Moll v. Telesector Resources Group, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CINDY L. MOLL,

Plaintiff,

v. DECISION AND ORDER

04-CV-805S

TELESECTOR RESOURCES GROUP, INC.,

d/b/a VERIZON SERVICES GROUP, a/k/a

VERIZON NEW YORK INC.,

Defendant.

Table of Contents

I. INTRODUCTION ...................................................................................................... 2

II. BACKGROUND ....................................................................................................... 4

A. Proceedings Up to Second Circuit Remand ......................................................... 4

B. On Remand: Second Amended Complaint (Docket No. 148) and Proceedings to

Motions for Summary Judgment .................................................................................. 7

C. Defendant’s Motion (Docket No. 216) ................................................................... 9

1. Defendant’s Arguments .................................................................................. 9

2. Response and Reply ....................................................................................... 9

D. Plaintiff’s Motion Dismissing the Counterclaims (Docket No. 215) ....................... 9

1. Plaintiff’s Arguments ....................................................................................... 9

2. Response and Reply ..................................................................................... 13

III. DISCUSSION ......................................................................................................... 14

A. Applicable Standards .......................................................................................... 14

1. Summary Judgment ...................................................................................... 14

2. Title VII .......................................................................................................... 16

3. New York State Human Rights Law .............................................................. 19

4. Equal Pay Act ............................................................................................... 20

5. Supplemental Jurisdiction ............................................................................. 20

6. Unjust Enrichment and Common Law Fraud ................................................ 21

B. Dismissal of Counterclaims (Docket No. 215) .................................................... 22

C. Dismissal of Complaint (Docket No. 216) ........................................................... 26

1. First Motion for Summary Judgment (Docket No. 101) ................................. 27

2. Present Motion for Summary Judgment (Docket No. 216) ............................ 28

a. Byrne ......................................................................................................... 28

b. Hostile Work Environment ......................................................................... 30

c. Disparate Treatment and Retaliation ......................................................... 38

(1) Transfer to Syracuse .............................................................................. 38

(2) Hockey Tickets ....................................................................................... 45

(3) Sales ...................................................................................................... 47

(4) Rankings ................................................................................................ 49

(5) Professional Networking ......................................................................... 51

(6) Alternative Worksite ............................................................................... 53

(7) Layoff ..................................................................................................... 54

d. Pay Equity Claim ....................................................................................... 58

e. Supplemental Jurisdiction .......................................................................... 60

IV. CONCLUSION ....................................................................................................... 60

V. ORDERS ................................................................................................................ 60

I. INTRODUCTION

Before this Court are Plaintiff’s (Docket No. 215) and Defendant’s (Docket No. 216)

Motions for Summary Judgment. Plaintiff moves for summary judgment to dismiss

Defendant’s counterclaims against her (Docket No. 215). Defendant Telesector

Resources Group, Inc., d/b/a Verizon Services Group, a/k/a Verizon New York Inc.

(hereinafter “Verizon Business,” see Docket No. 217, Def. Memo. at 1 & n.1, or

“Defendant”) renews its motions (cf. Docket No. 101) for summary judgment dismissing

the Complaint (Docket No. 216).

In support of her motion for dismissal of the counterclaims, Plaintiff submitted her

Statement of Undisputed Facts (“Pl. Statement”), appendix of exhibits, and Memorandum

of Law (Docket No. 215). Defendant submitted its Statement of Undisputed Facts (“Def.

Statement”), appendix of exhibits (Docket No. 216), and Defense Memorandum of Law

(Docket No. 217).

Responses to both motions were due by September 22, 2017, replies by

October 6, 2017 (Docket No. 218). Defendant (Docket Nos. 219 (opposing

memorandum), 220 (Defendant’s Counterstatement of Facts, “Def. Response

Statement,” exhibits)) and Plaintiff (Docket Nos. 221 (Plaintiff’s Counterstatement of

Facts, “Pl. Counterstatement,” exhibits), 222 (appendix of exhibits), 223 (Plaintiff’s

counsel’s Declaration and opposing memorandum), 226 (letter correcting errors in

Plaintiff’s Counterstatement) filed their respective timely responses and then filed their

timely replies (Docket Nos. 228 (Plaintiff), 227 (Defendant)) and the matter was deemed

submitted, without oral argument.

This case is on remand from the United States Court of Appeals for the Second

Circuit (Docket No. 134, Aug. 15, 2014, see Moll v. Telesector Resources Group, Inc.,

760 F.3d 198 (2d Cir. 2014)) after that court vacated the judgment granting partial

summary judgment to Verizon Business (see Docket No. 117, Amended Decision and

Order, May 30, 2012, 2012 U.S. Dist. LEXIS 74949) and granting Defendant’s earlier

motion to dismiss (see Docket No. 13, Order of Sept. 29, 2005, 2005 U.S. Dist. LEXIS

43605). The court also addressed certain discovery orders, Moll, supra, 760 F.3d at 202-

03. The Second Circuit held that this Court should have considered Plaintiff’s allegations

in their totality, that sex-based hostile work environment claims “may be supported by

facially sex-neutral incidents and ‘sexually offensive’ acts may be facially sex-neutral,” id.

at 200 (citing Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002)), vacating dismissal of

Plaintiff’s Title VII and New York State Human Rights Law hostile work environment

claims, id. at 204. The Second Circuit also vacated because this Court refused to

consider a witness’s affidavit when it contradicted earlier deposition testimony, denying

that a witness (as opposed to a party) could create a “sham issue of fact,” id. at 201, 204-

06. Familiarity with the Second Circuit’s decision (and the extensive procedural history

of this case) is presumed.

On remand, this Court has considered not only the pending moving papers but

also Verizon Business’s initial motion for summary judgment (Docket Nos. 101-03, 112-

14) and Plaintiff’s opposition papers (Docket Nos. 107-08, 110).

For the reasons stated herein, Defendant Verizon Business’s motion for summary

judgment (Docket No. 216) is granted; Plaintiff’s motion for summary judgment (Docket

No. 215) to dismiss the counterclaims also is granted.

II. BACKGROUND

A. Proceedings Up to Second Circuit Remand

Plaintiff commenced this Title VII, 42 U.S.C. §§ 2000e, et seq., New York State

Human Rights Law, N.Y. Exec. Law §§ 390, et seq., action against the enterprise now

known as Verizon Business for sex discrimination, hostile work environment, retaliation,

and Equal Pay Act, 29 U.S.C. §§ 206, et seq., violations (Docket No. 148, 2d Am. Compl.).

To summarize Plaintiff’s claims and according to the Second Circuit’s decision,

Moll, supra, 760 F.3d at 201-02,

Moll’s story begins in 1997 when Telesector Resources Group, Inc.

(“Verizon”) promoted her from clerical employee to System Analyst/Sales

Engineer in its Buffalo, New York office. Moll alleges that beginning in 1998

she was subjected to sex-based disparate treatment, a hostile work

environment, and retaliation.

Moll alleges that in 1998 and 1999, Daniel Irving, a Senior Systems

Analyst, left Moll three inappropriate notes. And in 1999, while they were

on a business trip, Irving called her hotel room repeatedly and asked her to

come to his hotel room. After Irving became her direct supervisor in March

2001, Moll alleges that he left her a note that said he thought about her

when he was taking a shower. Moll also claims that Irving would not permit

her to communicate with him by email or telephone; she had to see him in

person. And Moll claims that throughout his tenure as her supervisor, Irving

refused to have her assessed for a promotion claiming that there was a

promotion freeze. However, two male colleagues were promoted during

this time period.

In March 2002, Irving placed Moll on a counseling plan based on her

job performance. That year Moll was the lowest paid Sales Engineer in the

Buffalo office. Moll occasionally worked at home, usually when one of her

children was sick. In May 2002, however, Irving informed Moll that she could

no longer work at home even though, according to Moll, her male

counterparts continued to do so. Moll was denied a request to take vacation

on July 5, 2002. Yet, Moll alleges, male colleagues with less tenure were

granted the same vacation request. Moll also claims that she and other

women in the office were excluded from work-related social events,

including attending professional hockey games.

In January 2003, Christopher Gaglione became her supervisor. In

July 2003, Gaglione promoted Moll to Sales Engineer II.

On September 19, 2003, Moll filed a Charge of Discrimination with

the Equal Employment Opportunity Commission ("EEOC") alleging that she

had been "subjected to different terms and conditions of employment than

similarly situated male employees" and a “hostile work environment.” J.A.

67. Moll also complained that she had been promoted “to a lower level

position than similarly situated males” and generally alleged retaliation after

complaining to Verizon management of sexual discrimination and

harassment. Id. The EEOC issued a Notice of Right to Sue dated August 9,

2004.

On October 5, 2004, Moll filed a complaint with the district court,

alleging that she had been (i) subjected to gender-disparate treatment; (ii)

subjected to a sexually hostile work environment; (iii) retaliated against; and

(iv) paid less than male employees, in violation of Title VII of the Civil Rights

Act of 1964, § 102(a) of the Civil Rights Act of 1991, the New York State

Human Rights Law (“NYSHRL”), and the Equal Pay Act (“EPA”).

In December 2004, Verizon transferred the Sales Engineers in the

Buffalo office to the Syracuse office, purportedly because the company

wanted all of the Sales Engineers to work out of the same office as their

supervisors. Moll alleged that this transfer was retaliation for her lawsuit.

Verizon offered Moll three options: (1) transfer to Syracuse; (2) find a new

job at Verizon; or (3) take a severance package. Moll claims she had no

choice but to transfer to Syracuse because she could not find another job

at Verizon and Verizon refused to give her details regarding her severance

package. Moll was told that she must report to the Syracuse office when

she was not in customer meetings and that she could not work from home.

Moll eventually took disability leave because of the “overwhelming stress

and anxiety” she experienced.

See also Moll v. Telesector Resources Group, Inc., 04CV805, 2012 U.S. Dist. LEXIS

74949, at *2-44 (W.D.N.Y. May 30, 2012) (Skretny, C.J.) (Docket No. 117) (more detailed

recitation of facts).

Defendant moved to dismiss (Docket No. 2), Moll, supra, 760 F.3d at 202, and this

Court granted that motion in part (Docket No. 13, 2005 U.S. Dist. LEXIS 43605). The

Second Circuit vacated this decision, 760 F.3d 198. Meanwhile defendant answered the

then-surviving claims (Docket No. 14). The case was referred to Magistrate

Judge Schroeder for pretrial proceedings (Docket No. 15; see also Docket No. 136).

On August 29, 2005, Plaintiff was placed on disability (to be discussed in

considering Plaintiff’s motion to dismiss the counterclaims) until March 6, 2006 (Docket

No. 215, Pl. Statement ¶¶ 7, 21, 13-14). Meanwhile, in February 2006, Plaintiff’s job was

transferred to Syracuse, Moll, supra, 760 F.3d at 202. A year later, Moll was told that

there would be a Reduction in Force and that she would be terminated because of her

performance was below that of her peers, and she was terminated on February 7, 2007,

id.

On April 17, 2008, Plaintiff amended her Complaint (Docket No. 57) adding

allegations surrounding her transfer to Syracuse and termination, see id. Defendant

answered this amended pleading and alleged a counterclaim (Docket No. 58). Plaintiff

replied to the counterclaim (Docket No. 59).

On September 16, 2011, Defendant moved for summary judgment (Docket

No. 101), id. at 203. This Court granted the motion dismissing all claims (Docket No. 117,

2012 U.S. Dist. LEXIS 74949 (May 30, 2012). The Second Circuit vacated this decision,

Moll, supra, 760 F.3d 198 (2d Cir. 2014). The parties stipulated to dismiss Plaintiff’s

promotion delay claim and Defendant’s counterclaim (without prejudice to renew if

Plaintiff’s appeal restored the case) following granting Defendant’s summary judgment

motion (Docket No. 129).

B. On Remand: Second Amended Complaint (Docket No. 148) and Proceedings to

Motions for Summary Judgment

The Second Circuit issued its mandate (Docket No. 134) and following subsequent

status conferences (Docket Nos. 138-39, 145, 147) including a mediation session (see

Docket No. 146), Plaintiff amended the Complaint again (Docket No. 148). There, the

First Cause of Action alleges sex discrimination against Plaintiff, discriminating against

her in compensation, terms, conditions, privileges of employment and in her termination

(Docket No. 148, 2d Am. Compl. ¶¶ 102-11). The Second Cause of Action also alleges

sex discrimination but in violation of the New York State Human Rights Law, invoking this

Court’s supplemental jurisdiction, 28 U.S.C. § 1367(a) (id. ¶¶ 114-20). The Third Cause

of Action alleges that Defendant maintained and did not correct a hostile work

environment (¶¶ 123-30). The Fourth Cause of Action, again asserting supplemental

jurisdiction, alleges hostile work environment in violation of the New York Human Rights

Law (id. ¶¶ 133-38). The Fifth Cause of Action alleges Defendant retaliated against

Plaintiff for complaints against their alleged discriminatory practices (id. ¶¶ 141-46), while

the Sixth Cause of Action alleges similar retaliation in violation of New York Human Rights

Law (id. ¶¶ 149-55). Finally, the Seventh Cause of Action alleges violation of the Equal

Pay Act (id. ¶¶ 158-65). Plaintiff seeks damages of $3 million, declaratory and injunctive

relief, and recovery of her attorneys’ fees and costs (id.) and a jury trial (id. ¶¶ 111, 121,

131, 193, 147, 156, 166).

Defendant answered (Docket No. 149), asserting in Count I of its counterclaims

that Plaintiff falsely claimed she was disabled and (while on disability leave in 2005-06)

attended college, thus Plaintiff enjoyed an unjust enrichment of receiving full benefits

while on claimed disability (id., Counterclaim ¶¶ 6-21). Count II of the counterclaims

alleges that Plaintiff fraudulently misrepresented her health, leading Defendant to incur

$40,000 in damages in paying her disability benefits (id., Counterclaim ¶ 23). Plaintiff

replied to the counterclaims (Docket No. 150).

After additional discovery (see Docket Nos. 151, 152, 153-211), the parties filed

their respective motions for summary judgment (Docket Nos. 215, 216).

C. Defendant’s Motion (Docket No. 216)

1. Defendant’s Arguments

Defendant Verizon Business argues that, despite the remand, Plaintiff still fails to

establish the elements for her claims (Docket No. 217, Def. Memo. at 1). For her hostile

work environment, Verizon Business contends Plaintiff has not sufficiently established a

severe or pervasive conduct despite her itemization (id. at 12). Plaintiff listed incidents

over nine years with periods of no challenged actions or isolated, challenged acts (id.).

Verizon Business terms these incidents to be episodic and thus not actionable under

Title VII and the New York Human Rights Law (id. at 12-13). Plaintiff merely cites to

instances male co-workers received a benefit she did not or incidents she was not

involved in (id. at 13).

2. Response and Reply

Plaintiff counters that there are material issues of fact whether there was a hostile

work environment (Docket No. 223, Pl. Memo. at 15-19), disparate treatment and

retaliation claims (id. at 21-34). Plaintiff charges that she perceived the hostile

environment and did not need to prove this by complaining at every instance (id. at 20-

21).

D. Plaintiff’s Motion Dismissing the Counterclaims (Docket No. 215)

1. Plaintiff’s Arguments

Upon Plaintiff’s Statement of Uncontested Material Facts (Docket No. 215), save

when contested to by Verizon Business (Docket No. 220) and Verizon Business’s

submitted additional facts (not contested by Plaintiff) (id. ¶¶ 22-54), Plaintiff states that

she was employed by Verizon Business (and its corporate predecessors) from 1990 to

2007 (Docket No. 215, Pl. Statement ¶ 1). Plaintiff obtained short-term disability coverage

for mental health treatment and paid her salary continuation benefits (Docket No. 215, Pl.

Memo. at 2-4). In June 2004, Plaintiff began treatment with Dr. Maria Nickolova for stress,

depression, and anxiety due to harassment, discrimination, and retaliation at work

(Docket No. 215, Pl. Statement ¶¶ 4, 7). Verizon Business disputes the reason for

Plaintiff’s treatment and argues that Plaintiff misled her treating professionals in claiming

that she was unable to function (Docket No. 220, Def. Response Statement ¶¶ 4, 7). Dr.

Nickolova prescribed anti-anxiety medication and referred her to a counselor, with Plaintiff

seeing Dr. Nickolova monthly and the counselor every other week (Docket No. 215, Pl.

Statement ¶¶ 5-6). On August 29, 2005, Dr. Nickolova took Plaintiff off work (Docket

No. 215, Pl. Statement ¶ 7); Verizon Business contends that the diagnosis leading to work

disability is based upon Plaintiff’s description of her symptoms and that Dr. Nickolova had

no independent means of confirming what Plaintiff told her (Docket No. 220, Def.

Response Statement ¶ 7). After Plaintiff was removed from work filed for disability

benefits pursuant to Verizon Business’s short-term disability plan (Docket No. 215, Pl.

Statement ¶ 8). Verizon Business notes that Dr. Nickolova completed an attending

physician statement finding that Plaintiff could not return to work, that Plaintiff had

limitations as difficulties in concentration, attention, focus, suffered from fatigue and

insomnia, and she was not motivated (Docket No. 220, Def. Response Statement ¶ 27;

see also id. ¶ 28 (subsequent physician statement)). Verizon Business’s plan

administrator, Unum Provident, approved Plaintiff’s benefit claim based upon

Dr. Nickolova’s representations (see Docket No. 220, Def. Response Statement ¶ 9; cf.

Docket No. 215, Pl. Statement ¶ 9).

In October 2005, Plaintiff began treatment with Mary Ellen Kranock, LCSW-R

(Docket No. 215, Pl. Statement ¶ 10). Unum Provident also obtained copies of medical

information from Kranock regarding Plaintiff’s treatment (see id. ¶¶ 11, 12); Verizon

Business, however, contends that Kranock provided information as disclosed by Plaintiff,

which Defendant terms to be false reporting (Docket No. 220, Def. Response Statement

¶¶ 11, 12). Based on medical information from Dr. Nickolova and Kranock, disability

benefits continued to Plaintiff through March 6, 2006 (Docket No. 215, Pl. Statement ¶ 13;

but cf. Docket No. 220, Def. Response Statement ¶ 13), with Plaintiff receiving salary

continuation benefits (Docket No. 215, Pl. Statement ¶ 14; but cf. Docket No. 220, Def.

Response Statement ¶ 14). Verizon Business contends, however, that Plaintiff duped

her psychiatrist, counselor, and clinical social worker into opining that Plaintiff was

disabled (Docket No. 220, Def. Response Statement ¶ 14).

During her treatment but before she was disabled, Plaintiff enrolled in an

accelerated degree program at Medaille College and Defendant was aware of her

enrollment (Docket No. 215, Pl. Statement ¶ 15; id., Pl. Memo. at 4). Verizon Business

contends Plaintiff took three credit hours in August and September 2005 while she

claimed to be unable to function (Docket No. 220, Def. Response Statement ¶ 29).

Plaintiff continued to receive disability benefits while enrolled at Medaille (Docket No. 215,

Pl. Memo. at 5) and Defendant was aware of both the classes and Plaintiff’s disability

benefits (id.; id., Pl. Statement ¶¶ 17, 20). Verizon Business contends that it and Unum

Provident was not aware of the demands in the Medaille program (Docket No. 220, Def.

Response Statement ¶¶ 15, 17), with references in Plaintiff’s medical record to going to

college not reflecting the extent of her studies (id. ¶ 17). Plaintiff also participated in

volunteer activities that Defendant was aware of from her disclosed medical records

(Docket No. 215, Pl. Memo. at 5-6; id., Pl. Statement ¶ 19). Plaintiff volunteered at her

daughter’s school reading and volunteering in the lunchroom for an hour or two once a

week and served as eucharistic minister for her church serving in a nursing home weekly

(id. ¶ 19). Verizon Business counters that this volunteering showed that Plaintiff was not

as lethargic as she claimed in her disability application (Docket No. 220, Def. Response

Statement ¶ 19). With these disclosures of attending classes and volunteer work,

Dr. Nickolova and Kranock found that Plaintiff still was disabled and could not return to

work (Docket No. 215, Pl. Memo. at 3-4, 6). Plaintiff claims that Kranock recommended

that Plaintiff continue her studies since it provided structure in her life while she was on

disability (Docket No. 215, Pl. Statement ¶¶ 16, 18). Verizon Business contends that its

agent, Unum Provident, made benefit decisions independent of Defendant (Docket

No. 220, Def. Response Statement ¶ 20). Verizon Business also states that during her

disability Plaintiff represented that she was still employed to seek reimbursement for her

books (id. ¶ 21).

In Verizon Business’s additional facts (Docket No. 220, Def. Response Statement

¶¶ 22-54) it notes that Plaintiff’s duty station relocated from Buffalo to Syracuse in early

2005, Verizon Business points out that Dr. Nickolova found that Plaintiff could not work in

August of that year (id. ¶¶ 22-23). Dr. Nickolova based her assessment only upon

Plaintiff’s statements (id. ¶¶ 24, 26). Verizon Business then indicates that Plaintiff

continued treatment with Dr. Nickolova and claimed that she had difficulty concentrating

and lacked motivation while also attending classes at Medaille, getting an A in Ethics in

the Workplace (id. ¶¶ 29-31).

Plaintiff moves to dismiss the counterclaim against her, arguing that ERISA

29 U.S.C. §§ 1001, et seq., precluded the counterclaim because Defendant as an ERISA

fiduciary could only bring a claim for equitable relief and not for damages, 29 U.S.C.

§ 1132(a) (id. at 6-8). She next argues that Defendant failed to establish either fraud or

unjust enrichment (id. at 9-10). Plaintiff disclosed her attending school and volunteering

to Defendant, hence not withholding material facts (id. at 9).

2. Response and Reply

Verizon Business contends that Plaintiff perpetrated a disability fraud (Docket

No. 219, Def. Memo. at 3-11) by claiming total disability (id. at 2) while attending college

and volunteering (id. at 6-9). Plaintiff did not tell Dr. Nickolova she was attending college

while disabled as Dr. Nickolova reported to Unum Provident in a December 2005 disability

assessment form (id. at 7).

Verizon Business next argues that Plaintiff waived her ERISA preemption

argument by raising it for the first time in her motion but not in her responding pleadings

or subsequent papers (Docket No. 219, Def. Memo. at 11, 12-17). Defendant contends

that Plaintiff misrepresented her condition (to her doctor and counselor and ultimately to

Defendant) in order to obtain and continue disability benefits while attending college full-

time (id. at 18-23). Plaintiff represented that she was disabled to her doctor (that she was

unable to focus, function or concentrate) while “living a completely different reality” in

attending college classes (id. at 19).

Plaintiff replies that she raised (generally) affirmative defenses denying subject

matter jurisdiction and contending that Verizon Business failed to state a cause of action,

contending that jurisdictional defenses are not waivable (Docket No. 228, Pl. Atty. Reply

Decl. ¶¶ 3-5, 7; Docket No. 228, Pl. Reply Memo. at 3-4). Plaintiff argues that the

counterclaims are governed by ERISA which preempts state law claims (Docket No. 228,

Pl. Atty. Reply Decl. ¶ 6; id., Pl. Reply Memo. at 2-3). She argues that preemption is not

an affirmative (hence waivable) defense (Docket No. 228, Pl. Reply Memo. at 3), 1-5

Moore’s Manual: Federal Practice and Procedure § 5.13[3][b] (2020) (discussing

complete preemption for removal purposes).

III. DISCUSSION

A. Applicable Standards

1. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a). A

fact is “material” only if it “might affect the outcome of the suit under governing law,”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine” dispute, in turn,

exists “if the evidence is such that a reasonable jury could return a verdict for the non-

moving party,” id. In determining whether a genuine dispute regarding a material fact

exists, the evidence and the inferences drawn from the evidence “must be viewed in the

light most favorable to the party opposing the motion,” Adickes v. S.H. Kress & Co.,

398 U.S. 144, 158-59 (1970) (internal quotations and citations omitted).

“Only when reasonable minds could not differ as to the import of evidence is

summary judgment proper,” Bryant v. Maffucci, 923 F.32d 979, 982 (2d Cir. 1991)

(citation omitted). Indeed “[i]f, as to the issue on which summary judgment is sought,

there is any evidence in the record from which a reasonable inference could be drawn in

favor of the opposing party, summary judgment is improper,” Sec. Ins. Co. of Hartford v.

Old Dominion Freight Line, Inc., 391 f.3d 77, 82,-83 (2d Cir. 2004) (citation omitted). The

function of the court is not “to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial,” Anderson, supra, 477 U.S. at

249.

“When the burden of proof at trial would fall on the nonmoving party, it ordinarily is

sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

essential element of the nonmovant’s claim,” Cordiano v. Metacon Gun Club, Inc.,

575 F.3d 199, 204 (2d Cir. 2009), citing, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “Where the moving party demonstrates ‘the absence of a genuine issue of

material fact,’ the opposing party must come forward with specific evidence

demonstrating the existence of a genuine dispute of material fact,” Brown v. Eli Lilly &

Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted) (quoting Celotex, supra, 477 U.S.

at 323). The party against whom summary judgment is sought, however, “must do more

than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he

nonmoving party must come forward with specific facts showing that there is a genuine

issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986) (emphasis in original removed).

Summary judgment is appropriate only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed. R. Civ.

P. 56(a). The party seeking summary judgment has the burden to demonstrate that no

genuine issue of material fact exists. In determining whether a genuine issue of material

fact exists, a court must examine the evidence in the light most favorable to, and draw all

inferences in favor of, the nonmovant. Ford, supra, 316 F.3d at 354.

As briefly noted above, the Local Civil Rules of this Court require that movant and

opponent each submit “a separate, short, and concise” statement of material facts, and if

movant fails to submit such a statement it may be grounds for denying the motion,

W.D.N.Y. Loc. Civ. R. 56(a)(1), (2). The movant is to submit facts in which there is no

genuine issue, id. R. 56(a)(1), while the opponent submits an opposing statement of

material facts as to which it is contended that there exists a genuine issue to be tried, id.

R. 56(a)(2). Each numbered paragraph in the movant’s statement will be deemed

admitted unless specifically controverted by a correspondingly numbered paragraph in

the opponent’s statement, id. Absent such an opposing statement, the facts alleged by

the movant are deemed admitted. Each statement of material fact is to contain citations

to admissible evidence to support the factual statements and all cited authority is to be

separately submitted as an appendix to that statement, id. R. 56(a)(3).

2. Title VII

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), Plaintiff

bears the burden of demonstrating that sex was a motivating factor in the adverse

employment action, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56

(1981). She bears the burden of establishing a prima facie case of discrimination, id. at

252-54. If Plaintiff does so, the burden shifts to Verizon Business to articulate some

legitimate, nondiscriminatory reason for its action, id. at 254-56. If that has been met, the

burden shifts back to Plaintiff to show, beyond the prima facie case, that Defendant’s

determination was the result of discrimination, id. at 256; see McDonnell Douglas, supra,

411 U.S. at 804-05.

To prove a hostile work environment claim based upon sex, Plaintiff needs to

establish that the acts were “sufficiently severe or pervasive ‘to alter the conditions of

[plaintiff’s] employment and create an abusive working environment,’” Meritor Sav. Bank

v. Vinson, 477 U.S. 57, 67 (1986) (Docket No. 217, Def. Memo. at 6). Plaintiff also has

to establish that the “workplace is permeated with ‘discriminatory intimidation, ridicule and

insult,’” that is so “severe or pervasive” to create an “objectively hostile or abusive work

environment,” and plaintiff “subjectively perceive[d] the environment to be abusive,” Harris

v. Forklift Sys., 510 U.S. 17, 21-22 (1993) (quoting Meritor Sav., supra, 477 U.S. at 65,

67) (id.); Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004); Byrne v. Telesector

Resources Group, Inc., 339 F. App’x 13, 18 (2d Cir. 2009) (summary Order). Based upon

the totality of the circumstances, Bentivegna v. People’s United Bank, No. 2:14-cv-599,

2017 WL 3394601, at *13 (E.D.N.Y. Aug. 7, 2017), to determine whether the misconduct

was severe or pervasive, the complained-of behavior was sufficiently frequent, or severe;

was physically threatening or humiliating or merely an offensive comment; unreasonably

interfered with the victim’s work; and caused psychological harm, see Harris, supra,

510 U.S. at 23 (id.). “[O]ffhand comments, and isolated incidents (unless extremely

serious)” will not suffice, Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (id.);

see Petrosino, supra, 385 F.3d at 223.

Plaintiff also needs to show the existence of a specific basis for imputing the

conduct to Defendant employer that created a hostile work environment, Ribis v. Mike

Barney Chevrolet-Cadillac, Inc., 03CV6489, 2007 U.S. Dist. LEXIS 1397, at *28

(W.D.N.Y. Jan. 8, 2007) (Larimer, J.); Byrne v. Telesector Resources Group, Inc.,

No. 04CV76, 2007 WL 962929, at *18 (W.D.N.Y. Mar. 29, 2007) (Skretny, J.), aff’d,

339 F. App’x 13 (2d Cir. 2009). Or, “that a specific basis exists for imputing the conduct

that created the hostile environment to the employer,’” Mento v. Potter, No. 08CV74,

2012 WL1908920, at *14 (W.D.N.Y. May 21, 2012) (Skretny, C.J.) (quoting Mack v. Otis

Elevator Co., 326 F.3d 116, 122 (2d Cir.) (internal quotations and alterations omitted),

cert. denied, 540 U.S. 1016 (2003)); see Harris, supra, 510 U.S. at 21.

“‘The sufficiency of a hostile work environment claim is subject to both subjective

and objective measurement: the plaintiff must demonstrate that she personally

considered the environment hostile, and that the environment rose to some objective level

of hostility.’ Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir.2001),” Mento,

supra, 2012 WL 1908920, at *14; Bentivegna, supra, 2017 WL 3394601, at *13 (citing

cases); see Harris, supra, 510 U.S. at 21-22. Thus, Plaintiff must “not only allege that

she found the environment offensive, but that a reasonable person also would have found

the environment to be hostile or abusive,” Bentivegna, supra, 2017 WL 3394601, at *13,

citing Harris, supra, 510 U.S. at 21-22.

To state a disparate treatment claim in discrimination in compensation or

conditions or privileges of employment because of gender under either Title VII or the

New York State Human Rights Law, see, e.g., Moll, supra, 2012 U.S. Dist. LEXIS 74949,

at *47, Plaintiff again needs to state a prima facie case, when this is done the burden

shifts to Verizon Business to show non-discriminatory reason for the action, and the

burden shifts back to Plaintiff to establish that Defendant’s reason was pretextual id. at

*47-48; McDonnell Douglas, supra, 411 U.S. at 802-04. The prima facie case here is that

Plaintiff is a member of a protected class; she is qualified for her position; she suffered

an adverse employment action; and the circumstances give rise to an inference of

discrimination, see Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *47-48.

Retaliation for asserting employment discrimination claims are also governed by

the McDonnell Douglas burden shifting standards, Richardson v. New York Dep’t of

Correctional Servs., 180 F.3d 426, 443 (2d Cir. 1999) (Docket No. 223, Pl. Memo. at 22).

Here, Plaintiff needs to show that she participated in a protected activity, that Defendant

knew of the activity; that an employment decision or action disadvantaged Plaintiff; and

there was a causal connection between the protected activity and the negative decision,

id.; Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002); Moll, supra, 2012 U.S.

Dist. LEXIS 74949, at *49-50; see Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,

67-70 (2006). If that burden is met, Defendant has the burden to establish that

nondiscriminatory reason for the decision and, if Defendant does so, the burden shifts

back to Plaintiff to establish that the reason is pretextual for impermissible retaliation,

Richardson, supra, 180 F.3d at 443 (id.).

These Title VII claims have to be timely. A charge has to be filed with the Equal

Employment Opportunity Commission within 300 days of the alleged discriminatory act,

42 U.S.C. § 2000e-5(e).

3. New York State Human Rights Law

New York Human Rights Law has the same burden of proof and burden shifting

from McDonnell Douglas stated above for Title VII claims, Cruz v. Coach Stores, Inc.,

202 F.3d 560, 565 n.1 (2d Cir. 2000); Moll v. Telesector Res. Group, Inc., No. 04CV805

(Docket No. 117), 2012 U.S. Dist. LEXIS 74949, at *47-49 & 47 n.5 (W.D.N.Y. May 30,

2012) (Skretny, C.J.), rev’d, 760 F.3d 198 (2d Cir. 2014).

4. Equal Pay Act

To establish a prima facie case under the Equal Pay Act, Plaintiff has the burden

of proving that her work has been performed similar to that performed by employees of

the opposite sex involving equal skills, effort, and responsibility, that work was performed

under similar working conditions and that the Defendant employer paid different wages

to employees of opposite sexes for such work, Corning Glass Works v. Brennan, 417 U.S.

188, 195 (1974); Molden v. United States, 11 Cl. Ct. 604, 612 (1987); Byrne, supra,

2007 WL 962929, at *9; 29 U.S.C. § 206(d)(1) (Docket No. 217, Def. Memo. at 30). Jobs

that are merely comparable are insufficient to state an Equal Pay Act claim, Tomka v.

Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (id.; cf. Docket No. 223, Pl. Memo. at 34);

Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993), cert. denied, 511 U.S. 1052

(1994). Once Plaintiff meets this burden, the burden of proof shifts to Defendant to show

that one of four statutory exceptions apply, namely the existence of a seniority system,

merit system, a system that measures earnings by quantity or quality of production, or a

differential based on any other factor other than sex, 29 U.S.C. § 206(d)(1); E.E.O.C. v.

Maricopa County Community College Dist., 736 F.2d 510, 513 (9th Cir. 1984).

5. Supplemental Jurisdiction

Subject matter jurisdiction may be raised by the parties or by this Court sua sponte,

Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000);

LaChapelle v. Torres, 37 F. Supp. 3d 672, 680 (S.D.N.Y. 2014). This Court has

jurisdiction over Verizon Business’s counterclaims under its supplemental jurisdiction,

28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form

part of the same case or controversy,” emphasis added) (see also Docket No. 149, Ans.

to 2d Am. Compl., Counterclaim ¶ 2, at 35). This Court may exercise supplemental

jurisdiction over otherwise state law claims where they arise from a common nucleus of

operative facts from the claims arising under the Court’s original jurisdiction, see United

Mine Workers v. Gibbs, 383 U.S. 715 (1966); Frederick v. State of N.Y., 232 F. Supp. 3d

326, 332-33 (W.D.N.Y. 2017) (Wolford, J.); Harris v. Jacob Marsh, LLC, No. 12CV356,

2012 WL 3655357, at *2 (W.D.N.Y. July 6, 2012) (Scott, Mag. J.) (Report &

Recommendation), adopted, 2012 WL 3655334 (W.D.N.Y. Aug. 23, 2012) (Arcara, J.).

6. Unjust Enrichment and Common Law Fraud

To state a claim for unjust enrichment under New York law (since both parties

either reside in or have offices in New York), the litigant must establish (1) enrichment by

the other party, (2) at the litigant’s expense, and (3) that it is against equity and good

conscience to permit the other party to retain what is sought to be recovered, Mandarin

Trading Ltd. v. Wilderstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 471 (2011) (citation

omitted); Golden Pac. Bancorp v. F.D.I.C., 273 F.3d 509, 519 (2d Cir. 2001) (applying

New York law) (Docket No. 215, Pl. Memo. at 9; Docket No. 219, Def. Memo. at 18).

Common law fraud requires the litigant to establish (1) a material, false representation or

omission, (2) made with knowledge of its falsity, (3) with an intent to defraud, (4) with

reasonable reliance on the representation, and (5) which causes damage to the litigant,

Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 276 (2d Cir. 1992); Katara v.

D.E. Jones Commodities, 835 F.2d 966, 970-71 (2d Cir. 1987); Keywell Corp. v.

Weinstein, 33 F.3d 159, 163 (2d Cir. 1994) (applying New York law) (Docket No. 215, Pl.

Memo. at 9; see Docket No. 219, Def. Memo. at 18).

Defendant argues that courts are reluctant to grant summary judgment dismissing

a fraud claim because intent is usually a question of fact (Docket No. 219, Def. Memo. at

18), see Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 711-12 (2d Cir. 1991).

B. Dismissal of Counterclaims (Docket No. 215)

First, this Court will address Plaintiff’s motion for summary judgment to dismiss

Verizon Business’s counterclaims (Docket No. 215). This Court considers (sua sponte,

see Lyndonville Sav., supra, 211 F.3d at 700-01) whether there is subject matter

jurisdiction for Verizon Business’s counterclaims, although neither party has raised this

issue. Plaintiff answered the counterclaims and asserted general defenses of lack of

subject matter jurisdiction and failure to state a claim (Docket No. 150, Pl. Ans. to

Counterclaims ¶¶ 26, 24; cf. id. ¶ 28 (defense that counterclaims were made in retaliation

of Plaintiff’s Title VII action)). Plaintiff now merely asserts that Verizon Business’s

counterclaims lacked a basis for supplemental jurisdiction because the counterclaims

were governed exclusively (and preempted) by ERISA (see Docket No. 228, Pl. Atty.

Reply Decl. ¶¶ 4-5; Docket No. 215, Pl. Memo. at 6-8; Docket No. 228, Pl. Reply Memo.

at 2-6); Plaintiff does not contest whether the counterclaims fall under the nucleus of

operative facts for her claims. Verizon Business has not argued the type of counterclaims

it alleges (compulsory or permissive, Fed. R. Civ. P. 13(a), (b)) and only alleged this

Court’s jurisdiction for the counterclaims under supplemental jurisdiction of 28 U.S.C.

§ 1367(a) (see Docket No. 149, Ans. with Counterclaim, Counterclaim ¶ 2). It does not

argue the grounds for subject matter jurisdiction.

To exercise supplemental jurisdiction over Verizon Business’s state law

counterclaims the facts Defendant alleges here must arise from the common nucleus of

operative facts from Plaintiff’s claims, see Gibbs, supra, 383 U.S. 715. Plaintiff here sues

for employment discrimination and Verizon Business counterclaims for Plaintiff taking

disability benefits fraudulently while attending college and volunteering. The only

common facts are the employment relationship between the parties and Plaintiff’s claim

that she suffered stress, depression, and anxiety from her claimed harassment,

discrimination, and retaliation at work that led to her claiming disability (see Docket

No. 215, Pl. Statement ¶ 4).

The issue is whether Verizon Business’s unjust enrichment and fraud

counterclaims is so related to Plaintiff’s employment discrimination claims to make them

the same case or controversy, see, e.g., Harris, supra, 2012 WL 3655357, at *2 (finding

that debt collector’s counterclaim to collect a debt was not related to debtor’s Fair Debt

Collection Practices Act action, dismissing counterclaim); Torres v. Gristede’s Operating

Corp., 628 F. Supp. 2d 447, 467-69 (S.D.N.Y. 2008) (court lacked subject matter

jurisdiction over defendant employer’s faithless servant counterclaim in overtime

compensation class action). None of Verizon Business’s claims about abuse of its

disability benefit program are relevant to Plaintiff’s employment discrimination claims, see

Torres, supra 628 F. Supp. 2d at 468. The only connection between the counterclaims

and the claims is Plaintiff’s employment, which by itself does not provide a common

nucleus of operative facts, id. (the “slender reed” of the employment relationship “will not

support the finding that the counterclaims are compulsory”); see also Wilhelm v. TLC

Lawn Care, Inc., No. 07 Civ. 2465(KHV), 2008 WL 640733, at *3 (D. Kan. Mar. 6, 2008)

(dismissing counterclaim where defendant relied solely upon employment relationship

and made no specific factual connection between the counterclaims and plaintiff’s FLSA

claim), but both sets of claims address different aspects of her employment. The unjust

enrichment and fraud counterclaims arise when Plaintiff was on disability and was not

working in 2005-06, months after commencement of this action. Plaintiff’s employment

discrimination allegedly occurred before Plaintiff was placed on disability and after she

returned, see Moll, supra, 760 F.3d at 201-02, with Plaintiff placed on a reduction in force

after she returned from disability and her position being transferred to Buffalo, id. at 202.

By contrast, Plaintiff’s New York State Human Rights Law claims share the same

nucleus of operative facts for her Title VII claims that this Court can exercise supplemental

jurisdiction over Plaintiff’s state law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d

689, 692 (S.D.N.Y. 1998).

These counterclaims are similar to those asserted in Torres. There, plaintiffs

sought to recover overtime as managerial employees, 628 F. Supp. 2d at 454.

Defendants eventually stated counterclaims that alleged faithless servant claim against

two of the plaintiffs, id. at 466. The district court first found that the counterclaim was not

compulsory but was permissive counterclaim under Rule 13(a) because the counterclaim

did not arise from the transaction or occurrence from the original claims that there was no

logical relationship between plaintiffs’ overtime claim and defendants’ faithless servant

counterclaim, id. at 467-68, rejecting the “slender reed” of the employer-employee

relationship as a basis for compulsory counterclaim, id. The essential facts in that case

were “‘not so closely related that resolving both sets of issues in one lawsuit would yield

judicial efficiency,’” id. at 468 (quoting Jones v. Ford Motor Credit Co., 358 F.3d 205, 210

(2d Cir. 2004)). The district court in Torres then held that it lacked supplemental

jurisdiction over the counterclaims under 28 U.S.C. § 1367, 628 F. Supp. 2d at 468-69.

The court found that defendants did not show that the faithless servant counterclaim was

relevant to plaintiffs’ overtime claims, id. at 468.

Here, Verizon Business’s counterclaims involve different rights, different interests,

and different underlying facts, see Bu ex rel. Bu v. Beneson, 181 F. Supp. 2d 247, 254

(S.D.N.Y. 2001). Plaintiff is claiming employment discrimination and harassment due to

sex, while Verizon Business’s counterclaims stem from the period Plaintiff was on

disability from her job. She is not claiming continued discrimination during her disability

period of August 2005 to March 2006; Plaintiff’s claims straddle this period with

harassment and discrimination that allegedly led to Plaintiff’s illness and disability and her

transfer to Syracuse and eventual reduction in force after returning to work. The only

other operative facts common to the claims and counterclaims are the employment

relationship and Plaintiff’s claim that the discrimination led to her illness and eventual

disability. The counterclaims are tangential to these claims. Verizon Business’s

counterclaims involve Plaintiff’s activities after being deemed disabled during the period.

These counterclaims do not share a nucleus of operative facts for this Court to have

supplemental jurisdiction over them, see Torres, supra, 628 F. Supp. 2d at 468.

Thus, for a different reason, Plaintiff’s motion for summary judgment (Docket

No. 215) dismissing the counterclaims is granted. This Court need not address Plaintiff’s

argument that ERISA preempts Verizon Business’s counterclaims or that Verizon

Business failed to assert fraud or unjust enrichment claims because this Court lacks

subject matter jurisdiction over these counterclaims.

This Court next turns to the motion of Verizon Business for summary judgment

dismissing Plaintiff’s claims.

C. Dismissal of Complaint (Docket No. 216)

Verizon Business argues that Plaintiff was given a second chance to assert her

claims (following Verizon Business’s first motion for summary judgment and remand

following appeal) but she “cannot demonstrate that she was subjected to a gender-based

hostile work environment, gender-based discrimination or retaliation (Docket No. 217,

Def. Memo. at 1). Verizon Business now argues that Plaintiff cannot establish that the

conduct she complains of was hostile work environment was so severe or pervasive to

state a hostile environment (id. at 1, 5-13). Next, Plaintiff cannot establish a prima facie

case for disparate treatment and Verizon Business can articulate legitimate,

nondiscriminatory reasons for many of the events which Plaintiff complains (id. at 1, 13-

15). Verizon Business also argues that Plaintiff cannot establish a prima facie case of

retaliation and Verizon Business can articulate legitimate, nondiscriminatory reasons for

the alleged retaliation (id. at 1, 22-23, 23-26). As for her termination, Verizon Business

argues that Plaintiff is not claiming it was due to her gender hence she fails to state a

discrimination claim therefrom (id. at 26-29). Finally, Verizon Business claims that

Plaintiff’s pay inequity claim fails because Plaintiff cannot establish that she performed

equal work on jobs requiring equal skill, effort, and responsibility in comparison with male

employees and Verizon Business again can give nondiscriminatory reasons for the

alleged pay discrepancy (id. at 1, 29-34).

Before addressing the present motion, a look back at Defendant’s initial motion for

summary judgment and the Second Circuit’s remand mandate is in order.

1. First Motion for Summary Judgment (Docket No. 101)

For Verizon Business’s first motion, this Court considered separately thirteen

different aspects of Plaintiff’s discrimination, hostile work environment, harassment, and

retaliation claims, Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *50-84, and her claim of

unequal pay for equal work, id. at *84-90. For Plaintiff’s delayed promotion claim, this

Court found that she established a prima facie case of promotion discrimination, id. at

*50-53, that Verizon Business failed to establish a nondiscriminatory reason for not

promoting Plaintiff, and that summary judgment was denied as to that claim, id. at *53-

54. Verizon Business later states that this claim was settled (Docket No. 217, Def. Memo.

at 2, 4 & n.2). As for Plaintiff’s claims arising from the Syracuse job transfer, id. at *54-

62, Verizon Business submitted evidence that deprived Plaintiff of showing that a material

issue of fact existed to preserve this claim, id. at *62. As for Plaintiff’s removal from the

University at Buffalo’s account, id. at *62-64, this Court found that Plaintiff had not stated

a prima facie case of retaliation, id. at *63, 64. On Plaintiff being placed on a counseling

plan at work, id. at *64-67, she failed to establish a prima facie case of discrimination, id.

at *66-67. As for her termination, id. at *67-69, Plaintiff failed to establish a prima facie

case and did not argue her termination was based on gender discrimination and appeared

abandoned, id. at *67-68, 67 n.8, and alternatively Verizon Business presented

nondiscriminatory reason for Plaintiff’s termination, id. at *68. This Court found that there

was no inference of discrimination for Plaintiff’s sales manipulation claim, id. at *70-71,

for the change of Plaintiff’s job duties, id. at *71, job reassignments, id. at *72-74. As for

Plaintiff’s denied requests to work remotely and requirement to use vacation time for her

move, this Court held that this denial is not an adverse employment action, id. at *76-77,

78-81. As for the equal pay claim, id. at *84-90, this Court found that Verizon Business

presented legitimate business reasons for the alleged pay disparity, id. at *88-90.

The Second Circuit vacated granting Verizon Business’s motion to dismiss and

remanded, holding that this Court should have considered all incidents in their totality,

including sex-neutral incidents, to meet Verizon Business’s argument that Plaintiff’s

claims were not sufficiently pervasive or severe to support her claim, Moll, supra,

760 F.3d at 200, 204. The circuit court remanded for discovery motions and left this Court

“free to re-consider summary judgment for Verizon,” id. at 204, instructing this Court to

consider the affidavit of Christopher Gaglione that Plaintiff’s transfer was motivated by

retaliatory intent despite the contradictory deposition testimony, id. at 204-05; but cf. Moll,

supra, 2012 U.S. Dist. LEXIS 74949, at *61. The Second Circuit noted two possible

explanations for Gaglione’s inconsistency: he was deposed while employed by Verizon

and made his statement after they terminated him. Either he was inhibited during his

deposition due to his employment or he made his later statement to get even with Verizon

for terminating Gaglione. Moll, supra, 760 F.3d at 206. Gaglione stated in the later

declaration that he regretted that he did not do more to help Plaintiff and was concerned

when he was deposed about losing his job with Verizon, id. The Second Circuit held that

the sham issue doctrine did not apply to discredit Gaglione’s testimony on summary

judgment, id.

2. Present Motion for Summary Judgment (Docket No. 216)

a. Byrne

Verizon Business urges that this Court see the factual contentions raised

unsuccessfully in the Byrne v. Telesector Resources case (Docket No. 217, Def. Memo.

at 8, citing Byrne v. Telesector Resources Group, Inc., No. 04CV76, 2007 WL 962929, at

*19 (W.D.N.Y. Mar. 29, 2007) (Skretny, J.), aff’d, 339 F. App’x 13 (2d Cir. 2009) (Summary

Order)) and conclude that Plaintiff here similarly fails to allege a prima facie case for

hostile work environment (id. at 8-13). There, this Court did hold that Byrne, for conduct

against other female employees of Defendant and not against herself, alleged incidents

that were “not of sufficient severity or frequency to create an abusive working

environment,” 2007 WL 962929, at *19. Byrne complained that she was subjected to

unwelcome comments, insults, and other sexually offensive conduct that created a hostile

work environment, id. at *17; see also id. at *17-18 & 18 n.12 (listing incidents). That

opinion did not state that Moll was one of the female employees subjected to unwarranted

comments or attention. Moll in this case cites some of the same incidents Byrne does

(such as the 2002 “hooters” comment to a third female employee, the 2003 discussion

about one employee becoming a father and not being able to have sex, another employee

stating that his fax number is 25-PENIS) (compare Docket No. 223, Pl. Memo., Ex. A, List

of Acts, with Byrne, supra, 2007 WL 962929, at *17, 18; Byrne, supra, 339 F. App’x at

18). This Court held that the enumeration of Byrne’s complaints was not sufficient to state

a hostile work environment claim, id. at *19. The Second Circuit affirmed in a Summary

Order, stating that “the standard for establishing actionable sexual harassment in the

workplace is an environment ‘permeated with discriminatory intimidation that [is]

sufficiently severe or pervasive to alter the conditions of [the] work environment,” 339 F.

App’x at 18 (quoting Petrosino, supra, 385 F.3d at 221). The Second Circuit dismissed

this evidence of coworker incidents because they “involve isolated incidents that do not

rise to a sufficiently serious level to manifest a work environment ‘permeated with

discriminatory intimidation,’” id. (again quoting Petrosino, supra, 385 F.3d at 221). The

Second Circuit however, expressly declined to state its views on the merits of Moll’s

present claims, “but conclude[d] only that the allegations of sexual harassment

experienced by Moll or other female co-workers that Byrne submitted as evidence in this

case are insufficient to amount to a hostile work environment,” id. at 19 (emphasis added).

While informative, Byrne is distinguishable by the evidence presented in that case as

opposed to what Moll produced here.

b. Hostile Work Environment

Thus the issue is whether Plaintiff has alleged a prima facie case or at least alleged

material issue of fact whether her work environment was pervasively or severely hostile.

The cases noted by this Court in Byrne in finding the evidence there failed to show

pervasive or severe conduct had episodic events or were deemed merely offensive,

Byrne, supra, 2007 WL 962929, at *19 (citing Leibovitz v. New York City Transit Auth.,

252 F.3d 179, 189 (2d Cir. 2001); Brennan v. Metropolitan Opera Ass’n, 192 F.3d 310,

318 (2d Cir. 1999); Ogbo v. New York State Dep’t of Fin., No. 99 Civ. 9387(HB), 2001

U.S. Dist. LEXIS 12920, at *23 (S.D.N.Y. Aug. 28, 2001), aff’d, 45 F. App’x 58 (2d Cir.

2002)), or were distinguished because there were constant use of explicit language or

incidents on a daily basis, id. (citing Valentine v. New York, No. 94 CV 3911, 1997 U.S.

Dist. LEXIS 24059 (E.D.N.Y. Sept. 9, 1997); Shull v. Rite Aid Corp., 94 Civ. 8552, 1997

U.S. Dist. LEXIS 7609 (S.D.N.Y. May 30, 1997); Pascal v. Storage Tech Corp., 152 F.

Supp.2d 191 (D. Conn. 2001)). In Moll’s case at bar, this Court has more than the five to

seven (if included the footnoted incidents that were not plead in Byrne’s Complaint, Byrne,

supra, 2007 WL 962929, at *18 n.12) incidents. Plaintiff here has present incidents from

1998 to 2003, some (as just noted) were alleged by Byrne in her case (e.g., Docket

No. 223, Pl. Memo., Ex. A).

The parties list a series of incidents from 1998 to 2003 that Plaintiff alleges

manifested a hostile environment (compare Docket No. 223, Pl. Memo. at 2-15, Ex. A,

with Docket No. 217, Def. Memo. at 8-11). Verizon Business argues that Plaintiff did not

complain about some of the incidents, diminishes the severity of individual incidents,

some showed that male workers gaining benefits female workers did not, or in totality did

not show pervasive or severe conduct to state a hostile work environment claim (Docket

No. 217, Def. Memo. at 8-11, 12-13). Plaintiff replies that she did lodge complaints over

her tenure at Verizon (Docket No. 223, Pl. Memo. at 20). Verizon Business stressed that

other incidents did not involve her (Docket No. 217, Def. Memo. at 12), but as instructed

by the Second Circuit both in this case, 760 F.3d at 203, and in Byrne, 339 F. App’x at

18-19, the totality of incidents (sex-neutral ones, those involving co-workers that Plaintiff

was aware of) are relevant. Verizon Business argues that Plaintiff has not shown

sufficient frequency or severity to state this claim (id. at 13).

Around Christmas of 1998, Plaintiff alleges that a male co-worker stated to another

female co-worker that she was working from home because he heard “bedsprings

creaking” (Docket No. 221, Pl. Counterstatement ¶ 20; Docket No. 223, Pl. Memo. Ex. A).

The parties dispute whether Plaintiff recalls an incident of sexual harassment in 1998 (cf.

Docket No. 216, Def. Statement ¶ 20; Docket No. 217, Def. Memo. at 8).

In 1999, Plaintiff alleges that Dan Irving repeatedly called Plaintiff while she was in

a multiple day training asking that she come to his hotel room (Docket No. 221, Pl.

Counterstatement ¶ 21; Docket No. 223, Pl. Memo., Ex. A). Verizon Business minimizes

this incident (and three other isolated incidents with Irving) arguing that Plaintiff had no

further contact with Irving from 1999 to 2001 (Docket No. 217, Def. Memo. at 8-9).

In January 2000, Plaintiff sought hockey tickets to take customers to professional

games, but she was denied by Michael McGowan claiming that because Plaintiff was

pregnant in 2000 that she was too tired (Docket No. 221, Pl. Counterstatement ¶¶ 28,

33). Verizon Business contends this denial happened only once (Docket No. 217, Def.

Memo. at 9; Docket No. 216, Def. Statement ¶¶ 33-34). In 2003, Plaintiff alleged that

Verizon Business acquired hockey tickets and gave them to male employees, but these

tickets were purchased by the employees themselves (Docket No. 216, Def. Statement

¶¶ 156-57), with Verizon Business allowing the employees to expense the purchase (id.

¶ 158). Irving made the purchase and testified that he offered extra tickets to all in the

office (id. ¶ 159). Plaintiff counters that Irving did not offer these tickets to female

employees to entertain their clients (Docket No. 221, Pl. Counterstatement ¶¶ 157, 159).

When Plaintiff returned from maternity leave, she accused Mike Finnegan of calling

her and another female co-worker a “hottie” (Docket No. 221, Pl. Counterstatement ¶ 28;

Docket No. 223, Pl. Statement, Ex. A). Verizon Business contends that Plaintiff did not

tell Finnegan to stop making that comment or complain about it (Docket No. 217, Def.

Memo. at 9; Docket No. 216, Def. Statement ¶ 45).

Plaintiff was questioned by Irving whether she had an affair with another co-worker

(Docket No. 221, Pl. Counterstatement ¶ 28; Docket No. 223, Pl. Statement, Ex. A).

Verizon Business contends that the allegedly objectionable comments stopped in

the fall of 1999 when Plaintiff became pregnant (Docket No. 216, Def. Statement ¶ 28).

Plaintiff was in conversations where male employees commented on the age and

attractiveness of female employees (Docket No. 221, Pl. Counterstatement ¶ 28). She

also was in conversations with a female coworker who reported that male coworker asked

to come to her hotel room during a sales meeting (reminiscent of Plaintiff’s incident) (id.)

or later incident involving another male co-worker who made comments about her

appearance, analogizing her to a “Bond girl” (Docket No. 223, Pl. Memo., Ex. A; Docket

No. 221, Ex. A, Pl. Decl. ¶ 58). That employee, Sara DeLena, later told Plaintiff that

DeLena’s male manager said DeLena should start exercising, implying that DeLena was

overweight (Docket No. 223, Pl. Memo., Ex. A, Docket No. 221, Ex. A, Pl. Decl. ¶ 65).

In April or May of 2001 after Plaintiff returned from maternity leave, Irving left a

note on Plaintiff’s desk saying that he thought about her while he was in the shower

(Docket No. 221, Pl. Counterstatement ¶ 30), Verizon Business terms it a single note

(Docket No. 217, Def. Memo. at 9; Docket No. 216, Def. Statement ¶ 30) which Plaintiff

did not complain about (Docket No. 216, Def. Statement ¶ 31; Docket No. 217, Def.

Memo. at 9). In June 2001, Irving began to require Plaintiff personally come to him with

her questions and could not use email or voicemail to contact him (Docket No. 221, Pl.

Counterstatement ¶ 66), with this ban on email and voicemail applicable for her only with

Irving until he left Verizon Business in December 2002 or January 2003 (id.). Verizon

Business contends that Irving required other subordinates to “cool the e-mails” to him

(Docket No. 217, Def. Memo. at 9; Docket No. 216, Def. Statement ¶ 66). Plaintiff admits

that others received Irving’s message to restrict emails to him (Docket No. 221, Pl.

Counterstatement ¶ 66) but Irving had personally asked Plaintiff to see him in person with

her questions (id.). In January 2002, Irving asked Plaintiff to come back to work with him

at night, while they were alone in the office (id. ¶ 82). Plaintiff unsuccessfully requested

a promotion in 2001 and 2002, but Irving lacked the authority to promote and promotions

were frozen for all employees at that time; Verizon Business contends Plaintiff admitted

that there was a hiring freeze and notes a male employee who also sought a promotion

at that time was told about the freeze (Docket No. 216, Def. Statement ¶¶ 40-41, 38-39;

Docket No. 217, Def. Memo. at 9).

In February or March 2002, with a group of coworkers talking with Plaintiff Irving

walked up to a female worker, looked at her breasts, and said “hooters” (id. ¶ 116; see

Byrne, supra, 2007 WL 962929 at *17). In May 2002, Irving also denied Plaintiff leave to

work from home from that date (Docket No. 221, Pl. Counterstatement ¶ 118) so Irving

could continue to see her (Docket No. 223, Pl. Memo., Ex. A). Verizon Business argues

that, due to attendance problems in the unit, no employees would be allowed to work from

home (Docket No. 217, Def. Memo. at 10; Docket No. 216, Def. Statement ¶¶ 117-18).

In October 2002, Irving followed Plaintiff at a business lunch and when asked (because

other employees did not have similar accompaniment) Irving claimed that he wanted to

“develop” Plaintiff (Docket No. 221, Pl. Counterstatement ¶ 125). Verizon Business

argues that Plaintiff’s meeting had canceled, and Irving treated her and DeLena to lunch

(Docket No. 216, Def. Statement ¶ 125; Docket No. 217, Def. Memo. at 10). During an

equal employment opportunity office training on discrimination, retaliation, and

harassment attended by Irving, Irving laughed and mocked the vignettes presented,

Plaintiff then complained of Irving’s behavior and itemized instances of harassment and

discrimination (id. ¶ 71; Docket No. 221, Ex. Z).

In early 2003, Finnegan was having a conversation with new father David Jager

that Plaintiff overheard, with Finnegan and Jager discussing that Jager could not have

sex with his wife (id. ¶ 144; see Byrne, supra, 2007 WL 962929 at *17). Later in 2003,

Plaintiff learned that Finnegan was giving out his work and fax number as “25-PENIS”

(Docket No. 221, Pl. Counterstatement ¶ 144; see Byrne, supra, 2007 WL 962929 at *18).

In 2005, Plaintiff’s duty station was reassigned to Syracuse. She contends that

she (and Byrne) were reassigned in retaliation and to compel them to leave the unit

(Docket No. 223, Pl. Memo. at 10). Verizon Business refutes this, contending that two

male employees were also transferred, and Plaintiff’s actual relocation was delayed

allowing Plaintiff to work from home and then for her disability leave (Docket No. 217,

Def. Memo. at 11; Docket No. 216, Def. Statement ¶¶ 190, 193, 199-202). After Plaintiff

returned from disability leave and due to a merger of Verizon with MCI Plaintiff was

reassigned to Buffalo and she was allowed to report to Buffalo for five months but was

reassigned to the Amherst office (Docket No. 217, Def. Memo. at 11; Docket No. 223, Pl.

Memo. at 12).

On Verizon Business’s 2007 reduction in force, Defendant argues that it impacted

male and female employees while Plaintiff contends that it was retaliatory (Docket

No. 217, Def. Memo. at 11; Docket No. 216, Def. Statement ¶¶ 253-63, 271). Plaintiff

contends that she was terminated five months after she told her supervisor of this lawsuit

and two months after appearing at depositions (Docket No. 223, Pl. Memo. at 14).

Applying the non-exclusive factors Justice Sandra Day O’Connor listed to

determine whether an environment is hostile, the frequency and severity of the incidents

here does not provide sufficient evidence to establish material issues of fact. Plaintiff was

not physically threatened. While the statements to her or that she heard about other

female co-workers were puerile, they were merely offensive rather than humiliating.

These incidents did not unreasonably interfere with Plaintiff’s work. Plaintiff sought

psychological treatment in 2005 due to her discrimination and harassment (Docket

No. 221, Pl. Counterstatement ¶ 219; Docket No. 223, Pl. Memo. at 21) although Verizon

Business disputes whether Plaintiff required treatment or if such treatment was due to the

causes claimed.

Verizon Business argues that Plaintiff needed to complain to have incidents matter

for her hostile work environment claim (Docket No. 217, Def. Memo. at 8-11, 12-13),

which Plaintiff denies (Docket No. 223, Pl. Memo. at 20-21), although she does not track

incident-by-incident whether she complained. Whether Plaintiff complained may go to

the subjective feelings about the hostility of her workplace, see Bentivegna, supra,

2017 WL 3394601, at *14 (Docket No. 223, Pl. Memo. at 21). In Bentivegna, the court

found that the plaintiff “presented sufficient evidence to allow a trier of fact to conclude

that she subjectively perceived her work environment as hostile,” id., based on plaintiff

complaining occasionally and later filed a formal complaint even if she did not complain

about every incident, id. Here, Plaintiff complained later of the incidents over the nine-

year period at issue (Docket No. 221, Pl Counterstatement ¶¶ 22, 25-26, 31; Docket

No. 222, Exs. XX, VV, at 290-91; Docket No. 223, Pl. Memo. at 20-21) although she did

not object at every incident. In some instances, Plaintiff would walk away from the

comments but later complained to an EEO investigator (Docket No. 221, Pl.

Counterstatement ¶¶ 25, 31). Plaintiff has presented sufficient evidence of her subjective

belief that the environment was hostile.

As for imputation to Defendant employer, Plaintiff argues that Irving’s actions as a

supervisor are presumed imputed to Verizon Business, Gorzinski v. JetBlue Airways

Corp., 596 F.3d 93, 103 (2d Cir. 2010) (Docket No. 223, Pl. Memo. at 19).

The Second Circuit mandated on remand that this Court consider Plaintiff’s

allegations in their totality, both sexually offensive and facially neutral conduct and

incidents to determine whether Plaintiff alleged a prima facie case of hostile work

environment, Moll, supra, 760 F.3d at 200. This Court has considered Plaintiff’s

allegations in their totality, considering the innocuous and the allegedly offensive and

finds that Plaintiff still has failed to allege a prima facie case of a hostile work environment

at Verizon during her tenure. In sum, Plaintiff raises issues of fact as to her subjective

belief that her work environment was hostile and that Verizon Business was responsible

through imputation. Plaintiff, however, has not established the existence of material issue

of fact of the objective basis for hostile work environment given the number and frequency

of incidents presented by Plaintiff. Therefore, Plaintiff has not established a prima facie

case to have the burden of proof shift to Verizon Business. Verizon Business’s motion

for summary judgment dismissing the hostile work environment claim (Docket No. 216) is

granted.

c. Disparate Treatment and Retaliation

This Court addressed Plaintiff’s disparate treatment and retaliation claims, granting

Verizon Business summary judgment, Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *47-

84, which found that Plaintiff failed to establish these claims. The Second Circuit vacated

that judgment but left for this Court on remand to re-consider summary judgment, Moll,

supra, 760 F.3d at 204. The one open issue on remand is how this Court is to consider

the inconsistent testimony of Gaglione, see id. at 204-06, which addresses whether

Verizon Business retaliated against Plaintiff in transferring her to Syracuse.

Verizon Business argues that, despite this remand, that Plaintiff has not presented

new evidence to support these claims (Docket No. 217, Def. Memo. at 13). Plaintiff

counters that the Second Circuit vacated this Court’s 2012 summary judgment Decision

and Order, Moll, supra, 760 F.3d at 204, concluding the effect of the vacatur is to treat

the 2012 Decision and Order as a nullity (Docket No. 223, Pl. Memo. at 26, citing United

States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)).

(1) Transfer to Syracuse

Plaintiff argues that the transfer to Syracuse was discriminatory and in retaliation.

Taking up the discrimination claim, Verizon Business argues that male and female

employees were transferred to Syracuse and, like Plaintiff, some of those Buffalo male

employees never actually reported to Syracuse (Docket No. 217, Def. Memo. at 23-25).

Since Plaintiff never appeared in the Syracuse office (either by teleworking or scheduling

appointment exclusively in Buffalo and later going on disability leave, findings not

challenged by the Second Circuit, Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *55-57

(see id. at 24-25)) and Plaintiff was given three choices when the transfer was ordered

(either go to Syracuse, work at a different job with Verizon in Buffalo, or take a severance

package, id. at *55), the order to transfer to an office she never appeared in was a trivial

harm, see White, supra, 548 U.S. at 68, and not a material adversity that a reasonable

employee would have dissuaded them from acting. Therefore, Verizon Business

concludes that Plaintiff has not established a prima facie case for discrimination claim

arising from the Syracuse transfer (id. at 25).

On remand and applying the Burlington Northern v. White elements to her

retaliation claim, 548 U.S. at 67-70, Plaintiff established that she engaged in a protected

activity and that Verizon Business was aware of that activity. There is an issue of fact on

the casual relationship between the activity and the action against Plaintiff, her transfer

to the Syracuse office. Neither side has argued which version of Gaglione’s testimony

about the motive for Plaintiff’s transfer is true, the one issue the Second Circuit explicitly

remanded for this Court’s reconsideration, Moll, supra, 760 F.3d at 204-06. On this

remand, this Court has considered all of Gaglione’s presented testimony both from the

initial motion as well as his post-remand deposition testimony.

Verizon Business’s first motion raised the discrepancy in Gaglione’s statements

(compare Docket No. 114, Def. Ex. Tab 66, Gaglione EBT Tr., Moll v. Telesector

Resources Group, Dec. 13, 2006, at 282-83 with Docket No. 109, Pl. Ex. S, Gaglione

Decl., Nov. 4, 2011, ¶ 14; Docket No. 221, Pl. Ex. S (same); see Moll, supra, 760 F.3d at

204-06, vacating, 2012 U.S. Dist. LEXIS 74949, at *60-62). In his deposition, Gaglione

testified denying that Bob Dixon was scrutinizing Plaintiff because she was not in the

Syracuse office (Docket No. 114, Def. Ex. Tab 66, EBT Tr. at 282-83). Verizon Business

stated as the reason for the transfer was to centralize resources into one regional office,

see Moll, supra, 760 F.3d at 205; Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *61. On

November 4, 2011, after he was no longer employed by Verizon Business, Gaglione

swore a declaration that

“the primary factor for this decision [to relocate Plaintiff from Buffalo to

Syracuse] was to retaliate against both Ms. Moll and Ms. Byrne for their

continuing complaints of discrimination and retaliation. Mr. Dixon and

Mr. Van Hoesen wanted to make life as difficult as possible for Ms. Moll and

Ms. Byrne and stated that they believed this action would force them to

leave ESG”

(Docket No. 109, Pl. Ex. S, Gaglione Decl. ¶ 14; see also Docket No. 221, Pl. Ex. S

(same)).

Following remand, Gaglione again was deposed on May 10, 2017 (Docket

No. 216, Def. Ex. Tab 61; Docket No. 222, Pl. Ex. AAA). The excerpts from that

deposition presented by both sides (Docket No. 216, Def. Ex. Tab 61; Docket No. 222,

Pl. Ex. AAA) gives some illumination on Gaglione’s position. There, he explained that

Dixon called and “laid out what he was doing” in reassigning staff (including Plaintiff) to

Syracuse giving what he believed was “a solid business reason for doing this” (Docket

No. 216, Def. Ex. Tab 61, Gaglione May 10, 2017, EBT Tr. at 20). Gaglione, however,

thought “it did seem like a stretch” to him (id. at 20, 17). While the stated reason,

centralizing operations for efficiency, see Moll, supra, 2012 U.S. Dist. LEXIS 74949, at

*61-62 (quoting Docket No. 114, Def. Ex. Tab 66, Gaglione EBT Tr., Moll v. Telesector

Resources Group, Dec. 13, 2006, at 282-83), “could be construed as a business

reasons,” as Gaglione termed it (Docket No. 216, Ex. Tab 61, Tr. at 20), Gaglione said

the truth was that the transfer was made “to put a stop to the chaos and the – to get rid

of the problem” (id.). Gaglione thought this solution “created more chaos and [was] just

not a simple solution,” (id. at 21) so he created his own solution (id.; see also Docket

No. 222, Pl. Ex. AAA, Gaglione Tr. at 21), in effect allowing Plaintiff and others to remain

in Buffalo by authorizing telework or allowing staff to hold client meetings in Buffalo.

In Plaintiff’s excerpt, Gaglione explained paragraph 14 of his later statement,

claiming that the transfer was in retaliation (Docket No. 222, Pl. Ex. AAA, at 74, 76-77).

Relocation would make sense if the staff remained in the relocation office, but sales staff

and sales engineers were out of the office at different times (id. at 74), diluting any

common training. Gaglione then said that the purpose for developing “the plan”

(explaining the rationale for the transfer) from Dixon’s “standpoint was to get” Plaintiff and

Byrne to leave his department, with Gaglione recognizing the difficulty of finding a new

position within Verizon at that time (id. at 76). Gaglione opined that he thought Dixon

wanted Plaintiff out from the context of his conversation with Dixon, although Dixon never

expressed that he wanted to make Plaintiff’s life miserable (id. at 77). Gaglione believed

that Dixon’s plan ultimately was “a pain in the ass. It did waste a lot of time,” and he

disagreed about how to handle whistleblowers (id.) such as Plaintiff. Plaintiff, however,

did not point to this testimony in her latest memorandum nor did Verizon Business

address Gaglione’s position on the reason for the transfer.

Gaglione then testified that Plaintiff did come to the Syracuse office “but not that

often” (Docket No. 216, Def. Ex. Tab. 61, at 78-79) but reaffirmed his earlier testimony

that Plaintiff “never really showed up in Syracuse very often at all” and that “it was never

really a hardship for her at all because she never really did it” (id. at 78), with Gaglione

getting in trouble with Van Hoesen for this. It was Gaglione who suggested to Plaintiff

that she make appointments in Buffalo and maximize her time there (id. at 79), but Plaintiff

and Mike Chase (a male Buffalo employee also transferred to Syracuse) were what

Gaglione termed “rule followers” and did not fully exploit their position to work more in

Buffalo to avoid travel to Syracuse (id. at 80). After confirming his first testimony was

true, Gaglione said that someone eventually would compel Plaintiff’s (and Chase’s)

attendance in Syracuse (id.).

Plaintiff now argues that the transfer was an adverse employment action that

raises a material issue of fact (Docket No. 223, Pl. Memo. at 25). She argues that she

was compelled to be in Syracuse when not on out-of-office appointments (id.). She

contends that her disability period should not be counted to benefit Verizon Business

(since its actions led to the disability) to establish that she did not suffer any hardship in

the required transfer to Syracuse during that same time (id.). Finally, Plaintiff points to

the timing of the transfer, in December 2004, one month after she served her Complaint

in this action and months after filing her EEOC charge (id. at 26).

Thus, following remand, Gaglione’s position becomes clearer. He disagreed with

the decision to transfer Buffalo staff to Syracuse. It did not seem to make sense to him,

given that their customers were in Buffalo and that their work did not tie them to a

particular office to achieve whatever efficiencies in training in one central office. Gaglione

provided means for transferred staff to still work from Buffalo, with a factual question

remaining of how frequently Plaintiff and other employees took advantage of it and

whether Plaintiff or others faced sanction from Verizon Business management when they

believed the employees should have been in Syracuse. The change in Gaglione’s

employment between his depositions and statement may have some bearing on his

ultimate credibility.

Although Plaintiff’s office was transferred to Syracuse, she fails to establish that

she suffered an adverse employment action from this when she was (a) given the choice

of whether to transfer, change departments, or accept a severance package (see, e.g.,

Docket No. 109, Pl. [first] Counterstatement ¶¶ 167-72) or (b) was given flexibility by

Gaglione in actual appearances in Syracuse. While Plaintiff desires this Court to discount

the time while she was on disability during this Syracuse assignment, each day from

August 29, 2005, when placed on disability until she was reassigned to Buffalo in

February 2006 and later returned from disability is a period when she did not have an

adverse employment action because she was effectively not employed (despite the

source of the disability).

This Gaglione testimonial fact issue that in part led to the remand, however, need

not be resolved or be found to be a basis to deny summary judgment. Plaintiff’s retaliation

claim arising from the transfer fails on the third Burlington Northern v. White element that

the transfer was not materially adverse action that a reasonable employee would be

dissuaded from engaging in protected activity. As discussed regarding discrimination,

Plaintiff was initially given the choice when the transfer was announced (transfer to

Syracuse; stay in Buffalo but change jobs within Verizon; or take severance).

Furthermore, Plaintiff appeared for work in Syracuse but at an unstated frequency.

Plaintiff either teleworked from Buffalo or had client meetings in Buffalo or was on

disability until she was taken off disability and was reassigned to Buffalo. Plaintiff states

in this motion that “the majority of her accounts were in the Buffalo area, and she was

assigned to work on a 911 account for Erie County, the majority of her customer

appointments were in Buffalo,” often meeting at the clients’ offices (Docket No. 221, Pl.

Counterstatement ¶ 199) but when she did not have appointments in the Buffalo area she

was in Syracuse (id.; Docket No. 222, Pl. Ex. DDD, Pl. EBT Tr. at 79-82). There, Plaintiff

testified that “whenever I had an appointment in Buffalo, I wasn’t reporting to the Syracuse

office. So I came there when I didn’t have appointments,” and she made sure she had

Buffalo appointments (Docket No. 222, Pl. Ex. DDD, Tr. at 80). Plaintiff also explained

that the 911 account for Erie County required her to going to call centers in Erie (and later

Niagara) County to confirm what equipment these centers possessed prior to upgrades,

with this task taking months away from the Syracuse office (id. Tr. at 80-81). Plaintiff set

her own appointments and could not tell when she was in Syracuse or in Buffalo, she

could not testify to a specific number of days she was at either office, although she thought

she was in Syracuse “less than 20 times” (id., Tr. at 82).

In response to the first motion for summary judgment, Plaintiff asserted that she

received emails from Gaglione (at Dixon’s behest) and Dixon that she and Chase appear

in the Syracuse office, if they had meetings in Buffalo part of the day to come to Syracuse

the other part of the day (Docket No. 109, Pl. Counterstatement ¶ 178; Docket No. 109,

Pl. Exs. KK, LL). In one email, on April 11, 2005, Gaglione said that he was advocating

for Plaintiff to gain a new position closer to Buffalo, but asked Plaintiff be at her assigned

Syracuse location “when not at off-site customer meetings and other Verizon Meetings

etc.” (Docket No. 109, Pl. Ex. KK). Dixon later required Plaintiff to be at her Syracuse

desk 24 hours per week and restricted her client meetings to two days per week out of

the office, unlike other sales engineers (Docket No. 109, Pl. Counterstatement ¶ 178;

Docket No. 221, Pl. Counterstatement ¶ 193). Plaintiff later conceded that Gaglione told

her to use her judgment as a manager whether to be in Syracuse or not (id. ¶ 179).

The opportunity for additional material and reconsideration of Verizon Business’s

summary judgment motion on remand does not change the result found by this Court in

2012, Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *54-62. Plaintiff fails to make a prima

facie case of disparate treatment and retaliation for the transfer to Syracuse. By citing

both her and Chase for the frequency of reporting to Syracuse (Docket No. 109, Pl. Ex.

LL), it is not clear that the transfer was retaliatory or directed to Plaintiff merely because

of her gender. Thus, Verizon Business’s motion for summary judgment on this claim is

granted.

(2) Hockey Tickets

As for Plaintiff not receiving 2000 hockey tickets provided to male co-workers,

Plaintiff filed her Equal Employment Opportunity Commission charge on or about

September 19, 2003 (Docket No. 148, 2d Am. Compl. ¶ 100a.). Three hundred days prior

to the charge was November 24, 2002. For her First (sex discrimination) and Fifth

(retaliation under Title VII) Causes of Action to be timely, events prior to that date are

barred, including the deprivation of 2000 hockey tickets.

For her state law Second and Fourth Causes of Action for this same instance,

however, there is no 300-day rule; these claims have a three-year state law statute of

limitations, Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citing

N.Y. Civ. P. L. R. 214(2)); see Pratesi v. New York State Unified Court Sys., No. 08-4828,

2010 WL 502950, at *8 (E.D.N.Y. Feb. 9, 2010) (limitations period for Human Rights Law

claim tolled by pendency of complaint before New York State Division of Human Rights,

citing Penman v. Pan American World Airways, Inc., 69 N.Y.2d 989, 517 N.Y.S.2d 719

(1987)). Since it is a statute of limitations for the state claims, it is also governed by the

continuing-violation doctrine which reaches back to pre-limitation period events incidents

that are part of the same unlawful employment practices and at least one act falls within

the limitations period, Drew v. Plaza Constr. Corp., 688 F. Supp. 2d 270, 279 (S.D.N.Y.

2010); see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002). The

2000 hockey ticket claim therefore is timely for the state law claims, assuming this Court

exercises supplemental jurisdiction over these claims. The substantive discussion for the

2003 tickets is thus applicable to the 2000 tickets for the state Human Rights Law claims.

As for her claim regarding the 2003 hockey tickets, Irving personally purchased

the tickets and offered them to co-workers willing to reimburse him. Verizon Business

argues that Plaintiff never expressed interest in acquiring these tickets. (Docket No. 217,

Def. Memo. at 18-19; Docket No. 216, Def. Statement ¶¶ 156-58.) Plaintiff merely argues

that Irving provided the list of games to other employees but not to her or Byrne (Docket

No. 223, Pl. Memo. at 31). She admits that Irving purchased the tickets with his own

funds but did not offer them to her or other female employees (Docket No. 221, Pl.

Counterstatement ¶¶ 157, 159).

Verizon’s policy was to reimburse tickets and like expenses when an employee

purchased them and used them to entertain clients (Docket No. 216, Def. Statement

¶ 158); thus, Plaintiff also could have purchased tickets as well as Irving did for customer

use and reimbursement by Verizon Business. As was held in 2012, Moll, supra,

2012 U.S. Dist. LEXIS 74949, at *5, in 2000 Plaintiff requested one time to get hockey

tickets and (after she was denied) did not ask again. Plaintiff still has failed to state a

prima facie case for this issue, id. at *74-75. She never expressed an interest in

purchasing tickets to entertain clients, she has not shown that she was negatively

impacted by not enjoying these opportunities, or “that such an action would reasonably

dissuade a reasonable employee from filing a charge of discrimination,” id. at *75.

Verizon Business’s motion on this point is granted.

(3) Sales

Plaintiff complains that she was deprived credit for sales she brought into Verizon

that Defendant attributed to her male co-workers (Docket No. 223, Pl. Memo. at 31-32,

29; Docket No. 217, Def. Memo. at 16-17). She also complains that she was required to

be the single point of contact for other clients (cf. Docket No. 217, Def. Memo. 17).

Verizon Business argues that a male employee also had to be a single point of contact

(Docket No. 217, Def. Memo. at 17).

Verizon Business argues that Plaintiff failed to establish a prima facie case for two

discrete instances in which she alleged that male employees took credit for sales she

worked on (Docket No. 217, Def. Memo. at 16-17). Specifically, Plaintiff challenged the

attribution for the Buffalo Board of Education account in 2002 (credited to Kevin Dean by

Irving) (Docket No. 216, Def. Statement ¶ 120). The second instance was David Winley

receiving credit that year for a $8.5 million sale Plaintiff claims she completed in 2001 (id.

¶ 122). Verizon Business argues that Plaintiff in her deposition admitted that the Board

of Education account was not manipulated, and Dean was not given credit for that account

(id. ¶ 121). As for the $8.5 million sale, Verizon Business contends that Plaintiff received

incentive compensation for that sale, male and female employees were treated equally,

and (as found by this Court for the first motion), there is no inference of discrimination

(Docket No. 217, Def. Memo. at 17), Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *70-

71. Verizon Business also argues that there is no inference of retaliation since these

sales occurred before Plaintiff’s EEOC charge (id.). Verizon Business also argues that

Plaintiff has no retaliation claim for her removal from the University at Buffalo account in

2004 (Docket No. 217, Def. Memo. at 22), see id. at *64 (finding that Plaintiff had not

stated a prima facie case). Plaintiff also complains that Tom Spencer was assigned to

be a single point of contact for certain accounts (Docket No. 216, Def. Statement ¶ 76).

She argues that she, and Byrne, were required to be single point of contact but other

male employees were not (Docket No. 221, Pl. Counterstatement ¶ 76). It is not clear

whether this role is a positive or negative and the record shows that both male and female

employees generally served in that position.

Plaintiff counters that Irving would manipulate sales accounting to make sure male

employees met their sales targets (Docket No. 223, Pl. Memo. at 31). Plaintiff admits that

the manipulation did not occur (Docket No. 221, Pl. Counterstatement ¶ 121) but that

Irving stated that he would do so and that a male employee could miss their target without

consequence while Plaintiff was placed on a counseling plan for failing to respond to a

business representative (id.). She contends that the timing of the 2001-02 compensation

was material for her incentive compensation and, comparatively, for her male co-workers’

compensation (id. ¶ 123). She concedes that it may not have been the intentional act of

Verizon Business, but Defendant failed to correct it (Docket No. 223, Pl. Memo. at 31).

The fact that Irving intended to benefit male employees does not state a prima

facie case where there is no evidence that he actually benefitted or that Plaintiff either

was denied the benefit of the doubt about sales or not allowed to miss a sales target. She

admits that her counseling was for a different matter, failing to respond to a

representative. Thus, there is no inference of discrimination or retaliation from Irving’s

intended action on the Board of Education account where employees were treated the

same regardless of their gender and Plaintiff’s claimed deprivation occurred before she

filed her EEOC charges, see Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *70-71.

Similarly, the late posting of the 2001 sales in 2002 had no gender distinction, id. As for

Plaintiff’s loss of the University at Buffalo account and possibly not meeting her sales

objective (Docket No. 223, Pl. Memo. at 29), she lost that account because she

complained about the sales ethics of a co-worker. As held for the first motion, id. at *63,

“Plaintiff has not set forth a prima facie case of retaliation, because Title VII does not

protect employees from retaliation for opposing misbehavior by co-workers that is

unrelated to discrimination against a protected class member,” id. Therefore, Plaintiff’s

claims arising from sales is denied and Verizon Business’s motion for summary judgment

on this point is granted.

(4) Rankings

Included in this discussion is Plaintiff’s complaint that she received an unwarranted

counseling session in March 2002 following alleged complaints from clients that she was

non-responsive and changes in quality of her work (Docket No. 217, Def. Memo. at 22-

23; Docket No. 223, Pl. Memo. at 6-7, 27-28) and a negative evaluation in July 2005 that

she was “least desirable” among the sales engineers (Docket No. 217, Def. Memo. at 18).

Plaintiff contends that the reasons for her counseling plan was pretext because

Irving placed her in the plan after she rejected his advances (Docket No. 223, Pl. Memo.

at 27). Verizon Business counters that while in the counseling plan Plaintiff had

performance evaluation that rated her meeting expectations, deemed very effective in two

categories, and she received pay raises (Docket No. 227, Def. Reply at 13-14). She was

on the counseling plan for two months after successfully completing it (id.; Docket

No. 221, Pl. Counterstatement ¶ 87). Verizon Business also points another male

employee who was under a more formal Performance Improvement Plan (Docket

No. 227, Def. Reply at 14), thus denying any retaliation (id.) or gender discrimination

(Docket No. 217, Def. Memo. at 23).

Plaintiff has not countered this Court’s initial finding that attendance in a counseling

plan is not an adverse employment action by not establishing a loss of a tangible job

benefit, Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *65 (citing cases). Plaintiff received

favorable evaluations and pay raises despite being in counseling in 2002. She has not

shown that she suffered harm from being placed in that program, id. at *65-66. Male co-

workers have been placed in more serious Performance Improvement Plan, hence

removing any discriminatory or retaliatory motive to place Plaintiff in counseling plan, see

id. at *66, despite the plan coming from Irving. Again, Plaintiff fails to establish a prima

facie case for this claim, id. at *67.

Verizon Business next argues that employee ranking was used as a management

tool and was not used to make personnel decisions (Docket No. 217, Def. Memo. at 18).

Plaintiff points to male co-workers with what she believed had more serious performance

issues (those that should have led to their termination) while she was sanctioned (Docket

No. 223, Pl. Memo. at 6-7, 27-28).

Plaintiff has not established that her 2005 ranking was an adverse employment

action. As was found in 2012 for the first motion (and not strenuously contested by

Plaintiff in this motion), Plaintiff has not established a prima facie case for discrimination

or retaliation in her 2005 ranking. The adverse action she originally alleged, that she

received the lower ranking to lead to her lay off during a reduction in force, did not occur.

Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *81-82. Absent an adverse employment

action, Plaintiff fails to state a claim. Verizon Business’s motion for judgment dismissing

this claim is granted.

(5) Professional Networking

In 2006 following Verizon’s merger with MCI (and the establishment of Verizon

Business), Mark Witte came from MCI to join Verizon and eventually supervised Plaintiff

(Docket No. 216, Def. Ex. Tab 20, Witte Decl. ¶¶ 1-4, 6, 13). Witte urged Plaintiff to

develop her professional networking (id. ¶ 13; Docket No. 217, Def. Memo. at 18; Docket

No. 216, Def. Statement ¶ 250). Verizon Business argues that another male employee

also was asked to meet this obligation (Docket No. 216, Def. Statement ¶ 250).

Plaintiff admits that she had this goal imposed upon her but denies that other sales

engineers had the same requirement (Docket No. 221, Pl. Counterstatement ¶ 250), but

she offers no evidence for this (such as testimony from the male employee Verizon

Business claims also had the goal). She contends that corporate account managers

solicited business and not sales engineers, that her former manager (Gaglione) never

insisted upon Plaintiff or other sales engineers to add accounts (id.). Plaintiff does not

account for the change in management from the Verizon-MCI merger.

It is unclear the harm Plaintiff alleges for being instructed to network as a

salesperson. She claims no sanction from this (either in not setting the goal or not

meeting the goal), save contending that sales engineers before were not required to solicit

new business (Docket No. 223, Pl. Memo. at 29). Plaintiff fails to allege either a gender

difference (that she and other female workers were required to solicit business while their

male counterparts were not) or retaliation (that she was required to perform this extra

work because of her pending EEOC charges and this action). Verizon Business has

shown that another sales engineer was asked to set this goal.

In setting this customer cultivation goal, Witte wanted Plaintiff to add customer

relationships to enhance her skills and exposure to customers (Docket No. 216, Def. Ex.

Tab 20, Witte Decl. ¶¶ 13, 17). When the reduction in force decision was made in 2007,

Witte selected Plaintiff for reduction in part because (despite efforts to broaden her skill

set) Plaintiff remained “unsophisticated, largely focused on traditional telephone services

(ILEC), and her capabilities, job performance and results trailed those of other sales

engineers” in Witte’s group (id. ¶ 17).

There is no additional evidence from the record before this Court in 2012, Moll,

supra, 2012 U.S. Dist. LEXIS 74949, at 71-72. Plaintiff has failed to show an inference

of discrimination in imposition of this performance goal and she has not established that

it was “‘more disruptive than a mere inconvenience or an alteration of job responsibilities,’

and therefore do not rise to the level of actionable adverse employment actions,” id. at

*72, quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000);

citing Klein v. New York Univ., 786 F. Supp.2d 830 (S.D.N.Y. 2011) (professor’s

dissatisfaction with course assignments is not adverse employment action where she did

not allege any resulting loss in wages or benefits). Plaintiff here has not alleged any

material loss due to this goal setting.

Thus, Verizon Business’s motion for summary judgment on this ground also is

granted.

(6) Alternative Worksite

Plaintiff sought to work from home or from different office spaces while assigned

to the Buffalo, Syracuse, or Amherst offices (see Docket No. 223, Pl. Memo. at 11, 31;

Docket No. 221, Pl. Counterstatement ¶ 202), seeking (for example) to not work in a

cubicle or to work in a supervisor’s office to avoid contact with alleged harassing

employees (Docket No. 217, Def. Memo. at 19; Docket No. 221, Pl. Counterstatement

¶ 245), arguing that male employees were afforded this opportunity while she was not.

As for the assignment to a cubicle, Plaintiff admits that male sales engineers at her rank

also worked from cubicles (Docket No. 221, Pl. Counterstatement ¶ 75; Docket No. 217,

Def. Memo. at 19). Plaintiff also disputed vacation time assigned to her as opposed to

male employees (Docket No. 217, Def. Memo. at 20-21). She objected that, as the more

senior employee, she should have received vacation time but on July 5, 2002, male

employees received time off when she did not (Docket No. 223, Pl. Memo. at 7; Docket

No. 221, Pl. Counterstatement ¶ 118; Docket No. 221, Pl. Ex. A, Pl. Decl. ¶ 65). Much of

this argument arose from the Syracuse transfer (see Docket No. 221, Pl.

Counterstatement ¶¶ 190, 193, 199-202) just discussed above. While Plaintiff was

working in Buffalo, she sought the ability to work from home with limited success (id. ¶ 118

(Irving’s refusal in 2002).

Verizon Business argues that Plaintiff has not established an adverse employment

action from these denials of alternative worksites (Docket No. 217, Def. Memo. at 19).

As noted in 2012, the Second Circuit has not ruled whether the denial of work-

from-home or telecommuting status constitutes an adverse employment action, while

other District Courts have held that it is not an adverse action, Moll, supra, 2012 U.S. Dist.

LEXIS 74949, at *76-77 (citing Martinez-Santiago v. Zurich N. Am. Ins. Co., No. 07 Civ.

8676(RJH), 2010 WL 184450, at *7 (S.D.N.Y. Jan. 20, 2010) (collecting cases)), either

for a substantive discrimination claim or a retaliation claim against actions that materially

adverse such that it may dissuade a reasonable worker form making a charge of

discrimination, see White, supra, 548 U.S. at 64, 68-69. The Second Circuit in remanding

this case did not address this issue. Since 2012, the Second Circuit suggested that this

is not an adverse action, see Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App’x

9, 11-12 (2d Cir. 2013) (summary Order). Plaintiff here seeks mere convenience which

is not actionable as an adverse action. Review of these facts on remand, this Court

reasserts that Verizon Business’s refusal to allow Plaintiff to work at the location she

desired did not constitute adverse employment actions because she has not shown that

Defendant’s conduct materially “‘affected the terms, privileges, duration, or conditions’ of

her employment,” Moll, supra, 2012 U.S. Dist. LEXIS 74949, at *77 (quoting Cooper v.

New York State Dep’t of Human Rights, 986 F. Supp. 825, 288 (S.D.N.Y. 1997)).

Verizon Business’s motion for summary judgment to dismiss this claim is granted.

Similarly, Plaintiff’s vacation deprivation claims are also dismissed; Plaintiff has not

added to the arguments she raised in 2012. Plaintiff still, see id. at *80, that she

established an adverse action in not receiving her vacation requests or later using her

vacation time to move her residence.

(7) Layoff

Plaintiff argued that Verizon Business retaliated against her in selecting her for the

2007 reduction in force, id. at *67 (Docket No. 57, Am. Compl. ¶¶ 98-99; Docket No. 110,

Pl. Memo. at 22; Docket No. 223, Pl. Memo. (on remand) at 32-34; see also Docket

No. 148, 2d Am. Compl. ¶¶ 98-99). She contends that the “smoking gun” here is the

timing of the reduction relative to her pending litigation; five months after learning of this

lawsuit, Witte named Plaintiff for the reduction in force (Docket No. 223, Pl. Memo. at 32).

Alternatively, Plaintiff points to “multiple questions of fact of the discriminatory and

retaliatory animus behind Moll’s termination” (id.). She suggests fact of motive arise from

Witte reassigning Plaintiff from Buffalo to the Amherst office prior to the reduction, with

that office having Dixon, Irving, and Ray Brogan, the alleged harassers that Plaintiff

wanted to avoid (id.). Then Dixon and Irving were deposed by Plaintiff two months before

the reduction (id. at 32, 33). Plaintiff, the sole sales engineer, then was selected for

termination (id. at 33). She compared her skill set in traditional telephone services with a

male employee who was retained while she was discharged (id.). As the Second Circuit

noted, Plaintiff argues that Verizon Business lacked records of the reduction in force that

may indicate that the decision was pretext (id., citing Moll, supra, 760 F.3d at 204).

Verizon Business argues that Plaintiff abandoned her gender discrimination claim

arising from the reduction in force in 2007 (Docket No. 217, Def. Memo. at 26), Moll,

supra, 2012 U.S. Dist. LEXIS 74949, at *67 n.8. If still asserted, Verizon Business

contends that Plaintiff has not established a prima facie case of disparate treatment or

retaliation and, even if she did, that Verizon Business had a legitimate reason articulated

by Defendant requires entry of summary judgment (Docket No. 217, Def. Memo. at 26-

29; Docket No. 227, Def. Reply Memo. at 7-8). Plaintiff has not responded to the fact that

the total number of employees in the reduction in force were two males to every female

let go or that Witte added a second (male) employee when required to add to the reduction

(Docket No. 227, Def. Reply Memo. at 8). Verizon Business argued that it produced a

spreadsheet in post-remand discovery identifying employees who were laid off in

October 2007 (id., citing VER-MOLL-5389 to 5394, produced June 19, 2015; Docket

No. 227, Def. Reply Tab 72 (termination papers of Steve Medve, spreadsheet)), although

the spreadsheet produced with this motion has the names (save Medve’s) redacted and

no gender identification. As for her retaliation claim, Witte met Plaintiff after her disability

leave and he did not discuss the reduction with individuals Plaintiff had had issues with

(Docket No. 227, Def. Reply Memo. at 8; Docket No. 217, Def. Memo. at 29). Witte had

assigned Plaintiff to the prestigious and highest revenue M&T Bank account, which

Verizon Business argues belies her retaliation claim (Docket No. 227, Def. Reply Memo.

at 8).

Witte stated that he eliminated Plaintiff’s position because her skills focused on

traditional telephone services rather than the “next-generation MCI products and

services” (id. at 28; Docket No. 216, Def. Statement ¶ 256). Witte used his own criteria

for selecting Plaintiff’s position (Docket No. 216, Def. Statement ¶ 256). Plaintiff argues

that Witte’s testimony was inconsistent with that of Chris Sacco (Docket No. 222, Pl.

Ex. FFF, Sacco EBT Tr. at 51-52) and Gaglione (Docket No. 221, Pl. Ex. S, Gaglione

Decl. ¶ 37). The layoffs eliminated legacy Verizon employees in favor of legacy MCI

employees (see Docket No. 227, Def. Reply Memo. at 9; Docket No. 221, Pl.

Counterstatement ¶¶ 257-58). Sacco, the prior branch sales engineer manager (Docket

No. 221, Pl. Counterstatement ¶ 253), testified that he did not remember the last reduction

in force, but he agreed that “there should be standard criteria which are utilized when

ranking and rating employees” (Docket No. 222, Pl. Ex. FFF, Tr. at 51, 52) such as

performance evaluations, but there is no record Sacco had used such a criteria or whether

that was ordered by his superiors. Gaglione, when posed with the reduction, “instructed

[his] manager to rank and rate those [sales engineers] who report to me” (Docket No. 221,

Pl. Ex. S, Decl. ¶ 37). He did not indicate a company-wide ranking standard or that upper

management compelled this procedure.

Plaintiff’s invocation of pretext for the decision in the reduction in force does not

get reached until the first two McDonnell Douglas steps are met. To establish a prima

facie case, Plaintiff needs to show that she suffered an adverse employment action and

that the circumstances give rise to an inference of discrimination, with the first two

elements of membership in a protected class and qualified for her position conceded

(Verizon Business is not arguing that Plaintiff was reduced due to not being qualified for

the job).

On her retaliation claim, Plaintiff has not established any direct evidence of a

causal relationship, with this termination occurring three years after commencement of

this action, despite months after depositions in this case, Moll, supra, 2012 U.S. Dist.

LEXIS 74949, at *68. Had there been retaliation, Witte would not have assigned Plaintiff

to Verizon’s most valuable account. As for gender discrimination even assuming Plaintiff

has not abandoned that claims, cf. id. at *67 n.8, Plaintiff also fails to establish a prima

facie case. Verizon Business globally laid off more men than women. Plaintiff’s

supervisor, Witte, first laid her off and months later (when further layoffs were required)

laid off a male worker. Witte selected those to be reduced in force on his own criteria and

not on the advice of others. Witte said he selected Plaintiff for layoff, like other legacy

Verizon staff, because she was not knowledgeable of MCI technologies (Docket No. 227,

Def. Reply Memo. at 9).

While this Court found in the first motion for summary judgment that Verizon

Business also stated nondiscriminatory reason for the reduction in force and denied

Plaintiff established that reason was pretext, id. at *68-69, the Second Circuit disagreed

on the last point that Plaintiff raised a material issue of fact as to the pretextual nature of

nondiscriminatory reasons for the reduction in force, Moll, supra, 760 F.3d at 204. Since

Plaintiff has not established a prima facie case in the first instance, the burden has not

shifted to the other elements. Verizon Business’s motion on this claim also is granted.

d. Pay Equity Claim

Verizon Business argues that Plaintiff’s work was distinct from male employees

she used to compare to establish that her pay was less than theirs (Docket No. 217, Def.

Memo. at 29-30). Plaintiff counters that she performed the same work as the male sales

engineers she cited in particular Tom Spencer and David Winley (Docket No. 223, Pl.

Memo. at 34). According to Plaintiff, the main distinction between sales engineer’s duties

is the concentration in different telecommunication areas (data systems, voice, or

telephonic systems) (id. at 35). Plaintiff’s starting salary in 1997 was $47,400, while the

starting salary for Spencer was $61,300 (Docket No. 223, Pl. Memo. at 35; Docket

No. 221, Pl. Counterstatement ¶¶ 17, 16).

In 2012, this Court presumed that Plaintiff (on a record similar to the post-remand

evidence presented in this motion) presented admissible evidence of Plaintiff performing

the same job requirements as male sales engineers, Moll, supra, 2012 U.S. Dist. LEXIS

74949, at *87-88. Plaintiff now argues that this prima facie case (Docket No. 223, Pl.

Memo. at 35) distinguishing her entry salary as a sales engineer with that of Spencer’s.

Plaintiff, however, fails to refute the nondiscriminatory reason proffered by Verizon

Business for the discrepancy save arguing that Defendant failed to eliminate the pay gap

over the next seven years (id.), Molden, supra, 11 Cl. Ct. at 613; see also Maricopa

County Community College Dist., supra, 736 F.3d at 513.

Verizon Business distinguishes Molden and Maricopa County Community College

District from this case because these cases do not stand for the proposition Plaintiff

contends (Docket No. 227, Def. Reply Memo. at 15). Molden involved federal

Government classification of jobs, 11 Cl. Ct. At 612-13, while Maricopa County

Community College District the female employee plaintiff took on greater responsibilities

until she was effectively working the higher job title without the commensurate pay,

736 F.2d at 15 (id.). Verizon Business also notes that Plaintiff did receive pay increases

during her first seven years as a sales engineer that exceeded the increases given to

Spencer (id.; Docket No. 216, Def. Statement ¶ 164), apparently countering her pay gap

argument. Plaintiff disagreed, reaffirming that there remained a $16,800 gap between

her pay and Spencer’s despite their raises (Docket No. 221, Pl. Counterstatement ¶ 164).

This Court found in 2012 Spencer came to Plaintiff’s Enterprise Solutions Group

after ten years of management experience with Verizon while Plaintiff came from a clerical

position to become a sales engineer, Moll, 2012 U.S. Dist. LEXIS 74949, at *88 (see

Docket No. 217, Def. Memo. at 30). This Court then found legitimate, nondiscriminatory

business reasons for the pay discrepancy that was due to Spencer’s management

experience and inducements to recruit him for the transfer as a differential based on any

other factor other than sex to deny Plaintiff’s Equal Pay Act claim, id. at *89. The Second

Circuit in remanding that decision made no rulings on this point. Upon remand, the

evidence has not changed. While Plaintiff states a prima facie Equal Pay Act claim for

performing the same duties as higher paid male counterparts, Verizon Business

established nondiscriminatory reasons for the difference in pay. Plaintiff’s Equal Pay Act

claim is dismissed and Verizon Business’ motion for summary judgment is granted.

e. Supplemental Jurisdiction

With the disposition of the original federal jurisdiction claims (Plaintiff’s First, Third,

Fifth, and Seventh Causes of Action), this Court need not exercise supplemental

jurisdiction over Plaintiff’s remaining Second, Fourth, and Sixth Causes of Action

(pursuant to New York Human Rights Law), 28 U.S.C. § 1367(a). Because these state

law claims arise from the same nucleus of facts as the Title VII and Equal Pay Act claims,

the disposal of the Title VII and Equal Pay Act claims above would have the same result

for the state Human Rights Law claims alleged. For example, as discussed above for

Plaintiff’s claims from alleged deprivation of hockey tickets in 2000, Plaintiff failed to state

a prima facie case under Title VII and the New York Human Rights Law. Thus, Plaintiff’s

remaining state law claims are dismissed and Verizon Business’s motion for summary

judgment is granted.

IV. CONCLUSION

With the dismissal of Verizon Business’s counterclaims and Plaintiff’s main claims,

this action is dismissed.

V. ORDERS

IT IS HEREBY ORDERED, that Defendant’s Motion for Summary Judgment

(Docket No. 216) is GRANTED.

FURTHER, that Plaintiff’s Motion for Summary Judgment (Docket No. 215)

dismissing the counterclaims against her is GRANTED.

FURTHER, the Clerk of Court is DIRECTED to close this case.

SO ORDERED.

Dated: September 18, 2020

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge