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Fosen v. New York Times

October 11, 2006


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


On May 26, 2003, Patricia Fosen ("Plaintiff") brought this action pro se against her former employer, The New York Times ("Defendant" or "the Times"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and the Age Discrimination in Employment Act of 1967, as amended, codified at 29 U.S.C. §§ 621-34 ("ADEA"). Plaintiff worked for Defendant as an advertising sales agent (known as a "Copy Passer") and alleges that she was demoted in May 2002 and terminated in October 2002 because of her gender and age, subject to a hostile work environment based on her gender, and subject to retaliation for protected activity under Title VII. (Compl. ¶ 4)

On August 19, 2003, the case was referred to Magistrate Judge Theodore H. Katz for general pre-trial supervision and for a Report and Recommendation on any dispositive motion.*fn1

Both parties proceeded with discovery, and on April 23, 2004, Defendant moved for summary judgment, arguing, inter alia, that Plaintiff could not make out a prima facie case of gender or age discrimination and that she was terminated for legitimate, non-discriminatory reasons, including her insubordination and failure to improve her work performance. Defendant also argued that Plaintiff's harassment claim failed because there was no evidence that the alleged conduct occurred because of Plaintiff's gender, and that her retaliation claim failed because she could not show that Defendant was aware of Plaintiff's protected activity at the time of her termination.

On October 21, 2004, Magistrate Judge Katz issued a Report and Recommendation advising that Defendant's motion for summary judgment be granted as to all of Plaintiff's claims. Plaintiff timely filed objections on November 5, 2004 (Pl.'s Opp'n to Judge Katz's Report and Recommendation ("Pl.'s Objections")), Defendant responded to these objections on November 22, 2004 (Def.'s Mem. of Law in Resp. to Pl.' Objections ("Def.'s Resp. to Objections")), and Plaintiff replied on December 2, 2004 ("Pl.'s Reply"). After having carefully reviewed the record and the applicable law, for the reasons that follow, the Court adopts the Report and Recommendation and orders that Defendant's motion for summary judgment be granted.

I. Factual Background

The facts are extensively presented in the Report and Recommendation, which follows this Opinion and Order, and familiarity with which is assumed here. In brief, Plaintiff is a 52 year-old woman who began selling classified advertisements for the Times in 1997. (Def.'s Mem. of Law at 2; Rahbar Decl., Ex. 1, Fosen Dep. at 20-21, 23, 26) After her promotion from a "Group 4 Telephone Sales Ad-visor" to a "Group 7 Senior Telesales Representative" in 1999, Plaintiff's annual performance reviews for 1999 and 2000 reflected criticisms of her interpersonal skills, and prompted Plaintiff's similar criticisms of her supervisor's workplace conduct. (Rahbar Decl., Exs. 8-10) On July 12, 2001, at a meeting with Brenda Watson, Director of Employee Relations, Joan Motyka, Manager of Labor Relations, and Art Mulford, Plaintiff's representative from the Newspaper Guild of New York ("the Guild"), Plaintiff was suspended without pay for a week for allegedly calling a white co-worker a racist. (Rahbar Decl., Ex. 14, Fosen Dep. at 146-51)

Around the same time, Plaintiff had become a "Group 7 Advertising Production Coordinator" - a position also known as a "Copy Passer" - which she considered a beneficial transfer. (Fosen Dep. at 153) In her new position, Plaintiff had persistent conflicts with Vito Rampulla, another Copy Passer, whom Plaintiff has described as a "Frank-Sinatra want-to-be" who pushes women around. (Pl.'s Aff. Opposing Mot. for Summ. J. ("Pl.'s Aff.") at ¶¶ 37-38) For example, Plaintiff found it offensive that "Rampulla refers to younger women in the work place as cupcakes, pumpkins, sweets - ageless euphamisms for women's breasts." (Pl.'s Aff. at ¶ 39) Plaintiff objects that Magistrate Judge Katz failed to acknowledge in his Report and Recommendation that "Rampulla's abusiveness was exclusively toward WOMEN co-workers."

(Pl.'s Objections at 4) According to Plaintiff's deposition testimony, however, Rampulla also directed abusive conduct at Leo Robles, one of his male co-workers. (Pl.'s Dep. at 170, 187-88, 232, 402, 405) Plaintiff further alleged that when Rampulla stood up to make a daily work-related announcement near her desk, he shook his finger at crotch level in a way that she alternately describes as a "disgusting" masturbation gesture (Pl.'s Aff. ¶ 97) and a "wagging . . . up and down nervously" (Pl.'s Dep. at 214).

Leslie Hoenninger, who supervised both Plaintiff and Rampulla in their Copy Passer positions, received sharp complaints from supervisory personnel and from Plaintiff's co-workers concerning Plaintiff's treatment of other people at work. (Rahbar Decl., Exs. 16, 17) Confrontations also arose between Hoenninger and Plaintiff concerning Plaintiff's work schedule (Rahbar Decl., Ex. 15) and work procedures (Pl.'s Aff. ¶¶ 63, 69).

At a meeting on May 31, 2002, Plaintiff was transferred back to a position as a "Group 4 Ad-visor" with no pay reduction.*fn2 (Pl.'s Dep. at 247-54) When supervisory personnel learned that Plaintiff had secretly tape-recorded this meeting, Motyka informed Plaintiff that such conduct was contrary to the Times' written rules requiring employees to treat each other with "honesty, respect and civility." (Rahbar Decl., Ex. 26) In the following months, Plaintiff and her supervisors had repeated confrontations in the workplace and over e-mail concerning Plaintiff's schedule and productivity. (Rahbar Decl., Exs. 28-33)

Plaintiff began bringing a tape recorder to work and keeping it in her purse. (Pl.'s Aff. at 56) Although Plaintiff claims that the tape recorder was out of plain view, other employees complained that it made them uncomfortable and Hoenninger claimed it could be seen at the top of Plaintiff's purse. (Rahbar Decl., Ex. 4, Halley Dep., Tape 1 at 21-22, 26-27, Tape 2 at 22-23; Rahbar Decl., Ex. 2, Hoenninger Dep., Tape 3 at 74-77, 83-89) Plaintiff received a performance warning letter on September 24, 2002 ("September performance warning"), and a meeting was scheduled to discuss the warning on October 3, 2002, with Plaintiff, Corinne Osborn, Charlotte Behrendt of the Times' Labor Relations officer, and Guild representatives. (Rahbar Decl., Exs. 38, 39) The meeting was adjourned and Plaintiff was suspended when Plaintiff would not agree to proceed with the meeting without the use of her tape recorder. (Pl.'s Dep. at 429-32; Rahbar Decl., Ex. 40)

Plaintiff later agreed to proceed without the tape recorder at a meeting on October 17, 2002, with Osborn, Behrendt, Hoenninger, and Guild representatives. There is some dispute as to what was said at this meeting. As Magistrate Judge Katz recounts, "Plaintiff contends that she never expressly refused to meet the Times' standards, rather she refused to agree to Behrendt's assessment that they had not been met. By not agreeing to cooperate in improving her performance, Plaintiff was aware that she risked termination." (Report and Recommendation at 13-14) (internal citations to record omitted) Toward the end of this meeting, Plaintiff informed the group that she "had gone to" the Equal Employment Opportunity Commission ("EEOC") because of "the harassment and the hostile work environment." (Pl.'s Aff. ¶¶ 29-30; Pl.'s Dep. at 446-47) On October 22, 2002, Behrendt terminated Plaintiff because of her insubordination, her refusal to heed the September performance warning, and her statements that she did not believe that her performance needed improvement. (Rahbar Decl., Ex. 44)

II. Discussion

A. Standard of Review

A district court reviewing a report and recommendation deciding a dispositive motion "'may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'" Reyes v. Mantello, No. 00 Civ. 8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," see Fed. R. Civ. P. ...

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