The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Joanne Sharpe ("plaintiff" or "Sharpe") brought suit against Utica Mutual Insurance Company ("defendant" or "Utica Mutual") alleging retaliation and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended by the Civil Rights Act of 1991 ("Title VII"). Plaintiff alleges that her former employer, Utica Mutual, subjected her to a hostile work environment resulting in job termination, in retaliation for her opposition to sexual harassment in the workplace and for filing charges of sexual harassment and retaliation with the New York State Division of Human Rights ("DHR").
Defendant moved for summary judgment to dismiss the complaint pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff opposed the retaliation motion. Oral argument was heard in Utica, New York on March 19, 2010. Decision was reserved.
The following facts are viewed in the light most favorable to Sharpe, the non-movant, as must be done on a summary judgment motion.
A. First Charge of Discrimination Filed with the DHR
Plaintiff began her employment at Utica Mutual in August 1979 in the record unit. In 1993 she became a Claims Staff Assistant/Business Analyst in defendant's Claims Systems Administration ("Claims"). She alleges she was first subjected to sexual harassment between 1993-1996 by her then-supervisor, Ray Murphy. As the harassment continued, she complained about Mr. Murphy's behavior to defendant's General Counsel in December 1998. Following another incident of sexual harassment during spring 1999, plaintiff filed a sexual harassment complaint with the DHR in April 1999.
After conducting its own internal investigation in late 1999 and early 2000, Utica Mutual demoted Mr. Murphy from his supervisory position. Plaintiff alleges she was thereafter subjected to a number of retaliatory acts as a result of her sexual harassment complaint, including being forced to sit next to Mr. Murphy after his demotion and being excluded from the initial implementation of a new computer system. Mr. Murphy retired from his position in 2001 due to a serious heart condition and later died in March 2002. Plaintiff contends that after Mr. Murphy's death some of her co-workers commented that her sexual harassment complaint against Mr. Murphy exacerbated his heart condition and contributed to his death. She alleges she had a conversation with her co-worker, Deb Cabral, during which she learned that Ms. Cabral, Vice-President of Claims Operations John Nobles, and Supervisor Michael Buttimer all believed her sexual harassment claim contributed to Mr. Murphy's death.
Plaintiff's 1999 DHR complaint was scheduled for a hearing in January 2003. Prior to the hearing Ms. Cabral refused to testify in support of plaintiff's sexual harassment claim. Sharpe withdrew her complaint in February 2003 having lost her primary witness and in hopes of preventing future retaliation. In early 2003, after plaintiff withdrew her complaint, Mr. Nobles appointed Ms. Cabral to a newly created supervisory position within plaintiff's department. Plaintiff believed Ms. Cabral was being rewarded for refusing to testify on her behalf in the DHR proceeding. In March 2003 plaintiff contacted Human Resources concerned that Ms. Cabral's appointment was an act of retaliation for her sexual harassment complaint in 1999. She also expressed concern that she would be treated unfairly by Ms. Cabral because she was blamed by Ms. Cabral for Mr. Murphy's death. As a result, Nina Owens in Human Resources arranged a meeting between plaintiff and Ms. Cabral. Ms. Cabral assured plaintiff she would be treated fairly under her supervision.
In August 2003 Sharpe received a sub-par performance evaluation from Ms. Cabral and Mr. Buttimer.*fn1 Plaintiff objected to the accuracy of the evaluation and refused to sign it after it was read aloud to her. She was upset as a result of the evaluation and was subsequently out of work on sick leave from August 28, 2003, until October 8, 2003. While away from work she was examined by a physician and diagnosed with rapid heartbeat due to stress. She remained home from work for four weeks before receiving notification that she would be terminated if she did not return by October 8, 2003. She returned to work by defendant's deadline.
B. Second Charge of Discrimination Filed with the DHR
Upon her return to work, Sharpe filed a second DHR complaint in October 2003 alleging that her 2003 sub-par evaluation was an act of unlawful retaliation for her 1999 sexual harassment charge. She also alleged that her exclusion from the new computer system implementation, the statement by Ms. Cabral blaming plaintiff for Mr. Murphy's death, Ms. Owens' alleged disregard of plaintiff's concerns of retaliation, and Ms. Cabral's refusal to testify in the previous DHR proceeding were all in retaliation for her initial 1999 complaint. The DHR dismissed this complaint in June 2004 after determining there was no probable cause to believe the 2003 evaluation was motivated by plaintiff's 1999 DHR complaint of sexual harassment.*fn2
C. Time Period After the 2004 DHR Decision
Sharpe received satisfactory ratings during her next two evaluations prepared by Mr. Buttimer in 2004 and 2005.*fn3 Throughout 2004 and into 2005, plaintiff missed approximately 106 hours of work due to stress-related irritable bowel syndrome.
Consequently, in August 2005, a review of her attendance was deemed "[s]ometimes less dependable to due to frequent absences." Colwin Decl., Ex. 32, Dkt. No. 16-16.
In September 2005 plaintiff's co-worker, Christine Wilson, replaced
Ms. Cabral as her direct supervisor. In January 2006 Utica Mutual
instituted a new policy requiring staff coverage from 8:00 a.m. until
5:00 p.m. Accordingly, employees within plaintiff's department were
required to rotate among three eight hour shifts to ensure compliance
with the new policy. These shifts were: 1) 7:00 a.m. to 3:00 p.m.; 2)
8:00 a.m. to 4:00 p.m.; and 3) 9:00 a.m. to 5:00 p.m. Plaintiff
requested she be permitted to remain permanently on the 7:00 a.m. to
3:00 p.m. shift so she could continue to meet her granddaughter at the
school bus stop after school. Ms. Wilson denied this
request.*fn4 In addition, plaintiff claims she was the
only employee in her department to be denied vacation time by Ms.
Wilson and that Ms. Wilson singled her out on three separate occasions
for using work time to complete non-work related tasks.*fn5
One incident involved Ms. Wilson going through plaintiff's
desk to confiscate crossword puzzles. Plaintiff later received a
satisfactory evaluation from Ms. Wilson in August 2006.
On March 6, 2007, plaintiff sent Ms. Wilson, Mr. Nobles, and Mr. Buttimer an email complaining of several events, including the confiscation of the crossword puzzles from her desk, being reprimanded in front her co-workers for conducting personal tasks during work hours, the failure to reprimand a co-worker for kicking her in the buttocks when she bent over to pick up a document that had fallen to the floor, and being prohibited from making direct edits to errors on claim forms. In response, Mr. Nobles encouraged plaintiff to discuss her complaint further with Ms. Wilson and Mr. Buttimer as they were her direct supervisors.
Without going into the specific events, Sharpe contacted Ms. Owens in Human Resources on March 9, 2007, to indicate that she had "a work related problem that is going to require HR intervention." Colwin Decl., Ex. 45, Dkt. No. 16-17. Ms. Owens held a meeting with plaintiff on March 12, 2007. Plaintiff stated to Ms. Owens that she was being retaliated against because of her 1999 sexual harassment complaint against Mr. Murphy. At the end of the meeting Ms. Owens agreed to launch an investigation into her complaints of retaliation. Ms. Owens interviewed 19 of plaintiff's co-workers, but none of the employees indicated she was treated differently on account of her prior complaints of sexual harassment and retaliation. To the contrary, many of the employees interviewed indicated she performed poorly at work and that her work product was not commensurate with someone of her experience.
Prior to the completion of Ms. Owens' investigation, Mr. Nobles personally went to the Special Investigations Unit ("SIU"), located next to Claims, to question SIU employees as to their communications with plaintiff. Mr. Nobles questioned several individuals as to whether they provided Sharpe with legal advice concerning her workplace complaints. They all denied doing so.
Ms. Owens met with plaintiff on March 28, 2007. The lack of support for plaintiff's most recent complaint of retaliation and the performance issues raised by her co-workers were discussed. After Ms. Owens shared her findings with Ms. Wilson and Mr. Buttimer, three meetings were scheduled with plaintiff at 30 day intervals to review her job performance. These meetings were held on April 27, May 24, and July 27, 2007.*fn6 During each meeting, Ms. Wilson and Mr. Buttimer criticized plaintiff's job performance and cited specific examples of errors she made. At the July 27 meeting, Ms. Wilson and Mr. Buttimer explained to plaintiff that she was being placed on probation because of the need for improvement. Defendant alleges Sharpe's job performance did not improve within the next 30 days, and accordingly, she was terminated on September 13, 2007.
On October 24, 2007, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging she was retaliated against for having filed her earlier sexual harassment complaint in 1999. The EEOC later informed plaintiff that the 180 day time period after filing her complaint expired on June 4, 2008. No administrative appeal nor final action has been taken. Plaintiff filed the complaint in the instant action on June 16, 2008.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits reveal no genuine issue as to any material fact. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986). All facts, inferences, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). Initially, the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).
After the moving party has satisfied its burden, the non-moving party must assert specific facts demonstrating there is a genuine issue to be decided at trial. Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at 2511. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. at 1356. There must be sufficient evidence upon which a reasonable fact finder could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S. Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356.
Utica Mutual moved for summary judgment dismissing both the hostile work environment and retaliation causes of action. Plaintiff withdrew the hostile work environment claim but opposed defendant's motion for summary judgment on the retaliation claim.
Plaintiff contends she was retaliated against on numerous occasions between 1999 and 2007 with the final act of retaliation being her termination on September 13, 2007. Defendant claims Sharpe's allegations of retaliation are unsubstantiated and that she was terminated for her poor work performance. Utica Mutual specifically argues that because Sharpe cannot demonstrate that she engaged in any activity protected by Title VII and cannot demonstrate a causal connection between such activity and an adverse employment action, her retaliation claim fails as a matter of law. In response plaintiff maintains that, to the contrary, she engaged in protected activity on multiple occasions beginning in 1999, and that she has adequately demonstrated a causal connection between her protected activity and the many adverse employment actions she suffered.
Under Title VII, it is "an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter." Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999) (quoting 42 U.S.C. § 2000e-3(a) (2003)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). Title VII retaliation claims are evaluated under a three step burden shifting analysis. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 1824-26 (1973). First, a plaintiff must carry her minimal burden of demonstrating a prima facie case of retaliation. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). If the plaintiff sustains this initial burden, "a presumption of retaliation arises." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (quoting Jute, 420 F.3d at 173). The defendant then has the burden of showing "a legitimate, non-retaliatory reason for the adverse employment action." Hicks, 593 F.3d at 164 (quoting Jute, 420 F.3d at 173). Finally, if the defendant carries his burden"the presumption of retaliation dissipates" and the plaintiff must demonstrate that the legitimate reason offered is mere pretext for retaliation. Hicks, 593 F.3d at 164-65 (quoting Jute, 420 F.3d at 173).The Second Circuit recently articulated the McDonnell Douglas framework in the context of a motion for summary judgment:
At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action. If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered ...