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OSIER v. BROOME COUNTY
May 11, 1999
WILMA OSIER, PLAINTIFF,
BROOME COUNTY AND PATRICK BRENNAN IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
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.
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.
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 , 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, ...