Barr v. Bass Pro Outdoor World, LLC, No. 5:2017cv00378 - Document 71 (N.D.N.Y 2019)
Court Description: ORDER granting 51 Motion for Summary Judgment and dismissing Plaintiff's 1 Complaint with prejudice. Signed by Judge Brenda K. Sannes on 12/13/2019. (Copy served on Plaintiff via regular and certified mail)(rjb, )
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Barr v. Bass Pro Outdoor World, LLC Doc. 71 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ SHAWNTÉ BARR, Plaintiff, 5:17-cv-00378 (BKS/ML) v. BASS PRO OUTDOOR WORLD, LLC, Defendant. ____________________________________________ Appearances: Plaintiff pro se: Shawnté Barr Auburn, New York For Defendant: Jacqueline Phipps Polito Pamela S.C. Reynolds Littler Mendelson, P.C. 375 Woodcliff Drive, Suite 2D Fairport, New York 14450 Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER I. INTRODUCTION Plaintiff Shawnté Barr brings this action pro se under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., against her former employer, Defendant Bass Pro Outdoor World, LLC (“Bass Pro”)1 alleging that it failed to promote her and subjected her to a hostile work environment on the basis of her race. (Dkt. No. 1). Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 1 Defendant was originally incorrectly sued as Bass Pro Shops. (Dkt. No. 1). The Court’s docket sheet has been updated to reflect its correct name, Bass Pro Outdoor World, LLC. (Dkt. No. 27). Dockets.Justia.com 51). Plaintiff opposes. (Dkt. No. 56). For the reasons set forth below, Defendant’s motion for summary judgment is granted. II. FACTS2 A. Plaintiff’s Employment at Bass Pro In April or May 2014, Plaintiff attended a job fair at Cayuga Community College. (Dkt. No. 1, at 6; Dkt. No. 51-3, at 12). Plaintiff stopped at the Bass Pro booth and asked Karen Rebuck,3 a Human Resources Manager at Bass Pro’s store in Auburn, New York, whether Bass Pro was “hiring for office positions.” (Dkt. No. 1, at 6). Rebuck responded that it was not but asked Plaintiff to leave her resume and complete an application because the “company did a lot of hiring from within all the time” and that she would keep Plaintiff “in mind if they were hiring for any office positions.” (Id.). Plaintiff applied for a cashier’s position. (Id.; Dkt. No. 51-3, ¶ 5). Plaintiff interviewed first with Rebuck, then with Andrea Spingler, the Customer Service Manager. (Dkt. No. 51-3, ¶¶ 2, 4). During both interviews, Plaintiff emphasized that she “wasn’t looking for a cashier’s position,” and that she was in her “last semesters of college and would be receiving [her] Bachelor’s degree by the end of the year.” (Dkt. No. 1, at 6). Rebuck assured 2 When Defendant filed its motion for summary judgment, it provided the Northern District of New York’s “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion,” (Dkt. No. 51-2), as required by Local Rule 56.2 and Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d Cir.1999). It advises that a “[a] response to the defendants’ statement of material facts” must “admit[] and/or den[y] each of the defendants’ assertions in matching numbered paragraphs,” and “support[] each denial with citations to record evidence.” (Id. at 2) (quoting N.D.N.Y. L.R. 7.1(a)(1)). Despite this, Plaintiff failed to include a response to Defendant’s Statement of Material Facts, (Dkt. No. 51-6), or cite record evidence in denying and disputing any of the facts stated by Defendant. (See Dkt. No. 56). Under these circumstances, the Court may “deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Local Rule 7.1(a)(3). While the Court “is not required to consider what the parties fail to point out,” in deference to Plaintiff’s pro se status and out of an abundance of caution, the Court has nevertheless conducted “an assiduous review of the record” to determine whether there is evidence that might support Plaintiff’s claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, the facts have been drawn from Defendant’s statement of material facts, (Dkt. No. 51-6), the Complaint, which is verified, (Dkt. No. 1), and the exhibits, depositions, and declarations attached to Plaintiff’s opposition to the motion for summary judgment, (Dkt. No. 56). The facts are taken in the light most favorable to Plaintiff. 3 Although Ms. Rebuck’s name was spelled “Raybuk” in the Complaint, (Dkt. No. 1), as the parties now appear to agree Rebuck is correct, (Dkt. No. 51-1; Dkt. No. 56), the Court utilizes this spelling. 2 Plaintiff that she “could move up in the company quickly” if she “took the cashiers position.” (Id.). Spingler told Plaintiff that if she started as a cashier, Spingler “would ensure that [Plaintiff] would move up in the company quickly” and that “she had two positions in Credit Cards and Customer Service opening in the summer that [Plaintiff] would be perfect for.” (Id.). According to Plaintiff, Spingler did “not specifically” promise her the “Credit Cards” position but the “customer service [position] was [specifically promised].” (Dkt. No. 56-5, at 27). Plaintiff accepted the cashier’s position but told Rebuck that she “was only accepting the position with the hopes that [she] would be able to move up within the company.” (Dkt. No. 1, at 6). Plaintiff began working at Bass Pro on May 21, 2014. (Dkt. No. 51-3, at 24). Her starting salary was $8.00 an hour. (Id.). Spingler and other Team Leads—or shift supervisors—gave extra work to other cashiers “to do away from the registers” but gave Plaintiff “menial tasks . . . to keep [her] stationary at the register.” (Dkt. No. 1, at 7). Additionally, during Plaintiff’s “first weeks” at the store, “a Team Lead . . . became physical” with Plaintiff, and “pushed [Plaintiff] out of the way” when she asked for help with a customer. (Id. at 9). Plaintiff did not report this incident to the store manager. (Id.) On or about May 29, 2014, Plaintiff was assisting a customer at the cash register and requested assistance with a price change from a Team Lead. (Id.). Plaintiff asked the customer to wait while she went to find the Team Lead, who was not “standing behind the podium.” (Id.). When the Team Lead returned, she yelled at Plaintiff “in front of the customer, and was rude, telling [Plaintiff that she] shouldn’t have made [the customer] wait.” (Id.). After Plaintiff was hired, Defendant hired six new front-end cashiers, including two white females, who “were promoted to the jobs” Spingler had said Plaintiff “was qualified for,” and who Plaintiff had helped to train after they were hired, and one white male, who was moved to 3 the Fishing Department. (Id. at 7). Plaintiff never applied for these positions or any other position at Bass Pro. (Dkt. No. 51-6, ¶ 16). At one point, a Team Lead, noting that Plaintiff had a short shift, asked Plaintiff if she “wanted to answer phones . . . in the cash office.” (Dkt. No. 1, at 8). Before Plaintiff could say yes, Store Manager Rob Barber “lightly shook his head no.” (Dkt. No. 56-6, at 50). Plaintiff “was sent to the generic registers, which was against store policy, because there were already enough cashiers on that day.” (Dkt. No. 1, at 8). In summer 2014, people “in trucks with Bass Pro decal[s]” began driving down Plaintiff’s street. (Dkt. No. 1, at 15; Dkt. No. 51-2, at 39–40). There were “kids riding by and trucks being loud and obnoxious.” (Dkt. No. 51-2, at 40). Plaintiff has “lived on [her] street for over 25 years” and “ knows what’s normal and not normal for [her] street, backwoods behavior on [her] street isn’t normal.” (Dkt. No. 1, at 15). Plaintiff received multiple assignments to the “mall registers” in June and July 2014. (Dkt. No. 1, at 9). The mall registers were in the back of the store and led into the Finger Lakes Mall and were in “an area isolated from the front-end registers, as well as other people.” (Id.). When she arrived to work on August 27, 2014, Team Lead Kathleen Harris asked Plaintiff to work at the mall registers. (Id.; Dkt. No. 51-3, at 57). Because Plainti activate the Act’s machinery’ as required under Title VII.” Id. (quoting Holowecki v. Fed. Express Corp., 440 F.3d 558, 567 (2d Cir. 2006)). Here, viewing the evidence in the light most favorable to the pro se Plaintiff, there is evidence that the EEOC had Plaintiff’s written charge, though unverified, when it mailed her the draft charge “a few days” before she signed it on June 28, 2016. (Dkt. No. 70-2, at 61). See Morales, 865 F. Supp. 2d at 239 (“[A] jury could find that the EEOC had plaintiff’s written charge before March 21, 2006 [even though] it was not yet signed and notarized.”) Any conclusion that Plaintiff’s oral statement had been reduced to a written charge before then would be speculative. As such, considering the Plaintiff’s verified charge signed on June 28, 2016, to relate back to a draft charge a few days before then, the Court will consider all alleged discriminatory acts under Title VII occurring in or after late August 2015 as timely.8 1. Equitable Tolling Plaintiff makes additional arguments as to why her filing is timely. She contends that equitable tolling is appropriate because she was injured and had surgery in November 2015, (Dkt. No. 56, at 20). Plaintiff also argues that her hostile work environment claim is not time- 8 The Court notes that the exact date in June is not dispositive in the case. Plaintiff’s last day of work was on June 25, 2015. (Dkt. No. 51-3, ¶ 19). As such, in order for any acts that occurred while she was working at Bass Pro to be timely, her EEOC charge needed to be filed by April 20, 2016 or earlier. There is no evidence that the EEOC reduced her charge to writing at any point prior to June, and thus events that occurred during her active employment at Bass Pro are time-barred unless equitable tolling or the continuing violation doctrine, as discussed infra Sections IV.A.1 and IV.A.2, apply. 16 barred because it is subject to a continuing violation exception. (Id.). The Court will address each of these arguments in turn. The timely charge requirement is “not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes, 455 U.S. at 393. Equitable tolling applies only in “rare and exceptional circumstance[s].” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citing Turner v. Johnson, 177 F.3d 390, 391–92 (5th Cir. 1999)). A litigant “seeking equitable tolling must establish two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’” Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)). “Pro se filings, although held to more lenient standards, are not excused from establishing these elements.” Arias-Mieses v. CSX Transp., Inc., 630 F. Supp. 2d 328, 333 (S.D.N.Y. 2009). Plaintiff asserts that equitable tolling is appropriate in this case due to her medical impairment. Equitable tolling “may be appropriate where the plaintiff’s failure to comply with the statute of limitations is attributable to the plaintiff’s medical condition.” Brown v. Parkchester S. Condo., 287 F.3d 58, 60 (2d Cir. 2002); see also Baroor v. New York City Dep’t of Educ., No. 06-cv-3965, 2009 WL 959537, at *5, 2009 U.S. Dist. LEXIS 29319, at *14 (E.D.N.Y. Apr. 3, 2009) (stating that a plaintiff’s “medical or mental impairment which prevented plaintiff from timely filing” can constitute “[c]ircumstances that might warrant equitable tolling”). “Although illness is, on its own, insufficient for equitable tolling purposes, tolling is appropriate if a plaintiff is ‘unable to protect [his] legal rights because of an overall inability to function in society’ at the time an action accrues.” Mira v. Kingston, 218 F. Supp. 3d 17 229, 236–37 (S.D.N.Y. 2016) (quoting Gardner v. Wansart, No. 05–cv–3351, 2006 WL 2742043, at *5 n.4, 2006 U.S. Dist. LEXIS 69491, at *14 n.4 (S.D.N.Y. Sept. 25, 2006)). However, when asserting that a medical condition should toll the statute, a plaintiff’s “conclusory and vague claim[s], without a particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights, is manifestly insufficient to justify any further inquiry into tolling.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (holding that equitable tolling was not available when the plaintiff alleged that she suffered from paranoia, panic attacks, and depression); see also Swanton v. Graham, No. 07-cv-4113, 2009 WL 1406969, at *5, 2009 U.S. Dist. LEXIS 45806, at *13–14 (E.D.N.Y. May 19, 2009) (concluding that equitable tolling was not warranted where the plaintiff “failed to provide the Court with any objective evidence substantiating his claims of disability, detailing how long such a disability lasted, or describing how the disability was causally related to his failure to timely file”). The record indicates that Plaintiff was injured and stopped working in June 2015. (Dkt. No. 51-3, ¶ 19). Plaintiff claims that equitable tolling should apply because of this injury and because she “was injured and had surgery in November 2015 and was taking pain medication for both.” (Dkt. No. 56, at 20). According to Plaintiff, she could walk after the injury, (Dkt. No. 70, at 30), though she had trouble standing for long periods of time. (Id. at 31–32). However, these assertions are “conclusory and vague” and do not provide a particularized description that would enable the Court to assess whether her injury and surgery affected her capacity to function or ability to pursue her rights. Boos, 201 F.3d at 185. Though Plaintiff’s injury or surgery may have warranted a short period of equitable tolling, Plaintiff has failed to provide evidence showing how long she was incapacitated, and 18 Plaintiff has not offered any reason why she could not have pursued her rights before surgery or after recovering. See Molnar v. Legal Sea Foods, Inc., 473 F. Supp. 2d 428, 431 (S.D.N.Y. 2007) (denying equitable tolling on the ground of medical impairment when the plaintiff was incapacitated for one week due to the flu because “her illness did not prevent her from pursuing her legal right to sue during the other 83 days”). Indeed, evidence in the record suggests that Plaintiff explored the possibility of returning to work at Bass Pro in the fall of 2015, if Bass Pro could accommodate her need to periodically sit down during shifts. (Dkt. No. 51-2, at 27–28, 76). Plaintiff has failed to provide a particularized description of why her medical condition prevented her from timely filing an EEOC charge, and thus equitable tolling is inappropriate on these grounds.9 2. Continuing Violation Doctrine Though Title VII requires individuals to file a charge with the EEOC within 300 days, “[u]nder the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 156 (2d Cir. 2012) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)). 9 Equitable tolling is also unwarranted based on Plaintiff’s interactions with the EEOC, because there is no evidence that the EEOC engaged in any affirmative misconduct. See Li-Lan Tsai v. Rockefeller Univ., 46 F. App’x 657, 658 (2d Cir. 2002) (holding that equitable tolling was inappropriate where “there [was] no evidence that the EEOC engaged in any affirmative misconduct” and the plaintiff had not “provided any evidence, such as the name of the representative or the date on which she spoke with the representative, to corroborate her assertion that an EEOC representative gave her erroneous information”); Lloyd v. Bear Stearns & Co., No. 99-cv-3323, 2004 WL 2848536, at *12, 2004 U.S. Dist. LEXIS 24914, at *35–36 (S.D.N.Y. Dec. 9, 2004) (“As plaintiff has also failed to give any evidence of affirmative misconduct on the part of the EEOC, her failure to bring her charges within the statutory time period cannot be remedied by equitable tolling.”). 19 In Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), the Supreme Court explained that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges,” and “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. Though time-barred, discrete prior acts falling outside the limitations period may be used as “background evidence in support of a timely claim.” Id. “[E]mployment practices such as failure to promote, failure to compensate adequately, undesirable work transfers, and denial of preferred job assignments are considered discrete acts.” Benjamin v. Brookhaven Sci. Assocs., LLC, 387 F. Supp. 2d 146, 153 (E.D.N.Y. 2005). By contrast, a hostile work environment involves “repeated conduct” that is “different in kind from discrete acts.” Morgan, 536 U.S. at 115. It is “composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)). Even if “some of the component acts of the hostile work environment fall outside the statutory time period,” the claim is timely as long as “an act contributing to the claim occurs within the filing period”; then, “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id.; accord Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (“When . . . a plaintiff’s allegations of discrimination extend beyond the 300-day limitations period, the nature of the claim determines what consideration will be given to the earlier conduct.”). For the continuing violation doctrine to apply to a hostile work environment claim, “a plaintiff must show both that an incident of harassment occurred within the limitations period, and that this timely incident was ‘part of the same actionable hostile work environment practice’ as the untimely incidents.’” Bright v. Coca Cola Refreshments USA, Inc., No. 12-cv-234, 2014 20 WL 5587349, at *4, 2014 U.S. Dist. LEXIS 155565, at *8 (E.D.N.Y. Nov. 3, 2014) (quoting McGullam v. Cedar Graphics, 609 F.3d 70, 76 (2d Cir. 2010)). Courts must “make an individualized assessment of whether incidents and episodes are related.” McGullam, 609 F.3d at 76. “Incidents that involve different perpetrators, actions, or targets, or are temporally distant from one another, may be insufficiently related.” Bright, 2014 WL 5587349, at *4, 2014 U.S. Dist. LEXIS 155565, at *9. A plaintiff may not “‘resurrect stale claims by stating that dissimilar acts are related,’ for to do so would transform the continuing violation doctrine into ‘a boundless exception to the statute of limitations.’” Maxton v. Underwriter Labs., Inc., 4 F. Supp. 3d 534, 544 (E.D.N.Y. 2014) (quoting Crosland v. City of New York, 140 F. Supp. 2d 300, 308 (S.D.N.Y. 2001)). In this case, Plaintiff alleges both a failure to promote and a hostile work environment. Regarding her failure to promote claim, Plaintiff asserts that her supervisors assured her upon hiring her in May 2014 that she “would move up in the company quickly,” and indicated that Plaintiff “would be perfect for” two positions that would be opening that summer—positions in Credit Cards and Customer Service. (Dkt. No. 1, at 6). Plaintiff was “promised” the Customer Service position. (Dkt. No. 56-5, at 27). Defendant “overlooked” her for these positions, however, and hired two white employees instead. (Dkt. No. 1, at 6). Plaintiff further alleges that when she asked one of her supervisors about a Team Lead position in the Fishing Department during the holiday season in 2014, the supervisor told her she was not qualified (because Plaintiff had not worked at Bass Pro long enough). (Id. at 7; Dkt. No. 51-2, at 71–72). These discrete acts occurred in Summer 2014 and during the holiday season of 2014. (Dkt. No. 1 at 6–7). They therefore occurred long before late August 2015 (300 days before 21 Plaintiff filed her EEOC charge, as discussed supra Section IV.A) and so Plaintiff’s failure to promote claim is time-barred. Regarding her hostile work environment claim, Plaintiff contends the continuing violation doctrine applies because she claims she was harassed beginning in 2014, while she was still working at Bass Pro and continuing until after her employment ended, up until 2016,10 by people “walking by [her house] and hiding in her neighbor’s yard sounding off duck and bird calls at 3:00am.” (Dkt. No. 56, at 19). During the relevant period—after late August 2015— Plaintiff was first on leave of absence from Bass Pro, (Dkt. No. 51-3, ¶ 19), and was then terminated in a letter dated January 8, 2016. (Dkt. No. 56-3, at 2). While pre-August 2015 incidents could be used “as background evidence in support of a timely claim,” Morgan, 536 U.S. at 113, this alleged post-employment harassment at her home fails to state such a claim. Plaintiff argues that this harassment was connected to her employment at Bass Pro, constituted further harassment and contributed to a hostile work environment, and extends the statute of limitations because it is a continuing violation. (Id. at 19–20).11 Defendant argues that the continuing violation doctrine does not apply because (1) Plaintiff was no longer working at Bass Pro during this time period, (2) “Plaintiff provides no evidence that these alleged actions can, in any way, be imputed to Bass Pro,” and (3) “the alleged conduct outside [Plaintiff’s] home 10 In her opposition to summary judgment, Plaintiff claims this harassment lasted until 2017. (Dkt. No. 56, at 19). However, her opposition brief was not sworn to, unlike her complaint. (Dkt. No. 1, at 5). It is therefore not evidence. During her deposition, which was taken under oath, Plaintiff stated that the birdcalls ceased in spring or summer 2016. (Dkt. No. 51-2, at 37–38). 11 For the first time in her opposition to summary judgment, which is unsworn, Plaintiff asserts an additional instance of post-employment harassment: “the Human Resource Manager, Karen Rebuck, show[ed] up at Coast Physical Therapy right before one of Plaintiff’s appointments.” (Dkt. No. 56, at 2). Plaintiff provides no date or additional details about this alleged incident. The Court will therefore not consider it. However, the Court notes that even if this incident were considered, it would not change the Court’s analysis because there is no basis for concluding it is related to Plaintiff’s employment or the alleged hostile work environment. 22 was completely unrelated to the conduct Plaintiff untimely alleged occurred at the workplace.” (Dkt. No. 63, at 7–8). “[E]very iteration of the elements of a hostile work environment claim has required an existing employer-employee relationship and a showing that the harassment substantively affected the plaintiff’s working conditions.” Ruggerio v. Dynamic Elec. System Inc., No. 12-cv100, 2012 WL 3043102, at *8, 2012 U.S. Dist. LEXIS 103940, at *25–26 (E.D.N.Y. 2012); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (“A hostile work environment claim requires a showing that the workplace was permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” (emphasis added)). The 2016 conduct, during a time period in which Plaintiff was not actively working for Bass Pro “had no effect upon [her] work environment, her working conditions or her ability to perform her job – the hallmarks of a hostile work environment” and no reasonable juror could find it to be a component of a hostile work environment claim. Ruggerio, 2012 WL 3043102, at *9, 2012 U.S. Dist. LEXIS 103940, at *27. While “Title VII does—in certain instances—protect against post-employment retaliation,” Mira, 218 F. Supp. 3d at 235, Plaintiff has not brought a retaliation claim and there is no such post-employment retaliation alleged here. See id., at 235–36 (finding alleged harassment outside the scope of postemployment retaliation because it was not related “to her new job or to any inability to procure employment”). Therefore, the continuing violation doctrine is inapplicable. Even if post-employment harassment could constitute a hostile work environment, the plaintiff must show “a specific basis for imputing the hostile work environment to the employer.” Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001). Plaintiff has not produced evidence “to suggest that anyone [at her prior employer] either perpetrated the things 23 she describes . . . or caused them to happen to her.” Id. at 236. Plaintiff alleges the harassment is connected to Bass Pro because (1) it began sometime after she started working there, (2) Bass Pro sold bird and duck calls, and (3) she once spotted two individuals walking down the street after she heard the bird calls, and they were wearing coats with a type of camo print that was sold at Bass Pro (but also sold elsewhere). (Dkt. No. 51-2, at 37–48). These vague connections to Bass Pro do not rise above mere speculation. Nor has Plaintiff offered any connection between the harassment outside her home (which does not appear to be race-based) and the claims of racial hostility she experienced in the workplace. As such, Plaintiff has failed to identify evidence from which a reasonable factfinder could conclude that the harassment outside of her home was “part of the same actionable hostile work environment practice” as the incidents that occurred during her employment as Bass Pro. Morgan, 536 U.S. at 103. Accordingly, the continuing violation doctrine is inapplicable to the facts in this case and the incidents comprising Plaintiff’s hostile work environment claim, all of which occurred prior to 300 days before Plaintiff filed her EEOC charge, are time-barred. Defendant is entitled to summary judgment because both the failure to promote and hostile work environment claims are time-barred. V. CONCLUSION For these reasons, it is ORDERED that Defendant’s motion for summary judgment (Dkt. No. 51) is GRANTED in its entirety; it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice; it is further 24 ORDERED that the Clerk is directed to close this case. IT IS SO ORDERED. Dated: December 13, 2019 Syracuse, New York 25
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