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FREITAS v. GYPSUM FLOORS OF NEW YORK

July 30, 2002

MARLI FREITAS, PLAINTIFF,
V.
GYPSUM FLOORS OF NEW YORK, INC. AND RICHARD W. PHILLIPS, DEFENDANTS.



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

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Marli Freitas sues Defendants Gypsum Floors of New York, Inc. and Richard W. Phillips for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and New York State Human Rights Law § 296 et. seq. Plaintiff claims that she was subject to intentional discrimination and disparate treatment because of her national origin, and also that she was subjected to a hostile work environment. Plaintiff further claims that she suffered retaliation for opposing the alleged discrimination. Defendants deny these claims, and now move for summary judgment dismissing the complaint in its entirety, claiming that there is no triable material issue of fact and that as such they are entitled to judgment as a matter of law.

For the reasons stated below, defendants' motion is denied.

FACTS PERTINENT TO THE MOTION

Defendant Gypsum Floors of New York, Inc. ("Gypsum") is a specialty concrete contractor in Westchester County, New York. Defendant Richard W. Phillips is the President of Gypsum.*fn1 Plaintiff Marli Freitas was hired on February 8, 1999, to perform "typical receptionist and administrative-type duties." S. Phillips Dep. at 19. Ms. Freitas is a Hispanic-American of Brazilian national origin. Pl.'s Rule 56.1 Stmt. ¶ 6.

Plaintiffs Claims

Ms. Freitas claims that she was most consistently harassed regarding her duties related to answering the phones and making phone calls for Gypsum. See id. at 3033. For example, Ms. Freitas claims that although Stephen Phillips told her that "the clients are very, very happy" with her polite phone manners, he told her that she was "not too Americanized," and that she had "to Americanize a little bit." Id. at 33. According to Ms. Freitas, she received two or three similar comments regarding her work being "too European" and in need of Americanization. Id. at 31-35. Furthermore, Ms. Freitas claims that she was often chastised when she relayed phone messages to Stephen Phillips, simply because he could not understand her accented English. Id. at 31-32.

Ms. Freitas also claims that she was singled out to carry boxes, clean toilets, and perform other menial tasks. Id. at 35-39. Although she was never told that she was to perform these tasks simply because she was Brazilian, Ms. Freitas notes that she was told to perform the duties "in a way that nobody [else at Gypsum]" was being told to do their duties. Id. at 37-38. She also notes that Eric Johnson and Stephen Phillips would "eat on [her] desk where [she] work[s]," even though there was a lunchroom elsewhere in the office. Id. at 38-39.

In addition to the claim that she was subjected to a hostile work environment, Ms. Freitas claims that the acts described above, along with other incidents (described below) amounted to intentional discrimination and disparate treatment on the basis of her Brazilian national origin. In addition to those claims, Ms. Freitas also brings claims of retaliation for opposing illegal discrimination at Gypsum.

The retaliation claim arises from a series of exchanges with Richard Phillips, during which he allegedly fired Ms. Freitas on three separate occasions. According to Ms. Freitas, at one point during her employment at Gypsum, Richard Phillips replaced her with another office worker. Id. at 41-42. Her replacement, Rose, only worked at Gypsum for a single day. Id. at 65. Ms. Freitas claims that during that one day, Richard repeatedly commented on how much happier he was now that Rose was performing Ms. Freitas' duties, and that there were no more problems in the office. Id. at 41-42. Ms. Freitas claims that Rose earned $5,000 more than she did, despite Rose's only responsibility being to answer the phones. Id. at 65-67. In fact, according to Ms. Freitas, Rose only lasted one day because "[she] didn't like the way they treat[ed Freitas]," and she worried that they would treat her the same way. Id. at 66. Ms. Freitas admits that she will "never forget" how Richard compared her several months of work to Rose's single day. Id.

Ms. Freitas claims that in late August, Richard Phillips fired her, but that that other Gypsum workers asked her to stay. See Freitas Aff. ¶ 52-68. Nonetheless, she was told "don't worry, go home." Id. at ¶ 68.

It is undisputed that Ms. Freitas subsequently sent two letters to Gypsum, dated September 2, 1999 and 7, 1999, respectively. See Def.'s Rule 56.1 Stmt. ΒΆ 4. See also Freitas Aff. Exhs. D, E. In the September 2nd letter, addressed to Stephen Phillips, Ms. Freitas writes, "[a]s per our last week conversation, we agreed that from August 20 trough [sic] September 3, I would take time off." Freitas Aff. Exh. D. In the September 7th letter, also addressed to Stephen Phillips, Ms. Freitas writes, "[a]s per Mr. Richard ...


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