Opinion
02CV203.
February 16, 2005
REPORT RECOMMENDATION
Before the Court is defendant Grey Line Tours' ("GLT") motion for summary judgment (Docket No. 48).
Background
The plaintiff, Tijuana M. Scarbrough ("Scarbrough"), brings this action asserting that GLT discriminated against her because of her gender and race in violation of 42 U.S.C. § 2000e et seq. ("Title VII"). She alleges that one of her co-workers, Michael Piatt, rubbed up against her on one occasion (Docket No. 53 at ¶ 33) and that she complained to GLT about this conduct (Docket No. 53 at ¶ 35). She also alleges that a female co-worker, Sheryl Andrews used racial slurs against her. (Docket No. 53 at ¶ 6-26). In her complaint, Scarbrough asserts that she was told she lives in the ghetto; that everyone wants to be Italian; that black people "fry pork" chops and "eat bananas" and that she was physically threatened. (Docket No. 1, ¶ 19). However, the plaintiff provides no specifics regarding these allegations in either the Complaint or in her Affidavit in response to the instant motion.
Although it is not expressly delineated as such, the plaintiff purports to set out a hostile work environment claim. The plaintiff also appears to assert that she was terminated from her position with GLT in retaliation for filing a claim with the Equal Employment Opportunity Commission ("EEOC").
Standard of Review
Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F. 2d 186, 188 (2nd Cir. 1992) citingBryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). To prevail on its summary judgment motion, the moving party must show that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001).
In discrimination cases, the inquiry into whether the plaintiff's sex (or race, etc.) caused the conduct at issue, often requires an assessment of individuals' motivations and state of mind, matters that call for a "sparing" use of the summary judgment device because of juries' special advantages over judges in this area. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998); accord Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (noting juries' possession of the "current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications").
Nonetheless, an employment discrimination plaintiff faced with a properly supported summary judgment motion must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See Distasio, 157 F.3d at 61. She must come forth with evidence sufficient to allow a reasonable jury to find in her favor. See McCarthy v. New York City Technical College, 202 F.3d 161, 167 (2d Cir. 2000). In this regard, the non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110, 1112 (2nd Cir. 1992), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is material:
when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The non-moving party must come forward with enough evidence to support a jury verdict . . . and the . . . motion will not be defeated merely . . . on the basis of conjecture or surmise." Trans Sport, supra, 964 F.2d at 188. Summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Finally, factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony. See Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir. 1999); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997).
Hostile Work Environment
The plaintiff alleges sexual harassment by a male co-worker (Piatt), and racial harassment by a female co-worker (Andrews). Sexual Harassment. To establish a prima facie case of hostile work environment sexual harassment under either Title VII or New York Human Rights Law based upon the conduct of her co-workers, a plaintiff must demonstrate "(1) harassment that was sufficiently severe or pervasive to alter the conditions of her employment, creating an abusive working environment, and (2) a sufficient basis for imputing the conduct that created the hostile environment to her employer." Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).
The Court notes that the plaintiff has failed to submit a legal memorandum of law in opposition to the instant motion for summary judgment in violation of Local Rule 7.1(e). Thus, the plaintiff has not presented the Court with any legal authority in support of its arguments. The plaintiff's response includes only a five-sentence statement of "Material Facts in Dispute" and the factual affidavit of Tijuana Scarbrough filed together as one document (Docket No. 53). This document was incorrectly entitled as a "Statement of Facts Memorandum in Opposition" on the Docket when electronically filed. As expressly provided in the Rule, the plaintiff's failure to comply with Local Rule 7.1(e) constitutes separate grounds to resolve the instant motion against the plaintiff.
Generally, the plaintiff must first establish that the evidence will show that the conduct complained of is "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992). To do so, a plaintiff must demonstrate harassment that consists of "more than isolated incidents or casual comments that express harassment or hostility." Babcock v. Frank, 783 F.Supp. 800, 808 (S.D.N.Y. 1992)). "[T]he incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher, 957 F.2d at 63 citing Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989). See also Carter v. New York, 310 F.Supp.2d 468, 475 (N.D.N.Y., 2004).
However, while isolated acts are not generally severe or pervasive enough to create a hostile work environment, a single act, if vile enough, can by itself transform the plaintiff's workplace. Alfano v. Costello, 294 F.3d 365, 374 (2d. Cir. 2002) (even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace);Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) (observing that a single sexual assault may be sufficient to alter the terms and conditions of the victim's employment). Thus, the plaintiff must show "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." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quotingPerry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). In determining whether the plaintiff has satisfied this burden, courts must "consider the totality of the circumstances, and . . . evaluate the quantity, frequency, and severity of the incidents." Richardson, 189 F.3d at 437 (internal citations omitted). In addition, it is axiomatic that in order to establish a sex-based hostile work environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of the protected characteristic. See Alfano, 294 F.3d at 374.
In the instant case, the plaintiff has not met her burden to establish that a pervasive atmosphere of sexual harassment existed at GLT. Instead, the plaintiff asserts only isolated verbal comments and one instance in which a male co-worker, Piatt, allegedly rubbed up against her. Scarbrough has not established that these isolated incidents were so extraordinarily severe as to have altered the condition of her working environment. While Scarbrough asserts that she complained to her superiors after the incident in which Piatt allegedly rubbed up against her, she does not allege that Piatt repeated that conduct after her complaints to her employer. Further, Andrew Rondinelli, Scarbrough's immediate supervisor, stated that after Scarbrough complained to him regarding this incident, he discussed the matter with both Scarbrough and Piatt, and revised their schedules so that the two employees did not work together on the same shift. (Docket No. 48, Exhibit H, ¶ 16). The plaintiff does not discuss or refute this representation in her response to the instant motion. (Docket No. 53). Thus, in addition to failing to establish a pervasive atmosphere of sexual harassment, the plaintiff has failed to demonstrate an adequate basis to impute this conduct to her employer. Thus, Scarbrough's claims of hostile work environment based upon sexual harassment must fail.
Rondinelli also stated that on a number of occasions throughout her employment with GLT he witnessed Scarbrough "make unsolicited comments of a sexual nature, including comments about her own sexual experiences, to other employees." (Docket No. 48, Exhibit H, ¶ 15). He also stated that other than the one incident in which a co-worker rubbed up against her, Scarbrough never made any complaints about other employees making comments of a sexual nature to her. (Docket No. 48, Exhibit H, ¶ 13).
Racial Discrimination. Similar to a sexual harassment claim, in order to prevail on a hostile work environment claim based upon racial discrimination, a plaintiff must first show that "the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. . . ." Feingold v. New York, 366 F.3d 138, 149-150 (2d. Cir. 2004) quoting Alfano, 294 F.3d at 373. See also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (stating that a hostile work environment is created "[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"). Again, the plaintiff must also demonstrate a specific basis for imputing the conduct creating the hostile work environment to the employer.Feingold, 366 F.3d. at 149-50 citing Alfano, 294 F.3d at 373.
The plaintiff has failed to meet her burden to establish a prima facie case of hostile work environment based upon racial discrimination. The plaintiff has presented specific allegations regarding only isolated racial comments allegedly made to her by a co-worker, Sheryl Andrews. (Docket No. 53 at ¶ 13; and Exhibit A). To the extent that she provides any specific allegations, Scarbrough's complaints center around a heated argument she had with Sheryl Andrews on July 26, 2001. Scarbrough states that she was having a conversation with Mary Augustino, when Andrews interrupted, argued with her and made racially charged comments. According to Rondinelli, Andrews entered his office to complain that Scarbrough instigated an argument with her, physically blocked her exit and threatened her. Andrews claimed that Scarbrough had a problem with her because she is Jewish. (Docket No. 48, Exhibit H at ¶¶ 7, 12). Rondinelli states that he discussed the situation with John Guido, GLT's General Manager. Guido and Roninelli decided "in part because of past incidents and complaint involving Andrews and Scarbrough, and in part because of the seriousness of the allegations involving physical threats of harm," that both employees would be suspended pending a further investigation. Thus, Scarbrough was told to go home for a "cooling off period." (Docket No. 48, Exhibit H at ¶ 9). Rondinelli states that he obtained written statements from both Scarbrough and Anrdrews, as well as from Mary Augustino (Docket No. 48, Exhibits I-K). Rondinelli then conducted separate meetings with both Andrews and Scarbrough, and after listening to their respective version of the events, informed each of them that discrimination of any type would not be tolerated, that their conduct on July 26, 2001 was unacceptable and that either would be terminated if they were involved in another similar incident. (Docket No. 48, Exhibit H at ¶ 10-12).
Augustino's version of the event suggests that Scarbrough initiated the argument. According to Augustino, she and Scarbrough were having a conversation regarding past and present GLT employees, when Andrews joined in. Augustino does not recall Andrews' comment as being offensive to Scarbrough. She states that Scarbrough then told Andrews to mind her own business. When Andrews replied that she could say what she wants, Scarbrough allegedly said to Augustino, "Do you believe this animal is talking to me?" Then said to Andrews, "Don't talk to me you beast." Scarbrough allegedly went on to call Andrews a "white-trash trailer park shit." At which point, Andrews allegedly called Scarbrough a "big black bitch." (Docket No. 48, Exhibit I).
Although Scarbrough states that this racial harassment was "constant" and that she can't remember the number of times comments were made (Docket No. 53 at ¶¶ 6-8), the plaintiff must present more than vague, unsubstantiated and self-serving allegations to support a hostile work environment claim in opposition to the instant motion. Although the plaintiff asserts that the hostile acts were witnessed by several employees (including some former-GLT employees) (Docket No. 48, Exhibit E, Answer to Interrogatory No. 13), the plaintiff has not presented any supporting evidence from these individuals. Based upon the evidence presented by the plaintiff, the record reflects only isolated incidents in which racial comments were allegedly made by one co-worker, Sheryl Andrews. The plaintiff has not met her burden to establish a pervasive pattern of discriminatory conduct or that such conduct could be imputed to her employer. Thus, the plaintiff's claims of a racially hostile work environment must also fail.
When viewed in their entirety, the plaintiff's testimony of sexual and racial harassment (or a combination thereof) fails to meet her burden of demonstrating the pervasive atmosphere of harassment required to establish a prima facie case of a hostile work environment. To the extent the instant motion seeks summary judgment dismissing the plaintiff's Title VII claim, it is recommended that the motion be granted.
Retaliation
The plaintiff also claims that she was terminated from her position with GLT in October of 2001 in retaliation for filing a complaint with the EEOC. However, GLT represents that Scarbrough was a seasonal employee who was laid-off, along with all other seasonal employees. (Docket No. 48, Exhibit G at ¶¶ 3-6). It appears that Scarbrough was laid-off on October 12, 2001. (Docket No. 48, Exhibit H ¶ 18). Scarbrough does not dispute that she was a seasonal employee, or that she had been previously laid-off at the end of the tourist season in 2000.
Initially, GLT argues that Scarbrough's retaliation claim is not properly before the Court inasmuch as it is not stated in her October 12, 2001 EEOC charge which serves as the basis of the complaint in this action. This argument is without merit.
It is well settled that a Title VII claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See 42 U.S.C. § 2000e-5(e) and (f); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994); Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993); Shah v. New York State Dept. of Civil Service, 168 F.3d 610, 613-614 (2d. Cir. 1999). The federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charge. Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). This exhaustion requirement is "an essential element of Title VII's statutory scheme," Butts, 990 F.2d at 1401, and is designed "to give the administrative agency the opportunity to investigate, mediate, and take remedial action," Stewart v. United States Immigration Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985). However, claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are "reasonably related" to those that were filed with the agency. Butts, 990 F.2d at 1401-02;Owens v. New York City Housing Authority, 934 F.2d 405, 410-11 (2d Cir.), cert. denied, 502 U.S. 964(1991); Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984). Such "reasonably related" claims include those "alleging retaliation by an employer against an employee for filing" the underlying claim of discrimination. Butts, 990 F.2d at 1402. Because Scarbrough's claim of retaliation is purportedly related to her filing of the discrimination claim underlying this action, the retaliation claim is properly before this Court.
Upon review, Scarbrough's retaliation claim fails on the merits as a matter of law. The plaintiff's sole response to this legitimate, non-discriminatory basis for the plaintiff's termination, is the following argument in Scarbrough's affidavit:
40. I am going to presume, for sake of argument, that [GLT] did lay off, and did not replace, all seasonal employees, when it terminated me.
41. Other than for the sake of this argument, I cannot confirm the truth of [GLT's] story.
42. Without proof that it laid off and did not replace all of my former co-workers, I do not think the Court should merely take its story as true, either. GLT has not shown this Court that it terminated anyone other than myself, however, even presuming it to be true for the sake of this argument, this story only provides a legitimate, non-discriminatory reason for my termination, which is only one aspect of the lawsuit.
(Docket No. 53 at ¶¶ 40-42).
However, GLT has presented the Court with testimony and documents, in evidentiary form, stating that the plaintiff was terminated along with all seasonal employees and not in retaliation for complaining about discrimination. (Docket No. 48, Exhibits G, ¶ 6; Exhibit H, ¶ 18; Exhibit O listing all seasonal employees and the last day worked in 2001). This evidence suffices to demonstrate a legitimate, non-discriminatory basis for the plaintiff's termination in October of 2001. Rather than come forward with an argument to refute this evidence, or to provide the Court with some basis to doubt the veracity of the claim that the seasonal employees were laid-off as stated by the defendants, the plaintiff seems to merely suggest that the defendants have not done enough prove this to the Court. Inasmuch as the plaintiff has failed to articulate any basis for the Court to doubt the veracity of the allegations regarding GLT's determination to layoff seasonal workers, or that the plaintiff was treated differently than other seasonal workers in this regard, the plaintiff has failed to refute the defendant's legitimate, non-discriminatory basis for her termination.
The plaintiff does allege that Rondinelli quoted Guido as stating that "anyone filing a suit against [GLT] would not be returning next season." (Docket No. 53 at ¶ 43). However, the plaintiff has not presented evidence of any type that would demonstrate that GLT was aware that she intended to file a claim against GLT at the time the decision was made to lay her off in October of 2001. The plaintiff has not established that her position was replaced after she was laid-off. Indeed, in response to her November 2001 filing, the EEOC determined that "none of these employees, including [Scarbrough] were replaced after your layoffs." (Docket No. 48, Exhibit N). Moreover, the plaintiff has not asserted as a claim in the complaint, or in response to the instant motion, that she sought to return to GLT the following year or that she was not rehired by GLT in 2002 due to the fact that she filed a claim with the EEOC. The sole basis asserted for her retaliation claim relates to her termination in October of 2001. As noted above, Scarbrough has not articulated any nexus between her termination in October of 2001 and the filing of her EEOC complaints or met her burden to refute the defendant's legitimate, nondiscriminatory basis for her termination.
Based upon the above, it is recommended that the instant motion for summary judgment be granted to the extent that it asserts a claim that the plaintiff was terminated in retaliation for filing discrimination claims with the EEOC.
Conclusion
Based on the above, it is recommended that the motion for summary judgment (Docket No. 48) be GRANTED and the complaint in this matter be dismissed in its entirety.
Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as WDNY Local Rule 72(a)(3). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and WDNY Local Rule 72(a)(3).
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. SeePatterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3)may result in the District Court's refusal to consider the objection.
So ordered.