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Durkin v. Verizon New York

March 1, 2010

ANNE F. DURKIN, PLAINTIFF,
v.
VERIZON NEW YORK, INC., DEFENDANT.



The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge

OPINION AND ORDER (AMENDED AS TO DATE OF ORDER)

Anne F. Durkin ("Plaintiff") filed this suit alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. EXEC. LAW § 290 et seq., because of the "sexually hostile work environment" and gender discrimination to which several female co-workers at Verizon New York, Inc. ("Verizon" or "Defendant") allegedly subjected her. Plaintiff further alleges that Defendant retaliated against her because she pursued charges with state and federal agencies. Defendant filed a motion for summary judgment as to all of the claims in the Complaint. For the reasons discussed herein, Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff began working for Defendant at its Peekskill office in 1981, and held several positions during the course of her employment. See Deposition of Anne F. Durkin dated October 19, 2005 and November 10, 2005 ("Durkin Dep.") at 64-66; Def. R. 56.1 Stmt. ¶¶ 1-3. Effective July 2000, Plaintiff was accepted into the Next Step Program. See Durkin Dep. at 66, 69-71; Def. R. 56.1 Stmt. ¶¶ 4, 96; Affidavit of Susana Y. Lopez dated April 12, 2006 ("Lopez Aff.") ¶ 3. As part of this program, Plaintiff received a title upgrade and a substantial increase in pay. See Durkin Dep. at 69; Def. R. 56.1 Stmt. ¶ 4; Lopez Aff. ¶ 5. Plaintiff, like other program participants, was required to attend classes at a participating college one day per week; her tuition and fees were covered by Verizon, and she was paid her salary for the days that she attended class. See Def. R. 56.1 Stmt. ¶¶ 5-6; Lopez Aff. ¶ 6. Plaintiff was assigned to Defendant's New Rochelle office in connection with the Next Step Program, where she worked as a Central Office Technician from July 2000 until October 18, 2001. See Durkin Dep. at 70-71; Def. R. 56.1 Stmt. ¶ 11.

Beginning in late 2000, Plaintiff was subjected to what she calls sexually offensive behavior by female co-workers in the New Rochelle office, principally by Valerie Vaccaro ("Vaccaro"), Natalie McKenna ("McKenna"), and Donna Markham ("Markham"). See Compl. ¶ 13; Durkin Dep. at 88-89. For example, Plaintiff was told that Vaccaro, McKenna, and Markham spread rumors that Plaintiff did not wear underwear and that she was "loose," and that they were referring to her as "Trailer Park Anny." See Durkin Dep. at 89-90. Plaintiff confronted the women about the comments, and reported them to her then-supervisor Colin Williams ("Williams"). See Durkin Dep. at 93-95. A short time later, Vaccaro allegedly pulled open Plaintiff's shirt, exposing Plaintiff's camisole, bra, and breasts. See Durkin Dep. at 95-98. Vaccaro told a male co-worker to "look at the set on this one," to which the male co-worker allegedly replied, "Valerie, you are just jealous because she's bigger than yours [sic]." See Durkin Dep. at 97-98. Plaintiff again complained to Williams and asked to be transferred to another work location. See Durkin Dep. at 99-100. Plaintiff claims that Williams informed her that he had conferred with his supervisor, Mary Ann Sniffen ("Sniffen"), and they had determined that Plaintiff's only options were to return to her former, inferior job title at a location in Peekskill, or to remain in New Rochelle. See Durkin Dep. at 102-03.

On October 27, 2000, Plaintiff complained about these incidents to Defendant's Equal Employment Office ("EEO") and eventually spoke to Homer Mosley ("Mosley"), who said that he would investigate and that the incidents would stop. See Durkin Dep. at 105-10; Def. R. 56.1 Stmt. ¶ 28; Affidavit of Antoinette G. McDermott dated April 13, 2006 ("McDermott Aff.") ¶ 6. Subsequently, Vaccaro and McKenna continued to make comments about Plaintiff's breasts (i.e. "Did you have breast surgery," "Are those your real boobs," etc.), asked to see her breasts, and told her to "[t]ake off the miracle bra." See Durkin Dep. at 46, 113-14; McDermott Aff. ¶ 6, Ex. B. Vaccaro also allegedly repeatedly said that "you have to have breasts in order to get anything in this company," that "[w]ithout breasts you go nowhere in Verizon," and that Plaintiff "was given all the best jobs" and received "special treatment" because of her breasts. See Durkin Dep. at 112, 137. Plaintiff contacted Mosley periodically to inform him about these comments. See Durkin Dep. at 112-13. Eventually, Mosley informed Plaintiff that his investigation had uncovered no proof of gender discrimination. See Durkin Dep. at 115; Def. R. 56.1 Stmt. ¶ 35; McDermott Aff. ¶ 8. Mosley nevertheless instructed Williams to speak to Vaccaro, McKenna, and Markham about their behavior, which Williams did on November 6, 2000. See Def. R. 56.1 Stmt. ¶¶ 36-37, 40; McDermott Aff. ¶¶ 8-10, Exs. C, D. Vaccaro and McKenna denied making any inappropriate comments. See Def. R. 56.1 Stmt. ¶ 38; McDermott Aff. ¶ 9.

Plaintiff, unsatisfied with this resolution, contacted Mosley's supervisor, Tom Remeika ("Remeika"). See Durkin Dep. at 115-18. Remeika told Plaintiff that he would look into her complaint further, but ultimately concluded that there had been no unlawful discriminatory behavior. See Durkin Dep. at 118-19; Def. R. 56.1 Stmt. ¶ 49; McDermott Aff. ¶ 12. In May and June 2001, Plaintiff contacted another internal EEO case manager, Kathy Bowman ("Bowman"), who, like Remeika and Mosley, determined that there had been no unlawful discriminatory behavior against Plaintiff. See Durkin Dep. at 142;McDermott Aff. ¶ 13.

Plaintiff contends that in response to her EEO complaint, Vaccaro wrote "don't sexually harass Anny" on the wall at their workplace, co-workers threw Plaintiff's tools and other belongings in the garbage, Plaintiff was not given personal phone messages or mail, and Plaintiff was deliberately locked out of the building on one occasion. See Compl. ¶ 22; Durkin Dep. at 119-20, 122-23, 128, 140-41; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo. of Law") at 7. In addition, Plaintiff alleges that whenever she would assist a male co-worker, Vaccaro or McKenna would make kissing and/or lovemaking sounds over the office intercom. See McDermott Aff. ¶ 22, Ex. H. During one incident when Plaintiff was working with a male employee, McKenna and Vacarro yelled "look who he goes to, he goes to her because she has tits, look at this shit." See Durkin Dep. at 137.

Plaintiff reported these incidents to her then-supervisor Lou Mango ("Mango"). See Durkin Dep. at 44, 121-22. Plaintiff claims that the women made comments about Plaintiff's breasts on a daily basis and that she had more than one hundred conversations with Mango about this pattern of harassment. See Durkin Dep. at 52-53; 155; Pl. Memo. of Law at 7 (citing Durkin Dep. at 27-28). Apparently, when Mango attempted to assist Plaintiff, Vaccaro and McKenna, along with another female employee who harassed Plaintiff, Lydia Roberts ("Roberts"), acted out against him. The women hung a voodoo doll of Mango and beat it with sticks when he walked into the room. See Durkin Dep. at 44, 389; Def. R. 56.1 Stmt. ¶ 90. On one occasion, they chased Mango, and Roberts screamed at and pushed him. See Durkin Dep. at 388-89.

In October 2001, Vaccaro and another female employee, Sue McLynn, came to work with their bras stuffed and wearing name tags with the name "Anne," claiming that they were dressing up as Plaintiff for Halloween. See Durkin Dep. at 43-44, 146-48. A male co-worker took photos of these women in sexual poses. See Durkin Dep. at 44, 147-48. Plaintiff complained about this incident to her then-supervisors Kareem Clark ("Clark") and Peter Lundahl ("Lundahl"), who encouraged Plaintiff to confront the women. See Durkin Dep. at 44, 49, 155. When Plaintiff did so, she found the women wearing their bras and underwear, as well as one male employee wearing his underwear, on the outside of their clothing; she went to get Lundahl and told them explicitly that she found their conduct offensive. See Durkin Dep. at 35-36, 43-44, 155; Def. R. 56.1 Stmt. ¶¶ 59-60; McDermott Aff. at 15, Ex. F. Several people, including the male co-worker, told Plaintiff that they did not care and that they wanted her to leave Defendant's employ. See Durkin Dep. 155-56. Lundahl and Clark instructed Plaintiff's co-workers to stop behaving this way, but the taunts and confrontations continued. See Durkin Dep. at 156-57; R. 56.1 Stmt. ¶ 63; Deposition of Peter Lundahl dated December 15, 2005 ("Lundahl Dep.") at 42; McDermott Aff. ¶ 15, Ex. F.

Clark and Lundahl and second-level supervisor Sean O' Connor ("O' Connor") advised Plaintiff to contact EEO officer Toni McDermott ("McDermott"), which she did. See Durkin Dep. at 33-34, 156-57, 163-64; Def. R. 56.1 Stmt. ¶¶ 67-68; Lundahl Dep. at 44-46; McDermott Aff. at 15-17, Exs. F, G.

As a result of these incidents, Plaintiff took a leave of absence on October 18, 2001. See Def. R. 56.1 Stmt. ¶ 74; McDermott Aff. ¶ 19. At that time, she was told that she could not continue with her Next Step Program schooling while on leave, and therefore withdrew from the educational component of the program. See Durkin Dep. at 246; Def. R. 56.1 Stmt. ¶ 98.

Defendant offered to transfer Plaintiff to certain other offices, but she did not accept those offers. See Durkin Dep. at 166, 176-78; Def. R. 56.1 Stmt. ¶ 73; McDermott Aff. ¶ 19. On November 5, 2001, Plaintiff sent a letter to Defendant in which she explained that she believed her co-workers disliked her because, among other things, she worked more overtime than they did, she worked on the third floor by herself, and she was going to school as part of the Next Step Program. See Def. R. 56.1 Stmt. ¶ 76; McDermott Aff. ¶ 20, Ex. H. McDermott conducted an investigation while Plaintiff was on leave, and she also reached the conclusion that Plaintiff had not been subjected to unlawful harassment. See Def. R. 56.1 Stmt. ¶¶ 79, 82; McDermott Aff. ¶ 23.

On January 15, 2002, Plaintiff filed a complaint with the New York State Division of Human Rights ("NSDHR"), alleging gender discrimination. See Compl., Ex. 1. On March 19, 2004, the NYSDHR found probable cause to believe that Defendant engaged in an unlawful discriminatory practice.*fn1 See Compl., Ex. 2.

Plaintiff returned to work in June 2002, and was transferred to Defendant's Poughkeepsie office. See Compl. ¶ 30; Def. R. 56.1 Stmt. ¶¶ 13, 84; McDermott Aff. ¶ 24. At her new position, however, she did not receive the type of training she had been receiving in New Rochelle, and made numerous complaints to her supervisors. See Durkin Dep. at 219-21, 226-27. In August 2002, Plaintiff resumed taking classes as part of the Next Step Program and attended school for one academic year. See Durkin Dep. at 213-14; Def. R. 56.1 Stmt. ¶¶ 99-100; Lopez Aff. ¶ 11. Plaintiff requested a leave of absence from school for the 2003-2004 academic year, which Defendant granted. See Durkin Dep. at 244, 252; Def. R. 56.1 Stmt. ¶¶ 101, 103; Lopez Aff. ¶ 11. Defendant maintains that Plaintiff was told at that point that no additional leaves from school could be granted. See Def. R. 56.1 Stmt. ¶ 103; Lopez Aff. ¶ 11; Deposition of Arlene Gritmon dated December 14, 2005 ("Gritmon Deposition") at 23. The Next Step Program handbook does not specify that there is a particular limit on the number of permissible leaves of absence. See Gritmon Dep. at 25-26, 28.

As the 2004-2005 academic year was about to begin, Plaintiff again requested a leave of absence. See Durkin Dep. at 267; Def. R. 56.1 Stmt. ¶ 104. Plaintiff claims she was told that she could receive an extension if she presented a doctor's note, which she did. See Durkin Dep. at 279-80, 292-94. At that point, Plaintiff was advised that if she did not resume the educational component, she would have to withdraw from the Next Step Program. See Def. R. 56.1 Stmt. ¶ 106; Lopez Aff. ¶¶ 11-12. Plaintiff was further informed that the consequence of withdrawing from the program, as specified in the program handbook, would be a return to her prior job title and location in Peekskill. See Durkin Dep. at 282-84; Def. R. 56.1 Stmt. ¶ 14; Lopez Aff. ¶ 12. Plaintiff was particularly alarmed about a transfer back to Peekskill, she says, because McLynn occasionally works out of that office. See Durkin Dep. at 286-87.

Beginning on September 2, 2004, Plaintiff took a paid psychiatric leave of absence from Verizon. See Def. R. 56.1 Stmt. ¶¶ 110-11; Lopez Aff. ¶ 13; Affidavit of Joan A. Scott-Monck dated April 12, 2006 ("Scott-Monck Aff.") ¶ 4. Because of the timing of her leave, she was never actually returned to her previous title and location in Peekskill. See id. On September 8, 2005, Plaintiff exhausted her paid leave benefits and was removed from the Verizon payroll. See Def. R. 56.1 Stmt. ¶¶ 16-17; Scott-Monck Aff. ¶ 4, Ex. B.

II. DISCUSSION

A. Standard of ...


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