a matter of law, rise to the level of sexual harassment. As set
forth below, because genuine issues of fact exist for trial,
including whether a reasonable person in plaintiffs position
would have found Yturbide's conduct sufficiently severe or
pervasive to alter the conditions of her employment, defendants'
motion is denied.
A. The Facts
The facts alleged by plaintiff under oath are assumed to be
true for purposes of this motion. Together with certain
undisputed facts, they are as follows:
On October 20, 1990, plaintiff began her employment with the
Hospital as a medical assistant. In January 1996, she began
working in the Hospital's Urgi-Care Clinic. She became a member
of Local 1199 of the National Health and Human Service
Employees' Union, AFL-CIO ("Local 1199").
Beginning in November 1995, Yturbide was employed by the
Hospital as a housekeeper. His duties included cleaning various
parts of the Urgi-Care Clinic.
In January 1996, plaintiff and Yturbide were involved in an
incident in the Urgi-Care Clinic's linen closet. Yturbide
grabbed plaintiffs shoulders and started to kiss her fingers. He
stated: "I can't help it, I'm just attracted to you, you're so
beautiful, you have such a beautiful body, and that smile, I
just want to kiss that mouth." (Ramirez Dep. Tr. 51). Plaintiff
immediately reported the incident to G.O. Armond, Nurse Manager
of the Urgi-Care Clinic. (Id. at 67-68). Plaintiff
specifically directed Armond not to talk to Yturbide or anybody
else at the Hospital about the incident. (Id. at 69-72).
Plaintiff stated that her preference would be to "just monitor
the situation." (Id. at 69).
In February 1996, Yturbide grabbed plaintiffs breasts. (Id.
at 76-77). Plaintiff, however, did not report this incident to
anybody. (Id. at 78).
After this incident in February 1996 and through the beginning
of 1997, Yturbide frequently stood close to plaintiff, bumping
into her and brushing his body against her. (Id. at 79-83).
Plaintiff discussed this behavior with Armond "maybe four times"
throughout 1996 (id. at 86), and each time they decided to
deal with the situation informally and not to inform anybody
else at the Hospital. (Id. at 87).
In January or February 1997, plaintiff had another incident
with Yturbide. After she had a brief conversation with him, he
shoved her onto a metal table. (Id. at 89). She immediately
brought this to the attention of Emme Hernandez, an
administrative secretary and friend of plaintiff. (Id. at
In March 1997, plaintiff complained to Armond that she "could
not take it anymore." (Id. at 114). Armond asked plaintiff,
"Do you want me to call Human Resources?" (Id. at 122-23).
Plaintiff replied, "No, no. I'm going to call the union . . .
and we're going to try to intervene and have an internal meeting
so that we can save this man's job. . . ." (Id. at 123).
Shortly after this conversation with Armond, plaintiff and
Yturbide met with two Local 1199 representatives. (Id.; Def.
R. 56.1 ¶ 14). At this meeting, plaintiff recounted all of
Yturbide's conduct from the previous year and accused him of
sexual harassment. (Def. R. 56.1 ¶ 15). Yturbide denied
plaintiffs accusations. He explained that he had a "bad habit"
of using terms such as "sweetie" and "my love," but that he
never did anything to hurt her. (Tr. 126).
After the meeting with the Local 1199 representatives,
"[Yturbide] didn't physically touch [plaintiff] anymore." (Id.
at 359; see also id. at 138, 142-43). He did, however, as
plaintiff explained, continue
"the stalking behavior, which is going into a room, . . .
leaning by the doorway and just staring at me while I'm working.
And then if I would turn around he'd go, `Uhhh,' and he'd just
gasp and walk away exaggerated, and with an angry . . . scowl."
(Id. at 135; see also Ramirez Aff. ¶ 3).*fn2 Yturbide
stared at plaintiff in this manner "once a week." (Tr. 140). In
addition, during this time Yturbide banged loudly on garbage
containers "for no other reason than to get my attention and/or
scare me." (Ramirez Aff. ¶ 4).
At the end of 1997, plaintiff went on sick leave because of
vertigo and "pressure in [her] head, which [she] attribute[d] to
the stress from the continuous sexual harassment by Yturbide and
the Hospital's failure to effectively act upon [her]
complaints." (Id. ¶ 5). Then, in June 1998, plaintiff took an
extended disability leave "because of [her] emotional breakdown
at work caused by the overwhelming stress of the sexual
B. Prior Proceedings
In July 1998, plaintiff filed an official complaint of sexual
harassment with the Hospital's Human Resources Department
against Yturbide (Tr. 150; Def. R. 56.1 ¶ 19), and on August 3,
1998, she filed a complaint with the New York Division of Human
Rights. The EEOC issued a "Right to Sue" letter on February 16,
1999. (Compl. ¶ 6).
On April 26, 1999, plaintiff commenced this action, asserting
claims for violations of Title VII and the New York State and
New York City Human Rights Laws, and for infliction of extreme
emotional distress and assault.
This motion followed.
Defendants move for summary judgement on the grounds that the
more serious alleged incidents of harassment are time-barred,
and that the conduct within the limitations period does not rise
to the level of sexual harassment under Title VII. Because
material issues of fact exist for trial, defendants' motion is
A. Applicable Law
1. Summary Judgment Standard
Summary judgment will be granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e);
see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Accordingly, the court's task is not to "weigh the evidence and
determine the truth of the matter but [to] determine whether
there is a genuine issue for trial." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Summary judgment is inappropriate if, resolving all ambiguities
and drawing all inferences against the moving party, there
exists a dispute about a material fact "such that a reasonable
jury could return a verdict for the nonmoving party." Id. at
248-49, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see
Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.
To defeat a motion for summary judgment, however, the
nonmoving party "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Co., 475 U.S. at 586, 106 S.Ct. 1348 There is no issue for
trial unless there exists sufficient evidence in the record
favoring the party opposing summary judgment to support a jury
verdict in that party's favor. Anderson, 477 U.S. at 249-50,
106 S.Ct. 2505. As the Court held in Anderson, "if the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Id. (citations omitted).
2. Title VII Statute of Limitations
Title VII has its own statute of limitations, which provides
that, "in a case of an unlawful employment practice with respect
to which the person aggrieved has initially instituted
proceedings with a State . . . agency . . ., such charge shall
be filed within three hundred days after the alleged employment
practice occurred."*fn4 42 U.S.C. § 2000e-5(e)(1); see Quinn
v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998).
Here, plaintiff filed her discrimination claim with the New York
Division of Human Rights on August 3, 1998. (Israelashvili Aff.
Ex. K). Thus, defendants argue that all of the alleged acts of
discrimination that occurred before October 7, 1997, are
time-barred. See Butts v. City of New York, 990 F.2d 1397,
1401 (2d Cir. 1993).
Plaintiff argues that the continuing violation doctrine
applies here, and that all of the alleged acts of
discrimination, including those outside the limitations period,
therefore, should be included in her claim. The continuing
violation exception provides that:
[A] plaintiff who files a timely [administrative]
charge about a particular discriminatory act
committed in furtherance of an ongoing policy of
discrimination extends the limitations period for all
claims of discriminatory acts committed under that
policy even if those acts, standing alone, would have
been barred by the statute of limitations.
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997). "[A] continuing violation may be found `where there is
proof of specific ongoing discriminatory polices or practices,
or 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.'" Quinn, 159
F.3d at 766 (quoting Cornwell v. Robinson, 23 F.3d 694, 704
(2d Cir. 1994)). The Second Circuit has noted, however, that
"multiple incidents of discrimination, even similar ones, that
are not the result of a discriminatory policy or mechanism do
not amount to a continuing violation." Id. (quotations and
3. Hostile Environment Sexual Harassment
To prevail on a hostile environment sexual harassment claim
under Title VII, a plaintiff must establish both (1) a hostile
work environment and (2) that a basis exists for imputing the
harassing conduct to the employer. See Distasio v. Perkin Elmer
Corp., 157 F.3d 55, 62 (2d Cir. 1998). To establish a hostile
work environment, plaintiff must show that her workplace was
"permeated with `discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or pervasive to alter
the conditions of [her] employment and create an abusive working
environment.'" Howley v. Town of Stratford, 217 F.3d 141, 153
(2d Cir. 2000) (quoting Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether the
working environment was "hostile" or "abusive" depends on the
"totality of circumstances," including: "`the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes
with an employee's work performance.'" Distasio, 157 F.3d at
62 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). This
analysis is done from both a subjective and an objective
viewpoint, id., in other words, from the viewpoint of both the
plaintiff and a reasonable person.
1. The Continuing Violation Exception
The continuing violation exception may apply here for three
reasons. First, the record demonstrates that issues of fact
exist as to whether Yturbide's allegedly harassing conduct was
the result of "specific ongoing discriminatory . . . practices,"
or whether the harassment was "permitted by the [Hospital] to
continue unremedied for so long as to amount to a discriminatory
policy or practice." Specifically, Armond's knowledge of the
harassment from its beginning in January 1996 and the Hospital's
failure to take any affirmative steps to address the situation
until August 1998 constitute evidence of such a policy or
practice.*fn5 Hence, these are issues to be resolved by a
trier of fact.
Second, the record contains evidence that the untimely acts of
harassment were continuous in time with the timely acts that
plaintiff has alleged. Cf. Quinn, 159 F.3d at 766 (noting that
untimely acts will not be time-barred if they were "continuous
in time with one another or with the timely acts [plaintiff] has
alleged"). Plaintiff testified that Yturbide's harassment
continued unabated, in various forms, through 1996, 1997, and
Third, even if a jury were to find that there was no
continuing violation, "clearly established precedent dictates
that `a discriminatory act which is not made the basis for a
timely charge' can still be `relevant background evidence' in a
Title VII proceeding." Martin v. Reno, No. 96 Civ. 7646(NRB),
2000 WL 1863765, at *2 (S.D.N.Y. Dec. 19, 2000) (quoting United
Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52
L.Ed.2d 571 (1977)). Thus, the incidents that occurred before
October 7, 1997, even if time-barred, would still be relevant to
"demonstrate important context for the later allegedly
discriminatory behavior" of Yturbide. Id., at *3. The
post-October 7, 1997, acts — stalking, staring, gaping, angrily
scowling, and adamantly gazing — take on a different light when
considered in the context of a two-year pattern of behavior that
included unwelcome grabbing of her shoulders and breasts,
bumping and brushing up against her body, and inappropriate
remarks such as "I want to kiss that mouth."
Accordingly, defendants' motion to dismiss the claims as
time-barred is denied, and the Court shall consider all of the
alleged incidents in its sexual harassment analysis.
2. Hostile Environment Sexual Harassment
The alleged discriminatory conduct here occurred on a weekly
basis for more than two years. Yturbide's conduct ranged from
physical contact with plaintiff, which was clearly intentional
and sexual in nature, to, as perceived by plaintiff, threatening
staring.*fn6 Moreover, Yturbide's
conduct directly interfered with her work performance, as
evidenced by her sick leave at the end of 1997 and her
nine-month disability leave beginning in June 1998. See
Harris, 510 U.S. at 21, 114 S.Ct. 367 (stating that a victim's
"psychological well-being is, of course, relevant to determining
whether [she] actually found the environment abusive").
Accordingly, resolving all ambiguities and drawing reasonable
inferences in favor of plaintiff, a reasonable jury could find
that Yturbide's actions constituted conduct that a reasonable
person in plaintiff's position would find sufficiently severe or
pervasive to alter the conditions of her employment. See
Wahlstrom v. Metro-North Commuter R.R. Co., 89 F. Supp.2d 506,
522 (S.D.N.Y. 2000)
To impute Yturbide's harassing conduct to the Hospital,
plaintiff must demonstrate that the Hospital "either provided no
reasonable avenue of complaint or knew of the harassment but did
nothing about it." Tomka, 66 F.3d at 1305 (quoting Kotcher v.
Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir.
1992)). Clear factual issues exist as to whether the Hospital,
which had notice of plaintiffs allegations of a hostile work
environment from the very first incident, took reasonable steps
to eradicate the harassment. See Murray v. New York Univ.
College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995).
Hence, because a reasonable jury could find that Yturbide's
conduct created a hostile environment and that the Hospital
failed to meet its obligation to eradicate the harassment,
defendants' motion for summary judgment to dismiss the Title VII
claims is denied.
For the reasons stated above, defendant Hospital's motion for
summary judgement is denied. Because defendants' sole basis for
seeking dismissal of plaintiffs state and city claims is its
suggestion that the Court should decline to exercise
supplemental jurisdiction, the motion is also denied to the
extent it seeks dismissal of those claims.
The parties shall appear for a pre-trial conference on March
23, 2001, at 10 a.m., at Courtroom 11A, Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, New York, New York.