The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge
AMENDED OPINION AND ORDER
Plaintiff who claims she was constructively discharged from her position with the Office of the Staff Judge Advocate ("OSJA") at the United States Military Academy, commenced this action alleging sexual harassment, a hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She also alleged claims for defamation and intentional infliction of emotional distress, which were previously dismissed. Gerentine v. United States, No. 00 Civ. 0813, 2001 WL 876831, at *1 (S.D.N.Y. Aug. 2, 2001). The Defendants now move for summary judgment on the remaining claims.
A. The Sexual Discrimination Claims
In November, 1995, Plaintiff began working as a Legal Technician in the OSJA. Her duties related to the processing of disciplinary proceedings and among other things, required her to monitor the recording of disciplinary proceedings and the transcription of those recordings. According to the Defendants, Plaintiff was a marginal employee, who from the outset of her employment, was routinely late and had a poor work ethic and attitude.
At the heart of Plaintiff's complaint is an allegation that on December 14, 1995, Lt. Colonel William P. Condron made a sexual proposition to Plaintiff, which she rebuffed and that thereafter, he and others harassed her in retaliation for her rejection of the advance. The principal weakness with Plaintiff's claim is that no reasonable person aware of the relevant facts could consider Condron's action as a sexual advance.
On the day in question, there was a snow storm and under applicable procedures, employees were permitted to go home early with their supervisor's permission. On that afternoon, Plaintiff was participating in a disciplinary hearing which all of the other participants wanted to continue. However, Plaintiff told the Hearing Officer, Captain Angelia Solomon, that she was going to go home. Solomon, who did not want Plaintiff to leave, then called her superior, Condron, who spoke on the phone with Plaintiff. Condron told Plaintiff that it was her duty to remain at the hearing and that she could not leave. In the course of discussing her concern about the snow conditions, Condron offered Plaintiff several options. He offered to drive her home himself; to have another officer drive her home and pick her up in the morning; he offered to have one of the attorneys drive her home and pick her up in the morning; and he offered to let her stay at his home overnight. At the time he made this offer, Condron lived with his wife, who had recently had a stillborn birth, and two sons and his wife's sister was staying with them.
Plaintiff claims that thereafter, Condron retaliated against her for rejecting this unwanted sexual advance by, among other things, counseling her on one occasion when she was admittedly late for work, directing her to return to her office from a hearing to begin the transcription rather than permitting her to sit and wait for a decision, directing her to go home from another hearing rather that sit and wait for the deliberations to end and collect overtime pay, commenting on her excessive personal telephone calls at a staff meeting, and setting a lunch recess of a hearing at a time that conflicted with Plaintiff's social plans.
Plaintiff also contends that Condron made an inappropriate sexual remark in her presence on May 23, 1996, when, in discussing the scheduling of hearings for cadets whose graduation would be delayed if the hearings were not completed, Condron said he did not want to "dick with" any of the cadets by adjourning the hearings.
Plaintiff also contends that Condron gave her a poor performance rating in May, 1996 when he agreed with a relatively negative performance evaluation given Plaintiff by her immediate superior, Captain Paul Cohen.
Despite all of these alleged acts of harassment, Plaintiff did not file an Equal Employment Office ("EEO") complaint until June 4, 1997. Defendants correctly argue that, in large measure, these claims are time barred. As the Second Circuit explained in Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996):
`Title VII is the exclusive remedy for discrimination
by the federal government on the basis of race,
religion, sex, or national origin.' Boyd v. United
States Postal Service, 752 F.2d 410, 413-14 (9th Cir.
1985) (citing Brown v. General Services
Administration, 425 U.S. 820, 96 S.Ct. 1961,
48 L.Ed.2d 402 (1976)). Under Title VII, a litigant must
exhaust available administrative remedies in a timely
Under EEO regulations, Plaintiff was required to file a discrimination charge within forty-five days of the allegedly discriminatory act. Thus, Plaintiff's claim of an improper sexual advance by Condron in December 1995 was time-barred when she filed her first EEO complaint in June 1997.
The only alleged actions that were not time-barred were a claim that Condron counseled her in writing for her tardiness and a claim that Condron made an allegedly inappropriate sexual comment, when Plaintiff returned from maternity leave, when he complimented her on how well she had regained her figure after the birth of her child.
The standards for judging a hostile workplace environment claim were set forth by the Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370 (1993), as follows:
Title VII of the Civil Rights Act of 1964 makes it "an
unlawful employment practice for an employer . . . to
discriminate 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). As we made clear in
Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), this language `is
not limited to `economic' or `tangible'
discrimination. The phrase `terms, conditions, or
privileges of employment' evinces a congressional
intent `to strike at the entire spectrum of disparate
treatment of men and women' in employment,' which
includes requiring people to work in a
discriminatorily hostile or abusive environment. Id.,
at 64, 106 S.Ct., at 2404, quoting Los Angeles
Dep't. of Water and Power v. Manhart, 435 U.S. 702,
707, n. 13, 98 S.Ct. 1370, 1374, 55 L.Ed.2d 657 (1978)
(some internal quotation marks omitted). When the
workplace is permeated with "discriminatory
intimidation, ridicule, and insult," 477 U.S., at
65, 106 S.Ct., at 2405, that is "sufficiently severe
or pervasive to alter the conditions of the victim's
employment and create an abusive working
environment," id., at 67, 106 S.Ct., at 2405 (internal
brackets and quotation marks omitted), Title VII is
This standard, which we reaffirm today, takes a middle
path between making actionable any conduct that is
merely offensive and requiring the conduct to cause a
tangible psychological injury. As we pointed out in
Meritor, "mere utterance of an . . . epithet which
engenders offensive feelings in a employee," ibid.
(internal quotation marks omitted) does not
sufficiently affect the conditions of employment to
implicate Title VII. Conduct that is not severe or
pervasive enough to create an objectively hostile or
abusive work environment — an environment that a
reasonable person would find hostile or abusive