Opinion
No. 97-CV-3934 (CLP)
March 12, 2000
MEMORANDUM AND ORDER
On July 9, 1997, plaintiff Laura J. Celestino ("Celestino"), Proceedingpro se, filed this action against defendants Montauk Club (the "Club"), William Meis ("Meis"), Tom Blackwell ("Blackwell"), Raymond Garayua ("Garayua"), and Everett Ortner ("Ortner"), alleging that during her employment with the Club, she was subjected to sexual harassment and discrimination based on her gender and national origin, culminating in her retaliatory discharge, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-2e et seq.
By Notice of Motion dated September 17, 1998, defendants move for summary judgment, contending that: I) plaintiff's claims are time barred because she failed to commence this action within 90 days of receipt of the right to sue letter; 2) plaintiff has failed to establish a prima facie case of either gender or national origin discrimination; 3) even if plaintiff could establish a prima facie case of discrimination, defendants have articulated a legitimate, non-discriminatory reason for her termination; and 4) the individual defendants cannot be held liable under Title VII. Pursuant to the consent of the parties, the motion was referred to the undersigned for decision.
FACTUAL BACKGROUND
In April 1991, plaintiff Celestino was hired by the Montauk Club, a private dinner club located in the Park Slope section of Brooklyn, to serve in the newly created position of maitre d'. According to the Affidavit of Mark Mendes ("Mendes"), Vice President of the Club's Board of Directors (the "Board") and Chairman of the House Committee, the Club created the position of maitre d' and hired Celestino for the position in order to increase revenue, membership, and use of the Club by the Park Slope community. As part of her duties, Celestino was hired to oversee the dining room and all member and member-sponsored events. (Tr. at 134). According to Celestino's testimony, she was told that she would be working directly for Mendes and that she would not be reporting to the general manager of the Club, William Meis. (Tr. at 137-38). She was also told by Mendes that "he wanted to use [her] to help him get rid of Mr. Meis. He asked me to be his eyes and ears." (Tr. at 138). According to Celestino, Mendes stated to her that "he felt Mr. Meis was a thief," that he was trying to get rid of Meis, and that "it would be an opportunity for [Celestino] to perhaps take over Mr. Meis' duties." (Tr. at 251).
References to "Tr. at ___" indicate pages in the deposition transcript of Celestino submitted by defendants at this Court's request.
The Club disputes Celestino's testimony, asserting that, according to her job description, Celestino was required to report to the Club's General Manager. (Montauk Club's Supplemental Position Statement dated September 11, 1995 ("Supp. Position Statement"); Am. Compl., Ex. 3 at 2 n. 2), which was submitted to the New York State Division of Human Rights (the "SDHR")). See, discussion infra at pp. 37-38.
As part of her responsibilities as maitre d', Celestino was required to keep a daily log documenting the activities in the Club. In this log, and in her daily reservations book, Celestino recorded mundane daily events such as the number of entrees served, as well as larger issues involving employee disputes and infractions of the Club's employment code. Copies of these log entries were provided to Mendes and to Everett Ortner, President of the Board, on a weekly basis, in a sealed envelope.
The log entries that, according to Celestino, were kept in two spiral notebooks, were attached as Exhibit 7 to her Amended Complaint.
A. Sexual Discrimination and Harassment Claims
Plaintiff alleges that shortly after she was hired, she began to experience a campaign of discriminatory harassment based on her gender and her national origin, perpetrated against her by Meis and others, at the instigation of Meis, including Raymond Garayua, the porter; Tom Blackwell, the bartender; and Chef Xenon Martel. Specifically, Celestino alleges in her complaint and in the amended complaint filed December 10, 1997 that from the moment she was hired as a maitre d' at the Club, the Club and the individually named defendants engaged in a pattern of sexual harassment, discrimination, and retaliation that led to her termination in January 1992. She documented in her daily log the numerous incidents of verbal and physical abuse that she and other subordinate female staff members suffered and she alleges that she made numerous oral reports as well to Mendes and others. "There wasn't a single incident that we did not discuss that was not logged in the daily log or that he did not receive a memo from. Any written communication was always discussed . . . ." (Tr. at 228). Celestino testified that the daily log was shown only to Mendes and whomever he chose to share it with, which she assumed included Ortner and Dino Veronese ("Veronese"), another member of the Club's Board of Directors. Despite these numerous complaints, Celestino alleges that no action was taken by the Board to control or discipline the individuals involved. She alleges that she was terminated by Ortner on January 3, 1992, based on gender and national origin discrimination and in retaliation for her threats to report the Club to the Equal Employment Opportunity Commission ("EEOC").
She was not certain if she reported every incident to Veronese and Ortner because she "had formed opinions that Mr. Veronese and Mr. Ortner were patronizing and condescending in their behavior toward me because I am a woman." (Tr. at 326).
During the course of her deposition testimony and in the contemporaneous records she created during her employment, Celestino details numerous incidents of harassment that she alleges were perpetrated against her. In an attachment to her complaint, entitled "Chronicle William (Bill) Meis General Manager" (the "Meis Chronicle") (Ex. 6), Celestino lists in chronological order, by date, 40 separate incidents over a period of eight months allegedly perpetrated by Meis and others that she alleges were designed to harass her in an effort to persuade her to resign from her job.
1. Allegations against William Meis
According to her Amended Complaint, Meis, the General Manager of the Club, "was livid" when Celestino was hired, because he disapproved of the newly created maitre d' position and was not consulted in the selection process. (Am. Compl. ¶ J, at 10). According to Celestino, Meis was also aware of the fact that Mendes had recruited Celestino to monitor Meis, who Mendes disliked and believed was a thief Celestino alleges that, as a result, Meis recruited other Club employees to "create a hostile workplace environment for Celestino," with "there [sic] sole mission . . . to get rid of Celestino." (Id.)
The first incident detailed in Celestino's Meis Chronicle allegedly occurred on April 19, 1991, prior to the time Celestino actually began working at the Club. (Tr. at 246). According to Celestino, at the time she was hired by Mendes, Mendes told her that he had instructed Meis to invite Celestino to dinner at the Club before she started working there. When Meis failed to contact her to arrange this meeting, Celestino called Meis. (Tr. at 141, 145). During that conversation, Meis allegedly told her that he was "playing the devil's advocate," that he did not feel the need for a maitre d' at the Club, and that he had never worked with a woman maitre d' before. He also told her that while he had never worked with a woman maitre d' before, he had worked with a female general manager (Tr. at 247), to which Celestino responded by asking if that made her more intelligent than a maitre d'. He responded, "Obviously." (Tr. at 247).
Celestino alleges that apart from this exchange, Meis demonstrated his clear preference for working with men rather than women in other ways, most notably in his delegation of work assignments, preferring male servers over female servers. (Am. Compl. at 19). Celestino further alleges that although she had the authority to hire and assign her own staff, Meis, on one occasion, tried to fire one of her employees (Tr. at 160), and at other times, he assigned certain of his own staff members to functions for which Celestino was responsible even though Celestino had already assigned her own people to those jobs. (Tr. at 162). Celestino claims that Meis made it known to the employees of the Club that Celestino hired her own staff because she did not think the Club employees were good enough for the job. (Tr. at 155). She testified that Meis "made it a point to misconstrue [her] position to a point where the house staff was mad that even a maitre d' was being hired." (Tr. at 492).
Celestino alleges that Meis attempted to undercut her authority with the staff in other ways as well. On May 12, 1991, Celestino asked Meis for his cooperation in having all staff calls regarding schedule changes or sick leave referred to her if the employees were scheduled to work on member-sponsored functions, which were her responsibility. However, Meis told the operators not to contact Celestino; rather, they were instructed to transfer an employee's call to him if the employee was calling in sick or changing schedules. (Tr. at 267). Celestino complained to Meis that since she was responsible for member-sponsored functions, she should have to approve staff schedule changes relating to these functions. (Am. Compl. at 20).
Celestino chronicled other incidents in which she felt Meis was discriminating against her because of her gender. On May 24, 1991, Celestino reported in her log that for approximately a month, Meis refused to give Celestino a key to the sideboard. She testified that this meant that whenever she needed to adjust the air conditioning in the dining room, which was generally twice a day, five days a week, she would have to move the sideboard, which was very heavy. (Tr. at 294). Celestino alleges that whenever she would complain, Meis would say, "'Oh, what's the matter? It's not that big,' making reference to my small stature as a woman." (Tr. at 294). He also allegedly told her, "'Well, if you really need it opened, you can go in the kitchen and get a real man.'" (Tr. at 294). Celestino alleges that Meis conspired with the Chef, who would refuse to let the kitchen staff help her. Celestino complained to Mendes about the situation and she was given a key the day after she complained. (Tr. at 297).
Celestino cites other examples of conduct by Meis that she believes were designed to harass and humiliate her. (Tr. at 309). Specifically, on June 2, 1991, Meis moved a non-member function into the main dining room, which was against Club rules, and sent Celestino home, allegedly stating in front of the staff: "We really have this under control. Why don't you go ahead and go home." (Meis Chronicle ¶ 12; Tr. at 320). Meis also criticized Celestino's billing ability in front of a subordinate (Tr. at 309-10), and refused to give her the burglary alarm code or a key to the front door. She filed written complaints about these problems with Mendes, sending copies to Ortner, and several days later, Meis gave her the code and a key. On May 28, 1991, Mendes issued a memo instructing Celestino not to turn over any cash to Meis. According to Celestino, this provoked a confrontation between Celestino and Meis, in which "he was very ugly." (Tr. at 312). Celestino claims that in retaliation, Meis berated her in front of the staff (Tr. at 314).
On June 26, 1991, Celestino had scheduled Maureen McCarran ("McCarran") to work in the main dining room. When McCarran arrived at work, Meis told McCarran that she should go home; that he had scheduled his banquet staff to work that day. Celestino testified that when she tried to speak to Meis about the problem privately, he turned his back to her and then started shouting at Celestino, telling her she was fired and ordering her off the property. During another incident, Meis accused Celestino of deliberately breaking bags of pasta onto the floor to make work for Garayua, calling Celestino a "fucking lying bitch."
Celestino's testimony regarding this incident is corroborated by McCarran's statement, which is attached as Exhibit 12 to the Amended Complaint.
This incident is detailed in the statement of Owen Marvel, who witnessed the event and explained to Meis that he was responsible for the mess. (Am. Compl., Ex. 13 at 1-2).
Celestino alleges that on several occasions Meis deliberately tried to "sabotage" a function that was her responsibility by failing to communicate special instructions given to him or, in one instance, failing to mention the function altogether. (Meis Chronicle ¶¶ 16, 37). Celestino further alleges that when she tried to report that there were several cases of wine stolen from the Club, Meis ignored her. (Meis Chronicle ¶ 22).
Celestino also testified about an incident that occurred on May 14, 1991, when she discovered that Chef Martel had hired his brother, Domingo Martel, and was attempting to pay him using a false name and social security number so that Domingo Martel could continue to receive public assistance of some sort, such as welfare or food stamps. According to Celestino, Chef Martel stated that "Mr. Meis set it up," which Celestino understood to be a reference to the paperwork necessary for this fraud. (Meis Chronicle ¶ 5). She recorded the incident in her daily log and reported it to Mendes. She told Meis she "didn't like what he was doing, that it was dishonest, and that if he didn't do something about it[,] I would . . . turn in all of them to the welfare department. . . . He turned and walked away. And he walked straight into the kitchen and told Chef Martel." (Tr. at 24). She explained that although she did report the incident to the welfare department, she refused to disclose the name of the Club.
Celestino alleges that Chef Martel was Meis' partner in a private catering business.
After this incident, she testified that Meis now had four men — Blackwell, Garayua, Chef Martel, and his brother — assisting Meis in his harassment in an effort "to make it so difficult for me that I would quit." (Tr. at 278). If she would ask Domingo Martel a question, he would not respond; she would have to speak to him through his brother.
Celestino also alleges that when she complained about the harassment she experienced from other male employees, Meis failed to reprimand them or to take appropriate action. On May 4, 1991, Celestino reported in her log that after Garayua, the porter, called her a "stupid woman" in front of a Club member, Meis, who was Garayua's supervisor, issued only a "week [sic] verbal reprimand." (Am. Compl. at 19). She testified that on numerous occasions, Garayua called her various names and refused to follow her instructions, but that Meis would never reprimand or discipline him.
See, discussion infra at pp. 9-13.
On another occasion, Celestino questioned the Chef regarding the timing of certain meals. The Chef became irritated, "called [Celestino] an asshole and stupid woman," and began throwing spatulas and pots and pans. (Tr. at 316). She reported this to Meis, but he never responded. "[H]e would just walk off while [she] was talking." (Tr. at 318).
Celestino testified that the Chef ultimately apologized, so she did not include him as a defendant in the lawsuit. (Tr. at 280).
2. Allegations against Raymond Garayua
Celestino testified that Meis enlisted the support of other Club employees in his effort to force Celestino to quit her job. She testified about the sexual harassment she faced from Garayua, the porter, and the numerous complaints she made to Meis and others regarding Garayua's behavior. On April 28, 1991, after she had been working at the Club for only four days, Celestino reprimanded Garayua for verbally fighting with a banquet waiter, Paul D'Emic. When Celestino instructed Garayua to return to his duties, Garayua responded that he did not have to do what she said and told her that "Mr. Meis had told him [Celestino] was not in charge of anyone and that [she] was nothing but a stupid woman." (Tr. at 256). Celestino then complained to Meis, who issued a verbal reprimand to Garayua.
In a separate incident, on May 4, 1991, Garayua called Celestino "a stupid woman" in front of a Club member, Ernest Burden III. (Tr. at 258). Again, Celestino reported the incident with Garayua to Meis and complained to Meis "about his lack of support and his condescending attitude" towards Celestino. (Meis Chronicle ¶ 3). She then reported the incident to Mendes. (Tr. at 257).
On May 17, 1991, Celestino alleges that she was stopped by a wedding couple who asked her what Garayua's position was at the Club, and complained about his behavior because he had been very rude to the bride-to-be. As she was explaining to them that Garayua was the porter, he "came up and started berating me . . . he told them that I was nothing there, that I had no authority there, I was nothing but a stupid woman." (Tr. at 284). Again, she reported this incident in writing to Meis with a copy to Mendes, and this time, she wrote a disciplinary report on Garayua. (Tr. at 284). She also spoke to Mendes after the incident.
In two separate incidents on May 23 and on June 6, 1991, Celestino asked Garayua to vacuum and move tables. He refused, "once again call[ing] me a stupid woman" (Tr. at 289). During the June incident, he stated that he did not work for her; she was a "stupid woman." (Am. Comp. at 56). She complained to Mendes that Meis refused to discipline Garayua and "that he allowed Raymond [Garayua] to speak and to do whatever he wanted to me because Mr. Meis garnered personal pleasure from hearing me being demeaned that way." (Tr. at 290). She also mentioned it to Ms. Zemberg and to a waiter, Mark Height, who she asked to move the tables when Garayua refused to do it. (Tr. at 290-91).
Celestino testified that on June 20, 1991, Garayua called her a spy in the presence of Sally Megahause and two or three other servers (Tr. at 444-45), and she alleges that he would hiss at her when passing her in the back stairwells. (Tr. at 445). She alleges that whenever she passed Garayua, he would taunt her, stating "why don't you leave here, nobody wants you here, you're nothing but a stupid idiotic woman." (Am. Compl. at 57). On July 21, 1991, Garayua was insubordinate to Celestino in the presence of a member and her guests. Ultimately, Celestino complained to Mrs. Mary Gow, whose husband was a Board member, that she could not take much more of this harassment. (Meis Chronicle ¶ 26).
Celestino explained that in the Spanish culture, a snake is regarded as the devil. (Tr. at 445).
The harassment and comments from Garayua continued throughout the fall of 1991, with Garayua calling her a stupid woman on September 6, 1991 (Meis Chronicle ¶ 28) and a "prostitute" on November 6, 1991. (Am. Compl. at 59). She testified that when she reported this latter remark to Mendes, she "was so angry, [she] was shaking from the top of [her] head to the bottom of [her] feet." (Tr. at 461). According to Celestino, Mendes was also angry and on November 9, 1991, Ortner, Mendes, and Celestino met to discuss the incident. Meis was excluded from the meeting. Eventually, Celestino received a verbal apology from Mendes and Garayua received a reprimand but was not terminated because, according to Celestino, he was the Union shop steward and the Club was "afraid of the union." (Tr. at 466). On December 20, 1991, Garayua started singing, "Ding dong, the bitch is gone" to the tune of the Wizard of Oz, changing it periodically to "Ding dong, the bitch is dead," which caused Celestino a great deal of stress and anxiety. (Tr. at 445-46).
Garayua claimed that Celestino had called him a "faggot" and that this had prompted his statement about her. (Tr. at 465).
In addition to cursing, ridiculing, and harassing Celestino in front of Club members, guests, and fellow employees, Celestino alleges that Garayua, who was the Union shop steward, also interfered with Celestino's attempts to carry out her responsibilities as maitre d'. Specifically, Celestino testified that Garayua interrupted Celestino while she was reprimanding Antonio Calderon for leaving the floor in the middle of a function without telling Celestino where he was going. Garayua told Calderon that he did not have to listen to Celestino, that she "was nothing but a stupid, idiotic woman, and that he didn't have to do what I said." (Tr. at 455).
Garayua also threw out approximately $70 to $80 worth of flowers, which he should not have done; it was Celestino's responsibility to determine what to keep and what to throw out. When she spoke to him about it, he told her he didn't have to listen to her; that Meis was his boss and she should speak to Meis if she had a problem. (Tr. at 459).
Celestino alleges that Garayua also harassed other female employees, including Ms. Flo Allen. In her complaint, Celestino describes an incident that allegedly occurred between Allen and Garayua on Sunday, November 17, 1991, when Celestino was left in charge of the Club. When Celestino tried to intervene in the dispute, Garayua started to yell at Celestino, calling her a stupid woman and refusing to comply with her orders. (Am. Compl. at 63-64).
Celestino alleges that Garayua's harassment extended beyond verbal taunts and verbal conduct. Celestino alleges that Garayua destroyed certain of her possessions and stalked her outside her home on one occasion. Specifically, Celestino claims that toward the end of the summer of 1991, she had gone home for lunch one day and saw Garayua standing outside her home, leaning on a tree facing her front door. (Tr. at 497). When she returned to the Club that afternoon, she reported the incident to Ms. Zimberg and Ms. Cohen. Celestino also called Mendes at work to report the incident. When questioned by Ms. Zimberg, Garayua stated that he "was just killing time wandering around." (Tr. at 498).
Celestino also testified that beginning in May 1991 and continuing until mid-October 1991, when she changed the lock on her locker, one or both of her shoes began to disappear. In total, she believes there were eleven pairs of shoes that she could not wear because one or both disappeared. (Tr. at 494). Celestino testified that Ms. McCarran told her that Garayua had stolen Celestino's shoes from her locker. Eventually, McCarran and Celestino found the shoes hidden under the floor boards on the fifth floor of the Club. Celestino also alleges that on December 20, 1991, she arrived at the Club only to discover that her new trench coat, which she had left overnight at the Club, had been slashed or cut with a razor or scissors. Celestino suspected that Garayua was responsible and she reported it to Everett Ortner, demanding that the Board stop the harassment or she would go to the EEOC. (Meis. Chronicle ¶ 38).
McCarran's statement confirms both the coat slashing incident and the fact that she had overheard Garayua laughing with Blackwell over the missing shoes. (Am. Compl. Ex. 12 at 3).
3. Allegations Against Tom Blackwell
Celestino alleges that in addition to being harassed by Meis and Garayua, she was subjected to physical and verbal harassment by the Club's bartender, Tom Blackwell.
Celestino alleges that Blackwell, who had been a bartender with the Club for many years, resented Celestino because he had wanted the maitre d' position and because he resented working with women. According to Celestino, on June 5, 1991, she met with Blackwell and told him that she did not appreciate the condition in which he left the bar. He started to curse and yell at her, and stood up quickly, sending the piano bench on which he had been sitting flying four feet. (Tr. at 325). She claims that she reported the incident to Mendes.
She also complained that Blackwell physically assaulted her on several occasions. According to her testimony, Blackwell "would come up to me and put both of his feet on top of my feet, immobilizing me [and] . . . then take his forehead and press my forehead and back me into a wall and crush me with his chest against that wall and ask me what I intended to do about it." (Tr. at 479-80). On another occasion, he said to her, "'Go ahead, hit me. You know you want to. Go ahead.'" (Tr. at 480). Celestino testified that on other occasions he pressed his forehead into hers, pushing her backwards as far as she could go and challenging her by saying, "'What are you going to do about it?'" She testified that because he was 6 feet 3 inches tall, 250 pounds, and she is only five feet tall, 110 pounds, this was a painful and humiliating experience. (Tr. at 480). On other occasions, he allegedly squirted her with a beverage dispenser, ordering her to leave the bar area. (Tr. at 482). This continued even after Celestino's employment with the Club terminated and she became a Club member. (Tr. at 485). On one of these later occasions, Celestino claims that Blackwell said to her, "Why are you here? No one wants you here." (Tr. at 241). She asserts that she complained to Mendes many times about these incidents.
Owen Marvel, another former employee at the Club, submitted a statement corroborating Celestino's testimony regarding these incidents with Blackwell, as well as an incident that occurred after Celestino was terminated but was having dinner in the Club, when Blackwell allegedly squirted her with the seltzer dispenser. (Am. Compl., Ex. 13).
Celestino also testified that Blackwell interfered in her disputes with Meis, saying "'Fuck her. She can't tell you what to do. You're the general manager.'" (Tr. at 488). He also made other derogatory comments, such as "'Fuck that bitch'" or "'Fuck you.'" (Tr. at 489). According to Celestino, Blackwell was Meis' best friend and "came at me with great spirit and with Mr. Meis' blessing." (Tr. at 492). Celestino testified that Blackwell resented her position as maitre d' and told her, "'I could have done a better job than you do. I should be in your position."' (Tr. at 504-05).
B. National Origin Discrimination Claims
Celestino also alleged that she was subjected to discrimination and harassment based on her national origin. She alleges that the defendants made discriminatory and derogatory comments about various minority groups, including Hispanics and Blacks, and that on several occasions these derogatory comments were directed personally at her.
Specifically, she testified that Ms. McCarran overheard Meis call Celestino a "spic bitch" in a conversation with Tom Blackwell. (Tr. at 188). Celestino recorded the incident in her log book and spoke to Mendes about the incident.
On another occasion, Celestino alleges that she was in the kitchen when Chef Martel placed the hand of a dishwasher on Celestino's crotch and remarked, "'See. how big they grow them in Texas.'" (Am. Compl. at 40). Celestino interpreted this to be a reference to the fact that she is Mexican and from Texas. This comment was overheard by Ms. McCarran, who described the incident in her notarized statement. (Am. Compl., Ex. 12 at 2).
Celestino testified that Mark Mendes also made a number of statements that demonstrated his discriminatory bias against minorities and particularly Hispanics. Specifically, she testified that she had several conversations with Mendes about the kitchen staff in which Mendes referred to the kitchen staff as "'those people,' that those people were not formally educated and didn't have the sophistication that I suppose we people have." (Tr. at 191). According to Celestino, the kitchen staff, with the exception of Owen Marvel, was entirely Hispanic. Celestino testified that Mendes would make these comments at least once a month. (Tr. at 192-93).
On one occasion, Mendes allegedly commented on the unsanitary condition of the refrigerator by saying, "'Well, you know how they are from where they are from,' or 'you know how they are . . . they don't have the education or they weren't raised to do this . . . or things like that doesn't bother them.'" (Tr. at 516). Celestino testified that what "he was saying [was] that for a minority person these kinds of unclean, unsanitary conditions is just normal to them." (Tr. at 516). He would not use racial slurs; he would simply refer to them as minorities. (Tr. at 517).
She also testified that Meis and Blackwell made derogatory comments about Blacks and other minority groups. Celestino testified that when some non-members were holding a wedding at the Club, Meis told Celestino: "'I'm not going to go through a lot of trouble. . . . You know, this is just a "Black Wedding.'"" (Tr. at 196). Flo Allen, an employee at the Club, called Celestino at home later that day in tears and complained that Meis had referred to the people at the function as "'just a bunch of fucking niggers'" which upset Ms. Allen because she was half black. (Tr. at 196-98). Celestino subsequently submitted an incident report to Mendes, dated December 22, 1991, regarding the incident. (Tr. at 200; Am. Compl., Ex. 15). Meis also allegedly made a comment about a black applicant, asking Celestino, who interviewed the applicant, whether the applicant was black. When Celestino responded that she was, Meis instructed Celestino to "file it in file 13," referring to the application, which Celestino took to mean "dispose of it." (Tr. at 202).
Ms. Allen apparently filed an EEO complaint against the Club and the Club eventually apologized to her. (Tr. at 199). Meis was also subjected to disciplinary action as a result of Ms. Allen's complaint, although Celestino was not aware of what measures were actually taken since she was terminated approximately 10 days after this incident. (Tr. at 197).
Celestino testified that Blackwell used the word "Guido" in reference to people in the community, and that he told Celestino on one occasion that the membership would never tolerate a black waiter. (Tr. at 220-24). Meis also stated that the membership would not tolerate a black waiter. (Tr. at 225-26). Celestino testified that she reported these statements to Mendes, who told her not to worry about it, that he would take care of it. (Tr. at 227).
C. Termination and Retaliation Claims
Celestino testified that she believes Ortner chose to terminate her in retaliation for her complaints of discriminatory behavior and her threats to file a complaint with the EEOC. Celestino testified that another female employee, Ms. Lennon, also believed Ortner terminated her for complaining of sexual harassment at the Club (Tr. at 506-07), and Celestino presented a transcript of Lennon's statement as an exhibit. (Tr. at 507; Am. Compl., Ex. 33).
Celestino testified that both Ortner and Veronese were patronizing toward women. Specifically, she testified that Veronese and Ortner had a habit of introducing her as a "hostess," rather than by her actual title of maitre d'. Celestino testified that "[i]t implied that I just sat people and hung their coats up," which she claims in the restaurant industry is just as insulting as if a vice president of a bank were to be called a bank teller. (Tr. at 211-13). Celestino testified that she believes they did this because of her gender and national origin and that such discrimination was prevalent in this industry, particularly in the private club circuit. (Am. Compl. at 85). Specifically, she testified that "[i]n their refusing to address me by my proper title I believe that they did not think that Minorities were as intelligent as Caucasians." (Tr. at 213). Although she complained, she alleges that they refused to correct their behavior and refer to her by her proper title. She also alleges that they would make other comments referring to minorities as "those people" or saying, "You know how they are." (Tr. at 214)
Celestino alleges that a female Club member also allegedly treated Celestino with "disdain." Based on Celestino's "experience of living 47 years as a Mexican woman, attending wealthy people," Celestino concluded that this Club member was prejudiced. (Tr. at 217). She also believed that this Club member did not like having a female maitre d' at the Club. Although Celestino complained to Mendes on more than one occasion about this treatment, the Club member continued to treat Celestino this way "once a week." (Tr. at 216).
She also testified that when Ortner and Veronese gave tours of the Club, "they were very fond of pointing out that the front of the Club has two entrances, and that up until, I believe, 1978, women were required to use a separate entrance. . . . That way [the men] could come and have their little lunch in their little dining room and . . . never be subjected to having to see a woman." (Tr. at 229). Celestino also testified that Veronese displayed a certain attitude toward women "that was condescending and discriminatory." (Tr. at 513). "It didn't matter what he was saying, he always displayed that superior attitude and that I was a simple-minded child." (Tr. at 513). She alleges that another female employee, Sonya Hoffo, filed a discrimination suit against Veronese after he allegedly told her that she could not have a permanent position in the dining room because he wanted a man in that position. (Tr. at 510).
D. Procedural History
Following her termination from the Club on January 3, 1992, Celestino applied for and was accepted as a member of the Club in April 1992. On March 17, 1992, she filed her initial charge of discrimination with the SDHR, naming the Club as respondent and alleging that Meis had harassed her and that Ortner had terminated her based on her gender and national origin. (Am. Compl., Ex. 1). On January 22, 1993, Celestino filed an amended complaint with the SDHR, naming the individual defendants, Ortner, Mendes, Veronese, Meis, Blackwell, and Garayua, as respondents, and adding a claim of retaliation. (Am. Compl., Ex. 4).
The SDHR thereafter conducted an investigation into the charges and held a fact-finding hearing on August 24, 1995, at which time both parties appeared and submitted various position statements. On July 16, 1996, the Regional Director of the SDHR issued a Determination after an Investigation, finding that there was probable cause, based on the investigation, to believe that Celestino had been subjected to harassment and discrimination and recommending that a public hearing be held. (Am. Compl., Ex. 5).
Thereafter, by letter dated April 9, 1997, the EEOC issued a Notice of Right to Sue and Celestino then filed this federal action on July 9, 1997, seeking damages resulting from the harassment and unlawful termination. Specifically, Celestino alleges that as a result of the harassment and the subsequent loss of her job, she suffers from traumatic stress disorder and severe depression. At the time of her deposition, she testified that she was taking Serezone for depression, along with several other drugs, including Raeflin and Motrin to deal with certain physical problems that were the consequence of three accidental falls she experienced while working. (Tr. at 14, 19). During the deposition, she testified at one point that the medication she was taking was making her feel "foggy" and like she had "medicine head." (Tr. at 307). She explained that she cannot sit for two or three hours straight without suffering a great deal of pain thereafter, and that one of the symptoms of her traumatic stress disorder is lapses in memory and confusion. (Tr. at 184). She explained that after her termination, she was not able to work because "I was so full of rage at being screwed that I could not function civilly to anyone anymore." (Tr at 253). She alleges that she was divorced from her husband and even became homeless for a time because of the effect of the harassment and termination.
MOTION FOR SUMMARY JUDGMENT A. Standards
It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985), the court should not grant summary judgment unless it is clear that all of the elements have been satisfied. See. Auletta v. Tully, 576 F. Supp. 191, 194 (N.D.N.Y. 1983), aff'd, 732 F.2d 142 (2d Cir. 1984). In addition, "'the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co,. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for trial.'"Phillips v. Kidder, Peabody Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading." Anderson v. Liberty Lobby. Inc., 477 U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis added).
In reversing a grant of summary judgment, the Second Circuit noted that the "[t]rial court's task at the summary judgment motion state of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them."Quarantino v. Tiffany Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)).
B. The Timeliness of Plaintiff's Complaint
Defendants argue that Celestino's Title VII claim should be dismissed because she failed to file suit within 90 days of receiving her right to sue letter from the EEOC.
Under Title VII, a plaintiff has 90 days from the date of receipt of a right to sue letter to file a complaint. See. 42 U.S.C. § 2000e-5(e) and (f). Specifically, Title VII provides in relevant part that if a charge filed with the EEOC is dismissed by the EEOC, then the Commission shall notify the aggrieved individual and "within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." 42 U.S.C. § 2000e-5(f)(1). The ninety-day time period begins to run from the date that the complainant receives the Notice of Right to Sue. See, e.g., Franks v. Bowman Transportation Co., 495 F.2d 398, 403-04 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747 (1976); Streeter v. Joint Industry Bd. of the Electrical industry, 767 F. Supp. 520, 527 (S.D.N.Y. 1991). The ninety-day period is not, however, jurisdictional, but is subject to principles of equitable tolling or waiver. See. Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987), see also Zips v. Trans World Airlines. Inc., 455 U.S. 385, 393-98 (1982); Archer v. Globe Motorists Supply Co., Inc., 833 F. Supp. 211, 213 (S.D.N.Y. 1993) (noting that while time limits are important in employment discrimination cases, "[t]hey are not, however, jurisdictional and can be tolled where confusion may have been caused without the fault of the party whose claim is sought to be barred"). Indeed, recognizing "the liberal construction the act [Title VII] is entitled to," Lewis v. Conners Steel Co., 673 F.2d 1240, 1242 (11th Cir. 1982), the courts have adopted a flexible rule requiring the district courts to "conduct a thorough examination of the facts to determine if reasonable grounds exist for an equitable tolling of the filing period." Harvey v. City of New Bern Police Dep't, 813 F.2d at 654; accord Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151-52 (1984) (holding that this ninety-day period acts as a statute of limitations, subject to equitable tolling in some circumstances); Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996);Hladki v. Jeffrey's Consolidated, Ltd., 652 F. Supp. 388 (E.D.N.Y. 1987).
The right to sue letter issued to Ms. Celestino by the EEOC bears the date April 9, 1997. (Attachment to Am. Compl.). On the pro se form complaint filed by plaintiff, Ms. Celestino inserted the date April 9, 1997 in the blank next to the line in paragraph 12 that reads as follows:
"12. The Equal Employment Opportunity
Commission (check one):
. . . _____ has issued a Right to Sue Letter, which
I received on April 9. 1997."
(Compl. ¶ 12). Based on this, defendants argue that since plaintiff filed her complaint on July 9, 1997, which is ninety-one days after April 9, the statute of limitations had expired and her complaint should be dismissed as untimely. See. Zachery v. Whalen, No. 93 CV 36, 1994 WL 411526, at *2 (N.D.N.Y. July 26, 1994) (holding that "[for statute of limitations purposes, . . . the 90-day period begins to run, not from the date of issuance, but rather from the date of receipt of the right to sue letter").
In this case, however, there is a substantial question as to whether Celestino's statement in her complaint accurately reflects the date on which she actually received the right to sue letter. The question of the date of receipt of the letter was raised during oral argument before this Court on February 10, 1999. During that exchange, Ms. Celestino gave three separate dates that she believes the letter from the EEOC was mailed or received — April 9, May 29, and July 9.
CELESTINO: . . . that the suit, the date was April 9. I believe I filed it June 9. So it was a matter of one or two days at most.
When that confusion occurred, to be honest with you, I thought that from April to July 9 is 90 days. . . . When I discovered what Mr. Volpe had said, I called the office of the EEOC because we had been at great length when I was trying to get this letter — right to sue letter, we had several discussions.
And I'm saying I have only so many days to file my complaint. And I can't file my complaint without this right to sue letter, and I need to have it. And for whatever reason I never received the document, and they mailed it to me. And —
THE COURT: So, I'm confused, Ms. Celestino, did you get the right to sue letter on April 9?.
CELESTINO: That is correct. And then they consequently followed up with that letter, but it was after I had filed the complaint . . . .
Your honor, I'm not admitting — I'm admitting that I did not receive the — that I received a right to sue letter on July 9. But as a [novice] how am I to know that that letter — that that the date May 29 it was given to me was not sufficient?
(Transcript of Oral Argument, Feb. 10, 1999, at 14-15). Although Ms. Celestino stated at one point that she got the letter on April 9, it appears as though she may be confusing the date on the letter itself with the date she actually received the letter.
Plaintiff suffers from traumatic stress disorder, a condition that leads to confusion and short-term memory loss. These symptoms can also be exacerbated by the medication prescribed to treat the disorder. This condition, while perhaps not severe enough to require equitable tolling in this case, see Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), reh'g denied, 498 U.S. 1075 (1991), Hladki v. Jeffrey's Consolidated, Ltd., 652 F. Supp. at 393; Baldwin County Welcome Center v. Brown, 446 U.S. at 151-52, may explain her confusion and inability to recall the actual date of receipt of the letter.
Moreover, in her Memorandum of Law submitted in opposition to the defendants' Motion for Summary Judgment ("Pl.'s Mem."), plaintiff states that: "the date April 9, 1997 is the date on the notice and that she did not physically receive the Notice of Right to Sue until May 29, 1997." (Pl.'s Mem. at 3). In support of this assertion, plaintiff includes as an exhibit to her papers a letter addressed to her from the EEOC regarding the date the right to sue letter was received. (Pl.'s Mem., Ex. 1). The letter indicates that the EEOC officer reviewed certain materials sent by Ms. Celestino and states that the right to sue letter was sent to Ms. Celestino on April 9, 1997. The EEOC's letter further indicates, however, that Celestino's right to sue letter, was returned to the EEOC office in May 1997, and subsequently re-sent to Ms. Celestino on May 29, 1997. The letter informs Celestino that her 90 days to commence suit was to begin on the date she received this second notice. Thus, from the EEOC's letter, it appears that Celestino's right to sue letter, dated April 9, 1997, was sent to her but was not received until after it was mailed on the second occasion in May, in which case the ninety-day period for filing would run from May 29, 1997.
Moreover, while Celestino's own testimony raises questions as to whether or not she received the right to sue letter on April 9, 1997, it would be highly unlikely for a letter to be received on the same date that it was mailed, presuming the letter was mailed on the date noted. Given rulings in this Circuit regarding receipt of right to sue letters sent by certified mail, see Sousa v. NLRB, 817 F.2d 10, 11 (2d Cir. 1987) (per curiam) (holding that the then applicable 30-day statute of limitations period began to run on the date plaintiff picked up the certified letter from the post office and not on the date the notice of a certified letter was placed in plaintiff's post-office box); Bennett v. Morgan Stanley Co., Inc., No. 96 CV 6071, 1997 WL 749364, at *2 (S.D.N.Y. Dec. 4, 1997) (noting that courts have grappled with the question of whether a right to sue letter is considered "received" on the date it is obtained or on the first possible date it could have been obtained), the EEOC's letter at a minimum raises a substantial question of fact as to when the letter was actually received by Celestino.
Indeed, in Baldwin County Welcome Center v. Brown, the Supreme Court held that it is normally assumed that a properly addressed letter placed in the care of the Postal Service will be received three days after its mailing, consistent with Rule 6(e) of the Federal Rules of Civil Procedure. 466 U.S. at 148 n. 1. Rule 6 relates to the computation of time when determining statutes of limitation; paragraph 6(e) addresses the question of service by mail and provides as follows:
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
Fed.R.Civ.P. 6(e). This mailing presumption is rebuttable see Sherlock v. Montefiore Medical Center, 84 F.3d 522, 526 (2d Cir. 1996), and the initial presumption of three days set forth in Rule 6(e) is not dispositive if a claimant presents sworn testimony or other admissible evidence to the contrary. See. id.
Here, the Court presumes that the letter was mailed the same day it was dated. See. Sherlock v. Montefiore Medical Center, 84 F.3d at 526 (holding that "normally it may be assumed, in the absence of challenge, that a notice provided by a government agency has been mailed on the date shown on the notice"); see also Pacheco v. International Business Mach. Corp., No. 90 CV 1173, 1991 WL 87538, at *3 (N.D.N.Y. May 24, 1991). However, like the mailing presumption, this presumption is also rebuttable, and evidence challenging either presumption creates a credibility issue that must be resolved by the trier of fact, rendering the issue inappropriate for resolution on a motion for summary judgment. See. Witt v. Roadway Express, 136 F.3d 1424, 1430 (10th Cir. 1998) (citing Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884); Anderson v. United States, 966 F.2d 487, 491-92 (9th Cir. 1992)).
In this case, the letter from the EEOC suggesting that the initial April 9 letter was returned as undelivered and then re-sent in May raises an issue of fact as to whether this presumption should in fact apply in this case.
However, even if this Court were to presume receipt of the letter on April 10, just one day after its mailing, the complaint would still fall within the 90-day statute of limitations. The only possible way that the plaintiff exceeded the statute of limitations would be if she received the letter on the same day it was mailed, an occurrence that is highly unlikely, if not impossible. See. Pacheco v. International Business Mach. Corp., 1991 WL 87538 at *3. In Pacheco, the court held that, despite the fact that the plaintiff provided a date of receipt of the right to sue letter in her complaint, that was exactly the same date noted on the letter, "it would be highly unusual, if not impossible, for the plaintiff to have received the letter the same day it was written and allegedly mailed. Therefore, the court cannot agree with [defendant's] position that the actual date of receipt by plaintiff [was the date stated in the complaint]." Id. If the three-day presumption mandated by Rule 6(e) and Baldwin County is followed, the date of receipt of the letter would be taken by this Court to be April 12, and the 90-day period would begin to run on April 13. Accordingly, plaintiffs filing of this action on July 9, 1997 falls within the statutory period and her Title VII claim is accordingly correctly before this Court.
Although Baldwin County held that the three-day presumptive period can be rebutted, this Court finds there is no clear evidence before this Court indicating an alternative date of receipt, given plaintiffs multiple conflicting statements and the other evidence before the Court, which indicates that the defendants did not receive the letter until April 11, 1997.
In addition to the plaintiff's lack of certainty as to when she received the letter, the unlikelihood that plaintiff received the letter on the same day that it was mailed, and the EEOC's letter suggesting that the April 9, 1997 letter was actually returned to the EEOC as undelivered, there is other evidence that supports the inference that plaintiff did not actually receive the right to sue letter on April 9, 1997. When the EEOC sends a Notice of Right to Sue letter to the complaining party, it also sends a copy of the same letter to the employer. Here, a copy of Celestino's right to sue letter was received by the defendants on April 11, 1997, according to a date stamp on their copy that they submitted to this Court. This Court finds it hard to believe that the defendants received the letter a full two days after the plaintiff, given the presumption that the letters were mailed on the same day. Defendants' own submission raises additional questions as to whether the letter was actually received by Celestino on April 9, 1997.
Given that there is a substantial issue of fact in dispute regarding the timing of Celestino's receipt of the right to sue letter, this Court denies the defendants' motion to dismiss the complaint as untimely.
C. Plaintiff's Claim of Sexual Harassment
Defendants next argue that summary judgment is appropriate in this case because, based on the uncontroverted facts, plaintiff has not been able to sustain her burden of establishing a prima facie facie case under Title VII and that even if she has, defendants have articulated a legitimate, nondiscriminatory reason for terminating her employment, unrelated to plaintiffs gender or national origin.
A plaintiff in a discriminatory treatment case under Title VII bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. See. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). Generally, to establish a prima facie case of discriminatory discharge, a plaintiff must show: "(1) that [she] belongs to a protected class; (2) that [she] was performing [her] duties satisfactorily; (3) that [she] was discharged; and (4) that [her] discharge occurred in circumstances giving rise to an inference of discrimination on the basis of [her] membership in that class." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); accord McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973. The requirements for establishing such a prima facie case, however, are "minimal," St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506; accord Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998), and courts in this circuit have held that "the Supreme Court intended the lower courts to be flexible in determining what prima facie elements should be utilized." Cifra v. General Electric Co., 62 F. Supp.2d 740, 743 n. 2 (N.D.N.Y. 1999). Once a plaintiff has established a prima facie case of employment discrimination, the burden then shifts to the employer to establish a non-discriminatory reason for the employment decision. See. Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 254.
Defendants concede that plaintiff, a female Hispanic, is a member of two protected classes and that the Club terminated her employment. Defendants contend, however, that the plaintiff has not met her burden of showing that she was discriminated against, arguing that she can only document one incident where she received secondhand information that she was called a "spic bitch." According to the defendants, this single incident is not sufficient to constitute evidence of discrimination because the plaintiff has failed to show that the comment was "(1) . . . made by the decision maker . . .; (2) . . . related to the specific employment decision challenged; and (3) . . . made close in time to the decision." Ross v. Communication Workers of America. Local 1110, No. 91 CV 6367, 1995 WL 351462, at *13 (S.D.N.Y. June 9, 1995).
However, defendants misconstrue the nature of Celestino's claims. A review of the complaint, the amended complaint, and the exhibits attached thereto demonstrates that Celestino has alleged first, a claim of sexual harassment and second, a claim of discrimination and retaliation. Essentially, she alleges that she suffered a continuous pattern of sexual harassment during her employment at the Montauk Club in the form of both physical and verbal abuse from a number of the male employees and that this harassment created a hostile work environment that was permitted to continue despite Celestino's numerous complaints to the Club's Board of Directors and to her supervisor, Mark Mendes. She alleges that the first incident of harassment occurred even before she began to work at the Club, and that this pattern of harassment continued on an almost daily basis throughout her employment. She contends that this harassment was perpetrated not only by Meis, but by other male employees who were working with Meis to create a hostile environment in an effort to force her to leave the Club. She further alleges that despite written documentation of harassing incidents and copies of disciplinary reports written to management regarding some of these individuals, the Club's management failed to respond to her numerous verbal and written complaints about this hostile work environment, and instead terminated her for threatening to report the problem to the EEOC.
1. Hostile Work Environment — Standards
Turning first to plaintiffs hostile work environment claims, it is clear that under Title VII, a plaintiff must prove two essential elements in order to establish a prima facie case of sexual harassment based on a hostile work environment. First, the harassing conduct must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); accord Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Perry v. Ethan Allen, Inc., 115 F.3d 149 (2d Cir. 1997). Second, plaintiff must also establish that "a specific basis exists for imputing the conduct that created the hostile environment to the employer." Perry v. Ethan Allen, Inc., 115 F.3d at 149.
In order to determine whether an employee was subjected to conduct sufficient to constitute a hostile work environment, the court must consider "all the circumstances," such as the frequency and severity of the conduct, whether it was physically threatening or humiliating, whether the employee suffered psychological harm, and whether it "unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17; accord Leopold v. Baccarat, Inc., 174 F.3d 261, 268 (2d Cir. 1999). However, "no single factor is required." Harris v. Forklift Sys., Inc., 510 U.S. at 23.
Courts employ both an objective and a subjective test to determine whether a hostile work environment existed. See. Leopold v. Baccarat, Inc., 174 F.3d at 268. Accordingly, "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. at 21. Moreover, plaintiff must also "subjectively perceive the environment to be abusive" for liability to attach. Id.; accord Schwapp v. Town of Avon, 118 F.3d at 110. Accordingly, when the plaintiff can show that the harassment unreasonably interfered with her work performance or created "an intimidating, hostile, or offensive working environment," Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (citations omitted), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), plaintiff is entitled to recovery.
In one case, the Second Circuit appeared to apply, but did not explicitly adopt, "a more contextualized objective standard." Torres v. Pisano, 116 F.3d 625, 632-33 n. 6 (2d Cir.), cert. denied, 522 U.S. 997 (1997). The court noted that several other circuits have already held that the standard governing a hostile work environment claim should be that of a reasonable person with the same fundamental characteristics as plaintiff, such as race, sex, or religion. See. id. (citing Newton v. Department of the Air Force, 85 F.3d 595, 599 (Fed. Cir. 1996); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995); West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995); Burns v. McGregor Elec. Indus. Inc., 989 F.2d 959, 962 n. 3 (8th Cir. 1993); Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987)). The court stated that the Supreme Court's decision in Harris did not foreclose the use of "a more contextualized objective standard" than the unadorned "reasonable person" standard. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. at 22-23). However, in a more recent case, Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426 (2d Cir. 1999), the Second Circuit rejected such an approach in favor of examining hostile work environment claims from the perspective of a "reasonable person who is the target of discrimination." Id. at 436 n. 3.
Courts have held that the required frequency of the alleged conduct is inversely related to the severity of the incidents; accordingly, the more severe the individual incidents alleged, the fewer there need to be for the conduct to be actionable. See, e.g., Equal Employment Opportunity Comm'n v. A. Sam Sons Produce Co., 872 F. Supp. 29, 35 n. 13 (W.D.N Y 1994) (citation omitted) (noting that a single incident, if sufficiently intense, may be actionable). As to the frequency of the conduct alleged, the Second Circuit has stated that generally, "[t]he [harassing] incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992) (citing Carrero v. New York City Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989)). However, the Second Circuit has also emphasized that:
[a] female employee need not subject herself to an extended period of demeaning and degrading provocation before being entitled to seek the remedies provided under Title VII. It is not how long the sexual innuendos, slurs, verbal assaults, or obnoxious course of conduct lasts. The offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive.Carrero v. New York City Hous. Auth., 890 F.2d at 578. Regarding the severity of the conduct alleged, the mere utterance of an offensive epithet may not constitute a cause of action, see Meritor Savings Bank, FSB v. Vinson, 477 U.S. at 67, nor would "coarse, hostile and boorish behavior" alone constitute sexual harassment. Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994).
Once a plaintiff has established that she was the victim of sexual harassment that altered the conditions of her employment, she must further establish that the harassing conduct should be imputed to her employer and that her employer should be held liable. See. Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d at 63.
2. Hostile Work Environment — Application
Applying these principles to this case, this Court finds that Celestino has presented sufficient evidence to raise a material issue of fact as to whether she was subjected to a hostile work environment while employed at the Club. Contrary to defendants' assertion that Celestino's claim is limited to a remark by an unidentified individual who allegedly referred to her as a "'spic bitch,'" Celestino's deposition testimony, corroborated by her written logs and the various disciplinary records appended to the amended complaint, along with statements from other co-workers at the Club, demonstrate a pattern of harassing incidents and remarks relating to her gender — "stupid woman" and "prostitute" — over the eight-month period of Celestino's employment. Given defendants' failure to provide affidavits or other evidence to rebut these allegations, and taking all of Celestino's allegations as true, including her descriptions of the conduct of Meis, Garayua, and Blackwell, the circumstances at plaintiff's workplace included not only instances of offensive comments, but also physical intimidation and conduct designed to sabotage her work performance.
The hostile, abusive, and demeaning comments were not limited to the repeated name calling on at least eight separate occasions by Garayua in the presence of Club members, guests, and other employees, but included name calling and derogatory comments about women's capabilities in general and Ms. Celestino's in particular, which were made by Meis and Blackwell as well. Moreover, the course of this alleged conduct was repeated and continuous, beginning with the derogatory comments made by Meis during the phone call prior to Celestino's first day of work and continuing with his refusal to recognize her authority over her staff members, his refusal to provide her with keys to the front door and the sideboard, and his failure to advise her of information regarding the requirements of certain Club functions. Celestino testified that in addition to this conduct that was designed to ensure her failure as maitre d', Meis refused to discipline other employees under his authority who made discriminatory comments to Celestino, often simply walking away and ignoring her when she raised such incidents.
Verbal conduct, such as sexual slurs, persistent comments about a woman's body, the telling of sexually-related jokes, or boasting about sexual conquests, has been held to be legally sufficient to sustain a claim of sexual harassment based on a hostile work environment. See.Harris v. Forklift Sys., Inc., 510 U.S. at 19 (finding a hostile work environment where a supervisor insulted an employee because of her gender, called her a "dumb ass woman" suggested that she accompany him to a Holiday Inn to negotiate her raise, and invited the plaintiff and other female employees to get coins from his front pants pocket); Kotcher v. Rosa Sullivan Appliance Ctr., 957 F.2d at 61 (finding a hostile work environment where a supervisor pretended to masturbate behind an employee's back and suggested that her sales were due to her "bodily equipment"); Bush v. Raymond Corp., Inc., 954 F. Supp. 490, 494 (N.D.N.Y. 1997) (denying defendants' motion for summary judgment where plaintiff alleged that her employer made sexually oriented and demeaning remarks "on an almost daily basis"); Shull v. Rite Aid Corp., No. 94 CV 8552, 1997 WL 289460, at *5 (S.D.N.Y. May 30, 1997) (denying defendant's motion for summary judgment concerning a hostile work environment claim where plaintiff alleged "at least six explicitly sexual" comments, as well as "a number of other intimidating and insulting incidents which she contends were motivated by her sex," and noting that a jury could find that this conduct altered the conditions of plaintiff's work environment).
Moreover, "the conduct underlying a sexual harassment claim need not be sexual in nature as long as the conduct is directed at the employee because of his or her sex. Adopting such a standard recognizes that intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances." Dortz v. City of New York, 904 F. Supp. 127, 150 (S.D.N.Y. 1995) (noting that offensive statements made to other staff outside of plaintiffs presence may also be viewed by a factfinder as having contributed to creating a hostile work environment) (citations and internal quotations omitted).
In addition to the verbal insults, Celestino alleges that her crotch was grabbed by Chef Martel, who joked about "growing them big down in Texas," and that she was subjected to physical intimidation as well. Specifically, she cites instances where Blackwell, standing on her feet, pushed her against the wall, taunting her to hit him, and on other occasions sprayed her with a seltzer gun. She alleges that Garayua stole her shoes, slashed her coat, and attempted to intimidate her psychologically by hissing at her in the back stairways and lingering outside her home during a lunch break.
It is clear that, if proven, these allegations demonstrate a pattern of conduct "sufficiently severe [and] pervasive" to support a finding that a reasonable person would consider this to be a hostile and abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. at 21. It is also clear that if plaintiff s testimony is credited, she perceived this to be a hostile environment that not only interfered with and had a negative effect on her work performance, but caused her to suffer serious psychological harm, resulting in traumatic stress disorder and severe depression.
In their papers submitted in support of the motion for summary judgment, defendants do not address plaintiff's allegations of harassment or hostile work environment, other than to suggest that she has complained only of one isolated incident — a position clearly contradicted by the complaint and amended complaint, plaintiffs testimony, and the documents submitted in connection with the complaint. Indeed, to the extent that defendants have failed to submit any evidence denying or contradicting Celestino's hostile work environment allegations, these must be taken as true. Defendants' failure to address these allegations raises a genuine issue of fact as to these claims.
3. Employer Liability — Application
However, even if plaintiff's allegations regarding the harassing behavior of Meis, Garayua, and Blackwell are true, plaintiff must further establish that the harassing conduct should be imputed to her employer and that her employer should be held liable. See. Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d at 63. Where a plaintiff has alleged harassment by a co-worker, the Second Circuit recently re-stated the standard for employer liability, noting that "'the employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.'"Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (quoting Tomka v. Seiler Corp., 66 F.3d at 1305).
In the case of alleged harassment by a supervisor, the Supreme Court recently held that employers are presumptively liable for the actions of supervisors. See. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998); see also Quinn v. Green Tree Credit Corp., 159 F.3d at 767. According to the standards set forth in Ellerth and Faragher, an employer is liable for the harassing conduct of its supervisors unless it can affirmatively prove: "a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. (citations omitted).
Prior to the Supreme Court's recent decisions in Ellerth andFaragher, the Second Circuit held that liability would be imputed to the employer only if the plaintiff could establish that: 1) the supervisor was at a sufficiently high level in the company; or 2) the supervisor used his authority to further the harassment; or 3) the employer provided no reasonable avenue for the complaint; or 4) the employer knew or should have known that the harassment was occurring but unreasonably failed to stop it. See. Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998);Torres v. Pisano, 116 F.3d at 634.
With respect to Garayua and Blackwell, it is clear that they were not Celestino's supervisors and, accordingly, Celestino must establish either that the Club provided no reasonable avenue of complaint or knew of the harassment but did nothing to stop it. With respect to Meis, however, there appears to be a disputed issue of fact as to whether Meis held supervisory authority over Celestino. Celestino alleges that when she was hired by the Club, she was told that Meis would have no authority over her; she was to report directly to Mendes whom she considered to be her supervisor. However, the Club, in its response to plaintiff's complaint to the SDHR, represented that Meis was Celestino's direct supervisor: "The Naitre d' [sic] will in all aspects of his or her duties report directly to the Club Manager, but will also have direct contact with the President and House Chairman as they see fit to discuss matters with him." (Def's. Position Statement at 2; Am. Compl., Ex. 11). Although Celestino alleges that the job description provided by the Club to the SDHR was altered and was not the same as the original job description given to her and signed by her and Meis, there appears to be an issue of fact as to whether Meis was in fact Celestino's supervisor or whether he should be considered a co-worker for purposes of determining the Club's liability regarding plaintiffs hostile work environment claims.
Even if Meis is considered to be merely a co-worker for purposes of this motion, Celestino has presented sufficient evidence to raise a material issue of fact regarding the Club's liability. Celestino's detailed complaint refers to both written and oral comments she made to Mendes, Ortner, and Veronese, outlining the harassment she was experiencing from Meis, Garayua, and Blackwell. She testified that despite her reports of the numerous incidents of harassment, no action was taken by the Club's management beyond verbal reprimands and unfulfilled promises to take care of the problems. Rather, plaintiff alleges that the Board only took action once she finally threatened to report to the Club to the EEOC, and at that time the action taken was to terminate her.
Again, the defendants do not address Celestino's claims that she reported the harassment to Mendes and Ortner but that nothing was done. They have submitted no evidence whatsoever to rebut these allegations, or to otherwise suggest that the Club either had no knowledge of the problem or that it took reasonable steps to deal with the problem once the harassment became known. The defendants' failure to address plaintiff's claims that she closely documented this hostile work environment and complained directly to Club management in various forms and on many occasions over the eight months of her employment, leaves open significant questions of fact in this case, thereby making summary judgment, as a matter of law, inappropriate.
Accordingly, based on the defendants' failure to present any evidence rebutting plaintiff's claims of a hostile work environment, this Court denies defendants' motion for summary judgment as to plaintiff's hostile work environment claims.
D. Plaintiff's Claim of Retaliation and Discrimination
Plaintiff also alleges that she was terminated in retaliation for her complaints about the harassment she was suffering and her threats to file a claim with the EEOC, and that she was subjected to unlawful discrimination on the part of the Board.
1. Retaliation and Discrimination Claims — Standards
Retaliation claims under Title VII are governed by the three-step burden shifting analysis set forth in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993), which governs the allocation of burdens and the order of presentation as to proof. See. id.; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998).
To establish a claim of retaliation, plaintiff must first demonstrate a prima facie case of retaliation by showing: 1) that she participated in a protected activity known to the defendant; 2) that an adverse employment action was taken, disadvantaging plaintiff; and 3) that there is a causal connection between the protected activity and the adverse employment action. See. Quinn v. Green Tree Credit Corp., 159 F.3d at 769; Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); Ortiz v. Trustees of Columbia University, No. 96 CV 3018, 1999 WL 126448, at *6 (S.D.N.Y. Mar. 9, 1999).
Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to point to evidence that there was a legitimate, non-discriminatory reason for the adverse employment action. If the defendant meets this burden, plaintiff must then demonstrate that the proffered legitimate reason was merely a pretext for impermissible retaliation See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d at 769; Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).
Similarly, employment discrimination claims under Title VII are also analyzed under the three-step burden shifting scheme described above as enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Thus, plaintiff is first required to establish a prima facie case of discrimination by showing: "(1) that [she] belongs to a protected class; (2) that [she] was performing [her] duties satisfactorily; (3) that [she] was discharged; and (4) that [her] discharge occurred in circumstances giving rise to an inference of discrimination on the basis of [her] membership in that class." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); accord McDonnell Douglas Corp. v. Green, 411 U.S. at 802. The requirements for establishing such a prima facie case, however, are "minimal," St. Mary's Honor Center v. Hicks, 509 U.S. at 506; accord Austin v. Ford Models. Inc., 149 F.3d 148, 152 (2d Cir. 1998), and courts in this circuit have held that "the Supreme Court intended the lower courts to be flexible in determining what prima facie elements should be utilized." Cifra v. General Electric Co., 62 F. Supp.2d 740, 743 n. 2 (N.D.N.Y. 1999).
To the extent that plaintiff has raised a separate claim of discrimination based on national origin, the allegations of discriminatory comments made by Chef Martel and Mendes regarding minorities would not, standing alone, appear to be sufficient to sustain plaintiff's burden of national origin discrimination. Here, however, the comments concerning plaintiff's national origin are tied to the alleged discriminatory conduct concerning her gender, and are apparently the result of the fact that plaintiff is a female Hispanic. As discussed above, the alleged discriminatory acts of the defendants, when taken as a whole, are sufficient to sustain plaintiffs burden of establishing aprima facie case of discrimination.
Once a plaintiff has established a prima facie case of employment discrimination, the burden then shifts to the employer to establish a non-discriminatory reason for the employment decision. See. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Finally, if the defendant employer has met its burden, plaintiff has the ultimate burden of showing that "it is more likely than not that the employer's decision was motivated at least in part by a discriminatory reason."Lapsley v. Columbia Univ., 999 F. Supp. 506, 513 (S.D.N.Y. 1998). A plaintiff can satisfy this burden either directly by showing that discriminatory animus motivated the employer's decision or indirectly by showing that "the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 256.
2. Prima Facie Case — Application
Here, Ms. Celestino presented evidence sufficient to establish the first two prongs of the prima facie test for the retaliation claim and the first three prongs of the prima facie test for the discrimination claim. With respect to her claim of retaliation, it is clear that she participated in a protected activity known to the defendants when she complained about the harassment. See Reed v. A.W. Lawrence Co. Inc., 95 F.3d at 1178-81. Similarly, with respect to her claim of discriminatory motives for the termination, defendants have conceded that she is a member of two protected classes and have not, in this motion, presented any evidence to suggest that she was unqualified for her position or was performing unsatisfactorily. She also unquestionably suffered an adverse employment action when she was terminated.
Although defendants do not assert or present any evidence in their motion papers that Celestino was performing unsatisfactorily at her maitre d' position, the Supplemental Position Statement submitted by the Club to the SDHR asserts that Celestino was terminated not just due to economic budget concerns, but also because of Celestino's "management style of 'intimidation rather than management by example and direction.'" (Am. Compl., Ex. 3 at 3). See. discussion infra at 47-48.
With respect to the third prong of the retaliation claim test, courts have held that in retaliation cases, a causal connection between the protected activity and the adverse employment decision can reasonably be inferred from assertions similar to those in this case. See, e.g., Reed v. A.W. Lawrence Co., Inc., 95 F.3d at 1178 (holding that a causal connection was shown by evidence of a twelve-day span between the complaint of harassment and plaintiffs discharge); see also Gallagher v. Delaney, 139 F.3d at 349 (in the context of a motion for summary judgment, inferring causation from the fact that plaintiff was afforded liberal sick leave and vacation, received good performance reviews, and worked in a more prestigious position until shortly after she complained of harassing behavior). Here, plaintiff allegedly informed Mendes at the end of November 1991 that she would refer staff members to the EEOC or State Division of Human Rights if no action was taken against Meis. Mendes allegedly told Celestino that the Club was exempt from certain regulations and that any efforts to file a complaint would be futile. A little over a month after this conversation, Celestino's employment was terminated.
With respect to the fourth prong of the prima facie test for plaintiffs discrimination claim, Celestino claims that her termination was prompted in part by the discriminatory motivations of Ortner and Veronese. She alleges that they refused to address her by her proper title and were patronizing toward women and minorities, referring to minorities as "those people." (Tr. at 214). She claims that Veronese treated her as if she were "a simple-minded child" (Tr. at 513), and believes that neither Ortner or Veronese were willing to accept a female maitre d' at the Club. Plaintiffs testimony, supported by the corroborative evidence submitted as part of her amended complaint, is sufficient to raise a material issue of fact as to whether her termination occurred in circumstances giving rise to an inference of discrimination. Based on all of the evidence, plaintiff has successfully established a prima facie case for both her retaliation and discrimination claims.
Defendants argue that the "stray remarks" doctrine and the "same actor" inference should apply here. The Second Circuit has recognized that stray remarks alone are, as a matter of law, insufficient to create a material issue of fact sufficient to defeat a summary judgment motion concerning discrimination claims. See Spence v. Maryland Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993) (decided in age discrimination context); Ruane v. Continental Cas. Co., No. 96 CV 7153, 1998 WL 292103, at *8 (S.D.N.Y. June 3, 1998); O'Connor v. Viacom Inc., No. 93 CV 2399, 1996 WL 194299, at *5 (S.D.N.Y. April 23, 1996); see also Tomka v. Seiler Corp., 66 F.3d at 1306 n. 5. The Second Circuit has also recognized that in certain circumstances, it is appropriate to permit an inference that discriminatory animus is unlikely where the same person who hired an individual is responsible for firing that individual a short time later.See. Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 137-38 (2d Cir. 2000); Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997); Ruane v. Continental Cas. Co., 1998 WL 292103, at *8. While application of these doctrines might, without more, warrant granting summary judgment in this case, the totality of the evidence submitted by Celestino is sufficient to raise a material issue of fact, see, e.g.,Carlton v. Mystic Transportation, Inc., 202 F.3d at 136, as to whether Ortner and Veronese harbored discriminatory animus against women and minorities that may have played a role in their decision to terminate Celestino rather than deal with her claims of harassment and a potential inquiry by the EEOC. Indeed, the Final Investigation Report and Basis of Determination issued by the SDHR (the "Report") notes that "Complainant's reasonable and legitimate complaints suggests [sic] Respondent [the Club] may have condoned the discriminatory conduct of its employees." (Report at 3; Am. Compl., Ex. 5). See. discussion infra at pp. 46-47.
3. Non-discriminatory Reason and Pretext
In response, defendants have articulated a legitimate non-discriminatory reason for Ms. Celestino's discharge. Specifically, they contend that plaintiff was discharged for economic reasons based on budget constraints. In his affidavit, Mark Mendes asserts that the Club decided to hire a maitre d' with the expectation that there would be increased efficiency, increased member satisfaction, and increased use of the Club's dining facilities. (Mendes Aff. ¶ 6 (Ex. 4 to Defs.' Notice of Mot.)). However, according to Mendes, in January 1992 the Club determined that its financial position had worsened and that membership had dropped by ten percent. (Id., ¶ 7). Since the Club's expectations had not been realized as a result of the maitre d' position and the position "was a luxury that [the Club] could not afford," the position of maitre d' was eliminated and the Club has not employed maitre d' since that time. (Id. ¶ 8, 9).
Defendants contend that because the Club has articulated a legitimate, non-discriminatory business reason for plaintiffs termination, summary judgment in their favor is appropriate. Defendants are correct unless plaintiff can establish evidence showing that the business reason articulated is pretextual. See. Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (noting that the burden on the employer is merely one of articulation under the McDonnell Douglas framework; the plaintiff bears the burden of persuasion on pretext); see also Ruane v. Continental Cas. Co., 1998 WL 292103.
With respect to plaintiff's burden of showing pretext, the Supreme Court has clearly stated that "a reason cannot be proved to be a 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. at 515. In the context of a motion for summary judgment, "the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer's reason for discharging her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision." Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994).
In this context, this Court notes that "[a] victim of discrimination is . . . seldom able to rove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. Consequently, in a [discrimination] action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (citations omitted). However, while the non-moving party cannot ordinarily defeat a motion for summary judgment based on the mere incantation of intent or state of mind, the plaintiff must present sufficient evidence to raise a material issue of fact regarding the employer's motivation in terminating her.
Defendants contend that Celestino has failed to come forward with sufficient evidence to show either that the Club's articulated reason for the termination lacks credibility or to establish a discriminatory basis for the decision. Moreover, in their Reply Memorandum submitted in connection with this motion and during the course of oral argument before this Court, defendants argue that summary judgment should be granted in their favor because plaintiff failed to comply with the requirements of Local Rule 56.1. However, as discussed below, plaintiffs failure to comply with the provisions of the Local Civil Rule is not a sufficient basis on which this Court can justify granting summary judgment in defendants' favor. Rather, this Court finds that even if Ms. Celestino is not in technical compliance with the local rules, her pro see submission, taken as a whole and viewed in the light most favorable to her as the party opposing summary judgment, is sufficient to raise material issues of fact that require a trial.
Specifically, in her Memorandum of Law in Opposition to Motion for Summary Judgment, dated December 30, 1998, Celestino responds point by point to each issue raised by the defendants in their motion for summary judgment. Moreover, plaintiff has submitted documentation that raises questions of material fact and provides additional corroborative support for her own sworn deposition testimony.
Perhaps the two most significant documents submitted by Celestino relative to the issue of pretext are the Report of the SDHR (Am. Comp., Ex. 5), and defendants' own Supplemental Position Statement (Am. Compl., Ex. 3), which was submitted to the SDHR. The Report issued by the SDHR states that the "investigation has revealed that the Complainant has been discriminated against because of her sex and national origin." (Report at 2). The Report further notes that Celestino was "the only female in a supervisory position;" that the Club's employees "resented" her and tried "to systematically humiliate, belittle and embarrass her;" that she was "verbally assaulted as well as maligned by her co-workers;" that, although her concerns were made known to her supervisors, "these concerns were not treated as valid;" and that nothing was done by the Club "to respond in any way" to her complaints. (Id. at 2-3). The Report also states that there were other employees of the Club who supported Celestino's claims that had Celestino not been a female and Hispanic, she would not have been subjected to this treatment. (Id. at 3). The Report concludes that the Club's failure to correct this hostile work environment "suggests [the Club] may have condoned the discriminatory conduct of its employees." (Id.)
While these "findings" are not dispositive of the question before this Court, the fact that the investigation conducted by the SDHR produced corroborative evidence supporting Celestino's claims is something this Court may consider in determining whether there is in fact a material issue in dispute regarding defendants' motivations in terminating Celestino.
Additional evidence that raises questions about the true reasons for plaintiffs termination appears in the Club's own Supplemental Position Statement. In that statement, the defendants assert that the reason Ms. Celestino was terminated was not just the economic budget concerns described in Mendes' Affidavit, but also Celestino's "management style of 'intimidation rather than management by example and direction.'" (Supp. Position Statement at 3). This rationale put forward before the SDHR was obviously of significance to its findings because it is noted in the Report that the Club contended that Celestino "was not fired because of her sex or national origin, but in fact was terminated because she was abrasive and difficult to deal with and had numerous problems in dealing with her staff" (Report at 2). However, despite the fact that the Club attempted to justify her termination before the SDHR based on her management style, Celestino alleges in her complaint that at the time of her termination, she was never told that her performance was being considered in making the decision to terminate her. Rather, she contends that defendants never advanced this rationale until her complaint was filed with the SDHR. Moreover, in another apparent reversal of position, the defendants now seem to be asserting that only economics played a role in her termination.
The Court notes that the bases for the complaints about Celestino's "management style" and staff problems were reviews and comments made by Bill Meis, the individual who Celestino asserts was principally responsible for instigating the harassment. An inference could be drawn that Celestino's problems with the "staff" were not the result of her management style, but rather reflected her reaction to the harassing treatment she received from Garayua, Blackwell, and others, which was encouraged Meis. While it may be that defendants will eventually be able to show that they had a legitimate, non-discriminatory reason for terminating Celestino, the evidence of defendants' shifting position raises material questions concerning the defendants' true motivation for Celestino's firing. See. Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 137 (2d Cir. 200) (holding that in a summary judgment context under the McDonnell Douglas framework, an "inconsistency between the justifications offered for [plaintiff's] dismissal in the two proceedings raises a genuine issue of material fact with regard to the veracity of [the] nondiscriminatory reason"); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994); Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1023 (8th Cir. 1998).
The Court finds that the evidence submitted by plaintiff is sufficient to raise material issues of fact concerning whether the rationale provided by defendants for Celestino's termination is true and whether discrimination and retaliation played a part in that termination. Accordingly, this Court finds that summary judgment on these issues is not appropriate in this case.
E. Plaintiff's Failure to Comply with the Local Rules
Defendants urge this Court to grant summary judgment on the grounds that plaintiff has failed to comply with Local Civil Rule 56.
Local Civil Rule 56.1 mandates that once a party makes a motion for summary judgment, the non-moving party is required to respond to the moving party's statement of uncontested facts by outlining in a separate statement the issues of fact still in dispute. S.D.N.Y. E.D.N Y Local Civ. R. 56.1. Courts have held that when the non-moving party fails to submit such a statement, the moving party's factual assertions will "be deemed to be admitted." S.D.N.Y. E.D.N.Y. Local Civ. R. 56.1(c);Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984) (holding that where a plaintiff fails to respond to a defendant's Rule 3(g) statement, the 3(g) statement is deemed admitted); Hodge v. RCA Global Communications, Nos. 93 CV 261, 93 CV 347, 1994 WL 240373, at *1 (S.D.N.Y. May 26, 1994) (same); Velinskie v. Holiday Inns, Inc., No. 87 CV 3604, 1988 WL 76352, at *2 (S.D.N.Y. July 13, 1988) (same). Defendants contend that since their Rule 56.1 submission states that "the Board of Director's [sic] decided to eliminate the newly created Maitre d' position due to its failing economic condition" (Defs.' Rule 56.1 Statement ¶ 6), plaintiffs failure to submit her own Rule 56.1 counter-statement contesting this assertion should be deemed an admission by her that her termination was the result of a legitimate business decision and not a pretext for discrimination.
Local Civil Rule 3(g) was the predecessor to the current Local Civil Rule 56.1 and contained essentially the same provisions.
The Second Circuit recently cautioned that responses from pro se non-movants to summary judgment motions should be analyzed in terms of whether the non-movant fully understood the consequences of the summary judgment motion against them and the procedures for responding. In Vital v. Interfaith Medical Center, the Second Circuit expressed concern "regarding pro se litigants' understanding of summary judgment," stating that this concern was "not extinguished by the mere fact that a pro se litigant files a response of some sort." 168 F.3d 615, 621 (2d Cir. 1999). In these situations, it is vital that the District Court determine "whether the pro se litigant had such an understanding" and "[i]n the absence of explicit notice from the District Court or an opposing party, the nature of the papers submitted by the litigant and the assertions made therein as well as the litigant's participation in proceedings before the District Court may assist" in making this determination. Id. "[T]he issue in each case remains whether from all of the circumstances, including the papers filed by the pro se litigant, it is reasonably apparent that the litigant understood the nature of the adversary's summary judgment motion and the consequences of not properly opposing it." Sawyer v. American Fed. of Gov't Employees, AFL-CIO, 180 F.3d 31, 35 (2d Cir. 1999).
Following Vital, the Second Circuit in McPherson v. Coombe found that although the pro se non-movant did submit certain papers in response to the summary judgment motion that disputed the defendant's version of events, and stated that he would prove his claims with affidavits, "awareness of the existence of Rule 56 [of the Federal Rules of Civil Procedure], without more, [does not] constitute the understanding of the nature and consequences of summary judgment required under Vital." 174 F.3d 276, 281 (2d Cir 1999). Thus, the Second Circuit in McPherson held that even though the plaintiff filed a response to the summary judgment motion, which raised disputed issues of fact and specifically referred to Rule 56, summary judgment was inappropriate. But see Sawyer v. American Fed. of Gov't Employees, AFL-CIO, 180 F.3d at 36 (granting summary judgment, in part, because the submissions of the non-moving pro se party satisfied the court that "he understood his burden to produce evidence opposing the motion for summary judgment").
These decisions further extend the standard developed by the Supreme Court in Haines v. Kerner and subsequent cases, which have held the pleadings and subsequent papers of pro se litigants "to less stringent standards than formal pleadings drafted by lawyers" in order to give thepro se party an "opportunity to offer proof" 404 U.S. 519, 520-21 (1972) (per curiam); see also Graham v. Lewinski, 848 F.2d 342 (2d Cir. 1988) (holding that filing an affidavit in opposition to a motion is not obvious to the layman).
In the instant case, it is difficult to determine whether or not Ms. Celestino was fully aware of the consequences of not submitting a counter-statement of disputed facts as required by Local Civil Rule 56.1. However, regardless of whether Celestino fully appreciated the significance of the Local Rule, her papers submitted in opposition to the motion are sufficient under Rule 56 of the Federal Rules of Civil Procedure to raise material issues of fact that preclude granting summary judgment in any event.
Rule 56(c) lists the type of materials that may be relied on by the court in determining whether there is any genuine issue of material fact in dispute, including "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Fed.R.Civ.P. 56(c). It is clear that the court may consider only those facts that would ordinarily be admissible at trial, see Camporeale v. Airborne Freight Corp., 732 F. Supp. 358, 364 (E.D.N.Y. 1990); see also Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 924 (2d Cir. 1985) (holding that a party opposing a motion for summary judgment may not rely on inadmissible hearsay "absent a showing that admissible evidence will be available at trial"), and that the non-movant cannot rely solely on the pleadings to create issues of fact in opposition to a motion for summary judgment. See, e.g., Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (2d Cir. 1990). However, the Second Circuit has held that "'when the evidence offered in opposition to [a motion or cross-motion for summary judgment] is defective in form but is sufficient to apprise the court that there is important and relevant information that could be proffered to defeat the motion, summary judgment ought not to be entered.'" Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1389 (2d Cir. 1992) (quoting 10A C.A. Wright, A.R. Miller, M.K. Kane, Federal Practice Procedure § 2728, at 190 (2d ed. 1983)); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 324 (1986) (noting that the non-moving party need not produce evidence in a "form that would be admissible at trial in order to avoid summary judgment").
Thus, even though some types of documents are not specifically mentioned in Rule 56(c), courts routinely consider such documents in deciding summary judgment motions despite the fact that the form of these documents may be hearsay in nature. See, e.g., Matsushita Elec. Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986); First Nat. Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 263-64 (1968); Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987). In Catrett v. Johns-Manville Sales Corporation, the D.C. Circuit denied a motion for summary judgment relying in part on a letter that, although technically inadmissible at trial in its proffered form, was ultimately reducible to admissible form through the author's appearance at trial as a witness. 826 F.2d at 38. Other courts have refrained from granting summary judgment when non-compliance with the rule is merely technical and it appears that there is important and relevant information that could be proffered to defeat the motion. See, e.g., City of Waltham v. U.S. Postal Serv., 11 F.3d 235, 243 (1st Cir. 1993); Liberty Mutual Ins. Co. v. Rotches Pork Packers. Inc., 969 F.2d at 1389.
In this case, Ms. Celestino has submitted a number of documents in opposition to the defendants' motion. In addition to the Report and the Position Statements discussed earlier, Ms. Celestino has submitted the statements of Owen Marvel and Maureen McCarran, former employees of the Club, both of whom stated that they witnessed repeated incidents of harassment and abuse of Celestino committed by Meis, Blackwell, and Garayua. Their testimony, along with the business records kept by Celestino in the course of her duties and provided to Mendes and Ortner, supply corroborating evidence in support of Celestino's sworn testimony. Although these documents were not submitted separately in opposition to the motion for summary judgment, they were filed as part of the amended complaint and may be considered by the Court as part of the record. Indeed, defendants incorporated Celestino's amended complaint and exhibits as a footnote to their Rule 56.1 statement.
Although the Report itself may not be admissible in its present form, it "is sufficient to apprise the court that there is important and relevant information that could be proffered to defeat the motion."Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d at 1388. On the other hand, the Club's Position Statement and the Supplemental Position Statement are admissible as party statements. See. Fed.R.Evid. 801(d)(2).
Celestino also includes as an exhibit to her Response the settlement agreement reached in Flo Allen's Title VII complaint against the Club (Ex. 8), alleging racially discriminatory comments made by Meis. Although the settlement agreement itself may ultimately not be admissible at trial, the allegations underlying it, if testified to at trial, provide further corroboration for Celestino's allegations and suggest a possible pattern of discrimination at the Club. The incident alleged by Ms. Allen occurred during the period of Ms. Celestino's employment and closely resembles the discrimination Celestino alleges she experienced.
Defendants, however, assert that the court should not consider these witnesses' statements in opposition to the motion for summary judgment. They point to the statement of Joe Marvel, father of Owen Marvel, arguing that Joe Marvel has no first-hand knowledge of the events in question. While defendants are correct with respect to Joe Marvel's statement, the statements of both Maureen McCarran and Owen Marvel appear to be based on personal observations of incidents involving Celestino and a number of the named defendants. For example, Owen Marvel recites an incident in which he was involved where Meis allegedly shouted that Celestino was a "fucking lying bitch," and he details other occasions when he observed both Garayua and Blackwell harassing Celestino. (Am. Compl., Ex. 13). Similarly, Ms. McCarran's statement describes in detail first-hand experiences and observations of the alleged harassment. (Am. Compl., Ex. 12).
These are clearly the types of statements contemplated by Rule 56. Moreover, to the extent that the witnesses' statements may be technically deficient in that they are not entitled "affidavit" nor do they bear any notation that the witnesses were sworn prior to signing the statements, the statements are signed by the witnesses and are notarized. If these witnesses were to testify at trial in accordance with their statements, their testimony would strongly corroborate Celestino's account of the discriminatory treatment she experienced while employed by the Club and would raise questions as to the reasons for her termination. These multiple sources of proof offered by plaintiff, if believed by a jury, would meet the standards outlined in Harris for establishing a hostile work environment. 510 U.S. at 23. Based on Celestino's deposition testimony, corroborated by her logs and the statements of other employees whose testimony would be admissible if they testified at trial, this Court denies the Club's motion for summary judgment based on plaintiffs failure to comply with the requirements of Local Civil Rule 56.1.
F. Claims Against the Individual Defendants
Finally, the individual defendants move for summary judgment on the grounds that the Second Circuit has clearly held that individuals cannot be held liable under Title VII. See. Tomka v. Seiler Corp., 66 F.3d 1295, 13 13-17 (2d Cir. 1995), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998); see also Chinn v. City University of New York School of Law at Queens College, 963 F. Supp. 218 (E.D.N.Y. 1997); Tagare v. NYNEX Network Systems Co., 921 F. Supp. 1146 (S.D.N.Y. 1996). This Court agrees and hereby dismisses plaintiffs Title VII claims against the individual defendants.
Moreover, to the extent that plaintiff argues in her papers that the individuals can be held liable in a Section 1983 claim, this Court notes that not only has plaintiff failed to allege such a claim, but even if she had, there is no basis in the record before this Court to suggest that she will be able to satisfy the elements of such an action. Specifically, in order to establish a claim under 42 U.S.C. § 1983, plaintiff must prove that there was a state action involved in the discrimination. Here, there is nothing to suggest that this admittedly private club is an "instrumentality of the state" or that any of the individual defendants are somehow "state actors." See. Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996).
Accordingly, plaintiff's claims against the individual defendants are hereby dismissed.