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May 11, 1999


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


Plaintiff Wilma Osier ("plaintiff") commenced the instant litigation pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 and 1991 ("Title VII"), 42 U.S.C. § 2000e-2, claiming that she is the victim of hostile work environment sexual discrimination, that she was treated differently than male employees because of her sex, and she was retaliated against for making complaints of sexual discrimination. Presently before the Court are defendants' motions pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.


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

Plaintiff began working for the Defendant Broome County (the "County") as a janitor in the Building and Grounds Division of the County Department of Public Works. According to plaintiff, she is the only female in her department. Comp., at ¶ 8. During her employment with the County, she had received satisfactory performance and attendance evaluations. Comp., at ¶ 7. Beginning in approximately July 1988, plaintiff alleges that she was the subject of a "continuing pattern of complaints, misconduct charges and incidents of sexual harassment because of her sex." Comp., at ¶ 8. Specifically, in her Complaint, plaintiff alleges the following incidents of sexual discrimination: (1) in the early 1990s, plaintiff found a pornographic picture and a condom in her locker, and another pornographic picture was handed to her, Comp., at ¶ 9; (2) in March 1993, plaintiff's supervisor. Dorson Russell ("Russell"), used his key to open the door to a bathroom that plaintiff was using, Comp., at ¶ 10; (3) plaintiff's work performance was more closely scrutinized and criticized than male employees and her supervisor solicited negative feedback on her work performance, Comp., at ¶¶ 11-12; and (4) plaintiff was served with misconduct charges on April 3, 1992, February 17, 1993, April 16, 1993, February 14, 1995, February 2, 1996, April 4, 1996, July 9, 1996 and September 9, 1996, and no male employee has ever been the subject to as many misconduct charges, Comp., at ¶¶ 13-14. In her answers to interrogatories, plaintiff listed other instances of alleged sexual discrimination as follows: (1) an incident in 1988 or 1989 where Russell kissed her in an elevator; (2) in 1989 or 1990, plaintiff sat in a chair in the break room that fell over because it was missing a caster; (3) Jim Fox, a co-worker, pushed her chair next to Russell: (4) plaintiffs co-workers routinely told dirty jokes in her presence; (5) Russell threw torn up pieces of paper on the ground and made plaintiff clean them up; (6) plaintiff was exposed to poison ivy and defendants failed to remedy it; (7) in 1993, co-worker Tom Quanta ("Quanta")*fn1 exposed his buttocks to plaintiff; (8) in the early 1990s, Quanta gave plaintiff a picture of a man dressed only in a pair of briefs "with a large bulge in the front of the briefs where the man's penis was located;" (9) from 1996-1998 Quanta made sexually suggestive comments to plaintiff; (10) Quanta cornered plaintiff in the corner with a cart; (11) Quanta placed a "Men Only" sign on the shop door; (12) Quanta tailgated plaintiff in his car: (13) Quanta stuffed a rag in plaintiff's mouth; (14) the County transferred Quanta to the same facility in which plaintiff was working; (15) co-worker Ken Sprague was advised by Leroy Dakin ("Dakin") not to talk to plaintiff or "he would go down the drain like her;" (16) plaintiff was repeatedly accused of misconduct and wrongdoing; and (17) Defendant Patrick Brennan ("Brennan") deducted three vacation days from plaintiff on the ground that previously authorized bereavement leave was improperly given. See Plaintiff's Response to Interrogs., at pp. 2-7.

On September 11, 1992, plaintiff filed a charge of discrimination with the State Division of Human Rights ("DHR") alleging that she had been "subjected to incidents of sexual harassment as the only female employee in my area." The charge specifically stated that:

  I[] firmly believe that my work performance has been more
  closely scrutinized and criticized than that of male
  co-workers. Male employees receive verbal warnings for serious
  infractions or performance related issues. I am given written
  warnings for minor problems, and served with formal
  disciplinary charges for no legitimate reason. . . . The
  [County] has been timing me on my work assignments, and
  apparently keeping a log of my activities. On information and
  belief, the [County] has sought negative comments on my
  performance from workers in the areas I am assigned to clean.

Defendants' Ex. "F" After investigation, the DHR concluded that plaintiff's allegation of sexual discrimination was without merit. In particular, the DHR's "[i]nvestigation revealed that [plaintiff] had received prior counseling for performance related issues, before being served with formal charges of misconduct in 4/92. Investigation revealed that an agreement was reached to resolve the charge. Investigation revealed that all employees are subject to progressive discipline." Defendants' Ex. "F".

On April 11, 1994, plaintiff filed another charge of discrimination with the DHR. In that charge, plaintiff alleged that the County was retaliating against her for having filed the September 1992 charge of discrimination. Plaintiff specifically alleged that:

  My supervisor, Dorson Russell, is constantly watching me, and
  following me on my work rounds. He questions people in my
  building about my performance, and tries to elicit complaints
  about my work. On March 8, 1993, Mr. Russell even used a key to
  open the door to the bathroom that I was using. . . . I do not
  believe that he treats the other employees under his
  supervision in the same manner. . . . My supervisors also have
  tried to force me to use the bathroom in the shop which is used
  by about 23 males. . . . After much discussion, they have given
  me a written list of bathrooms which I am allowed to use. Since
  filing my initial discrimination complaint in September 1992, I

  have been served with two unjustified charges of alleged
  misconduct. . . . I was suspended and returned to work . . . at
  a different location.

Defendants' Ex. "F".

The DHR again investigated the matter and, on January 29, 1996, concluded that "there is NO PROBABLE CAUSE to believe that the [County] has engaged in or is engaging in the unlawful discriminatory practice complained of." Id. (emphasis in original). Plaintiff pursued the matter with the EEOC which, by determination dated September 10, 1996, concurred with the findings of the DHR.

On December 11, 1996, plaintiff commenced the instant litigation asserting claims pursuant to 42 U.S.C. § 1983 and Title VII alleging that she was the victim of a hostile work environment, that she was treated differently than male janitors, and that she was retaliated against for having filed complaints of discrimination. Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.


A. Local Rule Practice

Before addressing the merits of defendants' motion, the Court must regretfully address what has become a repeated failure by attorneys to comply with the clear mandates of Local Rules of the Northern District of New York. There simply are too many instances where attorneys take it upon themselves to either ignore or modify the Local Rules as they see fit. The Local Rules are not suggestions, but impose procedural requirements upon parties litigating in this District. See, e.g., Riley v. Town of Bethlehem, 5 F. Supp.2d 92, 93 (N.D.N.Y. 1998). To reinforce the point that the rules are mandatory, they themselves make it clear that "[f]ailure of any attorney or of a party to comply with any provision of these Rules . . . shall be a ground for imposition of sanctions." N.D.N.Y. L.R. 1.1(d).

Perhaps the most abused Rule is 7.1(a)(3) (formerly Rule 7.1(f)), which requires a motion for summary judgment to contain a Statement of Material Facts with specific citations to the record where the facts are established. A similar obligation is placed upon the non-movant who "shall file a response to the Statement of Material Facts . . . [setting] forth a specific citation to the record where the factual issue arises." N.D.N.Y. L.R. 7.1(a)(3). This is not a complex procedural requirement with which to comply, but a simple, straightforward requirement designed "to force litigants to focus sharply on the specific factual issues in dispute," and to enable the Court to "move immediately to the gravamen of the case." Riley, 5 F. Supp.2d at 93.

Here, defendants properly submitted a Rule 7.1(a)(3) statement with citations to the record. In response, plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record. The consequence for plaintiff's disregard of this Rule is simple — "[a]ny fact set forth in [defendants'] Statement of Material Facts shall be deemed admitted." N.D.N.Y. L.R. 7.1(a)(3); see Nicholson v. Doe, 185 F.R.D. 134, 135, 1 (N.D.N.Y. 1999); DeMar v. Car-Freshner Corp., 1999 WL 34973, at *1 (N.D.N.Y. Jan.14, 1999); TSI Energy, Inc. v. Stewart and Stevenson Operations, Inc., 1998 WL 903629, at * 1 n. 1 (Dec. 23, 1998); Costello v. Norton, 1998 WL 743710, at *1 n. 2 (N.D.N.Y. Oct.21, 1998); Squair v. O'Brien & Gere Engineers, Inc., 1998 WL 566773, at *1 n. 2 (N.D.N.Y. Aug.31, 1998).

B. 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), see BellSouth Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996). With this standard in mind, the Court will now address defendants' motion for summary judgment.

C. Whether Plaintiff's Claims are Timely

Defendants first move to dismiss several of plaintiff's claims on the ground that they are time barred. Specifically, defendants claim that, under Title VII, any conduct occurring prior to November 16, 1991 (300 days prior to the filing of the September 11, 1992 charge) and any alleged retaliation occurring prior to June 17, 1993 (300 days prior to the filing of the April 13, 1994 charge) are precluded pursuant to 42 U.S.C. § 2000e-5(e). Defendants similarly argue that any conduct occurring prior to December 11, 1993 (three years before plaintiff filed her Complaint) may not be considered in connection with their claim pursuant to 42 U.S.C. § 1983.

Plaintiff responds that she is the victim of specific ongoing discriminatory practices or policies and that the County permitted specific, related instances of discrimination to go unremedied during this entire period. Accordingly, ...

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