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.
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
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.
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
In 1995, Hylton was assigned to a VNS patient, Florence
Alfieri, for a five month period, which was as long an assignment
as Hylton had while employed at Norrell.
Ms. Alfieri was a frail, elderly patient in a wheelchair who,
according to Hylton, "needed care." Hylton now alleges that Ms.
Alfieri's elderly son made sexually suggestive comments to her
prior to August 7, although on deposition she stated the first
such conversation took place on August 7, 1995. She did not
report to Norrell concerning these alleged conversations prior to
August 7. On August 4, 1995, another HHA attending Ms. Alfieri
complained to a Norrell coordinator about sexual harassment by
the son. Hylton was asked that same day if she had any problems
with the son and answered that she did not.
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
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
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
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