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October 5, 2005.

KAREN D. DAVIS, Plaintiff,

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.


  Karen Davis

  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.

  LaTayna McDonald

  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.

  Karin Sams

  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 ...

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