The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief District Judge
MEMORANDUM-DECISION AND ORDER
This is an employment discrimination action brought pro se by Janice E. Burke, an African-American woman who worked as a machine operator at defendant New Venture Gear, Inc. ("NVG"), and its successor, Magna Powertrain of America, Inc. ("Magna"), from September 27, 1997, to May 13, 2005.*fn1 Magna purchased the NVG facility on September 30, 2004; it is not, however, a party to this lawsuit. Plaintiff claims that while employed at NVG, she was subjected to sexual harassment by her supervisor, Jesse Hall,*fn2 and that after she filed a harassment charge against him, the sexual harassment stopped but she was subjected to retaliatory disciplinary actions. She further claims she was not afforded adequate representation by defendants Scott Stanton, President of United Automobile, Aerospace and Agricultural Implement Workers of America Local 624 ("Local 624"), and Stephen Yokich, President of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("International Union") (collectively, "union defendants"). The amended complaint (Dkt. No. 19) states it is based on 42 U.S.C. § 1981 ("section 1981"), 42 U.S.C. § 1983 ("section 1983"), 42 U.S.C. § 2000e, et seq. ("Title VII"), and Labor Management Relations Act, 29 U.S.C. § 141, et seq.
There are presently three summary judgment motions pending. NVG (Dkt. No. 61) and the union defendants (Dkt. No. 63) move for summary judgment dismissing the amended complaint. Plaintiff cross-moves (Dkt. No. 65) for summary judgment.
Summary judgment is appropriate "where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law."
Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield of N.J., Inc., 448 F.3d 573, 579 (2d Cir. 2006) (internal quotation marks omitted). A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
For the reasons set forth below, the Court denies NVG's motion with respect to plaintiff's Title VII sexual harassment and retaliation claims, and grants it with respect to her sections 1981 and 1983 claims. The Court grants the union defendants' motion in its entirety. Plaintiff's motion for summary judgment is denied.
PLAINTIFF'S CLAIMS AGAINST NVG
The following facts, supported by the record, are undisputed unless otherwise noted. Plaintiff began working at NVG as a machine operator on September 27, 1997. At all pertinent times she was a member of Local 624. Beginning in 2002, plaintiff worked the second shift in Department 290. Jesse Hall, an African-American man, became plaintiff's supervisor in Department 290 in or about January 2003. Hall's area manager was Barbara Stone.
On October 6, 2003, plaintiff submitted a grievance to Local 624 against Hall as her supervisor. She complained that he would allow other co-workers to change out of their work clothes prior to the end-of-shift meeting, but would not permit her to do so; that he would tell her to change jobs during the workday at times that caused her to forfeit her breaks; that he persisted in assigning her jobs that aggravated a previous injury to her hand and wrist; and that he unfairly scheduled her to work weekends.
Hall disciplined plaintiff on October 23, 2003 for leaving a meeting early, resulting in a five-day disciplinary layoff ("DLO"). At Stone's direction, Hall issued a Department Managers Report against plaintiff for insubordination on November 13, 2003.
On November 17, 2003, plaintiff filed with the New York State Division of Human Rights ("SDHR") a charge of sexual harassment against Hall.*fn3 This charge, dated November 14, 2003, alleges as follows:
During the summer of 2003, my department supervisor, Jesse Hall began assigning me to jobs with repetitive motion which was adversely affecting both of my hands which were hurt in prior job-related injuries. I eventually filed a grievance with my union and since that time, I have been exposed to acts of sexual harassment perpetrated by others in my department and Mr. Hall because of my grievance. Acts of sexual harassment have included placing of Play Girl Magazine at my work site and disparaging comments about my physical characteristics as I embarked on body-building in 2002. Mr. Hall has forbidden me to change into my street clothes prior to department meetings held at the end of second shift. In addition, Mr. Hall purposefully makes the meeting last longer which results in my having to change after the meeting and walk unescorted through the parking lot late at night. Other co-workers are still permitted to change their clothing prior to the start of the department meetings.
Based on the foregoing, I can only conclude that my working conditions have deteriorated because I have complained about sexual harassment in my department. On November 13, 2003, I was suspended for five working days and one paid holiday by Mr. Hall and his supervisor, Barbara Stone because they alleged that I was told not to run a part which I did run. I was never given such an order and this was the latest manifestation of retaliatory treatment of me.
(Paragraph numbering omitted.) Plaintiff testified at her deposition that Hall stopped sexually harassing her after she filed the SDHR charge.
Plaintiff's subsequent disciplinary history is as follows. Hall issued a 10-day DLO to plaintiff on February 9, 2004, for reporting late to her work station. He issued a 15-day DLO to plaintiff on May 27, 2004, for failure to follow the reasonable instructions of a supervisor. And on August 14, 2004, NVG's Labor Relations Representative Andrew Quinn issued a 30-day DLO to plaintiff for insubordination, failure to follow reasonable instructions, abusive language, and exiting the plant without safety equipment. Plaintiff asserts these disciplinary actions were not justified but were taken as retaliation for her filing the SDHR charge. Plaintiff's employment by NVG ended on September 30, 2004, when Magna purchased NVG's facility.
Sexual Harassment -- Applicable Law
Under Title VII, it is unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). To show that she was subjected to sex discrimination by virtue of a hostile work environment, plaintiff must prove: (1) the existence of workplace harassment directed towards her because of her sex; (2) that the harassment was objectively severe or pervasive, i.e., that it created an environment that a reasonable person would find hostile or abusive, and (3) that plaintiff subjectively perceived the work environment to be hostile or abusive." See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Not all workplace harassment is prohibited; rather, the law prohibits only conduct involving statutorily proscribed forms of discrimination. See Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Thus, courts "consider the extent to which the conduct occurred because of plaintiff's [membership in a protected class]." Demoret v. Zegarelli, 451 F.3d 140, 149-50 (2d Cir. 2006).
To analyze a hostile work environment claim, courts "look to the record as a whole and assess the totality of the circumstances, considering a variety of factors including '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.'" Id. at 149 (quoting Harris v. Forklift Systems, 510 U.S. 17, 23 (1993)). For discriminatory comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents or episodic conduct. See Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999). Rather, plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Because a hostile work environment claim focuses on the nature of the workplace environment as a whole, evidence of discriminatory harassment and hostility beyond that which is directed specifically at plaintiff may be relevant to the analysis. See id.
Sexual Harassment -- Discussion
NVG contends that it is entitled to summary judgment as a matter of law dismissing plaintiff's sexual harassment hostile work environment claim on two grounds. The first is that Hall's conduct was directed towards her because she was a difficult employee, not because of her sex. The second is that the alleged harassment was not objectively severe or pervasive, i.e., that it did not create an environment that a reasonable person would find hostile or abusive.
NVG submits affidavits and reply affidavits from various officers and employees of NVG. The affidavit of Andrew J. Quinn, Human Resources Coordinator and Labor Relations Representative for NVG during the times in question, states that NVG maintains a "zero tolerance" policy prohibiting discrimination or harassment in the workplace, and discipline at NVG is administered equally to minority and non-minority employees based on the severity of the situation and the individual facts of each case. Quinn states that plaintiff did not complain to anyone in NVG's human resources department about sexual harassment by Hall or anyone else prior to filing the SDHR charge on November 14, 2003. NVG also submits the affidavit of Barbara Stone, an area manager at NVG at the pertinent times; her area included Department 290. Stone's affidavit supports Hall's disciplinary actions against plaintiff. Both Quinn and Stone indicate that plaintiff was a difficult employee, that she had been disciplined by other supervisors, that she was regularly late for work, that she did not follow instructions, and that she otherwise failed to comply with NVG's rules.
Plaintiff states that sometime in 2002, she voluntarily transferred into Department 290. In around January 2003, Hall became her supervisor. Plaintiff alleges that when she was first introduced to Hall, he requested a hug from her; she responded with a handshake. She states in her Memorandum of Law (which bears her notarized signature) that her "initial difficulties" with Hall began in 2003; that he made it a point to come to her job station and talk with her; that gradually the conversations began to make her uncomfortable; and that comments about her manner of dressing "became his daily introduction to generating conversation." She says: "I had made it clear that I found his comments distasteful but he continued. It seemed the harsher I became at telling him to leave me alone, the more aggressive he became in conversation and 'accidental contact' with my body."
In the same vein, plaintiff testified in her deposition that Hall would turn general conversations to topics such as plaintiff's son's girlfriends and "intimate behaviors" of relationships between men and women. Regarding how many conversations she had with Hall that she considered sexually harassing, plaintiff referred to "several conversations" and testified:
The thing about it is it was difficult to say because Mr. Hall and I had numerous conversations and ... he may make a comment and that was not sexual harassment, but I -- but it was -- his notorious way of leading to conversation that was inappropriate, and what I would do, if I had a sense that he was going in that direction, I would remove myself from the conversation. Plaintiff also stated in her deposition that on one occasion Hall referred to her as "Miss Temptation" and on another occasion as "a piece of ass" when speaking to third parties in her presence. She also testified that after she had "embarked on a body building career" in 2002 he made comments to her such as: "[Y]our butt looks really nice since you've been working out." Plaintiff also testified to one conversation in which Hall asked how she behaved "behind closed doors"; he speculated that she might be "wild" or a "freak" and referred to himself as a "lion- tamer." Plaintiff further testified that once someone left a Playgirl magazine at her work station; she did not, however, know who had done it, and had no reason to believe Hall was responsible.
During an unspecified time period, she testified, her job entailed working "on a cement floor where when somebody walked up on the floor -- I mean, walked up to your job, you wouldn't know it." Hall would walk up to ...