The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 to recover against the New York City Housing Authority (the "Authority") for alleged (i) sexual harassment by co-workers in violation of her right to equal protection of the laws, and (ii) retaliation for her previous lawsuit against the defendant and others in violation of the First and Fourteenth Amendments. Defendant moves for summary judgment dismissing the complaint. For the reasons stated below, defendant's motion is granted in substantial part.
As defendant has the burden of establishing that there is no genuine issue as to any material fact, the Court views the record in the light most favorable to the plaintiff.
Plaintiff Maria Carrero has been employed by the Authority since 1981. (Alexander Reply Aff. Ex. G) In 1986, she brought an action in this Court for sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1983, claiming that her immediate supervisor, Miguel Peterson, had subjected her to both hostile environment and quid pro quo sexual harassment (" Carrero I "). After a bench trial, Judge Sweet held that Peterson was liable for sexual harassment on both theories. He further held that the Authority was not liable for Peterson's creation of a hostile work environment because Peterson acted outside the scope of his employment, but that it was liable for Peterson's quid pro quo harassment. Carrero v. New York City Housing Authority, 668 F. Supp. 196 (S.D.N.Y. 1987). The district court issued a decree requiring the Authority to conduct a training program on sexual harassment for any males working with Carrero and, more generally, directed the Authority "to take all necessary steps to ensure to the maximum extent practicable that plaintiff shall not be subjected to any threat or any other act at the hands of Authority agents or employees in retaliation for plaintiff's complaints which were the subject of the proceedings which led to [the] Court Order, or in retaliation for any refusal by plaintiff hereafter to submit to sexual advances or for any complaint hereafter made by plaintiff to the Authority regarding sexual harassment or discrimination."
(Sussman Aff. Ex.1) There is no evidence that the Authority conducted any training program in response to the decree.
Plaintiff's Initial Round of Allegations and the Authority's Response
Carrero's Return to the Authority and the Alleged Wise Towers Incidents
By the time of Judge Sweet's decision in Carrero I, Carrero was on a lengthy leave of absence. She first returned to her job as heating plant technician in February 1988 and was assigned to the Amsterdam Houses. (Alexander Reply Aff. Ex. G) As far as the record discloses, there was no incident brought to the Authority's attention until April 1992.
Thus, while the Court assumes for purposes of this motion that the Authority took no special steps to train Carrero's co-workers upon her return from leave, more than four years passed without any incident known to the Authority once she did return, roughly half the period before and roughly half after the entry of the Carrero I decree.
Plaintiff was transferred to Wise Towers in April 1992. Immediately after her arrival, she complained to her immediate supervisor that two other employees had made highly offensive, gender oriented remarks and that an offensive note had been attached to her time card. (Sussman Aff. Exs. 3,4) The supervisor investigated the complaint, but initially was hampered by Carrero's inability or unwillingness to identify the makers of the offensive remarks. Approximately two weeks after the first of the alleged remarks, however, Carrero identified the alleged maker of the first comment by name. The manger who investigated Carrero's complaints then confronted the individual whom plaintiff had identified, but that individual flatly denied Carrero's allegation. The manager was unable to identify the source of the offensive note and the second alleged remark. In June 1992, in the wake of these events, the Authority held a seminar, sponsored by its Department of Equal Opportunity ("DEO"), concerning sexual harassment in the workplace for all Wise Towers maintenance personnel.
(Sussman Aff. Ex. 3) As far as the record discloses, Carrero's remaining tenure at Wise Towers was uneventful.
The Alleged Bathroom Incidents
On October 1, 1992, Carrero was transferred as a "loaner" to a housing complex called Lower East Side II ("LES II"). The only controversy concerned the alleged lack of a locker for plaintiff's use in storing her street clothes and personal possessions. While the timing and some of the details are not entirely clear, Carrero's allegedly contemporaneous diary
notes, dated in early January 1993, states that she then had been without a locker for the second week. There is no evidence, however, that she reported the problem at this time. The diary entry for April 7, 1993, moreover, states that Carrero alerted her immediate supervisor, Assistant Superintendent Leon Howard, of the problem on that date. (Id. Ex. 6) On April 8, 1993, Carrero was given a locker and a changing room, although the room was dirty. (Id.) After she began to clean it, she called Carmito Ortiz, the Superintendent of LES II, who sent three other employees to help her. (Id.) Later that day, she was told that she had been transferred to Chelsea Houses. (Id.) Thus, Carrero spent seven months at LES II without voicing any complaint of sexual harassment or retaliation.
Carrero worked at Chelsea Houses for less than a month and then was transferred to Carver Houses. In August 1993, plaintiff saw a posting for a permanent position as a heating plant technician at LES II and applied for it. Although she claims that Ortiz was unfriendly when she called him about the opening, she was the only applicant and therefore was transferred back to LES II in November 1993. (Ortiz Dep. 13)
Carrero's responsibilities at LES II included not only the heating plants in the five buildings in that complex, but the boiler rooms at Bracetti Houses, which were four or five blocks away. There was one women's bathroom in the LES II building at 86 Avenue C, while men and women employees shared a single bathroom at Bracetti Houses. (Carrero Dep. 36-37) In April 1994, Carrero entered the bathroom at Bracetti Houses, the door to which was open, and saw a man at a urinal who then turned and faced her while still holding his penis in his hand. (Id. 40) There is no evidence, as distinguished from speculation, as to whether the man in question was aware that anyone, let alone a woman, had entered the bathroom before he turned. (See id. 45-46) Carrero told him to close the door, walked out, and complained to Howard, who immediately posted a handwritten sign on the bathroom door advising that the door should be closed when the room was in use because "female workers work here too." (Id. 43, 45; Sussman Aff. Ex. 9) Nevertheless, a similar incident, involving a different male employee, allegedly took place three months later. (Carrero Dep. 49, 51-53) Carrero complained to Howard, but there is no evidence as to what, if anything, was done in regard to her complaint.
Howard's Alleged Harassment
On July 22, 1994, Carrero was in Howard's office. She was wearing a shirt with two front pockets in the left of which were two pens. According to plaintiff, Howard reached out and grabbed her left breast. She pushed his hand away and protested. Howard, Carrero testified, said that he had been reaching for a pen and that he had touched Carrero by accident. (Id. 73-74) Carrero did not then report the incident to anyone. (Id. 74; Sussman Aff. Ex. 11)
Five days later, Carrero says, Howard ordered her to have lunch with her, a demand to which see acceded after he threatened to charge her with insubordination. A few days later. Howard again asked Carrero to have lunch with him and threatened to change her shift in the following summer. (Sussman Aff. Ex. 11) After another few days, Howard entered the boiler room at the Bracetti Houses while Carrero and another heating plant technician were working. According to plaintiff, Howard again grabbed her breast and allegedly did so ...