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holding that an employee's "unsubstantiated subjective fear of retaliation cannot excuse her failure to report other incidents of alleged harassment"
Summary of this case from Miller v. Saint-Gobain Advanced Ceramics CorporationOpinion
99-CV-0213E(F)
June 25, 2002
MEMORANDUM and ORDER
Plaintiff ("Samborski") brought this action against defendant ("West Valley") for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYHRL"). West Valley seeks summary judgment of dismissal. For the reasons discussed hereinafter, such motion will be granted.
Samborski is employed by West Valley in the laundry of the Decontamination and Decommissioning ("DD") department. Pl.'s Dep. at 5-12. Samborski requested a transfer to the laundry in April 2001, before which she had been a DD operations specialist for several years. Ibid. Generally, Samborski alleges harassment related to her co-workers' perception that she is a lesbian. Am. Compl. at ¶¶ 12-19. Samborski further alleges that her "male co-workers perceive her to be masculine because of her vocational choice and because she exhibits her femininity in a way that does not meet her male co-workers [sic] expectation of how women are to appear and behave." Id. at ¶ 11. The Amended Complaint concludes with boilerplate allegations to the effect that West Valley was aware of the alleged harassment but failed to take appropriate remedial measures resulting in disparate treatment and a hostile environment. Id. at ¶¶ 23-24. Specific occurrences of alleged harassment will be discussed below as relevant.
Samborski also alleges that male co-workers have not (1) been subjected to rumors that they are homosexual and (2) been the subject of sexual conversations between Mr. Mortensen (who has also been referred to as "Mortinson" or "Mortinsen") and Mr. Timmel. Am. Compl. at ¶¶ 20, 22. These allegations, however, are merely an attempt to bootstrap non-actionable harassment based on sexual orientation into sex-based harassment by merely alleging that male co-workers were not subjected to the same harassment. Indeed, were such pleading proper, a plaintiff could turn a non-actionable allegation that she was harassed because she has purple hair into an actionable claim for sex-based discrimination by simply alleging that male co-workers were not harassed for having purple hair. Plaintiffs asserting Title VII claims must show that they were discriminated against because of their sex, not because they are disliked or ridiculed for some other reason. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) ("Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discrimination . . . because of . . . sex.' We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. 'The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'") (citation omitted).
Sadly, this Court must once again review the requirements of the Local Rules of Civil Procedure ("LRCvP") for Ms. Carr. Samborski's memorandum of law opposing West Valley's motion for summary judgment exceeds twenty-five pages — the page limit set forth in LRCvP 7.1(f) — without leave of this Court.
Warheit v. De Graff Mem'l Hosp., No. 97-CV-0037E(SC), 2000 WL 210198, at *1 (W.D.N.Y. Feb 16, 2000) (finding that Ms. Carr, in representing the non-moving party, "failed to submit a statement of facts to controvert the version contained in the movants' proffered statements of undisputed facts). As Ms. Carr was reminded in Warheit, "[t]he local rules are not precatory meanderings to be adhered to or not as the parties so choose." Ibid. (quoting Reimer v. Heritage Asset Mgt., 97-CV-0565E(Sc), 1999 WL 409513, at *1 (W.D.N.Y. 1999)).
Accordingly, all discussion after page 25 will be ignored. See Holtz v. Rockefeller Co., 258 F.3d 62, 73-74 (2d Cir. 2001) ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules").
Ms. Carr also needs to review (or perhaps read for the first time) LRCvP 56, which provides:
Indeed, Ms. Carr repeats here the same infraction she committed in Warheit. See footnote 2.
"In any motion for summary judgment * * *, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. * * *" (Emphasis added).
In other words, the moving party must set forth the material facts that it contends are not in dispute, whereas the non-moving party must then set forth the material facts that it contends are in dispute (i.e., material facts as to which there is a genuine issue of material fact). Samborski, however, submitted a Statement Of Undisputed Material Facts — as opposed to the statement of disputed material facts that she was required to set forth under LRCvP 56.
Plaintiff thus fails to controvert West Valley's Statement Of Undisputed Material Facts. Despite this Court's previous admonition in Warheit, Ms. Carr has once again violated LRCvP 56. Consequently, to provide an incentive for future compliance with the LRCvP, Ms. Carr will be sanctioned $500, which may not be passed on to her client.
Such failure to abide by LRCvP 56 does not "streamline the consideration of summary judgment motions by freeing [this Court] from the need to hunt through voluminous records without guidance from the parties." Holtz, at 74 (discussing Rule 56.1 of the Local Rules of Civil Procedure for the Southern and Eastern Districts of New York which is essentially the same as LRCvP 56).
See footnote 2.
Ms. Carr, however, is not the first attorney to have violated LRCvP 56 in such a manner. Kuchar v. Kenmore Mercy Hosp., No. 97-CV-0756E(Sc), 2000 WL 210199, at *1 (W.D.N.Y. Feb. 9, 2000) ("[the non-moving party] also submitted a Statement of Undisputed Material Facts although the local rule calls for the party in her position to proffer a 'statement of the material facts as to which it is contended that there exists a genuine issue to be tried.' LRCvP 56."). As this Court held in Kuchar — and is applicable here —, "[w]hile the consequence of this miscue is minimal given the general consensus between the parties as to the constituent facts of this case, where a discrepancy exists this Court is obligated to and will 'deem admitted' the [moving party's] version of the facts * * * [although] the Court is [also] obligated to and will believe the plaintiff's evidence and all justifiable inferences will be drawn in her favor." Although this Court has reviewed plaintiff's Statement Of Undisputed Material Facts, it will not attempt to do what the plaintiff herself did not see fit to do — determine which facts set forth in defendant's Statement Of Undisputed Material Facts are controverted by plaintiff.
Cf. Covelli v. Nat'l Fuel Gas Distrib. Corp., No. 99-CV-0500E(M), 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001) (holding that the district court "may, but is not required to, search the record for evidence which the party opposing summary judgment fails to point to in his LRCvP 56 statement. Inasmuch as the citations to the record in defendant's Statement support its factual assertions, this Court declines to search the record in an attempt to find evidence contradicting such when plaintiff has failed to do so * * *.") (citations omitted).
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law * * *." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). In other words, summary judgment is improper if there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party. Ibid. Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmises on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in Title VII cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars * * *." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in Title VII discrimination cases. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
See footnote 6, supra.
Turning to the governing substantive law, Samborski alleges discrimination against her on the basis of her perceived sexual orientation in violation of Title VII and the NYHRL. Such allegations, however, are not actionable under either Title VII or the NYHRL. Simonton v. Runyon, 232 F.3d 33, 35-36 (2d Cir. 2000) ("Because the term 'sex' in Title VII refers only to membership in a class delineated by gender, and not to sexual affiliation, Title VII does not proscribe discrimination because of sexual orientation."); Nacinovich v. Tullet Tokyo Forex, Inc., 257 A.D.2d 523, 524 (1st Dep't 1999) (discrimination on basis of sexual orientation is not actionable under the NYHRL). Accordingly, to the extent that Samborski seeks redress for alleged acts of discrimination based on her perceived sexual orientation, such claims are not actionable. Byars v. Jamestown Teachers Ass'n, 195 F. Supp.2d 401, 411 (W.D.N.Y. 2002). To the extent, however, that Samborski alleges that she was harassed by male co-workers (i.e., calling her a "lesbian" etc.) because she was a woman engaged in a "male" profession, she may assert claims under Title VII and the NYHRL for sex stereotyping. Galdieri-Ambrosini v. Nat'l Realty Dev., 136 F.3d 136 [ 136 F.3d 276], 289-290 (2d Cir. 1998). There is a genuine issue of material fact as to whether Samborski was harassed, if at all, due to her sex.
Title VII provides, in relevant part, that it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * sex * * *." 42 U.S.C. § 2000e-2(a)(1). Title VII claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny. In order to show discriminatory treatment, "plaintiff must [first] establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
It is possible that harassment in the form of being called a "lesbian" or "homosexual" is on account of sex where it is based not on a perception of true sexual orientation, but rather as a means of denigrating a person because of a sexual stereotype. See Centola v. Potter, 183 F. Supp.2d 403, 408-409 (D.Mass. 2002). As the Second Circuit Court of Appeals has stated, however, a plaintiff's theory of sexual stereotyping "would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine." Simonton, at 37-38 (discussing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Likewise, not all homosexual women are stereotypically masculine and not all heterosexual women are stereotypically feminine. Additionally, Samborski alleges that several female co-workers called her a "lesbian." Grasso Aff. Ex. E. Indeed, one of these female co-workers, Shelley Oldham, was engaged in the same line of work as Samborski. Id. Accordingly, Samborski's claim of sex stereotyping is somewhat undermined. Moreover, plaintiff is still required to show that her co-workers were harassing her based on her sex as opposed to some other factor (i.e., personal animus).
In any event, before bringing a Title VII action, a plaintiff must first file a timely charge with the Equal Employment Opportunity Commission ("EEOC") or a state or local agency with authority to grant or seek relief from the discrimination alleged. Holtz, at 82-83. In other words, a plaintiff must exhaust her remedies before the EEOC or state or local agency as a precondition to filing suit in federal court. Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (holding that administrative exhaustion before the EEOC is a precondition subject to waiver rather than a jurisdictional requirement).
Consequently, plaintiff may raise before the district court only those claims that were included in the EEOC charge filed or that were "reasonably related" to such charge. Butts v. City of New York, 990 F.2d 1397, 1401-1403 (2d Cir. 1993) (claims are reasonably related to the EEOC charge filed where such claims (1) "fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination'" — this category has been described as allowing for "loose pleading"; (2) allege retaliation by an employer against an employee for filing an EEOC charge or; (3) allege "further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge."). Only the first category is relevant here.
The scope of the actual EEOC investigation appears to have been limited to Samborski's allegations of the "lesbian" rumor. See Grasso Aff., Ex. F.
Courts developed this "loose pleading" standard in light of the recognition that EEOC charges are often "filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering." Butts, at 1402. It is worth noting that Samborski's charge uses legal boilerplate and references "Title VII of the Civil Rights Act of 1964, as amended." It appears as though Samborski's charge was completed with the benefit of counsel, unless Samborski is sufficiently familiar with, inter alia, the Civil Rights Act of 1964 to have included the notation "as amended." This Court voices no opinion as to whether an EEOC charge drafted by counsel deprives a plaintiff of the benefit of the "loose pleading" standard. In any event, even under this "loose pleading" standard, a plaintiff must alert the EEOC to the alleged discrimination.
Samborski filed a charge with the EEOC on January 5, 1999. Her charge stated in relevant part:
"In June of 1998, I began to be subjected to sexual harassment in that my environment was sexually hostile. Rumors of a sexual nature were spread about me and the Respondent allowed the hostile environment to continue and even participated in the sexual rumors. I believe that I was subjected to a sexually offensive and hostile environment and my complaints went unheard, in willful violation of Title VII of the Civil Rights Act of 1964, as amended."
As already stated, alleged discrimination on the basis of sexual orientation is not actionable. The remainder of Samborski's charge makes conclusory allegations that she was subjected to "sexual harassment in that my environment was sexually hostile" and that she was "subjected to a sexually offensive and hostile environment and my complaints went unheard." These allegations, however, are too vague to support the allegations in plaintiff's Amended Complaint concerning discrimination on grounds other than the "lesbian" rumors.
In Butts, the Second Circuit Court of Appeals held that plaintiff's allegations were "insufficiently specific to enable the EEOC to investigate" where she alleged that she had "consistently been the target of discriminatory practices and treatment" and was "denied promotional opportunities and consideration based on my race and sex." Butts, at 1403. The court further stated that,
"[w]ere we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII's investigatory and mediation goals would be defeated." Ibid.
Likewise, Samborski's allegations of "sexual harassment" that created a "hostile environment" are boilerplate terms that fail to inform the EEOC of any alleged harassment based on events other than the "lesbian" rumors, which are the only specific facts referenced in her charge. See Osier v. Broome County, 47 F. Supp.2d 311, 320-321 (N.D.N.Y. 1999) (finding that the claims in plaintiff's EEOC charge — which alleged, inter alia, that "I have been subjected to incidents of sexual harassment as the only female employee in my area" as well as allegations of disparate treatment and retaliation — were insufficient because the conclusory allegation of "sexual harassment" failed to provide notice of the hostile work environment that plaintiff subsequently alleged in her lawsuit).
Cf. Ige v. Command Sec. Corp., No. 99-CV-6916 (ILG), 2002 WL 720944, at *6 (S.D.N.Y. Mar. 12, 2002) (finding that an EEOC charge that claimed discrimination based on national origin was not reasonably related to the claim of racial/color discrimination subsequently asserted by the Nigerian plaintiff).
Moreover, it appears from the face of the charge that Samborski is alleging that she was "sexually harassed" and subjected to a "hostile environment" as a result of the "lesbian" rumors. Samborski's charge does not allege that the "sexual harassment" or the "hostile environment" resulted from any conduct other than the lesbian rumors. Accordingly, plaintiff's sex-discrimination claims — other than her potential claims for sex-stereotyping as discussed above — are beyond the scope of plaintiff's EEOC charge and will thus be dismissed because plaintiff has failed to exhaust her administrative remedies. Samimy v. Cornell Univ., 961 F. Supp. 489, 492-493 (W.D.N.Y. 1997) (dismissing plaintiff's claims based on his demotion and termination because these claims exceeded the scope of plaintiff's EEOC charge where the sole act alleged in such charge involved plaintiff's 1992 evaluation, which was not reasonably related to his subsequent demotion and termination).
Indeed, such is precisely what the EEOC concluded where, after investigation, it dismissed Samborski's charge on the ground that, "[i]n the instances you describe, the unwelcome conduct was based on an erroneous perception with respect to your sexual orientation." Grasso Aff., Ex. F.
Cf. Blanke v. Rochester Tele. Corp., 36 F. Supp.2d 589, 594 (W.D.N.Y. 1999) (finding that plaintiff's claim in his EEOC charge that "white men" were held to different standard in the Purchasing Department was not "reasonably related" to his subsequent claim that he was terminated from the Internal Audit Department on grounds of sex discrimination).
Furthermore, the claims raised in Samborski's EEOC charge are not "reasonably related" to the claims she later raised in this action. Conduct that occurred before January 5, 1999 cannot support plaintiff's sex-discrimination claims because "a 'reasonably related' claim applies only to alleged discriminatory conduct that occurred after the EEOC charge is filed." Townsend v. Exchange Ins. Co., 196 F. Supp.2d 300, 313 (W.D.N.Y. 2002) (finding that claims that occurred before the plaintiff's EEOC charge was filed, but which were omitted therefrom, were barred because Title VII plaintiffs have a "duty to include all relevant alleged discriminatory conduct when [they] file the EEOC charge.").
Accordingly, Samborski may not rely on any alleged conduct that occurred before January 5, 1999 other than the "lesbian" rumors referenced in her EEOC charge in support of her claim of sex discrimination. Moreover, as discussed below, Samborski may not rely on any alleged discrete acts of discrimination that occurred before March 11, 1998.
Under 42 U.S.C. § 2000e-5(e), a charge of discrimination must be filed "within three hundred days after the alleged unlawful employment practice occurred." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 n. 4 (2d Cir. 1998), abrogated in part by Nat'l R.R. Pass. Corp., v. Morgan, No. 00-1614, 2002 WL 1270268, at *3-10 (U.S. June 10, 2002) (limiting strict application of the statutory period to "discrete" acts of harassment). This 300-day period is a statute of limitation providing that "discriminatory incidents not timely charged before the EEOC will be time-barred upon the plaintiff's suit in district court." Id. at 765 (citations omitted).
The Supreme Court recently held that Title VII "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period." Morgan, at *3. On the other hand, the Court also held that "the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period." Id. With respect to discrete acts of discrimination, the statutory period starts when the act occurs. Id. at *6. Hostile environment claims, however, are timely where "an act contributing to the claim occurs within the filing period, [although] the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at *9. Accordingly, any discrete discriminatory acts that occurred before March 11, 1998 are time-barred unless such occurrences fall within the "continuing violation" exception. This exception, however, only applies "to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists or discriminatory employment tests." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Moreover, "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Ibid. Accordingly, the "continuing violation" exception does not apply because plaintiff does not allege such a discriminatory policy or mechanism where she merely alleges that her co-workers harassed her — without showing that the harassment was unremedied for so long as to amount to a discriminatory policy or practice. Quinn, at 764; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). Indeed, the two times that Samborski made complaints in accordance with West Valley's sexual harassment policy, West Valley took action to resolve her complaints. See e.g., Grasso Aff., Exs. H-L, O; Samborski Dep., at 19-24, 33-38, 105-109; Spencer Dep. 85-87.
See also Weeks v. New York State, 273 F.3d 76, 82 (2d Cir. 2001) (citing Quinn for the proposition that a "continuing violation" exists where plaintiff shows, "either (1) 'specific ongoing discriminatory policies or practices,' or (2) 'specific and related instances of discrimination that are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.'").
Based on all of the aforementioned, the only allegations that potentially involve discrete acts of actionable conduct are contained in ¶ 16(d)-(e) of defendant's Statement Of Undisputed Facts — and those in ¶ 16(f) and ¶ 17(d)-(g), (j) to the extent that such allegations relate to discrete acts that occurred after March 11, 1998. As stated above, such alleged conduct may be actionable as discrete acts of discrimination only to the extent that they evidence sex-stereotyping. West Valley, however, did not discriminate against Samborski on the basis of sex stereotyping. First, Samborski fails to allege any actionable discrimination by a supervisor for which West Valley may be held liable. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807-809 (1998). Samborski alleges that (1) Kay Mortensen spread the "lesbian" rumor (albeit in the course of bringing such to Samborski's attention) and that (2) Bill Potts said that "even lesbians smoke cigars" after Samborski refused a cigar. Plaintiff, however, does not allege any "tangible employment action" by West Valley. Consequently, West Valley has an affirmative defense because it exercised reasonable care to prevent and/or correct sexual harassment that Samborski brought to its attention. Burlington Indus., at 765; Faragher, at 807-808. West Valley reprimanded Mr. Mortensen after Samborski complained about his conduct. Grasso Aff., at Ex. O; Samborski Dep. at 183-187. With respect to the allegation involving Mr. Potts, however, Samborski does not know whether she brought Potts' alleged conduct to West Valley's attention. Samborski Dep. at 211. West Valley thus satisfied its burden of showing that Samborski failed to report the alleged sexual harassment. Burlington Indus., at 765 ("And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense."); Faragher, at 807 (same). Therefore, Samborski has no viable Title VII claim against West Valley based on the discrete acts of discrimination she has alleged.
"(d)In or about June 1998, [Samborski] was told by a co-worker, Karla Rendall, that Kay Mortensen, Ms. Rendall's supervisor, had told Ms. Rendall that another co-worker (Bob Timmel) had told Mr. Mortensen that plaintiff was a lesbian and 'had the hots' for a secretary. (Grasso Aff. Exs. E, G; Samborski Dep. 179-80.) Mr. Mortensen allegedly asked Ms. Rendall to advise plaintiff of the rumor. Plaintiff complained to supervision. (Grasso Aff. Exs. E, G; Samborski Dep. 180-88.) [West Valley's Human Resources administrator,] Gwin Spencer investigated plaintiff's complaints and met with the plaintiff, along with other members of management, to keep plaintiff apprised of the status of the investigation. (Grasso Aff. Exs. E, G; Samborski Dep. 190, 197.) As a consequence of the investigation, Bob Timmel, [sic] was given a written reprimand and was suspended. (Grasso Aff. Ex. N; Samborski Dep. 207-211.) Mr. Mortensen received a written reprimand. (Grasso Aff. Ex. O.))
"(e) Plaintiff also alleges that when she spoke with Bill Potts, the waste operations manager, concerning the comments made by Bob Timmel and Kay Mortensen, he allegedly offered her a cigar. (Grasso Aff. Exs. E, G; Samborski Dep. 182-83.) When she refused it, plaintiff claims that Mr. Potts stated 'even lesbians smoke cigars.' (Grasso Aff. Exs. E, G; Samborski Dep. 183.) Plaintiff does not recall reporting this comment to Gwin Spencer. (Samborski Dep. 211.)"
"Plaintiff alleges that different employees had told her that they had been warned to watch out for her because she is a lesbian. (Grasso Aff. Exs. E, G; Samborski Dep. 176-79.) Other than the incident with Rick Dallas and the incident with Kay Mortensen and Bob Timmel, plaintiff did not complain about any such incident to management. (Samborski Dep. 178.) When plaintiff made a complaint per the policy, [West Valley] took corrective action (Grasso Aff. Exs. H, N, O; Samborski Dep. 105-109, 207.)"
"(d) Plaintiff also alleges that three to five times during her more than 13 years of employment, a male co-worker, Andy Rupp, said to her that a woman's place was at home, bare foot and pregnant. (Grasso Aff. Ex. G; Samborski Dep. 69.) She responded to Mr. Rupp that he should not say those things. (Samborski Dep. 73-76.) Plaintiff did not complain to management about the comments and never requested not to work with Mr. Rupp and admits that his comments did not have any impact on her job performance. (Samborski Dep. 82-83.)
"(e) Plaintiff alleges that sometime during the past five years, male co-workers told her that she should lift heavy items as they did because she made the same money that they did. (Grasso Aff. Ex. G; Samborski Dep. 84-92.) Plaintiff never complained about these comments to management. (Samborski Dep. 89.)
"(f) Plaintiff alleges that in the last three to five years, she was referred to by male co-workers as the laundry bitch. (Grasso Aff. Ex. G; Samborski Dep. 109-111.) She told her co-workers that she did not appreciate these comments but never complained about the comments to management. (Samborski Dep. 112-113.)
"(g) Plaintiff alleges that approximately 15 to 20 times over the past five years she was told by male co-workers that 'women should be washing the clothes' when talking about laundry work and that she belonged in the laundry. (Grasso Aff. Ex. G; Samborski Dep. 130-32, 138, 42.) Although she claims to have reported these comments to Mr. Freany, her direct supervisor, plaintiff never took any further steps pursuant to [West Valley's] sexual harassment policy. (Samborski Dep. 141-142.)"
"Plaintiff alleges that five to eight times within the past ten years, male truck drivers would circle female employee pedestrians, while plaintiff was riding on the truck and make sexual remarks about them. (Grasso Aff. Ex. G; Samborski Dep. 164-65.) Plaintiff did not complaint to management concerning these alleged incidents. (Samborski Dep. 170.)"
Samborski Dep. at 180.
Samborski Dep. at 182. This Court assumes arguendo that Messrs. Mortensen and Potts were supervisors "with immediate (or successively higher) authority over" Samborski, although such is not clear in the record. Cf. Burlington Indus., at 765; Faragher, at 807. The Court further assumes for purposes of this motion only that the allegations against Messrs. Mortensen and Potts involve sex stereotyping.
Samborski does not contend that her requested transfer to the laundry facility in April 2001 was a constructive demotion and this Court, therefore, does not address such.
Inasmuch as claims under Title VII and the NYHRL are governed by the same standard (with notable exceptions not relevant here), Samborski's NYHRL claim is not viable. Ferrante v. Am. Lung Ass'n, 90 N.Y.2d 623, 629 (1997); Quinn, at 765; Martinez v. Niagara Frontier Trans. Auth., No. 00-CV-0848E(Sc), 2001 WL 1823602, at *5 n. 3 (W.D.N.Y. Dec. 14, 2001).
Samborski's discrimination claim alleging a hostile environment is timely because at least one of the alleged acts occurred during the statutory period. Morgan, at *9-10. Assuming arguendo that all of Samborski's allegations — both before and after March 11, 1998 — are related to and comprise the same hostile environment claim, this Court may consider the entire time period of the alleged hostile environment. Ibid.
See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (holding that a "discriminatorily hostile or abusive environment" exists in violation of Title VII "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'") (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). In determining whether an environment is hostile or abusive, courts consider "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." Id. at 23. An environment must be both objectively and subjectively hostile. Id. at 21-22.
Turning to the merits of Samborski's hostile environment claim, the Second Circuit Court of Appeals has held that employers are generally not liable for harassment by co-workers "unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it." Quinn, at 766-767. Samborski's hostile environment claim is not viable because West Valley provided a reasonable avenue of complaint and responded to Samborski's complaints by, inter alia, effectively terminating one employee, suspending another employee, issuing several reprimands, and requiring apologies. Ibid.; Samborski Dep. at 73-79, 97-101, 108, 112-113, 130-132, 142, 161, 170, 174-176, 178-179, 205-211; Mortinsen Dep. at 122; Grasso Aff., Exs. H, N-O. Moreover, Samborski's unsubstantiated subjective fear of retaliation cannot excuse her failure to report other incidents of alleged harassment. Leopold v. Baccarat, 239 F.3d 243, 246 (2d Cir. 2001) ("A credible fear must be based on more than the employee's subjective belief.
Evidence must be produced to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints * * *. [Plaintiff] did not come forward with any such evidence, but instead simply asserted her apprehension that she would be fired for speaking up, and claimed generally that a co-worker's vague and ambiguous complaint was not taken seriously."); Samborski Dep. at 19, 36-37, 64-65, 78-79, 88-89, 137. In any event, plaintiff's allegations amount only to the "sporadic use of abusive language, gender-related jokes, and occasional teasing" that fail to establish a hostile work environment. Faragher, at 788 ("These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a 'general civility code'") (citing Oncale).
Accordingly, it is hereby ORDERED that plaintiff's counsel shall pay the Clerk of the Court $500 within thirty days hereof for repeated non-compliance with the Local Rules of Civil Procedure, that defendant's motion for summary judgment is granted and this action shall be closed.