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April 24, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, U.S. District Judge


Marilyn Figueroa brings this action pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, against The City of New York, the City of New York Department of Sanitation ("Sanitation Department"), and Rocky Darmiento, manager and supervisor for the Sanitation Department.*fn1 Figueroa seeks compensatory damages and attorney's fees stemming from twenty-three separate causes of action alleging sexual harassment, discrimination, disparate treatment, and retaliation.*fn2 Defendants move for summary judgment on four grounds: (1) any claims which arose prior to August 21, 1998, 300 days before plaintiff filed charges with the New York State Division of Human Rights ("NYSDHR"), are time barred; (2) the incidents alleged by Figueroa do not constitute a hostile work environment; (3) Figueroa has failed to establish a prima facie case of gender discrimination; and (4) there is no evidence that any adverse employment actions that occurred after she filed her discrimination complaint with the Sanitation Department were causally connected to the filing of that complaint. For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part.


Figueroa has been a sanitation worker since 1993, working as a mechanical broom operator. See Defendants' Local Civil Rule 56.1 Statement ("Def. 56.1")*fn3 ¶ 1. After one year, her mandatory probationary period was extended for three months, due to several complaints filed against her. See 6/7/01 Deposition of Marilyn Figueroa ("6/7 Fig. Dep."), Ex. 27 to Declaration of Gregory Kuczinski ("Kuczinski Decl."), at 36-37.

In March 1994, a fellow sanitation worker refused to transport Figueroa to her post, and stated "[b]etter yet, put her in the bucket of the front end loader and transport her in there." See Affidavit of Figueroa ("Fig. Aff."), Ex. 2 to Kuczinski Decl., at 2; 6/14/01 Deposition of Figueroa ("6/14 Fig. Dep."), Ex. 28 to Kuczinski Decl, at 37-43.

In August 1995, Figueroa attempted to put on work gloves when she discovered several condoms stuffed inside. See Fig. Aff. at 2; 6/14 Fig. Dep. at 14-19, 63-64. She filed a grievance with the Sanitation Department, which investigated the incident. Because it was unable to identify those responsible, it reprimanded the entire garage. See Def. Rule 56.1 ¶ 9; 6/7 Fig. Dep. at 14-16; Deposition of Rocky Darmiento ("Darmiento Dep."), Ex. C to Defendants' Notice of Motion for Summary Judgment ("Def. Not."), at 102; 8/21/95 Unusual Occurrence and Accident Report ("Report"), Ex. P to Def. Not.

On September 7, 1995, Figueroa received a written complaint for failing to obey her supervisor who had ordered her to take lunch at 10:40 a.m. See 9/7/95 Sanitation Department Complaint, Ex. Q. to Def. Not. As a result, she received a reprimand for violating Rule 3.1 of the Sanitation Department Code of Conduct — failure to obey a direct order. See 1/25/88 Sanitation Department Code of Conduct, Ex. N to Def. Not., at 3; 7/18/96 Sanitation Department Plea to the Docket, Ex. R. to Def. Not. Figueroa alleges that these rules were not applied evenly, and that the violation brought against her was in retaliation for her sexual harassment complaints. See Fig. Aff. at 3-4.

During the time between approximately September 1995 and mid-1996, two sanitation routes were available, which Figueroa claims were to be assigned to workers in accordance with seniority. See Contract and Collective Bargaining Agreement Between the Union and the City of New York, Article VI, Section 4(b)(i)("Contract"), Ex. 1 to Kuczinski Decl. On both occasions, Figueroa was passed over and the routes were assigned to less senior male co-workers. See 6/7 Fig. Dep. at 65-74. She subsequently filed a grievance with the Sanitation Department. See 9/96 Report, Ex. 9 to Kuczinski Decl.

In July 1996, Figueroa applied for the position of back-up clerk, a temporary position that did not involve any increase in pay. See Def. 56.1 ¶¶ 12, 14. The job involved computer and administrative responsibilities in the garage office. See Darmiento Dep. at 103-04; Deposition of William C. Ford ("Ford Dep."),*fn4 Ex. D to Def. Not., at 102-03; Equal Employment Opportunity Complaint, Ex. IT to Def. Not., at 5. Defendants claim that Figueroa was not selected for this position because her computer knowledge was inferior. See Darmiento Dep. at 103-04. Pigueroa, in turn, responds that her alleged lack of knowledge about computers was a pretext for defendants' gender discrimination and retaliation against her. See 6/7 Fig. Dep. at 62-64.

From March 1997 through February 1999, Figueroa received at least ten written complaints, for such things as failure to obey orders and to appear for work. See Def. 56.1 ¶¶ 19, 20, 23, 26, 28, 29, 30, 35, 36, 37, 43; Written Complaints, Exs. U, V, KK, SS, X, Y, Z, CC, DD, EE, LL to Def. Not. Figueroa denies the validity of these charges, and claims that some of them were filed in retaliation for her filing of sexual harassment complaints. See Plaintiff's Response to Def. 56.1 ¶¶ 19, 20, 23, 26, 28, 29, 30, 35, 36, 37, 43.

In the Winter of 1997, Figueroa was working on Randall's Island when two male co-workers made sexual comments concerning screws in a snow plow. See 6/7 Fig. Dep. at 49-54. In June 1998, Figueroa was not informed that her supervisor changed her work schedule.*fn5 See 6/14 Fig. Dep. at 4-9. Consequently, she was sent home without pay. Id. 6/15/98 Report, Ex. 10 to Kuczinski Decl. She subsequently filed a grievance with the Sanitation Department. See 7/3/98 Report, Ex. 11 to Kuczinski Decl. In July 1998, Darmiento made a comment to Figueroa regarding her pants and the way they fit. See 6/14 Fig. Dep. at 20-22.

On July 28, 1998, Figueroa filed a discrimination complaint with the Department of Sanitation's Office of Equal Employment Opportunity ("OEEO"). See sanitation Department, OEEO Complaint of Discrimination, Ex. AA to Def. Not. In March 1999, the OEEO issued its investigative findings, concluding that Figueroa was not treated unfairly or improperly based on her sex. See OEEO Investigative Findings, Ex. II to Def. Not., at 10-11. The OEEO office did find, however, that Figueroa had experienced "sexually harassing inappropriate behavior on the job," referring to the incident with condoms in the gloves. Id. at 11. The OEEO found that the Sanitation Department had taken immediate corrective and appropriate action. Id.

On or about August 4, 1998, Figueroa was re-assigned to work at a different facility. See 6/14 Fig. Dep. at 51-56. This re-assignment occurred after the customary time deadline for such a change (i.e. 2:10 p.m.), without proper notice to her. Id.

In October 1998, Figueroa was riding in a truck during the usual course of her duties. She was followed by five supervisors riding in four different vehicles. See id. at 56-63. She subsequently filed a grievance with the Sanitation Department. See 5/18/99 Report, Ex. 12 to Kuczinski Decl. According to defendants, it is customary practice that supervisors follow sanitation workers while they are performing their duties. See Ford Dep. at 27-30; Deposition of Ronnie Cooper, Ex. L to Def. Not., at 56-57; Deposition of Thomas Rodak, Ex. F to Def. Not., at 20-21; Deposition of Richard Suarez, Ex. G to Def. Not., at 35-37; Deposition of Rafael Gomez, Ex. H to Def. Not., at 19.*fn6 Also in October 1998, Figueroa was accused (wrongfully, she claims) of being ten minutes late to work. See 6/14 Fig. Dep. at 64-68. Her supervisor said to her "[n]ext time you better be here or you'll see what happens. I will get you off this route." Id.

In November 1998, Figueroa asked a clerk to place her name on the work chart to indicate her availability on November 16, 1998. See id. at 42-51. Because the clerk failed to do so, plaintiff was not permitted to work that day. See id. Following a grievance to her union, she was allowed to work that day, but she was transferred to a different facility. See id.

In February 1999, while on light duty, Figueroa was sent to run errands outside of her assigned district and her schedule was indiscriminately changed, all against established custom and practice for those assigned to light duty with the seniority privileges that she was entitled to. See id. at 68-76.

On June 4, 1999, Figueroa was waiting at the designated afternoon meeting point with a co-worker when she observed a supervisor, Van Bomma, sitting in a vehicle approximately one block away. See id. at 77-82. She left the meeting point to return to her garage at which point Van Bomma approached Figueroa's co-worker to sign his attendance card and give the appearance that Figueroa did not appear for the afternoon meeting. See id.

On June 8, 1999, Figueroa reported to work at 6:20 a.m. for the 7:00 a.m. shift. See id. at 4-10. She was informed by her supervisor that she had been scheduled for the 6:00 a.m. shift and was sent home without pay. See id. She had not been informed of the shift change, as required by the custom and practice of the Sanitation Department. See id. She made a grievance to a union representative who later spoke to Supervisor Bogfilio about the situation. See id. Bogfilio assigned Figueroa to clean up the street corners, a job reserved for workers who perform such duties in order to receive welfare checks. See id.

On June 12, 1999, Figueroa was threatened by Van Bomma, who stated that he would formally complain that Figueroa was untimely in appearing for the afternoon meetings. See id. at 66-68. On the same day, a male co-worker, who failed to appear for the afternoon meeting, was not reprimanded in any manner. See id.

On June 17, 1999, Figueroa filed a charge of discrimination, sexual harassment, and retaliation with the NYSDHR. See NYSDHR Complaint of Discrimination, Ex. JJ to Def. Not. There is no evidence in the record of the results, if any, of this complaint.

On July 17, 1999, Figueroa was threatened with a "blanket party" by an unknown colleague who was dressed in a common sanitation uniform. 6/14 Fig. Dep. at 104-106. According to Figueroa, a blanket party is "where they all get together and beat you down." Id. at 105.

In November 1999, Figueroa's application to be an enforcement officer with the Sanitation Department was denied. See 6/14 Fig. Dep. at 26. She claims that it was denied despite her qualifications, and that a male colleague who was junior to her got the job. See id. at 26-28. She claims that she was told by Inspector Diffendale that she would be accepted into the next class of enforcement officers. See id. at 38. When passed up for that next class, ...

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