Holleman v. Art Crating Inc.

KIM HOLLEMAN, Plaintiff, v. ART CRATING INC., ROBERT FRASERLOWE, also known as ROBIN LOWE,individually, JOHN DOES 1-10 and ABCCORPS. 1-10, fictitious names for persons orentities whose present roles and identities are unknown, Defendants.

No. 12 Civ. 2719 (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 30, 2014

MEMORANDUM AND ORDER

Scanlon, Vera M., United States Magistrate Judge:

I. INTRODUCTION

Plaintiff Kim Holleman ("Plaintiff" or "Ms. Holleman") filed this action against Defendants Art Crating Inc. ("ACI") and Robert Fraser Lowe ("Mr. Lowe") (collectively, "Defendants").¹ Plaintiff alleged that Defendants discriminated against her on the basis of her sex and retaliated against her for complaining about sex discrimination. Plaintiff claims that in so doing, Defendants violated her rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law (the "NYSHRL" or the "State Law"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law (the "NYCHRL" or the "City Law"), N.Y.C. Admin. Code §§ 8-101 et seq.

By way of brief introduction to the facts, Plaintiff, who worked as an art handler at ACI at all relevant times, alleges that she suffered sex discrimination when she was terminated fromthat position. Plaintiff further alleges that Defendants retaliated against her for complaining about that sex discrimination by, inter alia, sabotaging her efforts to obtain unemployment insurance benefits.

Before the Court is Defendants' motion for summary judgment and the dismissal of this action in its entirety. Mot. for Summ. J., ECF No. 29. This Memorandum and Order summarizes the relevant facts of the case in Section II; sets forth the legal standard for summary judgment in Section III.A; addresses Plaintiff's Title VII claims against Mr. Lowe in Section III.B; considers Plaintiff's discrimination claims in Section III.C; and considers Plaintiff's retaliation claims in Section III.D. For the reasons set forth below, I grant Defendants' motion for summary judgment and dismiss with prejudice each of Plaintiff's Title VII, NYSHRL and NYCHRL claims against Defendants.

II. BACKGROUND

The following facts and descriptions of claims are derived from Plaintiff's Complaint; Plaintiff's 56.1 Statement, Pl. 56.1, ECF No. 46;² the Declaration of Ms. Holleman, with exhibits ("Holleman Decl."), ECF No. 48-6; and the Declaration of Jonathan Meyers ("Mr. Meyers"), counsel for Plaintiff, with exhibits ("Meyers Decl."), ECF No. 48. In addition, Plaintiff submitted a Memorandum of Law in opposition to Defendants' motion. Pl. Mem., ECF No. 45.

Where appropriate in light of the standards applicable on a motion for summary judgment, facts are drawn from Defendants' Rule 56.1 Statement, Defs. 56.1, ECF No. 29 at 3-9;³ the Affidavit of Robert Lowe, with exhibits ("Lowe Aff."), ECF No. 30; the Affidavit of Jenna Bischel ("Ms. Bischel"), the Operations Manager for ACI, with exhibits ("Bischel Aff."), ECF No. 31; the Affidavit of Lillith Battel ("Ms. Bartel"), the assistant to ACI's Office Manager, Kim Sobel ("Ms. Sobel"), with exhibits ("Bartel Aff."), ECF No. 32; the Affirmation of Elliot Schnapp ("Mr. Schnapp"), counsel for Defendants, with exhibits ("Schnapp Aff."), ECF No. 33; the Reply Affidavit of Mr. Lowe ("Lowe Reply Aff."), ECF No. 35; and the Reply Affirmation of Mr. Schnapp ("Schnapp Reply Aff."), ECF No. 36. In addition, Defendants submitted a Memorandum of Law in support of their summary judgment motion, Defs. Mem., ECF No. 34, as well as a reply Memorandum of Law in further support of that motion, Defs. Reply Mem., ECF No. 37.

The Parties' supporting exhibits include witness deposition transcripts, witness affidavits and documents relating to Plaintiff's employment at ACI.⁴

A. Facts Relating To Ms. Holleman's Sex Discrimination Claims

Ms. Holleman is a woman who is both an experienced art handler and a professional artist. Holleman Decl. ¶ 21, Ex. C at 1-2.

ACI is an art-handling company that was founded in 1994 and that presently has approximately forty-five employees. Lowe Aff. ¶¶ 2-3. ACI is jointly owned by Mr. Lowe and Graham Stewart ("Mr. Stewart") (each of whom holds a 50% stake in the company), and ACI's business involves the transportation and installation of art for museums, institutions, galleries and private collectors. Id. ¶ 2; Stewart Dep. 11:6-13, ECF No. 48-8; Lowe Reply Aff. ¶ 1; Pl. 56.1 ¶ 8. Some of the art moved by ACI is worth "hundreds of thousands" to "millions of dollars." Holleman Dep. 166:13-15, ECF No. 36-5;⁵ Bischel Aff. ¶ 9. Accordingly, ACI's art handlers' work requires technical skill and client contact. Lowe Aff. ¶ 2.

In or around April 2010, Mr. Lowe met Ms. Holleman at an ACI social event, learned that she had the credentials necessary to apply for a position at ACI, and invited her to apply. Lowe Aff. ¶¶ 4, 11. Plaintiff testified that the first time she discussed a job with Mr. Lowe, it was to build crates at $12.00 per hour, and she rejected the offer. Holleman Dep. 106:15-25, ECF No. 36-5; but see Lowe Aff. ¶¶ 11, 11 n.2 (Mr. Lowe stated that in 2010 he offered Ms. Holleman job as an art handler.).

One year later, Rich Rivera ("Mr. Rivera"), a foreman (and later supervisor) at ACI, encouraged Ms. Holleman to apply to work as an art handler at ACI. Holleman Dep. 116:21-24,ECF No. 36-5; Lowe Aff. ¶ 12; Rivera Dep. 9:3-10:5, ECF No. 48-9. Ms. Holleman applied, and on May 13, 2010, Mr. Lowe hired her to work as an art handler, starting at $22.00 per hour with overtime. Pl. 56.1 ¶ 1; Meyers Decl. Ex. 3 at 9; Lowe Aff. Ex. 1; Holleman Dep. 119:2-6, ECF No. 36-5. Initially, Mr. Lowe wished to have Ms. Holleman work some trial days, but, according to Ms. Holleman, she told Mr. Lowe "I don't do trial days," so Mr. Lowe hired her outright. Holleman Dep. 140:14-141:11, ECF No. 36-5. The $22.00 per hour rate Ms. Holleman received was a high rate of pay for a new hire, as ACI art handlers earned anywhere from $17.00 to $23.00 per hour. Meyers Decl. Ex. 18; Lowe Aff. ¶¶ 13-15. Mr. Lowe explained that he offered that pay rate in consideration of Ms. Holleman's skill and experience handling art, welding and building stage sets. Lowe Dep. 144:18-145:1, ECF No. 48-7; Meyers Decl. Ex. 18; Lowe Aff. ¶¶ 11, 14; Pl. 56.1 ¶ 14. Mr. Lowe asked Ms. Holleman to keep her hourly rate confidential because she would be making more than art handlers with more seniority, and even some foremen overseeing art handling crews. Lowe Aff. ¶ 15, Ex. A.

Ms. Holleman was the only female art handler throughout her employment at ACI, which lasted from May 13, 2010 to December 11, 2011, the date of the termination of her employment. Pl. 56.1 ¶¶ 1-2; Lowe Dep. 69:20-25; Meyers Decl. Ex. 2 at 10.

1. Ms. Holleman's Performance at ACI

a. The Parties' General Perceptions About Ms. Holleman's Performance At ACI

Ms. Holleman believed that she performed "well" over the course of her employment at ACI. Pl. 56.1 ¶ 15. For example, in June 2011, Ms. Holleman asked for a raise, but Mr. Lowe declined to give it to her, saying that he would do so in six months "if all is going well with her" at that time. Meyers Decl. Ex. 18; Pl. 56.1 ¶ 17. Ms. Holleman received a one-dollar raise in her hourly wage in November 2011, which she understood to mean that Mr. Lowe thought she wasdoing well. Pl. 56.1 ¶¶ 18, 57; Meyers Decl. Ex. 3 at 9; but see Lowe Dep. 184:21-185:11 (denying that the raise was performance-based). On December 6, 2011, she was informed that she would receive a holiday bonus. Meyers Decl. Ex. 22; Pl. 56.1 ¶¶ 19, 57.

One of Ms. Holleman's thirteen supervisors, Philip Cheung ("Mr. Cheung"), testified about his view of Ms. Holleman's performance, which was that "[w]hen she first started with us, she didn't gel very well with everyone else because maybe she was accustomed to operating independently" in her last job; however, "toward the latter half of her time there, I felt she was a very competent, [] good person to work with." Cheung Dep. 19:20-21:7, 21:11-21, 22:12-23, 39:5-11 (Ms. Holleman was "good" and "someone [he] could trust" to work independently), ECF No. 48-10; Pl. 56.1 ¶ 15; Meyers Decl. Ex. 3 at 10.⁶ In addition, on one occasion, a client was pleased with the work of an ACI team of which Ms. Holleman was a part, and the client invited the entire team to a restaurant to say thank you (approximately eleven people received the email invitation). Meyers Decl. Exs. 19-20; Pl. 56.1 ¶ 22.

In contrast, according to Defendants, over the course of her tenure at ACI, Ms. Holleman "caused more problems for the company . . . than any other art handler who ha[d] worked at ACI" since at least 2005. Bischel Aff. ¶ 5 (stating that Ms. Bischel had worked at ACI since 2005).⁷

b. Mr. Lowe Became Aware Of Complaints About Ms. Holleman During The First Three Months Of Her Employment

Ms. Bischel, who was one of Plaintiff's supervisors, stated that "[a]lmost from the beginning of Ms. Holleman's employment," Ms. Bischel received complaints from some of Ms. Holleman's co-workers and supervisors about her job performance, and requests that they not be assigned to work with Ms. Holleman. Bischel Aff. ¶¶ 6-7. Those who requested that they not work with Ms. Holleman found that her work ethic and behavior were inconsistent; that she voiced complaints about her job assignments in front of clients; and that she would leave before work was completed, thereby creating extra work for her co-workers. Bischel Aff. ¶¶ 8-10. Ms. Holleman denied leaving before work was completed, except when her co-workers agreed she could do so. Holleman Dep. 156:2-22, ECF No. 48-6; Pl. 56.1 ¶ 55.

Ms. Bischel reported the complaints about Ms. Holleman to Mr. Lowe, and informed him that "Ms. Holleman's inability or unwillingness to act professionally on the job not only was unfair to her co-workers, but was making it harder for [Ms. Bischel] to do [her] job because [she] was having...