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SOWEMIMO v. D.A.O.R. SEC.

April 19, 1999

DEBRAH SOWEMIMO, PLAINTIFF,
v.
D.A.O.R. SECURITY, INC. AND CARLOS CABREJA, MOHAMMED ISLAM, MARY BARBIERI ALSO KNOWN AS LEANDRA BARBIERI, AND THE NEW YORK CITY DEPARTMENT OF HOMELESS SHELTERS, INDIVIDUALLY, AND AS AIDERS AND ABETTORS, DEFENDANTS.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

      OPINION

Defendants D.A.O.R. Security, Inc., Mohammed Islam, the New York City Department of Homeless Services and Leandra Barbieri move for summary judgment pursuant to Rule 56, F.R. Civ. P. to dismiss the complaint of plaintiff Debrah Sowemimo. Plaintiff's complaint against defendants alleges employment discrimination based on sexual harassment and retaliatory discharge under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N Y Exec. Law § 290 et seq. (the "HRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (the "NYCHRL"); racial discrimination pursuant to Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ("Section 1981"); and, negligence and intentional torts under New York law. In addition to these claims, plaintiff has also moved for leave to amend her complaint pursuant to Rule 15(a), F.R. Civ. P.

Facts

Plaintiff Debrah Sowemimo ("Sowemimo") is a woman of Nigerian national origin who was employed by defendant D.A.O.R. Security, Inc. ("D.A.O.R.") from February 1995 until October 12, 1995. Plaintiff was assigned by D.A.O.R. to work as a security guard at DHS's Park Avenue Women's Shelter. Defendants in this case include D.A.O.R., a private firm that provides security services to clients; the New York City Department of Homeless Services ("DHS"), which operated the Park Avenue Women's Shelter and utilized D.A.O.R. services; Mohammed Islam ("Islam"), Sowemimo's immediate D.A.O.R. supervisor at the Park Avenue site, and Leandra Barbieri ("Barbieri"), the Deputy Director of the Park Avenue Women's Shelter during the period of plaintiff's employment.*fn1 Reading the available evidence in the light most favorable to the plaintiff, the following events form the basis of plaintiff's complaint.

Sowemimo alleges that on more than one occasion during the period of February, 1995 through August, 1995, Mr. Islam made comments to her about her physical anatomy and the physical anatomy of other female employees (Sowemimo Dep. at 268), and propositioned her for dates and for sex (Sowemimo Dep. at 262-67). Sowemimo consistently rebuffed Islam's advances.

In August, 1995, Sowemimo was stationed in the basement of the shelter. According to her account, Islam visited her at about 2:00 AM and began to proposition her for a date as he had done before. Sowemimo refused, stating that she was married. According to Sowemimo, Islam responded, "It doesn't matter," to which she replied, "It matters to me." Islam persisted, and after continuing his propositions, Islam allegedly grabbed Sowemimo's breast while uttering sexual vulgarities. Sowemimo retaliated by slapping Islam on the face. She told Islam that his advances were unacceptable, and that if it continued she would press charges against him. According to Sowemimo, Islam said that no one would believe her story because there were no witnesses and he would not be perceived as the kind of person to commit a sexual offense.

Sowemimo claims that shortly after this incident she visited D.A.O.R.'s main office in the Bronx, New York and reported to George Burret and Carlos Cabreja, D.A.O.R. officials, that she was being sexually harassed. Sowemimo stated in her deposition that she decided to report Islam because she considered Islam's physical assault more "serious" than his prior advances. Sowemimo informed Burret and Cabreja that Islam had initiated sexual discussions with her on more than one occasion, that Islam had grabbed her breast, and that she had slapped him. She asked to see the owner of the company, but was refused. According to Sowemimo, Burret and Cabreja informed her that they would convene a meeting to include both Sowemimo and Islam, but a date for a meeting was not set.

Sowemimo also describes an incident from the summer of 1995 involving Barbieri. Sowemimo alleges that she was instructed by Barbieri to prop open exit doors on the fifth floor to ameliorate the effect of an ongoing heat wave. Sowemimo refused, citing D.A.O.R.'s strict policy against propping open exit doors. According to Sowemimo's account, Barbieri called her a "black nigger" for refusing to follow Barbieri's instructions and threatened to have Sowemimo barred from working in City-run shelters.

On September 12, 1995, Sowemimo was again posted on the fifth floor of the shelter. She claims that she was called on her radio several times by Islam and responded each time, and that her replies were overheard by Isoken Erhunmwunse, another D.A.O.R. security guard. Sometime later Sowemimo and Islam became engaged in an argument near Islam's desk on the third floor. The parties' accounts of what follow differ markedly. According to Sowemimo, Islam indicated that he was going to file a disciplinary report against her for failing to respond to his radio calls and for previously arguing with Barbieri. Sowemimo, believing that Islam was about to deliberately file a false report, grabbed the disciplinary form that was on Islam's desk. She states that Islam then punched her on the breast, and that each of the two grasped the other's shirt and yelled until additional security guards arrived to separate them. Islam maintains that Sowemimo never responded to his radio calls, left her post without authorization, and viciously attacked him without provocation by striking him with her radio and threatening to kill him.

Pursuant to its investigation, D.A.O.R. collected and reviewed statements of employees on duty at the time of the altercation. Although Barbieri was not at the shelter on September 12, 1995, D.A.O.R. also requested a report from Barbieri about the incident. Barbieri submitted a short statement consisting of accounts gleaned from other employees and recommended that Sowemimo not be assigned to any DHS facility. Sowemimo also submitted a statement describing the altercation as part of an ongoing pattern of sexual harassment. About a month after suspending Sowemimo, D.A.O.R.'s personnel manager Stephen Worrell ("Worrell") called Sowemimo to D.A.O.R. offices on October 12, 1995 and terminated her employment.

I. Plaintiff's motion for leave to amend her complaint

Pursuant to Rule 15(a), F.R. Civ. P., plaintiff moves to add to her complaint a claim under 42 U.S.C. § 1983 and a further factual basis for her retaliation claim. While leave to amend shall be freely given when justice so requires, it is within the court's discretion to refuse to grant leave for among other reasons, undue delay and unfair prejudice. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Perhaps the most common reason for denying leave to amend is that a change in pleadings will prejudice the opposing party. See generally 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane Federal Practice & Procedure: Civil 2d §§ 1487-88. "Prejudice may be found, for example, when the amendment is sought after discovery has been closed . . . Undue delay and bad faith . . . are other reasons for denying a motion to amend." Berman v. Parco, 986 F. Supp. 195, 217 (S.D.N.Y. 1997) (Wood, J.) (adopting magistrate's recommendation to deny leave to amend) (citation omitted). Plaintiff sought leave to amend after the close of discovery and after defendants moved for summary judgment. Granting plaintiff's motion for leave to amend her complaint at such a late point in the proceedings would prejudice defendants, and plaintiffs motion is therefore denied. Accordingly, the court limits its consideration to the substance of plaintiff's original complaint.

II. Standard for Summary Judgment

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R. Civ. P. The moving party has the burden to demonstrate that no genuine issue respecting any material fact exists, and all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995); Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2d Cir. 1994). On summary judgment, the trial court can not try issues of fact; it can only determine whether any genuine issues of material fact exist to be tried. Tomka, 66 F.3d at 1304. "[T]he substantive law will identify which facts are material . . . [and][o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In a discrimination case, a trial court must be cautious about granting summary judgment to an employer when the employer's intent is at issue. Because "smoking gun" evidence of discrimination is rarely available, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination. Gallo, 22 F.3d at 1224; ...


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