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PECK v. DEMOCRAT AND CHRONICLE/GANNETT NEWSPAPERS

August 15, 2000

KATHLEEN PECK, PLAINTIFF,
V.
DEMOCRAT AND CHRONICLE/GANNETT NEWSPAPERS AND JOHN DOE, ALSO KNOWN AS TONY, THE WAREHOUSE MANAGER, AS AIDER AND ABETTER, DEFENDANTS.



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

DECISION and ORDER

This employment discrimination case, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., is before the Court on the defendant newspaper's motion for summary judgment (docket # 5) filed on April 10, 2000. For the reasons stated below, the Court grants the motion.

I. Procedural Background

The plaintiff filed her complaint in this Court on December 8, 1999 alleging that she was employed as a carrier for the defendant newspaper on and off from 1996 through October 1997 and again from May of 1998 through July 30, 1998. She alleged that while at defendant newspaper's warehouse during working hours and during other work-related activities, she was "repeatedly, intentionally, and maliciously harassed by certain male co-workers and by her warehouse manager named Tony." Complaint at 2. The Equal Employment Opportunity Commission issued a "right to sue" letter to the plaintiff on October 21, 1999 without adjudicating her claims. Complaint, Exhibit B. As a first cause of action, the plaintiff alleges sexual harassment and alleges further that certain supervisory employees of the defendant newspaper failed to take corrective or remedial action to stop the harassment. As a second cause of action she alleges battery, presumably under New York common law. As a third cause of action, she alleges intentional infliction of emotional distress and as a fourth cause of action she alleges negligent infliction of emotional distress, again, presumably under New York common law.

The defendant newspaper filed an answer on January 18, 2000, denying most of the allegations underlying the plaintiff's causes of action and raising eight affirmative defenses, fourth of which was, "Defendant is not an employer of plaintiff." Answer at 3. Defendant newspaper argues in its motion that since it was not the plaintiff's employer, then Title VII does not apply.

It does not appear from the Court's review of the docket that defendant Tony, the Warehouse Manager, has appeared or answered, nor does there appear to be any motion to dismiss the case against him. Thus, all references to "the defendant" in this decision and order will refer only to the defendant newspaper, the Democrat and Chronicle or Gannett Newspapers, and not to the individual defendant, John Doe also known as Tony, the Warehouse Manager, as Aider and Abetter.

The defendant filed a statement of facts to which it contends there is no genuine issue to be tried. The plaintiff filed a statement of material facts as to which the plaintiff contends there is a genuine issue to be tried. The primary issue under consideration is whether the plaintiff is an employee of the defendant. Before reviewing the factual circumstances touching on that issue, the Court will address the appropriate legal standards.

II. Discussion

A. Summary Judgment Standard

The law on summary judgment is well settled. The Court may only grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party has met its initial obligation, to defeat a motion for summary judgment, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact, Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir. 1991), or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Fed. R.Civ.P. 56(f). Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions by the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire, Ins., 804 F.2d 9 (2d Cir. 1986).

The Court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment may not create an issue of fact by submitting an affidavit opposing a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony. Hayes v. New York City, Department of Corrections, 84 F.3d 614 (2d Cir. 1996). It is equally well settled that in diversity actions Federal Court sits and operates as if it were a State court, and must apply State substantiative law. Smith v. Bell Sports, Inc., 934 F. Supp. 70 (W.D.N Y 1996). However, although there are state law claims in this suit, none is pertinent to this motion.

B. The Plaintiff's Title VII Cause of Action

The plaintiff makes one civil rights claim for hostile environment sexual harassment. A plaintiff in a civil rights action has the burden of proof and must ultimately establish, by a preponderance of the evidence, that the defendant harassed her because of her gender. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As the Second Circuit has held,

To prevail on a hostile environment claim under Title VII the complaining employee must prove that the harassment is "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Vinson, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson, 682 F.2d at 904). The incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987). Whether the sexual harassment constitutes a Title VII violation is determined from the totality of the ...

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