Summary
granting summary judgment where EEOC charge alleged only discrimination in the form of onerous work conditions and unjustified complaints about plaintiff's work while lawsuit alleged unwanted touching, exposure to pornography, obscene phone calls, and other matters
Summary of this case from OKON v. APPIAOpinion
96 Civ. 7745 (TPG)
October 11, 2000
OPINION
Plaintiff pro se Anna Castro brings this employment discrimination action against her former employer, the New York City Department of Sanitation ("DOS"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff filed charges with the Department of Sanitation's Equal Employment Opportunity office ("EEO") and with the Equal Employment Opportunity Commission ("EEOC") on October 28, 1993 and September 2, 1994, respectively. Both charges were dismissed after investigation as being without factual basis. Plaintiff filed the present action on October 11, 1996. Defendant has moved for summary judgment. The motion is granted and the action is dismissed.
Facts Chronology of Plaintiff's Employment
The following description is taken from plaintiff's complaint, plaintiff's letters and exhibits in opposition to defendant's motion for summary judgment, defendant's affidavits in support of its motion for summary judgment, and defendant's Rule 56.1 statement, which plaintiff has not responded to.
On August 9, 1993, plaintiff was appointed a probationary sanitation worker in the DOS. The probationary period was one year. On August 20, 1993, plaintiff was assigned to work at the Manhattan District 8 ("M8") garage.
Plaintiff had difficulties on the job beginning early in her employment with DOS. During the course of plaintiff's employment at M8 and later in Manhattan District 7, she was notified by her superiors on numerous occasions of deficiencies in her work. These notifications took the form of counseling sessions, letters of warning and complaints. The latter become part of the employee's permanent record. Plaintiff, like all probationary DOS employees, was subject to a performance evaluation every three months during her year of probation. Probationary employees are given an overall rating of satisfactory or unsatisfactory for each of these evaluations.
Plaintiff was frequently assigned to "basket duties." Basket duty requires sanitation workers to empty all the public garbage baskets on the street corners of a given route. Beginning early in her employment, plaintiff's supervisors found that plaintiff failed to properly follow the proper procedures for performing basket duties. The DOS's protocol for performing basket duties, which must be followed by all sanitation workers, calls for the sanitation worker to ride the truck from basket to basket. At each basket, the sanitation worker must drag the basket from its location to the truck and, leaning the basket against the truck's hopper, tip the basket so that the trash falls from the basket into the hopper. DOS's procedure prohibits "scalping" baskets, or removing trash by hand and placing it in the hopper. DOS's procedure also requires that every basket be tipped into the hopper, even those that are not full of trash. All sanitation workers are trained in the proper techniques for performing basket duty. The complaints issued against plaintiff by her supervisors state that she refused to ride the truck from corner to corner, resulting in delays and incomplete basket routes. The complaints also state that plaintiff was often observed "scalping" baskets. Plaintiff was counseled several times and received many complaints throughout her employment regarding her failure to complete her assigned basket route and her failure to follow the proper procedure in emptying baskets.
Plaintiff received unsatisfactory ratings on performance evaluations of her first and second three-month periods, August 9 through November 8, 1993, and November 9, 1993 through February 8, 1994. After each evaluation, the superintendent of District 8 requested that she be transferred. However, these requests were not granted and plaintiff was not transferred.
On October 28, 1993, plaintiff filed a charge with DOS's Equal Employment Opportunity office ("EEO") alleging sex discrimination. In this charge, plaintiff alleged that beginning on approximately September 24, 1993, while assigned to M8, she was issued complaints for lack of productivity to an extent not suffered by male employees and was assigned to basket duties to test her ability and productivity to an extent that male workers did not experience. She also alleged that she observed pornographic material on the DOS premises. The EEO investigated plaintiff's charge. On December 9, 1994, the EEO Director wrote a memorandum stating that "[w]e have completed the investigation of the above captioned complaint. The facts do not support Ms. Castro's allegations of discriminatory treatment." A copy of this memorandum was sent to plaintiff.
On March 11 and March 16, 1994, the Manhattan Borough Superintendent of DOS and the Personnel Management Division of DOS both recommended plaintiff for termination. On April 14, 1994, the Evaluation Review Board ("ERB") met to discuss proposed personnel actions against a number of probationary employees, including plaintiff. The ERB considered the recommendations that plaintiff be terminated, but decided instead that she should be transferred to another district to be reviewed by other supervisors. On May 2, 1994, plaintiff was transferred to Manhattan District 7. However, she continued to receive complaints for failure to complete basket routes and other deficiencies.
On July 26, 1994, the ERB met again to discuss proposed personnel actions against probationary employees, including plaintiff. The ERB considered a recommendation of the Bureau of Cleaning and Collection (the Bureau of DOS within which plaintiff worked) that plaintiff be terminated due to her "unsatisfactory performance." The ERB noted that following plaintiff's transfer, she continued to receive complaints for the same types of deficiencies for which she had received complaints previously. Nevertheless, the ERB decided not to terminate plaintiff and instead to extend plaintiff's probationary period.
On September 2, 1994, plaintiff filed a charge with the EEOC alleging race discrimination, sex discrimination and retaliation. The EEOC charge will be discussed in more detail later in this opinion. Briefly summarized, plaintiff charged that she was treated differently from her white male coworkers with respect to work assignments and scrutiny of her work.
On October 7, 1994, plaintiff received an unsatisfactory rating on her performance evaluation for the period of August 9, 1994 to October 7, 1994. On October 11, 1994, the ERB met again to discuss personnel action against probationary employees, including plaintiff. The Bureau of Cleaning and Collection had renewed its recommendation that plaintiff be terminated due to unsatisfactory performance. This time, the ERB voted unanimously to terminate plaintiff. Plaintiff's termination became effective on October 13, 1994.
On August 9, 1995, plaintiff filed an addendum to her EEOC charge alleging that she was terminated without cause. On July 12, 1996, the EEOC dismissed plaintiff's charge of discrimination against the DOS.
The EEOC Charge
Since there is a serious issue on the present motion as to whether the EEOC charge forms a proper basis for the present action, it should be considered in detail. The original charge filed September 4, 1984 contained the following statements:
I was hired by the Respondent in August 1993 as a Sanitation Worker. After completing orientation in September of 1993, I was placed at the Manhattan 8 location. I was the only female employee.
Since September of 1993, I have been continuously harassed, subjected to a hostile environment and denied equal terms and conditions of employment. My work has been overly scrutinized and I have been written up unjustly. I have been penalized for incidents in which my similarly situated non-black male counterparts who had committed the same infractions were not.
In February of 1994, I wrote a letter to the Commissioner regarding the discriminatory treatment. I was subsequently detached to the Manhattan 7 location. However, the harassment continued.
On August 2, 1994, I was told that my probationary period had been extended.
I believe that I am being discriminated against because of my sex (female) and race (black) in violation of Title VII of the 1964 Civil Rights Act, as amended. I also believe that I am being retaliated against in violation of Section 704(a) of the same statute.
The August 9, 1995, amendment to plaintiff's EEOC charge alleged that on October 13, 1994, plaintiff was terminated without cause in violation of Title VII. The addendum provided no additional factual detail.
In order to properly interpret the allegations in the EEOC charge, it is useful to examine plaintiff's letter to DOS Commissioner Emily Lloyd of February 28, 1994, which plaintiff referred to in the original EEOC charge. The letter stated:
I've been watched constantly, followed, given complaints for "lack of productivity," singled out, taken to informal meetings (w/o union representation) at the Boro Office and interrogated by folks such as Rocky Sabatello and N.B.S. Nick Caliendo.
At these meetings, I've been questioned about my physical capabilities, interrogated about my medical competence and threatened with termination and an extension in probation.
The letter stated that supervisors had gone out of their way to make plaintiff feel uncomfortable and to make her appear incompetent, and that her male partners on the truck were untouched by complaints. Plaintiff stated that she had been paired with unstable partners, and once was involved in a serious accident in Central park due to the negligence of her partner, after which plaintiff was unfairly suspended.
Neither the EEOC charge nor the letter referred to therein makes the allegations relating to pornography, unwanted touching, or any other of the elements of sexual harassment now alleged in plaintiff's lawsuit.
The Present Action
On September 21, 1996, plaintiff filed the present Title VII lawsuit. She has submitted a complaint as well as a letter dated September 24, 1998 and an affidavit dated June 1, 2000, both in response to defendant's motion for summary judgment. The Court will treat plaintiff's claim as alleging the facts derived from her complaint as well as from the letter and the affidavit. The Court will discuss plaintiff's allegations in three categories: sexual harassment allegations, allegations relating to the conditions and evaluation of her work, and retaliation allegations.
It should be noted at the outset that, with respect to all three categories, plaintiff's complaints of conditions and conduct are frequently phrased in the most bitter rhetoric. However, there is almost a complete lack of specifics in terms of allegations of particular wrongful actions carried out by identified people. Plaintiff refers to harassment coming "directly from the TOP." She then refers to harassment coming "through the personnel office (G. Keitt)," and then speaks of Keitt making her physical examination unpleasant "back in 1991." This is prior to the time designated in the complaint as constituting the start of the wrongdoing claimed in this case and indeed prior to plaintiff's employment at DOS. Plaintiff goes on to give a list of individuals — Arcabasso, Defelice, Debes, O'Hare, Pete Scarlatos, and Doherty who were "also involved," without saying in any specific way what they were involved in. It is true, however, that plaintiff states that "Boro Chief Arcabasso, went out of his way from the upper east side to harass me and my partner, Blanco (9/94) stating that we did not pick up empty baskets." However, plaintiff does not deny that at this time and at many other times she actually committed the infractions with which she was charged. Also, Blanco was a white employee who, according to defendant's Rule 56.1 Statement, received a complaint for improper performance at the same time plaintiff did.
Sexual Harassment Allegations
In her complaint and two submissions in response to defendant's motion for summary judgment, plaintiff makes a variety of allegations in the category of sexual harassment. In her complaint, she says: "I was placed in an all male environment. I was isolated and harassed on the job on a daily basis. Pornography was openly displayed and the locker room was inaccessible. I was constantly subjected to `hostile environment.' "
In her letter dated September 24, 1998, she says: "There was no women's changing room. . . . My male locker room was filthy, loaded with pornography and stunk badly. . . . I was meshed in the male culture, faced with daily sexual innuendos . . . It was an overall highly sexual explosive and hostile environment. . . . Pornography was placed in my path. . . . The walls, as I vividly remember, were literally wallpapered with gynecological photos of females." Elsewhere in the letter, plaintiff presents a list of matters complained of: "pornography, unwanted touching . . . exposing of genitalia, frontal urination, video sex on office T.V." Plaintiff attached to her letter several pornographic photographs depicting women in sexually explicit poses and men engaged in homosexual acts. Although it is far from clear where plaintiff obtained these photographs, the court will construe plaintiff's submission as indicating that these photographs were either removed by plaintiff from the DOS premises or are pictures typical of what she saw at her places of work at the DOS.
In her affidavit of June 1, 2000, plaintiff states: "Harassment and pornography are rampant. . . . I have dealt with emotional havoc, daily humiliation, hostile work environment, pornography, . . . unwanted touching . . . . I was the subject of constant gossip and stares. . . . Sexually explicit cartoons/posters are everywhere! At the garages, staircases, meal areas, trucks, lockerrooms."
Allegations Relating to Conditions of Work and Evaluations
Plaintiff's complaint alleges that, after scoring 92% on the DOS examination and passing the medical and physical twice, she was placed in an all male environment, and was isolated and harassed on the job on a daily basis.
Plaintiff's September 24, 1998 letter states that plaintiff was constantly faced with barriers and reminded that she was in a male environment and was unwelcome; that there was no women's changing room at M8; that as a woman she was met with vocal and hostile resistance; that the "testing and trying never stopped;" that she was not given enough rest time between assignments; that she was questioned and reprimanded without a union representative, subjected to unequal treatment, and given a negative performance evaluation when her rating was an overall good one.
Plaintiff's June 1, 2000 affidavit makes general claims of preferential treatment of white Italian and Irish males, and an atmosphere of distaste for "colored folks" and "girls." The affidavit states that the "fate" of her career was decided by middle aged angry bald white males who "sabotaged my work place, my schedules" and "spread rumors and made my life miserable and stressful." Bathrooms were locked and access to locker rooms was banned. "White girls who entered training were clearly taken care of," whereas black and Latino women "stayed on the truck and were the target of harassment." Plaintiff also accuses her co-workers of betraying her and colluding with DOS management.
Retaliation Claims
In her complaint, in the September 24, 1998 letter, and in the affidavit of June 1, 2000, plaintiff alleges that as a result of her in-house complaint and the charge she filed with the EEOC, her work conditions became more arduous, and she was given negative evaluations, her probationary period was extended and she was ultimately terminated.
Discussion
A party moving for summary judgment has the burden of demonstrating the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Adickes v. Kress Co., 398 U.S. 144, 157 (1970); United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982); United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976), cert. denied, 430 U.S. 906 (1977). Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion. Adickes, 398 U.S. at 157. However, mere allegations in the non-moving party's pleadings are insufficient to show that there is a triable issue of fact if the moving party has made an appropriate factual showing. Fed.R.Civ.P. 56(e); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (opposing party "may not rest upon mere conclusory allegations or denials."); Pent-R-Books, 538 F.2d at 529 (If the moving party carries its preliminary burden, the opposing party may not defeat the motion by relying on the contentions of its pleading; rather, it must produce "significant probative evidence tending to support [its position]."); Kletschka v. Driver, 411 F.2d 436, 449 (2d Cir. 1969) (General allegations which may have been sufficient to state a cause of action in the complaint become insufficient once opposed by a motion for summary judgment supported by affidavits.). A non-moving party may not rely on mere conclusory allegations but must set forth "concrete particulars." SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978).
Filing a charge with the EEOC is a jurisdictional pre-requisite to a Title VII action. 42 U.S.C. § 2000e-5; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). A charge with the EEOC must be filed within 180 days of the date that the "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (1). When a plaintiff fails to file a timely charge with the EEOC, court action under Title VII is barred. Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992).
An exception to the 180-day limitation exists where the plaintiff initially instituted proceedings with a state agency having the authority to enforce the state's anti-discrimination laws. In such cases, the period is extended to 300 days from the date on which the alleged unlawful discrimination practice occurred. 42 U.S.C. § 2000e-5(e)(1). There is no evidence that plaintiff filed a discrimination charge with any state agency.
A claim cannot be litigated which has not been previously presented to the EEOC. Otherwise the statutory purpose of encouraging settlement through conciliation and voluntary compliance would be defeated. Butts v. City of New York Dep't of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993). Vague, general allegations, incapable of inviting a meaningful EEOC response, are insufficient to form a basis for a later lawsuit, because acceptance of such allegations would invite the making of EEOC charges in terms of mere boilerplate. Id. at 1403.
Plaintiff filed her EEOC charge on September 2, 1994. Thus, plaintiff's EEOC charge is timely only with regard to those allegedly discriminatory actions occurring on March 6, 1994 and thereafter. Most of what plaintiff alleges is stated without reference to specific incidents and specific dates. Plaintiff mainly complains of wrongdoing in the form of adverse conditions and discriminatory actions generally said to have occurred during her employment by the DOS. This commenced on August 9, 1993 and ended October 13, 1994. In this regard, her claims can surely be construed as alleging "continuous violations." However, claims of continuous violations give rise to an exception to the statute of limitations only if "discrimination is accomplished through a specific official policy or mechanism." Butts, 990 F.2d at 1404. Nothing of this sort is alleged here. This means, as stated above, that all claims of unlawful conduct occurring before March 6, 1994 are barred. If the case were to continue, plaintiff would need to file an amended complaint specifying which violations she claims occurred on and after that date. However, for reasons to be described, the entire action must be dismissed on other grounds.
The Court first deals with plaintiff's allegations of sexual harassment. Plaintiff alleges a wide variety of conditions and activities which are obviously intended to make a claim under the branch of sexual harassment law dealing with hostile work environment. However, plaintiff did not make any of these allegations in her EEOC charge, even in conclusory form. The charge, when read together with plaintiff's February 28, 1994 letter to Commissioner Lloyd, referred to in the charge, lacks any reference to display of pornography, unwanted touching, exposure of genitalia, urination, obscene phone calls or the other matters of a similar nature now alleged in this lawsuit. The EEOC charge makes the allegation that plaintiff was "harassed, subjected to a hostile environment," but this general, conclusory phrase is insufficient by itself to constitute a charge of sexual harassment which can be the basis of the claims in this lawsuit. Butts, supra at 1401. In any event the detailed allegations of the EEOC charge, as amplified by the February 1994 letter, provide a clear definition of the phrase just quoted as referring to discrimination in the form of onerous work conditions and unjustified complaints about plaintiff's work. The EEOC charge cannot reasonably be construed as complaining of the sexual harassment alleged in this action. As a consequence this court has no jurisdiction over the claim of sexual harassment.
With regard to plaintiff's allegations of discriminatory work conditions and evaluations of her work, there was a sufficient charge before the EEOC to furnish a jurisdictional basis for the Court to consider these allegations in this Title VII action. However, defendant is entitled to summary judgment on the merits.
In support of its motion for summary judgment, defendant has submitted a detailed record of plaintiff's employment at the DOS, which demonstrates conclusively that she was given trash pickup work of the same kind assigned to other employees, including white males. Moreover, the record shows continual complaints throughout the time of her employment regarding plaintiff's failure to perform her work in the manner required by the DOS. Her infractions were not trivial, but related to the issue of safety and also the ability to meet schedules. Plaintiff has submitted no affidavit or statement of any kind denying the validity of the complaints regarding her performance. It should be added that the DOS displayed great patience with plaintiff. The ERB twice refused to terminate plaintiff in the face of recommendations that such action be taken due to poor performance. Plaintiff was transferred from one district to another in an attempt to assist her in rectifying her problems. The problems continued.
In the face of these factual submissions from defendant, plaintiff has submitted allegations which must be characterized as almost entirely consisting of general rhetoric. To be sure, the rhetoric is not without meaning, charging that, as a black woman, she was treated with hostility in a male environment. She states in general terms that the males and white persons of various nationalities were given preferred treatment.
The problem is that there is almost a total lack of specifics about particular incidents or actions. Also, the established facts about plaintiff's own deficient performance surely fly directly in the face of claims that her problems at the DOS were the result of discrimination. For instance, there is not the slightest reason to believe that her being a female among many males was the cause of her improper handling of the trash baskets or of her failure to ride the trucks between stops so that schedules could be maintained.
Plaintiff alleged that there was no women's changing room at M8. The November 5, 1993 report of the DOS's EEO investigator, Stephanie Grant, on the site visit to M8 states that in addition to the men's locker room, the investigators "looked through offices, showers, locker rooms, meeting rooms, restrooms, and the mechanics locker room." It would seem to be beyond question that if the EEO investigator had found that there were no facilities for women to change their clothes or use the bathroom in privacy, this would have resulted in an immediate finding of violation of equal opportunity. Plaintiff has not actually alleged that she was unable to take care of her personal needs. Thus, plaintiff's allegation regarding the absence of a women's changing room does not appear sufficient to withstand a motion for summary judgment.
With regard to the allegation about locked and blocked bathrooms and locker rooms, plaintiff has provided photographs of padlocked doors. Although these photographs are unlabeled, the court will assume that the pictures are of locked bathrooms and locker rooms at some time or times during plaintiff's employment at DOS. However, again there is an allegation of conditions which would have been essential subjects for the EEO investigator if indeed women were being deprived of the opportunity to take care of their personal needs, and plaintiff has not stated that she was in fact unable to take care of such needs.
With respect to the claim of retaliation, defendant has presented a large quantity of material which shows that DOS's discipline of plaintiff and her ultimate termination was based on her failure to satisfactorily perform her job, rather than in retaliation against her for filing a charge. Plaintiff denies this, in general terms, but this denial alone is insufficient.
Conclusion
The court concludes that it lacks jurisdiction with respect to plaintiff's claim of sexual harassment made in this action. The court further concludes that, with respect to the claims of discriminatory work conditions and work evaluations and with respect to the claim of retaliation, there is no triable issue of fact. Defendant's motion for summary judgment is granted and the action is dismissed.
SO ORDERED.