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Batten v. Global Contact Services, LLC

United States District Court, E.D. New York

June 22, 2018

JENNIFER BATTEN, Plaintiff,
v.
GLOBAL CONTACT SERVICES, LLC and DAVID KEYES, Individually, Defendants.

          OPINION AND ORDER

          NINA GERSHON UNITED STATES DISTRICT COURT

         Plaintiff Jennifer Batten brings this action against her former employer Global Contact Services, LLC ("GCS") and her former supervisor David Keyes ("Keyes"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. Admin. Code §§ 8-101 etseq., alleging a sexually hostile work environment, retaliation, and constructive discharge. Defendants now move for summary judgment on all of plaintiff s claims. For the reasons set forth below, Defendants' motion is granted in part and denied in part.

         STATEMENT OF FACTS

         The following facts are either undisputed or drawn from evidence supporting plaintiffs version of events. Batten began working for defendant GCS as a Customer Service Associate in the Travel Services Department on or about December 2, 2013. GCS maintains an Access-A-Ride call center where it employs approximately 600 employees. Batten's duties included answering customer calls and arranging appointments for customers to be picked up by the Access-A-Ride service. Defendant Keyes, a Customer Care Team Leader in the Travel Services Department, supervised Batten from approximately May 2014 through at least November 18, 2014. Prior to November 18, 2014, Batten and Keyes had a "civil" working relationship that, while shy of "friendly," included occasional joking with one another. Keyes often referred to Batten and other female GCS employees as "sunshine," a term that Batten did not find offensive. Batten and Keyes had never had any physical contact, nor any communication outside of work.

         The November 18, 2014 Incident

         On the morning of November 18, 2014, Batten was seated at her cubicle, on the phone with a customer via headset. After passing in front of Batten's desk, Keyes circled around the short cubicle wall surrounding it and entered her cubicle from behind her. He then hugged Batten from behind while she remained seated in her chair. Batten "never saw him coming [and] only just felt something." (Batten Dep. at 126:13-17.) She felt "someone touch [her] on [her] back, like a press and slow motion of... a squeeze and a hug." (Id. at 127:2-5.) Defendant Keyes locked his arms around Batten's body "underneath [her] breast and lifted [her] and squeezed." (Id. at 151:19-20.) The hug lasted for more than ten seconds, during which Keyes' cheek pressed against hers, his chin over her shoulder. (Id. at 152:2-7; 244:12-17.) Keyes' forearms made contact with Batten's breasts, but he did not grab her breasts with his hands. (Id. at 244:9-11.) In response to Keyes' hug, plaintiff turned around and stood up. Another GCS employee witnessed the hug and shouted, "David, I saw you." (Id. at 129:17.) Keyes responded that the hug was "just to say hi," and then walked away. (Id. at 126:21-129:22.)

         The Aftermath of the November 18, 2014 Incident

         Later that day, Batten complained to the GCS Human Resources department ("H.R."). She told Sharon Shirley-Brown, the H.R. Director, that she had had an "incident" with another GCS employee, but refused to provide any further information, including the identity of the employee or what had happened. Shirley-Brown encouraged Batten to give her further information so that she could handle her report appropriately. Following this conversation with Ms. Brown, Batten fell into crying fits, unable to "get [herself] together." (Batten Dep. at 144:15-25.) She called her mother from the bathroom to describe what happened. After composing herself, Batten returned to H.R., submitted a handwritten statement to Human Resources Assistant Joesan Stewart describing the incident and identifying Keyes, and proceeded to leave work for the day.

         The following day, Batten spoke with Frank Camp, the Center Director, about the incident. Camp informed Batten that she would be hearing from Damaris Merritt, GCS' Travel Services Director, and that Merritt would make the "decision." Two days later, on November 21, Merritt called a meeting with Batten and Keyes in her office. Batten was visibly upset during this meeting, and repeatedly asked "why [Keyes] would do something like that to [her]." (Batten Dep. at 170:20-171:7.) Keyes apologized, saying that he "did not know what he was thinking" and that it was "stupid on [his] part." (Id. at 170:5-13.) Keyes claimed that he had thought that they had become friendly and that he had misinterpreted Batten's morning greetings of "purring" and scratching gestures at him as a sign of that friendship. Keyes was not disciplined as a result of the incident.

         Aside from this meeting, Keyes' only interactions with Batten after the incident included saying "hi" to her one day as she walked to the restroom, inquiring of a colleague about Batten's whereabouts, calling her office telephone line on one occasion to speak about her schedule, and saying "Happy Thanksgiving" to everyone in the area of Batten's desk before the holiday weekend. There were "no other occasions during Batten's employment at GCS upon which Keyes sexually harassed Batten, touched her in any manner that was unwelcome, or otherwise made sexually harassing comments to her." (PL's Response to Defs' R. 56.1 Stmnt. at ¶ 24.)

         Nevertheless, in the weeks following the hug, the "entire environment . . . just became awkward. It was uneasy. It wasn't the same." (Batten Dep. 180:14-16.) Plaintiff felt that Director Merritt was "livid" with her for complaining of the sexual harassment and that Merritt attempted to diminish the seriousness of the incident. For example, Merritt had told Batten that Keyes would no longer be her supervisor, but never actually replaced him. According to an affidavit submitted by the Human Resources Assistant, Josean Stewart, a friend of Keyes named Elton Cunningham became plaintiffs supervisor in name only. In actuality, Keyes continued to supervise Batten and retained control over her employment, with the only difference being that he was not supposed to interact with plaintiff at work. Keyes was still authorized to cause her to be written-up and/or disciplined.

         On December 2, 2014, Plaintiff met with an attorney who had her execute a form entitled "Charge of Discrimination." In the section of the form which prompts the complainant to identify the "Cause of Discrimination," Plaintiff or her attorney checked only the box alleging sex discrimination. The box marked "Retaliation" was not checked. Although the form solicits "particulars," the person completing the form provided no details on it but referred the reader to an "attached statement of facts." The statement of facts, however, was not prepared until January 23, 2015, more than six weeks after Plaintiff left GCS. The statement of facts, like the charge, contains no reference to retaliation. The charge was received by the EEOC on January 29, 2015. Two months later, on March 31, 2015, the EEOC issued a Dismissal and Notice of Right to Sue letter, indicating that it had conducted an investigation and was unable to conclude from the information collected that there had been a violation of any statutes.

         Plaintiff's Constructive Discharge

         Approximately three weeks after the incident and five days after she executed her EEOC charge with her attorney, on December 7, Batten received a Notice of Tardiness and Corrective Counseling Form. This notice indicated five "tardies," spanning from November 3 through November 14, 2014. Id. According to Plaintiff, four out of the five tardies listed were for being late to her shift by five minutes or less. Id. According to GCS' official Tardiness Policy, a fifth tardy results in "termination following a review by the human resources department." Batten refused to sign this tardiness notice, explaining that, from a prior supervisor, she understood there to be a five-minute grace period after the start of her shift during which she would not be marked late. Two days after receiving this tardiness notice Batten submitted a letter of resignation to Camp, leaving her employment at GCS. Her letter of resignation stated that:

The work conditions and treatment following my prior complaint on November 18, 2014, has resulted in discriminating, unreasonable, and unbearable working terms. I've encountered retaliation for speaking up against David Keyes and I will not be subject to this type of work environment any longer. This work environment has left me emotionally, and mentally distressed. Based on the facts above I'm unable to continue working under such problematic work conditions.

(Decl. of Joshua P. Frank in Opp. to Defs.' Mot. ("Frank DecL") at Ex. A.)

         After receiving plaintiffs letter of resignation, GCS prepared an "Associate Termination/Resignation Form," which is dated December 9, 2014. (Frank Decl. Ex B.) The form still lists David Keyes as plaintiffs supervisor, lending further support to plaintiffs contention that GCS never transferred plaintiff to a new supervisor after she complained about Keyes's conduct.

         On April 28, 2015, Plaintiff commenced this action by filing a complaint containing a Title VII hostile work environment claim and four claims alleging violations of various subsections of the NYCHRL. In October 2015, Plaintiff amended her Complaint, on consent, to add a claim alleging Title VII retaliation and a claim alleging a fifth NYCHRL provision. Additionally, as discussed below, while not explicitly set forth as a legal claim, the amended ...


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