Bernadette FULLER, Plaintiff, v. INSTINET, INC., Defendant No. 99 Civ. 11453(BSJ) United States District Court, S.D. New York January 29, 2004 Jones, Barbara S., United States District Judge Order *1 Plaintiff Bernadette Fuller, an African American, brings this action against Instinet, Inc. (“Instinet”), her former employer, alleging that Instinet discriminated against her based on her race by creating a hostile work environment, failing to promote her, and retaliating against her, in violation of 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the New York State Human Rights Law, N.Y. Exec. Law § 296. Before the Court are two motions: (1) Plaintiff's motion to compel the production of certain information; and (2) Defendant's motion for summary judgment. For the reasons set forth below, the Court DENIES Plaintiff's motion to compel certain information and GRANTS Defendant's motion for summary judgment. BACKGROUND 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.[1] (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. DISCUSSION I. Plaintiff's Motion to Compel Plaintiff's motion to compel requests the Court to direct Defendant to provide (1) names and addresses of all putative class members, dating back to 1989; (2) affidavits of all employees with access to employment databases and hiring practices, in order to establish whether any documents or data was destroyed.[2] A. Names and Addresses Plaintiff moves to compel the production of the names and addresses of “all putative class members.” Plaintiff argues that she needs this information so that all putative class members may receive notice that this Court denied the motion to certify this action as a class-action. Plaintiff relies upon an opinion by Judge Posner, Culver v. City of Milwaukee, 277 F.3d 908 (7th Cir.2002), in support of this motion. In Culver, the Seventh Circuit held that class members must receive notice of a class decertification. The Culver Court also opined that putative class members should be notified when a class action suit is dismissed before the class is certified. 277 F.3d at 914. Plaintiff relies on this language—which is dicta—for the proposition that putative class members in this suit must receive notice that the Court denied class certification. The Court finds this argument unpersuasive. As an initial matter, the Plaintiff cites no authority for the proposition that putative class members must be notified of a denial of class certification. Unlike the class members in Culver, no prospective class members received any notification of class certification, which would induce them to rely upon this action to protect their interests. Furthermore, requiring notification when a class action suit is dismissed pursuant to a settlement before the class is certified “protect[s] the members of a class in class action litigation from lawyers for the class who may, in derogation of their professional and fiduciary obligations, place their pecuniary self-interest ahead of that of the class.” Reynolds v. Benefit Nat'l Bank, 288 F.3d 277, 279 (7th Cir.2002) (Posner, J.). Neither of these concerns is present in this case. Plaintiff's motion is denied. 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)). A. Failure to Promote or Transfer In order to show a prima facie case of failure to promote or transfer, a plaintiff must allege that: 1) she is a member of a protected class; 2) her job performance was satisfactory; 3) she applied for and was denied promotion or transfer to a position for which she was qualified; and 4) the position remained open and the employer continued to seek applicants. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir.2000). Here, the position in the Research and Analytics Sales Department was the only position for which Plaintiff applied and was denied. Plaintiff herself states that she was told that the department was looking for someone with a Series 7 securities license. Plaintiff did not have her Series 7 securities license, and the candidate ultimately hired for the position already had such a license. Plaintiff has failed to establish that she applied for any other positions and was denied. Defendant's motion for summary judgment with respect to Plaintiff's failure to promote claim is granted. 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.[3] (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.”[4] Because the Court finds that Plaintiff has failed to establish a hostile work environment, Defendant's motion for summary judgment is granted. D. Retaliation *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.”[5] (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. CONCLUSION Plaintiff's motion to compel the production of certain information is denied. Defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this case. *6 SO ORDERED: Footnotes [1] The claims of a co-plaintiff, Ortez Taylor, were dismissed pursuant to a Stipulation and Order of Dismissal, dated April 24, 2000. [2] Plaintiff also appears to seek discovery of the names and addresses of (a) the current and former presidents of Instinet, and (2) the employees who were responsible for the maintenance of Instinet's hiring and employment database and records. Plaintiff offers no reason why she did not make these requests during the discovery phase of this matter, nor does she make any arguments in her Memorandum in support of these requests. These requests are also denied. [3] Plaintiff also relies upon salary data produced by Instinet. This Court has previously considered this data and Plaintiff's contention that it supports her claim of racial discrimination. This argument was rejected in this Court's Order denying class certification. [4] Plaintiff also appears to allege that she witnessed her co-workers make “remarks regarding the sexual body parts of minority women.” (Fuller Aff. ¶ 14). However, she offers no particular facts to support this conclusory allegation, thus it is insufficient to survive a motion for summary judgment. [5] Plaintiff also tries to characterize her evaluation as including an adverse result, stating that Defendant must prove that her negative evaluation “would not be a hindrance to Ms. Fuller either advancing herself at Instinet or in getting a positive recommendation to a new employer.” (Pl. Mem. at 15). Plaintiff is attempting to shift her burden. Plaintiff must prove that her employer took adverse action against her in order to make out a prima facie case of retaliation.