The following facts are either undisputed or as alleged by Plaintiff.
Plaintiff Fuller was hired as a marketing specialist in the Clearing Support Services Department by Instinet, an electronic agency securities broker, in June 1994. In 1996, Plaintiff applied for an available position in the Research and Analytics Sales Department—a position that had been publicized by an internal posting. Plaintiff was interviewed for the job and was told that the department was looking for someone with a Series 7 securities license. Plaintiff did not have a Series 7 securities license; the candidate ultimately hired for the position already had such a license. Later in 1996, Plaintiff sought and received a transfer to the Trading Research Department as a trading research analyst.
Plaintiff complains that, during the course of her employment, several of her co-workers made comments that she felt were racially derogatory. Specifically, Plaintiff complains that on two separate occasions in or about February 1997 two of her coworkers—Chris Kwiatkowski and Sal Arnuk—made comments to her about watermelons. She believes these comments were made because of her race. Plaintiff claims to have reported the comment by Mr. Kwiatkowski to Dorit Zeevi, the Vice–President of her department. (Fuller Aff. 11). In November 1998, Mr. Arnuk referred to Plaintiff as a “nobody.” Plaintiff reported this comment to Ms. Zeevi, the Manager of her Department, Linda Giordano, and Dan Rosenthal and Karen Mohr, who were responsible for equal opportunity matters at Instinet. Plaintiff informed Mr. Rosenthal during a December 1998 meeting that she felt Mr. Arnuk had made this comment because of her race. The matter was reported to Mr. Arnuk's supervisor, who agreed that the comment was “rude” and “shouldn't have been said.” (Fuller Dep. at 228–29). Mr. Arnuk was reprimanded, and he left a message on Plaintiff's voicemail apologizing for his comment.
In January 1999, Ms. Giordano spoke to Plaintiff and one of her co-workers, both of whom had been labeled “low performers,” as part of a concerted effort to address performance issues and keep a “track record” of these two individuals. (Pl.Ex. D). Plaintiff alleges that these efforts to “track” her performance were in retaliation for her complaint about Mr. Arnuk's comment.
*2 Plaintiff retained her present counsel in 1999. Plaintiff's counsel sent a letter to Instinet on July 27, 1999, in which they informed Defendant of Plaintiff's claims of unlawful employment practices and suggested that a “mutually satisfactory resolution of this situation, short of litigation,” was possible.
On or about August 16, 1999, Plaintiff received a performance review, which contained several negative comments. At the time of the review, Plaintiff was awarded a bonus and was given no indication that her bonus had been reduced because of her performance. Although performance reviews were, until that time, conducted on a yearly basis, beginning in 1999, performance reviews were conducted every six months. (Giordano Dep. at 13–14). Plaintiff resigned on August 19, 1999 after receiving this review, claiming that she was constructively discharged. (Fuller Aff. 56).
Plaintiff filed a discrimination and retaliatory charge with the EEOC in or about August 1999. Because the EEOC was unable to resolve Plaintiff's charge within 180 days, it provided Plaintiff with a right to sue letter on or about September 15, 1999. (Compl. 5). Plaintiff brought this action on October 30, 1999, on behalf of herself and others similarly situated, i.e.,
“blacks and Hispanics and other minorities” who were employed by Instinet from 1995 to the date of her motion.
(Compl. at 16). This Court denied class certification in an order dated November 26, 2001. Plaintiff appealed the denial of class certification; her appeal was dismissed.
B. Affirmations Concerning the Handling of Documents and Data
*3 Plaintiff seeks to compel the Defendant to provide affirmations from all Instinet employees who “had control over records and data” regarding her claims. Plaintiff bases this motion on an argument that the deposition testimony of certain Instinet employees contradicted representations made by Plaintiff's counsel to the Magistrate Judge during discovery. As an initial matter, the Court notes that these concerns should have been addressed to the Magistrate Judge during discovery, not to this Court one year after the close of discovery and contemporaneous to Defendant's motion for summary judgment. Furthermore, the Court has reviewed the relevant deposition statements and representations made to the Magistrate Judge during discovery and finds no contradiction, let alone any evidence to suggest that Defendant destroyed documents in contravention of discovery rules. Plaintiff's motion is denied.
II. Defendant's Motion for Summary Judgment
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c). In deciding a summary judgment motion, a court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001). However, “purely conclusory allegations of discrimination, absent any concrete particulars,” are insufficient to defeat a summary judgment motion. Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)).
B. Other Racial Discrimination Claims
In her complaint, Plaintiff also alleges that she was assigned less desirable tasks than white employees (Compl. at 6) and that she received less compensation than white employees with less education and experience. (Compl. at 9). Plaintiff has provided no evidence to support a claim of discrimination regarding assignments; Defendant's motion for summary judgment is therefore granted with respect to this claim.
*4 In order to establish a prima facie case of unequal pay under Title VII, a plaintiff must show (1) the employer pays different wages to employees of different ethnic backgrounds; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; (3) the jobs are performed under similar working conditions; and (4) a showing of discriminatory intent. See
Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999) (prima facie showing for Equal Pay Act claims); see also
Lavin–McEleney v. Marist College, 239 F.3d 476, 483 (2d Cir.2001) (Equal Pay Act and Title VII must be construed in harmony; however Title VII disparate treatment claim requires a showing of discriminatory intent, while an Equal Pay Act claim does not).
The only evidence offered in support of Plaintiff's claim of unequal compensation is the Plaintiff's own statement that
I found in the waste bin of the copy room the salaries of many if not all Instinet employees. Looking at the list of salaries I saw, that considering my background, that [sic] I had been given one of the lowest starting salaries and my salary continued to be low in comparison to other non-minority employees.
(Fuller Aff. 39). Plaintiff has failed to provide the Court with a copy of this document she claims to have found in the waste bin. More to the point, Plaintiff, in her affidavit, does not make any claims whether the non-minority employees whom she claims to have higher salaries (a) perform equal work on jobs requiring equal skill, effort, and responsibility, or (2) perform jobs under similar working conditions. Thus, Plaintiff has failed to establish a prima facie case of unequal pay, and Defendant's motion for summary judgment on this claim is dismissed.
C. Hostile Work Environment
To establish a hostile work environment claim, plaintiff must advance evidence sufficient to permit a reasonable juror to find that the “workplace is permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations omitted).
[The] mere utterance of an ... epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII. For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.
Schwapp v. Town of Avon, 118 F.3d 106, 110–111 (2d Cir.1997) (internal quotations and citations omitted).
Here, Plaintiff alleges that the two comments made to her about watermelons and the comment that she was a “nobody” created a hostile work environment. Although these comments were certainly inappropriate, they cannot be characterized as “a steady barrage of opprobrious racial comments.”
Because the Court finds that Plaintiff has failed to establish a hostile work environment, Defendant's motion for summary judgment is granted.
*5 Plaintiff appears to present two claims of retaliation: first, that her supervisors began to keep a “track record” of her job performance after she complained about a co-worker's comment to her; second, that she received a negative performance review—which she claims resulted in her constructive termination—after her attorneys contacted Instinet regarding her discrimination claims.
To sustain a claim for retaliation, a plaintiff must first present sufficient evidence to make out a prima facie case that (1) she engaged in protected activity; (2) her employer was aware of this activity; (3) her employer took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action. Cifra v. GE, 252 F.3d 205, 216 (2d Cir.2001). Plaintiff is unable to show that Instinet took any adverse action against her, thus Defendant's motion for summary judgment is granted.
A negative employment evaluation, unless accompanied by some additional adverse result, does not constitute an adverse employment action. Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 283 (S.D.N.Y.1999) (collecting cases). A fortiori,
the decision to document an employee's performance—i.e.,
create a “track record”—cannot, by itself, constitute an adverse employment action.
Plaintiff tries to show that she suffered some harm beyond a negative employment evaluation by stating that after she received her negative performance evaluation in August 1999, she “considered [her] self constructively discharged and handed in [her] letter of resignation on August 19, 1999.”
(Fuller Aff. 56). However, Plaintiff has failed to state a claim of constructive discharge. A person is considered constructively discharged when her employer, rather than discharging her directly, intentionally creates a working environment so intolerable that she is forced to quit. Terry v. Ashcroft, 336 F.3d 128, 151–52 (2d Cir.2003). It is already well established in this Circuit that receiving a negative performance evaluation—even if the employee believes the negative evaluation is unwarranted—does not constitute constructive discharge. See, e.g.,
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996) ( “a disagreement with management over the quality of an employee's performance will not suffice to establish constructive discharge”); Katz v. Beth Israel Med. Ctr., 2001 WL 11064, *14 (S.D.N.Y. Jan. 4, 2001) (“An employee is not constructively discharged because she does not like her assignments, receives unfair criticism, or is yelled at by supervisors.”). As Plaintiff cannot show constructive discharge and has failed to show any other adverse employment action, she has failed to make a prima facie case of retaliation.