a partial cause for her seeking a demotion rather than risking
further humiliation. (Tr. 166).
Thus the graffiti and vulgar comment served the purpose for
which they were intended, to intimidate and demean Danna. They
created a hostile atmosphere which is inconsistent with Title
VII's goal of promoting sexual equality in the workplace.
See Meritor, 477 U.S. at 64-67, 106 S.Ct. at 2404-06, 91
L.Ed.2d at 57-60. As such, it affected a privilege of her
employment. Danna's failure to clearly adduce specific harm
does not extinguish Telco's liability. Bennett v. New York City
Dept. of Corrections, 705 F. Supp. at 986-87.
Finally, Telco argues that the graffiti and vulgar comment
should not be considered "unwelcome" sexual harassment since
Danna herself used foul language and engaged in graffiti
Danna testified that although she wrote graffiti, she only
wrote messages on the wall answering the graffiti directed at
her. She maintained that she never used profanity in her
graffiti and that she never wrote any derogatory statements.
(Tr. 394-97). Danna also testified that after being suspended
once for using foul language she ceased to direct such foul
language at her supervisors. (Tr. 329, 829-30). In the instant
case, Danna's use of foul language and writing graffiti "does
not waive her legal protection against sexual harassment."
Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987)
(quoting Katz v. Dole, 709 F.2d 251, 254, n. 3 (4th Cir.
1983)). Danna's complaints to her supervisors about the
graffiti clearly indicated that they were not welcome, and it
cannot be said that Danna participated in the graffiti writing
in the same manner in which it was directed at her. Thus, Danna
has sufficiently established that the harassment was unwelcome.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989), the Supreme Court decided that its
"perception of [plaintiff's] character is irrelevant. The Court
sits not to determine whether Ms. Hopkins is nice, but to
decide whether [her employers] reacted negatively to her
personality because she is a woman." 490 U.S. at 258, 109 S.Ct.
at 1795, 104 L.Ed.2d at 293. Similarly, this court is not here
to evaluate Danna's behavior, but Telco's. Whether Danna used
profanity in her workplace is irrelevant to the extent that it
was not cited by Telco as a legitimate reason for her dismissal
Telco asserts that Danna's demotion was a result of two
occurrences: its belief that Danna should no longer hold the
Service Technician position and her supervisor's futile
attempts to find her a position as a Frame Administrator.*fn2
As a result of wanting to demote Danna to the Frame but finding
no available position, Schultz testified that his only
alternative was to demote her to Administrative Clerk which was
the next available position in his unit.
Danna rebuts Telco's argument with evidence that a number of
Frame Administrator positions were open during the period in
question — some of which were available inside of the UTP
process and some outside of the UTP process. A number of these
positions were in Queens. See Defendant's Exhibits G, H, I, and
J. Telco placed 165 employees in Frame positions during the
period June 1986 to April 1988, 49 of them in Queens.
(Defendant's Exhibits G, I). Defendants asserted that Danna was
ineligible to participate in the UTP system since she was on
final warning and had received an unsatisfactory performance
evaluation, therefore they had limited options: either to find
her a Frame position through informal phone calls to other
units which may have openings — which was ultimately
unfruitful — or to demote her within the unit to the next
lower job under Service Technician which was Administrative
Defendants also testified that the Frame positions which were
placed outside of the UTP system were only for extenuating
medical disabilities, surplus positions,*fn3 Article 36
lateral transfers to a new geographic area. (Tr. 1138-41).
Defendants' arguments may have been credible except for two
glaring contradictions in their testimony and actions. First,
Danna received a promotion to the Frame through the UTP system
in April 1988 and was "qualified" to apply for such a position
through the UTP system in February 1988, less than two years
after institution of her final warning. Salamone acknowledged
this fact. (Tr. 1076-77). He then admitted that it was indeed
possible to receive a UTP transfer while on final warning.*fn4
(Tr. 1077). Second, defendants were able to find Danna a
transfer to the Frame operation in the Bronx outside of the UTP
system, yet were unsuccessful in Queens. Salamone admitted
that, notwithstanding the fact that the number of UTP requests
out-numbered the number of positions available for any one job
title, supervisors were not prohibited from filling jobs
outside of the UTP process which was indicated by the
availability of this Bronx position. (Tr. 1074-75). What
created such an extraordinary condition in the Bronx, but not
in Queens, is unexplained by defendant when there were jobs
available in Queens.
This court finds it difficult to accept these discrepancies
as mere coincidence. Instead it finds that defendant was able
to place Danna in the position she requested and for which she
was qualified, Frame Administrator, and that instead of doing
so, defendant delayed and thereby continued its harassment of
plaintiff. The court further finds that defendant's harassment
of plaintiff stems directly from the hostile environment which
defendant created and for which Danna prevails in her sex
discrimination claim. Not only did defendant create an
environment from which plaintiff thought she needed to flee but
defendant then made it impossible for her to leave without a
substantial loss of earnings. Defendant continued this charade
for nearly two years until April 1988 when Danna finally
received a permanent Frame Administrator position.
II. Disparate Treatment.
Danna's claim that she was discharged*fn5 and later demoted
because of her sex is properly analyzed as a disparate
treatment claim under Title VII. The Supreme Court set forth
the allocations of burdens and order of presentation of proof
in disparate treatment claims in a three-step process:
First the plaintiff has the burden 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 non-discriminatory reason for the
employer'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.
Texas Dept. of Community Affairs v. Burdine,