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Dauer v. Verizon Communications Inc.

January 26, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Debora Cole ("Cole") was employed by Defendant Verizon Communications Inc. ("Verizon") or its predecessor companies as a Central Office technician. She alleges that beginning in approximately 1994, Verizon subjected her to disparate treatment and a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (hereafter, "Title VII"), and the New York State Human Rights Law, New York Executive Law § 296 (hereafter, "NYSHRL"). (Cmplt. ¶¶ 12-13, 31-33)

Although the Complaint asserts a variety of discrimination claims on behalf of the three plaintiffs, Cole has since conceded that her only claim is that Verizon discriminated against her on the basis of her sex by failing to provide her with "adequate, sex-segregated toilet facilities." (Def. Rule 56.1 Statement ¶ 8)*fn1 Since approximately 1997, Cole has spent the majority of her work time in Verizon's Beacon, New York Central Office; for five days every six to eight weeks, she "roves" to other offices. (Id. ¶ 7) Cole complains that the bathroom at the Beacon Central Office was "sometimes occupied when she wanted to use it," and that it and another bathroom in a building behind the Central Office are "not as clean as she would like [them] to be." (Id. ¶¶ 12, 14) Cole also complains that although Defendant has at times arranged for two women-only bathrooms in buildings near the Central Office, she lost regular access to one such bathroom in 2000 when it became part of the foreman's office, and the other became unisex in July 2003. (Id. ¶¶ 15-16) Cole's complaint about the bathrooms available to her when she "roves" is that they were sometimes occupied when she wanted to use them. (Id. ¶ 10) Cole also complains that a bathroom at Defendant's Newburg West facility "is not as clean as she would like it to be." (Id. ¶ 13)

Verizon has moved for summary judgment with respect to Cole's claim.*fn2

For the reasons stated below, Verizon's motion for summary judgment against Cole (Docket No. 30) is GRANTED.


Summary judgment is warranted if the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor," Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008), and the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir.2001).

"It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," and that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). As in any other case, "an employment discrimination plaintiff faced with a properly supported summary judgment motion must 'do more than simply show that there is some metaphysical doubt as to the material facts.' . . . She must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat summary judgment. Gross v. Nat'l Broadcasting Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002); see also Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) ("Even in the discrimination context . . . a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."); Meiri v. Dacon, 759 F.3d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").

The Court is mindful that "direct evidence of . . . [discriminatory] intent will only rarely be available, . . . [so] 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'"

Holcomb, 521 F.3d at 137. However, the Court must also "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999).

As is done routinely in this Circuit, the Court will treat Cole's claims under Title VII and the NYSHRL "as analytically identical, applying the same standard of proof to both claims." See Salamon v. Our Lady of Victory Hospital, 514 F.3d 217, 226 n.9 (2d Cir. 2008) (considering sex discrimination claims); Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) (applying same standards to hostile work environment claims under federal and New York state law).

A. The Nature of Cole's Claim

As a preliminary matter, the Court must determine whether Cole brings her claim under a disparate treatment theory or hostile work environment theory, or both. Plaintiffs filed a single joint memorandum of law opposing Verizon's three summary judgment motions, and in their brief Plaintiffs repeatedly blur their disparate treatment and hostile work environment claims. Compare Pltf. Br. at 19-26 (in argument section, discussing "disparate treatment" claims of Dauer and Pucino, but not Cole) and id. at 26-31 (discussing bathroom claims in context of hostile work environment theory), with id. at 2, 12-13 (describing facts relating to Cole's bathroom claim in section titled "Disparate Treatment").

Disparate treatment and hostile work environment claims, however, are separate theories of unlawful discrimination. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-115 (2002) (explaining different types of "unlawful employment practices" prohibited by Title VII); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (noting that plaintiff had "pleaded both discrimination theories available under Title VII: disparate treatment . . . and hostile work environment"). Disparate treatment claims based on discrete acts such as a pay cut or termination of employment are treated differently from hostile work ...

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