United States District Court, W.D. New York
DENISE K. KRUPA, Plaintiff,
DUNKIRK SPECIALTY STEEL, LLC, Defendant.
REPORT AND RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. § 636. Pending before the Court is a motion (Dkt. No. 33) by defendant Dunkirk Specialty Steel, LLC ("Dunkirk") for summary judgment dismissing the complaint filed by plaintiff Denise Krupa ("Krupa"). Dunkirk insists that it fired Krupa after repeated violations of its absentee policy, a "no-fault" policy that does not address any other aspect of an employee's performance. In response, Krupa stands by and repeats the allegations from her complaint that Dunkirk treated her absences differently than male employees. Krupa also repeats allegations that she suffered disparate work conditions including a lack of training and restroom facilities that male employees received.
The Court scheduled oral argument for September 17, 2014, but Krupa's attorney did not attend. The Court now has deemed the motions submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure ("FRCP"). For the reasons below, the Court respectfully recommends granting Dunkirk's motion.
This case concerns allegations that Dunkirk subjected Krupa, its only woman machinist, to limited training, inferior working conditions, and unfair disciplinary tactics, all because of her sex. Dunkirk is a steel processor that "produces finished bar, rod and wire products in a wide variety of specialty steel grades sold to service centers, forgers and original equipment manufacturers." (Dkt. No. 33-1 at 1.) Among other departments and employees, Dunkirk has a Maintenance Department and employs machinists in it. In the spring of 2010, Dunkirk placed an advertisement in a local newspaper announcing an opening for a machinist position. Among other requirements, Dunkirk explained in the advertisement that the open position "is not a training position and candidate must be fully capable of doing the full scope of the job immediately." (Dkt. No. 33-2 at 2.) Dunkirk did not list the specific duties that the machinist would perform but did set forth skills that the machinist needed to have. "Qualified candidate must be proficient at reading blueprints, set up and operate lathes (manual & CNC), milling machines, drill presses, saws, shaper, grinders and any and all tools of the trade with minimal supervision. Applicant must be capable in using machinist squares, calipers, micrometers, dividers, protractor, level gauges, feeler gauges, dial indicators, etc. These are prerequisite skills and proof of experience must be documented." ( Id. ) Krupa applied and interviewed for the position. At the interview, Dunkirk told Krupa that machining laboratory test pieces would make up a large part of the job and that she was more qualified than another applicant who also was qualified for the job. ( See Dkt. No. 33-6 at 42-45.) Dunkirk hired Krupa on April 8, 2010. Krupa became Dunkirk's only woman machinist. Krupa spent about half of her time working on test pieces, as did at least one other machinist. ( See id. at 53.) Krupa also operated manual lathes. ( Id. at 55.) While Dunkirk had some flexibility in assigning its machinists different responsibilities, their pay and promotions depended only on the machinist title and not specific tasks assigned to them. ( See id. at 75.)
Dunkirk's absentee policy governed Krupa's job as well as those of all company employees. Under the policy, "[a]n employee is absent when he fails to report for work as scheduled." (Dkt. No. 33-4 at 2.) Employees who must call in sick, also known as "reporting off, " have to call at least an hour before the start of the scheduled shift and have to show a good reason for the absence. Regardless of the reason, "reporting off" subjected employees to the disciplinary point system under the absentee policy. The point system "will be used as a guideline for the supervisor to initiate corrective action with his employees who are excessively absent and/or late. The point system is a no-fault type system which takes into account some reasonable allowance for missed work. Each employee will be treated the same and equally." ( Id. at 3.) Employees would accrue one half-point for late arrival up to 30 minutes. Employees would accrue one point for reporting off under any circumstances; absence altogether from a scheduled shift; late arrival beyond 30 minutes; or leaving work early. ( Id. ) Whenever employees accumulated more than two points within a 90-day span, they would face the next level of discipline that they had not yet faced under the policy, starting with a written warning for a first offense and proceeding to a one-day suspension, three-day suspension, and five-day suspension subject to discharge. Dunkirk stressed that the disciplinary point system "will be used only to evaluate absences and lateness. All other work rules will be governed by disciplinary procedures set forth by the Company." ( Id. at 4.) Medical leave approved in advance by the company and by a qualified physician would not be subject to the disciplinary point system. ( Id. )
Dunkirk's employment records indicate that Krupa had numerous absences that led to her termination. Between January 1, 2011 and January 14, 2012, Krupa accumulated 31 unpaid sick or accident days and 23 absences. (Dkt. No. 33-3 at 4; Dkt. No. 33-4 at 26-40.) Krupa also had absences during her probationary period in 2010. As a result, Krupa progressed through all of the disciplinary actions possible under the absentee policy. Dunkirk gave Krupa a written warning on May 18, 2010; a verbal warning on September 19, 2011; a one-day suspension on November 2, 2011; a three-day suspension on November 16, 2011; and a five-day suspension with termination on January 12, 2012. (Dkt. No. 33-6 at 82-93.)
While Krupa was employed at Dunkirk and building up her absentee record, she made complaints about her work environment that did not relate to the absentee policy. Krupa complained repeatedly to her union and to Dunkirk's supervisors and in-house counsel that she was a machinist and not just a test piece operator. Dunkirk, in Krupa's view, repeatedly denied her chances to assume more responsibilities and to receive training on additional equipment. At one point when raising the issue of training, one of Krupa's supervisors allegedly told her a comment to the effect that her training was limited because "she was only qualified to push a button." Krupa complained that she did not receive enough credit for catching an error involving "collet pads" that saved Dunkirk money. Krupa complained that she had no women's restroom or locker room as close to her workstation as male machinists had to theirs. Krupa allegedly received workplace discipline for being outside of her work area on December 2, 2011 and complained that she had to step out of her work area to acquire the materials necessary for her assigned tasks. Krupa also believes that this particular discipline occurred in response to a complaint that she filed with the Occupational Safety and Health Administration ("OSHA") that led to Dunkirk receiving a citation. Meanwhile, according to Krupa, other employees had accidents that cost Dunkirk considerable amounts of money or accumulated significant numbers of points under the absentee policy without receiving discipline. Krupa cites one former coworker, Peter Spanuzza ("Spanuzza"), by name as an employee who did not receive points for an absence in December 2011.
Krupa believed that Dunkirk discriminated against its only female machinist and began seeking remedies shortly after her termination. Sometime after termination, Krupa applied for unemployment insurance benefits. Dunkirk apparently opposed the application, and an administrative law judge apparently sided with Krupa and downplayed her absences as technical violations that did not rise to "misconduct, " however the administrative law judge chose to define that term. The Court uses the word "apparently" when describing Krupa's unemployment insurance application because Krupa did not attach the application or the administrative law judge's decision to any of her papers. The application and decision thus are not in the record. On March 6, 2012, Krupa filed a discrimination complaint with the New York State Division of Human Rights ("NYSDHR"). (Dkt. No. 33-6 at 2-9.) In the application, Krupa checked off boxes indicating that she suffered sex discrimination with respect to termination, suspension, sexual harassment, denial of training, differential job duties, disciplinary notices, and denial of bathroom facilities. Krupa attached a statement repeating the complaints that she had made to Dunkirk officials about training, collection pads, restroom facilities, and differential application of the absentee policy. For dual filing purposes, the NYSDHR forwarded Krupa's complaint to the Equal Employment Opportunity Commission ("EEOC"). ( Id. at 11.) In a decision dated August 29, 2012, the NYSDHR found no probable cause to believe that Dunkirk discriminated against Krupa. ( Id. at 14-15.) Among other findings, the NYSDHR determined that Dunkirk had no obligation to Krupa regarding cross-training at different machines and that Dunkirk provided appropriate restroom and locker room facilities. The NYSDHR also found no differential application of Dunkirk's absentee policy. The EEOC adopted the NYSDHR's findings and issued a "right to sue" letter on October 26, 2012. ( Id. at 20.)
Krupa began this litigation by filing her complaint on January 24, 2013. In her complaint, Krupa restated the allegations that she made to Dunkirk officials and to the NYSDHR. The complaint contains two causes of action. In the first cause of action, Krupa accuses Dunkirk of discriminating against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (Westlaw 2014). In the second cause of action, Krupa accuses Dunkirk of discriminating against her on the basis of sex in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. Executive Law §§ 290-301 (Westlaw 2014).
Dunkirk filed the pending motion on August 11, 2014 and makes several arguments in favor of dismissal without the need for a trial. Dunkirk wants Krupa's second cause of action dismissed as a matter of law because of the "election of remedies" provision of the NYSHRL. Specifically, Dunkirk argues that the NYSHRL makes administrative remedies through the NYSDHR and judicial remedies mutually exclusive. Because Krupa filed a claim with the NYSDHR and because the agency has adjudicated her claim, she now cannot allege a violation of the NYSHRL in court. Dunkirk next argues that Krupa's complaints about work conditions do not rise to the level of adverse employment actions. According to Dunkirk, Krupa was not entitled to her preferences regarding training and work responsibilities and suffered no negative consequences when she did not receive her preferences. The absence of praise for catching the "collet pad" error is not actionable. Krupa always had adequate restroom facilities. The disciplinary memo issued in December 2011 did not change her working conditions, and Krupa never served the three-day suspension anyway. Finally, Dunkirk argues that Krupa was one of five employees fired in 2011 or 2012 and one of 52 who received discipline under the absentee policy during that time. The one employee whom Krupa named in her complaint had nowhere near the absentee record that she did. In that context, according to Dunkirk, Krupa cannot reasonably allege that she suffered from different treatment under the absentee policy because of her sex.
Krupa opposes the motion mostly by citing the allegations in her complaint. Krupa repeats her view that she was hired as a machinist and not just a test piece operator, and that she should have received additional training and opportunities accordingly. Krupa reiterates her concern about inadequate restroom and locker room facilities. Krupa stands by her allegation that unspecified other employees accumulated more points under the absentee policy than she did and were not terminated. As proof, Krupa cites paragraph 44 of her complaint. ( See Dkt. No. 38 at 4.) Krupa also notes that, of the five employees in 2011 and 2012 whom Dunkirk fired, she was the first one and the only woman. "One of the most criteria [sic] disputed facts in the equalable [sic] application of the absentee policy. According to the Defendant's Affidavit of Vicky Eddy, no males were terminated prior to Plaintiff's termination." ( Id. at 7.) Krupa again cites to her unemployment insurance application and the administrative law judge who found no misconduct. Krupa again did not provide a copy of the application or the decision from the administrative law judge. Krupa concludes that the "attendance program although non-discriminatory on its face was applied in a discriminatory manner as noted above and as set forth in the complaint." ( Id. at 5.) As ...