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CRISONINO v. NEW YORK CITY HOUS. AUTH.

November 18, 1997

ELIZABETH CRISONINO, Plaintiff, against NEW YORK CITY HOUSING AUTHORITY, RUBEN FRANCO, DAVID BURNEY, and KENNETH EISENSTAT, Defendants.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Defendants move for summary judgment on plaintiff's federal claims and for dismissal of the pendant state-law claims. For the reasons discussed below the motion is GRANTED in part and DENIED in part.

 BACKGROUND

 Plaintiff Elizabeth Crisonino was employed as an architect by defendant New York City Housing Authority ("NYCHA") from January 23, 1995 until her termination on January 19, 1996. She was called to jury duty in this Court on or about November 20, 1995 and was chosen to serve on a criminal trial expected to last two months. Plaintiff notified NYCHA of her jury duty and sought to comply with the agency's requirements so as to ensure that she would continue to receive her paycheck in a timely manner. While the plaintiff had disagreements with her superior Mr. Eisenstat in the past, the saga underlying this lawsuit appears to have begun on January 4, 1996, when her paycheck was withheld. Apparently, there was some misunderstanding between the parties as to the procedures to be followed. As a result, on January 12, 1996 a memo was prepared to suspend plaintiff from the active payroll. On January 16, 1996, the next business day, the payroll suspension was rescinded. Two days later, plaintiff submitted reimbursement checks to NYCHA. *fn1"

 The following day, January 19, 1996, proved fateful. On that date, plaintiff entered the office of defendant Kenneth Eisenstat, the Assistant Director for Operations at NYCHA, and asked for her paycheck. There is no dispute that Eisenstat refused to give plaintiff her check because he believed she had not yet properly reimbursed the agency. Compare Eisenstat Aff. P 4; Crisonino Aff. P 23. What follows is the subject of much dispute. According to plaintiff, Eisenstat called her a "dumb bitch" and she left. Later, when she returned to his office intent on picking up her paycheck, she was again refused and, after she used a profanity, plaintiff alleges that Eisenstat stood up, walked around his desk and shoved her so hard that she fell backward and hit the floor, sustaining injuries from which she has yet to fully recover. According to Eisenstat, when plaintiff returned to his office she interrupted a meeting he was having, demanded her check, swore at him, and began walking toward him, at which time he stood up and was struck in the chest by the plaintiff, who grabbed his shirt and began kicking him. Several co-workers who had witnessed some or all of the confrontation managed to separate the two. Plaintiff was immediately suspended from her duties and later that day she was fired.

 After being terminated from her employment, plaintiff filed criminal charges against Eisenstat. The initial charge was Assault in the Third Degree. See Penal Law § 120.00. The charge was later reduced to Harassment in the Second Degree. See Penal Law § 240.26(1). Plaintiff also filed a complaint against Eisenstat and his supervisor, defendant David Burney, with NYCHA's Inspector General. The complaint, alleging sexual harassment and that plaintiff had been discriminated against on the basis of her sex, was apparently transferred to the agency's Department of Equal Opportunity ("DEO"). DEO conducted an investigation and concluded that plaintiff's allegations were unfounded.

 Plaintiff also filed this lawsuit, in which she asserts the following causes of action against the defendants: (i) violation of the Jury Duty Act, 28 U.S.C. § 1875; *fn2" (ii) violation of the Gender Motivated Violence Act, 42 U.S.C. § 13981; (iii) violation of her equal protection rights, presumably pursuant to 42 U.S.C. § 1983; (iv) violation of her right to privacy and substantive due process, also presumably pursuant to 42 U.S.C. § 1983; (v) violation of Title VII, 42 U.S.C. §§ 1981A, 2000e et seq. ; and (vi) various state and city law claims. Defendants have moved for summary judgment on the enumerated federal claims and for dismissal of the state law claims.

 DISCUSSION

 Summary judgment can be granted only where there is no material issue of fact. It is beyond peradventure that whether Mr. Eisenstat called plaintiff a "dumb bitch" and shoved her to the ground, as she claims, or whether she attacked him, as he claims, is a material issue of fact. Defendants have submitted four affidavits supporting Eisenstat's account of the incident: Eisenstat's and those of three eyewitness, all of whom claim plaintiff grabbed Eisenstat's shirt and began kicking him. See Eisenstat Aff. PP 11, 12; Wilkerson Aff. P 15; Positino Aff. P 9; Burney Aff. P 3. *fn3" Plaintiff relies on her version of the event. Crisonino Aff. P 27. Although defendants' affidavits outnumber plaintiff's, summary judgment is not a numbers game and in this instance requires an assessment of credibility by a jury, not the Court. In ruling on a motion for summary judgment, the Court is bound to assume that the incident occurred as described by plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (availability of summary judgment does not authorize "trial on affidavits"). With that in mind, I examine the sufficiency of each of plaintiff's federal causes of action.

 I. Title VII

 Plaintiff asserts that defendant NYCHA *fn4" violated her rights under Title VII by creating a sexually hostile work environment. *fn5" "A hostile work environment exists 'when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of employment.'" Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)), petition for cert. filed, 118 S. Ct. 563 (1997). Although "isolated, minor episodes of harassment do not merit relief under Title VII," the Court of Appeals has noted that "even a single episode of harassment, if severe enough, can establish a hostile work environment." Id. at 631 n.4; see also Tomka v. Seiler, 66 F.3d 1295, 1305 (2d Cir. 1995) ("even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII") (emphasis added).

 Plaintiff here alleges a single incident of assault. Whether this assault can form the basis for any hostile work environment charge is a close question. Plaintiff relies on the fact that Eisenstat touched her "above the breast" when he pushed her and the fact that he referred to her as a "dumb bitch" earlier in the morning to show that the assault was sexual in nature. Defendants argue that a single stray remark is insufficient to establish gender animus. The cases on which defendants rely are distinguishable, however, in that the remarks at issue there had no nexus to the complained-of action. See Arroyo v. New York State Ins. Dep't, 1995 U.S. Dist. LEXIS 15376, No. 91 Civ. 4200 (MBM), 1995 WL 611326 (S.D.N.Y. Oct. 18, 1995), aff'd, 104 F.3d 349 (2d Cir. 1996); O'Connor v. Viacom, Inc., 1996 U.S. Dist. LEXIS 5289, No. 93 Civ. 2399 (LMM), 1996 WL 194299 (S.D.N.Y. April 23, 1996), aff'd, 104 F.3d 356 (2d Cir. 1996). By contrast, the remark at issue here was closely followed by the alleged assault. The Court of Appeals has recognized that "stray remarks" can suffice to establish a prima facie case in the appropriate circumstances. See Kirschner v. Office of the Comptroller, 973 F.2d 88, 93 (2d Cir. 1992). While this is a close question, it is a question for the jury. See Torres, 116 F.3d at 633 ("jury question as to whether [defendant's] conduct created a hostile work environment").

 Having barely survived summary judgment with respect to whether the incident was sufficiently severe or sexually related so as to meet the requirements for a hostile work environment charge, let me turn to whether plaintiff has established facts that could make NYCHA liable for the conduct of its employees. Id. at 633-34. The Circuit has recently held that "an employer will be held liable for the harassment perpetrated by one of its supervisors" only in enumerated circumstances, including when "the employer provided no reasonable avenue for complaint." Id. at 634. Defendant contends that the fact that the DEO investigated plaintiff's complaint, albeit months after she was fired, constitutes a "reasonable avenue of complaint." I disagree. The mere existence of sexual harassment complaint procedures does not immunize defendant. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1180-81 (2d Cir. 1996). "The question of whether an employer has provided a 'reasonable avenue of complaint' is a question for the jury," id. at 1181, especially where, as here, plaintiff was discharged prior to any investigation whatsoever. Defendant's motion to dismiss plaintiff's Title VII hostile work environment claim against NYCHA is denied.

 II. Section 1983

 Plaintiff has also asserted two Section 1983 claims: one for violation of her equal protection rights (count three) and one for violation of her substantive due process right to bodily integrity (count four). Defendant has moved for summary judgment on both counts on various grounds. Plaintiff's allegations and defendants' motion must be assessed separately with respect to each defendant.

 A. NYCHA

 Any Section 1983 claims against NYCHA must be dismissed. To state a claim against a municipality or a municipal agency, plaintiff must allege either that the complained-of act was a result of a pattern or practice or that some other basis for liability--other than respondeat superior--exists. See Monell v. Department of Soc. Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff seeks to hold NYCHA liable on the theory that defendant Franco's decision to suspend and terminate plaintiff's employment constitutes a decision by an official with policymaking authority and is therefore imputable to the agency. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). This Court has recently rejected just such a claim. Ramos v. City of New York, 1997 U.S. Dist. LEXIS 10538, No. 96 Civ. 3787 (DLC), 1997 WL 410493 (S.D.N.Y. July 22, 1997) (NYCHA ...


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