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Vito v. Bausch & Lomb

February 27, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge 25



This is an action alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and 42 U.S.C. § 1981 ("Section 1981"). Now before the Court is Defendant's motion for summary judgment. (Docket No. [#16]). For the reasons that follow, Defendant's application is granted and this action is dismissed.


Unless otherwise noted, the following are the undisputed facts of the case, viewed in the light most-favorable to Plaintiff. Plaintiff is a female of Filipino ancestry. Plaintiff was born in the Philippines and moved to the United States in 1997. Defendant is a manufacturer of contact lenses and eye-care products.

In January 2005, Plaintiff began working in Defendant's Pure Vision department, inspecting contact lenses and packaging, and earning approximately twelve dollars per hour. The work was unskilled and repetitive, and involved operating a machine. Plaintiff was assigned to the D Shift, which worked from 6 PM to 6 AM. Plaintiff remained on D Shift for approximately ten months, between January 2005 and October or November 2005. Plaintiff's supervisor on D Shift was Rich Goodburlet ("Goodburlet"). D Shift employees were of various nationalities and races, but Plaintiff was the only Filipino. Plaintiff's co-workers included a female, Deb Rock ("Rock"), and a male, Mehmet Chaglayan, who was called M1 ("M1"). Rock worked at a machine approximately four feet away from Plaintiff's machine, and M1 also worked nearby. (Pl. Aff. at ¶ 18). When Plaintiff began working on D Shift, M1 was employed as a temporary employee.

In April 2005, Plaintiff was sitting at her workstation when Goodburlet approached her from behind and "pressed his body" against Plaintiff. According to Plaintiff, at the time, Goodburlet was "looking on control borate machine" [sic], referring to the machine at which Plaintiff was working. (Plaintiff's Appendix of Exhibits, Vol. II, Exhibit T, entry dated March 15, 2005). In other words, Goodburlet's body touched Plaintiff's body as he was looking at Plaintiff's machine. Plaintiff's work area was cramped, since it was designed for one person. Plaintiff described the incident as follows:

I was inspecting in my station. It's just a small chair. And there is a table here where the tray comes. I just noticed I was pushed on my station like that (indicating), the body behind my back. And I tried to move this side (indicating), but I cannot move, because there's a table here (indicating).

We just have a limited space. Then when I moved like that, his body's touching all of this [indicating her side and back].*fn1 And I look at him in a bad look, and he's just smiling and ignores. So, I tried to move to this side (indicating). I don't know what happened. I don't know how long I had been in that position. I don't know when he leave. When left. I don't know. I just press in that position. (Plaintiff's Deposition at 58). On two other occasions, Goodburlet touched Plaintiff's shoulder and "smiled sarcastically." (See, Plaintiff's Appendix of Exhibits, Vol. II, Exhibit E at 7; Exhibit T, entries dated March 23, 2005 and April 3, 2006) (Referring to Goodburlet "twice touching my arms [on] different day[s]."). On another occasion, Plaintiff became startled when Goodburlet rang a bicycle bell in a hallway, apparently in an attempt to tease Plaintiff. Another time, Plaintiff commented that a pair of safety glasses did not fit her face, to which Goodburlet responded, "Do something about your face!". (Pl. Appendix of Exhibits, Vol. II, Exhibit T, entry dated August 18, 2005) ("I tell Rich 'this safety glass doesn't fit because I have a round face and high cheek bone. Rich tell me, 'Do something about your face!'").

On another occasion, Goodburlet, Rock, and several other co-workers were standing in a group, and asked Plaintiff, who speaks with a thick accent, to come over and read a statement aloud from a piece of paper. Plaintiff read the statement aloud, but did not understand it. Plaintiff now maintains that the document contained the word "fucking." (Pl. Aff. at ¶ 52). However, Plaintiff made contemporaneous notes concerning this incident which do not mention the word "fucking." Specifically, Plaintiff's contemporaneous notes state:

The paper pushes in front of me. Emine ask me to read. I ask them why?

Rich [Goodburlet] is giggling and he tells me to read what is written on the paper. I'm reading what is written on the paper, 'So Fa..." I can not remember the whole sentence because it is not understandable. After reading the whole sentence, Rich Goodburlet running around laughing so hard. I'm standing and wondering why and what is going on? (Pl. Appendix of Exhibits, Vol. II, Exhibit T, entry dated August 22, 2005). In any event, Plaintiff maintains that Goodburlet and the others began laughing, and when Plaintiff asked why they were laughing, two co-workers, "Amon" and "Asha," told her, "You are so crazy." (Id.). According to Plaintiff's notes, Goodburlet also asked a male employee named Paul to read the same document. (Id.) ("Few minutes before end of shift. I talk to Paul; he is telling me that Rich is asking him to read the paper too.").

On another occasion, Rock told Plaintiff that she had a sexual relationship with Goodburlet, and that M1 was aware of the relationship. Subsequently, M1 told Plaintiff that Rock, who was absent from the office that day, had telephoned and was "having sex."

At another time, M1 showed Plaintiff a piece of paper with the number "69" written on it, and asked Plaintiff if she understood the sexual meaning of the number. On another occasion, M1 threw a roll of tape at Plaintiff, hitting her on the head. When Plaintiff asked M1 if he had thrown the tape, M1 began "giggling." On another occasion, M1 commented to Plaintiff that a female employee named Karen wanted to have sex with him. (Plaintiff's September 22,2 008 Dep. at 97; see also, Pl. Appendix of Exhibits, Vol. II, Exhibit T, entry dated October 17, 2005: "I hear M1 saying 'Rose, Karen wants to have sex with me.' I turn around and saw Karen standing at my work station. Karen response 'Rose, don't listen to him.' M1 laugh so loud."). Plaintiff responded by asking M1 if he "was drunk," to which he laughed. Subsequently, M1 grabbed a piece of "mold tubing" and, directing his gesture at Rock, began licking it and saying "something about vibration." (Plaintiff's Affidavit at ¶ 74). On another day, M1 commented to a group of employees that included Plaintiff that he had sex with a female co-worker named Melanie. (Pl. Aff. at ¶ 95; see also, Pl. Appendix of Exhibits, Vol. I, Ex. A at 145).

Plaintiff also maintains that unidentified co-workers "picked on" her, "mimicked" her, and were "rude." (Pl. Counterstatement of Facts, ¶ ¶ 99-100).

Plaintiff complained to her Team Leader, "Liz," about Goodburlet, Rock, and M1. Subsequently, Liz met with Plaintiff and Goodburlet. Plaintiff complained about Goodburlet ringing the bicycle bell, and about M1 showing her the paper with the number 69 written on it. (Plaintiff's Aff. at ¶ 80). According to Plaintiff, Goodburlet responded by "laughing and giving [her] looks." (Id. at ¶ 81). Apparently, Liz took no action in response to Plaintiff's complaint.

In or about August 2005, Plaintiff complained to James Faville ("Faville"), Defendant's Manager of Human Resources. Subsequently, Faville, along with Goodburlet's supervisor, Bob Lazarevski ("Lazarevski"), met with Plaintiff. Plaintiff stated that several months earlier, Goodburlet, Rock, and M1 had involved her in a joke of a sexual nature. She further stated that Goodburlet was harassing her. According to Faville, Plaintiff told him that Goodburlet had touched her one day while trying to get by her, and had startled her by ringing a bicycle bell. Plaintiff also told Faville that Goodburlet stared at her and was unfriendly. (Faville Aff. ¶ ¶ 9-10). Subsequently, Lazarevski met with Rock and M1, and told them that Plaintiff was offended by their jokes, and to stop such behavior. Faville and Lazarevski also met with Goodburlet, and explained Plaintiff's complaints. Goodburlet stated that he recalled the bicycle bell incident, but did not recall touching Plaintiff. Faville and Lazarevski concluded that Goodburlet was not harassing Plaintiff, and they told her so. Faville and Lazarevski also told Plaintiff that they had warned Rock and M1 to discontinue any sexual jokes.

Plaintiff was not satisfied, and requested a meeting between herself, Faville, Lazarevski, and Goodburlet. At the meeting, Plaintiff repeated her earlier complaints, and stated that Goodburlet was not a good supervisor. After excusing Goodburlet from the meeting, Faville and Lazarevski asked Plaintiff what she wanted them to do, and she responded that she wanted them to fire Goodburlet. Approximately two weeks later, Plaintiff again contacted Faville, to ask what was going to happen to Goodburlet. Faville explained that the investigation was finished and that he was not going to take any further action.

After her meeting with Faville and Lazveroski, Plaintiff contends that M1 and Rock "continued harassing her," by talking about her, looking at her, giggling, and "blocking her work area" so that co-workers could not get to her work station. (Pl. Aff. at ¶ 92).

Shortly thereafter, Plaintiff voluntarily transferred to a different shift, the C Shift, where she performed the same job. After Plaintiff transferred to C Shift, she no longer worked directly with Goodburlet, Rock, or M1, though she sometimes saw Rock and M1 when they worked overtime. Plaintiff states that even after transferring, she "still suffered harassment." In that regard, she states that on one occasion, Asha, a Turkish co-worker from D Shift, "gave her a hard time" about a contact lens that Plaintiff had inspected. (Pl. Aff. at ¶ 108; Pl. Appendix of Exhibits, Vol. I at 126).

In February 2006, Plaintiff applied for and received a position in Defendant's Microbiology Department, earning fifteen dollars per hour. In that regard, Brian David ("David"), the Microbiology Manager, interviewed Plaintiff and a white male for the position, and hired Plaintiff. (David Aff. ¶ 7). The Microbiology Department was located in a different building than the Pure Vision Department. The Microbiology Department performed research, development, and quality testing of Defendant's products. Plaintiff's duties in the Microbiology Department included making sterile solutions. In the Microbiology Department, David was Plaintiff's immediate supervisor. Another supervisor was Sue Beaver ("Beaver").

Plaintiff states that Beaver trained her, but not adequately. (Pl. Aff. at ¶ 110). On that point, Plaintiff states that, "Beaver was not a good trainer because she left me alone and when I would have questions she would tell me she had things to do." (Pl. Aff. at ¶ 112). Plaintiff adds that other employees would "help [her] and train [her]." (Id. at ¶ 112). However, David maintains that Plaintiff's job was not difficult to learn. In that regard, David states that persons working in Plaintiff's position usually become "fairly proficient" "within a week or so, and by two weeks into the job, [are] able to handle the job fully and competently[.]" (David Affidavit at ¶ 9). David states that Beaver gave Plaintiff "an initial few days of intensive training," and then "continued to look in on [Plaintiff] and offer her assistance as she could." (Id. at ¶ 10). According to David, such training method was the same method used with other employees. (David Aff. at ¶ 10) ("This is the model we have used training other individuals in the [lab]. Additionally, Ms. Vito was free to (and often did) ask questions of others in the department, and they, too, offered her guidance."). David further states that Beaver "devoted far more time out of her own research schedule (for Ms. Beaver had her own job to do as well) to assisting and instructing Ms. Vito than any other person we had trained in the [lab]." (David Aff. at ¶ 15).

During the relevant time, the Microbiology Department was especially busy, because it was "responding to an international fungal keratitis problem" with contact lens products, and was attempting to discover whether the keratitis outbreak was connected to Defendant's products. In a written submission to the Equal Employment Opportunity Commission ("EEOC"), Plaintiff acknowledged that her workload was heavy because of the keratitis problem: "I'm overloaded of work because of Fusarium (Fungal infections) increased of workload. And for the entire problem going on about the Fungal Keratitis, employees are doing biochemistry scenarios 'trying some worst case according to Brien' and workload increased." [sic] (Pl. Appendix of Exhibits, Vol. II, Ex. T at 4). Plaintiff had trouble keeping up with researchers' demands for sterile solution, and told David that she needed help because she was "getting backed up," and was not being given enough lead time to prepare orders. (Plaintiff's Aff. at ¶ 118). David immediately issued an email directing employees to get their orders to Plaintiff as early as possible. (Id. at ¶ 123). David also had another employee, Todd Bassage ("Bassage"), assist Plaintiff and retrain her regarding her work procedures. Nevertheless, David saw "fairly quickly that [Plaintiff] was not picking up on the job as quickly as [he] had hoped[.]" (Id. at ¶ 11; see also, id. at ¶ 13: "We desperately needed a person... who could 'hit the ground running.' Unfortunately, Ms. Vito turned out not to be this person. Even after nearly two months, Ms. Vito continued to lag behind in her ability to process the... work and produce a sufficient quantity of media." ...

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