Rechichi v. Eastman Kodak Company

Full title: MARIA RECHICHI, Plaintiff, v. EASTMAN KODAK COMPANY, Defendant

Court: United States District Court, W.D. New York

Date published: Jan 21, 2004

No. 02-CV-6249 CJS (W.D.N.Y. Jan. 21, 2004)

Opinion

No. 02-CV-6249 CJS.

January 21, 2004

Samuel F. Prato, Esq., Rochester, New York, for Plaintiff.

T. Andrew Brown, Esq., Brown Hutchinson, Rochester, New York, for Defendants.

DECISION AND ORDER

CHARLES SIRAGUSA, District Judge

INTRODUCTION

This is an action alleging employment discrimination pursuant to New York Human Rights Law, New York Executive Law § 296. Now before the Court is defendant's motion [#13] for summary judgment. For the reasons that follow, that application is granted in part and denied in part.

BACKGROUND

Except where otherwise noted, the following are the facts of this case, viewed in the light most favorable to the plaintiff. Plaintiff Maria Rechichi ("plaintiff") was employed by defendant Eastman Kodak Company ("defendant") for approximately nineteen years, between 1980 and May 27, 1999. During that period, plaintiff held several positions. From 1980 until 1991, plaintiff was a Personnel Relations Assistant. During that time, plaintiff alleges that she was denied a position as a Consumer Specialist, for unknown reasons, was transferred to different work sites, and was reprimanded by a female supervisor for allegedly having lied about missing work for jury duty. As for the reprimand, the supervisor eventually determined that plaintiff had not lied, and apologized. Plaintiff did not suffer any loss of pay or benefits as a result of the foregoing incidents. In 1991, plaintiff transferred to a division within defendant known generally as Roll Coating Production. Plaintiff subsequently held four positions within Roll Coating Production: Clerk, Service Assistant, Wind-up Operator, and Dispatcher. From 1991 until 1993, plaintiff worked as a Clerk, handling personnel scheduling matters. Plaintiff indicates that she did not experience "any problems" while working in the Clerk's position. Pl. Dep. 84. Beginning in 1993, and continuing until her resignation, plaintiff began working on the production floor of the Roll Coating Production area. From 1993 until 1995, plaintiff worked as a Service Assistant, and from 1995 until 1997 or 1998, she worked as a Wind-up Operator. Both positions were performed on the production floor, and in both positions, plaintiff's immediate supervisor was Team Leader David Kenhart ("Kenhart"), while her overall supervisor was Kevin Dornan ("Dornan"). From approximately 1998 until May 27, 1999, plaintiff worked as a Dispatcher, which position still required her to be present on the production floor at times. As a Dispatcher, plaintiff's supervisor was Ann Wyrough ("Wyrough"). During the period of 1993 through May 27, 1999, plaintiff contends that she experienced various forms of discrimination. Primarily, she contends that during that entire period, she was subjected to a sexually hostile work environment, consisting of profanity and disparaging comments, physical contact, and exposure to pornography. More specifically, she contends that on a daily basis, male employees referred to her and other women as bitches and cunts; told jokes which disparaged women; made comments to her and other women such as, "You don't belong here," "Why are you here? Why aren't you home barefoot and pregnant like my wife?"; physically pushed her around while working on machines, and in one instance, pushed her into a machine where she suffered an injury to her hand; and displayed pornographic photographs and magazines in plain view. Plaintiff contends that this behavior caused her to experience significant stress, resulting in hives and difficulty sleeping.

Plaintiff alleges that between 1993 and 1998, she complained about the alleged hostile environment to Kenhart and to Dornan, neither of whom did anything about the harassment. Instead, she contends that, in response to her complaints, Dornan accused her of harassing male employees, and placed her on "final warning." At her deposition, she stated:

They were playing games with me. Kevin Dornan, Dave Kenhart; they played games with me all the time. They had my mind so screwed up that I didn't know if I was coming or going. You know, I was just messed up immensely. They put me on final warning, okay; they reprimanded me. You want to know why? Because I went to my team leader and asked my team leader what was going on with Kevin Dornan; why was it they were treating me the way they were? . . . Kevin Dornan said to me, "You can't go to anybody and talk to them about any situation that's discussed in here." And because I went to my team leader, they called me back the next day and they put me on final warning which — they sent you home for one day and you write your own . . . proposal of how you're going to change your behavior and make things better; that's what it is.

Pl. Dep. 114-15. Plaintiff indicates that, after she began reporting to Wyrough in or about 1998, she complained to Wyrough about the continuing harassment on the production floor in general terms, but refused to give specifics, because of the treatment she had received when she had complained to Dornan:

I said, "Ann," you know, "the treatment on the [production] floor is getting pretty bad." . . . She [Wyrough] said, "Well, Maria, what treatment [are you talking about] and how are you dealing with It?" I said, ". . . I'm not going to go into detail because I got burned once and I'm not going to get burned again, because I talked to my supervisor specifically what [sic] was being said on the floor and what was happening and I got punished and I got put in final warning and I'm not doing it again. . . .

Pl. Dep. 128.

In addition to the alleged hostile environment, plaintiff maintains that she was discriminated against in or about 1993 with regard to the training she received to become a Wind-up Operator. Specifically, she alleges that the person from whom she was supposed to receive instruction at defendant's "wind-up school," refused to provide training. However, plaintiff complained and eventually received the necessary training. Pl. Dep. 148-49. Plaintiff also contends that she denied opportunities for promotion. In this regard, while working as a Wind-up Operator, she expressed interest to Dornan in being promoted to the position of "Coater" on three occasions when there were openings. She was not selected, and does not know anything about the persons who were selected, except that one of them was a male who began working in Roll Coating Production at about the same time as she did.

Toward the end of plaintiff's employment, and apparently in response to a claim that it had underpaid women and/or minorities, defendant made lump sum payments to employees including plaintiff. In March or April of 1999, defendant paid plaintiff $9,000.00 for back pay, and, at the same time, increased her pay going forward. Pl. Dep. 120-21, 144-45.

Plaintiff resigned her position on May 27, 1999. Regarding the reasons for her resignation, plaintiff stated:

I felt that based on what I as going through at Kodak, I was forced to leave. . . . [T]here was a certain amount of harassment that . . . I had been put through on a daily basis, and the fact that I was going nowhere promotion-wise; I would never make coater, I would never make team leader in Roll Coating Division — that was not a feasability for a person like myself.

Pl. Dep. 100-101; see also, Id. at 106 ("Now, this is a daily chore; I put up with it for a long time. And then they said, `Oh, you quit Kodak.' Yeah, I quit Kodak all right; I didn't have a choice."). As for her belief that she would never be promoted, plaintiff acknowledges that neither Dornan nor Wyrough ever told her that, or otherwise indicated that she would not be promoted. Instead, she apparently bases her belief on the fact that she did not receive any of the three openings in Coating school. See, Pl. Dep. 102 ("[I knew that] I wasn't going to go anywhere.").

Plaintiff, who now resides in Florida, commenced this action on May 6, 2002, pursuant to 28 U.S.C. § 1332. In her complaint, plaintiff contends that defendant violated her rights under the New York Human Rights Law, Executive Law § 296, by discriminating against her on the basis of her sex. She alleges that the discrimination took the form of unequal pay, hostile work environment, failure to promote, failure to train, and constructive discharge. Following the completion of discovery, on June 2, 2003, defendant moved for summary judgment, primarily on the grounds that plaintiff's claims are barred by the New York Human Rights Law's three-year statute of limitations. Defendant further maintains that, even if the claims are timely, that plaintiff cannot demonstrate a prima facie case as to any of them. At counsels' request, oral argument of the motion was adjourned until January 15, 2004, when counsel appeared before the undersigned. The Court has thoroughly considered the parties' submissions and the arguments of counsel.

ANALYSIS

Rule 56

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).

New York Human Rights Law

The New York Human Rights Law ("NYHRL"), Executive Law § 296, provides that

[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of the . . . sex . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. N.Y. Executive Law § 296(a) (emphasis added). The analysis of claims under the NYHRL parallels the analysis of Claims under Title VII, 42 U.S.C. § 2000e et seq. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (Citations omitted).¹

Plaintiff's Affidavit in Opposition to the Summary Judgment Motion

1 Accordingly, references below to Title VII are meant to apply equally to the New York Human Rights Law.

At the outset, the Court must consider whether or not certain portions of plaintiff's affidavit in opposition to the motion should be stricken, because they contradict her earlier sworn deposition testimony. It is well settled that the party opposing summary judgment may not create a triable issue of fact "merely by submitting an affidavit that disputes his own prior sworn testimony." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). Rather, such affidavits are to be disregarded. Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) (citations omitted). Here, in plaintiff's affidavit in opposition to the summary judgment motion, she alleges that she continued to experience all of the acts of hostile environment discrimination described above until the day she resigned her position on May 27, 1999. Pl. Aff. [#21], ¶ 3 ("I was subjected to these acts of harassment from 1993 until the day I left Kodak."). Defendant alleges that this contradicts plaintiff's deposition testimony; that is, defendant contends that, at her deposition, plaintiff testified that while she was reporting to Wyrough, in 1998 and 1999, the only discrimination she experienced was dirty jokes, and comments by one employee named Eddie Vannoy, who actually was terminated by defendant in 1998. However, the Court disagrees with defendant's position, and finds that plaintiff's deposition testimony could reasonably be construed as indicating that all of the various types of hostile environment discrimination described above, including comments by men other than Vannoy, continued after she began reporting to Wyrough. Pl. Dep. 126.

Statute of Limitations

The Court will now consider defendant's argument that plaintiff's claims are time-barred. Claims under the New York Human Rights Law have a three-year statute of limitations, measured from the date the action was filed in court. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (Citations omitted). Plaintiff filed this action on May 6, 2002, therefore, any claims involving conduct occurring prior to May 6, 1999 would generally be time barred.

However, some acts which fall outside of the limitations period may still be actionable. In National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2074 (2002), the Supreme Court held that "[a] hostile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice,'" so that, "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Accordingly, "[i]n order for the [hostile environment claim] to be timely, the employee need only file a charge within [three years] of any act that is part of the hostile work environment." Id. at 2075.

In contrast, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 122 S.Ct. at 2072. Examples of "discrete acts" include termination, failure to hire, failure to promote, and denial of a transfer. Id. at 2073; See also, Costanzo v. U.S. Postal Serv., No. 00 Civ. 5044 (NRB), 2003 WL 1701998 at *5 (S.D.N.Y. Mar. 31, 2003) ("Discrete acts" include "job assignments" and "failures to compensate adequately."); Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) ("[A]n employer's rejection of an employee's proposed accommodation . . . does not give rise to a continuing violation. Rather, the rejection is the sort of `discrete act' that must be the subject of a complaint to the EEOC within 300 days.").

Here, defendant's argument is essentially that, excluding plaintiff's affidavit filed in opposition to the summary judgment motion, she cannot produce evidence that she experienced any discrimination after May 6, 1999. However, that argument is now largely negated, since the Court has ruled that plaintiff's affidavit must be considered. The Court does agree, though, that, to the extent that plaintiff may be asserting claims for discrete acts of discrimination, such as discriminatory pay, failure to promote,² and failure to train, those claims are time-barred.³ The one exception to that is plaintiff's claim for constructive discharge, which allegedly occurred on May 27, 1999, and would therefore be timely. Accordingly, summary judgment is granted to defendant on all claims except those for hostile environment and constructive discharge.

2 If treated as discrete acts of discrimination, plaintiff's claims for failure to promote are time barred, inasmuch as they occurred prior to 1999. However, plaintiff contends that the alleged overall failure to promote is part of the alleged hostile work environment. See, Pl. Stmt. of Facts, ¶ 5 ("The Hostile Work Environment caused plaintiff to be denied promotion opportunities."). Whether or not plaintiff may use evidence of an alleged failure to promote in support of her hostile environment claim is an evidentiary issue to be addressed at trial.

3 For example, the alleged failure to train occurred in or about 1993, while the three alleged instances of a failure to promote plaintiff to Coater occurred prior to 1999, when plaintiff was still reporting to Dornan. The alleged failure to pay equal wages was addressed by plaintiff prior to May 1999, inasmuch as plaintiff stated that defendant made a lump sum payment to her, and adjusted her pay, in March or April of 1999. In any event, the record contains no evidentiary proof in admissible form that plaintiff was paid less than similarly situated men.

Hostile Work Environment

Defendant next argues that plaintiff cannot demonstrate a prima facie case of hostile environment discrimination, for two reasons, namely, that the alleged behavior was not sufficiently severe or pervasive, and that even if it was, that the harassment by plaintiff's co-workers cannot be imputed to defendant, since plaintiff failed to utilize defendant's internal complaint procedures. To survive a motion for summary judgment involving a hostile work environment claim, a plaintiff

must elicit evidence from which a reasonable trier of fact could conclude (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.

Mack v. Otis Elevator Co., 326 F.3d at 122 (Citation and internal quotation marks omitted). With regard to the first of these elements, it is clear that

[i]solated instances of harassment ordinarily do not rise to th[e] level [of a hostile work environment]. Rather, the plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances.

Cruz v. Coach Stores, Inc., 202 F.3d at 570 (Citations and internal quotations omitted). "As a general matter, isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Quinn v. Green Tree Credit Corp., 159 F.3d at 768 (citations and internal quotation marks omitted). Factors which the Court should consider include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a `mere offensive utterance;' (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 437 (2d Cir. 1999).

If a plaintiff succeeds in demonstrating, prima facie, the existence of a hostile work environment, she must then demonstrate that liability should be imputed to the employer. The standard here varies depending upon whether the harasser was a co-worker or a supervisor, and if a supervisor, whether or not he or she took any adverse employment action against the plaintiff. Where the harassment was caused by a non-supervisory co-worker, "the burden falls to the plaintiff to prove that the employer did not take reasonable steps to address the situation." Bartniak v. Cushman Wakefield, Inc., 223 F.Supp.2d 524, 529 (S.D.N.Y. 2002) ( citing Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1180 (2d Cir. 1996); see also, 29 C.F.R. § 1604.11(d). Thus, the plaintiff, to prevail, must demonstrate that the employer was itself negligent in permitting the harassment to occur or to continue. See, Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63-64 (2d Cir. 1998) ("[W]hen the harassment is attributable to a co-worker, rather than a supervisor . . . the employer will be held liable only for its own negligence. Therefore, [a defendant] will only be liable if [a plaintiff] can demonstrate that the [defendant] company either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.") (citations and internal quotations omitted); see also Mack v. Otis Elevator Co., 326 F.3d at 123 ("Employers are not . . . vicariously liable for hostile work environment created by a mere co-worker of the victim."). On the other hand, when the harassment is committed by the plaintiff's supervisor, the employer may be subject to vicarious liability for the supervisor's actions, but as mentioned earlier, the standard varies depending upon whether the supervisor took any tangible adverse action against the plaintiff. Specifically, if the supervisor did take such an adverse action against the plaintiff, then the employer will be vicariously liable. However,

where no tangible employment action is taken, the employer may raise an affirmative defense to liability or damages. This affirmative defense has two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Bartniak v. Cushman Wakefield, Inc., 223 F.Supp.2d at 528-29 ( citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61, 118 S.Ct. 2257 (1998); quoting Ellerth, 524 U.S. at 765, 118 S.Ct. 2257) (internal quotation marks omitted).

In this case, the Court finds that there is clearly an issue of fact as to whether or not plaintiff's male co-workers subjected her to a sexually-hostile working environment. Similarly, the Court finds that there is an issue of fact as to whether or not liability for any such discrimination may be imputed to defendant. In Distasio v. Perkin Elmer Corp., the Second Circuit held that,

[w]hile the fact that a complaint was unreported may be relevant in considering whether an employer had knowledge of the alleged conduct, an employer is not necessarily insulated from . . . liability simply because a plaintiff does not invoke her employer's internal grievance procedure if the failure to report is attributable to the conduct of the employer or its agent.

Id., 157 F.3d at 64 (Citations omitted). In Distasio, the plaintiff's supervisor had told her that she would be terminated if she made any further complaints of sexual harassment. Id. Here, plaintiff has indicated that when she complained to Dornan, he accused her of harassing her male co-workers, and disciplined her by putting her on "final warning." Further, she indicates that, although she made general complaints of harassment to Wyrough, she refused to give specifics for fear that she would again be disciplined or terminated. Accordingly, the Court finds that there are triable issues of fact as to whether or not defendant either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.

Constructive Discharge

The elements of a claim for constructive discharge are as follows:

A constructive discharge occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation. In determining whether or not a constructive discharge has taken place, the trier of fact must be satisfied that the working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.

Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (Citations and internal quotation marks omitted). Thus, to prove constructive discharge, a plaintiff must demonstrate that the employer acted deliberately. See also, Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000) ("While the meaning of `deliberate' in this context is unsettled, our case law indicates that something beyond mere negligence or ineffectiveness is required.") (Citations omitted). Although plaintiff's showing on the element of deliberateness is weak, the Court declines to find, as a matter of law, that no reasonable trier of fact could find in plaintiff's favor. As to that, the Court notes that even while plaintiff was working as a Dispatcher under Wyrough, she was allegedly subjected to daily harassment on the production floor by male employees supervised by Dornan. Moreover, Dornan's alleged response to plaintiff's earlier complaints to him, including his accusing plaintiff of harassing the men and placing her on final warning, could be viewed as a deliberate refusal to address the problem. Accordingly, defendant's motion for summary judgment on the constructive discharge claim is denied.

CONCLUSION

Defendant's motion for summary judgment [#13] is granted as to all claims except those alleging a hostile work environment and constructive discharge. As discussed during oral argument, counsel are directed to appear before the undersigned on January 30, 2004 at 2:00 p.m. for further pre-trial proceedings.

SO ORDERED.