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finding no actionable harm by employer's failure to remove reprimand letter from employee's file because Plaintiff did not show that letter affected her salary or other terms, privileges or conditions of her employment
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97-CV-0677E(Sr)
June 29, 2000
ATTORNEYS FOR THE PLAINTIFF, Nell J. Mohn, Esq., and James P. Giambrone, Jr., c/o The Law Offices of H.A. Zionts, Buffalo, N Y 14203,
ATTORNEYS FOR THE DEFENDANT, Sewer Authority — Charles S. Carra, Esq., c/o Damon Morey 1000 Cathedral Place, Buffalo, N Y 14202 Williams — Laurence D. Behr, Esq., c/o Barth, Sullivan Behr Buffalo, N Y 14202
MEMORANDUM and ORDER
Plaintiffs bring this action against their employer, defendant Buffalo Sewer Authority ("Buffalo Sewer"), and defendant James Williams alleging violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e to 2000e-17, ("Title VII") and the Human Rights Law of the State of New York, N.Y. Exec. Law §§ 290-301 ("the HRL"); Jurisdiction is premised on 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1331, 1367. Presently before this Court are defendants' motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Such motions will be granted in part and denied in part.
Insofar as Williams has chosen to incorporate by reference "all of the legal arguments and evidentiary submissions of the Buffalo Sewer Authority, submitted . . . in support of its own motion for summary judgment" — Behr Decl. ¶ 9 (Aug. 16, 1999) —, both motions are considered hereinafter as one. While plaintiffs have objected to such treatment, the undersigned finds no good reason to proceed otherwise.
Buffalo Sewer has also brought a motion to strike the affidavit of Ruthanne Jillian. However, inasmuch as this Court has not considered the contents thereof, such motion is moot.
The standards which determine whether summary judgment may properly be granted are well-established. Such "shall be rendered forthwith 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 [parties are] entitled to a judgment as a matter of law." FRCvP 56(c). A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is genuine if it reasonably could be resolved in favor of any party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). Evidence submitted by the non-movants is to be believed and all justifiable inferences are to be drawn in their favor. See Anderson, at 255. Summary judgment will be entered against the non-movants, however, if the existence of any element essential to their case on which they also bear the burden of proof at trial is not established. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). This means that, where the moving parties have carried their burden, "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). The undersigned is also cognizant of the fact that, in the context of a Title VII action where state of mind or intent is often at issue, summary judgment should be used "sparingly." Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988).
Except as otherwise noted, the following facts are undisputed and, where appropriate, construed in a light most favorable to plaintiffs. Buffalo Sewer is a public authority organized under the laws of the State of New York. Compl. ¶ 8. Plaintiff Dawn Slinkosky began her employment for Buffalo Sewer in December 1985. Buffalo Sewer's Statement ¶ 1. Plaintiff Richard Slinkosky began his employment for Buffalo Sewer in December 1978. Id. ¶ 2. Dawn filed a charge of discrimination with the Equal Employment Opportunity Commission ("the EEOC") July 8, 1996, alleging discrimination on the basis of sex in violation of Title VII. Richard filed his charge of discrimination with the EEOC August 26, 1996, alleging retaliation in violation of Title VII. The EEOC issued right-to-sue letters on June 10, 1997 and June 3, 1997, respectively.
As an employee of Buffalo Sewer, Dawn worked principally as a sanitary chemist, a position which required, inter alia, that she perform tests on "conventional and effluent water" being released from Buffalo Sewer's Bird Island Sewage Treatment Plant. Dawn Slinkosky Dep. at 41-57. As is typical of most employment settings today, Dawn's workplace performance was subject to oversight and, at all times germane to this action, Williams functioned as her supervisor. Under this supervision, she alleges that she was "repeatedly subjected to unwelcome comments and writings of a sexual nature" by Williams. Plaintiff Dawn Slinkosky's Notice of Charge of Discrimination. This is not to say, however, that the record wholly supports the view that the relationship between Dawn and Williams was acrimonious. Their relationship was apparently characterized by periods of congeniality, although plaintiffs assert that any such "friendship ended sometime in 1995." Plaintiffs' Statement ¶ 2.
In her deposition and in her supporting papers, Dawn avers that Williams began sexually harassing her "early on in [her] employment." Dawn Slinkosky Dep. at 36. Generally, this alleged harassment consisted of "many notes, cards and letters" which Dawn maintains contained "sexual overtones or illicit implications of sexual things." Typical of these materials are statements expressing such sentiments as "you look good from any angle, front or back, preg [sic] or not," referring to Dawn as "princess" and referencing a female character from the 1992 motion pictureBram Stoker's Dracula in a manner that could be construed as an allusion to fellatio. See generally Carra Aff. Ex. D. Conversely, the record also indicates Dawn was not always the recipient of such items. Indeed and as amply demonstrated by defendants, Dawn regularly sent Williams a large number of what may loosely be termed "friendship" cards.
Director Francis Ford Coppola's screen adaptation of the 1897 Victorian England horror novel.
These cards were most often characterized by expressions of thanks and cordiality and one was even accompanied by what defendants allege was an adult-computer game. Id. Exs. C, E.
During the times in which these materials were being exchanged, Dawn maintains that Williams often said and did things that, because — inter alia — she was his subordinate, made her feel "uncomfortable." Dawn Slinkosky Aff. ¶¶ 7-22. Prominent among these allegations are (1) being given $40 by Williams sometime in 1992 or 1993 for the purchase of a swimsuit, (2) Williams' stating that Dawn should "give someone else a chance" to date her in 1988, (3) has offering to spend a "longevity check" on Dawn many times during 1992 and 1993, (4) commenting on Dawn's appearance and dress on numerous occasions, (5) requesting that Dawn make a video of herself prior to leaving on maternity leave and (6) periodically suggesting that she dine at lunch alone with him while imbibing alcoholic beverages and thereafter "lie on the couch in his office." While there is no evidence in the record indicating that Williams ever directly requested sexual relations, Dawn maintains that the "intimate undertones" inherent in these offers and requests were offensive. She further alleges that, while she "did not know at the time [that these acts] constituted sexual harassment," she did not feel that she could afford to take corrective action. Id. at ¶ 32. She alleges that to do so would have caused her "to get on Mr. Williams' bad side, so [she] overlooked or tolerated many of the things he did that [she] thought were inappropriate." Id. at ¶ 50. This "bad side," Dawn avers, might have led to the termination of her employment or engender a situation wherein physical harm could have resulted. Id. at ¶¶ 50, 51. Indeed, Dawn asserts that her many notes of friendship were merely indicative of a person concerned with job security — i.e., she states that Williams "treated more harshly" those employees who did not thank him for work-related favors, remember his birthday or send holiday greetings. Plaintiffs' Statement ¶ 31.
Dawn's alleged uneasiness regarding the working relationship she had with Williams apparently reached its apex after an argument with him September 24, 1995. Defendant's Statement ¶ 22; Plaintiffs' Statement ¶ 11. From what can be gleaned from the record, Dawn had begun to complete analyses on some laboratory specimens that Williams had previously started but that during these analyses she became "startled" when Williams approached her in a hostile manner and inquired as to why she was "rushing" his work. Dawn Slinkosky Dep. at 207-208. Two days later, Dawn and Williams again crossed paths at work when Williams came "storming out of the lab — or out of the lab office to where" Dawn was and started "yelling" at her, claiming she had an "attitude" and that she had better "get rid of it." Id. at 218. Around this same time, Dawn also alleges that Richard Martino, Williams' assistant, privately conveyed to her that, based on conversations with Williams, she had "better cross all [her] Ts and dot all [her] Is, because [Williams] was going to be waiting and watching for [her] to make the slightest mistake." Id. at 225. Dawn then met with Fred Bongiovanni, the plant supervisor, and complained to him that Williams was "bringing his personal problems into the laboratory" and was adversely affecting the workplace. Id. at 331-332. While she never explicitly complained of any sexual harassment at this meeting — id. at 332 —, Dawn avers that she told Bongiovanni that "she feared retaliation" if "her complaints about Defendant Williams [were] known to him." Plaintiffs' Statement ¶ 12. Finally, on November 30, 1995 both plaintiffs complained to Salvatore LoTempio, Assistant Plant Superintendent, about Williams' allegedly sexually harassing behavior — Buffalo Sewer's Statement ¶ 25 — and "formally" began a "complaint procedure" against Williams. Dawn Slinkosky Dep. at 91. An investigation followed and concluded that "Mrs. Slinkosky's allegations of sexual harassment were `unfounded;' however, the investigation also concluded that Mr. Williams did engage in some inappropriate behavior.'" Buffalo Sewer's Statement ¶ 29. Williams was then "reprimanded and disciplined," such punishment including a "one-week suspension without pay." Id. at ¶ 30.
For obvious reasons, defendants characterize such a statement as inadmissable hearsay — Carra Aff. ¶ 25 — and this Court takes no position as to its ultimate admissibility at trial.
Dawn also made allegations of sexual harassment against a now deceased co-worker, Jack Jarmack. Id. at ¶ 31. Her basis for these claims stems principally from incidents wherein Jarmack (1) told Dawn in the Fall of 1990 that "it's time for your internal" during a time when she was pregnant, (2) showed Dawn "offensive" photographs depicting the birth of one of his children sometime prior to 1991, (3) told Dawn in April 1993 to "[s]hut the F[ sic] up" after she had requested another piece of pizza during a lunchtime and (4) said to a co-worker — but in front of Dawn — in January 1996 that "[a]ll women should be killed" and that they are "useless except for one thing" which led to a hostile "exchange of words" between Jarmack and Dawn. Compl. ¶¶ 30-36; Dawn Slinkosky Dep. at 173-181; Buffalo Sewer's Statement ¶ 32. The latter of these incidents prompted both plaintiffs to complain to LoTempio regarding Jarmack's allegedly sexually harassing behavior and, after an investigation had been conducted, both Dawn and Jarmack were issued "letters of reprimand" due to the January 1996 confrontation. Id. at ¶ 34. Dawn later requested that this letter be removed from her personnel file but such was denied. Id. at ¶¶ 35, 36.
A previously named defendant herein, this action was dismissed with prejudice as against Jarmack by Stipulation of Discontinuance and Acceptance of Service of Amended Complaint filed October 26, 1998. The proposed Amended Complaint, however, was not filed.
Dawn maintains that she was retaliated against, after she had made these complaints against the aforementioned individuals, by being given an "increased workload" and by the denial of her request that the letter of reprimand be removed from her personnel file. Id. at ¶ 39; see also Compl. ¶ 86. Dawn also avers that Buffalo Sewer failed to accommodate her request that her desk be removed from the vicinity of Williams, who had continued to act as her supervisor. Id. at ¶¶ 29, 86; see also Hazzan Dep. at 147. Richard, moreover, alleges that he was retaliated against for his having opposed the discriminatory practices affecting Dawn. Specifically, Richard maintains that, after Dawn's complaint, he had been falsely charged in April 1996 under Section 75 of New York's Civil Service Law for having allegedly left his post at the sewage treatment plant when he had not been authorized to do so and was disciplined for "excessive phone use" in February of 1996. Defendant's Statement ¶¶ 42, 45; Plaintiffs' Statement ¶¶ 23, 46.
Preliminarily, defendants argue that this Court may not consider those "allegations of sexual harassment by [Dawn] prior to September 12, 1995, because there is no continuing violation in this case." Defendant Buffalo Sewer's Mem. of Law at 13. In accordance with 42 U.S.C. § 2000e-5 (e)(1), a charge alleging an unlawful employment practice — including sexual harassment — must be filed "by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred." As this pertains to the instant case, such a time limitation would — albeit only facially — preclude the consideration of those allegations of sexual harassment of Dawn which occurred prior to September 12, 1995, inasmuch as her EEOC charge was filed July 8, 1996. Nevertheless, if Dawn can show that she had been the target of a continuous and systematic policy of discrimination, "the commencement of the statute of limitation period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (quotation marks omitted). This continuing-violation doctrine is an exception to Title VII's 300-day rule. To establish a continuing violation, Dawn must either show "specific discriminatory policies or mechanisms," — Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) — or demonstrate specific and related instances of discrimination [that] are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell, at 704. If either is shown and plaintiff establishes that her harassment was not some discrete incident of discrimination unrelated to the alleged discriminatory policies, practices or mechanisms, she will be allowed to bring suit challenging all conduct related to her timely allegation. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); see also Cornwell, at 704.
Applying this doctrine to the instant matter, it appears that, inasmuch as Dawn has not demonstrated that the actions of Jarmack prior to the 1996 incident were other but sporadic and were not the product of discriminatory policies, practices or mechanisms, they will not be considered. More troubling, however, are the accusations she makes — and the materials she submits — implicating Williams. The submitted record, when viewed in the light most favorable to Dawn, favors an application of the continuing-violation doctrine, in that the alleged harassment appears to have regularly and continually taken place since 1987 with no significant interruption in time "as to break the asserted continuum of discrimination." See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (1998). It should be pointed out that this is not a situation wherein a plaintiff seeks an application of the doctrine by purporting to demonstrate the existence of such allegedly discriminatory policies, practices or mechanisms through illustrations of the collective, and perhaps similar, discriminatory acts perpetrated by a number of different individuals. Such illustrations, without more, would not constitute a continuing violation where there is no proof that the employer has permitted, tacitly or otherwise, such actions to go unremedied. See Kearney v. Pyramid Management Group, No. 98-CV-00531E(Sc), 2000 WL 744000, at *6 (W.D.N.Y. June 5, 2000). Presented herein is a far different case. Williams is Dawn's direct supervisor and it is his behavior that primarily forms the basis for her claims. As an employee of Buffalo Sewer and as Dawn's direct supervisor, an agency relationship exists between the defendants such that Buffalo Sewer will be facially and vicariously liable for Williams' misuse of his supervisory authority. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (noting that — with one limited exception — "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate . . . authority over the employee."). Therefore, inasmuch as the majority of the allegedly sexually harassing behavior was perpetrated by Williams, knowledge of said conduct may be imputed to Buffalo Sewer. This creates a situation in which a discriminatory policy or practice can be found to exist because specific and related instances of alleged discrimination were knowingly permitted by the employer — through operation of the agency relationship — to continue unremedied. An application of the continuing-violation doctrine is therefore warranted under these facts and this Court may consider Williams' allegedly discriminatory actions prior to September 12, 1995.
Defendants also argue that this Court may not consider any claims of retaliation which occurred prior to Dawn's filing of a charge with the EEOC on July 8, 1996 and are not included therein inasmuch as "a district court only has jurisdiction to hear Title VII claims that are either included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to [conduct] alleged in the EEOC charge." Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993) (citations omitted and emphasis added). Defendants note that nowhere "in [Dawn's] Charge . . . did she allege any retaliatory conduct by Defendant Buffalo Sewer Authority." Buffalo Sewer's Mem. of Law at 18. Insofar as this relates to Dawn's claim that the refusal to move her desk was facially retaliatory in nature, the undersigned agrees. Beyond such, however, defendants' argument is unavailing inasmuch as the Notice of Charge of Discrimination addressed to Buffalo Sewer lists retaliation as one basis for her claims and her Charge of Discrimination notes that, after she had complained about her alleged harassment by Jarmack, she "received a written warning regarding the incident." Carra Aff. Ex. A. Such language is sufficient to inform Buffalo Sewer that its supervisory employee may have acted in a retaliatory manner prior to July 8, 1996 and satisfies the requisite jurisdictional predicates governing Title VII claims in this Court. Consideration of this claim — i.e., that the letter of reprimand was issued in retaliation for "responding to Jarmack's degrading speech" — will not contravene the "purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, . . . if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Butts, at 1401.
Title VII provides, in relevant part, that it is unlawful for an employer "to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of the individual's . . . sex . . ." 42 U.S.C. § 2000e-2 (a)(1). This language has been construed to include "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). This form of harassment is actionable under Title VII" [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (quotation marks and citations omitted). Defendants maintain that Dawn cannot maintain her hostile work environment claims inasmuch as the record demonstrates (1) nothing more than a consensual, personal and friendly relationship gone sour, (2) that the conduct of Jarmack will not support a prima facie case of sexual harassment and (3) that Buffalo Sewer may invoke an "affirmative defense" to such claims.
Plaintiffs have also brought claims pursuant to the HRL. However, "because New York courts require the same standard of proof for claims brought under section 296 of the Human Rights Law as for those brought under Title VII," the undersigned will "analyze these claims in tandem." Quinn, at 765. Moreover, even if this Court were to assume that, in order to establish employer liability under the HRL, an employer must have knowingly encouraged, condoned, or approved the employee's discriminatory act, the record — when viewed in a light most favorable to plaintiffs — does not support defendants' position that the Human Rights Law claims are not actionable. See, e.g., Father Belle Community Ctr. v. New York State Div. of Human Rights, 642 N.Y.S.2d 739 (App.Div. 4th Dep't 1996).
In determining whether an environment is sufficiently hostile to be within the purview of Title VII, the relevant factors include 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. However, "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Id. at 21-22. Stated differently, f the allegedly discriminatory conduct was "not unwelcome," no Title VII action will lie. In support of their contention that Dawn welcomed Williams' conduct, defendants have submitted a "mountain" of materials purporting to evidence the "consensual, friendly relationship between Mrs. Slinkosky and Mr. Williams which Mrs. Slinkosky at all times solicited." Buffalo Sewer's Mem. of Law at 28. Nevertheless, while the overall effect of defendants' submissions is quite compelling, it simply cannot be said that, at this juncture, there are no genuine issues of fact as to "welcomeness" vel non of Williams' actions. In this regard, it is particularly worthy here to remind the parties of the Second Circuit Court of Appeals' recent admonition that "[a]n Article III judge is not a hierophant of social graces." and that "[e]valuation of ambiguous acts such as those revealed by the potential evidence in this case" are best suited for a trier of fact. Gallagher v. Delaney, 139 F.3d 338, 347 (1998). As this analysis pertains to the conduct of Jarmack, however, Dawn cannot satisfy her burden of proving a sexual harassment case by demonstrating that a hostile work environment was created by Jarmack. The incident on which plaintiff would base her claim — the January 1996 "exchange of words" confrontation — is far too episodic and insufficiently severe to support any finding that this altered her work conditions. See Quinn, at 768. Consequently, plaintiffs' claims implicating Buffalo Sewer through the actions of Jarmack will be dismissed to the extent they allege that Jarmack created a hostile work environment.
Regardless of the above discussion, Buffalo Sewer asserts that, even Dawn has raised genuine issues of material fact as to whether she was subjected to a hostile work environment, the holdings in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), grant it an affirmative defense that precludes any liability for sexual harassment. Both decisions stand for the proposition that — given supervisory harassment —, where "no tangible employment action is taken" vicarious liability applies but may be precluded by a two-part showing — viz., "(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 preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, at 807; see Ellerth, at 765. Moreover,
"[w]hile proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Id.
Defendant Buffalo Sewer asserts that, "because [p]laintiff admittedly suffered no tangible job action on the basis of the alleged sexual harassment," it cannot be held liable inasmuch as both prongs are satisfied. Buffalo Sewer's Mem. of Law at 31.
Assuming, arguendo, that Dawn suffered no tangible employment action, Buffalo Sewer's argument is nonetheless unavailing. Turning to the first prong, it argues that such is "satisfied because Defendant has exercised reasonable care to prevent sexual harassment through the promulgation of a sexual harassment policy [in 1992], and because Defendant promptly responded to, investigated and resolved Mrs. Slinkosky's allegation of sexual harassment." Id. Buffalo Sewer notes that, when plaintiffs invoked the "formal complaint procedure," Dawn's allegations were immediately investigated and — although no evidence of sexual harassment was found — it was concluded that Williams had engaged in "improper conduct" for which he was disciplined. Id. at 32. If the facts are viewed in a light most favorable to Dawn, however, Buffalo Sewer's satisfaction with their policies and procedures may be misplaced. Firstly, while it is not disputed that it had an anti-harassment policy with a procedure for filing complaints, there remains a question of fact as to whether it exercised reasonable care in promptly correcting any such reported behavior. For instance, while such investigation resulted in the reprimand and one-week suspension of Williams, Dawn claims that the harassment continued and showed that Williams remained her direct supervisor. Secondly, there remains a question of fact as to whether Buffalo Sewer's employees were even made fully aware of the anti-harassment policy and how to formalize a grievance. If true, such would indicate that Buffalo Sewer may not have exercised reasonable care to prevent such allegedly discriminatory behavior. As such, whether this prong has been satisfied cannot be resolved at this stage. Furthermore, there remains a question of fact as to whether Dawn was unreasonable in taking steps to correct the allegedly discriminatory behavior by Williams. While it is undoubtedly true that she waited an inordinately long time before filing her grievance, she may have had good reason — viz., fear of retaliation. Indeed, after Dawn had filed her grievance, her job duties were rewritten so as to result in her allegedly being subjected to an unfair and unequal distribution of work. See Giambrone Aff. Ex. F.
Defendants maintain that Dawn cannot maintain quid pro quo sexual harassment claims inasmuch as the record demonstrates that "there were admittedly no sexual advances by Mr. Williams and no link between job benefits and sexual advances." Buffalo Sewer's Mem. at 41. This Court agrees. In order for plaintiff Dawn to have satisfied her burden at this stage, she must have adduced some evidence purporting to show some tangible adverse job consequences for rebuffing a supervisor's advances. Ellerth, at 753-754. The record nowhere indicates the existence of any such. Accordingly, because her "claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim" and her quid pro quo sexual harassment claims therefore fail. Id. at 754.
Title VII also prohibits employers from discriminating against an employee because the employee has opposed any practice made unlawful by the statute or has filed a charge under the statute. 42 U.S.C. § 2000e-3 (a). To establish a prima facie case, Dawn must show that she took part in an activity protected by Title VII, that defendant Buffalo Sewer was aware of the activity, that she suffered an adverse employment action and that there is a causal link between the protected activity and the adverse action. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). If Dawn can make out a prima facie case, "the defendant has the burden of articulating a legitimate, non-retaliatory reason for the complained of action." Quinn, at 768. If Buffalo Sewer meets this burden, Dawn must then "adduce evidence "sufficient to raise a fact issue as to whether [the employer]'s reason was merely a pretext' for retaliation." Quinn, at 769 (quoting Tomka, at 1309) (brackets in original). Buffalo Sewer maintains that Dawn cannot maintain retaliation claims inasmuch as the record demonstrates "no adverse employment action" and, in any event, that there are legitimate non-retaliatory reasons for any complained of employment action. The undersigned disagrees. Firstly, in that an inference of discrimination may be established where protected activity is followed closely by adverse personnel actions — Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986) — and Dawn has adduced evidence which would seem to indicate that, following the filing of her EEOC charge in 1996, her workplace assignments were revised and increased, such facts may show that there was a retaliatory nexus between these changes and her complaints. See Plaintiffs' Mem. of Law at 18-19. Secondly, such an inference is not defeated by the fact that "every laboratory employee received new job duties in 1997 for a multitude of reasons" Buffalo Sewer's Reply Mem. of Law at 31 — where Dawn has shown that the performance of these new duties may have fallen disproportionately upon her. See Giambrone Aff. Ex. F; see also Carroll Dep. at 64. It should be noted, however, that the failure of Buffalo Sewer to remove the letter of reprimand from her file was not, by itself and as a matter of law, adverse inasmuch as Dawn has failed to show that the reprimand affected the compensation, promotion opportunities, or any other term, privilege, or condition of her employment.
Buffalo Sewer also maintains that Richard cannot maintain retaliation claims inasmuch as the record demonstrates that he has suffered no adverse employment action. Regarding the "excessive phone use" reprimand, this Court agrees. Richard has failed to show that the reprimand affected any term, privilege, or condition of his employment. Nevertheless, his allegation that he was falsely charged in April 1996 under New York's Civil Service Law can be construed as an adverse employment action and is a cognizable retaliation claim. Firstly, the timing of such charge in such close proximity to his November 1995 and January 1996 complaints are strongly indicative of retaliation. See Davis, at 642. Moreover and despite Buffalo Sewer's best characterizations, such a charge is an adverse employment decision. At the very least, the pendency of such a charge was, and remains, an impediment to "opportunities for professional growth" — Castro v. New York City Bd. of Educ. Personnel, No. 96 CIV. 6314 (MBM), 1998 WL 108004, at *6 (S.D.N.Y. Mar. 12, 1998) — that has "arguably altered the terms and conditions of his employment in a negative way. de la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 21 (2d Cir. 1996). Moreover, while Buffalo Sewer has introduced a legitimate, nonretaliatory reason for the complained of action — viz., namely that "Pamela DiPalma, Director of Employee Relations, saw plaintiff Richard Slinkosky" in a vehicle off-site when he was "signed in as working at the Sewage Treatment Plant" —, pretense can be inferred by considering that Richard has submitted good evidence that the charge may not be factually supportable. In this regard, Richard submits the testimony of four co-workers which place him at the plant during the disputed time. Richard Slinkosky Dep. Exs. B, C. In short, this question of retaliation remains an issue for the trier of fact to decide.
A disciplinary action brought under Section 75 may lead to, inter alia, the imposition of fines, demotion and even dismissal. As Buffalo Sewer points out, this charge is "serious in nature." Buffalo Sewer's Reply Mem. of Law at 33.
Finally, Buffalo Sewer maintains that punitive damages may not be recovered in this action. The undersigned agrees and any claim for such will be dismissed. Inasmuch as it is undisputed that Buffalo Sewer is a public authority created by the laws of New York State, it also is a governmental agency which may not be subject to punitive damages under the Civil Rights Act of 1991. See 42 U.S.C. § 1981a(b)(1) (noting that a "complaining party may recover punitive damages under this section . . . other than [against] a government, government agency or political subdivision").
Punitive damages may also not be recovered under New York's Human Rights Law. See Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 499 (1992).
Accordingly, it is hereby ORDERED that plaintiffs' quid pro quo sexual harassment claims are dismissed, that plaintiffs' claims implicating Buffalo Sewer through the actions of Jarmack are dismissed to the extent they allege that he created a hostile work environment, that Dawn Slinkowsky's retaliation claims are dismissed insofar as they are based on defendant Buffalo Sewer's refusal to move her desk as well as the "exchange of words" and "excessive phone use reprimands, that plaintiffs' claims for punitive damages may not be recovered in this action and are dismissed, that defendant Buffalo Sewer's motion to strike the affidavit of Ruthanne Jillian is moot and that defendants' motion to dismiss the remainder of plaintiffs' causes of action is denied.