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.
1. Danna was first employed by Telco as an Operator on June 23,
1969. She held this position for approximately seven years.
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).
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.
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
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.
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.
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.
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,
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.
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.
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.
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.
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.
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
51. Page 22 of the 1985 edition of the Code prohibited the
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 ...