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concluding that "employers are not required to equally assign undesirable tasks with mathematical precision because there will often be legitimate business reasons for making work assignments that are unrelated to an employee's gender"
Summary of this case from Dotson v. City of SyracuseOpinion
02-CV-0052E(Sr)
April 9, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff Deborah Miller ("Miller") commenced this civil action on January 18, 2002 against her current employer, Saint-Gobain Corporation ("Saint-Gobain"). Miller alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and the New York Human Rights Law, N.Y Exec. Law § 290 et seq. ("HRL"). On March 21, 2003, Saint-Gobain filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). This motion was argued and submitted on September 26, 2003. For the reasons set forth below, Saint-Gobain's motion will be granted.
Miller began employment with Saint-Gobain, then known as Carborundum Corporation, on October 24, 1985 and remains employed there today. From 1986 through January 2002 Miller worked as a journeyman machinist in the Grinding Department, which comprises two areas: Green Machine and Grind Shop. Although Miller frequently worked in Green Machine, she could be assigned to work in either area depending on the respective workload in the department.
Green Machine is the machine shop responsible for the pre-sintering processing of ceramics, as opposed to the post-sintering processing of ceramics performed in the Grind Shop. In other words, during the initial processing of ceramics, the product is green and soft and the area where such is processed is referred to as the "Green Machine." The Grind Shop, on the other hand, contains machines that process ceramics after they have been furnaced.
Miller asserts that, starting in approximately mid-1999, she observed co-workers reading magazines such as Penthouse, Playboy or Hustler and otherwise observed such magazines in tool drawers. Miller testified that she threw away each magazine that she found.
During the second half of 1999 and with the acquiescence of Miller's union, Saint-Gobain developed new attendance guidelines in an effort to improve attendance. All of the affected employees were trained at that time with respect to the new system for tracking attendance. On April 6, 2000, in accordance with the new policy, Miller received a "friendly verbal" warning about her attendance. Miller did not file a grievance about this warning.
On May 16, 2000 Miller found an offensive joke on her workbench. Miller brought the document to her supervisor, John Winstanley, who said that he would "take care of it." Miller subsequently discovered who was responsible for the joke, but she did not inform management because she did not want to implicate a co-worker and because she thought that "it was their job, not mine, to find out who did it."
On May 17, 2000 Miller found an offensive magazine in a drawer in the Green Machine area; she threw it out and did not report the incident. On June 20, 2000 a photograph of a partially nude female was posted on the company bulletin board, within several feet of the foreman's office.
In mid-June 2000 Miller informed Human Resources Manager Joan McGarvey that David Miller had been giving her "less desirable" work assignments and shifts and that he intentionally assigned her work that a shoulder injury restricted her from performing. On July 19, 2000 a meeting occurred between Miller, McGarvey, David Miller, and two union representatives to discuss Miller's claims of gender-based favoritism in work assignments, training and scheduling of shifts.
Deborah Miller and supervisor David Miller are not related.
When Miller complained to McGarvey about the presence of adult materials in the plant, McGarvey investigated Miller's complaint. McGarvey was unable to locate any adult materials. To preempt debate about the offensiveness of any particular material, the management and supervisory teams subsequently reached a consensus to remove all personal reading materials from work areas.
On June 29, 2000 Miller allegedly observed a co-worker reading an issue of Playboy magazine. Miller reported the incident to David Miller, who could not find the magazine but instructed all employees to remove all reading materials from the work areas.
On July 19, 2000 Miller saw a calendar that allegedly contained a photograph of a partially nude female. The next day, Miller photographed the calendar and reported it to David Miller, who removed it immediately. During this time, Miller's co-workers complained to McGarvey and to their supervisors that Miller had been wandering throughout the plant, writing observations of her co-workers in a notebook and making unsolicited comments about personal items and photographs that they had on display. Several of Miller's co-workers approached management to protest the decision to remove non-offensive personal reading materials.
As a result of her inspections, Miller informed Saint-Gobain, inter alia, that she found a calendar depicting a fully-clothed country-music performer, Shania Twain, to be offensive.
On July 21, 2000 a copy of an Ann Landers column appeared on a bulletin board in Miller's work area. Nothing on the document itself targeted Miller, but she and two union stewards believed that the document was directed at her. Miller subsequently discovered who posted the column, but did not share this information with management. Later that day, the sexual epithet "cunt" appeared scrawled on Miller's mailbox. The graffiti was removed under the shift supervisor's direction. Miller left work early that day by permission and was not paid for the hours not worked.
Someone highlighted part of the column titled "Article II" of a "Bill of No Rights." This highlighted language was as follows:
You do NOT have the right to never be offended. This country is based on freedom, and that means freedom for everyone — not just you. You may leave the room, change the channel, express a different opinion and so on, but the world is full of idiots, and probably always will be.
Miller alleges that this graffiti was repeated in March of 2003.
On July 24, 2000 Miller met with McGarvey regarding the mailbox obscenity and the Ann Landers column. McGarvey investigated these incidents and wrote Miller a memo summarizing the actions. The memo, which was copied to David Miller, indicated that Saint-Gobain would continue to monitor the workplace for offensive materials and that it would keep all personal reading material out of the workplace.
On August 1, 2000 Miller saw a co-worker reading an issue of Penthouse magazine. Miller did not report the incident and did not discuss it with the co-worker. On August 8, 2000 Miller saw a co-worker in the boiler-room reading a "smut magazine." When Miller asked the co-worker what he was doing, he put the magazine in a filing cabinet and left the room. Miller, however, did not report the incident or turn in the magazine.
On August 8, 2000 Miller received her first written warning about attendance. At that time, Miller alleged to McGarvey that Saint-Gobain did not enforce its attendance policy equally against all employees. On October 17, 2000 Miller received her second written warning about attendance. Miller and her union filed a grievance alleging that the attendance guidelines were not enforced equally across departments. After finding that some departmental supervisors were calculating absenteeism percentages differently, Saint-Gobain resolved the grievance by removing Miller's first written warning from her file.
Between October and December 2000 Miller encountered adult magazines in the Green Machine break room or at co-workers' work stations three more times. Miller did not report any of these incidents.
On February 1, 2001 Miller saw a picture of a nude woman posted on a bulletin board. Miller reported the picture to McGarvey, who determined that the picture was a photograph of a piece of art that had been cut out of a newspaper. The picture was taken down immediately and the responsible co-worker received a written warning from McGarvey. Saint-Gobain also issued a general warning that such conduct would result in immediate termination. Miller received a memo from McGarvey summarizing the incident and its resolution.
The artwork in question depicted Lady Godiva riding naked on a horse.
Miller was on disability leave from June 2001 through September 2001 due to a shoulder injury. Miller returned to work in October 2001 and worked without incident until she chose to transfer out of the machinist classification in January 2002.
On February 6, 2001 Miller filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"), which issued a determination in Miller's favor. The EEOC issued a right-to-sue letter on December 31, 2001. Miller filed this action on January 18, 2002.
District Courts have substantial discretion with respect to the weight to be accorded an EEOC determination. See Wanamaker v. Columbian Rope Co., 907 F. Supp. 522, 538 n. 24 (N.D.N.Y. 1995) (according EEOC probable cause determination no weight because, inter alia, it contained no legal analysis), aff'd, 108 F.3d 462 (2d Cir. 1997); EEOC v. Regency Architectural Metals Corp., 896 F. Supp. 260, 263 (D. Conn. 1995) (according EEOC reasonable cause determination no weight because it "consist[ed] largely of brief factual assertions *** and legal reasoning, which is the province of the court *** [and lacked foundation] as to how the information in the determinations was compiled"). This Court will accord the EEOC determination no weight because it was sparse and conclusory. Moreover, it is not clear what the EEOC's investigation involved.
FRCvP 56(c) states that summary judgment may be granted only if the record shows "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." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law * * *." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].").
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, supra note 9, at 18. Indeed, to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars * * *." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller Co., Inc., 258 E3d 62, 69 (2d Cir. 2001). To the extent that Miller's Affidavit dated July 30, 2003 contradicts her deposition testimony, it will be disregarded.
In employment discrimination cases, district courts must be "especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir. 1999); Trans-Orient Marine v. Star Trading Marine, 925 F.2d 566, 572 (2d Cir. 1991).
Turning to the governing substantive law, Miller claims that Saint-Gobain discriminated against her on the basis of gender by fostering a hosfile work environment. Title VII states that "[i]t shall be an unlawful employment practice for an employer * * * to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * sex * * *." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. A Title VII plaintiff bears the initial burden of making out a prima facie case of discrimination. Nonetheless, the plaintiff's burden of proof at the summary judgment stage is de minimis. As discussed below, Miller cannot satisfy a prima facie case of hosfile work environment. Consequently, this Court need not apply the McDonnell Douglas burden-shifting analysis.
Inasmuch as claims under Title VII and the HRL are governed by the same standard (with notable exceptions not relevant here), Miller's claims will be addressed in tandem. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); Mittl v. N.Y. State Diu. of Human Rights, 100 N.Y.2d 326, 330 (2003) (citing Ferrante v. Am. Lung Ass'n., 90 N.Y.2d 623, 629 (1997)).
See, e.g., Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1993) (discussing the burden-shifting analysis described in McDonnell Douglas and construed in Burdine).
See Burdine, supra note 14, at 252-253.
Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)).
For Miller to establish a Title VII claim based on a hosfile work environment claim, she must show "(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 hosfile environment to the employer." The discriminatory intimidation alleged by Miller must be "offensive or pervasive enough that a reasonable person would find it hosfile or abusive and must have been actually perceived by [Miller] as abusive." In determining whether a hosfile environment existed, this Court must look at the totality of the circumstances of the alleged conduct including "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." Miller "must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Isolated incidents of discriminatory comments or conduct — unless extremely serious — are not sufficient to establish a hosfile working environment.
Richardson v. N.Y. Dep't of Con. Servs., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotation marks and citations omitted); Richerson v. Niagara Mohawk Power Corp., 2001 WL 877478, at *3 (W.D.N.Y. 2001).
Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Harris, supra note 18, at 23.
Howley, supra note 16, at 153 (internal quotation marks and citation omitted).
Howley, supra note 16, at 153.
Miller fails to raise a genuine issue of material fact whether the alleged conduct may be attributed to Saint-Gobain. Saint-Gobain had a policy against sexual harassment. Because Miller failed to report many of the alleged offensive incidents, such conduct cannot, under the circumstances, be imputed to Saint-Gobain. Moreover, with respect to the incidents that Miller did report, Saint-Gobain took responsive action such as removing the materials in question, prohibiting all reading materials in the workplace and removing the sexual epithet from Miller's mailbox the day it was discovered. Indeed, Saint-Gobain met with Miller at least three times to discuss her concerns about workplace harassment. Saint-Gobain also issued a written warning to the co-worker who posted the newspaper cutout of Lady Godiva on an employee bulletin board. Despite conclusory allegations to the contrary, Miller only proffered evidence of sexual harassment by co-workers. When "a `co-employee' — as distinct from a supervisor — is alleged to have engaged in harassing activity, the employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it." Quinn, supra note 13, at 766 (internal quotation marks and citation omitted). Saint-Gobain had a sexual harassment policy that it enforced in response to Miller's complaints. Accordingly, Miller's hosfile work environment claim will be dismissed.
See Fayson v. Kaleida Health, Inc., 2002 WL 31194559, at *8 (W.D.N.Y. 2002) (applying Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 807-808 (1998), and dismissing hosfile environment claim where plaintiff failed to invoke defendant's sexual harassment policy by reporting alleged harassment), aff'd, 2003 WL 21523220 (2d Cir. 2003); Samborski v. West Valley Nuclear Servs., Co., 2002 WL 1477610, at *6 (W.D.N.Y. 2002) (holding that an employee's "unsubstantiated subjective fear of retaliation cannot excuse her failure to report other incidents of alleged harassment"). Miller does not dispute that she received and was aware of Saint-Gobain's sexual harassment policy. Moreover, the fact that she reported some but not other incidents demonstrates that she knew how to report improper incidents. Finally, the incidents were not so frequent or notorious that Saint Gobain should have been aware of them despite Miller's failure to report such.
See Fayson, supra note 22, at *8; McGrady v. Goodyear Dunlop Tires NA, Ltd., No. 01-CV-0270E(F), at 31-32 (W.D.N.Y. Jul. 8, 2003) (dismissing a sexual harassment complaint where defendant had a sexual harassment policy in place but where plaintiff did not report alleged harassment); Samborski, supra note 22, at *6 (dismissing hosfile environment claim because defendant provided a reasonable avenue of complaint and it responded to plaintiff's complaints); Richerson, supra note 17, at *3-4 (granting summary judgment to a defendant where it provided a reasonable avenue for sexual harassment complaints and responded to complaints made by plaintiff).
Turning to Miller's disparate treatment claim, she must show 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 give rise to an inference of discrimination." The fourth element "may be proven by showing that a man similarly situated was treated differently."
Richerson, supra note 17, at *4 (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)).
Richerson, supra note 17, at *4 (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997)).
Miller claims that she was treated differently from her male co-workers with respect to (1) work assignments, (2) access to meetings, (3) access to training, (4) overtime and (5) enforcement of Saint-Gobain's attendance policy. Miller has failed to raise a genuine issue of material fact that she was treated differently than similarly situated male co-workers because her allegations lack evidentiary support. For example, although Miller was assigned "undesirable" work assignments, such tasks were par for the course in her department. Indeed, Miller has not proffered any evidence that her male co-workers were not assigned such tasks or that she received a disproportionate share of such assignments. Second, with respect to a June 9, 2000 meeting to which Miller was allegedly not invited, she has proffered no evidence that she was not invited because of her gender. Indeed, she proffers no evidence of the gender of any of the participants. Third, with respect to training, Miller claims that she was denied training on two pieces of equipment: a Harrison and an Auto-Loader. Miller's female co-worker, Suzy Meinhart, was trained on the Auto-Loader. Only three out of thirty-nine machinists were trained on the Harrison and Miller proffered no evidence that gender played a role in the selection of such trainees. Fourth, with respect to overtime, Miller proffered no evidence that male co-workers were granted "open" requests for overtime. Finally, with respect to Saint-Gobain's enforcement of its attendance policy, Miller has proffered no evidence that such was not fairly administered between the sexes. Accordingly, Miller's disparate treatment claim will be dismissed because she has failed to allege, inter alia, an adverse employment action.
This Court does not hold that employers must equally assign "undesirable" tasks with mathematical precision because there will often be legitimate business reasons for making work assignments that are unrelated to an employee's gender. This Court need not demarcate the line of proportionality required, if any, in making work assignments because Miller has proffered no evidence that she received disproportionate "undesirable" assignments.
An "open" request for overtime is where an employee requests any overtime for a specified period.
Although Saint-Gobain's revised attendance policy was not equally administered among supervisors, such was corrected. Moreover, this disparity involved departmental differences — not differences in its application between the sexes.
Richerson, supra note 17, at *4 (granting defendant's motion for summary judgment and dismissing plaintiff's disparate treatment claim because she failed to proffer evidence supporting her allegations that she was improperly denied, inter aha, overtime and preferred work assignments).
Finally, turning to Miller's retaliation claim, she must, in order to establish a prima facie case of retaliation, show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [her]; and (3) a causal connection between the protected activity and the adverse employment action."Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (internal quotation marks and citation omitted). Employer conduct constitutes an adverse employment action when it effects a materially adverse change in the terms and conditions of employment. As discussed above, however, Miller, did not experience an adverse employment action and proffers no evidence that she was disadvantaged as alleged.
See Richardson, supra note 17, at 446.
Even assuming arguendo that Miller's voluntary transfer out of her department constitutes an adverse employment action, eleven months separated Miller's last alleged incident of harassment in February 2001 and her decision to leave the machinist area in January 2002. Temporal proximity between the employer's knowledge of protected activity and an adverse employment action can support a finding of retaliation, but only when the temporal proximity is very close. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). No specific deadline exists beyond which temporal proximity cannot support a retaliation claim, but the eleven-month time lag in this action is insufficient to support Miller's retaliation claim. Miller, therefore, cannot rely on temporal proximity to support a retaliation claim. Consequently, Miller's retaliation claim will be dismissed.
See Gorman-Bakos v. Cornell Cooperative Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001).
See Hollander v. Amer. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (three-month interval does not support a retaliation claim); Cole v. New York State Dep't of Corr. Servs., 2002 WL 31017418, at *7 (W.D.N.Y. 2002) (eight-month interval does not support a retaliation claim); Dollard v. Perry's Ice Cream Co., 2001 WL 1117137, at *8 (W.D.N.Y. 2001) (fifteen-month interval does not support a retaliation claim); Admassu v. Fox/Lorber Assocs., Inc., 2003 WL 22290226, at *6 (S.D.N.Y. 2003) (holding that an interval of six months between the filing of an EEOC complaint and the receipt of e-mail messages criticizing work performance could not support a retaliation claim); Harrison v. New York City Admin, for Children's Servs., 2003 WL 22271219, at *3 (S.D.N.Y. 2003) (holding that an interval of 19 months could not support a retaliation claim); Castro v. Local 1199, Nat'l Health Human Servs. Employees Union, 964 F. Supp. 719, 729 (S.D.N.Y. 1997) (holding that an interval of over one year cannot support a retaliation claim under the Americans with Disabilities Act). Cf. Gorman-Bakos, supra note 31, at 554 (holding that a five-month interval could not support a retaliation claim in a civil rights action filed pursuant to 42 U.S.C. § 1983).
Accordingly, it is hereby ORDERED that Saint-Gobain's motion for summary judgment is granted and that the Clerk of the Court shall close this case.