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holding that there was not adequate proof of homosexuality where a supervisor repeatedly made friendly gestures to a same-sex subordinate, such as bringing her food, but did not engage in "any hint of sexual innuendo"
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No. 00 Civ. 6191 (CBM)
April 8, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Estelle West brings this action against her former employer, the Mount Sinai School of Medicine ("Mt. Sinai"), and her former supervisor, Dr. Joyce Shriver. Plaintiff asserts causes of action for sexual harassment and unlawful retaliation in violation of Title VII and its New York state and city counterparts, as well as a cause of action for common law battery. Defendants have moved for summary judgment. For the reasons set forth below, defendants' motion is GRANTED.
BACKGROUND
Plaintiff was employed by Mt. Sinai as Dr. Shriver's secretary for approximately one year beginning in March 1999. Plaintiff alleges that during the duration of her employment she was the victim of repeated unwanted sexual advances by Dr. Shriver. Though Dr. Shriver never directly propositioned plaintiff, plaintiff alleges that Dr. Shriver often did nice things for her, such as offer to buy her yogurt, bring her leftover plates of food, and allow her to eat at her desk even though other employees were not permitted to do so. According to plaintiff, Dr. Shriver also occasionally asked her about her weekend plans and sat close to her when others were not around. Plaintiff interpreted these gestures as sexual advances.
On September 30, 1999, plaintiff met with Daniel Kearney, a Mt. Sinai labor relations representative, and requested a transfer to another position. Plaintiff described the problems she was having working for Dr. Shriver, which she claimed had created an abusive environment. Kearney asked plaintiff to memorialize her complaints in writing. Plaintiff did not immediately comply with this request, but she eventually wrote out a written complaint on November 22, 1999. Mt. Sinai's director of human resources responded to plaintiff's written complaint by conducting an investigation.
Meanwhile, sometime during the fall of 1999 Dr. Shriver began to complain to human resources about plaintiff's work performance. According to Dr. Shriver, plaintiff often put the wrong addressee and/or the wrong date on memoranda, among other things. Mt Sinai claims that human resources attempted to work with plaintiff to correct these problems but that plaintiff's performance did not improve. In late December, Dr. Shriver memorialized her dissatisfaction with plaintiff's performance in a series of emails sent directly to plaintiff. Plaintiff responded to these emails with angry emails of her own, in which she accused Dr. Shriver of fabricating the criticisms and threatened to respond with legal action. On January 6, 2000, Mt. Sinai informed plaintiff that she was being terminated for unsatisfactory performance and insubordination.
DISCUSSION
A. Sexual Harassment
Plaintiff claims that Dr. Shriver's conduct constituted sexual harassment in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. It is axiomatic that harassment in the workplace is actionable under these statutes only when it occurs "because of [an employee's] sex." See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998). Defendant is entitled to summary judgment unless plaintiff can point to evidence creating a genuine issue of fact regarding whether Dr. Shriver's workplace conduct vis-a-vis plaintiff was "because of [plaintiff's] sex."
New York courts require the same standard of proof for claims brought under the state and city human rights laws as those brought under Title VII. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 n. 6 (2d Cir. 1996).
Plaintiff's affidavit — the only piece of evidence she proffers in opposition to defendants' summary judgment motion — alleges eight examples of Dr. Shriver's conduct that supposedly constitutes a pattern of unlawful sexual harassment: Dr. Shriver offered to buy her yogurt; offered to take her to the theater; brought her plates of leftover food; occasionally required her to stay in the office after other employees had left early; occasionally sat close to her at her desk; sometimes asked about her weekend plans; often allowed her to eat at her desk even though other employees were not permitted to do so; and seemed to dislike it whenever a colleague named Sven spoke to her. See West Aff. ¶¶ 5-6. "Based upon my experiences in life," plaintiff declares, Dr. Shiver's actions "can only [be] ascribe[d] [sic] . . . as sexual advances." Id. ¶ 4.
The court holds that plaintiff has not met her burden of creating a genuine issue of fact with respect to whether Dr. Shiver's alleged conduct was "because of" her sex. To begin with, the alleged conduct about which plaintiff complains was, on its face, completely devoid of any hint of sexual innuendo. Even if there were evidence suggesting that Dr. Shiver is homosexual — which, as will be discussed below, there is not — it is hard to see how a reasonable factfinder could conclude that Dr. Shiver's alleged actions were anything other then simple friendly gestures, not veiled sexual advances.
Moreover, plaintiff has not presented any other evidence suggesting that Dr. Shriver is indeed homosexual. This is not to say, of course, that the workplace conduct of a heterosexual person never can be deemed to have been "because of" a same-sex coworker's gender. As the Supreme Court has observed:
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.Oncale, 523 U.S. at 80-81 (emphasis added). Here, however, plaintiff's discrimination theory is that Dr. Shiver's conduct was motivated by sexual desire, not that Dr. Shriver was motivated by general hostility to the presence of women in the workplace or that Dr. Shriver habitually treated men and women differently. See West Aff. ¶ 4. In this situation, where plaintiff is seeking to prove that Dr. Shiver's alleged conduct amounted to a pattern of sexual advances, it is quite relevant that there is no independent evidence that Dr. Shiver is homosexual.
The complete lack of sexual innuendo in Dr. Shiver's alleged conduct, coupled with the lack of evidence that she is homosexual, leaves no basis whatsoever for a reasonable factfinder to conclude that Dr. Shiver's actions were motivated by plaintiff's sex. Accordingly, defendant's motion for summary judgment with respect to plaintiff's sexual harassment claims is hereby GRANTED.
B. Unlawful Retaliation
Defendants have also moved for summary judgment with respect to plaintiff's retaliation claim. To establish a prima facie case of unlawful retaliation, plaintiff must show: (1) that she was engaged in an activity protected under Title VII; (2) that Mt. Sinai was aware of plaintiff's participation in the protected activity; (3) that Mt. Sinai took adverse action against plaintiff; and (4) that a causal connection existed between plaintiff's protected activity and the adverse action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). Defendants argue that plaintiff has not satisfied the second element of her prima facie case because she never claimed to Mt. Sinai that Dr. Shiver's actions constituted sexual harassment but rather claimed only that Dr. Shiver's actions constituted garden-variety, nonsexual abuse.See Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) ("[I]mplicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII.").
Plaintiff's November 22, 1999 memorandum, in which she memorialized her complaints about Dr. Shriver's alleged conduct, states that she "experienced erratic and abuse [sic] behavior, mood swings, outbursts, as well as extreme harassment almost on a daily basis from Dr. Joyce Shiver." See Plevan Aff. Exh. G. Plaintiff's memorandum nowhere even hinted, however — much less explicitly stated — that there was anything sexual about Dr. Shiver's conduct. Similarly, plaintiff sent Dr. Shiver several emails in December 1999 complaining about what she called Dr. Shiver's "constant harassment and badgering," "extreme forgetfullness [sic] and abuse," and behavior that "always has been . . . sarcastic [and] critical." See Sante Aff. Exhs. A, B. Again, however, none of plaintiff's emails even suggested that Dr. Shiver's alleged harassment was sexual in nature.
Plaintiff responds by pointing to her affidavit, in which she swears that during her initial meeting with Mr. Kearney in September 1999 she told him that Dr. Shiver was making sexual advances towards her. See West Aff. ¶ 8. Plaintiff's affidavit, however, is inconsistent with her deposition testimony. At her deposition, plaintiff explained that she never expressly told Mr. Kearney that she believed Dr. Shiver's actions constituted sexual advances; rather, she at most hinted to Mr. Kearney that there were sexual overtones to Dr. Shiver's conduct:
And I also told [Mr. Kearney] that . . . there is a bottom line to this whole thing, I says, which I don't want to disclose now, but I says all I can tell you is that she asked me to go to plays with her, she offered to bring me things back from the store. I said she comes outside [of her office] when everyone else has left the office, and I said to [Mr. Kearney] do you understand what I'm trying to say to you and he shook his head yes.
West Depo. at 149-50. Plaintiff then stated that she had "[n]ot really specifically" told Mr. Kearney that there was anything sexual about Dr. Shiver's conduct. Id. at 150. In light of this deposition testimony, the court declines to credit plaintiff's self-serving statement in her affidavit that she told Mr. Kearney that Dr. Shiver was making advances towards her. See Bickerstaff v. Vasser College, 196 F.3d 435, 455 (2d. Cir. 1999) ("It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that . . . contradicts the affiant's previous deposition testimony.") (internal quotation omitted).
Viewing the evidence in the light most favorable to plaintiff, the court holds that no reasonable factfinder could conclude that Mt. Sinai understood, or reasonably could have understood, that plaintiff's complaints about Dr. Shiver implicated Title VII. By her own admission the most plaintiff did was give Mr. Kearney a knowing look, and none of her many written follow-ups suggested that her sex had anything at all to do with Dr. Shiver's alleged conduct. Because Mt. Sinai never understood that plaintiff's complaints had anything to do with activity protected by Title VII, her subsequent termination cannot, as a matter of law, amount to unlawful retaliation under Title VII.
Accordingly, the court hereby GRANTS defendants' motion with respect to plaintiff's retaliation claims.
C. Common Law Battery
Finally, the court declines to exercise supplemental jurisdiction over plaintiff's common law batter claim. See Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir. 2000) ("Certainly, if the federal claims are dismissed before trial . . . the state claims should be dismissed as well."). Accordingly, the court hereby DISMISSES that claim without prejudice.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment with respect to plaintiff's sexual harassment and retaliation claims are GRANTED. Plaintiff's battery claim is DISMISSED without prejudice.