United States District Court, N.D. New York
March 22, 2004.
DIANE A. CARTER, Plaintiff,
STATE OF NEW YORK, NEW YORK STATE EDUCATION DEPARTMENT, NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL, and NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, Defendants
The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District Page 2
MEMORANDUM-DECISION AND ORDER
On June 26, 2002, Plaintiff filed a complaint with this Court against
Defendants alleging that, during her employment with Defendants, she was
subjected to discrimination based on her sex and race in violation of
Title VII of the Civil Rights Act of 1964. See
42 U.S.C. § 2000e et seq. With respect to her sex discrimination claims,
Plaintiff contends that she was subjected to a hosfile work environment
and quid pro quo sexual harassment in violation of
42 U.S.C. § 2000e-2(a)(1) and unlawful retaliation based on her complaints of
sexual harassment in violation of 42 U.S.C. § 2000e-3(a). With
respect to her race discrimination claims, Plaintiff asserts that she was
subject to disparate treatment and disparate impact race discrimination
in violation of 42 U.S.C. § 2000e-2(a)(1) and unlawful retaliation
based on her complaints of race discrimination in violation of
42 U.S.C. § 2000e-3(a).
Presently before the Court is Defendants' motion for summary judgment
as to all claims. The Court heard oral argument in support of, and in
opposition to, this motion on February 27, 2004, and reserved decision at
that time. The following constitutes the Court's written decision with
regard to the pending motion.
Since 1985, Plaintiff, an African-American woman, has worked as an
Education of Disadvantaged Program Aide ("EDPA," Salary Grade 14) at the
New York State Department of Education ("DOE"). She alleges that, from
May, 1995 until May, 1997, her supervisor, New York City Coordinating
Group Team Leader James Gaughan, engaged in a pattern of sexual
discrimination which included quid pro quo and hosfile
work environment sexual harassment. More specifically, Plaintiff alleges
that Mr. Gaughan publicly demanded kisses and hugs from her, kissed her
without permission, denied her travel expenses, restricted her overtime
and compensatory vacation time, drafted baseless disciplinary letters and
placed them in her personnel file, and conducted bad faith investigations
of her work.
Plaintiff further alleges that the New York State Department of Civil
Service ("DSC") denied her certain opportunities for promotion or
advancement within the DOE based on her race. She alleges that she scored
acceptably on certain Civil Service examinations but received no
promotions. Further, she contends that various state agencies named in
her complaint misrepresented to her that her position as an EDPA
presented promotional opportunities, while it actually is a
noncompetitive position that has no promotional possibilities.
On May 5, 1997, Plaintiff filed an administrative complaint with the
New York State Division of Human Rights ("NYSDHR") alleging sexual
harassment. On May 16, 1997, DOE Supervisor Shelia Evans-Tranumn
transferred Plaintiff to the Child, Family and Community Services office
in Albany, New York, effective August 1997. Plaintiff filed additional
EEOC complaints in August, 1997 and December, 1998.*fn1
A. Summary Judgment Standard
A court should grant a motion for summary judgment only if "there is no
genuine issue as to any material fact and when, based upon facts not in
dispute, the moving party is entitled to judgment as a matter of law."
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552-53, 91 L.Ed.2d 265 (1986)). In making this determination, the
court must resolve all ambiguities and draw all reasonable inferences in
a light most favorable to the non-moving party. See id. (citing
United States v. Diebold, Inc., 369 U.S. 654, 655,
82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)). Although discrimination
cases often involve a fact-intensive inquiry that precludes summary
judgment, a court may award summary judgment where a fact finder could
not infer a discriminatory motive. See McLee v. Chrysler Corp.,
109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta
Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
With these standards in mind, the Court will address each of
Title VII imposes an exhaustion requirement that allows federal courts
to exercise jurisdiction over a plaintiff's Title VII claims only when
the plaintiff has previously presented the claims in her EEOC complaint.
See Terry v. Ashcroft, 336 F.3d 128, 150-51 (2d Cir. 2003).
However, the exhaustion requirement does not bar federal courts from
taking jurisdiction over claims that are "`sufficiently related to the
allegations in the [EEOC] charge that it would be unfair to civil rights
plaintiffs to bar such claims in a civil action[.]'" Id. at 151
(quotation omitted). To meet the "sufficiently related" requirement, a
plaintiff must show that (1) the alleged wrongful conduct would fall
within the scope of any EEOC investigation that would arise from the
plaintiff's EEOC complaint; or (2) the alleged wrongful conduct
constitutes an employer's retaliation for the plaintiff's EEOC complaint;
or (3) the employer has carried out the alleged wrongful conduct in
exactly the same manner alleged in the EEOC complaint. See id.
(quoting Butts v. City of New York Dep't of Hous. Pres. &
Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993) (superceded on other
grounds)) (other citation omitted).
Defendants maintain that this Court has no jurisdiction over several of
Plaintiff's allegations because her EEOC complaints lacked any factual
specificity. To wit, Plaintiff alleges that Mr. Gaughan discriminated
against her by refusing to recognize her accrued compensatory time and
work-related travel; by directing office staff to route Plaintiff's calls
directly to him when she telephoned the office to request sick days; by
repeatedly criticizing the quality of Plaintiff's work; and accusing her
of abusing travel allowances. Further, Defendants contend that
Plaintiff's December 1998 EEOC complaint fails to identify any specific
denied promotional opportunity,
and, therefore, Plaintiff cannot present any claims of promotion
denials in her federal court claim.
In response, Plaintiff contends that she can meet the Butts
exception because the NYSDHR actually investigated the majority of her
claims, including "hosfile work environment, race discrimination, failure
to promote, `time and travel records,' out of title work, retaliatory
transfer, kissing, and comp/overtime." See Plaintiffs Memorandum
of Law at 10.*fn2
Plaintiff did claim Mr. Gaughan sexually harassed her in her May, 1997
EEOC complaint. Therefore, the EEOC would reasonably have investigated
the working relationship between the two, which could have incorporated
the allegations cited. Therefore, Plaintiffs allegations regarding
Gaughan's attempt to discipline her are not jurisdictionally barred.
The basis for Plaintiff's failure-to-promo te claim is that she
performed work that was above-her-grade but received no promotions.
Although Plaintiff identified no specific promotional opportunity, based
on Plaintiff's complaint, the EEOC would reasonably have investigated any
race-and/or gender-based promotional denials occurring prior to
Plaintiff's December, 1998 EEOC complaint. Therefore, the Court has
jurisdiction over any of Plaintiff's failure-to-promote claims arising
before December, 1998.
However, Plaintiff has also alleged a new set of discriminatory acts
related to the DOE's failure to promote her, all of which occurred after
December, 1998. For example, Plaintiff contends that in January, 2001,
DOE denied her a promotion to Nutrition Program Representative
and in April-May, 2002, DCS disapproved Plaintiff's application to
take certain civil service exams. Plaintiff never brought any of these
claims before the EEOC at any point and has acknowledged that the NYSDHR
investigation concluded before some of the events even occurred. The
Court therefore grants summary judgment to Defendants with respect to any
of Plaintiff's failure-to-promote claims arising after December, 1998,
the date of her final EEOC complaint.
C. Sexual Harassment Claims
1. Timeliness of Plaintiff's claims
Under Title VII, a charge "shall be filed by or on behalf of the person
aggrieved within three hundred days after the alleged unlawful employment
practice occurred. . . ." 42 U.S.C. § 2000e-5(e)(1); see
also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982).
With respect to hosfile work environment sexual harassment claims, the
Supreme Court has held that where a single act contributing to the
hosfile environment occurs within 300 days of the filing of the charge, a
court may then consider all acts which contributed to the hosfile
environment, even where some of the acts occurred more than 300 days
before the filing of the charge. See National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-17 (2002); see also Elmenayer v. ABF
Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir. 2003) (quotation
Plaintiff filed her EEOC complaint on May 5, 1997. Defendants request
that the Court dismiss the specific discrete claims of Plaintiff that
occurred prior to this 300-day period, i.e, that Mr. Gaughan asked for a
kiss in May, 1995, and her claim that he re-routed her incoming calls to
himself sometime between January and April, 1997.
Insofar as these allegations are part of a hosfile work environment
claim, under the National R.R. standard, they are timely.
However, insofar as these allegations form the basis for a quid pro
quo claim, which constitutes a discrete act, they are not timely,
and the Court therefore will not consider them. See Gonzalez v.
Bratton, Nos. 96 CIV. 6330, 97 CIV. 2264, 2000 WL 1191558, *9
(S.D.N.Y. Aug. 22, 2000) (citation omitted).
2. Hosfile work environment sexual harassment claim
a. Hosfile work environment
To establish a prima facie case of hosfile work environment
sexual harassment under either Title VII or New York Human Rights Law
based upon the conduct of her co-workers, a plaintiff must demonstrate
"(1) harassment that was sufficiently severe or pervasive to alter the
conditions of her employment, creating an abusive working environment,
and (2) a sufficient basis for imputing the conduct that created the
hosfile environment to her employer." Ferris v. Delta Air Lines,
Inc., 277 F.3d 128, 136 (2d Cir. 2001) (citing Perry v. Ethan
Allen, Inc., 115 F.3d 143, 149(2d Cir. 1997)).
As stated, the plaintiff must first establish that the evidence will
show that the conduct complained of is ""`sufficiently severe or
pervasive to alter the conditions of employment and create an abusive
working environment.'"" Rivera v. Prudential Ins. Co. of Am.,
Nos. 95-CV-0829, 95-CV-0830, 1996 WL 637555, *8 (N.D.N.Y. Oct. 21, 1996)
(quoting Kotcher v. Rosa and Sullivan Appliance Center, Inc.,
957 F.2d 59, 63 (2d Cir. 1992)). To do so, a plaintiff must demonstrate
harassment that consists of "`more than isolated incidents or casual
comments that express harassment or hostility.'" Id. (quoting
Babcock v. Frank, 783 F. Supp. 800, 808 (S.D.N.Y.
1992)). "`[T]he incidents must be repeated and continuous; isolated
acts or occasional episodes will not merit relief.'" Id.
(quoting Kotcher, 957 F.2d at 63 (citing Carrero v. New York
City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989))).
As Plaintiff is an African-American woman, she is a member of a
protected class and has therefore met the first element of her prima
facie case. Plaintiff points out that she has also shown that she
was subject to a hosfile work environment, as Defendants have
acknowledged that Mr. Gaughan attempted to kiss her on the cheek on at
least three separate occasions. She testified that she felt humiliated at
the time. Moreover, Plaintiff contends that Mr. Gaughan subjected her to
pervasive adverse employment actions including negative evaluations,
restrictions on work-related travel and union activity, and an
intra-departmental transfer against her will.
Defendants contend that Plaintiff is unable to show any objective or
subjective harassment because three alleged kisses on the cheek in a
two-year period are not severe and pervasive. According to Defendants,
Plaintiff and Mr. Gaughan were almost never alone together, and Mr.
Gaughan never attempted to seduce Plaintiff or subject her to any other
physical contact whatsoever. Defendants further point out that Plaintiff
did not respond to Mr. Gaughan as though she was offended; she
acknowledged that she answered "Hi" when he greeted her with a kiss.
The Court doubts that three kisses on the cheek in a two-year period,
which Plaintiff has acknowledged served as greetings, could constitute
the "severe or pervasive" harassment that gives rise to a cause of action
under Title VII. Moreover, as Defendants point out, Plaintiff has not
come forward with any evidence at all that gender animus motivated Mr.
Gaughan's actions. However, the Second Circuit has held that a
plaintiff's burden to establish a material issue of fact with respect to
a "hosfile workplace" claim is not great. Richardson v. New York
State Dep't of
Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (citation
omitted). Therefore, the Court will assume, without deciding, that
Plaintiff has raised a fact issue with respect to whether the three
attempted kisses can constitute a hosfile workplace.
b. Imputation of conduct to employer
Under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), an
employer is presumed liable for the sexual harassment of an employee by a
supervisor with immediate or successively higher authority over her.
See Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at
765. However, in a hosfile work environment claim that does not culminate
in a tangible employment action, the employer may escape liability by
demonstrating "(a) that the employer exercised reasonable care to prevent
and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise." Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. For purposes of this analysis, "a
tangible employment action occurs where a supervisor acts with the
employer's authority and makes a decision that `inflicts direct economic
harm' on the employee and `constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.'" Wilburn v. Fleet Fin. Group,
Inc., 170 F. Supp.2d 219, 227 (D. Conn. 2001) (quoting
Ellerth, 524 U.S. at 761, 762, 118 S.Ct. 2257).
To determine whether an employer has used reasonable care under the
first prong of the Faragher/Ellerth defense, courts will examine
the extent to which an employer has created and
disseminated a sexual harassment policy that includes a mechanism
for reporting harassment. See Wilburn, 170 F. Supp.2d at 229.
Courts will also examine the extent to which the employer has enforced
its policy. See id. To prove that an employee failed to take
advantage of corrective opportunities, the employer must meet the
"initial burden of demonstrating that an employee has completely failed
to avail herself of the complaint procedure[.]" Leopold v. Baccarat,
Inc., 239 F.3d 243, 246 (2d Cir. 2001).
Defendants are correct that, even if Plaintiff could show that the
three attempts to kiss her on the cheek, without any other touching,
innuendo, or comment, constituted sexual harassment, she cannot meet the
imputation prong of her prima facie case.*fn3 With respect to
the prong of the Faragher/Ellerth defense which requires that a
defendant show that it acted with reasonable care, Plaintiff acknowledges
that, during the entire period when Mr. Gaughan allegedly harassed her,
the DOE had published an anti-harassment policy with a complaint
mechanism. Plaintiff admits that she never took advantage of the policy
by complaining to any of Mr. Gaughan's supervisors or to the designated
Affirmative Action Officer.
With respect to the second prong of the defense, Plaintiff has not
alleged that Defendants or Mr. Gaughan perpetrated any tangible
employment action against her.*fn4 In response to
Plaintiff's claim that Mr. Gaughan barraged her with disciplinary
memoranda, Defendants contend that the memoranda were neither threatening
nor disciplinary in nature and further point out that Plaintiff
acknowledged that she suffered no disciplinary proceedings or loss of
benefits because of the memoranda. Finally, even if a lateral transfer
with no loss of benefits, privileges, or rank could constitute a tangible
employment action, Plaintiff acknowledges that it was Ms. Evans-Tranumn,
not Mr. Gaughan, who transferred her between two DOE departments.
Accordingly, the Court grants summary judgment to Defendants with respect
to Plaintiff's hosfile work environment sexual discrimination claim.
3. Quid pro quo sexual harassment
To establish a quid pro quo sexual harassment claim, a
plaintiff must show that she experienced "explicit discriminatory
alterations in the terms or conditions of [her] employment" because of
her refusal to submit to a supervisor's explicit sexual demands. Jin
v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir. 2002).
Plaintiff's quid pro quo claim centers on the fact that the
adverse employment actions that she enumerated occurred after she
rejected Mr. Gaughan's kisses. She asserts that, under Karibian v.
Columbia University, she does not need to present evidence of actual
economic loss in order to state a valid quid pro quo claim.
See Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir. 1994).
Defendants contend that Plaintiff has acknowledged that Mr. Gaughan
never explicitly or
implicitly promised any benefit or threatened any harm in exchange
for Plaintiff's acquiescence in his kisses; as a result, Plaintiff cannot
show any nexus between Mr. Gaughan's attempts to kiss her and any of her
claimed retaliatory acts. Moreover, Defendants have proffered legitimate
reasons for the allegedly retaliatory acts. With regard to Plaintiff's
claim that she was denied travel and overtime, Defendants point out that
Plaintiff admitted that Mr. Gaughan disapproved neither travel nor
overtime but instead suggested that Plaintiff adjust her travel schedule
to avoid incurring overtime while traveling. Moreover, since Mr.
Gaughan's superiors had implemented a nondiscriminatory policy against
overtime, his restrictions on Plaintiff's time were legitimate and
unrelated to the kissing or any other harassing incident.
Defendants are correct that Plaintiff has failed to point to any facts
that would support a causal connection between Mr. Gaughan's alleged
demands for kisses and his alleged campaign of discipline and
restrictions. She does not claim that Mr. Gaughan threatened her
implicitly or explicitly or that he conditioned any benefit on her
acquiescence to the alleged demands that she kiss him. She apparently
relies solely on temporal proximity to attempt to establish a link
between his alleged requests for kisses and the discipline and
restrictions.*fn5 However, Plaintiff claims that the last rebuffed
attempted kiss from Mr. Gaughan occurred in January, 1997. Mr. Gaughan
did not begin questioning Plaintiff's overtime or travel expenses until
April, 1997, four months later; the Court therefore grants summary
judgment to Defendants as to Plaintiff's quid
pro quo claim.
4. Retaliation claim
To establish a prima facie case of retaliation under Title
VII, a plaintiff must show that (1) she engaged in a protected activity;
(2) her employer was aware of that activity; (3) her employer took
adverse action against her; and (4) a causal connection exists between
the protected activity and the adverse action. See Raniola v.
Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (quotation omitted);
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir.
1997) (citations omitted). For purposes of a retaliation claim:
an "adverse employment action" constitutes a
"materially adverse change" in the employee's
working conditions, . . ., such as
termination, demotion, or a reduction in wages or
benefits. . . . "[L]ess flagrant reprisals by
employers may [also] be adverse." . . . Because
there are no bright-line rules as to which
employment actions meet the threshold for
"adverse," courts must make this determination on
a case-by-case basis.
Wilburn, 170 F. Supp.2d at 236-37 (internal quotations
and citations omitted).
Once a plaintiff has established her prima facie case of
retaliation by a preponderance of the evidence, the burden shifts to her
employer to articulate a legitimate, non-discriminatory reason for the
employment decision. See, e.g., McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506-08 (1993). The burden then shifts back to
the plaintiff who must then show that the employer's proffered reason is
merely a pretext and that the real reasons for its actions were
discriminatory. See McDonnell Douglas, 411 U.S. at 804.
As stated, Plaintiff contends that she first engaged in protected
activity in January, 1997,
when she told Mr. Gaughan that she thought his attempts to kiss her
were unprofessional. Plaintiff then claims that Defendants retaliated
against her in the following manner: Mr. Gaughan sent her multiple
memoranda asking her to explain her travel expenses, daily schedule, and
claimed overtime; a DOE employee, Rosewita Apkarian, asked her to
document some of her travel expenses; and Ms. Evans-Tranumn transferred
her to another department within DOE.
Notwithstanding the above, Defendants are correct in their assertions
that Plaintiff has not shown any materially adverse change in her working
conditions. Plaintiff admitted that the transfer changed no aspect of her
job except to allow her to work for a different supervisor and that Ms.
Evans-Tranumn likely was not aware that Plaintiff had filed any sexual
harassment complaint. Moreover, Plaintiff acknowledged that neither Mr.
Gaughan's memoranda nor Ms. Apkarian's investigation resulted in any
discipline, loss of rank, loss of salary, permanent change in her
personnel record, or loss of benefits.*fn6
Accordingly, the Court grants Defendants' motion for summary judgment
as to Plaintiff's retaliation claims.
D. Race Discrimination Claims
1. Timeliness of Plaintiffs claims
Plaintiff alleged the following acts of racial discrimination in her
complaint and Statement of Material Facts:
1) 1985: Plaintiff accepted a position as an EDPA;
the DOE did not disclose to her that the position
was noncompetitive. DOE has not approached
Plaintiff regarding any opportunities for
promotion or advancement.
2) 1987: Plaintiff did not receive an unspecified
3) 1990: A DCS Director of Personnel, Charles
Byrne, informed Plaintiff that DCS does not hire
from a civil service exam that she allegedly took,
and an undisclosed supervisor told Plaintiff that
she was not entitled to a provisional appointment
to a new DOE unit.
4) 1991: Steve Earl, an Affirmative Action
Officer, told Plaintiff that he could not
facilitate a reassignment for her.
5) 1993, 1994, 1996: DCS did not permit Plaintiff
to sit for certain civil service exams because she
did not meet the requisite qualifications.
6) 1996 present: Plaintiff has not
received anyjob performance evaluations.
Defendants maintain that all Plaintiffs claims relating to the EDPA
title or civil service exams arose prior to the 300-day cut-off date of
March 3, 1998, and are therefore time-barred. Since all of these claims
are alleged as separate discrete acts of discrimination, the Court agrees
that such claims are time-barred.
Although Plaintiff does not dispute that each of her claims arose well
before the 300-day look-back period, she argues that, even if the Court
determines that some claims are time-barred, the Court should toll the
300-day look-back period for equitable reasons. Plaintiff does not offer
any reasons for her delay in filing a claim, while she argues that the
Court should consider her untimely claims by applying the continuing
violation exception.*fn7 However, Plaintiff did not assert
the continuing violation exception in her EEOC charge or complaint,
and, in any event, failures to promote do not form the basis for a
continuing violation claim. See Delrio v. Univ. of Conn. Health
Care, 92 F. Supp.2d 412, 420 (D. Conn. 2003) (collecting cases).
Accordingly, the Court grants Defendants' motion for summary judgment as
to Plaintiff's race discrimination claims.
Plaintiff first engaged in protected activity in May, 1997, when she
filed her first EEOC complaint, which alleged racial and sexual
discrimination. Plaintiff did not allege any independent facts to support
her claim of race-based retaliation. However, even if the Court were to
consider the factual allegations that support her claim of gender-based
retaliation as support for her claim of race-based retaliation, her claim
would fail for the reasons stated above.
Accordingly, the Court grants summary judgment to Defendants with
respect to any remaining claims of race-based retaliation.
After carefully considering the file in this matter, the parties'
submissions and oral arguments, and the applicable law, and for the
reasons stated herein as well as at oral argument on February 27, 2004,
the Court hereby
ORDERS that Defendants' motion for summary judgment is
GRANTED in its entirety; and the Court further
ORDERS that the Clerk of the Court enter judgment in favor of
Defendants and close this case.
IT IS SO ORDERED.