Arthur v Standard & Poor's Corp.

[*1] Arthur v Standard & Poor's Corp. 2005 NY Slip Op 50288(U) Decided on February 7, 2005 Supreme Court, New York County Kapnick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 7, 2005
Supreme Court, New York County

MAUREEN ARTHUR, Plaintiff,

against

STANDARD & POOR'S CORPORATION, STANDARD & POOR'S, a Division of THE MCGRAW-HILL COMPANIES, INC., RITA M. BOLGER, ROSALEEN M. MANZI, JOANNE W. ROSE, JAMES PENROSE, ROBERT TEMME, GAYLE LENNON, ROSE HUTCHINSON and PAMELA LEON, Defendants.



112547/99



The attorney for plaintiff was Carabba Locke LLP, 65 Broadway, New York, NY 10006.

The attorney for defendant was Jackson Lewis LLP, 59 Maiden Lane, New York, NY 10038.

Barbara R. Kapnick, J.

Defendants move, pursuant to CPLR § 3212 (a), for summary judgment dismissing plaintiff's complaint. The complaint alleges that plaintiff Maureen Arthur was subjected to a hostile work environment, that the management of her employer, Standard & Poor's Corporation ("S&P") knew about said environment and did nothing to remediate the condition, and that plaintiff was ultimately discharged because of her sexual orientation, in violation of the New York City Human Rights Law (HRL) and the New York City Administrative Code (Code) §§ 8-107.1(a), 8-107.13(b)(1), (2) and (3) and 8-502(a) (first cause of action); and that she was discharged in retaliation for having complained about the harassment, in violation of Code § 8-107 (7) (second cause of action). The complaint also alleges that defendants Bolger, Manzi, Rose, Penrose, Temme, Lennon, Hutchinson, and Leon aided and abetted in the discriminatory practices, in violation of Code § 8-107.6 (third cause of action) and coerced, intimidated, threatened, and interfered with plaintiff's rights under the HRL, in violation of Code § 8-107.19 (fourth cause of action).

Background

Plaintiff was hired in February 1991 as a full-time administrative assistant in defendant Standard & Poor's (S&P's) legal department (Department), where, over time, she was assigned to work for defendants Rita Bolger and Rosaleen Manzi, and two non-party attorneys, Sabine Zerarka and Natalie Abrams.[FN1] Bolger was the Managing Director and Associate General Counsel at S&P. Manzi and defendant James Penrose were Managing Directors and Assistant General Counsels. Defendant Joanne Rose was the Senior Managing Director and General Counsel for S & P, and the head of the Legal Department. Defendant Rose Hutchinson was the administrative assistant to defendant Rose, and the office manager of the Department. Defendant Pamela Leon was also employed as an administrative assistant in the Department, until she was terminated in [*2]1993.[FN2] Defendant Robert Temme was a Director of Human Resources for defendant McGraw Hill Companies, Inc. (McGraw Hill), with responsibility for the S&P Department. Defendant Gayle Lennon was a Director of Human Resources at McGraw Hill.

From October 1992 through January 1997, plaintiff received four performance reviews. The first, dated October 6, 1992, and signed by defendants Bolger and Rose, gave her a rating of 2 (out of 3), "fully meets and occasionally exceeds expectations." However, this evaluation noted that "fewer missed work days would help work flow."

The second evaluation, dated August 19, 1994, and also signed by defendants Bolger and Rose, gave her the middle of five possible ratings, "performance met expectations," and noted that plaintiff needed to improve her knowledge of office equipment.

The third evaluation, dated November 7, 1995, and signed by defendant Bolger and non-party Scott L. Bennett, again gave plaintiff the middle rating, and noted that she still needed to improve her knowledge of new office technology, improve her daily arrival time, and reduce the number of her smoking breaks and other times away from her desk.

Plaintiff's next, and last evaluation, dated January 9, 1997, and signed by defendants Manzi, Bolger, and Rose, gave plaintiff the lowest possible rating, "performance below expectations." This evaluation noted that plaintiff needed to improve her timely completion of work and her daily arrival time, and to reduce the number of her smoking breaks and other times away from her desk. An annex to this evaluation notes that: an administrative assistant's role is to show initiative, follow instructions when given, and follow through without constant supervision. Maureen does not evidence these traits. If supervised, the work product is of acceptable quality but she shows a real lack of initiative and demonstrates little ability for complete follow through without supervision.

After a meeting between plaintiff and Ms. Bolger on February 10, 1997 to discuss plaintiff's performance, defendant Bolger issued a memorandum to plaintiff, dated February 11, 1997 warning plaintiff that if she failed to improve her performance in certain specified areas, or to perform certain specified tasks, she would be subject to disciplinary action. The memorandum further advised that plaintiff's performance would be reviewed again in 45 days.

By memorandum dated June 10, 1997, Bolger stated to plaintiff that while she had performed some of the tasks listed in the February 11th memorandum, she had not adequately performed some of the others; that while plaintiff's arrival time and the number of breaks she took had initially improved, there had recently been slippage in both areas; and that plaintiff had failed to act competently with regard to two new tasks.

By further memorandum dated September 30, 1997, Bolger gave plaintiff a final warning that if her overall job performance did not improve within 30 days, she would be terminated. That memorandum also stated that plaintiff's job performance had deteriorated since the June 10th progress report; that she was still arriving late, and that she had not acted competently with regard to a number of specified tasks.

By memorandum dated October 27, 1997, plaintiff responded that she disagreed with the [*3]points made in Bolger's June 10th and September 30th memoranda. Plaintiff then stated: I continue to maintain that the Legal Department is very hostile toward me and that I am being treated in a very discriminatory manner. I continue to maintain that this discrimination is based on sexual orientation. I continue to maintain that the Legal Department is retaliating against me because I complained about the Legal Department's discriminatory treatment of me to Human Resources in May of 1996. I continue to maintain that the warning memos I am receiving are further examples of discrimination and retaliation, and, further, that there has been an increase in discriminatory and retaliatory incidents since I first went to Human Resources in May of 1996. I also believe that the Legal Department is creating a paper trail to justify its discriminatory and retaliatory termination of my employment with Standard & Poor's. (underlining supplied).

Defendants thereupon held plaintiff's scheduled termination in abeyance pending an investigation of her charges. Defendant Lennon was placed in charge of the investigation on the ground that, unlike defendant Temme, she had not previously had any contact with plaintiff, or any knowledge of complaints concerning plaintiff's job performance. Lennon reviewed the available pertinent documents and interviewed 11 witnesses, including plaintiff whom she interviewed twice. Among the witnesses Lennon interviewed were non-party Sandy Hensen and non-party Lurea Van Horne - both of whom plaintiff had identified as having witnessed alleged sexual orientation discrimination against her.

Lennon testified at her deposition that Hensen told her that she had felt sorry for plaintiff, but that she had not witnessed any of the events that plaintiff had described to her. Lennon also testified that Hensen had told her that she had not known that plaintiff was a lesbian. Lennon further testified that Van Horne had also told her that she had not witnessed any of the incidents about which plaintiff complained. Lennon acknowledged that she believed that plaintiff was being harassed, and that she suspected that plaintiff might be homosexual because plaintiff never talked about dates with men, but she testified that she did not think that the harassment had anything to do with plaintiff's sexual orientation.[FN3]

By memorandum dated November 20, 1997 and addressed to plaintiff, Lennon concluded that: After a thorough review of the facts, I cannot find any information that would support your claims of discrimination or retaliation.As a threshold matter, it does not appear that your sexual orientation was generally known or the subject of general discussion in the office. In fact, you acknowledged to me that you did not tell anyone in the Legal department except Rita Bolger, who denies it, of your sexual orientation although you assumed that they were aware.

. . . You also alleged that you had brought to the attention of Rita Bolger instances of inappropriate comments and jokes relating to your sexual orientation but she failed to act on your concerns. Rita denies that you ever advised her of such [*4]comments and contends that she would have taken immediate action had such concerns been brought to her attention...It is noteworthy that, until your October 27, 1997 memo, you never complained about discrimination on the basis of sexual orientation ... . Aside from your memo dated October 27, 1997, which led to my investigation, you supplied only one document in support of your position that you had complained about discrimination on the basis of your sexual orientation. That document, a memo dated October 16, 1996 from you to Bob Temme, complained about being required to provide documentation for a medical condition when others in the department were not also asked for such documentation. Although that document uses the word "discrimination," there is no indication that you were referring to discrimination on the basis of sexual orientation or other impermissible ground.

By memorandum also dated November 20, 1997, Bolger notified plaintiff that her employment was being terminated "due to unsatisfactory job performance, effective today."



Discussion

Burden of Production

Claims brought under the HRL are examined under the framework established for claims brought pursuant to Title VII, 42 USC § 2000e, et seq. See Pace College v Commission on Human Rights of The City of New York, 38 NY2d 28 (1975); Brennan v Metropolitan Opera Assn., 284 AD2d 66 (1st Dept 2001). Accordingly, a plaintiff complaining of disparate treatment must set forth a prima facie case, the elements of which are that plaintiff (1) is a member of a protected class, (2) was qualified for the position, and (3) suffered an adverse employment decision under (4) circumstances that give rise to an inference of discrimination. See Reeves v Sanderson Plumbing Products, Inc., 530 US 133 (2000); McDonnell Douglas Corporation v. Green, 411 US 792 (1973). If the plaintiff does so, the burden of proof then shifts to the defendant, who must put forward evidence that it engaged in the adverse employment action for a legitimate, nondiscriminatory reason. Reeves, supra. If defendant does so, the burden shifts back to plaintiff, who must show that defendant's proffered reason is false or a pretext. Id.

Discriminatory Discharge

Code § 8-107 (1) provides, in relevant part, that: [i]t shall be an unlawful discriminatory practice:(a) For an employer or an employee or agent thereof, because of the actual or perceived ... sexual orientation ... of any person, to ... discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

Defendants argue that they could not have discharged plaintiff because of her sexual orientation, because they did not know that she was a lesbian until after the decision to discharge her had been made, and that, in any event, they had a legitimate, non-discriminatory reason for discharging her.

Plaintiff alleges in her complaint, and testified at her deposition that in or about 1994, shortly after she commenced full-time work at S&P, a post-it with an anti-lesbian epithet, "F- you, pussy eater", was attached to her desk. Plaintiff also alleges that someone poured water onto her computer; and that someone wrote an anti-lesbian curse on her desk.

In addition, plaintiff testified that defendants Hutchinson and Leon each told her that they [*5]knew that she was a lesbian, and remarked that they should hire a hit-man to "take care" of her.

Plaintiff also claims that defendant Penrose repeatedly told her jokes concerning male and female homosexuals. Plaintiff testified that although she did not specifically tell defendant James Penrose that she was a lesbian, it was clear to her that Penrose was aware of her sexual orientation based on his various statements and comments, including "You probably marched in the gay and lesbian day parade, didn't you"; "Somebody like you probably lives on Barrow Street"; and "Do you prefer men or women?"[FN4]

Plaintiff also admits she never specifically stated to defendant Bolger that she was gay but claims to have repeatedly complained about these matters to Bolger, who allegedly stated that she would inform defendant Rose.

Plaintiff concedes that she never explicitly told Manzi that she was gay, but testified that she did tell Manzi "that gay comments were being made" to her by her co-workers and that she "received gay-oriented hate notes." Plaintiff also testified that she told Manzi that her "co-workers had threatened to hire a hit man to take care of" her and that she had "been the object of intense discriminatory hostility for many years in the S&P legal department."

On or about May 31, 1996, plaintiff met with defendant Temme. At that meeting, plaintiff told Temme about the hate notes that she had received, the threat to hire a hit-man, the pouring of water on her computer, and Penrose's comments and jokes. She also informed Temme about problems she had encountered in getting time off when she had allegedly broken her arm, when her father was ill, and when a friend of hers was hospitalized. Although plaintiff acknowledged at her deposition that she did not say to Temme at this meeting that she was "gay" in those "exact words", she told him that she "had been harassed for a number of years, that [she] was working under extremely hostile circumstances for a number of years, that gay jokes were being made to [her], gay comments were being made to [her] and that [she] was suffering because of the sexual orientation discrimination."

Temme denied at his deposition that plaintiff told him anything about anti-gay comments or jokes. He claims, rather, that he determined that plaintiff's complaints, other than those concerning time off, pertained to incidents that had happened several years earlier, and that they no longer needed to be investigated. He further claimed that he spoke about the time-off issue to Rose, who allegedly informed him that plaintiff's attendance was a problem.

On June 3, 1996, defendants Bolger and Manzi, and Ms. Zerarka met with non-party Madhu Krishnappa, a Senior Employee Specialist in the S&P Human Resources department. The discussion at the meeting focused on plaintiff's job performance.[FN5] On June 12, 1996, Ms. Krishnappa met with plaintiff and with defendant Rose to discuss plaintiff's job performance.

Subsequently, in an October 18, 1996 letter to Temme, plaintiff complained that Bolger was discriminating against her by, among other things, refusing to allow her to take sick time in situations where other employees could do so, although the letter did not make any specific reference to discrimination based upon plaintiff's sexual orientation.

Defendants Bolger, Rose, Manzi, Temme, and Lennon have all testified at their depositions that they did not learn of plaintiff's sexual orientation before plaintiff's October 27, 1997 letter to Temme. Defendants argue that plaintiff thus cannot make out a prima facie case of discrimination. See, Brennan v Metropolitan Opera Assn., 284 AD2d 66, supra (counter-intuitive to infer that employer discriminated on basis of condition unknown by it), citing Geraci v Moody-Tottrup, Intl., Inc., 82 F.3d 578 (3d Cir 1996).

However, this Court finds that based on the conflicting testimony, there is at least an issue of fact as to whether or not said defendants were aware of plaintiff's sexual orientation prior to October 27, 1997.

Defendants also argue that they have put forward a legitimate, non-discriminatory reason for having discharged plaintiff, to wit, her failings as an employee. However, this Court finds that there is at least an issue of fact as to whether or not the criticisms of her work were the true reason for her termination or whether, as plaintiff claims, defendants merely endeavored to create a pretextual "paper trail" for her termination for discriminatory reasons.

However, plaintiff cannot state a claim for improper discharge (as opposed to her claim for hostile work environment) against defendants Penrose and Hutchinson because there is no dispute that said defendants did not supervise plaintiff, and had no input into either plaintiff's performance evaluations or the decision to terminate her. Accordingly, that branch of the first cause of action alleging discriminatory discharge is dismissed against said defendants only.

Hostile Work Environment

Defendants next argue that plaintiff's claim of hostile work environment is time-barred. The statute of limitations applicable to claims brought under the HRL is three years. Code § 8-502 (d). Because "the incidents constituting a hostile work environment are part of one unlawful employment practice," the action must be brought within the limitations period applicable to the last act alleged. National R.R. Passenger Corp. v Morgan, 536 U.S. 101, 118 (2002). Plaintiff commenced this action on June 17, 1999. Accordingly, she must show that at least one discriminatorily based act of harassment took place after June 18, 1996.

Plaintiff testified at her deposition that defendant Penrose made harassing comments throughout the period of her employment. However, in contrast to the specific remarks that she reports him making prior to May 31, 1996 when she complained to Temme about her treatment at the Department, she does not specify any of the objectionable remarks that Penrose may have made thereafter.

Plaintiff did, however, testify that she was discriminatorily harassed in the following ways after June 1996. Defendant Bolger refused to allow her to be paid for overtime work unless Bolger approved such work in advance; refused to have her paid for days when she was on jury duty; told her that she could not eat at her desk; told her that she could have no flexibility with regard to her lunch hour; told her that she was not permitted to keep old copies of the Law Journal; did not allow her to leave work when she was ill, or to leave work early, for any reason; [*6]and did not allow her to schedule medical appointments during working hours; repeatedly searched her files and her desk; and forbade her from leaving the Department to get snacks. Finally, plaintiff argues that she was the only employee for whom Bolger maintained a file with more than 100 notes pertaining to the employee's job performance.

None of these acts, on its face, is indicative of discrimination on the basis of sexual orientation. However, "instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus" (Carter v Chrysler Corp., 173 F.3d 693, 701 [8th Cir 1999]), and, in a hostile environment case, acts that were committed outside the statute of limitations are relevant in assessing the sexual content of acts committed during the relevant time period. Howard v Burns Bros., Inc., 149 F.3d 835 (8th Cir 1998).

Thus, there is at least an issue of fact as to whether any of the enumerated acts after June 1996 were the result of discriminatory animus. Accordingly, that portion of the motion seeking to dismiss the branch of plaintiff's first cause of action that alleges a hostile work environment is denied.

Retaliation

Code § 8-107 (7) provides, in relevant part, that: It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, ... .

Plaintiff claims that she was discharged in retaliation for having complained of discrimination in her May 1996 meeting with Temme. Defendants argue that plaintiff has failed to show that any retaliation which she may have suffered as a result of her complaint to Temme was based on her opposition to any practice forbidden by the HRL. However, this Court has already determined that there are outstanding issues of fact as to whether defendants Bolger, Rose, Manzi, Temme, and Lennon knew about plaintiff's sexual orientation prior to plaintiff's October 27, 1997 e-mail and the decision to terminate plaintiff, whether she was subject to discriminatory treatment as a result of her sexual orientation and as to whether she was terminated for discriminatory reasons. Accordingly, that portion of defendants' motion seeking to dismiss plaintiff's second cause of action is denied.

Remaining Claims

Likewise, this Court finds that there are issues of fact which preclude the granting of summary judgment with respect to plaintiff's third and fourth causes of action, which allege that defendants aided, abetted, incited, compelled or coerced the doing of acts forbidden under the Code, in violation of Code § 8-107.6, and that defendants coerced, intimidated, threatened or interfered with plaintiff's rights, in violation of Code § 8-107.19 respectively.

Accordingly, those portions of defendants' motion seeking to dismiss said claims are also denied.

A pre-trial conference shall be held in IA Part 12, 60 Centre Street, Room 341 on March 9, 2005 at 10:00 a.m.

This constitutes the decision and order of this Court. [*7]

Dated: February , 2005

BARBARA R. KAPNICK

J.S.C.

Footnotes

Footnote 1: Prior to this time, plaintiff had worked at S&P on a freelance and temporary basis.

Footnote 2:Ms. Leon has never appeared in this action and plaintiff has not pursued her case as to said defendant.

Footnote 3:Plaintiff did not depose either Hensen or Van Horne, and has not presented an affidavit from either of them.

Footnote 4: Plaintiff also testified at her deposition that Penrose had a collection of phallic-shaped objects in his office, but does not argue, that Penrose installed the collection with her in mind, or that he actively drew her attention to it.

Footnote 5:Defendant Rose had earlier contacted the Human Resources department, complaining that plaintiff had left work without finishing a copying job that needed to be done that day; that plaintiff was absent from her desk too frequently; and that plaintiff lacked adequate proficiency on the computer.