Alfano v. Costello
| Decision Date | 25 June 2002 |
| Docket Number | Docket No. 01-7042(XAP).,Docket No. 00-9304(L). |
| Citation | 294 F.3d 365 |
| Parties | Georgiann E. ALFANO, Plaintiff-Appellee-Cross-Appellant, v. Joseph J. COSTELLO, Susan A. Connell, Individually and as Deputy Superintendent of Administration at Midstate Correctional Facility, Gordon Wells, Individually and as a Captain at Midstate Correctional Facility, John Doe, Individually and as Employees of the Midstate Correctional Facility, James Raymond, Individually and as an agent of the Inspector General's Office, James Countryman, Individually and as Deputy Superintendent of Security at Midstate Correctional Facility, Kevin Buttimer, Individually and as Recreational Supervisor at Midstate Correctional Facility, Scott Carlsen, Individually and as Deputy Superintendent of Programs at Midstate Correctional Facility, William Fenton, Individually and as a Captain at Midstate Correctional Facility, Thomas A. Coughlin, III, Individually and as Former Commissioner of the New York State Department of Correctional Services, Phillip Coombs, Individually and as Commissioner of the New York State Department of Correctional Services, Dennis Thompson, Individually and as Deputy Superintendent of Security at Midstate Correctional Facility, Glenn S. Goord, Individually and as an agent of New York State Department of Correctional Services, Michael G. Brown, Individually and as a Lieutenant at Midstate Correctional Facility, James Deering, Individually and as a Lieutenant at Midstate Correctional Facility, New York State Office of the Inspector General, State of New York, Midstate Correctional Facility, New York State Department of Civil Service, New York State Department of Audit and Control, Defendants, New York State Department of Correctional Services, Defendant-Appellant-Cross-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrea Oser, Assistant Solicitor General, Albany, N.Y. (Eliot Spitzer, Attorney General of the State of New York, Nancy A. Spiegel, Assistant Solicitor General, on the brief), for Defendant-Appellant-Cross-Appellee.
Michael J. Sciotti, Hancock & Estabrook, LLP, Syracuse, NY, for Plaintiff-Appellee-Cross-Appellant.
Before: WALKER, Chief Judge, JACOBS and SACK, Circuit Judges.
A jury in the United States District Court for the Northern District of New York (Mordue, J.) awarded $150,000.02 in emotional distress damages on the claim of Georgiann Alfano that during her employment as a corrections officer she experienced a "hostile work environment" amounting to unlawful sex discrimination under 42 U.S.C. § 2000e et seq ("Title VII"). (Alfano's unlawful termination claim was dismissed pre-trial; and her disparate treatment claim was dismissed at the close of evidence.) Her employer, defendant New York State Department of Correctional Services ("DOCS"), timely moved post-verdict for judgment as a matter of law, arguing:
• That the jury should not have been permitted to consider, for purposes of assessing the hostile work environment claim, certain incidents of alleged harassment that the district court, in earlier dismissing Alfano's disparate treatment claim, ruled were not motivated by gender-based animus;
• That the remaining incidents of harassment, while concededly sex-based, were insufficiently numerous and significant as a matter of law to support a hostile work environment claim; and
• That the evidence of emotional distress was too vague and conclusory to support the requisite finding of concrete harm; that it consisted entirely of Alfano's own uncorroborated testimony; and that it failed to link any emotional distress to the workplace conduct of which Alfano had complained.
On DOCS's post-trial motion, the district court: [1] decided that the incidents ruled immaterial to the disparate treatment claim were properly submitted for the jury's consideration of the hostile work environment claim; [2] did not reach, therefore, the issue of whether the remaining incidents were alone sufficient to support the finding of a hostile work environment; and [3] ruled that the evidence of emotional distress was sufficient to support the award of damages.
DOCS now appeals the final judgment awarding Alfano compensatory damages. Alfano cross-appeals the pre-trial dismissal of her claim that her employment termination constituted unlawful discrimination.
We conclude that the evidence at trial was insufficient as a matter of law to establish a hostile work environment under Title VII. Accordingly, we reverse the judgment without reaching the distinct issue of whether Alfano adduced sufficient evidence of emotional distress. And we affirm the dismissal, as time-barred, of the claim that her termination from DOCS constituted unlawful sex discrimination.
DOCS hired Alfano in 1980; this lawsuit concerns her employment from 1988 through mid 1994 as a sergeant at DOCS's Midstate Correctional Facility ("Midstate"), a medium security prison in Marcy, New York, housing approximately 2000 male inmates.
Twelve incidents, between December 1989 and February 1994, were laid before the jury in connection with Alfano's claim that her work environment was permeated by hostility based on sex.
Four of those incidents had an overtly sexual overtone; that is, a jury could conclude that she was made the object of some embarrassment or humiliation aimed at her as a woman:
• In the fall of 1991, Captain William Fenton told Alfano that she should not eat carrots, bananas, hot dogs or ice cream on the job because she did so in a "seductive" manner. Fenton explained that he had been told by Lieutenant Michael Brown about an incident — not witnessed by Brown — in which Alfano allegedly simulated oral sex with a carrot in the Midstate dining area.
• In December 1991, Alfano discovered in her workplace mailbox a carrot and two potatoes put there by someone who had the idea of arranging them to suggest male genitalia. Her discovery was made in the presence of ten to fifteen fellow employees. Alfano reported the incident to her watch commander (on that occasion either Lt. Brown or Lt. James Deering). Deering testified that he laughed at the incident.
• On February 9, 1992, a spurious notice was posted in the visiting room (and perhaps was handed to Alfano), purporting to be signed by Midstate's Superintendent, stating that
• In February 1994, Alfano found in her mailbox a hand-drawn cartoon depicting an officer under her supervision, Anthony Farda, making vulgar sexual remarks. Alfano had previously been investigated — and cleared — for allegedly inappropriate physical contact with Officer Farda while on duty.
The remaining eight incidents cited by Alfano are administrative and personnel decisions as to which she claims she was treated unfairly because she is a woman. It appears that these eight incidents are the ones that the district court ruled could not support the disparate treatment claim:
• In December 1989, Lt. Brown caused to be placed in Alfano's personnel file a memorandum detailing Alfano's verbal abuse of Brown, her superior officer. Without challenging the substance of the incident recounted in the memo, Alfano showed that in violation of DOCS policy Brown failed to give Alfano notice that this document was to be placed in her file. Alfano discovered the memo in December 1991, and it was promptly removed at her request.
• Brown gave Alfano overall ratings of "good" on her annual performance evaluations in January 1990 and January 1992, even though (as the jury could find) she deserved higher ratings. (These two evaluations are counted as two incidents.) Alfano contested the January 1990 evaluation on the ground that Brown had supervised her for only two months in 1989. DOCS ordered that the evaluation be redone by all three of Alfano's supervisors (including Brown), but Brown apparently redid it by himself in April 1990; the evaluation remained "good," and Alfano evidently did not appeal it (though she submitted a letter indicating disagreement). Alfano appealed the January 1992 evaluation, and her rating was changed to "excellent." (The January 1991 evaluation was not contested: Brown had rated Alfano "excellent.")
• In October 1990, a person visiting an inmate made an obscene gesture at Alfano. Alfano reported this to Brown, who issued a warning to the visitor. Alfano had expected that Brown would order the visitor removed forthwith, and contended at trial that allowing the visit to continue undermined her authority.
• In December 1990, Alfano apparently left her post for three hours to do paperwork in an employee workroom. DOCS's personnel practice is to deal with minor performance problems orally without a written memorandum in an "informal counseling" conducted by the supervisor, and to deal with more serious or repeated misconduct in a "formal counseling" that results in a memorandum that remains in the personnel file for at least a year. Alfano's off-post preparation of paperwork in the employee workroom drew a formal counseling from Brown. Other officers had committed that offense (though none was absent from post for as long as three hours), and they had been reprimanded for being off-post in that room for that purpose, but according to Alfano, she was the only one who was formally counseled for that offense.
• In December 1993, Alfano angrily slapped papers onto Lt. Deering's desk in the presence of other officers, which precipitated an "informal counseling" by Deering. Alfano contended that the informal counseling was improperly done because Deering invited a captain and a union representative to be present, and caused a memorandum of the event to placed in Alfano's personnel file.
• In December 1991, Brown...
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