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MACRI v. NEWBURGH ENLARGED CITY SCHOOL DISTRICT

United States District Court, S.D. New York


June 7, 2004.

CHRISTINE MACRI, Plaintiff, -against- NEWBURGH ENLARGED CITY SCHOOL DISTRICT and JACK SMITH, in his individual capacity, Defendants

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District

OPINION AND ORDER

Christine Macri sues defendant Newburgh Enlarged City School District ("the Newburgh School District"), alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2000), and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 (McKinney 2004), and sues defendant Jack Smith in his individual capacity, alleging that he subjected her to a hostile work environment in violation of the Equal Protection Clause, as made actionable under 42 U.S.C. § 1983.*fn1 Defendants move for summary judgment on all claims pursuant to Fed R. Civ. P. 56. For the reasons stated below, defendants' motion is granted as to Macri's claims that she was not promoted because of her sex, but is denied as to her hostile work environment claims. In addition, Macri is given leave to amend her complaint to include the retaliation claims she describes in her response to defendants' summary judgment motion. I.

  The following relevant facts are either undisputed or presented in the light most favorable to the plaintiff.

  Christine Macri was first hired by the Newburgh School District in 1993. (Deposition of Christine Macri ("Macri Dep.") at 7) Between 1993 and April 1999, Macri worked first as a part-time food service helper in the Temple Hill School cafeteria and then as a full-time cleaner for South Junior High. (Id. at 7, 11-13) During the 1997-98 school year, when she was working at South Junior High, Macri received strong performance evaluations, and her supervisors reported that she made good use of her time. (Affirmation of Dana L. Rudikoff, Esq. ("Rudikoff Aff."), Ex. 1) In April 1999, Macri was reassigned to Meadow Hill School, where she continued to work as a cleaner until March 2001, save for a two-month absence on workers' compensation disability leave from mid-July to early September 1999. (Macri Dep. at 6, 46-47, 50; Rudikoff Aff., Ex. 3) Because Meadow Hill already had a full custodial staff when Macri was transferred there, Macri was assigned to the cleaning crew as an "additional person", which meant that she had a light schedule of regular assignments but would be required to take over the assignments of absent employees. (Affidavit of Vincent Quaglietta ("Quaglietta Aff.") ¶ 9; Affidavit of Robert Murray ("Murray Aff.") ¶ 6) Macri was never told that she was considered an "additional person", and she learned the job responsibilities of a cleaner who was retiring. (Affidavit of Christine Macri ("Macri Aff.") ¶ 3)

  A. Work Environment

  At Meadow Hill, Macri was the only woman on the nine-person cleaning crew, which was supervised by defendant Jack Smith, who was Head Custodian. (Macri Dep. at 48, 51-52) Smith was a difficult person to work for: male crew members found him loud, belligerent, overly critical, arrogant, sarcastic, belittling, and disrespectful. (Affidavit of Thomas Fanizza ("Fanizza Aff.") ¶¶ 3-6; Affidavit of Jay Meyers ("Meyers Aff.") ¶ 9) Smith sometimes yelled at or criticized members of the custodial crew in public in ways that were demeaning or insulting. (Fanizza Aff. ¶¶ 4-5; Macri Dep. at 187-88) Smith once snatched a mop out of a male custodian's hands and angrily demonstrated how to mop the floor. (Meyers Aff. ¶ 10) On at least one occasion, Smith used a racial slur to refer to some of Macri's male coworkers who were not present. (Macri Dep. at 83; Rudikoff Aff., Exs. 10, 14) Smith also frequently used off-color language around members of the cleaning crew. (Macri Dep. at 103-09, 297-99; Fanizza Aff. ¶ 7)

  According to Macri, Smith was louder, more bullying, and more intimidating to her than to male crew members. (Macri Aff. ¶ 16) One day in September 1999, Macri left her tasks to use the bathroom and was gone for about ten minutes; when she returned, Smith told her, "You took so long, I timed you. `You took 20 minutes." (Macri Dep. at 282-85; Defendants' Statement Under Local Rule 56.1 ("Defs. Rule 56.1 Stmt."), Ex. C, at 2) After this incident, Smith waited outside the bathroom for her on two other occasions during the next year, and on one of those occasions, he rolled his eyes and walked away when she emerged. (Macri Dep. at 286-88, 291-92) One day in October 1999, Macri was mopping when Smith grabbed the mop from her hands, yelled at her, and demonstrated how he wanted her to mop the floor, but Smith did not criticize her male coworker, who was also mopping. (Id. at 221-26) Smith also told Macri once in October 1999, while he was criticizing her, that he was going to fill a water pistol with cat urine and squirt her. (Id. at 95, 123-25) Starting in March 2000, Smith sometimes whistled at Macri to get her attention, which Macri never observed him do to her male coworkers. (Id. at 361-63; Macri Aff. ¶ 19; Defs. Rule 56.1 Stmt., Ex. D, at 9)

  Some of Smith's comments and insults were explicitly related to or based on sex. Smith sometimes used the term "bitch" when referring to other female employees at the school. (Macri Dep. at 70-75, 296) On three or four occasions, Smith said to Macri sarcastically, "You're like my ex-wife," and once in September 1999, Smith told Macri, in a negative tone of voice, that she was just like his daughter. (Id. at 55-57, 271-72, 275-76) On one occasion in September 1999, Smith said to Macri, "Why don't you get on your broom and fly it?" (Id. at 85; Defs. Rule 56.1 Strut., Ex. C, at 1) In November 1999, in Macri's presence, Smith was conversing with another man, who commented that his wife "thought she knew it all"; Smith responded, "Women don't know anything," and glared at Macri in disgust.*fn2 (Macri Dep. at 59-60, 300-02; Defs. Rule 56.1 Stmt., Ex. C, at 2-3) On another, occasion during the 1999-2000 school year, Macri was carrying boxes, and Smith looked at her breasts and said, "Those things get in your way." (Macri Dep. at 109-11) On two or more occasions, Smith called Macri a "ball-buster", and he once told Macri that his wife used to model "sexy underwear". (Id. at 115-16, 126-27, 311-12) Once in March 2000, Smith told a male employee to mop a floor that Macri was mopping, saying "She doesn't know how to do it" and making the word "she" louder than the other words. (Id. at 354-55) One day in April 2000, Macri was working in the cafeteria, and Smith entered, pointed at Macri, yelled, "One guy isn't doing what he's supposed be doing," and then followed her around with a push broom. (Id. at 366-67) On two other occasions around the time of the push broom incident, Smith followed Macri around with the floor cleaning machine or broom trying to hit her with it, which Macri never saw him do to her male coworkers. (Id. at 370, 378)

  In February 2000, Smith also told a number of his superiors that he found Macri and coworker Tom Fanizza in a large supply closet together, apparently suggesting to his superiors. that Macri and Fanizza were loafing on the job.' (Id. at 239-41, 246, 344-51; Deposition of Linda Sabatella ("Sabatella Dep.") at 31-39; Deposition of John Smith ("Smith Dep.") at 78-80; Murray Aff. ¶ 8) This story led to a rumor, spread by other unidentified people*fn3, that Macri and Fanizza had been engaging in sexual misconduct, when in fact Macri was retrieving her coat from the closet and Fanizza was there to gather supplies. (Macri Dep. 239-40, 345-46) However, Macri admitted that, as far as she knew, no one had ever heard Smith say that he believed she and Fanizza had been engaged in a sexual encounter, and she does not allege that he ever implied such a thing. (Macri Dep. at 244-45, 345-46)

  Macri's problems with Smith were not limited to his alleged offensive statements. First, until fall 2000, Smith disproportionately assigned the tasks of absent cleaners to Macri and not to her male coworkers, although Smith claims that he assigned Macri the extra work because of her lighter schedule. (I(L at 229-38; Smith Dep. at 20) When she was assigned extra tasks, Macri continued to work the same hours and was not disciplined if she failed to finish. (Macri Dep. at 234) Second, Smith occasionally assigned undesirable tasks to Macri and not her male coworkers: Macri was assigned to clean dirty vacuums on October 5, 1999; to clean up vomit on March 14, 2000; and to wash all the windows in the school in August 2000. (Id. at 293-94, 356-57, 394-405; Macri Aff. ¶ 18) Third, when Macri and Smith were the only members of the custodial staff to come to work on the day after a hurricane, Smith told Macri that the two of them would have to work all day; Macri believes that Smith would not have required a male cleaner to stay all day. (Macri Dep. at 302-05) Fourth, Smith let Macri's male coworkers have lunch at noon or 12:30 p.m., while Macri was left with a less desirable time, 11:00 a.m.; Smith told her that she had the earlier time because she started her workday earlier than her coworkers. (Id. at 420-23) Fifth, Macri believed that Smith denied her overtime opportunities by offering more overtime jobs to her male coworkers, particularly to one custodian who was always willing to work overtime. (Id. at 374-76, 430-32; Meyers Aff. ¶ 2; Smith Dep. at 28) Finally, when Macri sought to take vacation time in November 1999, Smith told her that she would have to wait until the summer to do so because of her recent absence on workers' compensation leave; after speaking to her union, Macri was allowed to take her vacation time when she wanted. (Macri Dep. at 306-10)

  In general, Smith's behavior caused Macri great humiliation, anxiety, and distress; she left work almost every day with a headache and was often in tears because of Smith. (Macri Aff. ¶ 20) Between September and November 1999, Macri complained to Meadow Hill principal Linda Sabatella several times about; Smith's treatment of her. (Sabatella Dep. at 14; Macri Dep. at 64-69, 184, 207-08) In November 1999, a meeting was held between Sabatella, assistant principal Marilyn Scott, Smith, Fanizza, cleaner Bruce Witherall, union president Maryanna Nelson, and Macri. (Macri Dep. at 78) At the meeting, Fanizza and Witherall complained about Smith's arrogant and sarcastic treatment of them, and Macri complained that Smith had showed her doctor's notes to coworkers when she was absent on medical leave with acute bronchitis. (Id. at 78-80, 97-99, 313-316; Fanizza Aff. ¶ 9) Macri also gave Sabatella, Scott, and Nelson a document that listed her objectionable encounters with Smith. (Macri Dep. at 80-82)

  Between December 1999 and June 2000, Macri complained to Sabatella several more times about Smith, at one point complaining that Smith was assigning her additional duties in retaliation for her complaints. (Macri Dep. at 186, 191-94, 212-14, 218-20) Macri also told Sabatella, Nelson, and Board of Education representative Joan Crossin about the comment Smith had made about her breasts. (Id. at 109-10) Macri complained to Scott about Smith's treatment on one occasion, and Macri told Nelson that Smith whistled to get her attention and assigned her too many of the tasks of absent workers. (Id. at 230-32, 364-65, 441-43) In April 2000, Macri also complained to Vinny Quaglietta, the Superintendent of Buildings and Grounds for the Newburgh School District, when Smith added to her duties by requiring her to clean two additional bathrooms. (Macri Dep. at 386-90)

  B. Macri' s Job Performance

  Macri believed that her job performance remained excellent from September 1999 through October 2000, when she again left work on medical leave, and she frequently received compliments and good reports from school personnel. (Id. at 100; Macri Aff. ¶ 7) However, several of Macri's coworkers have criticized Macri's performance at Meadow Hill, alleging that she worked slowly, did not do her share of the cleaning, and frequently disappeared on the job. (Smith Dep. at 53-54; Fanizza Aff. ¶¶ 10, 12, 14-15; Meyers Aff. ¶¶ 4-5; Affidavit of Randy Codett ("Codett Aff.") ¶ 3) Macri disputes these allegations. (Macri Aff. ¶¶ 5-9) Macri does admit that she learned that Bob Murray, the Chief Custodian of the Newburgh School District, said that she was not a good worker because she did not know how to clean, did not know proper procedures, did not want to work, and was a sick leave abuser. (Macri Dep. at 322-23) Macri believes that Murray only said that she was a bad worker was because she was a woman. (Id. at 323-25) On several occasions, Murray had. Macri's pay docked because he thought she was abusing sick leave. (Id. at 328-29)

  In March 2000, a position on the night custodial crew, supervised by Randy Codett, became open, and Macri was told that Murray had decided to transfer her to the night shift. (Id. at 331-35) Although Macri contends that she would have preferred to work for Codett rather than for Smith, she believes that Murray wanted to transfer her as discipline for her allegedly poor job performance and her complaints about Smith. (Id. at 334, 342) Murray claims that he wanted to transfer Macri because she was the additional person on the day crew and because the other members of the day crew could not be transferred due to the positions they held. (Murray Aff. ¶ 11) Macri complained to central administration about being moved to the night shift, explaining that it would inconvenience her, and the transfer never took place. (Id. ¶ 13; Macri Dep. at 352-54) In June 2000, Smith asked Murray to be present when Smith gave Macri her performance evaluation. (Murray Aff. ¶ 14) In this appraisal, Smith gave Macri average or good ratings in some work categories but criticized her job performance in others, writing that Macri needed to become more willing to accept supervisory criticism and that she needed to spend less time socializing and more time on the task at hand. (Rudikoff Aff., Ex. 2) By contrast, Smith's performance appraisals of Macri's male coworkers — Codett; Fanizza, and three other cleaners — were more positive and listed fewer areas for improvement. (Rudikoff Aff., Ex. 6) When Smith and Murray asked Macri to come in for the performance appraisal review, Macri refused, insisting that she had the right to have a union representative present, which Murray and Smith would not allow. (Murray Aff. ¶ 15; Macri Dep. at 165-68; Smith Dep. at 71-73) Macri was never given the evaluation. (Macri Dep. at 165-66)

  C. Macri's Attempts to Become Custodian

  When deciding whom to promote to custodian at Meadow Hill, the principal interviews the top three qualified applicants on an eligibles list and decides thereafter whom to hire; sometimes other relevant employees join the principal in interviewing the candidates. (Affidavit of Linda Sabatella ("Sabatella Aff.") ¶ 2) In October 1999, Macri applied for a vacant custodian position at Meadow Hill and received a letter stating that she would be interviewed. (Macri Dep. at 134, 137) Of the candidates on the eligibles list for the custodian position, a woman named Barbara LaGasse was ranked first, Macri second, and a man named Jay Meyers third. (Sabatella Dep. at 42) Sabatella interviewed LaGasse on her own, and she interviewed Meyers with Murray and possibly Smith. (Id. at 43) Macri was supposed to be interviewed by Sabatella, Murray, and Smith, but they all forgot about her interview/ instead, Macri found Sabatella in her office and sat down with her for five or ten minutes to discuss the job. (Id. at 43-44; Macri Dep. at 139-40) Sabatella and Macri spoke briefly about the custodian job, but Sabatella did not ask Macri any questions. (Macri Dep. at 141-42)

  Sabatella asserts that she would have hired LaGasse, but LaGasse told her that she did not want the position. (Sabatella Dep. at 44; Sabatella Aff. ¶ 7) Instead, Sabatella hired Meyers because she thought he performed well in the interview and because Quaglietta had given him favorable reviews. (Sabatella Dep. at 45; Sabatella Aff. ¶ 8) According to Sabatella, she did not give Macri the promotion because Macri was off the job for most of the summer, abused her sick days, bickered with Smith, and, according to Quaglietta, had problems getting along with people at South Junior High. (Macri Dep. at 149-52; Sabatella Dep. at 47-49; Sabatella Aff. ¶¶ 5-6) After Meyers's new job was announced, Quaglietta, who was friends with Meyers, said in front of Macri, "My man, Jay Meyers, came out on top." (Macri Dep. at 359-60)

  In November 2000, Macri applied again for the custodian position at Meadow Hill, which Meyers had recently vacated. (Macri Dep. at 156) She interviewed with Sabatella and Murray but not Smith, who was still head custodian at the time. (Id. at 156-57) Macri spent a significant portion of the interview discussing her qualifications and interest in the position, but she admits that she spent the majority of her interview complaining about Smith and other coworkers. (Macri Dep. at 170; Macri Aff. ¶ 14) Macri's complaints at the interview included the following allegations: some of her coworkers, including Smith, smoked in buildings on school grounds; Smith used a toilet brush to clean sinks; Smith tried to run her over with a floor cleaner; Meyers sometimes mixed bleach and ammonia; and her coworkers drank coffee until 8:00 a.m. when she was already working. (Macri Dep. at 160-61, 164; Sabatella Aff. ¶ 10) According to Macri, she raised her concerns about coworkers as a way to explain what set her apart from other applicants. (Macri Aff. ¶ 14) Sabatella believed, based on the interview, that Macri was more interested in voicing her complaints than in the position itself. (Sabatella Aff. ¶ 10; Murray Aff. ¶ 17) Because of Macri's behavior at the interview, poor attendance record, and unfavorable evaluation from Smith, Sabatella did not choose Macri for the custodian position. (Sabatella Aff. ¶¶ 11-13; Sabatella Dep. at 53-54, 80-83) Sabatella instead hired Brian Smith, who had received glowing recommendations from a prior supervisor. (Sabatella Aff. ¶ 14)

  D. Procedural History

  On March 24, 2000, Macri filed a charge of employment discrimination ("EEOC charge") with the New York State Division of Human Rights ("NYSDHR") and authorized the NYSDHR to accept the charge on behalf of the Equal Opportunity Employment Commission ("EEOC"). (Defs. Rule 56.1 Stmt, Ex. B) On the charge form, Macri checked the box for sex discrimination but not the one for retaliation. (Id.) In her list of particulars, Macri included many of the examples of harsh language and treatment to which Smith had subjected her (id. ¶ 3), noted that she had twice complained to the school administration (id. ¶ 4), alleged that Smith required her but not male employees to perform fill-in work for absent co-workers (id. ¶ 5), complained that she was denied the January 2000 promotion in favor of a lower-scoring male employee (id. ¶ 6), described the failed attempt to switch her to the night shift (id. ¶ 7), and charged the School District with unlawful sex discrimination by harassment, denial of promotion, and threatening to transfer her shift. (Id. ¶ 8)

  On January 10, 2001, the EEOC sent Macri a "right to sue" letter. (Rudikoff Aff., Ex. 8) Macri initiated this action against the Newburgh School District on February 23, 2001, and filed an amended complaint ("Am. Compl.") on June 7, 2001, that added Smith as a defendant. In mid-2001, Smith was transferred to Vails Gate School and demoted to senior custodian for referring to the new Supervisor of Buildings and Grounds as "that Puerto Rican". (Sabatella Dep. at 69-70) As of December 2001, Macri was still employed by the Newburgh School District, although she had been absent on workers' compensation leave since March 2001. (Macri Dep. at 6; Macri Aff. ¶ 22) On December 13, 2002, after a hearing at which the Newburgh School District failed to appear, the New York State Workers Compensation Board found that the Newburgh School District's refusal to promote Macri in the fall of 1999 violated § 120 of the Workers' Compensation Law because the Newburgh School District acted "with a retaliatory intent as a result of said claimant's claim for workers' compensation benefits." (Exhibit to Letter from Mark C. Rushfield to Court of 1/13/03)

  II.

  Macri first asserts claims against the Newburgh School District, alleging that she was denied "non-discriminatory terms and conditions of employment" and subjected to sex discrimination in violation of Title VII and the NYSHRL. (Am. Compl. ¶ 24), A plaintiff may establish a disparate treatment claim under Title VII by showing either (1) that she suffered an adverse employment action under circumstances that give rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or (2) that "harassment on one or more of these bases amounted to a hostile work environment." Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004). Macri alleges both types of claims in her complaint. This section will consider Macri's claim that Smith's sexual harassment created a hostile work environment, and Part IV will discuss Macri's claim that she was twice denied promotions to custodian because of her sex.

  "Title VII prohibits employers from `discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.'"*fn4 Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004) (quoting 42 U.S.C. § 2000e-2(a)(1)) (alterations in original). A plaintiff has a valid claim for hostile work environment under Title VII where "the workplace is `permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment.'" Brennan v. Metro. Opera Assoc., Inc., 192 F.3d 310, 318 (2d Cir. 1999) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To succeed on a Title VII hostile work environment claim, a plaintiff must show conduct in the work place (1) that is "objectively" severe or pervasive because "it cremates an environment that a reasonable person would find hostile or abusive," (2) "that the plaintiff subjectively perceives as hostile or abusive," and (3) "that creates such an environment because of plaintiff's sex."*fn5 Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001) (internal quotation marks omitted).

  No one disputes that Macri subjectively perceived her work environment to be abusive,*fn6 but defendants argue that Macri has not shown either that Smith subjected her to offensive conduct because of her sex or that Smith's conduct was objectively severe or pervasive. (Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("Defs. Memo.") at 10-11) Although no reasonable jury could find that all of Smith's ill treatment of Macri occurred because she was a woman, Macri's evidence nonetheless shows that she was subjected to a steady stream of sex-based insults that could be considered pervasive enough to alter the terms and conditions of her employment.

  A. Which Conduct May Be Considered

  In order to prevail on her claim for hostile work environment, Macri must show first that she was subjected to objectionable conduct in the workplace because of her sex. Incidents that are sex-neutral on their face may be considered in a hostile work environment claim as long as there is some basis for inferring that the incidents were actually discriminatory. Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). However, an environment that is equally harsh for both men and women does not constitute a hostile work environment under Title VII. Brennan, 192 F.3d at 318.

  Macri's amended complaint alleges that Smith engaged in four different types of abusive or offensive behavior: (1) harassing and belittling Macri because of her gender, including stating that women do not know anything, threatening to squirt her with cat urine, and using the terms "bitch" and "ball-buster"; (2) falsely insinuating that Macri and Fanizza engaged in sexual misconduct in the closet; (3) attempting to transfer Macri to the night shift to punish her for complaining; and (4) disproportionately assigning Macri the work of absent workers. (Am. Compl. ¶¶ 11, 15, 18-20) In her response to defendants' summary judgment motion, Macri argues for the first time that Smith also mistreated her by requiring her to complete less desirable assignments; refusing to allow her to choose her own lunch breaks, unlike her male coworkers; and attempting to deny her vacation leave. (See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion ("Pl. Memo.") at 15)

  To begin with, the second, third, and fourth types of behavior Macri lists in her amended complaint "must be removed from the equation at the outset because they support no inference of mistreatment." Alfano, 294 F.3d at 376. With respect to the closet incident, Macri conceded at her deposition that Smith never implied that she and Fanizza were engaged in sexual misconduct (Macri Dep. at 345-46), and she provides no other basis for concluding that Smith acted improperly by telling his superiors about finding her and Fanizza apparently loafing on the job. Although some unidentified people who heard about the closet incident inferred that Macri and Fanizza had been engaged in illicit behavior, Macri has produced no evidence to suggest that Smith encouraged or even anticipated this response. Accordingly, even if the subsequent rumor that was spread by unidentified people could be characterized as abusive in some way, Smith's report of the closet incident to his superiors cannot be considered mistreatment of Macri. As for the third type of alleged mistreatment, the proposed transfer to the night shift, this aborted transfer cannot be considered mistreatment because it never occurred. The fourth type of mistreatment Macri alleges in her amended complaint — that Smith disproportionately assigned her the work of absent coworkers — cannot fairly be considered mistreatment because Macri presents no evidence to show that Smith acted improperly by assigning Macri the tasks of absent workers. In particular, Macri has produced no evidence to support her argument that these tasks should have been rotated between crew members or to rebut defendants' contention that, as an `'additional person", her job responsibilities included taking on the tasks of absent workers. (See Murray Aff. ¶¶ 6-7; Quaglietta Aff. ¶ 9)

  Macri also has not shown that any of the incidents about which she first complained in her opposition papers constituted discriminatory mistreatment by Smith. First, Macri presents no evidence to show that any of the three unpleasant tasks Smith asked her to perform were outside of her job responsibilities or that her male coworkers generally were given fewer undesirable assignments than she was. Because Macri has not provided any basis for inferring that Smith's occasional assignment of unpleasant tasks to her constituted mistreatment, these incidents add no weight to her hostile work environment claim. See Alfano, 294 F.3d at 376. Second, Smith told Macri that she was assigned the earlier lunch slot because she initially worked from 5:30 a.m. to 2:00 p.m., an earlier schedule than her coworkers (Macri Dep. at 421-22); Macri presents no evidence to refute this legitimate explanation for her lunch break or to support the inference that Smith assigned other the "last choice" 11:00 a.m. slot because of her sex. Finally, with respect to vacation time, Smith told Macri that she could not take vacation before the summer because of her recent workers' compensation leave; Macri admits that Smith would have said the same thing to a man in that situation, and she offers no evidence to suggest that Smith's stated reason was actually a pretext for discrimination. (Macri Dep. at 306-10) In addition, Macri ultimately was allowed to take her vacation time when she wanted and thus was not subjected to any mistreatment.

  The only hostile work environment allegations that remain, then, are Macri's allegations about Smith's offensive, harassing, and belittling treatment. These incidents may be considered for the purposes of a hostile work environment claim only if Macri was subjected to them because of her sex. See Gregory, 243 F.3d at 691-92. Three of the incidents about which Macri complains were explicitly sex-based: Smith's statement that women "don't know anything" and accompanying glare; Smith's comment about Macri's breasts getting in her way; and Smith's description of Macri as a "ball-buster" on two or more occasions. A reasonable jury could infer also that Smith compared Macri to his female relatives and told her to fly on her broom because of her sex. Smith's two comments during Macri's mopping — his loud emphasis on "she" in the statement, "She doesn't know how to do it," and his statement that Macri was "one guy [who] isn't doing what he's supposed to be doing," after which he followed her with a push broom — also could be interpreted as sex-based. Finally, Smith's use of the term "bitch" when talking about other female employees and his statement to Macri that his wife used to model "sexy underwear" could be construed as sex-based.

  The other offensive incidents that Macri has described*fn7 are all facially sex-neutral, which means that Macri must show some basis for inferring that these incidents were actually discriminatory before they may be considered for the purposes of her hostile work environment claims. See Alfano, 294 F.3d at 378. Macri suggests two reasons to draw such an inference: (1) because Smith made some comments on the basis of her sex, it is reasonable to infer that he engaged in other offensive behavior because of her sex; and (2) Smith did not subject Macri's male coworkers to the same level of abusive treatment. (See Pl. Memo, at 14-17) As discussed below, I am unpersuaded by Macri's proposed reasons and find that no reasonable jury could infer that the facially sex-neutral offenses to which she was subjected were actually discriminatory.

  Macri first argues that Smith's explicitly sex-based comments manifested a sex-based hostility toward her; according to Macri, a reasonable jury could infer that this same hostility also motivated Smith's other abusive comments and actions. (See Pl. Memo, at 14-16) Macri relies heavily on two Second Circuit cases, Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000), and Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001). In Howley, a female firefighter was subjected to a lengthy and sexually explicit public tirade by a coworker. 217 F.3d at 148. There, the Second Circuit found that, given the contents of the barrage, a reasonable factfinder could infer that any other harassment directed at the plaintiff by the same coworker was also sex-based. Id. at 156. In Raniola. a female police officer was the target of several sex-based derogatory comments as well as a flood of facially sex-neutral abuses: burdensome work assignments, workplace sabotage, and many disciplinary actions. 243 F.3d at 614, 621. The Second Circuit, relying on Howley, again found that a reasonable factfinder could conclude on the basis of the derogatory comments that the other abuse the plaintiff suffered was also on account of sex. Id. at 622.

  Despite Macri's attempt to apply these holdings here, her situation is markedly different from Howley and Raniola, where there was no indication that any of the female plaintiffs' male coworkers were also subjected to abusive treatment at work.-When a female plaintiff has been the target of sex-based insults and, unlike her male coworkers, is later subjected to additional abuse that is facially sex-neutral, it may be reasonable to infer that any further mistreatment is also sex-based. In Macri's workplace, by contrast, everyone agrees that Smith was abusive, offensive, and insulting to everyone he supervised on the cleaning crew, not just to Macri. (See Fanizza Aff. ¶¶ 3-6; Meyers Aff. ¶¶ 9-10; Codett Aff. ¶¶ 6-7; Macri Aff. ¶ 16; Macri Dep. at 104) Indeed, in the November 1999 meeting, two of Macri's male coworkers complained about Smith's arrogant and sarcastic treatment of them. (Macri Dep. at 78-79; Fanizza Aff. ¶ 9) Macri acknowledged at her deposition that her male coworkers sometimes complained that Smith made unprofessional comments to them (Macri Dep. at 104), and Meyers reports that Smith once snatched his mop from his hand and rudely showed him how to clean properly, an incident that sounds quite like Smith's insulting mop lesson to Macri in October 1999. (Meyers Aff. ¶ 10) Because the record reveals that Smith was critical and sarcastic to male employees of the cleaning crew as well as to Macri, it is impossible to conclude that Smith's sex-neutral insults to Macri were made because of her sex and not because of Smith's tendency to belittle everyone on the cleaning crew. See Brown v. Henderson, 257 F.3d 246, 254 (2d Cir. 2001) ("[I]n the absence of evidence suggesting that a plaintiff's sex was relevant, the fact that both male and female employees are treated similarly, if badly, does give rise to the inference that their mistreatment shared a common cause that was unrelated to their sex."). Accordingly, I reject Smith's first reason for finding the sex-neutral behavior to be discriminatory because no reasonable jury could determine that Smith, who harassed everyone on the cleaning crew, directed facially sex-neutral insults at Macri because she was a woman.

  Macri argues also that Smith's facially sex-neutral actions should be considered discriminatory because Smith generally subjected her to worse treatment than her male coworkers. (Pl. Memo, at 16-17) In particular, Macri cites Smith's use of sex-based insults, which were derogatory to Macri and other women but not to men, and Smith's 2000 performance appraisal of Macri, which was more critical than his evaluations of her male coworkers. (Id.) It is certainly true that Smith's sex-based remarks to Macri are themselves relevant to her hostile work environment claim, but, as discussed above, they do not create an inference that all of Smith's facially sex-neutral insults to Macri were discriminatory because Smith was abusive to everyone on the cleaning crew. As for Smith's poor performance appraisal of Macri in 2000, Macri invokes this evaluation as evidence that Smith was not "equally critical", "equally abusive", or "equally harsh" with male workers (Id. at 8, 16, 17), but she fails to explain exactly why Smith's evaluation of her should be considered more critical, abusive, or harsh than his evaluations of her coworkers. Specifically, Macri does not offer evidence that Smith's criticisms of her were unwarranted or that his comparatively positive evaluations of her male coworkers were undeserved. Without some basis for concluding that Smith's appraisal of Macri was unfairly negative or that his appraisals of her male coworkers were unfairly positive, Macri's 2000 performance appraisal is not evidence that Smith was subjecting Macri to harsher treatment than her male coworkers.

  Apart from the two arguments discussed above, which are unpersuasive, Macri presents no evidence from which a reasonable jury could infer that Smith's facially sex-neutral offensive behavior was actually discriminatory. Accordingly, these sex-neutral incidents may not be considered for the purposes of a hostile work environment claim, and the only incidents that are relevant to Macri's claim are Smith's sex-based insults

  B. Was Macri's Environment Objectively Hostile?

  To show that she was subjected to severe or pervasive conduct that created an objectively hostile or abusive environment, Macri "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." Howley, 217 F.3d at 153 (internal quotation marks omitted). "Whether a reasonable person would find a given work environment to be hostile depends on the totality of the circumstances; considerations include: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's work performance." Mormol, 364 F.3d at 58 (internal quotation marks and alterations omitted). "Title VII is not a general civility code," and "[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001) (internal quotation marks omitted). Furthermore, "isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Quinn, 159 F.3d at 768 (internal quotation marks omitted). As the Supreme Court has explained, "conduct must be extreme to amount to a change in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). On the other hand, [t]he environment need not be `unendurable' or `intolerable'" to amount to a hostile work environment that is actionable under Title VII. Feingold, 366 F.3d at 150., "[W]hile a mild, isolated incident does not make a work environment hostile, the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (emphasis in original and internal quotation marks omitted).

  Macri's case is a marginal one. She has not alleged that Smith's conduct interfered with her work performance, which she characterizes as "excellent" throughout the period of alleged harassment. (Macri Dep. at 100; Macri Aff. ¶ 7) The only incident that could be construed as physically threatening or humiliating, rather than a mere offensive utterance, is the time in April 2000 when Smith followed Macri with a push broom after pointing at her and yelling, "One guy isn't doing what he's supposed to be doing." Furthermore, with the possible exception of Smith's comment about her breasts and his statement that "women don't know anything," none of the sex-based incidents to which Macri was subjected seems particularly severe on its own, and most are comparatively mild. Indeed, the Second Circuit has upheld summary judgment in cases where plaintiffs were subjected to sex-based offenses that were more severe than those to which Macri was subjected. See Mormol, 364 F.3d at 55-56, 58-59 (finding harassment not sufficiently pervasive or severe where plaintiff's supervisor asked her twice in one month to have sex with him in exchange for job benefits); Quinn, 159 F.3d at 768 (finding harassment not sufficiently pervasive or severe where plaintiff's supervisor made one appreciative comment about her buttocks and once deliberately touched her breasts with papers he was holding).

  What distinguishes Macri's case from these Second Circuit cases, and what enables Macri to survive summary judgment, is the alleged frequency of the comments Smith made. During the course of the 1999-2000 school year, Smith repeatedly called other female employees "bitches", repeatedly referred to Macri as a "ball-buster", and compared Macri to his ex-wife on several occasions. Furthermore, Macri has identified seven other sex-based comments to which Smith subjected her that year: (1) the comparison to his daughter, (2) the suggestion that she get on her broom and fly it, (3) the statement that "women don't know anything," (4) the comment about her breasts, (5) the remark about his wife modeling sexy underwear, (6) the emphasis of the word "she" in "she doesn't know how to do it," and (7) the statement that Macri was "one guy [who] isn't doing what he's supposed to be doing."*fn8 Viewing the evidence in the light most favorable to Macri, she was subjected to multiple sex-based comments from Smith each month of the 1999-2000 school year, and a reasonable juror could find that such frequent remarks amounted to pervasive harassment that created a hostile work environment. See Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (finding that a reasonable jury could find severe or pervasive harassment where African-American plaintiff was aware of ten to twelve racially-hostile incidents, primarily jokes and epithets, in workplace over 20 month period).

  Again, this case is a close one for summary judgment, and I am by no means not convinced that Smith's sex-based conduct was sufficiently severe or pervasive to alter the terms and conditions of Macri's employment. However, "[a]n Article III judge is not a hierophant of social graces," and Macri has produced enough evidence to allow a reasonable juror to find that Smith's conduct altered her work environment for the worse. Holtz, 258 F.3d at 75 (internal quotation marks omitted). Accordingly, the Newburgh School District's motion for summary judgment on Macri's hostile work environment claims is denied.

  III.

  Macri asserts also a § 1983 claim against Smith, claiming that he subjected her to a hostile work environment in violation of the Equal Protection Clause. (Am. Compl. ¶ 25) To survive summary judgment on this § 1983 claim, Macri must present evidence showing (1) that Smith was acting "under color of state law" when he committed the allegedly objectionable conduct, and (2) that Smith's conduct deprived her of "rights, privileges or immunities secured by the Constitution or laws of the United States." Hayut v. State Univ. of New York, 352 F.3d 733, 743-44 (2d Cir. 2003) (internal quotation marks imitted). For the purposes of a § 1983 claim, "a defendant necessarily acts under color of state law when he abuses the position given to him by the State." Id. at 744 (internal quotation marks omitted). Smith, an employee of the Newburgh School District, was acting under color of state law in this case because he allegedly took advantage of his position as Macri's supervisor by sexually harassing her on the job. See id.

  The question that remains, then, is whether Macri has presented enough evidence to convince a reasonable jury that Smith deprived her of rights, privileges, or immunities under the Equal Protection Clause. "Section § 1983 sexual harassment claims that are based on a `hostile environment' theory . . . are governed by traditional Title VII `hostile environment' jurisprudence." Id. As discussed in Part II, supra, Macri has presented enough evidence from which a reasonable juror could conclude that Smith's harassment created a hostile work environment for the purposes of a Title VII claim. Because the same analysis applies to Macri's § 1983 claim against Smith, Macri's allegations are sufficient to convince a reasonable jury that Smith deprived her of rights, privileges, or immunities under the Equal Protection Clause by subjecting her to a hostile work environment. Accordingly, Smith's motion for summary judgment on the § 1983 claim is denied.

  IV.

  In addition to her hostile work environment claims, Macri alleges also that the Newburgh School District subjected her to gender discrimination in violation of Title VII and the NYSHRL by failing to promote her to custodian when the job became available in late 1999 and again in late 2000.*fn9 (Pl. Memo, at 19-20)

  In a series of letters to the court in January 2003, defendants argue that, in light of the Workers' Compensation Board decision holding that the Newburgh School District denied Macri the first promotion "with a retaliatory intent as a result of said claimant's claim for workers' compensation benefits," collateral estoppel and judicial estoppel bar Macri from now claiming that the Newburgh School District failed to promote her because of unlawful sex discrimination rather than because of unlawful retaliation for seeking workers' compensation benefits. (See Letter from Mark C. Rushfield to Court of 1/13/03; Letter from Rushfield to Court of 1/28/03) However, defendants make no attempt to show that the requirements for either doctrine are met here, and I find that neither doctrine is applicable: the Newburgh School District's decision could have been motivated both by sex discrimination and by unlawful retaliation for Macri's attempt to obtain workers' compensation benefits, which means that the Workers Compensation Board decision is neither decisive of nor inconsistent with Macri's claims. See Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir. 2001) (explaining that proponent of collateral estoppel bears the burden of showing that the identical issue was necessarily decided in the prior action and is decisive of the present action); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999) ("A party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner. . . .").

  The Newburgh School District next argues that Macri cannot bring a claim based on the second promotion because she did not exhaust this particular claim in her EEOC charge, filed in March 2000. (Defs. Memo, at 3-5) I disagree. Although a Title VII plaintiff generally must exhaust her claims by presenting them to the EEOC before raising them in federal court, a plaintiff may pursue unexhausted claims when those claims "are sufficiently related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action." Terry v. Ashcroft, 336 F.3d at 151 (internal quotation marks omitted). The Second Circuit has identified three kinds of claims that are sufficiently related to an EEOC charge and thus need not be exhausted: (1) claims based on conduct that would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; (2) claims that allege retaliation against an employee for filing an EEOC charge; and (3) claims based on further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge. Id. Here, Macri's claim that she was denied the second promotion because of sex discrimination falls at least within the first category, as the scope of the EEOC's investigation into the Newburgh School District's first failure to promote her can reasonably be expected to include an examination of Macri's subsequent attempts to attain promotions. Accordingly, the Newburgh School District's second failure to promote Macri, which occurred months after Macri filed her EEOC charge, is reasonably related to the claims in her EEOC charge, and Macri may pursue in federal court claims of sex discrimination based on both failures to promote.

  To establish her claims of sex discrimination based on the Newburgh School District's two failures to promote her,*fn10 Macri must first show that: (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Terry, 336 F.3d at 138. If Macri establishes this prima facie case, then the burden shifts to defendants to offer a legitimate, non-discriminatory rationale for their actions. Id. If defendants meet this burden, then Macri "must show circumstances that would be sufficient to permit a rational finder of fact to infer that [defendants'] employment decision was more likely than not based in whole or in part on discrimination." Id. (internal quotation marks omitted).

  Here, Macri has met the "de minimis" burden of establishing a prima facie case of sex discrimination based on the Newburgh School District's two failures to promote her. First, Macri belongs to a protected class because she is a woman, and second, she has demonstrated that she was qualified for the custodian position by virtue of being listed on the Newburgh School District's "eligibles" list both times the position became available. Third, the Newburgh School District's refusals to promote her constitute adverse employment actions. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001). Finally, both refusals to promote occurred under circumstances giving rise to an inference of discriminatory intent because Macri was passed over for both promotions in favor of men. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996) (finding that black female made out prima facie case of race and sex discrimination where she was qualified for two promotions that were filled by a white male and a white female).

  Because Macri has established her prima facie case with respect to both promotions, the burden shifts to the Newburgh School District to offer legitimate, non-discriminatory rationales for their two failure to promote Macri. With respect to the first promotion in fall 1999, the Newburgh School District claims that Sabatella decided to promote Meyers instead of Macri because: (1) Meyers performed well in the interview, (2) Quaglietta gave Meyers better reviews than he did Macri, (3) Sabatella had not had an opportunity to observe Macri on the job because of her absence during the summer, (4) Macri abused her sick days, and (5) Macri bickered with Smith. (Sabatella Dep. at 45, 47-49; Sabatella Aff. ¶¶ 5-6, 8) Not all of these reasons are necessarily legitimate; for instance, Sabatella had not had an opportunity to observe Meyers on the job either, and the decision of the Workers' Compensation Board suggests that Macri did not abuse her sick days. However, Sabatella's first two reasons for promoting Meyers over Macri — his strong performance in the interview and his better recommendation from Quaglietta — are legitimate, non-discriminatory reasons for her decision. With respect to the second promotion in fall 2000, the Newburgh School District again asserts that it had legitimate, non-discriminatory reasons for the decision. According to Sabatella, who made the hiring decision, she chose Brian Smith over Macri because: (1) Brian Smith received glowing reviews from his supervisor, (2) Macri's behavior at the interview suggested that she was more interested in voicing complaints than in the position itself, (3) Macri had received a poor evaluation from Smith for the 1999-2000 school year, and (4) Macri's attendance record was poor. (Sabatella Aff. ¶¶ 10.-14; Sabatella Dep. 53-54, 80-83) Although Macri claims that none of the Newburgh School District's reasons are legitimate (Pl. Memo, at 22), arguing in particular that Smith's evaluation is inherently suspect because of his history of sexually harassing Macri, I find that, at the very least, Brian Smith's glowing evaluations constitute a legitimate reason for promoting him over Macri.

  Because the Newburgh School District has presented legitimate, non-discriminatory reasons for twice refusing to promote Macri, Macri now has the burden of showing that a rational factfinder could infer that, more likely than not, the decisions not to promote her were based at least in part on sex discrimination. See Terry, 336 F.3d at 138. Macri has failed to meet this burden. According to Macri, a reasonable jury could infer that Sabatella had sex-based animus for Macri because Sabatella was slow to respond to Macri's claims that Smith was sexually harassing her but acted quickly to discipline Smith when he was accused of racial insensitivity toward a male employee. (Pl. Memo, at 23) To Macri, the difference in Sabatella's responses "suggests that Sabatella was specifically hostile toward plaintiff because she, as a woman, complained of sexual harassment." (Id.) However, Macri has presented no evidence to show that Sabatella played any role in the decision to demote Smith for making a racially insensitive remark. Sabatella stated in her deposition, "I'm getting this secondhand," when she described the incident that led to Smith's demotion. (Sabatella Dep. at 69) Indeed, one of Macri's exhibits is a letter from Mary Ellen Leimer to Jay Siegel that discusses Smith's racial remarks; in the letter, Leimer writes, "I have spoken to the Superintendent, and she is in agreement with bringing charges against Mr. Smith seeking his termination. I also discussed the penalty for Mr. Smith if he admits guilt, that being a 30-day suspension and a demotion." (Rudikoff Aff., Ex. 10) Leimer's letter does not mention Sabatella or indicate that Sabatella was involved in any way in disciplining Smith for his racial insensitivity. Without evidence to support her contention that it was Sabatella who acted quickly when Smith was racially insensitive to male employees, Macri has not shown that Sabatella was less responsive to Macri's complaints than to the complaints of male employees, which means in turn that Macri cannot argue that Sabatella was less responsive to Macri because she had sex-based animus toward Macri.*fn11

  Because Macri suggests no other basis on which a reasonable jury could conclude that Sabatella's refusals to promote Macri were discriminatory, Macri has not shown that any reasonable jury could find that Sabatella's decisions were at least partly based on discrimination. Accordingly, the Newburgh. School District's motion for summary judgment is granted on Macri's claims that sex discrimination played a role in the denial of the two promotions. See Fed.R.Civ.P. 56(c).

  V.

  Although Macri's complaint lists only claims for sex discrimination and hostile work environment, it is clear from Macri's response to defendants' motion that she intends also to assert claims for retaliation based on the Newburgh School District's two failures to promote her. (See Pl. Memo, at 19-22) Because, viewed in the light most favorable to Macri, the evidence in this case might support potentially viable retaliation claims, Macri is given leave to amend her complaint to include these claims.

  Defendants argue that Macri's proposed retaliation claims will necessarily fail for three reasons: (1) Macri did not exhaust these claims with the EEOC, (2) Macri cannot show that she was engaged in protected activity, and (3) Macri cannot establish a causal connection between the allegedly protected activity and the adverse promotion decisions. (Defs. Memo, at 2-3; Defendants' Reply Memorandum of Law in Support of Motion for Summary Judgment ("Defs. Reply Memo.") at 1-2, 5) Because Macri has not yet asserted retaliation claims, any arguments for summary judgment on these claims would be premature; accordingly, I read defendants' papers to argue that Macri should be denied leave to amend her complaint because the new claims would be futile.

  Defendants first argue that Macri has not exhausted retaliation claims for either promotion because she did not include them in her EEOC charge. (See Defs. Memo, at 2-3) Although it is true that Macri did not check the box marked "Retaliation" in her charge, her charge does allege facts supporting a retaliation claim based on the first promotion: it describes her repeated complaints to the Meadow Hill administration, most recently in December 1999, and then states that she was denied a promotion to custodian in January 2000. Defs. Rule 56.1 Stmt., Ex. B) Accordingly, the EEOC investigation of her charge could reasonably be expected to have explored a possible retaliatory motive for the denial of that promotion, which means that Macri may pursue claims related to this first promotion despite her failure to exhaust them. See Terry, 336 F.3d at 151 (explaining that plaintiff need not exhaust claims that "would fall within the scope of EEOC investigation which can reasonably be expected to grow out of the charge of discrimination"); Stuevecke v. New York Hosp. Med. Ctr. of Queens, 01 Civ. 326 (FB)(RLM), 2003 WL 22019073, at *5 (E.D.N.Y. Aug. 26, 2003) (finding that plaintiff who did not check "retaliation" box on EEOC charge could pursue retaliation claim where narrative description of alleged wrongdoing could reasonably have prompted an investigation of retaliatory conduct). As for the denial of the second promotion in fall 2000, months after Macri filed her EEOC charge, Macri's papers suggest that she will allege that Sabatella did not promote her in retaliation for her complaints about Smith, complaints which presumably might include Macri's EEOC charge. Because claims that allege retaliation against an employee for filing an EEOC charge are considered sufficiently related to the allegations in the charge that they need not be exhausted, Macri may also be able to pursue her unexhausted claims of retaliation with respect to the second promotion even though her EEOC charge did not mention this promotion. See Terry, 336 F.3d at 151 (explaining that plaintiffs need not exhaust claims that employer retaliated against them for filing EEOC charge). Accordingly, Macri's alleged failure to exhaust these claims is not a reason to deny her leave to amend her complaint.

  Defendants argue also that Macri should not be given leave to amend her complaint because she cannot make out a prima facie case of retaliation. (See Defs. Reply Memo, at 2-6) To establish a prima facie case of retaliation,*fn12 Macri must show that (1) she engaged in protected activity under Title VII; (2) defendants were aware of that activity; (3) defendants took adverse action against her; and (4) a causal connection exists between the protected activity and the adverse action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). According to defendants, Macri cannot show either that she was engaged in protected activity or that a causal connection exists between the allegedly protected activity and the adverse action. (See Defs. Reply Memo, at 2-6) I disagree.

  First, Macri's formal and informal complaints about Smith's allegedly discriminatory behavior are protected activity under Title VII. See Gregory, 243 F.3d at 700-01 ("The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination . . . so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.") (internal quotation marks omitted). Although defendants argue that Macri's complaints are not protected activity because Macri could not reasonably have believed that the conduct she complained about was unlawful (Defs. Reply Memo, at 3-4), Macri's belief was reasonable: her claims of hostile work environment are substantial enough to survive summary judgment.

  Second, Macri has produced enough evidence to suggest a causal connection between her protected activity and the Newburgh School District's two decisions not to promote her. "A plaintiff can establish the causal connection between protected expression and an adverse employment determination indirectly by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus." Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (internal quotation marks omitted). Here, Sabatella's own explanations for the two hiring decisions at issue are direct evidence of retaliatory animus and thus raise a causal connection between Macri's complaints and the denials of the promotion. When she explained her decision not to promote Macri the first time, Sabatella said at her deposition, "[A]s soon as school started [in the fall of 1999], there started to be issues between Christine and Mr. Smith. I was concerned about the interaction and the relationship and the bickering between the two of them." (Sabatella Dep. at 47-48) In discussing the same decision in her affidavit, Sabatella noted that Macri had complained to her about Smith treating her harshly, and Sabatella again said that, along with other factors, "[M]y knowledge of the bickering between Mr. Smith and Ms. Macri [] raised concerns for me as to whether Ms. Macri would be able to work well `with other custodial staff members." (Sabatella Aff. ¶ 6) The "bickering" to which Sabatella referred may well have included Macri's complaints about Smith, which included complaints of sexual harassment (Macri Dep. at 66), and Sabatella's own testimony suggests that Sabatella penalized Macri in the promotion process for engaging in such "bickering". Accordingly, Macri has produced enough evidence to suggest a causal connection between her complaints about sexual harassment and Sabatella's first decision not to promote her.

  Macri has also produced enough evidence to suggest a causal connection between her complaints about sexual harassment and Sabatella's second decision not to promote her. Sabatella told Macri that she did not get the second promotion in part because "she spent over half the interview complaining about her supervisor." (Sabatella Dep. at 53) According to Murray, who attended the interview, Macri complained about Smith "both with regard to his performance of cleaning duties and his conduct relating to her" (Murray Aff. ¶ 17); taking the evidence in the light most favorable to Macri, and in view of Macri's prior complaints of sexual harassment, it might be reasonable to infer that Macri complained about sexual harassment in her interview. Furthermore, even if Macri did not explicitly complain about sexual harassment in her interview, she had complained about sexual harassment in the past, and Sabatella's negative view of Macri as someone who "was more interested in voicing her complaints than in the position itself" may have been informed in part: by Macri's history of making sexual harassment complaints. (Sabatella Aff. ¶ 10) Accordingly, because Sabatella refused Macri the second promotion in part because she disapproved of Macri's tendency to complain about and criticize Smith and other workers, Macri has established enough of a causal connection between her protected activity and the denial of the second promotion to make out a prima facie case of retaliation with respect to that employment action.

  Because, as discussed above, I am unpersuaded by defendants' arguments about the inevitable failure of Macri's unasserted retaliation claims, Macri is given leave to amend her complaint to include these claims. For the reasons stated above, defendants' motion for summary judgment is denied as to Macri's claims of hostile work environment and granted as to her claims that she was denied two promotions to custodian because of her sex. Because Macri has presented enough evidence to support potentially viable retaliation claims based on the same two promotions, she is given leave to amend her complaint to include those claims.

  SO ORDERED.


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