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Nancy J. Garside v. Hillside Family of Agencies

January 4, 2011


The opinion of the court was delivered by: Siragusa, J.



This employment discrimination case is before the Court on Defendant's motion (Docket No. 10) for summary judgment. For the reasons stated below, the application is granted.


Plaintiff is a lesbian female who was hired by Hillside Family of Agencies ("Hillside") in November 2006 as a Financial Analyst. She claims that her supervisor, Nina Nechipurenko ("Nechipurenko") discriminated against her on the basis of her sex, her sexual orientation (lesbian) and because she was single with a same-sex partner. In her papers filed in opposition to the motion for summary judgment, Plaintiff also claims that Defendant retaliated against her for engaging in a protected activity.

Interview for the Position

Plaintiff interviewed for the position of Financial Advisor with Chief Financial Officer Paul Perrotto ("Perrotto"), Finance Group Director Nechipurenko and Accounting Manager Allison Randall ("Randall"). For the interview, Plaintiff wore a business suit with a "floral print," "understated" makeup, earrings, and a short hairstyle. (Garside Dep. 19:2--20.) Although Plaintiff claims she does not know who hired her, Nechipurenko filed a deposition asserting that she was the one who made the decision to hire Plaintiff. (Nechipurenko Decl. (Dec. 29, 2009) ¶ 2). As a Financial Analyst, Plaintiff's responsibilities included developing budgets for new service programs and requests for proposals for new service opportunities. Nechipurenko directly supervised plaintiff and, at the time of plaintiff's hire, three other Financial Analysts-Steve Feszczyszyn, Luisa Giovanni and Lori Lippa.

Hillside Personnel Manual

Hillside is an equal opportunity employer that hires and provides terms, conditions and privileges of employment without regard to, inter alia, gender, marital status, or sexual orientation. Upon hiring, Plaintiff received and reviewed a copy of the Hillside Personnel Policies Manual. The manual contains an equal employment opportunity statement, and encourages any employees who feel that they have been discriminated against to report such incidents to their supervisors or Human Resources. The manual contains a Harassment/Sexual Harassment policy, which prohibits harassment on the basis of, inter alia, gender, marital status, or sexual orientation. The harassment policy instructs any employee who believes she has been harassed to report the incident to either her immediate supervisor, the Human Resources Manager, Assistant Human Resources Manager, or Chief Standards Officer, and lists the phone number for each of these individuals. In relevant part, the manual states that, "[a]ll employees are accountable for this policy. Violations may lead to disciplinary action which, in sufficiently severe cases, may lead to termination from Hillside after thorough investigation." (Hillside Family of Agencies, Human Resources: 4000, Personnel Policies (Shinaman Aff. Ex. C) 36.) Further, the manual requires supervisors to, take immediate and appropriate corrective action upon observing or learning of any incident of any form of harassment by or against a personnel member. This includes but is not limited to harassment by a supervisor against a subordinate, by one personnel member against another, or by a personnel member against a non-personnel member of the Hillside or outside community..

(Id.) The manual also contains a Conflict Resolution Policy, which instructs employees on steps to follow when they perceive a conflict with a co-worker or supervisor. The Conflict Resolution Policy encourages employees to present unresolved conflicts to the Human Resources staff. On January 22, 2007, Human Resources Partner Amy Fagan wrote plaintiff a letter to introduce herself as plaintiff's primary Human Resources contact. Plaintiff did not report any incidents of harassment to Ms. Fagan during her employment.

Plaintiff's Dress

Plaintiff regularly wore women's business suits to work, which either had flowered prints or were dark solid colors. Plaintiff did not wear makeup, and wore flat shoes, and earrings. Plaintiff wore her hair between two and four inches long. Other females in the department, including Nechipurenko, wore either business suits or skirts, makeup, shoes with a slight heel or heels, and earrings, necklaces and bracelets. Plaintiff testified in her deposition that Nechipurenko wore "more colorful things, a little more, maybe, flamboyant hairstyle, makeup, maybe possibly jewelry." (Garside Dep. 36:6--8.)

Derogatory Remarks and Treatment Although Defendant claims that, "No one at Hillside, including Ms. Nechipurenko, ever made derogatory remarks regarding plaintiff's dress, mannerisms, or sexual orientation. Ms. Nechipurenko never made any negative comments about plaintiff's partner or children," Plaintiff testified at her deposition about one interaction she had with her supervisor, Nechipurenko, that Plaintiff interpreted as an implied negative comment (Garside Dep. 72:215--21):

So I was not a known entity, and I was doing my best to incorporate myself into the team, team player. And it wasn't easy at first because I think that my-the way I create budgets was different than the person before me.

So at one point I did say to Nina [Nechipurenko], you know, it's a little bit-it's, you know, takes time to get assimilated and to a new work environment. And she said to me that she believed the reason that the two women who wrote the service grants weren't accepting me was because I'm not a pretty girl. And I didn't respond.

But in my gut, my stomach sank. I felt that-I felt that it was sexist and I felt that I believed it was because I was a lesbian. She was referring to-making innuendo, but I felt insulted and disturbed.

(Garside Dep. 73:10--74:2.) Plaintiff went on to explain that the term, "not a pretty girl," in the lesbian community, means a lesbian who is "not particularly feminine, and more to the butch appearance." (Garside Dep. 76:2--3.) Plaintiff also testified at her deposition that Nechipurenko treated her differently from everyone else. She said:

Well, I would see her In the hallway in the morning and say good morning. And she would completely ignore me and not respond. And she would give me my assignments, eventually, by just putting them on my chair. So when I would walk in in the morning, there would be a pile of assignments that I was to decipher on my own. And she would go out to lunch often with many people in the department and exclude me, never invite me. Openly exclude me.

(Garside Dep. 72:8--17.)

In response to being asked at her deposition whether anyone other than Nechipurenko treated her poorly based on her sexual orientation, Plaintiff responded:

I did have an experience in the Human Resource Department where it was time to sign up for benefits, health care, dental care, eye care and it was my first time. And I went to hand in my forms, my documents, and I went up-you know, it was-there was a date that you have to complete it by. So I went up to Human Resources and wanted to hand in my paperwork. And I handed it into the receptionist and then she said, "Wait here." And she brought it back to a woman named Madonna and I was sitting down. It was, like, kind of like an open foyer where it's kind of, like, the reception area where people who may be wanting to apply for jobs can come in and apply for jobs. It was not just necessarily Hillside employees even, I don't think.

And so I'm sitting there and there were a bunch of other people in the room. And Madonna came out to the reception area and said to me, "Who is this?" And I said, "Well, what do you mean?" She said, "Who is this you have on"-she kind of shook the paper at me-she said, "Who is this you have on this form here?" And I said, "It's my partner and my children." And she said, "You cannot have her on this plan.."

So Madonna told me I could not have this woman-at the time was my partner *fn1 on the plan. And I said, "I think I can." And so then Madonna went back and I was kind of embarrassed because there were a bunch of people around the room. I felt humiliated, especially since I thought the HR person who handles it should know whether or not Hillside has domestic partner benefits. So then she went back to her office and she sent somebody else to talk to me. And the woman told me that they would not process my forms unless I went downtown to the city of Rochester and registered as a domestic partner with my partner and paid $40 to get a document and come back and give it to them.

(Garside Dep. 104:23--105:25; 106:6--19.)

Defendant's policy, as explained by Amy Fagan, Hillside's Director of Employee Relations, is that to enroll either a spouse or domestic partner in employer-provided benefits, all employees must fill out a "Marriage/Domestic Partnership Certification." (Fagan Decl. ¶ 4). The certification requires the employee to list her spouse or domestic partner's name, to certify that they are legally married and/or domestic partners, and to list the city and state in which their marriage license or domestic partnership agreement was filed. (Fagan Decl. ¶ 5 & Ex. A). As Fagan explained,

[s]ince plaintiff and her partner had not entered into a domestic partnership agreement at the time that she initially applied for these benefits, a Hillside benefits representative instructed her that, in order to truthfully fill out the certification, she and her partner would have to enter into and file a domestic partnership agreement. Any employee claiming to be married, but who could not certify to having filed a marriage license would have had to obtain and file one.

(Fagan Decl. ¶ 6.) Although discovery is now complete,*fn2 Plaintiff responds to this information by stating that she is unaware of whether Hillside required a married person to produce a copy of his marriage certificate. (Pl.'s Response to Def.'s Local R. 56.1 Statement ¶ 11.) Fagan's representation, therefore, is uncontested for the purposes of this motion.

Work Instances

In February or March 2007, Plaintiff expressed difficulty juggling all of her assign-ments, and Nechipurenko advised her not to spend time on the Internet researching her assignments, as other Hillside employees were responsible for performing such research. Plaintiff, however, describes the advice as follows:

Nina also told me that I was not to use the [I]nternet to research my projects, which I found that to-I found researching my Requests For Proposal Projects on the [I]nternet helpful when I would create a meaningful budget. I need to understand the project that we were bidding for, have conceptual knowledge and awareness. So Nina had forbade me to use the [I]nternet during my work hours; she forbade me to talk to the accounting manager; and this one project was totally an accounting problem. Huge problem.

(Garside Dep. 58:12--22.)

In response to a complaint from Randall, Nechipurenko further advised Plaintiff to email her any questions, and not to take up Randall's time with her inquiries. Plaintiff described this situation in her deposition as follows: "Nina had told me that she would no longer speak to me and that she would only manage me via email. I was not to talk to her." (Garside Dep. 56:3--6.) However, Defendant responds that during the Spring of 2007, Nechipurenko experienced an extremely busy work schedule due to the recent departure of a co-worker and her work on Hillside's annual budget, which was due May 5, 2007. (Nechipurenko Decl. ¶ 4). She therefore instructed all of her subordinates to send any questions they had via email, which permitted her to address questions as time permitted, often on nights and weekends. (Id.) Plaintiff, though, testified that Nechipurenko spoke with the other financial analysts. According to Plaintiff, one, Luisa, indicated that Nechipurenko did not tell her to communicate by email and, another, Lori Lippa, said that she talked to Nechipurenko many times per day. Nechipurenko had, by then, fired the other financial analyst, Steve. (Garside Dep. 64:19--25.)

In April 2007, Perrotto invited Plaintiff to observe the annual budget workshop. (Nechipurenko Decl. ¶ 5.) Perrotto informed Nechipurenko that he had invited Plaintiff, and Nechipurenko, believing it would be a good learning experience, invited her other subordinates to attend the meeting as well. (Id.) Prior to the start of the meeting, Plaintiff sat at the table where the meeting was to be held. (Id. at ¶ 6). Perrotto asked plaintiff to take a seat away from the table. (Id.) Plaintiff, along with all those invited to observe the meeting, sat away from the table. (Id.) Plaintiff described it as follows:

And one day [Perrotto] called me into his office and he said, "I would like you to attend the finance board meeting-Finance Committee meeting of the board of Hillside family of Agencies."

And I said to him, "Paul, did you talk to Nina about this yet?"

He said, "No."

I said, "Well, I think you better because I do not think she would like that at all."

And he said, "Oh, okay. I will talk to her." He goes-no. He said, "You tell her."

So I said, "Okay."

So I went into Nina's office and I said, "Nina, Paul Perrotto just invited me to the Finance Committee board meeting."

And Nina snapped at me and said, "That's my meeting."

And I said, "I know it's your meeting, but Paul just invited me to attend It." So I left her office and shortly thereafter a mail note came out from Nina inviting her direct reports to attend the Finance Committee meeting.

And so when I went to the Finance Committee meeting, which was on Monroe Avenue, and we were located at Mustard Street-I'd never been to one of these meetings before and so I just-I was there kind of early. And I sat down in a chair and I saw Nina glaring at me and go over and whisper to Paul. And Nina stormed out of the room and Paul came over and explained to me that I was not to sit in that chair, that I had to sit against the wall.

(Garside Dep. 135:8--136:14.)

On April 10, 2007, Nechipurenko issued a positive performance evaluation to Plaintiff. Subsequently, in late April 2007, Plaintiff emailed a paid time off request to Nechipurenko. (Nechipurenko Decl. ¶ 8), who did not immediately approve the request, because it was her practice to have her employees merely inform her that they would be taking time off. (Id.) Plaintiff described the situation as follows:

[I]t was my twins First Communion-First Communion I think it was. My mother was flying up from New Jersey for a week. And I think I left Nina a voicemail and she didn't respond. It was getting close to the time I needed to know. I went to HR, "How long does a manager have to respond to a PTO request," and Chris said 24 hours.

I said, "Well, Nina's not responding."

So I went back downstairs and, again, I asked Nina for the two-day PTO that I had earned and she snapped and me and said, "You don't have any PTO."

I kind of anticipated that and I had my timecard pay stub In my hand that showed I had two days PTO earned. I said, "Actually, I do have paid time off. And she walked away-I think she said, fine. Then she walked away disgusted.. I did [get the time off], but I also believe that I was retaliated against..[T]hat's when she ...

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