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finding that the plaintiff's claim for discrimination based on sex under Title VII was actionable because the comments "focused on the sexual conduct of plaintiff as a man."
Summary of this case from Doe v. Southeastern Greene School DistrictOpinion
99 Civ. 924 (AGS)
April 28, 2000
OPINION AND ORDER
Plaintiff Jose Carrasco filed this action on February 8, 1999 against his former employer, Lenox Hill Hospital, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"). Currently before the Court is defendant's motion for summary judgment. For the reasons set forth below, the motion is granted.
FACTUAL BACKGROUND
A. The Parties
Plaintiff Jose S. Carrasco is a resident of the City of New York. (Complaint ("Compl.") ¶ X) Defendant Lenox Hill Hospital (the "Hospital" or "defendant") is a non-profit corporation organized under the laws of the State of New York. (Defendant's Statement in Compliance with Rule 56.1 ("Def.'s 56.1") ¶ 1.) The Hospital's mission is to provide health care services to the Manhattan community. (Id.) B. Plaintiff is Hired at Lenox Hill Hospital
On January 5, 1997, defendant hired plaintiff as a part-time dietary worker in the Hospital's Nutrition Services Department. (Plaintiff's EEOC Charge ("EEOC Charge"), Ex. to Affidavit of Jose Carrasco ("Pl's Aff."); Def.'s 56.1 ¶ 8.). In that position, plaintiff worked a flexible schedule and reported to a number of different supervisors. (Deposition of Jose Carrasco ("Pl's Dep.") at 12-13.) Two of those supervisors were Peter Hirschmanner, the assistant director of the department, (Affidavit of Peter Hirschmanner ("Hirschmanner Aff") ¶¶ 1-2), and Norman Smith (Affidavit of Norman Smith ("Smith Aff").)
C. Plaintiff's Problems in the Nutrition Services Department and His First Leave of Absence
Plaintiff contends that he was subject to various forms of harassment from the beginning of his employment with the Hospital. (Pl.'s Dep at 27; Pl.'s Aff. ¶ 1.) On June 26, 1997, plaintiff complained to Mr. Hirschmanner that his co-workers had made fun of him on several occasions, specifically by calling him a thief. (Pl.'s Aff. ¶¶ 3-9; Hirschmanner Aff. ¶ 5.) Mr. Hirschmanner talked to plaintiff, suggesting that he confront the individuals who were allegedly talking about plaintiff, and ask them why they were making fun of him. (Pl.'s Aff. ¶ 11.) According to defendant, Mr. Hirschmanner also provided plaintiff with documentation concerning the Hospital's Employee Assistance Program, and suggested that plaintiff contact the program's office. (Hirschmanner Aff. ¶ 5.)
Local Rule 56.1 of the District Court of the Southern District of New York requires inter alia that:
"(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party.
(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).
Local Rule 56.1(b), (c) and (d).
While pro se plaintiff has not formally served a Rule 56.1 statement, his affidavit contains statements of disputed fact, albeit without citations to admissible evidence in the record. The Court will treat these statements as satisfying plaintiff's requirements under Rule 56.1. See Balut v. Loral Elec. Sys., 988 F. Supp. 339, 343 (S.D.N.Y. 1997) (noting that although plaintiff's failure to comply with Rule 56.1 is grounds for deeming admitted the facts contained in defendant's Rule 56.1 statement, the Court is not required to do so).
In late July 1997, plaintiff reported to Mr. Hirschmanner that one of his co-workers, Isolyn White, had called him a "Roonie," a term which plaintiff believed was a slang term for thief. (Id. ¶ 6.) Mr. Hirschmanner investigated the matter and obtained a written statement from Ms. White, who stated that she had said "Good morning, honey" to plaintiff. (Id.). Mr. Hirschmanner concluded that plaintiff misunderstood Ms. White, and was concerned that plaintiff believed his co-workers were harassing him. (Id.)
During this time, plaintiff never complained to defendant that his co-workers' comments were of a sexual nature, or that he believed he was subject to sexual harassment. (Hirschmanner Aff. ¶ 7; Affidavit of Mary Ann Bodee-Isidore ("Bodee Aff") ¶ 8.)
In January 1998, the nature of the alleged harassment changed. In particular, plaintiff asserts that on January 28, 1998, an older male co-worker fixed plaintiff's shirt collar as plaintiff left the hospital to walk home. (Pl.'s Aff ¶ 13; Pl.'s Dep. at 30-31; Def.'s 56.1 ¶ 25.) Plaintiff claims that when he returned to work, his co-workers stated that the older man had tried to kiss plaintiff, insinuating that plaintiff was homosexual. (Pl.'s Aff. ¶ 13; Def.'s 56.1 ¶ 25.) Further, plaintiff asserts that at about the same time, a woman working in the departmental office said "Hi, daddy" to plaintiff, which plaintiff interpreted as an insinuation that he was homosexual. (Pl.'s Dep. at 34.) Plaintiff did not report either incident to anyone in the Human Resources Department, (Pl.'s Dep. at 38), or to his supervisors. (Smith Aff. ¶ 14; Hirschmanner Aff. ¶ 7; Bodee Aff. ¶ 9.)
Plaintiff further contends that in April 1998, a number of his co-workers began to discuss plaintiff's sexual relations with his wife. (Pl.'s Aff. ¶¶ 15-16; Def.'s 56.1 ¶ 31.) In particular, he asserts that his co-workers told him that they had watched a videotape of plaintiff having sexual relations with his wife, and that Mr. Hirschmanner had retained a copy of the videotape. (Pl.'s Aff. ¶ 17; Def.'s 56.1 ¶ 32.) He also claims that his co-workers discussed the alleged videotape in the presence of plaintiff. (Pl.'s Aff. ¶¶ 18-20; Def.'s 56.1 ¶ 32.) Plaintiff mentioned this incident to one of his supervisors, Mr. Smith, but did not claim that he was subject to sexual harassment. (Pl.'s Aff. ¶ 23; Smith Aff. ¶ 5.) According to plaintiff, Mr. Smith scheduled a meeting with the co-worker who allegedly told plaintiff about the videotape, and then failed to take action regarding plaintiff's case. (Pl.'s Aff. ¶¶ 22-23.) Defendant asserts that plaintiff merely told Mr. Smith about the videotape, but refused to provide enough details so that Mr. Smith could investigate the allegations. (Def.'s 56.1 ¶¶ 56-59; Smith Aff. ¶ 5.)
On April 13, 1998, plaintiff protested to his Union, Local 1199 of the National Health and Human Services Employees Union (the "Union"). (Pl.'s Aff. ¶ 24; Pl.'s Dep. at 11.) The Union referred plaintiff to the Union's employee assistance program. (Bodee Aff. ¶ 10.) He was then referred to a social worker who recommended that plaintiff undergo a psychiatric evaluation. (Pl.'s Aff. ¶¶ 25-26.) Upon the recommendation of Dr. Rosen, a psychiatrist, the Hospital approved plaintiff for a medical leave of absence in late April 1998. (Bodee Aff. ¶ 10.) Plaintiff took an extended leave of absence from April 20, 1998 to mid-September 1998. (Bodee Aff. 111.)
Plaintiff's leave was extended beyond June 1998 by Dr. Rosen because the doctor believed that plaintiff was not mentally fit to return to work. (Pl.'s Dep. at 55-57, Exs. 3-4; Def's 56.1 ¶ 51.) On June 28, 1998, plaintiff wrote to the Hospital's Compliance Director, reporting that since April 1998 plaintiff has been subjected to verbal abuse of a sexual nature by his co-workers. (Ex. 3 to Bodee Aff; Pl.'s Aff. ¶ 34; Def's 56.1 ¶ 54.) Two days later, plaintiff wrote a similar letter to the Union. (Letter from plaintiff to Union dated June 30, 1998, Ex. to Pl.'s Aff) At approximately the same time, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), asserting he had been sexually harassed by his co-workers and insisting that he was fit to return to work. (Pl.'s Dep. at 75; Exhibit 4 to Bodee Aff.) In particular, plaintiff claimed that he had been subject to a "hostile work environment," consisting of "slurs and innuendos of a sexual nature," in violation of Title VII. (EEOC Charge.) EEOC declined to prosecute the charge itself, and defendant determined that there was no merit to the allegations. (Def.'s 56.1 ¶¶ 61-62.)
In response to plaintiff's request to be returned to work, defendant scheduled plaintiff for an appointment with doctors at the Hospital's Personnel Health Services department. (Pl.'s Aff. U 35; Def's 56.1 ¶ 63; Bodee Aff. 16.) After examining plaintiff, the doctors determined that they could not authorize plaintiff to return to work without plaintiff receiving medical clearance based on an independent psychiatric evaluation. (Pl.'s Aff. ¶ 36; Def.'s 56.1 ¶ 64; Bodee Aff. ¶ 16.) Plaintiff's Union designated a new psychiatrist, Dr. Perez-Martinez, who diagnosed plaintiff with a "delusional disorder," noting that plaintiff "has delusions of persecution aimed at other fellow employees." (Pl.'s Aff. 37; Pl.'s Dep. at 175-77, Ex. 18; Def.'s 56.1 ¶ 69.) Nevertheless, the doctor authorized plaintiff to return to work in mid-September 1998. (Pl.'s Dep. 69-71, Ex. 9; Def.'s 56.1 ¶ 70; Pl.'s Aff. ¶¶ 42-43.)
D. Plaintiff's Problems After His Reinstatement and His Second Leave of Absence
Plaintiff returned to work on September 18, 1998. (Pl.'s Aff. ¶ 43; Pl.'s Dep. at 71; Def.'s 56.1 ¶ 71.) Immediately upon his return, plaintiff had problems with his co-workers. (Pl.'s Aff. ¶ 44; Pl.'s Dep. at 71, 177.) According to plaintiff, his co-workers began to tease and joke about his psychiatric treatment, but they no longer made any negative comments about his sexual relations with his wife. (Pl.'s Dep. at 71-74, 177-78).
On October 6, 1998, plaintiff reported to Norman Smith that one of plaintiff's co-workers, Saadik Desane, came into the kitchen where plaintiff was, began cursing at plaintiff, and tried to throw a knife at plaintiff. (Pl.'s Dep. at 95-97; Smith Aff. ¶ 8.) At a meeting with Mr. Hirschmanner, Mr. Desane stated that he and plaintiff had engaged in a verbal dispute, and that Mr. Desane had a butter knife in his hand. (Hirschmanner Aff. ¶ 13.) Mr. Hirschmanner stated that Mr. Desane denied that he threatened plaintiff. (Id.) Mr. Hirschmanner also spoke with Yves Delbrun, a witness to the incident, who stated that plaintiff had been yelling at Mr. Desane, that Mr. Desane largely ignored plaintiff, and that there had been no threat by Mr. Desane. (Id. ¶ 15.) However, plaintiff contends that Mr. Desane admitted to threatening plaintiff, and advised Mr. Hirschmanner to ignore plaintiff because plaintiff was crazy. (Pl.'s Aff. ¶ 46.) Neither party indicated that the incident involved threats of a sexual nature, or involved any sexual comments. (Id.: Pl.'s Dep. at 180-81; Letter written by plaintiff to Hospital dated October 6, 1998, Ex. to Pl.'s Aff.)
On October 7, 1998, plaintiff reported to Mr. Smith that another co-worker and Union delegate, Victor Hammond, had threatened him. (Pl.'s Dep. at 104-108, 188-89; Def.'s 56.1 ¶ 91.) Specifically, plaintiff contends that Mr. Hammond threatened to have him placed on another leave of absence for not reporting the knife incident, in order to avoid problems with the Union. (Pl.'s Aff. ¶¶ 52, 54; Pl.'s Dep. at 104-108, 188-89; Def.'s 56.1 ¶ 91.) Plaintiff also contends that shortly thereafter, plaintiff overhead Mr. Hammond say "I see you outside" to another employee, a comment that plaintiff perceived as a threat to him. (Pl.'s Dep. at 109; Def.'s 56.1 ¶¶ 92-93.) Specifically, plaintiff interpreted this comment to mean that Mr. Hammond would "make sure to put me in the street." (Pl.'s Aff. ¶ 57.) After a brief investigation of the incident conducted by Ms. Bodee-Isidore, director of Employee and Labor Relations, plaintiff was directed to go to see a doctor in the Hospital's Health Services department. (Pl.'s Aff. ¶¶ 62-63; Def.'s 56.1 ¶¶ 101-106.) Plaintiff was subsequently evaluated by two physicians, who placed plaintiff on a seven-day medical leave of absence. (Pl.'s Dep. at 121-22, Ex. 11.) Plaintiff was told he could not return to work without receiving medical clearance from Dr. Perez-Martinez. (Id. at 122; Pl.'s Aff. ¶ 70.)
E. Plaintiff's Problems During His Second Leave of Absence and His Subsequent Termination
On October 13, 1998, plaintiff returned to the Hospital and spoke with one of his co-workers in the locker room. (Id. ¶ 127-28.) After this conversation, the worker complained to the Human Resources Department that plaintiff said he was thinking about "coming to shoot somebody." (Bodee Aff. ¶ 26, Ex. 6; Letter from Mary-Ann Bodee-Isidore to plaintiff dated October 16, 1998, Ex. 13 to Pl.'s Dep.) On October 14, 1998, defendant extended plaintiff's medical leave to allow him to get additional medical treatment. (Pl.'s Aff. ¶ 71; Bodee Aff. ¶ 27.) By the end of November 1998, plaintiff's failure to follow the directives of the Health Services Department or to submit any documentation that would allow a further period of absence prompted defendant to terminate plaintiff's employment. (Pl.'s Dep. at 138-39, Ex. 14; Bodee Aff. ¶ 28.)
Following his termination, plaintiff contacted his Union and filed a grievance regarding his termination. (Pl.'s Dep. at 138-39; Bodee Aff. ¶ 29.) At the grievance meeting to discuss plaintiff's termination, plaintiff admitted that he had failed to comply with the directives of the Health Services Department. (Bodee Aff. ¶ 29.) Defendant denied the grievance and upheld the termination. (Pl.'s Dep. at 142-43, Exs. 15-16.) Plaintiff unsuccessfully sought to exercise his right to appeal his termination to the Hospital's Chapter Hearing and Appeals Board. (Letter from Union to plaintiff dated January 5, 1999, Letter from plaintiff to Union dated January 8, 1999, and Letter from Union to plaintiff dated June 11, 1999, Exs. to Pl.'s Aff.)
On July 30, 1999, EEOC issued plaintiff a right to sue notice, permitting plaintiff to bring his claim in federal court. (Pl.'s Aff. ¶ 79.) Plaintiff subsequently filed this sexual harassment hostile work environment action. Plaintiff claims that he was sexually harassed by his co-workers at the Hospital, and that there was a conspiracy among defendant's managers and plaintiff's co-workers whereby the managers paid the co-workers to "keep quiet in connection to (sic) the actual truth about [plaintiff's] whole case." (Complaint; Pl.'s Aff. ¶¶ 79-82; Ex. 17 to Pl.'s Dep.; Def.'s 56.1 ¶¶ 33-34.) Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56 ("Rule 56").
DISCUSSION
I. Summary Judgment StandardA district court may grant summary judgment only if it is satisfied that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, and all inferences and ambiguities are resolved in favor of the party against whom summary judgment is sought. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994) (citations omitted). A dispute about a material fact is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, supra, 477 U.S. at 248.
If the moving party meets its burden, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. See Kolp v. New York State Office of Mental Health, 15 F. Supp.2d 323, 326 (W.D.N.Y. 1998). When reasonable minds could not differ as to the import of the proffered evidence, then summary judgment is proper. See Anderson, supra, 477 U.S. at 250-52; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Moreover, "mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996): see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (noting that "[t]o allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases");cf. Hollander v. American Cynamid Co., 172 F.3d 192, 198 (2d. Cir. 1999) (noting that a court may "strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements").
In employment discrimination cases, courts must proceed cautiously in considering a motion for summary judgment. The Second Circuit has directed that trial courts "[b]e especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); cf. Gallo, supra., 22 F.3d at 1224 ("Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination."). Such caution is particularly called for in sexual harassment cases, where questions of state of mind are enmeshed in complicated fact scenarios rife with disagreement. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (recognizing that summary judgment may be inappropriate in sexual harassment cases where fact questions persist as to whether the conduct at issue amount to sexual harassment); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998) (noting same and that "summary judgment should be used 'sparingly' when, as is often the case in sexual harassment claims, state of mind or intent are at issue);DiLorenzo v. Atlantic Paratrans, Inc., 926 F. Supp. 310, 314 (E.D.N.Y. 1996) (finding that determination of hostile work environment is "the sort of issue that is often not susceptible of summary resolution"). Even where the underlying facts are undisputed, that the facts are undisputed does not automatically mandate summary judgment; rather summary judgment is appropriate only where application of the law to those undisputed facts will reasonably support only one ultimate conclusion." Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 437-38 (2d Cir. 1999).
II. Hostile Work Environment Sexual Harassment Claim
Title VII provides inter alia that "[i]t shall be unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition covers more than "terms" or "conditions" in the narrow contractual sense, Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998), and reaches beyond "economic" or "tangible" discrimination to all verbal or physical harassment that evidences disparate treatment in the employment setting. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Title VII requires a claimant to file a charge of discrimination with EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged act of discrimination, or within 30 days after receiving notice that the state or local agency has terminated the proceedings, whichever is earlier. See 42 U.S.C. § 2000e-5(e)(1); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). If EEOC does not bring a civil action against the respondent, and has not entered into a conciliation agreement with respondent, the claimant may file a civil action against the respondent in federal district court. See 42 U.S.C. § 2000e-5(f).
A plaintiff seeking relief against an employer for sexual harassment in the workplace can proceed under two theories: quid pro quo harassment and hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989). Plaintiff in this case has based his claim only on the latter. In order to be actionable, a hostile environment sexual harassment claim must focus on behavior related to the plaintiff's gender. See Oncale, supra, 523 U.S. at 80-81 (noting that plaintiff must always prove that the conduct at issue actually constituted discrimination "because of . . . sex");Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citing Meritor, supra, 477 U.S. at 63-66; Cosgrove v. Sears Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993)). In order to succeed on his or her claim, a plaintiff must demonstrate two things: (i) that the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Harris, supra, 510 U.S. at 21; and (ii) "that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (citing Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995): see also Meritor, supra, 477 U.S. at 66 (discussing first prong).
The EEOC Guidelines on Discrimination Because of Sex ("EEOC Guidelines") define sexual harassment as occurring when (1) submission to [unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature] is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment, 29 C.F.R. § 1604.11 (a) (emphasis added). Although the Guidelines are not controlling authority, they have provided substantial assistance to courts in this traditional area of agency expertise. See, e.g., Meritor, supra, 477 U.S. at 65.
Whether the environment may be considered sufficiently hostile or abusive to support such a claim is to be measured by the totality of the circumstances. See Harris, 510 U.S. at 23. Courts must consider a variety of factors including the frequency and severity of the discriminatory conduct, whether such conduct is physically threatening or humiliating, or merely an offensive utterance, and whether the conduct unreasonably interferes with the plaintiff's work performance. See id; Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Williams v. County of Westchester, 171 F.3d 98, 100 (2d Cir. 1999). These factors must be evaluated from an objective and subjective perspective. See Harris, 510 U.S. at 21-22. To satisfy the objective component of the analysis, the conduct must be offensive or pervasive enough to create an environment that a reasonable person would find hostile or abusive. See id.; Oncale, supra, 523 U.S. at 81 (noting that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances'");Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997). Similarly, the victim must actually perceive his or her employment environment as abusive. See Harris, supra, 510 U.S. at 21-22. A recurring point in the opinions treating hostile work environment claims is that "'simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.' These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a 'general civility code.'" Faragher, supra, 524 U.S. at 788 (citations omitted).
In order to satisfy the second prong, a plaintiff must establish a basis for the employer's liability rooted in common law agency principles. See Meritor, supra, 477 U.S. at 72; Gallagher, supra, 139 F.3d at 347. When the harasser is a supervisor, the employer is presumed to be absolutely liable. See Faragher, supra, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (same). However, when the harassment is attributable to a co-worker, rather than a supervisor, as is the case here, the employer will be held liable only for its own negligence. See Faragher, supra, 524 U.S. at 799-804;Distasio, supra, 157 F.3d at 63. The predicate negligence can be established if "the employer provided no reasonable avenue for the complaint, or [the] employer knew (or should have known) of the harassment but unreasonably failed to stop it. If the evidence creates an issue of fact as to whether an employer's action is effectively remedial and prompt, summary judgment is inappropriate." Gallagher, supra, 139 F.3d at 347-48 (citations omitted). III. Plaintiff Has Failed to Raise a Prima Facie Case of Sexual Harassment A. Plaintiff Has Not Demonstrated a Hostile Work Environment
The differences between the two standards of employer liability are pertinent here. Under the rule set forth by the Supreme Court inFaragher, an employer is subject to vicarious liability for actionable discrimination caused by a supervisor. However, the employer is not "automatically" liable; rather, the employer may raise an affirmative defense that looks to the reasonableness of the employer's conduct in seeking to prevent and correct harassing conduct and to the reasonableness of the employee's conduct in seeking to avoid harm.See Faragher, supra, 524 U.S. at 804, 807-08. In its submission, defendant supports its argument for summary judgment by arguing that it has an affirmative defense under Faragher. (Def.'s Mem. at 19-24.) However, the Faragher standard is inapplicable to this case, because the alleged sexual harassment was committed by plaintiff's co-workers, who held no positions of supervisory authority in the Hospital. Nevertheless, the Court will consider some of the defendant's arguments related to the affirmative defense in considering plaintiff's hostile work environment claim, because the test for an employer's reasonableness under Faragher is similar to that of the applicable negligence standard. See Faragher, supra, 524 U.S. at 807-08; Gallagher, supra, 139 F.3d at 347-48.
Plaintiff alleges a series of incidents in his complaint and his opposition papers that form the basis of his hostile environment sexual harassment claim:
(i) Comments by co-workers throughout 1997 that implied plaintiff was a thief;
(ii) Two sets of acts in January 1998 in which his co-workers allegedly insinuated that plaintiff was a homosexual: (1) comments by co-workers that an older co-worker had tried to kiss plaintiff; and (2) a greeting from a female co-worker in which the co-worker said "Hi, Daddy" to plaintiff;
(iii) Comments by co-workers in April 1998 concerning plaintiff's sexual relations with his wife, related to an alleged videotape of plaintiff having sexual relations with his wife;
(iv) Comments by co-workers in September 1998 related to plaintiff's psychiatric treatment, which insinuated that plaintiff was crazy;
(v) An alleged knife attack on plaintiff by one of his co-workers; and
(vi) A conspiracy among Hospital management and plaintiff's co-workers as part of which the co-workers were paid to keep silent regarding events related to plaintiff's case. (Complaint; Pl.'s Aff. ¶¶ 3-9, 13-20, 44, 46, 79-82; Pl.'s Dep. at 76, 149-152; Def.'s 56.1 ¶ 132; Def.'s Mem. at 17-18.)
1. Acts Unrelated to Sexual Harassment
Courts in this circuit have consistently dismissed sexual harassment and gender discrimination claims when the alleged harassment did not relate to the plaintiff's gender. See, e.g., Galdieri-Ambrosini, supra, 136 F.3d at 290-91 (rejecting gender discrimination claim because plaintiff did not establish that her complained-of working conditions were based on her gender); Phillips v. Merchants Ins. Corp., 3 F. Supp.2d 204, 208 (N.D.N.Y. 1998) (finding that supervisor's comments to male employee, while offensive, when examined in context appeared more hostile and angry than sexual, and that behavior that is immature, nasty, or annoying, without more, is not actionable as sexual harassment);Johnson v. Tower Air, 149 F.R.D. 461, 469 (E.D.N.Y. 1993) (dismissing plaintiff's hostile working environment sexual harassment claim on summary judgment because the offensive comments were hostile and angry, but not sexual); Porras v. Montefiore Medical Center, 742 F. Supp. 120, 126-27 (S.D.N.Y. 1990) (granting summary judgment to employer on sexual harassment claim because plaintiff failed to demonstrate that complained-of conduct was based on gender, and noting that "unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a Title VII sex discrimination claim");Fair, supra, 742 F. Supp. at 156 (dismissing sexual harassment claim because plaintiff failed to prove that the alleged harassment was "based on her sex").
In this case, the majority of the alleged harassment was clearly unrelated to plaintiff's gender. In particular, the 1997 comments implying that plaintiff was a thief, the fall 1998 comments implying that plaintiff was crazy, the knife attack by Mr. Desane, and the conspiracy of silence among plaintiff's co-workers are neither related to gender nor remotely sexual in nature. Moreover, plaintiff does not counter defendant's contention that these actions are inapposite to a sexual harassment claim, but simply asserts them as part of his sexual harassment claim. (Pl.'s Aff.) Accordingly, the Court finds that these allegations cannot form the basis of sment claim.
2. Acts Related to Sexual Harassment
Viewing the facts set forth in the record in the light most favorable to plaintiff, two sets of acts involving plaintiff's co-workers are related to sexual harassment: the January 1998 comments implying that plaintiff was homosexual, and the April 1998 comments related to plaintiff's sexual relations with his wife. Defendant argues that these events cannot satisfy the first prong of the sexual harassment test because they are "insufficient as a matter of law to constitute a severe and pervasive hostile work environment." (Def.'s Mem. at 19.) The Court agrees.
Title VII does not bar claims of discrimination "because of sex" merely because plaintiff and defendant, or the person charged with acting on behalf of defendant, are of the same sex. See Oncale, supra, 523 U.S. at 79. The decisive consideration in assessing the validity of a sexual harassment claim is whether "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 80 (internal quotation marks omitted). However, discrimination based on sexual orientation, as opposed to sex, is beyond the purview of Title VII. See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084-85 (7th Cir. 1984); Higgins v. New Balance Athletic Shoe, 194 F.3d 252, 259 (1st Cir. 1999);Simonton v. Runyon, 50 F. Supp.2d 159, 162 (E.D.N.Y. 1999). In this case, the January 1998 comments may have been based only on sexual orientation, because, according to plaintiff, they implied that plaintiff was a homosexual. However, construing the evidence in the light most favorable to the plaintiff, these comments may have been made "because of sex." First, the comments focused on the sexual conduct of plaintiff as a man. Second, these were comments to which other similarly-situated female members of the Hospital staff were likely not exposed, thereby indicating the possibility of disparate treatment. Third, the fact that several of plaintiff's co-workers knew he was married reduces the likelihood that the co-workers intended their comments to be related to plaintiffs sexual orientation. (Pl.'s Aff. ¶ 16; Def.'s 56.1 ¶ 31); see Fair v. Guiding Eyes For The Build, Inc., 742 F. Supp. 151, 156 (S.D.N.Y. 1990) (noting that "comments of a homosexual nature directed at a man . . . might be considered to be based on sex" and therefore actionable under Title VII); Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1379 (8th Cir. 1996) (finding triable issue where, inter alia, male plaintiff alleged sexual harassment by male co-workers that included physical assaults and comments insinuating that plaintiff was homosexual); Johnson v. Community Nursing Servs., 932 F. Supp. 269, 273 (D. Utah 1996) ("The fact that sexual preference may influence the sexual harassment should not be reason to diminish, let alone invalidate, the fact that a supervisor discriminated against an employee because of the employee's sex.").
Regardless of whether plaintiff's sexual harassment allegations are actionable under Title VII, plaintiff still bears the burden of demonstrating that the alleged harassment was sufficiently severe or pervasive to create an objectively hostile or abusive work environment. The Court finds that plaintiff has not met this burden. The January 1998 comments were isolated utterances, which were neither severe nor physically threatening. See Williams, supra, 171 F.3d at 100;see also Faragher, supra, 524 U.S. at 788. While plaintiff interpreted these comments as offensive, plaintiff has not demonstrated, and the Court does not find, that a reasonable person in plaintiff's position would find them offensive. See Harris, supra, 510 U.S. at 21-22. The alleged comments neither specifically stated that plaintiff was homosexual, nor described and attributed any acts to plaintiff that would lead a reasonable observer to that conclusion. Title VII is not a "general civility code," Faragher, supra, at 788, and was not promulgated to redress the ills complained of by plaintiff here. See Legnani v. Alitalia Linee Aeree Italiane, 1997 WL 642556, at *3 (S.D.N. Y.) (finding no hostile work environment where the alleged incidents "did not involve physical contact, verbal abuse or unwanted sexual advances"); cf. Kodengada v. International Business Machines Corp., 2000 WL 288244, at *7 (S.D.N.Y.) (finding no hostile environment where encounters demonstrated only clash of personalities, rather than a discriminatory animus); Valdez v. Mercy Hospital 961 F.2d 1401, 1403 (8th Cir. 1992) (personality conflicts between co-workers and plaintiff did not rise to the level or severity or pervasiveness necessary to demonstrate a discriminatorily hostile work environment).
Numerous comments were purportedly made by plaintiff's co-workers in mid-April 1998 concerning a videotape depicting plaintiff's sexual conduct with his wife. These comments may have been made "because of sex," as they were of a sexual nature and related directly to a male's sexual behavior. The Court therefore entertains evidence of these claims as part of its consideration of plaintiff's sexual harassment claim. Because they related to sexual relations between husband and wife, these comments would arguably be as offensive to any reasonable person in plaintiffs position as they were to plaintiff. See Harris, supra, 510 U.S. at 21-22. Moreover, while clearly not physically threatening, the comments would certainly be humiliating and could, under certain circumstances, unreasonably interfere with work performance. See Williams, supra, 171 F.3d at 100.
Assuming that these comments were made "because of sex," defendant nevertheless argues that, viewing the circumstances of the case in their totality, the comments do not make plaintiff's claim of sexual harassment actionable. (Def.'s Mem. at 18.) In particular, defendant points to (i) the improbability of plaintiff's co-workers gaining access to plaintiff's home in order to videotape him, and (ii) plaintiff's medically-diagnosed delusional disorder, in concluding that, "despite plaintiff's perception, this videotaping never occurred." (Id.) Moreover, defendant argues, and plaintiff does not contest, that the comments lasted only a brief period, beginning in early to mid April, 1998 and extending at most until April 20, 1998, when plaintiff took his first leave of absence. (Def.'s Mem. at 18; Pl.'s Aff. ¶¶ 16-21; Pl.'s Dep. at 43-45, 153-154.)
While the Court declines to declare that the alleged taping "never occurred," the Court finds that it must hold the existence of the tape in doubt, rather than presume its existence for the purposes of summary judgment. Neither party declares that they actually viewed the tape, the tape is not currently in evidence, and it is indeed improbable that anyone would have gained access to plaintiff's house-without plaintiff's knowledge-to record the events allegedly depicted. More specifically, the fact that plaintiff never viewed the tape is relevant to the disposition of the motion, because, at least objectively, it reduces the potential impact of the offensive comments related to the tape. The fact of non-viewing might reasonably indicate that the tape never existed, which would allay most, if not all, of the humiliation or intimidation that the comments engendered. Even if the comments were humiliating at first, in the absence of the tape, the sting of insult would be gradually dulled. Moreover, the record reflects that the alleged comments were neither frequent nor pervasive. The Court therefore finds that the April 1998 comments were not severe enough to alter the conditions of plaintiff s employment as to create a hostile working environment. See Harris, supra, 510 U.S. at 21. B. Plaintiff Has Not Proven That His Co-Workers' Acts Can Be Imputed to the Hospital
Because plaintiff has failed to satisfy an element of the prima facie case of sexual harassment, the Court need not consider the remaining elements. However, even if plaintiff could raise an issue of material fact supporting his hostile work environment claim, plaintiff has not established that a basis exists for imputing his co-workers' actions to the defendant Hospital.
As noted supra, when the alleged harassment is attributable to a co-worker rather than a supervisor, the employer will be held liable only if (i) the employer provided no reasonable avenue for the complaint, or (ii) the employer knew (or should have known) of the harassment and unreasonably failed to stop it. See Gallagher, supra, 139 F.3d at 347-48. The Court finds that in this case, plaintiff has not established either element.
First, the record reflects that the Hospital provided a reasonable avenue for complaint. In particular, at all times relevant to this action, the Hospital had in place a written policy prohibiting sexual harassment. (Def.'s 56.1 ¶ 4; Bodee Aff. ¶ 4.) The policy provided inter alia that any employee who believes he or she has been subject to sexual harassment
"should immediately bring such behavior to the attention of his/her supervisor, who shall be obligated to immediately notify the Employee and Labor Relations Section. If reporting alleged harassment complaints to the supervisor is not appropriate, the employee must report such complaint to the Employee and Labor Relations Section." (Ex. 1 to Bodee Aff.)
In addition, the policy provided that the Hospital would investigate such complaints, and would take steps to prevent them in the future, including disciplinary action, and possible discharge, against those employees found to be in violation of the Hospital's policies. (Id.) The policy is included in the Hospital's Employee Manual, which was distributed to all employees, including plaintiff. (Bodee Aff. ¶ 5, Ex. 1; Hirschmanner Aff. ¶ 4; Pl.'s Dep. at 12, Ex. 1). The policy appears in more detailed form as the Hospital's Sexual Harassment Prohibition Policy and Complaint Procedure, which since 1991 has been posted in every department, including the Human Resources department and the Nutrition Services department. (Bodee Aff. ¶ 5, Ex. 2; Def.'s Mem. at 20.) The policy's contents, notably its multiple avenues for complaint, and its widespread distribution, demonstrate that defendant provided a reasonable avenue for complaints of sexual harassment that would enable the Hospital "to prevent and correct promptly any sexually harassing behavior."Faragher, supra, 524 U.S. at 778; see also DeOcampo v. Information Builders, 1998 WL 901721 *3 (S.D.N.Y.) (granting summary judgment for employer in part because employer had an adequate complaint procedure); Montero v. AGCO Corp., 19 F. Supp. 1143, 1146 (E.D. Cal. 1998) (grating summary judgment for employer in part because employer maintained and distributed a policy prohibiting sexual harassment and by providing a mechanism for employees to report such conduct directly to those other than the harasser). Moreover, plaintiff does not argue that defendant's reporting policy was unreasonable or inadequate.
Second, the Court finds that the Hospital took prompt and appropriate remedial action upon learning of plaintiff's complaints. The Hospital first learned about plaintiff's sexual harassment claims in late June 1998, from plaintiff's letter to the Hospital's Director of Compliance and plaintiffs EEOC complaint. (Def.'s 56.1 ¶ 56; Pl.'s Aff. ¶ 34.) The Hospital took immediate action by investigating the complaints. First, the Director of Compliance met with Mr. Hirschmanner to investigate plaintiff's claim that sexual comments were made in plaintiff's department. (Hirschmanner Aff. ¶ 10; Def.'s Mem. at 23.) After referral of the investigation to the Employee and Labor Relations department, Ms. Bodee-Isidore, the head of that department, spoke with Mr. Hirschmanner and investigated plaintiff's work-related history. (Bodee Aff. ¶¶ 13, 15; Hirschmanner Aff. ¶ 10.) Ms. Bodee-Isidore determined that plaintiff had made several allegations against his co-workers, many or all of which the Hospital had determined to be unfounded. (Bodee Aff. ¶ 15.) She also became aware that plaintiff had received psychiatric treatment, at least in part to address plaintiff's problems with his co-workers. (Id.) In particular, two psychiatrists had diagnosed plaintiff with a delusional disorder, which involved "blaming others," "untreated paranoia and agitation episodes" and "delusions of persecution" aimed at fellow employees, and which prevented him from working in the absence of medical treatment. (Def.'s 56.1 ¶¶ 69, 121-22; Pl.'s Dep. at 52-53, Exs. 12, 18.) At the end of its investigation, the Hospital decided that there was no merit to plaintiff's claims and the appropriate remedy was for plaintiff to continue to receive the medical treatment that his doctors had recommended. (Id.) Moreover, while plaintiff alleges that he did not require medical treatment, he does not claim that defendant's remedial action failed to stop the alleged harassment arising out of the incidents of January and April 1998. (Pl.'s Aff. ¶¶ 12-23, 31.) The Court therefore determines that the Hospital took prompt remedial action in response to plaintiff's complaints, enabling the Hospital to avoid imputation of the alleged acts of plaintiff's co-workers. See Van Zant, supra, 80 F.3d at 715 (affirming award of summary judgment where employer presented unrebutted evidence that it took prompt remedial action); Grossman v. GAP, Inc., 1998 WL 142143 at *6 (S.D.N.Y.) (granting summary judgment in part because employer took prompt remedial action); Walsh v. Nat'l Westminster Bancorp., 921 F. Supp. 168, 173 (S.D.N.Y. 1995) (same).
As noted supra, plaintiff claims that he told Mr. Smith about the alleged videotape, which prompted a meeting with a co-worker concerning the tape. (Pl.'s Aff. ¶¶ 22-23.) However, plaintiff has not alleged that his complaint to Mr. Smith was based on allegations of sexual harassment. The only time plaintiff articulated his claim as one of sexual harassment-in order to put defendant on notice of this claim-was in his June 1998 letter and his EEOC complaint. This makes the dispute over the alleged meeting with Mr. Smith meaningless for the purposes of this motion. See Anderson, supra, 477 U.S. at 247 (noting that disputes over irrelevant facts may not obscure the absence of a material dispute).
CONCLUSION
Because plaintiff has failed to establish a prima facie case of sexual harassment, there is no triable issue of fact on plaintiff's hostile environment sexual harassment claim. Accordingly, defendant's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment for defendant and to close the file in this action.
SO ORDERED.