Bader v. Special Metals Corp. (985 F. Supp. 2d 291, 2013)

United States District Court for the Northern District of New York 2013-12-04

Citations

Full opinion text

MEMORANDUM-DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

This action arises out of Plaintiff Debra Bader’s (“Plaintiff’) former employment with Defendant Special Metals Corporation (“SMC”). Plaintiff brings claims under: (1) the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; (2) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (3) the New York Human Rights Law (“HRL”), N.Y. Exec. Law § 290 et seq.; and (4) New York contract law. See Dkt. No. 4 (“Complaint”) ¶¶ 27-67. SMC and individual Defendants William Farley (“Farley”), Keith Dabbs (“Dabbs”), and Dave Maracek (“Maracek”) (collectively, the “Individual Defendants”; collectively with SMC, “Defendants”) have moved for summary judgment. Dkt. No. 22 (“SJ Motion”); see Dkt. Nos. 22-1 at 1-38 (“Memorandum”); 36 (“Response”); 40 (“Reply”). Plaintiff has moved to amend her Complaint. Dkt. No. 35 (“Motion to Amend”); see Dkt. No. 35-1 (“Proposed Amended Complaint”). For the following reasons, the Motion to Amend is denied and the SJ Motion is granted in part.

II. BACKGROUND

Plaintiff is a New York resident and was employed at the New Hartford, New York, facility of SMC, a division of Precision Castparts Corporation (“PCC”), during the period relevant to this action. Compl. ¶ 2; Dkt. Nos. 22-11 (“SMF”) ¶¶3-4, 6; 38 (“SMF Response”) ¶¶ 3-4, 6. From 1978 to the relevant period, she worked in SMC’s Inspection Department, which ensures that SMC’s metal alloys are manufactured to specification, errors are captured, and appropriate documentation is maintained about the products. SMF ¶¶ 12-13, 37-38; SMF Resp. ¶¶ 12-13, 37-38. While Plaintiff was an SMC employee, she was a member of the International Association of Machinists and Aerospace Workers and Local Lodge 2310 (the “Union”), which had a collective bargaining agreement (“CBA”) with SMC. SMF ¶¶ 5-6, 9; SMF Resp. ¶¶ 5-6, 9. Any discipline imposed by SMC on Union workers was subject to CBA requirements. SMF ¶ 25; SMF Resp. ¶25. Discipline took several forms, including verbal counseling, written warning, suspension, and termination. SMF ¶ 24; SMF Resp. ¶ 24. Union workers could file grievances challenging discipline. SMF ¶ 26; SMF Resp. ¶ 26.

SMC has a database of employee work records to track employee work histories. SMF ¶¶ 28-29; SMF Resp. ¶¶ 28-29. Each employee work record lists categories of reviews that may have been presented to an employee, e.g., commendation, training, coaching, reminder, verbal counsel, and written warning. SMF ¶ 30; SMF Resp. ¶ 30. Employee work records were issued for Plaintiff during her employment at SMC, including for discipline. SMF ¶ 40; SMF Resp. ¶ 40. These included: a reminder on February 19, 2008; a verbal counsel on March 16, 2009; two written warnings on February 17, 2010; two written warnings accompanied by a three-day suspension on March 1, 2010; and a written warning on April 13, 2010. SMF ¶¶ 46-51; SMF Resp. ¶¶ 46-51. The Union filed grievances relating to the two written warnings issued on February 17, 2010, one of the written warnings issued on March 1, 2010, and the written warning issued on April 13, 2010. SMF ¶¶ 64-66; SMF Resp. ¶¶ 64-66. SMC also issued discipline to five male employees of the Inspection Department in 2010, including written warnings, suspensions, demotion, and “Last Chance Agreements” (“LCAs”). SMF ¶¶ 71-77; SMF Resp. ¶¶ 71-77.

Pursuant to Article 9.01 of the CBA, a disciplinary hearing regarding Plaintiff was scheduled for April 15, 2010, which Plaintiff states she did not attend. SMF ¶¶ 53-54; SMF Resp. ¶¶ 53-54. Plaintiff was then issued a ten-day suspension with a return-to-work date of April 27, 2010. SMF ¶¶ 52, 55; SMF Resp. ¶¶52, 55. SMC also proposed that Plaintiff sign an LCA, which she declined to do. SMF ¶¶ 56-57; SMF Resp. ¶¶ 56-57. The Union filed a grievance relating to the ten-day suspension and the request that Plaintiff sign an LCA. SMF ¶ 66; SMF Resp. ¶ 66. Plaintiff did not return to work on April 27, 2010, or thereafter. SMF ¶ 59; SMF Resp. ¶ 59.

SMC maintains an anti-harassment policy, and its parent company, PCC, maintains a “Code of Business Conduct and Ethics,” which includes a nondiscrimination statement. SMF ¶¶ 78-79, 81; SMF Resp. ¶¶ 78-79, 81. Plaintiff received a copy of the PCC Code on February 13, 2007. SMF ¶¶ 79-80; SMF Resp. ¶¶ 79-80. During the relevant period, PCC employed a service called “EthicsPoint,” which enabled SMC employees to complain, via telephone or the Internet, about potential violations of the PCC Code, other company policies, or the law. SMF ¶¶ 83-84; SMF Resp. ¶¶ 83-84. Plaintiff used this service on July 9, 2009, to file a complaint. SMF ¶ 85; SMF Resp. ¶85. Sometime in the next few weeks, Plaintiff received a telephone call from SMC’s Division Director of Organizational Development Dan Dohar (“Dohar”), who spoke to her for approximately half an hour. SMF ¶¶ 86, 88; SMF Resp. ¶¶ 86, 88. On September 20, 2009, Plaintiff received a response through the EthicsPoint system stating, among other things, that neither her concerns nor interviews conducted as part of a review of her concerns indicated harassment, discrimination, or other violation of company policies, or that she was being targeted for discipline or termination. SMF ¶ 89; SMF Resp. ¶ 89.

On April 22, 2010, Plaintiff, or a former SMC employee on her behalf, filed another EthicsPoint report. SMF ¶ 91; SMF Resp. ¶ 91. SMC’s Vice President for Human Resources responded to Plaintiffs report on April 27, 2010, noting that the Union had already filed grievances on Plaintiffs behalf regarding her concerns. SMF ¶¶ 92-93; SMF Resp. ¶¶ 92-93. On April 29, 2010, Plaintiff submitted medical documentation that she could not return to work until further notice due to carpal tunnel syndrome in her left wrist. SMF ¶ 62; SMF Resp. ¶ 62. On June 21, 2010, the Union advised SMC that it would not proceed to arbitration on Plaintiffs grievances because she was on medical leave of absence. SMF ¶ 68; SMF Resp. ¶ 68.

Plaintiff then filed a complaint with the New York State Division of Human Rights (“Division”) on December 14, 2010. SMF ¶ 94; SMF Resp. ¶ 94; see also Dkt. No. 35-8 (“Division Complaint”). The Division Complaint was dismissed for administrative convenience on February 1, 2011, and the U.S. Equal Employment Opportunity Commission (“EEOC”) issued Plaintiff a Notice of Right to Sue on April 4, 2011. SMF ¶ 95; SMF Resp. ¶95. Plaintiff commenced an action in New York Supreme Court, Oneida County, on June 22, 2011, which Defendants removed to the-Court pursuant to 28 U.S.C. § 1441 on July 7, 2011. See Dkt. No. 1. Plaintiff filed her Complaint with the Court on September 9, 2011. Thereafter, on October 18, 2011, Plaintiff sent SMC a letter declaring her “intention to retire from employment at SMC-New Hartford; effective October 28, 2011.” SMF ¶ 69; SMF Resp. ¶69. SMC sent a confirmatory letter, dated October 24, 2011, which Plaintiff countersigned. SMF ¶ 70; SMF Resp. ¶ 70.

III. MOTION TO AMEND

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 15(a)(1) a party may, within certain defined time periods, amend a pleading as a matter of course. If amendment as a matter of course is not permitted, a pleading may be amended only if the opposing party consents in writing or the court grants leave. See Fed.R.Civ.P. 15(a)(2). Generally, a court “should freely give leave when justice so requires.” Id. However, Federal Rule of Civil Procedure 16(b) requires the issuance of scheduling orders that “must limit the time to ... amend the pleadings.” Such scheduling orders “may be modified only for good cause.” Id. Thus, when a motion to amend is made after a scheduling order’s deadline for doing so has expired, “the lenient standard under Rule 15(a) ... must be balanced against ... Rule 16(b).” Grochowski v. Phoenix Constr., 318 F.3d 80, 87 (2d Cir.2003). There is good cause for permitting modification of pleading-amendment deadlines where the party moving for modification has been diligent in doing so. Id. “[G]ood cause may not be established where the facts underlying the claim were known to the plaintiff at the time the action was filed.” Alexander v. Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 118 (E.D.N.Y.2011). “Moreover, while the absence of prejudice to a non-moving party may be relevant in determining whether leave to amend should be granted under Rule 15(a), it does not fulfill the ‘good cause’ requirement of Rule 16(b).” Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y.1997) (quotation marks omitted).

B. Discussion

On December 1, 2011, the honorable David E. Peebles, U.S. Magistrate Judge, entered an Order setting a March 1, 2012 deadline for pleading amendments and an August 31, 2012 deadline for the completion of discovery. See Dkt. No. 13 (“Scheduling Order”). The discovery deadline was then extended until December 31, 2012; the pleading-amendment deadline was never extended. See Text Order of November 16, 2012. See generally Dkt.

Plaintiff filed her Motion to Amend on April 9, 2013. She seeks to add new allegations regarding the protected activity for which she was allegedly retaliated against by Defendants. See Proposed Am. Compl. ¶¶ 9, 11, 52, 61. Specifically, she seeks to add allegations that she was retaliated against after she: (1) complained to the Union about her supervisor Brian Allen’s (“Allen”) “sexually charged, offensive, and crude remarks”; and (2) was named as witness and deposed in her former coworker Linda DiFillippo’s (“DiFillippo”) discrimination lawsuit against SMC (“the DiFillippo Action”). Id. ¶¶ 9, 11. In support of the Motion to Amend, Plaintiffs attorney submits an affidavit in which she argues that: (1) Defendants will not be prejudiced by the amendments; (2) the amendments will not cause any delay; (3) the Motion to Amend is not brought in bad faith; and (4) the amendments are meritorious. Dkt. No. 37 (“Bosman Declaration”) ¶ 14.

Plaintiff waited until more than a year after the expiration of the pleading-amendment deadline, and more than thee months after the discovery period closed, to bring the Motion to Amend. She has offered no explanation for her delay. See generally id. All of the facts upon which the new allegations are premised were known to Plaintiff well before she filed the Motion to Amend. Plaintiffs counsel was undoubtedly aware by January 11, 2010, that Plaintiff had been named as a witness in the DiFillippo Action, as she herself did the naming: Plaintiffs counsel represented DiFillippo and served the Federal Rule of Civil Procedure 26 that identified Plaintiff as an individual likely to have information regarding DiFillippo’s claims. Id. ¶ 6. Plaintiff was certainly aware that she had complained to her Union about Allen’s remarks. Further confirming Plaintiff and her counsel’s knowledge is the August 2010 deposition of Plaintiff in the DiFillippo action, at which Plaintiffs counsel asked Plaintiff about her complaints to the Union regarding Allen’s harassment. See Dkt. No. 35-2 at 77-84.

Yet despite being aware, even before she commenced this action, of the protected activity she now seeks to add to her Complaint, Plaintiff failed to move to amend in a timely fashion. She has offered no explanation for this delay; she has not, for example, asserted that she did not learn she was retaliated against for this protected activity until after the amendment and discovery periods expired. See generally Bosman Deck Plaintiff has not shown good cause for her delay. The Motion to Amend is therefore denied.

IY. MOTION FOR SUMMARY JUDGMENT

A. Legal Standard

Federal Rule of Civil Procedure 56 instructs a court to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Although “[fjactual disputes that are irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir.1991).

The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows that there is no genuine dispute as to any material fact, the burden shifts to the nonmoving party to demonstrate “the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. This requires the non-moving party to do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). A court’s duty in ruling on a motion for summary judgment is “carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). “Courts are particularly cautious about granting summary judgment to an employer in a discrimination case where, more often than not, it is the employer’s intent that is in question.” Lawrence v. Thomson Learning, Inc., No. 05-CV-329, 2007 WL 1593270, at *14 (N.D.N.Y. June 1, 2007) (citing Gallo, 22 F.3d at 1224); see also Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999) (instructing district courts to “be especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer’s intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination”).

B. Gender and Age Discrimination

Plaintiff brings ADEA and HRL claims for age-based disparate treatment and Title VII and HRL claims for gender-based disparate treatment. See Compl. ¶¶ 30-32, 39-41, 48-50, 57-59. All of these claims proceed according to the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87, 92-93 (2d Cir.2013); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-06 (2d Cir.2010); Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n. 9 (2d Cir.2008).

To make out a prima facie case of disparate treatment, a plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir.2010). “A plaintiffs burden of establishing a prima facie case is de minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir.2001). Once the plaintiff meets this minimal burden, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.2012). Following this articulation, “the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 156 (2d Cir.2000). A court may examine the “the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case.” Id. (alterations in original and quotation marks omitted).

1. Prima Facie Case

Defendants do not dispute that Plaintiff is a member of a protected class by virtue of her age and gender or that she was qualified for her position. However, they argue that she cannot make out a prima facie case of discrimination, because: (1) she was not subjected to any adverse employment action; and (2) even if she was subject to adverse employment actions, they did not take place in circumstances giving rise to an inference of discrimination. See Mem. at 9-12; Reply at 19-21.

a. Adverse Employment Action

Only employment actions that are “adverse” are actionable under the ADEA, Title VII, and the HRL. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir.2003). “An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. at 138 (quotation marks omitted). Adverse employment actions may include “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.” Patrolmen’s Benevolent Ass’n v. City of New York, 310 F.3d 43, 51 (2d Cir.2002) (alteration in original and quotation marks omitted).

Plaintiff advances the following putatively adverse employment actions: (1) a January 2007 written warning; (2) a February 2007 written warning; (3) a February 2008 “Reminder”; (4) a March 2009 verbal counsel; (5) a June 2009 written warning; (6) two February 2010 written warnings; (7) two March 2010 written warnings; (8) a three-day suspension in March 2010; (9) a ten-day suspension in April 2010; (10) a Last Chance Agreement proposed on April 15, 2010; (11) a demotion and written warning on April 30, 2010; and (12) constructive discharge. See Resp. at 8-9. Defendants argue that none of these were adverse employment actions. See Mem. at 9-11.

i. Pre-2010 Discipline

Verbal and written warnings generally do not constitute adverse employment actions unless they lead to more substantial employment actions that are adverse. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 559-70 (2d Cir.2011) (finding that an employee counseling was not actionable because it did not place the employee in a progressive disciplinary process); Krishnapillai v. Donahoe, No. 09-CV-1022, 2013 WL 5423724 (E.D.N.Y. Sept. 26, 2013) (“Courts in this circuit have found that reprimands, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.” (quotation marks omitted)).

In this case, all pre-2010 impositions of discipline were counselings or warnings and none served as the basis for future adverse employment actions. While Plaintiff alleges that each disciplinary act was “part of a progressive discipline system” that “allowed Defendants to increase the severity of the discipline,” the deposition passage she cites for this proposition states that SMC does not have a progressive discipline system. See Resp. at 9; Dkt. No. 28 (“Dabbs Deposition”) at 28. As discussed infra, Plaintiffs suspensions, demotion, and proposed LCA were premised on her 2010 written warnings; Plaintiff has offered no evidence that any of these adverse employment actions were also based on her pre-2010 discipline. Therefore, the pre-2010 disciplinary actions do not constitute adverse employment actions.

ii. 2010 Suspensions

Defendants argue that Plaintiffs three-and ten-day suspensions do not constitute adverse employment actions because they were merely the “reasonable application of pre-existing disciplinary policies.” Mem. at 10. As Defendants note, the Second Circuit has indicated that, at least with respect to certain kinds of personnel actions, no adverse employment action occurs “where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.2006). But Defendants’ argument that this principle renders Plaintiffs suspensions non-adverse is unavailing, for three reasons. First, the cases to which Defendants cite—Joseph and Brown v. City of Syracuse, 673 F.3d 141 (2d Cir.2012)—despite containing seemingly broad dicta, dealt only with paid suspensions. See Brown, 673 F.3d at 151 (“[W]e reiterate today that a suspension with pay may sometimes rise to the level of an adverse employment action.”); Joseph, 465 F.3d at 91 (“[Administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action.”). The Second Circuit suggested in Joseph that employment actions more grievous than paid suspensions might be inherently adverse and therefore not subject to the “reasonable enforcement of a preexisting disciplinary policy” standard. See Joseph, 465 F.3d at 90 (“Examples of materially adverse changes include 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.” (quotation marks omitted)); see also Mugavero v. Arms Acres, Inc., 680 F.Supp.2d 544, 568 (S.D.N.Y.2010) (interpreting Joseph’s holding as “placement on administrative leave with pay in the discrimination context is not a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner” (emphasis added and quotation marks omitted)). Numerous cases decided after Joseph have not applied the “reasonable application of a preexisting disciplinary policy” standard to unpaid suspensions, which have been deemed per se adverse. See Porter v. Donahoe, No. 10 Civ. 3297, 962 F.Supp.2d 491, 500-01, 2013 WL 4505409, at *8 (E.D.N.Y. Aug. 23, 2013) (holding plaintiffs unpaid suspension “obviously adverse”); Delia v. Donahoe, 862 F.Supp.2d 196, 214 n. 15 (E.D.N.Y.2012) (“[T]he weight of authority from within this Circuit makes clear ... that a plaintiffs unpaid suspension ... constitute^] [an] adverse employment actionf ].”); Rupert v. City of Rochester, 701 F.Supp.2d 430, 440 (W.D.N.Y.2010) (“A suspension without pay qualifies as an adverse employment action.”); Massie v. Metro. Museum of Art, No. 06 Civ. 12905, 2010 WL 3749206, at *13 (S.D.N.Y. Aug. 17, 2010) (holding ten-day unpaid suspension an adverse employment action); see also Faul v. Potter, 355 Fed.Appx. 527, 529 (2d Cir.2009) (holding that material adversity of seven-day suspension changed from unpaid to paid could not be resolved at summary judgment). Defendants have not argued or offered evidence that Plaintiffs suspensions were paid, and Plaintiffs hourly compensation indicates that they were not. See Dkt. No. 22-7, Ex. A (“CBA”) Article 13. There is therefore sufficient evidence to find that the suspensions, even if they were the result of the reasonable application of a preexisting disciplinary policy, were adverse employment actions.

Second, even if the “reasonable application of a preexisting disciplinary policy” standard applied to Plaintiffs unpaid suspensions, Defendants have not demonstrated that Plaintiff was disciplined pursuant to a preexisting disciplinary policy. Defendants state that Plaintiff received her first suspension because she had received three written warnings. See Dkt. No. 22-9 at 30-31 (“First Suspension Notice”); see Dkt. No. 22-7 (“Farley Declaration”) ¶35; Resp. at 5. But they point to no preexisting policy requiring or contemplating a suspension after three written warnings. See generally Mem.; Reply. Nor do Defendants point to any preexisting policy requiring the imposition of the warnings upon which the suspension was based; at most, Defendants have demonstrated that they imposed a range of discipline on some of Plaintiffs coworkers for somewhat similar offenses and that some of the conduct for which Plaintiff was disciplined became a focus of SMC’s quality-control efforts. See Reply at 18-19.

As to the ten-day suspension, Defendants state merely that “[t]he Company decided it would suspend [Plaintiff]” and that the ten-day period was chosen because of “the number of disciplinary issues involving Plaintiff.” Mem. at 5. Again, Defendants point to no preexisting disciplinary policy underlying their decisions. While the suspension notice states that Plaintiff was suspended per Article 9.01 of the CBA, see Dkt. No. 22-9 at 34-35 (“Second Suspension Notice”), that CBA provision merely lays out disciplinary investigation and hearing procedures as well as a general “just cause” discipline standard; it does not require or contemplate the suspension of an employee for five written warnings or touch upon the underlying conduct for which Plaintiff was disciplined. See CBA Article 9.01; cf. CBA Article 9.05 (mandating a three-day suspension after two written warnings for absences); Mugavero, 680 F.Supp.2d at 568 (upholding jury finding of an adverse employment action where no evidence was offered as to whether the plaintiffs suspension was “normal procedure” under the defendant’s disciplinary policies).

Finally, and most significantly, even if Plaintiff was disciplined pursuant to a preexisting disciplinary policy, Defendants have not demonstrated that the application of that policy was reasonable. Under Joseph and Brown, discipline applied discriminatorily is applied unreasonably. See Joseph, 465 F.3d at 93 n. 1 (holding that placement on paid administrative leave because of race constitutes an adverse employment action, because the “terms and conditions of employment do not include the possibility that an employee could be suspended purely because of his or her race”); Brown, 673 F.3d 141, 151 (2d Cir.2012) (holding that black plaintiffs suspension was not an adverse action because, inter alia, he failed to offer “proof of circumstances when a white officer ... engaged in behavior comparable to his and was not suspended”); see also Lewis v. City of Buffalo Police Dep’t, 311 Fed.Appx. 417, 421 (2d Cir.2009) (noting that, under Joseph, pretextual discipline is unreasonable); Mugavero, 680 F.Supp.2d at 568 (affirming jury verdict that suspension was adverse where there was sufficient evidence to find that the discipline was discriminatorily applied); Hurt v. Donahoe, No. 07-CV-4201, 2011 WL 10526984, at *6 (E.D.N.Y. Feb. 24, 2011) (finding application of preexisting disciplinary policies reasonable where they were uniformly applied). As discussed infra, Plaintiff has presented sufficient evidence for a reasonable factfinder to conclude that the suspensions were discriminatory. Defendants are therefore not entitled to summary judgment on the adversity of the suspensions.

iii.February and March 2010 Warnings

Plaintiffs three-and ten-day suspensions in 2010 were premised on the four written warnings she received in February and March 2010. See First Suspension Notice; Second Suspension Notice. Thus, because the suspensions were adverse, the warnings were as well. See Aiello v. Stamford Hosp., No. 9-CV-1161, 2011 WL 3439459, at *13 (D.Conn. Aug. 8, 2011) (holding that written warnings constituted adverse actions because the employee’s termination was explicitly premised on those warnings); cf. Weeks v. New York, 273 F.3d 76, 86 (2d Cir.2001) (finding insufficient evidence that notice of discipline constituted an adverse action where plaintiff did not “describe its effect or ramifications [and] how or why the effect would be serious”).

iv.April 30, 2010 Warning, Demotion, and LCA Proposal

Plaintiff argues that Defendants’ LCA proposal, as well as a warning and accompanying demotion out of the Inspection Department on April 30, 2010, constitute adverse actions. See Resp. at 8-10. But Plaintiff never signed the LCA and it therefore never went into effect. The LCA thus never changed the terms and conditions of Plaintiffs employment and cannot constitute an adverse employment action. See Dkt. No. 35-3 at 41-42 (“Proposed LCA”). Likewise, Defendants have offered unrebutted evidence that Plaintiffs demotion, although proposed, never went into effect because she ceased working before she could be formally demoted. See Dkt. No. 40-6 (“Farley Reply Declaration”) at 2, 4. And because the warning was issued after Plaintiff had ceased working and never led to any formal disciplinary action, it too cannot constitute an adverse action.

v.Constructive Discharge

However, the combination of the LCA proposal, uneffected demotion, other discipline, and a hostile work environment do give rise to a viable claim of constructive discharge. Constructive discharge occurs where an “employer, rather than discharging [an employee] directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily.” Terry, 336 F.3d at 151-52. An employee need not show that an employer acted with the specific intent to cause the employee to resign; rather, she need only show that the employer’s actions were “deliberate and not merely negligent or ineffective.” Petrosino v. Bell Atl., 385 F.3d 210, 229-30 (2d Cir.2004) (quotation marks and alterations omitted).

Constructive discharge claims are often premised on the same type of non-discrete conduct underlying a hostile work environment claim, although the standard for constructive discharge is higher. Mandel v. Champion Int’l Corp., 361 F.Supp.2d 320, 327 (S.D.N.Y.2005); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir.2000) (denying summary judgment on hostile work environment claim but granting summary judgment on constructive discharge claim).

A demotion, particularly one that is accompanied by a significant loss of salary, prestige or responsibilities, or is otherwise “humiliating,” may also, on its own, give rise to a constructive discharge claim. Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); see also Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.1984) (finding sufficient evidence of constructive discharge where plaintiff sales representative was removed from prior territory); Alfieri v. SYSCO Food Servs., 192 F.Supp.2d 14, 24 (W.D.N.Y.2001) (noting that constructive discharge may be found where an employee is threatened with demotion or has her duties changed); Dean v. Westchester County Dist. Attorney’s Office, 119 F.Supp.2d 424, 431 (S.D.N.Y.2000) (“A demotion with a reduction in pay and loss of employee benefits, when accompanied by evidence of malicious intent, can establish constructive discharge.”); Riedinger v. D’Amicantino, 974 F.Supp. 322, 330 (S.D.N.Y.1997) (noting that constructive discharge may be based on a change to an employee’s job title or responsibilities).

An employee is also constructively discharged where she resigns in the face of inevitable termination. See Bragg v. Navistar Int’l Transp. Corp., 164 F.3d 373, 377 (7th Cir.1998) (“Constructive discharge exists to give Title VII protection to a plaintiff who decides to quit rather than wait around to be fired.”); Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 85-89 (2d Cir.1996) (finding that the plaintiff had been constructively discharged where, inter alia, she was told that “she would be fired immediately if, over the course of two years, she did not maintain satisfactory performance levels”); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987) (finding that supervisor’s statement to plaintiff that he “would be fired at the end of the 90-day probationary period no matter what” was sufficient evidence to deny employer’s motion for summary judgment on constructive discharge claim); Silverman v. City of New York, 216 F.Supp.2d 108, 115 (E.D.N.Y.2002) (“[A] number of courts in this circuit have held that threats of termination may be sufficient to establish constructive discharge.”), aff'd, 64 Fed.Appx. 799 (2d Cir.2003). However, termination must be highly likely. See Lopez, 831 F.2d at 1188; Adams v. Lucent Techs., Inc., 284 Fed.Appx. 296, 302 (6th Cir.2008) (finding that plaintiffs who chose to resign rather than face the possibility of layoffs were not constructively discharged because they “were not certain to lose their jobs”). An employees’s subjective belief that termination is inevitable is not enough; rather, a constructive discharge claim will lie only where the “employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 502 (7th Cir.2010) (quotation marks omitted).

Here, Plaintiff has offered sufficient evidence that her harassment and the prospect of inevitable demotion and termination amounted to a constructive discharge. As discussed infra, Plaintiff has offered evidence of her frequent exposure to a variety of misogynist comments, conduct, drawings, and writings. Moreover, she has offered evidence that her supervisors were repeatedly made aware of this conduct, took no remedial action, and even expressed their approval of the conduct. A reasonable factfinder could determine from Defendants’ knowledge and response that, rather than being merely negligent, they intentionally permitted and encouraged the hostile work environment to which Plaintiff was subjected.

Although Plaintiffs demotion out of the Inspections Department was never effected, the language of the demotion notice indicates that it would have immediately taken effect had she returned to work. See Dkt. No. 35-3 at 44-45 (“Demotion Notice”) (“Ms. Bader is permanently demoted from the Inspection Department.” (emphasis added)). Defendants have not offered any evidence to the contrary. This demotion would have significantly reduced Plaintiffs hourly wage, see CBA Article XIII (noting the significantly higher pay rate for employees in the Inspection Department than employees in the Utility Department, where Plaintiff had worked prior to her promotion), and led to her performing less prestigious and more menial tasks, compare Bader Dep. at 14 (noting that Plaintiffs tasks in the Utility Department included “sweeping” and “general utility work”); with id. at 15-18 (noting the technical complexity and importance of Plaintiffs work as an inspector). Thus, this demotion alone might be sufficient to give rise to a constructive discharge claim.

Plaintiffs reasonable perception that she would inevitably be terminated were she to sign the LCA and return to work also gives rise to a constructive discharge claim. As discussed infra, Plaintiff has offered sufficient evidence from which a factfinder could conclude that, in the two months prior to Defendants’ LCA proffer, Plaintiff was given multiple discriminatory warnings, suspensions, and a demotion, and that an agent of Defendants, Plaintiffs coworker Joseph Sefcheck (“Sefcheck”), expressed glee at being able to ensure that she was “gone.” Dkt. No. 33 (“Geddes Declaration”) ¶ 35. A fact-finder could therefore determine that a reasonable employee in Plaintiffs position would conclude that, were she to sign the LCA and return to work, Defendants would inevitably and immediately find a pretextual excuse to impose discipline and trigger the LCA’s automatic-termination provision. Cf. Chertkova, 92 F.3d at 89-90 (finding sufficient evidence of constructive discharge where, inter alia, plaintiff was subject to arbitrary and discriminatory treatment and told she would be “fired immediately” if her performance did not improve).

The combination of the permitted and encouraged hostile work environment, pay- and prestige-reducing demotion, and near-inevitable termination are enough for a reasonable factfinder to conclude that Plaintiff was constructively discharged. Cf. id. at 90. (“Certain factors, standing alone are legally insufficient to support constructive discharge. But the effect of a number of adverse conditions in the workplace is cumulative.” (citations omitted)).

b. Inference of Discrimination

Defendants assert that Plaintiff has not demonstrated circumstances giving rise to an inference of discrimination. See Mem. at 11-12. “[T]he question of whether the plaintiff has met h[er] prima facie burden of demonstrating an inference of discrimination is often indistinguishable from the question of whether the employer’s actions served merely as a pretext for some disguised discriminatory animus towards the plaintiff.” Jimenez v. Donahoe, No. 10 CIV. 3289, 968 F.Supp.2d 609, 618, 2013 WL 4836718, at *6 (S.D.N.Y. Sept. 11, 2013). Thus, “[d]espite the elaborate process set up in McDonnell Douglas, Second Circuit case law makes clear that a court may simply assume that a plaintiff has established a prima facie case and skip to the final step in the McDonnell Douglas analysis.” Idrees v. City of New York, No. 04 Civ. 2197, 2009 WL 142107, at *9 (S.D.N.Y. Jan. 21, 2009) (citing cases). This is because a plaintiff who can prevail at the third stage of the McDonnell Douglas process has necessarily demonstrated circumstances giving rise to an inference of discrimination, and a plaintiff who cannot prevail at the third stage cannot prevail on her claim whether or not there exist circumstances giving rise to an inference of discrimination. To avoid redundancy, the Court will therefore assume Plaintiff has demonstrated an inference of discrimination and move on to the second and third stages of the McDonnell Douglas analysis. See Morris v. Ales Grp. USA Inc., No. 04 CV 8239, 2007 WL 1893729, at *7 (S.D.N.Y. June 29, 2007).

2. Articulated Non-Discriminatory Reason

Defendants have proffered the same non-diseriminatory reason for each of the adverse actions at issue: Plaintiff was disciplined for performance and conduct issues. See Mem. at 11-12, 15-16. The burden therefore shifts to Plaintiff to demonstrate that these reasons were pretext for discrimination.

S. Pretext

a. February 17, 2010, Insubordination Warning

Plaintiff received a February 17, 2010, warning for verbally abusing a supervisor, Robert Wallace (“Wallace”), and making him feel uncomfortable. Dkt. No. 35-3 at 23 (“February Insubordination Warning”). Plaintiff has offered evidence that a male employee repeatedly cursed, screamed, and threatened to kill this same supervisor and received no discipline. See Geddes Deck ¶¶ 19-21; Bader Deck ¶ 39. The failure to discipline this male employee for far more grievous verbal abuse is strong evidence of pretext. See Ruiz, 609 F.3d at 493 (“A showing of disparate treatment — -that is, a showing that an employer treated plaintiff less favorably than a similarly situated employee outside his protected group — is a recognized method of raising an inference of discrimination.” (quotation marks omitted)). Plaintiff also offers evidence that Wallace had previously disciplined her twice for the same conduct he regularly permitted male employees to engage in: reading and performing other non-work tasks in the Immersion Sonic Room. See Bader Deck ¶¶ 20-22; Geddes Deck ¶¶ 15-20. This too is strong evidence of pretext. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (noting that even non-actionable prior acts of discrimination may serve as background evidence of discrimination); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176-77 (2d Cir.2005) (“[Relevant background evidence, such as ... earlier decisions typifying the [discrimination] involved, may be considered to assess liability.”). Finally, Plaintiff denies that she made the insubordinate comments for which she was disciplined. See Bader Deck ¶39; Bader Dep. at 115-118. Because some of the same managers who allegedly heard Plaintiffs comments also made the decision to discipline her, a reasonable factfinder who credited Plaintiffs account over Defendants’ would be all but compelled to determine that this warning was pretextual. See Feb. 17 Insubordination Warning; Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”). While Defendants offer evidence that two male employees in the Inspection Department were disciplined for insubordination, this evidence is of limited probative value: the discipline took place well before Plaintiffs, and Defendants have not argued or shown that either of these employees engaged in conduct similar to Plaintiffs or were disciplined by the same supervisors. See Reply at 19. Thus, there is a genuine dispute of material fact as to whether the performance explanation for this warning was pretextual.

b. February 17, 2010, Internal-Escape Warning

Plaintiff received another February 17, 2010, warning for permitting an internal escape — an inspector’s improper approval of an inadequate product that is discovered and remedied at SMC’s facility before it is sent to the customer. See Dkt. No. 35-3 at 25 (“February Escape Warning”); Mem. at 4 n. 1. Plaintiff alleges that the product was actually adequate but she mistakenly marked it as inadequate. Bad-er Decl. ¶ 45. The warning notice appears to support her contention. See Feb. 17 Escape Warning. Plaintiff alleges that such typo-only internal escapes are common and were not met with warnings or discipline of any kind. Bader Decl. ¶¶ 41-42. While Plaintiff has not specifically identified any male employees who committed such typo-only internal escapes and were not punished, a factfinder could reasonably infer that some of the hundreds of unpunished internal escapes identified by Plaintiffs coworker Michael Geddes were typo-only. See Geddes Decl. ¶¶ 32-33. While Defendants have offered evidence that they disciplined other employees for internal escapes, they have not shown that any of these were “typo,” rather than “actual,” internal escapes. See Mem. at 14-15; Dkt. No. 22-9, Exs. O-V. Defendants’ discipline of Plaintiff in contravention of their standard practice is evidence of pretext. See Gallo, 22 F.3d at 1226-27 (finding sufficient evidence of pretext where employer’s treatment of plaintiff violated its own practice); Bonura v. Chase Manhattan Bank, N.A., 795 F.2d 276, 277 (2d Cir.1986) (same). Plaintiff has created a genuine dispute of material fact on whether the performance explanation for this warning was pretextual.

c. March 1, 2010, IRR Warning

Plaintiff received a March 1, 2010, warning for failing to complete a required “IRR” form that was to accompany shipped product. Dkt. No. 35-3 at 27 (“March IRR Warning”). Plaintiff alleges that Wallace explicitly told her to ship the product without the IRR form. Bader Decl. ¶ 44. Wallace and other managers then disciplined Plaintiff for her failure to include the form. See March IRR Warning; Bader Decl. ¶ 44. Again, a reasonable factfinder who credited Plaintiffs version over Defendants’ would be all but compelled to find that this discipline was pretextual: supervisors generally do not discipline employees for following orders. Moreover, Plaintiff asserts that Wallace, a male, received no discipline for instructing her to ship the product without the IRR form. See Bader Decl. ¶ 44. Defendants’ failure to discipline Wallace for his related yet more grievous misconduct is evidence of pretext. See Ruiz, 609 F.3d at 493. Thus, Plaintiff has created a genuine dispute of material fact as to whether this warning was pretextual.

d. March 2010 IntemalrEscape Warning

Plaintiff received another March 1, 2010, warning for an actual, rather than a merely typographical, internal escape. See First Suspension Notice. Plaintiff acknowledges that she did permit an internal escape and that this was a serious error. Bader Deel. ¶45. Moreover, Defendants offer evidence of their increased focus on internal escapes and their concomitant meting out of discipline. See Mem. at 14-15; Dabs Deck ¶¶ 13-17. Thus, Plaintiffs conduct was an objectively reasonable basis for imposing discipline.

Nevertheless, Plaintiff has presented sufficient evidence that this warning was pretextual because it resulted from a discriminatory effort to scrutinize her work and thereby find a pretextual reason to discipline her. The male inspector who discovered the internal escape, Sefcheck, relayed his discovery of Plain-. tiffs mistake to other employees by announcing, with visible delight, “I got her. I stuck it in her ass. I got her for the boys. She’ll be gone.” Geddes Deck ¶ 35. A reasonable factfinder could determine from Sefcheck’s sexual and gender-animus-evincing language that he had discriminatorily scrutinized Plaintiffs work so as to cause her termination. Cf. Staub v. Proctor Hosp., — U.S. -, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (finding supervisor’s statement that she was “trying to ‘get rid of” plaintiff evidence of animus). A reasonable factfinder could infer from Sefcheck’s comment that he “got [Plaintiff] for the boys,” as well as the other evidence of Individual Defendants’ discriminatory animus discussed infra, that one or more of the Individual Defendants had instructed Sefcheck to find a pretextual reason to discipline Plaintiff. And where a disciplinary decision is based on conduct that has been discovered as a result of scrutiny discriminatorily ordered by the decisionmaker, the discriminatory animus motivating the scrutiny may be imputed to the disciplinary decision itself. Cf. Jordan v. Olsten Corp., 111 F.Supp.2d 227, 236 (W.D.N.Y.2000) (noting that employer would not be entitled to summary judgment on discriminatory termination claim if discriminatory animus motivated, inter alia, its decision to investigate plaintiff); Lopez v. Cont. Ins. Corp., No. 95-CV-1894, 1997 WL 148032, at *3 (N.D.Tex. Mar. 25, 1997) (finding adverse action was not discriminatory where plaintiff offered no evidence that discriminatory animus “animated” the investigation that led to the discovery of the misconduct upon which the adverse employment action was premised).

e. April IS, 2010, Warning

Plaintiff received a fifth 2010 written warning for her failure to follow a supervisor’s instructions regarding the order of tasks she was to perform. See Dkt. No. 35-3 at 32 (“April 13 Warning”). Plaintiff argues that her supervisor, Andy Winsemius (“Winsemius”), gave her confusing directions and management failed to credit her version of the directions she received over her “young and inexperienced male” supervisor’s version. Bader Decl. ¶¶ 52-53. Management’s failure to credit Plaintiffs account over Winsemius’s is not evidence of pretext, especially because Plaintiff has not alleged that male employees’ version of events were usually credited over their supervisors’. Plaintiff has therefore failed to create a triable issue of fact on whether this warning was pretextual.

f April SO, 2010, Warning

On April 30, 2010, Plaintiff was given a warning for not taking a sufficient number of measurements of an ingot and her resulting failure to report that the ingot’s minimum diameter at its tapered bottom was undersized. See Demotion Notice. Plaintiff asserts that it is impossible to measure the tapered part of ingots because SMC does not have a tool with which to do so. See Bader Dep. at 70,127. Plaintiff specifically states that a “pi tape,” the tool she apparently assumes Winsemius used to measure the taper, cannot be used for that purpose, and that pi tape manufacturers have explicitly stated this in their manuals. Bader Decl. ¶ 64. She further alleges that the diameter of tapers was never measured in her thirty-two years at SMC. Id. at 129. Defendants offer no evidence to the contrary. Defendants’ substantial departure from SMC practice in taking and relying upon the measurements underlying this warning is strong evidence of pretext. See Gallo, 22 F.3d at 1226-27; Bonura, 795 F.2d at 277. Plaintiff has therefore offered sufficient evidence that this warning was pretextual.

g. Suspensions, Demotion, and Constructive Discharge

Plaintiffs suspensions, demotion, and LCA Proffer were premised on some or all of the six warnings she received in February, March, and April 2013. See First Suspension Notice (noting that Plaintiff was to receive a three-day suspension for her third written warning); Second Suspension Notice; Mem. at 10 (noting that Plaintiffs ten-day suspension was issued because of her prior written warnings); Demotion Notice (noting that Plaintiffs demotion was based on Article 9, Section 5 of the CBA, which provides that disciplinary demotions will only be used in the cases of “repeated poor performance”); Proposed LCA (noting that Plaintiffs “latest infraction” warranted termination). Because there is sufficient evidence upon which to find that five of these six warnings were pretextual, there is sufficient evidence to find that the suspensions and demotion were pretextual. With respect to Plaintiffs constructive discharge claim, there is therefore sufficient evidence to find that, in the months before she ceased working, she was repeatedly warned, demoted, and suspended for pretextual reasons.

A Discriminatory Animus

Defendants argue that, even if their proffered explanations for Plaintiffs discipline were pretextual, Plaintiff has not shown that they were pretext for discrimination. See Mem. at 15-17. But a finding of pretext may, on its own, be enough to support a finding of discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“[Rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”); James, 233 F.3d at 155. Moreover, Plaintiff has produced substantial evidence of gender-based animus. Sefcheck’s comment that he “stuck it in [Plaintiffs] ass” for the “boys,” if expressing the views of some or all of the Individual Defendants, certainly suggests gender-based animus. So too does Plaintiffs extensive evidence, discussed supra, of the differential treatment she and similarly situated male employees received. Moreover, Defendants’: (1) failure to remedy the sexually explicit and misogynist bathroom drawings, pornographic materials, and terms used to describe Plaintiff and other SMC employees; and (2) frequent participation in conversations where the words “slut,” “whore,” and “cunt” were used also constitutes evidence of animus. Bader Decl. ¶ 5; cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (finding that employer’s failure to disclaim or correct sexist attitudes of partners permits inference of sex discrimination), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071; Robinson v. Runyon, 149 F.3d 507, 512-13 (6th Cir.1998) (finding that evidence of a racially hostile atmosphere was admissible to illustrate animus of decisionmaker). Moreover, Plaintiff asserts that both Dabbs and Maracek spoke far more abusively to female employees than to male employees. Bader Decl. ¶ 6, 15-16. This substantial evidence of gender animus, combined with Plaintiffs evidence of pretext, is sufficient for a reasonable factfinder to conclude that Plaintiffs gender motivated the various adverse actions at issue.

Plaintiffs evidence of age-based animus is nonexistent. While she makes general allegations that “younger” male employees were treated more favorably than she was, she does not provide the ages (or age ranges) of any specific comparator. See generally Bader Decl. Nor has she pointed to a single ageist comment or any ageist treatment of other employees. Defendants are therefore entitled to summary judgment on Plaintiffs claims age-discrimination claims.

C. Retaliation

To make out a retaliation claim under Title VII, ADEA, and the HRL, a plaintiff must show that: (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 698 (2d Cir.2012) (quotation marks and alterations omitted).

1. Protected Activity

An employee engages in protected activity when she complains about or otherwise opposes conduct that she reasonably believes constitutes forbidden discrimination or retaliation. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). “Complaints about conduct clearly prohibited by the statute need not mention discrimination or use particular language.” Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y.2007); see also Ramos v. City of New York, No. 96 CIV. 3787, 1997 WL 410493, at * 3 (S.D.N.Y. July 22, 1997) (holding that no “magic words” must be used). “However, ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct do not constitute protected activity.” Int’l Healthcare, 470 F.Supp.2d at 357; see also Ramos, 1997 WL 410493, at *3 (“[T]he complaint must put the employer on notice that ... discrimination is occurring.” (citation omitted)).

Additionally, a plaintiff bringing an ADEA or Title VII claim must have exhausted her administrative remedies by setting forth her claims in a complaint with the EEOC or a qualifying state anti-discrimination agency. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir.2001). This requirement applies not only to causes of action but also to underlying factual allegations. See Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir.2003); McGuire v. U.S. Postal Serv., 749 F.Supp. 1275, 1287 (S.D.N.Y.1990) (noting that the exhaustion requirement applies to “acts of discrimination”); see also Padilla v. Bechtel Const. Co., No. CV 06 286, 2007 WL 1219737, at *7 (D.Ariz. Apr. 25, 2007) (finding exhaustion applicable to protected activity); Ingle v. Circuit City, No. 99-CV-1297, 2006 WL 6086293, at *2 (S.D.Cal. Feb. 6, 2006) (same). “[P]recise pleading is not required for ... exhaustion purposes.” Deravin, 335 F.3d at 201. Thus, a plaintiff may bring claims not set forth in the administrative complaint if they are “reasonably related” to factual allegations in the complaint. Holtz, 258 F.3d at 83. A claim is reasonably related where “the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Butts, 990 F.2d at 1402 (quotation marks omitted). “In this inquiry, the focus should be on the factual allegations made in the [administrative] charge itself, describing the discriminatory conduct about which a plaintiff is grieving.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir.2006) (quotation marks omitted and emphasis added).

A similar requirement applies to claims or theories that a plaintiff attempts to raise on summary judgment that were not raised in her court complaint. Certainly, a complaint need not include every fact upon which recovery is subsequently premised. See Boakye-Yiadom v. Laria, No. 09 CV 622, 2012 WL 5866186, at *11 n. 14 (E.D.N.Y. Nov. 19, 2012). However, a party “may not raise new claims or theories of liability for the first time in opposi tion to summary judgment.” Nagel v. County of Orange, No. 09-CV-9960, 2013 WL 1285465, at *5 (S.D.N.Y. Mar. 28, 2013). This rule serves to ensure that defendants are not prejudiced by conducting discovery on one theory of liability and then having to defend against a different theory. See Beckman v. U.S. Postal Serv., 79 F.Supp.2d 394, 407 (S.D.N.Y.2000) (granting summary judgment and noting that, “at the very least, [a] plaintiff must set forth facts that will allow each party to tailor its discovery to prepare an appropriate defense” (citation omitted)). Thus, this rule applies with significantly less force where a plaintiff provides some notice of her theory of liability before discovery has ended.

Plaintiff contends that she engaged in protected activity when she: (1) complained in 2007, both directly and through the Union, to management regarding harassment by supervisor Brian Allen (“Allen”); (2) repeatedly complained to management about a gender-based hostile work environment generally; (3) filed EthicsPoint reports on July 9, 2009, and April 22, 2010; and (4) was named as a witness and subsequently deposed in the DiFillippo Action. Resp. at 5. Defendants offer some combination of three arguments with respect to each: (1) Plaintiffs complaints or other conduct do not constitute protected activity; (2) Plaintiff did not exhaust her administrative remedies; and (3) Plaintiff failed to allege this protected activity in her Complaint.

a. Allen Complaints

Defendants argue that Plaintiff failed to exhaust her administrative remedies with respect to the harassment complaints she made regarding Allen in 2007. SeeMem. at 18-19. But Plaintiffs Division Complaint states that, in approximately 2007, she began to be subjected to a hostile work environment and retaliated against, and that such harassment included members of management “demean[ing]” and “yelling” at her. Div. Compl. ¶ 1. She also alleges that, on other occasions, she complained both directly to SMC and through her Union about her treatment by management. See id. ¶¶ 2, 6, 7, 9. Plaintiff now seeks to base her retaliation claim on, inter alia, complaints she made to SMC, both through her union and directly to management, about Allen making “crude jokes” about her, her body, and her relationship with her husband, and his “scream[ing] and yell[ing] at her.” Bader Deck ¶¶ 7-10 (emphasis added). An administrative investigation prompted by the Division Complaint would reasonably be expected to encompass retaliation for Plaintiffs complaints about Allen, because: (1) the complained-of conduct took place at the same time, was carried out in largely the same fashion, and was committed by the same type of actor (management) as the conduct that was the subject of the Division Complaint-described complaints; and (2) Plaintiffs complaints regarding Allen’s conduct were made in the same general manner as Division Complaint-described complaints.

Likewise, Plaintiffs failure to explicitly mention her complaints regarding Allen in the Complaint does not prevent her from bringing a retaliation claim. Plaintiff asserts in her Complaint that management began “yelling at,” “disparaging,” and “demeaning” her in 2007. Compl. ¶ 11. She also alleges that she frequently complained to SMC management about her treatment and “harassment” by supervisors. Compl. ¶¶ 10, 17. Moreover, Plaintiffs deposition gave Defendants notice that she was premising her retaliation claim on Defendants’ response to her Allen complaints. See Bader Dep. at 66-70. Plaintiff may therefore premise her retaliation claim on her complaints regarding Allen. However, because Plaintiffs complaints regarding Allen covered only gender-based discrimination, she cannot premise her age-discrimination-based retaliation claims on this protected activity.

b. Hostile Work Environment Complaints

Plaintiff also alleges that she made numerous complaints to supervisors regarding the gender-based hostile environment to which she was subjected by coworkers, including misogynist drawings and comments regarding Plaintiff and other female employees. See Bader Dep. at 158-170. As discussed infra, Plaintiff has presented sufficient evidence that the complained-of conduct constituted a hostile work environment. Thus, her complaints regarding that conduct certainly constitute protected activity.

Plaintiff exhausted her administrative remedies with respect to the coworker-caused hostile w