Opinion
No. MMX CV07 500 2808 S
September 8, 2009
MEMORANDUM OF DECISION
On August 1, 2007, the plaintiff Amy Regan filed a one-count complaint containing allegations pursuant to the Connecticut Fair Employment Practices Act, General Statutes §§ 46a-60, et seq. The plaintiff alleged that beginning with her first week of employment she was subjected to sexual harassment and a blatantly sexist working environment, and within the first six months of her employment she began complaining to supervisors and the defendant's human resources department about such sexual harassment and hostile working environment. The plaintiff then alleged that several incidents occurred beginning in late April or early May 2005, and that she was subjected to disparate treatment and to a hostile working environment by the defendant because of her sex.
On June 30, 2009, pursuant to General Statutes § 17-44, et seq., the defendant moved for summary judgment. On August 19, 2009, the plaintiff filed its opposition to the defendant's motion for summary judgment. On August 31, 2009, the court heard argument on such motion and opposition.
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show 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. Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Id. The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that such party is, therefore, entitled to judgment as a matter of law. Id. The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. Id.; see also Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988); Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Sec also Curley v. Kaiser, 112 Conn.App. 213, 220, 862 A.2d 167 (2009):
A material fact is "a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. P Fund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
The plaintiff has alleged that she was subjected to sexual harassment and a hostile working environment. In Christy v. Ken's Beverage, Inc., Civil No. 3:07cv1108 (JBA), United States District Court (D. Connecticut, August 19, 2009), page 7, Judge Arterton set forth the standards to be applied in considering such claim of sex discrimination:
Because Connecticut courts "look to federal law for guidance on interpreting state employment discrimination law, . . . the analysis is the same under both." Craine v. Trinity College, 791 A.2d 518, 531 n. 6 (Conn. 2002) . . .
To establish a prima facie case of sex discrimination, she must prove: (1) membership in a protected class; (2) qualification for her position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination on the basis of her membership in the protected class. See generally McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973); Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) . . .
As set forth below, the plaintiff has not demonstrated any genuine issue of material fact that she has failed to satisfy requirements (3) and (4) above.
With respect to a claim of hostile work environment, Judge Arterton set forth the following:
To prevail on this claim, [the plaintiff] must prove "(1) that her 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." Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (quotation marks and citations omitted). Where alleged harassment is "attributable to a co-worker, not a supervisor," a plaintiff must show that her employer "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996). In this context, "an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action." Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004). It remains the plaintiff's responsibility to offer an evidentiary basis for holding the employer liable for co-worker harassment: "Once a plaintiff has established the existence of a hostile workplace, she must then demonstrate that the harassing conduct which created the hostile situation should be imputed to the employer." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) (quotation marks omitted) . . .
It is often difficult to assess the sufficiency of facts underlying a hostile-work-environment claim on summary judgment. See, e.g., Schiano v. Quality Control Sys., Inc., 445 F.3d 597, 605-08 (2d Cir. 2006) (cautioning against disposing of such claims before trial). But the question of whether there is a "specific basis" in the record on which to hold an employer liable for employee harassment does not entail the same fact-intensive analysis. A jury in this case would have no evidence from which to conclude that the company failed to act to remedy the harassment that Christy reported to her supervisors or that their response was lame and ineffective. Although an employer's liability may be predicated on a failure to investigate complaints of sexual harassment to assess the scope and culprits to which remedial action could be tailored, the insufficiently developed factual record here is such that no reasonable jury could find that any harassing conduct by Christy's co-workers can be imputed to KBI, and her hostile-work-environment claim in count two cannot survive for trial.
Id., 10-12.
As set forth below, in response to the defendant's evidence in support of its motion for summary judgment, the plaintiff has not demonstrated that there is a genuine issue of material fact to establish (1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that even if such discriminatory intimidation existed, that there was a specific basis for imputing the conduct that created such alleged hostile environment to the defendant employer.
In the Disiasio decision, supra, 157 F.3d at 63, the Second Circuit summarized the steps that a plaintiff must satisfy to hold an employer responsible for alleged co-worker conduct creating a hostile workplace environment:
Once a plaintiff has established the existence of a hostile workplace, she must then demonstrate that the harassing conduct "which created the hostile situation should be imputed to the employer." Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992). When the harasser is a supervisor, the employer is presumed to be absolutely liable. See Faragher v. City of Boca Raton, 1998 WL 336322, at *19 (June 26, 1998) ("An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee"); Burlington Indus. v. Ellerth, 1998 WL 336326, at *15 (June 26, 1998) (same). However, when the harassment is attributable to a co-worker, rather than a supervisor, as is the case here, the employer will be held liable only for its own negligence. See Faragher, 1998 WL 336322, at *17-*18.
Therefore, Perkin Elmer will only be liable if Distasio can demonstrate that the company "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) . . .
See also Pasqualini v. Mortgageit, Inc., 05 Civ. 9714 (LAP), (S.D.N.Y., 8-3-2009), page 20. In this case it is undisputed that the plaintiff had access to a number of the defendant's employees who listened to and responded to her complaints.
In Distasio, supra, 157 F.3d at 65, the Second Circuit set forth the context in which an employer's duty to take reasonable steps to remedy a hostile working environment is evaluated:
An employer that has knowledge of a hostile work environment has a duty to take reasonable steps to remedy it. See Murray, 57 F.3d at 249 (hostile work environment); Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986) (hostile racial environment); therefore, even if Perkin Elmer had knowledge of the hostile work environment, liability will not attach unless the company failed to take reasonable steps to eliminate the harassment. Whether the company's response was reasonable has to be assessed from the totality of circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer's response in light of the employer's resources, and the nature of the work environment. See id.
See also Lesibu v. New York State Department of Education, 05 CV 5664 (RJD) (RML) (E.D.N.Y. 3-31-2009). Among the steps that the defendant took with respect to the plaintiff's claims was to hire an attorney to investigate such claims. His report is exhibit A to the defendant's motion for summary judgment. After meeting with the plaintiff, he set forth the plaintiff's main complaints as follows:
1. Sexual harassment;
2. Bothersome conduct including conduct of a sexual nature;
3. Disagreement with the work group in the standards of work performance and quality;
4. Problems relating to the allocation and assignments of work.
(Exhibit A, 3.)
The investigator also noted that
[o]ne of the more difficult aspects of this matter is that it is difficult to ascertain that sexual and/or gender based motives are the driving force(s) behind the conduct that Amy Regan is complaining about. It is difficult to find the sexual and/or gender motive for the behavior that she attributes to the conduct.
Id., 6.
The investigator reported that the plaintiff ". . . alienated herself from her co-workers by . . . questioning their work." Id., 9.
The investigator noted that the plaintiff wanted the defendant to assign Javier Martinez and others to work with her. Id., 3. She felt that she was victimized because she worked alone while others worked in pairs. Id., 10. The investigator reported that the plaintiff's "interpersonal style has resulted in the work group attempting to avoid her so as to avoid trouble with her." Id. The other woman in the department reported to the investigator:
I think Amy misinterprets things and she can be very confrontational. I avoid her.
Id., 11. Her co-workers generally viewed the plaintiff "as having the potential for engulfing them in controversy . . . problems with Amy Regan could result in the[m] losing their [employment] positions." Id., 13.
The investigator concluded that
the University has gone to significant lengths to address the issues that Amy Regan has brought forward and, if things remain unchanged, it will continue to do so.
Id., 15.
As noted by the plaintiff in her memorandum of law, the plaintiff must provide evidence that the alleged hostile conduct was directed at her because of her gender instead of because of personality conflicts in the workplace. As is evident from the exhibits, including approximately 400 pages of deposition transcripts, the plaintiff's personality, behavior, negative interactions with her co-workers, and the plaintiff's subjective perceptions, rather than her gender, primarily led to any hostility that occurred. In Figueroa v. The City of New York, 00 Civ. 7559 (SAS) (S.D.N.Y. 2002), the federal district court discussed similar issues in the context of a hostile workplace claim:
"[I]t is `axiomatic' that in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of her sex." Alfano, 294 F.3d at 374 (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)). When faced with a motion for summary judgment, the nonmoving party "must present concrete particulars and cannot succeed with purely conclusory allegations." Cadle Co. v. Newhouse, No. 01 Civ. 1777, 2002 WL 1888716, at *4 (S.D.N.Y. Aug. 16, 2002) (quotation omitted). "There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor." Id. (citing Anderson, 477 U.S. at 249). Figueroa's responses that the conduct occurred because she is a woman are conclusory and therefore fail to raise a genuine issue of fact as to gender animus. See, e.g., Padob v. Entex Info. Serv., 960 F.Sup. 806, 810, 813 (S.D.N.Y. 1997) (holding that plaintiff's testimony that treatment occurred because she is a woman was conclusory, and thus insufficient to raise issue of fact as to gender discrimination).
Moreover, plaintiff's response that the conduct occurred "because [she is] Marilyn Figueroa" is evidence that the conduct did not occur because of her gender, but rather because of individual dislike. Courts have repeatedly granted summary judgment where the evidence points, not to gender or racial animus, but rather to the fact that plaintiff's personality is the motivation for the harassment. See. e.g., Alfano, 294 F.3d at 378 (reversing district court and granting defendants' motion for judgment as a matter of law on hostile environment claim in part because plaintiff could adduce no evidence that her supervisor "disliked [plaintiff] because she was a woman," and the evidence showed instead "that he disliked [her] personally"); Kodengaga v. Int'l Bus. Mach. Corp., 88 F.Sup.2d 236, 243 (S.D.N.Y. 2000) (dismissing hostile work environment claim where, inter alia, evidence showed that the hostility plaintiff encountered "largely reflected a clash of personalities rather than discriminatory animus"); Padob, 960 F.Sup. at 813 (S.D.N.Y. 1997) (dismissing sexual harassment claim for lack of evidence as to gender bias where plaintiff had an "acknowledged personality conflict" with her supervisor); Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994) ("If the workplace is unsavory for any reason other than hostility generated on the basis of race, gender, ethnicity, or religion, no federal claim is implicated. In short, personality conflicts between employees are not the business of the federal courts"). In other words, Title VII provides no remedy for mistreatment if it is not based on gender or some other unlawful reason. See Fisher v. Vassar Coll., 114 F.3d 1332, 1337 (2d Cir. 1997) (noting that an employer may take adverse employment action against an employee for any "reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling . . . spite or personal hostility"), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48 (2000).
Beyond Figueroa's own statements, it is uncontroverted that Figueroa did not have a good relationship with her colleagues and supervisors. Moreover, Figueroa was consistently reprimanded for lateness, failure to appear for work and failure to obey her supervisors. See Griffin v. Ambika Corp., 103 F.Sup.2d 297, 315 (S.D.N.Y. 2000) (dismissing hostile work environment claim where hostility that supervisors directed at plaintiffs was likely the result of the "litany of complaints against [plaintiffs] by their coworkers," even where plaintiffs maintained that the complaints were false). Other evidence of gender discrimination in plaintiff's workplace is lacking. There were other female employees in the garage, see Fig. Dep. at 19, but Figueroa does not mention any hostility directed at any other woman, nor does she proffer sufficient evidence that the men in the garage were not treated in a hostile manner. See Griffin, 103 F.Sup.2d at 315 (stating that plaintiffs failed to show animus where they did not "set forth direct comparative evidence to show how their supervisors treated them discriminatorily vis a vis those outside their protected group") (quotation marks omitted). In sum, the evidence is scant that the problems she was having at work were due to her gender, and, taking into account certain statements Figueroa made during her deposition, it is clear that a rational juror could not conclude that the conduct was motivated by anything other than dislike of her as an individual.
Unfortunately for the plaintiff, the record amply demonstrates that her situation was similar to that of Ms. Figueroa. From the beginning to the end of her employment at Wesleyan, she alienated many, if not most, of her co-workers to the point where they did not want to be paired for work with her or otherwise to have to interact with her. When they were paired with her for work, from the beginning of her employment she insisted, despite her then relative lack of experience at Wesleyan, and thereafter, in having the work done as she determined, and she also complained to co-workers and others, including supervisors and administrators, about what she perceived as her co-workers' work-related and personal short-comings. Predictably, she thus was not liked or trusted by many, if not most, of her co-workers who feared that they and their work would continue to be criticized by her, and that the result of being paired with her for work or otherwise having to interact with her would be that they would be complained about and reported to supervisors and administrators.
Having thus intentionally or unintentionally accomplished the result of alienating her co-workers and distancing herself from them (whether or not she was aware of doing so), the plaintiff decided she did not want to work alone (to be a "single" instead of being paired), and she thereafter embarked on a course of action to have management force one or more of such workers to be paired for work with her. This course of action was not helpful to her relationship with her co-workers, but the defendant made continuing efforts to accommodate her wishes. The evidence amply demonstrates that she was unable to modify her alienating behavior despite several reasonable efforts by the defendant to assist her in doing so through various resources. Unfortunately for the plaintiff, the evidence also demonstrates, inter alia, that her personality, her determination that her decisions about how to perform her work were to be followed whether or not she was paired with a co-worker, and her efforts to re-make her co-workers into her image of how they should interact with her, rather than her gender, were primary causes of her workplace difficulties. The evidence does not demonstrate, as the plaintiff has alleged, that she was subjected to disparate treatment and to a hostile working environment by the defendant because of her sex.
It thus is clear from the evidence submitted by the parties that no rational juror could conclude that any hostile conduct directed at her was motivated by anything other than the foregoing, including her behavior toward other employees of the defendant and their consequent dislike and fear of her as an individual. In response to the defendant's evidence, the plaintiff did not respond with evidence that demonstrated any genuine issues of material fact that would, if believed, allow a jury to find in her favor. The defendant thus is entitled to judgment as a matter of law.
The motion of defendant for summary judgment is granted.