Opinion
99-CV-0129E (F)
February 23, 2001
ATTORNEYS FOR THE PLAINTIFF: Harvey P. Sanders, Esq., c/o Sanders Sanders, 3940 Harlem Rd., Amherst, NY.
ATTORNEYS FOR THE DEFENDANT: Melissa H. Nickson, Esq., c/o Phillips, Lyrtle, Hitchcock, Blame Huber, 2100 Main Place Tower, Buffalo, NY.
MEMORANDUM and ORDER
Plaintiff Sherry Eisenhauer filed a charge with the Equal Employment Opportunity Commission ("EEOC") December 12, 1997 stating that she had been discriminated against and then terminated by her former employer Great Lakes Plastics ("GLP") because of her sex. The EEOC issued a right to sue letter. Plaintiff filed a complaint against GLP February 25, 1999 alleging that she had been discriminated against on the basis of her sex and subsequently terminated for having complained about such, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law, N.Y Exec. Law § 296. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(4) and 1367. Defendant moved for summary judgment March 6, 2000 and such motion has been before this Court for disposition.
The EEOC right-to-sue letter attached to the complaint is undated; however plaintiff states that she received it "[o]n or about February 20, 1999 . . ." Compl. ¶ 3.
Plaintiff was hired as a machinist at GLP July 30, 1996. Before plaintiff was hired, GLP never had had a female employee other than relatives-of the owner, Thomas Barzycki. T. Barzycki Dep. at 14. When plaintiff was hired she was given a copy of the employee handbook which contained GLP's harassment policy. Eisenhauer Dep. at 64; Pl.'s Rule 56 Stint. Ex. 9 (Receipt of Employee Handbook). The GLP harassment policy states, in its entirety, that:
"It is our policy to prohibit harassment of one employee by another employee or supervisor on any basis including, but not limited to, age, race, color, handicap, national origin, religion and/or sex.
"The purpose of this policy is not to regulate our employees' personal morality. Rather, it is to assure that, in the workplace, no employee harasses another on any of these bases.
"While it is not easy to define precisely what any of these bases is, it certainly includes slurs, epithets, threats, derogatory comments, unwelcome jokes, teasing, sexual advances, requests for sexual favors, and other similar verbal or physical contact.
"Any employee who feels that (s)he is a victim of such harassment should immediately report the matter to the sales manager or the secretary/treasurer. Violations of this policy will not be permitted and may result in discipline up to and including discharge." Pl.'s Rule 56 Stint. Ex. 9.
The GLP harassment policy had been adopted in April 1989; however no employee of GLP has ever been disciplined for sexual harassment. T. Barzycki Dep. at 62. GLP has not had a sales manager since 1987-1988 — although Richard Barzycki, the lathe shop supervisor and a cousin of the owner, mistakenly believed that Philip Coleman, the general manager, was the sales manager. T. Barzycki Dep. at 60-62; R. Barzycki Dep. at 24. The secretary/treasurer was Rosemarie Krzanowicz, the sister of the owner Thomas Barzycki who states that she is the only one to whom an employee could report sexual harassment under the policy. T. Barzycki Dep. at 60-62. However, the Receipt of Employee Handbook states that "questions regarding the content or interpretation of this handbook [shall] be brought to the attention of [the] supervisor or foreman" — Pl.'s Rule 56 Stint. Ex. 9 (Receipt of Employee Handbook) — and Richard Barzycki believed that the proper person to whom an employee must report sexual harassment was her or his immediate supervisor — R. Barzycki Dep. at 23. Furthermore, Thomas Barzycki had been aware that Richard Barzycki had told plaintiff to come to that if she had any trouble with her co-workers, and Thomas Barzycki had stated that that was acceptable to him. T. Barzycki Dep. at 56-57.
Plaintiff states that, from the beginning of her employment, she was sexually harassed by her coworkers in general and one — Darryl — in particular. She states that, during her first week of work, Darryl told her either that he wanted "some of you honey" or "some of your honey." Eisenhauer Dep. at 30. She states that approximately eighty percent of the time the employees would eat lunch together but that Darryl would discuss his sex life and attempt to get the others to participate, as a result of which she often went out to lunch or ate in different areas. Id. at 32-34. During one of these group lunches — approximately a month after she began her employment at GLP —, Darryl stated "If I can't have you, if I can't sleep with you, then i'm going to make it my life's destiny to make you miserable." Id. at 35-36. Plaintiff claims that Darryl threatened to attack her sexually and said "I'll get you, I'll get you. You watch, one of these days i'm going to be knocking on your door and there's nothing you're going to be able to do about it." Id. at 38. Plaintiff states that Darryl told her at least five times in September of 1996 that he "wanted to go out after work with [her] so that he could have sex with [her] for a short time, about a week so he could get [her] out of his system" and that he was "not used to working with women and not being able to have sex with them." Eisenhauer May 11, 2000 Aff. ¶ 6. In February 1997 he stated that, if "she can sleep with [her boyfriend], she can sleep with me," that plaintiff wanted to "do" him, that he would "have to do her first, then her boyfriend can have her" and that her boyfriend could keep her because he "just want[ed] to use her." Id. ¶ 7. Plaintiff states that Darryl stated that he did not "want that bitch hanging around here anymore." Eisenhauer Dep. at 42.
Plaintiff states that Marty would give her "elevator eyes — i.e., looking up and down her body and that Al had a problem working with women and as a result would periodically snap and yell at her. Eisenhauer Dep. at 50-54.
Plaintiff states that she had made numerous complaints about the above harassment from the beginning of her employment up until her termination. She states that she first complained to Richard Barzycki, sometime before Christmas of 1996, about being harassed by Darryl, Marty and Al. Eisenhauer Dep. at 52-53. Richard Barzycki was the person to whom she most frequently complained because on her first day he had told her to come to him if she had any problems; however, she states that his main response to her complaints was simply "I don't know what to tell you." Id. at 55. She states that she also complained to her immediate supervisor, Kenneth Lawton, the machine shop foreman, and to Philip Coleman. Eisenhauer Dep. at 56-59. Plaintiff specifically states that she told Coleman February 9, 1997 that she was being harassed by Darryl and specifically that Darryl had stated that, "since he can't screw [her,] he has made it his life's destiny to make [her] miserable." Nickson March 6, 2000 Aff. ¶ 45; Ex. O. Plaintiff states that, after Catherine Barzycki — the wife of the owner — started working at GLP around December 1996-January 1997, she asked plaintiff if she was having problems with Al and Marty, to which plaintiff responded affirmatively but not as much of a problem as with Darryl. Eisenhauer Dep. at 61-63. Plaintiff states that Catherine Barzycki told her to write down every incident and bring it to her. Eisenhauer Dep. at 63; C. Barzycki Dep. at 20. Catherine Barzycki passed on plaintiff's complaints of harassment to both Thomas Barzycki and Rose Krzanowicz. C. Barzycki Dep. at 20.
Plaintiff states that, at closing time one day in early August 1997, Darryl was making gestures with his penis at the other male employees and did it to her at the request of another employee. Id. at 40; Scribner Dep. at 27-28, 44. Plaintiff states that the day after the penis-gesturing incident she directly complained to Thomas Barzycki. Eisenhauer Dep. at 52. Thomas Barzycki states that he spoke to Darryl about it and decided that plaintiff's allegation was not true. T. Barzycki Dep. at 43. Thomas Barzycki states that he knew Darryl was gesturing with his penis at other employees and states that he had no problem with it as long as it was not done in front of customers. T. Barzycki Dep. at 43-48. Thomas Barzycki states that Richard Barzycki had previously notified him of plaintiff's complaints about Al. T. Barzycki Dep. at 41. Thomas Barzycki states that he did not take any action in response to this allegation because "[i]f Al don't like women it's not [his] problem." T. Barzycki Dep. at 42. Thomas Barzycki also states that he was notified about the lunch incidents but did not look into them. T. Barzycki Dep. at 48.
Plaintiff states that on August 21, 1997 she became scared that Darryl was going to hurt her because of the nasty comments he was making and the way he was staring at her. Eisenhauer Dep. at 81-82. She spoke to both Kenneth Lawton and Richard Barzycki that day before she left work early because she was "shooken up" and scared. Eisenhauer Dep. at 82. The next day she called in and left a message on the answering machine stating that she would not be coming in. Eisenhauer Dep. at 83. Thomas Barzycki instructed Philip Coleman to terminate plaintiff for excessive absence. T. Barzycki Dep. at 66-71. On August 22, 1997, when plaintiff brought paperwork to Philip Coleman stating that she would be out on disability due to anxiety, he handed her a letter termination. T. Barzycki Dep. at 66-71.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP"), states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, any, 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." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party. Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in her pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).
Title VII of the Civil Rights Act of 1964 states that "[i]t shall be an 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). This act "not only covers "terms' and `conditions' in the narrow contractual sense, but `evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). A "plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment;" however for such "sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create a hostile working environment." Meritor, at 66-67. "A hostile work environment exists when 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." Karibian v. Columbia University, 14 P.3d 773, 779 (2d Cir.), cert. denied 512 U.S. 1213 (1994). Although the issue of whether the alleged sexual harassment constitutes a Title VII violation is determined from the totality of the circumstances, "the incidents [of sexual harassment] must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Carrero v. New York City Housing Authority, 890 F.2d 569, 577-578 (2d Cir. 1989). "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex;" it is sufficient that the "harasser is motivated by general hostility to the presence of women in the workplace." Oncale, at 80.
Plaintitf also brings her claims under the New York State Human Rights Law, N Y Exec. Law § 296. However, because the standards thereunder are the same as for Title VII, this claim will not be discussed separately. See Ferrante v. American Lung Association, 90 N.Y.2d 623, 629 (1997); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-715 (2d Cir. 1996).
Internal quotation marks and citations omitted.
Internal quotation marks and citations omitted.
Defendant has moved for summary judgment dismissing the complaint on five grounds — viz., (1) the harassment plaintiff alleges is not severe enough to create a hostile work environment, (2) plaintiff does not allege a sufficiently hostile work environment in light of her own conduct in the workplace, (3) plaintiff never formally complained about unwelcome sexual conduct or innuendo in the workplace, (4) defendant took prompt and appropriate corrective action in response to plaintiff's complaint once it learned of the harassment and (5) plaintiff suffered no adverse employment action as a result of unlawful discrimination. Mem. of Law in Supp. of Mot. for Summ. J. at 2.
Defendant's first argument is that the harassment plaintiff alleges is not severe enough to create a hostile work environment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances includ[ing] 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. Although "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment" — Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
"[a] female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII. It is not how long the sexual innuendos, slurs, verbal assaults, or obnoxious course conducts lasts. The offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive. A complaining employee is required to prove that such conduct was unwelcome, that the conduct was prompted simply because of the employee's gender, and that the conduct was sufficiently pervasive to create an offensive environment antithetical to the priority of merit — not sex or some other prohibited criterion — in the workplace." Carrero, at 578.
Internal citations and quotation marks omitted.
Based upon plaintiff's allegations of the repeated harassment over the entire length of her employment and in particular the allegation that Darryl threatened to go to her house and attack her, the undersigned is satisfied that the facts plaintiff has alleged are sufficient to constitute a hostile work environment; accordingly, summary judgment on this ground will be denied.
Defendant's second argument is that summary judgment is appropriate because plaintiff does not allege a sufficiently hostile work environment in light of her own conduct in the workplace. "[I]f 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." Harris, at 21-22. Defendant alleges that plaintiff told her coworkers that her jaw hurt because she had been having oral sex with her boyfriend all weekend. T. Barzycki Dep. at 64-65. While the conduct of plaintiff is of course relevant in determining if she subjectively perceived the conduct to be abusive — Meritor, at 69 —, this Court must view the facts in the light most favorable to plaintiff — Adickes, at 157 — and plaintiff denies that she ever discussed her "personal sexual experiences or what [she] did with any boyfriends" with her co-workers. Eisenhower May 11, 2000 Aff. ¶ 3. "The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome" and the "question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact." Meritor, at 68. Even were this Court to accept defendant's version of the facts regarding plaintiff's conduct, there is still a genuine issue of material fact as to whether the actions of her coworkers of which plaintiff complains were unwelcome to her even in light of her conduct as alleged by defendant. Accordingly summary judgment on this ground will be denied.
Defendant's third argument in support of its summary judgment motion is that plaintiff never formally complained about unwelcome sexual conduct or innuendo in the workplace. A plaintiff "must show that a sufficient basis exists for imputing the conduct that created the hostile work environment to the employer." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). In cases where a hostile work environment is alleged based on the conduct of coworkers, a negligence standard is used to determine employer liability. Faragher, at 799 (citing Perry, at 149). "When harassment is perpetrated by the plaintiff's coworkers, an employer will be liable if the plaintiff demonstrates that `the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'" Perry, at 149 (quoting Karibian at 780). However, "lack of notice and the existence of complaint procedures d0 not automatically insulate an employer from liability." Karibian, at 779. Whether an employer has "provided a reasonable avenue for complaint is a question for the jury." Reed v. A.W Lawrence Co., Inc., 95 F.3d 1170, 1181 (2d Cir. 1996). Defendant grounds said argument on the clause in its non-harassment policy that "[a]ny employee who feels that (s)he is a victim of such harassment should immediately report the matter to the sales manager or the secretary/treasurer" and plaintiff's admission that she did not report the harassment to either of such officers. "[T]he mere existence of a grievance procedure and a policy against discrimination, coupled with [plaintiff's] failure to invoke that procedure [does not] insulate [defendant] from liability" — Meritor, at 72 — and, furthermore and based on the facts plaintiff has alleged, it can be inferred that, although defendant had a non-discrimination policy, it "only paid lip service to being committed to a nondiscriminatory work environment. Kotcher v. Rosa and Sullivan Appliance Center, Inc. 957 F.2d 59, 63 (2d. Cir. 1992). Plaintiff states that she never brought any complaints to Rosemarie Krzanowicz because she was never told to do so; rather she was told to bring any complaints to Richard Barzycki, Philip Coleman or Kenneth Lawton. Eisenhauer Dep. at 64-68. Defendant well may not be able to contend that plaintiff's failure to bring her complaint to one specific person within the company — the Secretary/Treasurer Rosemarie Krzanowicz — will insulate it from liability, especially in light of plaintiff's claims that she complained of the harassment to Kenneth Lawton, Philip Coleman, Richard Barzycki, Catherine Barzycki — and even the owner of GLP, Thomas Barzycki. Therefore summary judgment on this ground will be denied.
Defendant's fourth argument in support of its motion for summary judgment is that it took prompt and appropriate corrective action in response to plaintiff's complaint once it had learned of the harassment. If an employer takes prompt and appropriate steps" in response to an employee's complaints about harassment, there is no liability under Title VII. Perry, at 153-154. Viewing the facts in the light most favorable to plaintiff, this claim may well not be true. Plaintiff states that she complained of sexual harassment from the winter o 1996-1997 until her last day of work and that defendant did nothing in response to her complaints — other than to terminate her employment —; therefore summary judgment on this ground will be denied.
Plaintiff's second claim is that defendant terminated her employment in retaliation for her complaints about a hostile work environment. Defendant seeks summary judgment on plaintiff's retaliation claim on the basis that plaintiff suffered no adverse employment action as a result of unlawful discrimination. Title VII of the Civil Rights Act of 1964 also makes it "an unlawful employment practice for an employer to discriminate against any of his employees because [that employee] has opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e-3(a). "The objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia U. Col. of Phys. Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). In ruling on a motion for summary judgment in a Title VII discrimination case, this Court applies the traditional three-part burden shifting analysis established by the Supreme Court. Tomka v. Seiler Corporation, 66 F.3d 1295, 1308 (2d Cir. 1995). First, plaintiff must establish a prima facie case of discrimination, whereupon the burden of production shifts to defendant to articulate a legitimate nondiscriminatory reason for its actions and, finally, plaintiff must show that the reason articulated by defendant was not its true reason, but rather was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
"To establish a prima facie case of retaliation, `a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.'" Kotcher, at 64 (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). A plaintiff can establish the causal connection indirectly by "showing that the protected activity was followed closely by discriminatory treatment." DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied 484 U.S. 965 (1987). An employer can be held liable for unlawfully retaliating against an employee not only for her or his filing a lawsuit or a formal charge of discrimination with a government agency, but also for making an internal complaint to company management. Kotcher, at 65. The burden that plaintiff must meet to survive summary judgment at the prima facie stage is de minimis. Tomka, at 1308. Retaliation need not be the sole motivation for termination for an employer to be liable under Title VII. Reed, at 1177-1178.
Plaintiff alleges that she was terminated for complaining about sexual harassment during her employment and, finally, for complaining directly to the owner in August 1997 — the same month in which she was fired. Plaintiff has accordingly established a prima facie case of retaliatory discharge. Once the plaintiff has established a prima facie case, an inference of employment discrimination arises and "the burden then falls upon the employer to produce evidence that the employee was discharged for a legitimate, nondiscriminatory reason." Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.), cert denied, 474 U.S. 879 (1985). The burden of proof, however, always remains with the plaintiff to prove discrimination; the defendant need only state a legitimate nondiscriminatory reason for the termination and need not prove that such was its true reason. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-255 (1981).
"Placing this burden of production on the employer serves a dual purpose. First, it enables the employer, by proffering legitimate reasons for the alleged discriminatory discharge, to rebut the inference of discrimination that arises from the proof of the prima facie case. In addition, the burden of production frames the factual issue with sufficient clarity to afford the employee a full and fair opportunity to demonstrate pretext. To this end, the employer's explanation of its reasons must be clear and specific." Meiri, at 996-997.
Defendant has articulated a legitimate, nondiscriminatory reason for terminating plaintiff — i.e., she had excessive absences — and has proffered evidence in support thereof — viz., thirteen documents reflecting plaintiff's missed time during her employment. Coleman June 21, 2000 Aff. ¶ 5; Ex. A (4 Tardy Memos, 8 Time Out Requests and 1 Absentee Memo). "After the employer articulates legitimate, non-discriminatory reasons for the employee's discharge, the employee must be afforded an opportunity to prove the existence of factual issues demonstrating that the stated reasons were merely a pretext for discrimination." Meiri, at 997. To survive a summary judgment motion, plaintiff is "obliged to produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the employer were false, and that more likely than not discrimination was the real reason for the discharge." Van Zant at 714. Plaintiff argues that defendant's explanation that she was terminated for excessive absence is merely a pretext and that its real reason was retaliation for complaining about sexual harassment. In support of this, plaintiff states that GLP gives employees written warnings before terminating them — R. Barzycki Dep. at 54-56; T. Barzycki Dep. at 27 —, that she was never given any written warning and that the only time she was given an oral warning related to a mistake she had made on an order. Eisenhauer Aff. ¶ 2; Eisenhauer Dep. at 19; T. Barzycki Dep. at 27-30. Plaintiff has produced sufficient evidence to allow a rational jury to conclude that the real reason she was terminated was retaliation and that defendant's reason is merely a pretext for such; therefore summary judgment on the retaliation claim will be denied.
Internal quotation marks and citations omitted.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is denied.