United States District Court, Northern District of New York
October 9, 2001
GAIL BECKER, PLAINTIFF,
ULSTER COUNTY (NEW YORK); THOMAS A. COSTELLO; WANDA PROWISOR; AND PAT VASELEWSKI, DEFENDANTS.
The opinion of the court was delivered by: David R. Homer, U.S. Magistrate Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Gail Becker ("Becker") brings this action alleging sex
discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the First, Fifth and
Fourteenth Amendments to the United States Constitution under
42 U.S.C. § 1983 and 1985; the New York State Human Rights Law, N.Y.
Exec. Law § 296; and New York State Civil Service Law, N.Y. Civ.
Serv. § 75-b. Specifically, Becker alleges that her supervisors
failed to take appropriate steps to protect her after she was assaulted
by a co-worker. See Third Am. Compl. (Docket No. 19) at ¶¶ 21-47.
Becker further alleges that she was terminated in retaliation for
complaints lodged against her supervisors. Id.
Presently pending is defendants' motion for summary judgment pursuant
to Fed. R. Civ. P. 56(b). Docket Nos. 27 & 28. Becker opposes the
motion. Docket Nos. 29 & 30. For the reasons which follow, the motion
is denied in its entirety
For purposes of this motion, the facts are viewed in the light most
favorable to Becker as the non-movant. See section II(A) infra.
On October 26, 1998, Becker began work with the Ulster County Golden
Hill Health Care Center ("Golden Hill") as a probationary certified
nurse's assistant. Docket No. 27, Ex. E. On December 22, 1998 at
approximately 9:45 p.m., Becker was sexually assaulted by her co-worker,
Bruce Broadhead ("Broadhead"), in a resident's bathroom. Becker Dep.
(Docket No. 27, Ex. I0) at 39, 46, 51-53. Broadhead pinned Becker
against the wall, groped her breasts and thighs, attempted to force his
hands down her pants, exposed himself and demanded sexual intercourse.
Id. at 54-62.
Following the sexual assault, Becker complained to the charge nurse,
Linda MacDonald. Id. at 65. Becker was not allowed to telephone the
police. Id. at 64-65. Becker completed her shift, id. at 64, and when she
arrived at home, she left a message for Deputy Sheriff Weaver. Id. at
68. On December 23, 1998, Deputy Weaver returned Becker's call and told
her to file an incident report with Golden Hill. Id. at 69. Becker went
to Golden Hill to file and incident report and reported the incident to
defendant Patricia Vaselewski ("Vaselewski"), Deputy Director of Clinical
Services. Id. at 76. That same day, Broadhead was suspended pending an
investigation. Id. at 86. Becker requested time off from work, but
Vaselewski required Becker to report for her scheduled afternoon shift.
Id. at 104.
On December 31, 1998, Vaselewski informed Becker that unless criminal
action was taken against Broadhead, he would not be terminated from his
position. Id. at 75, 86. On January 1, 1999, Becker filed a criminal
complaint with Deputy Weaver. Id. at 71-73. However, formal charges,
however, were not filed for several days. Id. at 76-77.
On January 2, 1999, Becker requested
time off from work to obtain an
order of protection against Broadhead. Id. at 74-75. Vaselewski refused
Becker any time off. Id. at 80. Despite Vaselewski's refusal, Becker did
not timely report to work in a failed attempt to obtain an order of
protection. Id. at 81-82. On January 4, 1999, Becker submitted her
resignation, believing Broadhead was to be reinstated. Id. at 92-93. On
January 4, 1999, defendant Wanda Prowisor ("Prowisor") returned from
vacation and terminated Broadhead's employment for interrupting Becker's
work performance. Prowisor Dep. (Docket No. 27, Ex. J) at 11-12.
On January 8, 2000, Becker sent a letter to defendant Thomas Costello
("Costello"), Ulster County Personnel Officer, complaining about her
supervisors' failure to take remedial action and Vaselewski's refusal to
permit Becker time off to seek an order of protection. Docket No. 29,
Ex. E. On January 12, 1999, Becker was ordered reinstated and was asked
to meet with Prowisor to complete needed paperwork. Id. at Ex. G.
During their meeting, Prowisor presented Becker with a written reprimand
for failure to report to work on January 2, 1999. Id. at Ex. F.
Prowisor also directed Becker to report for the 11:00 p.m. to 7:00 a.m.
shift. Id. at Ex. G. Becker attempted to find a baby-sitter for that
night but was unable to do so on such short notice. Becker Dep.at 101.
Becker immediately told Prowisor that she would be unable to work. Id.;
see also Docket No. 29 at Ex. U. Prowisor informed Becker that if she
failed to report to work, she would be terminated. Docket No. 29 at Ex.
V. Becker did not report to work and her employment was terminated on
January 13, 1999. Id. at Ex. G. This action followed.
A. 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, 119 S.Ct. 1545, 1550 (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 of 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 New York, 762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the
non-movant `will have his [or her] allegations taken as true, and will
receive the benefit of the doubt when his [or her] 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
"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).
Title VII retaliation claims are evaluated under the burden shifting
rules established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-55 (1981) and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08
(1993). On a motion for summary judgment, this standard requires Becker
first to establish a prima facie case of retaliation.
Defendants then have the burden of presenting a legitimate,
non-discriminatory justification for the employment decision. If
defendants satisfy that burden of production, Becker must produce
sufficient proof from which a reasonable juror could conclude that
defendants' proffered reason was a mere pretext for retaliation. See
Hicks, 509 U.S. at 506-08; Burdine, 450 U.S. at 252-55; McDonnell
Douglas, 411 U.S. at 802-05.
To establish a prima facie case of retaliation, Becker must demonstrate
that (1) she was engaged in protected activity of which defendants were
aware, (2) she was subjected to an adverse employment action, and (3) a
causal connection existed between the protected activity and the adverse
action. See Richardson v. New York State Dep't of Correctional Servs.,
180 F.3d 426, 443 (2d Cir. 1999); Wimmer v. Suffolk County Police Dep't,
176 F.3d 125, 134 (2d Cir. 1999). Defendants do not move for summary
judgment on the first two prongs. Thus, the only question is whether
Becker has offered evidence of a causal connection between the protected
activity and the adverse employment action. "A causal connection can be
demonstrated indirectly by showing that the protected activity was
followed closely in time by discriminatory treatment, . . . or directly
through evidence of retaliatory animus directed against a plaintiff by
the defendant." Stephens v. State Univ. of N.Y. at Buffalo,
11 F. Supp.2d 242, 250 (W.D.N.Y. 1998) (collecting cases).
Here, Becker first complained of the sexual assault on December 22,
1998. Becker Dep. at 39. On January 2, 1999, Vaselewski refused Becker
time off from work to obtain an order of protection against Broadhead.
Id. at 80. On January 8, 1999, Becker complained to Costello about her
supervisors' failure to take remedial action, including Vaselewski's
refusal to permit Becker time off from work to obtain an order of
protection. Docket No. 29 at Ex. E. Following the complaint, Becker was
ordered reinstated on January 12, 1999, but when she was unable to start
work within seven hours of official reinstatement, Becker Decl. (Docket
No. 29, Ex. B) at ¶ 3, her employment was terminated on January 13,
1999. Docket No. 29 at Ex. G. These events all occurred within a one
month time period. Such a short interval of time is sufficient to
demonstrate a causal connection with the protected activity. See, e.g.,
Becker v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998)
(reversing grant of summary judgment where plaintiff was terminated less
than two months after engaging in protected activity); Romero v. Howard
Johnson Plaza Hotel, No. 97 Civ. 3706, 1999 WL 777915, at *7 (S.D.N.Y.
Sept. 29, 1999) (finding causal connection where plaintiff was
reprimanded six weeks after engaging in protected activity); Suggs v.
Port Auth. of N.Y. & N.J., No. 97 Civ. 4026, 1999 WL 269905, at *6
(S.D.N.Y. May 4, 1999) (finding causal connection where plaintiff was
terminated six months after engaging in protected activity).
Becker further contends that she can demonstrate direct evidence of
retaliatory animus. On June 28, 2000, Becker's fiancé, a cook at Golden
Hill, was provided a letter stating that due to Becker's lawsuit, she was
no longer permitted inside Golden Hill and that if she entered the
building, the Sheriff's Department will be called. Docket No. 29 at Ex.
H. Defendants contend that Becker was banned from Golden Hill because
"[h]er presence in the kitchen . . . prompted public health
concerns . . . [and] any former employee of  Golden Hill . . . who is
terminated . . . is not permitted inside the building . . . ." Cross Aff.
(Docket No. 27, Ex. H) at ¶ 4. Becker, however, has proffered a
letter sent to her fiancé which states that the reason Becker
has been banned from Golden Hill is because of her lawsuit. Docket No.
29 at Ex. H. Such conflicting evidence can be resolved only buy the
trier of fact.
Since Becker has established a prima facie case of retaliation,
defendants must proffer a legitimate, non-discriminatory reason for the
employment actions. Defendants assert that Becker was terminated for
excessive absenteeism and refusal to work on January 2 and 12, 2000.
This suffices for defendants to meet their burden at the second step.
At the third and final step, however, Becker has offered evidence that
it was only after Becker filed her complaints regarding Prowisor and
Vaselewski's conduct that defendants decided to reprimand Becker about
her absenteeism. See Prowisor Dep. (Docket No. 27, Ex. K) at p. 78. In
fact, the record is devoid of any reprimands regarding Becker's
absenteeism prior either to the sexual assault or Becker's complaint to
Furthermore, there are questions whether defendants followed their own
attendance policy for excessive absenteeism. See Docket No. 29 at Exs. N
& O. For example, there is nothing in the record regarding whether
Becker was verbally reprimanded after her first absence within three
months. See id. at Ex. O ("If there is an absence in the first three
months, you will be spoken to."). Viewing this record in a light most
favorable to Becker, there is sufficient evidence from which a reasonable
juror could conclude that defendants' proffered reason was a mere pretext
for Becker's complaint of sexual assault and hostile work environment.
Accordingly, defendants' motion for summary judgment on claims of
retaliation is denied.
C. Hostile Work Environment
Under Title VII, a plaintiff may establish sex discrimination by
demonstrating that the workplace environment was so sexually charged that
it was abusive. See Harris v. Forklift, 510 U.S. 17, 22 (1993). Here,
Becker alleges that Broadhead's assault and defendants' failure to take
remedial action created a hostile work environment. To establish a claim
of hostile work environment, a plaintiff must establish "(1) that her
workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of her work
environment, and (2) that a specific basis exists for imputing the
conduct that created the hostile environment to the employer." Murray v.
New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995)
(internal citations omitted); see also Harris, 510 U.S. at 21; Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
Here, defendants' contend that Becker has failed to satisfy the first
element of a hostile work environment claim. Generally, a single,
isolated instance of harassment is insufficient to establish the first
element of a hostile work environment claim unless the alleged conduct
was extraordinarily severe. See Richardson, 180 F.3d at 437. The Second
Circuit has clearly established, however, "that `even a single incident
of sexual assault sufficiently alters the conditions of the victim's
employment and clearly creates an abusive work environment' under Title
VII." Id. (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.
1995)). The evidence offered by Becker, if credited, establishes an
incident sufficient by itself to support a finding that the conditions of
her employment were irrevocably altered as a result and that those
conditions became abusive. Thus, Becker's allegation that she was
sexually assaulted by Broadhead establishes the first element of a
hostile work environment claim.
Defendants also contend that Becker fails to provide a sufficient basis
for imputing liability to her employer.*fn1 Since Becker alleges that
the harassing conduct was committed by a co-worker and not a supervisor,
she must demonstrate that defendants "either provided no reasonable
avenue for complaint or knew of the harassment but did nothing about it."
Van Zant, 80 F.3d at 715 (internal quotation marks omitted); see also
Richardson, 180 F.3d at 441. The record demonstrates that Golden Hill
had a procedure for filing sexual harassment complaints. See Docket No.
27 at Ex. G. In fact, Becker does not contend that Golden Hill lacked a
sufficient procedure for filing such complaints.
Defendants also contend that their conduct was legally sufficient.
Indeed, the alleged assault took place on December 22, 1998. Becker
Dep. at 39. Broadhead was suspended on December 23, 1998, (id. at 86,
and his employment was terminated on January 4, 1999. Prowisor Dep. at
11-12. Generally, such prompt action would insulate an employer from
liability. See, e.g., Van Zant, 80 F.3d at 715 (plaintiff filed
complaint that co-worker exposed himself, an investigation began within
four days and the co-worker was terminated within ten days).
However, Becker alleges that on the night of the assault, defendants
refused to call the police. Becker Dep. at 64 & 67. Furthermore,
Vaselewski informed her that since Broadhead denied the allegations and
that there were no criminal charges pending, there was insufficient
justification to terminate Broadhead and Broadhead would be returning to
his former position. Id. at 76, 86, 92-93. On January 2, 1999, Becker
attempted to seek an order of protection against Broadhead. Vasalewski,
however, refused Becker any time off to go to court. Id. at 80. Becker
did not timely report to work in an effort to obtain an order of
protection despite Vaselewski's refusal. Id. at 81-82.
These allegations raise questions of facts and credibility whether
defendants interfered with Becker's ability to pursue criminal charges
against Broadhead and then used Becker's failure as justification for
reinstating Broadhead. Therefore, it cannot
be said as a matter of law
that defendants took appropriate remedial action.
Accordingly, defendants' motion for summary judgment on this ground is
For the foregoing reasons, it is hereby
ORDERED that defendants' motion for summary judgment is DENIED in its
IT IS SO ORDERED.