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FORTS v. CITY OF NEW YORK DEPARTMENT OF CORRECTION

June 4, 2003

LAVINIA FORTS, PLAINTIFF, AGAINST THE CITY OF NEW YORK DEPARTMENT OF CORRECTION, DEFENDANT.


The opinion of the court was delivered by: Laura Taylor Swain, District Judge

AMENDED OPINION AND ORDER

Plaintiff Lavinia Forts ("Plaintiff" or "Forts") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the City of New York Department of Correction ("Defendant" or "DOC") claiming employment discrimination. Plaintiff also invokes the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367 for claims of unlawful discriminatory practices asserted pursuant to the New York City Administrative Code, Section 8, and the New York State Executive Law, Section 296, and the Court exercises such jurisdiction. Plaintiff alleges the existence of a hostile work environment based on racial and sexual discrimination. Plaintiff further claims that she was subjected to discipline in retaliation for her complaints about the alleged racially and sexually inappropriate conduct.

Now before the Court is Defendant's motion for summary judgment. Defendant contends that Plaintiff has failed to establish a prima facie case of hostile work environment discrimination based on race and sex. Defendant also asserts that it is entitled to summary judgment with respect to Plaintiff's retaliation claim, arguing that it had a legitimate nondiscriminatory reason for imposing a challenged suspension. Finally, Defendant argues that, if this Court dismisses all of Plaintiff's federal claims, the Court should decline to exercise supplemental jurisdiction over the state claims. Plaintiff opposes the motion.

The Court has considered thoroughly all of the parties' submissions and arguments. For the following reasons, Defendant's motion for summary judgment is granted with respect to the hostile work environment claim and denied with respect to the retaliation claim.

BACKGROUND

The following factual recitation is based on Defendant's statement of material facts pursuant to Local Rule 56.1 and Plaintiff's response to Defendant's statement and affidavit in opposition to the motion for summary judgment. The following facts are undisputed except to the extent specifically characterized below as allegations.

Plaintiff is an African-American female. Plaintiff is employed as a correction officer for the City of New York Department of Correction, and has been since March of 1989. Def. 56.1 Stmnt of Undisputed Facts ¶ 1. Pursuant to a litigation settlement with DOC, Plaintiff was assigned to work at the Staten Island Courts' ("SIC") Criminal Court facility in or about 1990-1991. Id. ¶ 2. In or about 1994-95, on the recommendation of Captain Carlos Rodriguez, Plaintiff's superior, Plaintiff chose to transfer to the SIC Supreme Court facility. Id. ¶ 4.

On January 12, 1998, Plaintiff alleges, her co-worker Correction Officer Joseph Marino said to her in front of other male correction officers, "Did anybody ever have sex in the backseat of a car and have sex in all types of positions?" Id. ¶ 6. Plaintiff further alleges that, on February 17, 1998, Officer Marino pricked her back with a sharp object. Id. ¶ 11. Plaintiff confronted Officer Marino at that time; he allegedly told Plaintiff that he had scratched her with his fingernail. Id. ¶ 12. Plaintiff did not seek medical attention while at work that day, nor did she report the incident to any supervisors. Id. ¶ 14. Plaintiff, however, on the same day went to her doctor and obtained a prescription for an HIV test and a Hepatitis test. Id. ¶ 15.

On or about February 20, 1998, Plaintiff informed Captain Rodriguez of the remark Officer Marino had allegedly made in her presence in January 1998 and of the alleged pin prick incident on February 17, 1998. Id. ¶ 17. Plaintiff alleges that Captain Rodriguez replied that "[t]he other officers will never be witnesses for you; you are wasting your time." Pl.'s Decl. in Opp'n to Summ. J. ¶ 10. On the same day that Plaintiff reported the incidents to Captain Rodriguez, the Captain offered to try to move the Plaintiff away from Officer Marino to another, similar, post where the ventilation was better. Def. 56.1 Stmnt of Undisputed Facts ¶ 18.

Plaintiff alleges that, on February 20, 1998, Officer Marino offered to feed her a piece of birthday cake while licking his lips. Id. ¶ 20. According to Plaintiff, this incident took place later on in the day on which Plaintiff had reported the prior incidents to Captain Rodriguez. Pl.'s Aff. in Opp'n to Summ. J. ¶ 11. Officer Marino is alleged to have said, "This cake is so good, Forts, you should sit down and let me feed you." Id. On or about February 23, 1998, Plaintiff sent a memorandum to Assistant Deputy Warden Dennis Genco ("Deputy Genco") complaining of the alleged incidents with Officer Marino. Def. 56.1 Stmnt of Undisputed Facts ¶ 23. On the same day that Deputy Genco received Plaintiff's complaint, he went to the SIC facility to investigate her allegations. Id. ¶ 24. Deputy Genco recommended that Plaintiff and Officer Marino be separated, that each receive an interview with the Correction Assistance Response and Education Center (CARE), and that the staff at the SIC facility receive additional training on sexual harassment issues. Id. ¶ 26; Pl.'s Aff. in Opp'n to Summ. J. ¶ 33. Plaintiff alleges that she was never made aware of this recommendation until the discovery phase of this lawsuit and that she never received the additional training. Pl.'s Aff. in Opp'n to Summ. J. ¶ 33; Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 2. On March 6, 1998, Plaintiff filed a complaint with DOC's Equal Employment Opportunity ("EEO") office. Pl.'s Aff. in Opp'n to Summ. J. ¶ 13. Internal and DOC EEO investigations were conducted. Def. 56.1 Stmnt of Undisputed Facts ¶¶ 32, 36-37; Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 3-4. Plaintiff alleges that, on March 26, 1998, she was directed to appear for a "random" drug test for the second time in a 60-day period. Pl.'s Aff. in Opp'n to Summ. J. ¶ 14.

On March 30, 1998, Plaintiff filed a complaint with the federal Equal Employment Opportunity Commission ("EEOC"), alleging that she had been sexually harassed by Officer Marino. Def. 56.1 Stmnt of Undisputed Facts ¶ 33. Plaintiff's claim was based on the alleged January 1998 comment about the sex in the car, the alleged February 1998 incidents including the cake and the pin prick, and alleged "looks" he gave her with his eyes. Id. ¶ 34.

On April 15, 1998, Plaintiff was suspended for failing to follow orders and for insubordination. Pl.'s Aff. in Opp'n to Summ. J. ¶ 16. According to Plaintiff, she never refused the order that was the subject of the suspension. Id. Plaintiff immediately filed a further complaint with the EEOC, charging DOC with retaliation. Def. 56.1 Stmnt of Undisputed Facts ¶ 39. The EEOC requested information from DOC regarding Plaintiff's retaliation claim and Investigator McNally conducted a further investigation, and prepared a response, dated September 28, 1999, to the EEOC's inquiries. Id. ¶ 40. Plaintiff was brought up on DOC charges for her alleged actions on April 15, 1998; an Administrative Law Judge at the Office of Trials and Hearings found Plaintiff guilty of refusing to obey orders. Id. ¶ 41. Plaintiff alleges that the recommended penalty was never implemented and the matter was administratively closed. Pl.'s Response to Def.'s Stmnt of Undisputed Facts at 4.

On September 16, 1998, Plaintiff alleges, Correction Officer Cinqmani (one of Plaintiff's co-workers) made two racially offensive remarks to Plaintiff as they discussed the movie Amistad. Def. 56.1 Stmnt of Undisputed Facts ¶ 42. According to Plaintiff, Officer Cinqmani said that his "favorite parts" of the movie were "[t]he way they got rid of excess cargo by chaining the slaves to an anchor and then throwing them overboard" and that "[b]lack people in Africa were uncivilized and slavery kept them from killing each other." Pl.'s Aff. in Opp'n to Summ. J. ¶ 23. Plaintiff reported the incident to Deputy Genco that same day, detailing the alleged statements of Officer Cinqmani. Def. 56.1 Stmnt of Undisputed Facts ¶ 43. Plaintiff alleges that Officer Cinqmani pushed her on the shoulder several times after she reported the Amistad incident to Deputy Genco and that Cinqmani stated that he would take over Plaintiff's post. Pl.'s Aff. in Opp'n to Summ. J. ¶ 25. Plaintiff alleges that she was asked to rewrite her report regarding the Cinqmani incident several times and that, after submitting three to four reports, she was given a complaint for submitting a false report for failing to mention a witness' name to the unnecessary use of force incident. Id. ¶¶ 27-28. On September 25, 1998, Plaintiff was tested for drugs again. Id. ¶ 29. On or about November 2, 1998, the DOC's EEO office began its investigation of the Amistad matter. Def. 56.1 Stmnt of Undisputed Facts ¶¶ 47-49.

On February 11, 1999, Plaintiff complained that an offensive sexual poster was taped to the door of Plaintiff's locker room at the SIC. Def. 56.1 Stmnt of Undisputed Facts ¶ 56. The poster in question was a photocopy of an advertisement for a store selling sex toys and depicted a man in chains and a woman standing next to him. Id. ¶ 60; Pl.'s Aff. in Opp'n to Summ. J. ¶ 30. Plaintiff reported the poster incident to Captain Greis at the SIC. Def. 56.1 Stmnt of Undisputed Facts ¶ 57. Captain Greis found that the poster had also been placed in several other places in the courthouse that were accessible to the general public, including on the Captain's door and the Court Clerk's door near the female locker room. Id. ¶ 58. Plaintiff's complaint and Captain Greis' investigation report of the incident were forwarded to the EEO office, where a further investigation was conducted. Id. ¶ 59. Beginning in February 1999, Plaintiff went out on sick leave because of the alleged stress she was suffering on account of the poster that was found on the female locker room door. Id. ¶ 62. Plaintiff alleges that she suffered a nervous breakdown and has sought medical and psychological counseling as a result of these incidents. Pl.'s ...


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