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Giamundo v. Shevell

September 20, 2006

MARIA GIAMUNDO, LAURA LEONE, DEBORAH WORRELL AND EVELYN SINGER, PLAINTIFFS,
v.
MARILYN SHEVELL, ROBERT BREVETTI, MARTIN BLUM AND NEW YORK CITY BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Maria Giamundo ("Giamundo"), Laura Leone ("Leone"), Deborah Worrell ("Worrell"), and Evelyn Singer ("Singer") bring this action against defendants the New York City Board of Education ("Department of Education"), Marilyn Shevell ("Shevell"), Martin Blum ("Blum") (collectively, the "City Defendants"), and Robert Brevetti ("Brevetti") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII"), 42 U.S.C. § 1983, the New York State Human Rights Law, New York Executive Law §§ 296 and 297 ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Administrative Code §8-101 et seq. ("NYCHRL"). Plaintiffs allege that defendants discriminated against them by creating a hostile work environment based on their gender and retaliated against them for complaining about sexual harassment and their hostile work environment. Plaintiffs Worrell and Leone also claim that they were constructively discharged.*fn1

Presently before the Court are defendants' motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant Brevetti moves for summary judgment, arguing: (1) plaintiffs cannot recover against Brevetti under Title VII; (2) there is no genuine issue of fact on which to sustain the § 1983 claims; and (3) plaintiffs' state law claims should either be dismissed or the Court should decline to exercise jurisdiction over them. The City Defendants move for summary judgment, claiming: (1) plaintiffs cannot establish a prima facie case of hostile work environment based on their gender; (2) plaintiffs cannot establish a prima facie case of retaliation; (3) plaintiffs cannot maintain their § 1983 claims against City defendants as a matter of law; (4) plaintiffs Title VII claims against the individual defendants cannot be maintained as a matter of law; (5) plaintiffs Worrell and Leone cannot establish an action for constructive discharge as a matter of law; and (6) plaintiff Giamundo cannot establish an action for defamation against defendants Blum and Shevell as a matter of law. For the reasons that follow, the motions for summary judgment are granted in part and denied in part.

BACKGROUND

The following facts are taken from the parties' depositions, affidavits, exhibits, and Local Rule 56.1 statements. Disputes are noted.

Plaintiff Giamundo, during all relevant times, was a school secretary at Martin Van Buren High School ("Van Buren"). She was appointed school secretary in September 1991. Before that, she served as a school aide at Van Buren. Plaintiff Laura Leone began work as a school secretary at Van Buren in 1997. From November 2000 to September 2001, she was on unpaid leave of absence to care for a family member, after which she returned to work as a school secretary. Before commencing work as a school secretary at Van Buren, Leone served as a school secretary and teacher in other schools. Plaintiff Singer began working at Van Buren in 1994 as a substitute school secretary. She was appointed a full time secretary in 1996. Plaintiff Worrell started work as a paraprofessional in the English Department at Van Buren in 1989.

Defendant Robert Brevetti was assigned to Van Buren in September 1998 as Assistant Principal of Operations. He had supervisory authority over the secretarial staff until November 2002. Defendant Marilyn Shevell was appointed Principal of Van Buren on February 1, 2002. Defendant Martin Blum was a consultant hired by the Superintendent's Office to consult with Shevell regarding the sexual harassment complaints made by plaintiffs.

Plaintiff Giamundo's Contacts with Defendants Brevetti and Shevell

After Brevetti was assigned to Van Buren in 1998, he worked with Giamundo on a daily basis, and enjoyed a good working relationship with her until Fall 2001, at which point Giamundo alleges their relationship changed. In October 2001, Giamundo called Brevetti to ask him a question. He answered "blow me" and hung up the telephone. Throughout the course of that month, Brevetti said "blow me" or "eat me" to her on numerous occasions, and, after making such comments, laughed. Brevetti admits that he used sexually offensive terms in speaking with Giamundo, but not those attributed to him and no more frequently than five times in October 2001. Giamundo says it happened more often. She told Brevetti to stop, but initially did not tell anyone else about the comments.

Giamundo alleges that her relationship with Brevetti was again "fine" between November 2001 and February 2002. Giamundo states that in the Spring of 2002, she went to Principal Shevell's office to ask Brevetti a question and, in front of Shevell and two other administrators, Brevetti again said "blow me," laughed, and that Shevell also laughed.*fn2 She states that after this incident, Brevetti continued to direct the words "blow me" to Giamundo on almost a daily basis, and when she asked him to stop, laughed. When, in May 2002, Brevetti once again said "blow me" to Giamundo, she became very angry while he again laughed. Later that day, Giamundo states, Brevetti returned to her office and gave her a lewd note written in Italian that said that "he wanted to do her" and "what he wanted her to do with her mouth."

The following morning, Giamundo complained to Shevell about Brevetti's behavior, and Shevell told Giamundo that she would "absolutely do something." Approximately half an hour later, Brevetti is said to have accosted plaintiff in her office and angrily told her that the principal would never support her over him, and that she should "blow him." After that, Brevetti's behavior toward plaintiff became "nasty and curt."

In June 2002, Giamundo and Leone were working in the payroll office on a document which required Brevetti's approval. Giamundo went to the principal's office to get him. He did not respond to her request to approve the document, so she returned to payroll and informed Leone. Leone went to the principal's office, and when she returned to payroll, she informed Giamundo that Brevetti would be there in a minute. Brevetti then entered the payroll office and began yelling at Giamundo while walking towards her until her back was against the radiator. He physically pressed her against the radiator and pressed his chest against her chest. Leone told Brevetti to stop, at which point Brevetti walked out of the office, slamming the door behind him when Leone attempted to follow him. Later, Brevetti returned to the office and began screaming at Giamundo again, this time with both Leone and Shevell present. Leone and Shevell told Brevetti to stop. Brevetti left the office but returned a few minutes later to approve the document. Defendant Brevetti denies that this incident occurred.

The next day, Giamundo wrote a letter to Shevell about the incident. Although Shevell was present for part of the incident, Giamundo recounted the entire incident in the letter and requested that the "situation [be] addressed."

On September 3, 2002, after returning to work following summer recess, Giamundo learned that Leone would no longer be working in the payroll office. She complained to her United Federation of Teachers (UFT) representative and was told that nothing could be done. Giamundo did not complain to Shevell at that time.

On September 4, 2002, Brevetti once again yelled at Giamundo, this time because she had asked school aides to inquire about checks. He leaned toward her over her desk in the payroll office and pounded on her desk while doing so. As a result of this incident, Giamundo began to feel sick. She was taken to the school's medical room, and then taken by ambulance to the hospital, where she was treated for trauma.

After this incident, Brevetti no longer made comments such as "blow me" or "eat me" to Giamundo; however, Giamundo alleges that Brevetti, along with the other Assistant Principals, were "nasty and performing actions to put her in her place."

On September 6, 2002, Giamundo was contacted by Don Nobles, the UFT Chapter Leader for secretaries at the school. He informed Giamundo that some of the secretaries were going to be excessed,*fn3 and he asked her if she would volunteer to be excessed. Giamundo refused.

On September 9, Giamundo filed a grievance and a letter to Shevell about Brevetti's "inappropriate, unprofessional, harassing, and physically threatening behavior" on September 4, 2002. In the letter, she stated that Shevell largely ignored her on that day, even though she was in obvious physical and emotional distress, and accused Giamundo of lying to the EMS technician about her physical health. On September 10, Giamundo filed a grievance objecting that Shevell had created a new secretarial position and filled it without posting an announcement as required.

On September 20, 2002, Shevell addressed Giamundo's grievances. First, she eliminated the new secretarial position. With respect to the grievance concerning Brevetti's behavior, Shevell advised Giamundo to file a complaint with Adrienne Brown, the Local Equal Opportunity Coordinator ("LEOC") for Van Buren. Shevell gave Giamundo a copy of Chancellor's Regulation A-830, which outlines the procedures for employee complaints of sexual harassment.

On October 4, 2002, Giamundo made a formal complaint of discrimination to the Office of Equal Opportunity ("OEO") at the Department of Education ("DOE") alleging sexual harassment and retaliation by Brevetti and Shevell.

Brevetti was removed from Van Buren and replaced by Assistant Principal Celeste Burgess in November 2002.

Giamundo alleges, and Brevetti disputes, that the assistance she had been receiving in the payroll office, along with some of the furniture, had been removed by Brevetti at some point prior to his departure in order to harass her. On November 6, 2002, Giamundo complained to Shevell that she needed additional assistance and furniture for the office. The next day, Assistant Principal ("AP") Burgess informed Giamundo that Shevell had approved assistance for Giamundo in distributing pay checks as well as the provision of additional furniture.

On November 22, 2002, Giamundo filed a grievance complaining that her assistance and furniture were removed in retaliation for her sexual harassment complaints. Following a December 13, 2002 meeting with UFT representative Rona Freiser, AP Burgess again informed Giamundo that the administration would provide her with assistance and additional furniture as requested. Despite these assurances, Giamundo alleges, she did not get the assistance she needed.

In January 2003, Giamundo learned that she was to be excessed from Van Buren. She filed a grievance, but Shevell denied the grievance. Giamundo alleges that her removal was conducted in a humiliating manner in front of other staff members. She was told that her work in the payroll office would be investigated, although she was not accused of anything specific, and that she would have to remove her personal effects while Nobles was present. Once she had her personal belongings together, defendant Blum searched everything.

As a result of being excessed to another school, Giamundo lost her seniority and per session (or overtime) work. Because she was under investigation, her clearance to use the payroll computer was revoked. After her removal, she wrote a letter to Shevell reminding her of her right to return to her job under union rules if a secretarial position opened in Van Buren. Shortly after Giamundo was excessed, Leone left her position and then two other secretaries left their positions; however, no new secretaries were hired until after Giamundo's right to return had expired.

Plaintiff Leone's Contacts with Defendants Brevetti and Shevell

When Principal Shevell arrived at Van Buren in February 2002, she determined that she did not need two secretaries and assigned Leone to the payroll office. Leone worked in the payroll office for the Spring 2002 school term.

Leone testified that in May 2002, while in the payroll office with Leone, Brevetti put a microphone down his pants so that it looked like an enlarged penis and pointed to it in order to call her attention to it.

Leone also testified that she witnessed the June 2002 incident between Brevetti and Giamundo. After the incident, she spoke to UFT Representative Nobles, who informed her that she could file a grievance about the incident.

As of Fall of 2002, Leone alleges that she had been given five different assignments in four years. On September 4, 2002, she filed a grievance requesting a written promise that she would not be moved from her then current position as college secretary. The grievance was denied, and Leone did not appeal the denial.

Leone and other secretaries complained to Shevell about Brevetti in September 2002 after Giamundo was taken to the hospital following an incident with Brevetti on September 4. Leone also contacted the OEO in September 2002 in order to complain about Brevetti. She was told to file a formal complaint.

On September 30, 2002, Leone was sitting in a chair next to a large waste receptacle when Brevetti walked past her several times and glared at her. He returned past several other waste receptacles with his hands full of garbage, including a metal coffee can, and threw the garbage into the waste basket from a distance of six feet, missing the woman's head by inches.

Leone made a formal complaint of discrimination to the OEO alleging sexual harassment and retaliation by Brevetti on September 30, 2002 with respect to both the microphone incident and the waste receptacle incident. Brevetti was removed in November 2002 and replaced by AP Burgess.

After Burgess replaced Brevetti as the secretaries' supervisor, Leone states that her workload changed, increasing in some respects and decreasing in others. In addition, Burgess monitored her more closely and sought to know where she was at all times. In November 2002, Ken Trell, a consultant at Van Buren, told Leone to teach two school aides how to print out labels for time cards. He told her that if she did not like it, she could file a grievance. As he said this, he backed her up against a wall, touching her physically. Leone's blood pressure rose. She went to the medical office and thereafter was taken home by her husband. Leone complained to Shevell about this incident, and Shevell told her to file a grievance. Leone also contacted her union regarding the incident and was again told to file a grievance. Leone never filed a grievance about this incident, but she states that that is because she had been informed by another secretary that Shevell would harass her and make her life difficult if she complained and that she might as well leave because there was no way she could prevail.

Starting on November 1, 2002, Leone kept a harassment log at the suggestion of Thomas Fox, the LEOC for the Queens High School Superintendency. At the same time she did not file any complaints with Shevell, her union, or the OEO regarding the incidents she listed in the log. On February 28, 2003, Leone filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission alleging sex discrimination and retaliation.

Shortly after Giamundo was excessed from Van Buren, Leone became dizzy and nauseous, and fell in her bedroom. She spoke to Thomas Fox seeking transfer because of the manner in which she was being treated. Fox told her not to transfer and that things would be better now that the other women had left the school. Leone elected to take an unpaid leave of absence until April 2004, at which point she retired.

Leone submitted claims to her union requesting disability benefits for the time she was on approved leave of absence without pay and stated on the forms that her illness was not job related.

Plaintiff Worrell's Contacts with Defendants Brevetti and Shevell

Plaintiff Worrell, an African American female, started working as a paraprofessional in the English Department at Van Buren in 1989. When Brevetti started working at Van Buren, Worrell had limited contact with him. In the spring of 2001, Worrell began doing per session work in the payroll office where she assisted Brevetti and Giamundo.

Worrell does not complain of any incidents until April 2, 2002, when Worrell informed Brevetti that she was applying for her secretarial license, and Brevetti told her she had to "blow him" if she wanted a secretarial position in the building. He began laughing. She told him he was disgusting and walked away. Leone witnessed this incident. Worrell testified that at that time, she did not know if he was serious or not. After ...


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