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Donna Johnson v. Xerox Corporation

March 17, 2011


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



Siragusa, J. This employment discrimination case is before the Court on Defendant's motion (Docket No. 19) for summary judgment. Plaintiff's complaint alleges violations of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. Following its review of the papers in support of and in opposition to the application, and after hearing oral argument, for the reasons stated below, the Court grants the motion.


Defendant Xerox Corporation ("Xerox") filed with its summary judgment motion a statement of facts as required by Western District of New York Local Rule of Civil Procedure 56.1. Counsel for Plaintiff Donna Johnson ("Johnson") filed a "separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." W.D.N.Y. Loc. R. Civ. P. 56.1. In addition, Plaintiff's counsel filed what she entitled as "Local Rule 56.1 Counter-Statement." (Docket No. 24-2.) Xerox has asked the Court to either strike, or disregard, Plaintiff's Counter-Statement as not authorized under the local rules, and as unnecessarily lengthening, rather than meeting the goal of the Local Rule, which is to streamline the review process.

Local Rule 56.1 makes no provision for the filing of a counter-statement of facts. The Rule was designed to highlight any issues of fact to quickly allow the Court to determine whether summary judgment is precluded. Plaintiff's counter-statement is, therefore, unnecessary and only serves to complicate the summary judgment process. Accordingly, the Court will not consider it in deciding this motion. Based on Xerox's statement of facts, and Plaintiff's contentions concerning them, the following facts are presented on this motion.

Xerox has well-established policies and procedures prohibiting sexual harassment in the workplace. Such policies include its Human Resources Manual, Policy Number HR 201.3, "Equal Opportunity/Affirmative Action and Non-Discrimination Harassment Policy" ("HR 201.3"), as well Xerox's Code of Business Conduct. Both the Code of Business Conduct and HR 201.3 are designed to further Xerox's policies on harassment. Xerox's HR 201.3, for example, informs employees that Xerox "will not tolerate any form of harassment based on ... sex ... or any other basis protected by applicable laws" and it provides a detailed complaint procedure and investigation process for employees to utilize if they believe they have been harassed.

Xerox's Code of Business Conduct also informs employees that employee "violence, threats and harassment are always strictly prohibited," that Xerox "does not tolerate any form of harassment" towards its employees, that Xerox "will investigate allegations of harassment promptly" and when appropriate "take immediate, decisive and appropriate corrective action" and that employees should "notify [their] supervisor, manager or IR*fn1 manager immediately" if they become aware of such harassment.

Xerox requires that all its employees, including union employees, attend periodic training on its Code of Business Conduct and non-harassment policies. Plaintiff, who began her employment with Xerox in 1989, attended such training sessions annually for at least ten years.

Plaintiff is a member of Local 14A, Rochester Regional Joint Board Xerographic Division UNITEHERE! ("UNITEHERE!"). As a member of UNITEHERE!, the terms and conditions of plaintiff's employment relationship with Xerox are governed by the Collective Bargaining Agreement ("CBA") between Xerox and UNITEHERE!. (Vatter Bruder-Decl. 117 and its Exhibit D). The CBA describes Xerox's and the union's prohibition against discrimination and their support of equal employment opportunity, and it contains a grievance procedure for members to utilize to complain about, among other things, any allegations of discrimination.

In January of 2007, plaintiff was assigned temporary duties as a Cleaner in the Site and Facilities Services department in Xerox's Webster, New York manufacturing complex. On January 11, 2007, plaintiff and Bruce Dibble ("Dibble"), a co-worker who was training Plaintiff, went into a men's restroom for the purposes of cleaning it. (Clemens Decl., Exhibit A at pp. 35-36). They had blocked the door to the restroom with a cleaning cart and put up a sign that said "Closed for Cleaning" in front of the cart. They were then were standing by the sinks because Dibble was showing plaintiff where the soaps and paper towels were located. As Plaintiff and Dibble stood in front of the sinks, a man came into to restroom, went past the stalls, and proceeded to urinate at a urinal. (Id. at p.37-39). He stated to Plaintiff and Dibble that in Europe, cleaners just clean around him.

On January 15, 2007, Plaintiff called her supervisor, James Henning, and she advised him at that time about the January 11, 2007 incident. Plaintiff was immediately assigned to work in another building and no further incidents occurred.*fn2 Plaintiff testified that the only incident upon which her claim is based is the January 11, 2007 incident detailed above. Plaintiff filed an EEOC charge relating to this single incident and the EEOC issued an notice of dismissal and statement of rights.*fn3

Plaintiff has submitted affidavits from herself, Dibble, Barbara LaFond ("LaFond") and Tammy Ciulla-Noto ("Ciulla-Noto"). (Pl.'s Vol. III.) In her affidavit, Plaintiff relates that the incident at issue occurred in Building 304 and that the man who urinated in the men's room while she and Dibble were there cleaning was Richard Asahi ("Asahi"). (Johnson Aff. ¶¶ 5--14.) Plaintiff relates that she felt, "humiliated and demeaned by Asahi's degrading conduct. Just because I am [a] cleaner does not mean I am invisible or a 'nobody.' I am an educated woman." (Id. ¶ 19.) From Xerox's response to her EEOC complaint, Plaintiff learned that Asahi was disciplined for the incident. (Id. ¶ 43.) In her affidavit, Plaintiff also gave an account of an incident in 1992, in Building 214, where "a male Xerox employee stuck his tongue out at me and told me that he wanted to 'do' me," and "[i]n or about 2000, another male Xerox employee came up to me, pushed his body against my buttocks and asked me if I 'played.'" (Id. ¶¶ 71--72.)

LaFond related that while cleaning one of the stalls in a men's bathroom in Building 208, on March 21, 2007, a man entered the bathroom, despite the sign she had put up stating that the bathroom was closed for cleaning, and unzipped his pants in front of a urinal. She confronted him, then left ...

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