364 F.3d 54 (2nd Cir. 2004), 03-7409, Mormol v. Costco Wholesale Corp.

Docket Nº:03-7409.
Citation:364 F.3d 54
Party Name:Jessica MORMOL, Plaintiff-Appellant, v. COSTCO WHOLESALE CORPORATION, Defendant-Appellee, John Ziermann, Defendant.
Case Date:April 06, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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364 F.3d 54 (2nd Cir. 2004)

Jessica MORMOL, Plaintiff-Appellant,



John Ziermann, Defendant.

No. 03-7409.

United States Court of Appeals, Second Circuit

April 6, 2004

Argued: Feb. 19, 2004.

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Raymond Nardo, Mineola, NY, for Plaintiff-Appellant.

Lorie Almon (Brendan Sweeney, of counsel), Seyfarth Shaw LLP, New York, NY, for Defendant-Appellee.

Before: OAKES, KEARSE, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Plaintiff Jessica Mormol appeals from a grant of summary judgment to defendant Costco Wholesale Corporation ("Costco"), entered by the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge). Plaintiff claimed that, while employed at Costco in December 1999 and January 2000, she was sexually harassed by her manager, defendant John Ziermann ("Ziermann"), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York's Human Rights Law, N.Y. Exec. Law § 296. Because we conclude that no reasonable juror could find that plaintiff suffered a tangible employment action or faced a hostile work environment, we affirm.


At the time of the alleged incidents of harassment, which we take as true, plaintiff was employed by Costco as a part-time employee in the Bakery Department, and Ziermann was the department manager. In applying to work for Costco, Ziermann had disclosed that he had been convicted in Florida of possessing a "counterfeiting access device," but had not disclosed a conviction in Florida for sexual battery of a 15-year-old female co-worker.

Plaintiff claims that, on December 27, 1999, Ziermann told her that he would not approve a vacation request she had made if she did not have sex with him. Plaintiff further claims that Ziermann offered, if plaintiff would have sex with him, to punch plaintiff's time-card that night such that she would be paid for hours that she was not at work. Plaintiff testified at her deposition that she did not give in to Ziermann's request. A few days later, she left for a month-long unpaid vacation in Santo Domingo. Ziermann allegedly telephoned plaintiff during her vacation, telling her to return to work earlier than she had planned, and threatening that if she did not, she would lose her job or be transferred to work in the Food Service Department. According to plaintiff, she then did cut short her vacation.

According to plaintiff, on the day that she returned to work, January 22, 2000, Ziermann handed her a note. The note said, inter alia, that if plaintiff would have sex with him, Ziermann would give her money, make her a full-time employee but permit her to work part-time and simply punch her card as if she were working full time, and take her on vacations and to a fitness club. Plaintiff declined Ziermann's offer, and Ziermann then threatened to reassign her to the Food Service Department. Plaintiff was not reassigned to Food Service, but she claims that Ziermann did reduce her working hours, cutting her schedule for the coming week from the seven days that Ziermann had promised to three days.

On January 23, 2000, the day after the alleged incident involving the note, Ziermann "wrote up" plaintiff for being five

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minutes late from a break. In this "employee corrective consultation" notice, Ziermann added by hand that the "next writeup will result in suspension and or termination."

On January 24, 2000, plaintiff reported Ziermann's conduct to the warehouse management. She spoke to Costco's Assistant General Manager, and then to the General Manager, and they initiated an investigation. That same day, two managers interviewed Ziermann, who denied plaintiff's allegations. Asked about plaintiff's claim that he cut her hours from the promised seven-day week, Ziermann claimed that he had initially scheduled her to work seven days during the week beginning January 24, 2000, because he mistakenly thought that a "muffin promotion," which would require additional Bakery Department staff, was scheduled for that week. Ziermann explained that he reduced plaintiff's schedule to three days when he discovered that the muffin promotion was actually scheduled for the week beginning January 31, 2000.

As a result of the investigation, Costco suspended Ziermann on January 26, 2000, the next day after plaintiff's complaint on January 24 that he was scheduled to work. Costco ultimately fired Ziermann, effective February 3, 2000. Plaintiff claims that at some point Ziermann telephoned plaintiff's sister and threatened to kill plaintiff. At oral argument, plaintiff's counsel stated that Ziermann made the threat after Ziermann had been suspended. Plaintiff reported this incident to Costco and the police. Thereafter, Costco provided plaintiff with a security escort, a cell phone, and a two-way radio for her safety, and also offered to assist her with temporary housing and with applying for an order of protection, both of which she declined. Plaintiff eventually became a full-time employee, and was still employed full time at Costco as of the date of oral argument before us.

Plaintiff brought a Title VII claim for sexual harassment based on quid pro quo and hostile work environment theories. On Costco's motion for summary judgment, the District Court made "findings of fact" that plaintiff did not suffer any "tangible employment action" as a result of the alleged harassment.1 The Court determined that "[a]s a result of the alleged harassment, Plaintiff's schedule for a period of one week was reduced from seven days to three or four days. Plaintiff did not, however, claim any lost wages as a part of her damages claim associated with the instant lawsuit." The Court concluded that plaintiff had failed to make out a prima facie case of sexual harassment, under either a quid pro quo or a hostile work environment theory. Finding plaintiff's federal claims without merit, the Court then declined to exercise supplemental jurisdiction over her state law claim. Finally, the Court dismissed plaintiff's claims against Ziermann, noting that "it is unclear whether Defendant Ziermann was ever properly served," and stating further that there is no individual liability under Title VII. The District Court's judgment, as entered by the Clerk, granted Costco's motion for summary judgment, but did not reflect the dismissal without prejudice of the state law claim.

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In deciding a motion for summary judgment, the facts are viewed in the light most favorable to the non-moving party, drawing all reasonable inferences in her favor. See, e.g., Young v. County of Fulton, 160 F.3d 899, 901 (2d Cir. 1998). The burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review the District Court's grant of summary judgment de novo. See, e.g., Young, 160 F.3d at 902.

Title VII prohibits employers from "discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). The central issue, therefore, is whether Costco discriminated against plaintiff in the terms and conditions of her employment...

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