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Susan A. Strasser v. Irving Tissue

May 17, 2011




On June 29, 2009, Plaintiff Susan Strasser ("Plaintiff" or "Strasser") filed this action pursuant to Title VII of the Civil Rights Act of 1964, Complaint (Dkt. No. 1), having received a right to sue letter from the United States Equal Employment Opportunity Commission ("EEOC") dated March 30, 2009. Dkt. No. 23-17 at 43. Plaintiff also alleges violations of the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296(1)(a). Compl. ¶ 50. Defendant Irving Tissue, Inc. ("Defendant" or "Irving Tissue") filed a Motion for summary judgment (Dkt. No. 23) ("Motion") on February 15, 2011, and Plaintiff responded with a Motion in opposition (Dkt. No. 31) ("Opposition") on March 29. Defendant filed its Reply to Plaintiff's Opposition (Dkt. No. 35) ("Reply") on April 12. For the following reasons, Defendant's Motion is denied in part and granted in part.


Plaintiff alleges that she experienced both a hostile work environment and retaliation as an employee of Defendant, a Delaware corporation that has its principal place of business and operates a paper mill ("the Mill") in Fort Edward, New York. Compl. ¶ 4; Def.'s Statement of Material Facts (Dkt. No. 23-26) ("DSMF") ¶¶ 2-3. With the exception of a brief period in which she was laid off during a downsize in 1994-95, Strasser was employed by Irving Tissue or one of its predecessors*fn1 for more than twenty years -- from 1988 until May 2010 -- although the last day that she actually worked in the Mill was December 20, 2007. Id. ¶¶ 3, 168. The bulk of the conduct at issue in this case commenced in October 2006 and, according to Plaintiff, occurred on a more or less continuous and frequent basis until that date. Id. ¶ 80; Pl.'s Resp. to Def.'s Statement of Material Facts (Dkt. No. 30) ("PRSMF") ¶ 88.

A. Public Address System Broadcasts

Strasser claims that, beginning in October 2006, she was the daily target of numerous inappropriate pages over the Company's Public Address ("PA") System in the Mill. See, e.g., PRSMF ¶¶ 41, 88. This PA system can be readily accessed by any of the employees in the Mill, and, although it is intended to be used only for emergencies or mundane work-related issues,*fn2 some of Irving Tissue's employees are prone to abusing the unfettered access they have to this system. See DSMF ¶ 42. A number of the company's employees have submitted affidavits stating that "it is not uncommon" for employees to use the PA system to "joke around, mimic, or play pranks on each other." Id. ¶ 42 (citing Cerillo Aff. ¶¶ 16, 40; Bartwitz Aff. 5, 6, 21; Ashe Aff. ¶¶ 9, 10; Carpenter Aff. ¶¶ 12, 14; Dennis Aff. ¶ 7; Fish Aff. ¶ 3). Although the parties dispute the precise nature and content of these "joking" pages, there is no dispute that an unknown number of anonymous employees made inappropriate broadcasts over the PA system while Plaintiff was working in the Mill.

Nor is there any dispute between the parties that at least some of these inappropriate broadcasts were targeted at Plaintiff.*fn3 DSMF ¶ 79. In 2004, Plaintiff was promoted to the position of Line Leader based on her seniority, and was the only female Line Leader on her shift.*fn4 Id. ¶ 56; Plaintiff's Deposition Transcript (Dkt. Nos. 23-15 and 23-16) 16:18-22. Her job entailed running a converting machine or "asset," which converts paper into rolls of bath tissue. DSMF ¶ 57. This in turn required her to know how to make adjustments to the machine, troubleshoot, and perform routine maintenance. Id. ¶¶ 60, 63. And, while the parties disagree both about the relative frequency with which she did this, and the extent of her requests, at times Plaintiff would use the PA system to page for assistance in the performance of her duties, for example, from a mechanic or a forklift driver. See PRSMF ¶¶ 76-77; Plaintiff's Memorandum of law in opposition to Motion for summary judgment (Dkt. No. 31) ("POM") at 7. In response, male voices speaking in high-pitched or "falsetto" voices would ring out over the PA system, with statements such as: "I need a man," "I'm desperate," "Somebody please help me," and "I don't know what to do."*fn5 DSMF ¶ 83. Such pages would occur only after Plaintiff paged for assistance. Id. ¶ 82.

In October 2006, the same month that these pages began, Andy Dobroski, then-vice president of the union to which Irving Tissue's employees belong,*fn6 contacted Sarah Cerillo, the Human Resources Manager, to report that an employee had mimicked Strasser over the PA system. DSMF ¶ 85. Defendant claims that Ms. Cerillo followed up on Mr. Dobroski's report and asked Douglas Westwell, a manager, to investigate, and that Mr. Westwell met with both Plaintiff and her supervisor, William Daggett. Id. ¶¶ 87-88. Plaintiff claims that she recalls reporting the pages to Mr. Daggett repeatedly, but does not recall ever meeting with Mr. Westwell or discussing the conduct at issue with him. PRSMF ¶¶ 88, 99.

Mr. Westwell has also submitted in a sworn affidavit that he contacted the IT department to determine where the pages were coming from, but the IT department could only track when and from what general area of the Mill pages were made. Westwell Aff. ¶¶ 9-11. Mr. Westwell has further stated that he was unable to find the exact individuals responsible, but that he warned members on Strasser's crew that inappropriate use of the PA system would not be tolerated and that any employee caught making such inappropriate use of it would be subject to discipline and possibly termination. DSMF ¶ 96. He also states that in the course of this investigation he learned from talking to other employees that they resented Plaintiff because they perceived her as inept at her job. Id. ¶¶ 97-98. Both Mr. Westwell and Ms. Cerillo have stated that subsequently they each followed up separately with Strasser regarding the pages, and that she indicated to them that everything was fine. Id. ¶¶ 100, 102. Plaintiff, however, denies that these conversations took place.

PRSMF ¶¶ 100, 102.

The pages targeted at Strasser allegedly persisted through the rest of 2006 and all of 2007, until her departure that December. POM at 7. Defendant claims that on a later occasion, following a mimicking page in June 2007 that Mr. Daggett apparently reported because he believed it was targeted at him, Mr. Dobroski and Ron Bartwitz, the Converting Manager, again advised employees that inappropriate use of the PA system would result in discipline, up to and including termination. DSMF ¶¶ 127-130. According to Defendant, Mr. Dobroski and Mr. Bartwitz reissued Irving Tissue's anti-discrimination/anti-harassment policy to each employee. Id. ¶ 130. Mr. Bartwitz and David Dennis, the Plant Manager, also claim that they both met with Strasser and that she did not report any more harassing pages to them. Id. ¶¶ 131-32.

Plaintiff flatly denies having had this conversation with Mr. Dennis. PRSMF ¶ 131. She does recall one occasion on which Mr. Bartwitz told her that they were going to "hand out the harassment papers to see if it would stop." Id. ¶ 132. Plaintiff also states that while she did not report the paging to Mr. Dennis or Mr. Bartwitz, she did complain repeatedly to Mr. Daggett as her direct supervisor, and occasionally to Ms. Cerillo, although she "assume[d]" that Mr. Daggett was reporting her complaints to the latter. Pl.'s Dep. Tr. 130:18-20. Plaintiff states that in reporting primarily to Mr. Daggett, she was acting as she perceived she was required to do in order to comply with Defendant's internal complaint handling process. See PRSMF ¶ 133; Dkt. No. 23-17 at 20. She has also testified that one day when employees were mocking her over the PA system, Ms. Cerillo was telephoned at home and responded to the report by advising Plaintiff to "hold her head high and walk back out there."*fn7 Pl.'s Dep. Tr. 144:3-6. Moreover, her husband Michael Strasser, also an employee of Defendant, recalls repeatedly voicing his concerns about his wife's treatment to Mr. Daggett,*fn8 Mr. Dobroski, and Ron Pliscovsky (then-president of the union). See Michael Strasser Deposition Transcript (Dkt. No. 23-19) 68:4-75:6.

B. Other PA Broadcasts and the "Break Roll" Incident

Beyond the inappropriate PA broadcasts, Plaintiff raises several other allegations of harassment that she experienced in the Mill. In general, she alleges that her crew members frequently harassed her by playing various pranks on her, such as distracting her from her work by paging her that she was needed in another area of the Mill when in fact she was not. See POM at 7-8.

Another particularly disputed incident occurred in March 2007, when Strasser reported to Mr. Daggett that she wanted to be assigned to another crew*fn9 because she felt harassed by some of her male crew members. DSMF ¶ 104. Specifically, she claimed that Matt Sargent, the Parent Roll Supplier, had brought her a roll of paper with six "breaks" in it. Id. A roll with "breaks" separates in the machine, requiring the Line Leader to "rethread" it in order to continue production. Id. ¶¶ 105-06. According to Plaintiff, this was an unusually high number of breaks in a roll, and having to rethread the machine so many times as a result put her in danger as it "needlessly expos[ed]" her to "the blades and saws" of the machine. PRSMF ¶ 106. She also observed her crew members huddled together laughing at her after the roll was delivered to her machine. DSMF ¶¶ 107-08.

Defendant claims that, at Ms. Cerillo's request, Mr. Daggett and Mr. Dobroski investigated the incident and concluded that "it was simply a misunderstanding." Id. ¶ 111. Ms. Cerillo states that Mr. Daggett reported this conclusion to Strasser and the other individuals involved; Strasser denies that this occurred. PRSMF ¶ 112.

C. Alleged Sexual Comments Directed at Plaintiff by Men in the Mill

Strasser further alleges two instances in which she was the target of sexually demeaning comments. First, she alleges that in October 2007, Paul Carpenter, another Irving Tissue employee, made a sexually charged comment in response to a page Plaintiff had made requesting an electrician. Compl. ¶ 20. According to Strasser, when Mr. Daggett responded to her page and asked her why she had paged for an electrician, Mr. Carpenter interjected that Strasser was "having an affair with [the electrician] and want[ed] to know when they could meet."*fn10 Id.; see also POM at

9. Strasser claims that she reported this to her supervisor; Defendant claims that it had no knowledge of the incident until Plaintiff mentioned it to Ms. Cerillo during a telephone conversation in June 2008. See PRSMF ¶ 180.

Second, Plaintiff alleges that in 2002, John Seaborn, the Director of North American Operations for Defendant, stated to her when she was working on a paper log that was five feet eight inches long: "Just the way you like 'em--long and hard." Compl. ¶ 24. Mr. Seaborn, for his part, denies ever having made that statement to Plaintiff. Seaborn Aff. (Dkt. No. 23-23) ¶ 5. Plaintiff also claims that she reported Mr. Seaborn's remark to Mr. Pliscovsky as president of the union and that he responded by laughing. Pl.'s Dep. Tr. 125:4-19.

D. Michael Strasser's Shift Change and Plaintiff's Termination

Plaintiff initially claimed that Defendant retaliated against her "by constructively terminating her solely because she reported sexual harassment." Compl. ¶ 42. Now, Plaintiff seems to rest her retaliation argument more specifically on the fact that Defendant reassigned her husband to a different crew, meaning that the two would no longer be able to work the same hours.*fn11 POM at 11. When this change occurred, Plaintiff complained to Ms. Cerillo that she believed Defendant was changing her husband's shift to punish her for her previous complaints. DSMF ¶¶ 136, 140. Ms. Cerillo told Plaintiff that this was not Defendant's intent and that her husband was being moved to a different shift because the machine he had been working on, the Continuous Winder ("CW"), had to be shut down because of its decline in profitability. Id. ¶¶ 136, 140-42. Ms. Cerillo repeated this explanation in a meeting with both Mr. Strasser and Plaintiff on December 14, 2007. Id. ¶¶ 154-55. Mr. Strasser indicated that he understood that the change was for business reasons and not personal ones, and reiterated this understanding in his deposition. Id. ¶ 155; M. Strasser Dep. Tr. 29:6-8. When asked by Defendant's counsel during her deposition whether she thought Defendant had retaliated against her, Plaintiff responded, "I don't know." Pl.'s Dep. Tr. 163:2-4. When pressed repeatedly as to why she might think Defendant had retaliated against her, Plaintiff responded, "They didn't stop the harassment or anything. I had to leave," and that "[t]hey didn't do anything about it." Id. 164:8-12; 166:5-6.

Plaintiff left the Mill on December 20, 2007, due to either holidays, illness, or vacation, but reported to Ms. Cerillo on January 16, 2008, that she was going to be out of work due to "work-related stress." DSMF ¶¶ 169-70. Shortly afterwards, Plaintiff filed a Workers' Compensation claim with the New York Workers' Compensation Board ("WCB") on the basis of workplace harassment. Id. ¶ 172. She also filed sex discrimination complaints with the New York State Division of Human Rights and the EEOC on March 31, 2008. Id. ¶ 182. The WCB denied her claim on August 21, 2008; the decision was affirmed on November 10, 2008, and once again after a reconsideration on December 10, 2008. Id. ¶¶ 173-75. Plaintiff's request for review of the decision was denied on October 19, 2009. Id. ¶ 176. Plaintiff's discrimination complaint with the EEOC was also dismissed on March 30, 2009, and she was given a right to sue letter. Id. ¶ 186.

During this time, Plaintiff continued to provide Defendant with doctors' notes, prompting Defendant to extend her medical leave. DSMF ¶ 189. On June 3, 2008, Human Resources contacted Plaintiff to tell her that another Line Leader position had opened up on her husband's crew and offered her the opportunity to work in that position. Id. ¶ 179. Plaintiff declined and claims that she did so as a result of the harassment she experienced at her job. PRMSF ¶ 179-81. However, Defendant's leave of absence policy provides for termination of employment if, after 27 months, it cannot be determined when an employee can be reasonably expected to return to work and the employee will likely continue to be absent indefinitely. DSMF ¶ 188. Defendant contacted Plaintiff on February 16, 2010, informing her that her medical leave was due to expire on April 13; Plaintiff's last doctor's note, dated April 20, ...

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