Opinion
No. 00 Civ. 4207 (THK)
September 20, 2002
Attorney for Plaintiff: Edward J. Martz, Esq. from New York, New York.
Attorney for Defendant: Tricia Troy Alden, Esq. with LIRR Law Dept. No. 1143 from Jamaica, New York.
MEMORANDUM OPINION AND ORDER
Plaintiff Sheikh Hussain brings this action against the Long Island Railroad Company ("LIRR"), alleging discrimination on the basis of race, national origin and religion, in the form of a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq., ("Title VII"), and 42 U.S.C. § 1981 ("§ 1981"). The parties have consented to trial before me, pursuant to 28 U.S.C. § 636 (c).
Defendant has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendant's motion for summary judgment is denied.
BACKGROUND
Plaintiff is a Pakistani-born Muslim. (Deposition of Sheikh Hussain ("Hussain Dep.") at 10-11.) He came to the United States in 1987, and is a citizen of the United States. (Hussain Dep. at 7; Complaint ("Compl.") ¶ 11.) Plaintiff began working as a laborer for the LIRR in August of 1992. (Hussain Dep. at 8; Compl. ¶ 11; Defendant's Statement Pursuant to Local Civil Rule 56.1 ("Deft. Rule 56.1 St.") ¶ 1; Plaintiff's Response to Defendant's Statement Pursuant to Local Civil Rule 56.1 ("Pl. Rule 56.1 Resp.") ¶ 1.) Plaintiff remains employed at the LIRR as an oiler. (Hussain Dep. at 9.) As a laborer/oiler, Mr. Hussain is a member of the International Brotherhood of Firemen and Oilers, Helpers, Roundhouse and Railway Shop Laborers. His job responsibilities include a variety of housekeeping and cleaning tasks, as well as servicing locomotives and transporting supplies and materials between work and storage sites. (Deft. Rule 56.1 St. ¶ 3; Pl. Rule 56.1 Resp. ¶ 1.)
The position that had been called a laborer is now known as an oiler, but the responsibilities remain the same. (Hussain Dep. at 9; Deposition of Frank Sokolich ("Sokolich Dep.") at 20.)
Plaintiff was assigned to the yard at Richmond Hill sometime in 1995, and occasionally worked overtime in the shop at Richmond Hill. (Hussain Dep. at 11-13.) Frank Sokolich ("Sokolich"), a unionized line supervisor, was a gang foreman in charge of the mechanics in the shop at Richmond Hill and, as such, he supervised Plaintiff whenever Plaintiff worked overtime in the shop at Richmond Hill. (Deft. Rule 56.1 St. ¶¶ 24-27; Hussain Dep. at 11-12.) Sokolich's exact responsibilities vis a vis Plaintiff are unclear. Defendant contends that Sokolich had no power to hire, fire, or promote Plaintiff. Sokolich did, however, maintain discipline, payroll, attendance, and work performance records. (Deft. Rule 56.1 St. ¶ 25; Sokolich Dep. at 33, 35.) He also was in charge of assigning duties to those employees under his supervision (Deft. Rule 56.1 St. ¶¶ 24-27; Sokolich Dep. at 19-24), and his opinion was solicited by others when determining promotions. (Sokolich Dep. at 24.)
The record indicates that Sokolich supervised Plaintiff with some regularity throughout the years 1996-1999. (Hussain Dep. at 11-12; Sokolich Dep. at 50.)
This contention, asserted in Defendant's Rule 56.1 Statement, is not supported by any evidence.
Plaintiff alleges that, beginning in 1995 and continuing until March, 1999, Sokolich harassed and humiliated him when he worked under his supervision. (Pl. Rule 56.1 Resp. ¶¶ 6-8.) Although the record is unclear as to the exact dates of the claimed incidents of harassment, there is consistency as to specific events that occurred. Plaintiff specifically alleges the following six statements, made in front of Plaintiff's co-workers, contributed to the creation of a hostile work environment.
In 1996 or 1997, Sokolich asked to see Plaintiff's bag and locker, commenting that "maybe you [Hussain] are putting fertilizer or bombs" in there. (Hussain Dep. at 14, 46; Deft. Rule 56.1 St. ¶ 19.)
In 1997, upon finding a garden snake in the yard, Sokolich said "Give this to Sheikh, he probably eat[s] these snakes back home," and started laughing. (Hussain Dep. at 28; Deft. Rule 56.1 st. ¶ 13.)
In June, 1998, in response to Plaintiff's question as to why he was being singled out for unfair treatment, Sokolich responded "Look at your skin and look at mine." (Hussain Dep. at 33; Deft. Rule 56.1 St. ¶ 11.)
Also in June, 1998, Sokolich said to Plaintiff, "your people live in boxes and huts." (Pl. Rule 56.1 Resp. ¶ 8; Deft. Rule 56.1 st. ¶ 12.)
On unspecified dates in the years 1997-1998, Sokolich referred to Plaintiff as "nigger" and "sand nigger." (Pl. Rule 56.1 Resp. ¶ 8; Deft. Rule 56.1 St. ¶ 19.)
On unspecified dates in the years 1997-1998, Sokolich called Plaintiff "Saddam Hussain," and said to Plaintiff, "Saddam is your uncle? What is he? Your father?" (Hussain Dep. at 46; Deft. Rule 56.1 st. ¶ 19.)
Finally, on unspecified dates after November 1998, Plaintiff alleges that he was told by other LIRR employees that Sokolich had made threatening comments, intending to chill Plaintiff from proceeding with any claims of discrimination. (Pl. Rule 56.1 Resp. ¶ 15; Hussain Dep. at 30-31, 44; Deft. Rule 56.1 St. ¶ 31.)
In addition to these comments, Plaintiff alleges that on repeated occasions Sokolich assigned him to mechanic's work without making the proper notations, so that Plaintiff was deprived of the higher rate of pay associated with mechanic's work. (Hussain Dep. at 24-25.) Plaintiff also alleges that Sokolich ordered him to commence work before clocking in, specifically by having him get coffee for Sokolich. (Hussain Dep. at 28-29; Affidavit of Sheik Hussain ("Hussain Aff.") ¶ 11.) Plaintiff contends that Sokolich's remarks and conduct were directed against him because of his race, national origin, and religion.
Plaintiff provides no specific dates on which these acts occurred. Nevertheless, Plaintiff contends that this failure to high-rate him took place at least twenty times. (Hussain Dep. at 25.)
Many of these incidents were communicated to LIRR management, first by witnesses, and then by Plaintiff himself, during an investigation into Sokolich's treatment of two other LIRR employees, in the fall of 1998. (Defendant's Exhibit C ("Def.'s Ex. C"); Affidavit of Mercedes Commodore ("Commodore Aff.") ¶¶ 4-5.) Plaintiff was contacted by Mercedes Commodore ("Commodore"), Executive Director for Diversity Management, after Ms. Commodore was informed by Plaintiff's co-workers of some of the discriminatory comments Sokolich made to Plaintiff. (Commodore Aff. ¶¶ 4-5.) Once contacted by Commodore, Plaintiff then proceeded to file formal complaints about Sokolich's harassment. (Id.) The investigation into the complaints of discriminatory treatment led to Sokolich being transferred to another job site. (Deft. Rule 56.1 St. ¶¶ 21-24.)
Plaintiff claims that he was unaware of any LIRR discrimination policy or complaint procedure for discriminatory harassment, until the fall of 1998. (Hussain Dep. at 37.) Sokolich also was unaware of any LIRR policy on discriminatory harassment. (Sokolich Dep. at 31-32.) Sokolich testified at his deposition that the custom and practice was for employees on his shift to come to him with any problems. (Sokolich Dep. at 37-39.) The LIRR asserts that it had a policy against workplace harassment and the policy was mailed to employees annually, and posted at various locations. (Commodore Aff. ¶¶ 1-2; Def.'s Ex. A.)
These co-workers had filed their own complaints of racial harassment by Sokolich, and mentioned his treatment of Plaintiff as support. (Commodore Aff. ¶ 4.)
According to the Trial Waiver signed by Sokolich, his discipline consisted of his being removed from Richmond Hill and being put on notice that any new charges against him would result in a demotion to his former position as Machinist. (LIRR Trial Waiver, Case Nos. 4090, 4100 ("Waiver").) Plaintiff testified at his deposition that even after Sokolich was given a new position as a supervisor of another crew, he still had reason to come to Richmond Hill, but that 4-6 months later (July-September 1999) Sokolich was transferred to a desk job and Plaintiff no longer had contact with him. (Hussain Dep. at 39-40.)
Plaintiff contends that the LIRR should have done more to punish Sokolich. (Hussain Dep. at 41.) Plaintiff also contends that the LIRR knew of Sokolich's discriminatory treatment of employees under his supervision for many years, and did nothing to address it. Specifically, Plaintiff alleges Sokolich's harassing behavior took place in public areas and in front of other LIRR employees. Plaintiff further alleges that in 1989, when Sokolich was to be assigned to the Richmond Hill yard, the Union Representative, Frank Farino, told a member of management that he did not want Sokolich assigned to his yard because he was a racist. Finally, Plaintiff alleges another employee saw Sokolich separate black employees from white employees while acting as a gang foreman in 1995-1996. (Affidavit of Reggie Pruitt ("Pruitt Aff.") ¶ 3; Affidavit of Pete Cundari ("Cundari Aff.") ¶¶ 3-4; Hussain Aff. ¶ 5; Hussain Dep. at 17-19, 30.)
Defendant argues that the affidavits and testimony produced by Plaintiff in support of these allegations are inadmissible evidence. As to the affidavit of Reggie Pruitt, Defendant argues it should be stricken because it is more prejudicial than probative. See Fed.R.Evid. 403. On a Rule 56 motion, however, the only relevant issue is whether the evidence submitted is competent. Even if evidence might be excluded at trial because of its prejudicial impact on. the jury, on a motion for summary judgment the evidence must be construed in a light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). As to the affidavit of Pete Cundari, Defendant argues that it should be stricken because it contains hearsay. Although hearsay is not competent evidence, the Court may consider the affidavit, not for the truth of what it says, but because it shows Defendant had notice of Sokolich's propensity to harass. The substantive significance of the evidence will be discussed in Part III (C).
DISCUSSION
I. Summary Judgment StandardSummary judgment is appropriate only when the submissions of the parties, taken together, "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." Rule 56(c), Fed.R.Civ.P. In deciding a motion for summary judgment, the Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994).
On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Donahue v. Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987) (quoting Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)); see also LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1995). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Cronin, 46 F.3d at 203.
Nevertheless, to defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, (1986). A plaintiff must "come forward with enough evidence to support a jury verdict in [his] favor, and the motion will not be defeated merely . . . on the basis of conjecture and surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992). A party opposing a motion for summary judgment "may not rest on the pleadings, but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial."Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed.R.Civ.P. 56(c) and (e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986).
II. Statute of Limitations
Defendant argues that Plaintiff's Title VII claims are time-barred. Title VII requires that a plaintiff in New York file an administrative claim within 300 days "after the alleged unlawful employment action occurred." 42 U.S.C. § 2000e-5 (e)(1) (1994 ed); see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). As required under Title VII, Plaintiff first filed an administrative complaint with the EEOC, on November 9, 1999. The EEOC issued a right to sue letter on March 9, 2000, and Plaintiff commenced the instant action on June 6, 2000. Thus, any acts of discrimination asserted by Plaintiff which occurred more than 300 days before he filed his EEOC complaint, that is before January 13, 1999, would be time-barred. See id.; Figueroa v. City of New York, 198 F. Supp.2d 555, 562 (S.D.N.Y. 2002); Contes v. City of New York, No. 99 Civ. 1597 (SS), 1999 WL 500140, at *6 (S.D.N.Y. July 14, 1999).
Plaintiff contends that at least some acts of discrimination by Sokolich took place within 300 days of his filing his EEOC complaint, and that these acts render timely the other acts of discrimination alleged, under the continuing violation doctrine.
The continuing violation doctrine allows a plaintiff to challenge all conduct that is part of the same course of discriminatory treatment, in this case, a hostile work environment, even if some of the conduct occurred more than 300 days before the filing of the EEOC complaint; in order to do so, a plaintiff must demonstrate that at least one discriminatory act related to the general hostile work environment occurred within the 300-day period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002); Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001) Coffey v. Cushman Wakefield, No. 01 Civ. 9447 (JGK), 2002 WL 1610913, at *2 (S.D.N.Y. July 22, 2002). The Supreme Court recently explained that hostile work environment claims differ from discrete acts of discrimination because such claims are based on the cumulative effects of repeated actions, and therefore it is impossible to allege such a claim by a specific occurrence or on a specific date. See Morgan, 122 S.Ct. at 2073. In other words, the entire body of separate discriminatory acts combine to form one "unlawful employment act." Id. at 2075. Thus, "[p]rovided that an act contributing to the claim occurs within the [300-day] filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 2074; see also Coffey, 2002 WL 1610913, at *2.
In the instant action, Plaintiff has asserted acts of discriminatory harassment ranging in time from as early as 1996 to as late as March 12, 1999. The question remains whether Plaintiff has submitted competent evidence sufficient for a reasonable jury to find that Plaintiff was subjected to any act of harassment, between January 13, 1999 and March 12, 1999, that was related to the general hostile work environment Plaintiff alleges.
The evidence in the record of any act contributing to the hostile work environment claim, within the 300-day period, is as follows: (1) Plaintiff's EEOC complaint states the discrimination continued until March 12, 1999, and Plaintiff testified at his deposition that Sokolich's harassment was "continuing," and "a regular thing;" (Hussain Dep. at 21; Pl. Rule 56.1 Resp. ¶ 13.) (2) Plaintiff states in his affidavit that even after being transferred by the LIRR to another job location, on March 11, 1999, Sokolich continued to threaten him by telling other employees that he was going to get him; and (3) Chris Rocco, another LIRR employee, stated to LIRR management that sometime around February 1, 1999, Sokolich made comments to him about "getting" Plaintiff if anything were "to happen with this whole thing involving Sheikh Hussain." Sokolich also allegedly asked Rocco whether Plaintiff was rallying for support. Plaintiff was aware of these threats. (Hussain Dep. at 30, 38-39.)
These facts are sufficient for the Court to conclude that acts contributing to the hostile work environment of which Plaintiff complains, occurred between January and March of 1999. See Fitzgerald, 251 F.3d at 363 (finding plaintiff's sworn allegations that the abuse was "ongoing," "repeated," and "continuing" sufficient to invoke continuing violation doctrine, where there had been one verbal incident within the statutory time period, and this incident had been more than 2 years removed from any previous incidents); Alonzo v. Chase Manhattan Bank, N.A., 70 F. Supp.2d 395, 396-397 (S.D.N.Y. 1999) (finding a triable issue of fact as to whether the elements of the continuing violations doctrine were satisfied where all but two or three discriminatory comments occurred outside the 300-day limit); see also King v. Friend of a Farmer Corp., No. 97 Civ. 9264 (BSJ), 2001 WL 849460, at *3 (S.D.N.Y. July 26, 2001) (finding unrealized threats sufficient for a hostile work environment claim) (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753, 118 S.Ct. 2257, 2264-2265 (1998)). Accordingly, applying the continuing violations doctrine, all of the acts alleged by Plaintiff as contributing to a hostile work environment are timely, and Defendant's motion for summary judgment on the basis of time-bar is denied. III. Title VII
The statute of limitations for claims under 42 U.S.C. § 1981 is the same as that for personal injury actions in the state in which the claims arose. See Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617 (1987). The applicable statute of limitations in New York is three years. See N.Y. C.P.L.R. § 214 (1990); Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Thus, although Defendant has not argued otherwise, it is clear that most of the acts of discrimination alleged by Plaintiff fall within the statute of limitations applicable to § 1981 as well.
Defendant argues that it is entitled to summary judgment because the undisputed evidence demonstrates that (1) the discriminatory acts alleged by Plaintiff do not rise to the level of a hostile work environment; (2) Frank Sokolich is not a supervisor, and thus his conduct cannot be imputed to Defendant; and (3) Defendant used reasonable care to prevent and correct the conduct complained of.
A. Hostile Work Environment
Title VII provides that "[i]t shall be unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). Title VII reaches conduct that "requires people to work in a discriminatorily hostile or abusive environment."Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993).
To prevail on a claim of a hostile work environment, a plaintiff must show (1) that the workplace was permeated with discriminatory intimidation sufficiently severe or pervasive so as to alter the conditions of the victim's employment and create an abusive work environment; and (2) that a specific basis exists for imputing the conduct creating the hostile work environment to the defendant employer.See Faragher v. City of Boca Raton, 524 U.S. 775, 786-789, 118 S.Ct. 2275, 2283 (1998) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)); Harris, 510 U.S. at 23, 114 S.Ct. at 370; Quinn, 159 F.3d at 767-768; Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). The environment must be both objectively and subjectively offensive — one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. See Faragher, 524 U.S. at 786, 118 S.Ct. at 2283; Meritor, 477 U.S. at 67, 106 S.Ct. at 2405; Richardson v. N.Y. State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999). In assessing a claim of a hostile work environment, a court must consider 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 work performance." Harris, 510 U.S. at 23, 114 S.Ct. at 370; see also Richardson, 180 F.3d at 436;Franklin v. Consol. Edison Co. of N.Y., Inc., No. 98 Civ. 2286 (WHP), 1999 WL 796170, at *7 (S.D.N.Y. Sept. 30, 1999). Although hostile work environment claims most commonly involve acts of verbal or physical harassment, concrete acts of discrimination affecting terms and conditions of employment can contribute to a hostile work environment.See Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002) (personnel actions can be considered as part of a hostile work environment claim, especially where they are earmarked or correlated with the grounds of discrimination); Hill v. Taconic Developmental Disabilities Servs. Office, 181 F. Supp.2d 303, 321 (S.D.N.Y. 2002) (denying summary judgment where the hostile environment claim was based on three concrete acts, including assignment of jobs and delegation of duties).
A recurring point in the caselaw is that "simple teasing," . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." Faragher, 524 U.S. at 786, 118 S.Ct. at 2283 (citation omitted); see also Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986); Baer v. Sprint Long Distance, No. 98 Civ. 6991 (CM), 1999 WL 592577, at *4 (S.D.N.Y. Aug. 2, 1999); Jowers v. Green Chimneys Children Servs., No. 98 Civ. 4724 (SHS), 1999 WL 349942, at *3 (S.D.N.Y. May 28, 1999).
B. Application of Law to Facts
Defendant asserts that there were, at most, five instances over a two-year period where Sokolich made offensive remarks. Defendant further contends that, based solely on the number of remarks, Plaintiff cannot, as a matter of law, establish a hostile work environment.
Although Defendant states that the number of instances where Sokolich made comments deemed offensive by Plaintiff is "undisputed," the Court notes that there is indeed a dispute. Plaintiff alleges that there were six specific comments, "regular" other comments, and repeated actions taken to affect his pay and work conditions. (Hussain Aff. ¶¶ 9, 11, 13.)
The Court disagrees. First, as part of his hostile work environment claim, Plaintiff alleges at least six specific comments made by Sokolich, as well as concrete work-related acts taken by Sokolich that directly affected Plaintiff's work schedule and salary. One of these acts, ordering Plaintiff to do mechanic's work without noting in his file that he was entitled to the higher pay scale for that work, happened, according to Plaintiff, approximately twenty times. (Hussain Dep. at 25.) The other act, which is also alleged to have occurred repeatedly, involved Sokolich ordering Plaintiff to get him coffee before he clocked in. (Hussain Dep. at 28-29.) In addition, Plaintiff alleges that Sokolich's comments and actions occurred "many times," are continuing, and generally were "a regular thing" over the course of approximately two years, from 1997-1999. (Pl. Rule 56.1 Resp. ¶ 13; Hussain Dep. at 21.)
It is well-settled that whether a series of actions constitutes a hostile work environment "is not, and by its nature cannot be, a mathematically precise test." See Harris, 510 U.S. at 22-23, 114 S.Ct. at 371; Richardson, 180 F.3d at 439 (internal quotations omitted). Here, taking all circumstances into account and drawing all reasonable inferences in Plaintiff's favor, a trier of fact could reasonably find that the comments and tangible acts alleged by Plaintiff, which are claimed to have occurred repeatedly, rise to the level of an actionable hostile work environment. Compare Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (finding issue of fact as to whether harassment rose to hostile environment where there was only one incident involving a prolonged, sexually offensive diatribe in front of a group of co-workers); Torres v. Pisano, 116 F.3d 625, 631-633 (2d Cir. 1997) (finding a question of fact as to a hostile environment claim where plaintiff alleged "constant" harassment, but could only specify a few comments); Hill, 181 F. Supp.2d at 321 (because the existence of a hostile work environment is a "mixed question of law and fact," summary judgment would be denied where allegations consisted of general lack of support from white supervisors and two work assignment incidents), with Alfano, 294 F.3d at 376-378 (five isolated comments over four years relating to plaintiff's sexual history found not pervasive or severe enough to create a hostile work environment).
Accordingly, Defendant's motion for summary judgment, on the grounds that Plaintiff has failed to offer sufficient evidence to allow a trier of fact to conclude that he was subjected to a hostile work environment, is denied.
C. LIRR's liability
An employer is presumed vicariously liable under Title VII when a supervisor with immediate (or successively higher) authority over the employee created the hostile work environment. See Faragher, 524 U.S. at 807, 118 S.Ct. at 2293; Burlington, 524 U.S. at 765, 118 S.Ct. at 2270. Where the alleged discrimination results in a tangible employment action against the subordinate, vicarious liability will be found. See Meritor, 477 U.S. at 72, 106 S.Ct. at 2408; Burlington, 524 U.S. at 760, 118 S.Ct. at 2268. A tangible employment action includes "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington, 524 U.S. at 761, 118 S.Ct. at 2268.
The record is clear that Sokolich had immediate authority over Plaintiff (Deft. Rule 56.1 St. ¶¶ 23-26; Sokolich Dep. at 38; Hussain Dep. at 11, 33), and that it was within his authority to assign work to subordinate employees. According to Plaintiff, Sokolich repeatedly failed to high-rate him after assigning mechanic's work. This deprived Plaintiff of the increased pay to which he was entitled. If true, this would be a significant change in benefits, as is also the case with respect to Plaintiff's claim of being made to work before clocking in. See, e.g.,Burlington, 524 U.S. at 760-761, 118 S.Ct. at 2268-2269 (quoting Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir. 1993) ("If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing . . ."). These acts are therefore tangible employment actions, for which Defendant can be held liable.
Where there is no tangible employment action, as is the case for the remainder of Plaintiff's claims, the burden shifts to the defendant to raise an affirmative defense to liability. See Faragher, 524 U.S. at 807-808, 118 S.Ct. at 2292-2293; Burlington, 524 U.S. at 765, 118 S.Ct. at 2270; Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001);Hill v. The Children's Village, 196 F. Supp.2d 389, 398 (S.D.N.Y. 2002). The employer may prevail on its affirmative defense by proving that: (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. See Burlington, 524 U.S. at 765, 118 S.Ct. at 2270;Faragher, 524 U.S. at 805-809, 118 S.Ct. at 2292-2293; Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999); Nash v. N.Y. State Executive Dep't, No. 96 Civ. 8354 (LBS), 1999 WL 959366, at *11 (S.D.N.Y. Oct. 20, 1999).
As to the first prong of the defense, "[t]he promptness and adequacy of an employer's response is generally a question of fact for the jury."Dobrich v. General Dynamics, 106 F. Supp.2d 386, 394 (D. Conn. 2000);see also Richardson, 180 F.3d at 441 (an employer is not entitled to summary judgment based on an affirmative defense that it responded to a complaint of discrimination "[i]f the evidence creates an issue of fact as to whether [its] action [wa]s effectively remedial and prompt.").
Plaintiff alleges that Defendant's actions were neither prompt nor adequate. Plaintiff was made to continue working with Sokolich for five months after he met with Ms. Commodore and filed a formal complaint against Sokolich. Moreover, during this time Sokolich made threats about retaliating against Plaintiff. Such threats are a form of harassment.See Burlington, 524 U.S. at 753, 118 S.Ct. at 2265; King, 2001 WL 849460, at *3. Thus, there is an issue of fact as to whether Defendant's response was effective. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) ("[W]e have held that if harassment continues after complaints are made, reasonable jurors may disagree about whether an employer's response was adequate."); Dobrich, 106 F. Supp.2d at 394 (denying judgment as a matter of law where harassment continued in a different fashion after complaints were made).
There also remains an issue of fact as to whether Defendant's response was prompt. Compare Kracunas v. Iona College, 119 F.3d 80, 90 (2d Cir. 1997) (denying summary judgment where there was four month delay between when employee complained and when employer took action); Edwards v. Conn. D.O.T., 18 F. Supp.2d 168 (D. Conn. 1998) (finding issue of triable fact as to whether employer's action was prompt, where harasser received written warning four months after management became aware of harassment); Seepersad v. D.A.O.R. Security, Inc., No. 97 Civ. 2086 (SS), 1998 WL 474205, at *5 (S.D.N.Y. Aug. 12, 1998) (finding issue of fact as to whether three weeks was sufficiently prompt to respond to a complaint of harassment); with Van Zant, 80 F.3d at 715 (employer's response was reasonable and prompt where within 36 hours of complaint the alleged harasser had been interviewed and, within four days of complaint, had been reprimanded and ordered to limit contact with plaintiff).
Although a reasonable trier of fact might well find that Defendant's investigation and subsequent transfer of Sokolich to a desk position were reasonable and prompt, this is not a conclusion that the Court can reach as a matter of law. Accordingly, Defendant's motion for summary judgment based on the affirmative defense of prompt and effective corrective action is denied.
The Court need not address the evidence relating to the second prong of the affirmative defense — whether Plaintiff acted unreasonably by not taking advantage of the LIRR's complaint mechanism for employees who believe they have been discriminated against. We note, however, that there is also a disputed issue of fact as to whether Plaintiff was informed of Defendant's discrimination policy and complaint procedure.
It is undisputed that the LIRR has a written policy regarding discrimination on the job. Defendant has submitted both a copy of the policy and an affidavit from Mercedes Commodore affirming that the policy is mailed to each employee and posted at various locations, at the manager's discretion. (Commodore Aff. ¶ 2; Def.'s Ex. A.) Nevertheless, Plaintiff repeatedly testified at his deposition that he was unaware of such a policy until after being contacted by Ms. Commodore, in the fall of 1998. (Hussain Dep. at 37; see also Hussain Aff. ¶ 6.) Sokolich also testified that he was unaware of any discrimination policy in place at this time. (Sokolich Dep. at 31.)
Although the existence of such a policy is a strong consideration when determining the reasonableness of an employer's actions, its mere existence will not necessarily relieve a defendant of its burden. See Faragher, 524 U.S. at 807, 118 S.Ct. at 2293; Caridad, 191 F.3d at 295;Children's Village, 196 F. Supp.2d at 399. The policy must also be reasonably distributed. Children's Village, 196 F. Supp.2d at 399 (summary judgment denied on claim of hostile work environment where plaintiff identified issue of material fact as to whether policy was regularly distributed and testified that she never saw it).
Because there is a genuine factual dispute as to whether Plaintiff knew of the complaint procedure and acted unreasonably in failing to take advantage of it, another reason exists for denying Defendant summary judgment on its affirmative defense. IV. Plaintiff's § 1981 Claim
Plaintiff also contends that he did not act unreasonably in not reporting any acts of harassment by Sokolich, because he thought that nothing would be done about it. Plaintiff alleges that management knew of Sokolich's history of racial harassment and had never disciplined Sokolich for his actions. An employee's assertion, without any supporting evidence, that he did not complain because he feared retaliation or feared nothing would be done, is ordinarily not enough to survive summary judgment. See Arnold v. Yale New Haven Hosp., No. 3:99 Civ. 1853 (CFD), 2002 WL 1608226, at *7 (D. Conn. July 12, 2002). Although Plaintiff claims his allegations are supported by affidavits from other employees, the affidavits do not evidence any previous complaints to management of discrimination by Sokolich, that were ignored; rather, the affidavits vaguely refer to a work-related dispute between Sokolich and another employee (Pruitt Aff.), to an observation by a co-employee that Sokolich segregated his crew (Cundari Aff.), and to a statement to management almost ten years earlier, without more, that Sokolich was "a racist." (Cundari Aff.) This is not competent evidence to support a claim that it would be futile to complain to management about discriminatory treatment. See Caridad, 191 F.3d at 295-296 (in order for plaintiff's failure to report harassment to preclude defendant's affirmative defense, plaintiff must put forth evidence of a credible fear that a complaint would not be taken seriously; for example, evidence that the employer had ignored previous or similar complaints).
Section 1981 provides that: "All persons within the jurisdiction of the United States shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." See 42 U.S.C. § 1981 (1982). Hostile work environment claims are cognizable under § 1981. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987). In order to succeed on such a claim, a plaintiff must show pervasive harassment based on race. See Snell v. Suffolk County, 782 F.2d at 1103. Defendant moves for summary judgment on the grounds that Plaintiff failed to state a claim under to 42 U.S.C. § 1981. However, the only argument made by Defendant is that Plaintiff has failed to demonstrate a municipal policy or custom.See Defendant's Memorandum of Law at 18. This argument has no relevance to a § 1981 claim against a private employer. Accordingly, Defendant's motion for summary judgment on Plaintiff's § 1981 claim is denied.
CONCLUSION
For the reasons set forth above, Defendant's motion for summary judgment is denied. The parties are to submit a Joint Pre-Trial Order, Proposed Jury Instructions, and Proposed Voir Dire, by October 15, 2002. Upon receipt of the pretrial submissions, a trial date shall be set.
SO ORDERED.