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TALADA v. INTERNATIONAL SERV. SYS.

October 10, 1995

BONNIE TALADA, Plaintiff,
v.
INTERNATIONAL SERVICE SYSTEM, INC., and ED RICE, Defendants. ROBERTA INGRAHAM, Plaintiff, vs. INTERNATIONAL SERVICE SYSTEM, INC., and ED RICE, Defendants.



The opinion of the court was delivered by: HURD

 I. INTRODUCTION.

 On January 9 through January 13, 1995, a non-jury trial was conducted in Utica, New York, for discrimination claims arising from the employment of the two named plaintiffs. Supplemental state law claims were dismissed in pretrial motions, and the federal Title VII claims were discontinued by stipulation against defendants Henry McIntyre and Joseph Kohler in the lead case, and against defendants McIntyre, Kohler and Wayne Askew in its companion, leaving only the federal Title VII claims against defendants International Service Systems, Inc., and Ed Rice in both cases. By agreement of the parties, post trial proposed findings of fact and conclusions of law were filed with the court on May 3, 1995.

 The Civil Rights Act of 1991 amended the 1964 Act to offer trial by jury on Title VII claims. However, the 1991 Act carries no retroactive capacity to give plaintiffs Bonnie Talada and Roberta Ingraham a right to a jury on their Title VII claims. Rivers v. Roadway Express, Inc., U.S. , 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994); Landgraf v. USI Film Prod., U.S. , 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). Therefore, this Court must decide plaintiffs' Title VII claims. The Court has heard and reviewed all of the evidence, including the testimony and exhibits and the arguments of counsel in the five day trial. The following decision constitutes this Court's findings of fact and conclusions of law, pursuant to Fed. R. Civ. P. 52, of plaintiffs' Title VII claims.

 A. The Parties:

 1. Plaintiff Bonnie Talada ("Talada") worked as a janitor for defendant International Service System, Inc. ("ISS") who in turn contracted with IBM for the upkeep of the IBM Owego facilities. She started working at the Owego office complex on November 4, 1986, working third shift from 10:30 p.m. to 6:45 a.m., five days a week. She carried third shift through April 1, 1990, during the time when the incidents in question arose.

 2. Plaintiff Roberta Ingraham ("Ingraham") began working for ISS the year ISS acquired the contract for service of the IBM complex in Owego. Prior to that time she had worked directly for IBM as janitorial staff at the Owego complex since 1976. She typically worked second shift from 6:00 p.m. to 2:30 a.m., and Ed Rice acted as her immediate supervisor.

 3. Defendant ISS is a New York Corporation engaged in providing janitorial and cleaning services to among others, an industrial clientele. They have held the contract to service the IBM complex located in Owego, New York for over ten years.

 4. Defendant Ed Rice ("Rice") held the Director of Operations position for ISS at the IBM Owego complex from 1989 until April 18, 1990. He had been friends with both Bonnie Talada and her husband Hillmont since 1976, having lived in the same vicinity, and having seen them on a social level. Hillmont Talada aided Rice in obtaining his position with ISS.

 B. Incidents of Sexual Harassment:

 INCIDENT 1 - (Ingraham):

 In December 1989, Ingraham, working the 6:00 p.m. to 2:30 a.m. second shift, traversed her cleaning run which took her through Building 201 of the Owego complex. She entered 201's library and began collecting trash from its various disbursed receptacles. As she circulated through the library, Rice entered. He approached her directly, walked right up close to her, and immediately attempted to put his arms around her. He began touching her, placing one hand on her buttock. He made several comments to Ingraham, claiming "I've been waiting a long time for this," and telling her she had a "nice ass," attempting at one point to kiss her. She immediately pushed him away, stating, "Get the hell away from me." She left the library and went directly to the cafeteria where she found Brian Short ("Short") and Alexa Wales, fellow janitors, talking. Ingraham finished the day's work at Short's side, and only after leaving for the day, did she confide in him exactly what had transpired.

 INCIDENT 2 - (Ingraham):

 Upon return to work in January 1990, after a Christmas vacation, snow had called most of the male workers out of building 201 to shovel and salt the traffic areas around the building. Ingraham remained inside alone to clean. Rice approached her and informed her that he had an area in need of cleaning. He led her to the administrative office area which was composed of two floors of offices. Ingraham did not suspect anything at this point, since Rice was her supervisor who possessed authority to assign cleaning tasks, and the administrative offices could very well have needed some form of attention. The elevator opened to the penthouse area, however - a third floor storage area off limits to cleaning personnel - and upon stepping out, Ingraham became very upset. Rice stated, "I have something hard and nice for you." He reached for her, telling her he could make her job easier with more days off. He attempted to kiss her at which point she told him to get away from her. She pushed the elevator button and fled to the ladies restroom on the first floor where she remained for some time.

 INCIDENT 3 - (Talada):

 On March 21, 1990, some time after midnight during the third shift, Rice came to Talada at Building 002 of the Owego complex. He showed her a work order - referred to as a P.M. card; it required her to perform a certain task outside her normal routine - and escorted her to Building 102 of the complex, ostensibly to show her the work that needed completion.

 Distraught, emotional and crying, she walked quickly and methodically back to her work station, there encountering Michael Sherwood ("Sherwood"), a co-worker and union steward. She attempted to quickly recount the incident, when Rice strode up behind her and ordered her back to work. Talada did not report this occurrence, nor did Sherwood document their conversation.

 The following night, Rice offered Talada a lighter work shift entailing the cleaning and straightening of cafeteria chairs - a reduction never offered her before.

 --

 A third woman, Marsha Armstrong ("Armstrong"), a temporary employee in 1988, had completed forty-three days of a forty-five day trial period required for union membership. She testified about a similar experience in dealing with Rice. She similarly repelled physical attempts at sexual contact, and refused quid pro quo offers of aid in attaining her forty-five day trial period. Armstrong however is not a party to this case.

 C. Reactions:

 Talada and Ingraham had begun sharing their ordeals with each other in late March 1990. They began discussing what steps, if any, could be taken. Short urged the filing of grievances with the union, but both feared retaliation and reprisals for any action taken. Sherwood informally approached Henry McIntyre ("McIntyre"), ISS Facility Manager of IBM Owego, and explained the Talada incident on the night immediately following its occurrence on March 21, 1990 (Incident 3). McIntyre stated that the matter would be investigated. McIntyre notified Wayne Askew ("Askew"), his immediate supervisor, of the incidents reported to him. Askew directed McIntyre to conduct an investigation. McIntyre testified, "[He] told me to get with Jeff Soule who is the union steward, and have him put some discreet feelers out. This was all to be handled on a low-key basis." Askew testified, "As soon as the grievance was filed, I had instructed [McIntyre] that we had to insure that there was no contact at work between them, to make sure that their work areas did not overlap in any way." He also stated that he would personally handle interviewing Rice.

 Rice was immediately removed to another station and another shift to avoid contact. On April 1, 1990, Rice was moved to third shift and Talada was placed on second. *fn1" An escort was assigned to him whenever he needed to enter the building where Talada and Ingraham worked. *fn2"

 On April 9, 1990, Rice found Talada and Ingraham along with other ISS employees in the IBM cafeteria one-half hour early for their scheduled break. *fn3" Rice immediately filed warnings against each employee for illegal breaks. At this time, none of the three women had filed charges of any kind against Rice.

 On April 17, 1990, Talada and Ingraham, accompanied by union steward Sherwood, met with McIntyre and Ed West ("West"), the second shift manager, and discussed options. Talada and Ingraham sought Rice's dismissal. However, McIntyre agreed to less severe steps - removal of Rice from direct contact with the two by reassigning him to another building. According to Talada, McIntyre informed them that an investigation had turned up no evidence of any sexual harassment. Of course, the placement of Rice on another shift had already taken place. The next day, on April 18, 1990, Talada and Ingraham filed grievances charging Rice with sexual harassment.

 McIntyre filed a report with Askew on July 13, 1990 - having spoken with six separate janitors - explaining that none of the interviewees knew of the incidents. Rice was interviewed and a written statement was taken from him. Neither Talada nor Ingraham were interviewed, allegedly due to the pending union grievances.

 Talada and Ingraham filed charges with the EEOC in 1991. It was not until that time that Rice was removed from the IBM complex.

 Other supervisors working along with Rice and Armstrong, included West, Joe Kohler ("Kohler"), and Gene Hines. The supervisors would regularly congregate in the supervisor's office prior to going out on the floor. Rice and McIntyre were present less often. It was in this office that much of the animosity presented itself. Armstrong spent the majority of her work time accompanying Kohler, about half of which was spent in the building where Talada and Ingraham worked. Kohler often made comments to the other supervisors, such as: "Let's go and see if we can find what that bitch is doing tonight," referring to Talada. He regularly referred to the plaintiffs as bitches. Many of the comments sounded in front of McIntyre without rebuke, instilling a tacit support for the views. At one point Kohler stated, "Lets go out and see if we can get these bitches," and Rice followed stating, "I'm going along with you." McIntyre commanded Rice to sit back down, stating that he was in enough trouble, but left Kohler to his actions.

 After the grievances were filed, the animosity began to display itself more directly. In June 1990, Ingraham having been given a new task of supplying restrooms with trash bags for sanitary napkins, sought direction on what to do with them from Kohler. He replied, "I don't care if you shove them up your ass."

 Talada was forced to perform work over and above her normal cleaning routine. She was ordered to change electrical fuses in the ceiling, clean drains (testimony characterized this as one of the least desirable tasks), and to clean ceiling tiles.

 Ingraham likewise felt increased pressures. Both felt subjected to relentless supervision. Ingraham testified, "There was several supervisors. They used to hide in offices and jump out of stairways and always lurking around. . . . I remember seeing Joe Kohler, Ed West. Marsha [Armstrong] used to be with Joe. Those basically were the main ones."

 On September 24, 1990, Ingraham stopped at a bowling alley prior to work and noticed Askew following her. From there he followed her to the parking lot of the Owego plant and noted where she parked. Although she had parked in this area for her entire tenure at the complex, she was instructed to move her car, and was warned of reprimand and possible termination if she were to park in an unauthorized spot again.

 Between April 20, 1990, and August 9, 1990, Talada filed eight separate grievances against ISS management. The first involved harassment by Kohler. In the second, she claimed that she was forced to use hazardous equipment in the form of a carpet machine with bare electrical wires, while supervisors Kohler and Hines watched without concern. The third involved a dispute about holiday pay. The fourth alleged that the grievance procedure was being circumvented. The fifth claimed that she was sent home with a bloody nose and not permitted to return to work without medical authorization. When 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. *fn4" 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)).

 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 ...


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