In early 1987 Porras alleges that she began to experience
intense harassment by Siegal. Allegedly, Siegal would
constantly yell at Porras, refuse to return her telephone calls
and refuse to assist Porras as a Unit Chief. Siegal requested
that Porras side with Montefiore on the issue of the brutality
charges and when Porras refused, Siegal allegedly indicated she
would "get" her. Siegal allegedly lied to Porras' subordinates
to induce them to complain about Porras.
Porras alleges that Gordon was so harassed that he was forced
to resign or be terminated in March of 1987 and it was exactly
at this time that Porras' performance allegedly began to
deteriorate. Her ratings, dropped dramatically for 1986-1987
and Porras was aware of several co-workers' complaints of her
During the spring of 1987 Dr. Peter Tenore ("Tenore") and
Faisal Yusseff ("Yusseff") allegedly complained to Siegal and
others that Porras was uncooperative, belligerent, and
unfriendly. In May of 1987 Siegal apprised Porras of these
alleged performance problems. In August 1987 Siegal gave Porras
a negative performance appraisal noting Porras' alleged
inability to work with subordinates and colleagues. In response
to the evaluation by Siegal, Porras wrote a letter. Siegal sent
a memorandum to Porras' personnel file noting that Tenore and
the Warden viewed Porras as abrasive and unresponsive. Porras
does not allege that any of these criticisms were motivated by
considerations of sex.
Porras states that the pressure from January 1987 through
February 1988 continued and intensified such that Porras found
herself speaking both personally and professionally with Grace,
a psychiatrist who worked under her. Grace assessed Porras as
suffering from tremendous emotional distress resulting from the
harassment of Siegal and others creating a hostile and
dangerous work environment. Siegal left Montefiore in 1987.
In February 1988 Scimeca was hired as the Director and at the
first meeting between Scimeca and Porras, Scimeca allegedly
threw a computer printout at Porras and in a hostile and
belligerent manner demanded to know who she wanted to remove.
According to Porras, Scimeca singled Porras out for an
unrelenting barrage of yelling, screaming and hostility.
Scimeca allegedly constantly yelled at Porras, insulted her and
treated her in a demeaning and humiliating manner to which he
did not subject similarly situated men. Porras alleges that
these incidents occurred on an on-going and consistent basis
and as a direct result of Scimeca's increased harassments,
Porras allegedly began to keep a diary of some of the
incidents. Porras stated in her deposition, however, that the
diary first reflected a yelling session on May 18, 1988. Porras
alleges that no male was screamed at or harassed in the way
that Porras was harassed.
Grace states that as a direct result of Scimeca's harassment,
Porras' emotional state became much worse and that Grace would
meet with Porras daily to help her deal with the intensified
In or around early April 1988 Tenore, medical director for
C-76 and Yusseff, Administrator for the same building,
allegedly advised Scimeca that they had heard from a
Physician's assistant that Porras had referred to them as
"assholes" and "racists." Tenore further informed Scimeca that
these characterizations were similar to ones Porras had made
earlier and which were reported by another physician's
Scimeca advised Porras of Tenore's and Yusseff's complaints
concerning her. He allegedly encouraged her to speak with these
two and to resolve her differences. Scimeca allegedly then
determined that he would meet with Porras on a weekly basis to
monitor her performance. As a result of these meetings he was
allegedly struck "by her singular absence of customary
therapeutic and psychological skills." He also allegedly
concluded that she was uncooperative and opposed to the
policies he was trying to institute.
In or around April 1988 Scimeca concluded that a male Unit
Chief, Schmit, was performing unsatisfactorily and thus
warranted termination. Scimeca decided to
separate his employment but offered Schmit the option to resign
which he accepted.
In late April 1988 Scimeca granted Porras' request to attend
a conference in Montreal at the DOC's expense.
On or about May 17, 1988 a patient in C-76 attempted suicide
and was nearly successful. Porras was made aware of this
incident on the day it occurred. She did not report the event
to Scimeca or to any other administrators. On May 18, 1988
Porras met with Scimeca and others in a regularly scheduled
quality assurance meeting. Porras did not inform Scimeca of the
suicide attempt. On the morning of May 19, 1988 Porras met with
Scimeca in a regularly scheduled meeting. During this meeting
Porras advised Scimeca for the first time that a suicide
attempt, which she characterized as the worst they had, had
occurred two days earlier on May 17th. Scimeca advised Porras
that her failure to report this incident promptly was
Porras informed Scimeca that she did not report the incident
to him the prior day because she had to leave to go to another
meeting and that Porras had called twice on May 18 to inform
Scimeca but both times she left a message without conveying any
urgency or indicating that her call was other than routine. At
this meeting Scimeca told Porras that she should begin to look
for employment elsewhere and accused Porras of failing to
report the attempted suicide to Scimeca and thus violating a
rule whose existence is in dispute. Scimeca in a heated
exchange, allegedly began to gesture with his hands in a wild
fashion and, sitting approximately a foot or two from Porras,
he attempted to get up from his chair as if to approach her
but, according to Porras, did not actually leave his seat.
Scimeca's hands allegedly were waving directly in front of
Porras' face, and he hit a telephone on the top of his desk.
Porras was terrified and, allegedly afraid of what might
transpire, taped the conversation. Although Porras alleges that
Scimeca screamed for fifteen to twenty minutes, the tape
contains, at most, only a few minutes that could be
characterized as a raised voice exchange.
Following the meeting, Scimeca conferred with Braslow and
Torres, and they concurred with Scimeca's recommendation that
Porras be separated from employment.
On May 24, 1988, Scimeca and Torres met with Porras and told
Porras that she would have to resign or they would fire her and
give her a bad reference. They offered her some time which she
could use to look for a new job while still technically
employed at Montefiore. Porras refused, and on May 24, 1988 she
was fired with no disciplinary procedure and allegedly in
violation of the hospital's policies as to separation for
On May 25, 1988 Scimeca, Torres and Porras met again to
discuss Porras' termination. During the course of this meeting,
Porras was observed secretly tape-recording the conversation,
an act which Porras admits violated the policy prohibiting
employees from bringing articles such tape recorders onto the
premises without permission.
On June 15, 1988 Scimeca filed a termination notice and
evaluation in which he stated that Porras was the center of
personnel problems and recommended that she not be rehired.
Braslow conducted a hearing on the termination and sustained
the termination allegedly because of Porras' overall poor
To grant summary judgment the court must determine that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c). The court's responsibility is not to resolve disputed
issues of fact, Donahue v. Windsor Lock Bd. of Fire Comm'rs,
834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there
are any factual issues to be tried, while resolving ambiguities
and drawing inferences against the moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986) (citing Adickes v. S. H. Kress & Co.,
398 U.S. 144, 158-59, 90 S.Ct. 1598,
1608-09, 26 L.Ed.2d 142 (1970)). "In assessing the inferences
to be drawn from the circumstances of the [employment]
termination, the court must be alert to the fact that
`[e]mployers are rarely so cooperative as to include a notation
in the personnel file' that the firing is for a reason
expressly forbidden by law." Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 464-65 (2d Cir. 1989) (quoting Thornbrough v.
Columbus & Greenville R.R. Co., 760 F.2d 633, 638 (5th Cir.
1985)). Nonetheless, summary judgment should be granted where
no reasonable trier of fact could find in favor of the
non-moving party. H.L. Hayden Co. of New York, Inc. v. Siemens
Medical Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989), and to
enable the court to dispose of meritless claims before becoming
entrenched in a costly trial. Donahue, 834 F.2d at 58 (citing
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986),
cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
In an employment discrimination case, for the non-movant to
defeat a summary judgment motion it is necessary for the
non-movant "to show that sufficient evidence existed in the
record to support a reasonable finding of discrimination. Such
evidence may be established directly by demonstrating that a
discriminatory reason more likely than not motivated the
employer, or indirectly by showing that the employer's
proffered explanation is unworthy of credence." Gibson v.
American Broadcasting Co., 892 F.2d 1128, 1132 (2d Cir. 1989)
(citing Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248,
256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) and noting
that "party opposing [motion] must set forth arguments or facts
to indicate that a genuine issue — not merely one that is
colorable — of material fact is present.")
Elements Necessary to Establish a Prima Facie Case of Sex
Title VII of the Civil Rights Act of 1964 makes it "an
unlawful employment practice for an employer . . . to
discriminate against any individual with respect to this
compensation, terms conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." Meritor Savings Bank v. Vinson, 477 U.S. 57,
63, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (quoting
42 U.S.C. § 2000e-2(a)(1)). Porras alleges two Title VII violations —
disparate treatment because of her sex and sexual harassment.
To establish a prima facie case of sex discrimination under
Title VII, a female plaintiff must "show that she was treated
less favorably than comparable male employees in circumstances
from which a gender-based motive could be inferred."
Montana v. First Fed. S. & L. Ass'n of Rochester, 869 F.2d 100,
106 (2d Cir. 1989) (citing Schwabenbauer v. Board of Educ.,
667 F.2d 305, 309 (2d Cir. 1981); Zahorik v. Cornell Univ.,
729 F.2d 85, 93-94 (2d Cir. 1984)). Furthermore, to establish
discriminatory treatment on the basis of sex under Title VII
"proof of discriminatory motive is critical." Zahorik, 729 F.2d
at 91 (quoting International Brotherhood of Teamsters. v.
United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n.
15, 52 L.Ed.2d 396 (1977)).
Additionally, "a plaintiff may establish a violation of Title
VII by proving that discrimination based on sex has created a
hostile or abusive work environment." Meritor, 477 U.S. at 66,
106 S.Ct. at 2405. For the sexually harassing conduct to be
actionable it must be "sufficiently severe or pervasive" to
create a hostile work environment. Id. at 67, 106 S.Ct. at
To prove employment discrimination under Title VII a
"has the burden[, first,] of proving by the
preponderance of the evidence a prima facie case
of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the
burden shifts to the defendant `to articulate some
legitimate, nondiscriminatory reason for the
employee's rejection.' . . . Third, should the
defendant carry this burden, the plaintiff must
then have an opportunity to prove by a
preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination."
Ramseur, 865 F.2d at 464 (quoting Burdine, 450 U.S. at 252-53,
101 S.Ct. at 1093-94 (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668
(1973))). This well-known formula is equally applicable in a
lawsuit alleging sexual harassment. Christoforou v. Ryder Truck
Rental, Inc., 668 F. Supp. 294, 302 (S.D.N.Y. 1987).
Porras has not Established a Title VII Claim
Porras has not set forth a prima facie claim for either Title
1. Disparate Treatment
Although Porras is female and was terminated, and despite the
record, assuming Porras could establish satisfactory
performance, Porras has not established that she was
discriminated against on account of her sex. While Porras
disputes her performance assessments rendered by Scimeca,
Siegal, Tenore, Yusseff, Lau, Walker, Brown, Piccard, and the
DOC, Porras has not set forth any evidence that Montefiore has
retained in its employ or treated more favorably other
similarly situated or comparable male managers. On the
contrary, the record submitted by Porras provides substantial
evidence which could lead all reasonable triers of facts to
conclude that Porras' disparate treatment claim is unfounded.
Porras, through the affidavits of Schmit and Gordon, both
male, submits evidence indicating that Siegal harassed all of
them — Porras, Schmit, and Gordon — and indeed subjected them
to similar abusive conduct. All of them were given the same
opportunity to resign or be terminated. Construing all
inferences in favor of Porras, Porras at best makes out a claim
for retaliation on the basis of the brutality charges
Although Porras states in her deposition that she was treated
differently from similarly situated males such as Schmit, Henry
Deluca, and Dennis Schoen she sets forth no evidence indicating
how the treatment differed and the complaint does not identify
any comparable male employees treated differently where they
had comparable work records. Porras simply states that Scimeca
yelled and harassed her but admitted of not knowing whether
males suffered the same treatment. Porras also fails to
establish that any of those managerial level employees had work
records comparable to Porras' and yet remained employed by
Montefiore and escaped Scimeca's yelling. Finally, Porras was
replaced by a woman.
2. Hostile Environment
Porras also fails to establish a claim for sexual harassment,
that is harassment not sexual in form but in circumstances from
which a gender-based motive can be inferred. Although Porras
claims that Scimeca and presumably Siegal yelled at and
intimidated her because of her sex, there is no evidence to
support her claim that the harassment in this form was
gender-induced. Although various affidavits both support and
negate Scimeca's alleged practice of yelling or "shrieking" at
women, even assuming Scimeca's yelling at the female Unit
Chiefs constituted gender-induced harassment,*fn1 there is no
evidence presented that could support a claim that this
harassment rose to a level sufficient to be considered
pervasive or severe so as to create a hostile working
For the harassment to be actionable it must be sufficiently
"severe or pervasive to alter the conditions of employment".
Meritor Savings Bank v. Vinson, 477 U.S. at 67, 106 S.Ct. at
2405; Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir.
1987) (abusive incidents few in number or duration are not
actionable); Christoforou, 668 F. Supp. at 303 (trivial and
sporadic conversation will not be actionable). Buddle v.
Heublein, Inc., 613 F. Supp. 491, 492 (S.D.N.Y. 1985) (generally
overbearing and provocative behavior of supervisor not
equivalent to actionable sexual harassment). In her own
deposition, Porras admits
that her diary account, allegedly triggered by the harassment,
reflects only one entry of yelling by Scimeca between February
and May 1988 and review of the tape she made of the May 18
meeting could lead no reasonable trier of fact to conclude the
yelling, if it could be so termed, was gender rather than
business-induced. Further, Porras admits not having access to
and infrequent contact with Scimeca*fn2 and on the identified
occasions the alleged yelling and intimidating conduct occurred
Porras admits that it arose out of her work performance.
Moreover, even considering the behavior of Siegal and
Torres,*fn3 their alleged harassment was not limited to
Porras, but by Porras' own submissions reached other persons,
named males, allegedly aligned against Montefiore's interests
in hushing the brutality charges and in retaining the Rikers'
contract. Unfair, overbearing, or annoying treatment of an
employee, standing alone, cannot constitute a Title VII sex
discrimination claim. See Christoforou, 668 F. Supp. at 303.
Even assuming the inadmissable hearsay allegations contained
in the affidavits submitted on Porras' behalf, there is no
sufficient evidentiary basis on which a trier of fact could
conclude that the level of harassment was gender-induced and
such that it could be characterized as pervasive or severe. The
cases Porras cites to sustain her claim are readily
distinguishable from the facts presented in the case at bar.
See e.g., Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014-15
(8th Cir. 1988) (women subject to "a plethora of offensive
incidents . . . no less compelling than other cases" cited
describing egregious sexual slurs, insults, and obscenities
sufficiently pervasive or severe to constitute a Title VII
Although Porras raises several facts in dispute, few are
material to the Title VII claim and of those relevant to the
Title VII claim, when drawing all inferences in favor of Porras
as required, no reasonable trier of fact could conclude that
Porras has set forth the necessary facts to undergird either
type of Title VII violation. Accordingly, defendants are
granted summary judgment on the Title VII claim.
In general, federal courts should abstain from exercising
jurisdiction over pendent state law claims once they have
dismissed the federal claims, unless retaining jurisdiction to
determine pendent claims is warranted by "consideration of
judicial economy, convenience and fairness to litigants."
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86
S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1976); Walker v. Time Life
Films, Inc., 784 F.2d 44, 53 (2d Cir.), cert. denied,
476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986). As the Second
Circuit recently stated: "although the doctrine of pendent
jurisdiction is one of flexibility and discretion, it is
fundamental that `[n]eedless decisions of state law should be
avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed
reading of applicable law.'" Young v. New York City Transit
Auth., 903 F.2d 146 (2d Cir. 1990) (quoting Gibbs, 383 U.S. at
726, 86 S.Ct. at 1139 (footnote omitted)).
Porras' complaint states one federal cause of action and four
pendent state law claims. In view of the disposition of the
federal claim and in a weighing of the traditional
considerations of judicial economy, convenience, fairness and
comity, the exercise of jurisdiction over the pendent claims
involving the alleged assault, state discrimination claim, and
the alleged violations of the Montefiore manual is declined.
Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir. 1988)
("The basis for retaining jurisdiction is weak when, as is the
here, the federal claims are dismissed before trial."). See
also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7,
108 S.Ct. 614, 619 n. 7 (1988) (when "all federal — law claims
are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine — judicial
economy, convenience, fairness, and comity — will point toward
declining to exercise jurisdiction over the remaining state-law
Accordingly, the pendent claims are dismissed.
For the reasons set forth above, Montefiore's motion is
granted in part and this case is dismissed.
It is so ordered.