Small v. Garland

JULIE SMALL, Plaintiff, v. MERRICK B. GARLAND, Attorney General of the United States, Defendant.

18-CV-5659 (BCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 31, 2021

OPINION AND ORDER

BARBARA MOSES, United States Magistrate Judge.

Plaintiff Julie Small brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended (Title VII), alleging that she was subject to unlawful sexual harassment, retaliation, and retaliatory harassment while employed by the Federal Bureau of Prisons (BOP) at the Metropolitan Correctional Center (MCC) in Manhattan.¹ Plaintiff alleges that another MCC employee, Lieutenant Casanova Madison, sexually assaulted her in an MCC elevator on October 18, 2013 by smacking and squeezing her buttocks, and - more generally - that she was forced to endure a sexualized workplace at the MCC.

Plaintiff further alleges that after she reported the elevator assault to MCC management on November 4, 2013, she was subject to retaliation by the BOP, including the issuance of an initial cease-and-desist letter prohibiting her from further interaction with Madison, followed by a formal letter of reprimand for using her government computer to exchange personal emails with Madison. The emails, exchanged in July 2013, were uncovered during the BOP's investigation of the elevator incident. Plaintiff was not otherwise disciplined. Madison, who alsoreceived a cease-and-desist letter at the outset of the investigation, was quickly moved to a different shift, to reduce any potential interaction with Small, and ultimately suspended for 30 days as discipline for the elevator assault, the use of his government computer to exchange personal emails with Small, and an unrelated incident in which he "inadvertently" attempted to enter the MCC with a personal firearm.

Plaintiff further contends that she was passed over for several promotions between October 28, 2013 and July 19, 2016, at which point she was in fact promoted. Finally, plaintiff claims that she was subjected to retaliatory harassment at the hands of coworkers who made demeaning comments about her, would not permit her to heat up food, spread lascivious rumors about her, and on two occasions transported her to the roof of MCC instead of the floor she requested.

On January 30, 2014, plaintiff filed a complaint of sexual harassment with the Equal Employment Opportunity Commission (EEOC), which she later amended to add retaliation claims. On August 31, 2017, after a seven-day evidentiary hearing, an EEOC Administrative Judge (AJ) issued an order in favor of defendant. On March 23, 2018, the DOJ upheld the AJ's decision. Small filed this action on June 21, 2018.

Now before the Court is defendant's motion for summary judgment on all three of plaintiff's claims. As to her sexual harassment claim, defendant argues that to the extent it is premised on conduct other than the October 2013 elevator assault, it is barred for failure to exhaust administrative remedies, because plaintiff's EEOC complaint was limited to that incident. Even if incidents other than the elevator assault are considered, defendant contends that the harassment claim fails on the merits because plaintiff cannot establish severe or pervasive harassment, nor a continuous and concerted course of harassment sufficient to alter theconditions of her working environment. Defendant further contends that the harassment cannot be imputed to the BOP, because Madison was not plaintiff's supervisor; because she cannot show that the BOP knew or should have known of the offensive conduct but failed to take appropriate corrective action; that the BOP did take appropriate corrective action, which successfully put an end to the harassing behavior; and that, even if Madison was plaintiff's supervisor, the BOP exercised reasonable care to prevent and promptly correct any sexually harassing behavior.

With respect to plaintiff's retaliation claim, defendant argues that the cease-and-desist letter issued to both plaintiff and Madison was not an adverse employment action; that the formal reprimand she later received (in lieu of a three-day suspension, as originally recommended by her supervisor) was appropriate in light of her personal use of her BOP email, and not retaliatory; and that she was passed over for promotions due to legitimate non-retaliatory reasons, with her October 2016 promotion further belying any claim of retaliatory failure-to-promote. Finally, defendant argues that plaintiff's retaliatory harassment claim fails because she does not allege any instances sufficiently severe to create a hostile work environment, and the BOP was not adequately notified of the harassment in a manner that would have enabled leadership to take remedial action.

For the reasons set forth below, defendant's motion will be granted to all of plaintiff's claims except the portion of her retaliation claim premised on the reprimand that she received for personal use of a BOP computer, which a reasonable jury could find to have been a pretext for retaliation, and which, therefore, may proceed to trial. As to plaintiff's harassment claim, the Court concludes that Madison was not plaintiff's supervisor; that defendant was not negligent in controlling her working conditions; that defendant provided an appropriate avenue for plaintiff to lodge her complaint, which she did ten days after the incident; and that the BOP promptlyinvestigated the complaint and took remedial measures. As to the portion of plaintiff's retaliation claim premised on the alleged failure to promote, plaintiff has presented no evidence that retaliatory intent played any role in the promotions that she did not get - all of which were competitive - while defendant has presented evidence (including the fact that she was promoted in October 2016) that there was no such intent. The Court further concludes that the handful of isolated incidents that plaintiff complains of following her protected activity do not rise to the level of a hostile work environment; consequently, her retaliatory harassment claim also fails.

Accordingly, for the reasons set forth more fully below, defendant's motion for summary judgment will be denied with respect to the portion of plaintiff's retaliation claim based on the issuance of the formal reprimand for personal computer use, and otherwise granted.

I. BACKGROUND

A. Facts

The relevant facts are taken from (i) defendant's Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 (Def. 56.1 Stmt.) (Dkt. No. 52); (ii) the Declaration of Barbara Latham (Latham Decl.) (Dkt. No. 50); (iii) the Declaration of Rachel L. Doud (Doud Decl.) (Dkt. No. 49), together with the evidentiary materials attached thereto; (iv) plaintiff's Response to Defendant's Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1 (Pl. 56.1 Resp.) (Dkt. No. 61); (v) the Declaration of John A. Beranbaum (Beranbaum Decl.) (Dkt. No. 59), together with the evidentiary materials attached thereto; and (vi) the Reply Declaration of Rachel L. Doud (Doud Reply Decl.) (Dkt. No. 65), together with the evidentiary materials attached thereto, and the Supplemental Declaration of Barbara Latham (Latham Supp. Decl.) (Dkt. No. 66), but only to the extent that these materials respond directly to new material issues raised in plaintiff's opposition papers. See Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27 (2d Cir. 2000) ("reply papers may properly address new material issuesraised in the opposition papers") (internal citation omitted); accord Kellman v. Metropolitan Transp. Auth., 8 F. Supp. 3d 351, 371 n.10 (S.D.N.Y. 2014).

Except where otherwise noted, the facts are undisputed. Where the material facts are disputed, the Court has, as required, resolved those disputes in favor of the plaintiff for purposes of the pending motion. See Benn v. Kissane, 510 F. App'x. 34, 36 (2d Cir. 2013) (summary order) ("a federal court considering a summary judgment motion must resolve material factual disputes in favor of the non-moving party."), cert. denied, 571 U.S. 820 (2013).

1. BOP's Anti-Discrimination and Anti-Harassment Policies

The BOP's Anti-Discrimination Policy forbids discrimination, harassment, and retaliation of any kind, including sexual harassment, unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Def. 56.1 Stmt. ¶ 12; Pl. 56.1 Resp. ¶ 12. Its Anti-Harassment Policy provides that "BOP will not tolerate harassing conduct by anyone in the workplace," including harassing conduct of a sexual nature. Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Resp. ¶ 13. These policies - at least, the versions referenced in defendant's moving papers, Doud Decl. Ex. C (Dkt. No. 49-3) at 187-99 - did not come into effect until June 16, 2014, ten months after the October 2013 elevator incident. Id.; Pl. 56.1 Resp. ¶¶ 12-13. However, the BOP's Discrimination and Retaliation Complaints Processing Policy (Complaints Processing Policy), which was in place in October 2013, included a chapter addressing sexual harassment, which explicitly stated that the BOP "will not condone acts of sexual harassment or inappropriate behavior by staff or inmates" and that "[a]ll employees will be informed that sexual harassment is prohibited conduct[.]" Doud Reply Decl. Ex. EE (Dkt. No. 65-1) at US06061-64. The Complaints Processing Policy also stated that the agency "will not condone retaliation against the victim or any employee who provided information related to the allegations," and that management should scrutinize employment decisions affecting the victim and witnesses "duringand after the investigation to ensure such decisions are not based on retaliatory motives." Id. at US06062-63. Further, the BOP's February 5, 1999 Standards of Employee Conduct required that "employees conduct themselves professionally" and "in a manner which will not be demeaning...