385 F.3d 210 (2nd Cir. 2004), 03-7366, Petrosino v. Bell Atlantic

Docket Nº:Docket Nos. 03-7366, 03-7708.
Citation:385 F.3d 210
Party Name:Lisa PETROSINO, Plaintiff-Appellant, v. BELL ATLANTIC, Defendant-Appellee.
Case Date:September 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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385 F.3d 210 (2nd Cir. 2004)

Lisa PETROSINO, Plaintiff-Appellant,


BELL ATLANTIC, Defendant-Appellee.

Docket Nos. 03-7366, 03-7708.

United States Court of Appeals, Second Circuit

September 29, 2004

Argued: Feb. 11, 2004.

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Adrienne R. Baranoff, Decker & Decker, Staten Island, NY, for Plaintiff-Appellant.

Michael A. Kalish (Deborah S. Markowitz, on the brief), Epstein Becker & Green, P.C., New York City, for Defendant-Appellee.

Julie L. Gantz (Eric S. Dreiband, General Counsel; Carolyn L. Wheeler, Acting Associate General Counsel; Vincent J. Blackwood, Assistant General Counsel, on the brief), U.S. Equal Employment Opportunity Commission, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Before: JACOBS, SACK, and RAGGI, Circuit Judges.

RAGGI, Circuit Judge.

Plaintiff-Appellant Lisa Petrosino appeals from an order of the United States District Court for the Eastern District of New York (John Gleeson, Judge) entered March 24, 2003, granting summary judgment to Defendant-Appellee Bell Atlantic 1 on Petrosino's claims of sex discrimination in the form of a hostile work environment, a failure to promote, and constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law§ 296, and the New York City Administrative Code, N.Y. City Admin. Code § 8-107. See Petrosino v. Bell Atlantic, No. 99 CV 4072(JG), 2003 WL 1622885 (E.D.N.Y. Mar.20, 2003). The Equal Employment Opportunity Commission ("EEOC"), appearing as amicus curiae, submits a brief in support of Petrosino's challenge to the district court's dismissal of her hostile work environment claim. Petrosino herself further appeals the district court's order entered June 27, 2003, denying her motion for relief from judgment based on newly discovered evidence, see Fed.R.Civ.P. 60(b), and for sanctions based on Bell Atlantic's alleged failure to disclose the evidence in pre-trial discovery, see Fed.R.Civ.P. 37. For the reasons explained below, we affirm the district court's grant of summary judgment as to Petrosino's promotion and discharge claims, but we reverse the award as to the hostile work environment claim. We further affirm the district court's denial of sanctions and vacate its denial of Rule 60(b) relief, that motion being rendered moot by our partial reversal of summary judgment. The case is remanded to the district court for further proceedings consistent with this opinion.

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I. Petrosino's Employment at Bell Atlantic

From September 1990 until February 1999, Lisa Petrosino was employed by Bell Atlantic as an Installation and Repairs ("I & R") technician at its Edgewater Garage on Staten Island, New York. For the last seven years of her employment, she was the only female I & R technician at the Edgewater Garage. Petrosino's work consisted of installing and repairing residential and commercial telephone systems, cables, and support systems on Staten Island, both within buildings and on telephone poles. Each morning, Petrosino and her co-workers would meet at the garage with their supervisors for approximately half an hour, during which time they received the day's assignments. Occasional interaction with co-workers and supervisors would also occur throughout the day.

A. The Hostile Work Environment

Petrosino asserts that throughout her employment at Bell Atlantic's Edgewater Garage, she was subjected to a work environment hostile to women. The hostility took two forms: (1) persistent sexually offensive remarks and sexual graffiti that conveyed a low regard for women, and (2) specific comments or actions toward Petrosino that made plain that this negative view of women extended to her and to her work performance.

1. The General Work Atmosphere

Petrosino has adduced evidence demonstrating that the work environment at the Edgewater Garage was more reminiscent of a locker room than a place of business. 2 Profanity was commonplace, and crude humor was routine. But the focus of Petrosino's complaint is not on this conduct but on the sexually demeaning conversations that were also an accepted part of the daily work environment. Although male co-workers often insulted each other in these exchanges, the substance of their remarks always conveyed a profound disrespect for women. 3 Further, when working outdoors, Petrosino would constantly confront crude sexual graffiti scrawled by co-workers inside terminal boxes. Among the images depicted were headless women with their legs in the air, women's legs wide open, men with their penises out, and men having sex with animals. A further theme of the graffiti was that Bell Atlantic employees (male and female) performed sex acts on supervisors to advance their careers.

2. Gender-Based Comments Directed Toward Petrosino

Petrosino's co-workers made plain that she was not exempted from the generally low view of women communicated by the sexually offensive garage banter and terminal-box graffiti. A few months after she began working at Bell Atlantic, at a December

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1990 Christmas party, Petrosino was physically attacked from behind in a parking lot by co-worker Charles Degenhardt, who groped and kissed her. When Petrosino shouted for help, other employees pulled Degenhardt away, but for months thereafter, the incident was a "big joke" at the garage and the subject of terminal-box graffiti. Petrosino Dep., July 20, 2001 (hereinafter "Petrosino Dep. III"), at 35. 4 In the ensuing years, frequent disparaging remarks were made with reference to Petrosino's "ass," her "tits," her menstrual cycle, her weight, and her eating habits, and at least one terminal-box drawing depicted her performing a sex act on a supervisor. Further, the disparagement was not limited to private exchanges, but extended to supervisors' comments relating to her job performance.

For example, Petrosino's direct supervisor from 1990 to 1992, Robert Sharib, punctuated his conversations with her with hostile gender-based comments, referring to Petrosino as "a damn woman," Petrosino Dep., Mar. 15, 2000 (hereinafter "Petrosino Dep. I"), at 278, telling her to calm her "big tits down," Petrosino Aff. ¶ 18, and dismissing her job concerns as attributable to her menstrual cycle, see id. ("He accused me several times of being 'on the rag' ... whenever I had a dispute with him ...."). On one occasion, Sharib humiliated Petrosino by taking a doctor's note that she had brought to work, enlarging it to poster size, and displaying it in the office.

Petrosino also points to gender-hostile remarks by Tom Archdecon, her second-- and third-level manager throughout her employment at Bell Atlantic. In discussions with Petrosino about her work, Archdecon not only told her that as an individual, she was "too thin-skinned" to belong in her work assignment, he cast this observation "all the time" in gender-wide terms, stating that women as a group were too "simple," "too sensitive," and "too damn thin-skinned" to work at the garage. Petrosino Dep. I, at 277-79. Over the years, several first-level managers told Petrosino that she would never be permitted to assume managerial responsibilities as long as Archdecon was an I & R supervisor. See infra at [11-12].

Archdecon's gender hostility toward Petrosino was echoed by Frank Mangiero, Petrosino's direct supervisor from 1996 to 1997. On "many occasions," he called her "a damn woman" and told her that if she could not handle working in I & R, "maybe women can't handle it." Petrosino Dep. II, at 502. In front of Petrosino's male co-workers, he also linked her work deportment to her menstrual cycle, telling her: "Don't give me a hard time just because you're on the rag." Petrosino Dep. III, at 40. Mangiero repeatedly cited Petrosino for minor job infractions, such as using a company vehicle to get coffee for another supervisor and playing her truck radio too loudly, without similarly reporting male employees. He made her repeat tasks unnecessarily. On one occasion, he refused Petrosino's request to use a bucket truck to perform an assignment safely, only to allow a male worker to use the truck when the task was reassigned to him.

3. Petrosino's Complaints of Harassment

Petrosino asserts that throughout her employment she complained informally and formally about the gender-hostile environment

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at the Edgewater Garage. For example, she repeatedly told co-workers and supervisors that she found the constant sexual banter at the garage offensive and demeaning, but no steps were ever taken to address the problem. To the contrary, offending workers ridiculed her concerns by offering sarcastic apologies, only to persist thereafter in their vulgar exchanges.

In 1992, Petrosino filed a labor grievance charging Robert Sharib with harassment. 5 Although she prevailed, she asserts no actual discipline was imposed. Instead, Sharib and Petrosino were sent to a seminar to help them work out their differences. When Petrosino attempted to use the opportunity to voice her concerns, Sharib told her: "Just keep your mouth shut and do what I tell you." Petrosino Dep. I, at 206. Petrosino complained about this comment to a senior manager, who offered to transfer her to Brooklyn, and assured her she would have no further problems. Soon after Petrosino declined the transfer offer, Sharib scolded her for going over his head and warned her never to do that again. He then relieved her of responsibilities that would have prepared her for a future management position. 6

Sometime in 1997 or 1998, a female administrative manager asked Petrosino why she no longer worked overtime. Petrosino explained that she avoided overtime to "stay away" from her then-supervisor, Mangiero, who "harrasse[d her] and bother[ed her]." Petrosino Dep. III, at 70-71...

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