Opinion
99 Civ. 11916 (RLE)
November 26, 2001
Counsel for Plaintiff: Minna Kotkin, BLS Legal Services Corp., Federal Litigation Program, Brooklyn, New York 11201
Counsel for Defendant: Michael J. Volpe, Clifton Budd DeMaria, LLP, New York, New York 10170-0089
OPINION AND ORDER
I. INTRODUCTION
Plaintiff Danuta Bartniak ("Bartniak") filed an amended complaint on April 6, 2000, against her former employer, defendant Cushman Wakefield, Inc. ("CW"), alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. Bartniak claims that she was subjected to a hostile work environment, retaliation, and a constructive discharge during her employment as an office cleaner with CW, on the basis of her sex and Polish national origin. Defendant CW argues that Bartniak's claims are time-barred and/or that she fails to state an actionable claim, and moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, defendant's motion for summary judgment is DENIED.
Bartniak's original complaint was filed on December 9, 1999, but was never served upon defendant.
II. BACKGROUND
Bartniak began working for defendant CW on May 14, 1990, as a temporary night office building cleaner. Plaintiff's Affidavit ("Pl. Aff.") at 2. After a brief break from employment that lasted from October 9, 1990, through May 12, 1991, she was again hired as a temporary employee, and worked in a building located at 235 East 42nd Street. Id .; Defendant's Memorandum of Law in Support of Its Motion for Summary Judgment ("Def. Mem.") at 2. At that building, Nora Perez ("Perez") was a foreperson, who reported to Anka Martinovic ("Martinovic"), the cleaning supervisor. Plaintiff's Deposition Transcript ("Pl. Dep.") at 61; Pl. Aff. at 2. In March 1992, Bartniak was transferred to another building owned by CW, located at 219 East 42nd Street, to clean the sixth and seventh floors, and was offered permanent employment two months later. Def. Mem. at 2. At that building, the supervisor who assigned her overtime work was Jessie Agrelo ("Agrelo"), the head porter of the building, who also reported to Martinovic. Pl. Dep. at 66; Def. Mem. at 2. Martinovic's superior was Richard Parlatore ("Parlatore"), the property manager of both buildings. Def. Mem. at 2. The present action centers on events alleged to have occurred from March 1992 until Bartniak left her job in August 1993. The following description, taken from the parties' pleadings and accompanying sworn documents views the events in the light most favorable to Bartniak, as the party opposing summary judgment.
A. National Origin and Sexual Harassment
1. Agrelo
After Bartniak returned from a vacation to Poland in October 1992, Agrelo began harassing her. Pl. Dep. at 103. Agrelo would give her difficult overtime assignments and started addressing her as "Russian bitch," or "Russian prostitute." Id . at 103, 222. Every day until her last day in August 1993, Agrelo would address her in these terms, sometimes threatening to strangle her. Id . at 103. Bartniak complained to Perez and Martinovic about Agrelo's expletives, and they suggested that she move to another floor. Id . 104, 106. Between October 1992 and August 1993, Bartniak made several complaints about Agrelo's conduct to Parlatore and Grace Ben-Ezra ("Ben-Ezra"), who worked in CW's human resources department. Id . at 161-62.
2. Parlatore
Beginning in April 1992, Parlatore directed Bartniak to "stand lookout" while he went into a room with one of her co-workers, Pashka Zadrima ("Zadrima"), and engaged in sexual conduct. Pl. Aff. at 2. Zadrima and Bartniak were assigned to clean the sixth and part of the seventh floors together. Pl. Dep. at 155. On two occasions between April and September 1992, Bartniak entered the room she was "guarding" to inform Zadrima that she had been assigned overtime by Agrelo. Id . at 69. On both occasions, Bartniak witnessed Parlatore and Zadrima "kissing and hugging each other." Id . at 70. Bartniak saw Zadrima sitting on Parlatore's lap, with her blouse unbuttoned to her waist. Id .
In order to account for his paramour's lost working hours during their rendezvous periods, Parlatore instructed Bartniak to punch-out Zadrima's time card at the end of her assigned shift, although Zadrima would actually leave much earlier with him. Id . at 67-68. Because Zadrima would leave with Parlatore, Bartniak was forced to perform Zadrima's duties, and therefore had to clean the entire sixth floor, and part of the seventh floor by herself. Id . at 155. This routine continued two or three times per week, until Zadrima left the company in August or September 1992. Id . at 152.
After she had walked into the room where Parlatore and Zadrima met, Bartniak complained to Martinovic on three separate occasions about having to "stand guard," punch-out Zadrima's time card, and complete her duties. Id . at 74-76. Although Martinovic said that she would discuss the situation with Parlatore, Bartniak was never informed about any such discussions. Id . On April 30, 1993, during a meeting with Ben-Ezra to discuss other employment problems, see infra, Bartniak made a formal complaint about the incidents involving Parlatore. Id . at 83.
3. Nagi
Towards the end of 1992, Ali Nagi ("Nagi"), a porter employed by CW who brought supplies to the cleaning personnel and reported to Agrelo, began sexually harassing Bartniak. Id . at 163; Def. Mem. at 2. At least twenty-five times, Nagi entered Bartniak's floor to retrieve the recycling paper, pointed to his crotch, and said, "My penis is very strong and very hard." Pl. Dep. at 163-64, 165-66. Nagi told Bartniak that if she would agree to have sex with him, he would ask Martinovic to give her more overtime so that she could earn more money. Id . at 164.
From the beginning of 1993 until the end of Bartniak's employment, Nagi touched her buttocks and grabbed her breasts without her consent. Id . at 165, 168. During that period, he touched her buttocks at least twelve times, and grabbed her breasts four times. Id . at 167. In February 1993, Bartniak reported Nagi's behavior to Martinovic, who promised her that she would discuss it with Parlatore. Id . at 174-75.
In March 1993, Nagi accosted Bartniak while she was cleaning a room on the seventh floor. Id . at 184. He cornered her in the room, unbuttoned her smock, and unzipped his pants to expose himself to her. Id . at 184. He blocked her way so that she could not escape. Id . at 185. Bartniak was only able to extricate herself when a night security guard arrived just outside the door, interrupting them. Id . at 185-86. The guard saw that Bartniak was shaking and crying, and helped her compose herself in the bathroom. Id . at 186.
Afterwards, Bartniak experienced anxiety when deciding to go to work. Id . In April 1993, while Bartniak met with Ben-Ezra about other employment problems, she complained about Nagi's behavior, including the March attack. Id . at 183. Bartniak also complained to Parlatore in May, July, and August 1993 about Nagi's behavior. Id . at 194. Parlatore told her that he would speak to Nagi. Id . at 197.
In August 1993, Nagi again confronted Bartniak in a room as he had in March. Id . at 198. Bartniak left the floor crying and shaking, and tried to find Martinovic or Agrelo. Id . When she was unable to find either person, a security guard called Perez and made an appointment for Bartniak to meet with Parlatore the next day. Id . After five days, Bartniak again met with Ben-Ezra to discuss her complaints. Id . at 200. Bartniak's last day of work was August 13, 1993. Id . at 201.
B. Complaint to the New York City Commission on Human Rights
On August 23, 1993, Bartniak, went to the office of the New York City Commission on Human Rights ("NYCCHR") to file a charge of discrimination. Id . at 216; Def. Mem. at 5. Bartniak was accompanied by her friend, Lydia Rodak ("Rodak"), who helped Bartniak with the language disparity since Bartniak neither speaks nor understands English proficiently. Id . The two women had a long conversation with Cathy Gilchrist ("Gilchrist"), an NYCCHR investigator at the time, who wrote several notes then left the room to call Ben-Ezra. Id .; Rodak Deposition ("Rodak Dep.") at 64. When she returned, she told the women that she would mail the complaint report or call about the complaint. Id . at 75. She told them that she would "investigate the complaint, and that NYCCHR would inform the EEOC that the case was filed." Pl. Aff. at 5. Bartniak and Rodak were under the impression that Gilchrist "was taking the complaint," Rodak Dep. at 65, and that Bartniak had filed the complaint during that meeting. Pl. Aff. at 4, 5.
By the end of 1993, Bartniak had still not received any information from Gilchrist, and began to make inquiries regarding her complaint. Id . at 7. With the help of different interpreters, Bartniak made several fruitless efforts during the next year to check on the status of her NYCCHR complaint. Id . When her interpreters called the NYCCHR, they were told to wait. Id . During the Fall of 1995, Bartniak went to the Equal Employment Opportunity Commission ("EEOC") to investigate the status of her complaint, but was again told to wait because she "would be contacted when the investigation was complete." Id . The EEOC told Bartniak that it "could not take the claim since NYCCHR had already accepted it." Glinska Deposition at 3. On December 3, 1996, after Bartniak asked a congressperson to intercede on her behalf, Randolph Wills ("Wills"), a managing attorney at NYCCHR, wrote Bartniak a letter to schedule an appointment "for the purpose of discussing [her] claim." Def. Mem. at Exh. E.
In accordance with the NYCCHR's policy of accepting untimely complaints "where a question is raised as to whether a complainant filed or attempted to file an identical timely complaint with the Commission[,]" Wills authorized the filing of Bartniak's complaint. Id . at Exh. F. On December 11, 1996, Bartniak met with Wills to re-file her complaint, and insisted on having it completed while she was there. Pl. Aff. at 8-9. She received a final decision from NYCCHR on July 22, 1999. Id . at 9.
III. DISCUSSION
A. Standard for Summary Judgment
Summary judgment should 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." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the party moving for summary judgment has met its initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to bring forth specific facts to show that there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 250 (1986). Additionally, the court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id . at 252; see also Pauling v. Sec. of the Dept. of the Interior , 160 F.3d 133, 136 (2d Cir. 1998).
In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. Chambers v. TRM Copy Centers Corp ., 43 F.3d 29, 36-37 (2d Cir. 1994); see also Knight v. United States Fire Ins. Co ., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied , 480 U.S. 932 (1987). Summary judgment should be granted where no reasonable trier of fact could find in favor of the nonmoving party, H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc ., 879 F.2d 1005, 1011 (2d Cir. 1989), thereby "dispos[ing] of meritless claims before becoming entrenched in a frivolous and costly trial." Donahue v. Windsor Locks Bd. of Fire Comm'rs , 834 F.2d 54, 58 (2d Cir. 1987). Furthermore, when the case involves a claim of discrimination, the court should view the record in its totality, rather than in a piecemeal fashion. Fitzgerald v. Henderson , 251 F.3d 345, 360 (2d Cir. 2001) ( citations omitted ).
B. Timeliness of Administrative Action
Plaintiffs raising claims under Title VII are required to "exhaust available administrative remedies in a timely fashion." Briones v. Runyon , 101 F.3d 287, 289 (2d Cir. 1996). In states such as New York, which has a local agency with the authority to address charges of employment discrimination, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days. 42 U.S.C. § 2000e-5(e)(1); see also Hourahan v. Ecuadorian Line, Inc ., 1997 WL 2518, at *3 (S.D.N.Y. Jan. 3, 1997); Johnson v. New York City Bd. of Educ ., 2000 WL 1739308, at *5 (E.D.N.Y. Oct. 10, 2000) ( citing 42 U.S.C. § 2000e-5(e)). "The running of this limitations period is tolled until the last discriminatory act in furtherance of a continuous practice and policy of discrimination." Id . ( citing Miller v. International Tel. Tel. Corp ., 755 F.2d 20, 25 (2d Cir. 1985), cert. denied , 474 U.S. 851 (1985).
The Supreme Court has made clear that "`[f]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.'" Downey v. Runyon , 160 F.3d 139, 145 (2d Cir. 1998) ( quoting Zipes v. Trans World Airlines, Inc ., 455 U.S. 385, 393 (1982). The procedural requirements of Title VII have been equitably tolled by courts "when [. . .] a court or agency has led a plaintiff to believe that he or she has done everything required[.]" Hourahan , 1997 WL 2518, at *5 ( citing Hladki v. Jeffrey's Consolidated, Ltd ., 652 F. Supp. 388, 392 (E.D.N.Y. 1987)); see also South v. Saab Cars USA, Inc ., 28 F.3d 9, 11 (2d Cir. 1994) ("The doctrine of equitable tolling has also been applied where the court has led the plaintiff to believe that she had done all that was required of her[.]"). A plaintiff seeking to equitably toll a period of limitations must, however, act with reasonable diligence throughout the period she seeks to toll. Johnson v. Nyack Hosp ., 86 F.3d 8, 12 (2d Cir. 1996) ( citing Dodds v. Cigna Secs., Inc ., 12 F.3d 346, 350 (2d Cir. 1993), cert. denied , 511 U.S. 1019 (1994)); see also Davis. Metropolis Country Club , 145 F. Supp.2d 321, 324 (S.D.N.Y. 2001).
CW argues that Bartniak's claims are time-barred because the EEOC and the NYCCHR only have files relating to Bartniak's complaint that date back to December 11, 1996, more than three years after the alleged discriminatory events occurred. Def. Mem. at 6. CW does not dispute the fact that Bartniak went to the NYCCHR in August 1993, but argues that for "whatever reason — Bartniak's misunderstanding of the process or her conscious decision not to file a complaint — Bartniak did not file any administrative charge of discrimination against Cushman until December 11, 1996, long after her time to do so had lapsed." Id . at 9. In response, Bartniak argues that principles of equitable tolling are applicable, and that the statute of limitations should be tolled from the time she believed that she had filed a complaint in August 1993. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 3.
In support of its motion, CW cites several cases, including Cosgrove v. Federal Home Loan Bank of New York , 1999 U.S. Dist. Lexis 7420 (S.D.N.Y. March 22, 1999), which it refers to as a "remarkably procedurally similar case." Def. Mem. at 9. CW's reliance on Cosgrove is unavailing. While there are similarities, this case is distinguishable in important respects. While the plaintiff in Cosgrove knew that no complaint was on file and sat on her rights, Bartniak made several attempts between 1993 and 1996 to follow-up on the status of her claim by calling NYCCHR and the EEOC. Pl. Aff at 7. Bartniak, or interpreters calling on her behalf, were consistently told by the agencies that she needed to wait for the investigation to be completed. Id .; Glinska Deposition at 3. In viewing the facts, inferences therefrom, and ambiguities in a light most favorable to the nonmovant, see Anderson , 477 U.S. at 250, the Court finds it reasonable to infer that Bartniak was led by the agencies to believe that she had done everything required of her to file a complaint in August 1993. Hourahan , 1997 WL 2518, at *5 ( citing Hladki , 652 F. Supp. at 392); see also Saab Cars , 28 F.3d at 11.
Additionally, unlike in Cosgrove where the plaintiff never re-filed her complaint with the agency, 1999 U.S. Dist. Lexis 7420, at *63-64, Bartniak promptly went to the agency to re-file her complaint just days after she received a letter from the NYCCHR instructing her to follow-up on her claim. Pl. Aff. at 8-9. The Court finds that Bartniak's efforts to check on the status of her claim, as well as her prompt re-filing of the complaint indicate that she acted with reasonable diligence throughout the period she seeks to toll. Johnson , 86 F.3d at 12 ( citing Dodds , 12 F.3d at 350 cert. denied , 511 U.S. 1019 (1994)); see also Davis , 145 F. Supp.2d at 324; Hourahan , 1997 WL 2518, at *6 (court refused to permit equitable tolling because plaintiff failed to act diligently in waiting five years to contact the NYCCHR about her charge).
In arguing against the application of equitable tolling, CW contends that tolling is improper because Bartniak was represented by counsel during much of the period during which she could have filed a timely complaint. Defendant's Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment ("Def. Rep. Mem.") at 3. CW maintains that Bartniak was represented by two different attorneys, Jackson Chin and Linda Gail Bartlett, during the period of filing, and thus, should be precluded from using equitable tolling. Id . at 3-4. At best, however, the record is inconclusive on this issue, and Bartniak denies that she was ever represented by counsel. Pl. Dep. at 219; Pl. Aff. at 3, 6-8. Rather, Bartniak claims that she made brief consultations with attorneys, but was never represented in a formal capacity.
Although there is evidence in the record to suggest that Bartniak may have had attorneys act on her behalf during the critical filing period, there is also evidence that suggests that Bartniak's meetings with the attorneys were mere preliminary consultations devoid of a continuing attorney-client relationship. Construing the evidence most favorably to Bartniak, the Court finds that Bartniak's consultations with counsel during the filing period did not rise to the level of representation that could preclude application of equitable tolling. Thus, summary judgment on this issue is inappropriate.
Defendant attempts to make much of the fact that one or more of the attorneys used the term "represent" in correspondences to CW. While it is possible that these attorneys may have "represented" Ms. Bartniak for the purpose of writing a letter, there is no indication of a contemplated continuing relationship.
In permitting the limitations period to be tolled from August 23, 1993, this Court also finds support in the fact that the NYCCHR considered Bartniak's case to be a "rare circumstance where a question is raised as to whether a complainant filed or attempted to file an identical timely complaint with the Commission." Def. Mem. at Exh. F. From the NYCCHR's actions in accepting Bartniak's complaint, the Court finds it reasonable to infer that agency error — by misleading Bartniak into thinking that she had filed a complaint in 1993 — caused Bartniak's failure to file a timely complaint. Federal "`courts have consistently applied principles of equitable tolling to prevent the party from being penalized for the Commission's mistakes.'" Bethelmie v. New York City Health Hosps. Corp ., 2001 WL 863424, at *3 (S.D.N.Y. July 31, 2001) ( quoting Jackson v. Richards Med. Co ., 961 F.2d 575, 587 n. 11 (6th Cir. 1992); see also Cooper v. Wyeth Ayerst Lederle , 34 F. Supp.2d 197, 202 (S.D.N.Y. 1999) ("agency errors should not work to a claimant's detriment"); Sharpe v. American Express Co ., 1989 WL 52324, at *2 (S.D.N.Y. May 8, 1989) (The court applied equitable tolling and denied defendant's motion for summary judgment because the EEOC failed to process the plaintiff's complaint in accordance with its own guidelines.).
For the reasons stated above, the Court finds that the present facts warrant the application of equitable tolling. Thus, because Bartniak's complaint with the NYCCHR should be considered filed as of August 23, 1993, her claims are not time-barred, and CW's motion for summary judgment on this issue is DENIED.
C. CW's Arguments in Favor of Its Motion for Summary Judgment
The remaining grounds upon which CW moves for summary judgment are the following: (1) assuming, arguendo, that Bartniak filed her EEOC charge on August 23, 1993, her claims that accrued 300 days prior to the filing of her administrative charges must be dismissed; (2) assuming, arguendo, Bartniak's claims regarding Parlatore are not time-barred, she fails to state a claim for sexual harassment against him; and (3) Bartniak fails to state a claim for national origin discrimination. Def. Mem. at i. Grounds (1) and (2) above are related in that the claims CW refers to in ground (1) as having accrued 300 days prior to Bartniak's August filing are those related to Parlatore allegedly making her "stand guard" while he engaged in sexual conduct with her co-worker. Id . at 11; Def. Rep. Mem. at 7. In ground (1), CW argues that because those incidents with Parlatore had ceased by August 1992, more than 300 days before the filing of her charge in August 1993, her claims that relate to Parlatore are time-barred. Def. Mem. at 10-11. In ground (2), CW argues that Bartniak fails to state a claim of sexual harassment against Parlatore because "she cannot establish that [his] conduct was based on her sex or that it affected a term or condition of employment." Id . at 11; Def. Rep. Mem. at 9-10. Ground (3) above is premised on the assumption that Bartniak's claim of national origin discrimination is a disparate treatment claim. Def. Mem. at 14.
After reviewing the record, however, the Court finds that CW has misconstrued the nature of Bartniak's claims. Bartniak's pleadings indicate that her claim of sexual harassment is not entirely premised upon Parlatore's conduct. Rather, her claim is premised upon a number of different situations occurring between March 1992 and August 1993, involving various employees of CW including: Parlatore, Agrelo, Nagi, and Ben-Ezra. Even if the Court were to disregard the alleged incidents involving Parlatore that occurred between April and August 1992, Bartniak's claim as against CW — the only named defendant in this action — would not be subject to dismissal under a summary judgment standard. Because Parlatore is not a named defendant in this action, Bartniak need not meet the burden of demonstrating a prima facie case of sexual harassment against him individually; she need only establish the threshold requirements for a claim against CW. In its motion for summary judgment, CW has made no arguments challenging Bartniak's ability to to do so. Therefore, viewed in this context, CW is making what amounts to an evidentiary argument that this Court need not decide at this time.
The nature of Bartniak's claim of national origin discrimination likewise appears to have been misconstrued by CW, whose arguments in favor of summary judgment attack Bartniak's ability to demonstrate a claim for disparate treatment. Def. Mem. at 14. Contrary to what lies at the crux of CW's arguments, Bartniak's claim of national origin discrimination is premised on a theory of hostile work environment, not disparate treatment. Pl. Mem. at 20.
Because CW has failed to make arguments that accurately and directly address the claims brought by Bartniak, its motion for summary judgment on these remaining issues is DENIED.
IV. CONCLUSION
Having decided that CW has failed in its burden to show that no triable issues of fact exist, and that they are entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c); see also Celotex , 477 U.S. at 322, the Court DENIES defendant's motion for summary judgment in its entirety.