Appeal from a judgment of the United States District Court for the Eastern District of New York (Hurley, J.), granting summary judgment on federal and state law claims of a sexually hostile work environment, disparate treatment, and retaliation. Regarding the Title VII hostile work environment claim to which this appeal is limited, we affirm the grant of summary judgment on the ground that the one non-trivial comment that may fall within the limitations period is insufficiently related to the earlier course of alleged harassment, under National Railroad Passenger Corporation v. Morgan,
The opinion of the court was delivered by: Dennis Jacobs, Chief Judge
Before: JACOBS, Chief Judge, KEARSE and CALABRESI, Circuit Judges.
Judge Calabresi concurs in a separate opinion.
Plaintiff-appellant Donna L. McGullam appeals pro se from a judgment of the United States District Court for the Eastern District of New York (Hurley, J.), granting summary judgment on federal and state law claims of a sexually hostile work environment, disparate treatment, and retaliation in favor of McGullam's employer, defendant- appellee Cedar Graphics, Inc. Regarding the Title VII hostile work environment claim to which this appeal is limited, we affirm on the ground that the one non-trivial comment that may fall within the limitations period (which was made nearly one year after Cedar Graphics had transferred McGullam to another department) is insufficiently related to the earlier course of alleged harassment. The governing authority is National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002).
For reasons explained later in this opinion, McGullam was required to file a complaint with the appropriate agency within 300 days of the last instance in a course of harassment; and if she did, that filing would have allowed her to plead the full prior course of related harassment.
The relevant chronology is that in April 1996, McGullam was hired by Cedar Graphics, a full-service printing company, to work in the production department. On September 22, 1999, after she complained of sexual harassment and at her request, she was transferred to a position in the estimating department. She was terminated on September 12, 2000, and she filed her complaint with the relevant agencies on July 3, 2001.
McGullam alleges that when she was in the production department she "was regularly exposed to sexual comments, sexually explicit matters, sexual jokes, hostile [and] vulgar language, sexual [innuendos] and gross behaviors, imarily by male coworkers, including management" despite "[c]ontinual complaints to management." According to McGullam's unsworn "journal" (submitted by McGullam in the district court and accepted as true by Cedar Graphics for purposes of the summary judgment motion), this offensive "production department conduct" included, but is not limited to, the following:
• On the first day of McGullam's employment, April 15, 1996, she was asked to retrieve a file by climbing a ladder and the male co-worker holding the ladder told her "not to worry, that he wasn't going to look up [her] skirt."
• In winter 1997, McGullam brought several packages to the shipping department late one evening and a male co- worker commented in part that "'I didn't think you could even drag your big fat ass back here.'"
• In November 1998, a male co-worker in whom McGullam had confided about a "romantic break up," "attacked [her] in front of the entire production department" by stating: "'I think you'd be a lot happier person if you got f****d more often. Yeah, I think that's definitely your problem, you don't get f****d enough.'"
• In July 1999, a male co-worker "sitting at his desk with both arms outstretched toward [McGullam] and one hand shaped into a gun" stated "'I'd like to pump a bullet into your head, right behind your ear and blow your brains out.'"
• In summer 1999, McGullam "had to endure overhearing the details of a conversation" in which a female co-worker told two male co-workers that she witnessed an act of "'doggie style'" sex in the bathroom of a nightclub the previous weekend.
• On an unknown date, a male co-worker commented "'Boing, boing, look at that--right through the denim,'" a "reference to the fact that [McGullam's] hardened nipples were visible even through [her] denim jumper."
• On an unknown date, an unknown person replaced a sign McGullam had taped to her computer that read "'A lot goes into being the best,'" with a similar sign that read "'A lot goes in to being the bitch.'"
McGullam's journal explains that she "was desperate to remove" herself from the production department and therefore requested transfer to an open position in the estimating department, "which was on the other side of the building-- hopefully far enough away from the hostility, harassment and threats of violence." As McGullam explained at her deposition, she "mov[ed] because [she] could not take working in this sexually aggressive and hostile environment where [she] was eventually physically threatened by a colleague."*fn1
McGullam complains of only a single incident post- dating her September 22, 1999 transfer: While working in the estimating department, I was away from the majority of the harassment, hostility and aggravation. However, all comments of a sexual and derogatory nature did not cease entirely. On the opposite side of my cubic[le] wall was a salesman . . . [who] carried on numerous lengthy conversations with male buddies and made frequent comments about women such as referring to them as "chickies[."] He also remarked that "[i]f it wasn't going to be a sleep- over, she wasn't worth the trip[,"] regarding a woman friend that he was involved with (translating to: she's only worth the trip if I'll be getting sex). This was a thoroughly demeaning comment regarding women.
The salesman who offended McGullam by the "chickies comments" and the "sleep-over comment" was not a member of the production department or of the estimating department. On September 12, 2000, Cedar Graphics terminated McGullam's employment. On July 3, 2001, McGullam filed a complaint with the New York State Division of Human Rights (the "NYSDHR") and the United States Equal Employment Opportunity Commission (the "EEOC") alleging a sexually hostile work environment and retaliatory termination. On February 9, 2004, the NYSDHR issued a Determination and Order After Investigation finding no probable cause and dismissing McGullam's complaint. On April 2, 2004, the EEOC adopted the findings of the NYSDHR, dismissed McGullam's complaint, and issued a right-to-sue letter, which McGullam received on April 8, 2004.
On July 6, 2004, McGullam pro se filed this lawsuit, alleging that she was discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") (the relevant text is in the margin*fn2). This appeal considers McGullam's claim of a "[s]exually [h]ostile [e]nvironment that was pervasive." The disposition of her other claims is set forth in the margin.*fn3
On December 21, 2007, Cedar Graphics moved for summary judgment, duly attaching a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment." McGullam failed to file any opposition. On August 20, 2008, the district court granted summary judgment on the Title VII hostile work environment claim and entered final judgment in favor of Cedar Graphics. The district court determined that (i) the hostile work environment claim was time-barred, and (ii) in the alternative, McGullam failed to raise a genuine issue of material fact as to the severity or pervasiveness of the complained-of conduct. McGullam v. Cedar ...