Robinson v. Purcell Construction Corp. et al
Filing
64
DECISION AND ORDER granting in part and denying in part Defendants' 42 Motion for Summary Judgment. Defendant Purcell is granted leave to renew its motion in the form of a motion in limine, and should be filed 20 business days in advance of the trial date. Plaintiff's response to such motion shall be filed 10 business days in advance of the trial date. Signed by Senior Judge Thomas J. McAvoy on 3/13/2012. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
MARY E. ROBINSON,
Plaintiff,
v.
7:09-CV-1209
PURCELL CONSTRUCTION CORPORATION,
RICK DIBBLE, and CLIFF HILTON,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
On October 28, 2009, Plaintiff commenced this action pro se with the filing of a
Complaint asserting three causes of action: (1) Sexual Harassment under Title
VII of the Civil Rights Act of 1964 ("Title VII"); (2) Discrimination under the Americans with
Disabilities Act ("ADA"); and (3) Retaliation. Defendants filed their Answer with Affirmative
Defenses on January 28, 2010. Plaintiff thereafter retained counsel and, on August 7,
2010, filed an Amended Complaint asserting eight causes of action: (1) Hostile Work
Environment under Title VII against Defendant Purcell; (2) Hostile Work Environment
under the ADA against Defendant Purcell; (3) Discrimination under Title VII against
Defendant Purcell; (4) Discrimination under the ADA against Defendant Purcell; (5)
Retaliation under Title VII against Defendant Purcell; (6) Retaliation under the ADA
1
against Defendant Purcell; (7) Tortious Interference against Defendants Dibble and Hilton;
and (8) Prima Facie Tort against Defendants Dibble and Hilton. On August 23,
2010, Defendants filed an Answer with Affirmative Defenses to the Amended Complaint.
Now before the Court is Defendants’ Motion for Summary Judgment seeking to
dismiss the case in its entirety. See dkt. no. 42. Plaintiff has opposed the motion, see dkt.
nos. 46-57, and Defendants have filed a reply. Dkt. no. 58.
II.
STANDARD OF REVIEW
The Court will apply the well-settled standards for deciding summary judgment
motions in Title VII and other discrimination actions. See Fed. R. Civ. P. 56(a); Weinstock
v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Bracci v. N.Y.S. Dept. of Correctional
Services, 2005 WL 2437029, at * 1 (N.D.N.Y. Sept. 30, 2005) (McAvoy, S.J.). These
standards will not be repeated. Suffice it to say that where, as here, the intent of one
party is in question but there is no direct evidence of discrimination, the Court must
carefully examine the reasonable inferences that could be drawn from the totality of the
circumstantial evidence and be cautious about granting summary judgment. Schiano v.
Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006). Nonetheless, “[i]t is now beyond
cavil that summary judgment may be appropriate even in the fact-intensive context of
discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001).
III.
BACKGROUND
All facts are viewed in the light most favorable to the nonmoving party, but "only if
there is a ‘genuine' dispute as to those facts." Scott v. Harris, 127 S. Ct. 1769, 1776
(2007). Hearsay will not be considered on this motion. See Fed. R. Civ. P. 56(c)(4).
2
Plaintiff was hired by Purcell Construction Corp. (“Purcell”) in April 2004 as a
laborer and laid off that same year due to lack of work. Def. Stat. of Mat. Facts ¶¶ 2, 6.1
She was rehired in January 2006 and worked at Purcell’s Fort Drum military base work
site. Upon being rehired, except for one period discussed below when Plaintiff was paid a
higher “mason’s wage,” Plaintiff was paid a “carpenter’s wage.”2 In 2008, Plaintiff began
working on a cleanup crew where the circumstances underlying this action occurred. The
cleanup crew was supervised by Neal Moser, a Superintendent at Purcell. Def. Stat. of
Mat. Facts ¶ 10. In addition to Plaintiff, the cleanup crew consisted of Lisa McIntosh,
Defendant Rick Dibble, and Defendant Cliff Hilton. Id. Hilton was the foreman on the
cleanup crew.3 The cleanup crew conducted demolition and cleanup of several buildings
at Fort Drum. Id.
Plaintiff suffers from anxiety, depression, and post-traumatic stress disorder for
which she received treatment and takes medication.4 Plaintiff reported her medication and
condition to her initial foreman Bob Kaler in 2007. After she was moved to the cleanup
1
W here Defendants’ Statem ent of Material Facts is cited, it is in situations where Plaintiff has either
adm itted the proposition in Defendants’ Statem ent, or has failed to provide sufficient support for her
opposition to the statem ent. See N.D.N.Y. L.R. 7.1(a)(3).
2
Plaintiff contends that she was re-hired for, and worked in, a “carpentry position.” Defendant
contends that Plaintiff was re-hired as a laborer, did laborer’s work, but that at the tim e all laborers were paid
the higher carpenter’s wage in order to provide m ore flexibility with assignm ents at the Fort Drum job site.
See Schneider 3/4/11 Aff., ¶ 3.
3
Defendants contend that Hilton was not a forem an or a supervisor. However, an affidavit from Neal
Moser, subm itted in connection with the underlying adm inistrative investigation, refers to Hilton as a forem an.
Another co-worker, Lisa McIntosh, stated at her deposition that, when doing dem olition work, Hilton was the
one who told them what to do. For purposes of this m otion, the Court will consider Hilton a forem an who
directed the cleanup crew’s tasks, although Plaintiff concedes that Hilton did not have the authority to hire or
fire and that she did not know whether he had the authority to discipline or reprim and other workers. See Pl.
Dep., pp 117-118.
4
Plaintiff also suffers from carpal tunnel disorder and tendinitis, but Plaintiff has not alleged that these
conditions form part of her ADA claim .
3
crew, Plaintiff reported “an increase in her medication” to Hilton.
In February 2008, Plaintiff asked Dibble for assistance with a job related task. He
responded: "What do you want bitch?" This occurred in front of another male co-worker.
Plaintiff was upset by the statement. Later that day, Dibble called Plaintiff a "witch" in front
of a different male co-worker.
Within a few days of the name calling, Dibble stated to Plaintiff in front of another
male co-worker that Plaintiff "must be ragging it today." Plaintiff was upset by the comment
because she understood it to be making a reference to her menstrual cycle. Plaintiff
reported Dibble's comments to Hilton. Hilton replied: “You are too hyper on your
medicine" and that "you let too much bother you.” Hilton shook his head in a manner that
Plaintiff interpreted as being disgusted with Plaintiff for reporting the comments. Nothing
was said or done about Plaintiff’s complaint.
In March 2008, Plaintiff informed Hilton, Dibble, and another co-worker that her
prescribed medication for anxiety and depression had been increased because
of the stress and anxiety she was feeling from the comments made to her at work and her
perception that she had no support from her employer. Around this time, Dibble stated to
Plaintiff in front of several co-workers: "You must not’ve taken your meds today." Plaintiff
again complained to Hilton, and Hilton again stated that Plaintiff let too much bother her.
At the end of March or the beginning of April 2008, Dibble walked up to Plaintiff and
asked her if she knew the definition “of a cunt." Later that day, Dibble walked up to
Plaintiff again, and in the presence of co-workers, said the same thing a second time.
Plaintiff believed that Dibble’s derogatory comments were specifically directed at her and
were not meant as jokes. The comments upset and embarrassed Plaintiff. Plaintiff
4
reported Dibble’s comments to Dave Jackson, who was a “team leader” at Purcell at the
time. Jackson, Dep. p. 16 (Jackson was not a foreman at the time), p. 22 (same).
Jackson reported what Plaintiff told him to Neal Moser, who was a Superintendent at
Purcell and the supervisor for the cleanup crew. Id. pp. 18-19. Jackson then told Dibble
to stay away from Plaintiff until Moser talked to him, and Dibble responded “OK.” Id. p. 20.
On the same day, Moser met with Dibble and told him that sexual harassment was not
tolerated and directed him not to use inappropriate language again or disciplinary action
would be taken. Def. Stat. Mat. Facts, ¶ 18. The next day Plaintiff tried to report the
incident to Hilton but before she could tell him what occurred, Hilton yelled at her: "Do
your job or go home." At the end of the shift, Plaintiff informed Hilton what Dibble had said
and that she was uncomfortable working with Dibble.
On April 1, 2008, Plaintiff injured her lip after walking into a piece of metal on a job
site. Hilton brought her to the hospital and the doctor glued her split lip together. Hilton
stated: "You should've glued her lips shut.” The next day, believing that Hilton and Dibble
were making jokes about her injury, Plaintiff commented that she did not walk around
demanding respect, but that she was not going to be disrespected either. Plaintiff
contends that the following day, her job duties “were altered for the worse in that I had to
go to another room and sweep floors while Defendant Hilton and another co-worker
yanked out old ceilings which I should have been doing. I felt isolated and ostracized.” Pl.
Aff. ¶ 24.
Hilton would not permit Plaintiff to operate equipment even though she was
qualified to so. Plaintiff also contends that “[t]hroughout the year, Defendant Hilton told
me that I had a ‘fat ass’ in front of other coworkers.” Pl. Aff. ¶ 26.
5
In the middle of April 2008, Plaintiff reported “everything” to Sandra Crabb, a Safety
Officer at Purcell. Pl. Aff. ¶ 28. During this conversation, Plaintiff asked Crabb whether the
insurance would cover a psychiatrist and/or therapy because of the issues at the job site.
Id. 5
In May 2008, Plaintiff was transferred to the brick washing crew where she did not
have to work with Dibble. After one day of being on the brick washing crew, Plaintiff
complained because she was not paid at the higher “mason’s wage.” This was
immediately corrected by Purcell. Plaintiff also reported her complaints about Dribble and
Hilton to her new foreman, Keith Ritz. Plaintiff contends that around this time her request
for “properly fitted gloves” was denied, resulting in her sustaining an “acid wash” burn to
her arm.
In late June or early July 2008, after Plaintiff was injured on the brick washing crew,
she was moved back to the cleanup crew for one or two days. Def. Stat. Mat. Facts ¶ 19.
When Plaintiff was working on the cleanup crew during this period, Plaintiff was instructed
by Hilton to clear out a building and sweep it for tiling. Plaintiff contends that she “was not
given adequate tools to perform this assignment and [Hilton] had removed items that
would have expedited this job.” Pl. Aff. ¶ 36.6 When she did not finish the job in a timely
manner, Hilton accused Plaintiff of not working and yelled “in [her] face, ‘You need to do
your job.’" Id. Hilton then walked away “mumbling” and began “vocally complaining about
[Plaintiff] to others.” Id. Plaintiff believed that Hilton had intentionally given her an
5
Plaintiff does not indicate what Crabb’s response was to this question. See Pl. Aff. ¶ 28.
6
Plaintiff does not indicate what tools were absent, what the “item s” were that Hilton purportedly
rem oved, or whether she witnessed Hilton rem oving any item s or tools.
6
assignment “which he knew could not be completed alone or without the necessary
equipment and tools and then yelled at me for not doing my job.” Id. Plaintiff also
contends that Hilton “would peer into the windows of the building and stare at [Plaintiff]
every time he'd drive by” which made her “uncomfortable.”7
On the day that Hilton yelled at Plaintiff for not doing the sweeping job quickly
enough, Plaintiff complained to Carl Schweitzer, one of the supervisors at Purcell. She
contends that she was told by Schweitzer that she should have "never been put back on
that crew." Id. ¶ 37.
In June or July 2008, Plaintiff asked James Kingsley, the Personnel Director of
Purcell, for “follow-up treatment” for her lip. Plaintiff contends that she was told that she
would be responsible for her own follow up treatment,8 and she further contends that
“male workers are not treated this way with their injuries.” Pl. Aff. ¶ 35. Defendants
contend that Plaintiff asked for laser cosmetic surgery for her lip injury and was told that
the employer would have to check to see whether it would be covered under a Worker’s
Compensation claim, which it was.9 Schneider Aff., at. ¶ 10.
In July 2008, Kingsley called Plaintiff into his office and asked Plaintiff about her
medication and whether it made her "all weird." Pl. Aff. ¶ 38. Plaintiff advised Kingsley that
she was “fine” on her medication. Id. Plaintiff also reported to Kingsley that “bad things
7
Plaintiff does not give a tim e fram e when this occurred, a frequency of occurrence, or whether
Hilton’s “peering” in the windows was part of his job as forem an.
8
Plaintiff’s initial hospital bills from here lip injury were paid by Purcell. Def. Stat. Mat. Facts, ¶ 21.
9
Plaintiff contends that even though the follow up care was paid for by W orker’s Com pensation, her
W orker’s Com pensation claim was not subm itted until two m onths after she was discharged on August 1,
2008.
7
had been said to [her] and that [she] did not want to be put back on the crew with
Defendants Dibble and Hilton.” Id. She would not tell Kingsley what had been said
because she feared being retaliated against by Hilton or Dribble if they were disciplined,
but she told Kingsley that she just wanted to be left alone and to be treated with respect.
On August 1, 2008, at the end of the work day, two supervisors, Carl Schweitzer
and "Jason," came up to Plaintiff in the Purcell parking lot and stated: "You're done." Id. ¶
40. They purportedly told Plaintiff that she was being discharged because "the brick
washing [was] done" and because she was unable "to get along with others.” Id. Plaintiff
then spoke with Kingsley who purportedly told her that “they all had decided it was in the
best interests of the company" to discharge Plaintiff. Id. On August 4, 2008, Plaintiff
spoke with Christina Schneider, the Chief Financial Officer at Purcell. Plaintiff asked:
"How is it I'm the one harassed but also the one that is let go?" Id. ¶ 41. Schneider replied
that it was not about the harassment but that they simply had nowhere to place Plaintiff
because no one wanted to work with her because she could not get along with others. Id.
Plaintiff asserts that Purcell hired additional people in her “job title right after [she]
was fired,” and that Purcell hired male employees before and after she was discharged. Id.
¶¶ 44-45. In support of these propositions, Plaintiff cites to statistical records provided by
Purcell at the underlying administrative proceeding. Defendants contend that the reports
that Plaintiff cites to included Purcell workers in Virginia and New York, and was a
“snapshot in time” for the week that ended August 31, 2008 but which did not reflect the
end of year statistics for the company. See Schneider 4/27/11 Aff., ¶ 3. Rather,
Defendants assert, the downturn in the economy together with the ending of the majority
of work at the Fort Drum work site caused Purcell to lay off 66 workers in New York,
8
including Plaintiff, Dibble, and Hilton. Defendants point out that of those 66, only 5 were
subsequently rehired by Purcell. Id. ¶¶ 6-7. Of the four person cleanup crew that Plaintiff
worked on at Purcell, only Lisa McIntosh, a female, currently works at Purcell. Id. ¶ 7. As
to other new hires at Purcell, Defendants maintain these were skilled position of masons
and dry wallers, and that Plaintiff did not possess the skills to work in these positions. Id.
¶¶ 8-9. Defendants note that although Plaintiff was paid at the mason’s rate when she
worked with the brick washing crew, she did not have masonry skills and, therefore, she
could not have done the work for which a male mason was hired shortly after she was laid
off. Moreover, the project Plaintiff had been working on with the brick washing crew was
nearing completion, and the decision to lay-off Plaintiff came from her brick washing
Superintendent in accordance with Purcell's standard practice. Schneider 03/04/11 Aff.
¶10.
On August 26, 2008, Plaintiff filed a charge of discrimination and retaliation
with the New York State Division of Human Rights. After an investigation by the Division
of Human Rights and a hearing, the Division of Human Rights issued a Determination and
Order on February 12, 2009 finding that there was no probable cause to believe that
Purcell had engaged in or was engaging in unlawful discriminatory practices. See
NYSDHR Decision and Order, annexed as Exhibit E to the Defendants' Answer with
Affirmative Defenses. The EEOC issued a right to sue letter on August 31, 2009. This
action followed.
9
IV.
DISCUSSION
a.
Hostile Work Environment Claims
Plaintiffs First and Second Causes of Action are against Defendant Purcell alleging
claims of hostile work environment under Title VII and the ADA.10 To establish a claim of
hostile work environment under either statue, a plaintiff must prove that the workplace was
permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe
or pervasive to alter the conditions of the victim's employment and create an abusive
working environment. Clark County School District v. Breeden, 532 U.S. 268, 270 (2001);
Harris v. Forklift Sys., 510 U.S. 17, 21 (1993); Quinn v. Green Tree Credit Corp., 159 F .3d
759 (2d Cir.1998); see Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 208
(E.D.N.Y.1997)(analyzing ADA hostile work environment claim under the same standard
utilized in Title VII cases). A “hostile work environment claim will succeed only where the
conduct at issue is so 'severe and pervasive' as to create an 'objectively hostile or abusive
work environment,' and where the victim 'subjectively perceive[s] the environment to be
abusive.’" Richardson v. N.Y. State Dep’t. of Correctional Serv., 180 F.3d 426, 436 (2d Cir.
1999), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 126 S. Ct. 2405, 165 L. Ed.2d 345 (2006)(quoting Harris, 510 U.S. at 21-22).
The objective aspect of this test is judged by a reasonable person standard. Id. To
10
The Court assum es, arguendo, that the Second Circuit recognizes a hostile work environm ent
cause of action under the ADA. See, e.g., Braun v. Securities Sec. Services USA. Inc., 2009 W L 150937, *8
(E.D.NY. January 20, 2009)(“Although the Second Circuit has not determ ined whether the ADA gives rise to a
cause of action for hostile work environm ent, see Bonura v. Sears Roebuck & Co., 62 F. App'x. 399, 400 n. 3
(2d Cir. 2003), several district courts in this circuit have held that such claim s are cognizable. See, e.g.,
Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y.1997) (analyzing ADA hostile work
environm ent claim under the sam e standard utilized in Title VII cases); Hudson v. Loretex Corp.,1997 W L
159282, at *2–3 (sam e).”).
10
analyze a hostile work environment claim, the Court “must look to the record as a whole
and assess the totality of the circumstances, considering a variety of factors 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.’” Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 102 (2d
Cir. 2010)(quoting Harris, 510 U.S. at 23).
The Second Circuit has repeatedly held that "[i]solated, minor acts or occasional
episodes do not warrant relief” under a hostile environment theory. Brennan v.
Metropolitan Opera Assn, Inc., 192 F.3d 310, 318 (2d Cir. 1999)(citing Kotcher v. Rosa
and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992)). “Generally, unless an
incident of harassment is sufficiently severe, ‘incidents must be more than episodic; they
must be sufficiently continuous and concerted in order to be deemed pervasive.’”
Gorzynski, 596 F.3d at 102 (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002));
see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010)("Isolated incidents
... will not suffice to establish a hostile work environment unless they are extraordinarily
severe." ); Alfano, 294 F.3d at 376 (“the twelve incidents cited by [plaintiff], taken together,
[we]re insufficient as a matter of law to meet the threshold of severity or pervasiveness
required for a hostile work environment”); Williams v. Cnty. of Westchester, 171 F.3d 98,
100 (2d Cir. 1999) (plaintiff must show “more than a few isolated incidents” and that
“evidence solely of sporadic” discrimination does not suffice) (quotation marks and citation
omitted).
Plaintiff's hostile work environment claims rest upon allegations of a few isolated
incidents of comments. As to gender based comments, Plaintiff has presented evidence
11
of five gender based comments by Defendant Dribble occurring over a two month period.
Although the comments may be crude and offensive, they were neither pervasive nor
severe. Plaintiff’s non-specific, conclusory allegation that Defendant Hilton told her
“throughout the year” she had a “fat ass,” while susceptible to a gender-based
connotation, does not establish a pervasive or severe circumstance. As to her disability
based hostile work environment claim, Plaintiff’s allegations amount to three or four
comments that specifically reference her anxiety medication, and one or two additional
comments that could be construed as negative assessments of her demeanor potentially
caused by her anxiety, depression, or post-traumatic stress disorder or her medication.
Even when taken together with the gender based comments, the comments were not
severe, were not physically threatening, and amounted merely to sporadic offensive
utterances. Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir. 2004).
While Plaintiff might have found the comments together with Hilton’s brusque
managerial style to have created a subjectively hostile atmosphere, she has not asserted
conduct that a reasonable fact finder would find “‘objectively’ severe or pervasive - that is,
[conduct that] creates an environment that a reasonable person would find hostile or
abusive” such to interfere with an employee's work performance. Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001); see Harrington v. County of Fulton, 153 F. Supp.2d 164,
170 (N.D.N.Y. 2001)(dismissing hostile work environment claim for failing to establish that
the work environment was permeated with severe or pervasive discriminatory conduct
where the plaintiff’s supervisor called the plaintiff a bitch on multiple occasions, taunted
her, and “continued to stare at her.”); St. Jean v. United Parcel Serv. Gen. Serv. Co.,
2012 WL 71843 (E.D.N.Y. Jan.10, 2012)(granting summary judgment on Title VII hostile
12
work environment claim based on multiple incidents of “abusive comments, managerial
discipline and close supervision” over five-year period). Accordingly, Plaintiff’s hostile
work environment claims are dismissed.
b.
Title VII Discrimination
In the Third Cause of Action, Plaintiff asserts a claim of gender based disparate
treatment under Title VII against Defendant Purcell. Title VII discrimination claims are
analyzed using the burden-shifting paradigm articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.
2000). Under this analysis, Plaintiff first bears the burden of setting out a prima facie case
of discrimination or retaliation. See McDonnell Douglas, 411 U.S. at 802. Plaintiff’s burden
of establishing a prima facie case is de minimis. Beyer v. County of Nassau, 524 F.3d 160,
163 (2d Cir. 2008). If the plaintiff demonstrates a prima facie case, that gives rise to a
presumption of unlawful discrimination and the burden of production shifts to the
defendant who is required to offer a legitimate, nondiscriminatory rationale for its actions.
See McDonnell Douglas, 411 U.S. at 802–03. Defendant's burden of production at this
stage "is not a demanding one,” Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir.
1999), it need only offer a basis for the employment decision in issue which, "taken as
true, would permit the conclusion that there was a nondiscriminatory reason for the
adverse action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
If Defendant proffers a legitimate, nondiscriminatory reason for the challenged
action, "the presumption raised by the prima facie case is rebutted, and drops from the
case." St. Mary's Honor Ctr., 509 U.S. at 507. The burden shifts back to Plaintiff who
13
“then has the opportunity to demonstrate that the proffered reason was not the true reason
for the employment decision, and that [unlawful retaliation] was." Fisher v. Vassar College,
114 F.3d 1332, 1336 (2d Cir. 1997)(en banc)(internal citation and quotation marks
omitted), cert. denied, 522 U.S. 1075 (1998); see Stern v. Trustees of Columbia Univ. in
the City of N.Y., 131 F. 3d 305, 312 (2d Cir.1997)(In order to defeat summary judgment . .
., the plaintiff's admissible evidence must show circumstances that would be sufficient to
permit a rational finder of fact to infer that the defendant's employment decision was more
likely than not based in whole or in part on discrimination.”). The ultimate burden of
persuasion remains always with Plaintiff. St. Mary's Honor Ctr., 509 U.S. at 507, 511. In
determining whether Plaintiff can satisfy this ultimate burden, the Court must examine the
entire record and apply “a case-by-case approach.” Schnabel v. Abramson, 232 F.3d 83,
90 (2d Cir. 2000).
To establish a prima facie case, Plaintiff must show that (1) she is a member of a
protected class; (2) she was qualified for the position she held; (3) she suffered an
adverse employment action; and (4) the adverse action took place under circumstances
giving rise to the inference of discrimination. Ruiz v. County of Rockland, 609 F.3d 486,
491 (2d Cir. 2010). Plaintiff clearly satisfies the first two elements.
On the third element, an adverse employment action is generally characterized as
a “materially adverse change in the terms and conditions of employment” and may include
“termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation.” Zelnik v. Fashion Inst. of
14
Tech., 464 F.3d 217, 225 (2d Cir. 2006); see also La Grande v. DeCrescente Distrib. Co.,
370 F. App'x 206, 211 (2d Cir. 2010) (“[a]n actionable adverse employment action is ‘a
materially significant disadvantage with respect to the terms of [plaintiff's] employment’ ”)
(quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (alterations in
original)).
Plaintiff claims that one time she was given an assignment to sweep out an area
alone that made her feel “isolated and ostracized;” another time she was given a similar
assignment but without adequate tools to perform the assignment; she was not allowed to
operate machinery; she was transferred to the higher paying brick-washing crew after she
complained of working with Dibble and Hilton; and she was transferred back to the
cleanup crew for one or two days after she was injured while on the brick washing crew.
These do not constitute material adverse changes in the terms and conditions of her
employment. An employer is entitled to assign workers where it sees fit, and the Court is
not to act as a “‘super personnel department’ that second guesses employers' business
judgments.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)
(citation omitted). Plaintiff has not provided evidence that she was regularly assigned the
least desirable tasks, that operating machinery was part of her employment duties on the
cleanup crew, or that she was otherwise required to work under materially adverse
conditions. Further, at the time she was transferred back to the cleanup crew for one or
two days, management had already spoken to Dibble and warned him against making
sexually derogatory statements. As discussed above, Plaintiff has not presented sufficient
evidence that she was subjected to a hostile work environment on the cleanup crew, and
no reasonable fact finder could find that her transfer to this crew for one or two days
15
constituted a material adverse change in the terms and conditions of her employment.
Plaintiff has failed to present a prima facie case of discrimination related to these
circumstances because she has failed to demonstrate that they constitute adverse
employment actions. La Grande, 370 F. App'x at 211 (“Everyday workplace grievances,
disappointments, and setbacks do not constitute adverse employment actions within the
meaning of Title VII.”)(citing Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000)).
Plaintiff’s discharge from Purcell, however, does constitute an adverse employment
action. Assuming, arguendo, that Plaintiff satisfies the fourth element of the prima facie
case by her proof that some male employees were hired after she was discharged, the
burden shifts to Defendant to articulate a non-discriminatory reason for the employment
action. Defendant has done this by pointing to the large scale lay offs in the New York
area corresponding with the ending of the project at the Fort Drum work site. Thus, the
burden shifts back to Plaintiff to provide evidence from which a fact finder could conclude
that the employment determination was motivated in whole or in part by gender
discrimination. Plaintiff has not done this.
The allegedly discriminatory comments that are at the foundation of Plaintiff's
claims were made by Dibble and Hilton. Dibble was a co-worker and Plaintiff has
conceded that Hilton had no authority to hire or fire. See Pl. Dep., pp 117-118. Further,
Plaintiff has presented no basis upon which to conclude that Hilton played a role, much
less a meaningful role, in the discharge determination. See Bickerstaff, 196 F.3d at 450
(Title VII claim may be established “even absent evidence of illegitimate bias on the part
of the ultimate decision maker, so long as the individual shown to have the impermissible
16
bias played a meaningful role in the . . . process.” ).
Moreover, Plaintiff has failed to present sufficient evidence upon which to conclude
that the employer held a gender bias in its retention or re-hiring practices. Of the four
members of Plaintiff’s cleanup crew consisting of two females (Plaintiff and Lisa McIntosh)
and two males (Hilton and Dibble), only McIntosh retained her position at Purcell after the
lay offs. Plaintiff has also failed to provide sufficient evidence from which a reasonable
fact finder could conclude that she possessed adequate skills to work in the mason or dry
waller positions that were filled around the time of her discharge. Her affidavit indicates
that her work history was that of a “carpenter,” see Plt. Aff. ¶¶ 8, 10, and while she
indicates that she had worked as “mason tender” in the past, see id. ¶ 15, the Court
understands such a position to be a laborer who assists masons but who does not perform
skilled masonry work. See Jackson Dep. p. 7. Further, Plaintiff has failed to provide
sufficient evidence from which a reasonable fact finder could conclude that her work on
the brick washing crew, although paid at the mason’s wage, involved actual masonry
duties.
Plaintiff also alleges that “male workers” were treated differently than she was with
regard to medical follow up treatment, but she has failed to point to a similarly situated
male employee who was treatment differently than she was in this regard. Plaintiff’s
“proof” of gender based disparate treatment is based upon nothing more than her
conclusory speculation that she was treated in a dissimilar fashion to the male employees
with regard to lay off and rehiring, with regard to job assignments, and other terms and
conditions of employment. However, Plaintiff’s “feelings and perceptions of being
discriminated against are not evidence of discrimination.” Bickerstaff, 196 F.3d at 456;
17
see id. at 448;11 Richardson v. New York State Dep't, of Correctional Service, 180 F.3d
426, 447 (2d Cir. 1999).12 She has failed to provide sufficient evidence from which a
reasonable fact finder could conclude that considerations of her gender motivated the
employ’s permanent layoff determination. Accordingly, Plaintiff’s gender based disparate
treatment claim is dismissed.
c.
ADA Discrimination
In the Fourth Cause of Action, Plaintiff brings a disparate treatment claim under the
ADA against Defendant Purcell. The ADA prohibits discrimination against a “qualified
individual [with a disability] on the basis of disability” in the “terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Claims alleging discriminatory discharge
under the ADA are also analyzed under the McDonnell Douglas burden-shifting test. See
Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 n. 1 (2d Cir. 2000) (ADA claims are
evaluated under McDonnell Douglas); Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999). To
establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1)
her employer is subject to the ADA, (2) she is disabled within the meaning of the ADA, (3)
11
As indicated in Bickerstaff, on a m otion for sum m ary judgm ent the Court:
m ust also carefully distinguish between evidence that allows for a reasonable inference of
discrim ination and evidence that gives rise to m ere speculation and conjecture. This
undertaking is not one of guesswork or theorization. After all, an inference is not a suspicion
or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the
basis of another fact that is known to exist. Thus, the question is whether the evidence can
reasonably and logically give rise to an inference of discrim ination under all of the
circum stances.
Bickerstaff, 196 F.3d at 448 (internal quotation m arks and citations om itted).
12
(affirm ing sum m ary judgm ent for em ployer where em ployee offered only her own general claim of
discrim ination to show that the em ployer's legitim ate reason for term inating her was pretextual)
18
she is otherwise qualified to perform the essential functions of her job with or without
reasonable accommodation, and (4) she suffered an adverse employment action because
of her disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004). The
elements in dispute on this motion are two and four.
The ADA defines disability with respect to an individual as: “(A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment.” 42
U.S.C. § 12102(1); Buckley v. Consol. Edison Co. of N.Y., 127 F.3d 270, 272 (2d
Cir.1997). Plaintiff asserts that she suffers from anxiety, depression, and post-traumatic
stress disorder for which she received treatment and takes medication, and these
conditions constitute mental impairments recognized under the ADA because they
substantially limit one or more of her life activities. Am. Compl. ¶ 15. Plaintiff does not
specify what major life activity is actually limited by her condition.
“[T]he determination of whether or not a person suffers from a disability under the
ADA ‘is an individualized inquiry’ that does not rest on the mere diagnosis of an
impairment.” Bonilla v. Boces, 2010 WL 3488712, at *5 (W.D.N.Y. Sept. 2, 2010)(citing
Sutton v. United Airlines, 527 U.S. 471, 483 (1999)). Instead, courts are to look to “the
effect of [an] impairment on the life of the individual,” 29 CFR pt. 1630, App. § 1630.2(j),
and “[i]t is insufficient for individuals attempting to prove disability status . . . to merely
submit evidence of a medical diagnosis of impairment.” Toyota Motor Mfg., Kentucky, Inc.
v. Williams, 534 U.S. 184, 198 (2002). Regulations promulgated under the ADA define
“major life activities” to include “functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. §
19
1630.2(I) (2004); see also Buckley v. Consolidated Edison Co. of New York, Inc., 155 F.3d
150 (2d Cir.1998) (en banc). To be “substantially impaired” from performing a major life
activity, a plaintiff must have an impairment that “prevents or severely restricts the
individual from doing activities that are of central importance to most people's daily lives.”
Toyota, 534 U.S. at 197. “The need to identify a major life activity that is affected by the
plaintiff's impairment plays an important role in ensuring that only significant impairments
will enjoy the protection of the ADA.” Reeves v. Johnson Controls World Servs., 140 F.3d
144, 152 (2d Cir.1998). Plaintiff’s bald assertion that she suffers from certain mental or
psychological conditions does not mean, a fortiori, that she is disabled within the meaning
of the ADA.
Plaintiff also argues, without citation to the record, that she “has been declared
disabled by Social Security and is receiving disability benefits retroactive to her date of
termination” and, therefore, suffers from a mental impairment under the ADA. Pl. Mem. L.
p. 13. However,
in [Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-03 (1999)], the
Supreme Court noted that because of differences in the mechanics of the
[Social Security Administration (“SSA”)] and ADA determinations of disability,
a person could be considered disabled by the SSA but yet also fail to be
substantially limited in performing major life activities according to the ADA.
Additionally, the Court explained that because the SSA often uses
presumptions in its disability findings, particularly by automatically finding
that a disability exists if it is one of a number of “listed impairment[s],” a
determination that someone is disabled under the SSA's administrative rules
may not mean that [s]he is also disabled according to the ADA's more
fact-intensive inquiry.
Horwitz v. L. & J.G. Stickley, Inc., 20 Fed. Appx. 76, 80-81 (2d Cir. 2001).
Because Plaintiff has not directed the Court to where in the record proof of the
SSA’s determination exists (if it exists at all), and because counsel’s contention in the
20
memorandum of law is not evidence, Plaintiff has failed to provide evidence supporting her
contention that her mental condition substantially limits her in performing any major life
activity. See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited materials, . .
. .”); Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)(“We
agree with those circuits that have held that FED . R. CIV. P. 56 does not impose an
obligation on a district court to perform an independent review of the record to find proof of
a factual dispute.”)(citations omitted); see also Monahan v. New York City Dep’t of
Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Local Rules require the parties “to
clarify the elements of the substantive law which remain at issue because they turn on
contested facts” and the Court “is not required to consider what the parties fail to point
out.”)(internal quotation marks and citations omitted); NYND LR 7.1(a)(3)(“The
non-movant’s response may also set forth any additional material facts that the
non-movant contends are in dispute in separately numbered paragraphs.”).13
Plaintiff also argues that she was discharged because she was perceived as being
unable to get along with others, and, therefore, she was regarded as substantially limited
in this “necessary work skill.” Pl. Mem. L. p. 13. This is insufficient to withstand summary
judgment. “[W]ith respect to any claim of disability prior to January 1, 2009, where the
claim is one of being perceived as disabled, plaintiff must show that the employer regards
the plaintiff as disabled within the meaning of the ADA, and not merely that plaintiff is
regarded as having some measure of a disability or impairment.” Brtalik v. S. Huntington
13
The Court will not countenance a “shot gun” approach to litigation where a party files num erous
docum ents, including com plete deposition transcripts, fails to identify where proof of a stated fact exists in the
record (if it exists at all), and then argues on reconsideration: “It was in the record .”
21
Union Free Sch. Dist., 2010 U.S. Dist. LEXIS 107373, at *24 (E.D.N.Y. Oct. 6,
2010)(citation omitted); see Giordano v. City of New York, 274 F.3d 740, 747-48 (2d Cir.
2001)(Plaintiff must show not only that the defendants regarded her as somehow
disabled, but that they regarded her as disabled within the meaning of the ADA.); see also
Laurent v. G & G Bus Service, Inc., 2011 WL 2683201, at *5-*6 (S.D.N.Y. 2011).14 “In
other words, a plaintiff stating this sort of claim must show that the employer regarded her
as having ‘a physical or mental impairment that substantially limited one or more [of the
plaintiff's] major life activities.’ 42 U.S.C. § 12102(2)(A) (2006).” Eaddy v. City of
Bridgeport, 2011 WL 1399031, at *4 (D. Conn. Apr. 12, 2011). An impairment
“substantially limits” the major life activity of working if an individual is “significantly
restricted in the ability to perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training, skills and
abilities.” 29 C.F.R. § 1630.2(j)(3). “The inability to perform a single, particular job does
not constitute a substantial limitation in the major life activity of working.” Id.
Plaintiff testified that her mental condition, and the medication she was on, did not
14
The District Court wrote in Laurent:
[T]he ADA was recently am ended by the ADA Am endm ents Act of 2008 (“ADAAA”), Pub.L.
No. 110–325, 122 Stat. 3553 (2008). The ADAAA sets forth a new standard for determ ining
whether a person is “regarded as having such an im pairm ent”:
An individual m eets the requirem ent of “being regarded as having such an im pairm ent” if the
individual establishes that he or she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or m ental im pairm ent whether or not the
im pairm ent lim its or is perceived to lim it a m ajor life activity.
42 U.S.C. § 12102(3)(A). However, the ADAAA only applies to claim s arising on or after January 1,
2009.
Laurent v. G & G Bus Service, Inc., 2011 W L 2683201, at *5-*6 (S.D.N.Y. 2011).
22
affect her work performance. Pl. Dep. 139, 200. Thus, assuming arguendo that there was
a perceived connection between Plaintiff’s mental impairment and her inability to work well
with others, the inability to perform this individual “work skill” does not constitute an
impairment of a major life activity such to qualify under the ADA. See Bonilla, 2010 WL
3488712, at *6. Further, there is insufficient evidence that the employer regarded her as
having an impairment that limited any other life activity. Id.
For these reasons, Plaintiff’s ADA disparate treatment discrimination claim is
dismissed.
d.
Retaliation
Plaintiff’s Fifth and Sixth Causes of Action assert claims of retaliation under Title VII
and the ADA against Defendant Purcell. Both claims are analyzed under the
burden-shifting framework set forth in McDonnell Douglas. See Platt v. Incorporated
Village of Southampton, 391 Fed. App'x 62, 64 n. 1 (2d Cir. 2010). The essence of a
retaliation claim is that the employer took an adverse employment action against an
employee motivated in part because the employee engaged in protected activity by
opposing an unlawful practice. It does not matter whether the complained of conduct
actually violated the law so long as the employee believed in good faith that it did. See
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (“A plaintiff may prevail on a
claim for retaliation even when the underlying conduct complained of was not in fact
unlawful, so long as he can establish that he possessed some good faith, reasonable
belief that the underlying challenged actions of the employer violated the law) (internal
citations omitted).
23
Here, Plaintiff complained, inter alia, to Sandra Crabb in April 2008 about
“everything” that had occurred to her, and asked whether Purcell’s insurance would cover
a psychiatrist and/or therapy because of the conduct Plaintiff experienced at the job site.
A reasonable fact finder could conclude that the complaint was of what Plaintiff reasonably
believed was Title VII and ADA harassment.
A week before Plaintiff was discharged, James Kingsley, the Personnel Director of
Purcell, called Plaintiff into his office and asked about her medication and whether it made
her "all weird." Plaintiff advised Kingsley that she was “fine” on her medication but
reported that “bad things had been said to [her] and that [she] did not want to be put back
on the crew with Defendants Dibble and Hilton.” She would not tell Kingsley what had
been said because she feared retaliation from Hilton or Dribble, but she told Kingsley that
she wanted to be left alone and treated with respect. Again, this could be interpreted as a
complaint by Plaintiff of what she believed was Title VII and ADA discrimination.
After Plaintiff was discharged, she was told by Christina Schneider, Purcell’s Chief
Financial Officer, that her layoff was permanent because she “could not get along with
others.” A reasonable fact finder could conclude that Plaintiff’s inability “to get along with
others” was simply another way of saying she complained too much. Thus, a fact finder
could conclude that Plaintiff’s permanent discharge, as opposed to the circumstances of
her female co-worker Lisa McIntosh, was because Plaintiff complained of what she
believed was Title VII and ADA harassment. Accordingly, Defendants’ motion to dismiss
the Fifth and Sixth Causes of Action is denied.
24
e.
Tortious Interference with Contractual Relations
Plaintiff asserts in the Seventh Cause of Action that Defendants Dibble and Hilton
“misrepresented Plaintiff’s job performance and falsely and fraudulently reported that
Plaintiff had problems getting along with her co-workers because of Plaintiff’s sex and/or
disability and/or in retaliation for complaining of discrimination.” Am. Compl. ¶ 47. While
Plaintiff asserts in the Amended Complaint that “Defendants’ actions constituted an
interference with Plaintiff’s contractual rights in her employment with Purcell,” Am. Compl.
¶ 48, she concedes in her Memorandum of Law that no contract existed between her and
Purcell. See Pl. Mem. L. p. 23 (A tortious interference claim may be sustained “even
though Plaintiff had no express written contract.”).
Under New York law an at-will employee may maintain a tortious interference claim
in “certain limited situations,” but “she must establish that a third party used wrongful
means to effect the termination such as fraud, misrepresentation, or threats.” Albert v.
Loksen, 239 F.3d 256, 274 (2d Cir. 2001) (internal quotation marks omitted); see also
Scutti Enters., LLC. v. Park Place Entm't Corp., 322 F.3d 211, 215 (2d Cir. 2003)(“To state
a claim for tortious interference with [non-contractual] business relations under New York
law, four conditions must be met: (i) the plaintiff had business relations with a third party;
(ii) the defendants interfered with those business relations; (iii) the defendants acted for a
wrongful purpose or used dishonest, unfair, or improper means; and (iv) the defendants'
acts injured the relationship.”) (internal quotation marks and citation omitted). In support
of her tortious interference claim, Plaintiff cites to pages 13-16 of Dave Jackson’s
deposition transcript for the proposition that “Defendant Hilton and others complained
about Plaintiff’s work performance unjustifiably . . . thus linking Defendants’ complaints
25
about her with the loss of her job.” Pl. Mem. L. p. 22. However, a review of Jackson’s
deposition indicates that “everyone who worked around Plaintiff . . . complained about
[Plaintiff’s] work performance,” including Lisa McIntosh and Hilton. Jackson Dep., p. 13.
These people said that “it was hard to work around [Plaintiff] sometimes because she
would talk a lot,” but Jackson did not report these complaints to anyone and he did not
have the power to effectuate Plaintiff’s termination on his own. Id. pp 13-17.15 Plaintiff has
failed to adduce sufficient evidence from which a reasonable fact finder could conclude
that either Hilton or Dibble used wrongful means to effectuate her termination.
Accordingly, the Seventh Cause of Action is dismissed.
e.
Prima Facie Tort
The Eighth Cause of Action asserts that “[t]he actions of Defendants Dibble and
Hilton were intentional and inflicted harm upon the Plaintiff, costing Plaintiff her job at
Purcell,” Am. Compl. ¶ 51, and that “Defendants’ actions were driven by malice and ill will
toward Plaintiff and were not justified.” Id. ¶ 53. Plaintiff contends that Defendants’ actions
caused her to sustain “economic losses . . . by reason of [her] termination of her
employment.” Id. ¶ 54.
“A cause of action for a prima facie tort requires a showing of ‘(1) intentional
infliction of harm, (2) causing special damages, (3) without excuse or justification, and (4)
by an act or series of acts that would otherwise be lawful.’” Field Day, LLC v. Cnty. of
Suffolk, 2011 WL 2580340, at *13 (E.D.N.Y. June 28, 2011)(quoting Curiano v. Suozzi, 63
15
The only indication of a report m ade by Jackson to a supervisor of anything concerning Plaintiff
contained in the cited deposition pages is when Jackson reported Dibble’s “cunt” statem ent to Moser. See
Jackson Dep. pp. 13-16. However, at the tim e, Jackson was not a forem an but rather a “team leader [that]
didn’t really have control over people” but sim ply did “[w]hatever [his] supervisor told [him ] to do for the day.”
Id. pp. 16-17. Moser was Jackson’s supervisor as well as the supervisor for the cleanup crew. Id.
26
N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324 (1984)). As indicated above, there
is insufficient evidence upon which a jury could conclude that Dibble or Hilton had any
involvement in the employer’s decision to discharge Plaintiff. Thus, there is no basis to
hold these Defendants liable for the asserted damages stemming from the alleged tort.
Moreover, “[a] critical element of a prima facie tort is that the plaintiff suffered
specific and measurable loss, which requires an allegation of special damages.” Gilani v.
Nat'l Assoc. of Secs. Dealers, Inc., 1997 WL 473383, at *15 (S.D.N.Y. Aug.19, 1997)
(citing Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349
(1985)). “Such damages must be alleged with sufficient particularity to identify actual
losses and be related causally to the alleged tortious acts.” Epifani v. Johnson, 65 A.D.3d
224, 233, 882 N.Y.S.2d 234, 242 (2d Dept. 2009) (citations and internal quotation marks
omitted).
Plaintiff has not alleged or particularized special damages in the Eighth Cause of
Action. The Amended Complaint’s ad damnum clause provides no further particularization
as to the special damages purportedly caused by Dibble and Hilton’s alleged prima facie
torts. Rather, Plaintiff broadly seeks, against all Defendants on all causes of action,
“judgment awarding Plaintiff compensatory damages in an amount not less than $500,000
. . . [and] punitive damages in an amount not less than $3,000,000.00.” Am. Compl. p. 9.
This fails to satisfy the particularity requirement for pleading special damages under New
York law, see Frank v. Walgreens Co., 2011 WL 4465210, at *8 (E.D.N.Y. Sept. 26,
2011)(“A ‘general damages claim’ for prima facie tort that is identical to claims made for
each of plaintiff's other causes of action ‘is not stated with enough particularity to
constitute an adequate pleading of special damages as required under New York
27
law.’”)(quoting Gilani, 1997 WL 473383 at *15 (collecting cases)), and Plaintiff has failed to
provide evidence on this motion curing this defect. Accordingly, Plaintiff’s Eighth Cause of
Action is dismissed.
f.
Punitive Damages
Finally, Defendants move to dismiss Plaintiff’s claim for punitive damages.
Defendants argue:
In the Amended Complaint, Plaintiff makes a simple, conclusory request for
punitive damages in the ad damnum clause. There is no indication what
claims punitive damages are sought under, and no allegations are made in
order to support the assessment of punitive damages in this matter. . . .
There are no allegations in the Amended Complaint that Defendants acted
recklessly or with malice towards Plaintiff.16 Further, . . . there is no evidence
to support a finding that Defendants acted recklessly or with malice.
Def. Mem. L. p. 22.
Plaintiff counters that whether or not Defendants acted in a manner such to support a
demand for punitive damages is a question of fact that cannot be decided on summary
judgment. Pl. Mem. L. pp. 24-25.
The Court agrees with Plaintiff’s proposition that the question of intent cannot be
decided on summary judgment, but a more fundamental question presents itself. At this
stage, the only remaining claims to which punitive damages could apply are the Title VII
and ADA retaliation claims. Punitive damages may be sought for the Title VII retaliation
claim, see 42 U.S.C. § 1981a(b)(1), but it appears to be “an open question in this circuit
whether a plaintiff can seek punitive or compensatory damages for a violation of the
16
Defendants also assert in their Mem orandum of Law: “In order to obtain punitive dam ages in Title
VII and ADA claim s, Plaintiff m ust dem onstrate that the defendants acted ‘with m alice or with reckless
indifference to the federally protected rights of an aggrieved individual.’" Def. Mem . L. p. 22 (quoting Kolstad
v. Am erican Dental Association, 527 U.S. 526, 529-530 (1999)).
28
anti-retaliation provisions of the ADA.” Infantolino v. Joint Industry Bd. of Elec. Industry,
582 F. Supp.2d 351, 362 (E.D.N.Y. 2008). Several courts have held that, perhaps
because of Congressional oversight, the ADA does not allow for recovery of punitive or
compensatory damages for a violation of its anti-retaliation provisions. See Alvarado v.
Cajun Operating Co., 588 F.3d 1261, 1269-70 (9th Cir. 2009)(“We hold, as did the
Seventh Circuit in Kramer, that the plain and unambiguous provisions of 42 U.S.C. §
1981a limit the availability of compensatory and punitive damages to those specific ADA
claims listed. ADA retaliation is not on the list.”); Kramer v. Banc of America Securities,
LLC, 355 F.3d 961 (7th Cir. 2004), cert. denied, 542 U.S. 932 (2004)(holding that a
plaintiff can only recover equitable relief for a retaliation claim under the ADA); Infantolino,
582 F. Supp.2d at 362 (“I . . . conclude that compensatory and punitive damages are not
available for claims brought pursuant to the anti-retaliation provisions of the ADA. . . .
Though I have little doubt that this gap in the remedies available to ADA retaliation
plaintiffs is the product of congressional oversight rather than congressional design, I am
equally confident that only Congress can properly fill it.”); Sink v. Wal-Mart Stores, 147 F.
Supp.2d 1085, 1101 (D. Kan. 2001) (“While the court can discern no logic in a rule that
precludes an award of compensatory and punitive damages in an ADA retaliation case
when such damages are available in Title VII retaliation cases, the court is nonetheless
confined to the construction of the statute.”); see also 2 AMERICANS W ITH DISAB.: PRACT . &
COMPLIANCE MANUAL § 7:442 (West. 2012)(“Punitive damages are not available for a
violation of the ADA's retaliation provision (42 U.S.C.A. § 12203).”); but see Muller v.
Costello, 187 F.3d 298 (2d Cir.1999) (upholding a compensatory damages award under
the ADA’s anti-retaliation provision without analyzing the issue); Lovejoy-Wilson v. Noco
29
Motor Fuels, Inc., 242 F. Supp.2d 236, 241 (W.D.N.Y. 2003) (holding that compensatory
and punitive damages are available to remedy an employer's retaliation based on a prior
complaint of disability discrimination); Edwards v. Brookhaven Sci. Assocs., LLC, 390 F.
Supp.2d 225, 234 (E.D.N.Y.2005) (allowing compensatory damages for ADA retaliation
based on Muller). Because this issue was not addressed by the parties, the Court will
deny the motion but grant leave to Defendant Purcell to renew its motion on the issue of
appropriate damages that may be recovered on Plaintiff’s ADA retaliation claim.
V.
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment [dkt. #
42] is GRANTED IN PART AND DENIED IN PART. The motion is granted in that all
claims against all defendants, except the Title VII and ADA retaliation claims against
Defendant Purcell Construction Corp., are DISMISSED. That part of Defendants’ motion
for summary judgment seeking to dismiss Plaintiff’s Title VII and ADA retaliation claims
against Defendant Purcell Construction Corp., and Plaintiff’s demand for punitive
damages related to these claims, is DENIED. Defendant Purcell is granted leave to renew
its motion on the issue of appropriate damages that may be recovered on Plaintiff’s ADA
retaliation claim. The renewed motion, if it is made, may be in form of a motion in limine
provided it is filed twenty (20) business days in advance of the date of trial, in which case
Plaintiff shall file a response, if any, ten (10) business days in advance of the date of trial.
IT IS SO ORDERED.
Dated: March 13, 2012
30
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