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holding that the plaintiff's reduction in her job duties did not amount to an adverse employment action
Summary of this case from PERRY v. ARCOpinion
01-CV-0829E(Sc)
April 20, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action November 20, 2001 alleging that defendants had violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State Human Rights Law, N.Y Exec. Law § 290 et seq., by subjecting her to a hostile work environment, discriminating against her because of her gender and retaliating against her after she complained of the alleged discriminatory conduct. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiff's claims. For the reasons stated hereinbelow, defendants' motion will be granted.
The following facts, construed favorably for plaintiff, are undisputed unless otherwise noted. Reed was employed by Belknap Heating and Cooling, Inc. ("Belknap") from July 5, 2000 until November 13, 2000. Gorenflo is Belknap's President and sole shareholder. Plaintiff was hired by Baumler to work in the company's service department. Three employees worked in the service department — Reed, Baumler and Stephanie Stillwell. Baumler was plaintiff's supervisor and the manager of the service department. Stillwell was out of work on maternity leave from August 30, 2000 until October 16, 2000. Plaintiff contends that, throughout her time as an employee at Belknap, Baumler "regularly made comments of a sexual nature either directly to Plaintiff or in her presence." Compl. ¶ 21. Plaintiff makes the following allegations regarding Baumler's conduct towards her: that (1) in July 2000, he told her that had planned to meet a woman through an answering service and that he made plans to "do it" with the woman, (2) he thereafter told her that he had met the woman but that she was "fat and ugly" and that there was no way he "was going to put his thing in her," (3) he told her that he could never get enough sex, commenting that his hormones were akin to that of a teenager, (4) on several occasions, sometime in October and November, he asked her to sit on his lap and made gestures towards her whereby he would simulate masturbatory acts, (5) throughout her time of employment, he would ask her to look at pornographic materials that he had displayed on his computer, (6) in October, he told her that he had driven by her house on a previous occasion and noticed that no lights had been on, commenting that her and her husband must have been "doing it," (7) during one week in September or October, he performed several "puppet shows" whereby he manipulated gourds that he had brought into the office in such a manner as to simulate sexual intercourse, (8) he had asked for her e-mail address so that he could send her some "porno," and (9) he and Mark Gerace, another service technician, made several sexual remarks to her on the dispatch radio. See Reed Aff. ¶¶ 8-24. Reed alleges that she found such conduct to be offensive, humiliating and inappropriate for the workplace and that she repeatedly complained to Baumler about his behavior. Id. ¶¶ 10, 13-14, 24. Reed also contends that Baumler changed her job duties shortly after she threw the gourds away. According to Reed, Baumler had told her she would no longer be performing dispatch duties and informed her that her duties would be limited to that of a customer service representative. Id. ¶ 25. Reed subsequently went to Gorenflo, Belknap's President, and offered her services to work for Belknap as a bookkeeper. However, Reed states that Gorenflo never responded to her offer. She also contends that she was never trained for the position of manager of the service department and that she had learned that the job was promised to Gerace. Id. ¶ 27. Reed subsequently requested a meeting with Baumler on November 6 in order to discuss her concerns regarding her lack of training for a manager's position and to complain about his allegedly inappropriate conduct. Id. ¶ 28. Immediately prior to the meeting, Reed placed a tape recorder in her coat in order to tape the conversation. Baumler did not know that their conversation was being recorded by Reed. According to a transcript of the conversation, Reed initially questioned Baumler as to why she was not being trained for the service department manager position. See Pl.'s Ex. Q, at 1. Baumler assured Reed that she was still being considered to eventually replace him as the service manager but also explained to her that he didn't feel that she was yet ready, or "up to par," to handle his job. Id. at 1-3. In addition, Reed complained about Baumler's "sexual comments" and asked him to stop making them. Id. at 5. Baumler repeatedly apologized to Reed for such behavior. Id. at 5-7. Finally, Reed stated that she was considering whether to inform Gorenflo of Baumler's actions. Later that day, Baumler informed Gorenflo of his conversation with Reed and her complaints regarding the alleged sexual harassment. Reed asserts that Baumler avoided her thereafter during the course of the following week. Reed subsequently spoke with Gorenflo on November 11 about her concerns regarding Baumler. Reed again surreptitiously taped the conversation. Reed initially told Gorenflo about her conversation with Baumler and that she had complained to Baumler about his "offensive" conduct. Defs.' Ex. G, at 2. Reed also described to Gorenflo some specific incidents involving Baumler and expressed her displeasure with the fact that Baumler had not been training her to take over as the manager of the Service Department as he had originally promised. Id. at 5-9. Reed also informed Gorenflo that her anxiety level was high and that she was experiencing panic attacks. Id. at 3-5. Gorenflo acknowledged that Baumler had spoken to him about Baumler's and Reed's previous conversation and assured her that he did not condone Baumler's alleged conduct. Finally, Gorenflo told Reed that he would try to schedule a meeting with Baumler on the following Monday so that they could all discuss the issues that had been brought to his attention. The meeting never occurred. After she arrived for work on that Monday, plaintiff left for a previously scheduled doctor's appointment. Reed's physician placed her on total disability, which Reed alleges was due to anxiety, depression and sleeplessness. Reed Aff. ¶ 34; Pl.'s Ex. R. Reed returned to work after her appointment to turn in some disability forms. Upon returning, at Gorenflo's request, Reed met with Mary Lou Vogel, who was Belknap's office manager, in order to discuss her concerns regarding Baumler's conduct. Reed complained to Vogel about Baumler's alleged sexual harassment and detailed some of the specific incidents that she had previously discussed with Gorenflo. At the conclusion of the meeting, Reed told Vogel that she needed to go home. Reed left work and never returned to work. Gorenflo asserts that he subsequently interviewed Baumler about Reed's allegations. According to Gorenflo,
Plaintiff claims that Baumler told her during her interview that she would work in the interim as a dispatcher and customer service representative while Stephanie Stillwell was out of work on maternity leave and that she would eventually be trained to replace Baumler as the service department manager. Pl.'s Aff. 114.
Such materials consisted of a sexually explicit cartoon video, various sexual pictures and sexually oriented jokes that Baumler would receive via e-mail. Reed Aff. ¶¶ 14-15.
Reed further alleges that Baumler thereafter arranged the gourds on a window sill in front of her desk in a "sexual manner so that the long gourd was going into a hole where the three other gourds met." Reed Aff. ¶ 24. The gourds apparently remained in such a position until Reed discarded them in October 2000. Ibid.
According to plaintiff, she, Baumler and Gerace were present in the office when Baumler told Gerace to tell plaintiff about "the cake," to which Gerace responded, "Today we're having cake and cock, but we're all out of cake." Reed Aff. ¶ 18. In addition, plaintiff alleges that Baumler or Gerace asked her on the dispatch radio, "Do you know what position we have you in?" and "What would you say if I told you that you had a great body?". Id. ¶¶ 19, 21.
Although defendant contends that Reed's duties were changed because Stillwell had returned from maternity leave, Reed counters that she had continued to do dispatch work for approximately two weeks after Stillwell had returned to work, suggesting that the real reason for the change in her duties was due to her complaints and the discarding of the gourds. Pl.'s Mem. of Law, at 21-22; Reed Aff. 1125.
Reed states that she was "desperate to get away from Defendant Baumler" and that she had told Gorenflo that there was not much work for her in the service department. Reed Aff. ¶ 26.
Reed asserts that when she asked Baumler about having a meeting, he said, "In the office across the hall or in the men's room?" When she told him that she did not want to meet in the men's room, he allegedly replied, "We can go into the men's room and you can sit on my lap." Reed Aff. ¶ 28.
Reed asked Baumler, "Are you planning on training me for your position?" Baumler replied, "That was always the plan." Pl.'s Ex. Q, at 1. In addition, Reed stated at one point, "you told me within, when you first interviewed me you said within a year and a half to two years I would be in your position." Id. at 2.
Reed contends that Baumler had no interaction with her and states, "It was clear to me that he was retaliating against me for having complained ***." Reed Aff. ¶ 32.
When Gorenflo asked Reed if Baumler's conduct had changed since their conversation on November 6, she replied, "He's not ever around anymore." Defs.' Ex. G, at 2.
Reed stated to Gorenflo that her doctor had "tripled [her] medication because of stress." Defs.' Ex. G, at 3. Reed also said later in the conversation that she has panic attacks and that she has "been on medication for almost a year." Id. at 4.
Reed alleges that when she arrived for work on that Monday, she saw Baumler leaving and was subsequently told that he went home because he was ill. Reed Aff. ¶ 34.
In Vogel's written notes of the conversation, she noted that, "Ms. Reed stated that she felt very threatened by [Baumler], doesn't want to be alone with him in the office." Defs.' Ex. I.
Reed felt that Vogel was interrogating her in a very accusatory tone instead of attempting to investigate her complaints. Reed Aff. ¶ 35.
"Baumler acknowledged making a number of the remarks which Ms. Reed had characterized as sexual harassment, but denied attempting to show Ms. Reed any pornographic video tapes, denied making gestures of a sexual nature to Ms. Reed, and denied that the placement of gourds on a shelf in the service department had been intended to have a sexual connotation. However, Mr. Baumler did acknowledge that Ms. Reed may have construed the gourds to have been arranged in a sexual manner." Gorenflo Aff. ¶ 31.
In addition, after an interview with Stillwell, Gorenflo concluded that she was not "made uncomfortable by anything Mr. Baumler had said or done," and that none of the other women in the office had complained of Baumler's conduct. Id. ¶¶ 30-32. Gorenflo asserts that he intended to resolve the matter upon Reed's return to work from her disability leave, which was originally scheduled for December 17, 2000. However, Reed's period of disability was subsequently extended to January 2, 2001. Gorenflo subsequently placed a letter of reprimand in Baumler's file and sent a December 19, 2000 letter to Reed informing her of a final resolution with regard to her complaints. In the letter, Gorenflo noted that Baumler had been warned about his conduct and also that if any similar incidents occurred in the future he could be subject to further discipline, including suspension or termination of his employment. See Defs.' Ex. B, Bates No. 9. In addition, Gorenflo advised Reed that he had distributed a Notice to all of Belknap's employees advising them of Belknap's harassment policy and noting that violations of such policy could result in disciplinary action. Ibid. Reed subsequently contacted Gorenflo via telephone on December 26, 2000 and complained to him about his handling of the matter and the fact that he had not made a better effort to schedule a meeting among the relevant parties. Reed Aff. ¶ 40. Reed also asserts that she had told Gorenflo during the conversation that, although she had been authorized to return to work on January 2, 2001, her doctor had advised her that she could not return if she had to work with Baumler. Id. ¶ 40. During that same conversation, Reed resigned from her position, effective January 2, 2001. See Defs.' Ex. B, Bates No. 11.
Gorenflo concluded that no disciplinary action against Baumler, other than the letter of reprimand, had been warranted "in light of the fact that this is the first time some thing [sic] like this has occurred, that [Baumler had] cooperated with the investigation and that [he had] apologized to the offended person." Defs.' Ex. B, Bates No. 8.
Plaintiff subsequently filed a charge and complaint of unlawful employment practices with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued plaintiff a right-to-sue letter on September 6, 2001.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact" and that "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture, and speculation ### are insufficient to create a genuine issue of fact."). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, at 322.
Of course, the summary judgment standard applies with the same force in discrimination cases as it does in other cases. See Ashton v. Pall Corp., 32 E Supp.2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.") (quoting Meiri v. Dacon, 759 E2d 989, 998 (2d Cir. 1985)). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.") (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.
Title VII states that "[i]t shall bean unlawful employment practice for an employer *** to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ***." 42 U.S.C. § 2000e-2(a)(1) (2003). In the absence of direct evidence of discrimination, Title VII claims are analyzed pursuant to burden-shifting framework as espoused in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its offspring. In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the alleged employment action. Id. at 253 (quoting McDonnell Douglas, at 802). Finally, "should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Ibid.
The plaintiff's burden of proof in establishing a prima facie case of discrimination is "minimal." St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
For plaintiff to establish a Title VII violation based on a hostile work environment claim, she must show "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (quotation marks and citations omitted). The discriminatory intimidation alleged by plaintiff must be "offensive or pervasive enough that a reasonable person would find it hostile or abusive and must have been actually perceived by [plaintiff] as abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In determining whether an environment is hostile, this Court must look at the totality of the circumstances of the alleged conduct including "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 an employee's work performance." Harris, at 23. "To withstand summary judgment, a `plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous or concerted to have altered the conditions of [his] working environment.'" Horsford, at *9 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000)). Isolated incidents of discriminatory comments or conduct — unless extremely serious — are not sufficient to establish a hostile working environment. See Horsford, at *9 (citing numerous cases as examples for such a proposition).
Plaintiff has presented sufficient evidence to raise a genuine issue of material fact with regard to her hostile work environment claim. Despite attempts by defendants to characterize Baumler's conduct as "isolated" and "boorish," the record, construed in favor of plaintiff, shows that she was subjected to numerous offensive comments and jokes replete with sexual references. Such comments, which included sexual slurs, sexually-related jokes and various anecdotal references by Baumler in which he had described his attempt to have sex with a woman and his purportedly continuous strong desire to have sex due to his teenage-like hormones, viewed in totality with the fact that Baumler exposed Reed to (1) pornographic images on his computer, (2) the sexual puppet show involving the gourds and (3) his masturbatory simulations are enough to defeat defendants' summary judgment motion. See Kotcher v. Rosa Sullivan Appliance Ctr. Inc., 957 F.2d 59, 61-63 (2d Cir. 1992) (affirming district court's finding that plaintiffs had been subjected to a hostile work environment in which plaintiffs' supervisor had repeatedly subjected them to vulgar comments and gestures, including evidence that the supervisor pretended to masturbate behind the back of one of the plaintiffs); Reimer v. Heritage Asset Mgmt, 1999 WL 409513, at *5 (W.D.N.Y. 1999) (finding four episodes of gender-based harassment over a five-month period to be sufficient to defeat defendant's summary judgment motion); Valentin v. New York City, 1997 WL 33323099, at *6 (E.D.N.Y. 1997) (finding sufficient evidence of a hostile work environment where plaintiff was subjected to, inter alia, daily use of sexually-explicit language, commentary by a supervisor of his sexual exploits and exposed to various pornographic images); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569, 572-573 (W.D.N.Y. 1987) (denying defendant's summary judgment motion where plaintiff had presented evidence of vulgar comments by supervisors and the proliferation of "demeaning pornography"). While defendants dispute plaintiff's account with regard to some of the alleged conduct, as well as the offensive nature of such conduct, such disputes are subject to credibility determinations, and therefore more properly suited for a jury rather than the undersigned on a motion for summary judgment. There is sufficient evidence from which a reasonable trier of fact could conclude that the conduct was severe enough to alter the conditions of Reed's employment and that a reasonable person would find such conduct to be offensive.
Reed testified that Baumler would make "daily comments" of a sexual nature and that his conversations "always seemed to include sex in one form or another." Reed Dep., at 65-66.
Five witnesses, in addition to plaintiff, have all testified that plaintiff was visibly upset on several occasions at work. See Pl.'s Mem of Law, at 9. Such evidence suggests that the harassment was pervasive enough to alter the conditions of plaintiff's work environment.
Next, defendants argue that, even if Reed had been subjected to a hostile work environment, Belknap is not vicariously liable for such conduct. An employer may be held vicariously liable under Title VII for an actionable hostile work environment that is created by a supervisor with immediate authority over the plaintiff. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). However, in the absence of a tangible employment action taken against the plaintiff, defendant may escape liability by raising an affirmative defense. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually 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." Ellerth, at 765. The parties initially argue over whether plaintiff suffered a tangible employment action. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761. Plaintiff argues that she was subjected to a tangible employment action because (1) she was constructively discharged and (2) Baumler changed her job duties and failed to promote her. Pl.'s Mem. of Law, at 12-13. Plaintiff suffered no tangible employment action. To begin, a constructive discharge does not constitute a tangible employment action in this context. Mack v. Otis Elevator Co., 326 F.3d 116, 127 n. 7 (2d Cir. 2003); see also Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294-295 (2d Cir. 1999) (holding that constructive discharge does not constitute a "tangible employment action," as that term is used in the context of the affirmative defense discussed in Ellerth and Faragher). Additionally, defendant did not reduce Reed's compensation, demote her or significantly change her job duties. Any reduction in her job assignments was due to the fact that Stillwell's return from maternity leave had allowed for fewer dispatch duties. Furthermore, although there is evidence that Baumler may have been told initially that she would ultimately be trained for the position of manager, there is no evidence that she was qualified for such a promotion. In fact, if anything, the record shows that Baumler did not think that Reed was ready for such a position and that she could not have reasonably expected a promotion after four months on the job. In any event, the Court finds that plaintiff was not subjected to a tangible employment action. As such, the Court must determine whether defendants have satisfied their burden in raising their affirmative defense.
See Pl.'s Ex. Q, at 2 (Baumler had stated to Reed that he did not feel that she was yet "up to par" for his job).
Indeed, the recorded conversations between Reed and Gorenflo supports such findings. Reed stated to Baumler, "when you first interviewed me you said within a year and a half to two years I would be in your position." Pl.'s Ex. Q, at 2. In addition, Reed later said to Gorenflo, "I was under the impression when [Baumler] hired me from what he said that in a year and a half to two years I would be doing his job." Defs.' Ex. G, at 7.
Defendants have satisfied the first prong of their affirmative defense — to wit, that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior — inasmuch as it is undisputed that Belknap had an anti-harassment policy in place and that Reed knew about it. See Mack, at 128 (finding that the employer had demonstrated the requisite reasonable care because it had an anti-harassment policy in place and because the plaintiff conceded that she knew about it); Caridad, at 295 (same). In addition, defendants have shown that they used reasonable care in correcting the alleged harassment once plaintiff complained to Gorenflo. Two days after Reed first complained to him about Baumler's conduct, Gorenflo asked her to speak with Vogel in order to obtain more details regarding her complaints. As part of the follow-up investigation, Gorenflo interviewed Baumler several times and asked Vogel to interview Stillwell in order to determine whether she witnessed any sexually harassing behavior by Baumler. Gorenflo based his ultimate conclusions on such interviews and the fact that no other woman in the office had complained of sexual harassment by Baumler. Plaintiff contends that Belknap's investigation into her complaints was insufficient because, inter alia, Gorenflo neither called at her home with regard to her complaints nor interviewed several other purportedly "key witnesses," — viz., John Wery, Leon Borczynski, Gerace and Rich Whitmier. Pl.'s Mem. of Law, at 15. However, there was no need to re-interview Reed again considering the fact that she had already conveyed her complaints and allegations about Baumler's conduct to him twice before. In addition, plaintiff has failed to explain why interviews with the alleged "key witnesses" were vital, or necessary, to Gorenflo's investigation. Reed also contends that defendants' "inadequate investigation resulted in a failure to take any remedial action." Id. at 16. However, Reed is not entitled to choose the appropriate penalty. See Gonzalez v. Beth Israel Med. Ctr., 262 E Supp.2d 342, 355 (S.D.N.Y. 2003). "An employer's remedy need not necessarily expel the harasser from the work environment to be effective, but rather it should be `sufficiently calculated to end the harassment.'" Ibid. (quoting Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995). In addition, a "written warning can be an appropriate response if it conveys the message that further harassment will not be tolerated." Ibid, (quotation marks and citation omitted). Baumler's punishment — to wit, the letter of reprimand — was reasonable considering the fact that it explicitly warned him that any further offending conduct may result in his suspension or termination. Thus, the critical inquiry therefore is whether Reed unreasonably failed to avail herself of Belknap's non-harassment policy and any corresponding preventive or corrective measures.
The policy states that "[a]ny employee who feels that (s)he is a victim of *** harassment should immediately report the matter to the president or any other member of management." Defs.' Ex. B, Bates No. 972.
Reed stated that she read Belknap's sexual harassment policy, which was part of Belknap's employee handbook, when she started working for Belknap. Reed Dep., at 71; see also Defs.' Ex. B, Bates No. 972 (Belknap's non-harassment policy, which, inter alia, outlines the procedure for reporting complaints).
Reed cites to Gorenflo's deposition testimony in support of her argument that Gorenflo did not question Stillwell about whether she had witnessed any harassment or conduct of a sexual nature. See Pl.'s Mem. of Law, at 15 (citing to Gorenflo Dep., at 181). However, plaintiff mischaracterizes Gorenflo's deposition testimony inasmuch as such testimony involved questioning about a different meeting that had occurred among Gorenflo, Vogel and Stillwell. Later in his testimony, Gorenflo clarifies that he directed Vogel to speak with Stillwell about Reed's complaints and that Vogel had stated to him that Stillwell had "not observed anything that was applicable" or that "she (Stillwell) had seen anything improper." Gorenflo Dep., at 181-184.
The first conveyance was to him personally on November 11 and the second, at Gorenflo's behest, was to Vogel on November 13.
While plaintiff has made allegations that Gerace himself, along with Baumler, engaged in some offensive conduct — most notably, participation in the conversation wherein Gerace referenced "cake" and "cock" — there was no need to need to interview him about Reed's allegations because Gorenflo had already determined that Gerace had made the offending remarks. Furthermore, although plaintiff alleges that she had complained to Whitmier, Borczynski and Wery, co-employees at Belknap, there is no indication that she told Gorenflo of such complaints. Gorenflo therefore was not aware that such employees may have relevant information regarding the matter.
Defendants bear the ultimate burden of persuasion to show that Reed acted unreasonably in failing to avail herself of Belknap's procedures for complaining about any alleged harassing conduct. If defendants show that Reed failed to avail herself of the relevant complaint procedures, the burden of production shifts to Reed to come forward with one or more reasons why she did not reasonably make use of such procedures. Belknap may rely upon the absence or inadequacy of such a justification in meeting its ultimate burden of persuasion. See Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (discussing the employer's burden in attempting to satisfy the second prong of the Ellerth/Faragher affirmative defense).
Defendants argue that Reed unreasonably failed to utilize Belknap's anti-harassment policy because, although she initially complained to Baumler about his conduct, she didn't complain to any other member of management until November 11, when she first complained to Gorenflo. Defs.' Mem. of Law, at 11-14. In addition, defendants contend that, once she had complained to Gorenflo about Baumler, plaintiff unreasonably failed to cooperate with Gorenflo in his efforts to resolve the situation. Id. at 14-18. Reed counters that her continual complaints to Baumler about his behavior comported with Belknap's anti-harassment policy inasmuch as he was a manager and because the policy stated that she should "report the matter to the president of or any other member of management."
See note 23, supra.
Defendants have satisfied the second prong of their affirmative defense. It is undisputed that plaintiff did not complain to another member of management about Baumler's conduct until November 11, which was two days prior to her last day of work. Plaintiff cannot rely on the fact that she had previously complained to Baumler about his own conduct in attempting to show compliance with Belknap's anti-harassment policy. Although plaintiff may have technically complied with the anti-harassment policy inasmuch as Baumler was a member of management, it was not reasonable for her to continue to complain to him if such complaints had not succeeded in halting his own behavior. When her initial complaints to Baumler did not succeed in preventing his further offensive conduct, the reasonable course of action would have been to complain to a member of management with authority over Baumler, or Gorenflo as the President. Plaintiff contends that she did not do so because she felt that she would lose her job. She bases that assertion on the fact that Baumler had responded to one of her complaints by saying to her that "an employer in New York can fire anyone for any reason." Reed Aff. ¶ 13; see also Reed Dep., at 72. However, plaintiff's subjective fears of retaliation cannot excuse her unreasonable failure to utilize Belknap's anti-harassment policy. For plaintiff's reluctance to report the harassment to preclude defendants' affirmative defense, it must be based on apprehension of what the employer might do in retaliation. Leopold, at 246. The apprehension must be based on a credible fear and it "must be based on more than [plaintiff's] subjective belief." Ibid. "Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against similar employees in response to such complaints." Ibid. Reed has not come forward with such evidence or any evidence which would support a finding that she had a credible fear that her complaints of harassment would result in a reprisal by Belknap. Moreover, plaintiff's apprehension, which was based on what she perceived as a threat from Baumler, is not evidence of a credible fear considering the fact that Belknap's anti-harassment policy included both a confidentiality and a anti-retaliatory provision. In sum, the Court finds that defendants have met their burden in asserting the affirmative defense as explained in Faragher and Ellerth and are therefore entitled to summary judgment with regard to plaintiff's hostile work environment claim.
The final paragraph of Belknap's Non-Harassment policy included the following: "Our company will investigate all such reports as confidentially as possible. Adverse action will not be taken against an employee who reports or participates in the investigation of a violation of this policy." Defs.' Ex. B, Bates No. 972.
Turning to plaintiff's retaliation claim, in order to establish a prima facie case, she must show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [her]; and (3) a causal connection between the protected activity and the adverse employment action." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quotation marks and citation omitted). Plaintiff has not satisfied her burden because she cannot show that she suffered an adverse employment action.
To constitute an adverse employment action within the context of a Title VII claim, plaintiff must demonstrate that an employment action was one that resulted in a "materially adverse change in the terms and conditions of [her] employment." Richardson, at 446. "To be `materially adverse' a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices *** unique to a particular situation." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quotation marks and citations omitted). Plaintiff has not alleged anything tangible that could be construed as an adverse employment action for the purpose of establishing her prima facie case. Plaintiff argues that she suffered an adverse employment action because (1) her job duties were reduced — to wit, that her duties were limited to answering phones and that she was no longer permitted to perform dispatch work — after she had complained to Baumler about his actions regarding the gourds, (2) Vogel interrogated her in a "hostile and accusatory" manner after she had complained to Gorenflo and (3) she was required to turn over her keys while out on maternity leave. Pl.'s Mem. of Law, at 21-23. No reasonable trier of fact could find that any one of these actions resulted in a materially adverse change in her working conditions. The only allegation that even comes close to showing a materially adverse change in working conditions is her assertion that her job duties were reduced. However, defendants have explained that any reduction in her job duties was due to the fact that Stillwell, who had been performing such duties prior to her maternity leave, had returned to work after a period of disability. Plaintiff has not come forward to rebut such evidence showing that such explanation is pretextual. Therefore, assuming arguendo that plaintiff could establish a prima facie case of retaliation, she has failed to satisfy the final step of the McDonnell Douglas burden-shifting framework.
Plaintiff has also failed to raise a triable issue of material fact with regard to her disparate treatment claim. Plaintiff can raise an inference of discrimination by showing that defendants treated her less favorably than a similarly situated employee who is outside her protected group. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Plaintiff argues that she was treated differently than Gerace inasmuch as he has received training for the Service Department manager position while she has not. However, the only evidence that plaintiff has presented in support of such a claim is her assertion that she "learned that [Baumler] had promised *** Gerace the position" of Service Department Manager. Reed Aff. ¶ 27. Such a conclusory assertion, without more, is insufficient to raise a triable issue of fact regarding her disparate treatment claim. See Kerzer, at 400 ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact.").
Plaintiff has also failed to raise a genuine issue of material fact that she was constructively discharged. In order to maintain her claim, she must show that defendants deliberately made her working conditions so intolerable that she was forced to resign. See Spence v. Maryland Cas. Co., 995 E2d 1147, 1156 (2d Cir. 1993). In addition, plaintiff must also show that such working conditions were "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Stetson v. NYNEX Serv. Co., 995 E2d 355, 361 (2d Cir. 1993) (quotation marks and citation omitted). "[M]ere dissatisfaction with work assignments, unfair criticism, or working conditions that can be categorized as unpleasant, do not constitute a constructive discharge." O'Dell v. Trans World Entm't Corp., 153 E Supp.2d 378, 393 (S.D.N.Y. 2001). Although plaintiff has shown that she suffered panic attacks and anxiety, she has not shown that defendants deliberately made her working conditions so intolerable that a reasonable person would have felt compelled to resign.
The fact that it is undisputed that the alleged harassment had stopped once plaintiff had confronted Baumler on November 6, and Gorenflo on November 11, belies not only a showing of intolerable working conditions but also that a reasonable person would have felt compelled to resign.
Finally, summary judgment will be granted to defendants with regard to plaintiff's state law claims under the New York Human Rights Law inasmuch as such claims are analyzed pursuant to the same analysis as that of Title VII claims. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-715 (2d Cir. 1996).
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted in its entirety and that the Clerk of this Court shall close this case.