United States District Court, D. New Jersey
OPINION & ORDER
L. WALDOR UNITED STATES MAGISTRATE JUDGE
the Court is the motion of Defendants Jobson Healthcare
Information, LLC (“JHI”) and Jeff Levitz
(“Levitz”) for summary judgment against Plaintiff
Annavil Siroy (“Siroy”) pursuant to Federal Rule
of Civil Procedure 56. (Motion for Summary Judgment, ECF No.
28). In this diversity action, Siroy brings employment claims
of discrimination, hostile work environment, and retaliation
in violation of the New York State Human Rights Law (New York
State Executive Law § 296) (“NYSHRL”) and
New York City Human Rights Law (New York City Administrative
Code § 8-107) (“NYCHRL”). The Court declined
to hear oral argument pursuant to Federal Rule of Civil
Procedure 78, and for the reasons set forth below,
Defendants' Motion for Summary Judgment is
AND PROCEDURAL HISTORY
a Delaware limited liability company with its principal place
of business in the state of New York that provides national
health information and marketing services. (Complaint
(“Compl.”) ¶¶ 6-8 (ECF No. 1, Exh. A)).
Levitz is a resident of the state of Georgia and an employee
of JHI as Senior Vice President of Operations. (Compl.
is a Filipino-American female who resides in Hudson County,
New Jersey. (Compl. ¶ 5). On April 1, 2012, Siroy
commenced employment with JHI, earning a base salary of $75,
000 a year as an Email Marketing Manager under the
supervision of Levitz. (Compl. ¶¶ 14-15, 19;
Employment Agreement ¶ 5 (ECF No. 28-3, Exh. W)).
Discrimination and Hostile Work Environment
alleges that as a result of her race and gender she faced
discrimination at work that led to a hostile work
environment. Specifically, she alleges that she: (1) was not
promoted (Compl. ¶ 30); (2) was excluded from
company-wide salary increases (Id. ¶ 31); (3)
was required to manage an excessive workload (Id.
¶ 39); (4) did not receive proper training
(Plaintiff's Deposition Transcript (“Pl.
Dep.”) at 217 (ECF No. 28-4, Exh. Y)); (5) did not
receive a stipend for the work she put in overtime
(Id. at 214); and (6) was reassigned to a cubicle
away from the window, a cubicle that was then given to a more
recently employed white female (Id. at 100-102).
Siroy further claims that this discriminatory behavior
created a hostile work environment, in which she suffered
emotional distress from feeling humiliated, degraded,
belittled, embarrassed, and victimized, ultimately leading to
her constructive discharge in April 2015. (Compl.
¶¶ 59, 72-74).
Failure to Promote
claims that JHI failed to promote her during her almost three
years at the company because of her race and gender. (Compl.
¶ 30). In her Complaint, Siroy asserts that white male
employees at JHI were promoted after a similar duration of
employment: Dmitri Veinberg was promoted within twenty months
of commencing his employment; Thomas Laauwe was promoted in
less than three years; Bruce Birtwell was promoted in one
year; and Joshua Wasserman, who was hired at the same time as
Siroy, was promoted during Siroy's employment at JHI.
(Compl. ¶¶ 34, 36, 43-45). Siroy testified that she
was unaware of available promotions, and thus never applied
for one. (Pl. Dep. at 130). Still, Siroy's expectation
was that if she “demonstrated [her] skill set and [she]
showed [her] ability to help all different departments,
” she would be considered for a promotion, which she
claims she was not. (Pl. Dep. at 129).
JHI and Levitz offered Siroy the new position of Digital
Marketing Manager, a position that was allegedly created
specifically for her as a way to address the concerns she
raised about her workload. (Declaration of Jeff Levitz
(“Levitz Decl.”) ¶¶ 56 (ECF No. 28-2);
Pl. Dep. at 327). Levitz maintains that Digital Marketing
Manager was a more senior position to her currently held
position that also offered her more money. (Levitz Decl.
¶¶ 56-61). However, Siroy testified that she felt
this was a bilateral move that did not offer room for growth
and ultimately declined the offer. (Pl. Dep. at 325-26).
Companywide Salary Increases
alleges that she was not provided with salary increases
“when compared with other similarly situated employees
because of her race and gender.” (Compl. ¶ 31; Pl.
Dep. at 272). Siroy further explained in her deposition
testimony that the employees she was referring to were
“Dmitri Veinberg and everyone else who got a salary
increase companywide.” (Pl. Dep. at 272). Beyond this
claim, Siroy admits in her testimony that she does not know
for certain whether Veinberg or anyone else actually received
a companywide increase, nor does she proffer any evidence to
support her assertions that these increases occurred. (Pl.
Dep. at 272). The only evidence offered by Siroy to show that
the increases occurred is her testimony that an email sent to
employees announced a companywide salary increase for
employees who met certain criteria: 1) the employee did not
receive a promotion; 2) the employee is not on a commission
plan; and 3) the employee was employed for a specific time
range. (Pl. Dep. at 186).
employment agreement with JHI provided for yearly salary
increases, which she did receive, but she claims that despite
meeting all the criteria in the email, she was excluded from
two company-wide increases. (Employment Agreement ¶ 5
(ECF No. 28-3; Exh. W); Pl. Dep. at 168-69; 185-87)). Siroy
maintains that the companywide salary increases and the
increases provided by her employment agreement are separate
and that nothing in the agreement precludes her from
receiving the additional companywide salary increase.
(Id. at 187). According to JHI's CEO, Jeff
MacDonald, JHI did not provide salary increases to any
employee receiving salary increases pursuant to an employment
agreement. (Declaration of Jeff MacDonald (“MacDonald
Decl.”) ¶ 21 (ECF No. 28-3)).
Complaint, Siroy claims that she was “overloaded with
work, ” generating client reports by manual data entry.
(Compl. ¶ 39). The manual process was apparently so
onerous that it would take Siroy multiple days to complete.
(Id.). Beginning in October 2014, Siroy and Levitz
exchanged emails about managing her workload. (Levitz Decl.
¶ 50; Exh. J (ECF No. 28-2)). Defendants allegedly
responded by creating the new position of Digital Marketing
Manager, which Siroy declined. Levitz continued to speak to
Siroy into January 2015 about managing and reducing her
workload and started looking to bring on a new staff member
that could assume Siroy's responsibilities of manually
generating client reports. (Levitz Decl. ¶ 67-69). This
position was eventually filled in March 2015. (Levitz Decl.
further evidence of discrimination, Siroy also asserts that
the manual reporting could have been automated, but Dmitri
Veinberg refused to create an automated program, and Levitz
permitted him to do so. (Compl. ¶ 38-39). Siroy further
testified that Levitz would assign her the work that Veinberg
declined to work on. (Pl. Dep. at 144).
Failure to Train
testified in her deposition that she did not receive training
to handle personally identifying information, which by the
end of her time at JHI, was about 80% of her workload. (Pl.
Dep. at 225). Siroy claims a pattern of providing training in
a discriminatory manner and identifies other minority
employees who did not receive training, while white employees
did. (Id. at 169, 216-17, 225). According to Levitz,
JHI provides training to all employees that request it on
personally identifying information. (Levitz Decl. ¶ 91).
Siroy admits she never asked for such training.
(Plaintiff's Responsive Statement of Material Facts in
Opposition to Defendants' Rule 56.1(a) Statement
(“Pl. SMF”) at 164 (ECF No. 32-5)).
also claims that she did not receive any overtime or stipend
when asked to perform additional work, while white male and
female employees did. Siroy identified another minority
female who she believes was also denied overtime. (Pl. Dep.
at 216). Levitz explained in his Declaration that JHI had a
policy of providing stipends to employees whose job duties
included deployment of marketing emails and required them to
be “on call” after 5:00 P.M. to handle emergency
issues. (Levitz Decl. ¶ 83-86). Levitz claims that only
this limited group of employees who was entitled based on
this criterion was given stipends and that the other minority
female that Siroy identifies did not meet these criteria.
(Id. ¶ 88). Siroy testified that while she did
perform work after 5:00 P.M., she did not have to respond to
clients after that time. (Pl. Dep. at 106).
Reassignment of Cubicle
Siroy alleges that JHI reassigned her cubicle away from a
window and gave her old window cubicle to a newly hired white
female despite Siroy's seniority. (Pl. Dep. at 100-102).
Siroy also claimed that other employees who belonged to
protected classes were also moved away from the window. (Pl.
Dep. at 102-103). While Siroy admits that there is no written
policy concerning who receives a cubicle at a window with a
view, Siroy testified that there was a “company
culture” that effectively adopted this policy.
(Id.). Levitz claims that JHI moved the location of
Siroy's cubicle, along with the cubicle of a white male,
away from a window with a view because JHI's Alert
Marketing Department production group grew and JHI wanted to
organize the production employees' work spaces into one
area of the office. (Levitz Decl. ¶ 90).
January 12, 2015, Siroy filed her first formal internal
complaint of discrimination. (Internal Complaint at 2 (ECF
No. 28-2, Exh. T)). Then on February 11, 2015, Siroy filed a
complaint with the EEOC. (EEOC Charge of Discrimination (ECF
No. 28-4, Exh. BB)). After the filings, Siroy claims that she
began to experience retaliation by the Defendants, which
ultimately resulted in her constructive termination on April
1, 2015. (Compl. ¶ 56, 59; Letter of Resignation (ECF
No. 28-2 Exh. U)). Specifically, Siroy claims that (i) her
workload increased; (ii) she was wrongly accused of
insubordination; (iii) she was excluded from team meetings
beginning in early 2015; (iv) her non-compete agreement with
JHI was enforced against her when she applied for a job at
WebMD Health Corp., while similar non-competes were not
enforced against other employees.
Complaint, Siroy alleges that her workload increased as a
result of her filing formal complaints of discrimination.
(Compl. ¶ 58). She does not quantify or explain in any
other way how it increased in her Complaint, but in her
deposition, Siroy testifies that after January 2015, more
reports were needed from her. (Pl. Dep. at 348). She says
this is because more requests, which are client driven, came
Accusation of Insubordination
also claims that she was accused of insubordination by Levitz
after she submitted her first formal internal complaint of
discrimination on January 12, 2015. (Internal Complaint at
3). The accusation was sent in an email to Siroy on January
11, 2015. (Id.). Levitz was allegedly responding to
a miscommunication between Siroy and ...