United States District Court, W.D. New York
CARMEN A. BURGOS, Plaintiff,
SOUTHEAST WORKS f/k/a SOUTHEAS COMMUNITY WORK CENTER, INC., Defendant.
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge.
Carmen A. Burgos, brings this action against Defendant,
Southeast Works f/k/a Southeast Community Work Center, Inc.,
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”), the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621-634, 42 U.S.C. §1981, and New
York Human Rights Law, N.Y. Exec. Law §§ 290 et
seq. (“NYHRL”), alleging that she was
discriminated against based on her sex, age, and
race. Southeast Works has moved for summary
judgment, seeking dismissal of Burgos' claims under
Federal Rule of Civil Procedure 56. For the reasons discussed
below, Southeast Works' motion is granted in part and
denied in part.
Burgos is a black woman born in 1961. Defendant Southeast
Works is a not-for-profit agency that provides services for
adults with developmental disabilities and operates ten group
home locations in Western New York. Southeast Works employed
Burgos as a Residential Trainer at its group home facilities
from June 5, 2008, through May 21, 2012. Residential Trainers
provide instruction, supervision, and counseling to residents
and participate in maintenance and housekeeping activities.
2008 through June 2009
initially held a part-time Residential Trainer position at
Southeast Works' West Payne House location. Burgos
alleges that the environment at West Payne was racially
charged and sexually abusive and that her supervisors took no
action when she complained that her co-workers made racially
discriminatory comments. Burgos identifies Jennifer Tedesco
and Jill Ryzda, younger white females who also worked as
Residential Trainers, as the worst offenders at West Payne.
She alleges that Tedesco and Ryzda made numerous comments
that were racially offensive, including encouraging one of
the developmentally disabled clients to refer to Burgos and
other black women as “black nigger bitches.”
Burgos alleges that, when she informed a Residential
Manager of this behavior, he drew a picture of a
black man behind bars and gave it to the client rather than
taking any action to stop the behavior. Burgos sought a
scheduling change in late 2008 to distance herself from
Tedesco and Ryzda, but alleges that she did not give the true
reason for the requested change because she feared
further alleges that, in July 2009, Residential Manager
Jessica Cosgrove conducted a meeting at West Payne, in which
Cosgrove stated that the house was divided between white
staff and black staff, and that Tedesco was causing the
division. Burgos alleges that Tedesco was disruptive during
the meeting and, when Burgos complained about Tedesco's
behavior, Cosgrove said Burgos should leave.
this period (June 2008 through June 2009), Burgos alleges
both facially neutral and discriminatory comments and
actions. In addition to the examples given above, she also
• Tedesco stated she did not want to drive a client to
an appointment because there are too many black people in
• Another co-worker told Ryzda not to drive to Buffalo
because black men would want Ryzda because of her long blonde
• A male co-worker, whose hand had been dyed by a
baseball mitt, told Burgos that now he was as black as she
• A male co-worker told Burgos to come to his house
because he needs black friends now that there is a black
• A male co-worker rubbed his genitals on Burgos.
• Tedesco called Burgos' daughter (who is Muslim and
wears a veil) a “towel-head.”
2009 through December 2011
alleges that, because Cosgrove failed to correct the hostile
environment at West Payne, she again sought to change her
schedule. Burgos requested to move from part-time status to a
“relief” position on May 15, 2009, and began the
new position on July 1, 2009. Relief employees did not have
regular hours and were not assigned to a specific location,
but instead filled in when and where needed. As a relief
employee, Burgos worked at a number of Southeast Works'
other locations and alleges that she found discriminatory
environments in each of them.
the allegedly discriminatory comments and behavior were
directed at Burgos. For example:
• In summer 2010, a white, male co-worker asked Burgos
why black women have so much trouble with their hair and
whether it made her mad when he called the cupcakes they were
making “black cupcakes”.
• Later in 2010, a white co-worker told another
co-worker that she “better check [her] bank account,
” after giving Burgos her credit card to make a
purchase, which Burgos understood was a suggestion that
Burgos was likely to steal because she is black.
• In early 2011, Judith Shanley, CEO of Southeast Works,
told Burgos that white residents' families did not want
black employees caring for their family members.
• In February 2011, a white co-worker made a comment to
Burgos implying that only blacks live in inner-city
• Later in 2011, a co-worker, who had formerly worked as
a prostitute in Buffalo, told Burgos that men preferred her
over black prostitutes because she had long blond hair.
• In June 2011, a male co-worker suggested that
Southeast Works should hire “some young white
girls.” • In summer 2011, a younger co-worker told
Burgos that, due to Burgos' age, Burgos was working more
hours than she could handle, and that she was too old and
slow to work.
• In December 2011, a Senior Residential Trainer, David
Abston, asked Burgos, “Are you stupid? Do you know how
to use a computer?” when Burgos had trouble logging
onto Southeast Works' system.
• Also in December 2011, Abston referred to a group of
older women, which included Burgos, as the “hot flash
corner.” Around that same time, Abston also made sexual
comments to Burgos, telling her to “bend over, yeah,
bend over” and telling Burgos that he had to pay his
girlfriend for sex before she left him.
• A Residential Coordinator told a disabled resident
that he did not have to work with Burgos because Burgos was
old and invisible.
allegedly discriminatory incidents were overheard or reported
to Burgos by other employees. For example:
• A co-worker told Burgos that she had heard someone
call Burgos a “nigger.”
• In summer 2010, a Residential Manager told one of
Burgos' co-workers that she was a good color for a
biracial black girl.
• In 2011, a male co-worker asked a female co-worker:
“When are you going to give me some of that