Opinion
97-CV-1407 (LEK)(RWS)
March 27, 2000
RONALD G. DUNN, Esq., GLEASON, DUNN, WALSH O'SHEA, Albany, NY, for the plaintiff.
DAVID B. ROBERTS, Esq., Assistant Attorney General, HON. ELLIOT L. SPITZER, Attorney General of the State of New York, Albany, NY, for the defendants.
MEMORANDUM-DECISION AND ORDER
Plaintiff alleges sexual harassment by Defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 ("Title VII"), and the New York Human Rights Law, N.Y. Exec. Law §§ 290 to 301 (McKinney 1999-2000) ("NYHRL").
I. BACKGROUND
Plaintiff was employed by Defendant, the New York State Executive Department, Division of the State Police ("State Police"), as a Communications Specialist/Dispatcher in the Claverack substation from 1994 through May 1997. Plaintiff alleges that during her employment she was harassed by Defendant James E. Benziger ("Benziger"), a state trooper stationed at Claverack. Plaintiff's complaint states that Benziger repeatedly belittled, demeaned and harassed Plaintiff over a two year period on the basis of her sex. Generally, Plaintiff states that Benziger subjected her and other female employees to vulgar and obscene epithets and that this conduct was or should have been known by her employer.
Specifically, Plaintiff's allegations include but are not limited to the following: (1) that Benziger repeatedly called her "Roxanne" because of a song of the same title that was about a prostitute; (2) that Benziger implied that Plaintiff was a prostitute when he referred to her second-job workplace, China Road, as "China Ho," and repeatedly asked her how much she made working at the "Ho"; (3) that Benziger, in the presence of male co-workers, referred to Plaintiff's feminine hygiene as "crotch rot"; (4) that Benziger repeatedly made conjectural comments about Plaintiff's undergarments, including their color and whether Plaintiff wore any; (5) that Benziger asked Plaintiff if she ever had sexual relations with two men; (6) that Benziger ignored her instructions as a dispatcher in an attempt to demean Plaintiff; (7) that Benziger screamed at Plaintiff when she would have any contact with Benziger's police dog; (8) that Benziger would not so react when other employees would have similar contact; (9) that Benziger harassed other female employees; (10) that on April 17, 1996, Benziger pulled a chair from underneath Plaintiff causing her to sustain severe injuries requiring medical treatment; (11) that said injuries caused her continued absence from work; (12) that after the incident Benziger called Plaintiff, allegedly to apologize, at which time he stated that she fell from the chair because her "butt was made out of Crisco"; (13) that Benziger's conduct was open and notorious, took place in the presence of supervisors and was otherwise brought to the attention of the State Police by complaints to supervisors; (14) that Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on or about November 25, 1996 and (15) that the EEOC issued a right-to-sue letter dated July 2, 1997.
Plaintiff further alleges that she was pressured to return to work despite the fact that she continued to suffer from her April 17, 1996 fall, that she would have been forced to continue to work with Benziger despite her protestations and that when she did ultimately attempt to return to work she was ignored by co-workers. Plaintiff alleges that these events caused her to abandon her return to work and that same constituted a constructive discharge and adverse and illegal employment action.
Plaintiff's complaint states five causes of action. Four causes of action are maintained against the State Police including two hostile work environment sexual harassment claims in violation of Title VII and the NYHRL as well as two retaliatory discharge claims under both statutes. Plaintiff also brings suit against Benziger in his individual capacity as an "aider and abettor" pursuant to the NYHRL.
II. DISCUSSION
Presently before the Court is a motion for summary judgment wherein Defendants seek dismissal of all five of Plaintiff's causes of action. Defendants argue that Plaintiff has failed to allege facts that would allow a reasonable trier of fact to conclude that Plaintiff was subjected to a hostile work environment or that she was retaliated against. Defendants also argue that Plaintiff's NYHRL action against the state is barred by the Eleventh Amendment and that the law does not recognize a NYHRL action against Benziger in his individual capacity.
A. The Standard for Summary Judgment
Under the Federal Rules of Civil Procedure, if "there is no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c), "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975) (Kaufman, C.J.), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) (Kaufman, J.). It is with these considerations in mind that the Court addresses Defendants' motion for summary judgment.
B. Hostile Work Environment Sexual Harassment
The elements of a sexual harassment claim based on a hostile work environment are well settled. As this Court has recently stated,
[t]o prevail on a hostile work environment claim, a plaintiff must prove: "(1) that she is a member of a protected group; (2) that she was the subject of unwelcome advances; (3) that the harassment was based upon her sex; and (4) that the harassment affected a term, condition, or privilege of employment." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993). A hostile environment under Title VII is one in which the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A court must be particularly concerned with "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. While a plaintiff's subjective experience of a hostile environment is necessary to sustain a claim, it is not enough. As the Supreme Court emphasizes, "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Id. at 21.Turner v. Olympic Reg'l Dev. Auth., No. 97-CV-1330, 2000 WL 194821, at *4, ___ F. Supp.2d ___, ___(N.D.N.Y. Feb. 2, 2000) (Kahn, J.). Furthermore, Plaintiff must establish facts sufficient to impute liability to her former employer. In order for such liability to attach, a plaintiff alleging discrimination by a co-employee must prove that the employer has "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995); accord Bush v. Raymond Corp., 954 F. Supp. 490, 495 (N.D.N.Y. 1997) (McAvoy, C.J.).
Defendants attack Plaintiff's allegation of hostile work environment discrimination on four grounds. First, Defendants argue that Plaintiff cannot prove the alleged harassment was unwelcome. Second, Defendants argue that Plaintiff cannot establish the alleged discrimination was based on Plaintiff's sex. Third, Defendants argue the conduct complained of is not sufficiently pervasive to establish a hostile work environment. Finally, Defendants maintain the record does not indicate the State Police failed to provide an avenue of redress or establish that the State Police knew of the conduct but failed to remedy it. The Court disagrees and finds material issues of fact in dispute relative to these arguments.
Defendants first argue that the alleged conduct was not unwelcome. In support of their argument, Defendants aver that Plaintiff "asked for" Benziger to call her "Roxanne" and that "[p]laintiff and Benziger engaged in mutual and non-hostile conduct by employing nicknames to address one another at the workplace. . . ." (Defs.' Mem. at 12.) Defendants apparently believe that Plaintiff's reference to Benziger as "dogboy" indicates that she welcomed the nicknames. The papers before the Court do not paint such a clear picture. Plaintiff's complaint states that Benziger's "conduct was unwelcome." (Pl.'s Compl. at ¶ 18.) Plaintiff also states that
Trooper Benziger routinely sang a song to me called "Roxanne". The song is a well-known "popular" song written by "Sting" and performed by "The Police", which is a popular singing group from the 80's and 90's. The song, in general terms, is about a prostitute named "Roxanne". In the song, the singer asks Roxanne to stop soliciting clients for sexual favors in exchange for money, and instead be faithful to him alone. . . .
I routinely told Trooper Benziger that I did not want that song sung to me. Despite my regular requests, he continued to sing the lyrics to me in an open way. Although he did not sing the entire song, the lyrics he sang made it clear to me that he was referring to me as the "Roxanne" from the song and that the lyrics, even though incomplete, referred to Roxanne as a prostitute. Virtually everyone in the barracks knew and heard Trooper Benziger sing the song to me. I was embarrassed about the song being directed at me in the way that it was. I saw this as an insult to me in a sexually derogatory way.
(Pl's Aff. at ¶¶ 7, 8.)
Thus, Plaintiff clearly contradicts Defendants' averment that the nickname Roxanne was welcome. Furthermore, even assuming Defendants are correct in their assertion that use of the nickname was not unwelcome, Defendants make no arguments relative to the host of other unwelcome conduct allegedly perpetrated by Benziger. Therefore, the Court concludes that there are genuine issues of material fact regarding whether Benziger's conduct was unwelcome.
Defendants next argue that Plaintiff can not satisfy the requirement that the harassment be the result of the Plaintiff's sex. Defendants state "[t]here is no reasonable basis for the conclusion that Plaintiff's chair was pushed by Trooper Benziger because the person in the chair was female." (Defs.' Mem. at 13.) This conclusory argument is simply insufficient in light of Plaintiff's complaint and motion papers that allege numerous incidents of harassment purportedly based on Plaintiff's gender.
Defendants also contend that Plaintiff's claim should be dismissed because she cannot establish an objectively hostile or abusive environment. In support of this argument, Defendant's largely rely on the foregoing arguments. For the reasons already stated, the Court believes that these arguments involve issues of material fact and cannot be relied upon by Defendants. Defendant's also argue that no hostile or abusive environment can be proved since "plaintiff admitted at deposition that she never was unable to carry out her duties on account of the manner in which Trooper Benziger spoke to her." (Defs.' Mem. at 14 (emphasis added).) The Court first notes that Defendants' characterization of Plaintiff's deposition testimony is inaccurate. When Plaintiff indicated that she was not rendered unable to perform her work, she was being asked about two specific incidents of alleged harassment. She was not making a blanket statement that she was never unable to perform her work duties. As such, Defendants' statement that she was "never" rendered unable to perform her work is overly broad and does not accurately reflect the deposition testimony.
Furthermore, even assuming that Plaintiff did testify that she was "never" rendered unable to perform her work, this is not the standard required to be proved by Plaintiff. In compliance with authorities cited supra p. 5, Plaintiff's case must show "that the harassment affected a term, condition or privilege of employment," Cosgrove, 9 F.3d at 1042 (emphasis added), that the discrimination "alter[ed] the conditions of the [plaintiff's] employment and creat[ed] an abusive working environment," Harris, 510 U.S. at 21 (emphasis added), and that the Defendants' conduct "unreasonably interfere[d] with [the plaintiff's] work performance." Id. at 23 (emphasis added). Plaintiff need not establish that she was rendered completely "unable" to perform her job duties, as Defendants suggest. Plaintiff's complaint and papers include numerous allegations of unreasonable interference with work performance as a consequence of Benziger's conduct. These allegations include, but are not limited to, Plaintiff's allegation that she missed work because of injuries sustained when Benziger pulled her chair from underneath her. As such, Defendants' argument is unpersuasive.
Finally, Defendants argue that Plaintiff does not establish that her employer failed to provide an avenue of redress or that her employer knew of the discrimination but failed to remedy it. Plaintiff clearly argues in her complaint, her moving papers and her deposition testimony that Benziger's harassment took place over a two year term, that it was open and notorious and that she complained to supervisors of Benziger's conduct. These allegations create a material issue of fact regarding whether her employer knew of the discrimination but failed to remedy it.
C. Retaliation Claim
To state a successful retaliation claim, a plaintiff must prove (1) that she participated in a protected activity known to the Defendant; (2) that her employer took adverse employment action against her; and (3) that there exists a causal link between the protected activity and the adverse employment action. See Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Bush, 954 F. Supp. at 497-98.
Plaintiff alleges that the State Police retaliated against her as a result of her complaint about Benziger. ( See Compl. at ¶ 24.) In her response papers, Plaintiff recites two events that allegedly support her retaliation claim. First, Plaintiff alleges that "she was pressured to return to work," that she did return to work for two days, and that she was ignored by some of her co-workers during this two day period. ( See Pl.'s Mem. at 15.) Second, Plaintiff maintains her request for a different work schedule than Benziger was denied. ( Id.)
Generalized references regarding unfriendly co-workers, without more, do not constitute adverse employment action. Furthermore, pressure from an employer to return to work and the denial of a shift change, without more, are equally insufficient to qualify as adverse employment actions. There is no evidence before the Court that Plaintiff was treated any differently than other employees who had been absent from work or who had requested shift changes. The Court notes that Plaintiff's shift change request came on the Friday before the Monday she was to return to work. The inability to accommodate Plaintiff's request on such short notice is neither surprising nor suggests any retaliation. Therefore, even construing the facts in a light most favorable to the non-moving party, the Court concludes that Defendants are entitled to summary judgment with respect to Plaintiff's retaliation claims.
D. Eleventh Amendment Immunity
Defendants argue that Plaintiff's claim pursuant to the NYHRL should be dismissed because of the State's Eleventh Amendment immunity. Plaintiff fails to address this issue in her opposition papers.
The law in this area is well settled.
The Eleventh Amendment bars suits against states by their own citizens in federal court in the absence of waiver by the state or abrogation by Congress. State waiver will be found "only where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Nothing in the [NY]HRL provides any basis for finding that New York State has waived its Eleventh Amendment immunity.Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551, 558 (N.D.N.Y. 1999) (McAvoy, C.J.) (citations omitted). The Court, therefore, has no jurisdiction over Plaintiff's NYHRL claim against the State of New York. See Roberts v. New York State Dep't of Correctional Servs., 63 F. Supp.2d 272, 279-80 (W.D.N Y 1999); Sanghvi v. Frendel, No. 96 CV 5133, 1999 WL 14708, at *2-*3 (E.D.N.Y. Jan. 6, 1999); Crockett v. Pataki, No. 97 Civ. 3539, 1998 WL 614134, *4-*5 (S.D.N.Y. Sept. 14, 1998). As such, Defendants' motion is granted with respect to Plaintiff's NYHRL claim against the State of New York.
E. Plaintiff's NYHRL Claim Against Benziger
Defendant's argue that Plaintiff may not maintain her NYHRL action against Benziger in his individual capacity. For the reasons articulated by the Circuit in Tomka v. Seiler Corp., 66 F.3d 1295, 1313, 1317 (2d Cir. 1995), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and by Chief Judge McAvoy in Bush, the Court disagrees with Defendants' position and denies their motion with respect to Plaintiff's NYHRL claim against Benziger. See Bush, 954 F. Supp. at 496-97.
CONCLUSION
Accordingly, it is hereby
ORDERED that Defendants' motion is DENIED with respect to Plaintiff's hostile work environment cause of action pursuant to Title VII, and
IT IS FURTHER ORDERED that Defendants' motion is DENIED with respect to Plaintiff's hostile work environment cause of action pursuant to the NYHRL, and
IT IS FURTHER ORDERED that Defendants' motion is GRANTED with respect to Plaintiff's retaliation cause of action pursuant to Title VII, and
IT IS FURTHER ORDERED that Defendants' motion is GRANTED with respect to Plaintiff's retaliation cause of action pursuant to the NYHRL, and
IT IS FURTHER ORDERED that Defendants' motion is DENIED with respect to Plaintiff's cause of action against Defendant Benziger individually pursuant to the NYHRL, and
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action.
IT IS SO ORDERED.