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DORTZ v. CITY OF NEW YORK

May 16, 1995

CYNTHIA DORTZ, Plaintiff, against THE CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORP., MT. SINAI HOSPITAL, and ELMHURST HOSPITAL, Defendants.


The opinion of the court was delivered by: KATZ

REPORT AND RECOMMENDATION

 THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.

 TO: THE HON. PETER K. LEISURE, UNITED STATES DISTRICT JUDGE

 This employment discrimination action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and § 296 of the New York State Human Rights Law ("HRL"), was referred to me by your Order of Reference for general pre-trial supervision and disposition of substantive motions, in accordance with 28 U.S.C. § 636(b)(1)(A) and (B). Plaintiff alleges that Defendants discriminated against her on the basis of her gender by engaging in sexual harassment, and retaliated against her for participating in activity protected under Title VII and HRL § 296. Pre-trial discovery has been completed and Defendants have moved for summary judgment, pursuant to Rule 56, Fed. R. Civ. P. For the reasons set forth below, I recommend that the Defendants' motion be denied in all respects, except as to Plaintiff's retaliation claim involving the Elmhurst Hospital Human Resources Department.

 BACKGROUND

 Cynthia Dortz, a certified social worker, was employed by the New York City Health and Hospitals Corporation ("HHC") as Assistant Director of Social Work Services in the Alcohol Treatment Program ("ATP") at Elmhurst Hospital Center. (Defendants' Notice of Motion, dated January 14, 1994, Ex. A ["Defs. Ex. A"]; Dortz Affidavit ["Dortz Aff."], dated February 7, 1994, P 4.) Dortz had worked in the ATP since 1972 as a supervisor of social work, prior to being promoted to the position of Assistant Director in 1983. (Dortz Aff. PP 1-2.)

 Elmhurst is operated by HHC, a public benefit corporation established pursuant to state law. See N.Y. Unconsol. Law §§ 7381, et seq.. Under an affiliation agreement, Mt. Sinai School of Medicine of the City University of New York ("Sinai"), an educational corporation chartered by the New York State Board of Regents, generally provides for the delivery of medical services at Elmhurst. (Defs. Exs. D and E.)

 As of July of 1990, the ATP operated under the auspices of Elmhurst's Department of Psychiatry. (Deposition Transcript of Dr. Ann Marie Sullivan, dated July 29, 1993 ["Sullivan Depo."], at 22.) Dr. Sullivan, a Sinai employee, was the Director of the Department. (Sullivan Depo. at 7.) Plaintiff's direct supervisor was Dr. Lawrence Cuzzi, also a Sinai employee, who was Director of Social Work Services for Elmhurst. (Deposition Transcript of Lawrence Cuzzi, dated September 9, 1993 ["Cuzzi Depo. II"], at 165.)

 On October 29, 1990, Dr. Robert Levengood, a psychiatrist and Sinai employee, commenced employment at Elmhurst as Medical Director of the Division of Chemical Dependence Services, which is part of the Department of Psychiatry. (Defendants' 3(g) Statement, dated January 14, 1994 ["Defs. 3(g)"], P 8; Sullivan Depo. at 74.) Levengood was responsible for the clinical, medical, and psychiatric components of the Division of Chemical Dependence Services, including the ATP. (Defs. Ex. G.) Levengood reported directly to Sullivan. (Defs. Ex. G.) By virtue of his position, Levengood was required to collaborate with Dortz and communicate with her to ensure the efficient functioning of the ATP. (Deposition Transcript of Pedro Velez, Executive Director of Elmhurst, dated September 23, 1993 ["Velez Depo."], at 55.) According to Dortz, Levengood had supervisory control over her work. (Plaintiff's 3(g) Statement, dated February 11, 1994 ["Pl. 3(g)"], § B P 1; Dortz Aff. P 4.)

 I. Sexual Harassment

 The incidents giving rise to Dortz' sexual harassment claim began shortly after Levengood commenced his employment. They were subsequently documented in memoranda by Plaintiff and five members of her staff in December of 1990 and January of 1991, all of which are annexed as exhibits to this motion. See Defs. Exs. J-P.

 According to Marge Heller, an ATP counselor whom Dortz supervised, later that month Levengood commented to her, "Cynthia probably wears black leather on weekends, with a black leather mask!" (Defs. Ex. M.) During the last week of November or early December, in the presence of Joseph Grabarnick, an ATP staff member, Al Brockway, an ATP counselor who was supervised by Dortz, and Marge Heller, Levengood grabbed his stomach as if in pain, and stated, "ugh, ugh, this is Cynthia sticking pins in her voodoo doll." Then he turned to Susan Kleinrock (another ATP staff member) and said "you know what I mean." (Defs. Exs. J, K, M, and P.) On another occasion, Levengood said to Joseph Grabarnick, "It's like your hands are tied, bend over and let me fuck you up the ass." (Defs. Ex. K.)

 On December 6, 1990, Levengood shouted at Dortz, at a meeting with other ATP staff members, "I'm not psychotic! You are passive-aggressive!" (Defs. Ex. P; Dortz Aff. P 11.) Approximately one week later, Penny Laitin, the ATP staff supervisor of the vocational program, told Dortz that Levengood was "badmouthing" her with members of her staff. (Defs. Ex. P; Dortz Aff. P 13.) Laitin said that Levengood was telling the staff of his fantasy of Dortz in black leather. (Defs. Ex. P; Dortz Aff. P 13.) She informed Dortz that Levengood stated that he "would like to pull Cynthia's hair out of her head. I could shit on her neck!" (Dortz Ex. P; Dortz Aff. P 13.)

 According to Al Brockway, Levengood called Dortz a "frustrated bitch" on numerous occasions. (Defs. Ex. N.) For example, on December 1, 1990, Levengood called Dortz "the frustrated bitch social work supervisor and that she had better shape up or else. . . . " (Id.) The following week, Levengood engaged in conversation that Brockway described as "sexually explicit" and included derogatory remarks that "took on the atmosphere of a stag party," some of which were directed against Dortz, including "Cynthia Dortz is queer, asexual, needs a good fucking, but [I] wouldn't touch her with someone else's dick . . . she's probably a lesbian!" (Id.) *fn1"

 On December 14, 1990, after Plaintiff reported these incidents to Dr. Cuzzi, he held a meeting attended by 10 or 11 members of the ATP social work staff. (Defs. Ex. H; Dortz Aff. PP 16-17.) The staff members corroborated Dortz' complaints and expressed concerns about Levengood's conduct, particularly that comments about Dortz made them feel personally and professionally uncomfortable. (Defs. Ex. H; Dortz Aff. P 17.) Cuzzi requested that those with personal knowledge communicate their concerns in writing, which was done by five members of the ATP staff. (Defs. Exs. J-O.)

 Cuzzi also spoke with Dr. Sullivan, and told her of the December 14 meeting with the ATP staff. Sullivan spoke with Levengood, at which time he denied having made certain statements and claimed that he was misunderstood. (Sullivan Depo. at 96-98; Defs. Ex. I.) Sullivan told Levengood that vulgar or coarse language was not acceptable and that such language should not be used. (Sullivan Depo. at 98.) Without speaking with anyone other than Levengood, Sullivan determined that Levengood had been misunderstood. (Sullivan Depo. at 93.) Sullivan stated at her deposition, "I generally, I just, my impression was that I believed him." (Sullivan Depo. at 87.) She told Levengood to avoid speaking with Dortz unless a witness was present, so that he would be protected from any misunderstandings in the future. (Sullivan Depo. at 93.) Dortz requested a meeting with Sullivan to discuss the allegations, but Sullivan refused to meet with her, purportedly stating that everything was under control. (Cuzzi Depo. II at 234-235; Dortz Aff. P 18.)

 Cuzzi also spoke with Levengood about the allegations in general terms, but he never confronted Levengood about the specific statements Levengood allegedly made, because Levengood was considered to be higher in the hospital hierarchy. (Cuzzi Depo. II at 211-12.) Cuzzi testified at his deposition, "I didn't have any authority or any power to do anything. . . . I didn't ask him [about specific allegations] because I didn't feel it was my place to ask him." (Cuzzi Depo. II at 212.)

 Dortz brought continuing complaints to Cuzzi many times. (Dortz Aff. P 28; Cuzzi Depo. II at 203.) She wanted certain action taken: an apology from Levengood; documentation in Levengood's file; a reprimand; and termination. (Dortz Aff. P 21.) The parties dispute whether Cuzzi attempted to address Dortz' concerns at those meetings or trivialize them. (Cuzzi Depo. II at 203; Dortz Aff. P 28.) On one such occasion, on or about December 18, 1990, Plaintiff met with Cuzzi because she was frustrated that no one had responded to her complaints. (Dortz Aff. P 19.) Cuzzi told her that if she pursued her complaints outside of the hospital, her entire sexual life would be disclosed and she would be required to confront Levengood, which would prevent them from being able to work together in the future. (Dortz Aff. P 19.)

 II. Acts of Retaliation

 Dortz alleges that, after she first complained to Cuzzi about Levengood, she experienced numerous acts of retaliation. (Dortz Aff. P 24.) Prior to making her complaint, Dortz had never received a negative performance evaluation. (Dortz Aff. PP 8, 24; Exhibit B, annexed to Dortz Affidavit ["Dortz Aff. Ex. B"].) After the complaint, however, Cuzzi told her that Sullivan was complaining that she was an "obstructionist"; that she was "rigid"; and that she was not "cooperative." (Dortz Aff. P 24.)

 In addition, Dortz alleges that Levengood isolated her and undermined her authority with the ATP staff. (Defs. Ex. Y; Dortz. Aff. PP 25-27.) In particular, he sent directives to Dortz, but he would not communicate with her about them; Levengood assigned Dortz' supervisees additional responsibilities and gave them directions without informing her; and, he excluded Dortz or failed to inform her of senior level meetings having a direct effect on her role and responsibilities, and those of her staff. (Defs. Ex. Y.)

 Cuzzi never told Sullivan of Dortz' concerns about being isolated by Levengood. (Cuzzi Depo. II at 204.) Sullivan, in turn, had not told Cuzzi or Dortz of her instructions that Levengood avoid contact with Plaintiff unless other staff were present. (Cuzzi Depo. II at 204-05; Dortz Aff. at P 29.) On May 2, 1991, Cuzzi told Dortz that Levengood's behavior "was a direct response to [her] filing the complaint." (Defs. Ex. Y.)

 Dortz claims that she suffered physical and psychological trauma as a result of the harassment and acts of retaliation, including gastro-intestinal disorders and depression. (Dortz Aff. PP 34-35.) On May 5, 1991, she took a medical leave on the advice of her psychiatrist. (Dortz Aff. P 37 and Exs. C and D.) On December 7, 1992, after a contested hearing, the Worker's Compensation Board found that Plaintiff suffered from a partial disability due to the alleged harassment. (Dortz Aff. Ex. I; Dortz Aff. PP 39-41.) The Worker's Compensation Board subsequently determined that Plaintiff's disability was permanent. (Dortz Aff. Ex. J.) After Plaintiff's medical leave was exhausted, on February 20, 1992, she permanently relinquished her position as Assistant Director of Social Work in the ATP. (Dortz Aff. Ex. D; Pl. 3(g) § B, P 6; Defs. Ex. A.)

 In connection with her medical leave, Dortz requested certain forms from the Elmhurst Personnel Department. According to Dortz, the department failed to provide her with the proper paperwork until December of 1991. (Deposition of Cynthia Dortz, undated ["Dortz Depo."], at 82; Complaint, dated December 18, 1992, P 25.) Although she had not previously taken an extended medical leave, Dortz had never had any difficulty obtaining medical forms in the past. (Dortz Depo. at 82-83.) She believes that the personnel department knew of her sexual harassment complaint at the time they failed to provide her with the forms. (Dortz Depo. at 82.)

 III. The Administrative Charge and Subsequent Investigation

 On January 31, 1991 Dortz filed a pro se complaint with the EEOC against HHC and Elmhurst, alleging gender discrimination. (Defs. Ex. Q; Dortz Aff. P 43.) The charge was referred to the State Division of Human Rights. (Defs. Ex. Q.) At the end of February, Alvarez was notified of the charge and related to Dortz that there would be an investigation. (Defs. Ex. V.) Gloria Sierra, Associate Director of the Community Health Center at Elmhurst, conducted an investigation between March 8 and April 2, 1991. (Defs. Ex. W.) Without interviewing Dortz, *fn3" Sierra determined that there was inappropriate use of language on the part of Levengood, but concluded that his use of such language did not rise to the level of sexual harassment. (Defs. Ex. W.) Sierra wrote in a memo about the investigation that she was "unable to concretely substantiate the allegations" although "some of the allegations regarding inappropriate use of language were founded." (Defs. Ex. X.)

 On June 3, 1991, Plaintiff amended her administrative complaint, pro se, to include a charge of retaliation on the part of Levengood. (Defs. Ex. Y.) The New York State Division of Human Rights ("State Division") subsequently held a fact-finding conference, in which Elmhurst and HHC participated as parties and Sinai representatives attended, although Sinai was not named as a respondent. (Defs. Ex. BB.) There were also conciliation proceedings, and Defendants conveyed settlement offers through Cuzzi. (Dortz Aff. P 50). On March 5, 1992, the State Division found probable cause to believe that the Respondents had engaged in unlawful discriminatory practices (Defs. Ex. Z.)

 On March 20, 1992, Plaintiff, acting through counsel whom she had retained, moved to amend her complaint to add Sinai as a respondent. (Defs. Ex. AA.) On April 23, 1992, over Sinai's objection (Defs. Ex. BB), the State Division amended the administrative complaint to add Sinai. (Defs. Ex. CC.) Sinai did not appeal the ruling.

 Plaintiff commenced the instant action on December 18, 1992, alleging that Defendants engaged in sexual harassment in violation of Title VII and HRL § 296, and retaliated against her for her participation in protected activity.

 DISCUSSION

 I. Subject Matter Jurisdiction

 Apart from challenging the merits of the claims asserted in this action (see Discussion at pages 31-69, infra), Defendants contend that the Court lacks jurisdiction over Plaintiff's claim against the Elmhurst Human Resources Department ("Personnel Department") for retaliation, and over her state claims against Elmhurst and HHC. These challenges are addressed in this section. In addition, Defendants argue that Sinai is not a proper defendant in this action -- an issue which is addressed in the following section.

 A. Retaliation Claim Against the Elmhurst Personnel Department

 Defendants contend that Plaintiff's allegations of retaliatory conduct on the part of the Human Resources Department of Elmhurst Hospital should be dismissed for lack of subject matter jurisdiction on the grounds that these claims, which were not identified in the administrative charge, are not reasonably related to the claims in Plaintiff's administrative charge. (Defs. Memo at 45-47.) Defendants rely upon the well-established rule that a district court has jurisdiction only over those claims included in an EEOC charge, see 42 U.S.C. § 2000e-5(e); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822, 36 L. Ed. 2d 668 (1972), or those that are "based on conduct subsequent to the EEOC charge which [are] 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York, 990 F.2d 1397, 1401 (2d Cir. 1993); see also Stewart v. United States Immigration & Naturalization Servs., 762 F.2d 193, 198 (2d Cir. 1985); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984).

 The Second Circuit has recognized several circumstances in which claims not alleged in an EEOC complaint are deemed to be reasonably related to conduct identified in a plaintiff's administrative charge. One such instance is where a plaintiff alleges retaliation by the employer for filing an EEOC charge. Butts, 990 F.2d at 1402. See also Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993) ("we have held repeatedly that a complaint alleging employer retaliation against an employee who has opposed discrimination may be considered 'reasonably related' to allegations already raised with the EEOC. . . . [This rule] has been broadly construed to allow judicial redress for most retaliatory acts arising subsequent to an EEOC filing. . . ." (citations omitted)); Owens v. New York City Housing Auth., 934 F.2d 405, 410-11 (2d Cir.) (plaintiff's claim that defendant retaliated against her, by refusing to plea bargain disciplinary charges that were asserted against her, were reasonably related to initial age discrimination charge, since the retaliation claim grew out of actions plaintiff took in response to the earlier incident of discrimination), cert. denied, 502 U.S. 964, 112 S. Ct. 431, 116 L. Ed. 2d 451 (1991). The rationale for allowing such an exception is to avoid requiring a plaintiff to file repeated administrative charges, which "could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination." Butts, 990 F.2d at 1402.

 In the present action, Plaintiff has asserted a retaliation claim against the Elmhurst Personnel Department for conduct occurring after she filed her EEOC complaint in January of 1991, and conduct that continued beyond her EEOC amendment on June 3, 1991. In particular, Plaintiff has claimed that the Personnel Department retaliated against her by withholding forms and information that she needed to process her medical leave. See Complaint P 25, Dortz Depo. at 82-83. Plaintiff testified at her deposition that she had not encountered such intransigence from the Personnel Department prior to the time she filed her administrative charge. (Dortz Depo. at 83.)

 It is reasonable to view this claim as stemming from the initial conduct Plaintiff alleged in her EEOC complaint, since she required medical leave as a direct result of the illness she suffered, allegedly due to Defendants' discrimination and harassment. Indeed, Plaintiff referred to her need to take a medical leave when she amended her EEOC complaint to include a charge of retaliation, stating, "once I reported sexual harassment, verbally and in writing, Dr. Levengood, by behaving in more subtle ways, made it so impossible for me to function on my job that I became sick and have had to take a medical leave (since 5/6/91), as recommended by my physician." (Defs. Ex. Y.) Since Plaintiff's retaliation claim against the Elmhurst Personnel Department flows from the initial conduct giving rise to the administrative charge, it is reasonable to view this claim as based on subsequent conduct which is "reasonably related" to that which was previously alleged in Plaintiff's EEOC charges, so as to allow for judicial redress. *fn4"

 B. Plaintiff's State Claims against HHC and Elmhurst

 Defendants contend that they are entitled to dismissal of Plaintiff's state discrimination claims against HHC and Elmhurst arising under New York Executive Law § 296, on the grounds that Plaintiff failed to file a Notice of Claim as required by state law. (Defs. Memo at ...


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