Opinion
08 CV 11197 (GBD) 0.
July 7, 2010
MEMORANDUM DECISION AND ORDER
Plaintiff Henrietta Katzev, a Jewish female, brings this action against Defendant Retail Brand Alliance, Inc. ("Brooks Brothers"), alleging hostile work environment and retaliation claims in violation of Federal, State, and City laws. Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56.
Plaintiff's complaint alleges claims of religious and sex discrimination pursuant to federal, state and city law. Plaintiff also brings retaliation claims under federal, state, and city law. Although the complaint did not specifically mention hostile work environment, during oral argument, Plaintiff's Counsel argued that her pleadings should be read liberally and that Plaintiff was in fact bringing: 1) a hostile work environment claim based on religion, 2) a retaliation claim because of her complaint about an obscene phone call, and 3) a sexual harassment or hostile work environment claim based on sex under New York City law. See Tr., April 28, 2010 at 30-36; 44-47; 68-69.
Factual History
Unless indicated otherwise, the following facts are drawn from the allegations in the complaint and from the parties' Rule 56.1 statements.
In October 2007, Plaintiff attended a job fair and spoke to one of Brooks Brothers' representatives. On November 12, 2007, Brooks Brothers hired Plaintiff to work at their Madison Avenue Store. On Plaintiff's New Hire Data Worksheet, the box entitled "Holiday (October-December) was checked in the status field. See Sara D. Sheinkin Decl. Ex. 1. In addition, the company's store roster indicated that Plaintiff's job type is "HOL IN" referring to a holiday employee. Id. Ex. 4. Each of the Brooks Brothers's managers testified that Plaintiff was a seasonal holiday employee. Plaintiff maintains that she was hired as a regular permanent sales associate. She was aware, however, of the holiday employee designation on her New Hire Data Worksheet. She claims that when she inquired about it, a manager told her not to worry, and that Brooks Brothers would work it out once the new manager arrived.
During her two-month employment at Brooks Brothers, a co-worker made a comment to her that she "would be much happier if [she] brought Christ into [her] home and celebrate[d] Christmas." See David H. Feldstein Aff. Ex. 16 at 196-97. Plaintiff informed two managers about the comment. The managers testified that they spoke with the co-worker about the comment and told her that the comment "was not appropriate" See Feldstein Aff. Ex. 18 at 66;see also Ex. 19 at 70. The co-worker never made any other comment to Plaintiff about religion.
Plaintiff also complains that she did not receive a Company holiday gift. An email from the Company was sent to all Brooks Brothers managers which stated that the holiday gifts were to be distributed to "regular full and part time" employees. See Feldstein Aff. Ex. 12. The holiday gift was not distributed to any seasonal staff which included Plaintiff. See Sheinkin Decl. Ex. 13 at 96; Ex. 16 at 73-74. Plaintiff believed that the entire fifth floor was given a holiday tin of Italian bread, including stock people who were seasonal hires. See Feldstein Aff. Ex. 16 at 203-04. Plaintiff was unable, however, to provide the name or title of any seasonal staff who she believed received the holiday gift. See id. at 205.
Plaintiff also complains that she did not receive a holiday gift from a store manager. When she was asked "[w]ere these personal gifts or Brooks Brothers gifts?" Plaintiff first responded "[i]t was personal." See Feldstein Aff. Ex. 16 at 198. Plaintiff then said "[e]xcuse me. Let me correct that. I don't know." Id. When asked why she believed that it was discrimination that she didn't get a Christmas gift, Plaintiff replied that the manager "didn't give me a Christmas gift because she just didn't want to give me a Christmas gift." Id.
On December 29, 2007, Plaintiff told an assistant general manager that she had received an obscene phone call from a male voice. Plaintiff indicated to the assistant general manager that she believed a co-worker had been involved with setting up the call. During her deposition, Plaintiff testified that she was "not certain" if she gave the assistant general manager any details about the obscene call. See Feldstein Aff. Ex. 16 at 132. Approximately 10 minutes after she complained to the assistant general manager, he called Plaintiff into his office. Plaintiff testified that the assistant general manager told her that it was a "bad season" and that she was being terminated. The assistant general manager testified that he "vaguely" remembers the conversation in which he terminated Plaintiff, but that he recalled saying that "the season was over" and that "her services were no longer needed." See Feldstein Aff. Ex. 17 at 146. The assistant general manager testified that "seasonal people had started to be dismissed that week prior." Id. at 147. He further testified that although he did not "know when the exact conversation" about Plaintiff's termination, the Company "had a managers' meeting that week saying that that would be the last week for everybody." Id. Brooks Brothers terminated the employment of two other seasonal employees on the same day Plaintiff was terminated. See Carolyn Hallisey Decl. ¶ 12. Prior to December 29, 2007 Brooks Brothers terminated five other seasonal employees. See id. ¶ 13.
Plaintiff testified at her deposition that the male caller stated: "you were so good last night. You licked me all over and you sucked me all over. You kissed me all over. I want to see you again." See Feldstein Aff. Ex. 16 at 137.
Summary Judgment
Summary judgment is appropriate where the evidence, viewed in the light most favorable to the non-moving party, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Vacold, L.L.C. v. Cerami, 545 F.3d 114, 121 (2d Cir 2008). The burden rests upon the moving party to show that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" only where it will affect the outcome of the suit under governing law.Anderson, 477 U.S. 242, 248 (1986). For there to be a "genuine" issue about the fact, the evidence must be such "that a reasonable jury could return a verdict for the nonmoving party."Id. In determining whether there is a genuine issue of material fact, the Court is required to resolve all ambiguities and draw all inferences in favor of the non-moving party. Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Where there is no evidence in the record "from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact," summary judgment is proper.Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir. 1996).
Hostile Work Environment
To establish a hostile work environment claim, "a plaintiff must demonstrate that: (1) [s]he subjectively perceive[d] the environment to be abusive; (2) the conduct alleged objectively created an environment that a reasonable person would find hostile or abusive; and (3) that the work environment [was] abusive to employees because of their race, gender, religion, or national origin." Cunningham v. New York State Dept. of Labor, 326 Fed.Appx. 617, 620 (2d Cir. 2009) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Plaintiff "must adduce evidence sufficient to permit a reasonable jury to conclude that her workplace was permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her] employment." Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004). Among the factors a court will consider are: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [the] employee's work performance. As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004).In the instant case, Plaintiff has not pointed to any evidence that would permit a reasonable fact-finder to conclude that Defendant's actions suggest hostility toward Plaintiff because of her religion. Plaintiff contends that Defendant "fostered a hostile work environment in which [Plaintiff] was subjected to religious discrimination." Plaintiff relies on three incidents in support of her claim. First, Plaintiff states that she did not receive the holiday gift of Italian bread. Second, that a co-worker told her she "would be happier if [she] brought Christ into [her] home and celebrate[d] Christmas." Third, that an Orthodox Jewish customer told Plaintiff that the customer had been refused assistance by other salespeople at the store.
Only one incident — the holiday tin — involves a policy or practice of the Defendant. Plaintiff maintains that the reason she was not given a holiday tin was because she was Jewish, but provides no evidence to support that contention. Defendant submitted undisputed evidence that it was the company's policy to give the holiday gift to all regular employees. As the evidence established, since Defendant classified Plaintiff as a seasonal employee, Plaintiff did not receive a gift.
Moreover, while a single act by an employer can be sufficient to establish a hostile work environment claim, "the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Feingold, 366 F.3d at 150. While Plaintiff may have been personally offended that she did not receive a holiday gift, the conduct alleged does not objectively create an environment that a reasonable person would find hostile or abusive. Furthermore, Plaintiff was unable to identify how that conduct otherwise altered any of the terms and/or conditions of her employment. See Feldstein Aff. Ex. 16 at 197.
Plaintiff also points to an incident where a co-worker made a comment stating that Plaintiff would be happier if she brought Christ into her life. As the Second Circuit has explained, "[w]here an employee is the victim of . . . harassment, . . ., by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action." Petrosino, 385 F.3d at 225. In this instance, Plaintiff has failed to establish that Brooks Brothers is liable for the co-worker's comment. First, the comment was made by a co-worker, not a supervisor or manager at the store. Furthermore, Defendant proffered the testimony of two managers who stated that they reprimanded the co-worker who made the comment and told her it was an inappropriate comment. Plaintiff maintains that she doesn't have any basis to know whether the managers did in fact speak to the co-worker. However, that does not create a material issue of fact. Moreover, Plaintiff indicated that no one else ever made a comment like that to her again. While Plaintiff may have been offended by the co-worker's comment, "Title VII does not establish a general civility code for the American workplace." La Grande v. DeCrescente Distrib. Co., Nos. 08-3010-cv, 09-1789-cv, 2010 U.S. App. LEXIS 5925, at *6 (2d Cir. March 23, 2010) (citingPetrosino, 385 F.3d at 223. Plaintiff's hostile work environment claim based on religion is dismissed.
In opposition to Defendant's summary judgment motion, Plaintiff alluded to a third incident where an Orthodox Jewish customer allegedly went up to Plaintiff and told her she had been refused assistance by other salespeople at the store. There was no evidence produced during discovery about such an incident. This incident was raised for the first time in Plaintiff's affidavit in opposition to Defendant's summary judgment motion. During her deposition, Plaintiff was specifically asked if there was any other basis that she alleged she was discriminated against based on religion and her answer was no. The Second Circuit has held, "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). In any event, this comment by a customer would not constitute a hostile work environment for Plaintiff as an employee for which Defendant can be held responsible.
Plaintiff also brings a hostile work environment claim under NYCHRL based on sex. Plaintiff claims that Defendant is liable for the offensive conduct that was the anonymous obscene phone call. See Tr., April 28, 2010 at 33. The NYCHRL "explicitly requires an independent liberal construction analysis in all circumstances, even where State and Federal civil rights laws have comparable language." Panzarino v. Deloitte Touche LLP, 05 Civ. 8502 (BSJ) (RLE), 2009 U.S. Dist. LEXIS 101209, at *29 (Oct. 29, 2009) (citing Williams v. New York City Housing Auth., 872 N.Y.S.2d 27, 31 (1st Dep't 2009). Even under the more liberal NYCHRL standard, however, Plaintiff has failed to demonstrate any genuine issue of material fact as to whether Defendant allowed or created a hostile work environment. The telephone call came from an anonymous caller. There is no evidence that Defendant had any control over or permitted the anonymous caller to make such calls. To the extent that New York City law is more liberal than its state or federal counterparts, Plaintiff has still failed to frame any genuine issue of fact as to a hostile work environment based on sex under the NYCHRL.
During oral argument Plaintiff conceded that the Defendant is not liable for hostile work environment claim based on the obscene phone call under either Title VII or New York State law.
"Q: [A]re you arguing that this one phone call, that you can prove that the employer is liable for a hostile work environment claim based on sex, on the evidence you have?
A: Correct, your Honor.
Q: Under Title VII?
A: No, no under the City law.
Q: Not under Title VII?
A: Under the city law.
Q: You concede not under Title VII?
A: Yes.
Q: You concede not under New York State law?
A: That's correct."See Tr., at 36.
Plaintiff further contends that "a complete failure by an employer to respond to a complaint about an incident can make the employer responsible for that [prior] incident," even if there is no future incident. See Tr., April 28, 2010 at 35. Plaintiff cites no such authority for this proposition. In this case, Plaintiff alleges that Defendant failed to take any substantive action after learning of the complaint. Even under the more liberal standard, nothing in the NYCHRL imposes upon an employer a duty to simply investigate a single anonymous call where there is no evidence of a likelihood of repeated conduct in the future.
Retaliation Claims
In order to establish a prima facie case of retaliation, Plaintiff must demonstrate that: "(1) [she] engaged in a protected activity; (2) [her] employer was aware of this activity; (3) the employer took adverse employment action against [her]; and (4) a causal connection exists between the alleged adverse action and the protected activity. See Schiano v. Quality Payroll Sys., 445 F.3d 597, 608 (2d Cir. 2006) (citing Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). If Plaintiff makes out a prima facie case, the burden then shifts to the Defendant to produce "evidence of a legitimate, nonretaliatory reason for the challenged employment decision." Porter v. Potter, No. 08-0618-cv, 2010 U.S. App. LEXIS 3057, at *3 (2d Cir. Feb. 17, 2010) (citing Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)).Plaintiff contends that she was fired in retaliation for complaining to the assistant store manager about the anonymous obscene phone call she received on December 29, 2007. Plaintiff fails to make out her prima facie case because she was not engaging in protected activity. "Protected activity includes opposition to a discriminatory employment practice or participation in any investigation, proceeding, or hearing under Title VII. See Hubbard v. Total Communs. Inc., 347 Fed. Appx. 679, 680-81 (2d Cir. 2009) (citing 42 U.S.C. § 2000e-3(a) (emphasis added)). "While a plaintiff need not establish that the conduct she opposed was actually a violation of Title VII, she must have possessed a good faith, reasonable belief that the underlying employment practice was unlawful under the statute." Wimes v. Kaleida Health, 157 Fed. Appx. 327, 328 (2d Cir. 2005) (emphasis added) (citingGaldieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (internal quotations omitted). In addition, "implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII." Id.
First, as the Second Circuit recently held, "no reasonable person could have believed that [a] single incident of sexually inappropriate behavior by a co-worker could amount to sexual harassment." Chenette v. Kenneth Cole Prods., 345 Fed. Appx. 615, 619 (2d Cir. 2009) (citing Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001). In this case, Plaintiff indicated to the assistant general manager that she received one obscene phone call from a an unknown third party, and that she believed a co-worker had been involved with setting up the call. Although Plaintiff does not need to establish that the conduct was actually a violation of Title VII, she must have possessed a reasonable belief that the underlying employment practice was unlawful.
She was not engaged in making a complaint of discrimination against the employer or otherwise asserting any rights protected by Title VII. Title VII protects employees against retaliation from their employers when they complain about an underlying employment practice. The conduct that Plaintiff complained about was not an employment practice. Plaintiff complained about conduct by an anonymous third party — a private individual — who was not affiliated with her employer. While Plaintiff told the assistant store manager that she believed a non-supervisory co-worker may have set up the call, there is no basis for Plaintiff to impute that conduct to Defendant. See Flower v. Mayfair Joint Venture, 95 Civ. 1744 (DAB), 2000 U.S. Dist. LEXIS 2829, at *31-32 (S.D.N.Y. March 13, 2000) ("To fall within Title VII's protection, an employee's opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual." (internal quotations omitted); Braham v. State of New York Unified Court Sys., 94 Civ. 2193 (DAB), 1998 U.S. Dist. Lexis 2785, at *7-11 (S.D.N.Y. March 11, 1998) (granting summary judgment where Plaintiff could not attribute the alleged remarks of two co-workers to the Defendant). Furthermore, even if the activity was protected, Defendant's proffered sufficient evidence in support of a nonretaliatory reason for the firing — specifically, that she was a seasonal hire, and not a regular sales person.
Conclusion
Defendant's motion for summary judgment is granted. Plaintiff's case is dismissed.
SO ORDERED: