Notaro et al v. Fossil Industries, Inc. et al
Filing
30
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED that the Defendants 25 motion for summary judgment with regard to the Plaintiffs Title VII claims of hostile work environment and constructive discharge is denied; and it is further ORDERED th at the Defendants 25 motion for summary judgment with regard to the Plaintiffs Title VII retaliation claim is granted; and it is further ORDERED that the parties are directed to appear before the Court on November 14, 2011 at 9:00 am for a pre-trial conference in Court Room 1020. Counsel shall have authority to discuss settlement at this conference. Ordered by Senior Judge Arthur D. Spatt on 10/29/11. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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VICKIANN NOTARO and STEPHANIE LEM,
Plaintiffs,
-against-
MEMORANDUM OF
DECISION AND ORDER
09-cv-2006 (ADS)(ARL)
FOSSIL INDUSTRIES, INC. and STEVEN
BIANCO
Defendants.
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APPEARANCES:
Law Office of Michael Joseph Corcoran
Attorneys for the Plaintiffs
100 Patco Court
Suite 1
Islandia, NY 11749-1522
By:
Michael Joseph Corcoran, Esq., of Counsel
Raymond Anthony Giusto, Esq.
Attorney for the Defendant Fossil Industries, Inc.
136 E. Main Street
East Islip, NY 11730
NO APPERANCE
Steven Bianco
SPATT, District Judge.
The Plaintiffs in this case, Vickiann Notaro and Stephanie Lem, filed an
action against Fossil Industries, Inc. and Steven Bianco, asserting that the
Defendants created a hostile work environment in the Plaintiffs’ workplace, which
resulted in constructive discharge of the Plaintiffs. In addition, the Plaintiffs assert
that the Defendants retaliated against the Plaintiffs for complaining about the
presence of the hostile work environment. The Defendant Fossil has now moved
for summary judgment dismissing all of the Plaintiffs’ causes of actions. For the
reasons set forth below, summary judgment for the Defendant is denied with respect
to the Plaintiffs’ hostile work environment and constructive discharge claims, and
granted with respect to the Plaintiffs’ retaliation claims.
I. BACKGROUND
The following factual allegations are taken from the Plaintiffs’ complaint
and the Local Civil Rule 56.1 statements filed by the parties.
On July 25, 2005 and August 5, 2005, the Plaintiffs Vickiann Notaro and
Stephanie Lem were hired by Fossil Industries, Inc. (“Fossil”), respectively, as
Project Managers. Fossil is a company that manufactures signs and graphics. The
office has approximately twenty employees. Defendant Steven Bianco was Print
Manager at the same location as the Plaintiffs. Jody Hessel worked in the same
department as Bianco and was Art Department Manager. Although Notaro and
Lem state that they believed Bianco to be in a supervisory role at the company, the
Defendants maintain that Bianco held no supervisory authority over the Plaintiffs.
Rather, Steve Melisi, the Vice President of Operations, was the immediate
supervisor of Notaro, Lem, and Bianco. Howard DeCesare is the President of
Fossil.
During the course of the Plaintiffs’ employment, Notaro and Lem claim that
Bianco continually and abusively harassed the Plaintiffs by utilizing sexually
charged language. The parties agree that outbursts of profanities occurred, and that
they weren’t always necessarily directed at the Plaintiffs. However, the parties
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disagree about the nature of these incidents. The Plaintiffs claim that on a regular
basis, Bianco would throw and punch things in the office and would curse solely at
Lem and Notaro. On the other hand, the Defendant characterizes the environment
of one that was merely fast paced and tense, and states that Bianco’s use of
profanities and abusive language was due to his inability to handle pressure well
and his general obnoxious personality.
Based upon the nearly identical complaint letters filed with the Equal
Employment Opportunity Office (“EEOC”) by the Plaintiffs in June 2006, there
appears to be at least five specific instances of Bianco’s alleged sexual harassment
at issue. First, in response to a request to work overtime by Notaro, Bianco said
“You and Howard de Cesare [the company’s President] can suck my d---.” Lem
claims that Bianco used this phrase on more than one occasion while
simultaneously putting his hands on his genitals, though the Defendant counters this
assertion. Second, on April 26, 2006, Bianco walked past an office space occupied
by the two Plaintiffs, punched a window and yelled, “You two can go f--yourselves.” Neither Plaintiff felt that this outburst was sexually motivated, but did
find the words to be offensive and sexually charged. Third, again in April 2006,
Bianco threw a metal pipe at the wall of a lunch room while it was occupied. The
Plaintiffs acknowledge that it was not directed at them and neither Plaintiff was
present in the room where the pipe was thrown. Fourth, on May 4, 2006, Lem
witnessed an angry outburst by Bianco about an outside vendor where he used
profanities related to the vendor and her sexual preferences. Lem acknowledged
that Bianco’s outburst was not directed at her. Fifth, on May 23, 2006, Lem spoke
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with Hessel regarding some work that needed to be done and Hessel told her “No!
Forget it, I’m not F---ing doing it, No, get someone else to F---ing do it, I’m putting
my foot down, No!” Lem acknowledged that Hessel was not sexually
propositioning her.
The Plaintiffs claim that throughout their employment at Fossil, they
complained vigorously and repeatedly to the vice president, Melisi, and that
Bianco’s behavior was an ongoing issue. However, the two executives deny that
they knew anything about the conduct, despite the Plaintiffs’ contention that the
facility is small and that all actions are within hearing distance. The only time that
the Defendant maintains it was notified about an incident was the one that took
place on April 26, 2006. In that situation, DeCesare immediately took action to
address it and reprimanded Bianco for his behavior. DeCesare offered at that time
to terminate Bianco, but the Plaintiffs did not encourage that he do so.
On or about April 28, 2006, Notaro claims she was constructively
discharged from her employment at Fossil. Similarly, on or about May 23, 2006,
Lem claims she was constructively discharged. Both Plaintiffs then submitted
letters to the EEOC on June 12, 2006.
On February 18, 2009, the EEOC issued a Notice of Right to Sue to each of
the Plaintiffs. Thereafter, on May 12, 2009, the Plaintiffs commenced the present
action against Fossil and Bianco, claiming violations of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 290 et seq., and New York State Human
Rights Law, N.Y. Exec. Law §§ 296 et seq. Bianco has not yet appeared in this
action.
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On September 27, 2011, the Defendant Fossil filed a motion for summary
judgment on the grounds that (1) Bianco’s conduct did not rise to the level of an
actionable claim for sexual harassment; (2) there can be no vicarious liability for
Fossil because Bianco was a co-employee rather than a supervisor; (3) the Plaintiffs
cannot establish a claim for constructive discharge; and (4) the Plaintiffs cannot
establish a claim for retaliation as a matter of law.
II. DISCUSSION
A. Legal Standard on a Motion for Summary Judgment
It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is
proper only “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, 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.” Fed. R. Civ. P. 56(c). A fact is “material” within the meaning of
Fed. R. Civ. P. 56 when its resolution “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986). An issue is “genuine” when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id. In
determining whether an issue is genuine, “[t]he inferences to be drawn from the
underlying affidavits, exhibits, interrogatory answers, and depositions must be
viewed in the light most favorable to the party opposing the motion.” Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per
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curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.
1989)).
Once the moving party has met its burden, “the nonmoving party must come
forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the
nonmoving party cannot survive summary judgment by casting mere “metaphysical
doubt” upon the evidence produced by the moving party. Matsushita, 475 U.S. at
586. Summary judgment is appropriate when the moving party can show that “little
or no evidence may be found in support of the nonmoving party’s case.” Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1223–24 (2d Cir. 1994) (citations
omitted).
B. As to the Plaintiffs’ Hostile Work Environment Claims
Under Title VII of the Civil Rights Act of 1964, which prohibits sexual
harassment in the workplace, a cause of action may proceed under two theories:
quid pro quo harassment and hostile work environment. Karibian v. Columbia
Univ., 14 F.3d 773, 777 (2d Cir. 1994); Perks v. Town of Huntington, 251 F. Supp.
2d 1143, 1154 (E.D.N.Y. 2003). The Defendant contends—and the Plaintiffs do
not dispute—that no quid pro quo claim was made in this case. See Karibian, 14
F.3d at 777 (“[Q]uid pro quo harassment occurs when ‘submission to or rejection of
[unwelcome sexual] conduct by an individual is used as the basis for employment
decisions affecting such individual’ ” (quoting 29 C.F.R. § 1604.11(a)(2))). Thus,
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the only relevant inquiry is whether there is a genuine issue of material fact relating
to a claim of a hostile work environment.
In order to prevail on a hostile work environment claim, a plaintiff must
satisfy two elements: “‘(1) that the workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of [his
or] her work environment, and (2) that a specific basis exists for imputing the
conduct that created the hostile environment to the employer.’” Mack v. Otis
Elevator Co., 326 F.3d 116, 122 (2d Cir.2003) (quoting Richardson v. N.Y. State
Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir.1999)); accord Terry v. Ashcroft,
336 F.3d 128, 147 (2d Cir. 2003).
1. The Presence of a Hostile Work Environment
The Defendant maintains that summary judgment should be granted because
there is no genuine issue of material fact whether a hostile work environment
existed at Fossil because, as a matter of law, Bianco’s behavior did not rise to the
level of an actionable claim for sexual harassment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.
Ed. 2d 295 (1993), the Supreme Court stated that a claim for sexual harassment is
established “when 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.” Id. at 21
(citations and internal quotation marks omitted). The Supreme Court added that:
mere utterance of an . . . epithet which engenders offensive
feelings in a employee does not sufficiently affect the conditions of
employment to implicate Title VII. Conduct that is not severe or
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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. Likewise, if the
victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions of the
victim's employment, and there is no Title VII violation.
Id. at 21–22 (citations and internal quotation marks omitted).
The Second Circuit has described the criteria for adequately pleading a
claim of a hostile working environment as follows:
In order to survive summary judgment on a claim of hostile work
environment harassment, a plaintiff must produce evidence that 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. Isolated instances of
harassment ordinarily do not rise to this level. Rather, the plaintiff
must demonstrate 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. Determining whether workplace harassment was
severe or pervasive enough to be actionable depends on the totality
of the circumstances. Because the crucial inquiry focuses on the
nature of the workplace environment as a whole, a plaintiff who
herself experiences discriminatory harassment need not be the
target of other instances of hostility in order for those incidents to
support her claim.
Cruz v. Coach Stores, 202 F.3d 560, 570 (2nd Cir. 2000).
The Defendant claims that the behavior alleged by the Plaintiffs consists
solely of “angry outbursts by individuals working in a tense atmosphere” and was
“wholly unrelated to each plaintiff’s gender.” (Def.’s Br. at 8). As this Court has
found in a similar case, “the defendants’ arguments have some merit and may even
prevail at the trial, or perhaps, even at the end of the plaintiff's case. However,
viewing the evidence in the light most favorable to the plaintiff, the claim that [the
defendant] sexually harassed the plaintiff is inappropriate for resolution on a motion
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for summary judgment.” Ackerman v. Nat’l Fin. Sys., 81 F. Supp. 2d 434, 438
(E.D.N.Y. 2000) (Spatt J.). The Court cannot say that the application of the law to
the present facts will reasonably support only one ultimate conclusion. “‘An Article
III judge is not a hierophant of social graces’ and is generally in no better position
than a jury to determine when ‘conduct crosses the line between boorish and
inappropriate behavior and actionable sexual harassment.’” Schiano v. Quality
Payroll Sys., Inc., 445. F.3d 597, 605 (2d Cir. 2006) (quoting Holtz v. Rockefeller
& Co., 258 F.3d 62, 75 (2d Cir. 2001)).
The Plaintiffs contend that profanity was used often in the workplace, even
if it was not directed at them in every instance. Although the Defendant argues that
the profanity was motivated solely by Bianco’s anger, it is a question of fact
whether, as Lem testified in her deposition, the use of certain vulgarities in a work
setting can be sexually charged so as to constitute a hostile work environment. In
addition, whether the occurrences were limited to only a few occasions or happened
frequently throughout the Plaintiffs’ employment is an issue of credibility and one
that should be left to the province of the jury.
After reviewing the record and drawing all reasonable inferences in the
Plaintiffs’ favor, the Court finds that sufficient evidence exists to raise an issue of
material fact as to whether Bianco’s behavior rose to the level of an actionable
claim for sexual harassment such that a jury could find the existence of a hostile
work environment. As such, summary judgment on this ground is unwarranted.
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2. Employer Liability for the Hostile Work Environment
Another basis for the Defendant’s summary judgment motion is that there
can be no vicarious liability for the moving Defendant, Fossil, because Bianco was
a co-employee rather than a supervisor of the Plaintiffs. At the outset, the Court
notes that there is an issue of fact as to whether Bianco had supervisory authority
over the Plaintiffs. Notaro testified that she subjectively understood him to be a
manager because of his title and he would directly give Notaro and Lem guidance
regarding client contact. However, Notaro and Lem testified that Bianco could not
discipline them, and that they dictated orders to him as well.
Assuming, arguendo, that Bianco was only a co-worker of the Plaintiffs, the
Court nevertheless finds that summary judgment is not warranted on the basis of
Fossil’s vicarious liability. “[W]hen the harassment is attributable to a coworker,
rather than a supervisor. . . the employer will be held liable only for its own
negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir.1998). Thus,
Fossil may still be held liable if it “failed to provide a reasonable avenue for
complaint” or that “it knew, or in the exercise of reasonable care should have
known, about the harassment yet failed to take appropriate remedial action.”
Howley v. Town of Stratford, 154 (2d Cir. 2000) (internal quotation marks
omitted). “This standard requires a plaintiff to show that (1) someone had actual or
constructive knowledge of the harassment, (2) the knowledge of this individual can
be imputed to the employer, and (3) the employer's response, in light of that
knowledge, was unreasonable.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009)
(emphasis in original).
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There is no issue of fact as to whether there was a reasonable avenue of
complaint. Notaro and Lem acknowledged receipt of an employee handbook,
which contained a clearly articulated policy and procedure in the event an employee
wished to make a complaint regarding sexual harassment. Therefore, the issue in
the present case is whether Melisi and/or DeCesare knew about the harassment but
failed to do anything about it.
The Defendant claims, and the Plaintiffs do not dispute, that the company
executives acted immediately in response to the Plaintiffs’ complaints regarding the
April 26, 2006 incident whereBianco struck a window and yelled obscenities at the
two Plaintiffs. However, the Plaintiffs assert that long before this particular
complaint in April 2006, they had repeatedly complained to Melisi about the
harassment and that he failed to do anything. Furthermore, the Plaintiffs assert that
the office was so small that Melisi and DeCesare must have overhead many of the
incidents of alleged harassment. The Defendant, on the other hand, maintains that
the executives did not know or hear anything regarding the alleged harassment
beyond the April 2006 incident.
The Court finds that a genuine issue of material fact exists. Viewed in the
light most favorable to the Plaintiffs, a rationale jury could conclude that the
Defendant had actual or constructive knowledge of the harassment. Therefore,
summary judgment on this ground is denied.
C. As to the Plaintiffs’ Constructive Discharge Claims
In addition, the Defendant argues that summary judgment is appropriate
because the Plaintiffs cannot establish a claim for constructive discharge as a matter
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of law because (1) “none of the behavior exhibited by Bianco or Hessel can be
imputed to Fossil;” and (2) “the cursing and profanities . . . may have been
unpleasant, but not such that a reasonable person would feel compelled to resign.”
(Def.’s Br. at 9).
The Supreme Court has held that a constructive discharge is “functionally
the same as an actual termination” and therefore is considered an adverse
employment action under Title VII. Pennsylvania State Police v. Suders, 542 U.S.
129, 148, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004). For a court to consider
constructive discharge a plaintiff must show that the employer “intentionally
create[d] a work atmosphere so intolerable that [the employee] is forced to quit
involuntarily.” Terry v. Ashcroft, 336 F.3d 128, 151–52 (2d Cir. 2003) (holding that
allegations of constructive discharge, “viewed as a whole, [must be] so difficult or
unpleasant that a reasonable person in the employee's shoes would have felt
compelled to resign”). “Whether working conditions are sufficiently intolerable to
constitute a constructive discharge ‘is assessed objectively by reference to a
reasonable person in the employee's position.’ ” Borski v. Staten Island Rapid
Transit, 413 Fed. Appx. 409, 411 (2d Cir.2011) (quoting Petrosino v. Bell Atl., 385
F.3d 210, 230 (2d Cir. 2004)).
In the present case, there are genuine issues of material fact as to whether
constructive discharge took place. First, as set forth above, it is possible that the
behavior by Bianco or Hessel can be reasonably imputed to Fossil. Additionally,
the instances of alleged harassment cited above, which the Court found may be
sufficient to constitute a hostile working environment, may also be sufficient to
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constitute an atmosphere such that a reasonable person would feel compelled to
resign. While this Court recognizes that “[t]he standard for constructive discharge
is even higher than that required to prevail on a hostile environment claim,” Mandel
v. Champion Intern. Corp., 361 F. Supp. 2d 320, 327 (S.D.N.Y. 2005), the Plaintiffs
claim that the environment was so hostile as to render continued employment
untenable. For example, Lem supports her constructive discharge claim with an
email to DeCesare, in which she stated, “I can no longer do my job effectively due
to the unprofessional and abusive working environment that is within Fossil.” (Pl.’s
56.1 at ¶ 37). The Defendants assert that the Plaintiffs left for various other
reasons, including Notaro’s desire to be a stay-at-home mother. Overall, there is a
genuine issue of material fact as to first, whether the Plaintiffs quit because of their
working conditions, and second, whether the need to resign was reasonable.
The Defendant also points out that they reprimanded Bianco immediately
prior to the alleged constructive discharges. However, this does not alter the
Court’s analysis. There is enough evidence for a reasonable juror to find that this
delayed recognition of the ongoing harassment provided a remedial action that was
too late and wholly inadequate, and that Defendant did not exercise reasonable care
to promptly correct the harassing behavior.
Accordingly, the Defendant’s motion for summary judgment on this basis is
also dismissed.
D. As to the Plaintiffs’ Retaliation Claim Against the Defendant
Title VII also includes an anti-retaliation provision, which forbids an
employer from firing an employee “because [s]he has opposed any practice made
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an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Further,
“Title VII is violated when ‘a retaliatory motive plays a part in adverse employment
actions toward an employee, whether or not it was the sole cause.’” Terry v.
Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003) (internal citations omitted). In order
to establish a prima facie case of retaliatory discharge, a plaintiff must demonstrate
that (1) she was engaged in protected activity; (2) the defendant was aware of that
activity; (3) plaintiff suffered an adverse employment action; and (4) there was a
causal connection between the protected activity and the termination or suspension.
Id.
The Second Circuit has found that retaliatory harassment can constitute an
adverse employment action. See Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001)
(citing Richardson v. New York State Dep’t of Corr. Sev., 180 F.3d 426, 446 (2d
Cir. 1999) (abrogated on other grounds by Burlington Northern, 548 U.S. at 68, 126
S. Ct. 2405)). “[U]nchecked retaliatory co-worker harassment, if sufficiently
severe, may constitute adverse employment action so as to satisfy [that prong] of
the retaliation prima facie case.” Richardson, 180 F.3d at 446; see also McWhite v.
N.Y. City Hous. Auth., No. 05 Civ. 0991, 2008 WL 1699446, at *13 (E.D.N.Y.
Apr. 10, 2008) (applying Richardson to a retaliatory hostile work environment
claim).
As an initial matter, the Plaintiffs engaged in protected activity by allegedly
complaining about the harassment to Melisi, their supervisor, several times
throughout the course of their employment. There is no dispute that informal
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complaints to a supervisor constitute protected activity under Title VII. Amin v.
Akzo Nobel Chemicals, Inc., 282 Fed. App’x. 958, 961 (2d Cir. 2008).
The Defendant points out that there is no adverse employment action or
causal connection in the case at hand. This Court agrees. The Plaintiffs allege that
the continued behavior by Bianco constituted retaliation for the complaints made by
the Plaintiffs. However, there is nothing that would support a reasonable factfinder’s conclusion that Bianco’s continuing harassing behavior was retaliatory
harassment. First, there is no allegation or evidence that would support the idea that
Bianco was aware of the complaints to Melisi or that his behavior was causally
connected to those complaints. Although DeCesare did address the Plaintiffs’
complaint regarding the April 26, 2006 incident with Bianco, both of the Plaintiffs
left Fossil almost immediately after the incident. Thus, there was no possibility for
Bianco to retaliate against them on this basis.
It appears that what the Plaintiffs are alleging in this case is a failure by the
company to investigate the complaints of harassment. However, a failure to
investigate complaints cannot be an adverse employment action for a retaliation
claim. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d Cir.
2010) (“at least in a run-of-the-mine case such as this one, an employer's failure to
investigate a complaint of discrimination cannot be considered an adverse
employment action taken in retaliation for the filing of the same discrimination
complaint.”). This is the exact situation in the case at hand. The Plaintiffs’
“situation in the wake of . . . having made the complaint is the same as it would
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have been had [they] not brought the complaint or had the complaint been
investigated but denied for good reason or for none at all.” Id. at 721.
In sum, the Defendant’s motion for summary judgment on the Plaintiffs’
Title VII retaliation claims is granted.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Defendant’s motion for summary judgment with regard
to the Plaintiffs’ Title VII claims of hostile work environment and constructive
discharge is denied;
and it is further
ORDERED that the Defendant’s motion for summary judgment with regard
to the Plaintiffs’ Title VII retaliation claim is granted;
and it is further
ORDERED that the parties are directed to appear before the Court on
November 14, 2011 at 9:00 am for a pre-trial conference in Court Room 1020.
Counsel shall have authority to discuss settlement at this conference.
SO ORDERED.
Dated: Central Islip, New York
October 29, 2011
__/s/ Arthur D. Spatt____
ARTHUR D. SPATT
United States District Judge
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