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Dwyer v. Horne

United States District Court, E.D. New York

November 8, 2017

WINIFRED DWYER, Plaintiff,
v.
TIMOTHY O. HORNE, AS ACTING ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, [1] Defendant.

          OPINION AND ORDER

          NINA GERSHON, UNITED STATES DISTRICT JUDGE

         Plaintiff, Winifred Dwyer, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. ("Title VII"), alleging two claims against the Administrator of the General Services Administration ("GSA"), one for a hostile work environment and the other for retaliation. Defendant acknowledges that disputes of material fact exist regarding whether plaintiff was in fact subjected to a hostile work environment or retaliation and moves for summary judgment only on the grounds that: (1) plaintiff cannot sue GSA pursuant to Title VII because GSA was not plaintiffs employer; and (2) plaintiff failed to properly exhaust her claims prior to filing suit. For the reasons set forth below, defendant's motion is GRANTED.

         I. Facts

         A. Plaintiffs Hostile Work Environment and Retaliation Claims

         Plaintiff was a security guard in a federal office building in Manhattan. The building was managed by GSA, a federal agency, but plaintiff worked for a private security company, called G4S. On December 28, 2011, a GSA property manager named Steven Sarnecky approached plaintiff at her post near the metal detectors and pointed at her. Sarnecky ordered her to do a fullblown anal cavity search of a male entering the screening area.[2] Plaintiff alleges that this comment constituted sexual harassment and sex-based discrimination, as she was the only female employee working at or near the post at that time. Plaintiff refused to conduct the search, and Sarnecky walked to the elevator bank, which he knew would be out of view of the security cameras, and began making sexual gestures.

         Plaintiff filed a report documenting the harassment, as did other male guards working at the time who witnessed it. Thereafter, Sarnecky began visiting plaintiffs post daily, threatening to have her transferred, to cut her pay and cut her hours, and calling her various derogatory names. Eventually, Sarnecky came to her post and told her she was being transferred from her unarmed post at 201 Varick Street to an armed post at 26 Federal Plaza on his direct orders. This was a problem for plaintiff, because she had a paralyzed trigger finger from a previous injury and she would not be able to pass the firearms test. Her wages were cut and her hours were reduced at the new post.

         Sarnecky then had himself transferred to 26 Federal Plaza as well and began coming by plaintiffs new post. He told her that he was the one who orchestrated her transfer, cut her hours, and reduced her schedule. He said there would be further retaliation if she did not keep her mouth shut, and he used highly offensive language. Plaintiff asked her supervisors at ¶ 4S why her hours were being cut, and was told that it was done on Sarnecky's order. Plaintiff continued to complain to the EEO office at GSA, which was Sarnecky's employer, but nothing was done to abate the harassment. Plaintiff testified that Sarnecky again ordered her to be transferred, this time to Harlem, far from her home in Brooklyn, with a further reduction in hours and wages.

         B. GSA's Involvement in Plaintiffs Employment

         It is undisputed that plaintiff was hired and paid by a private company, G4S, not GSA. Plaintiffs position is that GSA was her joint, or constructive, employer, along with G4S. The relationship between the two entities is as follows: Plaintiff was hired as a Protective Security Officer ("PSO") in 2003 by HWA, a private corporation which provided security guard services at various federal buildings throughout New York City. HWA later became Wackenhut Services Incorporated, which later became G4S. Plaintiff was employed by G4S and its predecessor companies as a PSO from 2003 until 2013, when G4S lost the contract for PSO services in federal buildings. At no time was plaintiff directly employed by GSA or any federal agency.

         G4S and its predecessor companies were retained to provide protective services in certain federal buildings by the Federal Protective Service, which is presently a component of the Department of Homeland Security ("DHS").[3] Those buildings were managed by GSA, which is an independent federal agency that, among other things, constructs, leases, repairs, alters, and manages real property, such as federal office buildings. To recap, plaintiff was an employee of a private contractor, which was hired by DHS to provide security in a building managed by GSA.

         Formally, GSA had very little involvement with the Protective Security Officers.[4] GSA was not a signatory to the contract between the Federal Protective Service and G4S. Pursuant to that contract, G4S was to "provide and maintain all management, supervision, manpower, training, equipment, supplies, licenses ... pre-employment screening ... necessary to accomplish security guard services . . . ." Under the express language of the contract, G4S was the party responsible for management and oversight of all activities including the assignment of Protective Security Officers.[5] The contract between G4S and the Federal Protective Service includes a "Statement of Work, " which describes the general duties and performance requirements that G4S was required to provide under the contract. According to the Statement of Work, the Federal Protective Service (a component of DHS, not of GSA) issues post orders that describe the duties that Protective Security Officers are to perform at various posts. GSA is not mentioned in the Statement of Work.

         Despite the lack of formal authority, the parties dispute how much involvement GSA actually has in the day-to-day operations of Protective Security Officers. Defendant's position is that GSA cannot issue orders to Officers, cannot alter their duties, work locations, or hours, and has no authority to fire officers. In support of this position, defendant cites to: (1) the testimony of Francisco Lopez, plaintiffs G4S supervisor, who testified that a G4S supervisor would be the one to discipline Protective Security Officers and that GSA could not instruct security officers how to screen the visitors to a building; (2) the Statement of Work; (3) the testimony of David Segermeister, a GSA Director who testified that GSA, and specifically Steven Sarnecky, had no authority to influence the employment, duties, or hours of security officers; (4) the formal position descriptions for a GSA Building Manager, which do not include any supervision of security officers; and (5) the testimony of G4S project manager James Carbonaro, who testified that he believed the contract that G4S had was with Federal Protective Service, not GSA, and that he did not remember "anything that had to do with GSA." Defendant further points out that, in plaintiffs EEO complaint regarding Sarnecky, she stated that Sarnecky had given her an order to conduct a "full blown anal cavity search, " but also claimed Sarnecky did not have the authority to issue her a direct order.

         Plaintiff does not argue that the Statement of Work or the formal job descriptions, which give GSA no role in supervising, hiring, or firing security officers, are inauthentic. Plaintiffs position is simply that-regardless of the formal relationship between GSA, DHS, and G4S-GSA employees must have had authority, formal or otherwise, over plaintiffs hours and job location, because it was a GSA employee, Steven Sarnecky, who, by his own admission, had her transferred and her hours reduced to retaliate for her filing a complaint. She bases her conclusion both on Sarnecky's own statements to her that he was responsible for her transfer, [6] and statements by her supervisors at ¶ 4S that her hours were cut on Sarnecky's orders.[7] Plaintiff also testified that GSA employees would tell her to change posts, including to a post operating an elevator that was outside the scope of her post order and training, and can request that she be transferred or terminated.

         With regard to plaintiffs transfer, defendant contends that, pursuant to the contract between FPS and G4S, all G4S security posts were becoming armed posts, meaning that the officer who worked there needed to have, and be trained and certified to use, a firearm.[8] Defendant's version is that plaintiff was transferred to 26 Federal Plaza because her current post was becoming an armed post, and she was transferred along with 4 or 5 other unarmed PSO's to the last remaining location with unarmed posts. Defendant does not explain any subsequent transfer to Harlem, nor does it address any reduction in hours and wages.

         II. Procedural History

         Plaintiff originally brought this action against G4S, G4S employees James Carbonaro, Brian O'Connor, Ron Middleton, George Caraballo, "Sgt Barber, " and Renato Velati ("G4S defendants"); the head of GSA, which at the time was Michael Robertson but is now Timothy O. Home; and Janet Napolitano, as Secretary of DHS. GSA and DHS moved to dismiss for failure to state a claim, on the grounds that plaintiff had failed to timely file an EEO complaint regarding her claim. The federal defendants did not make the joint employer argument they make here, and in fact specifically conceded in their briefing papers that the question of ...


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