reprimands an offender for particularly grievous conduct. Id.
There is an issue of fact as to the adequacy and promptness of Getty's response to plaintiffs' complaints. It is true that both Spina and Byard admit that Riccitelli's harassment eventually stopped. But they also testified that their initial complaints to Masone were ineffective. Spina said that despite her complaint to Masone in the fall of 1988, Riccitelli's harassment continued. Similarly, Byard said that even after she met with Masone, Riccitelli continued to expose his underwear to her. Both plaintiffs testified that not only had they complained to Masone, but that, contrary to Masone's assertions, he had actually seen some of the acts of harassment.
Even accepting Masone's account, the factfinder could conclude that Getty's response was inadequate. He admitted that after Spina and Byard complained to him, he spoke with Riccitelli but did not investigate the matter further. Riccitelli's assault on Byard occurred at least one month after plaintiffs had complained to him.
Getty, relying on Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), argues that Masone's knowledge of the harassment cannot be imputed to Getty, because he is not "at a sufficiently high level in the [company] hierarchy." Id. at 715 (quoting Kotcher, 957 F.2d at 64). In essence Getty says that it did not know, nor could have known, of the harassment until February 28, 1989 when the company's Chief Executive Officer received the anonymous letter. At that point, Getty claims, it promptly and effectively responded to the allegations.
Masone, as terminal superintendent with power to recommend employee discipline and termination, occupied a sufficiently high level as to make it reasonable to impute his knowledge to Getty.
In any event Van Zant is not controlling here. There, the employer, KLM Airlines (KLM), conducted an investigation within thirty-six hours of the plaintiff's report to her immediate supervisor of the harassment. Ten days later the alleged harasser was terminated. The Second Circuit said that KLM had taken prompt and effective action and refused to impute to KLM the prior knowledge of a low-level supervisor in another department of the harasser's proclivity for inappropriate behavior. Van Zant, 80 F.3d at 715.
Here plaintiffs claim they reported the harassment to their and Riccitelli's immediate supervisor who failed to take action. Where notice is given to plaintiffs' and the alleged harasser's supervisor, it is reasonable to conclude that the employer has notice of the allegations.
Finally, even if it were determined that Getty had notice of the harassment only when Bohmke began his investigation and personally interviewed the plaintiffs, it still took almost two months for Riccitelli's shift to be changed. The factfinder could reasonably conclude that such delay was unreasonable.
There is a genuine issue of fact as to whether Getty provided plaintiffs a reasonable avenue of complaint and whether Getty knew of the harassment but took no adequate measures. Summary judgment is inappropriate.
Getty says that plaintiffs have failed to assert a prima facie claim for unlawful retaliation.
In order to maintain such a claim under Title VII, plaintiffs must show that they participated in a protected activity--e.g. complained about the harassment, Getty knew of this activity and took an employment action disadvantaging the plaintiffs, and there is a causal connection between the protected activity and Getty's action. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citations omitted). A short time between an employee's complaint and the discriminatory treatment may justify an inference of a causal connection. Id. (quoting DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir), cert. denied, 484 U.S. 965, 108 S. Ct. 455, 98 L. Ed. 2d 395 (1987)).
The defendant then has the burden to articulate a legitimate, non-discriminatory reason for its action. See Johnson, 931 F.2d at 207 (quoting Taitt v. Chemical Bank, 849 F.2d 775, 777 (2d Cir. 1988)). Plaintiffs must then show that the reasons advanced were pretextual. Id. (citations omitted).
Plaintiffs allege that as a result of their complaints about Riccitelli, they were denied overtime, prohibited from making personal phone calls, and told not to talk to drivers. Both plaintiffs also claim that they were discharged on account of their complaints.
As to both plaintiffs, there is an issue of fact as to whether they were denied overtime as a result of their complaints. Spina testified that the day after she spoke with Bohmke about the anonymous letter and her allegations of sexual harassment, Masone told her that there would be "no more overtime for you and Jacqueline." Spina concedes that her previous requests for overtime had not always been granted, but states that she did receive overtime the majority of times she asked. Masone's statement, if credited by the factfinder, indicates that she and Byard were singled out for differential treatment and the factfinder could conclude that such treatment was on account of their complaints.
Plaintiffs' retaliatory discharge claims must be treated individually. Getty terminated Byard a year after her complaints about Riccitelli and management's investigations. More than three months prior to her discharge, Bohmke wrote Byard a letter detailing her deteriorating job performance, suspending her without pay for two and one-half days and warning her that if her performance did not improve, she would be terminated.
Bohmke's letter to Byard listed several examples of her poor conduct including: customer complaints about her telephone manner, taking an entire day to complete tasks that should take less than an hour, spending excessive amounts of time in the bathroom, using the toll-free line for unauthorized personal calls, and posting delivery cards for incorrect accounts.
Too long a period of time passed between Byard's complaints to management and her ultimate discharge to justify an inference that there was a causal connection between those complaints and her termination. No other evidence exists in the record to warrant such a connection and plaintiffs' have presented no evidence to suggest that Byard's poor job performance report was pretextual. The court grants Getty summary judgment as to Byard's retaliatory discharge claim.
Because Byard has failed to state a claim for retaliatory discharge, the court need not address Getty's argument that her damages should be limited by the subsequent discovery of her wrongdoing.
In plaintiffs' opposition papers, Spina claims for the first time that she was constructively discharged because once her discharge was converted to a temporary suspension and she was offered reinstatement, she refused to return to work.
When an employer, rather than acting directly, "deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation[,]" constructive discharge has occurred. Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Young v. Southwestern Savings and Loan Ass'n., 509 F.2d 140, 144 (5th Cir. 1975)). To maintain such an action, a plaintiff must prove that the working conditions were so unpleasant that a "reasonable person in the employee's shoes would have felt compelled to resign." Id. (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)).
Spina's discharge and suspension occurred within the month that she and Byard filed complaints with New York State's Human Rights Division. Given the nature of Riccitelli's alleged harassment of Spina and Getty's purported delay in responding to her complaints, the factfinder could find that a reasonable person in Spina's position would have deemed work for Getty as intolerable.
Although there is little evidence that Getty's actions in this respect were deliberate, the Second Circuit disfavors summary judgment when defendants' state of mind is at issue. See Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). Resolving all ambiguities in favor of the non-movant, the court concludes that Getty is not entitled to summary judgment as to Spina's retaliatory discharge claim.
Getty says that even if Spina succeeds in proving that she was constructively discharged, she forfeited her right to backpay when she refused to return to her prior position or to the comparable position she was subsequently offered.
It is true that absent "special circumstances," a plaintiff "forfeits her right to backpay if she refuses a job substantially equivalent to the one [she] was denied[.]" Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231-32, 102 S. Ct. 3057, 3065-66, 73 L. Ed. 2d 721 (1982). But in a constructive discharge case plaintiff's refusal of a reinstatement offer will not limit an employer's backpay liability when the employer's offer is unaccompanied by credible assurances that the harassment will cease, see Miano v. AC&R Advertising, Inc., 875 F. Supp. 204, 226 (S.D.N.Y. 1995), or when the level of harassment and hostility in the workplace makes an employment relationship impossible to reestablish. See Maturo v. National Graphics, Inc., 722 F. Supp. 916, 927 (D. Conn. 1989).
There is insufficient evidence in the record for the court to resolve the question of whether Spina justifiably refused Getty's reinstatement offer. Summary judgment as to Spina's potential backpay award is at this time inappropriate.
Magistrate Judge Chrein has barred plaintiffs from using a medical expert at trial to testify about plaintiffs' mental injuries. Getty argues that because plaintiffs now cannot provide evidence of the duration and severity of their mental injuries, plaintiffs' claims for mental anguish under New York's Human Rights Law should be dismissed.
New York's Human Rights Law affords victims of discrimination compensatory damages for mental anguish and proof of mental anguish damages can be based on the plaintiffs' testimony alone. See Cullen v. Nassau County Civil Service Comm'n, 53 N.Y.2d 492, 497, 442 N.Y.S.2d 470, 473, 425 N.E.2d 858 (1981). So that such awards are exclusively compensatory and do not become a proxy for punitive damages, courts require that the complainant's testimony be corroborated by "reference to the circumstances of the alleged misconduct." New York City Transit Auth. v. State Div. of Hum. Rights, 78 N.Y.2d 207, 216, 573 N.Y.S.2d 49, 54, 577 N.E.2d 40 (1991).
There is sufficient evidence in the record to withstand a summary judgment motion. Spina testified at her deposition that following Riccitelli's assault of her she had trouble sleeping, didn't eat very much and lost about ten pounds. She testified that her experiences at Getty humiliated and embarrassed her.
Although Byard's deposition testimony does not specify the scope of her mental injuries, neither is there anything to indicate that she suffered no mental anguish.
Getty says that they should not be held liable for Riccitelli's intentional torts and that plaintiffs' common law claims against it should be dismissed.
Under New York law, an employer is liable for the torts an employee commits while acting in the course of his or her employment. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (citations omitted). "Torts committed for personal motives unrelated to the furtherance of the employer's business" cannot be imputed to the employer. Island Associated Coop., Inc. v. Hartmann, 118 A.D.2d 830, 831, 500 N.Y.S.2d 315, 316 (2d Dep't. 1986).
Here nothing suggests that Riccitelli's actions were carried out in furtherance of Getty's business. Plaintiffs' state law claims for assault and intentional infliction of emotional distress against Getty are dismissed.
Because this action arose prior to the enactment of the 1991 Civil Rights Act, plaintiffs, under Title VII, are entitled only to equitable relief and awards of backpay. See O'Brien v. King World Productions, Inc., 669 F. Supp. 639, 641 (S.D.N.Y. 1987).
Should plaintiffs be successful at trial, they would be entitled to backpay for whatever overtime they were denied because of their complaints concerning the harassment. Spina could also recover for any backpay she is owed due to her constructive discharge. Although hostile environment claims do not provide an independent basis for damages under pre-1991 Title VII law, plaintiffs can recover compensatory damages for mental anguish under New York's Human Rights Law. See Cullen, 53 N.Y.2d at 496, 442 N.Y.S.2d at 472. Neither pre-1991 Title VII law nor New York's Human Rights Law authorizes punitive damages. See O'Brien, 669 F. Supp. at 641; Thoreson v. Penthouse International, Ltd., 80 N.Y.2d 490, 499, 591 N.Y.S.2d 978, 981-82, 606 N.E.2d 1369 (1992).
Getty's motion for summary judgment is granted as to Byard's retaliatory discharge claim. Plaintiffs' common law tort claims are dismissed as to Getty Terminals Corporation and Getty Petroleum Corporation. In all other respects, the motion is denied.
Dated: Brooklyn, New York
January 24, 1997
Eugene H. Nickerson, U.S.D.J.
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