Opinion
00-CV-0203E(F).
April 24, 2002
MEMORANDUM and ORDER
Plaintiff filed a charge with the New York State Division of Human Rights ("DHR") November 30, 1998 alleging that defendant Wilson Greatbatch Ltd. ("Greatbatch") had discriminated against her on the basis of her race and requesting that the DHR accept such charge on behalf of the Equal Employment Opportunity Commission ("EEOC") for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff commenced this action March 3, 2000 alleging that defendant had discriminated against her on the basis of her race in violation of Title VII by (1) failing to promote her and subjecting her to differential treatment in regard to the enforcement of its policies because of her race and (2) subjecting her to a racially hostile work environment. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1343(a)(4). Defendant filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("FRCvP") May 21, 2001 seeking to dismiss plaintiff's Complaint in its entirety. Oral argument was held on defendant's motion for summary judgment June 29, 2001 and such has thereafter been before this Court for disposition.
Plaintiff alleges that she received a right-to-sue letter from the EEOC December 13, 1999 and states that such is attached as exhibit "A" to her Complaint; however, she neglected to actually attach such exhibit to her Complaint and the undersigned has been unable to locate such elsewhere in the record. However, because defendant has not disputed this allegation, this Court will assume that plaintiff received a right-to-sue letter from the EEOC on such date.
In her Complaint, plaintiff briefly references discrimination based on sex — i.e., "Plaintiff seeks declaratory judgment or decree that the practices complained of herein are in violation of the laws of the United States in that they discriminate, by intent, pattern, or practice, against Plaintiff because of her race, sex, color and her employment as well as her contract of employment" — Compl. at ¶ 4 (emphasis added). However, this is the only time she mentions sex discrimination/harassment in her Complaint and she never alleged that defendant had discriminated against or harassed her on the basis of her sex in her EEOC charge and thus such is not properly before this Court because she failed to exhaust her administrative remedies for such claim.
Plaintiff's Complaint also mentions the Civil Rights Act of 1991, 42 U.S.C. § 1981. See Complaint at ¶¶ 1 ("Jurisdiction is based on Title 28 U.S.C.S § 1331 and § 1343(a)(4); Title 42 U.S.C.S §§ 2000e et seq.; Title 42 U.S.C.S § 1981, as amended; Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; Title 28 U.S.C.S §§ 2201 and 2202; and 28 U.S.C.S § 1367.") and 3 ("This is an action seeking relief authorized by Title 28 U.S.C.S § 1343(a)(3) and (4); Title VII of the Civil Rights Act of 1964; 42 U.S.C.S § 2000e-2 et seq.; 42 U.S.C.S § 1981; Civil Right Act of 1964, as amended; Civil Rights Act of 1991; and 28 U.S.C.S § 2201 and 2202). However it appears that plaintiff may have haphazardly listed statutes in the jurisdictional paragraphs of the Complaint without intending to bring a cause of action under section 1981 separate and apart from her Title VII claim. For example, plaintiff lists "28 U.S.C.S § 1367" but raises no state law claims, neither party addressed section 1981 in their memoranda of law and, in her Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, plaintiff refers to this case as a "Title VII Action" — Pl.'s Mem. of Law at 1. Accordingly, this Court will treat plaintiff's Complaint as only having been brought under Title VII.
In accordance with Rule 56 of this Court's Local Rules of Civil Procedure ("LRCvP"), defendant included with its moving papers a twenty-nine paragraph Statement of Uncontested Facts ("Statement"). In response thereto, plaintiff filed a Statement of Disputed Facts ("Response") which, as defendant aptly pointed out, did not parallel and respond to defendant's Statement by demonstrating why the facts that defendant had alleged were undisputed were in fact in dispute, but rather posited a series of rhetorical questions, many of which dealt not with facts but rather with legal issues — e.g., "whether the Defendant treated Plaintiff in a differential manner," "whether the Plaintiff was sexually harassed" and "whether it gave preferential treatment to Caucasian employees." Response at ¶¶ 2(a), (e) and (g). Inasmuch as plaintiff's statement of disputed facts does not contain facts contravening defendant's Statement of Undisputed Facts, the facts in defendant's Statement are deemed admitted to the extent that they are supported by the record.
"In any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. The motion for summary judgment may be denied if the movant fails to annex the statement required by this rule." LRCvP 56.
Defendant's Statement does not include citations to supporting evidence in the record, which although not required by LRCvP 56, is of immense value to this Court as it frees the undersigned from blindly searching through the record to make sure that the factual assertions therein are in fact supported by the record. Holtz v. Rockefeller Co., 258 F.3d 62, 73-74 (2d Cir. 2001); Covelli v. National Fuel Gas Distribution Corp., No. 99-CV-0500, 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001).
Plaintiff, a black woman, was employed by defendant from April 23, 1990 until February 29, 2000. At the time of the events giving rise to this action she was employed as a Manufacturing Team Member, salary grade NEO6. Hannon Aff. ¶¶ 5-6; Barbara Davis Aff. at ¶¶ 4-6. Plaintiff had received a copy of defendant's employee handbook April 23, 1990 and an updated version thereof January 19, 1996. Barbara Davis Aff. ¶ 13 n. 11 and Ex. I (Employee Handbook). Page iii of the handbook delineates Greatbatch's anti-discrimination policy and directs employees to bring complaints to either their team manager/supervisor or to the human resources department. Barbara Davis Aff. Ex. I (Employee Handbook). The Greatbatch handbook contains a section regarding harassment which states that:
Plaintiff was discharged February 29, 2000; however she has not brought a claim for retaliation or wrongful discharge. Statement at ¶ 4; Barbara Davis Aff. at n. 1.
"All [Greatbatch] personnel are protected under the law from discrimination and harassment in employment. Unwelcome threats, demands, comments and questions are unlawful. Company policy is to take immediate, appropriate action to deal with any report of harassment. Any employee experiencing harassment should tell the offending party that this behavior is unacceptable and should contact their [sic] team manager/supervisor or the Human Resources Department immediately. Harassment will not be tolerated." Barbara Davis Aff. Ex. I (Employee Handbook § 3.2).
In August of 1997 defendant advertised an opening for the position of Administrative Assistant, NEO5 the requirements for which included, inter alia, a high school diploma or general equivalency degree and a minimum of one year of previous clerical experience. Statement at ¶ 13; Barbara Davis Aff. at ¶ 11-12 Ex. H (Administrative Assistant I Position Description). Plaintiff, who did not have a high school diploma or general equivalency degree and had no previous clerical experience, applied for this position even though it would have been considered a demotion and involved a reduction in salary, because she believed that it would lead to better promotional opportunities in the future. Statement at ¶¶ 12-14, 16; Hannon Dep. at 493-495; Barbara Davis Aff. at ¶¶ 12-13, 17, Ex. K (Pl.'s Original Application for Employment/ Resume). Defendant had an informal policy not to voluntarily allow employees to transfer to positions that would result in an employee being demoted on the basis that such is counterproductive, as reflected in its employee handbook which provides for transfers to positions at the same or a higher salary grade than the employee currently holds, but not to a lower grade. Statement at ¶ 14; Barbara Davis Aff. at ¶¶ 13-14, Exs. E (Open Position Posting Policy) and Ex. I (Employee Handbook). Defendant interviewed plaintiff for this position, but did not offer it to her, instead hiring Karen A. Schlau, a white woman, who had a high school diploma and over ten years of clerical experience. Statement at ¶ 15; Barbara Davis Aff. ¶¶ 14-15, Ex. L (Schlau Application).
Plaintiff only completed the eleventh grade at Lockport Senior High School and did not earn a high school equivalency diploma until December of 2000. Barbara Davis Aff. at ¶ 12 and Ex. J (Pl.'s High School Equivalency Diploma).
Plaintiff alleges that defendant applied the requirement of a high school diploma or general equivalency degree to her in regard to the 1997 Administrative Assistant position because of her race, stating that no high school diploma is required to work or to be promoted at Greatbatch and alleges that Diane L. Weitz, a white female, was promoted even though she did not have a high school diploma. Hannon Aff. at ¶ 12. However, defendant never alleged that a high school diploma was required to work at Greatbatch — plaintiff worked there for approximately ten years before earning a general equivalency degree — but only for appointment to the Administrative Assistant position advertised in 1997 and, according to her original application for employment, Diane L. Weitz graduated from Alden Central High School. Def.'s Reply Mem. of Law Ex. 1 (Weitz Application).
On October 30, 1998 plaintiff again applied for a position as an Administrative Assistant, NEO5; however, she was notified that she was not eligible to apply for such position because she had been suspended without pay for two weeks in May of 1998. Statement at ¶ 9; Hannon Dep. at 164-169, 496-497; Barbara Davis Aff. ¶ 6, Ex. D (Hannon Oct. 30, 1998 Application). Paragraph 5.3.3 of Greatbatch's Open Position Posting Policy which had been adopted September 5, 1994 and is referred to in its employee handbook, states that "[p]ast performance will be an important consideration in the selection process. Receipt of an unsatisfactory performance review, a written warning or a disciplinary suspension will be cause for non-consideration for posted open positions for a period of one (1) year following the action." Barbara Davis Aff. at ¶ 6, Exs. C (DHR Charge) E (Open Position Posting Policy) and I (Employee Handbook).
Plaintiff had apparently been suspended for refusing to set up a machine and calling a co-worker "trailer trash." Hannon Aff. at ¶ 10; Barbara Davis Aff. Ex. C (EEOC Charge). Plaintiff denies having made such statement, however, and alleges that this suspension and every other time she had been "disciplined on the job [was] due to "racially motivated untruths, intentionally staged by several Caucasian females known as the `back biting, anonymous snitches prejudiced clique' *** a surreptitious tool designed to single out Blacks for differential treatment with the blessings of the higher ups." Id. at ¶ 9.
Plaintiff alleges that section 5.3.3 was applied only to her and was done so because of her race. Hannon Aff. ¶¶ 13, 17; Hannon Dep. at 164-169, 496-497; Barbara Davis Aff. ¶ 7. However plaintiff has failed to provide any evidence in support of this allegation, whereas defendant has submitted evidence demonstrating that it had uniformly applied this policy and had denied the applications of three white employees seeking to transfer to another position due to disciplinary violations both before and after plaintiff's application to transfer was denied — viz., (1) Cheryl L. Hicks denied October 31, 1997, (2) Jane L. Barnes denied June 28, 1999 and November 15, 1999 and (3) Theresa A. Gorham denied September 27, 1999. Barbara Davis Aff. ¶¶ 8-10, Ex. F (Applications denied due to disciplinary problems); Statement at ¶ 10. Plaintiff also alleges that defendant subjected only her to its disciplinary rules, such as the performance improvement program, and that it did so because of her race; however she has also failed to present any evidence in support of this allegation. Statement at ¶ 25; Hannon Dep. at 204-208. Defendant, however, has introduced evidence showing that white employees were also subjected to its disciplinary rules, including two employees who were disciplined for the same reasons as plaintiff — i.e., calling a co-worker names and leaving her work area for personal business. Statement at ¶ 26; Barbara Davis Aff. ¶¶ 30, 32-34 and Exs. P (Disciplinary Records of Robert Christman), Q (Disciplinary Records of Theresa Gorham, Carl Casper and Kristopher Kolasz) and R (Disciplinary Records of Linda Amoyette).
"Whey [sic] did they interview Caucasian and Black employees when they were under a disciplinary cloud, but only used the `cannot apply for one year rule' to me and not to Caucasians. During the period in question, the rule was only applied to me." Hannon Aff. at ¶ 17.
During the course of her employment plaintiff was allegedly subjected to six incidents of racially inappropriate language/conduct by her co-workers. Hannon Aff. at ¶¶ 11, 22-23; Statement at ¶ 19. In 1990 co-worker Darlene Duve, stated that she was surprised that plaintiff was never asked during her interview about how she felt about being the only black employee and another time stated to plaintiff, while discussing a school football game she and a companion had attended, that "we would see those bus full of niggers drive up and go, oops here the niggers come." Plaintiff did not report either of these comments to a supervisor. Hannon Dep. at 67-69; Barbara Davis Aff. ¶ 25. In 1994 co-worker Janine G. Miller, stated to plaintiff that "black men are so ugly" and that "black people are the only people that kill each other. You're the only race that likes to kill each other." Plaintiff asked Miller not to make such statements but, although Miller never ceased to do so, plaintiff never reported such to a supervisor. Defendant terminated Miller August 10, 1994 for "threatening and using abusive language towards another employee." Barbara Davis Aff. ¶ 22, Ex. N (Miller Personnel File); Hannon Dep. at 74-77. In October of 1997 co-worker Sharon Schmitt dressed up as "Aunt Jemima" for Halloween. Plaintiff did not complain about such to defendant; however, another employee did and Schmitt's supervisor Chet Kozelak counseled her regarding such and Ed Voboril, the President and Chief Executive Officer of defendant, sent out a memorandum regarding the inappropriateness of the costume November 24, 1997. Hannon Aff. at ¶ 19; Barbara Davis Aff. ¶ 29, Ex. O (Voboril Memorandum); James Davis Aff. Ex. E (Picture of Schmitt dressed as "Aunt Jemima").
In her Affidavit in Opposition to Defendant's Motion for Summary Judgment, plaintiff mentions for the first time two additional instances of inappropriate racial comments both of which occurred at unspecified dates — viz., (1) Mimi Vanolden "looked at her new driver's license while at work and yelled `Oh God, I look like I'm black on this license!'" and (2) an unnamed "Caucasian female said, loudly and in the presence of many other employees, `Blacks should stay with their kind and Whites should stays [sic] with their kind.'" Hannon Aff. at ¶ 22. As part of her papers in opposition to defendant's motion for summary judgment, plaintiff also submitted an affidavit by Cynthia D. Paisley who describes two additional occurrences of inappropriate racial language both of which also occurred at unspecified dates — viz., (1) Phil Marino stated that his family did not like blacks, spoke to white employees in a warm voice and black employees in a harsh voice and would throw memos to her and plaintiff but hand them to white employees and (2) Anita Kiefer stated that "I'm not going to work overtime with the Niggers." Employee Paisley Aff. at ¶¶ 8-12, 17. However, despite the fact that these occurrences were not raised by plaintiff until after defendant had moved for summary judgment and assuming that they both occurred after February of 1998 and are therefore timely, they — when considered in conjunction with the other incidents — would not be sufficient to create a hostile work environment.
Plaintiff also complains of sexual harassment in her Affidavit in Opposition to Defendant's Motion for Summary Judgment. Hannon Aff. at ¶¶ 20 ("Dave Rudd was a Caucasian male who said to me `Raise your dress and let me see what kind of underwear you're wearing, and let me see whether you have any underwear on at all?") and 21 ("Another Caucasian male employee who often made unwanted sexual advances toward me was Craig Rogers. When I complained about him, they terminated him and me on the very same day. No explanation was given."); however, as noted supra footnote 2, there is no claim of sexual harassment in this case. Plaintiff also appears to now argue that she was terminated in retaliation for complaining about being sexually harassed. See Pl.'s Mem. of Law at 1 ("The differential treatment of the Plaintiff went so far as to treat her as an invisible person when she was sexually harassed. When she reported it she and the person she claimed sexually harassed her were terminated.") and 5 ("On another occasion she received sexual advances from another Caucasian male named Craig Rogers. When she complained about his unwanted sexual advances [and] sexual harassment, the Defendant-employer terminated both of them. This unwillingness to address her complaint was evident in her being terminated."). See also, Hannon Dep. at 472-474 (Description of Rogers's sexually oriented comments). However, plaintiff has not alleged in her Complaint that she was terminated in retaliation for complaining about sexual harassment and such claim is not before this Court.
It appears that Duve is no longer employed by defendant. Hannon Dep. at 74.
Plaintiff alleges that Miller made such comments in 1993 — Hannon Dep. at 74-77 — however, Miller's personnel records indicate that she was not hired by defendant until May 23, 1994. Barbara Davis Aff. Ex. N (Miller Personnel File).
The employee who complained about the "Aunt Jemima" costume did so using Greatbatch's "direct line" procedure which allows employees to bring their comments/concerns to the President/C.E.O. by filling out a brief form and depositing it in a designated box. Barbara Davis Aff. Ex. I § 4-1 (Employee Manual).
In 1998, after an incident in Niagara Falls wherein a black boy had fatally punched a white boy, co-worker Laurie Ribbeck stated to plaintiff that her son Justin had told her that "those niggers are the ones who killed that boy," to which plaintiff did not respond but rather walked away and did not report the statement to a supervisor. Barbara Davis Aff. ¶ 24; Hannon Dep. at 77-79. In 1998 co-worker Mark Kozlowski told plaintiff that co-worker Diane Serio, who worked on a different shift than plaintiff, had been "bad mouthing" her and had stated to him "I don't know who that uppity nigger thinks she is." Serio never made any racial comments in plaintiff's presence and plaintiff never confronted Serio or reported the incident to management. Barbara Davis Aff. ¶ 23, Ex. M (Pl.'s Interrog. Resp. at ¶ 7(d)); Hannon Dep. at 126-128.
Pursuant to FRCvP 56(c), summary judgment "shall be rendered forthwith if 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." The party making a motion for summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). In deciding a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) —; however, the opposing party may not rest upon conclusory statements in her pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable *** or is not significantly probative ***, summary judgment may be granted." Anderson, at 247-250. Summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323.
For her first cause of action plaintiff alleges that defendant failed to promote her because of her race and subjected her to disparate treatment by applying certain of its policies to her which it did not apply to white employees. Defendant has moved for summary judgment dismissing plaintiff's failure-to-promote claim on the basis that (1) she did not include the 1997 position in her EEOC charge, (2) such claim is untimely, (3) she was not qualified for either position, (4) it had legitimate non-discriminatory reasons for not "promoting" her which plaintiff cannot demonstrate were pretextual and (5) failure to "demote" claims are not covered by Title VII and her claim that she was subjected to disparate treatment in regard to the enforcement of its policies on the basis that she has provided no evidence in support of her allegations while it has produced evidence showing that her allegations are unfounded.
Title VII makes it "an unlawful employment practice for an employer *** to fail or refuse to hire *** any individual, or otherwise to discriminate against any individual with respect to his ***, terms, conditions, or privileges of employment, because of such individual's race [or] color ***." 42 U.S.C. § 2000e-2(a)(1). Under Title VII a claimant must file a charge of discrimination with the EEOC within 300 days of the occurrence of the allegedly discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City of New York Dept. of Housing, 990 F.2d 1397, (2d Cir. 1993). Plaintiff filed her EEOC charge November 30, 1998; therefore any conduct occurring prior to February 2, 1998 is untimely.
Plaintiff does not argue that the continuing violation exception applies. See Van Zant, at 713.
When ruling on a motion for summary judgment in a Title VII discrimination case raising failure to promote and differential treatment claims, courts apply the three-part burden shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for [its actions]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reason, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
Internal citations and punctuation omitted.
When applying the McDonnell Douglas burden-shifting analysis in ruling on a motion for summary judgment in a Title VII case, the court must remain cognizant that employment discrimination
"is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a `smoking gun,' such as a notation in an employee's personnel file, attesting to a discriminatory intent. A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
Internal citations and punctuation omitted.
Nonetheless, a plaintiff still "must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
To state a prima facie case for her claim that defendant failed to promote her due to her race, plaintiff must establish that "(1) she is a member of a protected class; (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications." Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998). See also, McDonnell Douglas, at 802. Plaintiff has failed to state a prima facie case in regard to her failure-to-promote claim. Although her claim that she was denied the 1997 promotion to the position of Administrative Assistant is untimely and was not included in her EEOC charge, it nevertheless is noted that she was not qualified for such position because she did not meet the minimum advertised qualifications for such position in that she lacked the required high school diploma or general equivalency degree and year of previous clerical experience. Plaintiff has likewise failed to state a prima facie case in regard to her 1998 application for the position of Administrative Assistant because, pursuant to defendant's Open Position Posting Policy, she was ineligible to apply for such position because she had been suspended without pay for two weeks. Although plaintiff has failed to state a prima facie case for her failure-to-promote claim because she was not qualified for the positions to which she applied, she alleges that the only reason she failed to meet such qualifications was because defendant enforced certain of its policies against her because of her race, which it did not enforce against white employees.
Quotation marks and citation omitted.
It would additionally appear that plaintiff would have also been unqualified for this position because she still lacked a high school diploma or general equivalency degree and one year of previous clerical experience that had been required for the position in 1997.
To state a prima facie case for her claim that defendant treated her differentially in regard to the enforcement of its policies due to her race, plaintiff must prove (1) that she is a member of a protected minority group, (2) that defendant had certain policies which it applied to her but not to other employees and (3) that defendant applied those policies only to plaintiff because of her race. See, McDonnell Douglas, at 802 n. 13. Defendant has submitted evidence showing that its policies, which prevented plaintiff from meeting the qualifications for the positions to which she applied, were uniformly applied to all of its employees — i.e., (1) the woman hired for the 1997 Administrative Assistant position had a high school diploma, (2) white employees were not only also disciplined, but were disciplined for the same reasons as was plaintiff and (3) white employees who had been disciplined were also denied promotions on such basis pursuant to its Open Position Posting Policy. Plaintiff, in contrast, has not introduced any evidence in support of her allegations that defendant only applied its policies to her and did so because of her race. Accordingly, plaintiff's first cause of action alleging that defendant failed to promote her and subjected her to differential treatment in the application of its policies because of her race will be dismissed.
Plaintiff's second cause of action alleges that she was subjected to a racially hostile work environment. Defendant seeks to dismiss plaintiff's hostile work environment claims on the basis that (1) the incidents occurring before February 2, 1998 are untimely, (2) plaintiff did not report them to management despite its anti-harassment policy and (3) the incidents were not severe or pervasive enough to constitute a hostile work environment.
Title VII "not only covers `terms' and `conditions' in the narrow contractual sense, but `evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). See also, Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998).
"An employee plaintiff suing under Title VII may state a claim of discriminatory harassment based upon a hostile work environment by alleging (1) that her 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. Whether the harassing conduct of a *** coworker should be imputed to the employer is determined in accordance with common-law principles of agency. *** [E]mployer liability for a hostile environment created by coworkers *** attaches only when the employer has either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995).
Internal citations and punctuation omitted.
See also, Meritor, at 72-73; Van Zant, at 715; Schwapp, at 110; Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63-64 (2d Cir. 1992).
"A hostile work environment exists `[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Torres v. Pisano, 116 F.3d 625, 630-631 (2d Cir.), cert. denied, 522 U.S. 997 (1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The conduct complained of must be sufficiently severe and pervasive such that it is both subjectively perceived as hostile or abusive to the victim and would be objectively perceived as hostile or abusive to a reasonable person. Faragher, at 787; Harris, at 22; Schwapp, at 110; Torres, at 631-632. Whether the harassment is sufficiently severe or pervasive to alter the conditions of the plaintiff's working environment is determined based upon the totality of the circumstances. Harris, at 23; Carrero v. New York City Housing Authority, 890 F.2d 569, 577-578 (2d Cir. 1989); Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). Factors used to determine whether a particular workplace is permeated with racial discrimination sufficiently severe or pervasive as to constitute a hostile work environment include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dept. of Corr. Ser., 180 F.3d 426, 437 (2d Cir. 1999). See also, Harris, at 23.
"[The] mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII. For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated instances of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment." Schwapp, at 110-111.
Internal citations and punctuation omitted.
See also, Faragher, at 788; Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Kotcher, at 63.
Assuming that a plaintiff successfully establishes "that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment," she must next establish that her "employer has either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it" in order to state a prima facie case of hostile work environment discrimination created by her co-workers. Murray, at 249. The reason for not holding an employer liable for a hostile work environment created by a plaintiff's co-workers unless it knew of and failed to remedy the harassment or did not provide a reasonable avenue for complaint is that Title VII was designed "not to provide redress but to avoid harm." Faragher, at 806.
"Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context and the EEOC's policy of encouraging the development of grievance procedures. To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose." Burlington, at 764.
Internal citations omitted.
Accordingly, where an employer — who is unaware that co-workers' harassment of a plaintiff has created a hostile work environment — has implemented an anti-harassment policy providing a reasonable avenue for complaint and the plaintiff unreasonably fails to avail herself of such, the employer will not be liable for hostile work environment discrimination. Cf. Burlington, at 764 (supervisor, not co-worker was harassing plaintiff); cf. Faragher, at 806-807 (same); Murray, at 249.
Of the incidents alleged by plaintiff only the two that occurred in 1998 are timely — assuming that they occurred after February 2 — and, despite the availability of Greatbatch's anti-harassment policy, plaintiff did not complain of either of these incidents. Plaintiff's second cause of action alleging a racially hostile work environment will therefore be dismissed both because these two comments were not sufficiently severe and pervasive to alter the conditions of her work environment — even if considered in conjunction with all of the untimely incidents — and because there is no basis for imputing them to defendant.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted, that plaintiff's Complaint is dismissed and that this case shall be closed in this Court.