Opinion
No. 00-CV-6347 CJS.
February 23, 2004
Donna Marianetti, Esq., Webster, New York, for plaintiff.
T. Andrew Brown, Esq., Brown Hutchinson, Rochester, New York, for defendants.
DECISION AND ORDER
INTRODUCTION
This is an action for employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. Now before the Court is defendant's motion [#45] for summary judgment. For the reasons that follow, the application is granted in part and denied in part.
BACKGROUND
Plaintiff is a female who began her employment with the defendant in or about January 1982. In or about 1989, defendant created a new Melt, Coat, Delivery ("MCD") department in its Building 38. The MCD produced photographic film for commercial customers, including Hollywood film studios. Plaintiff began working in the MCD as an Operator and remained in that position at all relevant times. There were two categories of supervisory positions above plaintiff and the other Operators, Specialist and Group Leader. Alleged Failure to PromotePlaintiff alleges that during her tenure in the MCD, defendant had numerous vacancies in the Group Leader and Specialist positions, which on all but one occasion, it filled with men. These positions can be divided into two groups, those that were posted and those that were not. The supervisory positions that were posted, and for which plaintiff applied, were Product Specialist and Manufacturing Excellence Coordinator ("MEC"). In 1999, plaintiff applied for the Product Specialist's position, however a man named Ted Stenzel was hired instead. Plaintiff was never told why she was not selected. Plaintiff does not know anything about Stenzel's experience or education, nonetheless, she believes that she was more qualified than he was for the job because she had worked in the MCD longer. In 2000, plaintiff applied for the MEC position, however, a man named Joe Barry was hired instead. Plaintiff indicates that she was told that Barry was more qualified. Plaintiff does not know Barry's educational or work background, however, again, she believes that she was more qualified than he was because she had worked in the MCD longer.
According to plaintiff, she was told that Barry was better qualified because he "had experience dealing with the day [shift] people and facilitating meetings and . . . working and gathering the information from the shop floor people and then taking it back and presenting it in order to get monies . . . and make a case [to] justify that the change needed to happen." Pl. Dep. 78, 81.
As for the positions that were allegedly never posted, plaintiff states that defendant simply placed men in the Specialist and Group Leader positions at various times throughout her employment. For example, she contends that men were placed in those positions when the Building 38 MCD was first created in or about 1989 or 1990, when a fourth shift was added in or about 1995 or 1996, and at other times. She specifically indicates that defendant continued to place men into these unposted supervisory positions as late as 2000. Plaintiff's Deposition ("Pl. Dep.") 30, 59-60, 65-66. Again, plaintiff believes that she was more qualified than most of these men, since she had worked in the MCD longer and was more familiar with its procedures. On that point, she notes that, as an original employee of the MCD, she assisted in the training all of the subsequent employees of that department, including the men who were eventually promoted. Plaintiff also contends that through her conversations with many of the men who were promoted, she learned that they had about the same or less overall education and experience than she had. Plaintiff's Affidavit ("Pl. Aff.") ¶ 29. Plaintiff indicates that she complained about being passed over for these positions, using the avenues "that Kodak had in place." Pl. Dep. 97. For example, she states that she complained to defendant's Human Resources office and to various supervisors, including Dave Betlem ("Betlem"), Dave Michels ("Michels"), and Phil Burrows ("Burrows"). Id. at 116, 165, 168-74. Betlem supervised plaintiff in 1993 and 1994, Michels supervised her in 1996 and 1997, and Burrows supervised her after 1999. Id. at 173.
Alleged Pay Disparity
MCD employees were paid based upon wage grades, within which individual salaries varied. Plaintiff began working in the MCD at wage grade level 9, was promoted to wage grade level 11 in 1996, and was promoted to wage grade 13 in 2000. However, plaintiff could not advance to the next highest wage grade, 15, without first being promoted to either Specialist or Group Leader. Plaintiff alleges that because defendant refused to provide her with opportunities for promotion, she was paid less than the men who were promoted. Pl. Dep. 192. Apart from the promotions, however, plaintiff also believes that, prior to being advanced to Grade 13, she was underpaid for her work. See, Pl. Dep. 129. For example, without giving any specifics, plaintiff contends that when she was at grade 11, she was performing the job duties of someone at wage grade 13. Moreover, plaintiff notes that on or about May 3, 1999, defendant released the results of an internal study, indicating that there were disparities in pay in some departments between women and minorities and the rest of the employees in those departments. This study, which was conducted by a man named William Bonnell ("Bonnell"), looked at "main pay by race and gender," the results of which were "tabulated in various formats." Bonnell Dep. 11. That is, Bonnell looked at the entire "IMM," defendant's imaging division, as well as "sub-organizations within IMM" such as the MCD. Id. Bonnell stated that, "we [wer]en't looking at individuals. We were looking at aggregated groups." Id. at 17. Bonnell indicated that his study was not intended to determine why some employees were paid less than others. However, he indicated that the differences in pay that he found would occur by chance only 5% of the time. Id. at 20. As a result of the study, defendant adjusted the pay of some employees, and made lump sum payments to others, including plaintiff. Plaintiff received a lump sum payment of $4,000.00, designated as a bonus, purportedly intended to compensate her for underpayments going back three years. However, plaintiffs "salary related benefits," including her pension, were not adjusted in any way. Because of this, and because defendant only attempted to compensate her for three years of underpayments, plaintiff maintains that she is still owed monies.
Alleged Hostile Working Environment
Plaintiff also alleges that she was subjected to a sexually hostile working environment. For example, she contends that certain male co-workers made
[d]erogatory remarks and stuff about females. . . . They use the "F" word quite a bit. . . . "Fucking bitch," "whore". . . . They refer to . . . women engineers when they're not in the area as `bitches,' as `smelly fish' and stuff. They just degrade women constantly. . . . [and make] derogatory jokes. . . .
The precise nature of the alleged jokes is unclear. Plaintiff merely states that male co-workers "would send jokes back and forth over the computer, print them out and leave them laying around, derogatory jokes about women. . . ." Pl. Dep. 219.
Pl. Dep. 193-95; see also, Pl. Aff. ¶ 60 (Stating that male co-workers "routinely refer to females in general by use of the term `fucking bitch' and the term `whore.'"). Plaintiff indicates that she complained about the comments and jokes to her supervisors and to defendant's Human Resources office in 1992 or 1993 and in 1995, and that she complained during a management survey conducted in 2000 by a firm retained by defendant. Pl. Dep. 197-99, 219. Plaintiff also contends that, in or about 1992 or 1993, "there were Playboy magazines in the drawers, there were disgusting novel books with — just very graphic and detailed." Pl. Dep. 225. Plaintiff does not know who owned the magazines or books. Plaintiff complained to supervisors about these materials, and the materials were removed, but over time, "other ones replaced them." Id.
Plaintiff further alleges that defendant posted sexually-inappropriate posters around the work area. As noted above, the MCD produced photographic film for movie studios, and in connection with that, defendant displayed certain movie posters around the MCD. Plaintiff, however, complains that some of those posters depicted "women with little or no clothes (with breasts and genitals covered strategically by other items in the photo), women sliding down or wrapped around a `pole' while in the process of performing a striptease . . . [and others which] displayed females in corsets with laces barely tied wearing under wires that push their breasts up and out of the `clothing.'" Pl. Aff. ¶ 68. Plaintiff alleges that, while movie posters were regularly replaced with new posters, the sexually inappropriate posters were left up much longer than those which did not contain sexual images. In 1995, plaintiff complained to supervisors about a poster for the movie Striptease, however the poster remained on display for another six months. She states that subsequently, other offensive posters were displayed, but she did not complain because she felt that to do so would be futile.
Plaintiff specifically identified three posters, those for the movies Striptease, Gloria, and The Real McCoy.
On March 22, 2000, plaintiff filed a discrimination complaint with the EEOC. Subsequently, on July 21, 2000, plaintiff commenced this action pursuant to both Title VII and New York State Human Rights Law. Following the completion of discovery, on June 20, 2003, defendant filed the subject motion [#45] for summary judgment. In its application, defendant contends that some of plaintiff's claims are time barred; that plaintiff has failed to demonstrate a prima facie case of hostile work environment discrimination; and that plaintiff has failed to demonstrate a prima facie case of discrimination, or that if she has, that defendant has proffered a legitimate nondiscriminatory reason for its actions. On February 5, 2004, counsel for the parties appeared before the undersigned for oral argument of the motion. The Court has thoroughly considered the parties' submissions and the comments of counsel.
ANALYSIS
Rule 56
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).
Title VII and the New York Human Rights Law
Title VII "makes it unlawful for an employer to discriminate against any individual with respect to the `compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Richardson v. New York State Department of Correctional Services, 180 F.3d 426, 436 (2d Cir. 1999) (citations omitted). The NYHRL similarly provides that
[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of the . . . sex . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
N.Y. Executive Law § 296(a) (emphasis added). The analysis of claims under the NYHRL parallels that of Claims under Title VII, 42 U.S.C. § 2000e et seq. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (Citations omitted). Statute of Limitations
Accordingly, references below to Title VII are meant to apply equally to the New York Human Rights Law.
Title VII requires a plaintiff to file a complaint with the EEOC within 300 days of the alleged unlawful act. 42 U.S.C. § 12117; 42 U.S.C. § 2000e-5(e). See, Tewksbury v. Ottaway Newspapers, 192 F.3d 322 (2d Cir. 1999). Claims that are not timely filed with the EEOC are time barred in a subsequent action in federal court. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). Here, plaintiff filed her complaint with the EEOC on March 22, 2000. Therefore, Title VII claims based upon conduct occurring prior to May 26, 1999, would generally be time-barred. On the other hand, claims under the NYHRL have a three-year statute of limitations, measured from the date the action was filed in court. Quinn v. Green Tree Credit Corp., 159 F.3d at 765. Plaintiff filed this action on July 21, 2000. Therefore, any state law claims involving conduct occurring prior to July 21, 1997 would generally be time barred.
Title VII's statute of limitations is not jurisdictional. National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061,2072 (2002). As such, the "time period for filing a charge is subject to equitable doctrines" such as waiver, laches, tolling, and equitable estoppel. Id. at 2072, 2076-77.
However, some acts which fall outside of the limitations period may still be actionable. In National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2074 (2002), the Supreme Court held that "[a] hostile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice,'" so that, "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Accordingly, "[i]n order for the [hostile environment claim] to be timely, the employee need only file a charge within [three years] of any act that is part of the hostile work environment." Id. at 2075.
In contrast, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 122 S.Ct. at 2072. Examples of "discrete acts" include termination, failure to hire, failure to promote, and denial of a transfer. Id. at 2073; See also, Costanzo v. U.S. Postal Serv., No. 00 Civ. 5044 (NRB), 2003 WL 1701998 at *5 (S.D.N.Y. Mar. 31, 2003) ("Discrete acts" include "job assignments" and "failures to compensate adequately."); Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) ("[A]n employer's rejection of an employee's proposed accommodation . . . does not give rise to a continuing violation. Rather, the rejection is the sort of `discrete act' that must be the subject of a complaint to the EEOC within 300 days.").
Significantly, in Morgan, the Supreme Court held that failures to promote are discrete acts, even where a plaintiff is alleging that they are "part of a systematic policy or practice of discrimination." See, Morgan, 122 S.Ct. at 2068. Similarly, with respect to claims of unequal pay, it is well settled that "[r]ecurring pay discrimination does not constitute a continuing violation, as each receipt of a paycheck is the basis for a separate cause of action for which suit must be brought within the limitations period." Simpri v. City of New York, No. 00 Civ. 6712 (SAS), 2003 WL 23095554 at *7 (S.D.N.Y. Dec. 30, 2003) (Citations omitted); National R.R. Passenger Corp. v. Morgan, 122 S.Ct. at 2071.
While the Morgan decision pertains specifically to cases under Title VII, courts in this Circuit have applied the Morgan holding to claims brought under the NYHRL. See, Coffey v. Cushman Wakefield, Inc., No. 01 Civ. 9447 (JGK), 2002 WL 1610913 at *4 (S.D.N.Y. Jul. 22, 2002) ("[G]iven the fact that courts extended the continuing violation doctrine to the NYHRL based on an effort to interpret the NYHRL consistently with the analogous federal statutes, there is no basis to extend the continuing violation doctrine as applied to the NYHRL further than the Supreme Court has interpreted it as applied to federal law. For the same reason, there no basis in law to prevent application of Morgan to the timeliness of the plaintiff's claims . . . under the NYHRL."); Staff v. Pall Corp., 233 F.Supp.2d 516, 527-28 (S.D.N.Y. 2002) ("[T]he Court concludes that the reasoning of Morgan with respect to the continuing violation exception should apply to claims brought under the NYSHRL as well.").
Here, in its motion for summary judgment, defendant contends that "any discriminatory acts alleged to be in violation of Title VII and occurring prior to May 26, 1999," as well as "any claims arising under the NYSHRL alleged to have occurred prior to July 21, 1997" are time-barred. Def. Memo [#46], p. 4. As the foregoing principles of law indicate, however, defendant's argument in this regard is only correct insofar as it pertains to claims involving discrete acts of discrimination, such as plaintiff's claims for failure to promote and unequal pay. Even then, defendant does not contend that all of the alleged instances of discrimination involving a failure to promote or unequal pay are time barred. See, e.g., Def. Reply Memo [#59], p. 3 ("[T]he great majority of her discrimination and/or harassment claims allegedly occurred prior to May 26, 1999 and July 30, 1997.") (Emphasis added). Therefore, defendant's summary judgment motion is granted as to all claims for failure to promote and unequal pay under Title VII that allegedly occurred prior to May 26, 1999, and on all such claims under the NYHRL occurring prior to July 21, 1997, and is denied as to any such claims that allegedly occurred after those dates. As to that, defendant's counsel argues that all of the failure to promote claims are time barred, since "the questioned promotions to plaintiff's [male] co-workers occurred sometime in 1995, 1996, or before." Brown Aff. [#47], ¶ 70. However, as discussed above, plaintiff was not denied the promotions for the Product Specialist's and MEC positions until 1999 and 2000, respectively. Moreover, plaintiff indicated that the promotions to the unposted positions occurred throughout her tenure in the MCD, up to an including 2000. Pl. Dep. 30, 59-60, 65-66. Clearly then, there is an issue of fact as to whether or not any promotions occurred within the limitations periods. On the other hand, plaintiff's hostile environment claims would be actionable, including those acts which allegedly occurred outside of the limitations periods, provided that any act which is found to be part of such an environment occurred within the applicable limitations periods. Plaintiff has indicated, under oath, that acts comprising the alleged hostile environment "ha[ve] been going on all along and . . . ha[ve] continued through the date of my deposition [June 13, 2002]." Pl. Aff. [#55], ¶ 62. Therefore, there is also a triable issue of fact as to whether or not plaintiff's hostile environment claims are timely. Hostile Work Environment
Defendant next argues that plaintiff cannot demonstrate a prima facie case of hostile environment discrimination, and that even if she can, that liability for the alleged harassment cannot be imputed to defendant. To survive a motion for summary judgment involving a hostile work environment claim, a plaintiff
must elicit evidence from which a reasonable trier of fact could conclude (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (Citation and internal quotation marks omitted). With regard to the first of these elements, it is clear that
[i]solated instances of harassment ordinarily do not rise to th[e] level [of a hostile work environment]. Rather, the plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances.Cruz v. Coach Stores, Inc., 202 F.3d at 570 (Citations and internal quotations omitted). "As a general matter, isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Quinn v. Green Tree Credit Corp., 159 F.3d at 768 (citations and internal quotation marks omitted). Factors which the Court should consider include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a `mere offensive utterance;' (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 437 (2d Cir. 1999).
If a plaintiff succeeds in demonstrating, prima facie, the existence of a hostile work environment, she must then demonstrate that liability should be imputed to the employer. The standard here varies depending upon whether the harasser was a coworker or a supervisor, and if a supervisor, whether or not he or she took any adverse employment action against the plaintiff. Where the harassment was caused by a nonsupervisory co-worker, "the burden falls to the plaintiff to prove that the employer did not take reasonable steps to address the situation." Bartniak v. Cushman Wakefield, Inc., 223 F.Supp.2d 524, 529 (S.D.N.Y. 2002) ( citing Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1180 (2d Cir. 1996); see also, 29 C.F.R. § 1604.11(d). Thus, the plaintiff, to prevail, must demonstrate that the employer was itself negligent in permitting the harassment to occur or to continue. See, Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63-64 (2d Cir. 1998) ("[W]hen the harassment is attributable to a co-worker, rather than a supervisor . . . the employer will be held liable only for its own negligence. Therefore, [a defendant] will only be liable if [a plaintiff] can demonstrate that the [defendant] company either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.") (citations and internal quotations omitted); see also Mack v. Otis Elevator Co., 326 F.3d at 123 ("Employers are not . . . vicariously liable for hostile work environment created by a mere co-worker of the victim."). On the other hand, when the harassment is committed by the plaintiff's supervisor, the employer may be subject to vicarious liability for the supervisor's actions, but as mentioned earlier, the standard varies depending upon whether the supervisor took any tangible adverse action against the plaintiff. Specifically, if the supervisor did take such an adverse action against the plaintiff, then the employer will be vicariously liable. However,
where no tangible employment action is taken, the employer may raise an affirmative defense to liability or damages. This affirmative defense has two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any . . . 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.Bartniak v. Cushman Wakefield, Inc., 223 F.Supp.2d at 528-29 ( citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61, 118 S.Ct. 2257 (1998); quoting Ellerth, 524 U.S. at 765, 118 S.Ct. 2257) (internal quotation marks omitted).
In its original set of moving papers, defendant argued that plaintiff had failed to show harassment that was sufficiently severe or pervasive, since, at most, she was complaining about a single incident involving the Striptease movie poster. Def. Memo [#46], p. 7 ("Since this one poster is the only instance plaintiff cites to support a hostile work environment . . . in her Complaint, her claim is not a sufficiently severe episode which could lead a reasonable person to find that an objectively hostile work environment existed.") (Emphasis added). However, the Court finds defendant's argument factually incorrect, since, in addition to the "Striptease" poster, plaintiff identified other movie posters that she found offensive, and, more importantly, she also complained of constant use of foul language toward women, jokes, as well as sexually-explicit magazines in the workplace. In its reply memorandum, defendant expanded its argument considerably, stating that,
even if the Court entertained the other instances plaintiff relies upon in an attempt to make out a hostile work environment, which are outside the pertinent time periods, or that are irrelevant and unpersuasive as more fully discussed in the Reply Affirmation, this conduct does not rise to a hostile work environment for several reasons. First, plaintiff never informed Kodak about these alleged actions. Second, they did not result in any tangible employment action taken against plaintiff. Finally, these instances were isolated and not severe enough to amount to a recoverable discrimination claim.
The Court has already found that defendant's argument in this regard is incorrect in light of the Supreme Court's decision in National R.R. Passenger Corp. v. Morgan.
A hostile work environment need not result in a separate adverse employment action being taken against plaintiff.
Def. Reply Memo [#59], pp. 6-7 (Emphasis added). Because defendant did not make these substantive arguments in its initial moving papers, plaintiff has not had an opportunity to address them, which alone would justify denial of the motion. However, having considered defendant's arguments, the Court nonetheless finds that there are triable issues of fact as to whether or not the conduct alleged is sufficiently severe and pervasive, and if so, whether or not defendant should be held liable. As discussed earlier, plaintiff has indicated, in sworn statements, that the harassment, particularly the verbal abuse, was regular and continuous. Moreover, plaintiff contends, and defendant concedes, that she made numerous complaints to her supervisors. See, Brown Aff. [#47], ¶ 45 (" Whenever plaintiff complained to Kodak regarding alleged harassment, Kodak took all immediate and necessary steps to address any such conduct that may have occurred.") (Emphasis added). Although defendant suggests that the Court should find, as a matter of law, that defendant took reasonable steps to address the alleged harassment, and/or that plaintiff failed to notify defendant that the harassment was continuing after she complained initially, the Court finds that there are triable issues of fact on those points. See, Distasio v. Perkin Elmer Corp., 157 F.3d at 64 ("While the fact that a complaint was unreported may be relevant in considering whether an employer had knowledge of the alleged conduct, an employer is not necessarily insulated from Title VII liability simply because a plaintiff does not invoke her employer's internal grievance procedure if the failure to report is attributable to the conduct of the employer or its agent.") (Citations omitted); see also, Dobrich v. General Dynamics Corp., Elec. Boat Div., 106 F.Supp.2d 386, 393 (D.Conn. 2000) ("In sum, whether or not knowledge of the unreported incidents of sexual harassment can be imputed to the employer is ultimately a jury question.") (Internal quotation marks omitted). Here, plaintiff contends that she eventually stopped complaining about the harassment because she believed it was futile to continue. For example, she maintains that when she complained about the foul language being directed at women, nothing was done, and that when she complained about the Striptease poster, it was left hanging for another six months. Consequently, it will be for a jury to determine whether or not defendant may be held liable for any unreported acts of harassment.
"I have complained repeatedly through the years of my employment to HR regarding disparities in my pay, grade level and sexual harassment and hostile environment. . . . I had an attorney . . . send Kodak a letter in the mid-1990's. Thereafter, I complained to HR at least through approximately the late 1990's. I complained directly to my supervisor subsequent to 1999 and complained personally during a management assessment survey during the year 2000. Nothing was ever done. . . ." Pl. Aff. [#55], p. 8, n. 2.
In Distasio the "employer's conduct" referred to was that defendant threatened to terminate plaintiff's employment if she continued to complain about harassment. However, for purposes of this motion, the Court will assume that Distasio's holding may also apply where an employee decides to stop reporting harassment as a result of the employer's alleged failure to take action in response to earlier complaints.
Failure to Promote and Unequal Pay Claims
Finally, defendant contends that plaintiff has failed to make a prima facie showing of sex-based discrimination involving promotions and pay, and that even if she has, that defendant has demonstrated legitimate, non-discriminatory reasons for its actions. Failure to promote and unequal pay claims are separate causes of action, each with their own elements. To make a prima facie showing of a failure to promote,
a plaintiff must demonstrate that: 1) he is a member of a protected class; 2) he applied for a promotion to a position for which he was qualified; 3) he was rejected for the position; and 4) the employer [either promoted someone outside of the protected class or] kept the position open and continued to seek applicants.Mauro v. Southern New England Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000) (Citations omitted); Khan v. Abercrombie Fitch, Inc., No. 01 Civ. 6163 (WHP), 2003 WL 22149527 at *8 (S.D.N.Y. Sep. 17, 2003) (Plaintiff failed to demonstrate that "position was given to a person outside her protected class."). However, with regard to the second element, it is not necessary for a plaintiff to demonstrate that he applied for the position if he: 1) "indicated to the employer an interest in being promoted to a particular class of positions"; and 2) "was unaware of specific available positions because the employer never posted them." Mauro v. Southern New England Telecomms., Inc., 208 F.3d at 387. As the Second Circuit has noted, "[i]n such a situation, requiring the plaintiff to show that he or she applied for the specific jobs at issue would be unrealistic, as an employee by definition cannot apply for a job that he or she does not know exists." Id.
Claims for unequal pay under Title VII and the NYHRL, on the other hand, must be analyzed using the framework of the Equal Pay Act, 29 U.S.C. § 206(d), with the added requirement that plaintiff show that defendant intended to discriminate:
In order to state a prima facie case of salary discrimination based on sex under the EPA, 29 U.S.C. § 206(d), a plaintiff must demonstrate that i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions. A plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are "substantially equal." However, jobs which are "merely comparable" are insufficient to satisfy a plaintiff's prima facie burden. Once the plaintiff makes out a prima facie case, the burden of persuasion shifts to the employer to prove that the disparity is justified by one of four affirmative defenses: i) a merit system; ii) a seniority system; iii) a system which measures earnings by quantity or quality of production; iv) a differential based on any other factor other than sex. An employer who attempts to justify a pay differential based on a "factor other than sex" must also prove that the gender-neutral factor was adopted for a legitimate business reason.
* * *
A claim of unequal pay for equal work under Title VII and the HRL is generally analyzed under the same standards used in an EPA claim. However, unlike an EPA plaintiff, a Title VII plaintiff must also produce evidence of discriminatory animus in order to make out a prima facie case of intentional sex-based salary discrimination.Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995) (Citations omitted, emphasis added) ( Abrograted on other grounds by Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760-61, 118 S.Ct. 2257 (1998)). To summarize, in order to establish a prima facie case of unequal pay under Title VII, a plaintiff must show that: 1) he is a member of a protected class; 2) he was paid less than non-members of his class for work requiring substantially the same responsibility; and 3) under circumstances giving rise to an inference of discrimination. See, Simpri v. New York City Agency for Childrens' Services, No. 00 Civ. 6712 (SAS), 2003 WL 169803 at *2 (S.D.N.Y. Jan. 23, 2003) (Citations omitted).
Title VII and NYHRL discrimination claims are analyzed under the three-tier burden-shifting test "set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny." Valentine v. Standard Poors, 50 F.Supp.2d 262, 281-82 (S.D.N.Y. 1999) (Citations and internal quotations omitted), aff'd, 205 F.3d 1327 (2d Cir. 2000). Under the first tier of the McDonnell Douglas test, the plaintiff must establish a prima facie case. If the plaintiff establishes her prima facie case,
It is clear that "the burden of proof that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion as the prima facie stage is de minimis." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (emphasis in original, citation and internal quotation marks omitted).
the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's discharge [or other adverse employment action]. At this stage, the employer need only articulate — but need not prove — the existence of a nondiscriminatory reason for its decision. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Once defendant meets its burden of production, the burden shifts back to plaintiff. Under the third tier of the McDonnell Douglas test, plaintiff bears the ultimate burden of proving that the reason proffered by the employer is a pretext for unlawful discrimination. In order to survive a motion for summary judgment, plaintiff must establish a genuine issue of material fact as to whether the employer's reason . . . is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision.Valentine, 50 F.Supp.2d at 281-82 (Citations and internal quotations omitted); see also, Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003).
Courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted). However, a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. den. 474 U.S. 829.
In this case, plaintiff commingles her equal pay and failure to promote claims somewhat, since she frequently discusses the alleged unequal payment of wages in connection with the alleged failure to promote. See, Pl. Memo [#53], p. 3 ("Plaintiff has been denied equal pay and promotions to higher wage grades throughout her years of employment with the defendant due to her gender while male employees, often with less experience have been given higher wages and wage grades."). However, plaintiff maintains that employees like herself who are at wage grade 13 cannot advance to a higher wage grade without being promoted to either a Backup Specialist, Specialist, or Group Leader. Therefore, it appears that to the extent that plaintiff is complaining that she is being paid less than males who are in a higher wage grade, her claim is for failure to promote, since the men to whom she refers are presumably being paid more as a result of their promotions, and are not performing a job that is "substantially equal" to hers. At least, plaintiff has not shown, by evidentiary proof in admissible form, or otherwise, that the Specialist and Group Leader jobs are substantially equal to those of an Operator.
Moreover, to the extent that plaintiff is alleging that she is receiving unequal pay as compared to other male Operators, the Court also finds that she has not established a prima facie case. As proof of her claim, plaintiff relies upon defendant's 1999 study which found that certain female and minority employees were paid less than their male and non-minority co-workers. However, at most, this evidence establishes only the first element of an equal pay claim, i.e., that defendant paid different wages to employees of the opposite sex. There is no evidence that this study compared male and females who performed equal work on jobs requiring equal skill, effort, and responsibility, or whose jobs were performed under similar working conditions. In fact, Bonnell's testimony in this regard is quite vague. See, Bonnell Dep. 11, 17 ("[W]e would look at the main pay by race and gender and also perhaps the standard deviation. . . . We aren't looking at individuals. We were looking at aggregated groups."). Moreover, apart from conclusory statements, plaintiff has not identified any male employees who, like her, were Operators in the MCD, and who were being paid more for "substantially equal" work. See, Bliss v. Rochester City School Dist., 196 F.Supp.2d 314, 341 (W.D.N.Y. 2002) (Finding that female school teacher failed to establish prima facie case where she merely alleged that "she was `doing the same or similar work as [a particular male coworker] but paid less' and that her background was `as good or better' than his," and that "she was `doing the same or similar work and additional work — compared to the male tech teachers' and that she believes that she was paid less than such unidentified males."). Therefore, the Court concludes that defendant is entitled to summary judgment on the equal pay claim, since plaintiff has not established a prima facie case.
As for plaintiff's failure to promote claim, it is undisputed that plaintiff is a member of a protected class, that she was not promoted, and that the persons who were promoted were not in her protected class. Defendant, however, alleges that plaintiff cannot demonstrate the remaining elements of her prima facie case because: 1) she was not qualified for the positions; 2) she did not actually apply for the positions; 3) she failed to notify her supervisors that she was interested in the positions; and 4) she cannot demonstrate that the decision not to promote her occurred under circumstances giving rise to an inference of discrimination.
Defendant also argues that plaintiff has failed to demonstrate a prima facie case since she cannot demonstrate that she was more qualified than the men who were promoted. However, such a showing is not required as part of a prima facie case.
As for her qualifications, plaintiff has testified that she worked in the MCD for over ten years, could perform all of the job functions within the MCD, and helped to train many of the men who were later promoted. She also indicates that by speaking with the men who were later promoted, she learned that she was equally qualified, or more so, than they were with respect to MCD operations. The Court finds that, defendant's objections notwithstanding, plaintiff has made at least a prima facie showing that she was qualified for the positions of Group Leader or Specialist.
The Court also finds that plaintiff has shown that she notified defendant of her interest in the positions. As discussed earlier, defendant's argument that plaintiff cannot prevail because she did not actually apply for the positions is an incorrect statement of the law in light of the Second Circuit's holding in Mauro v. Southern New England Telecomms., Inc., 208 F.3d at 387. Obviously, plaintiff could not apply for positions that she did not know were available. Moreover, plaintiff has indicated, under oath, that she discussed her desire for promotion with her supervisors, including Burrows, and also complained about what she perceived as discrimination in the promotion process.
Finally, the Court finds that plaintiff has made a prima facie showing that the decision not to promote her occurred under circumstances giving rise to an inference of discrimination. More specifically, plaintiff contends that all but one of the un-posted promotion opportunities were given to men, some or all of whom had less experience that she did in the MCD.
Defendant states that even if plaintiff can demonstrate a prima facie case, it has come forward with legitimate, non-discriminatory reasons for why she was not promoted. On this point, defendant contends that plaintiff was actually not qualified for the positions. As proof of this, defendant has produced applications which plaintiff submitted for positions within Kodak at various times. Of the twelve applications that are legible, six are from 1992, and six are from 1997, meaning that they are well outside the relevant limitations period in this case. See, Brown Aff. [#47], Ex. K. Defendant argues that the applications "clearly demonstrate that plaintiff was not qualified." Brown Aff. [#47], ¶ 71 (Emphasis added). However, the Court, having reviewed the applications, fails to see how. Notably, the application forms ask the applicant to state why she believes that she is qualified, but do not indicate what the actual job requirements are. As to that, the Court is not aware that defendant has even produced or described the job descriptions for the Group Leader or Specialist positions, and thus the Court has no idea what the specific qualifications for those positions were. Nor has defendant provided any proof that these job applications were actually taken into consideration when it made the complained-of promotions. The Court pauses here to note that, in support of the motion for summary judgment, defendant has not submitted any affidavits from anyone involved in making the promotions at issue. Furthermore, Burrows, in his deposition, does not offer any reason why plaintiff was not promoted, other than to suggest that she never expressed an interest in promotion, which plaintiff denies. Brown Aff. [#58], Ex. B, pp. 45-46, 48. Instead, the non-discriminatory reasons proffered are really those suggested by defendant's counsel, who does not claim to have any firsthand knowledge as to why plaintiff was not promoted. For example, defendant's counsel states that defendant "chose the best qualified employee for each position plaintiff complains about, including the Specialist and Group Leader positions within the MCD area." Brown Aff. [#47], ¶ 74. Similarly, defendant's counsel argues that defendant "did not promote plaintiff because she did not possess certain prerequisite skills and/or education," and that "[u]nder no circumstances did Kodak consider plaintiff's gender in making its decision concerning any position for which she was denied." Def. Memo [#46], pp. 11, 10. However, counsel has not provided any evidentiary proof in admissible form to support any of those contentions. Accordingly, the Court finds that defendant has not met its burden of demonstrating a legitimate, nondiscriminatory reason for its actions.
Exhibit K to the Brown Affirmation [#47] does contain documents that appear to be job descriptions for three positions, Team Development Coach, Instruct. Trainer Designer, and Operator, Clinical Products. However, it is unclear whether these positions even fall within the category of Specialist or Team Leader.
As discussed earlier, with regard to the MEC position for which plaintiff applied, she indicated that she was told that the man who received the position, Joe Barry, was more qualified. However, in connection with this motion, defendant has not attempted to show that Barry was actually more qualified than plaintiff.
CONCLUSION
For all of the foregoing reasons, defendant's motion for summary judgment [#45] is granted in part and denied in part. Defendant is granted summary judgment on all claims for unequal pay. Defendant is also granted summary judgment on any claims alleging a failure to promote under Title VII involving promotions that occurred prior to May 26, 1999, and on a such claims under the NYHRL involving promotions that occurred prior to July 21, 1997. The application is denied in all other respects.
SO ORDERED.