Ciulla-Noto v. Xerox Corporation
ORDER granting 20 Motion for Summary Judgment. Clerk to close case.. Signed by Hon. Michael A. Telesca on 12/4/2012. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Plaintiff Tamara Ciulla-Noto, (“Ciulla-Noto”) brings this
action pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), (codified at 42 U.S.C. § 2000(e), et seq.), and the
Corporation, (“Xerox”) claiming that she was discriminated against
on the basis of her race1; subjected to a hostile work environment,
Specifically, the plaintiff alleges that she was subjected to
hostile and inappropriate sexual behavior from a male co-employee,
and that she was retaliated against for complaining of the alleged
Although Plaintiff’s First Cause of Action alleges race
discrimination, and that a hostile work environment existed based an
racial animus, there is no allegation of racial discrimination in the
body of the Complaint, and indeed, plaintiff’s race is not even
identified. It appears to the Court that plaintiff’s attorney
Christina Agola may have inadvertently included a claim of race
discrimination that was raised in some other, unrelated action.
Similarly, plaintiff’s Second Cause of Action alleges a racially
motivated hostile working environment under New York State Law.
Because the Complaint contains no factual allegations claiming
discrimination based on her race, I dismiss plaintiff’s claims of
racial discrimination with prejudice.
harassment. According to the plaintiff, Xerox failed to adequately
investigate her claims of harassment, failed to end or prevent the
harassment, and retaliated against her by, inter alia, changing her
shift, transferring her to less desirable positions, and preventing
her from transferring into more desirable positions.
Xerox denies the plaintiff’s claims, and contends that it
throughly investigated plaintiff’s claims, but found them to be
Xerox further alleges that despite being unable
several steps to prevent the alleged harassment, and accommodated
plaintiff’s desire not to work in the same area with the alleged
harasser. Xerox alleges that any changes to plaintiff’s employment
plaintiff has failed to establish that she was subjected to a
hostile work environment, gender discrimination, or retaliation.
For the reasons set forth below, I grant defendant’s motion for
summary judgment, and dismiss plaintiff’s Complaint in its entirety
defendant Xerox Corporation.
She began her employment with Xerox
in 1988, and has been continuously employed by the company since
that time. During the periods relevant to this action, plaintiff
was employed as an “LC1 Operator,” and in this capacity, plaintiff,
inter alia, refurbished parts from salvaged Xerox equipment to make
them suitable for resale.
As an LC1 Operator, plaintiff was a
member of an employee union.
Although employees at Xerox generally worked one of three
eight-hour shifts, Ciulla-Noto worked independently, and therefore
was allowed to work flexible hours, provided she worked eight hours
Plaintiff preferred to work alone, and indeed placed
large pieces of cardboard around her workstation so that she could
not be seen by other employees.
In 2002, plaintiff filed a claim of sexual harassment against
co-worker Tony Morabito.
Xeorox investigated the claim, but could
not substantiate plaintiff’s claims.
On or about July 1, 2008, plaintiff reported an incident of
alleged sexual harassment to her Operations Manager Joy Longhenry
According to the plaintiff, co-worker Robert Cook
(“Cook”), came into her work area and sat down while wearing jeans
with a large hole in the crotch area.
Plaintiff claims that Cook
was not wearing underwear at the time, and therefore, when he sat
down, he exposed his penis to her.
Plaintiff also reported to
Longhenry that Cook, sometime during the previous year, had shown
her pornographic images on a work computer.
Within hours of receiving the report of sexual harassment,
Longhenry reported the matter to plaintiff’s supervisor Donald
Miller (“Miller”). Miller and Longhenry then both met with CiullaNoto, and advised her that they would be referring the matter to
Thereafter, on July 9, 2008, Kimberly Braithwaite (“Braithwaite”)
of the Human Resources Department, and Xerox Corporate Security
Manager Darrell Franklin (“Franklin”) met with the plaintiff to
take her complaint.
During their discussion, plaintiff made an
additional allegation against Cook, claiming that in July, 2007,
Cook masturbated in her vicinity.
Plaintiff also stated that Cook
often attempted to rub her shoulders or “rub up” against her.
Following their conversation with Ciulla-Noto, Braithwaite and
Franklin conducted an investigation of her complaints. Braithwaite
and Franklin interviewed all of the employees who worked in the
plaintiff’s area, as well as two employees identified by the
plaintiff as having information that would be relevant to the
Braithwaite and Franklin also interviewed Cook as
part of their investigation.
None of the employees interviewed by
between Cook and Ciulla-Noto.
One of the witnesses identified by
plaintiff as having relevant information told Braithwaite and
Franklin that in 2006, plaintiff complained to him that she had
been bothered by an un-named male coworker.
Cook told Braithwaite
and Franklin that while he did wear jeans with holes in them, he
always wore underwear, and never exposed himself to Ciulla-Noto or
any other employee.
Cook denied ever masturbating at work, or
displaying pornography to any coworker.
A search of the computers
used by Cook revealed no evidence of pornography.
alleged during the course of the investigation that Cook had stolen
her cellular telephone, but she recanted this claim after she found
it in her car.
In August, 2008, plaintiff met with Braithwaite and Franklin
to express additional concerns regarding her work environment. She
claimed that items in her work area had been tampered with in
retaliation for her complaint against Cook.
It is undisputed,
however, that plaintiff had previously alleged tampering with her
work area prior to making her complaint about Cook, including
allegations that her locker had been broken into, tape on the floor
had been removed, and the handle of her microwave had been broken.
To address plaintiff’s concerns regarding alleged tampering,
plaintiff was assigned to work the “A” shift, at which time
supervisors would be present to monitor her work area and respond
to any concerns she might have.
A secret video camera was also
installed to monitor plaintiff’s work area to detect any tampering.
evidence of tampering was detected.
In September, 2008, plaintiff was transferred to a different
work site in a different building so that she would not be “within
eyesight” of Cook, per a medical restriction that required that she
have no contact, verbal or sight, with Cook.
In October, 2008, Braithwaite and Franklin concluded their
investigation, and informed plaintiff that they had been unable to
substantiate her claims of sexual harassment.
Despite not finding
Cook–both verbally and in writing–that he was to have no contact
with the plaintiff.
Ciulla-Noto was informed that Cook had been
instructed to have no contact with her.
workstation, and worked on the “A” shift, when supervisors were
Plaintiff, however, stated that she could not work at her station
harassment she allegedly she suffered.
Plaintiff informed plant
manager David Maxfield (“Maxfield”) at this time that she had a
dream in which she was able to kill Cook.
plaintiff to obtain a doctor’s note if she claimed that she could
not perform her job because of medical reasons, and reminded her of
Xerox’s workplace policies which prohibit the making of threatening
In December, 2008, Maxfield again met with the plaintiff
because she claimed that she was unable to work in the same general
area as Cook.
She again referenced killing Cook, which defendants
claim was a threat, and plaintiff alleges was simply an explanation
of dream she had.
Pursuant to Xerox policy, Maxfield filed a
report with the company detailing plaintiff’s alleged threats.
Thereafter, plaintiff obtained a doctor’s note stating that she was
restricted from working in the “sort bench area” of her work
station because she suffered from “flashbacks.”
Plaintiff was not
disciplined for allegedly making threats about Cook.
In May, 2009, plaintiff complained that she was able to see
Cook when she entered and exited her work area.
According to the
defendant, Cook was located approximately 35 feet away from the
plaintiff’s work area.
Plaintiff did not complain that Cook
interacted with her or engaged in any inappropriate behavior, but
simply that Cook was visible to her.
When Maxfield and a security
employee attempted to discuss the matter with the plaintiff, she
refused to discuss the matter, and secluded herself in a women’s
Plaintiff disputes the contention that she refused to
come out of the bathroom, and claims that an emergency response
worker came into the bathroom, grabbed her, verbally abused her,
and threatened to remove her forcefully if she did not exit the
bathroom. Defendants counter that an emergency response worker was
dispatched only after plaintiff refused to exit the bathroom, and
that the emergency worker never threatened or verbally abused
Ciulla-Noto, but merely attempted to get her to leave the bathroom
and seek medical help.
Once a security worker indicated that
police would be called, plaintiff came out of the bathroom, and was
taken to Rochester General Hospital, where she was diagnosed with
anxiety and panic attacks, and was advised to seek mental health
Shortly thereafter, plaintiff produced a medical note
from her doctor stating that she was to have no contact with Cook.
In an attempt to accommodate plaintiff’s medical restriction
stating that she was to have no contact with Cook, plaintiff was
transferred to a cleaning position at a location in downtown
Rochester, New York, several miles from the Webster, New York
location where she had previously been working. In November, 2009,
plaintiff was transferred to a cleaner position at a different
location that accommodated her restriction of no contact with Cook.
In August, 2010, plaintiff was transferred to a job in the dock
area of a building at the Webster, New York campus, but continued
to have no contact wit Cook.
At no time were plaintiff’s benefits
or pay ever modified or reduced as a result of her transfers.
Defendant’s Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
Scott, 550 U.S. at 380 (citing Matsushita Elec.
Hostile Work Environment Claim
Plaintiff alleges that the alleged harassment she received
from Cook created a hostile work environment based on gender
To state a claim of discrimination based on a
hostile work environment, a plaintiff must first establish the
existence of a workplace that is “permeated with discriminatory
intimidation, ridicule and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim's employment."
Torres v. Pisano, 116 F.3d 625, 630-631 (2d. Cir.1997) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
that is merely offensive and not severe or pervasive enough to
create an objectively hostile or abusive work environment" will not
establish a Title VII discrimination claim.
Torres, 116 F.3d at
631 (2d Cir.) (internal quotes omitted); Gallagher v. Delaney, 139
F.3d 338, 346 (2d Cir.1998) ("A reasonable person would have to
find the environment hostile or abusive, and the victim must have
subjectively so perceived it.").
“Stray racial remarks or slurs
are not actionable under Title VII.”
Badrinauth v. Touro College,
1999 WL 1288956, *4, (E.D.N.Y. Nov. 4, 1999). Rather, "there must
be a steady barrage of opprobrious racial comments." Snell v.
Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986).
alleged, however, does not need to be so severe as to cause severe
emotional or physical distress.
Harris, 510 U.S. at 21.
discourage[s] employees from remaining on the job, or keep[s] them
from advancing in their careers” may be actionable under Title VII.
Harris, 510 U.S. at 21.
If a plaintiff is able to demonstrate the existence of a
hostile work environment, the plaintiff must then establish that
the hostile work environment may be imputed to the employer for
purposes of establishing the employer’s liability.
Monroe Community Hosp., Slip Copy, 2012 WL 3711743, *1 (2nd Cir.,
August 29, 2012)(quoting Alfano v. Costello, 294 F.3d 365, 373 (2d
A plaintiff may establish an employer’s liability for
harassment or a hostile work environment where the “employer
‘failed to provide a reasonable avenue for complaint or if it knew,
or in the exercise of reasonable care should have known, about the
harassment yet failed to take appropriate remedial action.’” Wright
, 2012 WL 3711743, at *1 (quoting Howley v. Town of Stratford, 217
F.3d 141, 154 (2d Cir.2000).
In the instant case, I find that even if the plaintiff could
establish the existence of a hostile working environment based on
sexual harassment, she has failed to establish that Xerox should be
liable for the creation, continuation or countenance of such an
It is undisputed that Xerox provided plaintiff with
a reasonable avenue for complaining of sexual harassment or a
complaining of sexual harassment, and that Xerox investigated her
complaints. While plaintiff now alleges that the investigation was
incomplete because the defendant failed to interview two potential
employee), there is no requirement that the person complaining of
harassment be satisfied with the investigation of his or her
complaint or the outcome of any investigation.
2012)(“Title VII confers on a plaintiff no right to choose the
remedy to end the harassment or demand that a workplace dispute be
resolved in the way that is most attractive to her.”)(quoting
v. Sony BMG Music Entertainment, Inc, 2010 WL 743948, at *9).
Rather, in cases where an employee has complained of harassment or
discrimination by a co-worker, a company satisfies its obligation
to provide a reasonable avenue for complaint where the remedy
provided by the employer is
“sufficiently calculated to end the
harassment.” Murray v. New York Univ. Coll. of Dentistry, 57 F.3d
243, 250 (2d Cir.1995)
In the instant case, the undisputed facts demonstrate that
Xerox’s response to plaintiff’s complaints did in fact end the
Despite having found that plaintiff’s claims
of harassment were unsubstantiated, Xerox took significant steps to
ensure that Ciulla-Noto would not be subjected to any future
harassment by Cook.
First, Xerox warned Cook both verbally and in
writing that he was not to have any contact with the plaintiff.
There is no dispute that Cook headed this warning, and did not have
contact with plaintiff during working hours.
claims that she saw Cook at a funeral, she acknowledged that it was
not Xerox’s fault that she saw him there. Moreover, Xerox modified
plaintiff’s hours to ensure that she would only be working when
immediately complain of any allegedly harassing activity, and have
such complaints addressed immediately.
Xerox further installed a
Accordingly, the record reveals that Xerox provided a reasonable
avenue of complaint for the plaintiff; that Xerox responded to her
complaints in a manner designed to end the alleged harassment; and
that Xerox’s response did in fact end the alleged harassment by
Cook that the plaintiff complained of.
plaintiff not required under Title VII.
When plaintiff claimed
that she was unable to work in certain locations because they gave
her “flashbacks” of the alleged harassment, Xerox accommodated this
request (once she provided medical documentation of her inability
to work in these locations) by allowing her to work in a different
Later, when the plaintiff claimed that she could not
work within “eyesight” of Cook, Xerox accommodated this restriction
by transferring her to different locations.
At no time were
satisfied with the accommodations offered by Xerox, as stated
above, a plaintiff is not entitled to her preferred resolution of
calculated to end the discrimination. Davis-Bell, 851 F.Supp.2d at
Because Xerox provided an avenue for plaintiff to complain
of discrimination, and because the defendant reasonably responded
to plaintiff’s complaint, I grant defendant’s motion for summary
judgment with respect to plaintiff’s claims for sexual harassment
and hostile work environment discrimination, and dismiss these
claims with prejudice.
III. Retaliation Claims
Plaintiff alleges that after she complained of discrimination
to Xerox management, she was retaliated against by, inter alia: (1)
having her work place tampered with; (2) having her job duties
altered; (3) having her “flex” time rescinded; (4) being prevented
from returning to work after taking time off; and (5) being denied
the opportunity to transfer to other jobs.
To state a claim for retaliation, a plaintiff must establish:
(1) participation in a protected activity known to the defendant;
(2) an employment action disadvantaging the plaintiff or action
that would dissuade a reasonable worker from making or supporting
a charge of discrimination; and (3) a causal connection between the
protected activity and adverse action. Burlington Northern & Santa
Fe Railway Co. V. White, 548 U.S. 53, 68 (2006); Holt v. KMIContinental, 95 F.3d 123, 130 (2d Cir. 1996), cert. denied, 1997 WL
71191 (May 19, 1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2nd Cir. 1995) (citations omitted). Acts that do not lead to
materially adverse employment actions, or that would not dissuade
a reasonable employee from making a complaint of discrimination,
will not be considered retaliatory acts.
Morris v. Lindau, 196
F.3d 102, 110 (2d Cir.1999)
Should the plaintiff state a claim for retaliation, the
defendant may then articulate a non-discriminatory, legitimate
reason for taking the action complained of, and the burden then
shifts to the plaintiff to show that the employer’s articulated
reason is both untrue and a pretext for the true retaliatory
In the instant case, I find that plaintiff has failed to
establish that she was subjected to retaliatory conduct following
her complaint of discrimination to Xerox.
With respect to her
claim that her work area was tampered with, the undisputed evidence
reveals that plaintiff had complained that her work area had been
tampered with both before and after she complained of harassment.
It is axiomatic that acts which took place before the complaint of
complaining of discrimination.
Nor has plaintiff submitted any
evidence that the alleged tampering took place as a result of her
Plaintiff has not identified any person who allegedly
tampered with her work area, and has not adduced any evidence to
Plaintiff alleges that she was retaliated against because
after she complained of harassment, she was required to work the
“sort bench” area.
This claim, however, fails to state a claim for
It is undisputed that working in the sort bench area
requiring her to do one of her job functions can not, as a matter
Rochester, 836 F.Supp.2d 114, 126 (W.D.N.Y., 2011)(“To establish a
claim of an adverse action . . . a plaintiff must demonstrate the
adverse action is one that would likely dissuade a reasonable
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53,
Moreover, it is further undisputed that even though
plaintiff was asked to work in the sort bench area, she refused to
because she feared “flashbacks” if she returned to that area, and
Xerox never forced her to work in the area.
accommodated plaintiff’s request not to work in the sort bench
area, and found alternative work assignments for her.
Plaintiff alleges that after she complained of harassment by
Cook, she was no longer allowed to work flex time, but instead was
required to work a straight daytime shift.
The defendant has
presented evidence that plaintiff was rescheduled to the day shift
to ensure that plaintiff would not be working with Cook when no
supervisors were present, and to ensure that supervisors would be
available to immediately address any concern the plaintiff had with
respect to harassment, tampering, or retaliatory acts.
has failed to produce any evidence that the defendant’s proffered
evidence that the change in her work shift was made with any
Accordingly, I find that she has failed to
state a claim of retaliation with respect to the change of her
shift from flex time to the day time shift.
building and transported to Rochester General Hospital in May,
2009, she was prevented from returning to work for a short time
thereafter in retaliation for making a complaint of discrimination.
Aside from plaintiff failing to allege any causal connection
between her discrimination complaint and the alleged refusal to
allow her to immediately return to work after being taken from work
to Rochester General Hospital, plaintiff admitted that she took
this time off voluntarily.
See Deposition Transcript of Tamara
allegation fails to state a claim for discrimination.
Plaintiff claims that she was denied opportunities to transfer
to jobs that would accommodate her medical restrictions requiring
that she have no contact with Cook, and not work in locations that
caused her to remember the alleged incidents of harassment.
undisputed, however, that plaintiff never applied for any of the
positions she allegedly sought.
Because plaintiff never applied
for the positions she was allegedly prevented from obtaining, she
can not state a claim for retaliatory failure to hire.
Xerox Corp., 2011 U.S. Dist.
Lexis 4385 *18 (W.D.N.Y., Jan.
Moreover, defendant has presented uncontroverted evidence
that one of the positions allegedly sought by the plaintiff was
With respect to another position, there were no openings
during the time period plaintiff allegedly wanted to apply for such
Plaintiff further admitted that the jobs she was
interested in were filled by then current Xerox employees whose
jobs had been eliminated, and therefore, under Xerox policy,
received preferential status when applying for open positions. See
Further, plaintiff has failed to provide any evidence that the
employees hired for the jobs that she never applied for, but felt
history, work skills, or qualifications of the hired employees, and
by failing to provide such evidence, has failed to establish that
she was treated differently than similarly situated employees.
retaliation, I find that she has failed to allege any valid cause
State Law Claims
analytically identical to claims brought under Title VII. Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708 (2nd Cir. 1996).
Haywood v. Heritage Christian Home, Inc., 977 F.Supp. 611, 613
(W.D.N.Y. 1997)(Larimer, C.J.)(Noting that both claims are governed
by McDonnell Douglas standard.).
Accordingly, for the reasons
stated above, defendant’s motion for summary judgment with respect
to plaintiff’s state law retaliatory discrimination claims under
the New York Human Rights Law is granted.
For the reasons set forth above, I grant defendant’s motion
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
December 4, 2012
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