Appeal from a judgment of the United States District Court for the Eastern District of New York, Nicholas G. Garaufis, Judge, granting summary judgment dismissing, inter alia, hostile work environment claim under Title VII, 42 U.S.C. § 2000e et seq., alleging female supervisor's repeated touching of female plaintiff's breasts. See 2010 WL 1177453 (2010).
The opinion of the court was delivered by: Kearse, Circuit Judge:
Redd v. New York State Division of Parole
Argued: November 15, 2011
Before: KEARSE, WALKER, and RAGGI, Circuit Judges.
Vacated in part and remanded.
Plaintiff Fedie R. Redd appeals from a judgment of the United States District Court 8 for the Eastern District of New York, Nicholas G. Garaufis, Judge, dismissing her complaint alleging 9 disparate treatment on the basis of race and gender, retaliation, and sexual harassment by her 10 employer, defendant New York State ("State") Division of Parole ("Division" or "Parole Division"), 11 in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The 12 district court granted the Division's motion for summary judgment dismissing the complaint, ruling, 13 as to the sexual harassment claim, that the alleged touchings of Redd's breasts by a female Division 14 supervisor were minor and incidental, were episodic, may have been accidental, and did not occur 15 because of Redd's sex. On appeal, Redd contends that the supervisor's touchings were sufficiently 16 abusive to support her hostile work environment claim and that summary judgment was inappropriate 17 because there were genuine issues of fact to be tried. We agree that summary judgment dismissing 18 the hostile work environment claim was inappropriate, and we vacate so much of the judgment as 19 dismissed that claim and remand for further proceedings.
2 Redd, who represented herself throughout the proceedings in the district court, has 3 been employed as a parole officer (or "PO") by the Division since April 1990. She complained on 4 a number of occasions that she, inter alia, was denied transfers to offices closer to home, where she 5 resided with her three young daughters; was subjected to racially discriminatory treatment and 6 discipline; was subjected to retaliation for making complaints; and was subjected to sexual 7 harassment. After receiving a right-to-sue letter from the Equal Employment Opportunity 8 Commission ("EEOC"), she commenced the present action to pursue those complaints. On this 9 appeal, however, she pursues only her claim of a hostile work environment due to sexual harassment 10 by a Division supervisor. To the extent pertinent to that claim, the record, taken in the light most 11 favorable to Redd as the party against whom summary judgment was granted, includes the following.
12 A. Redd's Complaints of Sexual Harassment 13 In 2005, Redd worked in a Parole Division office in Queens, New York (the "Queens I 14 Office"); her immediate supervisor was Senior Parole Officer Clifford Crawford. Beginning in 15 February 2005, Area Supervisor Sarah Washington was transferred into the Queens I Office and 16 headed that office. The principal focus of Redd's sexual harassment claim is that on three occasions 17 between mid-April and mid-September 2005, Washington made sexual advances to her, touching 18 Redd's breasts.
In her verified pro se administrative complaint filed with the State's Division of Human 20 Rights, Redd alleged that 3 1 [o]n April 19, 2005, June 16, 2005, and September 15, 2005, Ms. Washington 2 . . . sexually harassed me by brushing up against my breast while I was sitting 3 at the computer, and she rubbed my hand. Ms. Washington never apologized 4 to me for touching me, and I backed away from her to refuse her advances. 5 (Verified Administrative Complaint ¶ 7.) In her pro se complaint in the present action ("Complaint"), 6 to which she attached a copy of her verified administrative complaint, Redd alleged that she "ha[d] 7 been subjected to homosexual advances" (Complaint ¶ 8). Redd described the three 2005 incidents 8 in her deposition. She testified that on April 19, she was in Washington's office reviewing a transfer 9 list, when Washington "brushed up against [Redd's] breasts." (Deposition of Fedie R. Redd ("Redd 10 Dep.") at 142.) Redd testified that she was so "totally thrown off" by this that she spilled water all 11 over the transfer list. (Id.) Redd testified that the second incident occurred on June 16, when she and 12 another parole officer were talking in a hallway. Washington "came up and she touched my breasts 13 and rubbed up against it again in front of this parole officer." (Id.) 14 Redd testified that, as a result of these incidents, in which Washington "had brushed 15 against my breast and felt my breasts," she was uncomfortable around Washington. (Redd Dep. 141.) 16 Washington was not Redd's immediate supervisor, but she repeatedly called Redd into her office.
17 (See, e.g., id. at 145.) Redd complained to her own supervisor and attempted to avoid going into 18 Washington's office; but as Washington was in charge of the entire Queens I Office, Redd had no 19 alternative but to go to Washington's office when summoned. When asked whether she had 20 complained to Washington about the touching, Redd testified, 21 I avoided Ms. Washington at all costs and she knew I was avoiding her but she 22 continued to call me into her office. I talked to my supervisor about it. She 23 just continued to call me into her office and she was the area supervisor and 24 what she said went . . . 25 (Id.)
Redd testified that on September 15, Washington "rubbed up against my breasts again."
2 (Redd Dep. 142.) Redd, at the time, was sitting at a computer in a secretarial area attempting to input 3 information using a new procedure. Washington, without Redd's having asked for her help, went over 4 to Redd, "reached over and touched and brushed up against [Redd's] breast." (Id. at 143.) 5 Washington, in her deposition taken by Redd, testified in pertinent part as follows:
6 Q. Were you present at the [Queens I Office] work location . . . on 7 4/19/05, 6/16/05 and 9/15/05? 8 A. I believe so.
9 Q. On those days, did you have physical contact with me? 10 A. I don't understand what you mean by physical contact.
11 Q. Did you touch me in any inappropriate manner?
12 A. What does inappropriate manner mean?
13 Q. Put your hands on me?
15 (Deposition of Sarah [E.] Washington ("Washington Dep.") at 6.)
16 Redd testified in her deposition that she had complained about Washington's sexual 17 touchings to Jose Burgos, the Parole Division's Director of Human Resources, but that no action was 18 taken. (See Redd Dep. 144-45.) Burgos, when his deposition was taken by Redd, testified that he did 19 not recall that Redd had ever filed a complaint about Washington "directly" with the Division.
20 (Deposition of Jose A. Burgos ("Burgos Dep.") at 51); however, he appeared to recall that Redd had 21 in fact complained to him that she had been sexually harassed by Washington. In testifying about a 22 disciplinary suspension of Redd on September 16, 2005, and her reinstatement in 2006 as ordered by 23 an arbitrator, Burgos stated that the decision as to whether Redd would be allowed to return to work absent a ruling by the arbitrator was a decision in which there would have been input from 2 Washington. Redd asked:
3 Q. Even if she was sexually harassing me?
4 A. I have no evidence that she was sexually harassing you.
5 Q. Didn't I put in the complaint, did I not complain about her sexually
7 A. My recollection is that you complained that Ms.
bumped you and that you viewed that as--bumped you as she passed
9 you viewed that as sexual harassment.
10 Q. I didn't put in the complaint that she bumped me. I put in the 11 complaint that she felt my breast on three different occasions. Did you
13 A. I don't have a recollection of you filing that complaint directly with
14 the Division of Parole.
15 (Id. at 50-51 (emphases ...