Opinion
99-CV-1282 (NPM/GLS)
September 23, 2001
Delorenzo, Pasquariello Weiskkopf, P.C., Scott Lieberman, ESQ., Schenectady, NY, for plaintiff.
Maynard, O'connor, Smith Catalinotto, LLP, Bruce A. Bell, Esq., Thomas G. Daley, Esq., Albany, NY, for defendants.
MEMORANDUM-DECISION AND ORDER
In this action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., plaintiff Stephanie Williams alleges defendant William M. Davis subjected her to a hostile work environment, and that Davis and defendant Board of Hudson River/Black River Regulating District (the Board) unlawfully retaliated against her when she complained of the alleged sexual harassment.
Davis and the Board now bring this motion for summary judgment, contending that the allegations as stated by Williams are insufficient to support a hostile work environment claim for sexual harassment, and that Williams has failed to make out a prima facie retaliation claim. Williams opposes the motion. For the reasons that follow, the motion is denied.
Although defendants style this motion as one made pursuant to both Fed.R.Civ.P. 12(b) and 56(b), both parties treat the motion solely as one for summary judgment. This court does the same.
BACKGROUND
The following facts are taken in the light most favorable to Williams and, thus, may not necessarily reflect the facts that will found at trial. In March 1998, Williams began working at the Hudson River/Black River Regulating District's Mayfield office as a Confidential Secretary/Personal Assistant to Davis. Williams's responsibilities included handling the mail, typing and keeping Davis's appointments schedule. Additionally, Williams's job duties required her to attend lunches and board meetings with Davis, although Williams claims that Davis misled her with respect to her job responsibilities by unilaterally deciding that she would only work for him when, in reality and unbeknownst to her, the above position required her to assist others in the office (see Williams Affid., Dkt. No. 31, ¶ 9).
According to Williams, Davis's sexual harassment started shortly after she began working for him. The gist of Williams's allegations is that while Davis never asked her to engage in sexual acts, his actions implicitly constituted such a request. Specifically, Williams claims that Davis repeatedly asked her out on dates, telling her it would benefit her career to be seen with him (see id., ¶ 14). Williams alleges that Davis asked her to his boat club, and that other female employees never received similar invitations (see id., ¶ 17). Similarly, Williams alleges that Davis invited her to Yankees games and, on at least one occasion, rescinded the invitation and gave the tickets to his nephew when she requested to bring an additional person along (see id.). Williams also alleges that Davis "pressured" her to use the hot tub at his house, purportedly telling her that "clothing was optional" (see id., ¶ 16). Davis allegedly alluded to several sexual escapades with other women by stating to Williams that he was exhausted from all the "exercise" the previous night, and that he and his companions had watched the sun rise from the hot tub (see id.). Williams claims that when she refused to go out with Davis, he threatened her several times, stating that it was a mistake to hire her, that she wasn't giving him what he wanted, and that he could prevent her from working in New York (see id., ¶¶ 15, 20). Williams adds that she never told Davis to stop asking her out because she was afraid of losing her job (see id., ¶ 15).
Williams additionally alleges that Davis: started rumors at work that they were sexually involved (see id., ¶¶ 24, 25), asked coworkers personal questions about her (see id., ¶ 19), stated to others that he knew what food and drink she preferred (see id., ¶ 22), and, in order to give the impression they were a couple, touched her face, hair, back, shoulders, knees and/or clothes at the office or at work-related functions (see id.). Williams concedes that Davis did not touch her in a "sexually suggestive manner," but contends that he never had such a chance because she would quickly move away from him whenever he began touching her (see Pl's Response to Def's Statement of Material Facts Not In Issue, Dkt. No. 33, ¶ 8). Williams also alleges that Davis repeatedly asked her to record a message on his answering machine stating, "we are not at home" (see Williams Affid., Dkt. No. 31, ¶ 29). On several occasions, Davis allegedly indicated to Williams, who is single and has three children, that if he married a woman with three children he could remodel his house to accommodate the children, that he was willing to adopt children, and that Williams matched his description of the perfect woman (see id., ¶¶ 27, 28). Williams also alleges that on several occasions Davis became visibly upset during work-related functions when she spoke to other men (see id., ¶ 31), and on one occasion told her she no longer needed to attend meetings — which was part of her job description — after he saw her speaking with another man (see id., ¶ 10). Davis also allegedly pulled and reviewed Williams's, but no other employee's, cell phone records (see id., ¶ 30). Davis denies that he subjected Williams to any sexual harassment.
In the Fall of 1998, Davis, apparently with Williams's blessing, lobbied defendant Board to increase Williams's salary and change the title of her position. On October 19, 1998, the Board abolished the position of Confidential Secretary/Personal Assistant and appointed Williams to the newly created position of Executive Assistant. The Executive Assistant position presented Williams with new duties and responsibilities — including preparing budgets and minute reports of meetings, training personnel, and keeping certain records and documents. In January 1999, Davis requested the Board increase Williams's salary and, in April 1999, she received a salary increase of $1000.00. Williams alleges that when she questioned Davis as to why she did not receive her raise in January 1999, Davis indicated that the Board was "a little mad" and "did not want to do anything" because they thought she and Davis were having an affair (see id., ¶ 13). Williams alleges that a Board member later informed her that she did not receive a raise in January 1999 due to her short duration of employment with the District (see id.).
On April 7, 1999 and June 29, 1999, Williams complained to Board member Barbara Cumm that she believed Davis was sexually harassing her. Williams also spoke with Board members Anne McDonald and George Scaringe about the alleged harassment. Williams contends that no sexual harassment policy existed during the period of Davis's alleged sexual harassment (see id., ¶ 5). At some point in April, Williams also filed a complaint with the Equal Employment Opportunity Office (EEOC) regarding Davis's alleged behavior (see Williams Dep., Dkt. No. 26, Exh E, at 235). Thereafter, in June 1999, Davis gave Williams an above average evaluation.
On July 16, 1999, Davis notified Williams that starting on July 19, 1999, she should report to a new supervisor and perform her job duties out of the Albany office. The memorandum states that Davis would continue to direct Williams's activities thorough her new supervisor (see Davis Mem.(7-16-99), id., Exh D). Williams subsequently received a right-to-sue letter from the EEOC. In August 1999, she commenced this action and defendants answered.
Davis has since resigned from his position with the District. Williams continues to work at the District, earning approximately $35,000 per year. She claims, however, that her new position represents a significant change in the terms and conditions of her employment (see Pl's Response to Def's Statement of Material Facts Not In Issue, Dkt. No. 33, ¶ 14).
DISCUSSION
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994) (quoting Fed.R.Civ.P. 56(c)). The court draws all factual inferences and resolves all ambiguities in favor of the nonmoving party, see Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997), and the burden rests on the moving party to demonstrate that no genuine issue exists respecting any material fact. See Gallo, 22 F.3d at 1223 (citation omitted). With respect to employment discrimination cases, this Circuit has cautioned that:
[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden at trial . . . . There must either be a lack of evidence in support of the plaintiff's position, . . ., or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error.
Danzer v. Norden Sys. Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted).
As a threshold matter, defendants argue that affidavits submitted by Williams in opposition the motion for summary judgment do not raise triable issues of fact because they contain allegations which contradict Williams deposition testimony. As defendants correctly state, "a party who has testified to a given fact in h[er] deposition cannot create a triable issue merely by submitting h[er] affidavit denying the fact." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) (citing Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991)). But the above rule only applies where the affidavit and the testimony actually conflict. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (stating that a party may show a triable issue of fact exists when subsequent sworn testimony "amplifies or explains, but does not merely contradict" prior testimony).
Despite defendants' contrary conclusion, Williams's testimony regarding certain statements allegedly made by Davis — that it was a mistake to hire her and that he could make it so that she did not work in the state again — do not directly contradict her subsequent affidavit. In addition to relating other instances where Davis allegedly made the above statements (see Williams Dep., Dkt. No. 26, Exh E, at 74, 97-100), Williams testified as follows:
Q. As you sit here today do you recall whether that statement was made —" could see to it someone wouldn't work in the state" was made as a result of you not agreeing to accompany him somewhere?
A. I could say that he was referring to that, yes, because I know how it was.
Q. That's your inference
A. That's my inference.
(Id. at 216). In her affidavit, Williams states, "Mr. Davis made these threats directly to me and as a result of my not accompanying him when he requested same (see Williams Affid., ¶ 15). The passage of time has obviously left Williams less equivocal about the circumstances surrounding Davis's alleged statements. But such bolstering, which defendants are free to explore at trial, does not present a direct conflict between her prior testimony and her affidavit.
Likewise, Williams's additional prior testimony — that before she commenced the lawsuit neither Davis nor the District changed the conditions of her employment, took away any responsibilities or demoted her, is not contradicted by her subsequent affidavit. The testimony reads:
Q. At any time did Mr. Davis alter, or anybody at the District, alter the conditions of your employment
A. What do you mean by "alter"?
Q. Did they change while you were working for Mr. Davis? Did he take away responsibility? Did he demote you?
A. No.
(see Williams Dep., Dkt. No. 26, Exh E, at 265). The affidavit states that "although I state in my deposition that my duties did not change while I was working for Mr. Davis, as a result of my complaint and as a result of my being "reassigned" to Mr. Brewer, I lost certain privileges that I once had" (see Williams Affid., ¶ 34). The affidavit here acknowledges the deposition testimony, and merely seeks to clarify Williams's answer to the above compound question. As such, it does not directly conflict with the deposition testimony or impermissibly seek to create triable issues of fact.
In response to defendants' contention, the court has not considered any portion of the Williams and Scribner affidavits which contain hearsay and/or irrelevant facts.
The court now turns to the application of the above summary judgment standard to the facts of this case.
A. Hostile Work Environment
Title VII prohibits an employer from discriminating against any individual on the basis of sex with respect to her "compensation, terms, conditions, or privileges" of employment. 42 U.S.C. § 2000e-2(a)(1). To establish a claim under a hostile work environment theory, a plaintiff must show (1) that "the workplace is permeated with `discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993)), and (2) a specific basis for imputing the conduct that created the hostile environment to the employer." Howley, 217 F.3d at 154 (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The alleged conduct must be severe and pervasive enough "to create an environment that would reasonably be perceived, and is perceived, as hostile or abusive." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks and citations omitted).
Whether an environment is "hostile" or "abusive" depends on the totality of circumstances, see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir. 1998) (citation omitted). In assessing whether a hostile environment exists, courts consider a variety of factors, including (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether the conduct was physically threatening or humiliating as opposed to a mere offensive utterance, (4) whether the conduct unreasonably interfered with the employee's work performance, and (5) what psychological harm, if any, resulted to the plaintiff. Quinn, 159 F.3d at 767-68 (quoting Harris, 510 U.S. at 23; 114 S.Ct. at 371). By its nature, a hostile environment analysis does not lend itself to a mathematically precise test and "there is neither a threshold magic number of harassing incidents that give rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (citation and internal quotation marks omitted). Title VII, however, does not reach "genuine but innocuous differences in the ways men and women routinely interact with members of . . . the opposite sex," and "prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1002-03 (1998). Rather, the statute "forbids only behavior so objectively offensive as to alter the `conditions' of the victim's employment." Id.; 118 S.Ct. at 1003.
Defendants argue that Davis's conduct was not sufficiently severe or pervasive enough to establish a hostile work environment. Defendants assert that no admissible evidence exists that Davis "continually" made inappropriate sexual remarks or engaged in impermissible behavior, and that Davis's conduct is not as severe as other cases alleging a hostile work environment. Defendants additionally contend that Williams's allegations fail to prove that Davis's harassing conduct was gender based. Defendants assert that Williams's allegations, even if accepted as true, amount to
essentially being asked out on dates and being asked to attend other social events, being told by Davis the [sic] he had the power to keep people from working in the State and could give and take jobs away, Davis implying stories about sexual experiences, telling plaintiff he would marry a woman matching her description, telling or implying to other people that they were involved, becoming upset, touching plaintiff's hair, back and shoulder's for short periods in a non-sexually aggressive way and asking plaintiff to record an answering machine message which said "we're not home"
(Def's Reply Mem. of Law, at 5). Defendants further argue that Davis's alleged behavior was not particularly offensive or humiliating, that Williams was never physically threatened, and that the alleged conduct did not interfere with Williams's job duties.
Williams counters that Davis's conduct was sufficiently severe and pervasive to survive this summary judgment motion. When taken as whole, Williams argues, the record raises triable issues of fact with respect to whether she was subjected to a hostile work environment.
Although a close call, this court agrees with Williams that the record raises triable issues of fact regarding the severity and pervasiveness of the alleged harassment that took place while she was working for Davis. As stated earlier, liability as a matter of law in hostile work environment cases is not established by any "magic number" of harassing incidents. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d at 439. As recited in the factual history above, Williams alleges numerous incidents where Davis implicitly and inappropriately injected sex into the workplace. Crediting Williams's testimony regarding the type of ambiguous conduct engaged in by Davis, a trier of fact may conclude that the workplace was permeated with gender-based hostility. Moreover, viewing the totality of Williams's allegations, a fact finder could further determine that her work environment was both "`objectively and subjectively offensive' such that `a reasonable person' would have found it hostile and abusive `and one that the victim did perceive to be so.'" Cady v. Cortland, 96-CV-1229, 2000 WL 1456285 (N.D.N.Y., Sept. 19, 2000) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275 (1998)). Although a factfinder may well conclude that Williams was not subjected to a hostile work environment, this court cannot say as a matter of law that the record evidence compels only that result. Accordingly, summary judgment is inappropriate here on the hostile work environment claim.
The court notes that defendants make no argument on this motion regarding the second element of a hostile work environment claim — i.e., that a specific basis exists for imputing the conduct that created the hostile work environment to the employer. Both Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998) establish that an employer is presumed absolutely liable where the harassment is perpetrated by the victim's supervisor; although the employer may interpose an affirmative defense to rebut that presumption.
B. Retaliation
Title VII provides that it "`shall be unlawful employment practice for an employer to discriminate against any of its employees . . . because [such employee] has opposed any practice made unlawful practice by this subchapter.'" Richardson v. New York State Dep't of Corr. Serv., 180 F.3d at 443 (quoting 42 U.S.C. § 2000e-3(a)). Williams claims that defendants violated the above provision by retaliating against her after she complained to the Board about Davis's alleged sexual harassment and filed charges against him.
Retaliation claims are evaluated under the burden shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See 180 F.3d at 443 (citation omitted). In the context of a summary judgment motion:
the plaintiff must first demonstrate a prima facie case of retaliation, after which the defendant has the burden of pointing to evidence that there was a legitimate, nonretaliatory reason for the complained of action. If the defendant meets its burden, the plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.
Id. (citing Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998)).
In order to establish a prima facie claim of retaliation under Title VII, an employee must show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Quinn v. Green Tree Credit Corp., 159 F.3d at 769 (citation omitted).
Williams complaint of sexual harassment to the Board was undisputedly protected activity. Defendants briefly argue that Williams does not state a valid retaliation claim — primarily contending that she fails to show any adverse employment action on this record. Defendants assert that Williams fails to allege that she lost any salary, benefits, title or material responsibilities of her job as a result of the reassignment. Williams counters that the Albany reassignment adversely affected the terms and conditions of her employment in that she has lost certain freedoms and perks, has different responsibilities, and has further to travel for work.
"Adverse employment action" in Title VII cases is not defined "solely in terms of job termination or reduced wages and benefits," and "less flagrant reprisals by employers may indeed be adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citation omitted). However, "not every unpleasant matter short of [discharge or demotion] creates a cause of action for retaliatory discharge." 108 F.3d at 466 (citation omitted). An employee suffers an "`adverse employment action' if she endures a `materially adverse change in the terms and conditions of her employment.'" Richardson v. New York State Dep't of Corr. Serv., 180 F.3d at 446 (citation omitted). Because no bright-line rules exists, courts "must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" Wanamaker, 108 F.3d at 466.
As stated above, Williams testified that she now performs different job duties and that certain perks she once had, such as phone privileges and lunch outside the office, are now curtailed. Specifically, Williams states that she never was responsible for answering telephones or performing basic secretarial duties when she worked solely for Davis, and that she is now "responsible for answering phones, typing letters, filing and in general basic secretarial duties with regard to the entire office" (see Williams Affid., Dkt. No. 31, ¶ 34). Given the above evidence, this court concludes that Williams's transfer to Albany constitutes a sufficiently adverse or disadvantaging employment decision. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d at 443 (holding that transfer and reassignment involving different job responsibilities and a move to a position involving contact with the prisoner population, constituted an adverse employment decision); see also de la Cruz v. New York City Human Res. Admin. Dep't of Social Servs., 82 F.3d 16, 21 (2d Cir. 1996) (deeming transfer to comparable position with no change in pay but different job responsibilities to constitute adverse employment decision).
Defendants make no argument with respect to the last element of Williams's prima facie retaliation claim — whether a causal connection exists between the protected activity and the adverse employment action. In the absence of any argument, and given the timing of Williams's EEOC charge and complaints to the Board regarding Davis's alleged sexual harassment, the court finds sufficient evidence also exists that the Albany transfer was causally related to Williams's engagement in protected activity.
Williams has thus established a prima facie claim of retaliation. The burden now shifts to defendants to articulate a legitimate non-discriminatory reason why the above action was taken. Defendants simply state, without more, that Williams's reassignment was designed to alleviate her situation. This lone statement, however, ignores that Davis remained Williams's ultimate supervisor. On this motion, at least, defendants have not met their burden of production and summary judgment is thus inappropriate on the retaliation claim.
CONCLUSION
For the above reasons, defendants' motion for summary judgment is DENIED.
IT IS SO ORDERED.