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April 19, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


The three female plaintiffs herein, Edna Norton ("Norton"), Patricia Badlam ("Badlam"), and Susan McGregor ("McGregor"), commenced the instant litigation against the Defendants Reynolds Metals Company ("Reynolds") and The Aluminum Brick and Glass Workers International Union Local No. 450 (the "Union") asserting claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), New York State Human Rights Law § 296 ("HRL"), and common law causes of action for negligent hiring, retention and supervision. Plaintiff Norton also asserts a claim for defamation. Presently before the Court are motions by both defendants pursuant to FED.R.CIV.P. 56 seeking dismissal of the Complaints in their entirety.


Because this is a motion for summary judgment by the defendants, the following facts are presented in the light most favorable to plaintiffs. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

The instant litigation stems from alleged occurrences at Reynolds' St. Lawrence Reduction Plant (the "plant") in Massena, New York. Essentially, plaintiffs allege that male coworkers sexually harassed them, that they continuously complained to their supervisors to no avail, and that the Union failed to file grievances on their behalf.

A. Norton

The Union attempted to resolve Norton's complaints informally by speaking directly with Norton's coworkers and setting up meetings with Reynolds officials. The Union arranged meetings with Norton, her supervisor, Eric Prashaw; Cast House Superintendent, Terry Conroy; Plant Manager, Fred Swafford; Director of Human Resources, Les Carey; and Cast House Superintendent, Alf Maki. The Union also advised Norton to follow Reynolds' sexual harassment policy, including contacting Reynolds' EEO office at Corporate Headquarters.

Norton alleges that the Union failed to take any effective action on her behalf and that it failed to rectify a breach of the Union contract by not filing a grievance. Norton similarly contends that Reynolds did not have an effective sexual harassment policy and that it failed to take appropriate corrective action. In sum, Norton claims that she was discriminated against on the basis of her sex with respect to the terms and conditions of her employment with Reynolds and her rights and privileges as a Union member.

B. Badlam

Badlam commenced employment with Reynolds in 1989 where she worked continuously until an industrial accident on September 6, 1991. After a period of disability leave, Badlam returned to work without restriction. In February 1993, Badlam's physician again declared her disabled. On or about February 15, 1993, her physician released her to return to light-work duty with certain medical restrictions. Throughout 1992 and 1993, Badlam received workers compensation and disability payments when she was out of work.

Badlam contacted Union President Jim Peets ("Peets") for assistance in obtaining light-work duty at Reynolds. Peets apparently contacted Reynolds and was informed that no light duty positions were available.

In May 1994, Badlam underwent a functional capacity examination, the results of which indicated that her medical condition had improved. In July 1994, Badlam's attorney contacted Peets for further assistance. Peets requested that Badlam provide him with the relevant medical information regarding her restrictions so he could properly represent her interests in negotiating her return to work.

Like Norton, Badlam contends that she was continuously subjected to a hostile work environment while employed at Reynolds and was the brunt of sexual innuendo, offensive comments, crude graphic depictions, and disparate treatment by her co-workers. For example, Badlam alleges that she was constantly called a "cunt," that coworkers mocked her on account of her breasts, that a male coworker struck her in the face, that coworkers requested her to wear sexy clothing, that coworkers told her to stay home and get pregnant rather than work, and that she found a drawing of a nude women with her name on it next to an erect penis. Badlam also asserts that the Union failed to represent her on account of her gender because it did not take appropriate action to rid Reynolds of sexual harassment.

C. McGregor

McGregor began working at Reynolds in 1990. On January 1, 1993, McGregor was injured in an automobile accident and was deemed totally disabled by her personal physician until July 1994. In November 1993, McGregor was laid off due to a reduction in force, but was later recalled in accordance with the Collective Bargaining Agreement ("CBA").

At the time McGregor was recalled, she had a medical restriction limiting her to lifting thirty pounds. Because of that restriction, she could not return to work at the time of recall and was permitted to waive recall under the CBA. Thus, McGregor remained on layoff. McGregor later contacted the Union and Reynolds' Human Resources Department for assistance in obtaining light-duty work. Reynolds apparently stated that McGregor could return to the Cast House if her lifting restrictions were raised to fifty pounds. Approximately one month later, McGregor contacted her physician, who raised her lifting restrictions to forty-five pounds. Peets contacted Reynolds about finding a position that did not require lifting. Reynolds determined that it had a vacancy in the Labor Pool, which could accommodate McGregor's restrictions.

Accordingly, McGregor returned to work in the Labor Pool on August 8, 1994 until she was rendered disabled with back pain on September 27, 1994. The Union intervened on McGregor's behalf and requested that Reynolds place her in a position that could accommodate her occupational restrictions. On November 29, 1994, Reynolds provided McGregor with a temporary position sweeping the maintenance shop area. This temporary assignment ended in March 1995, when McGregor was returned to her regular position in the Labor Pool.

McGregor then filed a grievance requesting that Reynolds reevaluate her restrictions. The Union pursued the grievance to the "Third Step" of the grievance procedure outlined in the CBA. The grievance was denied because there was no longer a vacancy in maintenance. On March 31, 1995, McGregor again left work on disability.

In September 1995, McGregor filed another grievance protesting her "unlawful termination" and requesting a light duty position. The Union pursued that grievance to Step Three where, according to the Union, the grievance was denied because McGregor was not terminated and Reynolds had no vacancies available within her restrictions.

McGregor returned to work in January 1997 and was permanently assigned to a janitor position. She claims that during her employment at Reynolds she also has been subjected to a hostile work environment and was denied representation by the Union because of her sex. McGregor alleges that coworkers touched her buttocks, referred to her as "fat ass," "dumb cunt," and a "fucken bitch;" and that she repeatedly found pornography in the workplace.

Defendants now move for summary judgment seeking dismissal of the Complaints in their entirety.


A. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, judgment may be entered in favor of the moving party if "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all facts must be construed in favor of the nonmoving party. Id.; Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995). Where the moving party has supported the motion by affidavits and/or documentary evidence, the non-movant "may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [] rule [56], must set forth specific facts showing that there is a genuine issue [of material fact] for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." FED.R.CIV.P. 56(e); BellSouth Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

The Court is aware of the dangers of summary judgment in connection with a Title VII claim. "Because direct evidence of . . . discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)). "However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp, 118 F.3d at 110 (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)).

With this standard in mind, the Court will now address defendants' motions for summary judgment.

B. Reynolds' Motion for Summary Judgment

Reynolds moves for summary judgment arguing that: (1) plaintiffs failed to avail themselves of Reynolds' sexual harassment policy and complaint procedures; (2) Reynolds exercised reasonable care to prevent and correct any alleged sexual harassment; and (3) plaintiffs' complaints of harassment are non-actionable because they would be equally offensive to both sexes and, thus, plaintiffs were not singled out because of their sex. Plaintiffs respond that Reynolds' sexual harassment policy and complaint procedure is insufficient, plaintiffs repeatedly complained to Reynolds' officials who failed to take corrective action, and plaintiffs were subjected to rude, obscene, and vulgar treatment because of their sex.*fn2

Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a). Title VII is not limited to economic or tangible discrimination, but extends to "sexual harassment so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (internal quotations and citations omitted). "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986).

In the present case, plaintiffs assert a hostile work environment sexual harassment claim against defendants. To prevail on their hostile work environment claims against Reynolds, plaintiffs must demonstrate: (1) that their workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of their work environment, see Faragher, 118 S.Ct. at 2283 n. 1; and (2) that a specific basis exists for imputing the conduct that created the hostile environment to Reynolds. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); see Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996).*fn3

1. Whether Reynolds Was Permeated with Discriminatory
  Intimidation that was Sufficiently Severe or Pervasive to Alter
  the ...

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