Mack v. Otis Elevator Co., 02-7056.

• Citation: 326 F.3d 116
• Decision Date: 11 April 2003
• Docket Number: No. 02-7056.,02-7056.
• Parties: Yasharay MACK, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY and Local 1 International Union of Elevator Constructors, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

326 F.3d 116

Yasharay MACK, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY and Local 1 International Union of Elevator Constructors, Defendants-Appellees.

No. 02-7056.

United States Court of Appeals, Second Circuit.

Argued: November 1, 2002.

Final Submission: January 3, 2003.

Decided: April 11, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Saul D. Zabell, Somma, Zabell & Associates, LLP (Michael G. McAlvin, of counsel), Farmingdale, NY, for Plaintiff-Appellant.

Kenneth W. Gage, Day, Berry & Howard LLP (Jamal M. Dawkins, of counsel), Stamford, CT, for Defendant-Appellee Otis Elevator Company.

Richard H. Markowitz, Markowitz & Richman (Nancy A. Walker, of counsel), Philadelphia, PA, for Defendant-Appellee Local 1 International Union of Elevator Constructors.

Nicholas M. Inzeo, Philip B. Sklover, Vincent J. Blackwood, Julie L. Gantz, Equal Employment Opportunity Commission, Washington, D.C., submitted a brief for Amici Curiae Equal Employment Opportunity Commission.

Before: FEINBERG, CARDAMONE, and SACK, Circuit Judges.

SACK, Circuit Judge.

The plaintiff, Yasharay Mack, appeals from the judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge), which granted the defendants' motion for summary judgment and dismissed the complaint. We conclude that the district court correctly granted the defendants' motion with respect to Mack's claims under Title VII alleging failure to represent, unlawful constructive discharge, and retaliation, but erred in granting the motion with respect to Mack's hostile work environment claim. Accordingly, we affirm in part and vacate and remand in part.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). A district court must grant a motion for summary judgment if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is "material" for these purposes if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The recitation of the factual background of this appeal upon which we are about to embark paints at least one employee of the defendant Otis Elevator Company ("Otis") in decidedly unflattering colors. We therefore emphasize at the outset that at this stage of the proceedings we are required to construe the evidence in the light most favorable to the plaintiff, and much of the evidence the plaintiff presents is her own testimony. As a result, the account that follows may or may not reflect the facts as they are, or as they may be found at trial. See Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001).

BACKGROUND

The plaintiff Yasharay Mack, an African-American woman, worked as an elevator mechanic's helper for Otis from July 1999 through May 2000. Mack was assigned to work assisting six mechanics at the Metropolitan Life Building, an office building with sixty elevators located at 200 Park Avenue in New York City ("200 Park").

The collective bargaining agreement ("CBA") between Otis and Local 1 International Union of Elevator Constructors ("Local 1" or "the Union") governing the employment of Mack and her co-workers at 200 Park provides that one mechanic is designated "mechanic in charge" whenever there are five or more Otis employees on one job, as there were at 200 Park. CBA at 23. James Connolly was the mechanic in charge at the site. Under the terms of the CBA, the mechanic in charge has "the right to assign and schedule work, direct the work force, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures." Id. According to Connolly's deposition testimony, he assigned work to the other mechanics and helpers, including Mack, as he was supposed to under the CBA. Connolly's supervisor, Phil Gallina, maintained an office at 200 Park but was seldom there.

According to Mack's deposition testimony, on her first day on the job at 200 Park, Connolly said to her, "I was curious to know what you look like and I have to say you are quite an attractive young lady." Mack Dep. at 83. Connolly then introduced her to another mechanic saying, "Tell me she is not the most attractive helper you've ever had. She is sticking with me." Id. Connolly continued to comment on Mack's appearance, telling her repeatedly, for example, that she had a "fantastic ass," id. at 125-26, "luscious lips," id. at 128, and "beautiful eyes," id. at 132.

Connolly regularly changed out of his uniform in front of Mack at the end of his shift, stripping down to his underwear and adjusting himself before changing into his street clothes. He also boasted to Mack about his sexual exploits. On one occasion, in front of all the other mechanics, Connolly grabbed Mack by the waist, pulled her onto his lap, tried to kiss her and touched her buttocks. Connolly explicitly questioned Mack's place in the elevator business as a woman and an African American. He told her that "spics" and "niggers" did not "belong in the business," id. at 103, and that he did not "know why women are on this job anyway," id. at 138. Connolly, in his deposition testimony, disputed most of Mack's allegations, although he admitted to changing into his street clothes in front of her.

Mack further testified at her deposition that in November 1999, she repeatedly complained to Gallina about Connolly's behavior, and asked Gallina to transfer her to a different department so that she would not have to work with Connolly. Mack told Gallina that she was "plagued with a lot of sexist issues with [Connolly]," id. at 86, and that Connolly was "always making rude and sexist comments" to her, id. at 205. Mack also stated that she complained to Craig Reiff, a Union shop steward, in April or May of 2000, and similarly requested that Reiff transfer her to a different location.

Mack further testified that she repeatedly complained of Connolly's conduct to the other mechanics on her team, who, she says, often witnessed and sometimes participated in her mistreatment. Indeed, during their depositions, co-worker Richard Morrison admitted telling Mack to "Come on, bitch," Morrison Dep. at 31, and co-worker Gerard Lombardo admitted telling Mack that she was "attractive" and "smelled good," Lombardo Dep. at 80-81. Lombardo further stated that he witnessed Connolly frequently commenting on Mack's appearance. Co-worker Stephen Hook witnessed the lap incident, although he said that Mack was laughing when it occurred.

At the time of these events, Otis had a comprehensive policy in place that prohibited racial discrimination and sexual harassment in both its quid pro quo and hostile work environment manifestations. The policy provided several avenues of complaint for employees who thought themselves aggrieved, including an "800" telephone number that an employee could use to report the sort of incidents alleged here. The policy also instructed aggrieved employees to inform their "supervisor, unless he/she is the alleged harasser." Otis Elevator Co. Policy on Harassment in the Workplace. Mack concedes that she was aware of the policy. She testified, however, that she did not take advantage of all the avenues provided because she did not want to be considered "a rat." Mack Dep. at 198. She also testified that she knew that Connolly "had a reputation to get away with things and I was too new in the field to start trouble." Id.

According to Mack, as part of his responsibilities in assigning and overseeing daily tasks, Connolly also assigned overtime work; the defendants counter that this was merely a clerical responsibility. Compare Defendants' Rule 56 Statement of Facts ¶ 16, with Plaintiff's Rule 56.1 Counterstatement of Facts ¶ 16. Mack testified that "[t]owards the end when things got bad with Connolly he gave me very little [overtime]. That's what he did when he was angry with people." Mack Dep. at 109. On May 16, 2000, according to Mack, Connolly, dressed only in his underwear, threatened Mack: "If you don't like the way I'm talking to you, if you don't like the way I am, you can go complain to Phil Gallina, you can complain to [Local 1 President] John Green.... I don't give a shit. I get away with everything. I always have and I always will.... You're nobody.... If you don't like the way I treat you, you can get the fuck out." Id. at 303-04. Mack replied, "I'm not going to quit my job because you're an idiot." Id. at 304.

Shortly thereafter, Mack's father contacted a Union representative and complained about his daughter's treatment. A meeting was arranged for Union representative Tony Orriga, Otis representative Paul Barrett, Mack and her father. At the meeting, Mack described Connolly's conduct, and Orriga and Barrett promised an investigation and offered to transfer Mack to their Rockefeller Center location. Mack never returned to work.

On October 13, 2000, Mack brought suit against Otis in the United States District Court for the Southern District of New York under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., alleging that Otis had subjected her to a hostile work environment, had constructively...