Patterson v. Xerox Corporation et al
ORDER granting 45 Motion for Summary Judgment. Clerk to close case. Signed by Hon. Michael A. Telesca on June 13, 2012. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
XEROX CORPORATION and
Plaintiff, Vanessa Patterson (“plaintiff”), brings this action
for employment discrimination and retaliation against her employer,
Xerox Corporation (“Xerox”) and her former supervisor, Samuel
Peterson (“Peterson”), (collectively, “defendants”). In a Decision
and Order dated August 2, 2010, this Court granted-in-part and
denied-in-part defendants’ motion to dismiss. What remains are
plaintiff’s claims for a hostile work environment and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., (“Title VII”) (against Xerox only) and New York State
Human Rights Law, New York Exec. Law §§ 290 et seq. (“NYSHRL”)
(against Xerox and Peterson).
remaining claims, contending that there are no material issues of
fact and that they are entitled to judgment as a matter of law.
Plaintiff, now proceeding pro se1, opposes the motion, arguing that
there are material issues of fact for trial. For the reasons
discussed herein, I find that plaintiff has not established a claim
for retaliation or a hostile work environment. Therefore, her
complaint is dismissed with prejudice.
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56 (a)(Docket Nos. 45, 46) and the entire
record in this case, and are viewed in the light most favorable to
the plaintiff. Plaintiff is an African American female who is
currently employed by Xerox and has worked at Xerox since 1991.
Peterson, an African American male, began working at Xerox around
the same time as the plaintiff. Plaintiff filed a sexual harassment
complaint against a coworker, Dan Williams, in April 2000, and she
alleges that Peterson gave testimony on Williams’ behalf and that
he and Williams were friends. Williams was ultimately suspended for
his conduct. Peterson avers that he and Williams were not close
friends and that he was not involved in the incident that occurred
between Williams and plaintiff in April 2000. He further states
that he has no personal knowledge of the incident.
In January 2007, Peterson was assigned to supervise a group of
custodial employees, including plaintiff, in Xerox Building 801,
Joseph F. Dinolfo initially represented the plaintiff and drafted the complaint in this
action. On August 16, 2011, Magistrate Judge Marian W. Payson granted Mr. Dinolfo’s motion
to withdraw as attorney for the plaintiff. Plaintiff did not retain new counsel.
located in Henrietta, New York.
Plaintiff testified that many
members of the work group had problems with Peterson and he held
daily group meetings that often turned “ugly and argumentative.”
Plaintiff testified that she was “harassed” on a daily basis.
Although she did not describe this personal harassment in great
detail, she submitted evidence of the following comments2 made by
(2) Peterson suggested that the work group, including the
plaintiff, should have more of a “slave mentality;”3
animals,” referring to the members of the work group;
(4) Peterson made a comment to two of Plaintiff’s coworkers
Defendants object that the evidence of some of these comments was not submitted in
admissible form or is inadmissable hearsay. However, because the Court finds that Plaintiff has
not established a claim for a hostile work environment or retaliation even considering this
evidence, the Court need not consider defendants’ objections.
Plaintiff testified that she was unsure whether this statement was directed at her or at the
entire workgroup, although she submitted a statement from a coworker who stated that the
statement was made to the entire workgroup at a group meeting. Pl. Dep. at 84; Douglas Henry
Declaration at ¶3, Docket No. 46-2.
(5) Peterson joined a conversation regarding the reference to
“nappy headed hoes” made by radio host Don Imus, and stated that he
did not think Imus should have been fired for the statement;
(6) Peterson told plaintiff’s coworker that he would “take
[plaintiff] in his office and spank her” because she needed to
“learn to respect men and their titles;”
(8) Peterson criticized Plaintiff’s shoes because they were
too clean and told her she needed to look more like a cleaner;
(9) Peterson told employees that he could do whatever he
wanted and management would back him.
Plaintiff also alleges two separate incidents with Peterson in
support of her claim for retaliation.4
First, on or around March
13, 2008, Xerox mistakenly failed to deposit plaintiff’s paycheck
into her bank account.
She was notified that she could pick up her
check at a Xerox office in Webster, New York, about twenty five
minutes from Xerox Building 801 in Henrietta, New York. Plaintiff
discussed this problem with Peterson, who initially stated that he
would pick up her paycheck for her because he lived nearby, but
later refused to pick up her check or to allow her to pick up her
Plaintiff initially alleged that Peterson also criticized her work, but she has not responded
to defendants’ arguments with respect to the alleged criticism, nor has she mentioned these facts
in her opposition. Therefore, the Court deems any claim based on work criticism from Peterson
abandoned. See e.g. Lipton v. County of Orange, N.Y., 315 F.Supp.2d 434, 446 (S.D.N.Y. 2004).
check because it was going to be available at 2:30 p.m., during
He stated that if she left to pick up her check during
work hours he would have to dock her pay.
Peterson states that
plaintiff told him to pick up her check, rather than asking him,
and that he felt that she had spoken to him in a disrespectful
manner. Peterson then spoke with his supervisor, Jack Black, who
arranged to have plaintiff’s paycheck delivered to the Henrietta
building by courier.
Peterson states that Black advised him to counsel plaintiff
that her conduct was disrespectful. Accordingly, Peterson prepared
what he termed a “verbal written warning” on a Labor Report form.
He states that he did not intend to issue a formal labor report,
but he used the form to summarize what had happened during their
confrontation about the paycheck.
The “verbal written warning”
sets forth the factual circumstances behind the paycheck incident
and explains that Black and Peterson agreed that he should “counsel
Vanessa for her [behavior] in front of the group.”
states that Peterson “wanted Vanessa to know from this point
forward [he] was not going to accept any more disrespect.”
report was shown to plaintiff on Peterson’s computer, but was not
The report did not result in any disciplinary
action, loss of employment status or other benefit.
Plaintiff alleges that when she went to Peterson’s office to
discuss the paycheck issue, he stated that she was on his “shit
list” for her complaint against Dan Williams. Peterson denies
making this statement.
Plaintiff called the internal ethics
helpline to complain about this incident.
She complained that
Peterson was retaliating against her for her April 2000 complaint
Later on March 20, 2008, the workgroup and Peterson had
decided to come in one hour early so that they could leave one hour
early because it was Good Friday.
Plaintiff testified that she
forgot and arrived to work one hour late.
Plaintiff requested to
make up this hour after the scheduled work day, but Peterson told
her that she could not because there would not be a supervisor
there at that time.
After discussing the issue with Jack Black,
who confirmed that plaintiff should not be allowed to work late,
Peterson told her that she could use vacation time or lose an
Plaintiff elected to use vacation time.
asserts that other employees were allowed to work “special hours”
Plaintiff disputes that the report was not placed in her file, stating “[If it] never went into
my file, then why was it written.” Pl. Resp. to Rule 56.1 Statement of facts at ¶23. However,
Plaintiff’s disbelief of Xerox’s statement that the “verbal written warning” was not placed in her
file is insufficient to create a material issue of fact. Plaintiff, admittedly, had no knowledge of
whether it was placed in her file or not. Pl. Dep. at 51-2.
or use “flex time” and that she was treated differently.
examples plaintiff offers are two female employees, Sook Cho and
Cho was allowed to leave work to go to church
meetings and Dinolfo was allowed to use flex time to travel to
Plaintiff again called the ethics helpline to complain about
Xerox investigated plaintiff’s complaints,
but concluded that Peterson had not violated company policy.
Plaintiff then filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on October 31, 2008.
Rule 56 provides that, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). When considering a motion
for summary judgment, all genuinely disputed facts must be resolved
in favor of the party against whom summary judgment is sought. See
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 appropriate. See Id. at 380
Plaintiff’s claims under the NYSHRL and Title VII are analyzed under the same
standards and the Court will consider them together. See e.g. Patane v. Clark, 508 F.3d 106 (2d
(citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587).
Hostile Work Environment
A plaintiff alleging a claim for a hostile work environment
must establish “ that the harassment was sufficiently severe or
pervasive to alter the conditions of [her] employment and create an
abusive working environment, and  that a specific basis exists
for imputing the objectionable conduct to the employer.” Alfano v.
Costello, 294 F.3d 365, 373 (2d Cir. 2002).
The test to determine
whether plaintiff was the victim of a hostile work environment “has
objective and subjective elements: the misconduct shown must be
‘severe or pervasive enough to create an objectively hostile or
abusive work environment,’ and the victim must also subjectively
perceive that environment to be abusive.” Alfano, 294 F.3d at 374
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).
The incidents of which a plaintiff complains “must be more than
episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive.” Carrero v. New York City Housing
Auth., 890 F.2d 569, 578 (2d Cir. 1989).
The “[m]ere utterance of
an ethnic or racial epithet which engenders offensive feelings in
an employee would not affect the conditions of employment to a
sufficient degree to violate Title VII.” Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986). In order for “comments, slurs, and
jokes to constitute a hostile work environment, there must be more
than a few isolated incidents of racial enmity. Isolated incidents
or episodic conduct will not support a hostile work environment
claim.” Richardson v. NY State Dep’t of Correctional Serv., 180
F.3d 426, 437 (2d Cir. 1999), abrogated on other grounds.
Court must look at the totality of the circumstances, including the
frequency and severity of the discriminatory conduct, whether such
conduct is physically threatening or humiliating, and whether such
performance. See Harris 510 U.S. at 23.
Here, Plaintiff alleges that her workplace was generally
“hostile” while Peterson served as the supervisor of her workgroup.
She offers evidence that Peterson was antagonistic to the workgroup
as a whole and that daily meetings would often turn “ugly and
Title VII, however, does not establish a “general
civility code” for the workplace and the harassment complained of
must be based on a protected characteristic, here race or gender.
See Oncale v. Sundown Offshore Services, Inc., 523 U.S. 75, 81
plaintiff’s race and/or gender. Further, most of the comments were
directed at the entire workgroup, which consisted of men and women
of different races.
This evidence is not probative of a hostile
work environment based on plaintiff’s race and/or gender. See Brown
v. Henderson, 257 F.3d 246 (2d Cir. 2001).
In support of plaintiff’s claim for a hostile work environment
based on her race, the evidence consists of the following comments:
plaintiff, should have more of a “slave mentality;” (2) Peterson
made a comment that he had to “corral the animals,” referring to
the members of the work group; (3) Peterson made a comment to two
of Plaintiff’s coworkers that he “would fire all the black people,
because they are useless;” (4) Peterson joined a conversation
regarding a reference to “nappy headed hoes” made by radio host Don
Imus, and stated that he did not think Imus should have been fired
for the statement.
The proffered evidence of a hostile work environment based on
plaintiff’s gender consists of the following comments: Peterson
told a coworker that he would “take [plaintiff] in his office and
spank her” because she needed to “learn to respect men and their
titles;” and he told an employee that he was a male chauvinist.
Plaintiff’s also offers evidence of two personal incidents with
Peterson. First, he refused to let her leave to pick up her
paycheck during work hours and later warned her to respect his
position as her supervisor. Second, he refused to let her stay late
to make up an hour of work when she came in late because no
supervisors would be present.
First, while the first two comments (“slave mentality” and
“corral the animals”) could be construed as racially insensitive,
their meaning is not entirely clear.
Because the Court must
consider the evidence in the light most favorable to the plaintiff,
However, even considering all four statements to be
racially motivated, the Court finds that this conduct does not rise
to the level of severity or pervasiveness required to establish a
claim for a hostile work environment.
There is no evidence of
precisely when the alleged comments were made, but Peterson served
as the supervisor of plaintiff’s workgroup from January 2007
through September 2008, over twenty months. He allegedly made these
comments to the entire workgroup or other employees. And plaintiff
does not complain of any other discriminatory conduct during her
more than twenty years at Xerox, where she is still employed. While
Further, the severity of this conduct is weakened by the fact that
Peterson is also an Africa American.
environment based on her gender, two isolated gender slurs also do
not rise to the level of the severity or pervasiveness required to
establish a hostile work environment claim.
Neither do the two
incidents between plaintiff and Peterson regarding her paycheck and
lost work hours support her claim for a hostile work environment.
Both incidents were race and gender neutral - they were simply
Further, Peterson responded to the incidents in a manner that was
unrelated to plaintiff’s race or gender and there is no evidence to
indicate that his actions were discriminatory. See Cristoforo v.
Lake Shore Cent. School Dist., 2011 WL 1082567, *2 (2d Cir. April
2, 2012)(“While facially neutral incidents may be considered among
the totality of the circumstances in any hostile work environment
claim, there must be a circumstantial or other basis for inferring
discriminatory.”(internal quotations omitted)); See also Holt v.
Roadway Package Systems, Inc., 506 F.Supp.2d 194, 203 (W.D.N.Y.
August 21, 2007).
The fact that two other female coworkers were
allowed on occasion to work “special” or “flex” hours to leave
early for church events or travel does not support plaintiff’s
claim that she was subjected to a hostile work environment because
of her race and/or gender, because plaintiff has not presented
evidence that she was similarly situated to these female employees
in all material respects. See Ruiz v. County of Rockland, 609 F.3d
486, 493 (2d Cir. 2010).
Rather, the evidence indicates that
plaintiff was not allowed to work late without a supervisor to make
up for time missed because she arrived late to work. The employees
who were allowed to work late or use flex time for reasons such as
attending church functions or travel, previously arranged this with
Peterson; they did not request the time because they were late to
Further, plaintiff does not offer any evidence that the
comments and incidents taken together interfered with her work
performance or altered the terms and conditions of her employment
such that she was subjected to an abusive working environment
because of her race or gender.
Accordingly, the Court finds that
plaintiff has not established a prima facia case of discrimination
based on a hostile work environment.
To establish a prima facie claim for retaliation, a plaintiff
must present facts in support of the following elements: (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. See 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 (2d
Cir. 1995) (citations omitted).
Here, Plaintiff claims that she was subjected to retaliation
by Peterson for having complained of sexual harassment by her
coworker, Dan Williams, in April 2000.
She testified that when he
became her supervisor, Peterson told her she was on his “shit list”
for complaining about Williams in 2000.
Based on this alleged
retaliated against her by (1) refusing to let her leave work to
pick up her paycheck, (2) warning her to respect his position as
her supervisor, and (3) refusing to allow her to make up an hour of
work after she arrived late to work.
“The antiretaliation provision [of Title VII] protects an
individual not from all retaliation, but from retaliation that
produces an injury or harm....In our view, a plaintiff must show
that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. 67-68 (internal quotations
“Material adversity is to be determined objectively, based on the
reactions of a reasonable employee.” Id. at 69–70, 126 S.Ct. 2405.
“Context matters,” as some actions may take on more or less
significance depending on the context. Alleged acts of retaliation
must be evaluated both separately and in the aggregate, as even
trivial acts may take on greater significance when they are viewed
as part of a larger course of conduct.” Tepperwien v. Energy
2011.)(citing Burlington, 548 U.S. at 69-70; Hicks v. Baines, 593
F.3d 159, 164 (2d Cir.2010)).
Here, the Court finds that plaintiff has not established that
any of the alleged conduct was materially adverse such that a
reasonable employee would be dissuaded from making a charge of
refusal to allow Plaintiff to stay at work an additional hour to
make up for the hour she was late both fall into the category of
trivial harms or minor annoyances that are not materially adverse.
Plaintiff did not lose pay for either occurrence. Peterson and his
supervisor conferred and arranged to have plaintiff’s paycheck
delivered to her building by courier the day they were notified
that her paycheck was mistakenly not deposited into her bank
When plaintiff’s request to work late to make up for an
hour she missed because she was late to work was denied, she was
instead allowed to take vacation time to make up for the missed
Further, as noted above, plaintiff’s evidence that other
employees were allowed to work outside of their normally scheduled
retaliatory or discriminatory because those employees were not
similarly situated to plaintiff. Plaintiff also does not allege
that she was disciplined in any way for having arrived late to
Rather, she was merely obligated to use vacation time for
the missed hour.
Plaintiff does not allege or present any facts to suggest that
retaliatory action on the part of Xerox, nor does she deny that she
was late to work.
Rather, she merely states that these actions
were retaliatory because Peterson once stated that she was on his
“shit list” for her complaint about Williams in 2000.
even assuming that Peterson made this comment and that this comment
themselves materially adverse. See Tepperwien, 663 F.3d at 571-2.
received following the paycheck incident, the court does not find
document is referred to as a “verbal written warning” there is no
evidence that it was placed in plaintiff’s file, that it had any
negative effect on her employment, placed her in any disciplinary
process or caused her to lose job status or other benefits.
document was shown to plaintiff on Peterson’s computer screen, but
she did not receive a copy.
The “verbal written warning” sets
forth the factual circumstances behind the paycheck incident and
explains that both Peterson and his supervisor agreed that Peterson
should “counsel Vanessa for her [behavior] in front of the group.”
It further documents that Peterson “wanted Vanessa to know from
Peterson’s other conduct, this action does not rise to the level of
materiality that would implicate the antiretaliation provisions of
Title VII, as it would not dissuade a reasonable worker from making
a complaint of discrimination.
See Tepperwien, 663 F.3d at 571-2,
note 9 (citing Perez v. N.Y. & Presbyterian Hosp., 2009 WL 3634038,
at *15 (S.D.N.Y. Nov. 3, 2009) and Potenza v. W. Irondequoit Cent.
Sch. Dist., 2009 WL 2876204, at *8 (W.D.N.Y. Sept. 2, 2009)).
subsequent complaints regarding Peterson to the internal ethics
helpline and the EEOC. See Jantz v. Emblem Health, 2012 WL 370297,
*15 (S.D.N.Y. February 6, 2012) (“The Second Circuit has instructed
that while the test is  objective, it remains relevant whether
Tepperwien, 663 F.3d at 572)).
Accordingly, the Court finds that
this action was not materially adverse and that plaintiff has not
established a prima facie claim for retaliation.
For the reasons set forth herein, defendants’ motion for
summary judgment is granted. Plaintiff’s complaint is dismissed
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
June 13, 2012
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