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Dauer v. Verizon Communications Inc.

March 17, 2009


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


Plaintiffs Maryanne Dauer ("Dauer") and Joan Pucino ("Pucino") were employed by Defendant Verizon Communications Inc. ("Verizon") or its predecessor companies as field technicians. Plaintiffs claim that beginning in the mid-1990s, Verizon subjected them to disparate treatment and a hostile work environment because of their sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and the New York State Human Rights Law, New York Executive Law § 296 ("NYSHRL"). In addition, they claim that Verizon retaliated against them in violation of Title VII and the NYSHRL. Verizon has moved for summary judgment on all of Plaintiffs' claims. For the reasons stated below, Verizon's motion for summary judgment against Dauer (Docket No. 27) is GRANTED and Verizon's motion for summary judgment against Pucino (Docket No. 24) is GRANTED.*fn1


A. Summary Judgment Standards

Summary judgment is warranted only 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). In deciding a summary judgment motion, 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. Gen. Elec. 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 Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (internal quotation omitted). 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 Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002); see also Holcomb v. Iona Coll., 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."). Instead, the plaintiff must offer "concrete particulars." Bickerstaff v. Vassar Coll., 196 F.3d 435, 451-52 (2d Cir. 1999) (disregarding plaintiff's Rule 56(e) affidavit because it lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 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 (internal citation omitted) ("We have repeatedly expressed the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer's intent."). 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, 196 F.3d at 448.

As is routine in this Circuit, the Court will treat Plaintiffs' claims under Title VII and the NYSHRL "as analytically identical, applying the same standard of proof to both claims," except with respect to the question of whether any claims are time-barred. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 (2d Cir. 2008) (considering sex discrimination claims); see also Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) (hostile work environment and retaliation claims are subject to the same standards under federal and New York state law).

B. Timeliness of Plaintiffs' Claims

Verizon asserts in passing that a number of Plaintiffs' claims are time-barred. Verizon "bear[s] the burden of proving the affirmative defense of statute of limitations," and can prevail on this ground only if it "provide[s] specific information" that the claim arose outside the relevant time period. Constance v. Pepsi Bottling Co. of NY, No. 03-Civ.-5009(CBA)(MDG), 2007 WL 2460688, at *13 (E.D.N.Y. Aug. 24, 2007) (considering timeliness of NYSHRL discrimination claim); see also D'Antonio v. Metro. Transp. Auth., No. 06-Civ.-4283(KMW), 2008 WL 582354, at *9 (S.D.N.Y. March 4, 2008) ("The statute of limitations is normally an affirmative defense, on which the defendant has the burden of proof." (internal quotation omitted)); Katt v. City of New York, 151 F. Supp. 2d 313, 348 (S.D.N.Y. 2001) (holding in sexual harassment case that it was defendants' burden to prove that "no incidents of . . . harassment occurred during the limitations period").

To recover under Title VII for an alleged act of disparate treatment or retaliation, a plaintiff must file a charge with the EEOC within 300 days after the day the alleged act happened. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see alsoPetrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004). An EEOC charge is deemed filed on the day it is received by the EEOC. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 326-28 (2d Cir. 1999) (considering issue with respect to claim governed by 42 U.S.C. § 2000e-5(c), which applies to Title VII claims). In this case, the EEOC charge was date-stamped by the EEOC on March 30, 2001. (Def. Dauer Ex. 47; Def. Pucino Ex. 14) Therefore, Plaintiffs may recover under Title VII with respect to discrete discriminatory or retaliatory acts that occurred after June 4, 2000.*fn2

To recover for discrete acts of disparate treatment or retaliation under the NYSHRL, a plaintiff must sue within three years of the date of the act. Bonner v. Guccione, 178 F.3d 581, 584 (2d Cir. 1999). However, the statute of limitations is tolled for the period between the filing and denial of a plaintiff's EEOC charge. Siddiqi v. New York City Health & Hosp. Corp., 572 F. Supp. 2d 353, 373 (S.D.N.Y. 2008). Here, Defendant maintains, and Plaintiffs do not dispute, that Plaintiffs' state law claims are timely as to alleged acts that occurred within the three years prior to when Plaintiffs filed their EEOC charge. (Def. Pucino Br. at 8 n.8; Def. Dauer Br. at 8 n.4). Therefore, for purposes of this motion, the Court will consider Plaintiffs' state law claims timely insofar as they relate to discrete discriminatory or retaliatory acts that occurred after March 30, 1998.

For statute of limitations purposes, a hostile work environment claim is treated differently from a disparate treatment claim because it "is composed of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Morgan, 536 U.S. at 117. Thus, "[p]rovided 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." Id.; see alsoPetrosino, 385 F.3d at 220 (same). "In order for the charge to be timely, the employee need only file a charge within . . . 300 days of any act that is part of the hostile work environment." Morgan, 536 U.S. at 118. Therefore, if any of the acts contributing to Plaintiffs' hostile work environment claims occurred within the time periods described above, the Court will consider all acts that are "part of the same actionable hostile work environment practice," regardless of whether they "fall[] within the statutory time period," in deciding Plaintiffs' hostile work environment claims. Id. at 120; see alsoPatterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004).


From 1995 through July 2001, Dauer was a field technician based at Defendant's Pierce's Road garage in Newburgh, New York. (Rule 56.1 Stat. (MD) ¶¶ 2, 4)*fn3 In July 2001, Dauer was transferred to the Installation & Repair Department at Defendant's Union Avenue garage in Newburgh, New York. (Id. ¶ 5)

Dauer claims that Defendant discriminated against her on the basis of her sex by:

(1) failing to provide her with a permanent bucket truck assignment and assigning an older bucket truck to her (Cmplt. ¶ 14; Pltf. Br. at 2-4);

(2) assigning her to perform "two-man" jobs alone and instructing her co-workers not to assist her (Cmplt. ¶¶ 15-17; Pltf. Br. at 5-6);

(3) failing to provide a women-only bathroom and reprimanding her for using offsite bathrooms (Cmplt. ¶ 20; Pltf. Br. at 13-14);

(4) criticizing her work (Cmplt. ¶ 16; Pltf. Br. at 8);

(5) denying her light duty work (Cmplt. ¶ 19; Pltf. Br. at 11); and

(6) denying her pay for time off (Cmplt. ¶ 18; Pltf. Br. at 10).

In addition to asserting disparate treatment claims based on the above conduct, Dauer makes a hostile work environment claim and contends that Verizon unlawfully retaliated against her by "subject[ing] her to . . . hostility, micro management and unjust scrutiny." (Cmplt. ¶¶ 24-26)*fn4

A. Dauer's Disparate Treatment Claims

1. Applicable Standards

The framework for analyzing Title VII cases is well established: [Under] the familiar "burden-shifting" framework set forth for Title VII cases by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), . . . the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate "some legitimate, non-discriminatory reason" for its action. If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer's determination was in fact the result of . . . discrimination. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

Holcomb, 521 F.3d at 138 (citations omitted).

Here, Verizon argues that Dauer's disparate treatment claim should be dismissed solely because she has not established a prima facie case of discrimination. (Def. Br. at 7-8) The plaintiff's burden in establishing a prima facie case "'is not onerous'" -- indeed, it is "de minimis," Beyer, 524 F.3d at 163 -- and is satisfied by "evidence that raises a reasonable inference that the action taken by an employer was based on an impermissible factor." Holcomb, 521 F.3d at 138 (quoting Burdine, 450 U.S. at 253). While a low standard applies to the prima facie case determination, "a plaintiff's case must fail if she cannot carry this preliminary burden." Beyer, 524 F.3d at 163.

To establish a prima facie case, Dauer must show: "(1) that [s]he belonged to a protected class; (2) that [s]he was qualified for the position [s]he held; (3) that [s]he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Holcomb, 521 F.3d at 138. Verizon asserts that Dauer cannot establish the third and fourth elements of this test. (Def. Br. at 8-17)

To show that she suffered an adverse employment action, Dauer must offer evidence from which a jury could find that the complained-of act "'created a materially significant disadvantage' in . . . [her] working conditions." Beyer, 524 F.3d at 164 (quoting Williams v. R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir. 2004)). Where the complained-of action caused "mere inconvenience," it does not constitute an adverse employment action. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) ("[t]o be materially adverse, . . . [the] change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities'"). Moreover, Dauer must "proffer objective indicia of material disadvantage." Beyer, 524 F.3d at 164. She cannot show that she suffered an adverse employment action merely by pointing to her "subjective, personal disappointment[]." Id. (internal quotation omitted).

To establish the fourth element of her prima facie case, Dauer must show that any adverse employment action occurred in circumstances giving rise to an inference of discrimination. A plaintiff may do so by "showing that the employer treated plaintiff 'less favorably than a similarly situated employee outside his protected group.'" Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). To raise an inference of discrimination, Dauer must "'show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.'" Id. (internal quotation omitted). "Ordinarily, the question whether two employees are similarly situated is a question of fact for the jury." Id. However, the plaintiff must at least "provide 'an objectively identifiable basis for comparability' between herself and other employees." Goldman v. Admin. for Children's Serv., No. 04-Civ.-7890(GEL), 2007 WL 1552397, at *7 (S.D.N.Y. May 29, 2007). Conclusory statements that "similarly situated" employees outside the protected class were treated more favorably are not sufficient to defeat summary judgment. See, e.g., id. at **7-8; Chan v. NYU Downtown Hosp., No. 03-Civ.-3003(RMB), 2006 WL 345853, at **5-6 (S.D.N.Y. Feb. 14, 2006) (plaintiff's conclusory statements that Caucasian employees were treated differently were insufficient to make out prima facie case of race discrimination because plaintiff did not "identify any similarly situated individuals outside her protected class who were treated preferentially"); Abato v. New York City Off-Track Betting Corp., No. 03-Civ.-5849(LTS), 2007 WL 1659197, at *6 (S.D.N.Y. June 7, 2007) (conclusory statements that "similarly situated younger women" were treated differently, in the absence of any "specific information" concerning those individuals, were "insufficient to present a genuine issue of material fact").

For the reasons stated below, Dauer has not offered evidence from which a reasonable jury could find that she suffered an adverse employment action in circumstances giving rise to an inference of discrimination, and Verizon is therefore entitled to summary judgment on her disparate treatment claims.

2. The Bucket Truck Claim

Dauer's strongest disparate treatment claim is that Defendant discriminated against her by denying her access to a bucket truck after she was transferred to the Installation & Repair department in July 2001. (Cmplt. ¶ 14; Pltf. Br. at 2-4; Dauer Dep. 96:11-97:3) However, Dauer has not offered sufficient "concrete particulars," Bickerstaff, 196 F.3d at 451-52, for a jury to find that Defendant's alleged conduct with respect to assigning bucket trucks "created a materially significant disadvantage in . . . [her] working conditions," Beyer, 524 F.3d at 164 (internal quotation omitted), and she therefore has not established a prima facie case of discrimination with respect to this claim.

a. Facts

Field technicians are often required to work on equipment located at the top of utility poles. They reach these locations using bucket trucks or 24- to 28-foot ladders. (Rule 56.1 Stat. (MD) ¶ 7; Pucino Aff. ¶ 14) A bucket truck is a large pick-up truck that contains an arm with an enclosed platform. (Pucino Aff. ¶ 13) A hydraulic lift in the truck raises the platform so that the field technician can reach wires. (Id.)

"Because of their desirability, [Verizon] assigned bucket trucks on the basis of seniority." (Pucino Aff. ¶ 17) Some field technicians had permanent bucket truck assignments, while others were assigned vans with ladders. (Rule 56.1 Stat. (MD) ¶ 7) Bucket trucks offer "increased safety and efficiency" over vans and ladders. (Dauer Aff. ¶ 23; see also Pucino Aff. ¶ 16 ("Bucket trucks are more desirable because they are safer, easier to use and able to reach higher.")) A van and ladder are suitable for performing the field technician job "[m]ost of the time," but there are times when "a van [i]s not sufficient" -- for instance, "[w]hen the 28 foot ladder wouldn't reach the job you had to do" or "[w]hen it required something that you weren't able to carry up on a ladder that was too heavy." (Pucino Dep. 106:19-107:7)

Dauer had a permanent bucket truck assignment from late 1996 or early 1997 through July 2001. (Rule 56.1 Stat. (MD) ¶ 8) When Dauer was transferred to the Installation & Repair department at the Union Avenue garage in July 2001, however, she did not have sufficient seniority in the new garage to keep her bucket truck assignment. (Rule 56.1 Stat. (MD) ¶¶ 14, 16) Supervisor Justin Hinspeter "took away [her] truck" and assigned it to a male employee with more seniority. (Dauer Aff. ¶¶ 19-20) Hinspeter told her that this happened because of her "lack of seniority." (Id. ¶ 21) In contrast, a male employee with three weeks' more seniority than Dauer -- who was transferred to the Union Avenue garage at the same time -- was allowed to keep his truck, even though there were male employees in the garage with greater seniority who did not have a truck. (Id.) Some Verizon female technicians did have permanent bucket truck assignments during this time, however. (Rule 56.1 Stat. (MD) ¶ 11)

After her transfer in July 2001, Dauer was assigned a van with a ladder, as were some male technicians at the Union Avenue garage. (Id. ¶ 9) "Because of [her] back injury and the increased safety and efficiency of a bucket truck," however, she "frequently" requested a bucket truck. (Dauer Aff. ¶ 23) About 50% of the time, Dauer's request was granted. (Rule 56.1 Stat. (MD) ¶ 10; Dauer Aff. ¶ 24) Dauer claims that she was sometimes denied a bucket truck when trucks were available, however, and when she and a less senior male employee both requested a truck, it was "often" provided only to the male employee. (Dauer Aff. ¶¶ 24-25)

For example, on November 26, 2001, Dauer requested a bucket truck because of wet conditions. (Id. ¶ 26) She was told that no truck was available, but when she returned to the garage later that morning, she saw several unassigned trucks parked at the garage. (Id. ¶¶ 27, 29) While working that day with her van and ladder, she fell carrying the ladder and re-injured her back, which caused her to lose approximately three weeks of work. (Id. ¶¶ 28-29)

b. Dauer Did Not Suffer an Adverse Employment Action

The key issue with respect to this claim is whether Dauer has offered sufficient concrete evidence for a reasonable jury to find that Defendant's denial of a bucket truck -- approximately 50% of the time Dauer requested one -- a constitutes an adverse employment action.

As an initial matter, the Court rejects Defendant's argument that "truck and van assignments simply do not constitute adverse employment actions."*fn5 (Def. Br. at 9-10) Where a refusal to provide equipment significantly interferes with or precludes job performance, or creates "unreasonably dangerous" conditions, such conduct can constitute an adverse employment action. See, e.g., Edwards v. Metro-North Commuter R.R. Co., No. 04-Civ.-1430(JBA), 2006 WL 2790402, at *5 (D. Conn. Sept. 27, 2006) (holding that employer's failure to provide employee with certain protective equipment could be an adverse employment action because it exposed employee to "potentially unreasonably dangerous working conditions"); Ward-Schumann v. Mediacom Commc'ns Corp., No. 05-Civ.-84, 2006 WL 2460819, at *3 (W.D. Ky. Aug. 24, 2006) (holding that employer's failure to provide plaintiff with a company truck, which prevented plaintiff from performing one aspect of job and required plaintiff to bear increased costs, constituted adverse employment action); Keefer v. Universal Forest Prods., Inc., 73 F. Supp. 2d 1053, 1057 & n.5 (W.D. Mo. 1999) (stating that "[t]he outright failure to provide admittedly required safety equipment would create materially significant disadvantage," but finding that equipment provided to plaintiff was adequate). See also Gawley v. Indiana Univ., 276 F.3d 301, 316 n.9 (7th Cir. 2001) (noting in discrimination/ constructive discharge case that an employee "might have a cognizable claim" if she "could show that the employer delayed the issuance of critical safety equipment on the basis of gender or race," but finding that no such showing had been made); Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 847 (D.C. Cir. 2001) (in deciding whether alleged failure to provide tools was adverse employment action, considering degree of "interference with . . . [plaintiff's] work," and finding no adverse employment action where interference was "minimal").

Conversely, where the equipment at issue is more desirable, but the job can be performed without it, courts have found that the failure to provide the desired equipment does not constitute an adverse employment action. See, e.g., Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (holding that assignment of a Jeep rather than a Ford was not an adverse employment action); Lee v. Healthfirst, Inc., No. 04-Civ.-8787(THK), 2007 WL 634445, at *14 (S.D.N.Y. March 1, 2007) (assignment of older model of car and cell phone was not an adverse employment action); Wells-Williams v. Kingsboro Psychiatric Center, No. 03-Civ.-134(CBA), 2007 WL 1011545, at *3 (E.D.N.Y. March 30, 2007) (assignment of adequate but less desirable kitchen knives to chef was a "mere inconvenience," not an adverse employment action).

Here, while Dauer has testified in a conclusory fashion that her job could be performed more easily and safely with a bucket truck than with a van and ladder, she has not proffered evidence from which a jury could find that she was actually refused a bucket truck in situations where the refusal significantly interfered with her ability to perform her job or made her job unreasonably dangerous.

With respect to safety, Dauer has only offered her conclusory testimony that bucket trucks offer "increased safety" over vans and ladders. (Dauer Aff. ¶ 23) She has also described one instance in which she slipped while carrying a ladder and injured her back. (Id. ¶¶ 26-29) However, no reasonable jury could find based on this testimony that Dauer's job was "unreasonably dangerous" without a bucket truck, particularly given undisputed evidence that both men and women routinely used vans and ladders to perform the field technician job and that there was no requirement that bucket trucks be provided to employees with Dauer's duties.*fn6 (See, e.g., Rule 56.1 Stat. (MD) ¶ 7 (some field technicians had permanent van/ladder assignments); Dauer Aff. ¶¶ 19-21 (in July 2001, there were male field technicians at the Union Avenue garage with more seniority than Dauer who did not have permanent bucket truck assignments); Dauer Dep. 37:10-13) Thus, this is not a case where an employee was denied equipment that was necessary to make a job safe to perform.

Similarly, although Dauer offered proof suggesting that some jobs were more difficult to perform without a bucket truck (see Pucino Dep. 106:19-107:7), she has not offered evidence that she was ever denied access to a bucket truck on an occasion when a truck was available and would have made her job significantly easier. Dauer has admitted that she received a bucket truck approximately 50% of the time when she requested one (Rule 56.1 Stat. (MD) ¶ 10; Dauer Aff. ¶ 24), and there is no factual basis for a jury to infer that when she was denied a truck, that denial made her job impossible or even materially more difficult to perform.

Dauer's conclusory assertions concerning the "increased safety and efficiency" of bucket trucks are inadequate to create a genuine factual dispute as to whether Defendant's refusal to provide bucket trucks was a "materially significant disadvantage in . . . [her] working conditions." Beyer, 524 F.3d at 164 (internal quotation omitted). Dauer simply has not offered enough "concrete particulars" to allow a jury to find that she suffered an adverse employment action when she was denied use of a bucket truck. See Bickerstaff, 196 F.3d at 451-52 (plaintiff must offer "concrete particulars" to defeat summary judgment); Meiri, 759 F.2d at 998 ("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."). Therefore, Defendant is entitled to summary judgment on this claim.*fn7

3. Failure to Provide Assistance

Dauer also claims that her supervisors treated her less favorably than similarly situated male employees with respect to providing assistance. Specifically, she alleges that her supervisors instructed her male co-workers not to assist her; that her supervisors "refused assistance" to her "that was given to similarly-situated males"; and that she was "assigned to perform tasks alone that similarly-situated males performed in pairs." (Cmplt. ¶¶ 15-17) Dauer has not established a prima facie case with respect to this claim, however, because she has not offered any evidence that she was actually denied assistance in a situation where she required it, and therefore no reasonable jury could find that she suffered an adverse employment action.

a. Dauer's Requests for Assistance

Dauer states that between June and September 2000, "when [she] asked for assistance," her supervisor Dave Dodaro "challenged [her] repeatedly and asked [her] to justify [her] request," while "[s]imilarly-situated males who made such a request were granted it without challenge." (Dauer Aff. ¶ 34)

Dauer does not offer evidence that Dodaro actually refused her requests, however. Assuming that Dauer was required to justify her requests for assistance, there is no basis for a jury to find that she suffered anything more than an "inconvenience." Sanders, 361 F.3d at 755. Dauer has not alleged that there was ever a circumstance in which she could not perform her job because of a lack of assistance, nor does she even explain the nature of the assistance she sought or why it was necessary or preferable. In sum, Dauer has not shown that she suffered an adverse employment action arising from her supervisor's alleged demands that she justify her requests for assistance.

Moreover, Dauer has not offered specific evidence going to the fourth element of her prima facie case -- i.e., that the circumstances here could give rise to an inference of discrimination. Her conclusory statement that similarly-situated males were treated differently, standing alone, is insufficient to meet her burden. See Bickerstaff, 196 F.3d at 451-52 (plaintiff must offer "concrete particulars" to defeat summary judgment); Chan, 2006 WL 345853, at **5-6 (conclusory statements that similarly situated individuals outside plaintiff's protected class were treated preferentially insufficient to defeat summary judgment); Abato, 2007 WL 1659197, at *6 (same).

b. Assignments To Work Alone in "Two-Man" Areas

Dauer states that beginning in July 2001, she was "told to go to the job alone and call if [she] needed help" at least once per week in areas that had high crime rates, whereas her male colleagues "did not perform work in these areas unaccompanied." (Dauer Aff. ¶¶ 36-38) When asked to explain this claim at her deposition, Dauer testified that "[t]here may have been one or two occasions on my part where I was asked many questions about why I needed a second person but that complaint [about being asked to perform tasks alone] refers more to [Plaintiff] Joan [Pucino] than to me." (Dauer Dep. 109) Dauer later supplemented this testimony by stating that she was asked to justify a request for a second person more than ten times, but she did not know how many more times. (Dauer Dep. 110) Dauer could only recall one instance where she actually went alone to a location that she felt required backup, and in that case backup was provided after she requested it. (Dauer Dep. 111-15)

As with the assistance claims described above, it is clear from Dauer's testimony that her complaint is that she had to request assistance -- not that she was actually denied assistance. Dauer has likewise not offered any specific evidence supporting her conclusory assertion that similarly situated male colleagues were not required to request assistance or justify requests for assistance. Therefore, for the same reasons stated above (supra p. 17), Dauer has not established the third or fourth elements of her prima facie case with respect to this aspect of her assistance claim.*fn8

4. Bathrooms

Dauer claims that Verizon discriminated against her by failing to provide a women's bathroom. (Pltf. Br. at 13-15) At her deposition, Dauer made clear that her complaint is not the lack of sex segregation per se, but that at times her male co-workers would not lock the door while they were in the restroom, and also failed to respond to her knocks. (Dauer Dep. 188:3-189:3)

In her affidavit, Dauer states that there was only one bathroom at Defendant's Beacon Central Office and that she "suffered . . . indignities" when she "inadvertently walked in on men using the restroom." (Dauer Aff. ¶ 9) Dauer recalls this happening three times between June 2000 and September 2000. (Dauer Dep. 189:4-20; see also id. 177:7-13 (testifying that there were "several occasions" where she entered the bathroom and could tell that someone else was in a stall, and was "rather embarrassed") Because of her dissatisfaction with the bathroom facilities, Dauer began driving to Verizon's Fishkill Central Office, which did have sex-segregated restrooms. Dauer's supervisor also told her that she could "use restrooms in gas stations or restaurants." (Dauer Aff. ¶¶ 10-12) Dauer was nonetheless "fearful of reprimand" and "documented [her] bathroom breaks on [her] timesheet." (Id. ¶ 13)

This evidence cannot support a disparate treatment claim. As explained in this Court's January 26, 2009 Order dismissing Cole's claims, an employer's failure to provide same-sex bathrooms is not an adverse employment action. January 26, 2009 Order at 6 n.3.*fn9 While Dauer's claim differs from Cole's in that she has offered some evidence that she inadvertently walked in on men approximately three times, this difference is not enough to salvage Dauer's claim. Dauer has offered no case law or evidence to support an argument that these few instances of potential embarrassment had a material impact on her working conditions. She also has not offered any evidence that the alleged failure of her male co-workers to respond to her knocking on the door was foreseeable, and there is thus no factual basis for a jury to infer discriminatory intent.

Moreover, Dauer was allowed to use bathrooms in other locations if she preferred. (Dauer Aff. ΒΆ 12) Her alleged and apparently unfounded fear of reprimand for doing so cannot support a Title VII discrimination claim. See Uddin v. City of New York, 427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006) (holding that even actual reprimands do not constitute adverse employment actions in the absence of other negative consequences). Dauer has not presented evidence from which a jury could find that the bathroom facilities caused her anything more than inconvenience or that the circumstances ...

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