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McArdle v. Arms Acres

March 23, 2009

MARIE MCARDLE, PLAINTIFF,
v.
ARMS ACRES, INC., OMAR GUTIERREZ, M.D., AND FREDERICK HESSE, M.D., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Marie McArdle asserts hostile work environment and retaliation claims against (1) her employer, Arms Acres; (2) co-worker Omar Gutierrez, who Plaintiff claims harassed her; and (3) Frederick Hesse, who was Gutierrez's supervisor, and who Plaintiff claims knowingly permitted Gutierrez's harassment to continue and then retaliated against her for complaining about it. Plaintiff asserts these claims under both Title VII and the New York State Human Rights Law ("NYSHRL"). In addition, Plaintiff asserts state law claims against Arms Acres and Hesse for intentional infliction of emotional distress and negligent hiring and supervision. Arms Acres and Hesse have jointly moved for summary judgment, as has Gutierrez by separate motion. For the reasons stated below, Arms Acres' and Hesse's motion (Docket No. 46) is GRANTED IN PART and DENIED IN PART, and Gutierrez's motion (Docket No. 50) is also GRANTED IN PART and DENIED IN PART.

DISCUSSION

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. 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). 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)).

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 v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). 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 Coll., 196 F.3d 435, 448 (2d Cir. 1999).

As is done routinely in this Circuit, the Court will treat Plaintiff's claims under Title VII and the NYSHRL as analytically identical, applying the same standard of proof to both claims. See 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).

I. FACTS

Defendant Arms Acres operates a drug and alcohol rehabilitation facility in Carmel, New York. (Def. Rule 56.1 Stat. ¶ 1)*fn1 Plaintiff Marie McArdle was employed as a registered nurse at Arms Acres in the Primary Care Unit from September 15, 1998 through at least September 22, 2006. (Id. ¶¶ 10-11) During the time period relevant to this action, Defendant Hesse was the Medical Director at Arms Acres and Defendant Gutierrez was the Director of Psychiatry. (Id. ¶ 3)

Plaintiff's supervisors during the relevant time period were Director of Nursing Barbara Klein and Nursing Supervisor Cynthia Lipton. (Id. ¶ 14) Defendant Hesse was Defendant Gutierrez's supervisor. (Id. ¶ 4) Hesse, like Director of Nursing Klein, reported to Arms Acres' Executive Director, Patrice Wallace Moore. (Baken Ex. H) Neither Hesse nor Gutierrez ever served as Plaintiff's supervisor. (Id. ¶ 18)

A. Arms Acres' Sexual Harassment Policy

As of at least June 1999, Arms Acres had a policy prohibiting sexual harassment and providing a procedure for reporting and investigating complaints of sexual harassment. (See Pltf. Ex. 8; Def. Ex. M at 1; Berkowitz Dep. 52:6-14) The policy defined sexual harassment as including, among other things, "verbal or physical conduct of a sexual nature." (Pltf. Ex. 8 at 1; Def. Ex. M at 1) It listed "sexually-related comments," "[u]ndesired, intentional touching, i.e., embracing, patting, pinching," and "obscene and suggestive remarks that are objectionable or discomforting to the recipient" as examples of unacceptable behavior. (Id.) The policy provided that "[a]ny employee who feels that he or she is a victim of sexual harassment or witnesses such conduct should immediately report such incident" to his or her supervisor, a member of management, the Director of Human Resources, or a designated union representative. (Pltf. Ex. 8 at 2; Def. Ex. M at 2)

The parties dispute the extent to which the sexual harassment policy was made available to employees, or was generally known by employees, prior to Plaintiff's May 1, 2002 complaint.*fn2 Defendants assert, however, that Gutierrez and Hesse had copies of Arms Acres' sexual harassment policy and received training concerning the policy prior to McArdle's complaint. (Def. Rule 56.1 Stat. ¶¶ 72-78) Moreover, there is evidence that an employee training session in 2000 or 2001 included a discussion of the sexual harassment policy. (Berkowitz Dep. 52:15-53:17 (harassment policy was "spoken about" at annual trainings beginning in 2000); Hesse Dep. 51:17-55:8, 133:21-134:8 (recalling a training occurring in 2000 or 2001))

B. The Alleged Harassment

Between 1999 and 2001, Plaintiff and Gutierrez had a friendly and polite relationship limited to passing greetings and the referral of psychiatric patients. (Def. Rule 56.1 Stat. ¶¶ 79-80) In November 2001, however, Plaintiff approached Gutierrez for advice on how to deal with her four-year-old son's temper tantrums. (Id. ¶ 81; McArdle Dep. 174:22-175:2, 180:14-20) As a result, interaction between Plaintiff and Gutierrez increased somewhat in subsequent weeks but remained friendly and polite. McArdle Dep. 183:6-25)

In late January or early February 2002, however, Plaintiff felt that Gutierrez started to become "more risque" in his interactions with her. (Id. 183:2-10, 198:2-5) Gutierrez began regularly complimenting Plaintiff on her appearance and smell, which began to bother her as the comments got "more flirtatious." (Id. 303:12-19; Pltf. Ex. 78 (McArdle Aff.) ¶ 9) On several occasions, Gutierrez commented on "how [Plaintiff's] behind looked" and told her that she "should wear those pants more often." (McArdle Dep. 189:23-25, 208:11-16; see also Def. Rule 56.1 Stat. ¶ 105) Plaintiff "repeatedly told him to stop it," but he did not. (McArdle Dep. 208:14-15) Gutierrez also asked Plaintiff out to lunch "numerous" times, and asked her approximately once per week if she would like to go to the gym with him, but Plaintiff refused. (Id. 184:25-185:3, 681:15-24) On one occasion in late March, Gutierrez called Plaintiff at her home and left a message asking her to lunch. (Pltf. Ex. 78 (McArdle Aff.) ¶ 11)

Gutierrez also began touching Plaintiff. He "would rub [her] arm," even though she told him that was not acceptable. (McArdle Dep. 185:4-6) He also would "squeeze [her] elbow area," "rub . . . [her] back" and "caress[] [her] neck from behind." (Id. 184:22-23, 315:14-17, 437:2-9) This happened more than ten times. (Id. 667:2-668:3)

One day in mid-March or early April 2002, Gutierrez noticed Plaintiff speaking with nurse practitioner Leslie Mugavero in Mugavero's office. (McArdle Dep. 188:21-23; Pltf. Ex. 78 (McArdle Aff.) ¶ 12) Gutierrez asked them how they were doing, and then commented to Plaintiff, "Gee, I love that lipstick, it looks good, I would love to taste it." (McArdle Dep. 188:21-189:2) He then -- in Mugavero's presence -- kissed Plaintiff on the mouth. (Id. 189:2-5; Mugavero Aff. ¶ 14) Plaintiff told him his behavior was "disgusting" and that he should not do it again. (McArdle Dep. 190:17-20) Plaintiff did not report this incident at that time, but she believed that Mugavero had reported it to Hesse. (Id. 190:25-192:9) Mugavero's testimony is that she told Hesse "about the kissing incident" on April 21, 2002, and recommended that he "do something about [Gutierrez]" and "tell [Gutierrez] that he had to cool it." (Mugavero Dep. 124:25-125:22; Mugavero Aff. ¶ 14) Hesse denies that any such conversation took place. (Hesse Dep. 407-11)

In early or mid-April, Gutierrez found Plaintiff in the medication room. He came up behind her to reach for a book, and while doing so, "leaned into" her "buttocks" with his "hips and his pubic region." (McArdle Dep. 90:20-93:5, 96:9-13; Pltf. Ex. 78 (McArdle Aff.) ¶ 14) While doing so he stated, "Marie, you have my favorite slacks on, you look eatable from behind." (Pltf. Ex. 78 (McArdle Aff.) ¶ 14) Plaintiff believed that Gutierrez had an erection and was "shocked," "upset" and "very embarrassed" by his actions. (McArdle Dep. 93:3-25)

On April 20, 2002, Plaintiff attended a party at a co-worker's house. Gutierrez also attended with his wife. (Id. 202:4-203:7) At the party, Gutierrez "followed" Plaintiff "everywhere." (Id. 203:22-23) At one point, as they passed each other in a doorway, Gutierrez "grabbed [Plaintiff's] butt cheek really hard." (Id. 205:15-205:2) Plaintiff told Gutierrez that he was "a disgusting pig" and left the party shortly afterwards. (Id. 206:6-7) Mugavero told Hesse that night that Gutierrez had been following Plaintiff around at the party. (Mugavero Dep. 71:15-21; Umali Aff. ¶ 9)

On the Monday following the party, Plaintiff passed by Gutierrez's office and found him waiting for her. (McArdle Dep. 193:23-24) He told her that she looked great at the party, and that if it was his "last day on earth," he "would love" to "make love to [her]." (Id. 193:23-194:4) Plaintiff responded that she was "sick" and had "had it." (Id. at 194:3-4)

C. Plaintiff's May 1, 2002 Complaint and Arms Acres' Response

Plaintiff spoke to her doctor about Gutierrez's conduct on April 29, 2002, and, on his advice, decided to report Gutierrez's behavior to her union representative and to the human resources department. (Id. 195:6-24, 97:12-25) Plaintiff first approached a representative of the Employee Assistance Program, Art Sioris, sometime between April 29 and May 1, 2002. (Def. Rule 56.1 Stat. ¶ 149) At Sioris's suggestion, Plaintiff approached five of her co-workers on May 1 and asked them to write statements describing any inappropriate conduct by Gutierrez that they had observed. (Pltf. Rule 56.1 Response ¶ 153) After receiving statements from these co-workers, Plaintiff met with her union representative, Carol Croghan, on May 1, 2002, to report what she perceived as Gutierrez's sexual harassment. (Id. ¶ 156)

Later that day, Plaintiff met with Croghan and Director of Human Resources Beverly Berkowitz to formally complain that Gutierrez was sexually harassing her. (Id. ¶ 157) Berkowitz interviewed Plaintiff and took the five co-worker statements and a written statement by Plaintiff. (Id. ¶¶ 162-63) Over the next two days, Berkowitz also interviewed Gutierrez, the five co-workers who provided statements, and Plaintiff's two supervisors. (Id. ¶ 170) Plaintiff had requested that Berkowitz interview three other employees, including Hesse, but Berkowitz declined to do so. (Id. ¶ 170)

Berkowitz concluded that Gutierrez had not violated Arms Acres' sexual harassment policy, but that he had "engaged in behavior that was 'inconsistent' with professional boundaries." (Def. Rule 56.1 Stat. ¶ 208) She recommended that Gutierrez be disciplined, and on May 9, 2002, Hesse issued Gutierrez a written warning. (Id. ¶¶ 212-13) The written warning stated, among other things, that Gutierrez was prohibited from engaging in "any flirtatious/sexual behavior toward employees, including but not limited to . . . uninvited touching . . . [and] sexually related comments." (Id. ¶ 215) It also required Gutierrez "to improve his awareness of professional boundaries by attending a relevant seminar within six months." (Id. ¶ 217) Further, Gutierrez was directed to announce himself before entering the Primary Care Unit where Plaintiff worked, so that she could minimize her contact with him. (Id. ¶ 221) (See also Pltf. Ex. 3)

After May 9, 2002, Plaintiff's supervisor, Lipton, met with Plaintiff on a weekly basis "to monitor her comfort level at work and with Defendant Gutierrez in particular." (Id. ¶ 226) Plaintiff did not report any other complaints about Gutierrez during these meetings, except that during the June 7, 2002 meeting, she stated that Gutierrez "had made eye contact with her with a 'Cheshire cat grin' on his face." (Id. ¶ 229) On August 1, 2002, Berkowitz notified Plaintiff that Gutierrez would no longer be required to announce his presence in the Primary Care Unit, and reminded her that if she felt Gutierrez's behavior was inappropriate, she could report it at any time to Berkowitz, Croghan, or Sioris. (Id. ¶¶ 232-34)

Plaintiff "ha[s]n't had any problems" with Gutierrez since August 2002, and between May 1, 2002 and August 2002, the only "problem" Plaintiff had with Gutierrez is that he would sometimes "stare[] [her] down" or go "by with a smirk." (McArdle Dep. 157:7-25, 158:5-7, 158:16-24) Gutierrez did not speak to Plaintiff again after May 1, 2002. (Id. 327:6-8)

D. The Alleged Retaliation

Plaintiff filed an EEOC charge alleging sexual harassment on approximately June 21, 2002. (Pltf. Ex. 78 at 1, Ex. 79 at 6) Arms Acres responded to the charge in mid-August 2002. (Pltf. Ex. 79) Plaintiff initiated this action on August 1, 2003. Plaintiff claims that Arms Acres retaliated against her for engaging in this protected activity in two ways: (1) Hesse solicited and obtained an allegedly false patient complaint against her; and (2) ...


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