months of plaintiffs absence. (Graziano Aff., Ex. 82.)
Plaintiff returned to work as scheduled on January 13, 2000, and was
directed to his desk by Nuzzo. He noticed that his female co-workers were
not present, and alleges that he later learned that they had boycotted
work and informed supervisory staff that they would not return to work if
plaintiff was reinstated.*fn5 (Pl. Mem. Opp. Summ. J. at 6.) After less
than an hour had passed, Nuzzo sat plaintiff in a room with Hector
Jimenez from Human Resources and a new deputy who began work that day.
(Id.) Nuzzo handed plaintiff a reprimand concerning the events of
September 28, 1999 and began to read the charges out loud.*fn6 Plaintiff
allegedly asked for an attorney and union representation, but Nuzzo
yelled back that he needed neither. (Id. at 7.) After Nuzzo finished
reading the reprimand, he informed plaintiff that he had received an
unsatisfactory job performance evaluation. (Id.) At that, plaintiff
announced that he had enough, and walked out of the meeting. When he
returned to his desk, plaintiff informed Jimenez that he planned to
retire because he did not believe that anything was going to be fixed at
the Lab. (Graziano Dep. at 98.) He then typed out a two-line letter of
resignation. (Graziano Aff., Ex. 84.)
Plaintiff claims that the foregoing actions taken against him by his
female co-workers were done on account of his gender and created a
hostile work environment leading to his constructive discharge in
violation of Title VII. Defendant responds that summary judgment in this
matter is appropriate because: 1) plaintiff cannot demonstrate that he
was constructively discharged; 2) plaintiff cannot demonstrate that
reactions of female co-workers to his conduct were motivated by animus
toward plaintiffs gender rather than plaintiffs personality; and 3) the
actions of female co-workers cannot be imputed to defendant. (Def. Mem.
Supp. Summ. J. at 3.)
I. Summary Judgment Standard
Summary judgment maybe granted "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c). The burden rests on the moving
party to demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman
Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A
genuine factual issue exists if there is sufficient evidence favoring the
nonmovant for a reasonable jury to return a verdict in his favor.
Anderson, 477 U.S.
at 250 (1986); Ticali, 41 F. Supp. 2d at 254. In
deciding whether summary judgment is appropriate, the court should
resolve all ambiguities and draw all permissible factual inferences
against the movant. See Anderson, 477 U.S. at 255. Summary judgment is
warranted when the nonmovant has no evidentiary support for an essential
element on which it bears the burden of proof Celotex, 477 U.S. at
322-23; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir.
II. Title VII Sexual Discrimination
Title VII prohibits an employer from discriminating against any
individual "with respect to his compensation, terms, conditions or
privileges of employment, because of such individual's race, color,
religion, sex or national origin." 42 U.S.C. § 2000e-2 (a)(1). In
order to state a prima facie case for discrimination under Title VII,
plaintiff must prove that: (1) he was a member of a protected class; (2)
he was performing his duties satisfactorily; and (3) the circumstances
give rise to an inference of discrimination on the basis of his
membership in that class. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).*fn7 It is now beyond doubt that Title VII's prohibition of
discrimination on the basis of sex protects men as well as women. Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). Plaintiff's
gender discrimination claim under Title VII is based on both hostile work
environment and constructive discharge theories. However, both of these
claims ultimately fail because plaintiff has failed to allege facts
giving rise to an inference that he was discriminated against on the
basis of gender.
A. Hostile Work Environment
In order to succeed on a hostile work environment claim, the plaintiff
must show that the workplace was so ridden "with discriminatory
intimidation, ridicule and insult that is sufficiently severe or
pervasive to alter the conditions of the conditions of the victim's
employment and create an abusive work environment." Harris v. Forklift
Sys., 510 U.S. 17, 21 (1993). Plaintiff must also show that there is a
specific basis for imputing the conduct to the employer. See Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The hostility of the work
environment is determined by considering the totality of the
circumstances. Harris, 510 U.S. at 23.
Considering the examples cited by plaintiff, it is doubtful that these
incidents, essentially amounting to disagreements and arguments with
co-workers, could support a hostile work environment claim. More
importantly however, the record is utterly void of facts to support the
contention that this conduct was motivated by animus directed towards
Turning to the specific incidents cited by plaintiff, much is made of
plaintiffs alleged exclusion from the peer review process and a supposed
conspiracy to thwart his productivity. However, as plaintiffs own
testimony reveals, disputes with his co-workers over the peer review
process essentially stemmed from disagreements over procedure rather than
an effort to exclude plaintiff because of his gender. As plaintiff
explains, he endorsed a shorter
drug screening test than his co-workers.
(Graziano Dep. at 40.) The shorter test had been researched and agreed
upon at NYSP headquarters in Albany. However, plaintiffs' co-workers,
Tissot in particular, did not believe that the shorter test was
acceptable. (Id. at 41.)
Q: And you're saying that there was a philosophical
difference between you and Gail Tissot relating to
whether or not the short run was appropriate?
A: I guess you could say that, yeah.
Q: Was Gail Tissot taking the position that the short
run should never be employed?
A: Yeah, that's right.