Pucino v. Verizon Communications, No. 09-1306 (2d Cir. 2010)
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09-1306-cv Pucino v. Verizon Communications 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 AUGUST TERM, 2009 4 (Argued: December 4, 2009 Decided: August 13, 2010) 5 Docket No. 09-1306-cv 6 ----------------------------------------------------------------- 7 JOAN PUCINO, 8 Plaintiff-Appellant, 9 DEBORA COLE and MARYANNE DAUER, 10 Plaintiffs, 11 v. 12 VERIZON COMMUNICATIONS, INC., 13 Defendant-Appellee. 14 ----------------------------------------------------------------- 15 B e f o r e: WINTER, RAGGI, and LIVINGSTON, Circuit Judges. 16 Appeal from a judgment of the United States District Court 17 for the Southern District of New York (Paul G. Gardephe, Judge) 18 granting defendant s motion for summary judgment dismissing 19 appellant s hostile work environment claim. 20 remand. 21 22 23 24 25 26 27 We vacate and STEPHEN BERGSTEIN (Helen G. Ullrich, on the brief), Bergstein & Ullrich LLP, Chester, New York, for Plaintiff-Appellant. CARLA R. WALWORTH (Christopher Reilly & Stephen B. Kinnaird on the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 brief), Paul, Hastings, Janofsky & Walker LLP, New York, New York, for Defendant-Appellee. GAIL S. COLEMAN (James L. Lee, Deputy General Counsel; Lorraine C. Davis, Acing Associate General Counsel; Carolyn L. Wheeler, Assistant General Counsel on the brief), United States Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae United States Equal Employment Opportunity Commission. WINTER, Circuit Judge: Joan Pucino appeals from Judge Gardephe s grant of summary 18 judgment dismissing her claim that Verizon Communications, Inc., 19 maintained a hostile working environment at the garage where she 20 was employed. We vacate and remand. 21 22 23 BACKGROUND a) Factual Background Given that this appeal is from a grant of summary judgment, 24 we view the evidence in the light most favorable to appellant. 25 See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). 26 Our recitation of the facts, therefore, is simply a description 27 of the evidence appellant proffered in opposition to the motion 28 for summary judgment. 29 Pucino began working for Verizon s predecessor company in 30 1982, at first as a long-distance operator and then, from 1991 31 until the end of 2002, as a field technician in Newburgh, New 32 York. Field technicians install and repair telecommunications 2 1 cable. 2 and was then transferred to the Union Avenue Garage, where she 3 worked until her retirement in December 2002. 4 Garage employed anywhere from sixty to one-hundred-and-ten field 5 technicians at a time during this period, but never more than 6 five of them were women at any one time. 7 Pucino worked at Pierce s Road Garage from 1991 to 1995 The Union Avenue Justin Hinspeter and Kevin Moore served as foremen at the 8 Union Avenue Garage between 1995 and 2001. 9 responsible for assigning work and equipment to technicians and Foremen were 10 for monitoring the quality of that work. 11 routinely assigned her work that was less desirable than the work 12 assigned to male workers. 13 alone in parts of Newburgh considered unsafe. 14 assigned to work alone in those areas. 15 insisted that Pucino first call one of them when she needed 16 assistance on a job, while the two foremen allowed male workers 17 to call directly to dispatch for help. 18 Pucino s requests for help when she called and would instead show 19 up to monitor her work. 20 deny Pucino s requests for assistance on the ground that no one 21 was available to help but then, in Pucino s presence, would grant 22 a male worker s request for help. 23 lost and to go kill herself on occasions when she pointed out 24 this inconsistency in treatment. Hinspeter and Moore Pucino was frequently assigned to work Men were never Hinspeter and Moore also The foremen often refused On several occasions, Hinspeter would 3 Hinspeter told Pucino to get 1 Pucino also stated that Hinspeter would routinely change her 2 work location even though it was common practice to allow 3 technicians to work continuously in one area of the city so that 4 they could become familiar with it. 5 Hinspeter skipped over her when it was her turn to receive 6 overtime work, even though such work was usually assigned equally 7 to all field technicians on a rolling basis. 8 9 On at least ten occasions, Two of Pucino s co-workers corroborated Pucino s account of Hinspeter s behavior with respect to work assignments. Maryanne 10 Dauer stated that Hinspeter also sent her into two-man areas of 11 Newburgh alone even though men never had to work there alone. 12 Dauer received such assignments about once a week while working 13 out of the Union Avenue Garage. 14 in the Union Avenue Garage, stated that he had observed Hinspeter 15 and Moore harass Pucino when she requested assistance on 16 assignments that were routinely two-man jobs. 17 threatened Burton with discipline because he had asked Pucino to 18 help him out on a project where the use of a second worker was 19 routine and never questioned by the foremen. 20 warned Burton to stay away from Pucino, saying that Pucino was 21 trouble. 22 Burton worked with Pucino. Robert Burton, a male coworker Hinspeter once Hinspeter even He thereafter questioned Burton closely whenever 23 Beyond work assignments, Pucino stated that, on many 24 occasions, Hinspeter would grant her male co-workers access to 4 1 the very tools that he had just told her were unavailable. 2 specifically recalled one occasion when Hinspeter granted Andy 3 Embler s request for a B tool (used to open boxes) when he had 4 denied the same request from her moments earlier. 5 tools made it difficult, if not impossible, for her to perform her 6 work properly. 7 She Denial of The Verizon foremen routinely denied Pucino access to bucket 8 trucks even though she was eligible for them under company 9 policy. A bucket truck is a large pick-up truck equipped with an 10 enclosed platform attached to a mechanical arm that, when lifted, 11 makes it possible to reach overhead telecommunications wires. 12 Field technicians prefer bucket trucks to the alternative -- vans 13 with large ladders -- because the trucks are safer, easier to 14 use, and reach much higher. 15 foremen made permanent and temporary bucket truck assignments to 16 men based on seniority. 17 Pierce s Road Garage and Union Avenue Garage would frequently 18 deny her requests for a bucket truck notwithstanding her 19 seniority over the male co-workers who received them. 20 specifically recalled that co-workers Ted Saltershack, Paul 21 Martinex, and Bob Wilkens received bucket truck assignments even 22 though she had more seniority than any of them. 23 stated that the few trucks she did receive were older and in 24 worse shape than those assigned to less senior males and that Because of their desirability, the Pucino stated that foremen at both 5 She Pucino also 1 even these trucks were soon given away to other workers or else 2 taken out of service because of their age. 3 Dauer described a similar experience with bucket truck 4 assignments. 5 until July 2001, when she was transferred to the Union Avenue 6 Garage along with co-worker Danny Piperato. 7 Piperato took their permanently-assigned trucks with them. Upon 8 Dauer s arrival at the Union Avenue Garage, Hinspeter gave her 9 truck to a male worker with more seniority while allowing Dauer worked at Pierce's Road Garage from 1995 Both Dauer and 10 Piperato to keep his truck at the expense of more senior males. 11 Dauer further recalled that many of her requests for a temporary 12 bucket truck were denied in favor of less senior male workers. 13 Pucino stated that Hinspeter and Moore often reprimanded her 14 for behavior that was commonplace, and unremarked upon, among the 15 men. 16 using public bathrooms and male co-workers openly used them while 17 out in the field, Hinspeter and Moore reprimanded Pucino for 18 being off the job on occasions when she used public facilities. 19 Pucino preferred public bathrooms because the bathrooms where she 20 worked were unisex, generally dirty, and also lacked doors or 21 other security to prevent men from walking in. 22 attested to the bad conditions of Verizon s unisex bathrooms. 23 Dauer stated that, while working at Pierce s, she became aware of 24 the off the job reprimands Pucino had received for using public For example, although there was no company policy against 6 Dauer also 1 bathrooms. 2 her own travel time to bathrooms in Verizon offices several miles 3 from where she worked, which were segregated by sex. 4 Fearing similar discipline, Dauer began to document As another example of discriminatory discipline, Pucino 5 testified that Hinspeter and Moore had reprimanded her for 6 stopping at a store for a cold drink, even though it was 7 commonplace for male workers to do the same on hot days. 8 foremen then implemented a new policy prohibiting such stops and 9 openly blamed Pucino for that policy. 10 The Finally, Pucino stated that Hinspeter and Moore subjected 11 her to harsher, more public criticism than male co-workers. 12 Hinspeter constantly called Pucino a bitch and stupid and 13 also would tell her to go fuck herself. 14 were usually criticized privately for their mistakes, Pucino s 15 affidavit claimed that Hinspeter and Moore had repeatedly singled 16 her out for intense and often public criticism. And while male workers 17 There was evidentiary corroboration of these claims. 18 Gregory Irvin, a union shop steward who observed the workplace, 19 said that Hinspeter would insult male co-workers by calling them 20 just as productive as [Pucino]. 21 "Hinspeter singled [Pucino] out for rougher, longer and more 22 vicious treatment than anyone else." 23 Hinspeter and Moore constantly watched Pucino, far in excess 24 of their supervision of any male coworker in the same work group. 7 Irvin further said that Burton stated that 1 Dauer, for her part, testified that Hinspeter subjected her to 2 much the same treatment. 3 for spending too much time on a no-access job even though her 4 male co-workers spent the same amount of time on that job without 5 receiving any criticism. 6 For example, Hinspeter reprimanded her The public criticism of Pucino persisted even after she 7 filed a complaint with Verizon s internal Equal Employment 8 Opportunity ( EEO ) Hotline. 9 Union Avenue Garage that Pucino had filed the complaint with the Moore publicly announced to the 10 internal EEO Hotline. 11 Pucino's EEO complaint, they are going to come into our garage, 12 take over our garage. 13 You are going to be followed, and the garage will never be the 14 same. 15 a large dead snake in Pucino s work truck. 16 b) Procedural History 17 He then told workers that, because of Every word is going to be scrutinized. Two days later, someone in the Union Avenue Garage placed Pucino and Dauer filed Equal Employment Opportunity 18 Commission ( EEOC ) charges against Verizon on March 30, 2001 and 19 the two filed suit on July 8, 2003 alleging gender discrimination 20 in violation of 42 U.S.C. § 2000e ( Title VII ) and the New York 21 State Human Rights Law, New York Executive Law § 296 ( NYSHRL ).1 1 Debora Cole, another female coworker, filed suit with Pucino and Dauer. The district court issued a separate order granting summary judgment to Verizon on Cole s claims and, like Dauer, Cole has not appealed. 8 1 The district court granted Verizon s motion for summary judgment. 2 Dauer did not appeal. 3 summary judgment on her hostile workplace claim. 4 limit our inquiry to that claim. Pucino appeals only from the grant of 5 6 We therefore DISCUSSION We review a district court s grant of summary judgment de 7 novo. 8 appropriate only if the pleadings, the discovery and disclosure 9 materials on file, and any affidavits show that there is no 10 genuine issue as to any material fact and that the movant is 11 entitled to judgment as a matter of law. 12 56(c)(2). 13 construe the facts in the light most favorable to the non-moving 14 party and must resolve all ambiguities and draw all reasonable 15 inferences against the movant. 16 quotation marks omitted). 17 a) Title VII Hostile Work Environment Claim 18 See Beyer, 524 F.3d at 163. Summary judgment is Fed. R. Civ. P. In deciding whether the district court erred, we must Beyer, 524 F.3d at 163 (internal In the present procedural context, Pucino s hostile work 19 environment claim requires her to proffer sufficient evidence to 20 allow a trier of fact to find disparate treatment based on 21 gender, resulting in a hostile working environment that was 22 sufficiently severe or pervasive to alter the conditions of the 23 victim s employment and create an abusive working environment 24 . . . . Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) 9 1 (internal quotation marks omitted).2 2 1. Based on Sex 3 In assessing the totality of the circumstances offered to 4 prove a hostile work environment, a fact-finder may consider only 5 abusive conduct proven to be based on sex. 6 294 F.3d 365, 378 (2d Cir. 2002); Raniola v. Bratton, 243 F.3d 7 610, 621 (2d Cir. 2001).3 8 in such sex-specific and derogatory terms . . . [as] to make it 9 clear that the harasser is motivated by general hostility to the Alfano v. Costello, This may be proven by harass[ment] 10 presence of women in the workplace, Raniola, 243 F.3d at 621 11 (alteration in original) (quoting Oncale v. Sundowner Offshore 12 Servs., Inc., 523 U.S. 75, 80 (1998)), or by offering some 13 circumstantial or other basis for inferring that incidents 14 sex-neutral on their face were in fact discriminatory. 15 294 F.3d at 378. 16 abuse to show that other ostensibly sex-neutral conduct was, in 17 fact, sex-based. 18 Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 2000) Alfano, A plaintiff may rely on incidents of sex-based See Raniola, 243 F.3d at 621-22; see also 2 We review discrimination claims brought under the NYSHRL according to the same standards that we apply to Title VII discrimination claims. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000). 3 Plaintiffs alleging discrimination based on sex must also provide a specific basis . . . for imputing the objectionable conduct to the employer. Alfano, 294 F.3d at 373. Verizon does not dispute that Pucino could impute the alleged objectionable conduct of the two Verizon foremen to it. 10 1 (holding that a rational jury could infer that facially-neutral 2 abuse was sex-based because perpetrator had previously made 3 several sexually-derogatory statements). 4 Applying these standards, we conclude that Pucino has 5 offered sufficient evidence to allow a trier of fact to find that 6 the alleged abuse was indeed sex-based. 7 Pucino offered evidence showing that both Hinspeter and 8 Moore subjected women to disparately harsh working conditions. 9 These included the disparate assignment of work in dangerous 10 areas and the refusal to provide assistance to female workers 11 that was provided male co-workers. 12 evidence suggesting a legitimate non-discriminatory explanation 13 for the foremen s conduct. 14 Verizon has proffered no A trier of fact could also find disparate treatment based on 15 gender in the provision or denial of tools and the use of bucket 16 trucks. 17 public restrooms by male and female employees that would allow a 18 trier of fact to conclude there was an attempt to force female 19 employees to use restrooms that had no locks. 20 There was similar evidence with regard to access to Pucino also offered evidence sufficient to allow a trier to 21 find that Hinspeter and Moore engaged in verbal attacks on Pucino 22 that were sex-based. 23 that the word bitch is such an intensely degrading sexual 24 epithet that its use implies as a matter of law hostility toward In that regard, Pucino and the EEOC suggest 11 1 women. 2 contexts reflects such hostility. 3 use of the word bitch always and in every context has that 4 meaning or that its usage need not be viewed in context. 5 Kriss v. Sprint Commc ns Co., 58 F.3d 1276, 1281 (8th Cir. 1995); 6 see also Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th 7 Cir. 2007) ( [A] gender-specific term of abuse, such as son of a 8 bitch, need not imply hostility based on the abused person's sex 9 any more than saying she is a bad worker need imply hostility It surely is the case that use of that word in many However, we cannot say that See 10 based on her sex. ) (internal citation omitted). 11 need to worry that a trier of fact cannot make the appropriate 12 judgment about the word s use. 13 would automatically command an inference of gender-based 14 hostility to be drawn from its use. 15 We also see no We therefore reject a rule that Having said that, we also have no doubt that such a trier 16 could find that Hinspeter s constant use of the word over 17 several years in the context of the present record was sex-based 18 and reflected hostility to women. 19 F.3d 790, 799 (10th Cir. 2007) ( [Defendant] frequently made 20 indisputably gender-related remarks, and tolerated the use of the 21 word bitch to describe [plaintiff]. 22 we think a jury should decide whether these comments were made 23 because of gender animus. ). 12 See EEOC v. PVNF, L.L.C., 487 Under these circumstances, 1 We also conclude that the combination of disparate treatment 2 and gender-based verbal abuse here can support a further 3 inference that the other complained-of instances of abuse 4 involving the two foremen were in fact gender-based. 5 little question that incidents that are facially sex-neutral may 6 sometimes be used to establish a course of sex-based 7 discrimination -- for example, where the same individual is 8 accused of multiple acts of harassment, some overtly sexual and 9 some not. Alfano, 294 F.3d at 375. There is Here, even if incidents, 10 such as the denial of overtime, did not directly amount to 11 disparate treatment when considered alone in isolation, an 12 inference that such conduct was gender-based could be drawn by a 13 trier because Hinspeter and Moore were behind them. 14 Notwithstanding the above analysis, Verizon argues that the 15 evidence upon which Pucino relies is simply too conclusory to 16 support an inference that the conduct in question was gender- 17 based. 18 discrimination that are devoid of concrete particulars do not 19 suffice to avoid summary judgment, Meiri v. Dacon, 759 F.2d 989, 20 998 (2d Cir. 1985), Pucino has proffered detailed evidence that 21 Hinspeter and Moore treated similarly-situated male and female 22 workers differently, including the accounts of others who 23 witnessed such conduct. We disagree. While purely conclusory allegations of For that reason, we conclude that Pucino 13 1 has proffered evidence sufficient to show gender-based discrimination. 2 2. Objective & Subjective Hostility 3 We turn now to whether a rational juror could find that the 4 gender-based conduct in question was sufficiently severe or 5 pervasive to alter the conditions of the victim's employment and 6 create an abusive working environment. 7 (internal quotation marks omitted). 8 on both objective and subjective hostility: A work environment 9 will be considered hostile if a reasonable person would have Harris, 510 U.S. at 21 The relevant inquiry focuses 10 found it to be so and if the plaintiff subjectively so perceived 11 it. 12 1999). 13 discriminatory conduct; its severity; whether it is physically 14 threatening or humiliating, or a mere offensive utterance; and 15 whether it unreasonably interferes with an employee's work 16 performance. 17 element, a plaintiff need not show that her hostile working 18 environment was both severe and pervasive; only that it was 19 sufficiently severe or sufficiently pervasive, or a sufficient 20 combination of these elements, to have altered her working 21 conditions. 22 2003); see also Brennan, 192 F.3d at 318 ( [A] plaintiff must 23 still prove that the incidents were sufficiently continuous and 24 concerted to be considered pervasive, or that a single episode Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. Relevant circumstances include: Harris, 510 U.S. at 23. the frequency of the In establishing this See Terry v. Ashcroft, 336 F.3d 128, 148-49 (2d Cir. 14 1 is severe enough to establish a hostile working environment. ) 2 (internal citation omitted). 3 question, we consider the totality of circumstances. 4 336 F.3d at 148-49. 5 And again, in addressing this See Terry, The district court concluded that the challenged conduct 6 amounted to nothing more than minor annoyances and 7 inconveniences. 8 simply too conclusory and lacking in concrete particulars to 9 avoid summary judgment on the question of objective hostility. Verizon once again argues that the record is 10 In particular, it argues that Pucino cannot establish the 11 frequency of the abuse simply by stating in her affidavit that 12 the alleged abuse occurred constantly or frequently. 13 We disagree. We believe that a trier might easily find that 14 the harassment and abuse was sufficiently severe to alter 15 Pucino s working conditions. 16 tools, the use of a bucket truck, the issues as to use of 17 restrooms, and the verbal abuse affected most of the major 18 aspects of Pucino s employment. 19 Work assignments, the provision of With regard to the conclusions of Pucino s evidence as to 20 the frequency of the abuse, a plaintiff, to prevail, need not 21 recount each and every instance of abuse to show pervasiveness. 22 In Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), a plaintiff 23 testified that a supervisor constantly harassed her - so often 24 that she lost count - but that she could recall the exact 15 1 dates and circumstances of only a few incidents of harassment. 2 Id. at 631. 3 judgment, we explained that If a jury were to credit [the 4 plaintiff s] general allegations of constant abuse, which were 5 confirmed by her coworkers, it could reasonably find pervasive 6 harassment, even in the absence of specific details about each 7 incident. 8 62, 75 (2d Cir. 2001) (crediting testimony in support of a 9 hostile work environment claim that plaintiff was "constantly" or 10 "daily" made the victim of wanted physical contact); Brennan, 192 11 F.3d at 318 (explaining that [a] plaintiff need not present a 12 list of specific acts ). 13 Torres precedent. 14 abuse in some detail. 15 date and circumstances of each instance of abuse, her testimony 16 was corroborated by other witnesses, including Dauer, Burton, and 17 Irvin. 18 allow a trier to find pervasiveness. 19 In discussing the district court s grant of summary Id.; see also Holtz v. Rockefeller & Co., 258 F.3d Pucino s evidence fits within the She has described the nature of the alleged Although she omitted specifics as to the We thus conclude that Pucino s evidence was sufficient to Accordingly, we hold that a rational juror could find the 20 treatment of Pucino to be sufficiently severe or sufficiently 21 pervasive to alter the conditions of her employment. 22 CONCLUSION 23 We therefore vacate and remand for further proceedings 24 consistent with this opinion. 16
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