Julie O'DELL, Plaintiff-Appellant, v. TRANS WORLD ENTERTAINMENT CORPORATION, Defendant-Appellee, 40 F. App'x 628

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Julie O’Dell appeals from the order, entered in the United States District Court for the Southern District of New York (Scheindlin, /.), granting the motion by Trans World Entertainment Corporation (“Trans World”) for

summary judgment and for dismissal of O’Dell’s complaint in its entirety. The complaint asserts three claims against O’Dell’s former employer Trans World: (1) sexual harassment, in violation of both Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law (“HRL”), Exec. Law § 296 et seq.; (2) unlawful retaliation, including constructive discharge, in violation of both Title VII and the HRL; and (3) breach of contract for failure to pay a year-end bonus.

As to the claims of sexual harassment and unlawful retaliation, we affirm for substantially the reasons stated in Judge Scheindlin’s order. O’Dell v. Trans World Entm’t Co., 153 F.Supp.2d 378 (S.D.N.Y. 2001). As to O’Dell’s claim of breach of contract, we need not decide whether the year-end bonus under Trans World’s Bonus Program constitutes wages under New York Labor Law § 190. See Reilly v. Natwest Mkts. Group, Inc., 181 F.3d 253, 264-65 (2d Cir.1999) (indicating that some types of incentive pay may constitute wages under New York law).

The undisputed evidence indicates that O’Dell failed to qualify for a year-end bonus because the 1998 operating profit for the store she managed was below the 1998 targeted operating profit for that store. The judgment of the district court is hereby AFFIRMED.