SMITH HOKE, PLLC, John J. Hoke, Esq., Albany, NY, Attorneys for Plaintiff.
NEW YORK STATE ATTORNEY GENERAL, Richard Lombardo, Esq., Albany Office, Assistant Attorney General, Albany, NY, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO District Judge.
Defendants New York State and New York State Division of Parole ("defendants") move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure in this employment discrimination action. In the complaint, Kathleen Nally ("plaintiff") sets forth five causes of action. The first and second causes of action allege that defendants interfered, restrained and denied plaintiff her rights and retaliated against her in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. §2617 (hereinafter "FMLA" 29 U.S.C. §2611). The third and fourth causes of action alleges that defendants sexually discriminated against her and condoned sexual harassment in violation of 42 U.S.C. § 2000e ("Title VII"). The fifth cause of action alleges that defendants retaliated against her for complaining about sexual discrimination and harassment in violation of Title VII.
The facts, unless otherwise noted, are undisputed. From October 2005 to May 2008, plaintiff worked as an Agency Program Aide in the New York State Division of Parole ("Division"), Parole Violation Unit. On May 15, 2008, plaintiff was appointed to a two-year traineeship as an Agency Training and Development Specialist Trainee I in the Division's Staff Development Unit ("SDU"). The SDU was responsible for, among other things, providing continuing training on a variety of subjects for all Division employees. This included professional instruction to parole officers, such as firearms training, as well as general employee development and improvement available to all staff, such as effective writing and the use of computer programs. During plaintiff's traineeship, Joseph Tewksbury ("Tewksbury") was the Director of the SDU and reported to Jose Burgos ("Burgos"), the Divisions Director of Human Resource Management. Roger Hall ("Hall"), an Agency Training and Development Specialist II, was plaintiff's supervisor and reported to Tewksbury. As a trainee, plaintiff's responsibilities included developing and presenting training programs for Division employees.
Defendants allege that in order for the position to become permanent, plaintiff had to satisfactorily complete a two-year period of probation. The traineeship probationary period provides the employer with the opportunity to evaluate the knowledge, skills, and ability of a candidate for promotion as demonstrated by her conduct and performance. If the conduct or performance of a probationer is not satisfactory, her employment may be terminated at any time after eight weeks and before completion of the maximum period of probation. Termination of a probationary appointment does not constitute discipline or punishment. Upon the termination of a candidate's probationary appointment, she is returned to her previous position with the agency.
At the commencement of plaintiff's traineeship, plaintiff had 139 hours of annual leave, 310.5 hours of sick leave, 29 hours of personal leave and four hours of accrued non-compensated overtime. Between May 15, 2008 and February 17, 2009, plaintiff requested authorization for 21 full days of paid leave. Hall and/or Tewksbury approved the absences.
On June 3, 2008, Hall forwarded an email to plaintiff, and others, that was originally from Gregory Sanderl. Sanderl previously held plaintiff's position in the SDU. The email contained Sanderl's new phone number and a comment about the "new girl" having small hands. Plaintiff claims that she did not understand the email and that during a subsequent conversation, Hall intimated that she would need small hands to provide Hall with a "hand job". At that time, plaintiff, who had been employed for less than one week, did not complain about the email and did not tell Hall that she felt the email was inappropriate.
During her traineeship, plaintiff received four evaluations. Each evaluation was prepared by Hall and reviewed by Tewksbury and Burgos. Each evaluation included a determination as to whether plaintiff's probation should be continued or terminated. On August 18, 2008, Hall prepared plaintiff's first evaluation of probationary service. In five of the six categories of performance, Hall noted that plaintiff "meets expectations" and in "relationships with others", he noted that plaintiff "exceeds expectations". Hall recommended that plaintiff's probation be continued. Tewksbury, Burgos and plaintiff signed and approved the evaluation.
During her traineeship, plaintiff sent Hall numerous non-work related emails. On September 12, 2008, plaintiff sent an email to Hall and other co-workers that included the following:
THINGS THAT ARE DOWN RIGHT IMPOSSIBLE TO SAY WHEN DRUNK:
1. No thanks, I'm married...
On September 19, 2008, plaintiff sent an email to Hall and other co-workers that included the following:
SEX: Not lately, but I am looking for the right woman (or at least one who will cooperate).
DO YOU HAVE ANY SPECIAL SKILLS?: Yes, but they're better suited to a more intimate environment...
WHAT WOULD YOU LIKE TO BE DOING IN FIVE YEARS?: Living in the Bahamas with a fabulously wealthy dumb sexy blonde supermodel who thinks I'm the greatest thing since sliced bread. Actually, I'd like to be doing that now...
During the course of plaintiff's traineeship, Hall referred to plaintiff as "Vanna White". Hall also frequently greeted plaintiff and other female employees in the SDU saying "Good Morning, Gorgeous". Plaintiff did not tell Hall that she believed that comment was inappropriate. Hall frequently gave gifts to the SDU staff on holidays and birthdays. On plaintiff's birthday, Hall gave plaintiff a cosmetic gift pack containing soap, perfume and bath lotion. Hall gave similar gifts to other female staff members. Plaintiff unwrapped the gift and thanked Hall. Plaintiff did not tell Hall that she felt the gift was inappropriate and made no complaints to the Division regarding the gift.
On September 29, 2008, plaintiff requested a change in her work schedule from 8:30 a.m. to 4:30 p.m. to 8:00 a.m. to 4:00 p.m. Tewksbury approved that request.
In the Fall of 2008, while Hall was teaching a computer class, he told a joke about a dyslexic genie who mistakenly grants a wish for a "ten inch pianist". Earline Corbitt ("Corbitt"), Director of the Division's Office of Equal Employment Opportunity/Diversity Management, was in attendance. Corbitt told Hall not to tell the joke again during any future training classes.
On November 7, 2008, Hall sent an email to plaintiff confirming that she and a female co-worker would be traveling to Peekskill and stated, "I just do not want to see any wild women in the Peekskill videos. Or, again, maybe I do!'". At that time, plaintiff did not complain to Hall about the email.
On November 14, 2008, Hall prepared plaintiff's second evaluation. In four of the six categories of work performance, Hall noted that plaintiff "meets expectations" and in the category of "personal work" and "communications", he noted that plaintiff "exceeds expectations". Under communications, Hall noted, "Kathy communicates well with coworkers, supervisors and customers". Hall noted that plaintiff, "at times seems reticent to deal with unusual situations as they arise". These comments were in reference to, among other things, an incident that occurred when Hall asked plaintiff to teach a class and she declined. Tewksbury, Burgos and plaintiff signed and approved the evaluation.
On February 17, 2009, plaintiff was confronted with a medical emergency involving her husband. Plaintiff, who was scheduled to teach a class with Hall on February 18, 2009, telephoned Hall to tell him what had transpired. Hall told plaintiff to take off as much time as she needed. On February 18, 2009, Hall sent a confidential email to Tewksbury advising that plaintiff was out of the office due to a family emergency. On February 18, 19 and 20, 2009, plaintiff called in sick and was advised by Hall to take as much time as she needed.
On February 23, 2009, at 8:35 a.m., plaintiff sent an email to Mary Leonard ("Leonard"), the Division's Associate Personnel Administrator and asked, "[c]an I use Sick Leave (FMLA) for [family member's] illness?" At 8:38 a.m., Leonard responded stating:
You can charge your sick leave and indicate in the remarks section "family". You still have to charge the accruals to your sick leave. FMLA is something else altogether... it is meant for a serious health condition for a member of your family or yourself and requires medical documentation.
At 8:45 a.m., plaintiff responded to Leonard, "[w]hat is the advantage/disadvantage to using FMLA?" At 8:53 a.m., Leonard responded:
You have to provide medical documentation indicating that a family member or yourself has a serious medical condition and that your services are required to care for them. You would still have to charge your accruals OR you could go on leave without pay. If you go on leave without pay, your health benefits would be kept up and you would only be required to pay for the employee portion, which is the portion that is deducted out of your paycheck now. You are entitled to 12 weeks in a calendar year.
Leonard attached a PDF document entitled "Employee Rights and Responsibilities under FMLA".
At 8:54 a.m., plaintiff responded:
Oh thanks Mary. I will just keep it the way I am doing it.
On February 23, 2009, with Hall's approval, plaintiff left work at 12:45 p.m. On February 24 and 25, 2009, plaintiff was absent from work, with Hall's approval. Between March 5, 2009 and March 27, 2009, plaintiff requested authorization for four full days of paid leave and two partial days of paid leave. Hall approved these absences.
On March 18, 2009, at plaintiff's request, plaintiff met with Corbitt to obtain Corbitt's opinion on some issues and asked Corbitt to keep the conversation confidential.
On April 1, 2009, Hall reviewed plaintiff's time sheets and determined that, since the commencement of her probation, plaintiff had incurred a total of 39 (7.5 hour days) of absences. On April 1, 2009, Hall had a conversation with plaintiff and told plaintiff that she could take as much time as she needed however, he advised her that if she exceeded 40 absences during her two-year probationary period, the number of absences exceeding 40 could be added to her probationary period. Later that day, Hall and Tewksbury met with plaintiff. Plaintiff was upset and felt that she was being punished for taking time off that both Hall and Tewksbury had previously approved. During the conversation, plaintiff stated that she felt she was being treated unfairly and that the Civil Service rule did not apply to her position since she had been promoted to a new position and was not a new hire. Tewksbury told plaintiff he would consult with human resources regarding her situation. Tewksbury and Hall acknowledged that plaintiff's time off requests were not inappropriate and told her that she was not being punished but that they were providing her with information concerning the Civil Service rule regarding the extension of her probation.
On April 1, 2009, plaintiff sent an e-mail to Leonard and asked, "[i]f I miss over 20 days this year, do they have to extend my probation?" On April 1, 2009, plaintiff met with Leonard and told her that she was upset that she was not previously informed of the rule but conceded that she would have taken the same amount of time off even if apprised due to the medical emergency that arose with her family member.
On April 2, 2009 at 8:53 a.m., plaintiff sent the following email to Hall:
As a follow up to our meeting yesterday, regarding my time off, I am submitting to you a Voluntary Reduction in Work Schedule (VRWS) request. I am requesting to drop a 90% [sic] schedule as soon as possible for personal reasons. I would appreciate every other Friday, as it won't interfere with any roll out training that I may be called upon to go to. This way I can maintain and support in my [family member's] recovery without my Probation being further extended.
My request is to start on April 24th, if possible. At this time, I would like to submit this request for three months, and at that time, I will keep you informed whether or not I need to extend it, or not.
Please keep me informed of the process. I will be handing you the application this morning.
On the same day, plaintiff submitted an application for VRWS in which she requested every other Friday starting April 17, 2009.
On the same day, at 11:29 a.m., plaintiff sent an email to Leonard stating that, "Joe said if I miss any more time my probation will be extended for sure". Plaintiff stated that she had appointments scheduled that "Roger" knew about and told Leonard, "I am in a bind because there is no way, unless I ignore [my husband's] needs and my own health issues, that I can avoid taking some time in the next couple of months". Plaintiff advised that she requested VRWS because, "I thought it would be the most effective way so I don't use any other time".
At 11:50 a.m., Leonard responded:
In my opinion, the fact that they may or may not extend your probation is really of no consequence. I know it seems unfair to you and that you feel that you were mislead and given a false sense of security, but try not to let it consume you because you have more important issues to worry about now. Yesterday you said you would have taken the time off regardless of whether or not they made those statements and you were right. If they extend your probation by the amount of absences, it will not make much of a difference in the long run... I think your suggestion that you participate in VRWS is a good compromise.
Plaintiff responded, "[t]hanks Mary. You are a sweet, real person."
On April 2, 2009, Hall and Tewksbury approved plaintiff's VRWS request. In accordance with plaintiff's VRWS, plaintiff was not scheduled to work on April 17, May 1, May 15, May 29 and June 12, 2009. These days were not counted towards the total number of absences during plaintiff's probationary period.
On April 3, 2009, Leonard approved plaintiff's VRWS application. In response to plaintiff's request, Leonard provided plaintiff with a second copy of the "Employee Rights and Responsibilities Under the Family and Medical Leave Act" and the Department of labor's Family and Medical Leave Act Advisor, which contains frequently asked questions about FMLA. Both documents were previously provided to plaintiff in February 2009. Leonard also provided plaintiff with a "Certification of Health Care Provider for Family Member's Serious Health Condition (Family and Medical Leave Act).
On April 3, 2009, Tewksbury sent a memorandum to plaintiff, with a copy to Hall and Burgos, entitled "Probation Time and Attendance". In the memorandum, Tewksbury memorialized his April 1, 2009 meeting and conversation with plaintiff and Hall. Tewksbury also advised plaintiff the her request for VRWS was approved and that any time that plaintiff took off as part of VRWS would not cause an extension in her probation. Tewksbury advised plaintiff that Hall's interpretation of the Civil Service rule was correct and that plaintiff's probation could be extended by any number of days missed in excess of over 40 days, aside from her VRWS leave. Tewksbury further expressed concerns regarding plaintiff's allegations that she was being treated unfairly or punished. Tewksbury indicated that both he and Hall had attempted to accommodate plaintiff's needs and consistently approved her leave requests citing the change in her daily work schedule and her VRWS leave request. Tewksbury reiterated that if plaintiff's probation was extended, it would be in accordance with the Civil Service rule and not for disciplinary purposes. Tewksbury directed plaintiff to bring any further concerns to Hall in a "controlled and professional" manner and also stated that he was available to meet with plaintiff as needed.
On April 3, 2009, plaintiff sent an email to Tewksbury with a copy to Burgos and Hall, acknowledging receipt of the memorandum and stating:
I just want to say thank you for approving my VRWS application.
Ms. Leonard just called me and told me it has been approved. Apparently on the application I wrote the start date of 4/17 and it was signed off on. In my email request to Roger I put the 24th for a start date.
So, I clarified the start date with Roger and he approved it for the 17th. I called Ms. Leonard back with confirmation of 4/17.
After receiving the email, Tewksbury and plaintiff had a conversation. Plaintiff expressed her appreciation for the VRWS leave and Tewksbury advised plaintiff to submit documentation regarding the requirements of her family member's treatment to the Human Resources department. This conversation was documented in an email from Tewksbury to Burgos.
Between April 1, 2009 and June 24, 2009, plaintiff's husband was not hospitalized and was working and able to drive himself. During this time, plaintiff took off every other Friday, without pay, and requested an additional four full days of paid leave and ten partial days of paid leave. All absences were authorized by Hall. On June 8, 2009, plaintiff submitted a request for an extension of her VRWS. On June 17, 2009, Burgos approved the request.
On April 21, 2009, Hall showed plaintiff, and others, a course manual that Hall had prepared for an effective writing class that he was scheduled to teach on April 22, 2009. The manual contained three sentences, designed to show how incorrect grammar or punctuation can alter the meaning of a sentence. The first sentence read, "[a] woman, without her, man is incomplete". The second sentence read, "[a] set of mixing bowls was designed for the serious cook with round bottoms for effective beatings". The third sentence read, "[t]his desk is suitable for a secretary with large drawers and thick legs".
Plaintiff believed the sentences were inappropriate. Based upon her concerns, Hall removed the first sentence. The matter was brought to Tewksbury's attention. At his suggestion, Hall spoke with Corbitt and Dawn Lewandowksi, Division's Office of Equal Employment Opportunity/Diversity Management (Affirmative Action). Hall was advised that the second sentence should be removed but that the third sentence was acceptable. Hall acted accordingly.
During the April 22, 2009 writing class, Hall told a joke that, he admits, was in poor taste. Hall joked that he was so ugly that when he went to the proctologist, the doctor stuck his finger in Hall's mouth.
On April 23, 2009, at 10:50 a.m., plaintiff sent an email to Hall in which plaintiff stated:
I would like to mention to you that there were some not so positive remarks yesterday about one or more of the jokes you told during the effective writing class. I also thought one of them especially, was very crude and offensive. I was very embarrassed by it.
In the past, Earline Corbitt was in a computer class with us and you told a very distasteful joke. She told you never to tell it again. I have never heard you repeat that joke, but you do come up with others that are very offensive.
Also, Amanda and I have been reviewing the booklet with you. Several weeks ago, we told you that #9, page 40, "This desk is suitable for a secretary with large drawers and thick legs" was not suitable, or could be offensive. You said you were going to remove it from the book. I was shocked yesterday that you had left it in the book and the power-point presentation.
I am mentioning this because I participate in these classes with you as part of my traineeship. I don't want my job in jeopardy because of the jokes, or certain items in the manual, that I believe are inappropriate.
On April 23, 2009, at 11:01 a.m., Hall sent an email to plaintiff, with a blind ...