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MITCHELL v. FAB INDUS.

January 9, 1998

ROSZINES MITCHELL, Plaintiff, against FAB INDUSTRIES INC., and in their professional capacities MARSHA COHEN, YVES MAHE, and MARSHALL SCHWARTZ, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendant Fab Industries, Inc. ("Fab") has moved for summary judgment pursuant to Rule 56 to dismiss the complaint of its former employee, plaintiff Roszines Mitchell ("Mitchell"), against Fab and three supervisors in their individual capacities for employment discrimination based on sex and religious discrimination and retaliatory discharge pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). For the reasons set forth below defendants' motion is denied in part and granted in part.

 Parties

 Mitchell is a resident of New York City.

 Fab is a domestic textile manufacturer located at 200 Madison Avenue, New York City.

 Defendant Marsha E. Cohen ("Cohen") is the Personnel Director for Fab.

 Defendant Marshall Schwartz ("Schwartz") is the Production Manager of the Raval Lace Department at Fab.

 Defendant Yves Mahe ("Mahe") is Supervisor of the Raval Lace Department at Fab.

 Prior Proceedings

 On June 7, 1993, Mitchell filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that she had been sexually harassed, subjected to religious discrimination and that she had been fired in retaliation for serving a summons upon her employer in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et. seq. ("Title VII"). On June 29, 1993, the State Division of Human Rights ("SDHR") determined that there was no probable cause to believe that the defendants engaged in the alleged discriminatory behavior and that there was insufficient evidence to support Mitchell's contention that she had been fired in retaliation for her discrimination complaint. Mitchell's complaint was filed on December 26, 1996.

 On June 5, 1996, defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. On July 25, 1996, the Court dismissed four of the plaintiff's seven claims. *fn1" Mitchell v. Fab Industries Inc., et al, 1996 U.S. Dist. LEXIS 10451, No. 96 Civ. 0095 1996 WL 417522, at *1 (S.D.N.Y. 1996). Defendants then made the instant motion for summary judgment to dismiss Mitchell's remaining three claims as barred by the statute of limitations and, alternatively, on the grounds that she has not established a prima facie case of discrimination or retaliation. The claims as against the individual defendants Cohen, Mahe and Schwartz must be dismissed as a matter of law. Oral argument was waived, and the motion was deemed fully submitted on October 1, 1997.

 From November 27, 1989 through May 4, 1993, Mitchell was employed by Fab, a manufacturer of textiles. Initially, Mitchell was assigned to work as a telex clerk in the fax department where her responsibilities involved filing and copying. Mitchell's supervisor was Cohen, head of the Personnel Department. Under Cohen, Mitchell received excellent yearly evaluations on her job performance. Based on these positive evaluations, Mitchell was approved for either a bonus or raise or both for each consecutive year from 1989 through 1991. In April 1991, Mitchell was asked to be a floater -- to split her time between two departments. During the first half of the day Mitchell continued to work as a telex clerk under the supervision of Cohen, and during the latter half of the day she worked as a data entry clerk in the Raval Lace Department under the supervision of Schwartz.

 According to Mitchell, in April 1991, two weeks after she was assigned to Raval Lace, Schwartz asked Mitchell to view a religious statue located in the office of Richard Gross ("Gross"), the Vice President of the Company. When Mitchell entered his office, she saw a statue of a man with an elongated penis. Mitchell, a licensed Pentecostal Missionary, expressed to Schwartz her dislike of the statue. Co-workers Yvette Sherrill ("Sherrill") and Nancy Phillips ("Phillips") were present during the interchange. Schwartz then inquired whether Mitchell had a boyfriend and, if she did, whether his penis was the same size. Mitchell immediately reported this incident to Gross. Gross handled the matter by telling Schwartz in Mitchell's presence that she did not like to be told to look at the statue and then said "you know she is a nice church girl." Mitchell contends that throughout that year Schwartz frequently teased Mitchell about the statue.

 In January 1992, Mitchell returned to the fax department on a full-time basis through March 1992 while renovations were taking place. Mitchell was not under Schwartz' supervision during this period, and no incidents are alleged to have occurred.

 When renovations were completed in March 1992, Mitchell returned to Raval Lace on a part-time basis. At the same time, Mitchell was in the process of being trained to fill in for Sherrill. Sherrill was preparing to go on maternity leave in May 1992. Mitchell eventually assumed Sherrill's duties as the order entry clerk and was assigned to Raval Lace full-time. The position involved new responsibilities that required Mitchell be trained on the computer. Schwartz told Mitchell that when Sherrill returned from maternity leave in the fall, Mitchell would remain the order entry clerk, and Sherrill would assume Mitchell's former position as the fax clerk. However, upon return from maternity leave in September 1992, Sherrill requested that she resume her position as order entry clerk. As a result of the confusion in job responsibility, Mahe called a meeting with Schwartz, Mitchell and Sherrill. Mahe settled the confusion by deciding that Sherrill would remain the order entry clerk and Mitchell would return to filing.

 From September through October 1992, Mitchell was on sick leave recovering from foot surgery. When Mitchell returned in October 1992, the doctor recommended that Mitchell either be placed on short-term disability, or be given assignments that did not require her to walk. Schwartz ignored the doctor's request and assigned Mitchell work that required all-day standing and walking.

 On December 11, 1992, Mitchell received her fifth work performance evaluation, this time filled out by Mahe. While the evaluation noted that "Mitchell needed to catch up a little bit," it nevertheless stated that "Mitchell did her work" and ...


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