Opinion
00 Civ. 0813 (JSM)
January 30, 2003
Peter J. Cresci, Cresci Black LLC, Bayonne, N.J., For Plaintiff.
Meredith E. Kotler, Assistant United States Attorney, Southern District of New York, New York, N.Y., For Defendants.
AMENDED OPINION AND ORDER
Plaintiff who claims she was constructively discharged from her position with the Office of the Staff Judge Advocate ("OSJA") at the United States Military Academy, commenced this action alleging sexual harassment, a hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She also alleged claims for defamation and intentional infliction of emotional distress, which were previously dismissed. Gerentine v. United States, No. 00 Civ. 0813, 2001 WL 876831, at *1 (S.D.N.Y. Aug. 2, 2001). The Defendants now move for summary judgment on the remaining claims.
A. The Sexual Discrimination Claims
In November, 1995, Plaintiff began working as a Legal Technician in the OSJA. Her duties related to the processing of disciplinary proceedings and among other things, required her to monitor the recording of disciplinary proceedings and the transcription of those recordings. According to the Defendants, Plaintiff was a marginal employee, who from the outset of her employment, was routinely late and had a poor work ethic and attitude.
At the heart of Plaintiff's complaint is an allegation that on December 14, 1995, Lt. Colonel William P. Condron made a sexual proposition to Plaintiff, which she rebuffed and that thereafter, he and others harassed her in retaliation for her rejection of the advance. The principal weakness with Plaintiff's claim is that no reasonable person aware of the relevant facts could consider Condron's action as a sexual advance.
On the day in question, there was a snow storm and under applicable procedures, employees were permitted to go home early with their supervisor's permission. On that afternoon, Plaintiff was participating in a disciplinary hearing which all of the other participants wanted to continue. However, Plaintiff told the Hearing Officer, Captain Angelia Solomon, that she was going to go home. Solomon, who did not want Plaintiff to leave, then called her superior, Condron, who spoke on the phone with Plaintiff. Condron told Plaintiff that it was her duty to remain at the hearing and that she could not leave. In the course of discussing her concern about the snow conditions, Condron offered Plaintiff several options. He offered to drive her home himself; to have another officer drive her home and pick her up in the morning; he offered to have one of the attorneys drive her home and pick her up in the morning; and he offered to let her stay at his home overnight. At the time he made this offer, Condron lived with his wife, who had recently had a stillborn birth, and two sons and his wife's sister was staying with them.
Plaintiff claims that thereafter, Condron retaliated against her for rejecting this unwanted sexual advance by, among other things, counseling her on one occasion when she was admittedly late for work, directing her to return to her office from a hearing to begin the transcription rather than permitting her to sit and wait for a decision, directing her to go home from another hearing rather that sit and wait for the deliberations to end and collect overtime pay, commenting on her excessive personal telephone calls at a staff meeting, and setting a lunch recess of a hearing at a time that conflicted with Plaintiff's social plans.
Plaintiff also contends that Condron made an inappropriate sexual remark in her presence on May 23, 1996, when, in discussing the scheduling of hearings for cadets whose graduation would be delayed if the hearings were not completed, Condron said he did not want to "dick with" any of the cadets by adjourning the hearings.
Plaintiff also contends that Condron gave her a poor performance rating in May, 1996 when he agreed with a relatively negative performance evaluation given Plaintiff by her immediate superior, Captain Paul Cohen.
Despite all of these alleged acts of harassment, Plaintiff did not file an Equal Employment Office ("EEO") complaint until June 4, 1997. Defendants correctly argue that, in large measure, these claims are time barred. As the Second Circuit explained in Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996):
`Title VII is the exclusive remedy for discrimination by the federal government on the basis of race, religion, sex, or national origin.' Boyd v. United States Postal Service, 752 F.2d 410, 413-14 (9th Cir. 1985) (citing Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). Under Title VII, a litigant must exhaust available administrative remedies in a timely fashion.
Under EEO regulations, Plaintiff was required to file a discrimination charge within forty-five days of the allegedly discriminatory act. Thus, Plaintiff's claim of an improper sexual advance by Condron in December 1995 was time-barred when she filed her first EEO complaint in June 1997.
The only alleged actions that were not time-barred were a claim that Condron counseled her in writing for her tardiness and a claim that Condron made an allegedly inappropriate sexual comment, when Plaintiff returned from maternity leave, when he complimented her on how well she had regained her figure after the birth of her child.
The standards for judging a hostile workplace environment claim were set forth by the Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370 (1993), as follows:
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As we made clear in Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), this language `is not limited to `economic' or `tangible' discrimination. The phrase `terms, conditions, or privileges of employment' evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women' in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment. Id., at 64, 106 S.Ct., at 2404, quoting Los Angeles Dep't. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1374, 55 L.Ed.2d 657 (1978) (some internal quotation marks omitted). When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," 477 U.S., at 65, 106 S.Ct., at 2405, that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," id., at 67, 106 S.Ct., at 2405 (internal brackets and quotation marks omitted), Title VII is violated.
This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an . . . epithet which engenders offensive feelings in a employee," ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. (Emphasis added.)
Condron's comment concerning Plaintiff's figure on her return from maternity leave certainly does not approach the level of conduct that would cause Plaintiff's workplace to be "permeated with `discriminatory intimidation, ridicule, and insult.'"
Even if one would consider the entirety of the alleged conduct from 1995 to the date of Plaintiff's EEO complaint, the three incidents with sexual overtones which Plaintiff alleges — the offer to have Plaintiff stay over at his home, the "dick with" remark and the comment about her figure — Plaintiff's work place was not permeated with harassing conduct.
Thus, Plaintiff's hostile work environment claim is both time barred to a large extent and, in any event, completely without merit.
Similarly, to the extent that Plaintiff alleges a quid pro quo sexual discrimination claim on the basis of Colonel Condron's offer to permit her to stay with his family in December, 1995, the claim is both time barred and without merit. No rational trier of fact could conclude from the entire record that Colonel Condron's offer of four possible alternatives that would permit Plaintiff to continue with a hearing was an improper sexual advance. See Serrano v. Runyon, No. 3:95-469, 1997 WL 718976, at *3 (D. Conn. 1997).
Plaintiff makes one other claim of alleged inappropriate behavior by Colonel Condron — that in 1998, he physically brushed against her in a situation where he did not have to invade her space. However, the only testimony that Plaintiff cites in support of this claim does not support it. The cited testimony indicates only that Condron walked into Plaintiff's cubicle to hand something over the divider to the person working in the adjoining cubicle. That person testified that it did not appear that Condron had any physical contact with Plaintiff. In a contemporaneous memorandum, Plaintiff stated that Condron "stood about 3-5 inches from my body." There is no evidence that this incident had any sexual overtones.
Although Plaintiff cites generally to her own testimony, there is no cite to a specific page and thus this citation is nor sufficient to support the factual claim. Shepard v. Frontier Communications Servs., 92 F. Supp.2d 279, 284 (S.D.N.Y. 2000).
B. The Retaliation Claim
The Plaintiff alleges that Condron conspired with Colonel Dayton M. Cramer, the Staff Judge Advocate, to retaliate against her for tiling her two EEO complaints, by giving her a rating of 5, depriving her of monetary awards, suspending her with pay, terminating her employment and then rescinding that termination, and reassigning her to a lesser position, all of which lead to her constructive discharge.
The first problem with this claim is that Plaintiff failed to exhaust her administrative remedies because she never filed an EEO charge relating to this allegedly retaliatory conduct. While Plaintiff did file a charge of retaliation in November, 1997, that charge involved relatively trivial claims that Captain Solomon had counseled Plaintiff inappropriately, allegedly at Colonel Condron's urging and that he had inappropriately required her to submit a claim for annual leave when she came to work two hours late one morning following a night when she had worked until after 1 a.m.
The conduct that is the subject of her current claim did not begin until June, 1998, and related to totally different events which arose from Plaintiff's admittedly inappropriate accessing of Colonel Condron's computer files. Plaintiff contends that she was not required to file a separate EEO claim with respect to this conduct because it was part of a continuing violation. However, "`multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). In Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2068, 153 L.Ed.2d 106 (2002), the Supreme Court held that Title VII "precludes recovery for discrete acts of discrimination that occur outside the statutory time period." According to the Court, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180-or 300-day time period after the discrete discriminatory act occurred." As Judge Schiendlin of this Court explained in Gross v. Nat'l Broad. Co., Inc., No. 00 Civ. 5776, 2002 WL 1482621, at *7 (S.D.N.Y. Jul. 9, 2002), the Supreme Court in Morgan:
Plaintiff also argues that she did mention the termination letter to an EEO counselor. However, he testified that by that time, it had been rescinded and that there was no investigation because Plaintiff did not file a complaint.
did not address "pattern or practice" claims which presumably can still form the basis of a continuing violation. See id. n. 9. The Court did make clear, however, that there is no indication that the term "practice" as used in Title VII "converts related discrete acts into a single unlawful practice for the purposes of timely filing." Id. at 2071.
Since Plaintiff did not file an EEO charge with respect to the acts of retaliation that she now asserts, those claims must be dismissed. Briones v. Runyon, supra. In any event, there is no evidence to support Plaintiff's claim that the acts of which she complains were taken to retaliate against her for the filing of an EEO complaint. While the factual background of these actions is complex, it is sufficient for these purposes to note that the actions at issue were the result of a detailed investigation into Plaintiff's unauthorized accessing of Colonel Condron's hard drive, her copying some of his documents and sharing the content of some of them with her co-workers, and her possible destruction of some of his files. While Plaintiff contends that the Army's investigation of these items proved that she did not destroy the missing files, all that the investigation concluded was that, because there was no record of who accessed those files, it was impossible to determine with certainty who destroyed them. However, there was overwhelming evidence to establish that Plaintiff had engaged in improper conduct in connection with the matters under investigation, including testimony of Plaintiff's co-workers and her own admission that she had accessed Colonel Condron's hard drive and shared its contents with some of her colleagues.
Given the misconduct which Plaintiff admitted, a strong argument exists that Plaintiff has failed to make out a prima facie case that the disciplinary actions following the investigation were taken in retaliation for her filing of an EEO complaint. The Court need not reach that issue, however, since there is no evidence to support Plaintiff's assertion that the stated reason for the disciplinary action taken as a result of her accessing Colonel Condron's files was simply a pretext and that real reason was retaliation for her filing of an EEO complaint. As this Court has previously observed:
Although Plaintiff's Response to Defendants' Motion for Summary Judgment identifies only a single cause of action for retaliation, see page 15, there is a second retaliation claim alleged in the Complaint relating to events after Plaintiff filed a charge of discrimination on April 23, 2000. This claim is barred by Plaintiff's failure to exhaust her administrative remedies and is also without merit. Indeed, Plaintiff's Rule 56.1 statement makes no mention of any incident occurring after April 23, 2000 and her brief in opposition to the summary judgement motion barely mentions any incident after that date.
Federal courts `do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior . . .' Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).Ponniah Das v. Our Lady of Mercy Med. Ctr., No. 00 Civ. 2574, 2002 WL 826877, at *12 (S.D.N.Y. Apr. 30, 2002).
Since Plaintiff has failed to sustain her claims of quid pro quo sexual discrimination, hostile work environment discrimination or retaliation, she has no claim for constructive discharge.
Plaintiff purports to allege a claim under the Federal Tort Claims Act relying on the events underlying her discrimination and retaliation claims. However, there is no independent cause of action under the Tort Claims Act for conduct that violates Title VII.
For the foregoing reasons, Plaintiff's remaining claims are dismissed with prejudice.