Opinion
1:00-CV-1092 (FJS/RWS)
December 19, 2002
HARDING LAW FIRM, Glenville, New York, CHARLES R. HARDING, ESQ., of counsel, Attorneys for Plaintiff.
RUBERTI, GIRVIN FERLAZZO, P.C., Albany, New York, GREGG T. JOHNSON, ESQ. and TANYA A. YATSCO, ESQ., of counsel, Attorneys for Defendant.
I. INTRODUCTION
Plaintiff Leslie Peterson brings the present employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"), and N.Y. Exec. Law § 290 et seq. (McKinney 2002). Plaintiffs amended complaint asserts two causes of action under Title VII: (1) a hostile work environment claim, and (2) a retaliation claim. In addition, Plaintiffs federal claims are mirrored under the New York Human Rights Law.
Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
II. BACKGROUND
Plaintiff was employed as a highway worker by Defendant, the Washington County Department of Public Works, from June 1988 until October 1998. In October 1998, Plaintiff was promoted to Highway Supervisor I and remained in that position until November 12, 1999, at which time she resigned. Plaintiff was supervised by Department of Public Works Superintendent Willy Grimmke for approximately the last two years of her employment with Defendant.
Plaintiff alleges that she was sexually harassed by coworkers during her tenure as a highway worker. The gravamen of Plaintiffs lawsuit, however, relates to several incidents that occurred during her tenure as a supervisor. Specifically, Plaintiff points to one incident of alleged sexual harassment by her then-direct supervisor, Peter Beecher, and additionally asserts that Grimmke retaliated against her for complaining about that incident. Plaintiff further asserts that the alleged retaliatory acts caused her to resign on November 16, 1999.
Plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights on March 13, 2000.
III. DISCUSSION
A. Summary Judgment
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the non-moving party based on the evidence presented, the legitimate inferences drawn from that evidence in favor of the non-moving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
B. Timeliness of Plaintiff's Hostile Work Environment Claim
"Title VII requires a claimant to file a discrimination charge with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged act of discrimination." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (citing 42 U.S.C. § 2000e-5 (e)(1)) (other citation omitted).
In the interest of evenhanded administration of the law, the Supreme Court has counseled strict adherence to Title VII's timing requirements. See Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). However, where the alleged unlawful employment practice is the existence of a hostile work environment, the discrete acts underlying such a claim may span weeks, months, or even years. See Nat'l R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061, 2073 (2002) (" National Railroad"). While certain individual instances of alleged harassment, viewed in isolation, may fall outside the limitations period, the entire series of events is timely as long as any of the acts complained of fall within the limitations period. See id. at 2074 (footnote omitted).
Plaintiff alleges that she was harassed by coworkers during her tenure as a highway worker from 1988 through October 1999. Specifically, Plaintiff alleges that toilet seats and her steering wheel were greased and that her male counterparts refused to socialize with her. The foregoing allegations notwithstanding, Plaintiff focuses on several incidents that occurred during her tenure as a supervisor. First, Plaintiff alleges that she was subjected to "abusive, profane, threatening and sexist verbal statements" by her then-supervisor, Peter Beecher, on January 28, 1999. See Dkt. No. 22 at ¶ 72. Plaintiff further alleges that she complained about the January 28, 1999 incident to John LaPointe, a member of the Washington County Board of Supervisors, and that while she did not complain of sexual harassment per se, her complaint "meets the definition of possible sexual harassment." See id. at ¶ 72, 74, 82.
To support this allegation, Plaintiff cites pages of her deposition testimony that are not included in the record. However, Plaintiff also cites her affidavit, which does contain a brief description of Beecher's statements.
Second, Plaintiff alleges that Grimmke retaliated against her for complaining about the January 28, 1999 incident. Specifically, Plaintiff alleges that Grimmke filed several unwarranted disciplinary charges against her and gave her at least one undesirable work assignment.
Because Plaintiff filed her Charge of Discrimination with the New York State Division of Human Rights on March 13, 2000, Defendant argues that any alleged instances of discrimination predating May 20, 1999, are untimely and may not be considered by the Court. Defendant further argues that the continuing violation doctrine is not available to Plaintiff, citing Findlay v. Reynolds Metals Co., Inc., 82 F. Supp.2d 27, 37 (N.D.N.Y. 2000) (noting that the continuing violation doctrine is disfavored in the Second Circuit) (citations omitted).
Defendant additionally argues that Plaintiff's failure to respond to the timeliness argument entitles Defendant to summary judgment on this point, citing Georgopoulos v. Int'l Bhd. of Teamsters, 942 F. Supp. 883, 900-02 (S.D.N.Y. 1996). However, in the interest of justice and because Defendant has raised the timeliness issue in some detail, the Court will address the merits of Defendant's contentions.
Defendant is incorrect to the extent that it asserts that the continuing violation doctrine is unavailable to Plaintiff as a matter of law; National Railroad held that the events underlying a hostile work environment claim generally amount to a continuing violation. 122 S.Ct. at 2073. That said, Plaintiff makes no effort whatsoever to identify and link the discrete events about which she complains into the kind of cohesive whole that might constitute a continuing violation for the purposes of Title VII's timing requirements. However, the Court need not resolve this issue, because even assuming arguendo that the harassing acts that Plaintiff alleges amount to a continuing violation, her hostile work environment claim is still time-barred.
Plaintiff alleges a pattern of conduct by certain of her coworkers and supervisors that contributed to a hostile work environment. These allegations fall into two discrete categories. First, there are acts that Plaintiff characterizes as sexual harassment. These acts include the alleged incidents of coworker harassment occurring between 1988 and October 1998. In addition, Plaintiff characterizes the January 28, 1999 incident involving Peter Beecher as sexual harassment.
Second, Plaintiff alleges that her supervisor, Willy Grimmke, retaliated against her on several occasions for complaining about the January 28, 1999 incident. The alleged retaliatory acts by Grimmke were not overtly sex-based; Plaintiff concedes that Grimmke never made sexual advances, told off-color jokes, made derogatory comments about women, or engaged in any other sexually inappropriate conduct. See Dkt. No. 22 ¶ 12, 14.
The Second Circuit has held that individual acts of discrimination underlying a hostile work environment claim need not be overtly sex-based so long as the plaintiff can prove that the acts were motivated by sex-based discriminatory animus. See Raniola v. Bratton, 243 F.3d 610, 621-23 (2d Cir. 2001) (citations omitted). Plaintiff, however, has not argued or offered any evidence that the alleged retaliatory acts were motivated by sex-based discriminatory animus.
Plaintiff filed a Charge of Discrimination with the New York State Division of Human Rights on March 13, 2000. The applicable 300-day limitation period thus extended back to approximately May 20, 1999. Accordingly, even if Plaintiff could establish a continuing violation based on the incidents that she characterizes as sexual harassment, the last act of sexual harassment alleged by Plaintiff, i.e., the January 28, 1999 incident, falls outside the 300-day limitation period. The Court therefore finds that Plaintiffs hostile work environment claim is time-barred.
C. Hostile Work Environment
Even if Plaintiffs hostile work environment claim was not time-barred, her claim fails on the merits. "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, ¶ (1986). "A hostile work environment claim requires a showing [1] that the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and [2] that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal citations and quotation marks omitted)).
To establish the first element, "[t]he plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." Id. at 373 (citing Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001) (citation omitted)) (other citation omitted). "This test has objective and subjective elements: the misconduct shown must be `severe or pervasive enough to create an objectively hostile or abusive work environment,' and the victim must also subjectively perceive that environment to be abusive." Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
With respect to the objective showing, "[i]solated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. (citations omitted). Indeed, a single incident of sexual harassment will not suffice unless "extraordinarily severe." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d. Cir. 2000) (quotation omitted). For example, the Second Circuit has found that a single instance of sexual assault may suffice to establish an objectively hostile work environment. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)) (other citation omitted).
In Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000), the Second Circuit held that a single instance of severe verbal abuse by a coworker was sufficient to survive summary judgment in a hostile work environment case. See id. at 154. In Howley, a male firefighter loudly and persistently berated a female coworker in front of a group of employees, some of whom were the victim's subordinates. See id. at 148, 154. The verbal abuse included language that was derogatory to women and an assertion that the victim had gained her position by performing sexual acts. See id. The court concluded that a rational jury could find that such public humiliation would "foment gender-based skepticism as to the competence of a commanding officer" and thus impair the plaintiffs ability to lead her subordinates in life-threatening circumstances faced by firefighters. See id. at 154.
In this case, the only instance of sexual harassment that Plaintiff points to is the January 28, 1999 altercation with Peter Beecher. Plaintiff and Beecher apparently argued about the County's policy regarding the application of salt to roadways. See Dkt. No. 23, Exhibit "T," at 15. During the course of the ensuing exchange, Plaintiff alleges that Beecher verbally assaulted her. See Dkt. No. 23, Leslie Peterson Affidavit, sworn to July 23, 2001, at ¶ 17 ("Peterson Affidavit"). Specifically, Plaintiff alleges that Beecher was "angry and threatening," "used obscenities," and intimated that she had engaged in intimate relations with a truck driver while on duty. See id. John McMillan, a supervisor employed by Defendant, witnessed the exchange between Plaintiff and Beecher. See Dkt. No. 22 at ¶ 72.
Plaintiff's Amended Complaint alleges that she was subject to a pattern of harassing behavior by coworkers during her tenure as a highway worker. See Dkt. No. 12 at ¶ 18. Specifically, Plaintiff alleges that male coworkers refused to speak to her or eat lunch with her, referred to her as a "bitch" in her presence, and greased toilet seats, door handles and steering wheels on numerous occasions. See id. Plaintiff further alleges that she made numerous verbal complaints to Defendant's management and that Defendant failed to take remedial action. See id. at ¶ 19. However, for reasons not at all apparent, Plaintiff does not refer to any of these incidents in her motion papers or her Local Rule 7.1 statement of material facts. Plaintiffs affidavit submitted in conjunction with her opposition to the instant motion, however, does recount these incidents in some detail. Nevertheless, by failing to discuss these incidents and provide the Court with citations to the record, Plaintiff appears to have dropped the bulk of the allegations that might constitute the foundation of a hostile work environment claim.
The subject and contents of the altercation between Plaintiff and Beecher are unclear. While Plaintiff claims to have recorded the altercation, see Peterson Affidavit at ¶ 17, 19, she has not offered the tape or a detailed description or transcript thereof for the Court's consideration.
Plaintiff claims that immediately prior to the January 28, 1999 altercation, Beecher stated "I am going out there and show that `f — king slut' who is boss" in the presence of other employees. See Peterson Affidavit at ¶ 17. It is unclear from the record how Plaintiff learned of these statements; in all likelihood an individual who heard the alleged statements related them to her. If so, Plaintiff may not rely on such inadmissible hearsay to defeat summary judgment. See Howley, 217 F.3d at 155 ("Nor would testimony by [plaintiff] that other firefighters told her of certain statements by Holdsworth likely be admissible to prove that Holdsworth actually made such statements, for her testimony offered for that purpose would be hearsay.") (citations omitted); see generally Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) ("Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial.") (citations omitted).
Of course, the testimony of the individual(s) who allegedly heard Beecher's statements would be admissible, as those statements would not be offered for the truth of the matters asserted but only for the fact that Beecher made them. Cf. Howley, 217 F.3d at 155 (citing Fed.R.Evid. 801(c)). Plaintiff, however, points to no affidavits, deposition testimony, or other admissible evidence by such individuals.
While the January 28, 1999 incident, as described by Plaintiff, bears some similarities to Howley, it is distinguishable on many grounds. For example, Beecher did not berate Plaintiff in front of a large group of coworkers and none of Plaintiffs subordinates were present. Moreover, Plaintiff has not alleged or offered proof that this incident fomented sex-based animus among Defendant's employees or impaired her ability to do her job. Mindful that "[a] plaintiff pursuing a sex-based hostile work environment claim `must always prove that the conduct at issue was not merely tinged with offensive connotations, but actually constituted discrimination because of sex,'" Raniola, 243 F.3d at 621 (quoting Oncale, 523 U.S. at 80-81, 118 S.Ct. 998)), the Court finds that Plaintiff has not adduced sufficient evidence to withstand summary judgment. Accordingly, the Court grants Defendant's motion for summary judgment with respect to Plaintiffs hostile work environment claim.
D. Retaliation
"Title VII provides that it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter." Richardson, 180 F.3d at 443 (quoting 42 U.S.C. § 2000e-3 (a)). "To establish a prima facie case of retaliation a plaintiff must show (1) participation in a protected activity that is known to the defendant, (2) an employment decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse decision." Id. (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)).
Defendant argues that (1) Plaintiff did not engage in a protected activity, (2) Defendant was not aware of any protected activity that she may have engaged in, and (3) no causal connection exists between the alleged protected activity and the alleged retaliatory acts.
The Court notes that Plaintiffs retaliation claim has evolved over time. In her Charge of Discrimination, Plaintiff alleges that she was retaliated against for collecting evidence of discrimination. See Dkt. No. 20, Exhibit "A." However, Plaintiffs amended complaint generally alleges retaliation for reporting instances of discrimination. See Complaint at ¶ 28-33. In any event, Plaintiff now contends that her complaint about the January 28, 1999 incident was a protected activity under Title VII, that Defendant understood it as such, and that the proximity of the alleged acts of retaliation to her complaint establishes the requisite causal connection.
Notably, in her Charge of Discrimination, Plaintiff specifically crossed out a reference to retaliation for complaining of harassment. See Dkt. No. 20, Exhibit "A." Instead, Plaintiff added an allegation to the effect that she was retaliated against for gathering proof of harassment. See id. Plaintiff appears to have abandoned this claim, as she makes no reference to it whatsoever in her motion papers.
In the context of retaliation claims under Title VII, the employment practice opposed by the plaintiff "need not . . . `actually amount to a violation of Title VII.'" McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001) (quotation omitted). "Rather, the plaintiff must have had a `good faith, reasonable belief that the underlying challenged actions of the employer violated the law.'" Id. (quoting [ Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999)]). Assuming arguendo that Plaintiff had a good faith, reasonable belief that the January 28, 1999 incident amounted to a violation of Title VII, she must still show that Defendant was aware of her allegedly protected activity. See Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). "[I]mplicit in the requirement that the employer [was] aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII." Id.
Plaintiff alleges that she complained about the January 28, 1999 incident to John LaPointe, a member of the Washington County Board of Supervisors, and that while she did not complain of sexual harassment per se, her complaint "meets the definition of possible sexual harassment." See Dkt. No. 22 at ¶ 72, 74, 82. In addition, Plaintiff allegedly played a tape of the incident for LaPointe. See id. at ¶ 78; Dkt. No. 26 at ¶ 78.
Plaintiff additionally concedes that she never formally complained of sexual harassment to Defendant's management. See Dkt. No. 22 at ¶ 13, 15-20.
Plaintiff, however, has offered no evidence that there existed any basis upon which Defendant should reasonably have concluded that the January 28, 1999 incident amounted to sexual harassment. Rather, Plaintiff rests on the flimsy argument, unsupported by any concrete facts, that since the January 28, 1999 incident arguably amounted to sexual harassment, Defendant should have understood her complaint to be one of sexual harassment. Mindful that the burden rests on the non-moving party to "`set forth specific facts showing that there is a genuine issue for trial,'" Georgopoulos, 942 F. Supp. at 900 (quoting Fed.R.Civ.P. 56(e); Scottish Air, 867 F. Supp. at 266), the Court finds that Plaintiff cannot establish that she engaged in a protected activity known to Defendant. Accordingly, the Court grants Defendant's motion for summary judgment with respect to Plaintiffs retaliation claim.
To the extent that Plaintiff relies on having played the tape of the January 28, 1999 incident for John LaPointe, Plaintiff has failed to establish the contents of the tape or how the contents establish constructive knowledge of sexual harassment.
Given this disposition, the Court need not address Defendant's other argument with respect to the causal relationship between Plaintiff's alleged protected activity and the allegedly retaliatory acts.
E. State Law Claims
Plaintiffs federal claims are mirrored under the New York Human Rights Law. Since the analysis under federal and New York law is the same, the Court dismisses these claims for the reasons set forth above.
In addition, the parties devote a portion of their respective papers to a purported constructive discharge claim. However, no such claim is raised in Plaintiff's complaint. It appears that Plaintiff raises constructive discharge only as a component of her hostile work environment and retaliation claims. Accordingly, the Court need not address this as a separate cause of action.
IV. CONCLUSION
After carefully considering the file in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court herebyORDERS that Defendant's motion for summary judgment is GRANTED in its entirety; and the Court further
ORDERS that the Clerk of the Court enter judgment for Defendant and close this case.