# 2012-013-006 Claim No. 118204 Motion No. M-80834
Claims for hostile work environment due to sexual harassment and retaliatory termination dismissed. On former cause of action, no objective evidence that the alleged harassment was based on Claimant's sex. On latter cause of action, Claimant failed to rebut Defendant's prima facie showing of legitimate reason for termination. Claimant's husband's derivative claim is also dismissed. Case information
UID: 2012-013-006 Claimant(s): CHRISTINE VERSCHAGE and DONALD VERSCHAGE Claimant short name: VERSCHAGE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118204 Motion number(s): M-80834 Cross-motion number(s): Judge: PHILIP J. PATTI Merkel & Merkel Claimant's attorney: BY: DAVID A. MERKEL, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General Third-party defendant's attorney: Signature date: February 3, 2012 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On January 18, 2012 the following papers were read on Defendant's motion to dismiss and/or for an order granting summary judgment in Claim No. 118204:
Notice of Motion (M-80834) and Supporting Affirmation with Exhibits Annexed
Attorney Affidavit in Opposition
Opposing Affidavit of Christine Verschage with Exhibits Annexed
Deposition Transcripts of Betty Jenkins, Joseph McGuire, Jeffrey Smith, Barbara
Zimmer, and Mark Jackson
Defendant's Reply Affirmation
Filed Papers: Claim; Amended Answer; Claimants' Verified Bill of Particulars
Claimant Christine Verschage (Claimant) and her husband, Donald Verschage, filed Claim No. 118204 seeking money damages from Defendant on three causes of action. The first cause of action alleges a hostile work environment caused by sexual harassment; the second cause of action sounds in retaliatory wrongful termination; and the third cause of action is Donald Verschage's derivative claim. Defendant now moves to dismiss the claim in its entirety and/or for an order granting summary judgment. For the reasons set forth below, the motion is granted and the claim is dismissed.
Claimant alleges that she was subjected to continued sexual harassment by a co-worker, Jeff Smith, as well as harassment and humiliation by other co-workers between January 8, 2008 and June 24, 2008 while she was employed at the Finger Lakes Developmental Disabilities Service Office (Finger Lakes DDSO) of the New York State Office of Mental Retardation and Developmental Disabilities(OMRDD), in the City of Rochester, New York. According to the facts as alleged by Claimant, her problems began on the afternoon of January 8, 2008, when Smith attempted to kiss her while they were sitting in a van that was parked in Genesee Valley Park during the course of their duties. Claimant states that she rebuffed Smith's advances, and later reported it to her immediate supervisor, Joseph McGuire. A February 5, 2008 meeting with Claimant, Smith, and Betty Jenkins, the Affirmative Action Officer at Finger Lakes DDSO purportedly resulted in a resolution to "agree to disagree" as Smith allegedly refused to speak about the incident. Both Claimant and Smith were advised to stay away from each other, and Claimant avers that Jenkins spoke with Smith after the meeting about training or an "adversity class" (Exhibit D to Defendant's Supporting Affirmation, at 52).
Now known as the Office for People with Developmental Disabilities (OPWDD).
In the months following this initial incident, Claimant alleges that she was subjected to several other incidents of harassment and/or humiliation that went unaddressed by her supervisors. In March 2008, Claimant avers that Smith and two other co-workers, Angela Wilcox and Cheryl Enders, laughed and did not attempt to help her when one of the clients hit her in the head while she was working. In April 2008, Claimant avers that she told McGuire about occasions of intimidation and retaliation against her by Smith, Wilcox, Enders, and Loriane Dean, and that McGuire said he would speak to them. Then, on May 12, 2008, Smith allegedly blocked a doorway while talking to other co-workers, and would not move when Claimant asked him to move so she could pass through the doorway. Smith had his back turned to Claimant when she attempted to get through the doorway, and she eventually pushed Smith aside and continued to her destination. This incident resulted in two complaints: one from Claimant against Smith, and one from Smith against Claimant, in which he alleged that she cursed at him and threatened him. On May 20, 2008, Claimant, with union representative Doug Drake present, met with Barbara Zimmer, a Mental Retardation Treatment Team Leader at Finger Lakes DDSO who dealt with employee misconduct, to discuss the alleged incidents from May 12. Claimant was advised to stay away from Smith, and document any interactions that they may have. Both Claimant and Smith were offered the opportunity to transfer out of Finger Lakes DDSO to another facility at that time, but both declined. Nine days after this meeting, Claimant alleged that McGuire and Zimmer were in the building for a meeting and refused to reprimand Smith and others for being uncooperative.
Several alleged incidents occurred on June 2, 2008. First, Smith allegedly made threatening looks at Claimant and tried to interrupt her work with Dean by talking to Dean. Claimant told McGuire about the way that Smith looked at her, but McGuire allegedly responded that there was nothing he could do about Smith's demeanor without seeing it himself. Later, Smith and Wilcox allegedly refused to assist Claimant when she was dealing with a client who was acting up. Finally, Smith allegedly spit on Claimant's car in the employee parking lot when she was leaving work. She told McGuire about this event, but McGuire allegedly saw no spit and so did not act on Claimant's allegation. Later that month, on June 24, 2008, McGuire allegedly threatened Claimant with insubordination if she refused to bring some dishes into a room where Smith may have been located after Wilcox complained about it, even though Claimant was attempting to avoid any contact with Smith. Claimant called her doctor, who allegedly faxed a note to Finger Lakes DDSO that "direct[ed] that Claimant not be required to work because of her condition" (Exhibit C to Defendant's Supporting Affirmation, at 4). This note is not included in the record. A May 1, 2009 letter to Claimant's attorney from Claimant's treating therapist, Trina Laughlin, LCSW-R, indicates that Claimant suffered from post-traumatic stress disorder (PTSD) and eventually Severe Clinical Depression related to the alleged harassment she experienced at work (Exhibit B to Opposing Affidavit of Christine Verschage, at 1).
Claimant sets forth a date of June 13, 2009 for the alleged wrongful termination in paragraph 15 of the Claim, but later specified in the Verified Bill of Particulars that the alleged wrongful termination occurred on June 29, 2009 (Exhibit C to Defendant's Supporting Affirmation, at 5).
On this motion, Defendant moves to dismiss and/or for an order granting summary judgment on all three causes of action. Claimant responds that there are sufficient material questions of fact that require a trial. I will address each cause of action in seriatim turn.
HOSTILE WORK ENVIRONMENT
Claimant's first cause of action is for a hostile work environment caused by sexual harassment, based on Executive Law § 296 (1), Article 15 of the Executive Law, and Title VII of the Civil Rights Act of 1964. Defendant offers a number of contentions in support of its motion. Initially, Defendant avers primarily that, even if each of Claimant's allegations were accepted as true, there is no cause of action for a hostile work environment based on sexual harassment because: 1) the incidents alleged are too isolated, occasional, and/or benign to create a cause of action sounding in a discriminatory hostile work environment; and 2) there is no evidence of encouragement, condonation or approval by Claimant's employer. Defendant further avers that any claims under Title VII are untimely, because Claimant failed to sue within 90 days after receiving her "Right to Sue" letter from the EEOC, and that any acts that were alleged to have occurred more than 300 days before Claimant filed her charge with the EEOC are time-barred for purposes of Title VII. Claimant responds that her claims are timely as she was granted leave to file a late claim by this Court (see Verschage v State of New York, Claim No. None, Motion No. M-77383 [Patti, J., Feb. 4, 2010]), and also that there are a number of material questions of fact that require trial. Defendant replies that Claimant failed to respond to the key issue in its motion, which was that the acts alleged do not constitute a valid claim of discriminatory hostile work environment. I agree with Defendant and, thus, the First Cause of Action is dismissed.
As an initial matter, I choose not to reach any determination with regard to Defendant's contention that Claimant's Title VII claims are untimely, or that, for purposes of Title VII claims, certain alleged incidents occurred more than 300 days prior to filing of charges with EEOC. Even if such claims were time-barred for Title VII purposes, they are not time-barred for purposes of the claims under New York State law. In any event, any protracted discussion of these issues of timeliness is rendered moot by the reasons for dismissal set forth below.
It is well established that, in order to establish a claim for a discriminatory hostile work environment, a Claimant has the burden of proving that the workplace was "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" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310, quoting Harris v Forklift Sys., Inc., 510 US 17, 21; see also Kapchek v United Ref. Co., Inc., 57 AD3d 1521, 1522; Dixon v City of New York, 2008 WL 4453201; Thomas v iStar Fin., Inc., 438 F Supp 2d 348, 365). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including '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 . . .' " (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 21). In a claim for a hostile work environment based on sexual harassment, the predicate acts complained of need not be explicitly sexual but must be in some way linked to a Claimant's gender. "If the acts complained of would be equally offensive to both sexes, then the subject of the harassment cannot claim to have been singled out because of [her] sex" (Yukoweic v International Bus. Machs., 228 AD2d 775, 777, quoting Fair v Guiding Eyes for the Blind, 742 F Supp 151, 156; see also Alliegro v State of New York, Claim No. 102178, Motion No. M-70064 [McNamara, J., Sept. 29, 2005]).
Additionally, as the doctrine of respondeat superior is not available under New York State law in cases involving alleged discrimination, a Claimant has the burden of showing that "the employer became a party to [such conduct] by encouraging, condoning or approving it" (Forrest, 3 NY3d at 311, citing Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687, quoting Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300, 305). The standard differs somewhat for claims under Title VII. In such cases, an employer may be held liable for a discriminatory hostile work environment created by the actions of a Claimant's co-worker if the employer has "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it" (Murray v. New York University College of Dentistry, 57 F3d 243, 249, quoting Kotcher v Rosa and Sullivan Appliance Center, Inc., 957 F2d 59, 63).
The Claim, Verified Bill of Particulars, and submitted deposition transcripts and exhibits clearly raise issues of fact with respect to whether and to what extent Claimant was harassed at work by her co-workers, and what, if any, response her supervisors had to such alleged harassment. Defendant's contention is, however, that even assuming the truth of each of Claimant's allegations, there is no proof that the alleged harassment was sexual harassment. I agree. Initially, of the incidents alleged by Claimant, only one incident, the attempted kiss by Jeff Smith on January 8, 2008, could possibly be considered "explicitly sexual," and that one incident alone is not sufficiently severe so as to alter the conditions of Claimant's employment and create a hostile work environment. With respect to the other alleged incidents, Claimant neither alleges nor describes any way in which her co-workers harassed her because of her sex: the March 2008 incident where Smith, Wilcox, and Enders laughed at Claimant when she was struck on the head by a client; the vague allegation of intimidation and retaliation by Smith, Wilcox, Enders, and Dean from April 2008; the May 12, 2008 incident where Smith, with his back turned to Claimant, blocked a doorway while talking to co-workers until Claimant pushed him out of the way; the May 29, 2008 incident where other staff was allegedly uncooperative with Claimant; the three alleged incidents from June 2, 2008, where Smith looked at Claimant in a "threatening" manner and tried to interrupt her work by talking to Dean, Claimant's inability to get assistance from Smith and Wilcox, and Smith spitting on her car; and the final alleged incident from June 24, 2008, where Wilcox complained about Claimant not bringing dishes into Room 110, where Smith usually worked, and Claimant was told to do so by McGuire. Simply put, there is no objective proof that the above behavior was related to Claimant's sex. Moreover, while these may not necessarily be the acts of the most caring and friendly co-workers, they are of the sort that would be equally offensive to both sexes and, thus, not the sorts of acts that will sustain an action for a discriminatory hostile work environment based on sexual harassment. In light of the above, I must grant Defendant's motion for an order granting summary judgment on the first cause of action.
Claimant's second cause of action sounds in wrongful termination. Claimant alleges specifically that she was notified of termination for a "non-occupational injury" more than a year after she first was taken out of work by her doctor due to the conditions there, and that she was terminated in retaliation for filing a charge with the EEOC. Again, Claimant bases this second cause of action on Executive Law § 296 (1), Article 15 of the Executive Law, and Title VII. On this motion, Defendant contends that the cause of action should be dismissed because Claimant failed to specify the date of the alleged wrongful termination in her Claim, which falls afoul of Court of Claims Act § 11 (b). Defendant further contends that there was no dispute that Claimant was absent from the workplace for more than one year and, thus, the termination provision of Section 73 of the Civil Service Law applies. In two responding affidavits, Claimant does not actually address Defendant's contentions.
Initially, Defendant's contention pursuant to Section 11 (b) of the Court of Claims Act was not specifically raised in its Amended Answer or any pre-Answer Motion to Dismiss and, thus, that defense is waived (see Court of Claims Act § 11 [c]).
Neither party addresses the law underlying a claim for retaliatory wrongful termination under the New York State Human Rights Law and Title VII in their motion papers. Briefly, it is well established that retaliation claims under both the New York State Human Rights Law and Title VII are evaluated under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v Green, 411 US 792, 802-805 (see also Jute v Hamilton Sundstrand Corp., 420 F3d 166, 173; Reed v A.W. Lawrence & Co., Inc., 95 F3d 1170, 1177). First, Claimant must establish a prima facie case by showing that (1) she participated in a protected activity; (2) Defendant knew of the protected activity; (3) Defendant took an adverse employment action against her; and (4) a causal connection existed between the protected activity and the adverse employment action (see Hicks v Baines, 593 F3d 159, 164; McMenemy v City of Rochester, 241 F3d 279, 283). Second, if Claimant makes out a prima facie case, the burden shifts to Defendant to articulate a legitimate, non-retaliatory reason for its action (see Hicks, 593 F3d at 164). Third, if Defendant articulates a legitimate, non-retaliatory reason for its action, Claimant may still prevail if she points to evidence sufficient to permit a reasonable fact finder to conclude that Defendant's stated reason is pretext for unlawful retaliation (see id.).
There is no question that, with the filing of her EEOC charge on January 19, 2009(Exhibit L to Defendant's Supporting Affirmation), Claimant engaged in a protected activity (see Clark County School Dist. v Breeden, 532 US 268, 273). While there is no evidence directly showing that Defendant was aware of Claimant's engaging in a protected activity, it is easily presumed that Defendant had knowledge thereof, as it is required that an employer is given notice of an EEOC charge within 10 days of filing (42 USC. §§ 2000e-5(b), (e)(1); 29 CFR § 1601.14 ). In terminating Claimant's employment on or about June 29, 2009, Defendant clearly took an adverse employment action against Claimant.
Claimant asserts that the initial EEOC charge was filed on November 17, 2008, and annexes a form generated by the EEOC website as proof thereof (Exhibit A to Claimant's Opposing Affidavit). The third page of that form specifically states, however, "Do not assume that you have filed a charge by submitting this questionnaire. An EEOC representative will contact you regarding this matter." The sworn document that was filed with EEOC, which was provided by Defendant as Exhibit L to its motion papers, is sworn to January 12, 2009. Thus, Claimant's assertion appears to be incorrect, and the filing date of the EEOC charge, as demonstrated by the documentary evidence before the Court, is January 19, 2009.
Thus, the only question is whether there is anything before the Court demonstrating a causal connection between the filing of the EEOC charge and Claimant's termination. Again, as noted above, Claimant failed to offer any rebuttal to Defendant's contention with respect to the second cause of action. Regardless, upon my review of the entire record before me, there does not appear to be any evidence suggesting that the termination of Claimant's employment was in any way causally connected to the filing of her EEOC charge more than five months earlier. A temporal proximity of five months or more is clearly insufficient on its own to prove a causal relationship (see Clark County School Dist., 532 US at 273-274). Aside from the initial allegation in her Claim, nothing else in Claimant's deposition testimony or the affidavits offered in opposition to the motion suggest that the termination of her employment was in any way related to her filing of the EEOC charge.
Even if Claimant provided any objective proof of a causal connection between the filing of the EEOC charge and her later termination, Defendant made a prima facie showing of a legitimate, non-retaliatory reason for her termination. On this motion, Defendant asserts that Claimant was terminated after being absent from the workplace for more than one year, pursuant to Civil Service Law § 73. This section of the Civil Service Law provides that an employee may be terminated "[w]hen [the] employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the [workers'] compensation law." There is no dispute that Claimant was out of work for at least one year, so, unless Claimant's disability was an occupational injury or disease as defined in the Workers' Compensation Law, Section 73 applies here. In the event that her disability resulted from an occupational injury or disease, Section 71 of the Civil Service Law would apply, and Defendant would have been required to notify Claimant that she would be terminated if she failed to return to work within one year (see Matterof La Joie v County of Niagara, 239 AD2d 908; 4 NYCRR 5.9 [b] and 21.8 [a] ). Section 73 requires no such notice (see Matter of Mair-Headley v County of Westchester, 41 AD3d 600). Whether Section 71 applies, however, is contingent on an employer receiving notice that the claimant "is absent on account of such injury or disease and that [s]he claims benefits under such law" (4 NYCRR 21.8 [a] ).
Although she asserts that her leave of absence was due to an occupational injury, Claimant testified at her deposition that she did not apply for Workers' Compensation benefits during the year leading up to her termination (Exhibit D to Defendant's Supporting Affirmation, at 82-83), although she did apparently apply for Workers' Compensation benefits some time after (Exhibit D to Defendant's Supporting Affirmation, at 95-96). As such, even if Claimant had a note from her doctor indicating that her stress was work-related, there was no way that Defendant could have had any notice from Claimant that she was making a claim for benefits due to an occupational injury or disease under the Workers' Compensation Law. Moreover, the mere assertion by a doctor that a disability is causally related to a claimant's occupation does not necessarily constitute substantial evidence of an occupational injury or disease under the Workers' Compensation Law (see Matter of Pecora v County of Westchester, 13 AD3d 916). Thus, Defendant has demonstrated that Section 73 applies and that Claimant was terminated for her non-occupational disability absence of at least one year, as provided for in the Civil Service Law, and not because of Claimant's filing of an EEOC charge.
In light of the above, I must grant Defendant's motion for an order granting summary judgment on the second cause of action.
DONALD VERSCHAGE'S DERIVATIVE CLAIM
It is well established that the spouse of a victim of alleged employment discrimination is not a person aggrieved within the meaning of the New York State Human Rights Law (see Sone v Tsumura, 222 AD2d 231; Giaimo & Vreeburg v Smith, 192 AD2d 41; Mehtani v New York Life Ins. Co., 145 AD2d 90; Rich v CooperVision, Inc., 198 AD2d 860; Weinstein v Hospital for Joint Diseases & Med. Ctr., 53 AD2d 627). As such, Donald Verschage's derivative claim must be dismissed.
Accordingly, Defendant's motion to dismiss and/or for summary judgment (M-80834) is hereby GRANTED and Claim No. 118204 is hereby DISMISSED.
February 3, 2012
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims