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November 17, 1990


The opinion of the court was delivered by: Motley, District Judge.

Findings of Fact and Conclusions of Law.

Plaintiff Frances Danna brought this suit against her employer, New York Telephone Company (Telco), alleging that she was discharged and demoted because of her sex and was subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff requests injunctive relief from harassment in the performance of her duties as well as other relief in the form of reinstatement to the position of Service Technician, backpay, attorney's fees and costs.

After a bench trial and full consideration of both side's post-trial submissions and arguments, the court concludes that plaintiff has met her burden of proof in establishing a hostile environment as an independent basis for Title VII liability. She has also demonstrated that her demotion was the result of disparate treatment. In regard to her suspension, the court finds that she has failed to establish that she was the victim of illegal sex discrimination. This court hereby awards Danna reinstatement to the position of Service Technician, backpay, injunctive relief, attorney's fees and costs.

Findings of Fact.

1. Danna was first employed by Telco as an Operator on June 23, 1969. She held this position for approximately seven years. (Tr. 26).

2. On March 2, 1976, Danna was promoted to the position of Store Room Attendant in connection with a Telco affirmative action program. (Tr. 27, 257, 258).

3. While holding the Store Room Attendant's position, Danna submitted an Upgrade and Transfer Plan Application (UTP) requesting a promotion. (Tr. 258). Under the UTP program, employees can request a promotion, a lateral transfer or downgrade to other positions. (Tr. 258-59). To qualify for a UTP request, an employee must have had a satisfactory or outstanding job appraisal at his or her current job and must have passed the required tests for the particular job for which he or she is applying. Telco claims that UTP requests are rejected from employees who have unsatisfactory job appraisals or are on final warning. (Tr. 1142-43).

4. In April of 1977, Danna was promoted to the position of Storekeeper. (Tr. 27). She held this position for approximately three years until February 1980. (Tr. 27, 260). Danna's last job evaluation as a Storekeeper was outstanding. (Tr. 260).

5. In February 1980, pursuant to another UTP request and after passing the required test, Danna was promoted to the position of Frame Administrator. (Tr. 27, 260). In addition to passing the Frame Administrator test, Danna also passed the tests for Switch Technician and Switching Equipment Technician during the same general time period. The two later positions are higher level craft positions than Frame Administrator or Service Technician. (Tr. 29).

6. A Frame Administrator is an employee who works on the equipment in Telco's central office. The primary duties of this position include connecting and disconnecting service to individual telephone lines. (Tr. 27-28, 1064-65). Danna held the Frame Administrator position for approximately 15 months between February 1980 and May 1981. (Tr. 27, 261).

7. In each of the positions Danna held between June 1969 and May 1981, she received outstanding or satisfactory job appraisals. (Tr. 30-31). She never received an unsatisfactory appraisal. (Tr. 31).

8. In May 1981, Danna was promoted to the position of Repair Service Technician in the Public Communications Department located in Corona, Queens. (Tr. 30, 261).

9. A Repair Service Technician is a mechanic who either repairs, installs, or tests telephone equipment. (Tr. 832). Such a technician could be assigned to either routine or dispatch work. Routine work entails checking approximately 80 to 125 public telephones per day on an assigned route. (Tr. 32-33). If a technician found a telephone broken, it was his or her job to repair it. (Tr. 34). Dispatch work requires the Repair Service to send a technician directly to phones that had been reported as out of order by a customer. (Tr. 34).

10. When Danna first became a Repair Service Technician, she was assigned to work with other employees for 3 to 4 weeks. (Tr. 31). Thereafter, she was sent to Service Technician School for approximately 3 to 5 weeks. (Tr. 31). At this Service Technician School, employees were instructed in both telephone repair and installation. Here, she received the same training as other male employees. (Tr. 261).

11. During the two-year period Danna worked as a Service Technician in the Public Communications Department, she was mostly assigned routine repair work. (Tr. 34-35). Danna asked her supervisors to assign her to more dispatch work, but her requests were rarely granted. (Tr. 35-37). She claims, however, that men were given the opportunity to do dispatch work. (Tr. 41).

12. Danna proffers two different explanations for not being assigned dispatch work. On direct examination she claimed that: "The reason they [her foremen] were keeping me on routine was because I was doing such a good job and their numbers looked great." (Tr. 37). On cross examination, she claimed that several supervisors gave her the "easier" routine work because she was a female. (Tr. 262-63). The latter explanation, however, contradicts her deposition testimony where she stated that the supervisors in question had not discriminated against her because of her sex while she was working in the Public Communications Department. (Tr. 263-64).

13. Danna also had requested during the two-year period she worked in the Public Communications Department that her supervisors ride with her on the job. The request was not honored. (Tr. 37).

14. While working in the Public Communications Department, Danna and her male co-workers, would often use profane and vulgar language. On one occasion, Danna was suspended for two and a half days for asking her supervisor, Bobby Poole, how his "blow job" was last night — literally suggesting that one of Mr. Poole's male subordinates had engaged in oral sex with him but figuratively implying that this employee was trying to curry favor with Poole. (Tr. 272-74). After the suspension, for the remainder of her employment with Telco, Danna continued to use vulgar language in the workplace. (Tr. 271, 308-09). However, she no longer directed such profanity at her supervisors. (Tr. 329).

       Danna's initial Assignment to JFK Airport — August

15. Pursuant to another UTP request, Danna was laterally transferred to the Special Services Department at the South Queens Special Services District at John F. Kennedy Airport (JFK) in August 1983. (Tr. 41, 264). The South Queens Special Services District was responsible for repairing and installing telephone dial tones, private lines, alarms, data and television circuits to business customers. (Tr. 42).

16. Danna worked as a Service Technician in this Department at JFK Airport for approximately 2 1/2 years until November 1986. During this entire period, she was the only female Service Technician at JFK Airport. (Tr. 34).

17. When Danna first arrived at JFK Airport, she was assigned to work with four experienced Service Technicians for approximately four weeks. (Tr. 42, 44, 265).

18. In October 1983, Danna was sent to Transmission School which she attended for four weeks. (Tr. 53). At the Transmission School, she was instructed on how to use certain meters to test telephone equipment. (Tr. 52). She received the same in-class training that the other Service Technicians received who were in her class. (Tr. 267).

19. From November 1983 to September 1984, Danna worked for foreman John Remsen. (Tr. 291-92). In the morning, she would regularly receive her first job assignment from Remsen. (Tr. 54, 291). Thereafter, she would call the Dispatch Clerks for subsequent work assignments. (Tr. 58).

20. Danna claimed that she asked her Supervisor, John Remsen, to assign her data work so that she could better utilize the training she received at Data Transmission School. (Tr. 56-57). She testified that despite her requests, Remsen continued to assign to her the less complicated dial tone work. (Tr. 56). Remsen, however, maintained that he assigned her the same mix of work as the male Service Technicians. (Tr. 1308). Danna admitted that she did not know the type of work that was routinely assigned to her male co-workers. (Tr. 65).

21. Although Remsen assigned Danna the first job of the day, Danna actually received the majority of her work assignments from the predominately female Dispatch Clerks. Through the Dispatch Clerks, Danna was ultimately assigned to do all the different types of jobs performed by technicians in Special Services. (Tr. 58-59, 292).

22. Charles Dylnicki, Danna's second line manager from August 1983 to May 1986, supervised her first line manager. From 1983 to 1984 Danna's first line manager was John Remsen. From 1984 to 1986 her first line manager was Salvatore DePetro. (Plaintiff's Exhibit 38.)

           Temporary Assignment to Barbara Esposito as
                      Administrative Clerk.

23. In October 1984, Barbara Hyatt Esposito was placed at JFK as an Assignment Office Supervisor. At the time of her transfer, Esposito had over twenty-five years of experience with Telco, including seventeen years as a management employee. (Tr. 426-27).

24. In November 1984, shortly after she arrived at JFK Airport, Esposito asked her second line manager Charles Dylnicki for an additional clerk to help organize the Assignment Office. (Tr. 429).

25. Dylnicki asked Danna if she wanted to work temporarily as an Administrative Clerk for a special project. (Tr. 102). Danna voluntarily accepted the clerk's position provided that she still receive her Service Technician's salary while working in the lower paying clerk position. (Tr. 357-58).

26. Dylnicki reported back to Esposito that Danna would work with her. Dylnicki at this time also told Esposito that "they [were] looking to get rid of her [Danna] . . . because she was a pain in the . . . ass." (Tr. 429, 505-06).

27. Esposito states that DePetro also said that Danna was a "pain in the ass" and that he too wanted to get rid of her. He further commented that Danna did not get along well with the other repairmen and if she would act more "feminine and cutesy" they would have done her work for her. (Tr. 432). DePetro, however, denied making these statements. (Tr. 1197, 1206).

28. Danna worked for Esposito as an Administrative Clerk from November 1984 through March 1985. (Tr. 105). It was extremely unusual for a Service Technician such as Danna to be temporarily loaned as an Administrative Clerk. Service Technicians were usually only loaned as Administrative Clerks to accommodate a physical disability. (Tr. 433).

29. Esposito gave Danna an excellent job evaluation for the work she did. (Plaintiff's Exhibit 12). Although the evaluation was for the work Danna performed as an Administrative Clerk and not as a Service Technician, Esposito found Danna in general to be "extremely helpful," that Danna "instituted new procedures," was "very cooperative," and "very well organized." (Tr. 430-31).

      Danna's return to Special Services; Complaints about
             management and co-workers: March 1985.

30. When Danna returned to her position as a Service Technician in March 1985, Esposito gave Danna's positive evaluation to first line manager Sal DePetro. According to Esposito, DePetro was surprised at the evaluation. He surmised that Danna must work better for a woman than she would for a man. (Tr. 449-50). Esposito maintained that she did not believe that her gender had any bearing on Danna's work performance. (Tr. 450).

32. After Danna returned to her Service Technician position in March 1985, DePetro gave Danna a satisfactory job appraisal which stated: "I find Fran to be satisfactory in all categories. Her productivity and quality of work is good. Fran has a good attitude and a good way with customers." DePetro showed this evaluation to Danna on April 15, 1985. (Tr. 1223).

33. Despite the fact that DePetro pointed to specific work qualities in his March 1985 evaluation of Danna, he testified at trial that the only reason he gave her this evaluation was that he did not know her well enough to give her anything less than a satisfactory evaluation since she had been working as an Administrative Clerk for most of the time between October 1984 to March 1985. (Tr. 1224).

34. After March 1985, Danna began to complain to her supervisors about certain conduct and practices of her co-workers. Specifically, Danna complained that the male Service Technicians were not completing their assigned work if the job turned out to be "undesirable." Some of these "flagged" or uncompleted jobs would then be reassigned to her. (Tr. 85, 91-92).

35. On one occasion, a male Service Technician wrote Danna's work number on a trouble ticket or work order. (Tr. 66-67). The trouble ticket was for a problem located at an automobile body shop. As such, the job would be very dirty. Writing Danna's number on the ticket would result in Danna being assigned this particularly undesirable job. (Tr. 74-75). It was improper for one Service Technician to put the number of another Service Technician on a trouble ticket. (Tr. 1221). Danna maintained that DePetro knew about this incident but that he did nothing. (Tr. 98-101).

36. Although Danna believed that other Service Technicians put her number on trouble tickets a number of times, she could produce only the above example. (Tr. 302).

37. DePetro, however, testified that he could determine a "flag" job if the same trouble appeared within two days of the date the job was completed. He testified that he never had problems with "flag jobs" during the period that Danna reported to him. (Tr. 1182). DePetro also testified that Danna never complained to him about another Service Technician putting her number on a trouble ticket. Other Service Technicians, however, had complained to him that they were victims of this practice. (Tr. 1221).

38. Danna also complained to her Shop Steward that Service Technicians were deliberately causing additional troubles to create work. This practice was called "folo" (fix one, leave one). Danna believed that DePetro was aware of her complaints. (Tr. 98-100).

39. Danna believed that, in general, she was assigned by DePetro to do undesirable work in undesirable locations. (Tr. 132-35). DePetro asserted that in initially assigning a particular job to a Service Technician, it could not be determined whether the job was particularly undesirable. (Tr. 1198).

40. Danna would also ask DePetro to assign her to work with more experienced Service Technicians on occasions when they needed assistance so that she could get more job training. (Tr. 136-38).

41. Danna testified that after her initial four week assignment with other experienced Service Technicians, she also was assigned to ride with Patty Capone, Ray Coffman and most often, Freddy Lorenz. (Tr. 138, 143, 152).

42. Although Lorenz had more years on the job than Danna, she did not believe that he was more experienced or that he could teach her anything. On one occasion, Danna believed that Lorenz was using drugs on the job. He had refused to leave the job site even after they had completed their work in order to socialize with friends in that location. (Tr. 140-41). DePetro admitted that Lorenz had a drug problem but claimed he became aware of it for the first time shortly before Lorenz was dismissed. (Tr. 1228).

43. Danna testified that on many occasions, she requested that DePetro provide her with on-the-job training by accompanying her to the job site. Although he did so only once, there were five other Service Technicians whom he never accompanied on a job. (Tr. 143-44, 1185-86).

44. Danna admitted that DePetro never refused to provide her with the assistance of another Service Technician when she needed help. (Tr. 318).

45. DePetro testified that in both May and September of 1985, he showed Danna work productivity reports and informed her that she was the only Service Technician performing below average. On both occasions he also told her that he wanted to send her back to basic repair and installation school. Danna became upset at this and refused to go. (Tr. 1187-88). Danna, however, denied that DePetro had informed her at any time in 1985 that her productivity level was poor. (Tr. 328).

46. In March 1986, DePetro gave Danna an unsatisfactory appraisal for the quantity of work completed between April 1985 and March 1986. There was some testimony that Danna apparently had the lowest productivity rate of all the Service Technicians in DePetro's group for the appraisal period. However, DePetro rated the quality of her work as satisfactory. (Defendant's Exhibit K). Schultz revealed that most of the installers at JFK Airport had more than 10 years' experience, some had 20 to 25 years' experience in installation. (Tr. 588).

Danna's Discharge/Suspension for being off the job.

47. Danna's normal work hours were from 8:00 A.M. to 5:00 P.M. (Tr. 277). The Service Technicians were permitted a fifteen minute coffee break in the morning after completion of their first job. (Tr. 278-79). However, the common practice of Danna and other Service Technicians was to stop for their coffee or breakfast at the beginning of the workday before going to their first job. (Tr. 44-45, 1380). Schultz, a third line manager, admitted that because of various practical considerations, "foremen had a tendency to overlook this first job directive" in regard to the morning break. (Tr. 839).

48. Both Danna and Albert Lenox, a retired Service Technician who worked for Telco for forty years, testified that it was also common practice for Service Technicians to take 30 minutes or longer on their morning break. To Lenox's knowledge, no Service Technician was ever suspended or terminated for taking an extended break. (Tr. 401, 1380-81).

49. Service Technicians were also permitted a fifteen minute break in the afternoon. On some occasions, Danna admitted to taking more than a fifteen-minute break and also extending her lunch break without her foreman's permission. (Tr. 289-91).

50. Telco issues to all of its employees a company policy booklet entitled "The Codes We Work By" ("Codes"). (Defendant's Exhibit C).

51. Page 22 of the 1985 edition of the Code prohibited the following activities:

  Conducting personal activities during work time
  that may interfere with the employee's job.
  Being away from work locations without supervisory
  Failing to proceed from one work location to
  another in a direct and expeditious manner.

Falsifying work time reports.

(Defendant's Exhibit C, at 22; Tr. 284). The code required dismissal for any employee engaging in any of the above or similar activities. (Tr. 286).

52. In May 1985, Danna and other Service Technicians received a copy of the 1985 Codes from DePetro. DePetro reviewed the Codes with Danna and her co-workers as a group. He informed them that if an employee was found off the job without supervisory permission, the employee would be subject to immediate dismissal on the first occurrence. (Tr. 284-86).

53. In 1986, Norman Schultz was the District Manager of Special Services in Queens. (Tr. 829-30).

54. On February 28, 1986, Schultz and Dylnicki were conducting a business meeting at a diner when they noticed Danna sitting in the diner. Schultz testified that they saw her at the diner from approximately 8:45 to 9:20 A.M. (Tr. 836-38). Danna admitted that she indeed ...

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