures. O’Dell first complained of Rosen’s sexual harassment on December 29, 1998, nearly one year after Rosen first began pursuing O’Dell and approximately four months after Rosen became O’Dell’s supervisor.
6
See
Def. 56.1 ¶ 132. Such a lengthy delay alone demonstrates that O’Dell unreasonably failed to take advantage of Trans World’s preventive and corrective opportunities.
See, e.g., Dayes v. Pace Univ.,
No. 98 Civ. 3675,
The burden of production now shifts to O’Dell to come forward with evidence that her failure to avail herself of Trans World’s remedial procedures was caused by a credible fear that her complaint would not be taken seriously or that she would suffer an adverse employment action. O’Dell offers two explanations. First, plaintiff argues that after Lauritsen was informed of the “situation” between her and Rosen, he stated that he would “make some changes after the holiday season”, and that this statement threatened her with an adverse employment action. PI. 56.1 ¶ 119. Second, plaintiff contends that she did not believe that a sexual harassment complaint would be taken seriously by Trans World because she heard Trans World’s Chief Executive Officer (“CEO”) curse while in O’Dell’s store, which she believed was prohibited by the sexual harassment policy. See PI. Mem. at 20. Neither of plaintiffs proffered justifications are adequate.
Lauritsen’s statement was allegedly made on December 24, 1998, five days before O’Dell finally complained of Rosen’s conduct. Based on its timing alone, this statement cannot excuse plaintiffs lengthy delay in reporting Rosen’s misconduct to Human Resources. Moreover, no reasonable jury could find that Lauritsen’s comment threatened plaintiff with retaliation. As already noted, Lauritsen did not know of Rosen’s sexual harassment, even if he knew of a “situation” concerning the poor professional relationship between O’Dell and Rosen. See supra Part III.A.2.a. O’Dell’s subjective interpretation of Lau-ritsen’s statement as a threat of retaliation is therefore untenable. As this Court has previously stated:
[E]very employee who feels harassed by a supervisor will at some level fear the inevitable unpleasantness which will result from complaining to the employer. Confrontation is by its very nature unpleasant. However, to allow an employee to circumvent the reasonable complaint requirements of Faragher and[Ellerth] by making conclusory allegations of feared repercussions[ ] would effectively eviscerate an affirmative defense which the Supreme Court clearly went to great effort to craft in order to stem the tide of unwarranted lawsuits.
Fierro,
Plaintiffs second asserted justification fares no better. Plaintiff has not alleged that the CEO sexually harassed her or in any way condoned sexual harassment by others.
Cf. Meng,
In short, defendant has demonstrated that O’Dell’s lengthy delay in availing herself of the company’s internal complaint procedures and refusal to participate in Trans World’s internal investigation satisfy the second prong of the Faragher/Ellerth defense. Accordingly, summary judgment on plaintiffs hostile work environment claims is granted. 7
B. Retaliation
Section 704 of Title VII prohibits an employer from “discriminating] against any of its employees ... because [the employee] has opposed any practice made an unlawful employment practice by this sub-chapter, or because [s]he has made a charge ... or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she was engaged in a protected activity known to the defendant; (2) the defendant was aware of that activity; (3) she suffered an adverse employment action; and (4) there was a causal connection
For purposes of this motion, Trans World has conceded the first two prongs. Defendant primarily contests the third prong—that O’Dell suffered an adverse employment action following her complaint of sexual harassment to Heller.
1. Constructive Discharge
Plaintiff contends that she was constructively discharged in retaliation for her complaint of sexual harassment. In support of her claim of constructive discharge, plaintiff argues that she believed that Trans World would not take her sexual harassment complaint seriously. This fear was based on the following acts: (1) Heller did not keep plaintiffs complaint of sexual harassment confidential for twenty-four hours, as she had promised; (2) Trans World initially refused to communicate with O’Dell’s counsel; and (3) O’Dell was told that her doctor’s note was insufficient, leading her to believe that “Trans World was attempting to create an issue about her medical condition”. PI. Mem. at 22-23.
In order to maintain a claim for constructive discharge, plaintiff must show that Trans World deliberately made her working conditions so intolerable that she was forced into an involuntary resignation.
See Spence v. Maryland Cas. Co.,
Plaintiffs constructive discharge claim fails for three reasons.
First,
failing to take a sexual harassment complaint seriously does not constitute a constructive discharge. Courts finding instances of constructive discharge have required more serious conduct than that alleged by plaintiff.
See, e.g., Chertkova v. Conn. Gen. Life Ins. Co.,
Second,
even assuming that a failed investigation of an employee’s sexual harassment complaint constitutes intolerable conditions of employment, at the time that O’Dell decided to resign, her belief that her complaint would not be taken seriously was mere conjecture and speculation. O’Dell decided not to return to Trans World less than ten days after she complained of Rosen’s conduct.
See supra
Part II.C. By that date, Trans World had barely begun its investigation. Such a “speculative claim ... hardly rises to the level of ‘intolerable’ working conditions envisioned by the Second Circuit’s standard for constructive discharge.”
Raskin v. Wyatt Co.,
No. 94 Civ. 2314,
Third,
even assuming that the conditions of plaintiffs work were intolerable and that these conditions prompted her resignation, plaintiff has failed to adduce any evidence that Trans World
deliberately
made her work intolerable in order to force her to resign. While the Second Circuit has declined to state whether deliberateness on the part of the employer requires specific intent to force the employee to resign, it has stated that deliberate conduct requires more than mere negligence or ineffectiveness.
See Whidbee v. Garzarelli Food Specialties, Inc.,
In addition to her contention that she was constructively discharged, plaintiff provides a litany of “adverse” employment actions allegedly taken by Trans World. Specifically, plaintiff lists five such adverse employment actions in her memorandum of law: (1) Trans World’s refusal to communicate with plaintiffs counsel during its initial investigation; (2) the investigator’s “biased view that O’Dell was not cooperating with the investigation”; (3) Trans World’s failure to offer O’Dell a job not reporting to Rosen; (4) the fact that Trans World never suggested that O’Dell is welcome to return to work; and (5) Trans' World’s rejection of her doctor’s note. 9 PI. Mem. at 23.
It is well settled that to constitute an “adverse employment action”, a plaintiff must demonstrate that the employment action was a “materially adverse change in the terms and conditions of [her] employment.”
Richardson,
[t]o be “materially adverse” a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.
Galabya v. New York City Bd. of Educ.,
The first two employment actions that plaintiff contends were adverse—Trans World’s refusal to communicate with plaintiffs counsel and its allégedly biased view that O’Dell was not cooperating with its investigation—do not constitute prohibited retaliatory acts.
See Thomlison v. Sharp Elecs. Corp.,
No. 99 Civ. 9539,
At some level of generality, any action taken by an employer for the purpose of defending against the employee’s charge can be characterized as adverse to the employee. Ordinary defensive measures are taken for the very purpose of defeating the employee’s claim.... [However,] [reasonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment.
Id.; see also Reilly v. Metro-North Commuter R.R. Co.,
No. 93 Civ. 7317,
Additionally, Trans World’s failure to offer O’Dell a job not reporting to Rosen or to inform O’Dell that she is welcome to return to work are not adverse employment actions. These omissions did not affect a term or condition of plaintiffs employment. They neither reduced her salary and benefits, nor deprived her of a position or opportunity. Because plaintiff never returned to work at Trans World, she is unable to show that Trans World’s omissions had any attendant negative result. Evidence of such omissions cannot sustain a claim of retaliation. Just as “Title VII ... is not a shield against harsh treatment at the work place”, it is not a sword requiring an apology or an invitation to return to work.
Fridia,
Finally, plaintiff contends that Trans World’s “requiring] additional information from O’Dell regarding her medical leave even after she supplied a note from her doctor” was a materially adverse change in her employment. PI. Mem. at 23. Absent, however, is any allegation that prior to plaintiffs complaint to Human Resources, Trans World accepted doctor’s notes that omitted vital information such as the reason for the requested time off. Indeed, although Trans World did not have a policy as to the “particular form” of a doctor’s note, it generally required that the note document the nature of the illness and how many days of work the employee would miss.
See
Rosen Dep. at 124-25. Therefore, notwithstanding the close temporal proximity between plaintiffs filing of her complaint and defendant’s rejection of her doctor’s note, no inference of retaliatory discrimination is warranted.
See Ali v. Mount Sinai Hospital,
No. 92 Civ. 6129,
In addition, even if Trans World’s request was retaliatory, requiring documentation for sick leave is not an adverse employment action.
See Nicastro v. Run
In sum, none of the actions taken by Trans World following plaintiffs complaint of sexual harassment to Human Resources constitute retaliatory adverse employment actions. Accordingly, summary judgment is granted to Trans World on plaintiffs claims of retaliation.
C. Breach of Contract
It is well established under New York law that “[a]n employee’s entitlement to a bonus is governed by the terms of the employer’s bonus plan.”
Hall v. United Parcel Serv. of Am., Inc.,
Plaintiff decided not to return to Trans World during the first week of January, 1999. See Def. 56.1 ¶ 152. Having failed to return to work since late December 1998, Trans World removed O’Dell from the payroll on March 31, 1999.
See
PL 56.1 ¶ 153. Because O’Dell was not employed on the date that the award checks were issued, she is not entitled to a year-end bonus.
See Truelove v. Northeast Capital & Advisory, Inc.,
III. CONCLUSION
For the reasons stated above, defendant’s summary judgment motion is grant
Notes
. At the time, O’Dell wore glasses. See 12/4/00 Deposition of Julie O'Dell ("12/4/00 O’Dell Dep.”) at 150-51.
. Plaintiff's hostile work environment claim under the HRL is analyzed under the same legal standards as those applicable to Title VII claims. See
Quinn v. Green Tree Credit Corp.,
. While this determination may involve difficult line-drawing that is
sometimes best
left for a jury,
see Gallagher,
. The
Faragher /Ellerth
defense is not available when it is a co-employee, rather than a supervisor, who engages in sexual harassment.
See Richardson,
. The fact that Heller informed her supervisor; Markowitz-Best, of O'Dell's complaint
. Contrary to her suggestion, plaintiff's statements to Perruccio and O'Neill urging Trans World not to promote Rosen did not adequately notify Trans World of Rosen's sexual harassment.
See Murray,
. The New York Court of Appeals has not yet decided whether the
Faragher /Ellerth
defense is applicable to claims of sexual harassment.
See Vitale v. Rosina Food Products Inc.,
No. 783,
. The same standards apply to plaintiff's retaliation claim under the HRL.
See Torres v. Pisano,
. Plaintiff does not argue that the alleged negative reference constitutes an adverse employment action. Nor would such an allegation prevent summary judgment. Although a negative reference can constitute an adverse employment action,
see Wanamaker v. Columbian Rope Co.,