U.S. DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Judge Lynch

Plaintiff Barie Hamilton, proceeding pro se, brings this employment discrimination action under Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. §§2000e et seq. ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. §§621 et seq., and the American with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§12112-12117, against her former employer, Bally North America ("Bally") and her supervisor, Alicia Wilson.1 The Court previously dismissed plaintiff's age and pregnancy discrimination claims as against all defendants and dismissed the complaint in its entirety against defendant Wilson.2 Hamilton v. Wilson, No. 03 Civ. 5685 (GEL), 2004 WL 169789 (S.D.N.Y. Jan. 28, 2004). Plaintiff's surviving sex discrimination claims against her former employer allege sexual harassment and retaliation. Defendant Bally now moves for summary judgment dismissing the remaining claims, and plaintiff cross-moves for summary judgment in her favor. Defendant's motion will be granted, and plaintiff's motion will be denied.

BACKGROUND

Plaintiff has failed to submit a Local Rule 56.1 counterstatement of undisputed Facts responding to that submitted by defendant. Ordinarily, this might require the Court to deem admitted all Facts set forth in defendant's 56.1 Statement, see Local Rule 56.1(c) ("Each numbered paragraph in the statement of material Facts required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."); D. Reply Mem. 2 n.2. But as a pro se litigant, plaintiff may have failed to understand the requirements of Local Rule 56.1. Plaintiff has submitted a declaration (later supplemented), an affidavit attached to the declaration as Exhibit 10 (captioned "Plantiff's Response to Opinion and Order of USDJ Gerard E. Linch [sic] dated 01-21-04" and cited herein as "Hamilton 2/23/04 Aff."), and a number of other exhibits in opposition to defendant's motion.3 The Court will consider the totality of the parties' submissions in identifying disputed material Facts, and will construe those disputed Facts in plaintiff's favor as is appropriate on summary judgment.

The background facts of plaintiff's employment, in any event, are undisputed. During the relevant time period, defendant was a wholesale and retail purveyor of high-end men's and women's shoes and accessories. Defendant's own retail stores were grouped into regions, with the managers of individual stores within the region reporting to a regional manager. Defendant's flagship store in the United States was opened on Madison Avenue in Manhattan during the summer of 1995, and plaintiff was the store manager until she was fired on January 7, 1998. As store manager, she reported to the regional manager, Alicia Wilson, who, in turn, reported to Brad Wolfer, vice-president of retail in the United States, who, in turn, reported to Richard Wycherley, defendant's president.

Defendant claims that the decision to fire plaintiff was made in the midst of a "worldwide reorganization" directed by defendant's parent company, which required Wycherley "to suggest staff changes and business strategies within Bally's United States' [sic] retail stores that he felt would increase Bally's profitability." (Wycherley Decl. 5.) Defendant contends that, in accordance with this directive, Wycherley recommended plaintiff's termination in May 1997, following his own observations of her performance (including that the store was operating at a more than $200,000 loss) and the input of Wilson and Wolfer. (Id. 6.) And indeed, a document described as "a high-level document that was only supposed to be viewed by senior management within Bally," prepared by Wycherley and dated May 30, 1997, indicates that the manager of the Madison Avenue store was to be replaced by August 1, 1997. (Id. 5 & Ex. 1.) Plaintiff received three written warnings from Wilson about a variety of aspects of her performance, dated May 9, 1997, June 17, 1997, and December 2, 1997, a negative midyear appraisal on September 23, 1997, was placed on a forty-five day probationary period by Wolfer on October 13, 1997, and her employment was finally terminated on January 7, 1998.

Plaintiff, however, claims that she was sexually harassed by Wilson throughout 1997. (Hamilton 2/23/04 Aff. 1.) Her specific allegations of sexual harassment will be discussed in further detail below, see infra Discussion Part II.A, but consist primarily of a conversation in which plaintiff alleges Wilson confided that she was gay, followed by numerous invitations for after-work drinks, compliments and conversations with sexual undertones, Wilson's leaving an undergarment behind in plaintiff's store, and one incident in June 1997 in which plaintiff claims Wilson touched her breast, over her objection, while feeling the material of plaintiff's bodysuit and stating that the bodysuit was "very sexy." (Id.; Hamilton Dep., Regan Decl. Ex. 5, at 62-63.) Plaintiff also asserts that Wilson tried to "make [her] jealous" by showing off in tight jeans to the employees attending a staff meeting at plaintiff's store. (Hamilton 2/23/04 Aff. 2.) Plaintiff's submissions and deposition contain further allegations of harassment that are sex-neutral at least on their face, such as Wilson's criticism of plaintiff's performance in front of other employees and Wilson's interfering with and undermining of plaintiff's management of her store and employees. (See, e.g., id. 3-4.) Wilson denies both that she made sexual advances toward plaintiff, and that she is sexually attracted to women. (Conte Decl. 13.)

Plaintiff claims that she reported the alleged harassment to Bally's vice president of human resources, Karen O'Mara, on May 13, 1997, and that she asked Wilson to attend the meeting with O'Mara, but that Wilson did not show up. (Hamilton 2/23/04 Aff. 2.) O'Mara's testimony, however, is that while plaintiff made a variety of complaints, none of her complaints were about sexually harassing behavior. Instead, O'Mara claims plaintiff's complaints consisted of the following: "that she had not been appropriately paid for work she had performed; that she had been criticized for her appearance at work and the way that her clothes were fitting after she returned from maternity leave by Bally managers Mike Shields and Susan Jones; that she was unhappy with a warning notice that she had received from her Regional Manager, Alicia Wilson, for permitting unauthorized personnel to close her retail store; and that she did not feel that Ms. Wilson had worn appropriate pants to a store meeting (i.e., Ms. Hamilton complained that Ms. Wilson had shown up in tight jeans and sat in a casual manner that was not appropriate for a business meeting)." (O'Mara Decl. 2.) O'Mara claims she addressed these complaints by inter alia procuring backpay for plaintiff and speaking to Wilson about her attire, but, not interpreting any of them to concern "illegal harassment, discrimination, or retaliation," she did not report complaints of sexual harassment to anyone at Bally. (Id. 2-3.)

Plaintiff claims that Wilson's sexual advances continued after her meeting with O'Mara (including the June 1997 incident in which Wilson touched plaintiff's breast, and which she claims she reported to O'Mara in a telephone conversation the same day, Hamilton Dep. 157-59), and that the warning notices and disparaging remarks she received from Wilson about her performance in the following months reflected Wilson's anger at having had those advances rejected, rather than plaintiff's actual job performance. (Hamilton 2/23/04 Aff. 1.) Plaintiff initiated a complaint with the New York City Commission on Human Rights ("CHR") on December 1, 1997 (CHR Intake Form, Hamilton Decl. Ex. 11, at 1), but the complaint was not served on defendant until January 20, 1998. (Letter of John McCormick, Investigator, Law Enforcement Bureau, CHR, to Director of Human Resources, Bally, Inc., dated Dec. 12, 2000, Hamilton Decl. Ex. 5, at 1.) Plaintiff alleges that following her termination, she was placed on a "black list" and given negative employment references. (Hamilton Decl. 12.)

Following an investigation, CHR found no probable cause that defendant had engaged in unlawful discrimination, concluding that plaintiff had been fired because of her store's operating losses and "complaints about complainant's abrasive manner in dealing with the stores [sic] customers." (CHR Determination and Order After Investigation, Regan Decl. Ex. 2, at 3.) Hamilton sought review of that determination, and CHR affirmed its prior findings on appeal on December 31, 2002. (CHR Determination and Order After Review, Regan Decl. Ex. 3, at 1.) Hamilton then sought review by the EEOC, which adopted CHR's findings and issued a right-to-sue letter dated April 8, 2003. (EEOC Dismissal and Notice of Rights, Regan Decl. Ex. 4, at 1.)

Plaintiff filed the instant complaint on July 31, 2003, asserting various age, pregnancy, and sex discrimination claims against Bally and Wilson. As stated above, plaintiff's age and pregnancy discrimination claims were dismissed (and Wilson was dismissed entirely from the case) by the Court. Defendant now moves for summary judgment in its favor as to the surviving sex discrimination claims (sexual harassment and retaliation), and plaintiff cross-moves for summary judgment in her favor.

DISCUSSION

I. Legal Standards

A. Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Ordinarily, a "genuine issue as to any material fact" is established "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "It is the movant's burden to show that no genuine factual dispute exists, and all reasonable inferences must be drawn in the non-movant's favor." Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (internal citations omitted); see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). In determining the existence of disputed Facts, "[c]onclusory allegations or unsubstantiated speculation" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific Facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Here, however, defendant has agreed to accept plaintiff's version of disputed material Facts as true for purposes of this motion (D. Mem. 2 n.2) -which the Court understands to include plaintiff's characterization of Wilson's sexual orientation and behavior-shifting the focus on summary judgment away from the existence of disputed material Facts, and toward whether, even if all disputed Facts are construed in plaintiff's favor, a "reasonable jury could return a verdict" for plaintiff. The Court finds that the record developed by plaintiff is insufficient to support a jury verdict of sex discrimination and, therefore, defendant is entitled to judgment as a matter of law.

B. Title VII Standards

1. Sexual Harassment Claim

Plaintiffs making sexual harassment claims under Title VII have two alternative theories available: (1) hostile work environment and (2) quid pro quo. Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994).

To make out a prima facie case of hostile work environment, plaintiff must establish that (1) she was subjected to harassment based on a prohibited ground of discrimination; (2) the harassment was so severe as to alter the terms and conditions of her employment, and (3) there is a basis for imputing the harassing conduct to the employer. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). To meet the severity requirement (the second prong of this test), plaintiff must establish that the harassment was severe or pervasive enough to create an objectively hostile environment, and that she subjectively perceived the environment to be abusive. Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). In general, "incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive," and "[i]solated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. at 374. In determining whether allegations of abusive conduct are sufficient to meet the threshold for an objectively hostile environment, courts examine the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). "While the standard for establishing a hostile work environment is high, [the Second Circuit has] repeatedly cautioned against setting the bar too high, noting that while a mild, isolated incident does not make a work environment hostile, the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Terry v. Ashcroft, 336 F.3d 128, 148 (1993) (internal citations, quotation marks, and alteration omitted).

By contrast, "quid pro quo harassment occurs when 'submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.'" Karibian, 14 F.3d at 777 (quoting EEOC Guidelines, 29 C.F.R. §1604.11(a)(2) (1993)).4 Thus, to present a prima facie case of quid pro quo harassment, "plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment." Id. Simply put, the question is whether plaintiff's supervisor "linked tangible job benefits to the acceptance or rejection of sexual advances." Id. at 778. The term "job benefits," however, does not necessarily imply promotion or positive advancement; the mere retention of employment will suffice. Id.

2. Retaliation Claim

In deciding a summary judgment motion with respect to Title VII retaliation claims, the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Terry, 336 F.3d at 140-41. The first question is whether the plaintiff has established a "minimal" prima facie case. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998); Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998). "To establish a prima facie case of retaliation, an employee must show [1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a casual connection between the protected activity and the adverse employment action." Terry, 336 F.3d at 141 (internal citations, quotation marks, and emphasis omitted); Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). "Title VII is violated when a 'retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause.' " Terry, 336 F.3d at 140-41 (quoting Cosgrove v. Sears, Robuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)).

If the plaintiff has established her prima facie case, a presumption of discrimination or retaliation is established which "places the burden of production on the employer to proffer a [non-retaliatory] reason for its action." James v. New York Racing Assoc., 233 F.3d 149, 154 (2d Cir. 2000). If the employer fails to present such a reason, plaintiff prevails. But, "the employer can rebut that presumption by offering legitimate, non-retaliatory reasons for the contested actions; if it succeeds, the burden reverts to the plaintiff to demonstrate that those reasons are merely pretextual." Myrick v. New York City Employees Ret. Sys., 99 Civ. 4308 (GEL), 2002 WL 868469, at 5 (S.D.N.Y. May 3, 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993); James, 233 F.3d at 154; Fisher v. Vassar Coll., 114 F.3d 1332, 1333-35 (2d Cir. 1997)).

An employer acting for legitimate, non-retaliatory reasons will be entitled to summary judgment, "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited" retaliation. James, 233 F.3d at 154 (citations omitted); see also Gallagher, 139 F.3d at 349-50. Evidence casting doubt on the employer's proffered justification "may-or may not-be sufficient" to provide this support. Fisher, 114 F.3d at 1333. Thus, when the employer has proffered an explanation and the plaintiff has attempted to refute it, the Court's responsibility is to "examin[e] the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).

II. The Legal Standards Applied

A. Sexual Harrassment

1. Hostile Work Environment

Plaintiff claims she was subjected to a hostile work environment on the basis of her gender, relying on the alleged incidents of sexual harassment committed by Wilson. Defendant moves for summary judgment, arguing that "any allegedly hostile conduct she experienced was [not] sufficiently 'severe or pervasive,' [nor was it] based on her gender." (D. Mem. 10.)

As stated above, a claim of hostile work environment requires the plaintiff to show that the complained-of conducted was sufficiently severe or pervasive to create an objectively hostile environment, and that she subjectively perceived the environment to be abusive. Alfano, 294 F. 3d at 373-74. Plaintiff's submissions are not in the form of legal argument, and it is difficult to distill her precise allegations of sexual harassment. Plaintiff's deposition, verifying and elaborating on those allegations contained in her affidavit of February 23, 2004, however, shows that her allegations of sexual harassment amount to the following: (1) a conversation between Wilson and plaintiff in which Wilson confided to plaintiff she was gay (Hamilton 2/23/04 Aff. 1-2); (2) repeated visits to plaintiff's store and invitations to join Wilson for drinks after work, including one incident in April 1997 in which Wilson allegedly propositioned plaintiff (id. at 2; Hamilton Dep. 60, 76); (3) Wilson's numerous compliments on plaintiff's "elegant and sexy" appearance (Hamilton 2/23/04 Aff. 2) and her "sexy" tone in speaking to plaintiff during her final evaluation (Hamilton Dep. 112); (4) an undergarment (bodysuit) Wilson left behind in plaintiff's store (Hamilton 2/23/04 Aff. 2); (5) Wilson's inappropriate dressing and showing off during a staff meeting in plaintiff's store, which plaintiff perceived as trying to "make [plaintiff] jealous" (id.); and (6) Wilson's touching of plaintiff's breast in June 1997, over plaintiff's objection, while feeling the material of a bodysuit plaintiff was wearing, and which Wilson told plaintiff was "very sexy." (Hamilton Dep. 62-63.)

As a preliminary matter, Wilson's sexual orientation is not material on summary judgment. Plaintiff perceived Wilson's comments disparaging men during one conversation as indicating her sexual attraction to women (id. 67-69) and submits a notarized letter from a former co-worker, Clarissa Green, testifying she also believed Wilson was gay and that Wilson made things difficult for straight female employees (Letter of Clarissa Green, dated Aug. 3, 1999, Hamilton Decl. Ex. 17, at 1). Wilson insists she has never been sexually attracted to women. (Conte Decl. 13.) Although at trial a jury might credit Wilson's testimony about her sexual orientation over that of plaintiff, and accordingly, be more skeptical about plaintiff's allegations, such credibility determinations and factfinding are inappropriate on summary judgment. Plaintiff's allegations are what they are vis-a-vis Wilson's behavior, and it is that behavior-a series of alleged unwelcome sexual advances-which plaintiff claims subjected her to a hostile work environment. Nonetheless, no reasonable jury could find that the alleged harassment was so severe or pervasive as to be actionable under Title VII.

Indeed, few of these alleged incidents merit serious attention because plaintiff's own testimony does not indicate that she subjectively perceived them as objectionable. Plaintiff's present allegations that Wilson's positive compliments about her appearance (i.e., that plaintiff's clothing and appearance were "elegant and sexy" and that Wilson's sister thought plaintiff was "the most glamorous woman she ever met") constituted sexual harassment are undercut by her testimony that she did not find the comments offensive at the time and that positive comments about appearance would have been normal in the context of a high-end fashion retail store. (Hamilton Dep. 75-76, 81.)5 Likewise, although plaintiff described Wilson's tone of voice as "sexual" in a conversation they had at the end of the forty-five day probationary period put in place by Wolfer following plaintiff's negative midyear appraisal, plaintiff's testimony clearly indicates that the content of the conversation was not at all sexual, nor did she perceive it as such. (Id. 112-14.) Moreover, plaintiff's testimony indicates that she found the conversation inappropriate because Wilson was carrying on too much in delivering the review, when "[a]ll she had to do was state the Facts, questions, answers and goodbye. No theatrical act." (Id. 114.) This does not amount to testimony of a perception of sexual harassment.

Nor did plaintiff perceive Wilson's numerous invitations (approximately ten) to join her for drinks after work as subjectively contributing to a hostile work environment; instead, her testimony was that she thought "Wilson had no life so she wanted me to socialize with her" with no particular sexual implication behind the invitations (id. 72 ("Q: [Did Wilson want you to socialize with her] [a]s a friend?; A: She didn't mention in what position." )), and that she rejected those invitations because she and Wilson had a "hostile relationship." (Id.) Similarly, although plaintiff complained that Wilson left behind an undergarment-a bodysuit-in plaintiff's store, plaintiff testified that employees sometimes brought changes of clothes ("jeans, shirts") to perform manual work after hours (id. 105-06), and she was not sure whether Wilson had done so intentionally "so people can see [her undergarments]" (id. 106), or simply because "she was in a rush." (Id. 110.) Plaintiff offers no reason whatsoever for believing that this conduct, even if intentional, was directed at her in any way. And while "[e]vidence of a general work atmosphere-as well as evidence of specific hostility directed toward the plaintiff" may be relevant to assessing the environment to which plaintiff was subjected, see Penn v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987)), no reasonable person would regard this as sexual harassment, and plaintiff herself did not.6

Plaintiff further alleges that Wilson deliberately dressed in tight jeans and displayed her crotch area to the mostly-male employees in attendance at a staff meeting on a Saturday morning to "make [her] jealous." (Hamilton 2/23/04 Aff. 2.) But in her testimony about this incident, plaintiff reveals that she did not have a view of Wilson's behavior during the meeting, and that it was only brought to her attention by the comments of her male employees after the meeting, who were mocking Wilson's behavior. (Hamilton Dep. 88.) Indeed, plaintiff's characterization of arguably sexual behavior addressed to male workers out of her view as part of a campaign of sexual harassment of her is idiosyncratic, to say the least. Aside from grouping this incident under the general category of Wilson's harassing behavior, plaintiff does not claim to have perceived Wilson's attire or behavior as abusive, rather than inappropriate, and neither does she make any allegation that it was the comments of her male employees that gave rise to a hostile or abusive environment.

Plaintiff's remaining two allegations are potentially more serious because her testimony can fairly be read to evince plaintiff's subjective perception of harassment. On one occasion plaintiff alleges that Wilson kept her late at the store, and then "took her jacket off, had a tight T-shirt and pants and no shoes. [Wilson] again invited me for a drink with sparkling eyes fixed on me and a manly, dominant position with one leg raised on a stool, and I told her I had a family to go home to." (Hamilton 2/23/04 Aff. 2.)7 Plaintiff also claims that, on a different occasion, Wilson touched plaintiff's breast, over her objection, while touching the material of plaintiff's bodysuit, which Wilson had described as "very sexy." (Hamilton Dep. 62-63.) A reasonable person in plaintiff's position might very well have perceived these two incidents as unwelcome and offensive sexual advances.

Isolated incidents are generally insufficient to demonstrate that the harassment was pervasive enough to transform the conditions of employment. See Tomka, 66 F.3d at 1305 n.5 ("[I]solated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive."). At the same time, there is neither a magic number of incidents above which harassment is actionable, and below which it is not. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (cited in Richardson v. New York State Dep't of Corr. Servs., 180 F. 3d 426, 439 (2d Cir. 1999)). It is the clearly established law of this Circuit that isolated incidents may be actionable, provided they are of sufficient severity. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (summary judgment on hostile environment claim in favor of defendant inappropriate where plaintiff was subject to long, lewd public tirade about her work performance in front of her employees because, even without regard to plaintiff's additional allegations of subsequent harassment, "a rational juror could view such a tirade as humiliating and resulting in an intolerable alteration of plaintiff's working conditions") The touchstone of the inquiry is, therefore, whether a "reasonable person could find [plaintiff's] working conditions altered for the worse." Richardson, 180 F. 3d at 439.

Although egregious conduct alleged in previous cases does not "mark the boundary of what is actionable," Harris, 510 U.S. at 22, the incidents alleged here are clearly not of sufficient severity to have transformed plaintiff's working conditions in light of existing case law. This Circuit has affirmed grants of summary judgment in favor of defendants or reversed jury verdicts in favor of plaintiffs where the alleged behavior, although equally infrequent, was more overtly sexual and severe than that alleged here. See, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59 (2d Cir. 2004) (affirming summary judgment where within a period of about a month, supervisor claimed he would not approve plaintiff's vacation request if she did not sleep with him, offered various job benefits if she slept with him, and threatened to reassign her to another department when she refused his offer); Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (reversing jury verdict where only cognizable allegations involved three comments or pranks involving carrots and intimating plaintiff's sexual practices and a vulgar cartoon depicting a subordinate with whom plaintiff had allegedly had inappropriate physical contact); Quinn, 159 F.3d at 768 (2d Cir. 1998) (affirming summary judgment where supervisor told plaintiff she had been voted the "sleekest ass" in the office and supervisor "deliberately touched plaintiff's breasts with some papers he was holding in his hand").

The Court must be careful, however, to consider the totality of the circumstances, keeping in mind that "a jury, in assessing whether there was impermissible [harassment], would be entitled to view the evidence as a whole." Howley, 217 F.3d 141, 151 (2d Cir. 2000). The circumstances here include not just the alleged incidents of sexual harassment, but also plaintiff's litany of allegations about harassment of a more general nature, including Wilson's criticism of plaintiff's performance in front of other employees and interfering with and undermining plaintiff's management of her store and employees on numerous occasions. (Hamilton 2/23/04 Aff. 2-4).8 Defendant argues that these general allegations of harassment are not actionable because inter alia they concern Wilson's management of plaintiff-business judgments plaintiff may not challenge. (D. Mem. 12 n.11-12). See Spina v. Our Lady of Mercy Med. Ctr., No. 97 Civ. 4661 (RCC), 2003 WL 22434143, at 4 (S.D.N.Y. Oct. 23, 2003) (Title VII is "not meant as a general civility code and may not be used for turning otherwise ordinary disputes with a superior into a claim for sexual harassment"). However, "[i]ncidents that are facially sex-neutral may sometimes be used to establish a course of sex-based discrimination-for example, where the same individual is accused of multiple acts of harassment, some overtly sexual and some not." Alfano, 294 F.3d at 375.

Nonetheless, even on the broadest view of her evidence-where the two perceived incidents of sexual harassment represent Wilson's most concerted sexual advances, against a background of low-level enticements consisting of compliments and social invitations, followed by occasional, harassing criticism because those advances were rejected-plaintiff falls short of identifying harassment sufficiently pervasive to have transformed plaintiff's working conditions. Wilson, as a regional manager with responsibility for several stores, was not present in plaintiff's store every day and, moreover, all of these incidents were both episodic and comparatively mild. Cf. Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) (summary judgment inappropriate where plaintiff testified supervisor " 'grab[bed]' and 'placed his hand on [her] hand' on a 'daily' basis, 'constantly,' 'whenever he had the opportunity,' and that he 'used to touch [her] hair a lot.' This conduct 'was ongoing over months and months.'"); Carrero v. New York City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989) ("constant[] touching" and attempted bestowal of "unasked for and unacceptable kisses" over two week period, when coupled with supervisor's position of power, was tantamount to coercion and established hostile work environment). Finally, a series of ambiguous incidents, the vast majority of which plaintiff herself did not regard as offensive at the time, cannot be magically transformed into a pattern of abusive behavior, simply by viewing them in the aggregate.

Plaintiff has not created a genuine issue of material fact as to the existence of sexual harassment of sufficient severity or pervasiveness to be actionable under Title VII and, accordingly, there is no need to consider defendant's alternative argument that the challenged conduct was not directed at plaintiff because of her gender.

2. Quid Pro Quo Sexual Harassment

Although not addressed by defendant in its briefing, plaintiff at least appears to advance a theory of quid pro quo sexual harassment, in that she claims that after rejecting Wilson's advances, she was subjected to "increased scrutiny and discipline," and that her eventual termination reflected that rejection, not her actual performance.9 Under the standards outlined above, termination for failure to submit to the unwelcome sexual advances of a supervisor constitutes quintessential quid pro quo sexual harassment. But even accepting plaintiff's characterization of Wilson's sexual orientation and behavior, plaintiff must still show that "her reaction to [unwelcome sexual advances] was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment." Karibian, 14 F.3d at 777.

Plaintiff has failed to create a genuine issue of material fact as to any linkage between her rejection of Wilson's perceived sexual advances and either the negative evaluations she received in 1997 or the ultimate termination of her employment in January 1998. First, plaintiff has neither alleged nor testified that the perceived advances described above, or any accompanying behavior, were threatening or suggestive to plaintiff that her continued employment depended on submitting to these advances. And second, she has brought forward no evidence, apart from speculation, that the negative evaluations she received from Wilson were the pretextual actions of a woman scorned. Indeed, plaintiff's 1996 year-end evaluation, completed by Wilson after she took over from plaintiff's previous manager and reflecting criticisms which would be amplified over the course of the warning notices plaintiff received throughout 1997, pre-dated plaintiff's allegations of sexual harassment and was issued at a time when plaintiff claims she and Wilson were on friendly terms. (Hamilton Dep. 343; D. Reply Mem. 4 n.6.) By the time of the warning notice in June 1997, plaintiff's store was operating at a $210,000 loss. (Conte Decl. 7 & Ex. 2.) This trend continued, and by her midyear review in September 1997, plaintiff's store was operating at a $269,000 loss. (Id. 8 & Ex. 3.) At the time of the December 1997 warning notice, plaintiff's store had missed its sales target for the month of October by $105,000, and was performing below average compared to defendant's other stores. (Id. 9 & Ex. 4.)

Plaintiff disputes not these figures themselves, but rather their significance (Hamilton Decl. 10), and submits alternative indicators of her store's performance in the form of weekly sales reports showing that her store was highly ranked in May, June, and December 1997 and that some of her employees were among the company's top performers (Hamilton Decl. Exs. 13-16.) Similarly, plaintiff claims the criticisms recorded in the warning notices she received throughout 1997 were unfounded, pointing inter alia to more than twenty letters and memoranda written since she began her employment with Bally to show that she had good customer relations skills, and that she was a valuable asset. (Hamilton Supp. Aff. Ex. 20.) Some of these letters do speak to positive interactions between plaintiff and her customers, and plaintiff is free to believe that her supervisors' assessment of her performance and that of the store under her management were erroneous.

But, while allegations of facially neutral harassment by a supervisor may be relevant to determining whether plaintiff was subjected to a hostile work environment, where that supervisor has also engaged in alleged overtly sexual harassment, courts and juries do not ultimately sit to second-guess the business judgment of Wilson, Wolfer, Wycherley or any one else employed by defendant. As discussed by courts in the context of the burden-shifting framework applicable to discrimination and retaliation claims, while employers cannot shield themselves by inventing reasons, a truthful, but poor, business decision will not subject the employer to Title VII liability. See Dister v. Cont'l Group, Inc., 859 F.2d 1108 (2d Cir. 1988); Hansen v. Dean Witter Reynolds, Inc., 887 F. Supp. 669, 673 (S.D.N.Y. 1995) ("[T]he court is not to second-guess the defendant's judgment; the fact finder should not assess whether the employer's decision was erroneous or even rational, so long as the employer's actions were not taken for a discriminatory reason.") (internal quotation marks and citation omitted). Defendants have brought forward ample evidence, unrefuted apart from conclusory allegations in plaintiff's affidavits and deposition, that the termination of plaintiff's employment was nothing more than a legitimate business decision, unconnected to the alleged sexual harassment.

After all, it was Wycherley, and not Wilson, who recommended plaintiff's termination in May 1997. (Wycherley Decl. 6.) While that decision was based in part on the observations of Wilson, and plaintiff could be understood to argue that Wilson's observations were tainted by plaintiff's rejection of Wilson's advances, he relied as well on his own personal observations and those of Wilson's supervisor, Brad Wolfer. (Id.) In addition, Wycherley's recommendation to terminate plaintiff was made pursuant to a directive by defendant's parent company to take steps to increase profitability. (Id. 5.) Plaintiff has not produced any evidence that Wycherley knew anything about Wilson's alleged behavior when he decided to recommend plaintiff's termination (or at any subsequent time). Although plaintiff asserts she complained to human resources about Wilson's behavior on May 13, 1997 (and again in June 1997), vice president of human resources Karen O'Mara did not interpret her complaint as one about sexual harassment, and did not report allegations of sexual harassment to anyone employed by defendant. (O'Mara Decl. 2-3.) While plaintiff claims that Wilson knew about her meeting with O'Mara (Hamilton 2/23/04 Aff. 2), plaintiff does not claim any way in which Wycherley would have known about Wilson's behavior, aside from her unsubstantiated refusal to believe that O'Mara did not notify anyone employed by defendant about her claims. (Hamilton Supp. Aff. 18.) Accordingly, aside from the simple fact that plaintiff's complaint to human resources and Wycherley's initial recommendation that plaintiff be terminated were made in the same month, plaintiff has produced no evidence creating a genuine issue of material fact as to whether Wycherley's recommendation was connected to the alleged sexual harassment. Nor has plaintiff provided the Court with any other evidence that either her termination, or the negative evaluations that preceded it, were in any way connected to her rejection of what she perceived to be Wilson's sexual advances. Accordingly, plaintiff may not proceed on a quid pro quo theory of sexual harassment.10

B. Retaliation

Finally, plaintiff alleges that Bally violated Title VII by retaliating against her because she complained about Wilson's behavior to human resources and CHR. She alleges that this retaliation took the form of her termination, followed by placement on defendant's "black list" and provision to would-be employers of negative recommendations. (Hamilton 2/23/04 Aff. 2.)

Plaintiff's retaliation claim founders for a number of reasons. First, recall that "[t]o establish a prima facie case of retaliation, an employee must show [inter alia] participation in a protected activity known to the defendant." Terry, 336 F.3d at 141. Even accepting plaintiff's testimony that she did complain to human resources about sexual harassment and was thus engaged in protected activity,11 her complaints were not interpreted as such and were not made known to those individuals (primarily Wycherley and Wilson) responsible for her termination (O'Mara Decl. 2-3), thus eliminating the possibility that a retaliatory motive played any role in her firing. While plaintiff "does not trust [O'Mara's declaration] to be true" (Hamilton Supp. Aff. 18), she does not introduce any evidence that O'Mara did in fact inform anyone employed by defendant about plaintiff's sexual harassment complaints. Similarly, although plaintiff made a complaint to CHR on December 1, 1997, the complaint was not served on defendant until January 20, 1998, a few weeks after her termination.

Second, plaintiff has brought forward no admissible evidence that she was "black listed" by defendant. In a letter to CHR, she details her difficulties in finding employment after her termination and speculates that she "has no doubt . . . that [her] failure [to secure new employment] was a result of Bally's retaliation." (Letter of Barie Hamilton, to Rhoda Sutine, CHR, dated July 26, 1999, Hamilton Decl. Ex. 18, at 2.) But in support of this and similar speculation in her submissions she offers only the notarized letter of her former co-worker Clarissa Green, who claims that she attempted to get plaintiff a job with her employer, only to be told that plaintiff had received a negative recommendation from defendant because of the difficulties she had had with Wilson. (Letter of Clarissa Green 1.) But this inadmissible hearsay evidence of what Green's employer told her about the reference plaintiff received from defendant (even assuming that the reference was made at some point after defendant was made aware of plaintiff's complaint to CHR) cannot serve to create a genuine issue of material fact on summary judgment as to the existence of either a "black list" or negative employment recommendations made by defendant.

On this record, plaintiff has not demonstrated a genuine issue of material fact either as to knowledge about her complaints of sexual harassment on the part of those responsible for her termination or that any post-termination retaliation took place. Accordingly, she cannot make out a prima facie case of retaliation, whether in the form of her termination or negative employment references provided after her termination.

CONCLUSION

For the reasons stated, defendant's motion for summary judgment is granted, and plaintiff's motion is denied. Plaintiff's remaining sex discrimination claims are thus dismissed.

SO ORDERED.

1. Throughout this litigation, plaintiff has referred to defendant Bally North America as "Bally of Switzerland." See Hamilton, 2004 WL 169789, at 1 n.1. Plaintiff explains that the name of the company was changed to Bally North America following bankruptcy proceedings that postdated her termination. (Hamilton 2/23/24 Aff., Hamilton Decl. Ex. 10, at 1.)

2. At the time of the motion to dismiss, plaintiff had not yet served defendant Wilson and sought permission from the Court for additional time to do so. The Court declined to enlarge plaintiff's time to perfect service, finding that plaintiff had failed to state a claim against Wilson. Instead, the Court granted plaintiff a short amount of time in which to replead Facts which would state a claim against defendant Wilson. Hamilton, 2004 WL 169789, at 5. Plaintiff made additional submissions, but they were legally insufficient to state a claim against Wilson. Accordingly, by Order dated February 25, 2004, the Court dismissed Wilson from this case.

3. Plaintiff makes repeated references in her submissions to audio tapes previously submitted to the Court as exhibits. No audiotapes were submitted with this motion, nor does the Court have audio tapes on file from any previous motions in this case. Accordingly, the Court has not had recourse to any such tapes, although it notes that some of these tapes were apparently played during various depositions according to the deposition transcripts.

4. The EEOC Guidelines, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Sav. Bank, FSB v. Vinson 477 U.S. 57, 65 (1986) (citations omitted).

5. To the extent that plaintiff clarifies this testimony in her supplemental affidavit that she was not initially offended, but that she "became more and more frustrated with Wilson's compliments, as they took the form of sexual harassment" (Hamilton Supp. Aff. 15), these compliments, as vaguely described by plaintiff in her submissions ("Wilson made numerous compliments about [plaintiff's] looks, how elegant and sexy her suits, shoes, and general looks were." (Hamilton 2/23/04 Aff. 2)), are not objectively offensive. In any event, an affidavit that attempts to revoke admissions made in a deposition cannot create a genuine issue of material fact on summary judgment. Hayes v. City of New York Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996).

6. Plaintiff testifies in detail that she and at least one of her employees were disgusted that a dirty undergarment was left in the store (Hamilton Dep. 108-109, Hamilton 2/23/04 Aff. 2), but like plaintiff's testimony about the conversation she and Wilson had at the end of her forty-five day probationary period, her testimony about this incident cannot be read to evince a perception of sexual harassment, even drawing all reasonable inferences in favor of plaintiff .

7. For purposes of summary judgment, giving the benefit of all reasonable inferences to the plaintiff, and recognizing that a jury must be given wide scope to assess the intent and significance of subtly ambiguous actions, the Court assumes that this episode could be found to constitute a sexual advance, and treats it as such. At the same time, for purposes of assessing whether a reasonable factfinder could determine that plaintiff was subjected to "severe and pervasive" harassment, it must be noted that this incident involved no objectively improper action by Wilson at all, and that the characterization of the episode as sexual rests heavily on plaintiff's subjective assessment, as expressed in her choice of adjectives (e.g., "sparkling" eyes; "manly, dominant" posture).

8. To the extent that some of plaintiff's submissions appear to allege that she was subject to disparate treatment because she was not gay (see, e.g., Hamilton 2/23/04 Aff. 4 ("Wilson always sided with gay people"), the Court notes only that under existing Second Circuit case law discrimination on the basis of sexual orientation is not actionable under Title VII. Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).

9. The Court does not interpret plaintiff's submissions to advance an independent theory that she was terminated on the basis of her gender, and aside from two cursory Footnotes (D. Mem. 22 n.10-11) and some general language in its reply briefing (D. Reply Mem. 4-5), defendant has not addressed such a theory. Accordingly, the Court notes only in passing that such a theory would not appear to be available to plaintiff in any event, because she conceded that she believes only Wilson, and not Wycherley or Wolfer, discriminated against her on the basis of her gender (Hamilton Dep. 133), because plaintiff does not dispute that Wilson had a role in firing four store managers, two of whom were male, and both of whom were replaced by women, and closed two stores with male managers for poor performance (Conte Decl. 12), and because plaintiff would be unable to rebut defendant's offered rationale for her termination as pretextual, as discussed at length in this section.

10. Plaintiff may reasonably complain that the written warnings and negative midyear appraisal she received were "pretextual," in the sense that the decision to terminate her for business reasons alone was already final in May 1997, and, ac`cordingly, that she had no hope of redeeming herself in the eyes of her supervisors. (Hamilton Decl. 9; Hamilton 2/23/04 Aff. 3-4.) But that sort of "pretext" is not actionable under Title VII as sexual harassment or any other form of discrimination.

11. The statute provides in relevant part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees' because the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. §2000e-3(a).