Opinion
5:00-CV-1687 (HGM/GJD)
September 20, 2002
Elzbieta P. Potrykus, Boston, MA, Plaintiff Pro Se.
Gene M. Szuflita, Esq., Belson, Campbell Szuflita, New York, NY, for Defendant.
MEMORANDUM-DECISION AND ORDER
BACKGROUND
Plaintiff Elzbieta Potrykus resided in Poland until 1987, at which time she came to the United States as a political refugee. Upon her arrival to the United States, she settled in Utica, New York and received welfare for a period of time before getting a minimum wage job in a flower shop. She was about to move to Boston in August 1988 when a colleague introduced her to Joseph Talarico, who was then the President of the defendant United Food and Commercial Workers District Union Local One ("Union"). Mr. Talarico expressed interest in plaintiff's background and offered her a job as a clerk in the Union's Accounting Department. Plaintiff accepted the offer under the impression that she would occupy this position only temporarily and that after a short training period in the Union's major departments she would be promoted to the position of a Member Service Representative ("MSR") or Organizer.
In October of 1988, plaintiff commenced her training program and completed it successfully in April of 1989. Plaintiff hoped to receive a promotion to a MSR position upon the completion of her training program, but she was not able to because, according to the Union's officials, no MSR positions were available at the time. However, while the Union officials were telling plaintiff that there were no vacancies, the Union hired 19 men for a MSR position.
While waiting for an opening for a MSR position, plaintiff decided to apply for other non-clerical jobs. In 1991, plaintiff obtained a certificate as a legal consultant and applied for a position in the Union's Legal Benefits Fund. She was not able to obtain the job because it went instead to the daughter of the administrator of the Fund. In June of 1992, plaintiff applied for the position of a Medical Claims Approver in the Health Care Fund. The job, however, went to a nephew of an employee. In August of 1992, plaintiff applied for a bookkeeping position in the Union's Accounting Department. Once again, she could not obtain the position — the daughter of a women already working in that office received the job.
In the summer of 1992, plaintiff had a meeting with Dennis Danella, the President's Executive Administrative Assistant, and complained of being unable to obtain the non-clerical positions within the Union and of not being moved to a MSR position. Plaintiff also reported that some of the Union's officials had made offensive remarks pertaining to her national origin.
Besides complaining to Mr. Danella, plaintiff also raised the issue of employment discrimination with Mr. Talarico by submitting comments to him related to her participation in "Self — Esteem and Peak Performance for Women Seminar" as well as her answers to the "Employee Development Program Survey." In both of these documents, plaintiff accused the Union of engaging in workplace discrimination. Plaintiff continued her employment with the Union until November 24, 1993, at which point she was laid off indefinitely. The Union alleges that its decision to lay off plaintiff was dictated by financial considerations.
On October 6, 2000, plaintiff filed this suit alleging (1) gender and ethnicity discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq, as amended ("Title VII"); (2) gender and ethnicity discrimination in violation of New York's Human Rights Law, Executive Law §§ 290-301 ("HRL"); (3) retaliation in violation of Title VII; and (4) hostile work environment in violation of Title VII. Currently before this court is defendant's motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered opposition to this motion.
DISCUSSION I. Standard for Summary Judgment
The standard for summary judgment is well-settled. Rule 56 of the Federal Rules of Civil Procedure allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1991) (quoting Federal Rule of Civil Procedure 1). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See id. at 250-251.
II. Gender and Ethnicity Discrimination Claim
In the first and the second causes of action, plaintiff alleges that defendant failed to promote her based on her gender and ethnicity in violation of Title VII and the New York HRL. Considering that New York courts require the same standard of proof for claims brought under the HRL as those brought under Title VII, this court considers plaintiff's Title VII and HRL claims together. See Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995).
As a threshold matter, defendant asserts that plaintiff's failure to promote claim based on defendant's acts prior to August 12, 1993 is time-barred. In opposition, plaintiff argues that the alleged discriminatory acts constitute a "continuing violation" dating back to the first refusal to promote her in 1991.
As a general rule, in order to maintain a discrimination claim under Title VII, a plaintiff must file a charge with the Equal Employment Opportunity Commission ("EEOC") or a state deferral agency within 300 days of the occurrence of the alleged conduct. 42 U.S.C. § 2000e-5(e). Failure to file a timely charge will render the claim time-barred unless the plaintiff is entitled to invoke a "continuous violation" doctrine. See Butts v. City of New York Dep't. of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993). Under the continuous violation doctrine, "a timely charge with respect to any incident of discrimination in the furtherance of a policy of discrimination renders claims against other discriminatory actions taken pursuant to that policy timely, even if they would be untimely if standing alone." See Connecticut Light Power Co. v. Sec'y of the U.S. Dep't. of Labor, 85 F.3d 89, 96 (2d Cir. 1996). However, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." See Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1998).
The filing period for discrete acts of discrimination was recently addressed by the Supreme Court in National R. R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061, ___ L.Ed.2d ___ (2002). In Morgan, the Court held that Title VII precludes recovery for discrete acts of discrimination that occur outside the statutory time period. Id. at 2073. According to the Supreme Court, each discrete discriminatory act starts a new clock for filing charges alleging that act and such charge must be filed within the 180 or 300 day period after the discrete discriminatory act occurred. Id. at 2072. The Supreme Court specifically identified termination, failure to promote, denial to transfer, and refusal to hire as discrete acts of discrimination constituting a separate actionable "unlawful employment practice." Id. at 2073.
The holding in Morgan is in accord with Second Circuit law that the alleged failures to promote, transfer, or compensate properly cannot form the basis for a "continuing violation" claim. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) ("A job transfer, or discontinuance of a particular job assignment, are not acts of a 'continuing' nature."); Crosland v. City of New York, 140 F. Supp.2d 300, 308 (S.D.N.Y. 2001) ("It is well-settled that transfers, demotions, failures to compensate adequately, and failure to promote are all discrete acts which do not constitute a continuing violation.").
Based on a review of the record, this court finds that plaintiff failed to provide sufficient evidence to establish that the failure to promote her was made in connection with a discriminatory policy or practice. Rather, defendant's failure to promote plaintiff on several occasions constituted discrete, unrelated claims of discriminatory treatment that cannot form the basis of a "continuing violation." See Gross v. Nat'l Broad. Co., Inc., 2002 WL 1482621, at *8 (S.D.N.Y. 2002). Considering that the "continuing violation" doctrine is inapplicable here, the plaintiff is subject to the 300 day limitation period and any alleged discriminatory acts that occurred prior to August 12, 1993 are time-barred.
In the present case, plaintiff applied for, but did not receive, the following positions: (1) position in Union's Legal Benefit Fund (June 1991); (2) position as a Medical Claims Approver in Union's Health Care Fund (June 1992); and (3) position as a bookkeeper in the Union's Accounting Unit (August 1992). Furthermore, plaintiff claims that throughout her tenure with the Union she inquired about the availability of 19 MSR positions. Considering that plaintiff filed her charge with the New York State Division of Human Rights on June 9, 1994, she may not complain of events which occurred more than 300 days before she filed her charge, i.e., before August 12, 1993. Accordingly, plaintiff cannot maintain a claim for the legal benefits, medical claims or accounting office jobs since her charge was filed at least a year too late. Furthermore, plaintiff may not maintain a claim for 17 out of the 19 MSR positions because they were filled prior to August 12, 1993. Plaintiff, however, is not time-barred in her failure to promote claim with respect to two MSR positions — one given to Lance Huber in September, 1993 and the other given to Kevin Clarke in October, 1993.
A plaintiff alleging employment discrimination under Title VII bears the initial burden of establishing a prima facie case. In order to establish a prima facie claim for failure to promote, a plaintiff must show that (1) she is a member of a protected class; (2) she applied and was qualified for a position 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. See Brown v. Coach Stores Inc., 163 F.3d 706, 709 (2d Cir. 1998). In short, plaintiff must demonstrate that defendant rejected her for the position under "circumstances which give rise to an inference of unlawful discrimination." Texas Dept. Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, L.Ed.2d 207 (1981). If plaintiff establishes her prima facie case, the burden of production shifts to the defendant to articulate a legitimate, clear, specific and non-discriminatory reason for refusing to promote the employee. See Gallo v. Prudential Residential Serv., Ltd., 22 F.3d 1219, 1226 (2d Cir. 1994). If the defendant meets this burden of production, plaintiff must show by a preponderance of evidence that the legitimate reasons offered by the defendant merely constitute a pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Accordingly, plaintiff may only avoid summary judgment if, after examining the entire record, the court determines that plaintiff could persuade the jury that defendant intentionally discriminated against the plaintiff. See Schabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). In the present case, it is first necessary to determine whether plaintiff established a prima facie case for failure to promote. Defendant does not dispute that the plaintiff satisfied the first, third, and fourth elements of a failure to promote claim. Defendant, however, argues that the plaintiff failed to satisfy the second element of the failure to promote claim because she never applied for the MSR positions given to Mr. Huber and Mr. Clarke in September and October of 1993. Defendant correctly asserts that as a general rule a plaintiff alleging failure to promote ordinarily must show that he or she applied for the specific job at issue. See Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998). This general rule, however, does not apply where the plaintiff "indicates to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them." Mauro v. S. New England Telecomm. Inc., 208 F.3d 384, 387 (2d Cir. 2000). In such a situation, "requiring the plaintiff to show that he or she applied for the specific job at issue would be unrealistic, as an employee by definition cannot apply for a job that he or she does not know exists." Id.
In the present case, the record suggests that plaintiff clearly indicated her interest in a promotion to a MSR position. During her first year of employment, plaintiff participated in a highly structured training program designed to familiarize the plaintiff with duties and responsibilities of a MSR. Furthermore, plaintiff constantly asked Samuel Talarico, about the availability of MSR positions. Samuel Talarico told plaintiff that he or Mr. Scavo, then plaintiff's supervisor, would notify her as soon as position becomes available. The record indicates, however, that when two MSR positions became open in September and October of 1993, the Union hand-picked individuals to fill those positions without informing plaintiff, personally or through postings, that the jobs were available. Considering that the Union's top officials knew of plaintiff's interest in being promoted to a MSR position but nonetheless failed to make her aware of any promotion opportunities to those positions as they arose, plaintiff satisfied the second element of failure to promote claim. See Mauro, 208 F.3d at 387.
As plaintiff has made out a prima facie case, the burden shifts to the defendant to come forward with a legitimate, nondiscriminatory reason for awarding available MSR positions to Mr. Huber and Mr. Clarke, rather than to the plaintiff. Defendant maintains that it hired Mr. Huber and Mr. Clarke because each had relatives working for the International Union and maintaining a good relationship with the International Union was of critical importance to the defendant. While plaintiff is justified in asserting that it is highly unprofessional for the Union to consider family connections in its hiring decisions, such practice alone does not constitute illegal discrimination in violation of Title VII.
Once the defendant articulated a legitimate, non-discriminatory reason for failure to promote, the burden shifts back to the plaintiff to adduce evidence that the proffered reason is pretextual. In short, plaintiff has to demonstrate that there is sufficient evidence to support a jury finding that the defendant discriminated against her based on her national origin or gender. See Voels v. State of New York, 180 F. Supp.2d 508, 514 (2d Cir. 2002).
Plaintiff alleges that defendant denied her promotion to a MSR position because of her national origin. To support her argument, the plaintiff alleges that Mr. Gorea, Assistant Director of the Organizing Department referred to her publicly as "Hey, you Polish kielbasa!" and Ms. Talarico, Administrator of Education, Safety Cultural Fund called plaintiff a "Polish bitch." Furthermore, Samuel Talarico, Executive Administrative Vice President, asked the plaintiff if she knew "any Polish lady" to become his housekeeper, because according to him "Polish women are good at that kind of work." Plaintiff was also asked if she knew a Polish woman who would like to work full time in the Union's kitchen, but not in the Union's office. Office jobs, especially MSR positions, according to plaintiff were reserved only for employees of Italian or Italian-American descent. Defendant neither offered any evidence to contest the national origin of those promoted nor denied that plaintiff was subject to repeated verbal abuse pertaining to her nationality. Taking into account nationality-based remarks made by the top Union officials, this court cannot exclude the possibility that the jury in the present case could find defendant's reason for a failure to promote to be pretextual. Summary judgment on this question therefore is not appropriate and defendant's motion is denied as to the plaintiff's national origin discrimination claim in violation of Title VII and the HRL.
Plaintiff also argues that defendant denied her promotion to a MSR position because of her gender. To support her argument plaintiff contends that while she was denied the position as a MSR — allegedly because of no available openings — nineteen new male employees were hired for this position. According to plaintiff no women were hired for a MSR position during her five year tenure with the Union. Furthermore, plaintiff asserts that at the end of 1993, women occupied only three out of forty-seven MSR positions. Plaintiff also submitted to the court an affidavit of her co-worker, Patricia Peters, in which Ms. Peters states that she was surprised to learn that plaintiff was promised a MSR position, because "it was somehow common knowledge that these positions were [reserved] for men." After examining the record, this court concludes that there is sufficient evidence to support a reasonable inference that prohibited discrimination occurred, i.e, that defendant failed to promote plaintiff to a MSR position not because she, unlike Mr. Huber and Mr. Clarke, lacked connections with the International Union, but because she was a woman. Accordingly, summary judgment with respect to plaintiff's gender discrimination claim in violation of Title VII and the HRL is denied.
III. Retaliation Claim
Plaintiff also asserts that she was laid off because she opposed defendant's discriminatory policies and other unlawful practices related to employment. There is, however, inadequate evidence to base a finding that plaintiff was fired in retaliation for complaining about discrimination in the workplace.
Title VII prohibits employers from discriminating against employees for opposing an "unlawful employment practice" such as discrimination. 42 U.S.C. § 2000e-3(a). In order to defeat a motion for summary judgment with respect to a retaliation claim, the plaintiff must first present sufficient evidence to make out a prima facie case; that is, evidence sufficient for a rational trier of facts to conclude that (1) plaintiff was engaged in an activity protected under Title VII; (2) the defendant was aware of the plaintiff's participation in the protected activity; (3) the plaintiff suffered an adverse employment action; and (4) there was a causal connection between the adverse employment action and the protected activity. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).
First, it is necessary to determine whether the plaintiff established a prima facie case of retaliation. Defendant does not dispute that plaintiff satisfies the first three elements of a retaliation claim. Defendant, however, argues that plaintiff fails to satisfy the fourth element of her retaliation claim. According to the defendant, plaintiff cannot demonstrate that defendant's decision to lay her off was retaliatory because there was too long of a lapse in time between the last time plaintiff brought discrimination concerns to the attention of the Union's top officials and the date of plaintiff's discharge.
The casual connection needed for proof of a retaliation claim "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (causal connection exists where plaintiff was fired twenty days after the defendant learned that the plaintiff had hired an attorney to pursue her claim of gender discrimination and just three days after the plaintiff's attorney had written a letter to the defendant discussing the plaintiff's complaint); Reed v. A. W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (the requisite connection "was shown . . . by, among other things, evidence that the time between the plaintiff's initial complaint and her discharge was a mere twelve days."). Although proximity in time between an employee's protected activity and her termination may under certain circumstances give rise to an inference of causation, "[c]onversely, causation is less likely if there is a long hiatus between the protected activity and the termination." See Nielsen v. New York City Comm'n on Human Rights, 1998 WL 20004 at *10 (S.D.N.Y. 1998) (no causal connection was found where nearly a full year passed between plaintiff's comments and defendant's decision to lay her off).
Here, retaliation did not closely follow plaintiff's complaint with respect to gender and national origin discrimination. Plaintiff complained about discrimination to Mr. Danella in August or September of 1992. In October of 1992, plaintiff also submitted to Joseph Talarico her answers to the questions related to her participation in the "Self-Esteem Peak Performance for Women Seminar" as well as answers to the "Employee Development Program Survey." In both of these documents, plaintiff accused the Union of engaging in workplace discrimination. Although plaintiff complained of discrimination for the last time in October of 1992 she was not laid off until November of 1993. Thus, the shortest interval between plaintiff's protected activity and an alleged act of retaliation constituted more than one year. Since the alleged act of retaliation did not closely follow plaintiff's protected activity, it is not reasonable to infer causation. See Shah v. New York State Dep't of Civil Service, 2001 WL 839986 at *11 (S.D.N.Y. 2001). Accordingly, plaintiff has failed to establish a prima facie case of employment retaliation in violation of Title VII and defendant is entitled to summary judgment on this claim.
IV. Hostile Work Environment Claim
Plaintiff also asserts that by making certain remarks about her national origin defendant subjected her to a hostile work environment. Defendant maintains that even though the conduct in question is objectionable it was not so pervasive as to support a claim for hostile work environment. This court finds that the remarks made by the Union officials to the plaintiff are not sufficiently severe and pervasive to constitute ethnically hostile work environment.
Title VII prohibits an employer from discriminating against any individual on the basis of national origin with respect to her "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000(e)-2(a)(1). To establish a claim under a hostile work environment theory, a plaintiff must show that (1) "the workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of her working environment, and (2) that a specific basis for imputing the conduct that create the hostile work environment to the employer." See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). A Title VII hostile environment claim will succeed only where the conduct at issue is so severe or pervasive as to create an objectively hostile work environment, and where the victim subjectively believes the environment to be abusive. See Harris v. Forklift Systems Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Here, there is no dispute that plaintiff subjectively perceived her environment to be hostile and abusive. Therefore, the remaining question before this court is whether the environment was objectively hostile, that is, whether a reasonable person in plaintiff's circumstances would find the working conditions so severe or pervasive as to alter the terms of employment for the worth. See Id. at 21.
Whether the environment is hostile or abusive can be determined only by looking at the totality of circumstances. See Raniola v. Bratton, 243 F.3d 610, 616 (2d Cir. 2001). In assessing whether a hostile environment exists, courts consider a variety of factors, including (1) the conduct's severity; (2) the frequency of the abusive conduct; (3) whether it is physically threatening or humiliating rather than merely offensive; and (4) whether it unreasonably interferes with the plaintiff's performance. See Harris, 510 U.S. at 23.
A court may find alleged conduct to be frequent and severe if the plaintiff can demonstrate that a single incident was extraordinary severe, or that a series of incidents were sufficiently continuous and concerted as to have altered conditions of plaintiff's working environment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (genuine issue of material fact exists where plaintiff alleged that he was subject to ten racially hostile incidents during a ten-month period of employment, including his fellow officers' repeated use of the term "nigger"); Richardson v. New York State Dept. of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (summary judgment denied where plaintiff's supervisor referred to Blacks as "apes or baboons," her co-workers called her a "nigger," circulated jokes that disparaged Blacks, and used terms "spooks" and "Buckwheats" to refer to African-Americans). However, sporadic use of racist comments, slurs, and jokes will not constitute actionable hostile work environment. See Richardson, 180 F.3d at 437 (fifteen alleged incidents occurring at a correctional facility did not create a racially hostile environment against an African-American employee, in that only three had racial overtones, and comments that all African-American inmates look alike were too isolated and mild); Curtis v. Airborne Freight Corp., 87 F. Supp.2d 234, 248 (S.D.N.Y. 2000) (summary judgment was granted to the defendant where the supervisor allegedly made two isolated racial slurs).
Applying the legal standard set forth above to the instant case it is clear that plaintiff cannot maintain a claim of hostile work environment against defendant. Plaintiff alleges that she was subject to discriminatory remarks that were hostile, offensive, and continuous in nature. In support of her argument, however, plaintiff directs this court's attention only to three distinct incidents of ethnic slurs that occurred over a six year period of her employment with defendant. Plaintiff alleges that she was referred to as "Polish kielbasa," and "Polish bitch," and was told that "Polish women are good at doing housework." Even though these remarks are highly offensive and obviously inappropriate they cannot — standing alone — constitute the "steady barrage of opprobrious racial comments" necessary to constitute a racially hostile workplace. See Schwapp, 118 F.3d at 100-11. Accordingly, defendant is entitled to summary judgment on plaintiff's hostile work environment claim.
CONCLUSION
WHEREFORE, for the forgoing reasons, it is hereby
ORDERED, that defendant's motion for summary judgment dismissing plaintiff's claims of gender and ethnicity discrimination in violation of Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law is DENIED. It is further
ORDERED, that defendant's motion for summary judgment dismissing all of plaintiff's additional claims is GRANTED. It is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties by regular mail.
IT IS SO ORDERED.