The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
These discrimination actions were brought by three former
Verizon Wireless employees alleging claims of sexual harassment,
gender and/or race discrimination, and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and the New York Human Rights Law, N.Y. Exec. L. § 296
et seq. Plaintiffs all worked in Verizon's Financial Services
Department sometime between the fall of 2001 and early spring of
2003. Their discrimination claims primarily concern the actions
of two Verizon supervisors, Greg Callaghan ("Callaghan") and
Jeremy Schaut ("Schaut"). Plaintiffs allege that they were
subjected to a hostile work environment based on race or gender.
They also claim that Verizon's management did not meaningfully
investigate or take remedial measures once they complained of
discrimination, and that they were retaliated against for doing
so.*fn1
Before the Court are defendant Verizon's motions for summary
judgment. Also before the Court is defendant Adecco's motion for
summary judgment in the McDonald case.*fn2 At a motion
hearing held on August 30, 2005, the Court granted certain
portions of defendants' motions and dismissed a number of
plaintiffs' claims.*fn3 This Decision and Order addresses
the remaining portions of defendants' motions upon which the
Court reserved decision. For the reasons articulated below, the remainder of defendants'
motions are granted in part and denied in part. I find that
issues of fact exist regarding Davis's and McDonald's race-based,
hostile-work-environment claims that require resolution by a
jury. Sams's gender-based, hostile-work-environment claims,
however, are dismissed with prejudice. As for plaintiffs'
retaliation claims, only McDonald has raised an issue of fact
regarding that claim to survive summary judgment. Davis's and
Sams's retaliation claims, therefore, are also dismissed with
prejudice.
Plaintiff Karen Davis, an African-American, was hired in
November 2001 as a Credit Order and Operations Supervisor
("COOS") in the Financial Services Department of Verizon's Call
Center. Like the other COOSs, she supervised approximately 10-15
customer service representatives (referred to by the parties as
"reps") at any given time. Plaintiff claims that Verizon told her
that she was hired as a COOS because of the number of
African-American reps that worked at the Call Center. According
to Davis, Verizon hoped that the African-American employees would
"relate" to her better.
Davis claims that during her tenure, approximately 70% of the
Call Center employees were African-American.*fn4 Most
African-American employees, she asserts, held entry level
positions as reps or worked as temporary contract employees through Adecco. In
comparison, out of eight COOSs, she and Sheela Eason were the
only two African-Americans. The COOSs reported to the Associate
Director of Customer Financial Services, a position that was
occupied at all relevant times by a Caucasian first Callaghan,
and then his replacement, Elizabeth Flint.
Davis alleges that she was subjected to a race-based hostile
work environment at Verizon and then retaliated against after
complaining about that environment. She claims that Callaghan
held a racial animus toward African-Americans and that this
animus manifested itself in numerous ways that affected her
employment. Davis alleges that Callaghan excluded her from
meetings, denied her supervisory direction, and undermined her
ability to do her job by firing African-American reps that
reported to her without first consulting her or utilizing a
progressive disciplinary process. He also made condescending
remarks to her, once accusing her and two other female employees
who had raised workplace issues with him as acting "like 16
year-old girls." She also claims that Callaghan treated Caucasian
employees more favorably and gave them more responsibility. This
was particularly true for Schaut, a Caucasian COOS. According to
Davis, Callaghan treated Schaut as a "super-COOS" and directed
him to supervise her and the other COOSs, as well as their reps,
despite the fact that Schaut had no authority from Verizon to do
so.
Davis also alleges that under Callaghan's supervision,
African-American employees received less favorable treatment in
certain terms and conditions of employment. She claims that there
were disparate hiring standards for African-Americans, that they
were disciplined more harshly than their Caucasian counterparts, that they were not promoted as frequently
as Caucasians, and that they received less favorable work
schedules.
Davis claims that Schaut was racist and the other principal
architect of the hostile work environment. Schaut allegedly used
rude or derogatory language when speaking to or referring to a
group largely comprised of African-American reps, including
phrases such as "those people" and "you people." In addition, at
times, he referred to himself as a "slave driver" or "slave
master." Plaintiff McDonald reported to Davis (in her capacity as
a supervisor) that on one occasion, Schaut murmured "uh, these
niggers" in response to a question McDonald asked him. COOS Gina
Mazza also reported to Davis that she heard Schaut use the racial
epithet "nigger" while making a joke sometime in 2002. Another
rep, Tonie Porter, reportedly heard Schaut use the epithet
"nigger" on "a number of occasions" in 2000 and 2001 (see
Porter Aff., ¶ 7), and she complained about this to Davis. Schaut
also made statements to the effect that he "could just slap the
reps," and that other reps were "stupid." Further, it is alleged
that he told two other COOSs that Davis was "useless and good for
nothing." He also told plaintiff McDonald on more than one
occasion to "shut up and sit down."
Davis claims that another Caucasian COOS, Misty Schutt, who
allegedly worked closely with Schaut and was one of Callaghan's
favorites, contributed to the hostile work environment by
treating African-American reps more harshly and talking to them
like they were "less than human."
Davis maintains that Verizon exacerbated the hostile work
environment by failing to conduct a meaningful investigation
concerning her numerous and repeated complaints or take any
remedial action. She alleges that those who investigated her
allegations were all Caucasian. She claims that she met with
Callaghan several times in November and December 2001 to complain
about Schaut's discriminatory behavior but that Callaghan did not address the
problem. Davis then took her discrimination complaints about
Callaghan and Schaut to Verizon's Human Resources department.
However, the Human Resources department, specifically Deanna
Kempinski and Nancy Percent, failed to take any remedial action
or properly investigate her discrimination complaints. Davis
claims that it was not until she (together with several other
employees, including plaintiffs Sams and McDonald) filed an EEOC
charge that Verizon took any steps to meaningfully investigate
the complaints of discrimination.*fn5
Ultimately, Callaghan was terminated from Verizon in April of
2002 after receiving a "vote of no confidence" from his
supervisors allegedly due to his abrasive management style.
Callaghan's replacement, Elizabeth Flint, held "skip-level"
meetings*fn6 with the reps to listen to their workplace
complaints. According to notes taken at these meetings, reps
complained about numerous workplace-related issues, including
rude behavior, breaches of confidentiality, training issues, but
they also complimented certain supervisors, including Davis. The
notes also indicate that reps complained of Schaut's behavior and
remarks, including his utterance of the word "nigger" in
McDonald's presence and that he once said to a rep "look at me,
like a slave driver."
It is undisputed, though, that Flint took no steps to
investigate the allegations of discrimination or the racist
remarks because the incidents occurred when Callaghan was the supervisor. It is also undisputed that when upper-level
management became aware of allegations that Schaut used racial
epithets, or terms like "slave master" or "slave driver," Verizon
did not take any remedial measures, such as instituting diversity
training in the department, although Human Resources personnel
admit that was an available option.
At some point, Schaut was issued a "final written warning"
about his management style, but the warning was based on his rude
behavior, not because he allegedly engaged in racial
discrimination. In June 2002, as part of a consolidation of the
Financial Services Department, Schaut and three other COOS were
demoted to reps. Schaut thereafter took a lateral,
non-supervisory position in a different department at Verizon,
where he remains employed today.
In March 2003, Verizon underwent a reduction-in-force. Verizon
consolidated the entire Financial Services Department. The work
was absorbed by other departments and plaintiff Davis and
approximately 120 other employees were laid off.
At all relevant times, plaintiff LaTayna McDonald, an
African-American, was an employee of defendant Adecco, a
temporary agency that provided numerous employees for Verizon.
During her tenure as an Adecco employee from July 2001 through
August 5, 2002, McDonald was assigned to work at Verizon as a
rep. While at Verizon, she claims that she was subjected to a
race-based hostile work environment and retaliated against after
she complained about discrimination and filed a charge with the
EEOC. To support her claims, McDonald relies on the same evidence
as plaintiff Davis regarding the racial composition of employees
at the Call Center. When she was first placed at Verizon, McDonald reported to
Schaut. Sometime near the holiday season in 2001, McDonald
alleges that she asked Schaut a question about an assignment. She
claims that Schaut, who often appeared to be annoyed by reps'
questions, responded to her and, as he was walking away, said
"uh, these niggers." Verizon supervisors claim that during their
investigation, Schaut flatly denied that he ever used this racial
epithet.*fn7
McDonald also claims that, in the Summer of 2001 she heard
Schaut yell at a group of African-American reps, "you people,
shut up." On another occasion in the Spring of 2002, he said to a
group of about 40 reps, almost all of whom were African-American,
"you people need to get back on the phones." She claims on
another occasion Schaut blatantly ignored her request for help
with a particular call, acting as if she was not in the room. One
other time, Schaut also told her "shut up and sit down." She also
alleges that in the Winter of 2001, she approached Schaut's
office and overheard him telling Natalie Horn, another COOS, that
McDonald had a voice like a 1-900 phone sex operator.
McDonald complained to two COOS, plaintiffs Davis and Sams,
about Schaut's behavior. She did not complain to the Human
Resources department. McDonald also claims that she complained to
Adecco on two or three occasions by telephone, but admits that
she never reported to Adecco that Schaut had used the racial
epithet "nigger." During one such conversation, Adecco told her
that if she was unhappy, it would find her another assignment.
McDonald declined to be placed with a different employer, though,
because the Verizon facility was convenient to her home.
Nevertheless, she claims that Adecco personnel "brushed off" her
complaints. McDonald further claims that after she filed her EEOC charge in
May 2002, she was subjected to retaliation at the workplace. She
claims she was excluded from group meetings, and that she was
monitored more closely by supervisors. In August 2002, McDonald
applied for but was denied a permanent position at Verizon. Her
assignment at Verizon ended, and she opted not to seek other
employment through Adecco.
Plaintiff Karin Sams is a Caucasian female who began working at
Verizon on November 6, 2001 as a COOS. She was one of eight COOS,
six of whom were female. Sams's discrimination claims are
different than those alleged by Davis and McDonald. Sams alleges
quid pro quo sexual harassment, a gender-based hostile work
environment, and retaliation for complaining about
discrimination.
Sams alleges that trouble began almost immediately when she
started working at Verizon in early November 2001. Within one
week, Sams alleges that she met with Callaghan, her immediate
supervisor. He allegedly told her that there was an opening for a
managerial position between Associate Director (his position) and
COOS (her position). He told her that if she "played [her] cards
right," he would sign off on the paperwork so that she could post
for the position, despite the fact that Verizon's policy required
that an employee hold a position for at least six months before
being eligible for a promotion. Sams claims that this discussion
made her uncomfortable.
One week later, prior to a November 15th meeting at the Four
Points Sheraton Hotel, Callaghan allegedly told the Sams that he
had a room at the hotel and asked her if she would like to stay
there with him and "have some fun." Sams told Callaghan that she
was happily married and that his sexual advances were unwelcome. Callaghan denied every
propositioning Sams. Callaghan then allegedly brought up the
promotion again, and remarked that Sams could probably really use
the new position and pay. It is undisputed that there was no such
intermediate managerial position that was available to Sams or
anyone else.
Sams does not claim that Callaghan touched her inappropriately,
nor does she claim that he said anything else of a sexual nature
after these two incidents. Sams does allege, however, that she
was exposed to adverse treatment following her rejection of
Callaghan's advances. She claims that her opportunity for
promotion was taken away due to her refusal to comply with
Callaghan's propositions, that her job responsibilities were
decreased, that she was excluded from project assignments and
meetings, and that she was subjected to mistreatment and
harassment from co-workers.
Sams further alleges that she was mistreated by Schaut, as well
as senior customer service representative Jackie Kyle (who held a
position below a COOS), who allegedly shoved Sams on one occasion
and repeatedly made disparaging remarks about her to other
coworkers. She alleges this was done with the consent of
Callaghan. Additionally, Schaut acted as if he was Sams's
superior, even though they were both COOSs, and spoke rudely, if
at all, to Sams and other female COOS. Sams contends that Schaut
(and Callaghan) sent her hostile, sarcastic e-mails, although
none are contained in the record.
Sams also claims that her hostile work environment was
exacerbated by Schaut's use of racially disparaging remarks,
including use of the word "nigger" and phrases such as "you
people" and "slave driver" when referencing his relationship to
African-American employees within the Call Center. Sams contends that she met with the Human Resources department
throughout the course of her employment to complain about
Callaghan's propositions and her subsequent mistreatment, but no
action was taken. Sams also alleges that she and others met with
Regional Director, Chris Allen, in January 2002 to express their
concerns about the workplace. When Sams asked to be removed from
Callaghan's supervision, Allen denied the request due to a
purported "hiring freeze."
In April 2002, plaintiff filed an EEOC charge against Verizon
asserting gender discrimination, sexual harassment, and
retaliation in violation of Title VII. The EEOC issued a
determination in September 2002 that its investigation did not
substantiate the charges. Sams alleges that the harassment and
mistreatment continued, and media coverage surrounding EEOC
charges by eight other employees only exacerbated the hostility.
Shortly after she filed the charge with the EEOC, Callaghan was
terminated.
In July 2002, on the advice of her doctor, plaintiff took
disability leave due to depression caused by the hostile work
environment. Thereafter, on July 8, 2002, as part of departmental
downsizing, plaintiff was demoted from COOS to rep, along with
Schaut, Michael Chasey, and Gina Mazza, Schaut and Chasey, the
two males, obtained other positions with Verizon, but Sams and
Mazza, who were unaware that such positions were available, were
not hired.
Sams's disability benefits were eventually discontinued because
she allegedly provided false information on her disability
application. Verizon discovered that Sams was working in a
restaurant as a waitress while on disability leave, despite
claiming on her application that she had not been working for
months. Plaintiff was terminated on October 3, 2002. DISCUSSION
I. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment brought pursuant to
FED. R. CIV. P. 56, a court's responsibility is to determine
whether there are issues to be tried. Duse v. Int'l Bus. Machs.
Corp., 252 F.3d 151, 158 (2d Cir. 2001). Summary judgment will
be granted if the record demonstrates that "there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). "A fact is `material' for these purposes if it `might
affect the outcome of the suit under the governing law.' . . . An
issue of fact is `genuine' if `the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d
Cir. 2001) (quoting Anderson, 477 U.S. at 248); see also
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
The general principles regarding summary judgment apply equally
to discrimination actions. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)) (reiterating "that
trial courts should not `treat discrimination differently from
other ultimate questions of fact.'"). Although courts should be
cautious about granting summary judgment in cases where motive,
intent or state of mind are at issue, see Dister v. Cont'l
Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Montana v.
First Fed. Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 103
(2d Cir. 1989), "the salutary purposes of summary judgment
avoiding protracted, expensive and harassing trials apply no
less to discrimination cases than to . . . other areas ...