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June 11, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.


I. Introduction

Plaintiff claims that she was the victim of discrimination and harassment on the basis of gender which adversely impacted upon the conditions of her employment and ultimately led to her dismissal as a staff member of the New York State — Council 82/AFSCME Joint Committee on Quality of Working Life (the "QWL Committee"). Moreover, plaintiff asserts that she was the victim of unlawful retaliation as a result of her filing of complaints under Title VII. This suit has been brought pursuant to Title VII of the Civil Rights Act of 1964 with particular reference to 42 U.S.C. § 2000e-2(a), (c) and 2000e-3(a).*fn1 A central legal issue presented by the defendants' motion to dismiss, or in the alternative for summary judgment, is whether and to what extent this litigation is barred by the prior decision and factual findings of a New York State Court. The State Court previously granted the defendants summary judgment on numerous tort claims asserted by the plaintiff which arose out of the same factual scenario that is presently before this court. The state court decision, however, did not address plaintiff's Title VII sex discrimination and retaliation claims. Also important to the resolution of these motions is the degree to which plaintiff's claims are barred by the applicable Title VII limitations period.

II. Background

A. The Parties

The complaint names as defendants Joseph Puma, President of the New York State Inspection, Security and Law Enforcement Employees, District Council 82 of AFSCME, ("Council 82"); Council 82; Richard Bischert, the Executive Director of Council 82 (sometimes the "Union" defendants); Thomas Gibbs, an Assistant Director of the New York State Governor's Office of Employee Relations (the "GOER"); the GOER; and the New York State — Council 82/AFSCME Joint Committee on Quality of Working Life; (sometimes the "State" defendants).*fn2 The QWL Committee is an entity which was created as a result of collective bargaining negotiations between Council 82 and the GOER. It appears that the QWL Committee was operated as a joint organization of labor and management to administer funds provided under the collective bargaining agreement (the "CBA") — ostensibly to improve the working conditions of negotiating unit employees.

Plaintiff asserts that the QWL Committee was governed by a four-person executive committee comprised of two representatives of Council 82 and two representatives of the State of New York. This body had authority over the funding and approval of major projects as well as the hiring and firing of QWL Committee personnel. Complaint par. 25; Plaintiff's Mem. of Law at 5. As a result of the offices they held with Council 82, defendants Puma and Bischert were the union representatives on the executive committee.*fn3 The Commissioner of the Department of Correctional Services and the Director of the GOER were the State's representatives on the executive committee. Id. Defendant Gibbs was one of the State's negotiators in contract talks with Council 82 — negotiating with Puma and Bischert, among others. Moreover, Gibbs was allegedly the state officer responsible for the administration of the labor contract with Council 82. Complaint at 27; Plaintiff's Mem. at 6.

Plaintiff, Susan McLaughlin, was employed as an Employee Program Associate with the QWL Committee from January of 1983 to May of 1988 — when the staff of the QWL Committee was disbanded. Plaintiff claims to have been earning $42,944.00 at the time her position was terminated. Id. at 22. According to the Union defendants, McLaughlin has returned to an "encumbered" position with the N.Y.S. Office of Mental Retardation and Developmental Disabilities where she now earns a yearly salary of $36,253.00. Union Defs.' Mem. at 1.

B. The Complaint

On August 26, 1987, and again on June 20, 1988, plaintiff filed written complaints with the New York State Division of Human Rights alleging unlawful discrimination by the defendants. Both of the administrative complaints were dual-filed with the Equal Employment Opportunity Commission. The State Division of Human Rights made a determination adverse to plaintiff — yet plaintiff did not take an appeal from this decision to the Appellate Division of the New York State Supreme Court. Plaintiff claims to have received notice of the EEOC's negative conclusion with respect to her claims and of her right to bring suit within ninety (90) days, on May 3, 1989. The complaint in the present action was filed on July 28, 1989.

There are two causes of action stated in the complaint. The first cause of action alleges that all of the defendants engaged in or cooperated with sexually discriminatory and retaliatory conduct which adversely affected the terms and conditions of plaintiff's employment with the QWL Committee — all in violation of 42 U.S.C. § 2000e-2(a) and (c). Plaintiff asserts generally that defendants Puma and Bischert engaged in physical and verbal sexual harassment of the plaintiff while Puma, Bischert, and Gibbs together retaliated against the plaintiff for filing sex discrimination complaints. Complaint par. 21. The complaint further contends that the QWL Committee, Council 82, and the GOER are liable to the plaintiff because those entities knew or should have known of the discriminatory conduct and took no action to prevent it. Moreover, it is asserted that these entities may be held liable due to the "inherent complicity present due to the senior status" of Puma, Bischert and Gibbs within these organizations. Id. at 23. Paragraphs 30 through 45 of the complaint state numerous particular acts of discriminatory conduct on the part of the various defendants. On this motion for summary judgment the plaintiff has further supplemented the record with affidavits which both buttress these allegations and allege additional conduct on the part of the defendants which she believes to be discriminatory or retaliatory in nature.

The second cause of action asserts that the defendants retaliated against the plaintiff because she filed complaints concerning sexual harassment with the GOER and with the New York State Division of Human Rights — all in violation of 42 U.S.C. § 2000e-3(a). Plaintiff contends that after she filed these complaints the level of harassment, particularly from defendant Gibbs, increased dramatically. See Complaint pars. 53-57. Ultimately, plaintiff believes that Puma, Bischert, and Gibbs acted together to negotiate the QWL Committee out of existence so that they could get rid of the "human rights problem" presented by her claims that she had suffered discrimination on the basis of sex. It is important to note that plaintiff's claims of Title VII retaliation are premised upon the impact the alleged conduct had on the conditions of her employment as well as her termination from employment.

C. Summary Judgment Standard

It is appropriate to grant summary judgment when the record viewed in the light most favorable to the non-moving party presents a situation where there "is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). To survive such a motion, the party opposing summary judgment must provide the court with "`concrete evidence from which a reasonable [trier of fact] could return a verdict in his favor.'" Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2nd Cir. 1988) (quoting Anderson v. Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2509).

D. Factual Allegations

On defendants' motion for summary judgment the court must, of course, view the facts in the light most favorable to the plaintiff. It is not disputed that plaintiff began her job as an Employee Program Associate with the QWL Committee in January of 1983 — working there until May of 1988 when her position was terminated. Throughout this period McLaughlin was given strongly favorable job performance evaluations by the Staff Director and her immediate supervisor, Richard Morris.*fn4

The initial allegations of sexual harassment concern defendants Puma and Bischert. Plaintiff contends that on June 2, 1984, she attended a meeting with the members of Council 82's executive committee to discuss a scholarship program. At that meeting plaintiff asserts that she objected to a comment by defendant Bischert that a female candidate who wanted to be a veterinarian was "into screwing animals." In response to her objection Bischert allegedly stated "[t]hat's right, I heard you were into dogs." February 17, 1990, Affid. of McLaughlin par. 6. This statement is substantially corroborated by the affidavit of Frank Benedetto — who claims to have been in attendance at the meeting. Benedetto Affid. par. 4. Plaintiff also alleges that on January 26, 1987, after apologizing for her cold hands during a handshake, Bischert pulled her hand toward his midsection stating: "I'll give you someplace to stick them to keep them warm." Feb. 17, 1990, Affid. of McLaughlin par. 24.

Plaintiff contends that she encountered defendant Puma at a bar on July 24, 1984. McLaughlin maintains, that even though she was accompanied the entire time by a friend named David Redder, defendant Puma repeatedly embraced her in a sexually provocative and unwelcome manner — causing the plaintiff to move away in order to avoid the contact. Later that evening the plaintiff permitted Puma and his companion to drive herself and David Redder back to her home. Puma and his companion, though uninvited, entered the plaintiff's house. Once inside, plaintiff sat down on her couch to remove her shoes, whereupon Puma reached down, grabbed her feet, and lifted them into the air so as to expose her bottom. Puma then asked the plaintiff if he could stay overnight at her home. February 17, 1990, Affid. of McLaughlin par. 7; McLaughlin SDHR Complaint, Vol. I of SCR at 73-74. These allegations are substantially corroborated by the Affidavit of David Redder. Affid. of Redder par. 4. Plaintiff asserts that a similar series of unwelcome embraces and propositions by Puma occurred at a Council 82 program dinner the next night. This also is corroborated by David Redder.

Plaintiff has supplied an affidavit from Heide Coody, who was formerly employed as an assistant bookkeeper by Council 82, which states that the defendants Bischert and Puma generally referred to plaintiff as "the bitch up the street." Coody Affid. pars. 10-12., Vol. III of SCR at 205. Plaintiff contends that defendant Bischert always addressed her as "boy named Sue" rather than by her proper name. Feb. 17, 1990, Affid. of McLaughlin par. 42.

On September 13, 1985, McLaughlin claims to have received a phone call from Defendant Puma who allegedly made a threatening quid pro quo sexual proposition whereby her future career advancement was tied to sexual favors. Feb. 17, 1990, Affid. of McLaughlin pars. 10-11. To discourage these advances the plaintiff asserts that she told Puma that she was seeing Martin Redder — who was employed as a program associate by the QWL Committee. Four days later, Martin Redder was demoted by the executive committee of the QWL Committee. It is further alleged that on September 30, 1986, defendant Puma summoned plaintiff's immediate supervisor, Richard Morris, to his office in order to reprehend him for appointing the plaintiff as acting director when he was absent from the office. At this meeting Puma allegedly stated: "I don't know what the fuck is wrong with her, ...

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