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April 9, 2004.

DEBORAH MILLER, Plaintiff, -vs- SAINT-GOBAIN ADVANCED CERAMICS CORPORATION (Formerly known as Carborundum Corporation), Defendant

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


Plaintiff Deborah Miller ("Miller") commenced this civil action on January 18, 2002 against her current employer, Saint-Gobain Corporation ("Saint-Gobain"). Miller alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and the New York Human Rights Law, N.Y Exec. Law § 290 et seq. ("HRL"). On March 21, 2003, Saint-Gobain filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). This motion was argued and submitted on September 26, 2003. For the reasons set forth below, Saint-Gobain's motion will be granted.

Miller began employment with Saint-Gobain, then known as Carborundum Corporation, on October 24, 1985 and remains employed there today. From 1986 through January 2002 Miller worked as a journeyman machinist in the Grinding Department, which comprises two areas: Green Machine and Grind Shop.*fn2 Although Miller frequently worked in Green Machine, she could be assigned to work in either area depending on the respective workload in the department.

  Miller asserts that, starting in approximately mid-1999, she observed co-workers reading magazines such as Penthouse, Playboy or Hustler and otherwise observed such magazines in tool drawers. Miller testified that she threw away each magazine that she found.

  During the second half of 1999 and with the acquiescence of Miller's union, Saint-Gobain developed new attendance guidelines in an effort to improve attendance. All of the affected employees were trained at that time with respect to the new system for tracking attendance. On April 6, 2000, in accordance with the new policy, Miller received a "friendly verbal" warning about her attendance. Miller did not file a grievance about this warning.

  On May 16, 2000 Miller found an offensive joke on her workbench. Miller brought the document to her supervisor, John Winstanley, who said that he would "take care of it." Miller subsequently discovered who was responsible for the joke, but she did not inform management because she did not want to implicate a co-worker and because she thought that "it was their job, not mine, to find out who did it."

  On May 17, 2000 Miller found an offensive magazine in a drawer in the Green Machine area; she threw it out and did not report the incident. On June 20, 2000 a photograph of a partially nude female was posted on the company bulletin board, within several feet of the foreman's office.

  In mid-June 2000 Miller informed Human Resources Manager Joan McGarvey that David Miller*fn3 had been giving her "less desirable" work assignments and shifts and that he intentionally assigned her work that a shoulder injury restricted her from performing. On July 19, 2000 a meeting occurred between Miller, McGarvey, David Miller, and two union representatives to discuss Miller's claims of gender-based favoritism in work assignments, training and scheduling of shifts.

  When Miller complained to McGarvey about the presence of adult materials in the plant, McGarvey investigated Miller's complaint. McGarvey was unable to locate any adult materials. To preempt debate about the offensiveness of any particular material, the management and supervisory teams subsequently reached a consensus to remove all personal reading materials from work areas.

  On June 29, 2000 Miller allegedly observed a co-worker reading an issue of Playboy magazine. Miller reported the incident to David Miller, who could not find the magazine but instructed all employees to remove all reading materials from the work areas.

  On July 19, 2000 Miller saw a calendar that allegedly contained a photograph of a partially nude female. The next day, Miller photographed the calendar and reported it to David Miller, who removed it immediately. During this time, Miller's co-workers complained to McGarvey and to their supervisors that Miller had been wandering throughout the plant, writing observations of her co-workers in a notebook and making unsolicited comments about personal items and photographs that they had on display.*fn4 Several of Miller's co-workers approached management to protest the decision to remove non-offensive personal reading materials.

  On July 21, 2000 a copy of an Ann Landers column appeared on a bulletin board in Miller's work area.*fn5 Nothing on the document itself targeted Miller, but she and two union stewards believed that the document was directed at her. Miller subsequently discovered who posted the column, but did not share this information with management. Later that day, the sexual epithet "cunt" appeared scrawled on Miller's mailbox.*fn6 The graffiti was removed under the shift supervisor's direction. Miller left work early that day by permission and was not paid for the hours not worked.

  On July 24, 2000 Miller met with McGarvey regarding the mailbox obscenity and the Ann Landers column. McGarvey investigated these incidents and wrote Miller a memo summarizing the actions. The memo, which was copied to David Miller, indicated that Saint-Gobain would continue to monitor the workplace for offensive materials and that it would keep all personal reading material out of the workplace.

  On August 1, 2000 Miller saw a co-worker reading an issue of Penthouse magazine. Miller did not report the incident and did not discuss it with the co-worker. On August 8, 2000 Miller saw a co-worker in the boiler-room reading a "smut magazine." When Miller asked the co-worker what he was doing, he put the magazine in a filing ...

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