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Carrero v. New York City Housing Authority

decided: November 14, 1989.


Appeal and cross-appeal from the United States District Court for the Southern District of New York (Sweet, J.) finding that employee was subjected to a hostile sexual environment in violation of Title VII, 42 U.S.C. § 2000e et seq., and that plaintiff was not entitled to back pay or damages for pain and suffering.

Kearse, Cardamone and Winter, Circuit Judges.

Author: Cardamone

CARDAMONE, Circuit Judge

Plaintiff appeals from a judgment that found her subjected to a hostile working environment on account of her sex. She appeals because -- other than ordering reinstatement -- her claims for compensatory damages were denied, and the amount of attorney's fees granted was less than she requested. The United States District Court for the Southern District of New York (Sweet, J.) found that Maria J. Carrero (plaintiff or appellant) was subjected to a hostile working environment by her supervisor, defendant Miguel Peterson, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982). See 668 F. Supp. 196 (S.D.N.Y. 1987). Judge Sweet ruled that Carrero's employer, defendant New York City Housing Authority (Authority) was not liable for the hostile environment created by its employee Peterson because his conduct was outside the scope of his employment and the Authority was not itself either negligent or reckless in investigating plaintiff's complaints. See id. at 202-03. But the district court also concluded in effect that the Authority was liable for quid pro quo sex discrimination and ordered it to reinstate plaintiff to her probationary position.

Carrero appeals from that part of the decision denying her damages for pain and suffering, back pay, immediate reinstatement to her previous position as probationary Assistant Superintendent, and reducing her request for attorney's fees. The defendants cross-appeal, claiming that the elements of a Title VII cause of action were not proved and that the attorney's fee award should have been further reduced. We affirm in part, reverse in part, and remand.


Appellant at the time of trial was a 33-year-old single woman of Puerto Rican descent who had worked for the Housing Authority for more than four years. Defendant Robert Harold was Chief Superintendent for the Housing Authority's South Bronx District, and defendant Rosalind Reyes Linares was its Director of Equal Employment Opportunity. Carrero was assigned in 1982 to a project called Edenwald Houses as a Heating Plant Technician. There she was subjected to insulting and demeaning conduct by co-workers, one of whom dropped his pants in front of her. She complained to the Authority, which censured one of the employees and offered Carrero a transfer and leave. Notwithstanding this incident appellant persevered and, after passing an examination, was promoted to the position of probationary Assistant Superintendent. Carrero's entitlement to this position is the subject of this litigation.

Thereafter she was assigned to the Morrisania Air Rights Project (Morrisania) where defendant Al S. Parker was the Manager. Her period of probation began on June 12, 1985 and was to continue for one year. Defendant Peterson became acting Superintendent at Morrisania on August 12, two months after appellant's probationary period began. Peterson, also of Puerto Rican background, was in charge of all of the project's maintenance operations. Most importantly, for purposes of this suit, Peterson became Carrero's immediate superior. As Peterson's principal assistant, she relied on his training to learn those procedures and practices required of an Assistant Superintendent. Peterson was responsible for providing written evaluations of appellant's performance.

Peterson's conduct toward appellant was the critical factual issue before the district court. The record reveals that he had been known to call several women at Morrisania by their first names and to be flirtatious. Most of this conduct was harmless and accepted with good humor by co-workers. Carrero's initial relationship with Peterson was cooperative and friendly. But in September 1985, Peterson undertook to change the relationship. On September 4 he touched plaintiff's knee and arm, and on September 10 he entered Carrero's office, touched her on the knee, and kissed her neck. She resisted, and she sought advice the following day from a co-worker, who told her to tell Peterson to stop. On September 12 Peterson told her that she should not discuss their relationship with co-workers -- that "what goes on in this office, stays in this office."

Appellant then made it crystal clear to Peterson that she wanted him to stop touching her. She told him about the charges she made in the earlier Edenwald incident and showed him a notice concerning it. Later that same day, when Carrero entered the management office at Morrisania, Peterson in speaking to his secretary referred to Carrero as a "scarecrow." On September 17 when plaintiff and Peterson met to discuss roll call procedures and a report that she had prepared, he kissed her on the neck. After she strongly protested, he promised not to do it again. Despite this assurance, he returned later and asked Carrero if he could examine a pimple on her nose. Then, he asked her to take off her glasses so that he could see her eyes. She refused. Again, he attempted to kiss her, but she was able to avoid him. Peterson then told appellant that he planned to fail her on her probationary report.

The following day, September 18, he came into her office and again made advances by stroking her arm and attempting to kiss her. Carrero told him to stop. Finally, she struck him across the nose with a ruler, knocking his eyeglasses off. In response to Peterson's laughter, Carrero threatened to report him to the Authority. Peterson told her to "shut up" and conduct the morning roll call. At roll call that day and the following day, September 18 and 19, Peterson publicly criticized Carrero's performance, reducing her to tears on the second occasion. Carrero's counsel wrote to the Housing Authority on September 23, detailing Peterson's conduct and requesting that it be halted. On that day, appellant circulated a petition, signed by 12 co-workers, registering her humiliation at being publicly rebuked by Peterson during the September 18 roll call. Appellant also allegedly began to tape-record her encounters with Peterson.

On September 30 an internal Housing Authority investigation into Carrero's charges was initiated by defendant Linares, as the Equal Opportunity officer. The report was issued on November 15, 1985. The charges of sexual harassment (Charge I) and retaliation (Charge II) were described in some detail. The report concluded that Carrero's description of the recited events could not be substantiated, that statements describing the incidents were in conflict, and that Carrero had failed to supply the Office of Equal Opportunity with tapes, which she had indicated would establish her charges of harassment and retaliation. No further action was taken by the employer.

Prior to completion of Linares' report, Peterson filed his first Supervisory Probationary Report on Carrero. He gave her a satisfactory rating overall, his personal recommendation was favorable, and Carrero's probationary period was accordingly extended. The report indicated that her occasional absences from work would have to be curtailed. Peterson noted that with experience and training, Carrero "could be fully capable of carrying out the responsibilities of [Assistant] Superintendent."

On January 21, 1986 -- a little over two months after Linares' report responding to Carrero's charges was issued, and when no further employer action on the charges was contemplated -- Peterson sent Carrero a memorandum detailing her shortcomings. These included her purported failure to log in work tickets, her absenteeism, a failure of the hot water system, and even her accusations of harassment against him. On January 24 Peterson filed his second Supervisory Probationary Report, this time giving Carrero an unsatisfactory rating. He stated that she lacked the leadership skills, decisiveness and "ability to grasp" procedures necessary to the position of Assistant Superintendent. The report was approved by Morrisania's manager, defendant Parker, and Carrero was thereupon reassigned on February 6, 1986 to her previous status as Heating Plant Technician.


Perhaps in anticipation of her reassignment and demotion, plaintiff filed a complaint on February 4, 1986; plaintiff filed an amended complaint on June 13, 1986, seeking injunctive and compensatory relief under Title VII and 42 U.S.C. § 1983. In her original complaint she set forth a § 1983 cause of action for violation of her constitutional rights; in the amended complaint, she added a Title VII allegation. One of the remedies she sought was to be restored to her probationary position of Assistant Superintendent. The Authority offered her employment at another project, Sedgewick Houses, at her permanent classification of Heating Plant Technician. Carrero rejected this offer, and was granted an unpaid leave of absence on the condition that she not "engage in any employment . . . in any capacity from which an income, fee, or other remuneration is derived, during the period for which leave has been granted." 680 F. Supp. 87, 87 (S.D.N.Y. 1987).

After a year of discovery, the action was tried to the district court. In an opinion dated August 7, 1987, Judge Sweet found that Peterson's advances towards appellant were "sexual in character, unwelcome and harassing" and created a hostile working environment, in violation of Title VII. See 668 F. Supp. at 201-02. The district court nonetheless concluded that the Authority could not be held liable for Peterson's conduct because his actions toward Carrero were outside the scope of his employment and within the ambit of conduct expressly prohibited by Authority policy. Id. at 202. It also found that the Authority's internal investigation, as reflected in the November 15, 1985 report, was adequate and based on a good faith effort to uncover the facts surrounding Carrero's complaints, id. at 199; and, because the Authority was not negligent or reckless in investigating the charges made by Carrero, it was not liable for Peterson's creation of a hostile environment. Id. at 203. Although the court noted Peterson's unfavorable report of Carrero's performance of January 24, it ordered the Authority to reinstate her as a probationary Assistant Superintendent. Judge Sweet reasoned that as a result of the hostile environment and Carrero's good faith recourse to the legal system, she had failed to receive the impartial training and evaluation to which she was entitled. Carrero's request for damages for pain and suffering was denied as "no competent evidence" was adduced to support the claim. Id. at 203-04.

In a series of remedial orders, the district court further held that appellant: (1) was not entitled to back pay for time spent on leave of absence during pendency of this action, 680 F. Supp. at 88; (2) should be reinstated as a probationary Assistant Superintendent after the current list of eligible permanent candidates was exhausted, Carrero v. New York City Housing Auth., 86 Civ. 1061, unpublished Order (S.D.N.Y. December 10, 1987); and (3) was entitled to $9,143.41 in costs and $73,361.50 in attorney's fees. Carrero v. New York City Housing Auth., 685 F. Supp. 904, 906 (S.D.N.Y. 1988). This appeal and cross-appeal followed.


Plaintiff's original cause of action under 42 U.S.C. § 1983 sought compensatory and punitive damages against Peterson and the Authority for violations of plaintiff's due process and equal protection rights guaranteed under the Fourteenth and Fifth Amendments to the Constitution. Plaintiff also sought an injunction prohibiting the Authority from terminating her probationary appointment. In her amended complaint plaintiff added her Title VII cause of action against Peterson and the Authority. These claims, relying on the factual allegations ...

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