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BOSTICK v. SUFFOLK COUNTY

March 18, 2002

THERESA C. BOSTICK PLAINTIFF(S),
V.
SUFFOLK COUNTY, SUFFOLK COUNTY DEPARTMENT OF RISK MANAGEMENT, SUFFOLK COUNTY POLICE DEPARTMENT, LOWELL SANDS, JAMES PERRETTO, SERGEANT ROBERT WARD, ARLENE COMPOSSA AND SHIRLEY DEMATTEO, ALONG WITH UNNAMED JOHN DOES AND JANE ROES, DEFENDANT(S).



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

  MEMORANDUM AND ORDER

Before this Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In this action, Theresa C. Bostick ("Plaintiff") alleged discrimination based on race and ethnicity and a pendent State law claim of intentional infliction of emotional distress. For the following reasons, Defendants' motion is granted.

BACKGROUND

I. Factual Background

A. Plaintiff's Employment at Suffolk

Plaintiff is a female of Black African descent, age forty three (43) upon commencement of this lawsuit. (Pl.'s 56.1 Stmt. ¶ 1; Compl. ¶ 23.) Plaintiff suffers from advanced stage renal disease, herniated discs in her neck, carpal tunnel syndrome in both wrists and assorted other physical ailments and as a result has been forced to miss work on several occasions. (Compl. ¶¶ 4, 26.) Plaintiff began seeing a professional counselor due to the three incidents discussed herein as well as for marriage counseling. (Dep. of Bostick at 86.) Plaintiff is currently not working as she awaits a kidney transplant. (Pl.'s Mem. Opp. Summ. J. at 1.)

Plaintiff began working for Defendants in or about 1990 as a Suffolk County Police Department Detention Attendant, in connection with which her duties included supervision of female arrestees at various Suffolk County Police Department police stations. (Pl.'s 56.1 Stmt. ¶ 2; Compl. ¶ 3.) Plaintiff was unable to perform her regular duties as a female detention attendant for the police department due to injuries sustained in the course of her employment between 1993 and 1996. (Bauccio Aff. ¶ 2; Pl.'s 56.1 Stmt. ¶ 3; Compl. ¶ 61.)

Of the approximately thirty (30) employees in the Risk Management Department, Plaintiff contends that, during the relevant time, she and only one other employee were persons of color. (Pl.'s 56.1 Stmt. ¶ 9.)

B. James Perretto Incident (August 1997)

At an office retirement party in August 1997, Defendant James Perretto stated "We have everyone here at the table. We have all the Italians. We have all the Jews and we have Theresa." (Dep. of Bostick at 36-37; Def.'s 56.1 Stmt. 17.) Plaintiff has alleged that Defendant James Perretto referred to her as a "token"; however it is undisputed that Defendant James Perretto never actually used the word "token." (Pl.'s 56.1 Stmt. ¶ 8; Dep. of Bostick at 39.)

Plaintiff complained to Phil Bauccio, the Executive Director of Risk Management and Benefits. (Pl.'s 56.1 Stmt. ¶ 10-11.) Plaintiff alleges that Phil Bauccio did not refer the incident to Patricia Grimes, the "Designee for Discrimination Complaints in Audit and Control." (Pl.'s 56.1 Stmt. ¶ 11.) Phil Bauccio called Defendant James Perretto into his office to discuss the incident. (Def.'s 56.1 Stmt. §§ 8-9; Dep. of Bostick at 41.) Defendants contend that Defendant James Perretto apologized to Plaintiff for offending her and Plaintiff stated that was a satisfactory resolution. (Def.'s 56.1 Stmt. §§ 10-11; Dep. of Bostick at 41.) In contrast, Plaintiff now contends that she found this resolution insufficient. (Pl.'s 56.1 Stmt. ¶ 12.) Viewed in its entirety, including the apology and resolution, the incident may not be claimed to be material evidence of a hostile environment.

C. Lowell Sands Incident (August 1998)

On or about August 11, 1998, Plaintiff and a summer intern by the name of Casey were discussing that a local bagel shop smelled like bleach. (Dep. of Bostick at 43; Pl.'s 56.1 Stmt. ¶ 13.) Defendant Lowell Sands stated words' to the effect of, "If you used a little bleach on your skin you would look just like us and maybe you could be [a] permanent [employee in the Risk Management Department]." (Pl.'s 56.1 Stmt. ¶ 13.)

Plaintiff alleges that she once again complained to Phil Bauccio, who once again failed to report the incident, failed to direct Plaintiff to the internal discrimination procedure, and failed to take any action. (Pl.'s 56.1 Stmt. §§ 14-17.) Plaintiff further contends that Phil Bauccio tried to dissuade her from filing a complaint through the proper formal channels. (Dep. of Bostick at 48; Pl.'s Mem. Opp. Summ. J. at 3.)

Phil Bauccio discussed the incident with Defendant Lowell Sands. (Def.'s 56.1 Stmt. §§ 14-15.) Defendant Lowell Sands apologized to Plaintiff and was eventually disciplined as discussed immediately below. (Def.'s 56.1 Stmt. ¶ 16; Dep. of Bostick at 49.)

D. Plaintiff Complains to Patricia Grimes (August 1998)

Patricia Grimes was the designated sexual harassment discrimination officer for audit and control. (Dep. of Grimes at 7.) Plaintiff alleges that it was from persons other than her supervisors that she learned that she should file a formal complaint with Patricia Grimes. (Pl.'s 56.1 Stmt. ¶ 18.) Accordingly, Plaintiff filed a formal complaint of discrimination with Patricia Grimes regarding Defendant Lowell Sands' comment. (Pl.'s 56.1 Stmt. ¶ 19.)

Patricia Grimes then investigated Plaintiffs complaint. (Def.'s 56.1 Stmt. §§ 19-20.) In so doing, Patricia Grimes spoke to Joseph Poerio, Phil Bauccio, the intern Casey's mother speaking on her daughter's behalf, Defendant Lowell Sands, Sylvia Diaz and Plaintiff. (Dep. of Grimes at 24.)

As a result of this investigation, disciplinary proceedings were initiated against Defendant Lowell Sands. (Def.'s 56.1 Stmt. ¶ 22; Dep. of Bauccio at 28.)

Again while as is the case with the first incident, the remark was certainly insensitive and improper but given the apology, the discipline of the offender, and the offer to effect the requested transfer as discussed immediately below, it does not demonstrate a hostile environment.

E. Joseph Poerio

Plaintiff alleges that in the course of processing Plaintiffs complaint about Defendant Lowell Sands, Joseph Poerio, Chief Deputy Comptroller, suggested that Plaintiff transfer to the Social Services Department because she "would feel more comfortable there because there would be more people like [her] there," specifically stating that there "would be more of [her] kind there." (Dep. of Bostick at 54.)

Patricia Grimes, who was present when Joseph Poerio allegedly made this comment to Plaintiff, recalls that Plaintiff "stated that she felt uncomfortable in the office" and said that she wanted a transfer and that Joseph Poerio suggested a possible transfer to Social Services. (Dep. of Grimes at 27-28.) Patricia Grimes stated that Joseph Poerio "felt that there was a more diverse group of people working in social services overall and that perhaps [Plaintiff] would feel more comfortable there." (Dep. of Grimes at 28.) When asked if Joseph Poerio's use of the term "more diverse" meant "more than the audit and control office that [Plaintiff] had been working in", Patricia Grimes stated that "[Joseph Poerio] used the word, I'm not certain, I assume that, but I'm not certain." (Dep. of Grimes at 28.)

F. Shirley DeMatteo's Comment (July 1999)

In or about July 1999, employees were discussing a bamboo plant on an employee's desk. Plaintiff alleges that Defendant Shirley DeMatteo stated words which in effect asked Plaintiff if "the bamboo plant [made Plaintiff] feel like [she was] in a jungle" and would it "feel more like a jungle if there were monkeys running up and down." (Pl.'s 56.1 Stmt. ¶ 21.)

Defendant Shirley DeMatteo stated that she has never heard of African American persons being referred to as "monkeys" or "jungle bunnies." (Pl.'s 56.1 Stmt. ¶ 23; Dep. of DeMatteo at 38.)

At the January 11, 2002 oral argument on this motion ("Oral Argument"), this Court was told by the Plaintiffs attorney that "monkeys" is a derogatory term applied to African Americans. Given that information, Defendant Shirley DeMatteo's comment was obviously improper to many although not a ...


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