The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
Pro se plaintiff Marie Carmen Pointdujour brought this Title VII action
against her former employer, Mount Sinai Hospital, and one of its Nurse
Managers, Laura Giles. Plaintiff claims that the defendants retaliated
against: her by terminating her employment after she complained that a
female co-worker had subjected her to same-sex sexual harassment. See
Am. Compl. ¶¶ 4, 8 and its addendum entitled "Additional Pacts." In
September 2002, this case was assigned to me with the consent of the
On September 25, 2003, defendants served (1) a Notice to Pro Se
Litigant Opposing Motion for Summary Judgment, (2) a Notice of Motion for
Summary Judgment with exhibits, (3) Defendant's Local
Rule 56.1 Statement, and (4) a Memorandum of Law.
On October: 27 and 29, 2003, Ms. Pointdujour served (a) Plaintiff's
Local Rule 56.1 Statement ("Pl. 56.1 Stat."), (b) an "Opposition of
Motion to Notice of Motion [for] Summary Judgment" (6 pages plus
exhibits), (c) a Preliminary Statement ("Prelim. St."), paginated 7
through 14, (d) a document entitled "Hostile Working Environment," and
(e) a letter to me enclosing the full transcript from her Unemployment
Insurance hearing before Administrative Law Judge Lynn A. Morrell at the
New York State Department of Labor on March 15, 2001 ("3/15/01 Tr.").*fn1
copy, the page numbers were cut off; at my request, defendants sent
me another copy of the 3/15/01 Tr. (with the page numbers intact), as
well as full transcripts of plaintiff's deposition testimony ("5/23/03
Tr." and "6/24/03 Tr.") and their annexed exhibits.
On November 14, 2003, defendants served a Reply Memorandum of Law. In a
November 18 letter, they requested oral argument on their motion. To
date, plaintiff has not requested this. In any event, I find that oral
argument is unnecessary. For the reasons set forth below, I grant
defendants' motion for summary judgment, and I dismiss plaintiff's
amended complaint with prejudice.
From 1992 until August: 18, 2000, Ms. Pointdujour worked as a Clerk
Registrar in the emergency room at Mount Sinai Hospital. (Pl. 56.1
Stat. ¶ 1.) Her immediate supervisor was John Mascia. (Id. at ¶
5.) Mr. Mascia's supervisor was defendant Laura Giles. (Pl. at 5/23/03
Tr. 119; Giles 9/25/03 Aff. ¶ 12.)
Plaintiff alleges that: she was sexually harassed by a female co-worker
for a period of about six or seven months prior: to August: 17, 2000.
(Pl. 56.1 Stat. ¶¶ 34, 37, 38, 50.) For the purposes of this motion, I
will assume the truth of her allegations about the co-worker.
Plaintiff concedes that: she did not report any harassment to her
employer until August 17, 2000. (Pl. at: 5/23/03 Tr. 56, 63-64.) Even
then, her "report" was made in a rather bizarre way:
. . . I told [Mr. Mascia] that I had [a] problem and I
needed to speak with him and could he please arrange
for me to speak to him. He asked me was it anything
that he should help me with? I says [sic] yes. I said
I want to speak to him and 1 want to speak to my
co-workers. He called the co-workers and then we had
the meeting. . . . I did not specifically state the
cause of the meeting, [but I did say that] 1 was being
harassed and I needed to speak to my co-workers.
(Pl. at 3/15/01 Tr. 42-43.) Mr. Mascia set: up the meeting about:
five minutes later, and held it in the registration area.*fn2
Mascia and several of the registrars attended, including the alleged
harasser. (Pl. at 3/15/01 Tr. 43-45; 5/23/03 Tr. 41-43.)
Once everyone was gathered, Mr. Mascia closed the door and told her
that she could speak. (Pl. at 5/23/03 Tr. 40.) By her account:
I started by saying my name is Marie Pointdujour.
I work here . . . The reason I asked you here is
to clear with you some problem that I am having
in, I respect everybody['s] opinion and I respect
everybody['s] religion and genders and so what,
but I do not want to have a sexual relationship
with my own gender.
(PI. at 3/15/01 Tr. 45.) In her earliest testimony, she claimed that she
"didn't say anything out of [the] ordinary" at this meeting. (Pl. at
3/15/01 Tr. 68.) But her recent Preliminary Statement goes into more
detail about what she said at the meeting:
What do you think [was] the reason for the meeting. Of
course I was telling you I am being harassed. I am not
a lesbian, I don't want: a lesbian lover. I don't care
if you are [a] bunch of bull dingers but, stop, stop,
harassing me. I am not into lesbianism. I am
uncomfortable hurt stop forcing me to become a bull
dinger. I don't want to walk around grabbing my
cr[o]tch like I am holding a penis. I have a vagina. I
am a woman happy and content with my womanhood. Stop
(Prelim. St. at p. 12, ¶ C.) There was a dramatic reaction to
plaintiff's speech. In her words: "The harasser screamed open the
closed-door [and] pushed Mr. John Ma[s]cia away. The meeting ceased."
(Ibid.) Plaintiff says that the meeting lasted about seven to ten
minutes; after it ended, everybody (except for the alleged harasser) went
back to their posts. (Pl. at 5/23/03 Tr. 4 2, 47-48.)
Prior to August 17, plaintiff "never mentioned anything" to her
employer about being harassed. (Pl. at 3/15/01 Tr. 47; see PI. at 5/23/03
Tr. 56, 63-64.)
On August 18, the day after the meeting, plaintiff came to work and was
handed a Warning Notice by union delegate Emma Samuel. The Warning
Notice, signed by Mr. Mascia and Ms. Giles, stated that plaintiff had
violated two of the employer's Rules:
[Rule] 13.2.21[:] Fighting, horseplay or other
disorderly conduct or annoying patients, visitors or
other employees on Medical Center premises. [Rule]
13.2.26[:] Any willful act or conduct detrimental to
patient care or to Medical Center operations.
(PI. at 5/23/03 Tr. 123-24 and its annexed Exh. 9.) The Notice then
described the August 17 meeting and concluded with the following
Your behavior was disruptive, inappropriate &
stopped the operations of registration and other
clerical functions. All present tried to stop you
from speaking unsuccessfully.
(Ibid.) After handing plaintiff the Warning Notice, Ms. Samuel and Mr.
Mascia escorted her to Ms. Giles's office. (Pl. at 5/23/03 Tr. 117-19.)
At that first meeting, Ms. Giles told plaintiff that she wanted her to
seek help from the hospital's Employee Assistance Program ("EAP"), and
plaintiff responded that she would not go to EAP. (PI. at 3/15/01 Tr.
58-60.) Ms. Giles placed plaintiff ...