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January 28, 1994

PATRICIA A. OTT, Plaintiff,

The opinion of the court was delivered by: CAROL E. HECKMAN

 This case was referred to the undersigned by Hon. Richard J. Arcara to hear & report on dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(B). Defendant has moved for summary judgment dismissing the complaint pursuant to Fed. R. Civ. P. 56. For the following reasons, it is recommended that defendant's motion be granted.


 The following facts are not in dispute. *fn1" Defendant Perk Development Corp. owns and operates several Perkins Family Restaurants ["Perkins"] throughout western and central New York State. Plaintiff was hired by defendant in May, 1988 as assistant manager of the Perkins store in West Seneca, New York. In approximately May, 1989, plaintiff was transferred (upon her request) to the Perkins store in Hamburg, New York where she worked as assistant manager until her resignation and termination on May 8, 1990.

 Defendant's management hierarchy at each of its stores generally consists of one general manager, one associate manager, and one or more assistant managers (Item 12, P 5). Plaintiff's immediate supervisor during the entire relevant time period was Joseph Bochiechio, the general manager of the Hamburg Perkins. Bochiechio's supervisor during that same period was Richard Albano, district supervisor for the six Perkins restaurants located in the region referred to by defendant as District I. From May, 1989 to November 5, 1989, the associate manager at the Hamburg Perkins was Kevin Fetes, and the assistant managers were plaintiff and Mark Wilson. On November 5, 1989, Mark Wilson became the associate manager, and on November 12, 1989, William Schultz became an assistant manager.

 In January and April, 1990, plaintiff received critical evaluations of her work performance. These evaluations were conducted by Bochiechio at a table in the back of the restaurant. Albano was also present at the April evaluation. According to Bochiechio, and not rebutted by plaintiff, all manager evaluations were done in this way so that the managers on duty would be available to supervise the ongoing shift. During the April, 1990 evaluation, and in a written evaluation dated April 14, 1990 (Item 15, Ex. I), plaintiff was advised that despite negative comments on her performance she showed the ability to be a good manager and was not on the verge of being terminated.

 As general manager of the Hamburg Perkins, Bochiechio was also responsible for scheduling the managers' work shifts. During the relevant time period, defendant's practice was to schedule the assistant managers to work more of the late night (11:00 p.m. to 7:00 a.m.) shifts than the associate and general managers. According to the weekly scheduling sheets (Item 12, Ex. A), between May 15, 1989 and May 6, 1990 plaintiff worked a total of 85 late night shifts, while the male assistant manager worked a total of 83 late night shifts, and the general and associate managers, also male, worked a total of 50 late night shifts. *fn2"

 The weekly scheduling sheets also show that during this period, plaintiff was required to "work down" (i.e., work a night shift, and then come back for an afternoon shift, leaving approximately 8 hours between shifts) a total of 15 times, while the male assistant manager was required to do so 25 times. Plaintiff complained to Bochiechio on one occasion when she had been scheduled for seven late night shifts in a row without a day off, and her schedule was changed (Item 13, P 6).

 In or about December, 1989, chief supervisor and cook Dan Walsh (who worked under plaintiff's supervision) placed a Penthouse magazine in plaintiff's notebook in the restaurant office. Plaintiff verbally reprimanded Walsh and reported the incident to Bochiechio. Both Bochiechio and Albano also verbally reprimanded Walsh, and directed him to apologize to plaintiff. No further disciplinary action was taken.

 In or about April, 1990, Bochiechio attached a negative customer evaluation card to the employees' bulletin board located in the back of the restaurant, which indicated that a particular customer had rated plaintiff as "unfriendly" (Item 15, Ex. J).

 By letter dated April 24, 1990, plaintiff notified defendant that she was resigning her employment, effective May 8, 1990, because of sexual harassment (Item 15, Ex. A). Prior to her last day of work, plaintiff was interviewed by Sandy Petrone and Paul Hammerl of defendant's personnel department. When asked by Petrone if there was anything she could do to try to remedy plaintiff's concerns, plaintiff indicated that she felt her management authority was completely undermined, and that she preferred to resign (Item 11, Ex. B, p. 56). Plaintiff's vacated managerial position was filled by a woman.

 On August 24, 1990, plaintiff filed a charge with the New York State Division of Human Rights ["NYSDHR"] against defendant, alleging employment discrimination because of her sex. Her charge was simultaneously filed with the Equal Employment Opportunity Commission ["EEOC"]. After unsuccessful conciliation efforts, she was issued a right to sue notice by EEOC on January 20, 1993. On March 12, 1993, NYSDHR issued a determination finding no probable cause to believe that defendant had engaged in discriminatory conduct (Item 11, Ex. A).

 The complaint in the instant action was filed on March 4, 1993, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the state Human Rights Law, N.Y. Exec. Law § 290 et seq., alleging constructive discharge based on sex discrimination. According to the complaint, the conduct of defendants' employees at the Hamburg store during the period between May 20, 1989 and April 24, 1990 constituted willful discrimination in the compensation, terms, conditions and privileges of her employment because of her sex, forcing her to resign. Plaintiff claims lost wages, pension, insurance and other benefits, as well as severe emotional damage, in the amount of one million dollars. Plaintiff also requests injunctive relief directing defendant to reinstate her, and to enjoin defendant "from discriminating on the basis of sex in firing its employees . . ." (Item 1, P 22).

 After discovery, defendant moved for summary judgment based on plaintiff's failure to prove sex discrimination.


 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). In order to avoid summary judgment, however, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. Ann Taylor, Inc., supra, 933 F.2d at 167.

 In general, in order to defeat a motion for summary judgment on an employment discrimination claim, the non-moving party must 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 explanation is unworthy of credence." Gibson v. American Broadcasting Co., 892 F.2d 1128, 1132 (2d Cir. 1989) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)). As stated by the Second Circuit in the Gibson case:

The possibility that a material issue of fact may exist does not suffice to defeat the motion; upon being confronted with a motion for summary judgment the party opposing it must set forth arguments or facts to indicate that a genuine issue--not merely one that is colorable--of material fact is present.

 892 F.2d at 1132 (citing cases).

 II. Sexual Harassment Under Title VII.

 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 [her] compensation, terms, conditions, or privileges of employment because of such individual's . . . sex . . .." 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 63, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Broadly construed, plaintiff has asserted a Title VII violation based on sexual harassment, resulting in her constructive discharge. To prove a sexual harassment claim, the following basic allocation of burdens and order of presentation of proof applies:

First, the plaintiff has the burden of proving by a 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.

 Texas Dep't of Community Affairs v. Burdine, supra, 450 U.S. at 252-53 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)); see Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d Cir. 1989); Porras v. Montefiore Medical Center, 742 F. Supp. 120, 125-26 (S.D.N.Y. 1990). The ultimate burden of proving that the employer discriminated against the plaintiff because of her sex remains on the plaintiff at all times. St. Mary's Honor Center v. Hicks, U.S. , , 125 L. Ed. 2d 407, 419, 113 S. Ct. 2742 (1993); Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 997, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988); Silver v. City University of New York, 767 F. Supp. 494, 498 (S.D.N.Y.), aff'd, 947 F.2d 1021 (2d Cir. 1991).

 A. Sexual Harassment.

 Two distinct forms of sexual harassment have been recognized by the courts as violating Title VII. The first is quid pro quo sexual harassment, which occurs when an employer alters an employee's job conditions or withholds economic benefits because the employee refuses to submit to sexual demands. Meritor Savings Bank, supra, 477 U.S. at 64-65. The second is "hostile environment" sexual harassment, which occurs when workplace conduct, such as "'unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Id. at 65 (quoting 29 C.F.R. § 1604.11(a)).

 Plaintiff has not pleaded any facts supporting a quid pro quo harassment claim in this case. The essence of her complaint is that she was forced to resign because of the hostile work environment created by defendant's ...

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