00 Civ. 7559 (SAS)
September 24, 2002
Kenneth Richardson, Esq., New York, NY, Attorney for Plaintiff
Donald Sullivan, Assistant Corporation Counsel, Office of the Corporation Counsel for the City of New York, New York, NY, Attorney for Defendants:
OPINION AND ORDER
Marilyn Figueroa brought this action pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, against the City of New York, the City of New York Department of Sanitation ("Sanitation Department"), and Rocky Darmiento, manager and supervisor in the Sanitation Department. Figueroa sought compensatory damages and attorney's fees stemming from twenty-three separate causes of action alleging sexual harassment, discrimination, disparate treatment, and retaliation. On defendants' motion for summary judgment, this Court dismissed all of Figueroa's claims with the exception of her claim for sexual harassment resulting in a hostile work environment. See Figueroa I, 198 F. Supp.2d at 562-70. The remaining defendant now moves for reconsideration. For the reasons set forth below, this motion is granted.
The City of New York is the only proper defendant here. Summary judgment was granted for all causes of action against Darmiento, see Figueroa v. City of New York et al. ("Figueroa I"), 198 F. Supp.2d 555, 558 n. 1 (S.D.N.Y. 2002) (no individual liability under Title VII), and no action may lie against the Sanitation Department, see N.Y. City Charter Ch. 17 § 396 ("All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.").
A. Legal Standard
Local Rule 6.3 requires a party moving for reconsideration or reargument to set forth "the matters or controlling decisions [that] . . . the court has overlooked." Local Rule 6.3. "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data . . . that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (alterations in original). See also Chang v. United States, 250 F.3d 79, 86 n. 2 (2d Cir. 2001) (same). "Parties may not advance any new facts, issues, or arguments not previously presented to the Court."Id. (quoting Paulino v. United States, No. 97 Civ. 2107, 1998 WL 512953, at *1 (S.D.N.Y. Aug. 17, 1998)) (quotation marks omitted). The decision to deny or grant a motion for reconsideration lies within the sound discretion of the court. See Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999); Belmont v. Assocs. Nat'l Bank, No. 99 Civ. 3445, 2002 WL 31027841, at *2 (E.D.N.Y. Sept. 12, 2002).
The defendant contends that this Court overlooked several facts that were before it on the motion for summary judgment. These facts are primarily statements by the plaintiff during her deposition: (1) essentially admitting that she has no evidence that the events comprising her hostile work environment claim occurred because of her gender; (2) indicating that, instead, the events occurred because her coworkers disliked her as a person. Defendant also suggests that the Court overlooked a controlling decision, Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), in which the Second Circuit reversed a jury verdict in favor of plaintiff on her hostile work environment claim.
Because Alfano was decided on June 25, 2002, two months after Figueroa I was issued on April 24, 2002, it cannot be said that this Court overlooked a controlling decision that was before it on defendants' motion for summary judgment. Nevertheless, defendant is correct that the Court failed to take into account certain factual matters that were in the record, i.e., statements that Figueroa made in her deposition regarding whether the alleged incidents occurred because of her gender. Because these facts bear on an essential element of a hostile work environment claim, such evidence or lack thereof "might reasonably be expected to alter the conclusion reached by the court." Shrader, 70 F.3d at 257. Accordingly, the motion to reconsider is granted.
Having granted defendant's motion on the basis of facts that were overlooked, I must now consider such factual matters in light of the law governing hostile work environment claims, and the standard for summary judgment. See Figueroa I, 198 F. Supp.2d at 562, 565-66 (setting forth relevant standards). Briefly, summary judgment is proper if the pleadings, depositions, and other evidence show 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. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000). A plaintiff may survive summary judgment on a sexual harassment claim based on a hostile work environment if the Court, viewing all of the evidence in the light most favorable to the nonmovant, determines that a rational juror could find that (1) sufficiently severe or pervasive conduct altered the conditions of plaintiff's working environment; (2) such treatment was motivated by plaintiff's gender; and (3) the conduct can be imputed to the employer.See Faragher v. City of Boca Raton, 524 U.S. 775, 788-93 (1998); Alfano, 294 F.3d at 373-74; Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 135-36 (2d Cir. 2001); Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). Familiarity with the underlying facts of this case is assumed for the purpose of this motion.
A. The Court Overlooked Figueroa's Deposition Testimony
In Figueroa I, the Court concluded that a rational juror could find for plaintiff as to each of the elements of a hostile work environment claim.Figueroa I, 198 F. Supp.2d at 565-66. In making this decision, however, the Court did not consider the statements that Figueroa made during her deposition that bear directly on the second element of her claim, i.e., whether the alleged harassment was motivated by her gender.
The incidents that constitute plaintiff's claim of sexual harassment based on a hostile environment are: (1) Figueroa was told by a fellow employee that unnamed employees were planning a "blanket party," a term for a group beating; (2) Mike Tescano, a fellow employee, attempted to strike her with his car; (3) her car was vandalized while in the Sanitation Department's parking lot; and (4) someone placed rotten fish under the seat of her electric broom (the "facially sex-neutral" incidents or acts). See id. at 565. The Court concluded that a rational juror could find, based partly on earlier pre-limitations period incidents, that Figueroa's coworkers treated her badly because she is a woman. Those incidents are: (1) a July 1998 comment by a supervisor that he liked the way Figueroa's pants fit; (2) a January 1997 joke by two unidentified male coworkers regarding snowplows and screws; and (3) an August 1995 prank in which an unidentified person, presumably a coworker, stuffed one of Figueroa's workgloves with condoms.
See infra Part II.C (holding that the first three incidents are clearly sex-neutral on their face, and that there is insufficient evidence to infer that the fourth incident was based on plaintiff's gender).
During her deposition, Figueroa was asked why she thought that someone had placed condoms in her glove. She responded, "Because I was a female, of course, and I am Marilyn Figueroa and all of the grievances I have written." 6/14/01 Deposition of Marilyn Figueroa ("Fig. Dep."), Ex. B to Notice of Motion for Reconsideration, at 18. The city's attorney continued, "Is there any other reason that you believe the condoms were placed in your glove?" Id. at 18-19. Figueroa answered: "No." Id. at 19. Similarly, referring to the incident involving Mike Tescano's attempt to strike her with his car, defense counsel queried: "In your complaint you allege that you believe that [this incident] occurred on the basis of your sex. Why do you think that?" Id. at 93. Figueroa answered: "Because of me being a female and me being Marilyn Figueroa and the complaints that I have brought upon the individuals within." Id. The questioner followed up: "Anything else?," and Figueroa responded, "No." Id. Finally, regarding the vandalism to Figueroa's car, defense counsel asked: "Do you believe that these things that happened to your personal car have been done because of your gender?" Id. at 103. Figueroa responded, "Sure." Id. She was then asked, "Why is that?" Id. Figueroa responded, "Because I am a female that has come out with the grievances, and complaints of facts that have happened to me within the garage." Id. at 104. Again the city's attorney asked, "Is there anything else?" Id. Figueroa answered: "No." Id.
This Court has already considered and dismissed Figueroa's retaliation claim. See Figueroa I, 198 F. Supp.2d at 569-70.
"[I]t 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 her sex." Alfano, 294 F.3d at 374 (quotingBrown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)). When faced with a motion for summary judgment, the nonmoving party "must present concrete particulars and cannot succeed with purely conclusory allegations." Cadle Co. v. Newhouse, No. 01 Civ. 1777, 2002 WL 1888716, at *4 (S.D.N.Y. Aug. 16, 2002) (quotation omitted). "There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor." Id. (citing Anderson, 477 U.S. at 249). Figueroa's responses that the conduct occurred because she is a woman are conclusory and therefore fail to raise a genuine issue of fact as to gender animus. See, e.g., Padob v. Entex Info. Serv., 960 F. Supp. 806, 810, 813 (S.D.N.Y. 1997) (holding that plaintiff's testimony that treatment occurred because she is a woman was conclusory, and thus insufficient to raise issue of fact as to gender discrimination).
Moreover, plaintiff's response that the conduct occurred "because [she is] Marilyn Figueroa" is evidence that the conduct did not occur because of her gender, but rather because of individual dislike. Courts have repeatedly granted summary judgment where the evidence points, not to gender or racial animus, but rather to the fact that plaintiff's personality is the motivation for the harassment. See, e.g., Alfano, 294 F.3d at 378 (reversing district court and granting defendants' motion for judgment as a matter of law on hostile environment claim in part because plaintiff could adduce no evidence that her supervisor "disliked [plaintiff] because she was a woman," and the evidence showed instead "that he disliked [her] personally"); Kodengaga v. Int'l Bus. Mach. Corp., 88 F. Supp.2d 236, 243 (S.D.N.Y. 2000) (dismissing hostile work environment claim where, inter alia, evidence showed that the hostility plaintiff encountered "largely reflected a clash of personalities rather than discriminatory animus"); Padob, 960 F. Supp. at 813 (S.D.N.Y. 1997) (dismissing sexual harassment claim for lack of evidence as to gender bias where plaintiff had an "acknowledged personality conflict" with her supervisor); Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994) ("If the workplace is unsavory for any reason other than hostility generated on the basis of race, gender, ethnicity, or religion, no federal claim is implicated. In short, personality conflicts between employees are not the business of the federal courts."). In other words, Title VII provides no remedy for mistreatment if it is not based on gender or some other unlawful reason. See Fisher v. Vassar Coll., 114 F.3d 1332, 1337 (2d Cir. 1997) (noting that an employer may take adverse employment action against an employee for any "reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling . . . spite or personal hostility"),abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48 (2000).
Beyond Figueroa's own statements, it is uncontroverted that Figueroa did not have a good relationship with her colleagues and supervisors. Moreover, Figueroa was consistently reprimanded for lateness, failure to appear for work and failure to obey her supervisors. See Griffin v. Ambika Corp., 103 F. Supp.2d 297, 315 (S.D.N.Y. 2000) (dismissing hostile work environment claim where hostility that supervisors directed at plaintiffs was likely the result of the "litany of complaints against [plaintiffs] by their coworkers," even where plaintiffs maintained that the complaints were false). Other evidence of gender discrimination in plaintiff's workplace is lacking. There were other female employees in the garage,see Fig. Dep. at 19, but Figueroa does not mention any hostility directed at any other woman, nor does she proffer sufficient evidence that the men in the garage were not treated in a hostile manner. See Griffin, 103 F. Supp.2d at 315 (stating that plaintiffs failed to show animus where they did not "set forth direct comparative evidence to show how their supervisors treated them discriminatorily vis a vis those outside their protected group.") (quotation marks omitted). In sum, the evidence is scant that the problems she was having at work were due to her gender, and, taking into account certain statements Figueroa made during her deposition, it is clear that a rational juror could not conclude that the conduct was motivated by anything other than dislike of her as an individual.
B. The Court Relied on Nonprobative Evidence to Infer Gender Bias
Even if the Court had duly considered these statements in Figueroa's deposition testimony, defendant would still be entitled to summary judgment on the hostile work environment claim which is based on the facially sex-neutral incidents. "[Title VII] requires some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory." Alfano, 294 F.3d at 378 (holding that four incidents of sex-based hostile treatment were insufficient basis for inferring that gender animus motivated the other eight, sex-neutral incidents of hostile treatment, where sex-based incidents were infrequent and episodic, and perpetrators were different than those who committed the sex-neutral mistreatment). In my prior decision, I considered three incidents occurring over a four-year period to infer gender-based animus. See Figueroa I, 198 F. Supp.2d at 565-66 see also supra Part II.A. (briefly summarizing this evidence). The most recent of these incidents occurred in July 1998, when one of Figueroa's supervisors, Rocky Darmiento, remarked that he liked the way her pants fit. See Figueroa I, 198 F. Supp.2d at 559. The second occurred in January 1997 when several of Figueroa's co-workers made comments with sexual overtones concerning a snowplow and screws. See id. The other incident evincing gender bias took place in August 1995, when Figueroa discovered condoms in one of her workgloves. See id. at 558, 566.
In considering these incidents, I relied on several cases which admitted evidence of conduct and remarks occurring prior to 300 days before the EEOC charge was filed. See Eaton v. Am. Media Operations, Inc., No. 96 Civ. 6158, 1997 WL 7670, at *5 (S.D.N.Y. Jan. 9, 1997) (holding that conduct underlying time-barred sexual harassment claim was "admissible and relevant to show [defendant's] general gender bias and therefore to prove discriminatory intent"); see also Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir. 1998) (holding that district court's exclusion of remark made four years prior to filing of EEOC charge was error); cf. Walden v. Georgia Pac. Corp., 126 F.3d 506, 521 (3d Cir. 1997) (holding that district court erred in excluding supervisors' remarks because, though "remote in time" to plaintiffs' termination, such remarks showed "retaliatory atmosphere")
The Supreme Court has recently validated this interpretation of the statute: "[T]he timely filing provision was not meant to serve as a specific limitation either on damages or the conduct that may be considered for the purposes of one actionable hostile work environment claim." Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2075-76, __U.S. __ (2002) (holding that pre-limitations period incidents can be considered as part of actionable hostile work environment claim, provided that all acts which constitute the claim are part of the same unlawful employment practice). Thus, conduct occurring prior to 300 days before the filing of the EEOC charge may be used to infer discriminatory motivation.
Yet, the case law makes clear that the general relevancy rule still applies: the Court may not admit, nor consider, evidence of incidents or remarks which are irrelevant. See Walden, 126 F.3d at 516 n. 6 (excluding statement made eight years prior to plaintiffs' termination because "too remote in time to be of probative value"). The August 1995 condom prank certainly fits this category as it is simply too remote in time to support the conclusion that the facially sex-neutral incidents occurred because Figueroa is a woman. In addition, because it was anonymous, the condom prank reveals no information as to whether the perpetrators of the facially sex-neutral incidents were motivated by gender bias. See Alfano, 294 F.3d at 378 (holding that gender bias inherent in two sexually graphic but anonymous pranks could not be attributed to a supervisor who committed facially neutral acts of mistreatment).
Similarly irrelevant, the July 1998 comment about plaintiff's pants and the January 1997 joke about the snowplow do not provide a sufficient basis on which to assign a gender-based motivation to the violent but facially sex-neutral incidents. First, the joke and the comment, while apparently motivated by gender, are not serious enough to be considered part of a hostile work environment. Title VII was not intended to be a "general civility code." Brennan v. Metropolitan Opera Assoc., 192 F.3d 310, 314-16, 319 (2d Cir. 1999) (granting summary judgment in favor of defendant on plaintiff's hostile environment claim where plaintiff's supervisor had given her "nasty looks," used a scornful and derisive tone, undermined her authority in front of others by being "rude," and did not take action against male coworkers who engaged in lewd banter and posted pictures of nude and semi-clothed women in their cubicles). Thus, "[i]solated, minor acts or occasional episodes do not warrant relief." Id. at 318 (citing Kotcher v. Rosa and Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d Cir. 1992)). See also Alfano, 294 F.3d at 380 (holding that twelve incidents over four years were "infrequent and episodic," and "too few, too separate in time"); id. at 379-80 (citing cases). Here, one sexual joke and one mild sexual comment within a three-year period does not constitute actionable conduct under Title VII because such conduct is neither severe nor pervasive. Rather, the "scant gender-specific conduct described by plaintiff is merely trivial."Graziano v. New York State Police, 198 F. Supp.2d 570, 577 (S.D.N.Y. 2002) (holding that "no rational factfinder could find [based on two derogatory gender-related comments] . . . that plaintiff suffered [other] adverse treatment because of gender").
Second, the sex-based comments were not made by the individuals who committed the facially sex-neutral acts. The one known perpetrator of the sex-based acts was Rocky Darmiento, who made the pants comment. See Figueroa I, 198 F. Supp.2d at 559. The person or persons who committed the condom prank are unknown, as are the employees who threatened to beat up plaintiff. There is no evidence or allegation that Darmiento was involved in the more severe conduct. Thus, Darmiento's gender animus, to the extent any can be inferred from his sexually-charged compliment of plaintiff's pants, cannot be attributed to the perpetrators of the facially sex-neutral acts. Because such evidence would be excluded at trial pursuant to Federal Rule of Evidence 402, and is otherwise insufficient as a matter of law to show gender animus, all three earlier acts were improperly considered in the prior decision.
C. There is No Evidence that the Facially Sex-Neutral Incidents Were Motivated by Gender
The only possible evidence of gender bias that remains are the incidents comprising Figueroa's hostile work environment claim, the "facially sex-neutral" incidents or acts, supra Part II.A n. 2. Yet, the first three events — the blanket party threat, the attempt to strike plaintiff with a car, and the defacing of plaintiff's car — involve physical violence or vandalism without any evidence of gender animus. As for the dead fish prank, Figueroa contended in opposing the motion for summary judgment that this connotes an unclean and unchaste woman and therefore gives rise to an inference of gender bias.
This incident, though it does carry the connotation of being dirty and unclean, was a practical joke — albeit harsh — that has been used on people of both genders, and different races. For example, inJones v. New York City Dep't of Correction, a dead fish was placed on the desk of an African American male, which he alleged was motivated by his race. No. 99 Civ. 10031, 2001 WL 262844, at *2 (S.D.N.Y. Mar. 15, 2001). In the movie The Godfather (Paramount Pictures 1980), a central character receives a package with a dead fish accompanied by a note that reads, "Luca Brasi sleeps with the fishes," i.e., Luca Brasi has been murdered and dumped into a river. Cf. Little et al. v. Nat'l Broadcasting Co., 210 F. Supp.2d 330, 362 (S.D.N.Y. 2002) (holding that numerous graphic and sexual jokes and the frequent comment "it smells like fish" around plaintiff was sufficient to infer gender animus). In this case, no comments were made to plaintiff in conjunction with the fish prank that would lead to the conclusion that it was motivated by her gender. Plaintiff does not allege that anything of this nature has happened to other women in the garage. Thus, the dead fish incident alone is insufficient as a matter of law to attribute a motivation for the harassment to her gender.
To the extent that Figueroa found all of these actions (the blanket party comment, the attempt to hit her with her car, the dead fish, and the vandalizing of her car) threatening, her recourse is with the authorities at the Sanitation Department and the police. Title VII is neither a civility code, nor a criminal statute. Instead, Title VII is meant to remedy a hostile work environment caused by gender-based harassment. Here, no purpose behind Title VII would be served by allowing plaintiff's case to proceed to trial. No rational juror, when faced with Figueroa's admissions that the events occurred "because [she is] Marilyn Figueroa" and her statements that she knew of no other reason why her coworkers might have treated her badly, could find for Figueroa on an essential element of her hostile work environment claim: that the treatment occurred because of her gender. Thus, summary judgment must be granted to defendant on this claim.
Defendant's motion for reconsideration of this Court's April 24, 2002 Opinion and Order is granted. Plaintiff's remaining claim of sexual harassment resulting in a hostile work environment is hereby dismissed. The Clerk of the Court is directed to close this case.