DECISION AND ORDER

WILLIAM SKRETNY, District Judge

I. INTRODUCTION

On September 10, 1999, Plaintiff Diane Bujnicki filed her Complaint in this action alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), violations of the New York Human Rights Law ("NY HRL"), § 290 et seq., as well as a New York state common law claim of intentional infliction of emotional distress. This Court has federal question jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367.

On June 30, 2003, Defendants filed a Motion for Summary Judgment. This Court heard oral argument on Defendants' motion on January 26, 2004, and reserved decision at that time. For the reasons discussed below, Defendants' Motion for Summary Judgment is denied in part and granted in part.

II. BACKGROUND

Plaintiff filed her Complaint in this action on September 10, 1999. On January 19, 2001, this Court granted Defendants' Motion to Dismiss without prejudice and remanded the case to the United States Equal Employment Opportunity Commission for further consideration because the 180-day administrative review period had not yet expired. On January 22, 2001, Plaintiff's case was closed.

On June 8, 2001, Plaintiff filed a Motion to Reopen, which this Court granted on June 29, 2001, after determining that the 180-day administrative review period had lapsed. Shortly thereafter, on July 27, 2001, Defendants filed a Motion to Dismiss Plaintiff's Complaint. In a Decision and Order filed on January 22, 2002, this Court granted Defendants' motion in part and denied it in part. What remains are the following claims: (1) Plaintiff's Title VII claims against Defendant American Paving and Excavating, Inc. ("American"), (2) Plaintiff's N.Y. HRL claims against all Defendants, and (3) Plaintiff's intentional infliction of emotional distress claim against all Defendants.

B. Facts

American is a corporation located in Clarence, New York, that is engaged in the business of paving and excavating driveways, parking lots and roads, as well as removing and plowing snow in the winter months. (Defendants' Rule 56 Statement of Undisputed Material Facts ("Defendants' Statement"), ¶ 2; Berberich Aff., ¶ 2; Plaintiff's Counterstatement to Defendants' Statement ("Plaintiff's Counterstatement"), ¶ 2.) Defendant Guy Berberich is the President of American and Defendant Michael Jantzi is employed as a supervisor with American. (Berberich Aff., ¶ 2; Plaintiff's Counterstatement, ¶ 2.) Plaintiff worked for American during the months of August and September in 1998. (Defendants' Statement, ¶ 1; Plaintiff's Counterstatement, ¶ 1.)

The parties heavily dispute Plaintiff's employment status with American, particularly the position she was hired for and the duties she was expected to perform. As will be discussed in further detail below, Plaintiff contends that she was hired by Defendants to perform the job of "flagperson," and the duties attendant to that position as she understood them. (Bujnicki Aff., ¶¶ 3-15.) Plaintiff described the job of flagging as follows:

You have a walkie-talkie in your hand and you have to communicate with the other person on the other side. You have to — you're in charge of the stop and the flow of traffic so you have to communicate with the other person on the other side so that there aren't cars obviously running into each other. You have to keep in constant contact with the other person.

(Bujnicki Aff., p. 118.) Defendants' however, contend that Plaintiff was hired as a "trainee" or "laborer," and that she knew that her position would require her to perform difficult, physical tasks, such as the ones she complains of in this action. (Berberich Aff., ¶ 3.)

The remaining facts pertinent to this motion involve the manner in which Plaintiff was treated during her employment with American. As will be discussed further, Plaintiff alleges that she was required to perform physically arduous work involving such tasks as shoveling and raking asphalt, cleaning a paving machine, and using a pickax. (Bujnicki Aff., ¶¶ 22, 27; Bujnicki Dep., pp. 121-122.) These were tasks ordinarily performed by laborers on the paving crew, not by flagpersons, and Plaintiff contends that she did not expect to have to perform these functions at the time she accepted her employment as a flagperson. (Bujnicki Aff., ¶ 10.)

Not only was Plaintiff required to perform non-flagperson duties, but she was also allegedly subjected to discriminatory treatment because she is a woman. Plaintiff complains of being called "Dharma," "stupid," and "dumb blonde," and being berated for "shoveling like a woman." (Defendants' Statement, ¶ 7; Plaintiff's Counterstatement, ¶ 7; Bujnicki Aff., ¶¶ 17-21.) Plaintiff also contends that Defendant Jantzi treated her differently than he treated the men on the work site. She states that he yelled in her face, constantly screamed at her, made her the butt of his jokes, required her to get coffee for the crew in the morning, threw water in her face, refused to allow her to take breaks, forced her to do unnecessary work, and sexually harassed her. (Defendants' Statement, ¶ 7; Plaintiff's Counterstatement, ¶ 7; Bujnicki Aff., ¶¶ 22-30.)

On Plaintiff's final day of work with American, Defendant Jantzi assigned her the job of shoveling and spreading asphalt out of the arm of the sleeve of the paving machine. (Bujnicki Aff., ¶ 42.) Defendant Jantzi allegedly screamed at Plaintiff regarding the manner in which she was performing this job, and then refused to let her take a break while he ate his lunch and watched her work. (Bujnicki Aff., ¶¶ 44-45.) Later that day Defendant Berberich arrived on the scene and he too yelled at Plaintiff about the manner in which she was performing her job. (Bujnicki Aff., ¶ 47.) After working the day without a break, Plaintiff was completely exhausted and fell ill. (Bujnicki Aff., ¶¶ 49-50.)

Plaintiff experienced a severe headache and went to one of the trucks to lay down. (Bujnicki Aff., ¶ 52.) Plaintiff's husband was called, and after arriving at the job site, he took Plaintiff to the hospital. (Bujnicki Aff., ¶ 53.) Several days later, Plaintiff was diagnosed with a ruptured brain aneurism and underwent brain surgery. (Bujnicki Aff., ¶ 53-54.)

III. DISCUSSION AND ANALYSIS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

In the context of employment discrimination cases, the United States Court of Appeals for the Second Circuit has explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment in employment discrimination cases because "the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication." Eastmer v. Williamsville Cent. Sch. Dist., 977 F. Supp. 207, 212 (W.D.N.Y. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). Nonetheless, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion."Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed, the Second Circuit has noted that "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Id.

B. Title VII Framework

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1); Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 2150, 156 L.Ed.2d 84 (2003). It is now well settled that discrimination claims brought under Title VII are analyzed under the burden-shifting analysis first set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000).

The burden-shifting test first requires that the plaintiff establish a prima facie case of discrimination by showing that (1) she is a member of a protected class, (2) she is qualified for her position, (3) she suffered an adverse employment action, and (4) the circumstances of the adverse action give rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802).

If the plaintiff meets this initial burden and establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action. Texas Dep't of Comt'y Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). If the defendant succeeds in making this showing, "the presumption of discrimination arising with the establishment of the prima facie case drops from the picture." Weinstock, 224 F.3d at 42 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

Assuming that the defendant meets its burden at the second stage, the burden returns to the plaintiff to prove that the defendant's discrimination was intentional. In this regard, the plaintiff must produce "evidence that the defendant's proffered, nondiscriminatory reason is a mere pretext for actual discrimination." Weinstock, 224 F.3d at 42. "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. However, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. (quoting St. Mary's, 509 U.S. at 519).

Plaintiff's employment discrimination claims, both state and federal, are subject to this analysis. See id. at 42 n. 1 (identical standards apply to employment discrimination claims brought under both Title VII and N.Y. HRL § 296) (citing cases).

C. Plaintiff's Disparate Treatment Claims

1. Prima Facie Case

A disparate treatment claim arises when an individual is treated less favorably than a member of the opposite gender under circumstances from which a gender-based motive could be inferred.See Schwabenbauer v. Bd. of Ed. of City Sch. Dist. of City of Olean, 667 F.2d 305, 309 (2d Cir. 1981); see also Ott v. Perk Dev. Corp., 846 F. Supp. 266, 275 (W.D.N.Y. 1994). To establish a prima facie case of disparate treatment, the plaintiff must show that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she was subjected to an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). "The burden of establishing a prima facie case of disparate treatment is not onerous."Burdine, 450 U.S. at 253; see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000) (characterizing burden as "minimal").

In this case, Defendants concede that Plaintiff is a member of a protected class and that she is qualified for the position. However, Defendants argue that they are entitled to summary judgment because Plaintiff cannot show that she suffered an adverse employment action, or that any such action was taken under circumstances giving rise to an inference of unlawful discrimination.

a. Adverse Employment Action

The Second Circuit defines an adverse employment action as a "materially adverse change" in the terms and conditions of an individual's employment. Sanders, 2004 WL 504603, at *4; Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).

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.

Defendants argue that Plaintiff cannot establish an adverse employment action because Plaintiff was hired to perform construction work, and knew that she could be assigned various tasks, such as shoveling, flagging, and marking roads. As such, according to Defendants, the fact that Plaintiff was required to perform tasks other than flagging demonstrates, at most, non-actionable alterations of her job responsibilities. Because this argument assumes a disputed material fact, it cannot serve as a basis for summary judgment.

Defendants' argument assumes that Plaintiff was hired as a general "trainee" or "laborer," and not as a "flag person." As noted however, this is a heavily disputed fact. Plaintiff contends that at the end of July 1998, she was contacted by Carl Clark (whom Plaintiff knew as "Charlie Clark"), who was a supervisor with American. (Bujnicki Aff., ¶ 3.) Clark advised Plaintiff that Defendant Berberich was immediately interested in hiring a female to fill the position of "flagperson" with American. (Bujnicki Aff., ¶¶ 4, 5; Clark Dep., p. 24.) Plaintiff expressed her interest in the position, and Clark advised her that if she was hired, she would earn approximately $24 per hour, and would be responsible for controlling traffic in work zones, possibly moving cones and signs, and painting lines. (Bujnicki Aff., ¶ 5; Clark Dep. pp. 25.)

Plaintiff discussed the job opportunity with her husband and determined that she would be able to perform the duties of a flagperson. (Bujnicki Aff, ¶ 7.) She therefore went to American's offices on or about July 29, 1998, to complete an application and meet with Defendant Berberich. (Bujnicki Aff., ¶ 8.) The record contains an application for employment completed by Plaintiff on July 29, 1998, that lists "flag girl" as the position for which she applied. (Plaintiff's Exhibit H.) Moreover, two records from the New York State Department of Transportation also list Plaintiff's position as "flagman." (Plaintiff's Exhibits P and Q.) In addition, on the Employer's Report of Injury Form completed after Plaintiff was injured, Defendant Berberich listed Plaintiff's occupation as "flag girl." (Plaintiff's Exhibit R.) Plaintiff contends that she met with Defendant Berberich and he explained to her that she would be hired as a "flagperson," which might at times entail moving cones or signs. (Bujnicki Aff., ¶ 9.) Plaintiff agreed to those terms and accepted the position with American. (Bujnicki Aff., ¶¶ 9, 13.)

Defendants' version of these events is different. Defendant Berberich states that in July of 1998 American had a need to hire additional "laborers," and that Plaintiff came to his office to apply for a position. (Berberich Aff., ¶ 3.) Defendant Berberich contends that he interviewed Plaintiff, and explained to her that she would be hired as a "trainee" working on the paving crew. (Berberich Aff., ¶ 3.) As a "trainee," Defendant Berberich explained to Plaintiff that she would be taught (and presumably would be expected to perform) all aspects of the work performed by laborers on a paving crew, including flagging, and shoveling and raking asphalt. (Berberich Aff., ¶ 3.) According to Defendant Berberich, this is the position that Plaintiff accepted. (Berberich Aff., ¶ 3.)

As stated, Plaintiff denies being hired as a "trainee," and denies having been advised by Defendant Berberich that she would be trained as a member of a paving crew or that her duties would include tasks such as cleaning pavers or shoveling, raking, or pickaxing asphalt. (Bujnicki Aff., ¶ 10.) If a jury credits Plaintiff's account and finds that she was hired as a "flagperson" to perform "flagperson" duties, then being made to perform the duties of a laborer, such as to shovel and rake asphalt, use a pickax, and perform other strenuous physical labor, would be a change in Plaintiff's terms of employment that is more than a mere inconvenience or alteration of job responsibilities. See Galabya, 202 F.3d at 640.

Moreover, in this Court's view, even if it is established that Plaintiff performed some non-flagging activities in her first week of employment prior to being permitted to flag, that fact alone would not prevent a finding that Defendants' continuous refusal to permit Plaintiff to flag constitutes a materially adverse job change. Evidence in the record suggests that Plaintiff was permitted to flag when working on other crews, but not when working on Defendant Jantzi's crew. (Bujnicki Aff., ¶ 32-34; Clark Dep., p. 57.) This Court finds that an individual who is made to perform a job that is completely different from the one that the individual was hired to perform, especially when the different job is more physically taxing, could constitute an adverse employment action as that term is defined in this circuit. Sanders, 2004 WL 504603, at *4. At the very least, given the factual disputes in the record, this is not a determination that this Court can make on summary judgment.

In sum, this Court finds that a reasonable jury weighing the evidence in this case could find that Plaintiff was hired as a flagperson and that Defendants' refusal to allow Plaintiff to flag and their requirement that she instead perform the duties of a paving crew laborer materially altered the terms and conditions of her employment. Sanders, 2004 WL 504603, at *4.

b. Inference of Unlawful Discrimination

Defendants next argue that Plaintiff cannot meet the final element of a prima facie case of disparate treatment, that is that the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Terry, 336 F.3d at 138. Specifically, Defendants argue that Plaintiff cannot establish that similarly situated male laborers were permitted to choose their job assignments or were otherwise treated differently.

Again, Defendants' argument is premised on their assumption of the fact that Plaintiff was hired as a laborer. That determination will be left to the jury. Moreover, the record is replete with evidence that could support a finding that Plaintiff was treated differently than males on the crew, especially as it pertains to Defendant Jantzi's treatment of Plaintiff. For example, there is evidence that Defendant Jantzi permitted male crew members to take a break during down time, but would not allow Plaintiff that same opportunity to break. (Bujnicki Aff., ¶ 25.) Testimony from several male crew members indicates that they do not recall ever seeing Plaintiff take a break or recall being on a break with Plaintiff. (Dennis Dep., p. 32; Moore Dep., p. 40.) Moreover, there is testimony in the record that male members of the crew were not humiliated by Defendant Jantzi, such as having water thrown in their faces. (Hallett Dep., p. 73; Raps Dep., p. 65.)

In all, evidence in the record could support a finding that male crew members were not subjected to being called names that they found offensive (Jantzi Dep., p. 219; Dirschedl Dep., pp. 113-114), were not required to get the crew coffee in the mornings (Bujnicki Aff., ¶ 29), were not leered at in a sexual manner (Bujnicki Aff., ¶ 28; Bujnicki Dep., pp. 182-183), were not denied the opportunity to take breaks (Bujnicki Aff., ¶¶ 24-27, 45, 47; Dennis Dep., p. 32; Moore Dep., p. 40), and were not made to perform jobs that they were not hired to perform. As such, this Court finds that a reasonable jury could determine that Defendants' treatment of Plaintiff occurred under circumstances giving rise to an inference of unlawful discrimination.

2. Legitimate, Non-Discriminatory Reason

Having found the existence of proof that could support a prima facie case, this Court next examines whether Defendants have set forth a legitimate, non-discriminatory reason for their actions.See Burdine, 450 U.S. at 254. In this regard, this Court is mindful that Defendants are not required to prove that their articulated reason actually motivated their conduct. See id. Rather, Defendants must only state a "clear and specific" reason for their action. Mandell v. County of Suffolk, 316 F.3d 368, 381 (2d Cir. 2003).

Defendants contend that Plaintiff's job assignment was consistent with American's common practice of assigning laborers to different jobs on a daily basis, based on the laborer's experience level and the needs of the job on the particular day. (Defendants' Statement, ¶ 33; Berberich Aff., ¶ 6.) Again, however, this only serves as a legitimate, nondiscriminatory reason if the finder of fact determines that Plaintiff was hired as a laborer. If the jury determines that Plaintiff was hired as a flagperson, then the way in which American assigned laborers work would not justify Defendants' treatment of Plaintiff as it pertains to work assignments. In addition, the way in which job duties are assigned has no nexus to and does not serve as a legitimate reason for Plaintiff's other complaints of personal mistreatment. Thus, whether Defendants' have set forth a legitimate, nondiscriminatory reason for their action turns on disputed issues of material fact, and resolution on summary judgment is therefore not possible.

3. Evidence of Pretext

Defendants argue that even if it is found that Plaintiff established a prima facie case of disparate treatment and that Defendant articulated a non-discriminatory reason, Plaintiff nonetheless cannot carry her burden of establishing that Defendants' articulated reason is merely a pretext. In this regard, Defendants' simply argue that there is no evidence that Plaintiff's job assignment was motivated by discriminatory animus. This Court, however, views the record differently, and finds that evidence exists from which a jury could draw a reasonable inference of pretext, and ultimately, discrimination. See Meiri v. Dacon, 759 F.2d at 997 (summary judgment at the pretext stage is appropriate only when there is "no indication that any evidence exists that would permit the trier of fact to draw a reasonable inference of pretext")

Defendants' Motion for Summary Judgment on Plaintiff's disparate treatment claims is therefore denied.

D. Plaintiff's Hostile Work Environment Claims

The Supreme Court has held that Title VII's protection extends beyond "economic" or "tangible" discrimination. Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (citing Meritor Savings Bank, FSV v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Rather, Congress enacted Title VII to "strike at the entire spectrum of disparate treatment of men and women in employment," including the requirement that employees work in a hostile or abusive environment. Harris, 510 U.S. at 21.

To survive a motion for summary judgment, a plaintiff claiming that she was the victim of a hostile work environment must produce evidence from which a reasonable trier of fact could conclude "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (quoting Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 436 (2d Cir. 1999)). "The sufficiency of a hostile work environment claim is subject to both subjective and objective measurement: the plaintiff must demonstrate that she personally considered the environment hostile, and that the environment rose to some objective level of hostility." Leibovitz v. New York City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001).

Defendants argue that they are entitled to summary judgment because the evidence in the record cannot support a finding on either of the two prongs cited above.

1. Severity of Discriminatory Intimidation in the Workplace

Courts examine various factors to ascertain whether a work environment is sufficiently hostile or abusive to support a Title VII claim. These factors include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's performance." Leibovitz, 252 F.3d at 188 (citing Harris, 510 U.S. at 23); Terry, 336 F.3d at 147-48. Isolated and occasional instances of harassment do not ordinarily rise to this level.See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam). The appropriate test is whether the "harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse. . . ."Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997). The Second Circuit has recently stated:

The environment need not be unendurable or intolerable. Nor must the victim's psychological well-being be damaged. In short, the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases."

This Court finds that there is sufficient evidence in the record from which a reasonable jury could find that Plaintiff was subjected to severe and pervasive discriminatory conduct that altered her work environment. The evidence supports such a finding on both the subjective and objective prongs. Leibovitz, 252 F.3d at 188.

During the course of Plaintiff's first week of work, Defendant Jantzi began treating her in a manner that she found objectionable. (Bujnicki Aff., ¶ 18.) Defendant Jantzi began calling Plaintiff "Dharma," a reference to the lead character on the television show "Dharma and Gregg." (Bujnicki Aff., ¶ 17; Jantzi Dep., p. 60.) Plaintiff was unfamiliar with the "Dharma" character, but took offense to the reference after watching the show and determining that "Dharma" was portrayed as a "stupid, dumb and flighty" woman. (Bujnicki Aff., ¶ 18.) Plaintiff told Defendant Jantzi that she did not like being called "Dharma" and that he should stop calling her by that name. (Bujnicki Aff., ¶ 18.) Defendant Jantzi allegedly responded that he had chosen that name for Plaintiff, and he continued to refer to Plaintiff as "Dharma" on a daily basis anywhere from 10-20 times a day. (Bujnicki Aff., ¶ 18.) Moreover, because Defendant Jantzi referred to Plaintiff as "Dharma," members of the crew began to do the same. (Bujnicki Aff., ¶ 19; Clark Dep., pp. 48-49.)

Defendants argue that Defendant Jantzi also referred to male members of the crew by names other than their own. However, there is evidence that in those cases, the individuals either had nicknames, or did not object to the name that Defendant Jantzi called them. (Bujnicki Aff., ¶ 20; Jantzi Dep., p. 212.) For example, Mike Beavers was called "Beaves," Wilbur Raps was called "Billy," and Thomas Hallett was called "T." (Jantzi Dep., pp. 212-213; Bujnicki Aff., ¶ 20.) Further, there is evidence in the record that Defendant Jantzi at one time referred to a male employee, Carl Dirschedl, as "Spanky," but that Defendant Jantzi stopped using this name after Dirschedl objected. (Jantzi Dep., p. 219; Dirschedl Dep., pp. 113-114.) Plaintiff claims that Defendant Jantzi did not stop calling her "Dharma," even when she complained about it. (Bujnicki Aff., ¶ 18.) Continued use of a name that an individual finds objectionable is not "a nickname." It is an insult.

In addition to calling Plaintiff "Dharma," Plaintiff alleges that Defendant Jantzi referred to her as "stupid" and "dumb blonde," and told her that she "shoveled like a woman" and that if she wanted to earn a man's wage she needed to work a man's job. (Bujnicki Aff., ¶ 21.) Defendant Jantzi also screamed at Plaintiff only inches from her face. (Bujnicki Aff., ¶ 21). While Plaintiff admits that the work atmosphere was loud, especially when the paver was in use, she states that her co-employees were able to speak to her without approaching so closely or screaming at her. (Bujnicki Aff., ¶ 21.) Defendant Jantzi communicated with Plaintiff only by screaming at her. (Bujnicki Aff., ¶ 21.)

There is also evidence in the record to suggest that Plaintiff was used by Defendant Jantzi as a source for entertaining the crew. (Bujnicki Aff., ¶ 22.) For example, on one particular day Plaintiff was informed that Defendant Jantzi wanted to speak to her by the truck. (Bujnicki Aff., ¶ 22.) When she approached, Defendant Jantzi, who had been hiding at the side of the truck, appeared and threw water in her face. (Bujnicki Aff., ¶ 22.) Defendant Jantzi did this to Plaintiff on three separate occasions that day. (Bujnicki Aff., ¶ 22.) When Plaintiff eventually threw water back at Defendant Jantzi, he ordered her to break asphalt with a pickax. (Bujnicki Aff., ¶ 22.)

On another occasion, Defendant Jantzi instructed another crew member to demonstrate to Plaintiff how to "throw the shovel" and "spread the shovel," two techniques for spreading asphalt. (Bujnicki Aff., ¶ 23.) Instead of demonstrating the proper techniques, the employee first threw the shovel in the air to demonstrate "throwing the shovel," and then spun the shovel in the air and let it fall to the ground to demonstrate "spreading the shovel." (Bujnicki Aff., ¶ 23.) Both men then laughed at Plaintiff and refused to train her on the proper techniques. (Bujnicki Aff., ¶ 23.)

On yet another occasion, Defendant Jantzi instructed Plaintiff to "mark the road" for the trucks that would be arriving to dump asphalt until he told her to stop. (Bujnicki Aff., ¶ 24.) Plaintiff adhered to Defendant Jantzi's instructions and began marking the road with paint. (Bujnicki Aff., ¶ 24.) Defendant Jantzi never told Plaintiff to stop. (Bujnicki Aff., ¶ 24.) Consequently, Plaintiff "marked the road" far beyond what was necessary, and when she turned to look for Defendant Jantzi, he and other employees were gathered and "laughing hysterically" at her. (Bujnicki Aff., ¶ 24.)

In addition, Defendant Jantzi made Plaintiff get the crew coffee in the mornings. (Bujnicki Aff., ¶ 29.) While this was not a particularly difficult or time-consuming job, no male members of the crew were required to get coffee in the morning, a time when going to get coffee would not serve as a break from work. (Bujnicki Aff., ¶ 29.) Moreover, Defendant Jantzi refused to reimburse Plaintiff for the money she spent on his coffee. (Bujnicki Aff., ¶ 29.)

Further, there is evidence in the record supporting Plaintiff's claim that she was treated differently by Defendant Jantzi with respect to taking breaks from work. (Dennis Dep., p. 32; Moore Dep., p. 40.) The nature of American's business is such that breaks are not regularly scheduled. (Defendants' Statement, ¶ 13; Berberich Aff, ¶ 8.) Therefore, the crew takes breaks and lunch during the down time between truckloads of asphalt and during the 30-60 minutes it takes to turn the paving machine around from one side of the street to the other. (Defendants' Statement, ¶ 13; Berberich Aff., ¶ 8; Bujnicki Aff., ¶ 25.) However, even during this down time, Defendant Jantzi refused to let Plaintiff take a break, and instead, found other tasks for her to do, such as marking roads and cleaning the paving machine. (Bujnicki Aff., ¶¶ 24-26.) On Plaintiff's final day of work, Defendant Jantzi assigned her the most difficult job available, and never let her take a break the entire day. (Bujnicki Aff., ¶¶ 27, 45, 47.)

Moreover, there is sufficient information from which a reasonable jury could find that the treatment that Plaintiff was subjected to was sex or gender-based. Plaintiff was called "dumb blonde" and "Dharma" in reference to a "stupid, dumb and flighty" female television character. (Bujnicki Aff., ¶ 18.) She was also told that she needed to do a man's work to earn a man's wage. (Bujnicki Aff., ¶ 21.) Plaintiff also states that at least three times during her employment with American, Defendant Jantzi leered at her, and "checked her out from head to toe." (Bujnicki Aff., ¶ 28; Bujnicki Dep., pp. 182-183.) She also alleges that while Defendant Jantzi and another male employee were watching her clean the paving machine, Defendant Jantzi told the other male employee that "I just love to talk to her, look at her eyes, she's got the most beautiful eyes I've ever seen." (Bujnicki Aff., ¶ 46.)

This Court notes that Defendants' vehemently deny these allegations. However, these incidents viewed in their totality (if found by a jury to have occurred), are sufficiently pervasive, severe, and frequent, to support a finding that Plaintiff's workplace was altered for the worse. See Torres, 116 F.3d at 632; Leibovitz, 252 F.3d at 188. These were not merely isolated or occasional instances of harassment. Cf. Breeden, 532 U.S. at 270-271. Based on the existence of the above evidence in the record, this Court finds that a reasonable jury could conclude that Plaintiff's workplace, both objectively and subjectively, "was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment," Mack, 326 F.3d at 122, and that the discriminatory intimidation was due to Plaintiff's gender. Accordingly, summary judgment on this basis is not warranted.

2. Imputation of Conduct to the Employer

Because the alleged conduct at issue in this case relates to Plaintiff's treatment by her supervisor, Defendant Jantzi, American may be in a position to assert an affirmative defense to liability. In the normal course, an employer is subject to vicarious liability to a victimized employee for a hostile work environment created by a supervisor with immediate authority (or successively higher) over the employee. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998). However, in those cases where no tangible employment action is taken, the Supreme Court has recognized the existence of an affirmative defense for the employer. See id. at 807. A tangible action is defined as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Burlington Indus. v. Ellereth, 524 U.S. 742, 76, 118 S.Ct. 2257, 141 L.Ed.2d 663 (1998).

There are two elements to the affirmative defense. First, the employer must show that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."Faragher, 524 U.S. at 807. In meeting this burden, the Second Circuit has noted that

An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercised reasonable care in preventing and correcting sexually harassing conduct. Although not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of this defense.

Second, the employer must demonstrate that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807.

This Court finds that summary judgment on this ground would be inappropriate. First, whether Plaintiff suffered a "tangible employment action" is an inquiry that is similar to whether Plaintiff suffered an "adverse employment action" for purposes of her Title VII claims. As noted, that issue cannot be resolved on summary judgment. Second, even if it is assumed that Plaintiff did not suffer a "tangible employment action," there is competing evidence in the record regarding whether Plaintiff complained to Defendant Jantzi (Defendant's Statement, ¶ 30; Plaintiff's Counterstatement, ¶ 30), whether Defendant Berberich knew of the manner in which Plaintiff was being treated (Defendant's Statement, ¶ 25; Plaintiff's Counterstatement, ¶ 35), whether Plaintiff received American's handbook containing its discrimination policies and procedures (Defendant's Statement, ¶ 31, Plaintiff's Counterstatement, ¶ 31), whether American properly disseminated and posted its discrimination policy at the work place (Plaintiff's Counterstatement, ¶ 31), and whether Plaintiff complied with the policy (Defendant's Statement, ¶ 35; Plaintiff's Counterstatement, ¶ 35). All of these issues must be resolved by the trier of fact before it can be determined whether American can successfully assert this affirmative defense.

Accordingly, Defendants' motion seeking summary judgment on Plaintiff's hostile work environment claims is denied.

E. Plaintiff's Retaliation Claims

Title VII makes it unlawful for employers to retaliate against employees who participate in protected activities, such as challenging discriminatory practices or actions. 42 U.S.C. § 2000e-3(a); Sanders v. New York City Human Res. Admin., No. 02-7624, 2004 WL 504603, at *3 (2d Cir. Mar. 16, 2004). To establish a prima facie case of retaliation, Plaintiff must show that (1) she participated in a protected activity, (2) her participation was known to the defendant, (3) she suffered an adverse employment action, and (4) a causal connection exists between the protected activity and the adverse employment action.Richardson, 180 F.3d at 443; Jones v. Smithkline Beecham Corp., No. 02-CV-1428, 2004 WL 569267, at *11 (N.D.N.Y. Mar. 17, 2004).

Similar to its argument regarding Plaintiff's disparate treatment claim discussed at length above, Defendants argue that there is no evidence in the record from which a reasonable trier of fact could conclude that Plaintiff has set forth a prima facie case of retaliation. In particular, Defendants argue that there is insufficient evidence that Plaintiff complained to Defendants that her treatment was discriminatory and in violation of Title VII. Consequently, Defendants argue that Plaintiff cannot demonstrate that she engaged in a protected activity that was known to Defendants.

It must be remembered that at the summary judgment stage, the function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. It must also be remembered that as the non-moving party, all inferences are drawn in Plaintiff's favor. Addickes, 398 U.S. at 158-59. As noted throughout this decision, there are myriad factual issues that must be left for the jury to decide. Contrary to Defendants' argument, this Court finds that there is evidence in the record from which a jury could conclude that Plaintiff complained to Defendants about discriminatory conduct, and that Defendants understood or reasonably should have understood that Plaintiff's complaints were directed at conduct prohibited by law. See Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) ("implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII").

Plaintiff has stated that she complained to Defendant Jantzi about not being able to flag as she was hired to do (Bujnicki Aff., ¶ 34), complained about being called "Dharma," which she did not consider a nickname (Bujnicki Aff., ¶ 18), complained about having to pay for Defendant Jantzi's coffee (Bujnicki Aff., ¶ 31), complained about having water thrown in her face (Bujnicki Aff., ¶ 22), and rejected Defendant Jantzi's sexual advances toward her (Bujnicki Aff., ¶ 28). Plaintiff further asserts that her mistreatment escalated after she made these complaints. (Bujnicki Aff., ¶ 31.) For example, after Defendant Jantzi threw water in Plaintiff's face for a third time, Plaintiff complained and reciprocated by throwing water back at Defendant Jantzi. (Bujnicki Aff., ¶ 22.) As a consequence, Defendant Jantzi immediately ordered Plaintiff to pickax asphalt. (Bujnicki Aff., ¶ 22.) For these reasons, and those already discussed in this decision, this Court finds that there is evidence in the record from which a jury could conclude that Defendants' treatment of Plaintiff was gender-based, and that Plaintiff complained that she was being treated differently because she was a woman.

On the remaining elements of the prima facie test, this Court has already found that material issues of fact exist as to whether Plaintiff suffered an adverse job action. In addition, Plaintiff's testimony in the record that her mistreatment escalated after she made complaints to Defendant Jantzi could support a finding that a causal connection exists between the protected activity and the adverse employment action. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (the causal connection requirement "can be established indirectly with circumstantial evidence, for example, by showing that the protected activity was followed by discriminatory treatment").

On the remaining factors of the applicable McDonnell-Douglas burden shifting analysis, this Court has already found that whether Defendants' proffered nondiscriminatory reason for its actions is legitimate (i.e., that Plaintiff's job assignment was consistent with American's common practice of assigning laborers) turns on a disputed issue of material fact. Finally, this Court has also previously found that evidence in the record exists from which a reasonable fact-finder could conclude that Defendants' proffered non-discriminatory reason was simply a pretext for unlawful discrimination.

Accordingly, Defendants' Motion for Summary Judgment on Plaintiff's retaliation claims is denied.

F. Plaintiff's Intentional Infliction of Emotional Distress Claim

To succeed on a claim of intentional infliction of emotional distress, a plaintiff must prove the following elements:

(1) Extreme and outrageous conduct;

(2) Intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress;

(3) A causal connection between the conduct and injury; and

(4) Severe emotional distress.

Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999), citing Howell v. New York Post Co., Inc., 612 N.E.2d 699, 702, 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353 (1993); see also Walker v. New York City Transit Auth., No. 99 CIV. 3337(DC), 2001 WL 1098022 (S.D.N.Y. Sept. 19, 2001). Liability can be found only where the conduct alleged is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Howell, 81 N.Y.2d at 122; see also Murphy v. Am. Home Products Corp., 448 N.E.2d 86, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236 (1983).

In proving the fourth element — severe emotional distress — the plaintiff must support her contention with "medical evidence, not just the mere recitation of speculative claims." Walentas v. Johnes, 683 N.Y.S.2d 56, 58 (N.Y.App.Div. 1999). The evidence must show that the plaintiff suffered severe psychological damage. Richard L. v. Armon, 536 N.Y.S.2d 1014, 1016 (N.Y. A.D. 1989). Here, this Court finds that Defendants are entitled to summary judgment on this claim because there is no evidence from which a reasonable finder of fact could conclude that Plaintiff suffered severe emotional distress. See Anderson, 477 U.S. at 249 ("There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.").

Plaintiff has come forward with no objective medical evidence to support her claim that she suffered any severe emotional distress. Plaintiff's opposition to Defendants' motion consists entirely of her own allegations that she was depressed, gained weight, lost energy and grew conscious about her surgical scar. (Bujnicki Aff., ¶ 59.) Plaintiff's subjective complaints of extreme emotional distress, however, are not enough. Walentas, 683 N.Y.S.2d at 58.

Plaintiff's physician, Michael J. Michotek, M.D., is treating Plaintiff for depression, and has prescribed her medication for this condition. (Bujnicki Aff. ¶ 60; Michotek Dep., pp. 24-25.) Dr. Michotek's opinions and findings regarding the cause of Plaintiff's depression, however, do not support a finding that Plaintiff at any time suffered from severe emotional distress: "My opinion was that [Plaintiff] is a very sensitive person who was overtaxed by the injury, the ensuing compensation, upcoming legal concerns, lack of income for her family, problems with her marriage." (Michotek Dep., p. 29.)

Moreover, it is undisputed that Plaintiff saw a psychiatrist, Dr. Andrew Reichert, on only one occasion. (Bujnicki Aff., ¶ 61; Reichert Dep., p. 7.) Plaintiff failed to attend subsequent appointments, apparently due to her inability to pay Dr. Reichert. (Bujnicki Aff., ¶ 61; Reichert Dep., p. 7.) In any event, Dr. Reichert found no evidence that Plaintiff suffered from any cognitive defects. (Reichert Dep., p. 29.) He detected no deficits in Plaintiff's "attention, concentration, short-term memory, long-term memory, abstraction, calculating ability, [or] language functions." (Reichert Dep., p. 29.) Dr. Reichert testified at his deposition that Plaintiff had no deficits "substantial enough to cause her some type of functional impairment or substantial distress." (Reichert Dep., p. 29.)

Nothing in the record supports Plaintiff's claim regarding the severity of her condition. As such, this Court finds that no reasonable jury could consider the evidence presented and conclude that Plaintiff suffered any severe emotional distress.See Howell v. New Haven Bd. of Ed., No. 3:02CV736, 2004 WL 546829, at *2 (D.Conn. Mar. 15, 2004) ("In order to defeat summary judgment, the non-moving party must come forward with evidence that would be sufficient to support a jury verdict in his or her favor.") Defendants' Motion for Summary Judgment on this claim is therefore granted. See Richard L., 536 N.Y.S.2d at 1016 (proof of severe emotional distress is required for liability, not just damages); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (moving party is entitled to judgment as a matter of law if the nonmoving party fails to make a sufficient showing on an essential element of the case on which it has the burden of proof).

IV. CONCLUSION

"When reasonable persons applying the proper legal standards could differ in their responses to the questions raised on the basis of the evidence presented, the question is best left to the jury." Hoyt v. Dep't of Children and Families, No. CIV.A.3: 02-CV-1758, 2004 WL 551240, at *4 (D.Conn. Mar. 18, 2004) (citingSologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000). Genuine issues of material fact abound in this litigation and they require resolution by the jury, not this Court. See Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") Summary judgment is therefore inappropriate on the majority of Plaintiff's claims. However, Defendants' motion seeking such relief on Plaintiff's intentional infliction of emotional distress claim is granted. In all other respects, Defendants' motion is denied.

V. ORDER

IT HEREBY IS ORDERED, that Defendants' Motion for Summary Judgment (Docket No. 111) is DENIED in part and GRANTED in part.