United States District Court, W.D. New York
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. (Dkt. No. 8.) Pending before the Court is a motion (Dkt. No. 26) for summary judgment by defendants the New York Power Authority (the "Authority") and Steven Colan ("Colan"). Plaintiff Tammy Bunce ("Bunce") has alleged numerous instances of discrimination, retaliation, and other deprivations of her rights, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17; the Family and Medical Leave Act ("FMLA"), Pub.L. 103-3 (Feb. 5, 1993), 107 Stat. 6, codified in scattered sections of 5 and 29 U.S.C.; state civil-service laws; and the Fourteenth Amendment. Defendants want any allegations predating 2011 dismissed as untimely based on when Bunce filed a formal complaint with the New York State Division of Human Rights ("NYSDHR"). Defendants want the more recent allegations dismissed because they allege no more than ordinary workplace management and discipline that left Bunce employed to this day at the Authority with the same salary and benefits. Bunce responds by repeating the allegations in her complaint, supporting them with her deposition testimony, and arguing that summary judgment cannot resolve any questions about witness credibility.
The Court has deemed the motion submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure ("FRCP"). For the reasons below, the Court respectfully recommends granting the motion.
This case concerns allegations that Bunce suffered repeated harassment, retaliation, and micromanagement when she didn't play along with sexually suggestive behavior from her supervisor. Bunce joined the Authority in 1981 as a Security Guard. When Bunce joined the Authority, she also joined the International Brotherhood of Electrical Workers ("IBEW") and the collective bargaining agreement that the union had with the Authority. The Authority did not have a civil-service system in place and was not subject to New York's Civil Service Law. Around 1986, Bunce bid for and received the position of Messenger/Driver. As Messenger/Driver, Bunce carried mail between the post office and the Authority's various facilities in Western New York. Bunce also would transport personnel and visitors to the Authority when asked. With the exception of short stints that she sought in other positions, Bunce worked as the Messenger/Driver continuously until 2011. The record is not clear as to who supervised Bunce between 1981 and 2006, but the parties have not raised any issues regarding that time. Bunce's employment between 1981 and 2006 appears to have been largely uneventful, at least with respect to any incidents similar to the incidents alleged in this case.
The events that gave rise to this case began around 2006 and, in Bunce's view, coincided with the assignment of Frank Giancola ("Giancola") as Bunce's supervisor. According to Bunce, Giancola propositioned her for sex beginning in 2006. When Bunce refused the proposition, Giancola allegedly began a pattern of hostile and micromanaging behavior as retaliation. Giancola's alleged behavior included following Bunce around closely during the day, surveilling her from hidden places, and photographing her. Other behavior consisted of increased disciplinary action that prompted Bunce, in turn, to file a number of union grievances. Bunce filed 10 union grievances in 2008 alone. Bunce complained to Colan but did not receive any satisfactory results. Bunce also complained to Donna Robinson ("Robinson"), a Human Resources supervisor at the Authority's headquarters in White Plains, New York. Robinson began an investigation, but Bunce withdrew her complaint when told in February 2009 that Giancola was retiring. According to Bunce, the retirement was illusory-Giancola returned almost immediately on a temporary basis to his same position. Giancola ostensibly returned only to train his successor, but the return meant technically that he was Bunce's supervisor again. The record is unclear as to whether any incidents between Bunce and Giancola occurred between February 2009 and late 2009, when Giancola finally left.
Even after Giancola left, Bunce experienced a number of incidents that she believes constituted a continued hostile work environment against her. One incident involved the distribution of paychecks. On or around July 20, 2011, the Authority printed paychecks for distribution and placed them in a sealed envelope marked "Confidential." (Dkt. No. 26-23.) The envelope was addressed to someone other than Bunce. The use of a confidential envelope appears to have represented a change from prior practice. That day, Bunce opened the envelope and distributed paychecks to the intended recipients. The Authority objected immediately and began disciplinary proceedings, on the basis that Bunce had no reason to open a confidential envelope addressed to someone else. Bunce alternately has maintained 1) that no confidential envelope existed ( see Dkt. No. 26-25 at 72 ("I do my job the way I've done it for the last 26 years."); id. ("We haven't established that the envelope really did say confidential.") (attorney objection)); 2) that she opened any envelope at the request of two supervisors ( see id. at 76); or 3) that she did open a confidential envelope without hesitation because "[t]hose are paychecks. I'm responsible for them. I have been for 27 years." (Dkt. No. 26-19 at 3.) The Authority held a fact-finding hearing and proceeded to discipline her around July and October 2011. The Authority notified Bunce of its disciplinary action by letter. (Dkt. No. 26-22.) The discipline consisted of a three-day suspension and a removal from the Messenger/Driver position. The Authority switched Bunce to a General Clerk position at a warehouse because "[t]hese positions [of Messenger/Driver and Security Guard] require a high level of trust and confidentiality from those who occupy these positions, and you have demonstrated you are not trustworthy." ( Id. at 2.) The disciplinary letter also contained the following temporary restriction on other job placements:
You will not be able to bid out of the General Clerk position for a period of three (3) years from the date of this disciplinary memo, however, you will be permitted to volunteer for the Deck Hand position and receive the Deck Hand pay rate when such an assignment is made. After the three year period has elapsed you may bid on any position you may be qualified for, with the exception of Messenger-Driver and Security as noted in (3) above.
( Id. ) Bunce alleges that the Authority labeled her as untrustworthy without justification while a male employee committing a similar offense received a less severe punishment.
Another incident between Bunce and the Authority involved the use of leave time in late summer 2011. The parties cannot agree to any details about how the leave began. Bunce maintains that on July 28, 2011, stress from continued harassment caused symptoms consistent with either a panic attack or an acute depressive episode. Bunce asked for permission to stop working and to go see someone in Occupational Health. Bunce's request allegedly prompted Colan to deny the request, to survey her at home in the coming weeks, and to try to obtain private information from her psychologist. In the Authority's version, Bunce started calling in sick around July 27, 2011. The parties corresponded about Bunce's need to submit FMLA documentation for an extended absence. Bunce did not provide FMLA certification until August 30, 2011. Although the parties disagree sharply about the setup of Bunce's leave, they do not appear to dispute that Bunce eventually set up a leave period successfully and returned to work on October 5, 2011.
Bunce remains employed at the Authority as a General Clerk, with the same pay and benefits that she had as a Messenger/Driver.
Bunce's employment history at the Authority includes a sexual relationship that predated her complaints about Giancola. Bunce has asserted that coworker Daniel Elmer ("Elmer") made repeated comments about trying to date her around 2002. Bunce and Elmer later entered a sexual relationship that ended after a few years. Elmer has admitted to a sexual encounter in 2002 and in 2003. Elmer's exact work relationship to Bunce at the time is not clear, though Elmer appears to have had some supervisory authority over Bunce around the time of the sealed envelope and paycheck incident. Elmer attended the fact-finding hearing concerning the confidential envelope.
Bunce began formal administrative proceedings about a month after losing the Messenger/Driver position. Bunce filed a complaint with the NYSDHR on November 8, 2011; the agency stamped it received on November 10, 2011. (Dkt. No. 26-4 at 4.) Bunce indicated in the complaint that the Authority discriminated against her based on age and sex. The complaint contains 136 paragraphs alleging discriminatory conduct dating back to 2003. The alleged discriminatory conduct listed in the complaint included preferential treatment for men working at the Authority; sexually suggestive comments from Giancola; pressure for a sexual relationship from Elmer; lost opportunities for overtime or other job placements; and numerous instances of unduly harsh or micromanaging behavior from Giancola and Colan that stemmed from discriminatory motives.
The Authority responded to Bunce's complaint on December 22, 2011. (Dkt. No. 26-5.) For each overtime opportunity or job placement allegedly lost, the Authority gave an explanation grounded in the collective bargaining agreement. The Authority asserted that most of Bunce's allegations of unlawful harassment constituted discrete instances of discipline for poor performance; the Authority simply denied the more severe allegations as unfounded. In a decision dated May 7, 2012, the NYSDHR found no probable cause to believe that the Authority discriminated against Bunce. (Dkt. No. 26-6 at 2.) The NYSDHR's principal paragraph is copied here in its entirety:
Allegations 3-76 were not be address [sic] as they date back more than one year prior to the filing of the Charge and are barred by the statute of limitations. The record shows Complainant grieved the allegation regarding overtime on the Ice Breaking Crew and the issue was resolved, there is no record Complainant appealed the outcome of the grievance process. The record shows the controlling factor for purposes of overtime related to the snow shoveling was job classification, not age or sex. There is no evidence to show Complainant was qualified for the Job Flexibility Agreement as it did not apply to the Messenger/Driver position, regardless of what employee occupied that position. There is no evidence to show Complainant was told her employment was day to day; once Respondent found a permanent job for Complainant she was placed in it. Respondent and the union have policies and procedures in place regarding the issuance of discipline, regardless of an employees [sic] sex or age. There is no nexus between Complainant's sex and age and her temporary assignment to the Warehouse based on her actions of opening mail, not addressed to her, marked "confidential."
( Id. ) In a Notice of Rights letter dated October 18, 2012, the Equal Employment Opportunity Commission ("EEOC") adopted the NYSDHR findings and closed its file.
Bunce commenced this case by filing her complaint against the Authority and Colan on January 16, 2013. (Dkt. No. 1.) The complaint contained six claims. In the first claim, Bunce accused defendants of a hostile work environment in violation of Title VII. Bunce asserted that defendants, through supervisors, committed the following acts between 2006 and 2011 to create a hostile work environment:
a. Demanded that she have sex with him;
b. Followed her;
c. Stared at her body;
d. Followed her to the ladies' restroom and timed how long she took;
e. Physically threatened her, causing her to fall and hit her head;
f. Screamed at her in front of co-workers;
g. Wrote her up on specious disciplinary charges;
h. Called a visiting employee's hotel room in the early morning to ask if she was there with him;
i. Hid in the bushes at work to watch her;
j. Took photos of her with his personal cell phone;
k. Demanded that she disclose personal, medical information about herself to him;
l. Made her attend specious disciplinary hearings;
m. Disciplined her for getting a flat tire;
n. Disciplined her for losing cell phone reception;
o. Threatened her with termination;
p. Accused her of fictitious work infractions;
q. Ordered her, and her alone, to call Frank Giancola at home for any work-related issues, ...