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United States District Court, W.D. New York

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 cabinet and left the room. Miller, however, did not report the incident or turn in the magazine.

  On August 8, 2000 Miller received her first written warning about attendance. At that time, Miller alleged to McGarvey that Saint-Gobain did not enforce its attendance policy equally against all employees. On October 17, 2000 Miller received her second written warning about attendance. Miller and her union filed a grievance alleging that the attendance guidelines were not enforced equally across departments. After finding that some departmental supervisors were calculating absenteeism percentages differently, Saint-Gobain resolved the grievance by removing Miller's first written warning from her file.

  Between October and December 2000 Miller encountered adult magazines in the Green Machine break room or at co-workers' work stations three more times. Miller did not report any of these incidents.

  On February 1, 2001 Miller saw a picture of a nude woman posted on a bulletin board. Miller reported the picture to McGarvey, who determined that the picture was a photograph of a piece of art that had been cut out of a newspaper.*fn7 The picture was taken down immediately and the responsible co-worker received a written warning from McGarvey. Saint-Gobain also issued a general warning that such conduct would result in immediate termination. Miller received a memo from McGarvey summarizing the incident and its resolution.

  Miller was on disability leave from June 2001 through September 2001 due to a shoulder injury. Miller returned to work in October 2001 and worked without incident until she chose to transfer out of the machinist classification in January 2002.

  On February 6, 2001 Miller filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"), which issued a determination in Miller's favor.*fn8 The EEOC issued a right-to-sue letter on December 31, 2001. Miller filed this action on January 18, 2002.

  FRCvP 56(c) states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).*fn9 With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.*fn10 Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law * * *." Anderson, at 248.

  Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255).*fn11 Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, supra note 9, at 18. Indeed, to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars * * *." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller & Co., Inc., 258 E3d 62, 69 (2d Cir. 2001). To the extent that Miller's Affidavit dated July 30, 2003 contradicts her deposition testimony, it will be disregarded.*fn12

  Turning to the governing substantive law, Miller claims that Saint-Gobain discriminated against her on the basis of gender by fostering a hosfile work environment. Title VII states that "[i]t shall be 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 * * * sex * * *." 42 U.S.C. § 2000e-2(a)(1).*fn13 Sexual harassment claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.*fn14 A Title VII plaintiff bears the initial burden of making out a prima facie case of discrimination.*fn15 Nonetheless, the plaintiff's burden of proof at the summary judgment stage is de minimis.*fn16 As discussed below, Miller cannot satisfy a prima facie case of hosfile work environment. Consequently, this Court need not apply the McDonnell Douglas burden-shifting analysis.

  For Miller to establish a Title VII claim based on a hosfile work environment claim, she must show "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hosfile environment to the employer."*fn17 The discriminatory intimidation alleged by Miller must be "offensive or pervasive enough that a reasonable person would find it hosfile or abusive and must have been actually perceived by [Miller] as abusive."*fn18 In determining whether a hosfile environment existed, this Court must look at the totality of the circumstances of the alleged conduct including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."*fn19 Miller "must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment."*fn20 Isolated incidents of discriminatory comments or conduct — unless extremely serious — are not sufficient to establish a hosfile working environment.*fn21

  Miller fails to raise a genuine issue of material fact whether the alleged conduct may be attributed to Saint-Gobain. Saint-Gobain had a policy against sexual harassment. Because Miller failed to report many of the alleged offensive incidents, such conduct cannot, under the circumstances, be imputed to Saint-Gobain.*fn22 Moreover, with respect to the incidents that Miller did report, Saint-Gobain took responsive action such as removing the materials in question, prohibiting all reading materials in the workplace and removing the sexual epithet from Miller's mailbox the day it was discovered. Indeed, Saint-Gobain met with Miller at least three times to discuss her concerns about workplace harassment. Saint-Gobain also issued a written warning to the co-worker who posted the newspaper cutout of Lady Godiva on an employee bulletin board. Despite conclusory allegations to the contrary, Miller only proffered evidence of sexual harassment by co-workers. When "a `co-employee' — as distinct from a supervisor — is alleged to have engaged in harassing activity, the employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it." Quinn, supra note 13, at 766 (internal quotation marks and citation omitted). Saint-Gobain had a sexual harassment policy that it enforced in response to Miller's complaints. Accordingly, Miller's hosfile work environment claim will be dismissed.*fn23

  Turning to Miller's disparate treatment claim, she must show that "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination."*fn24 The fourth element "may be proven by showing that a man similarly situated was treated differently."*fn25

  Miller claims that she was treated differently from her male co-workers with respect to (1) work assignments, (2) access to meetings, (3) access to training, (4) overtime and (5) enforcement of Saint-Gobain's attendance policy. Miller has failed to raise a genuine issue of material fact that she was treated differently than similarly situated male co-workers because her allegations lack evidentiary support. For example, although Miller was assigned "undesirable" work assignments, such tasks were par for the course in her department. Indeed, Miller has not proffered any evidence that her male co-workers were not assigned such tasks or that she received a disproportionate share of such assignments.*fn26 Second, with respect to a June 9, 2000 meeting to which Miller was allegedly not invited, she has proffered no evidence that she was not invited because of her gender. Indeed, she proffers no evidence of the gender of any of the participants. Third, with respect to training, Miller claims that she was denied training on two pieces of equipment: a Harrison and an Auto-Loader. Miller's female co-worker, Suzy Meinhart, was trained on the Auto-Loader. Only three out of thirty-nine machinists were trained on the Harrison and Miller proffered no evidence that gender played a role in the selection of such trainees. Fourth, with respect to overtime, Miller proffered no evidence that male co-workers were granted "open" requests for overtime.*fn27 Finally, with respect to Saint-Gobain's enforcement of its attendance policy, Miller has proffered no evidence that such was not fairly administered between the sexes.*fn28 Accordingly, Miller's disparate treatment claim will be dismissed because she has failed to allege, inter alia, an adverse employment action.*fn29

  Finally, turning to Miller's retaliation claim, she must, in order to establish a prima facie case of retaliation, show "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging [her]; and (3) a causal connection between the protected activity and the adverse employment action." Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (internal quotation marks and citation omitted). Employer conduct constitutes an adverse employment action when it effects a materially adverse change in the terms and conditions of employment.*fn30 As discussed above, however, Miller, did not experience an adverse employment action and proffers no evidence that she was disadvantaged as alleged.

  Even assuming arguendo that Miller's voluntary transfer out of her department constitutes an adverse employment action, eleven months separated Miller's last alleged incident of harassment in February 2001 and her decision to leave the machinist area in January 2002. Temporal proximity between the employer's knowledge of protected activity and an adverse employment action can support a finding of retaliation, but only when the temporal proximity is very close. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). No specific deadline exists beyond which temporal proximity cannot support a retaliation claim,*fn31 but the eleven-month time lag in this action is insufficient to support Miller's retaliation claim.*fn32 Miller, therefore, cannot rely on temporal proximity to support a retaliation claim. Consequently, Miller's retaliation claim will be dismissed.

  Accordingly, it is hereby ORDERED that Saint-Gobain's motion for summary judgment is granted and that the Clerk of the Court shall close this case.

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