Carrero, 890 F.2d at 578; see Kotcher, 957 F.2d 59, 62. Thus, in order to prevail under a hostile work environment theory, an employee must show that: (1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome harassment; (3) the harassment was prompted simply because of the employee's gender; (4) the charged harassment affected a term, condition or privilege of employment; and (5) the existence of respondeat superior liability. See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982); Danna v. New York Telephone Co., 752 F. Supp. 594, 609-610 (S.D.N.Y. 1990); Fair v. Guiding Eyes For the Blind, Inc., 742 F. Supp. 151, 155 (S.D.N.Y. 1990); Bennett v. New York City Dept. of Corrections, 705 F. Supp. 979, 984 (S.D.N.Y. 1989); Koster v. Chase Manhattan Bank, 687 F. Supp. 848, 862 (S.D.N.Y. 1988). Ms. Trotta has failed to show that the conduct at issue affected a term, condition, or privilege of employment.
A "hostile work environment" exists when, as judged by a reasonable person, it "is permeated with 'discriminatory intimidation, ridicule, and insult' * * * that is 'sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment'" ( see, Harris v. Forklift Sys., 510 U.S. 17, 21, quoting Meritor Sav. Bank v. Vinson, supra; see also, Karibian v. Columbia Univ., 14 F.3d 773 [2d Cir 1994]). In order to make out a prima facie case, a plaintiff must prove (1) that she is a member of a protected class; (2) that the conduct or words upon which her claim of sexual harassment is predicated were unwelcome; (3) that the conduct or words were prompted simply because of her gender; (4) that the conduct or words created a hostile work environment which affected a term, condition or privilege of her employment; and (5) that the defendant is liable for such conduct ( see, Trotta v. Mobil Oil Corp., 788 F. Supp. 1336 [SD N.Y. 1992]; Danna v. New York Tel. Co., 752 F. Supp. 594 [SD N.Y. 1990]; see also, Kotcher v. Rosa Sullivan Appliance Ctr., supra). Whether conduct or words are unwelcome and whether a workplace should be viewed as hostile or abusive can only be determined by considering the totality of the circumstances ( see, Harris v. Forklift Sys., supra; Trotta v. Mobil Oil Corp., supra; Yaba v. Roosevelt, 961 F. Supp. 611 [SD N.Y. 1997]).
The duty to preserve does not include evidence that the party "had no reasonable notice of the need to retain." Danna v. New York Tel. Co., 752 F. Supp. 594, 616 n. 9 (S.D.N.Y. 1990), but includes information that party "has control and reasonably knew or could reasonably foresee was material to a potential legal action." Krumwiede v. Brighton Associates, LLC, No. 05 C 3003, 2006 WL 1308629 at *8 (N.D. Ill. May 8, 2006) (citations omitted).
The duty to preserve does not include evidence that the party "had no reasonable notice of the need to retain." Danna v. New York Tel. Co., 752 F. Supp. 594, 616 n. 9 (S.D.N.Y. 1990), but includes information that party "has control and reasonably knew or could reasonably foresee was material to a potential legal action."Krumwiede v. Brighton Associates, LLC, No. 05 C 3003, 2006 WL1308629 at *8 (N.D. Ill. May 8, 2006) (citations omitted).
Under these circumstances, it does not appear that plaintiffs were under any obligation to maintain the computer records. See Danna v. New York Tel. Co., 752 F. Supp. 594, 616 n. 9 (S.D.N.Y. 1990). Although it is not sanctionable, plaintiffs' initial failure to respond completely to defendants' document request does deserve comment.
No duty to preserve arises unless the party possessing the evidence has notice of its relevance. Danna v. New York Telephone Co., 752 F.Supp. 594, 616 n. 9 (S.D.N.Y. 1990). This threshold question in the instant case requires knowledge of the following facts: (1) when was the Swing T320 machine repaired; and (2) when was the glass discarded.
In some of the cases the conduct was directed to the plaintiff and in others against the women employees including plaintiff. See, e.g., Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000); Leopold v. Baccarat, 174 F.3d 261 (2d Cir. 1999); Danna v. New York Tel. Co., 752 F. Supp. 594 (S.D.N.Y. 1990); Dyke v. McCleave, 79 F. Supp.2d 98 (N.D.N.Y. 2000); Alfano v. Costello, 940 F. Supp. 459 (N.D.N.Y. 1996); EEOC v. A. Sam Sons Produce Co., 872 F. Supp, 29 (W.D.N.Y. 1994); FarpellaCrosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996); Steiner v. Showboat Operting Co., 25 F.3d 1459 (9th Cir. 1994); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996). In one case cited by Fitzgerald, the district court denied a motion for summary judgment where the plaintiff claimed a hostile work environment on the basis of "dirty jokes."
In some cases slurs were directed to the plaintiff, not of a sexual nature in an erotic sense, but disparaging her capacity to do her job because of her sex. Different cases had different combinations of the types of conduct. In some of the cases the conduct was directed to the plaintiff and in others against the women employees including plaintiff.See, e.g., Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000); Leopold v. Baccarat, 174 F.3d 261 (2d Cir. 1999); Danna v. New York Tel. Co., 752 F. Supp. 594 (S.D.N.Y. 1990); Dyke v. MeCleave, 79 F. Supp.2d 98 (N.D.N.Y. 2000);Alfano v. Costello, 940 F. Supp. 459 (N.D.N.Y. 1996); EEOC v. A. Sam Sons Produce Co., 872 F. Supp. 29 (W.D.N.Y. 1994); Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996); Steiner v. Showboard Operating Co., 25 F.3d 1459 (9th Cir. 1994); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996). In one case cited by Fitzgerald, the district court denied a motion for summary judgment where the plaintiff claimed a hostile work environment on the basis of "dirty jokes."
Generally, "no duty to preserve arises unless the party possessing the evidence has notice of its relevance." Turner, 142 F.R.D. at 72-73, citing, Danna v. New York Telephone Co., 752 F. Supp. 594, 616 n. 9 (S.D.N.Y. 1990). The dispute as to the use of the WING FLINGS mark dates back to the filing of a Complaint with this Court in the precursor action in 1989.
If the evidence presented would lead a reasonable person in a similar situation to find the conduct offensive, then liability should attach under Title VII. Danna v. New York Telephone, 752 F. Supp. 594, 610 (S.D.N.Y. 1990); Bennet v. New York City Department of Corrections, 705 F. Supp. 979, 984 (S.D.N.Y. 1989); Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 573 (W.D.N.Y 1987). Finally, to hold the School District responsible for the hostile environment allegedly created by defendant Maggi must show that the School District either (1) provided no reasonable avenue for complaint or (2) knew of the harassment but did nothing about it.