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November 15, 1999


The opinion of the court was delivered by: Homer, United States Magistrate Judge.


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
            seq. ("ADA")
    4       42 U.S.C. § 1983 and the Equal  Sex and disability
            Protection Clause of the        discrimination
            Fourteenth Amendment
    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.

I. Background

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 1992, the job description for OFI investigators changed to require firearms training. Id. at ¶ 78. While current investigators, such as Petrosky, were covered by a "grandfather" clause that did not require them to qualify with a weapon, id., Petrosky sought to receive the training because she believed it would be necessary for any promotion. Id. at ¶ 79. Harris was then the range officer and when Petrosky spoke with him about the training, he refused to permit her to use the range and indicated that he would not aid her to be trained elsewhere. Id. at ¶ 80.

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. 1998).

III. Statute of Limitations

Defendants make the threshold argument that virtually all of the events underlying Petrosky's Title VII and ADA claims are untimely.

A. Title VII

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 (S.D.N.Y. 1989).

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 quotation omitted).

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?

Id. at 981.

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.

a. Relatedness

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 ...

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