E.E.O.C. v. Rotary Corp.

297 F.Supp.2d 643

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Margaret Schnoop, Elizabeth Flores, and Erin Blair, Intervening Plaintiffs, v. ROTARY CORPORATION, Keith Barry, and Alan Makarwich, Defendants.

No. 00-CV-1478.

United States District Court, S.D. New York.

December 29, 2003.

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Equal Employment Opportunity Commission, New York City, Louis Graziano, of Counsel, for Plaintiff.

Delorenzo, Pasquariello & Weiskopf, Schenectady, NY, Thomas DeLorenzo, Kathleen M. Kiley, of Counsel, Attorneys for Intervening Plaintiffs.

Robert S. Catapano-Friedman, P.C., Albany, NY, R. Catapano-Friedman, Of Counsel, Attorney for Defendant Rotary Corporation.

John T. Casey, Jr., Albany, NY, for Defendant Alan Makarwich.

Sanford Soffer, Albany, NY, Attorney for Defendant Keith Barry.

MEMORANDUM-DECISION and ORDER

HURD, District Judge.

                                   TABLE OF CONTENTS
  I. INTRODUCTION ............................................................ 649
 II. FACTUAL BACKGROUND ...................................................... 649
     A. Defendants ........................................................... 649
     B. Flores and Blair ..................................................... 649
     C. Schnoop .............................................................. 650
III. DISCUSSION .............................................................. 651
     A. Summary Judgment Standard ............................................ 651
     B. Claims at Issue ...................................................... 652
     C. Timeliness of Flores's and Blair's Title VII Claims .................. 652
        1. Standards ......................................................... 652
        2. Referral to/receipt by the DHR .................................... 654
        3. Failure to direct the EEOC to file with the DHR ................... 656
        4. Failure to submit actual 1999 worksharing agreement ............... 657
        5. Conclusion ........................................................ 659
        6. Application of 300-day filing period .............................. 659
     D. Flores's National Origin and Schnoop's Sexual Harassment Claims ...... 660
        1. Discrimination standards .......................................... 660
        2. National origin—Flores .......................................... 660
        3. Sexual harassment—Schnoop ....................................... 661
           a. Plaintiff's acts ............................................... 661
           b. Liability of Rotary ............................................ 662
               i. Employer standards ......................................... 662
              ii. Barry was Schnoop's supervisor ............................. 663
             iii. Tangible employment action ................................. 663
              iv. Faragher/Ellerth affirmative defense ....................... 664
     E. New York State Human Rights Law ...................................... 665
        1. Introduction ...................................................... 665
        2. Rotary ............................................................ 665
        3. Individual defendants ............................................. 666
 IV. CONCLUSION .............................................................. 667

I. INTRODUCTION

On September 28, 2000, plaintiff Equal Employment Opportunity Commission ("EEOC") filed suit against defendant Rotary Corporation ("Rotary"), alleging certain employees of the company had sexually harassed Erin Blair ("Blair"), Elizabeth Flores ("Flores"), and Margaret Schnoop ("Schnoop"); that Flores had been the subject of a hostile work environment based on her national origin; and that the company had failed to make efforts to prevent or correct the actions of its employees, all in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. On January 16, 2001, Schnoop filed an intervening complaint, alleging Title VII and New York Human Rights Law ("NYHRL") claims of sexual harassment against Rotary and Rotary employee defendant Keith Barry ("Barry").¹ On October 26, 2001, Flores and Blair filed an intervening complaint against Rotary, Barry, and Rotary employee defendant Alan Makarwich ("Makarwich"), alleging they were both subjected to sexual harassment, and that Flores was subjected to a hostile work environment based on her national origin, in violation of Title VII and the NYHRL.

Each defendant filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56, seeking to dismiss all of the claims alleged against it or him. The EEOC, and Schnoop, Flores, and Blair filed opposition papers to the motions. Oral argument was heard on September 26, 2003, in Albany, New York, Decision was reserved.

II. FACTUAL BACKGROUND

A. Defendants

Rotary is a Georgia-based business involved in the manufacture and distribution of replacement parts for the lawn and garden industry. It has a distribution warehouse in Guilderland, New York (near Albany, New York), of which Barry was the manager at all times relevant to this case. Makarwich also worked at the warehouse as a packer, though the parties dispute whether he was Flores's and Blair's supervisor or simply their co-employee. Barry's immediate supervisor was Rotary Vice President Donald Fountain ("Fountain"), who worked out of the company's Georgia headquarters.

Though the company had no formal written sexual harassment policy at the times relevant to this case, it is alleged that in the company break room hung a sign that read, "Sexual Harassment will not be tolerated, but it will be graded." (Docket No. 51, ¶¶ 28, 81; Docket No. 1, ¶ 7(a); Docket No. 4, Ex. C, ¶ 44.)

B. Flores and Blair

Flores worked for Rotary as a picker from December 29, 1997, until July 17, 1998. Blair worked for Rotary as a picker from December of 1996, until June 12, 1998. Both claim that from the beginning of their tenures they were subjected to a sexually charged, hostile work environment by Makarwich and Barry.² Flores also claims that, on two separate occasions, Makarwich referred to her as a "wetback." (Docket No. 51, ¶¶ 47-48.) Both claim that they made Barry aware of the alleged discriminatory treatment on a regular basis, but that he did nothing or participated in the complained of treatment.

On June 12, 1998, Blair alleges she was constructively discharged by Rotary. Just under a month later, on July 10, 1998, the last date on which she claims to have been harassed, Flores and her mother contacted Fountain in Georgia to complain about the alleged harassment.

Three days later, on July 13, 1998, Flores was asked by Rotary Human Resources Manager Saralyn Tootle ("Tootle") to submit in writing all of the harassment she had allegedly experienced. Because Flores stated Blair was a witness to some of the allegedly harassing events, Blair was also asked to submit a written statement. Neither complied with the request. That same day, Fountain contacted Barry by telephone, who denied Flores's allegations of sexual harassment, but did admit that Makarwich on one occasion called her an inappropriate name, for which he was reprimanded verbally and in writing. This appears to be the extent of the company's investigation into Flores's allegations. On July 17, 1998, after allegedly being unable to "stand the working environment [to which] she was subjected," Flores ceased her employment with Rotary. Id. at ¶ 36. A few months later, in September of 1998, Fountain and Tootle met with the warehouse employees.

On January 14, 1999, Flores filed with the EEOC an administrative complaint dated November 28, 1998, in which she alleged to be the victim of discrimination on the basis of sex and national origin. (Docket No. 42, Ex. A.) She did not indicate her desire that the complaint be filed with the New York State Division of Human Rights ("DHR"), despite the presence of a blank permitting the same. Id.

The next day, on January 15, 1999, Blair filed with the EEOC an administrative complaint dated January 8, 1999, alleging she had been the victim of sexual harassment. Id., Ex. C. Like Flores, she left blank the space where the complainant could indicate whether he or she wished that the charge also be filed with the DHR. Id.

The two amended their complaints, on February 16, 1999, and March 26, 1999, respectively, this time affirmatively indicating their desire to have the charges filed with the DHR as well. Id., Exs. A and C. On April 12, 2000, the EEOC issued its determination, finding all of Flores's and Blair's claims to have merit. Id., Exs. B and D.

C. Schnoop

Schnoop was hired by Rotary as a picker on July 22, 1998. From the beginning of her employment, she claims that Barry "started to make [her] feel very uncomfortable because he indicated that he was interested in her sexually." (Docket No. 4, ¶ 16.) She alleges that, in general, he expressed that interest through "numerous forced physical advances" and communication of unwelcome sexual comments, stories, and innuendo. Id. She also alleges that she was "forced to view sexual acts between Mr. Barry and other female employees, numerous pictures, drawings, movies, and other pornographic paraphernalia." Id.

As noted above, in September of 1998, a few months after first learning of Flores's complaints, Fountain and Tootle traveled to the Guilderland distribution warehouse and met with the employees, including Schnoop. At the meeting, Fountain orally addressed the topic of harassment in the workplace, though the parties disagree about the depth of attention given and what was said. Defendants claim Fountain instructed the employees to contact him if they felt they were being harassed in any way.

Schnoop alleges to have been the victim of a sexually...