after Burrell's allegedly retaliatory termination on August 31, 1992, however, well within the 300-day limitations period. Thus, unless Burrell's termination was part of a continuing violation of Title VII, this Court has jurisdiction only over Burrell's claim of retaliatory termination.
To establish a continuing violation, a plaintiff must present proof of specific on-going discriminatory policies or practices, or establish that specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). The mere continuation of a single discriminatory act's effects does not amount to a continuing violation, see United Air Lines v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), nor will discrete, unrelated incidents of discrimination be viewed as part of a continuum. see Cornwell, 23 F.3d at 704; The continuing violation exception applies only in cases involving specific, ongoing policies or practices, such as discriminatory seniority lists, see e.g. Cook v. Pan Am. World Airways, Inc., 771 F.2d 635 (2d Cir. 1985), cert. denied, 474 U.S. 1109, 88 L. Ed. 2d 929, 106 S. Ct. 895 (1986), or discriminatory employment tests, see e.g. Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, (2d Cir. 1981). Multiple incidents of discrimination, even similar ones, that are not related to a specific policy or program, do not amount to a continuing violation. Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) cert. denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994).
Considering all of the evidence in the light most favorable to Burrell, a reasonable factfinder could conclude that, from the beginning of her employment with Defendants in January of 1992 until her initial complaint to CUNY's Affirmative Action Office on May 18, 1992, Burrell was subjected to numerous incidents of sexual harassment by Roman. Burrell's claim based on those incidents depends on the theory that, where there is a series of related incidents, one or more of which occurred within the limitations period, the continuing violation doctrine applies to toll the statute of limitations as to all of them.
The Second Circuit has spoken on this issue, however, and has implicitly rejected Burrell's theory. The incidents alleged by Burrell, although reprehensible if true, do not amount to a specific "policy or practice" as required under Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). See also Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (holding that "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation"); Butts v. City of New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1404 (2d Cir. 1993) ("continuous violation exception applies only where discrimination is accomplished through a specific official policy or mechanism"); Vergara v. Bentsen, 868 F. Supp. 581, 590 (S.D.N.Y. 1994) (Kram, J.) (specifically rejecting the proposition that the continuing violation doctrine applies to a discriminatory policy targeting an individual employee rather than a particular group). While the minimally required characteristics of a "policy or practice" have not been established, the Second Circuit requires something more than a pattern of related actions by one individual directed against another individual over a period of five months. Thus, Burrell's sexual harassment claim is time barred.
Burrell Has Alleged Facts Sufficient to Make Out a Prima Facie Claim for Retaliatory Discrimination
Title VII provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees because he has opposed any practice made an unlawful practice by this subchapter. . ." 42 U.S.C. § 2000e-3(a). As the Second Circuit has noted, "the objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia Univ. College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)
A prima facie case of retaliation under Title VII requires a showing that (i) the employee was engaged in an activity protected under Title VII, (ii) the employer was aware of the plaintiff's participation in the protected activity, (iii) the employee suffered adverse employment decisions and (iv) there was a causal connection between the employee's protected activity and the adverse action taken by the employer. Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993); Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59 (2d Cir. 1992) DeCinto v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987). The requisite causal connection may be established "if a retaliatory motive played a part in the adverse employment actions, even if it was not the sole cause." Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d. Cir. 1986).
The plaintiff has the initial burden of proving a prima facie case of retaliation by a preponderance of the evidence. If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the plaintiff's termination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Malarkey, 983 F.2d at 1213; Dominic v. Consolidated Edison Co. of N.Y., Inc., 822 F.2d 1249, 1254 (2d Cir. 1987). If the defendant carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were merely a pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at 804. The plaintiff may succeed in this either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1980).
The Supreme Court has held that "a reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2752, 125 L. Ed. 2d 407 (1993) (emphasis in original); see also Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 142 (2d Cir. 1993) ("a Title VII plaintiff does not necessarily meet its burden of persuasion by convincing a factfinder that the employer's non-discriminatory explanation is not creditable; rather, the trier of fact must find that the plaintiff has proven its explanation of discriminatory intent by a fair preponderance of the evidence."), cert. denied, 114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994).
What this means at the summary judgment stage is that "the plaintiff must establish a genuine issue of material fact either through direct, statistical, or circumstantial evidence as to whether the employer's reason for discharging her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225 (2d Cir. 1994) (emphasis added); see also Salpaugh, 4 F.3d at 142; Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991). In opposing the motion for summary judgment, Burrell need not prove that CUNY's asserted reasons for her termination are pretextual but, rather, must produce evidence from which a jury could draw an inference of discrimination. Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989).
In the instant action, Burrell has made out a prima facie case of discrimination, thus shifting the burden of production onto Defendants. Defendants have met their burden by advancing a legitimate, nondiscriminatory reason for Burrell's termination.
Consequently, the burden is on Burrell to produce evidence from which a jury could infer that Defendants' proffered reason is pretextual. Bearing in mind that "the shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff [has her] day in court despite the unavailability of direct evidence," Sorlucco, 888 F.2d 4, 7, quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 622, 83 L. Ed. 2d 523 (1985), Burrell has presented evidence which would support an inference that she was terminated in retaliation either for making her initial complaint to CUNY's Affirmative Action Office or for refusing to accede to Roman's sexual advances. Specifically, Burrell submits a photocopy of Chin's June 25, 1992 letter calling attention to Burrell's ineligibility to work at CUNY, copies of which were sent to Roman and Nisbett, CUNY's Director of Personnel. In addition, she submits a copy of Roman's August 4, 1992 letter to Nisbett, in which Roman asserts that Burrell misrepresented her eligibility to work for CUNY at the time of her second interview with Roman.
Without these letters from Chin and Roman-- both alleged participants in Burrell's harassment -- it is unlikely that Nisbett would have terminated Burrell, for Nisbett admits: "At the time I received my copy of [Chin's] June 25 letter, I did not know what an H-1 petition was." In light of the permissible inferences created by Roman's and Chin's letters to Nisbett, therefore, Nisbett's independent justification for firing Burrell, even if genuine, is not sufficient. From the evidence currently before the Court, a reasonable factfinder could find either (i) that Roman used the Personnel Office as his unwitting instrumentality in effecting Burrell's termination or (ii) that Nisbett's proffered explanation for Burrell's termination is "unworthy of credence." See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1980). Either finding would indicate that the predominant reason for Burrell's termination was in retaliation either for filing her complaint with CUNY's Affirmative Action Office or for refusing to accede to Roman's sexual advances, both activities protected under Title VII.
For all the reasons stated above, Defendants' motion for summary judgment on Burrell's sexual harassment claim is granted. Defendants' motion for summary judgment on Burrell's claim for retaliatory termination is denied.
It is so ordered.
New York, N. Y.
August 16, 1995
ROBERT W. SWEET