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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


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 ...

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