informed that she could not get a doctor's appointment for several days, Kohler refused her request to return and to obtain the authorization subsequent to her return. Her sixth grievance alleged a failure to allow senior janitors a choice of work details as provided by union agreement. Her seventh grievance again claimed harassment and threatening behavior by Kohler which this time included Armstrong. Finally she grieved that Kohler and Armstrong assigned work details unduly hard in retaliation for her grievance and mediation attempts on other matters, and threatened to write her up for insubordination if the work details were refused.
Talada was issued several written warnings during that time. The first was issued on May 9, 1990, for failing to sign a log book referred to as a T&M book, and disobeying a direct order to do so. On June 8, 1990, another written warning was issued for accumulating more than twenty-four hours of unexcused absence between April 18, and June 8, 1990. On June 11, 1990, Talada was again issued a written warning, this time for being outside her work area. Defendants argue that plaintiffs' perceptions of increases in pressure were mistaken, pointing out that Talada's record reflects no increase in discipline, since she received six written warnings during the year 1988 and was out on disability for the year 1989.
On August 8, 1990, an incident arose that effectively brought the increasingly inflammatory relationship to a boil. Armstrong remembered Kohler starting off the shift stating, "Lets get the fucking bitch." Talada was working the cafeteria at that time. She helped herself to popcorn left on the counter, and seasoned it with some garlic salt which was also displayed on the counter. Janitors and supervisors alike partook in the available snacks.
Although a janitor's closet was located in the cafeteria, portions of the cafeteria were considered off limits. Kohler came upon Talada vacuuming in the cafeteria, and immediately called in Armstrong. He reported that Talada had taken popcorn and should be reported. He directed her to report to McIntyre's office where he recommended suspension pending investigation. She was written up for entering an unauthorized area of the complex, and for taking I.B.M. property (the garlic salt, not the popcorn). IBM personnel were notified along with Askew. Her access badge was pulled and she was escorted from the building while Rice and Kohler watched and made comments such as "We got her," and "One down, two to go"; the two allegedly referring to Ingraham and Short. Askew directed McIntyre to undertake an immediate investigation. Four statements were taken from managers.
Approximately one to two months after Talada was suspended, Askew and McIntyre met with the union to discuss various issues, among them, Talada's suspension. The union demanded to know when she would return to work. Askew stated that the investigation was ongoing and no decision could yet be made. The union felt that it was unfair to leave Talada "hanging out there," and demanded that some form of action be taken. Askew again refused. The union persisted. Askew refused three or four times before finally responding, "I have no alternative but to go for termination."
On February 13, 1991, at around 5:30 p.m. West reported to McIntyre that two of the janitors from building 201 were allegedly coming to work and were eating dinner on company time. West reported that he sent two supervisors, Kohler and Armstrong, to address the problem but instructed them not to issue reprimands.
Kohler and Armstrong followed West's order and reported to Building 201 to address the problem. Ingraham and Short were the focus of their attention. They reported seeing Ingraham warming food in the microwave oven at around ten minutes of six. Both reported waiting for approximately ten to twenty minutes before walking to the B floor of building 201. Both reported sensing a strong smell of food and following the smell to the janitor's room on that floor. Kohler claimed that a grocery bag left wide open in the room contained the same plastic dishes that he had seen Ingraham place in the microwave earlier.
Ingraham's run started at 5:30. She punched in to work on time and reported to her assigned area for work. After finishing two conference rooms she returned to the janitor's closet. Upon returning, she found Armstrong standing at the door while Kohler examined her personal belongings - the contents of her lunch bag and purse. She immediately left to phone McIntyre's office, and told him she needed him to come to Building 201. He said he couldn't come at that time because of a scheduled meeting, but said he would send Rice or West. Ingraham asked that Rice not be sent. McIntyre apologized and said West would come.
At 6:15, Kohler and Armstrong reported finding Ingraham and Short at the vending area and asked them if they were planning to eat dinner. Kohler informed them of the time, their failure to fill any trash carts since punching in at 5:30, and that reprimands would be forthcoming. Ingraham allegedly responded by raising her middle finger in a gesture toward Kohler and said, "Right here, Kohler." As Armstrong and Kohler left, Ingraham stated that they had no right to go through her belongings. Kohler responded that all he did was peer in a grocery bag. Ingraham and Short were then told to go back to work.
After the incident, Ingraham returned to cleaning drinking fountains on the third floor, and a short time later West and Askew appeared off the elevator. Askew asked what Ingraham was doing out of her area. She explained that she was supposed to be there. He said she was not supposed to be there, and ordered her, "To leave this floor and get down into your area now." Brian Short appeared and Ingraham requested that he stay with her. Askew ordered him back to work. He refused, stating that as union representative, he couldn't leave once requested to stay until she left. Askew and West left, and Ingraham attempted to finish the final fountain on the third floor. Moments later she caught Askew and West sneaking up the stairwell near the fountain. She exclaimed that her nerves couldn't bear this abuse and asked to leave. West commanded her to go punch out.
Short left with her and they went to the bowling alley to talk. A short time later, Askew and McIntyre walked in and sat down without approaching them. Ingraham called Jerry Dennis, the union president, at his home and left a message. He returned her call at the bowling alley, and upon hearing Ingraham's synopsis of events, asked to speak with Askew. He refused the call however, claiming to be on his own time.
Ingraham took a personal day off the next day, still suffering from the incident, and returned to work the following day. She found her time card, as well as Short's time card, to have been removed. She was called into the office and informed that she had been terminated.
III. CONCLUSIONS OF LAW.
Plaintiffs have alleged three separate claims under Title VII of the Civil Rights Act against each defendant: (1) quid pro quo sexual harassment; (2) sexual harassment in creating a hostile work environment; and (3) retaliation for undertaking a protected activity. Each will be dealt with in turn. Furthermore, since each plaintiff has alleged all three claims against each defendant, this court will endeavor to first discuss the law, and then discuss the facts relating to each plaintiff as against each defendant.
A. Quid Pro Quo.
"Quid pro quo harassment occurs when 'submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.'" Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir.), cert. denied, U.S. , 114 S. Ct. 2693, 129 L. Ed. 2d 824 (1994) (quoting 29 C.F.R. § 1604.11(a)(2) (1993) (Guidelines established by the Equal Employment Opportunity Commission)).
The gravamen of a quid pro quo claim is that a tangible job benefit or privilege is conditioned on an employee's submission to sexual blackmail and that adverse consequences follow from the employee's refusal. Unlike in hostile environment cases, in quid pro quo cases the harassing employee acts as and for the company, holding out the employer's benefits as an inducement to the employee for sexual favors. Accordingly, in a quid pro quo sexual harassment case the employer is held strictly liable for its employee's unlawful acts.
Carrero v. New York City Housing Auth., 890 F.2d 569, 579 (2d Cir. 1989); see also Karibian, 14 F.3d at 777 ("The law imposes strict liability on the employer for quid pro quo harassment.").
"The relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances. It is enough to show that the supervisor used the employee's acceptance or rejection of his advances as the basis for a decision affecting the compensation, terms, conditions or privileges of the employee's job." Karibian, 14 F.3d at 778.
The facts of Carrero, supra, present a classic quid pro quo scenario. Plaintiff, Maria Carrero worked for the New York City Housing Authority, and after four years was promoted to Assistant Superintendent for a probationary term. She answered directly to Acting Superintendent, Miguel Peterson. Carrero looked to Peterson for all training of practices and procedures she needed to learn her job, and Peterson in turn evaluated her performance. Peterson however, reached beyond the professional relationship, at first by flirting; then by touching Carrero's knee or arm; later by attempting to kiss her. Carrero, from the first contact, informed a co-worker and asked advice. The advice was to confront Peterson. She did this to no avail. Her repeated resistance did not inhibit Peterson's efforts; rather, his efforts increased. At one point, after she evaded an attempted kiss, he informed her that he planned to fail her on her probationary report. At another incident, he publicly rebuked and embarrassed her. The Second Circuit determined that plaintiff had suffered from a clear case of quid pro quo sexual harassment.
Talada suffered from an assault similar to that of Carrero, on March 21, 1990. Under the pretext of a work order, Rice, her immediate supervisor, commanded her to report to a secluded telephone room where she was propositioned, cornered, physically handled, and offered work related benefit in return for consent. He proffered, "That if I went along with him if I didn't want to work, he would punch me in and out and pay me for eight hours work." He attempted to kiss her, fondle her and grab her. He kept her cornered against a rack of telephone wires. He attempted to undress her.
Ingraham found herself the victim of such predatory action on two separate occasions. The incident in late 1989, where Ingraham was approached by Rice in the library of building 201, subjected her directly to sexual harassment. Rice, her immediate supervisor, found her alone and began to accost her with sexually oriented remarks like, "Nice ass," and "I've been waiting for this for a long time." He physically handled her with sexually suggestive touching, grabbing, and attempted kissing. Ingraham escaped by abandoning her work route. She was emotional and upset, and retreated to another part of the building to find a friend to confide in.
The second incident likewise smacks of quid pro quo harassment. In January 1990, Ingraham was cleaning alone in building 201 while the majority of the janitorial staff worked out of doors clearing snow and ice. Rice brought her to a storage area under false pretenses of requiring a cleaning task in another portion of the building. Once alone in the storage area, he attempted to sexually contact her and to kiss her. He made the statement that he could make her job easier and she could have more days off. Distraught and upset, she fled by elevator to another floor and into the ladies room.
Rice's position as both Talada's and Ingraham's immediate supervisor, placed them in the very position guarded against by the foundations of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 (the latter not applicable in this case; see Landgraf, 128 L. Ed. 2d 229, 114 S. Ct. 1483.)
The actual assault, although of serious concern and severe in the damage caused, is only an ancillary focus of this claim.
The use of this supervisory power to effectually blackmail an employee into acting in a manner in which she otherwise would not, has been loathed from long before the enactment of these two Civil Rights Acts. It is the empowerment from the 1964 Act, however, that enables us to at least enforce some recompense from such abhorrent behavior. Both Talada and Ingraham stood to lose their livelihood by responding with the otherwise normal reaction of resistance; resistance in the form of complaints; resistance in the form of refusal. In fact, both Talada and Ingraham did resist in both forms. The eventual result - termination.
Physical resistance in the telephone room, defensive in nature and effective at removing Talada from the threatening situation she found herself in, only succeeded in blunting the immediate physical accosting. The employment relationship from that point had metamorphosized. Rice, having improperly used his supervisory power to his advantage and being rebuffed, would not now hesitate to use that power to punish Talada for her failure to cooperate and her infliction of perceived embarrassment upon him.
Lack of consent or cooperation, and eventual grievances by Ingraham led to increased antagonism and friction decaying the work environment and employer-employee relationship; the eventual result - her termination.
B. Hostile Work Environment.
The Supreme Court described a hostile work environment as a workplace "permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Harris v. Forklift Sys., Inc., U.S. , 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). "Isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with regularity that can reasonably be termed pervasive." Tomka v. The Seiler Corp., 66 F.3d 1295, 1995 U.S. App. LEXIS 27612, *24, slip op. at 7808 n.5 (2d Cir. 1995).
"Hostile environment and quid pro quo harassment causes of action are not always clearly distinct and separate. The discrimination which gives rise to them is not neatly compartmentalized, but as [the Carrero] case demonstrates, the two types of claims may be complementary to one another." Carrero, 890 F.2d at 579.
On the one hand, quid pro quo discrimination assesses strict liability upon the employer once an actionable sex discrimination is shown. "In contrast, a 'hostile work environment' theory requires that the plaintiff prove not only actionable sex discrimination, but also that the supervisor's actions should be imputed to the employer." Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992).
To prove an actionable hostile work environment claim then, this two step process of first showing discrimination, and then imputing a supervisor's actions to the employer must be pursued. With regard to the first prong of this test, the Second Circuit has explained that a review of the totality of the circumstances determines discrimination's existence. See Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). They point to a number of elements, including:
1. Whether the "harassment occurred with respect to 'terms, conditions, or privileges' of employment, 42 U.S.C. § 2000e-2(a)(1), though she need not show that she lost any tangible job benefits as a result thereof;" Kotcher, 957 F.2d at 62;
2. Offensiveness, pervasiveness, and continuous nature of the defendant's conduct; Carrero, 890 F.2d at 577; Kotcher, 957 F.2d at 62 ("The harassment at issue must be 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment;' [ Vinson, 477 U.S. at 67]");