The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
On October 28, 2009, Plaintiff commenced this action pro se with the filing of a Complaint asserting three causes of action: (1) Sexual Harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) Discrimination under the Americans with Disabilities Act ("ADA"); and (3) Retaliation. Defendants filed their Answer with Affirmative Defenses on January 28, 2010. Plaintiff thereafter retained counsel and, on August 7, 2010, filed an Amended Complaint asserting eight causes of action: (1) Hostile Work Environment under Title VII against Defendant Purcell; (2) Hostile Work Environment under the ADA against Defendant Purcell; (3) Discrimination under Title VII against Defendant Purcell; (4) Discrimination under the ADA against Defendant Purcell; (5) Retaliation under Title VII against Defendant Purcell; (6) Retaliation under the ADA against Defendant Purcell; (7) Tortious Interference against Defendants Dibble and Hilton; and (8) Prima Facie Tort against Defendants Dibble and Hilton. On August 23, 2010, Defendants filed an Answer with Affirmative Defenses to the Amended Complaint.
Now before the Court is Defendants' Motion for Summary Judgment seeking to dismiss the case in its entirety. See dkt. no. 42. Plaintiff has opposed the motion, see dkt. nos. 46-57, and Defendants have filed a reply. Dkt. no. 58.
The Court will apply the well-settled standards for deciding summary judgment motions in Title VII and other discrimination actions. See Fed. R. Civ. P. 56(a); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Bracci v. N.Y.S. Dept. of Correctional Services, 2005 WL 2437029, at * 1 (N.D.N.Y. Sept. 30, 2005) (McAvoy, S.J.). These standards will not be repeated. Suffice it to say that where, as here, the intent of one party is in question but there is no direct evidence of discrimination, the Court must carefully examine the reasonable inferences that could be drawn from the totality of the circumstantial evidence and be cautious about granting summary judgment. Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006). Nonetheless, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
All facts are viewed in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). Hearsay will not be considered on this motion. See Fed. R. Civ. P. 56(c)(4).
Plaintiff was hired by Purcell Construction Corp. ("Purcell") in April 2004 as a laborer and laid off that same year due to lack of work. Def. Stat. of Mat. Facts ¶¶ 2, 6.*fn1
She was rehired in January 2006 and worked at Purcell's Fort Drum military base work site. Upon being rehired, except for one period discussed below when Plaintiff was paid a higher "mason's wage," Plaintiff was paid a "carpenter's wage."*fn2 In 2008, Plaintiff began working on a cleanup crew where the circumstances underlying this action occurred. The cleanup crew was supervised by Neal Moser, a Superintendent at Purcell. Def. Stat. of Mat. Facts ¶ 10. In addition to Plaintiff, the cleanup crew consisted of Lisa McIntosh, Defendant Rick Dibble, and Defendant Cliff Hilton. Id. Hilton was the foreman on the cleanup crew.*fn3 The cleanup crew conducted demolition and cleanup of several buildings at Fort Drum. Id.
Plaintiff suffers from anxiety, depression, and post-traumatic stress disorder for which she received treatment and takes medication.*fn4 Plaintiff reported her medication and condition to her initial foreman Bob Kaler in 2007. After she was moved to the cleanup crew, Plaintiff reported "an increase in her medication" to Hilton.
In February 2008, Plaintiff asked Dibble for assistance with a job related task. He responded: "What do you want bitch?" This occurred in front of another male co-worker. Plaintiff was upset by the statement. Later that day, Dibble called Plaintiff a "witch" in front of a different male co-worker.
Within a few days of the name calling, Dibble stated to Plaintiff in front of another male co-worker that Plaintiff "must be ragging it today." Plaintiff was upset by the comment because she understood it to be making a reference to her menstrual cycle. Plaintiff reported Dibble's comments to Hilton. Hilton replied: "You are too hyper on your medicine" and that "you let too much bother you." Hilton shook his head in a manner that Plaintiff interpreted as being disgusted with Plaintiff for reporting the comments. Nothing was said or done about Plaintiff's complaint.
In March 2008, Plaintiff informed Hilton, Dibble, and another co-worker that her prescribed medication for anxiety and depression had been increased because of the stress and anxiety she was feeling from the comments made to her at work and her perception that she had no support from her employer. Around this time, Dibble stated to Plaintiff in front of several co-workers: "You must not've taken your meds today." Plaintiff again complained to Hilton, and Hilton again stated that Plaintiff let too much bother her.
At the end of March or the beginning of April 2008, Dibble walked up to Plaintiff and asked her if she knew the definition "of a cunt." Later that day, Dibble walked up to Plaintiff again, and in the presence of co-workers, said the same thing a second time. Plaintiff believed that Dibble's derogatory comments were specifically directed at her and were not meant as jokes. The comments upset and embarrassed Plaintiff. Plaintiff reported Dibble's comments to Dave Jackson, who was a "team leader" at Purcell at the time. Jackson, Dep. p. 16 (Jackson was not a foreman at the time), p. 22 (same). Jackson reported what Plaintiff told him to Neal Moser, who was a Superintendent at Purcell and the supervisor for the cleanup crew. Id. pp. 18-19. Jackson then told Dibble to stay away from Plaintiff until Moser talked to him, and Dibble responded "OK." Id. p. 20. On the same day, Moser met with Dibble and told him that sexual harassment was not tolerated and directed him not to use inappropriate language again or disciplinary action would be taken. Def. Stat. Mat. Facts, ¶ 18. The next day Plaintiff tried to report the incident to Hilton but before she could tell him what occurred, Hilton yelled at her: "Do your job or go home." At the end of the shift, Plaintiff informed Hilton what Dibble had said and that she was uncomfortable working with Dibble.
On April 1, 2008, Plaintiff injured her lip after walking into a piece of metal on a job site. Hilton brought her to the hospital and the doctor glued her split lip together. Hilton stated: "You should've glued her lips shut." The next day, believing that Hilton and Dibble were making jokes about her injury, Plaintiff commented that she did not walk around demanding respect, but that she was not going to be disrespected either. Plaintiff contends that the following day, her job duties "were altered for the worse in that I had to go to another room and sweep floors while Defendant Hilton and another co-worker yanked out old ceilings which I should have been doing. I felt isolated and ostracized." Pl. Aff. ¶ 24.
Hilton would not permit Plaintiff to operate equipment even though she was qualified to so. Plaintiff also contends that "[t]hroughout the year, Defendant Hilton told me that I had a 'fat ass' in front of other co-workers." Pl. Aff. ¶ 26.
In the middle of April 2008, Plaintiff reported "everything" to Sandra Crabb, a Safety Officer at Purcell. Pl. Aff. ¶ 28. During this conversation, Plaintiff asked Crabb whether the insurance would cover a psychiatrist and/or therapy because of the issues at the job site. Id. *fn5
In May 2008, Plaintiff was transferred to the brick washing crew where she did not have to work with Dibble. After one day of being on the brick washing crew, Plaintiff complained because she was not paid at the higher "mason's wage." This was immediately corrected by Purcell. Plaintiff also reported her complaints about Dribble and Hilton to her new foreman, Keith Ritz. Plaintiff contends that around this time her request for "properly fitted gloves" was denied, resulting in her sustaining an "acid wash" burn to her arm.
In late June or early July 2008, after Plaintiff was injured on the brick washing crew, she was moved back to the cleanup crew for one or two days. Def. Stat. Mat. Facts ¶ 19. When Plaintiff was working on the cleanup crew during this period, Plaintiff was instructed by Hilton to clear out a building and sweep it for tiling. Plaintiff contends that she "was not given adequate tools to perform this assignment and [Hilton] had removed items that would have expedited this job." Pl. Aff. ¶ 36.*fn6 When she did not finish the job in a timely manner, Hilton accused Plaintiff of not working and yelled "in [her] face, 'You need to do your job.'" Id. Hilton then walked away "mumbling" and began "vocally complaining about [Plaintiff] to others." Id. Plaintiff believed that Hilton had intentionally given her an assignment "which he knew could not be completed alone or without the necessary equipment and tools and then yelled at me for not doing my job." Id. Plaintiff also contends that Hilton "would peer into the windows of the building and stare at [Plaintiff] every time he'd drive by" which made her "uncomfortable."*fn7
On the day that Hilton yelled at Plaintiff for not doing the sweeping job quickly enough, Plaintiff complained to Carl Schweitzer, one of the supervisors at Purcell. She contends that she was told by Schweitzer that she should have "never been put back on that crew." Id. ¶ 37.
In June or July 2008, Plaintiff asked James Kingsley, the Personnel Director of Purcell, for "follow-up treatment" for her lip. Plaintiff contends that she was told that she would be responsible for her own follow up treatment,*fn8 and she further contends that "male workers are not treated this way with their injuries." Pl. Aff. ¶ 35. Defendants contend that Plaintiff asked for laser cosmetic surgery for her lip injury and was told that the employer would have to check to see whether it would be covered under a Worker's Compensation claim, which it was.*fn9 Schneider Aff., at. ¶ 10.
In July 2008, Kingsley called Plaintiff into his office and asked Plaintiff about her medication and whether it made her "all weird." Pl. Aff. ¶ 38. Plaintiff advised Kingsley that she was "fine" on her medication. Id. Plaintiff also reported to Kingsley that "bad things had been said to [her] and that [she] did not want to be put back on the crew with Defendants Dibble and Hilton." Id. She would not tell Kingsley what had been said because she feared being retaliated against by Hilton or ...