Summary
finding fact questions remained with respect to the plaintiff's effort to seek comparable employment where the plaintiff "held a temporary position . . . and was interviewed for other positions." and "rejected [a position] . . . on the ground that her daily commute . . . would be too burdensome"
Summary of this case from Nokaj v. N. E. Dental Mgmt., LLCOpinion
00 CIV. 3559 (DLC).
January 23, 2002.
Marshall B. Bellovin, Amy Desai Ballon Stoll Bader Nadler, P.C. New York, NY., For Plaintiff.
Mark Rosen, McElroy Deutsch Mulvaney, New York, NY., For Defendant Mass. Correa Electric, J.V.
William J. Breuer, Breuer Duffy, Ridgewood, New York, For Defendant Robert Waffenschmidt.
OPINION AND ORDER
Defendant Mass. Correa Electric, J.V. ("Mass") has moved for summary judgment on all claims brought in this employment discrimination action by Barbara Mann ("Mann"), a female electrician fired from her employment at the World Trade Center in 1998. For the following reasons, the motion is granted in part.
BACKGROUND
The following facts are undisputed or as alleged by the plaintiff. In 1987, Mann began working at the World Trade Center ("Center") as an employee of Hatzel Buehler, Inc., a company under contract to the Port Authority of New York and New Jersey (the "Port Authority"), the owner of the Center, to provide services for the operation and maintenance of the Center's electrical systems. Hatzel Buehler eventually assigned Mann to the "off/night" shift from midnight to 8:00, which she preferred to the day shift because it best accommodated her responsibilities at home and her desire to continue to get an education. In 1994, the Port Authority rebid the contract for services relating to the Center's electrical systems. Mass. won the bid on the new contract, took over the operation of the electrical systems at the Center, and became Mann's employer.
The Rule 56.1 Statements are in many instances devoid of citations to the record. The Court has relied not only upon those portions of the record to which the parties cite in their Statements but also those cited in the briefs.
From 1991 to the date of her termination in 1998, Mann's foreman at the Center was John Fox ("Fox"). Although named as a defendant in this action, Fox was dismissed on November 2, 2000 for failure to serve him. Fox and Mann had regular contact at the beginning and end of Mann's shift and occasionally during her shift on the days that their schedules overlapped. Fox was frequently verbally abusive towards Mann when both were employed by Hatzel Buehler. Defendant Robert Waffenschmidt ("Waffenschmidt") was the Mass. superintendent at the Center, and Fox's cousin. When Mass. took over the Center's electrical work, Mann did not advise Waffenschmidt or anyone else at Mass. that Mann had had a history of problems with Fox. Mass. had a sexual harassment policy. Mann read the employee booklet describing the policy when Mass. became her employer.
In November of 1995, Mann complained to Mass. that Fox gave her "all the dirty jobs", talked down to her and favored the male electricians. When Mann complained about some of these issues to an employee of the Port Authority, Mass. advised Mann that any complaints should be made to it. In a December 20, 1995 memorandum to Mann, Mass. stated that "harassment will not be tolerated", and arranged a meeting with Mann to address her concerns, including her desire to work on a shift that would permit her to continue her schooling. Mann then provided to Waffenschmidt a five-page written complaint which described Fox's verbal abuse of Mann. The abuse was principally the use of vulgarities when speaking to Mann over the radio. While Fox also used such vulgarities when addressing men, Mann contends that his abuse of her in this regard was more extreme. The first meeting that was scheduled to address Mann's complaints was cancelled because Mann was unable to attend due to illness. At the meeting that was eventually held and attended by both Mann and Fox, Fox did not deny using vulgar speech. There is no evidence that he was reprimanded, cautioned or disciplined.
The parties have not provided a copy of the letter to the Court.
Shortly thereafter, in March 1996, a lewd photograph was left in the women's locker room used by Mann. In response to this incident, Mass. distributed a memorandum to all employees stating that it would not tolerate such behavior and that anyone involved would be immediately terminated and prosecuted to the full extent allowed by law.
In March or April 1996, Fox and another employee loudly banged on the bathroom door while Mann was in the bathroom. Fearing an emergency, she opened the door while not fully clothed and found the two employees laughing at her. At a meeting held to discuss this incident, the two men denied that it had occurred. Mass. accepted their denials without also questioning Mann at the meeting.
In 1997, Mann signed a list indicating her desire to become a weekend supervisor. A male employee with more seniority but in poor physical condition, with less education and with less relevant experience than the plaintiff was given the appointment.
In September 1997, Mann was verbally warned that her excessive absences, if continued, would lead to her being fired.
On June 9, 1998, Mann called in sick, due to a back sprain she suffered off the job. She sent in a doctor's note indicating that she had been told to take from one to two weeks of bed rest. On June 12, Waffenschmidt sent Mann a notice that she was fired for excessive absenteeism after the Port Authority concurred in the decision to fire Mann because of her absenteeism.
Mann was absent 29 days in 1994, 14 in 1995, 60 in 1996, 18 in 1997, and 12 as of June 12, 1998.
When Mann called in to work she learned that she had been fired and promptly filed a grievance with her union. The Electrician's Union contended that the firing was wrongful since Mann had been given only an oral and not a written warning. As a result of the grievance proceeding Mass. agreed to rehire the plaintiff as of July 20, the scheduled end of her two week vacation. On July 17, however, William Devlin, the Chief Maintenance Supervisor for the Port Authority, ordered Mass. to terminate Mann's employment immediately for her excessive absenteeism and informed Mass. that it would not reimburse Mass. for any work performed by Mann. Mass. advised Mann that, as a consequence of the Port Authority's decision, her employment at the Center was terminated, but that she would be rehired if work became available at another Mass. location.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show 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." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
I. Employment Discrimination Claims
Mann complains that she was discriminated against on account of her gender, that she suffered sexual harassment, and that she was fired in retaliation for her complaints against Fox for his harassment of her and as a result of gender discrimination. Although she pleaded a separate claim for quid pro quo gender discrimination, she is no longer pursuing that claim.
A. Gender Discrimination
Mann contends that she was discriminated against on account of her gender when she was not given an opportunity to perform overtime work on one or two occasions, when she was given fewer tools and keys than male electricians, when she was not promoted in 1997, and in the termination of her employment. Under the three-step framework established byMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993), a plaintiff alleging discrimination in violation of Title VII must first establish by a preponderance of the evidence a prima facie case of discrimination.Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir. 2001). The plaintiff's burden of proof in establishing a prima facie case is "minimal." St. Mary's, 509 U.S. at 506; Byrnie, 243 F.3d at 101.
In order to establish a prima facie case of discrimination, a plaintiff must show (1) that she was within a protected group; (2) that she was qualified for her position; (3) that she suffered an adverse employment action; and (4) that the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class. Byrnie, 243 F.3d at 101. Once the plaintiff has demonstrated a prima facie case, "the burden of production shifts to the employer who must defeat a rebuttable presumption of discrimination by articulating a legitimate, non-discriminatory reason" for the adverse employment action. Id. at 102. If the employer meets its burden, the plaintiff must then show that the employer intentionally discriminated against the employee. Id. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).
Two of Mann's discrimination claims must be dismissed for failure to provide evidence that Mass. was involved in the discrimination. Although Mann complains that she was given fewer tools and keys for her work than male employees, her description of this relates to the 1980's, that is, before Mass. became her employer. She has offered no evidence that the problem persisted during her employment with Mass. or that she ever brought this situation to its attention. Her complaints regarding the one or two occasions she was dissuaded from applying for overtime work do not identify a time period and therefore it is impossible to tell whether it was during her employment with Mass. In any event, in her deposition testimony she describes these incidents as essentially trivial.
Mann has presented sufficient evidence of gender discrimination in the failure to promote her in 1997. She has described sufficient reasons for inferring that the promotion of a male employee more senior to her was nonetheless, in the context of the specific job to which he was appointed, discriminatory. Through unrefuted evidence, she has raised issues of fact regarding whether he was qualified for the position to which he was promoted. While the evidence regarding any discriminatory motive for Mass's decision is slim, it is sufficient to permit this claim to survive.
Mann has presented evidence to support a claim of discrimination based on the termination of her employment in 1998. In addition to presenting prima facie evidence of discrimination, she has also presented sufficient evidence to raise a question of fact about Mass's reasons for firing her, specifically whether the decision was motivated by Mann's absenteeism or gender discrimination. Mann has presented some evidence that men with problems with illness were not fired, but were given light duty. While it is undisputed that the Port Authority ordered Mass. to terminate Mann's employment, Mass. has presented no legal authority for the proposition that any discriminatory action it took can be excused by the fact that its customer or client ordered it to take the action or suffer adverse financial consequences. In this regard, it is particularly noteworthy that there is some evidence that the decision to fire Mann was initially taken by Mass. and not the Center. Finally, it is undisputed that the loss of Mann's employment was an adverse action even though Mass. agreed to rehire Mann at another location should a position become available.
Mann, however, does not present evidence that she ever requested to be placed on light duty and does not present evidence to allow comparison of her record of absenteeism with that of any other employee.
On July 2, 1998, Devlin wrote to Waffenschmidt that he "concurre[d]" in Waffenschmidt's decision to fire Mann.
Similarly, Mann has presented sufficient evidence to prevent summary judgment on the retaliation claim. To succeed on any claim of retaliation, the plaintiff must show that the complaint regarding the discriminatory treatment caused the retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). The plaintiff has offered evidence to support a finding that her complaints about Fox's discriminatory treatment of her to Waffenschmidt, his cousin, contributed to Mass's decision to fire her.
B. Hostile Work Environment
A hostile work environment exists where the workplace is "permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). See also Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001).
Many of the incidents that Mann describes as creating a hostile work environment occurred before Mass. became her employer. Nonetheless, she has described sufficient harassment by one of her supervisors, Fox, to constitute the creation of a hostile work environment during her employment by Mass. Mass. contends that the plaintiff complained principally to the union about the abusive treatment and not to it. It also points to the existence of a company policy against sexual harassment. Mann has described several instances in which she specifically informed Mass. about the harassment and has raised questions of fact as to the adequacy of its response. Moreover, as her supervisor, Fox's conduct is attributable to Mass. and questions about Mass's supervision of Fox and response to Mann's complaints remain. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Fitzgerald, 251 F.3d at 357.
II. FMLA
Mann also alleges that Mass. violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., by terminating her employment for taking time off in June 1998, for what she claims was a serious health condition and for having taken time off prior to June 1998, to care for her sick child.
"The FMLA generally requires covered employers to grant employees who have worked for twelve months (or 1250 hours in twelve months) up to twelve weeks' leave during any twelve month period for, inter alia, `a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000) (quoting 29 U.S.C. § 2612(a)(1)(D)) (emphasis supplied). In addition, the FMLA requires covered employers to grant eligible employees leave "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C) (emphasis supplied).
The FMLA provides protection in the event that an employer interferes with or discriminates against an employee for engaging in the exercise of FMLA rights. Specifically, the statute makes it unlawful for any employer to interfere with the exercise of any right provided by the FMLA. 29 U.S.C. § 2615(a)(1). In two other sections, the statute also protects an employee against retaliation based on the employee's opposition to any unlawful FMLA practice, 29 U.S.C. § 2615(a)(2), or participation in FMLA proceedings, 29 U.S.C. § 2615(b). Together, the three provisions are as follows:
(a) Interference with rights (1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual —
(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter;
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.29 U.S.C. § 2615(a)-(b) (emphasis supplied).
Notwithstanding the plain language of the statute, courts have not been consistent as to which section of the FMLA applies to a claim, such as Mann's, that an employer has terminated an individual's employment for taking FMLA-protected leave. Compare Hale, 219 F.3d at 68 (Section 2614(a)(1) "protects an employee from discharge or demotion by an employer if that action is motivated by the employee's taking of leave pursuant to the FMLA") with O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000) ("The FMLA recognizes two types of claims . . . : interference claims, in which employers burden or outright deny substantive statutory rights to which their employees are entitled, see 29 U.S.C. § 2615(a)(1) (1999), and retaliation claims, in which employers discharge employees for exercising their FMLA right to leave, see id. § 2615(a)(2)." (footnotes omitted)).
Mann does not claim that Mass. terminated her employment for opposing an unlawful FMLA practice, nor does she claim wrongful termination for participating in an FMLA proceeding. Therefore,
Mann's claim is properly brought as an interference claim under Section 2615(a)(1). See Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Because plaintiff's claim is brought under Section 2615(a)(1), it is not governed by the McDonnell Douglas burden-shifting analysis. Id. at 1125. As the Ninth Circuit has noted in Bachelder, 259 F.3d at 1124, many courts have been mislead by the wording of the regulations enacted to implement all parts of the FMLA. These regulations provide that "[a]n employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave." 29 C.F.R. § 825.220(c) (emphasis supplied). Yet, unlike Sections 2615(a)(2) and 2615(b) of the FMLA, Section 2615(a)(1) makes no mention of discriminatory intent on the part of the employer. Bachelder, 259 F.3d at 1124.
See, e.g., Brungart v. BellSouth Telecommuncations, Inc., 231 F.3d 791, 798 (11th Cir. 2000); King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 n. 4 (1st Cir. 1998). Other courts have applied the McDonnell Douglas burden-shifting framework to facts that plainly involved interference under Section 2615(a)(1) rather than opposition or participation under Sections 2615(a)(2) or 2615(b) notwithstanding the specific language of Section 2615(a)(1). See, e.g., Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999) (applying McDonnell Douglas analysis to employee's claim that she was unlawfully fired for taking FMLA-protected leave); Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997) (applying McDonnell Douglas analysis to employee's claim under Section 2615(a) that she was unlawfully disciplined for taking FMLA-protected leave).
The language of Sections 2615(a)(2) and 2615(b) closely follows the opposition and participation clauses of Title VII, 42 U.S.C. § 2000e-3(a), and is therefore properly understood as requiring a showing of discriminatory intent. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000).
42 U.S.C. § 2000e-3(a) makes it "an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter".
The legislative history of the FMLA shows that Congress clearly intended the McDonnell Douglas burden-shifting framework to be applied to claims under Section 2615(a)(2): Section 105(a)(2) makes it also unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title. This "opposition" clause is derived from title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e-3(a)) and is intended to be construed in the same manner. Title VII's opposition clause "forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796 (1973). S.Rep. No. 103-3 at 34, 1993 U.S.C.C.A.N. at 36.
Section 2615(b) also closely follows the participation clause of the Fair Labor Standards Act, see 29 U.S.C. § 215(a)(3), violations of which are traditionally analyzed under the McDonnell Douglas framework. See Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 103 F. Supp.2d 1180, 1184 (N.D.Cal. 2000) (applying McDonnell Douglas burden-shifting analysis to a retaliation claim under 29 U.S.C. § 215(a)(3)); Cheng v. IDEAssociates, Inc., No. 96-11718-PBS, 2000 WESTLAW 1029219, at *4 (D.Mass. July 6, 2000) (same);James v. Medical Control, Inc., 29 F. Supp.2d 749, 752 (N.D.Tex. 1998) (same).
29 U.S.C. § 215(a)(3) provides that it is unlawful for an employer "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee."
In contrast, the language of Section 2615(a)(1) closely resembles Section 8(a)(1) of the National Labor Relations Act ("NLRA"), to which the McDonnell Douglas burden-shifting framework does not apply.See Bachelder, 259 F.3d at 1123; Diaz, 131 F.3d at 712 (comparing the substantive entitlement provided by Section 2615(a)(1) of the FMLA with those provided by the "National Labor Relations Act, the Fair Labor Standards Act, and the Employee Retirement and Income Security Act, all implemented without using the McDonnell Douglas approach."). Section 2615(a)(1)'s dissimilarity to the discriminatory-intent provisions of Title VII lends further support to the proposition that the McDonnell Douglas framework is not applicable under Section 2615(a)(1). See Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S. 427, 428 (1973) (per curiam) (similarity of statutory language strongly indicates that statutes should be interpreted in the same manner).
See 29 U.S.C. § 158(a)(1) provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed" by § 7 of the NLRA.
In order to prevail on her claim, therefore, Mann need not prove discriminatory intent. She need only show that she was entitled to an FMLA benefit and denied that entitlement by her employer. Diaz, 131 F.3d at 713. More specifically, she must show that (1) she participated in FMLA-protected activity and (2) the decision to terminate her employment was motivated by her participation in the protected activity. Cf. NLRB v. Oakes Machine Corp., 897 F.2d 84, 88 (2d Cir. 1990) (A violation of Section 8(a)(1) of the NLRA is established if, inter alia, "the activity was `protected' by the act; and the discharge or other adverse personnel action was motivated by the protected activity." (emphasis supplied)).
Mass. argues that Mann did not provide adequate notice either that the leave she was taking in June of 1998, or her prior intermittent absences, were covered by the FMLA. Specifically, it alleges that Mann waited until October of 1998, to assert that her termination violated the FMLA. The FMLA's regulations provide, however, that an "employee need not expressly assert rights under the FMLA or even mention the FMLA, to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave." 29 C.F.R. § 825.208(e)(2). "The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition.'" Brohm v. JH Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998) (citation omitted). Once an employee has given adequate notice of the existence of a serious health need, the employer bears the burden of inquiring further to determine whether the requested leave qualifies for FMLA protection. 29 C.F.R. § 825.302(c). See Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997). See also Kosakow v. New Rochelle Radiology Associates, 274 F.3d 706, 726 (2nd Cir. 2001) ("[T]he FMLA imposes a legal duty upon the employer to inform its employees of the conditions that they must meet in order to be covered by the FMLA.").
Mann has presented sufficient evidence to raise an issue of fact as to whether she provided notice that she was suffering from a serious health problem in June 1998. She gave notice to Mass. that she was experiencing an "acute lumbosacral sprain," which her physician diagnosed as requiring from one to two weeks rest. Since Mass. has not argued that Mann's absences in the 12 months preceding the term of her employment exceeded 12 weeks, it is unnecessary to address the limited evidence the parties have presented about the health of Mann's daughter and any connection that it had to specific periods of leave Mann had taken in the past.
In a related argument, Mass. urges that Mann has not presented sufficient evidence that her back injury constituted a "serious health condition," as that term is defined in 29 U.S.C. § 2611(11). The FMLA defines "serious health condition" as an "illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital . . . or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). As Mann has never received inpatient care for her back ailment, her condition can only qualify for FMLA protection if it falls under subsection (B) of this definition. FMLA regulations list several categories of conditions which fall under subsection (B). See 29 C.F.R. § 825.114(a). The third of these describes a "chronic serious health condition," which involves periodic visits to a health care provider for treatment, a condition lasting over an extended period of time, and episodic periods of incapacity. 825.114(a)(2)(iii). Mann has presented sufficient evidence to raise issues of fact regarding each of these three requirements. The record shows that her recurrent back pain, which began at least as early as the mid-1990s, has involved periodic visits to a doctor and occasional periods of incapacity, one of which occurred at the time her employment was terminated.
Finally, as discussed in connection with Mann's gender discrimination claims, she has presented sufficient evidence to raise an issue of fact as to whether she was fired because she took FMLA-protected leave. The Center's concurrence in this decision, or even a demand by the Center that Mass. fire Mann because she took this leave will not excuse Mass's conduct so long as Mann is able to show that her need to take FMLA-protected leave was a motivating factor in Mass's decision to terminate her employment.
III. Negligent hiring and supervision
Mann also brings a claim for negligent hiring and supervision against Mass. New York's Workers' Compensation Statute provides that "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured . . . by the negligence or wrong of another in the same employ . . . ." N .Y. Workers' Comp. Law § 29(6) (McKinney 1993 Supp. 2001); see also N.Y. Workers' Comp. Law § 11 (McKinney 1993 Supp. 2001). Mann's "common law negligence claims are therefore precluded by the exclusive remedy provisions of New York's Workers' Compensation Statute." Ferris v. Delta Air Lines, Inc., No. 00-7921, 2001 WESTLAW 1637470, at *8 (2d Cir. Dec. 21, 2001).
IV. Failure to Exhaust through Grievance Process
Mass. argues that Mann failed to exhaust remedies available through the grievance process under the Collective Bargaining Agreement ("CBA") between Mass. and the International Brotherhood of Electrical Workers, Local Union No. 3, of which Mann was a member. Specifically, Mass. argues that, although Mann properly grieved her initial termination of her employment, she did not grieve her dissatisfaction with the resolution of her grievance, i.e., that she could not work at the Center, but that Mass. would reinstate her when another electrical maintenance mechanic position became available.
In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), "[t]he Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the `majoritarian processes' of collective bargaining."Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737-38 (1981) (citation omitted).
The Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), confirmed the continuing vitality of the Barrentine/Gardner-Denver line of cases. See Tran v. Tran, 54 F.3d 115, 117 (2d Cir. 1995) ("There is nothing in Gilmer which appears to throw anything but favorable light upon the continuing authority of Barrentine."). Thus, Mann need not exhaust remedies available through the grievance procedures under the CBA before bringing suit under Title VII.See id. at 117-18; Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996) (holding that exhaustion of grievance and administrative remedies under a collective bargaining agreement is not required in order to bring a Title VII claim in federal court).
V. Damages
To the extent that any of her wrongful termination claims succeed, Mann has presented no evidence to support an award of damages for any of the following: the necessity to make an early-withdrawal from her pension fund and the penalties and lost profits associated with that withdrawal, expenses for retraining and lost college benefits, and lost medical benefits.
Mass. argues that Mann has not met her duty to mitigate her damages due to lost wages. "In order to mitigate, it is sufficient that the employee make honest good faith efforts and use reasonable diligence to find comparable work." NLRB v. Thalbo Corp., 171 F.3d 102, 112 (2d Cir. 1999) (citation omitted). "[I]t is the defendant who has the evidentiary burden of demonstrating at trial that a plaintiff has failed to satisfy this duty. This may be done by establishing (1) that suitable work existed, and (2) that the employee did not make reasonable efforts to obtain it."Dailey v. Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997).
Questions of fact remain as to whether Mann made a good faith effort to seek comparable employment. Following her termination, Mann held a temporary position as an electrician at the United Nations and was interviewed for other positions. Mann rejected an electrical maintenance position at the Staten Island Teleport on the ground that her daily commute from her residence in Eastern Pennsylvania to Staten Island would be too burdensome.
The motion to dismiss the claim for back pay and front pay on the ground that Mann failed to mitigate her damages is denied.
It is unclear from the parties' submissions whether the plaintiff has sufficiently cooperated during discovery to proceed with a claim for back pay. The plaintiff shall be given two weeks from the date of this Opinion to complete production of any information requested during discovery regarding her earnings since she lost her job with Mass. At that date, the defendants may renew any application to strike a claim for back pay if they believe there remains a basis to grant that application.
Conclusion
For the reasons discussed above, Mass's motion for summary judgment is denied with respect to plaintiff's claims of discriminatory failure to promote, discriminatory termination, retaliatory termination, maintenance of a hostile work environment, termination in violation of the FMLA, and with respect to Mass's claims of failure to exhaust through the CBA's grievance process, failure to mitigate damages, and failure to provide evidence supporting a claim of back or front pay. Mass's motion for summary judgment is granted with respect to all other claims.
SO ORDERED: