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United States District Court, S.D. New York

June 16, 2005.

IRIS GARCIA, Plaintiff,

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  In these two related actions, Iris Garcia, proceeding pro se, is suing the Osborne Association ("Osborne") and three Osborne employees, AnnaMarie Lewis, Carol Burton, and Virginia Lowery, for violations of Title VII of the Civil Rights Act of 1964.*fn1 Garcia, a former employee of Osborne, alleges that she was sexually harassed by Lewis, subjected to a hostile work environment, and was then terminated from her employment in retaliation for filing a sexual harassment claim against Osborne and Lewis with the New York State Division of Human Rights ("DHR"). As a result, Garcia seeks monetary damages. Defendants now move to dismiss both Complaints pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants' motions are denied in part and granted in part.


  Osborne is a not-for-profit organization that provides treatment, education, and vocational services for people involved in the criminal and juvenile justice systems, including prisoners and former prisoners, their children, and other family members.*fn2 Garcia began working in Osborne's Youth and Family Services Department in Brooklyn as a Family Services Specialist (social worker) in late April 2002.*fn3 As part of her job, Garcia was required to travel around the state to attend presentations and meetings.*fn4

  Garcia alleges that on the first day she began working at Osborne, while at an off-site meeting, a female colleague named AnnaMarie Lewis (an Osborne employee based in upstate New York) began a pattern of sexual harassment that consisted of "call[ing] [her] out of [her] name" by using terms of endearment like "honey," "sweetheart," and "love," and "continuously touch[ing] her."*fn5

  Garcia was disturbed by Lewis' behavior*fn6 and, upon the advice of her supervisor, spoke to Lewis about her actions.*fn7 She related to Lewis that she wanted to be addressed only as "Ms. Garcia," and did not want Lewis to "[put] her hands on [Garcia] when she's speaking to [Garcia]."*fn8 On May 31, 2002, Garcia notified the Human Resources Department of her allegations against Lewis, but represented to them that she had resolved the situation on her own.*fn9

  Subsequently, on October 8, 2002, Garcia reported to the Human Resources Department that Lewis had continued to sexually harass her. Two days later, she sent an e-mail to Human Resources recounting her allegations.*fn10 Specifically, she claimed that over a span of approximately seven months Lewis "put her hands in her pants and seemed to be scratching her crotch,"*fn11 told Garcia that she wanted to "get her hands on [Garcia] before anyone else [did],"*fn12 put her hands on Garcia's shoulder when discussing a work project, put her hand on Garcia's hand on two different occasions, rubbed her hand on Garcia's arm when helping Garcia make a phone call, sat next to Garcia at several business lunches, lingered to watch TV in Garcia's room while on a business trip and put her knee on Garcia's bed, "made it known" that her son would not be home and invited Garcia to spend the night at her house,*fn13 and referred to Garcia at different times as "honey," "love," "sweetheart," "sweety," and "doll."*fn14 Garcia also requested a transfer to a different division at Osborne and asked that she have no more contact with Lewis.*fn15 Shortly after Garcia made these allegations, defendant Burton (Garcia's supervisor of two weeks) agreed that Garcia could restrict her contact with Lewis to fax and e-mail only.*fn16

  In further response to the sexual harassment allegations, defendant Lowery and another member of the Human Resources Department met with Garcia on October 28, 2002, to discuss her concerns. The Human Resources employees told Garcia that their internal investigation revealed no sexual harassment. Possibly as a means of explanation for Lewis' behavior, they went on to state that the culture of Osborne was "touchy, feely" and that Lewis' behavior was not intentional.*fn17 Although the Human Resources staff confirmed that they knew Garcia was "really bothered" by Lewis' behavior, they suggested that Garcia's allegations might actually be a result of homophobia directed towards Lewis.*fn18 Finding the response of the Human Resources Department unsatisfactory, Garcia filed a sexual harassment complaint against Lewis and Osborne with the DHR on October 31, 2002.*fn19 Shortly thereafter, on November 13, 2002, Garcia was terminated from her position at Osborne by defendant Burton for unsatisfactory job performance.*fn20

  Following her termination, Garcia filed a second complaint with the DHR for retaliatory firing.*fn21 In its response to this complaint, the DHR stated that it had investigated Garcia's allegations and that there was

  no causal connection between the Complainant's claims of discrimination and discharge from her at will employment. . . . The record shows Complainant had performance issues throughout her employment that were unrelated to her issues of sexual harassment and did not involve the alleged harasser. . . . The record supports that Complainant was discharged based on her failure to correct her performance deficiencies.*fn22 After receiving the DHR's response, Garcia obtained a "right to sue" letter from the Equal Employment Opportunity Commission and filed this lawsuit.


  A. Motion to Dismiss Standard

  Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if "it appears beyond doubt that the [nonmovants] can prove no set of facts in support of [their] claims which would entitle [them] to relief."*fn23 The task of the court in ruling on a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn24 When deciding a motion to dismiss, courts must accept all factual allegations as true, and draw all reasonable inferences in the nonmovants' favor.*fn25

  Further, a complaint need not state the legal theory, facts, or elements underlying the claim in most instances.*fn26 Pursuant to the simplified pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn27 And, when a plaintiff is proceeding pro se, courts are instructed to construe the complaint liberally.*fn28 This is particularly important when a pro se plaintiff alleges a civil rights violation.*fn29

  Finally, while courts generally do not consider matters outside the pleadings, they may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings*fn30 in order to determine if a complaint should survive a 12(b)(6) motion.*fn31 The records of state administrative proceedings may be considered.*fn32

  B. Constitutional Claims

  1. Sexual Harassment Claims

  Employers are forbidden from discriminating "against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's . . . sex. . . ."*fn33 Specifically, Title VII is violated when a hostile work environment is created.*fn34

  In order to prevail on a sexual harassment claim alleging hostile work environment, a plaintiff must establish three things: (1) that the harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment;"*fn35 (2) that the inappropriate treatment is motivated by plaintiff's gender;*fn36 and (3) that "a specific basis exists for imputing the conduct that created the hostile work environment to the employer."*fn37

  To meet the first prong of the test, both objective and subjective elements must be satisfied: "not only must the victim herself subjectively perceive [the] environment to be abusive, but the misconduct of which a plaintiff complains also must be `severe or pervasive enough to create an objectively hostile or abusive work environment.'"*fn38 To determine whether allegations of abusive conduct are sufficient to meet the threshold for an objectively hostile environment, courts may consider: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.*fn39

  As a general rule, incidents of sexual harassment must be "`sufficiently continuous and concerted in order to be deemed pervasive.'"*fn40 However, the Second Circuit has emphasized that a single act that transforms a plaintiff's workplace can be sufficient to establish a hostile work environment.*fn41


While the standard for establishing a hostile work environment is high, we have repeatedly cautioned against setting the bar too high, noting that "while 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.'"*fn42
Accordingly, whether harassment can be considered objectively severe or pervasive must be determined by looking to the totality of circumstances surrounding the abuse.*fn43 Facially sex-neutral incidents can be considered among the totality of circumstances courts review so long as a reasonable fact-finder could conclude that they were actually based on sex*fn44 and physical harassment may also be considered.*fn45

  However, employers are not automatically liable for a hostile work environment created by their employees.*fn46 In order to meet the third prong of the test, a plaintiff must demonstrate a specific basis for holding the employer liable. In the Second Circuit, employers can be held liable for the illegal acts of a plaintiff's co-workers.


Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.*fn47
2. Retaliation Claims
  Retaliation claims brought under Title VII are founded on 42 U.S.C. ยง 2000e-3(a) which states that, "It shall be an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because [s]he has opposed any practice made an unlawful employment practice by this title, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title."*fn48 This law applies to any individual who has been discriminated against by his or her employer based on "race, color, religion, sex, or national origin."*fn49

  A prima facie case of retaliation is established when a plaintiff can show: (1) that she participated in a protected activity known to the defendant; (2) an adverse employment action that disadvantaged her; and (3) a casual connection between the protected activity and the adverse employment action.*fn50 In order to demonstrate participation in a "protected activity," a plaintiff's allegations of discrimination must have been based on "`a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.'"*fn51 A plaintiff is not required to prove that the conduct she complained of was in fact a violation of Title VII.*fn52 As a result, an employer is prohibited from retaliating against an employee because she filed formal or informal protests of discrimination, even if the employee's beliefs were mistaken.*fn53 However, since "`not every act by an employee in opposition to . . . discrimination is protected,'"*fn54 the reasonableness of a plaintiff's belief must be assessed "in light of the totality of the circumstances."*fn55 If it is absolutely clear that no Title VII violation has occurred, a plaintiff's activities will not be protected.*fn56

  3. Title VII Claims Against Individual Defendants

  In the Second Circuit, only employers are subject to liability under Title VII.*fn57 Individuals (generally co-workers) are not subject to liability in a Title VII action in their individual*fn58 or official capacities.*fn59


  A. Constitutional Claims

  Garcia alleges that defendants violated her rights under Title VII by creating a hostile work environment and terminating her employment in retaliation for filing a sexual harassment charge with the DHR. Defendants, in turn, contend that Garcia cannot meet the threshold requirement of showing an objectively hostile or abusive work environment and that she never engaged in a protected activity. Defendants further argue that even if Garcia's sexual harassment and retaliation claims are cognizable, defendants Lewis, Lowery, and Burton cannot be liable based on well-established Second Circuit precedent.

  1. Sexual Harassment Claim Against Osborne

  As discussed earlier, the threshold requirement for establishing a prima facie case of hostile work environment in violation of Title VII is a showing that the conduct complained about is objectively hostile or abusive. Title VII was not intended to "sterilize the workplace,"*fn60 and as a result, "not all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII."*fn61 Therefore, a plaintiff must establish that "either a single incident [of harassment] was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment."*fn62

  At the motion to dismiss stage, Garcia has alleged facts sufficient to meet the threshold requirements of a subjectively and objectively hostile or abusive work environment. Garcia has adequately alleged that she found Lewis' behavior to be abusive. In fact, Garcia has alleged psychological trauma as a result of the alleged harassment.

  By the same token, Garcia has made sufficient allegations to support the objective prong of the test. Drawing every inference in her favor, and looking at the totality of the circumstances surrounding the alleged hostile work environment, the actions of Garcia's co-worker may have been pervasive enough to impact the conditions of Garcia's employment. Garcia alleges that Lewis perpetrated acts of harassment against her nearly every time they were together. Garcia also alleges physical harassment (Lewis' constant touching) and the use of terms of endearment which could reasonably be found to be based on sex. Moreover, the alleged harassment could well have interfered with Garcia's work performance, based on the psychological trauma she claims to have experienced. Accordingly, sufficient allegations exist to support a claim that Garcia experienced an objectively abusive work environment. The defendants' motion to dismiss Garcia's sexual harassment complaint against Osborne is therefore denied.

  2. Retaliation Claim Against Osborne

  The first element required to establish a prima facie case of retaliation is participation in a protected activity known to the defendant, such as filing a protest against discrimination.*fn63 The plaintiff is only required to allege facts sufficient to establish that she held a "good faith, reasonable belief" that her opposition to sexual harassment constituted "protected activity" for the purposes of Title VII.*fn64

  Construing the Complaint liberally, Garcia has adequately alleged a "good faith, reasonable belief" that she was engaging in protected activity by complaining of sexual harassment. Same-sex sexual harassment is a cognizable claim under Title VII,*fn65 and it is undisputed that Garcia brought her sexual harassment complaint in good faith. Moreover, when reviewing the circumstances surrounding Garcia's DHR complaint, it is clear that her belief was reasonable. Specifically, Garcia alleges that as soon as she began work at Osborne she was "continuously touched" and addressed by Lewis in an inappropriate manner. When she expressed discomfort, Osborne responded by encouraging Garcia to discuss her allegations with Lewis (eventually giving her permission to cease personal contact with Lewis). These facts, which must be accepted as true, establish that Garcia could have reasonably assumed that Lewis' behavior towards her constituted sexual harassment in violation of Title VII. Whether or not Garcia can ultimately succeed with her sexual harassment claim against Osborne is irrelevant for purposes of assessing the adequacy of her retaliation claim. Accordingly, sufficient allegations exist to support a claim that Garcia was engaged in a protected activity. Defendants' motion to dismiss Garcia's complaint of retaliatory discharge against Osborne is therefore denied.

  3. Title VII Claims Against Individual Defendants

  In the Second Circuit, individuals are not subject to liability in a Title VII action in their individual or official capacities.*fn66 This is true even if the employee had supervisory authority over the complainant.*fn67 As a result, the claims against defendants Lewis, Burton, and Lowery, all individual employees of Osborne, are dismissed.*fn68 V. CONCLUSION

  For the reasons set forth above, defendants' motion to dismiss plaintiff's Title VII claims for sexual harassment and retaliatory termination are granted with respect to defendants Lewis, Burton, and Lowery and denied with respect to Osborne. IT IS HEREBY ORDERED that case number 05 Civ. 1154 be consolidated into lead case number 05 Civ. 1153 for all purposes and all subsequent filings be filed under that lead case number. The Clerk of the Court is directed to close this motion (docket # 5). A conference is scheduled for 4:30 p.m. on June 24, 2005, in Courtroom 15C. SO ORDERED.

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