United States District Court, Southern District of New York
April 30, 2003
FRANCES MCDONALD, PLAINTIFF, AGAINST B.E. WINDOWS CORP., DEFENDANT
The opinion of the court was delivered by: Robert L. Carter, United States District Judge
Plaintiff, Frances McDonald, commenced this action against defendant, B.E. Windows Corp., alleging a sex-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq., New York State Human Rights Law, Executive Law, Article 15, § 290 et seq., and Title 8 of the New York City Human Rights Law. Defendant now moves for summary judgment pursuant to Rule 56, F.R.Civ.P., on these claims.
Plaintiff, Frances McDonald, was hired on June 3, 1996, by defendant, B.E. Windows Corp., as a bartender in "The Greatest Bar on Earth" ("GBOE"), a bar on the top floor of the former World Trade Center ("WTC"). (Pl.'s Aff. ¶ 6.) At approximately the time plaintiff began working at OBOE, three attorneys who worked in the WTC, Ernest Marrero, Ron Wolf, and Nathan Cohen ("patrons"), began visiting the bar regularly after work. (Def.'s Ex. J.) These patrons were known for their obnoxious behavior which included making inappropriate comments about women and telling lewd jokes. (Def.'s Ex. J.)
In late October of 1998, the patrons' conduct became personal with regard to plaintiff. When plaintiff returned to her bar after taking a break, Wolf shouted at plaintiff, "Hey baby, why don't you take it off for us . . . your breasts look bigger tonight." (Pl.'s Aff. ¶ 13.) Plaintiff told him to "shut the hell up," but Wolf continued taunting plaintiff, yelling at her to take off her clothes. (Pl.'s Dep. at 97.) When another bartender, George Delgado, attempted to quiet Wolf, a melee broke out. (Id. at 100.) Cohen jumped in front of Wolf and began shouting obscenities, threatening, "I'll kick your fucking ass," while leaning over the bar and reaching for Delgado. (Delgado Dep. at 45.) Joe Amico, the bar manager, came over to defuse the situation, but the patrons resisted Amico's efforts and continued shouting threats at Delgado. (Amico Dep. at 18.) After a half hour of Amico's pleading, the patrons left voluntarily. (Pl.'s Dep. at 106; Delgado Dep. at 51.)
Following this incident, plaintiff and GBOE's management agreed that in the event these patrons returned, plaintiff would not have to serve them and they would not be allowed to sit at her bar. (Pl.'s Aff. ¶¶ 16, 17.) This agreement was effective until December 9, 1998, when plaintiff arrived at work and found the three patrons sitting at her bar. (Id. at ¶ 23; Def.'s Ex. J.) On plaintiff's request, Amico advised the patrons of the rules and requested that they sit elsewhere in the establishment. (Pl.'s Aff. ¶¶ 24, 25.) Instead of cooperating, the patrons became enraged, threatening Amico with legal action, accusing him of discrimination, and suggesting they could have his home taken away from him. (Amico Dep. at 41; Def.'s Ex. J.) After two hours of arguing with the patrons, Amico convinced them to stand no closer than 10 feet from plaintiff's bar. (Pl.'s Dep. at 118, 119.)
In order to avoid another confrontation between plaintiff and the patrons, Amico directed plaintiff to wait in the kitchen until he was able to subdue them. (Pl.'s Aff. ¶ 26.) Amico's efforts however proved less than satisfactory because when plaintiff returned, the patrons were standing 10 feet away, glaring at her, and continued to do so for a significant portion of the evening. (Pl.'s Dep. at 119.) In addition, plaintiff was unable to recover nor was she reimbursed for the two hours worth of tips she lost while waiting in the kitchen for Amico to resolve the situation. (Pl.'s Aff. ¶ 28.)
In February of 1999, the patrons again attempted to sit at plaintiff's bar. (Pl.'s Dep. at 86, 88.) Plaintiff reminded the patrons they were prohibited from sitting at her bar but instead of complying, the patrons argued with plaintiff about the October incident. (Id. at 86.) The bar manager, Glenn Vogt, witnessed this altercation and although he did not get involved, the patrons eventually moved away voluntarily. (Id. at 88; Delgado Dep. at 94.)
Between the months of February and July, 1999, the patrons did not sit at plaintiff's bar but continued to frequent GBOE several times a week. (Pl.'s Dep. at 135.) On four or five occasions they approached plaintiff's bar forcing plaintiff to remind them of the prohibition. (Pl.'s Dep. at 127.) Rather than insist, the patrons would then call plaintiff's name, stare and smirk at plaintiff, and "look [her] up and down" for the rest of the evening. (Pl.'s Dep. at 141, 144; Pl.'s Aff. ¶ 18.)
On July 29, 1999, the patrons were once again sitting at plaintiff's bar when she arrived to work. (Pl.'s Aff. ¶ 37.) Plaintiff complained to Vogt that the patrons were deliberately flaunting the prohibition but Vogt refused to move them unless they said something inappropriate to plaintiff. (Id. at ¶ 37.) Plaintiff returned to work and avoided the patrons by having the other bartender on duty serve them for the hour they remained at the bar. (Id. at ¶ 38.)
A few weeks later in August, when plaintiff arrived at work, the patrons were at her bar again. She requested Amico enforce the prohibition, but he refused to do so. (Pl.'s Aff. ¶¶ 39, 41; Pl.'s Dep. at 143.) Plaintiff then became upset, warning Amico that she had gone to the Equal Employment Opportunity Commission ("EEOC") and was considering legal action. (Pl.'s Dep. at 142.) Amico was unaffected and suggested that plaintiff wait in the kitchen until the patrons left her bar. (Id. at 142.) Plaintiff did so and when she emerged from the kitchen an hour later, the patrons had moved voluntarily. (Id. at 143.)
On September 30, 1999, a private investigator ("shopper") visited GBOE and subsequently filed a report alleging that plaintiff misquoted the prices of drinks to him and served him a drink gratuitously. (Pl.'s Ex. I.) As a result of this report, plaintiff was terminated from GBOE on October 13, 1999, for violating GBOE's cash handling policies. (Pl.'s Aff. ¶ 3.) Plaintiff's termination coincided with the day she filed her first EEOC claim alleging sexual harassment. (Id. at ¶ 4.) On October 15, 1999, plaintiff amended her EEOC complaint to include unlawful retaliation. (Id. at ¶ 5.)
I. Summary Judgment
Summary judgment may not be granted unless "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." Rule 56, F.R.Civ.P. In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Nevertheless, the moving party will be entitled to judgment as a matter of law where the nonmoving party fails to make a significant showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing summary judgment "may not rest upon mere allegations," rather she must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R.Civ.P.
II. Hostile Work Environment and Retaliation
Title VII 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), and prohibits an employer from "discriminating 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).*fn1
A. Sexual Harassment
A claim of hostile work environment due to sexual harassment requires evidence that the harassment was so severe or pervasive as to transform the victim's workplace into an abusive working environment. See Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). This evidence must show not only that plaintiff perceived her environment to be abusive due to her sex but that an objective analysis of her working conditions would yield a similar result. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Plaintiff's evidence shows a combination of vulgar sexual advances, clear and blatant physical threats, attempts to intimidate plaintiff through physical approaches, catcalls, and staring, in such a continuous and concerted manner that a reasonable juror could find an objectively hostile work environment. While the degree of harassment arguably diminished over time, it would not be unreasonable for a juror to conclude the initial threats of violence increased the severity of the patrons' subsequent attempts to intimidate plaintiff. See Ramirez v. New York Presbyterian Hospital, 129 F. Supp.2d 676, 681 n. 6 (S.D.N.Y. 2001) (Chin, J.) (allegedly harassing behavior must be considered within the totality of the circumstances). It is furthermore a reasonable inference to conclude that all of the patrons' conduct was motivated by plaintiff's sex due to the sexual context in which this pattern of conduct began. See Raniola v. Bratton, 243 F.3d 610, 622 (2d Cir. 2001).
This behavior had the clear effect of altering plaintiff's work environment for the worse, forcing her on three occasions to abandon her work altogether, in some instances relinquish substantial compensation, and on several other occasions to either seek protection from management or enforce the prohibitions herself. See Whidbee v. Garzarelli, 223 F.3d 62, 70 (2d Cir. 2000) (noting that harassment must not be unendurable to be actionable). Furthermore, plaintiff's frequent complaints to management and her continued refusal to serve the patrons, creates a reasonable inference she felt harassed by the patrons' conduct, satisfying the subjective element of the analysis. See Susko v. Romano's Macaroni Grill, 142 F. Supp.2d 333, 338 (E.D.N.Y. 2001) (Platt, J.).
Plaintiff must also establish a basis on which to impute liability to the employer. See Alfano, 294 F.3d at 373. Generally, this court has applied the same standard for non-employee harassment as is applied to co-worker harassment, namely, the employer will be liable unless it provided a reasonable avenue for complaint or it was prompt in taking steps reasonably calculated to end the harassment.*fn2 Plaintiff contends that defendant's efforts were unreasonable in light of the patrons' conduct. While defendant's initial remedial efforts were prompt and the overt threats of violence were not repeated, defendant's failure to eliminate contact between plaintiff and the patrons allowed their harassment to take other forms and continue, creating a reasonable inference that the measures were ineffective. See Whidbee, 223 F.3d at 72 (factors to consider in assessing the reasonableness of remedial measures include their success in ending the harassment) This is not to suggest that defendant's remedy was per se unreasonable because it was not successful or that as a matter of law defendant was required to banish the patrons from the establishment but rather that defendant's knowledge of the harassers' persistence does create an issue of fact regarding both the reasonableness of defendant's efforts and the effectiveness of the remedy. See Powell v. Consol. Edison Co. of N.Y., No. 97 Civ. 2439, 2001 WL 262583, at *16 (S.D.N.Y. Mar. 13, 2001) (Lynch, J.) (overall effectiveness of remedy is a jury question). Cf. Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995) (defendant cannot be held liable when it is not on notice that an otherwise reasonable remedy has proven to be ineffective).
In order to establish a prima facie case of retaliation under Title VII, "a plaintiff must show (1) that the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). If plaintiff establishes a prima facie case and thus a presumption of retaliation, the burden shifts to defendant to present a legitimate nondiscriminatory reason for plaintiff's termination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). If defendant meets this burden, then the presumption disappears and to prevail plaintiff's evidence must be sufficient for a reasonable juror to find a retalitory motive in plaintiff's termination. See James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Plaintiff's evidence is sufficient to establish a presumption of unlawful retaliation. She frequently complained of sexual harassment directly to defendant and plaintiff was terminated, satisfying the first three elements of her prima facie case. Plaintiff also presents significant direct and circumstantial evidence of causation. First, Richard Cardone, a former manager of GBOE, indicated in his deposition that Vogt, "had enough of the situation (of plaintiff's complaints with regard to the patrons]" and stated that "[Cardone] should concentrate (his] efforts on trying to get something wrong with [plaintiff's] performance," indicating retaliatory animus on the part of the manager. (See Cardone Dep. at 35). Second, her termination and last protected activity took place in such close temporal proximity, two months, as to be circumstantial evidence of causation. See Little v. Nat'l Broad. Co., 210 F. Supp.2d 330, 386 (S.D.N.Y. 2002) (Scheindlin, J.) (holding temporal proximity of two months is circumstantial evidence of causation). Lastly, plaintiff submits evidence that other bartenders at GBOE who were cited for similar infractions were not terminated. (See Pl.'s Ex. K); Raniola, 243 F.3d at 625 (disparate treatment is considered circumstantial evidence of retaliatory motive).
Defendant's evidence that plaintiff was not targeted by the shopper's investigation, plaintiff's improprieties were clear and unambiguous, and other bartenders were also fired for similar improprieties, suggests however that plaintiff's termination was both legitimate and nondiscriminatory. (See Soto Dep. at 82, 111; Def.'s Ex. N.) In addition, defendant argues that the allegations in the shopper reports cited by plaintiff are not evidence of disparate treatment because the infractions are different in kind from those plaintiff committed. (See Rothfeld Affirmation in Support of Def.'s Mot. for Summ. Judg.)
While defendant's submission may have the effect of eliminating the presumption of retaliation, it does not answer conclusively the open questions of disparate treatment or retaliatory animus. Defendant's contention that the cited infractions were different in kind from plaintiff's serves only to create an issue of fact for a jury to decide. Moreover, under Title VII it is not necessary that the retaliatory motive be the sole cause of the adverse employment action but rather only that it be a substantial or motivating factor, even where there are legitimate reasons for undertaking the disputed action. See Raniola, 243 F.3d at 625. In the court's estimation, a reasonable juror viewing the evidence in the light most favorable to plaintiff, could find that plaintiff was subjected to different and more harsh treatment than similarly situated coworkers and that this was motivated due in part to a retaliatory animus towards plaintiff. These open fact issues lead the court to conclude that judgment as a matter of law is inappropriate at this time.
For the foregoing reasons, defendant's summary judgment motion is denied on both the hostile work environment and unlawful retaliation claims.
IT IS SO ORDERED.