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Burns v. County of Schenectady


August 18, 2008


The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge


Plaintiff Suzanne M. Burns filed this lawsuit against her employer, the County of Schenectady ("County"), and two County employees, Donald R. Mennillo and Kathleen Flanagan Heap, claiming, among other things, gender discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-2, and New York Human Rights Law § 290 et seq. Defendants have filed a motion for summary judgment. Following review of defendants' motion, brief in support thereof, Burns' response, and the record on the matter, the court denies, in part, and grants, in part, defendants' motion.


The following relevant facts are undisputed. Burns is a female who at all times relevant was employed by the County as a Computer Aide. (See Complaint at ¶ 12, Dkt. No. 1.) Donald Mennillo was also employed by the County as a Deputy Director of the Department of Information Services. (Id. at ¶ 13.) Kathleen Flanagan Heap was employed as the County's Personnel Administrator. (Id. at ¶ 14) Burns claims that during the period of September 2001 to May 2004, she was sexually harassed by Mennillo. Among the acts Burns claims Mennillo commited are: stroking her hair, rubbing up against her, leering at her body, blowing kisses at her and waiting for her outside the ladies' restroom. (Id. at ¶ 16.) As a result of this harassment, Burns took several leaves of absence from work due to the stress created by Mennillo's actions. (Id. at ¶¶ 19-20.) Burns filed an internal complaint with the County and, at the conclusion of an investigation by the County, Mennillo was cleared of the charges. (Id. at ¶¶ 20 and 27.) Burns testified that during the hearing before the Committee that was investigating her allegations, she learned that her employment status with the County was modified from "permanent" to "temporary." (See Burns' Deposition at pp. 55-64, Dkt. No. 38; EX. D-1.)

Burns filed two complaints with the Equal Opportunity Employment Commission ("EEOC"). One complaint was filed on December 10, 2004, claiming sexual harassment and the other complaint was filed on June 8, 2005, claiming retaliation. (See Complaint at ¶ 5, Dkt. No. 1.) The record indicates the EEOC issued a Notice of Right to Sue on May 14, 2007. (See Exhibit List to Burn's Affidavit, Dkt. No. 42-3.) On July 31, 2007, Burns filed this action against defendants claiming, among other things, gender-based discrimination that created a hostile work environment and retaliation. Defendants have moved for summary judgment.


I. Standard

To defeat a summary judgment motion, the nonmoving party must show sufficient evidence to create a genuine issue of material fact. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the party must present sufficient evidence to permit a reasonable juror to find in its favor, but the nonmoving party cannot simply rely on unsupported allegations in attempting to survive a summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

II. Hostile Work Environment Claims Against the County

"A hostile work environment claim requires a showing [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks and citations omitted). "The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered," Id., and that the harassment occurred because of her race, age, or sex. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (stating that sexual harassment is actionable under Title VII).

"This test has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Alfano, 294 F.3d at 374 (internal quotation marks omitted). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.... Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. (internal quotation marks and citations omitted). Nevertheless, "it is well settled in this Circuit that even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." Id. "In short, a plaintiff alleging a hostile work environment 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 work environment." Id. (internal quotations marks omitted).

In addition, as stated above, the plaintiff must show that a specific basis exists for imputing the objectionable conduct to the employer.

"Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action." Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004). This inquiry differs where the harassment is attributed to a supervisor. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In such case, the "court looks first to whether the supervisor's behavior culminated in a tangible employment action against the employee." Petrosino, 385 F.3d at 225 (quoting Burlington Indus., 524 U.S. at 765) (alterations omitted). If no such tangible employment action is present, however, an employer will still be liable for a hostile work environment created by a supervisor unless the employer successfully establishes an affirmative defense. Id. That defense requires the employer to show that (a) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (b) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

Burlington Indus., 524 U.S. at 765.

Here, the court determines that defendants' motion with respect to the hostile work environment claim must be denied. The record reflects that Burns complained of continuous conduct which, if true, a jury could find severe or pervasive which altered the conditions of Burns' employment and created an abusive work environment. Specifically, the record indicates that Burns complained that Mennillo put his hands on Burns' shoulders, leered at Burns' body, rubbed his hand up against her thigh, and followed her to the women's restroom.

In an effort to obtain summary judgment in favor of the County, defendants contend the Title VII claim against the County is untimely. The court disagrees. To claim a violation of Title VII, a complaint must be filed with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000E-5(e); Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000). The 300-day period effectively acts as a statute of limitations. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). To the extent the claim is based on Mennillo's conduct of putting his hands on Burns' shoulders, leering at Burns' body, rubbing his hand up against her thigh, and following her to the women's restroom, the record indicates those acts occurred within the filing period. (See Defendants' Ex. E; County of Schenectady Discrimination Complaint, Dkt. No. 38.) The record indicates that Burns complained of that conduct by Mennillo on April 1, 2004, and her charge with the EEOC was filed on December 10, 2004. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 (2d Cir. 1999) (filing deadline of 180 days is extended to 300 days where the alleged discrimination occurs in a state with it own anti-discrimination laws and enforcement agency, regardless of whether the charge is initially filed with the state). Furthermore, the Supreme Court has indicated that:

A hostile work environment claim is composed of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).

Defendants also assert that they had a policy in place to prevent harassment situations like the one at hand, thus, plaintiff's claim fails.*fn1

Putting aside the fact that there are genuine questions of fact as to whether Menillo was Burns' supervisor or simply a co-worker, the court determines that a rational fact-finder could conclude that the defendant County's policy of investigating such situations was not sufficient or simply unreasonable in this case. The court particularly finds troubling the testimony from Lagasee, chairman of the committee, who stated that Burns' claim lacked merit because it was not probable that she or any other female could be sexually harassed during regular working hours. Lagasse's testimony on this issue was as follows:

It would seem to me that someone who's looking for sexual gratification wants privacy for something like this. If they were working alone, late at night or if they were alone in an office. It's conceivable something like that could happen... But when you read about other incidents, and it's in the paper all the time, that's how people do it. They don't do it out in the open. They do it in the parks, at night behind buildings and so on.

(See Lagasse Deposition at 96, Dkt. No. 38, Ex. F.) Furthermore, as the Seventh Circuit has indicated: "[t]he mere existence of such a policy [] does not necessarily establish that the employer acted reasonably in remedying the harassment..." Cerros v. Steel Technologies, Inc., 398 F.3d 944, 953 (7th Cir. 2005) (citing Shaw v. AutoZone, Inc., 180 F.3d 806, 812 (7th Cir. 1999) and Spriggs v. Diamond Auto Glass, 242 F.3d 179, 188 (4th Cir. 2001). Defendants further contend that Burns never feared to lose her job. However, Burns' "circumstances are egregious enough to permit a reasonable juror to conclude that the conditions of [her] employment were altered because [of] the hostile work environment she faced undermined her ability to perform her job." Fairbrother v. Morrison, 412 F.3d 39, 51 (2d Cir. 2005) (citations omitted), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199 (2d Cir. 2006).

Burns' claims under the New York Human Rights Law against the County defendant is analyzed under the same legal standard as similar claims brought pursuant Title VII. Quinn, 159 F.3d at 765. Thus, the hostile environment claim against defendants under state law also survives.

Defendants contend that Burns' state claim is barred by the statute of limitations. The court disagrees. The instant complaint was filed July 31, 2007. Thus, any state law claims under the New York Human Rights Law stemming from acts that occurred prior to July 31, 2004 are time-barred unless the statute of limitations was tolled by law. Quinn, 159 F.3d at 765. Numerous district courts in the Second Circuit have held that the three-year statute of limitations that is applicable to claims under the New York State Human Rights Law "is tolled during the period in which a complaint is filed... with the EEOC." Esposito v. Deutsche Bank AG, 2008 WL 5233590, at *5 (S.D.N.Y. 2008) (citations omitted). Thus, the court determines that the statute of limitations was tolled during the time the complaint was pending with the EEOC.*fn2 See Sundaram v. Brookhaven Nat. Laboratories, 424 F.Supp.2d 545, 565 (E.D.N.Y. 2006). Here, Burns' complaints of Mennillo putting his hands on Burns' shoulders, leering at her body, rubbing his hand up against her thigh, and following her to the women's restroom are within the filing period.

III. Retaliation Claims Against the County

To establish a prima facie case of retaliation, a plaintiff must show (1) "[she] engaged in protected" conduct, (2) "the employer was aware of this activity," (3) "the employer took adverse action against the plaintiff," and (4) "a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Kessler, 461 F.3d at 205-06. Retaliation claims under Title VII and the New York State Human Rights Law are analyzed under the same standard. Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006).

As indicated above, "Title VII requires that a plaintiff file a charge of discrimination with the EEOC before bringing suit in federal court." Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 473 (S.D.N.Y. 2009) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). "In New York, a "dual filing" state, a plaintiff has 300 days from the time the allegedly discriminatory act occurred to file a Title VII charge with the EEOC or the New York State Division of Human Rights." Id. "A claim is barred if it is not filed within these time limits." Id.

Here, Burns claims she had always been a permanent employee, but, since she filed the complaint with the EEOC, her employment status was changed to temporary. Burns filed her EEOC charge of retaliation on June 8, 2005. Any timely retaliation claim must have occurred within 300 days prior to that date, i.e., as of August 12, 2004. The record is devoid of any specific new additional facts which would have apprised Burns that she had been retaliated against within that 300-day period. The record shows that Burns testified that on July 22, 2004 she became aware that her employment status was temporary as opposed to permanent, but she made no mention of any retaliation when she filed her hostile work environment complaint on December 10, 2004. Thus, Burn's Title VII retaliation claim is untimely.

However, Burns' retaliation claim against the county under the New York Human Rights Law is not barred. As mentioned above, the statute of limitations*fn3 is tolled during the time the complaint was pending with the EEOC.*fn4 Contrary to defendants' assertion, Burn's retaliation claim under state law is timely. See Sundaram, 424 F.Supp.2d at 565.

IV. State Claims Against the Individual Defendants

This court declines to exercise supplemental jurisdiction with respect to Burns' state law claims against the individual defendants. A decision of whether or not a court should exercise its supplemental jurisdiction involves considerations of factors such as judicial economy, convenience, and fairness to litigants. Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). Another factor to consider is "the likelihood of jury confusion in treating divergent claims for relief, that would justify separating state and federal claims for trial." Ponticelli v. Zurich American Ins. Group, 16 F.Supp.2d 414, 439 (S.D.N.Y. 1998).

Here, the court agrees with the view of other district courts in this Circuit that recognize the split among the New York courts on the issue of individual liability under the New York Human Rights Law*fn5 and have declined to exercise supplemental jurisdiction on the issue. See Ponticelli, 16 F.Supp.2d at 439; Hockeson v. N.Y. State Office of Gen. Serv., 188 F.Supp.2d 215, 222-23 (N.D.N.Y. 2002); Donlon v. Board of Educ. of Greece Cent. School Dist., 2007 WL 4553932, at *6 (W.D.N.Y. 2007); and Kaiser v. Highland Central School Dist., 2008 WL 5157450 (N.D.N.Y. 2008). Accordingly, the court dismisses Burns' claims against the individual defendants without prejudice and they may be renewed in the appropriate state court venue.


WHEREFORE,forthe foregoing reasons, it is hereby

ORDERED that defendants' motion for summary judgment is DENIED as to Burns' hostile work environment claims against the County and is GRANTED, in part, and DENIED, in part, as to Burns' retaliation claims against the County; and the court DISMISSES WITHOUT PREJUDICE the state law claims against the individual defendants Mennillo and Heap;and it is further

ORDERED that the Clerk provide copies of this Decision and Order to the parties.


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