The opinion of the court was delivered by: Richard J. Arcara Chief Judge United States District Court
Plaintiff Daisy Rios commenced this action on May 20, 2004, against her former employer, defendant Buffalo and Fort Erie Public Bridge Authority ("Authority"), alleging violations of 42 U.S.C §§ 1981 and 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e. The defendant filed a motion for summary judgment and the plaintiff filed papers in opposition. This case was referred to Magistrate Judge Marian Payson, pursuant to 28 U.S.C. § 636(b)(1).
On September 7, 2007, Magistrate Judge Payson issued a report and recommendation recommending that defendant's motion for summary judgment be granted in part and denied in part. Specifically, Magistrate Judge Payson recommended granting the defendant's motion for summary judgment as to plaintiff's Title VII disparate treatment and retaliation claims, and her claims under §§ 1981 and 1983. However, as to plaintiff's hostile work environment claim, Magistrate Judge Payson recommended that summary judgment be denied.
Defendant filed timely objections to the report and recommendation.
Plaintiff filed a response in opposition to the objections but to do not file her own objections. The Court held oral argument on the defendant's objections on February 5, 2008. DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the report and recommendation to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court hereby adopts Magistrate Judge Payson's recommendation to grant summary judgment in favor of the defendant as to plaintiff's disparate treatment, retaliation and §§ 1981 and 1983 claims, for the reasons set forth in the report and recommendation. However, for the reasons set forth herein, the Court finds that summary judgment should also be granted as to plaintiff's hostile work environment claim.
To prevail on her hostile work environment claim, plaintiff must establish two elements: (1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. See Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004); Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.), cert. denied, 540 U.S. 1016 (2003).
To establish the first element, plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citation omitted); see also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). Plaintiff must demonstrate "not only that she subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive." Demoret, 451 F.3d at 149. Plaintiff can do this by showing either that a single incident was extraordinarily severe, or that a series of incidents were "sufficiently continuous and concerted" so as to have altered the conditions of her employment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Demoret, 451 F.3d at 149. The Supreme Court has explained that: whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Plaintiff alleges that she was subjected to harassment based upon her ethnicity (Hispanic) and gender. The allegations underlying plaintiffs hostile work environment claim are set forth in Magistrate Judge Payson's report and recommendation and briefly summarized here.*fn1
In 1989, plaintiff and other Hispanic co-workers were told by then-supervisor Tommy Johnson not to "speak Puerto Rican" and that if they did not like that it, they could "go back to their own country." Plaintiff did not notify the Authority about these offensive comments. In February 1995, plaintiff was the subject of an offensive anonymous cartoon. Plaintiff complained about the cartoon to then-Human Resources Manager Stanley Matthews and Facilities Manager Dave Young. She also claimed that around that same time, her time card was missing, someone had spit in her coffee, and someone had written "Puerto Rican scum" on her car while it was parked in a public parking lot. Matthews advised plaintiff that her complaints would be investigated and that she should report any further incidents directly to him. The Authority's investigation failed to uncover the perpetrator. Nevertheless, the Authority issued a warning to the individual whom plaintiff believed to be responsible. In February 2001, plaintiff was the subject of another offensive anonymous cartoon. This cartoon was slipped into her locker. Plaintiff did not report the incident to the Authority until May 2001, three months later. When she did, the Authority responded by issuing a letter of apology and by modifying her locker to seal up the louvers. The Authority also issued a memorandum reminding employees that sexually explicit materials were prohibited in the workplace.
In 2002, one of plaintiff's co-workers discovered graffiti stating "Fuck the dumb spics" on a toll booth. Upon learning of graffiti, the Authority immediately removed it and issued a memorandum to all of its employees reiterating its and anti-harassment policy and warning that harassing behavior was punishable by termination.
In early 2003, plaintiff and a female co-worker named Lisa Padilla each received an offensive anonymous cartoon. Upon learning of the cartoons, the Authority issued another memorandum reiterating its anti-harassment policy and conducted an extensive investigation to determine who was responsible for the cartoons. As part of the investigation, the Authority interviewed over 50 employees. In April 2003, plaintiff was advised that the Authority was unable to identify the perpetrator or perpetrators of the anonymous offensive cartoons. Plaintiff also claims that: (1) her supervisor Dominic Savarino frequently told ethnic jokes; (2) she often found pornographic ...