Opinion
08 CV 6705 (DAB).
July 28, 2011
MEMORANDUM AND ORDER
Plaintiff Captain Sandra Ellis brings this action against her employer, the City of New York, as well as the New York City Department of Corrections (D.O.C.), Commissioner of the D.O.C. Martin F. Horn, and Deputy Warden Rafael Olivo (collectively "Defendants"), for gender discrimination and retaliation pursuant to 42 U.S.C. § 2000(e) et. seq. of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), and 42 U.S.C. § 1983 ("Section 1983"). Plaintiff alleges quid pro quo sexual harassment, hostile work environment, gender discrimination, and retaliation under Title VII. She also alleges hostile work environment and retaliation claims under the NYSHRL and NYCHRL. Finally, she also alleges a pattern and practice of discrimination under Section 1983. Defendants move for summary judgment on each of Plaintiff's claims. For the following reasons, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.
Defendants state that this is the correct spelling of Defendant Olivo's name. (Defs.' Local Civil Rule 56.1 Stmt. n. 1.)
I. BACKGROUND
Except where noted, the following facts are undisputed. Plaintiff has been employed with Defendant D.O.C. as a correction officer since 1991. (Defs.' 56.1 Stmt. ¶ 1.) In 2004, Plaintiff was promoted to the rank of Captain. (Pl.'s 56.1 Stmt. ¶ 9.) Plaintiff was transferred at her request to the Vernon C. Baines Center ("VCBC") on September 16, 2006. (Defs.' 56.1 Stmt. ¶ 10.) As a captain at VCBC, Plaintiff reported to several Assistant Deputy Wardens ("ADWs"), including ADW Willie Randall, ADW Robert Mitil, and ADW Turhan Gumusdere. (Defs.' 56.1 Stmt. ¶ 11.) In October 2006, Deputy Warden ("DW") Joe Jones chose Plaintiff to fill the position of facility business manager at VCBC. (Defs.' 56.1 Stmt. ¶ 12.) When Plaintiff first began serving as business manager, she reported to DW Jones as well as the tour commanders who were on duty at that time. (Defs.' 56.1 Stmt. ¶ 14.)
On December 29, 2006, Defendant DW Olivo was transferred to VCBC to serve as DW for Security and Programs. (Defs.' 56.1 Stmt. ¶ 17.) He reported directly to Warden Thomas (Defs.' 56.1 Stmt. ¶ 18.) When DW Jones left the facility in January 2007, Defendant DW Olivo also began serving as DW of Administration. (Defs.' 56.1 Stmt. ¶ 19.)
Plaintiff makes numerous allegations of inappropriate conduct by Defendant Olivo, but Defendants dispute nearly all the claims. Plaintiff states that she was immediately uncomfortable with Defendant Olivo based on the way he looked at her. (Ellis Aff. ¶ 37.) She alleges that he would give her "unwelcome compliments" on her various hairstyles. (Ellis Aff. ¶ 39.) She further alleges that he would frequently call her into his office simply to talk, and that she was forced to stay there while he asked her personal questions. (Ellis Aff. ¶ 39-40.) She states that although she was not physically barred from leaving, out of respect she could not leave until he dismissed her because he was her superior officer. (Seacord Decl. Ex. B; Ellis Dep. p. 84:4-10.) She claims he asked her about her marriage, and told her "Don't worry, I am not going to break up your marriage." (Ellis Aff. ¶ 41.) She states that he would talk about his motorcycle and ask her why she did not talk to him, and why she stood back when he approached her. (Seacord Decl. Ex. B; Ellis Dep. p. 84:11-18.) She also states that he stood "uncomfortably close" to her when speaking to her, and told her she reminded him of "a child that's been beat a lot" because she would always step back from him. (Seacord Decl. Ex. B; Ellis Dep. p. 84:19-23.) Plaintiff states that on two occasions Defendant Olivo asked Plaintiff why she did not like him or come into his office and talk to him. (Seacord Decl. Ex. B; Ellis Dep. p. 89:15-24.) Plaintiff claims at one point Defendant Olivo asked her how she saw him; she replied that she saw him as whimsical, and he became angry at her. (Ellis Aff. ¶ 46.) She also claims that he asked her to describe her husband and asked her several times if he was "big like me." (Ellis Aff. ¶ 47.) After describing her husband's stature and height, Plaintiff realized that Defendant Olivo's comment had a sexual connotation and walked away. (Ellis Aff. ¶ 47.) She states that on one instance he came into her office to say good night, picked her hand up off the desk, sniffed it, and then kissed it. (Ellis Aff. ¶ 47.) Plaintiff states that Defendant Olivo told her he was "thinking about her" and asked her to dinner at Frankie's and Johnnie's, and that when she pretended someone was calling him so she would not have to answer, and that he stated indignantly "You saying no to me?". (Ellis Aff. ¶ 48-50.) She claims that two days after this incident she was subjected to disciplinary action as the result of lies about her by Defendant Olivo and ADW Gumusdere. (Ellis Aff. ¶ 51.)
The incident referred to seems to be the February 3, 2007 complaint report filed by ADW Gumusdere charging Plaintiff with leaving two hours early on February 2, 2007, without permission. (Defs.' 56.1 Stmt. ¶ 30.) Defendant Olivo wrote a Notice of Command Discipline charging Plaintiff with this offense on February 7, 2007, upon receiving ADW Gumusdere's report. (Ellis Aff. 74; see McMickens Decl. Ex. FF.) A hearing was held on this matter on February 15, 2007. (Defs.' 56.1 Stmt. ¶ 35.)
The parties present different versions of the events of February 2, 2007. Plaintiff states she requested two hours leave from Defendant Olivo, who informed her she must stay and wait for the locksmith, and to speak to him about leaving when the locksmith departed. (Ellis Aff. ¶ 68.) Plaintiff states that when the locksmith finished, Defendant Olivo was not in the facility, so she spoke to the next in command, ADW Gumusdere, who gave her the time off. (Ellis Aff. ¶ 68.) She filled out the Time Due Form and gave it to ADW Gumusdere. (Ellis Aff. ¶ 68.) She states as she was leaving, she saw Defendant Olivo and ADW Gumusdere at the gate, told Defendant Olivo that ADW Gumusdere had given her the time off, and left without incident. (Ellis Aff. ¶ 69.) The Time Due Form was signed by Defendant Olivo. (Pl.'s 56.1 Stmt. ¶ 71;see McMickens Decl. Ex. DD.) Plaintiff claims she was written up because she "do[es] not and will not engage in sexual banter or have drinks with [her] boss." (Pl.'s 56.1 Stmt. ¶ 73.)
Defendants present a different version of events. Defendants claim that Plaintiff requested permission to leave early from ADW Gumusdere and presented him with a completed Request To Be Excused From Duty Form and stated that Defendant Olivo had already given her permission to leave early. (Defs.' 56.1 Stmt. ¶ 27; see Seacord Decl. Ex. P, H.) As Plaintiff left the facility, Defendant Olivo approached ADW Gumusdere and inquired why Plaintiff was leaving early. (Defs.' 56.1 Stmt. ¶ 28; see Seacord Decl. Ex. M, P.) Defendant Olivo then stated to ADW Gumusdere that he had not given Plaintiff such permission. (Defs.' 56.1 Stmt. ¶ 28; see Seacord Decl. Ex. M, P.) Then after speaking to Defendant Olivo, ADW Gumusdere attempted to locate Plaintiff to prevent her from leaving, but was unable to contact her before she left. (Defs.' 56.1 Stmt. ¶ 29; see Seacord Decl. Ex. P.)
On February 14, 2007, Plaintiff filed a complaint with Warden Thomas about Defendant Olivo's alleged sexual harassment of her. (Defs.' 56.1 Stmt. ¶ 36.) On February 15, when the disciplinary hearing was held on the February 3 charges, Plaintiff claims that her union representative Captain Bianchi stated that ADW Gumusdere wrote her up at the direction of Defendant Olivo, and that Captain Inman of the Correctional Captain's Association came into the room and said "DW Olivo will drop the charges if you drop your sexual harassment charge." Plaintiff refused to do so. (Ellis Aff. ¶ 82.) The parties do not dispute the fact that the disciplinary charges against Plaintiff were dropped after the hearing. (Defs.' 56.1 Stmt. ¶ 35.)
Another incident occurred in late January when $551.90 worth of items went missing from the commissary, for which Plaintiff was responsible as business manager. (Defs.' 56.1 Stmt. ¶ 13, 21.) On January 29, 2007, the commissary manager, Eleanor Peralta informed Plaintiff that she believed numerous items were missing from the commissary, yet Plaintiff did not report it until February 1. (Defs.' 56.1 Stmt. ¶ 20, 22.) Although Plaintiff attempts to dispute this, she states she was told of the missing items on January 29 in her deposition and fails to provide any evidence supporting that there is a dispute of fact here. (Pl. 56.1 Stmt. ¶ 20; Seacord Decl. Ex. B; Ellis Dep. p. 98:13-25.) On January 31, when Plaintiff conducted her month-end inventory of the commissary, she discovered that $551.90 of items were missing. (Defs.' 56.1 Stmt. ¶ 21.) On February 1, ADW Gumusdere informed Defendant DW Olivo that approximately $600.00 worth of commissary items were missing, and informed Defendant Olivo that he had assigned Plaintiff to investigate. (Defs.' 56.1 Stmt. ¶ 23.)
Plaintiff attempts to cite to Ms. Eleanor Peralta's memo dated 2/26/07 as part of McMickens Decl. Ex. Z. However, such memo is not a part of McMickens Decl. Ex. Z.
On February 13, ADW Gumusdere filed a command discipline against Plaintiff for failing to submit her report within the five day timeframe for such reports. (McMickens Decl. Ex. II.) Plaintiff submitted her report on February 13. (Defs.' 56.1 Stmt. ¶ 32.) Another charge was added on February 15 against Plaintiff for failing to notify her supervisor of the missing items until February 1, when per her own report she was aware of the missing items before that date. (Defs.' 56.1 Stmt. ¶ 39; McMickens Decl. LL.) Plaintiff claims that no due date was given for her report and the charges were made against her as retaliation for filing her February 14 complaint about Defendant Olivo. (Ellis. Aff. ¶ 80.)
After receiving Plaintiff's complaint against Defendant Olivo dated February 14, Warden Thomas met with Plaintiff and told her she could report directly to him, rather than dealing with Defendant Olivo. (Defs.' 56.1 Stmt. ¶ 39.) Warden Thomas also forwarded the complaint to the Equal Employment Opportunity ("EEO") office. (Defs.' 56.1 Stmt. ¶ 39.) Plaintiff felt this was effective and did not file a formal complaint with the EEO office against Defendant Olivo at this time. (Defs.' 56.1 Stmt. ¶ 40.)
Plaintiff also alleges various acts of retaliation which occurred after this point. The first such act was being removed from the business manager position in May 2007, even though she does not dispute that she was initially informed this position was only temporary. (Defs.' 56.1 Stmt. ¶ 41.) She also claims she was placed on "the wheel" in July 2007, meaning that she did not work a set schedule. (Defs.' 56.1 Stmt. ¶ 44; Pl.'s 56.1 Stmt. ¶ 44.) Plaintiff was placed on the wheel after Warden Thomas left the facility and was replaced by Warden LaBruzzo. (Defs.' 56.1 Stmt. ¶ 44.)
On August 29, 2007, Plaintiff was served with formal charges regarding her investigation into the missing commissary items. (Defs.' 56.1 Stmt. ¶ 45.) On September 18, 2007, Plaintiff filed a charge of discrimination with the EEOC stating that Defendant Olivo had sexually harassed her and that he ordered ADW Gumusdere to make disciplinary charges against her when she refused his advances. (Defs.' 56.1 Stmt. ¶ 46.)
Plaintiff alleges several further acts of retaliation after her EEOC charge was filed. In February 2008, Plaintiff applied for the steady post of Program Captain, which was awarded to Captain Tammy Lake, based upon her attendance, punctuality, work performance, and seniority. (Defs.' 56.1 Stmt. ¶ 48.) Plaintiff claims in her deposition that because Captain Lake never worked the post, it should have been awarded to Plaintiff, the next most senior Captain. (Pl.'s 56.1 Stmt. ¶ 48; McMickens Decl. Ex. C.) Plaintiff was awarded the steady post of Housing Area A/B Relief in July 2008. (Defs.' 56.1 Stmt. ¶ 52.)
Plaintiff initiated this action with the Court on June 28, 2008, after being informed by Department of Justice that she had a right to do so. (Defs.' 56.1 Stmt. ¶ 49-50.) She alleges several other acts of retaliation which occurred after this point. She claims she was denied a request to transfer out of VCBC in March 2009 by Chief of Administration Valerie Oliver. (Ellis Aff. ¶ 120; Seacord Decl. Ex. B; Ellis Dep. p. 138:23-140:3.) Plaintiff also claims two command disciplines which were filed against her by ADW Mitil in September 2008 and August 2009 were retaliatory acts. (Defs.' 56.1 Stmt. ¶ 53-58;see Pl.'s Mem. Law p. 24-25.)
II. DISCUSSION
A. Legal Standard for a Motion for Summary Judgment
A district court will grant summary judgment only when there is "no genuine dispute as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine disputes of material fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, "after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).
In assessing when summary judgment should be granted, "there must be more than a `scintilla of evidence' in the non-movant's favor; there must be evidence upon which a fact-finder could reasonably find for the non-movant." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). While a court must always "resolv[e] ambiguities and draw [] reasonable inferences against the moving party," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson, 477 U.S. at 252), the non-movant may not rely upon "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Id. at 12. Instead, when the moving party has documented particular facts in the record, "the opposing party must `set forth specific facts showing that there is a genuine issue for trial.'" Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "`to put up or shut up.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).
B. Administrative Remedies
As a preliminary matter, it should be noted that Plaintiff has exhausted her administrative remedies prior to filing this Title VII claim. To file a Title VII claim, a plaintiff must pursue available administrative remedies and file a timely charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001); see also 42 U.S.C. § 2000e-5(f)(1).
Defendants argue that Plaintiff failed to exhaust her administrative remedies because she did not allege claims of retaliation in her EEOC charge. (Defs.' Mem. Law. at 4.) Nevertheless, Plaintiff may bring claims reasonably related to those raised in her EEOC charge without first filing them with the EEOC, including conduct that would likely fall within the scope of the EEOC investigation, further incidents of discrimination carried out in the same manner as those alleged in the charge, or claims of retaliation for filing a charge of discrimination. Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 83, 83 n. 6 (citing Butts v. City of N.Y. Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993)); see also, Musaji v. Banco do Brasil, No. 10 Civ. 8541 (RJH), 2011 WL 2507712, at *6 (S.D.N.Y. June 21, 2011) (recognizing "the three Butts exceptions" to the general rule that allegations of discrimination must be included in the administrative charge before they can be raised in court).
DOC's Equal Employment Opportunity ("EEO") office began investigating Defendant Olivo pursuant to Plaintiff's February 14, 2007 Memo to Warden Thomas. (Defs.' 56.1 Stmt. ¶ 40.) Plaintiff filed an official EEOC charge on September 18, 2007, alleging sexual harassment and continuing discriminatory action by Defendant Olivo. (Defs.' 56.1 Stmt. ¶ 46.) In this charge, Plaintiff also marks the box on the form to indicate retaliation. (Seacord Decl. Ex. W). On April 28, 2008, the United States Department of Justice's Civil Rights Division issued Plaintiff a "right-to-sue" notice, and Plaintiff initiated suit on June 28, 2008. (Defs.' 56.1 Stmt. ¶ 49-50.) In her Complaint, Plaintiff makes the same allegations of sexual harassment by Defendant Olivo, as well as retaliation claims for complaining about the harassment. Accordingly, the allegations in the Complaint are reasonably related to those in the EEOC charge, and Plaintiff has exhausted her administrative remedies.
C. Title VII, NYSHRL, and NYCHRL Harassment Claims
Title VII makes it an unlawful employment practice "for an employer . . . to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of," inter alia, "such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has made clear that this language "is not limited to `economic' or `tangible' discrimination" but rather, "[t]he phrase `terms, conditions, or privileges of employment' evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). It is well-established that both "quid pro quo" and "hostile work environment" sexual harassment are actionable as gender discrimination under Title VII. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (citing Meritor, 477 U.S. at 65, 72). Claims under the NYSHRL and the NYCHRL typically follow the same analysis as claims under Title VII. See Gutierrez v. City of N.Y., 756 F. Supp. 2d 491, 502 (S.D.N.Y. 2010). Where there are differences in analysis, they are noted.
As a preliminary matter, it is well-established that individual defendants are not subject to liability under Title VII. See, e.g., Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995) (holding that an employer's agent may not be held individually liable under Title VII), abrogated on other grounds by Ellerth, 524 U.S. 742. Therefore, Defendants Horn and Olivo are not liable under Title VII for any of Plaintiff's claims as a matter of law. Accordingly, Defendant Horn (in his individual capacity) and Defendant Olivo's Motion for Summary Judgment as to all of Plaintiff's Title VII claims is GRANTED. Furthermore, although individuals may be liable under the NYSHRL and NYCHRL, those statutes premise liability on personal involvement in unlawful conduct. See, e.g., Gad-Tadros v. Bessemer Venture Partners, 326 F.Supp.2d 417, 425-26 (E.D.N.Y. 2004). Plaintiff has made no allegation that Defendant Horn was personally involved in any of the conduct of which Plaintiff complains, and summary judgment must be granted as to Defendant Horn on the NYSHRL and NYCHRL claims.
i. Quid Pro Quo Harassment
Under Title VII, "[to] establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions, or privileges of her employment." Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir. 2001) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994)). "It is enough to show that the supervisor used the employee's acceptance or rejection of his advances as the basis for [such] a decision. . . ." Id. (citations omitted). A plaintiff must establish that a "tangible job benefit or privilege [was] conditioned on an employee's submission to sexual blackmail and that adverse consequences follow[ed] from the employee's refusal." Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989). A tangible employment action in this context is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir. 2006).
Plaintiff alleged one set of facts which could satisfy her quid pro quo harassment claim: she has asserted that the disciplinary charges for allegedly leaving early without permission on February 2 were proffered against her because she refused Defendant Olivo's sexual advances. (See Pl.'s 56.1 Stmt. ¶ 73.) However, even according to Plaintiff's own affidavit, Defendant Olivo did not explicitly give her permission to leave early, but rather asked her to speak to him after the locksmith had arrived, which she did not do. (See Ellis Aff. ¶ 68.) There is no dispute that ADW Gumusdere, not Defendant Olivo, initially wrote her up for leaving early, weakening any causal link between Plaintiff's refusal of Defendant Olivo's advances and the disciplinary charges. (Defs.' 56.1 Stmt. ¶ 30.)
Moreover, the disciplinary charges do not constitute a tangible employment action. Plaintiff does not allege any lost wages, opportunities, or job benefits as a result of the disciplinary charges, and does not dispute that the charges were dismissed after having a hearing. (Defs.' 56.1 Stmt. ¶ 35.) Plaintiff herself states in her deposition that she was not penalized in any way as a result of these charges. (Seacord Decl. Ex. B; Ellis Dep. p. 74:10-12.) As such, the disciplinary charges do not constitute a tangible employment action, since they did not significantly affect Plaintiff's employment status in the manner of a reassignment, firing, or failure to promote. See, e.g.,Ellerth, 524 U.S. 742, 762 ("A tangible employment action in most cases inflicts direct economic harm."); Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57-58 (2d Cir. 2004) (concluding that being called back early from vacation, working a reduced schedule one week, and being given a disciplinary notice did not constitute a tangible employment action for purposes of Title IV quid pro quo harassment where plaintiff did not allege any economic harm or lost wages.)
Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's sex discrimination claim based on quid pro quo sexual harassment under Title VII is GRANTED.
Plaintiff does not allege any quid pro quo sexual harassment claims under the NYSHRL or NYCHRL. (See Compl. at 10-12.)
ii. Hostile Work Environment
Under Title VII, plaintiffs may also use a hostile work environment theory to demonstrate sexual harassment gender discrimination. Ellerth, 524 U.S. at 752 (citing Meritor, 477 U.S. at 65, 72). To prevail on a claim of hostile work environment sexual harassment, a plaintiff must establish two elements. First, a plaintiff must prove that the harassment was "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment."Harris, 510 U.S. at 21 (internal quotation marks omitted). The Supreme Court has stated that whether sexual harassment is so severe and pervasive to alter the conditions of employment "is not, and by its nature cannot be, a mathematically precise test," and "can be determined only by looking at all the circumstances," which may include:
the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. at 22-23.
"The question of whether a work environment is sufficiently hostile to violate Title VII is one of fact." Holtz v. Rockefeller Co., 258 F.3d 62, 75 (2d Cir. 2001). Nevertheless, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. On a motion for summary judgment, "the question for the court is whether a reasonable fact-finder could conclude, considering all the circumstances, that `the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'"Schiano, 445 F.3d at 600 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis inWhidbee).
Second, a plaintiff claiming hostile work environment sexual harassment must also show a specific basis for imputing the hostile work environment to the employer. Alfano, 294 F.3d at 373. An employer is presumed to be responsible for a hostile work environment where the perpetrator of the harassment was a supervisor with immediate, or successively higher, authority over the employee. Ellerth, 524 U.S. at 765. If the supervisor's alleged harassment did not result in a "tangible employment action" against the employee, that is, a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," id. at 763, the defending employer may avoid liability if (a) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) . . . the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. at 765. Such circumstances constitute an affirmative defense on which the employer bears the burden of proof. Id. No affirmative defense is available where the supervisor's harassment culminated in a tangible employment action against the employee. Id.
Hostile work environment claims under the NYSHRL are analyzed in the same manner as Title VII claims. Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 117 n. 2 (2d Cir. 2010). Claims under the NYCHRL, however, have to meet a lower bar. In Williams v. N.Y.C. Hous. Auth., it was held that claims under the NYCHRL should "focus on unequal treatment based on gender" and prevent "too much unwanted gender-based conduct to continue befouling the workplace." 872 N.Y.S.2d 27, 41 (N.Y. App. Div. 1st Dep't 2009). The Williams court held that the "severe and pervasive" element of a hostile work environment claim was not relevant to questions of liability under the NYCHRL, but only questions of damages. Id. at 38-40. The court held that summary judgment should generally be denied in "borderline" cases, although it noted that the NYCHRL was not a "general civility code" and that "petty slights and trivial inconveniences" were still non-actionable under the law. Id. at 40-41.
Plaintiff has failed to establish a prima facie case of hostile work environment sexual harassment. Although some of Defendant Olivo's conduct may have been upsetting to Plaintiff, such as trying to engage her in personal conversations or stopping by to say good night when those gestures were unwelcome, most of his conduct was not sexual in nature. Furthermore, she has alleged only three overtly sexual incidents: (1) Defendant Olivo sniffed then kissed her hand; (2) Defendant Olivo asked her if her husband was "big like him;" and (3) Defendant Olivo asked her to go to Frankie's and Johnnie's. These isolated incidents are not severe or pervasive enough to constitute an objectively hostile work environment; they constitute the "petty slights" which are not actionable even under the most lenient standard of the NYCHRL. (See, e.g., Magnoni v. Smith Laquercia, LLP, 701 F.Supp.2d 497, 505-506 (S.D.N.Y. 2010) (finding that plaintiff's uncorroborated testimony of daily sexual harassment by her supervisor along with admissions by the supervisor that he told plaintiff explicit details of his sex life, called her "voluptuous," and touched her knees on occasion was not enough to constitute a hostile work environment under the NYCHRL); Hernandez v. Kaisman, No. 104989/2007, 2011 WL 1821669 (N.Y. Sup. Ct. April 13, 2011) (dismissing a hostile work environment claim under the NYCHRL where defendant sent sexual emails to the office, walked around in his underwear, discussed his sex life with plaintiffs, and had female visitors to his office after hours).
Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's sex discrimination claim based on a hostile work environment under Title VII, the NYSHRL, and the NYCHRL is GRANTED.
iii. Retaliation
A plaintiff claiming retaliation under Title VII, the NYSHRL, and the NYCHRL, must prove: (1) he or she participated in a protected activity; (2) that the defendant knew of the protected activity; (3) that he or she suffered an adverse employment action; and (4) there is a causal connection between plaintiff's protected activity and the adverse employment action. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 113 (2d Cir. 2000). Unlike under Title VII, individual defendants may be subject to liability under the NYSHRL and the NYCHRL. See N.Y. Exec. Law § 296, N.Y.C. Admin. Code § 8-107; Johnston v. Carnegie Corp. of New York, No. 10 Civ. 1681; 2011 WL 1085033 (S.D.N.Y. Feb. 24, 2011).
Protected activity includes "oppos[ing] any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3. An employment action is materially adverse if it is likely to dissuade "a reasonable worker from making or supporting a charge of discrimination."Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). What constitutes a materially adverse employment action in the retaliation context is not identical to what constitutes a materially adverse employment action under Title VII's substantive provisions. Id. at 67-68. Proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant. Gordon, 232 F.3d at 112. If the plaintiff seeks to use temporal proximity as evidence of causation, the causal connection must be very close; the Supreme Court suggested even three months is too distant. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). If the plaintiff establishes a prima facie case, the burden shifts to defendants to articulate a legitimate, non-retaliatory reason for the adverse employment action. See Gutierrez, 756 F. Supp. 2d at 509. The burden then shifts back to the plaintiff to establish the retaliation was a substantial reason for the adverse employment action. Id.
The same standard is applied to retaliation claims under the NYSHRL. See Gutierrez, 756 F. Supp. 2d at 509 n. 12 (citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13, 786 N.Y.S. 2d 382, 819 N.E.2d 998 (2004)). Under the NYCHRL retaliation provision, however, "the plaintiff need not prove any `adverse' employment action; instead, he must prove that something happened `that would be reasonably likely to deter a person from engaging in protected activity." Jiminez v. city of N.Y., 605 F. Supp. 2d 485, 528 (S.D.N.Y. 2009) (quoting NYCHRL § 8-107(7)). However, the other elements such as showing causation remain the same. See id.
Plaintiff has taken three actions which could qualify as protected actions. First, she complained to Warden Thomas about Defendant Olivo's behavior on February 14, 2007. Second, she filed a charge of discrimination with the EEOC on September 18, 2007. Third, she filed the instant action with this court in June 2008. She alleges retaliatory actions of: (1) being assigned to the wheel in July 2007 and being denied a steady post; (2) the February 13 and 15, 2007 command disciplines regarding the missing commissary items; (3) being served with formal charges regarding the missing commissary items in August 2007; (4) failing to be awarded the post of Programs Captain in February 2008; (5) denial of her transfer requests in March 2009; (6) being issued the command disciplines by ADW Mitil in September 2008 and August 2009.
There is a genuine dispute of material fact as to Plaintiff's retaliation claims. Plaintiff testifies that at a hearing in late February 2007, Captain Inman told Plaintiff that "DW Olivo will drop the charges if you drop your sexual harassment charge." (Ellis Aff. ¶ 82.) Plaintiff's version of events, therefore, raises a genuine dispute as to whether the disciplinary charges were causally connected to Plaintiff's sexual harassment complaint to Warden Thomas about Defendant Olivo. Furthermore, although Defendants claim that Plaintiff's assignment to the wheel in July 2007 was too temporally attenuated from Plaintiff's February 2007 complaint, the record indicates that Defendant Olivo was issued a respondent's package for Plaintiff's complaint on July 12, 2007, a matter of mere days before Plaintiff was placed on the wheel. (Ellis Aff. ¶ 112; McMickens Decl., Ex. UU.) This Court cannot say as a matter of law that there is no causal connection between Plaintiff's protected activity and her being placed on the wheel and denied a steady post.
Defendants claim that being placed on the wheel and denied a steady post is not an adverse employment action. (Defs.' Mem. L., p. 15.) Nevertheless, Defendants point to no evidence in the record explaining what being placed on the wheel entails, such that this Court would be able to determine as a matter of law that being placed on the wheel did not constitute an adverse employment action.
Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's retaliation claims under Title VII, the NYSHRL, and the NYCHRL is DENIED.
D. Section 1983
Plaintiff also alleges that Defendants have engaged in a pattern and practice of discriminating against female corrections officers in violation of their Equal Protection rights under Section 1983. Section 1983 permits an action against a "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Most of the core standards that apply to claims of discriminatory conduct in violation of Title VII also apply to claims of employment discrimination in violation of the Equal Protection Clause. See Patterson, 375 F.3d at 225 (collecting cases). However, when the defendant is a municipality or an individual sued in his official capacity, the plaintiff must show that the discriminatory conduct was performed pursuant to an official policy, practice, or custom. See id. at 226; see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Furthermore, liability of a municipal defendant or an individual sued in his official capacity under Section 1983 cannot be premised on a theory of respondeat superior. Id. at 690-91; Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995); Lloyd v. Lee, 570 F.Supp.2d 556, 565 (S.D.N.Y. 2008).
Plaintiff has presented no evidence showing that Defendants engaged in a general practice of discriminating against women. She states in her Memorandum of Law that the D.O.C. EEO simply "ceased to function;" however, she has no evidence to support this contention. (Pl.'s Mem. Law at 17.) Based on the lack of evidence to support this claim, the Defendants' Motion for Summary Judgment on Plaintiff's Section 1983 claim is granted.
III. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part, as follows:
Defendants' Motion for Summary Judgment is GRANTED as to the Title VII claims against Defendant Olivo and Defendant Horn, individually, and as to the NYSHRL claims and NYCHRL claims against Defendant Horn, individually;
Defendants' Motion for Summary Judgment is GRANTED as to Plaintiff's hostile work environment and quid pro quo sexual harassment claims under Title VII, the NYSHRL, and the NYCHRL as to all Defendants;
Defendants' Motion for Summary Judgment is GRANTED as to Plaintiff's claim under Section 1983 as to all Defendants; and
Defendants' Motion for Summary Judgment is DENIED as to Plaintiff's retaliation claims under Title VII as to the municipal Defendants, and under the NYSHRL and NYCHRL as to the municipal Defendants and Defendant Olivo.
Proposed Requests to Charge and Proposed Voir Dire shall be submitted by October 7, 2011. A Joint Pre-trial Statement ("JPTS") shall be submitted by October 7, 2011. The JPTS shall conform to the Court's Individual Practices and Supplemental Trial Procedure Rules. Memoranda of Law addressing those issues raised in the JPTS shall be submitted by October 7, 2011. Responses to the Memoranda shall be submitted by October 21, 2011. There shall be no replies.
SO ORDERED.