Perry v. Guerrieri

518 F.Supp.3d 665

Angel PERRY, Plaintiff,

v.JOHN A. GUERRIERI, DDS PLLC, Defendant.

18-CV-6443L

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

Signed February 10, 2021

Stacey E. Trien, Steven E. Cole, Adams LeClair LLP, Rochester, NY, for Plaintiff.

Michael Frank Geraci, Paul Anthony Guerrieri, Geraci Law Offices, Rochester, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Plaintiff, a dental assistant, brings this action against defendant, a dentist who employed her for three-and-a-half months from September 20, 2016 through January 4, 2017. (Amended Complaint, Dkt. #23).

Plaintiff alleges that the defendant subjected her to gender-based discrimination, a hostile work environment, and retaliatory termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. ("Title VII") and New York State Human Rights Law ("NYHRL"). She further claims that she was subjected to discrimination in violation of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff, et. seq. ("GINA"), and that defendant breached her employment contract and violated New York Labor Law § 190 et seq., by failing to pay accrued vacation time. She seeks compensatory, punitive and liquidated damages, as well as costs and attorney fees. (Dkt. #23).

Defendant now moves for summary judgment dismissing the complaint (Dkt. #60), and plaintiff has cross moved for partial summary judgment finding defendant liable for retaliatory termination as a matter of law. (Dkt. #75). For the reasons that follow, defendant's motion is granted, plaintiff's cross motion is denied, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims, and the complaint is dismissed.

FACTUAL BACKGROUND

According to plaintiff, although her employment started off well, defendant's demeanor toward her changed abruptly a few weeks later in December 2016, when defendant learned that plaintiff was dating another male dentist.¹ Plaintiff alleges that over the next few weeks, defendant subjected her to regular gender-based harassment by making "degrading" comments in front of other employees and patients which used the phrases "your man." For example, defendant would question the way plaintiff performed aspects of her job by saying, "Did your man let you do this?" or "Doesn't your man care about anything?"

Plaintiff suggests in her pleadings that the "your man" comments were references to her boyfriend, who apparently was a dentist, and that as such, the comments affected her personally. Indeed, she claims that the comments humiliated her to such an extent that they made her feel "invalid as a woman." (Dkt. #75-5 at ¶23).

Defendant asserts vigorously that the "your man" comments had nothing whatsoever to do with any boyfriend of plaintiff. They referred, quite simply, to plaintiff's former employer. In so arguing, defendant relies heavily on the multi-page transcript of a meeting between the parties on January 24, 2017, which had been secretly recorded by the plaintiff.

In or around December 2016, defendant required plaintiff to undergo additional on-the-job training from two other female office employees.

Plaintiff testified that she complained on several occasions to defendant's Office Manager, Sharon Fields ("Fields") about defendant's comments to her, and that Fields told plaintiff that plaintiff had not done anything wrong, and that defendant treated all female assistants in this manner because it's "just how he is." At her deposition, however, Fields testified that she does not remember whether plaintiff complained to her, or whether she ever relayed any complaints by plaintiff to the defendant.

In January 2017, plaintiff asked Fields for a day off to attend a doctor's appointment. When Fields asked why, plaintiff explained that she needed a biopsy to follow-up on some abnormal test results, and that in light of her family history of cancer, a genetic counselor had told her that she likely carries the BRCA gene, which is associated with a higher chance of developing breast cancer.

On January 23, 2017, plaintiff again complained to Fields about a "harassing" comment by defendant concerning plaintiff's pouring of dental impression adhesive: "Your man must not have cared about anything." According to plaintiff, Fields advised plaintiff to raise the issue of harassment with defendant directly.

The next morning, January 24, 2017, defendant met with plaintiff. The parties dispute the nature and purpose of the meeting: defendant claims it was a regular performance review scheduled by Fields at his request a week before, while plaintiff claims that the meeting was called by defendant spontaneously. Plaintiff surreptitiously recorded the conversation.

At the meeting, defendant identified a number of performance issues he had with plaintiff, indicated that the ongoing efforts by staff members to provide supplemental on-the-job training to plaintiff were overburdening the office, and stated that he did not feel plaintiff was performing her job in a manner that justified her $20/hour pay. He told plaintiff she was going to be "let go," unless she agreed to accept a $16/hour training-level position. Plaintiff declined to respond, saying she wanted to think about it, and then immediately introduced the issue of "harassment." Almost immediately, and then again after some additional argument, defendant said plaintiff was fired and ordered her to leave.

On March 20, 2017, plaintiff filed an EEOC charge alleging sex-based discrimination and retaliation, and discrimination based on genetic information, supported by a portion of the January 24, 2017 meeting transcript. On March 16, 2018, the EEOC found reasonable cause for plaintiff's discrimination and retaliation claims, and issued plaintiff a right-to-sue letter. The instant action followed. Defendant moves for summary judgment dismissing the complaint, and plaintiff has filed a cross motion opposing defendant's motion, and seeking summary judgment on the limited issue of defendant's liability for retaliatory discharge.

DISCUSSION

I. Applicable Standard

Summary judgment is appropriate if there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. Proc. 56(c). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. A dispute is genuine where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Aldrich v. Randolph Central Sch. Dist. , 963 F.2d 520, 523 (2d Cir. 1992). In considering a motion for summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmovant: the Court cannot make credibility determinations, weigh the evidence or draw inferences from the facts. Id.

II. Hostile Work Environment (Sexual Harassment) in Violation of Title VII and the NYSHRL²

In order to succeed on a claim of gender-based sexual harassment based on a hostile work environment, a plaintiff must prove "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer." Chenette v. Kenneth Cole Prods. , 345 Fed. App'x 615, 619-20 (2d Cir. 2009) (unpublished opinion)(quoting Van Zant v. KLM Royal Dutch Airlines , 80 F.3d 708, 715 (2d Cir. 1996) ). The required evidentiary showing sets a "high bar" as the plaintiff must show "not only that [s]he subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive." Sealy v. State Univ. of N.Y. , 834 Fed. App'x 611, 615, 2020 U.S. App. LEXIS 34749 at *8 (2d Cir. 2020) (quoting Duplan v. City of New York , 888 F.3d 612, 627 (2d Cir. 2018) (internal quotation marks and alteration omitted)).

In considering whether a plaintiff has satisfied this test, a court must consider "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted."

Aulicino v. NYC Dep't of Homeless Servs. , 580 F.3d 73, 82 (2d Cir. 2009) (internal quotation marks omitted). Thus, a "work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it. A plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class." Brennan v. Metro. Opera Ass'n, Inc. , 192 F.3d 310, 318 (2d Cir. 1999).

Because a hostile work environment is characterized by severe and pervasive conduct, "[i]solated incidents typically do not rise to the level of a hostile work environment unless they are of sufficient severity to alter the terms and conditions of employment as to create such an environment." Demoret v. Zegarelli , 451 F.3d 140, 149 (2d Cir. 2006) (internal quotation marks and citation omitted). When evaluating a hostile work environment claim, the Court must not "view individual incidents in isolation," or "view the record in piecemeal fashion," but should consider "the totality of the circumstances, viewed from the perspective ... of a reasonable person in the plaintiff's position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target." Redd v. N.Y. Div. of Parole , 678 F.3d 166, 176 (2d Cir. 2012) (internal quotations and citations omitted) (alteration in original).

Plaintiff argues that she was subjected to sexual harassment in the form of a hostile work environment. Specifically, plaintiff claims that: (1) she informed defendant in December 2016 that she was dating a male dentist,...