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June 18, 1999


The opinion of the court was delivered by: Sweet, District Judge.


Defendant Norrell Health Care of New York ("Norrell"), a provider of health care services, has moved under Rule 56, Fed. R.Civ.P. for summary judgment dismissing the complaint of plaintiff Paulette B. Hylton ("Hylton"), a home health aid ("HHA") who has alleged unlawful sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Based upon the findings of fact and conclusions of law set forth below, the motion of Norrell is granted and the complaint dismissed. This motion has presented somewhat customary claims arising out of a relationship which has defeated Hylton's ability to establish causality.

Prior Proceedings

Hylton, acting pro se, filed the complaint on November 13, 1997. Paragraph 8 of the complaint alleges:

  On August 8, 1995 I reported the office Norrell of
  sexual harassment [sic] insident [sic] that take
  place on the job I was working to me by the pt. son
  After reporting insident [sic] I was accuse to be the
  one harrassing [sic] The son I was retaliating
  against by not getting any assigment [sic] regularly.
  I have to tell Them I going to human Right. I was
  refuse of my W2 form for that year. I was refuse work
  reference. Reference send out was told I was fire
  from Job.

A pretrial conference was held on July 24, 1998 at which Hylton was represented by her current counsel. The parties exchanged documents and interrogatories, and depositions have been noticed and conducted. The instant motion was deemed fully submitted on March 17, 1999.

The Facts

The facts are established by the 56.1(a) Statements of the parties and their supporting materials and are not disputed except as noted below.

The Parties

Norrell is a temporary staffing agency with offices throughout the country. Norrell, sued as defendant Norrell Health Care of New York, is a subsidiary of Norrell Corporation and places temporary workers in the health care industry. One of the major positions Norrell staffs is the home health aid position.

One of Norrell's most important customers is Visiting Nursing Services ("VNS") with whom Norrell has a subcontract by which Norrell places its HHAs with VNS patients. A significant percentage of Norrell's revenue is derived from business provided by VNS. Pursuant to the agreement between Norrell and VNS, Norrell supplies qualified HHAs who are in compliance with the requirements under state law for placement with a VNS client. The patient remains a client of VNS, and VNS manages all services to the patient. Norrell is required to report any problem to VNS and to assist VNS in conducting any investigation. HHAs are instructed to report any problems with patients to Norrell, and Norrell has an on-call coordinator available twenty-four hours a day to receive inquiries from HHAs.

Hylton is a female HHA who was employed by Norrell in 1980. She has sought long term assignments to maximize her earnings to enable her children to rejoin her here in the United States. She left Norrell in 1990 to join a competitor, Health Force, because Norrell had "no case immediately" for her. Hylton was fired by Health Force in 1993 for abandoning a patient and then reapplied for a position with Norrell. Hylton completed and signed a Norrell employment application dated March 27, 1993 and attested that the information contained in the application was "true to the best of my knowledge and belief." She also acknowledged that any "misrepresentation or omission of facts called for on this application is cause for dismissal."

In response to the question on Norrell's employment application regarding the reasons for leaving Health Force, Hylton answered, "Did not have the hours to accommodate me," when, in fact, at the time she entered this information she had been fired for abandoning a patient.

Norrell Employment Practices

Norrell service coordinators place HHAs with patients. In 1995, Norrell employed approximately ten service coordinators in the office from which Hylton worked. Upon receiving an assignment, a service coordinator searches Norrell's data banks for active HHAs who might be able to fulfill the assignment. Norrell considers an HHA to be "active" if she is in compliance with all regulatory requirements and has worked for Norrell within ninety days. Upon finding an active HHA in the computer data bank, the service coordinator then attempts to contact HHAs by telephone and to assign the case to the first available HHA. Assignments for HHAs vary in length from one shift to many months, depending on the needs of the patient, the number of hours a day or week to fulfill the assignment, and the availability of the HHAs.

As service coordinators make assignments on a first come/first served basis, the reliability and availability of an HHA and his or her willingness to accept assignments are important factors in a service coordinator's decision to assign a case to an HHA.

The Sexual Harassment Incident

On August 7, 1995, the day before Hylton's assignment was to end, Ms. Alfieri's elderly son made sexually suggestive remarks to Hylton, groped her and sought to have a sexual encounter which Hylton forcibly resisted. Although Hylton decided that morning that she would not return to the Alfieri home the next day, she did not contact Norrell to report the incident or to notify a service coordinator of her decision. She finished her shift that day and the next morning informed Norrell about the incident. Norrell immediately informed VNS and found another HHA to relieve Hylton for the last shift of the Alfieri assignment. VNS sent a nurse to the Alfieri home that day to investigate the matter. Hylton did not return to the Alfieri home after making her complaint on August 8, 1995.

Hylton testified that no Norrell employee sexually harassed her and that she had never before complained of sexual harassment to Norrell.

The Relationship between the Parties

On August 10, 1995, two days after reporting her sexual harassment complaint, Hylton submitted an employment application to a competing employment agency, TemPositions. In a little more than a week after the reporting incident, Hylton worked for Norrell on 22 of the next 29 calendar days (August 16 to September 13). Sixteen of the 22 days worked involved the desirable shifts of 10 hours or more. During that period, one of the patients to whom Hylton was assigned died, thus ending her assignment.

On September 18, 1995, Hylton filed for unemployment insurance benefits. On September 20, 1995, Hylton submitted an employment application to Health Force and took a required physical the next day. On September 23, 1995, Hylton began employment for a temporary employment agency in New Jersey. Norrell called Hylton on September 27, 1995, to offer her an assignment, but Hylton rejected the offer.

On October 5, 1995, Hylton went for in-service training with her former employer, Health Force. A services coordinator from Norrell called Hylton on October 9, 1995 to offer her another assignment which Hylton rejected and instead went to an orientation session for Health Force. On October 12, 1995, Hylton accepted an assignment from Norrell and worked a 16 hour shift until the patient died the next day.

On October 16, 1995, Hylton commenced full-time employment (Monday to Friday) at a group home for TemPositions. At the same time, she accepted Saturday and Sunday assignments from Norrell for the weekend of October 21 and 22. Norrell offered her an assignment for October 23, 1995 but Hylton rejected that offer because it conflicted with her TemPositions employment. Norrell service coordinators finally stopped calling Hylton to offer her assignments because they believed due to the high frequency of rejected assignments Hylton was no longer interested in working for Norrell.

A "time-line" summary of Hylton's employment activities from August 8, 1995 to October 23, 1995, is as follows:

  August 8, 1995          Plaintiff scheduled to work, calls
                          off, reports incident.
  August 10, 1995         Plaintiff submits employment application

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