v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Cruz, 202
F.3d at 570. Second, the plaintiff must show that the treatment of which
she complains was motivated by her gender. See Fitzgerald, 251 F.3d at
365. Third, the plaintiff must establish that "a specific basis exists
for imputing the conduct that created the hostile work environment to the
employer." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997).
See also Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
1. Hostile or Abusive Work Environment
"[C]ourts must distinguish between `merely offensive or boorish
conduct' and conduct that is sufficiently severe or pervasive as to alter
the conditions of employment." See O'Dell v. Trans World Entm't Corp.,
153 F. Supp.2d 378, 386 (S.D.N Y 2001) (quoting Cruz, 202 F.3d at 571).
"[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms
and conditions of employment." Faragher, 524 U.S. at 788. Accordingly, a
plaintiff must establish that "either a single incident [of harassment]
was extraordinarily severe, or that a series of incidents were
sufficiently continuous and concerted to have altered the conditions of
her working environment." Cruz, 202 F.3d at 570 (quotation marks
omitted). Several factors to be considered when determining whether a
workplace is hostile or abusive are: 1) the frequency of the
discriminatory conduct; 2) its severity; 3) whether it is physically
threatening or humiliating, or a mere offensive utterance; and 4) whether
it unreasonably interferes with an employee's work performance. See
Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000).
Since August 21, 1998, the primary incidents that Figueroa claims
contributed to a hostile work environment are: 1) she was threatened with
a "blanket party," where co-workers would congregate and beat her; 2)
Mike Tescano, a fellow employee, attempted to strike her with his car;
3)someone placed rotten fish under the seat of her broom; and 4) her car
was vandalized while in the Sanitation Department's parking lot.
If the incidents are physically threatening, they may be severe enough
to constitute a hostile work environment, even though they are not
frequent or pervasive. See Ferris v. Delta Airlines, Inc., 277 F.3d 128,
135-36 (2d Cir. 2001); Fitzgerald, 251 F.3d at 350-51. Here, a reasonable
jury could find that these incidents are sufficiently severe as to
constitute a hostile work environment.
2. The Treatment Must Have Been Motivated By Gender
A plaintiff must show that "one of the reasons for the harassment . . .
was that she was a woman." Galdieri-Ambrosini v. Nat'l Realty & Dev.
Corp., 136 F.3d 276, 289 (2d Cir. 1998). Figueroa claims that the dead
fish that was placed in her broom connotes an unclean and unchaste
woman, and is derogatory, intimidating, and even threatening. She goes so
far as to claim that it is tantamount to placing a burning cross on the
property of an African-American, or placing a swastika on Jewish
In addition, there is authority to support the proposition that
time-barred incidents of harassment are admissible and relevant to show
discriminatory intent. See Eaton v. American Media Operations, Inc., No.
96 Civ. 6158, 1997 WL 7670, at *5 (S.D.N.Y. Jan. 9, 1997) (holding that
time-barred sexual harassment claim was "admissible and relevant to show
[defendant's] general gender bias and therefore to prove discriminatory
intent"); see also Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291
(11th Cir. 1998) (stating that time-barred evidence may be admitted at
trial to support inference of discriminatory motive); Walden v. Georgia
Pac. Corp., 126 F.3d 506, 521 (3d Cir. 1997) (same). Thus, the Court may
consider the incidents prior to August 21, 1998, such as the condoms
Figueroa found in her gloves and sexual comments made to her, in
determining the motivation for the harassment. As such, there is
sufficient evidence that a reasonable jury could find that the hostile
work environment was motivated by Figueroa's gender.
3. Imputing the Conduct to the Employer
Figueroa must establish a basis on which to hold the Sanitation
Department liable for the conduct of its employees. See Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986). In order for Figueroa to
impute liability to the Sanitation Department, she must show that the
"employer either (1) provided no reasonable avenue for complaint or (2)
knew of the harassment but did nothing about it."*fn9 Meng v. Ipanema
Shoe Corp., 73 F. Supp.2d 392, 401 (S.D.N.Y. 1999). See also Richardson
v. New York State Dept. of Corr. Servs., 180 F.3d 426, 440 (2d Cir.
1999). There is no allegation that the Sanitation Department did not
provide a reasonable avenue for complaint. In fact, Figueroa filed
numerous complaints formally, as well as made oral complaints to her
supervisors and union representatives, over the course of her
employment. Figueroa claims that the Sanitation Department did nothing to
remedy the situation. This is disputed by the Sanitation Department.
Viewing the facts in the light most favorable to the plaintiff, a
reasonable jury could conclude that the Sanitation Department did not do
enough to remedy the situation. Because there are material issues of fact
as to the existence of a hostile sexual environment and employer
liability, plaintiff is entitled to bring her hostile work environment
claim before a jury.
Under Title VII, it is unlawful for an employer to "discharge any
individual . . . because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a). Under the
burden-shifting framework developed by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to make out a prima
facie case of discrimination, a plaintiff has the burden of showing:
1) membership in a protected class;*fn10 2) satisfactory job
performance;*fn11 3) an adverse
employment action; and 4) circumstances
giving rise to an inference of discrimination. See Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001);
Tappe v. Alliance Capital Mgmt., L.P., 01 Civ. 2068, 2001 WL 1631405,
at *6 (S.D.N.Y. Dec. 19, 2001). In a case involving the failure to
promote or rehire, a showing that the position was "ultimately filled
by a person who is not a member of the protected class" may satisfy
the fourth prong. Farias, 259 F.3d at 98 (citing Quaratino v.
Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)).
Once a plaintiff establishes a prima facie case, "a presumption of
discrimination is created and the burden of production shifts to the
defendant to articulate some legitimate, nondiscriminatory reason for the
adverse employment action or termination." Id. If the defendant meets
this burden, "the presumption drops out of the analysis," and the
plaintiff must meet the ultimate burden of proving that she was the victim
of intentional discrimination. Id.
Despite these shifting burdens, "'[t]he ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.'" Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (quoting Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1987)). "[O]nce a minimal
prima facie case is proved and the employer's nondiscriminatory
explanation has been given, the McDonnell Douglas presumptions disappear
from the case, and the governing standard is simply whether the
evidence, taken as a whole, is sufficient to support a reasonable
inference that prohibited discrimination occurred." James v. New York
Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). The court must apply a
case-by-case approach, "examining the entire record to determine whether
the plaintiff could satisfy [her] ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the
plaintiff." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001)
(quotation marks omitted).
1. Adverse Employment Actions
Adverse employment actions include "discharge, refusal to hire, refusal
to promote, demotion, reduction in pay, and reprimand." Morris v.
Lindau, 196 F.3d 102, 110 (2d Cir. 1999). The Second Circuit has also
held that lesser actions may qualify, but has not provided a bright-line
rule with regard to such lesser actions. Id. "Because there are no bright
line rules as to which employment actions meet the threshold for
`adverse,' courts must make this determination on a case-by-case basis."
Wilburn v. Fleet Fin. Group, Inc., 170 F. Supp.2d 219, 237 (D. Conn.
2001) (quoting Richardson, 180 F.3d at 446)
To sustain an adverse employment action, a plaintiff must "endure a
`materially adverse change' in the terms and conditions of employment."
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2001)
(quoting Richardson, 180 F.3d at 446)). In order for the action to be
"`materially adverse', a change in working conditions must be `more
disruptive than a mere inconvenience or an alteration of job
responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust
Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). A "`material adverse
change' is one that `has an attendant negative result, a deprivation of a
position or an opportunity.'" Campbell v. Grayline Air Shuttle, Inc.,
930 F. Supp. 794, 802 (E.D.N.Y. 1996) (citations omitted). While adverse
employment actions extend beyond readily quantifiable losses, "not
everything that makes an employee unhappy is an actionable adverse
action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002). See also
Bennett v. Watson Wyatt & Co., 136 F. Supp.2d 236, 245-50 (S.D.N.Y.
Figueroa complains that she was: 1) followed by her supervisors; 2)
wrongfully accused of being late for work several times; 3) denied the
opportunity to work on November 16, 1998, because a clerk failed to place
her name on the work chart; 4) forced to spend one day performing duties
that were beneath her given her seniority level; 5) denied a promotion to
be an enforcement officer; 6) passed over for a particular sweeping
route; and 7) subjected to more frequent drug testing than her
Being followed by supervisors is not a materially adverse employment
action. "[A]lthough reprimands and close monitoring may cause an employee
embarrassment or anxiety, such intangible consequences are not materially
adverse alterations of employment conditions." Castro v. New York City
Bd. of Educ. Pers., No. 96 Civ. 6314, 1998 WL 108004, at *7 (S.D.N.Y.
Mar. 12, 1998) (internal citations omitted).
Courts have held that negative evaluations, without any accompanying
adverse results, are not cognizable. See Durant v. Nynex,
101 F. Supp.2d 227, 233 (S.D.N.Y. 2000); Valentine v. Standard & Poor's,
50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) ("Given that plaintiff's negative
reviews did not lead to any immediate tangible harm or consequences, they
do not constitute adverse actions materially altering the conditions of
his employment.", aff'd, 205 F.3d 1327 (2d Cir. 2000); Castro, 1998 WL
108004, at *7 (negative evaluations "unattended by a demotion, diminution
of wages, or other tangible loss do not materially alter employment
conditions"). Thus, the few times that plaintiff was accused of being
late to work are not materially adverse employment actions.
Nor does spending one day performing menial duties or being precluded
from working on a particular day constitute materially adverse employment
actions. Courts require actions that are more significant and permanent.
See Phillips, 278 F.3d at 117 (holding that there is no cause of action
to "vindicate an employee's trivial complaints about an unpleasant
working environment"); Bennett, 136 F. Supp.2d at 245 (holding that
plaintiff's alleged underutilization did not rise to the level of
actionable adverse employment actions).
On the other hand, defendants' failure to promote Figueroa to the
position of enforcement officer, and the failure to assign her to a
particular sweeping route are tangible adverse employment actions that may
form the basis of a prima facie case of discrimination. Figueroa's claim
that she was subject to more frequent drug testing than her colleagues is
a close call. Frequent drug testing can be particularly invasive and
humiliating. Thus, if Figueroa had offered evidence that the drug testing
policy was manipulated such that she was disproportionately chosen for
testing, such evidence could have established an adverse employment
action. However, because Figueroa has offered no
evidence as to any
manipulation, the drug testing, even if disproportionate to her, is not
an adverse employment action. Furthermore, defendants have offered a
legitimate non-discriminatory reason, i.e. random computer selection, to
explain any increased testing of plaintiff. Figueroa has failed to rebut
2. The Position Was Filled by Members of the Protected Class
The position of enforcement officer was filled by several women.
According to Figueroa, "[the supervisors] told me there were women that
were applying and they were being accepted in. They couldn't understand
why they were excluding me and only me." 6/14 Fig. Dep. at 39. This
admission, as well as the lack of any showing that would give rise to an
inference of discrimination, operate to defeat her prima facie case.
Similarly, as to the sweeping route, Figueroa offers no evidence that
only males were given such routes.*fn12 Therefore, summary judgment is
granted to defendants on Figueroa's claims of gender discrimination.
Retaliation claims must be filed with the EEOC (or an administrative
affiliate) within 300 days of the retaliatory conduct. See Van Zandt v.
KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). This 300 day
mark functions as a statute of limitations and, as such, precludes
consideration of events that occurred prior to 300 days before the filing
of the administrative complaint. See id. at 713. Thus, events that
occurred prior to August 21, 1998 cannot be considered.
2. Analysis of Retaliation Claim
Title VII makes it an "unlawful employment practice for an employer to
discriminate against any of his employees . . . because [the employee]
has opposed any practice made an unlawful employment practice by [Title
VII]." 42 U.S.C. § 2000e-3(a). "In order to make out a prima facie
case of retaliation, a plaintiff must show by a preponderance of the
evidence: i) participation in a protected activity known to the
defendant; ii) an employment action disadvantaging the plaintiff; and in)
a causal connection between the protected' activity and the adverse
employment action." Tomka, 66 F.3d at 1308.
Defendants concede that plaintiff engaged in a protected activity by
filing a complaint of discrimination with the NYSDHR. The next question
is whether Figueroa was subjected to a materially adverse employment
action. The McDonnell Douglas burden-shifting rules are applicable to
claims of retaliation. See Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., 183 F.3d 155, 159 (2d Cir. 1999); Richardson, 180 F.3d at 443. The
only materially adverse actions Figueroa alleges were the denial of her
application to be an enforcement officer, the fact that she was passed
over for the sweeping route, and the excessive drug testing. As noted
earlier, see supra Part III.C.1, the first two allegations represent
materially adverse employment actions. Where Figueroa's retaliation claim
fails, however, is in the lack of causal connection between the protected
activity and these adverse employment actions.
First, Figueroa is unable to show that the "protected activity was
closely followed in time by the adverse action." Reed v. A.W. Lawrence &
Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (quotations marks omitted). See
also Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990)
(holding that a period of three months between the protected act and the
adverse act was too long to establish a causal connection); Fitche v.
R.J. Reynolds Tobacco Co., 675 F. Supp. 133, 138 (S.D.N.Y. 1987) (holding
that a period of seven months between the protected act and the adverse
act was too attenuated). Figueroa filed her initial complaint of
discrimination with the OEEO in July 1998. She was denied the position of
enforcement officer in November of 1999, she was passed up for the
cleaning route in August of 2000, and the frequent drug and alcohol
testing occurred over many years. She has offered no evidence of
retaliation, other than her conclusory allegations that these actions
were caused by her filing of the complaint. Due to the passage of time
between the filing and these actions, there is no basis for inferring a
causal connection. See Hopkins v. Digital Equip. Corp., No. 93 Civ.
8468, 1998 WL 702339, at *7 (S.D.N.Y. Oct. 8, 1998) ("Mere conclusory
allegations are insufficient to defeat a motion for summary judgment.")
Second, Figueroa has received numerous complaints, and has been passed
up for many promotions both before and after her filing of the complaint,
with no evidence that such adverse employment actions intensified after
she filed her discrimination claim. As a result, Figueroa is unable to
make out a prima facie case for retaliation. Defendants' motion for
summary judgment on the retaliation claim is granted.
For the above reasons, defendants' motion for summary judgment is
granted as to plaintiff's claims of discrimination, disparate treatment
and retaliation, but denied with respect to plaintiff's claim for sexual
harassment based on hostile work environment. A status conference is
scheduled for May 2, 2002, at 4:30 p.m.