environment claim, harassed employees are only held to a standard of reasonableness. "Whenever the harassment is of such a quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse, it is actionable under Title VII so long as the employee subjectively experienced a hostile work environment." Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997). A reasonable Pentecostal missionary could find a workplace in which her supervisor repeatedly yelled at her "Jesus, Jesus, f you, kiss my ass" a hostile environment.
Defendant contends that some of the incidents such as being called a "bitch" or a "bastard" are remarks which many people would not consider overly offensive. While being called a "bastard" alone may not be so considered, such epithets enjoined with offensive physical gestures such as Schwartz' thrusting of his buttocks in Mitchell's face, must be found physically threatening and humiliating. Riedinger, 974 F. Supp. at 327. Moreover, these actions appear to have been based, at least in part, on Mitchell's gender. There is no evidence that Schwartz referred to male workers as "bitch", threatened to pull their hair out, or suggested that they "kiss his ass", or shook his buttocks in their face. In Dortz v. City of New York, the court found that comments the defendant directed at plaintiff such as "the frustrated bitch," or "passive-aggressive" were clearly sexual or gender-related and taken together with nine other comments created a hostile work environment. 904 F. Supp. 127, 149 (S.D.N.Y. 1995). Similarly, the verbal harassment Schwartz directed at Mitchell that encompassed both gender-related and religious overtones along with Schwartz' physical gestures can reasonably be termed pervasive enough to have created a hostile work environment. Finally, the fact that Mitchell was required to work under the supervision of Schwartz within the same department could be viewed as intensifying the severity of Schwartz's conduct. See Id..
According to Mitchell, these incidents caused her physical illness which interfered with her ability to perform her job. As a result, Mitchell had to be prescribed medication. Mitchell's physical condition which resulted from Schwartz' conduct further allows a finding that a hostile work environment existed.
Once Mitchell has met her burden of establishing a prima facie case of discrimination, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the adverse action, in this case terminating Mitchell's employment. Fab asserts that Mitchell was not qualified for her position and that her termination resulted from complaints about her work performance. Fab points to written complaints submitted regarding Mitchell's poor work performance, and asserts that, as a result of these complaints, Fab determined that Mitchell was not qualified. Although Fab admits that written complaints were not issued until after Mitchell's January 1993 memorandum regarding her supervisors' treatment of her, Fab contends that oral complaints began three months earlier in September 1992.
Mitchell has set forth evidence sufficient to demonstrate that she possessed the basic skills necessary for the performance of the job. De La Cruz v. New York City Human Resources Admin. Dept. Of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). She received excellent evaluations from 1989 to 1991. In the Summer of 1992, upon the request of Schwartz, she was transferred to Raval Lace to fill in for Sherrill who was out on maternity leave. Upon Mahe's request, Mitchell was initially transferred to Raval Lace on a full-time basis. Schwartz wanted her to remain in that department even after Sherrill returned. Although Mitchell was told in a 1992 evaluation that she needed to catch up a bit, the evaluation nevertheless stated that she did her work and suggested that she be given a raise and bonus. Moreover, during the period that Mitchell had been assigned to Raval Lace to replace Sherrill, she had to acquire new job responsibilities and had been trained on the computers.
Mitchell further contends that the barrage of complaints submitted against her occurred after her January 28, 1993 memorandum complaining of Schwartz' treatment of her. In fact, according to Mitchell, Schwartz admittedly told her that his complaint was in retaliation for hers. Prior to that, there were no complaints regarding Mitchell's qualifications for her position. Furthermore, all of the complaints were submitted by Schwartz, the person accused of the discriminatory conduct. While there was one complaint submitted by Sherrill, the two women were in fact competing for the same position within Raval Lace. Thus Sherrill's complaint must be viewed with some skepticism. The two warnings Mitchell received from Mahe, must also be viewed critically because they resulted from complaints submitted by Schwartz and Sherrill.
Mitchell has met her burden of proving the existence of factual issues demonstrating that the stated reasons for the adverse employment action were not its true reasons, but were merely a pretext for discrimination.
Title VII Retaliatory Discharge
To establish a prima facie case of retaliation under Title VII, the employee must demonstrate that (i) the employee was engaged in an activity protected under Title VII, (ii) the employer was aware of the plaintiff's participation in the protected activity, (iii) the employee suffered adverse employment decisions and (iv) there was a causal connection between the employee's protected activity and the adverse action taken by the employer. The requisite causal connection may be established if a retaliatory motive played a part in the adverse employment actions, even if it was not the sole cause. Burrell, 894 F. Supp. at 758, 759 (citing Tomka 66 F.3d at 1308).
In the present case, Mitchell clearly satisfies the first and third prongs of the prima facie test. Mitchell was engaged in a protected activity on April 27, 1993 when she filed a complaint with the Institute for Mediation and Conflict Resolution and when she had an officer serve a summons upon Fab that same day. Mitchell suffered an adverse employment decision when Fab terminated her employment on May 4, 1993, thus meeting the third prong of the test. As for the second prong, it is well established that filing a formal agency complaint such as the one filed by Mitchell with the Institute for Mediation and Conflict Resolution and serving a summons upon the defendant constituted a protected activity. Riedinger, 974 F. Supp. at 327 (filing an internal complaint is a well established protected activity); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (filing a formal complaint with an agency constitutes protected activity under Title VII); See Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 65 (2d Cir. 1992) (court found that, although plaintiff did not file a formal complaint filing an internal complaint, opposing harassment constituted protected activity under Title VII). Fab was informed that Mitchell was engaged in a protected activity when they were served with the summons for the mediation; the summons alleged harassment and interpersonal dispute as the conflict. Mitchell has also adduced sufficient evidence to establish a causal connection between the protected activity and the adverse employment action. It is undisputed that Fab terminated Mitchell seven days after the summons was served and one day after the initial scheduled mediation session. "A causal connection can be established through such indirect evidence of close proximity in time." Riedinger, 974 F. Supp. at 329; Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection established where time between the plaintiff's initial complaint and her discharge was a mere twelve days) (citing Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)).
For the reasons stated above, defendants' motion for summary judgment is granted as to the liability of individual defendants and otherwise denied.
It is so ordered.
New York, N. Y.
January 9, 1998
ROBERT W. SWEET