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MCKENNEY v. NEW YORK CITY OFF-TRACK BETTING CORP.

November 9, 1995

DOROTHEA McKENNEY, Plaintiff, against NEW YORK CITY OFF-TRACK BETTING CORPORATION, et ano., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This is an action pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff Dorothea McKenney, an employee of the New York City Off-Track Betting Corporation ("OTB"), sues OTB and Raymond Gibson, a former director of OTB's budget department, for sexual harassment, gender discrimination, and retaliation. Defendants move for summary judgment dismissing the complaint. They argue that much of the evidence relied upon by plaintiff relates to events that occurred more than 300 days prior to the filing of plaintiff's EEOC charges and therefore should not be considered because claims relating to those events are time-barred. When those incidents are stripped away, defendants assert, plaintiff has insufficient evidence to warrant a trial on her timely claims.

 Facts

 The factual record in this case is substantial. For the most part, the details are unnecessary to the resolution of this motion.

 Plaintiff claims that Gibson treated her and other women in the Budget Department in a demeaning and insulting way from the time she began working there in July 1988 through her transfer to another unit in April 1992, save for a thirteen month period during which she was on medical leave. The alleged mistreatment of female employees is said to have worsened after the appointment in 1990 of Hazel Dukes as president of OTB, as Gibson allegedly was emboldened in his abuse by protection flowing from his long-standing personal relationship with Dukes. Indeed, on October 8, 1991 when, in an attempt to address ongoing personnel problems in the Budget Department, a meeting was held at which employees in the Department were asked to indicate whether they were interested in transferring to another department at OTB, over half of the Department staff, apparently including every female employee, requested a transfer. (Sands Decl. Ex. 1) Instead of being transferred, however, the employees were summoned to Dukes' office where, plaintiff claims, they were told that there would be no transfers and that their only alternative to remaining in their then present positions was resignation. (McKenney Dep. 116)

 On January 6, 1992, McKenney was involved in a verbal exchange with her immediate superior, Michael Bogart, which took place in Gibson's presence and led to an ill-tempered round of memoranda between her and Bogart. (Sands Decl. Exs. 2-5) Gibson weighed in with a January 9, 1992 memorandum to McKenney in which he generally took Bogart's part and urged McKenney to focus on her work rather than "superfluous memorandums." (Id. Ex. 6) This provoked a written response from McKenney (id. Ex. 7), which in turn led to a formal complaint by Gibson of insubordination by McKenney (id. Ex. 8). Gibson's insubordination complaint against plaintiff resulted in a February 11 "informal conference" at which Barbara Jacquet, OTB's senior director of operations control, acted as the "conference leader." (See id. Ex. 9) According to plaintiff, Jacquet stated at the conference that she was well aware of Gibson's behavior toward female employees. Plaintiff then quotes Jacquet as saying, "we all know who is in the front office, we know nothing is going to happen to Mr. Gibson." (McKenney Dep. 141) On February 19, 1992, Jacquet issued a formal reprimand to McKenney regarding her attitude toward her co-workers. Jacquet suggested that McKenney "try to forgive and forget and help make [her] working hours as pleasant as possible for all concerned." (Id. Ex. 14; see also Ex. 9) *fn1"

 The dust did not settle before McKenney, on March 3, 1992, filed a complaint with the New York State Division of Human Rights and the EEOC. The complaint charged as follows:

 
"On January 7, 1992 [ sic ], *fn2" I was called into a meeting with Raymond Gibson, Director of Budget. At this meeting, I was degraded, ridiculed and referred to as 'honey' and a 'smart ass'. I am constantly reminded that I don't know my job or my 'place'. Both R. Gibson and my immediate supervisor Michael Bogart have made it known to me that if I don't like this type of treatment my only option is to resign.
 
"On information and belief male employees are not treated in this manner." (Id. Ex. 15, PP 3-4)

 In April 1992, plaintiff was transferred to OTB's Revenue Department, where she has worked to date. Her job title and salary have remained the same, and her duties have been similar to those in her old position. She contends, however, that the new position is a demotion.

 The EEOC issued a right to sue letter on August 25, 1993, and this action followed shortly thereafter. As framed by the pretrial order, plaintiff's contentions are that she was subjected to hostile work environment sexual harassment by Gibson during the period June 15, 1988 through April 1992, that she was subjected to disparate treatment on the basis of her gender, and that the insubordination charge against her and her transfer to the Revenue Department both constituted retaliation for her complaint against Gibson. (Pretrial order at 1-5) The focus of the hostile work environment claim is alleged "sexually derogatory name-calling . . ., sexual slurs, and sex intimidation." (Id. §§ I at 1, III.A. P 2)

 Discussion

 The Timeliness of Plaintiff's ...


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