Plaintiff Michelle Magdo ("Plaintiff") brings the instant action for gender and pregnancy discrimination against defendant Fidessa Corporation ("Fidessa"), her former employer. Plaintiff brings causes of action for (1) gender and pregnancy discrimination in violation of Chapter 1, Title 8, §8-107(1)(a) of the NYC Administrative Code; and (2) retaliation in violation of Chapter 1, Title 8,§ 8-107(1)(e) of the NYC Administrative Code.

Fidessa now moves for summary judgment pursuant to CPLR §3212. Plaintiff opposes.

Oral argument was held on October 1, 2013.

Plaintiff began working at Fidessa as a Project Manager in the U.S. Listed Equity Options Platform group on May 7, 2007. In January 2008, Plaintiff met with Erin Flanagan ("Flanagan"), the Director of Human Resources at Fidessa. After Plaintiff advised Flanagan of her pregnancy, Plaintiff asked Christopher Kelley, Plaintiff's supervisor at Fidessa, if they could meet in private. During that meeting, Plaintiff advised Mr. Kelley that she was pregnant. Plaintiff alleges that at the time she told Mr. Kelley she was pregnant, he said, "It would be difficult to work with a baby." (Plaintiff's deposition, pg. 203). He also allegedly stated that it is "really hard" for Sayant Chattergee, a male product manager in Plaintiff's group, [*2]who has two children even though he had both his mother and mother in law nearby to assist him. (Plaintiff's deposition, pg. 203).

After Plaintiff advised Fidessa of her pregnancy, she claims that she felt that Mr. Kelley did not value her as a worker anymore. Plaintiff alleges that his interactions became "disdainful and disrespectful." (Plaintiff deposition, pg 230). She asserts that "[t]here was much less respect there. He started to take things that I said much less at face value." (Plaintiff's deposition, Pg. 230). She further alleges that he started to doubt things she said, "whereas before he hadn't." (Plaintiff's deposition, pg. 232).

Additionally, Plaintiff claims that upon her return from a client meeting with Steven Grob, Mr. Kelley reprimanded her for attending the meeting. (Plaintiff's deposition, pg. 233). Around this time, Mr. Kelley allegedly directed Plaintiff to stop communicating with developers. (Plaintiff's deposition, pg. 209).

Mr. Kelley testified that he limited Plaintiff's interactions with developers based on feedback from Fidessa developers, including Peter Lockwood, and Adrian Shotten. He indicates that he received criticism of Plaintiff's performance:

Q. Did any developers call and tell you that they spoke to Ms. Magdo, and that it did not seem as though she knew what she was talking about?

A. Yes.

....

A. [Peter Lockwood's] concerns were specifically about her interaction with developers, and her ability to give them appropriate written and verbal guidance about what to build.

Plaintiff alleges that in February 2008, she told Mr. Kelley that she would be late to work for her first trimester ultrasound screening, he replied "Oh God, it's starting already." (Plaintiff's deposition, pg 227). However, she admits that he did not tell her that she could not take time off to go to the ultrasound.

In May 2008, at the conclusion of a conference call, Plaintiff commented to Mr. Kelley that she felt it would be in Fidessa's interest not to pursue a certain opportunity in "market making" that had been discussed. In response to her [*3]opinion, Mr. Kelley allegedly stated "Oh, what are you going to do, go and have another baby if we decide to pursue this?" (Plaintiff's deposition, pg 235). Plaintiff also indicates that at a town hall meeting that same month, she noticed that the options initiative was the last bullet point on the agenda. When she commented on this to Mr. Kelley he allegedly responded, "because you decided to have a baby."

On May 20, 2008, Plaintiff filed a FMLA request form for maternity leave, whereby she requested a 12 week maternity leave. On June 23, 2008, Plaintiff began her 12 week leave.

In August 2008, one month before she was scheduled to return to Fidessa from maternity leave, Plaintiff spoke to Mr. Kelley about the possibility of extending her leave. He allegedly responded, "I knew you would say that," and asked whether she "was really coming back" to Fidessa. (Plaintiff's deposition, pg. 325). Plaintiff also asked Mr. Kelley whether there was flexibility in returning to work on a part-time basis, to which he replied that there was. (Plaintiff's deposition, pg. 328). Plaintiff then asked whether there would be any ability to work from home. Mr. Kelley stated that he did not know whether it was a possibility, but that he would speak to Human Resources about it. (Plaintiff's deposition, 328-329).

On September 24, 2008, Mr. Kelley emailed Plaintiff and advised her that he had spoken to Flanagan about her return to work. He stated that there was not a mechanism or precedent for working from home, but that she could return to work part time and "ramp-up" her hours to full time. (Plaintiff's deposition, pg. 338).

Plaintiff returned from maternity leave on October 23, 2008. Plaintiff states that upon her return, she was replaced by Lee Fuller, as the options product manager,^[FN1] and by Joy Rosenstein, who allegedly took over her responsibility for [*4]product demonstrations during her maternity leave.

Upon Plaintiff's return to work after maternity leave, there was no change in her salary and benefits. (Plaintiff's deposition, pg 421). Her job title remained the same as well. Plaintiff indicates that after her maternity leave, she continued to come up with a marketing strategy for Fidessa's platform, explain initiatives to Mr. [*5]Kelley, meet with clients, work on internal training programs. (Plaintiff's deposition, pg 382-396). She claims that specification writing was "taken away" from her and given to Mr. Fuller. (Plaintiff's deposition, pg. 384). She states, "even though specification writing had been taken away from me, I was still at [Mr. Kelley and Mr. Fuller's] disposal for my knowledge and experience on the functionality that they were writing specifications for." (Plaintiff's deposition, pg 385). She states that after returning from maternity leave, developers from the UK did not reach out to her directly anymore. (Plaintiff's deposition, pg. 387).

In June 2009, Plaintiff requested that Kelley shift her work hours from 8:00 a.m. to 4:00 p.m. on Tuesdays and Fridays despite Fidessa's hours being from 8:30 a.m. to 5:00 p.m. Kelley approved this arrangement. (Plaintiff's deposition, pg. 416).

In October 2009, Plaintiff approached Jack Garceau ("Garceau"), the head of Fidessa's US EMS Group, to discuss the possibility of transferring to his unit, and Mr. Garceau replied, "that's great. I think that would work. You know Precise. You know options. We need an options expert on our team." He then stated, "It's ok with me. I just have to— I probably have to talk to Chris Kelley about it." (Plaintiff's deposition, pg 426). Mr. Garceau asked Plaintiff to speak with Kelley about her transferring groups. Plaintiff thereafter advised Kelley of her conversation with Mr. Garceau. (Plaintiff's deposition, pg 428). Kelley allegedly told Plaintiff that he did not feel she would be a "good fit" for Garceau's team because Mr. Garceau was very "hands-off" and Kelley did not feel that Plaintiff would do well in that work environment. (Plaintiff's deposition, pg 431; Kelley deposition, pg 383). Kelley proposed the possibility of Plaintiff transferring to the hosted market group at Fidessa that was led by Mr. Polen, as he felt her skills were better suited for a role in that group. He asked Plaintiff if she would like him to speak to Mr. Polen about the possibility, but she advised Mr. Kelley that she would speak to Mr. Polen herself. (Kelley deposition, pg 377).

Plaintiff was later informed by Mr. Garceau that she would be unable to transfer to his group.

On November 18, 2009, Plaintiff presented Ms. Flanagan with a memorandum containing allegations that Kelley had discriminated against her based on her pregnancy. (Plaintiff's deposition, pg. 452; Flanagan deposition, pg. [*6]124). This was the first time Plaintiff had complained to Fidessa of pregnancy discrimination. (Plaintiff's deposition, pg. 452).

Ms. Flanagan asserts that she undertook an investigation into Plaintiff's allegations immediately upon receipt of the complaint. (Flanagan deposition, pg 183). Ms. Flanagan met with Kelley and advised him of Plaintiff's allegations. (Flanagan deposition, pg 183).^[FN2]

Plaintiff met with Ms. Flanagan again on November 20, 2009. At this meeting, Ms. Flanagan asked Plaintiff what her desired outcome of the complaint was. However, Plaintiff did not provide a response at that meeting or any time after. (Flanagan deposition, pg 161). Ms. Flanagan attempted to schedule another appointment with Plaintiff; however such meeting never took place as a result of Plaintiff being ill, as well as other scheduling conflicts. (Plaintiff deposition, pg. 483-487).

On December 22, 2009, Plaintiff resigned from her employment at Fidessa.

In support of its motion, Fidessa attaches, among other documents: the pleadings; the affidavit of Mr. Kelley, the Global Chief Product Manager at Fidessa; email correspondence between Plaintiff and Mr. Kelley regarding her maternity leave; the affidavit of Ms. Flanagan, Director of Human Resources; Plaintiff's discrimination complaint; affirmation of Daniel A. Schnapp; a letter written to Chris Kelley by Plaintiff on the day she resigned; and transcripts from Plaintiff, Mr. Kelley's, and Flanagan's depositions.

In opposition, Plaintiff provides: the pleadings; the affidavit of Plaintiff; [*7]Plaintiff's deposition; a portion of Kelley's deposition; a portion of Flanagan's deposition; a portion of Dr. Sandra Jascolky's deposition; Plaintiff's resume; the letter offering Plaintiff a job at Fidessa; email correspondence between Plaintiff and Kelley; an email from Kelley stating that lee Fuller will be starting as a new employee on January 12, 2009; an email between Plaintiff and Jack Garceau; Plaintiff's discrimination complaint against Kelley; and emails between Plaintiff and Flanagan.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. City of New York, 49 NY2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255 [1970], Edison Stone Corp. v. 42nd Street Development Corp.,145 AD2d 249, 251-252 [1st Dept. 1989]).

Plaintiff's claims are based on the New York City Administrative Code. As amended by the Local Civil Rights Restoration Act of 2005, all provisions of the New York City Administrative Code "now explicitly require[] an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's uniquely broad and remedial' purposes, which go beyond those of counterpart state or federal civil rights laws.'" (Williams v New York City Hous. Auth., 61 AD3d 62, 66 [2009], lv denied 13 NY3d 702 [2009]).

NYC Administrative Code §8-107(1)(a) provides:

It shall be an unlawful discriminatory practice for an employer... because of... Gender... of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

To prevail on a cause of action for discrimination under the NYC Administrative Code, Plaintiff must establish that: (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she suffered an adverse employment action; and (4) the... adverse action occurred under circumstances giving rise to an inference of discrimination. (Forrest v. Jewish Guild for the Blind, 3 NY3d [2004]). Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to rebut the presumption of discrimination' by articulating a "legitimate, independent and nondiscriminatory reason" for its adverse action. (Id.).

"In order to nevertheless succeed on her claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason." (Id.).

"An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.'" (Id.). (citations omitted).

To establish a constructive discharge, a Plaintiff must produce evidence his or her "employer deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign." (Short v. Deutsche Bank Sec., Inc., 79 AD3d 503, 504 [1st Dept 2010]).

NYC Administrative Code §8-107(7) provides in relevant part:

Retaliation. It shall be unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter; (ii) filed a complaint, testified or assisted in any proceedings under this chapter; (iii) commenced a civil action alleging the commission [*9]of an act which would be an unlawful discriminatory practice under this chapter.

To make out a retaliation claim under the New York City Administrative Code, the "plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action." (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 819 N.E.2d 1998, 786 N.Y.S.2d 382 [2004].

"In assessing retaliation claims that involve neither ultimate actions nor materially adverse changes in terms and conditions of employment, it is important that the assessment be made with a keen sense of [the] realities [of the circumstances surrounding the plaintiff], of the fact that the 'chilling effect' of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities." (Williams, 61 AD3d at 71).

The minutes at oral argument make clear that the statements and conduct of Mr. Kelley, as well as the work environment that Plaintiff experienced before and after her pregnancy, were equivocal. Being susceptible to different interpretations, the issues of fact are properly decided by a jury.

Wherefore, it is hereby,

ORDERED that defendant Fidessa Corporation's motion for summary judgment is denied.

This constitutes the decision and order of the court. All other relief requested is denied.

Dated: JANUARY 3, 2014

J.S.C.