Opinion
99-CV-0643E(F)
July 27, 2001
MEMORANDUM and ORDER
Presently before this Court is defendant's motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons that follow, such motion is granted.
Plaintiff, a female, alleges that defendant discriminated against her on the basis of sex and subjected her to both a hostile work environment and disparate treatment. Plaintiff states claims for unlawful discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII") 42 U.S.C. § 2000e et seq. Defendant argues that there was no discriminatory treatment that can be imputed to it and that plaintiff has failed to demonstrate a prima facie case of sex discrimination.
Summary judgment may be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCvP 56(c). When viewing the evidence, a court must assess the record in the light most favorable to the non-movant and draw all justifiable inferences in such party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Although the movant initially bears the burden of showing that no genuine issues of material fact exist, once such a showing is made, the non-movant must produce evidence which would permit a reasonable jury to return a verdict in such party's favor. Anderson, at 256. Moreover and although cases premised on sex discrimination often turn on factual questions regarding a party's intent, a properly supported summary judgment motion will not be defeated on the basis of conjecture or surmise because "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Plaintiff has been an employee of defendant since 1991 and has held various positions. From May 1994 through March 1995 — the time period relevant to this action — plaintiff worked as a janitor in the Buffalo area for defendant's Facilities Department where she was responsible for, inter alia, snow removal, ground upkeep and general maintenance duties. See Richerson Dep. at 106. Plaintiff alleges that, while working as a janitor, she was subjected to an "on-going barrage of sexually orientated harassment and put-downs by male co-workers ***." Richerson Aff. ¶ 3. This harassment is alleged to have included "sexually derogatory and explicit comments to me and about me ***, inappropriate and unwelcome touching, and sexually explicit and offensive photographs and publications left in common areas which [she] shared [with other employees]." Id. ¶ 4.
To the extent the Complaint can be construed to allege claims relating to incidents prior to May 10, 1994 and claims of retaliation after 1995, plaintiff has withdrawn those claims. Richerson Aff., filed Jan. 26, 2001, ¶ 2.
Nevertheless and during the time period in question, plaintiff failed to notify or complain to any supervisory personnel or to anyone from defendant's Diversity Management and Compliance Department ("DMC") until November 3, 1994, at which time plaintiff showed her supervisor a "sex trinkets catalogue" that had been left on a lunch table. Defendant's Statement of Undisputed Material Facts ("Undisputed Facts") ¶ 3. Plaintiff also states that she forwarded a copy of Penthouse magazine, an adult periodical that she found in her work area, to her supervisor the day after she had handed such supervisor the aforementioned catalogue. Richerson Aff. ¶ 15. Soon thereafter, the employees in the Tonawanda and Amherst facilities were told to remove all inappropriate pictures and posters of women from their work areas. Undisputed Facts ¶ 4.
Although plaintiff argues that she continued to be victimized by sex discrimination at her workplace and continued to lodge complaints with her supervisors, her next complaint to a supervisor appears to have been triggered by "verbal abuse" from a particular male co-worker on December 30, 1994. When asked by a supervisor what was wrong, plaintiff replied that she had "been handling it, but *** can't take anymore ***." Viswanathan Aff., filed Dec. 26, 2000, Ex. N at 108. Notably, such complaint to plaintiff's supervisor did not address, or even raise, the allegedly precipitating verbal abuse.
The next identifiable complaint to any supervisor regarding sexual harassment occurred on the morning of January 31, 1995. Plaintiff walked into a the lunch room and noticed the same co-worker sitting between the lockers in his boxer shorts. Plaintiff's Resp. to Def.'s Statement of Undisputed Facts ("Response") ¶ 6(h). Such co-worker then made a "dig" at her by stating that, "[w]hen I get my pants on[,] I'm running down to [the supervisor's] office to tell him." Ibid. Plaintiff thereupon called her supervisor to state that her work environment had become unbearable and that she was taking a vacation day. Ibid.; Richerson Dep. at 234; Statement of Facts ¶ 5. The following day, plaintiff's supervisor called the DMC and asked Herb Williams, a DMC Coordinator, to speak to plaintiff about her complaint. Statement of Facts ¶ 6. Williams contacted plaintiff by telephone February 1, 1995. Id. ¶ 7.
During this telephone conversation, plaintiff refused to name any of the individuals who allegedly were harassing her and told Williams that she did not want to be labeled as a trouble maker. Id. ¶ 8. At a further meeting with plaintiff February 3, 1995, Williams encouraged plaintiff to file a formal internal discrimination complaint with the DMC and to identify employees who were allegedly harassing her. Id. ¶¶ 9-10.
Plaintiff refused to file a formal complaint and told Williams that she needed to talk to her "union rep" before identifying any of her co-workers. Id. ¶ 11; Richerson Aff. ¶ 59.
Less than one month later, Richerson complained to the supervisor of the Transmission and Distribution Department that a male employee had used profanity while looking directly at her. Statement of Facts ¶ 15; Richerson Aff. ¶ 68. Shortly thereafter, Williams again contacted plaintiff and told her he would like a formal complaint filed naming the individuals who were allegedly harassing her. Statement of Facts ¶ 17. In addition, Williams sent plaintiff an internal discrimination complaint form. Id. ¶ 18. Although plaintiff never returned such form, the DMC determined that it would be appropriate to conduct Equal Employment Opportunity training classes for the Buffalo Facilities department and such classes were completed by August 1995. Id. ¶¶ 19-20. However, for reasons unrelated to the present action, such classes would have likely had little impact on plaintiff's immediate working environment inasmuch as she had been injured and laid off in mid-March 1995. Richerson Aff. ¶ 69.
Plaintiff filed a sex discrimination and harassment charge with the New York State Department of Human Rights March 6, 1995 which resulted in a Determination and Order issued in January 1999 that found no probable cause to believe that defendant had engaged in or was engaging in any unlawful discriminatory practices. Statement of Facts ¶¶ 21-22. After the Equal Employment Opportunity Commission adopted such findings, plaintiff commenced the instant action. Id. ¶ 23.
As indicated previously, plaintiff brings a sex-based hostile work environment claim and a disparate-treatment claim based on sex. Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's *** sex ***." 42 U.S.C. § 2000e-2(a). Title VII claims are reviewed in accordance with the framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires that plaintiff first establish a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
"To prevail on a hostile work environment claim, a plaintiff who is harassed by a co-worker must show both (1) a hostile work environment and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). Consequently, defendant will be liable only if it "either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it." Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).
For the purposes of the instant motion, defendant's basic argument is that, even assuming plaintiff has established the existence of a hostile workplace, she cannot show that defendant failed to provide a reasonable avenue of complaint or had knowledge of the harassment but failed to take corrective action. With regard to a reasonable avenue of complaint, it is undisputed that defendant has and had a written policy against sex discrimination and sexual harassment. Plaintiff has testified that she was aware of such policy and has made no argument that this policy was, or is, inherently unreasonable. See Richerson Dep. at 333-334. Where the parties find no common ground, however, is on the issue of whether defendant failed to take appropriate action — i.e., upon learning of plaintiff's complaints, did defendant take suitable measures to combat the alleged sexual harassment?
According to such policy, "[i]ndividuals who believe that they are being sexually harassed, or discriminated against in any other manner prohibited by this policy, should report the situation directly to their supervisor, or, if preferred, to any of the individuals listed [in this policy]." Viswanathan Aff., filed Dec. 26, 2000, Ex. M.
Plaintiff asserts that, although she "seldom explicitly complained to her supervisors about the treatment she received, her co-workers' conduct was general knowledge." Plaintiff's Mem. of Law at 3. Moreover, plaintiff states that, when she did complain to her supervisors, it was not until three months later that formal company action was taken to stop the alleged sexual harassment. Id. at 5. These assertions, however, are unavailing.
Firstly and as evidenced by defendant's response to the "sex trinkets catalogue" incident, there is simply no support in the record for the assertion that defendant waited until January 2001 before acting on plaintiff's complaints. Moreover, there is no support in the record for the assertion that, when instances of sexual harassment were actually brought to the attention of her supervisors, they failed to respond to her complaints. Secondly and insofar as plaintiff seeks to impute to defendant the knowledge of its non-supervisory employees who may have had some awareness of plaintiff's hostile work environment complaints which were never articulated to defendant's supervisory employees, such assertion fails for lack of proof. The principal evidence relied upon in support of this assertion — deposition testimony from three co-workers ___, fails to demonstrate how plaintiff's supervisors were "generally" aware of any incidents of harassment beyond those about which plaintiff had already complained to them. Consequently and because plaintiff has failed to show how defendant either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it, her claim for hostile environment sexual harassment will be dismissed.
Insofar as plaintiff's allegations are premised on disparate treatment, a prima facie case must demonstrate 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." Weinstock, at 42. This last element "may be proven by showing that a man similarly situated was treated differently." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997).
In support of her disparate treatment claim, plaintiff cites a number of allegedly discriminatory incidents. These incidents include being denied "upgrade" work and work location opportunities, being denied the opportunity to work overtime, being denied appropriate work equipment, being denied mileage reimbursement and being excluded from department meetings. See Plaintiff's Mem. of Law at 11-12; Richerson Aff. ¶ 7. Nevertheless, these allegations are all without evidentiary support. For instance, plaintiff never identifies the less-senior male co-workers who were given upgrade work for which she was otherwise qualified to perform or those less senior male co-workers who received transfers to different work locations for which she was otherwise entitled. She merely conclusorily asserts that these incidents occurred. See Richerson Dep. at 110-111; Richerson Aff. ¶ 7(a). Indeed, it is pertinent to note that it is undisputed that plaintiff actually turned down a position as a Utility Mechanic because she did not want to be reassigned from defendant's Tonawanda and Amherst facilities. Statement of Facts ¶ 29. With regard to being denied the opportunity to work overtime, nowhere in plaintiff's papers is it indicated which similarly situated but less senior employees in her department received more favorable treatment. Of the two individuals specifically named, only one person actually worked for defendant and he was not affiliated with plaintiff's department. See Andriatch Aff., sworn to Feb. 2, 2001, ¶ 2. Insofar as plaintiff asserts that she was denied appropriate work equipment and mileage reimbursement based on her sex, such claims fail because she proffered nothing more than conclusory allegations suggesting that any such denial took place. See Viswanathan Aff., filed Dec. 26, 2000, Ex. N at 82 (plaintiff's work diary indicating that she was provided with a "salter for the sidewalks" after plaintiff requested one); id. at 105 (plaintiff's work diary stating "Dave Paletta called to say [she] will be paid mileage"). Finally and insofar as plaintiff claims she was excluded from department meetings, her support for such stems from a conversation that she had with a supervisor in September 1994 wherein plaintiff was told her not to "bother coming *** [to] a short meeting." Id. at 102. Whatever the reason therefor, the undersigned fails to see how such an instruction gives rise to an inference of sex discrimination. If anything, such instruction was given for plaintiff's convenience — i.e., so that plaintiff did not have to leave her workplace and drive to the facility where such meeting was taking place. Consequently and because plaintiff has failed to articulate grounds upon which a prima facie claim of disparate treatment based on her sex may be found, such claim fails.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment of dismissal is granted and that this case shall be closed.