Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PETROSKY v. NEW YORK ST. DEPT. OF MTR VHCLS
November 15, 1999
SHERRY PETROSKY, PLAINTIFF,
NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES; WILLIAM ACHCET; KENNETH "SKIP" DWYER; MELVYN MILNER; DWIGHT SCHWABROW; DAVID HARRIS; AND GEORGE HASS, DEFENDANTS.
The opinion of the court was delivered by: Homer, United States Magistrate Judge.
MEMORANDUM — DECISION AND ORDER
Plaintiff Sherry Petrosky ("Petrosky") was formerly an employee
of the New York State Department of Motor Vehicles ("DMV"). She
brings this action against that agency as well as individual
defendants William Achcet, Kenneth Dwyer, Melvyn Milner, Dwight
Schwabrow, David Harris and George Hass*fn1 who served
either as supervisors or co-workers of Petrosky at DMV. Her
amended complaint (Docket No. 29)*fn2 asserts seven separate
causes of action for discrimination as follows:
Cause of Legal Authority Description
1 Title VII of the Civil Rights Sex discrimination
Act of 1964, 42 U.S.C. § 2000e
et seq. ("Title VII")
2 Title VII Retaliation
3 Americans With Disabilities Disability
Act, 42 U.S.C. § 12101 et discrimination
4 42 U.S.C. § 1983 and the Equal Sex and disability
Protection Clause of the discrimination
5 New York Human rights Law, Sex discrimination
N.Y.Exec.Law § 296 et seq.
6 HRL Retaliation
7 HRL Disability
Petrosky seeks compensatory and punitive damages.
On a motion for summary judgment, a court must view the facts
in the light most favorable to the non-movant. Joyce v.
Curtiss-Wright Corp., 171 F.3d 130, 133 (2d Cir. 1999). For
purposes of the instant motion then, the facts alleged by
Petrosky are accepted as true.
A. Petrosky's Employment with DMV
Petrosky began work for DMV in August 1981 as a Motor Vehicle
Investigator with DMV's Office of Field Investigation ("OFI").
Petrosky Aff. (Docket No. 50), ¶¶ 2 & 5. She was initially
assigned to OFI's Albany office. Id. at ¶ 5. Her work as an
investigator included "investigating license, registration and
insurance fraud and odometer rollbacks and doing examinations
of motor vehicles." Id. In the winter of 1986, Petrosky was
reassigned to DMV's central office in Albany. Id. at ¶ 36.
She remained there until the fall of 1987 when she returned to
the OFI garage. Id. Her work as an investigator continued
until May 18, 1994 when she took sick leave. Id. at ¶ 90.
Petrosky's employment was terminated by DMV effective June 14,
1995. Id. at ¶ 100.
B. Facts Relating to Gender Claim
The OFI office in Albany included an open area for vehicle
inspections, an individual office for the supervisor and an
office which was shared by the investigators, each of whom had
their own desk. The office had a bulletin board and was
adjacent to bathrooms jointly shared by all investigators, male
and female. Petrosky Aff., ¶ 6. When she began here employment,
Petrosky was told that her coworkers, all of whom were male,
used foul language which she would have to tolerate. Id. at ¶
9. The record reflects that coarse and vulgar language was a
regular part of Albany's OFI garage. Much of the language used
was sexually explicit. Id. at ¶ 15. Petrosky recites at
length the use of "vulgar, lewd and offensive language" (id.)
to discuss women (id. at ¶ 21) sex (Milner Dep. (Docket No.
52), p. 159) and her body parts (Petrosky Aff., ¶ 16)*fn3 On
other occasions, though the language of her coworkers was not
directed at her. Petrosky nonetheless heard it as a result of
the small confines in which the investigators worked. Petrosky
Aff., ¶ 15.
As noted, employees at Albany's garage shared a unisex
bathroom. The lock on the door was broken. Id. at ¶ 17.
Petrosky's co-workers told her she could leave the door open
when she used the bathroom and assured her that no one would
bother her. Id. She was also told that she could use the
shower and that her fellow investigators would come in and soap
her up. Id. There was a pinup of a naked woman in the
bathroom "all the years" Petrosky worked in Albany and
magazines with pictures of nude woman were in the bathroom as
well. Id. Such magazines were also found regularly in the
investigators; office. Id. at ¶ 18. Posters of nude or
scantily clad women were located in the lockers of Petrosky's
fellow investigators. Id. The lockers were frequently left
open with the pictures readily in view. Id. Greeting cards
containing sexually suggestive or explicit messages were often
placed on Petrosky's desk or posted on the office bulletin
board. Id. at ¶ 19 & Ex. A. On one occasion, a Polaroid
picture was taken of Petrosky while she was underneath a car
conducting an inspection. The picture, which showed only the
lower half of her body, was placed on the bulletin board with
the caption "OK guys I'm ready" written below it. Id. at ¶ 33
& Ex. C.
In October 1994, Petrosky remained on sick leave but was called
into work by Milner for the purpose of cleaning out her
personal belongings. Id. at ¶ 92.*fn4 While she was there,
Milner asked Petrosky where her handcuffs were. When she could
not find them, Milner stated, "Don't kid me. I know that you
and Jack [Petrosky's husband] have them hanging on your bedpost
at home." Id. at ¶ 94. Milner then pulled Petrosky's
handcuffs out of his desk. Id.
C. Facts Relating to Disability Claim
In July 1987, Petrosky was diagnosed with Type II diabetes
mellitus or brittle diabetes. Petrosky Aff., ¶ 39. Her doctor
informed her that this type of diabetes usually appears in
older individuals but that it may be induced earlier by stress.
Id. She is treated with insulin but also is required to eat
at regular intervals and take periodic breaks to manage her
condition properly. Id. at ¶ 40. During her employment,
Petrosky made four requests for reduced work hours. Id. at ¶
41. The requests were made to permit her to take the structured
breaks she needed and to avoid overtime work which would alter
her schedule. Id. According to Petrosky, from September 17
through November 12, 1987, her work hours were reduced by
thirty percent. From November 12, 1987 through April 1, 1988,
her hours were reduced twenty percent and she was not required
to undertake overnight travel. She was assigned light duty from
January 22 through April 1, 1990. However, on May 6, 1993, her
hours were reduced twenty percent and Petrosky was excused from
overnight travel. Id.
Despite the reduced work hours, Petrosky actually faced a
heavier workload following her diabetes diagnosis. Id. at ¶¶
42, 58 & 70. The added workload was the result of increased
paperwork assignments and additional training duties. Id. at
¶¶ 43-44 & 70-71. At times the increased workload was such that
Petrosky was unable to take any breaks or eat lunch. Id. at ¶
71. Petrosky was also the subject of derogatory comments and
complaints from co-workers who contended that they were
required to do more work because of Petrosky's illness. See,
e.g., id. at ¶¶ 43 & 52.
In March 1993, when Petrosky requested reduced hours, two of
her supervisors, Achcet and Dwyer, complained about her
request. Id. at ¶ 58. After that request, Petrosky was
offered a clerical position at DMV's central office. Id. at ¶
60. The job offer was made in a threatening manner. In
particular, the suggestion was made that her diabetes raised
questions about her ability to drive a state vehicle and that
defendants would be in a better position to "watch" Petrosky at
the central office. Id. at ¶ 61.
In September 1994, Petrosky was offered a Senior Investigator
job. Id. at ¶ 90. Petrosky was told that the position
required extensive travel to New York City which she indicated
she would accept. Id. at ¶ 91. Dwyer, her interviewer, was
surprised by this statement, had assumed she would not accept
any job which required travel and had offered her the position
simply to give the appearance that DMV was attempting to
accommodate Petrosky. Id. When he learned that travel was
acceptable, Dwyer administered an oral test to Petrosky,
although no other applicant was administered a similar test.
Id. at ¶ 91.
II. Summary Judgment Standard
"Summary judgment . . . is appropriate only where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law." Hunt v. Cromartie,
526 U.S. 541, 119 S.Ct. 1545, 1550, 143 L.Ed.2d 731 (1999) (citations
omitted); see also Fed.R.Civ.P. 56(c). The moving party bears
the burden of demonstrating that no genuine issue of material
fact exists. Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.
1997). Once the movant has come forward with sufficient
evidence in support of the motion for summary judgment, the
opposing party must "set forth specific facts showing that
there is a genuine issue for trial" and cannot rest on "mere
allegations or denials" of the facts asserted by the movant.
Fed.R.Civ.P. 56(e); Rexnord Holdings, Inc. v. Bidermann,
21 F.3d 522, 525-26 (2d Cir. 1994).
The trial court must resolve all ambiguities and draw all
reasonable inferences in favor of the non-movant. Grain
Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir.
1998); see also Eastway Constr. Corp. v. City of N.Y.,
762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the non-movant
`will have his allegations taken as true, and will receive the
benefit of the doubt when his assertions conflict with those of
the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.
1996) (citations omitted).
When summary judgment is sought in gender discrimination cases,
the Second Circuit has directed courts to consider such motions
with extra caution. See generally Gallagher v. Delaney,
139 F.3d 338, 342-43 (2d Cir. 1998). This is due in large measure
to concerns about the rapidity with which notions of what
constitutes sexual harassment are evolving and the fact
sensitive nature of that analysis as it relates to issues of
intent and state of mind. Id.; Dister v. Continental Group,
Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) When appropriate,
however, summary judgment "applies no less to Title VII cases
than to commercial cases or other areas of litigation."
Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir.
III. Statute of Limitations
Defendants make the threshold argument that virtually all of
the events underlying Petrosky's Title VII and ADA claims are
1. 300 Day Limitation Period
Title VII generally requires that an employee alleging
workplace discrimination file a discrimination charge with the
Equal Employment Opportunity Commission (EEOC) within 180 days
of the allegedly unlawful conduct. 42 U.S.C. § 2000e-5(e)(1);
see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765
(2d Cir. 1998). However, "[a]n employment discrimination claim
must be filed with the EEOC within 300 days of the alleged
discrimination in a state, like New York, with a fair
employment agency." Pikulin v. City Univ. of N.Y.,
176 F.3d 598, 599 (2d Cir. 1999). It is not disputed that the 300 day
period applies here. This period acts
as a statute of limitations, not a prerequisite to the exercise
of jurisdiction. Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Funk v.
F & K Supply, Inc., 43 F. Supp.2d 205, 213 (N.D.N.Y. 1999)
(McAvoy, C.J.) (citing Zipes, 455 U.S. at 393, 102 S.Ct.
1127; Quinn, 159 F.3d at 765).
Petrosky filed an employment discrimination charge with the
EEOC on March 20, 1995. Docket No. 46, Ex. B. Therefore, only
those incidents of allegedly discriminatory conduct that
occurred on or after May 23, 1994 are timely. The record is
clear that only one incident that is arguably gender related
occurred after that date. However, as a limitation period, the
300 day period is subject to certain exceptions. Farrell v.
State of N.Y., 946 F. Supp. 185, 192 (N.D.N.Y. 1996) (McAvoy,
C.J.); Choi v. Chemical Bank, 939 F. Supp. 304, 311 (S.D.N Y
1996). Indeed, Petrosky does not contend that a standard other
than the 300 day rule applies here or that more than one
instance of harassment occurred within that period. Instead,
she seeks to shelter the pre-May 1994 incidents under the
protection of an exception to the statute of limitations known
as the continuing violation doctrine.
2. The Continuing Violation Doctrine
"The continuing violation doctrine delays the point at which
the statute of limitations begins to run. When a plaintiff
experiences a `continuous practice and policy of discrimination
. . . the commencement of the statute of limitations period may
be delayed until the last discriminatory act in furtherance of
it.'" Jaghory v. New York State Dep't of Educ., 131 F.3d 326,
331 (2d Cir. 1997) (quoting Cornwell v. Robinson,
23 F.3d 694, 703 (2d Cir. 1994)); see also Quinn, 159 F.3d at 765-66.
The doctrine is a "limited exception" to the statute of
limitations. Youssef v. M. Rosenblatt & Son, Inc., No.
91-Civ.-5063, 1992 WL 116633, at *3 (S.D.N.Y. May 18, 1992);
Scott v. Federal Reserve Bank of N.Y., 704 F. Supp. 441, 450
The continuing violation doctrine is disfavored in this
circuit. See, e.g., Fitzgerald v. Henderson, 36 F. Supp.2d 490,
501 (N.D.N.Y. 1998) (McAvoy, C.J.) (citing cases);
Ryduchowski v. Port Auth. of N.Y. & N.J., No. 96-CV-5589,
1998 WL 812633, at *5 (E.D.N.Y. Nov. 19, 1998); Sharkey v.
Lasmo, 992 F. Supp. 321, 334 (S.D.N.Y. 1998); Samimy v.
Cornell Univ., 961 F. Supp. 489, 494 (W.D.N.Y. 1997). It, in
fact, is applicable only under the most "compelling
circumstances." Amin v. Quad/Graphics, Inc., 929 F. Supp. 73,
80 (N.D.N.Y. 1996); see also McNight v. Dormitory Auth. of the
State of N.Y., 995 F. Supp. 70, 79 (N.D.N.Y. 1998) (McAvoy,
C.J.); Ryduchowski, 1998 WL 812633, at *5; Nicholas v.
Nynex, Inc., 974 F. Supp. 261, 266 (S.D.N.Y. 1997); Samimy,
961 F. Supp. at 494.
A continuing violation most commonly exists when
"discriminatory acts [are] committed under an ongoing policy of
discrimination." Annis v. County of Westchester,
136 F.3d 239, 246 (2d Cir. 1998). A continuing violation also may be
shown "where specific and related instances of discrimination
are permitted by the employer to continue unremedied for so
long as to amount to a discriminatory policy or practice."
Cornwell, 23 F.3d at 704; see also Alfano v. Costello,
940 F. Supp. 459, 470 (N.D.N.Y. 1996) (Pooler, J.). Petrosky
contends here that she was subjected to a fifteen year pattern
of sexually harassing behavior of which DMV was fully aware,
but about which it took no remedial action. She bears the
burden of demonstrating that the doctrine applies on these
facts. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1303
(8th Cir. 1997), cert. denied sub nom. Oglebay Norton Co. v.
Jenson, ___ U.S. ___, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998);
Dargento v. Bally's Holiday Fitness Ctrs., 990 F. Supp. 186,
196 (W.D.N.Y. 1997); Williams v. Borough of Manhattan
Community College, No. 94-Civ.-4304,
1995 WL 495499, at *2 (S.D.N.Y. Aug. 18, 1995).
While the continuing violation doctrine is now well
established, courts continue to wrestle with its application.
See, e.g., Rivera v. Puerto Rican Home Attendants Serv.,
Inc., 930 F. Supp. 124, 130 (S.D.N.Y. 1996); see also Ramona
L. Paetzold & Anne M. O'Leary-Kelly, Continuing Violations and
Hostile Environment Sexual Harassment: When is Enough,
Enough?, 31 Am.Bus.L.J. 365, 382 (1993) (calling doctrine "one
of the most confusing and inconsistently applied developments
in employment discrimination law"). Indeed, while recognizing
the availability of the doctrine in discrimination cases, the
Second Circuit has not been "clear as to the criteria that
determine when pre-limitation discriminatory acts cross the
line from being unfortunate events in history which have no
present legal consequences to being elements in a continuing
violation." Johnson v. Nyack Hosp., 891 F. Supp. 155, 163
(S.D.N.Y. 1995), aff'd, 86 F.3d 8 (2d Cir. 1996) (internal
In Berry v. Board of Supervisors of La. State Univ.,
715 F.2d 971 (5th Cir. 1983), the Fifth Circuit offered what to date
constitutes the most comprehensive and specific standard for
determining when a continuing violation has been established.
Berry articulated three factors which, though not exhaustive,
provide a focus for the issue.
The first is subject matter. Do the alleged acts involve the
same type of discrimination, tending to connect them in a
continuing violation? The second is frequency. Are the alleged
acts recurring (e.g., a biweekly paycheck) or more in the
nature of an isolated work assignment or employment decision?
The third factor, perhaps of most importance, is degree of
permanence. Does the act have the degree of permanence which
should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee
that the continued existence of the adverse consequences of the
act is to be expected without being dependent on a continuing
intent to discriminate?
While the Second Circuit has never passed on its applicability
here, Berry has been followed in the district courts of this
circuit. See, e.g., Brown v. Middaugh, 41 F. Supp.2d 172,
181-82 (N.D.N.Y. 1999) (Munson, J.) (citing cases); Dodson v.
The N.Y. Times Co., No. 97-Civ.-3838, 1998 WL 702277, at *3-4
(S.D.N.Y. Oct. 7, 1998); Detrick v. H & E Machinery, Inc.,
934 F. Supp. 63, 67 (W.D.N.Y. 1996). At least two circuits have
expressly adopted the Berry analysis as their own. Rush v.
Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997);
Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1415
(10th Cir. 1993). Two others have cited Berry with approval,
Selan v. Kiley, 969 F.2d 560, 566 (7th Cir. 1992); Sabree v.
United Bhd. of Carpenters & Joiners Local No. 33,
921 F.2d 396, 402 (1st Cir. 1990). District courts in circuits that have
not adopted Berry have likewise applied it as the primary
standard for determining the existence of a continuing
violation. See, e.g., Demuren v. Old Dominion Univ.,
33 F. Supp.2d 469, 477 (E.D.Va. 1999); Villines v. United Bhd. of
Carpenters & Joiners of Am., AFL-CIO, 999 F. Supp. 97, 102
(D.D.C. 1998); Beasley v. Alabama State Univ., 966 F. Supp. 1117,
1129 (M.D.Ala. 1997); Davis v. State of Cal. Dep't of
Corrections, No. S-93-1307, 1996 WL 271001, at *22 (E.D.Cal.
Feb. 23, 1996); Bell v. Chesapeake & Ohio Ry. Co.,
724 F. Supp. 489, 491 (E.D.Mich. 1989), aff'd, 929 F.2d 220 (6th
Cir. 1991); Caudill v. Farmland Indus., Inc., 698 F. Supp. 1476,
1482-83 (W.D.Mo. 1988), aff'd, 919 F.2d 83 (8th Cir.
1990). Berry represents a sound approach to the continuing
violation issue and will be utilized here.
The first Berry factor asks whether the allegedly
discriminatory acts "involve the
same type of discrimination." Berry, 715 F.2d at 981; Davis
v. City Univ. of N.Y., No. 94-Civ.-7277, 1996 WL 243256, at
*11 (S.D.N.Y. May 9, 1996). Existing Second Circuit authority
would appear to suggest, however, that this factor should be
given only limited weight. "[M]ultiple incidents of
discrimination, even similar ones, that are not the result of
a discriminatory policy or mechanism do not amount to a
continuing violation." Lambert v. Genesee Hosp., 10 F.3d 46,
53 (2d Cir. 1993) (emphasis added).
The vast majority of the conduct alleged by Petrosky is
undeniably related. Most of the harassing conduct of which she
complains was overtly sexual in content. See Part I(B)
supra.*fn5 Often repeated sexually explicit remarks and
gestures constitute related conduct for purposes of Berry.
White v. Midwest Office Technology, Inc., 5 F. Supp.2d 936,
943-44 (D.Kan. 1998). Petrosky has alleged such conduct. Thus,
the similarity of the conduct here favors finding a ...