Pucino v. Verizon Commc'ns Inc

Decision Date13 August 2010
Docket NumberDocket No. 09-1306-cv.
Citation618 F.3d 112
PartiesJoan PUCINO, Plaintiff-Appellant,Debora Cole and Maryanne Dauer, Plaintiffs,v.VERIZON COMMUNICATIONS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

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Stephen Bergstein (Helen G. Ullrich, on the brief), Bergstein & Ullrich LLP, Chester, New York, for Plaintiff-Appellant.

Carla R. Walworth (Christopher Reilly & Stephen B. Kinnaird on the brief), Paul, Hastings, Janofsky & Walker LLP, New York, New York, for Defendant-Appellee.

Gail S. Coleman (James L. Lee, Deputy General Counsel; Lorraine C. Davis, Acing Associate General Counsel; Carolyn L. Wheeler, Assistant General Counsel on the brief), United States Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae United States Equal Employment Opportunity Commission.

Before WINTER, RAGGI, and LIVINGSTON, Circuit Judges.

WINTER, Circuit Judge:

Joan Pucino appeals from Judge Gardephe's grant of summary judgment dismissing her claim that Verizon Communications, Inc., maintained a hostile working environment at the garage where she was employed. We vacate and remand.

BACKGROUND
a) Factual Background

Given that this appeal is from a grant of summary judgment, we view the evidence in the light most favorable to appellant. See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008). Our recitation of the facts, therefore, is simply a description of the evidence appellant proffered in opposition to the motion for summary judgment.

Pucino began working for Verizon's predecessor company in 1982, at first as a long-distance operator and then, from 1991 until the end of 2002, as a field technician in Newburgh, New York. Field technicians install and repair telecommunications cable. Pucino worked at Pierce's Road Garage from 1991 to 1995 and was then transferred to the Union Avenue Garage, where she worked until her retirement in December 2002. The Union Avenue Garage employed anywhere from sixty to one-hundred-and-ten field technicians at a time during this period, but never more than five of them were women at any one time.

Justin Hinspeter and Kevin Moore served as foremen at the Union Avenue Garage between 1995 and 2001. Foremen were responsible for assigning work and equipment to technicians and for monitoring the quality of that work. Hinspeter and Moore routinely assigned her work that was less desirable than the work assigned to male workers. Pucino was frequently assigned to work alone in parts of Newburgh considered unsafe. Men were never assigned to work alone in those areas. Hinspeter and Moore also insisted that Pucino first call one of them when she needed assistance on a job, while the two foremen allowed male workers to call directly to dispatch for help. The foremen often refused Pucino's requests for help when she called and would instead show up to monitor her work. On several occasions, Hinspeter would deny Pucino's requests for assistance on the ground that no one was available to help but then, in Pucino's presence, would grant a male worker's request for help. Hinspeter told Pucino to “get lost” and to “go kill herself” on occasions when she pointed out this inconsistency in treatment.

Pucino also stated that Hinspeter would routinely change her work location even though it was common practice to allow technicians to work continuously in one area of the city so that they could become familiar with it. On at least ten occasions, Hinspeter skipped over her when it was her turn to receive overtime work, even though such work was usually assigned equally to all field technicians on a rolling basis.

Two of Pucino's co-workers corroborated Pucino's account of Hinspeter's behavior with respect to work assignments. Maryanne Dauer stated that Hinspeter also sent her into two-man areas of Newburgh alone even though men never had to work there alone. Dauer received such assignments about once a week while working out of the Union Avenue Garage. Robert Burton, a male coworker in the Union Avenue Garage, stated that he had observed Hinspeter and Moore harass Pucino when she requested assistance on assignments that were routinely “two-man” jobs. Hinspeter once threatened Burton with discipline because he had asked Pucino to help him out on a project where the use of a second worker was routine and never questioned by the foremen. Hinspeter even warned Burton to stay away from Pucino, saying that Pucino was “trouble.” He thereafter questioned Burton closely whenever Burton worked with Pucino.

Beyond work assignments, Pucino stated that, on many occasions, Hinspeter would grant her male co-workers access to the very tools that he had just told her were unavailable. She specifically recalled one occasion when Hinspeter granted Andy Embler's request for a “B tool” (used to open boxes) when he had denied the same request from her moments earlier. Denial of tools made it difficult, if not impossible, for her to perform her work properly.

The Verizon foremen routinely denied Pucino access to bucket trucks even though she was eligible for them under company policy. A bucket truck is a large pick-up truck equipped with an enclosed platform attached to a mechanical arm that, when lifted, makes it possible to reach overhead telecommunications wires. Field technicians prefer bucket trucks to the alternative-vans with large ladders-because the trucks are safer, easier to use, and reach much higher. Because of their desirability, the foremen made permanent and temporary bucket truck assignments to men based on seniority. Pucino stated that foremen at both Pierce's Road Garage and Union Avenue Garage would frequently deny her requests for a bucket truck notwithstanding her seniority over the male co-workers who received them. She specifically recalled that co-workers Ted Saltershack, Paul Martinex, and Bob Wilkens received bucket truck assignments even though she had more seniority than any of them. Pucino also stated that the few trucks she did receive were older and in worse shape than those assigned to less senior males and that even these trucks were soon given away to other workers or else taken out of service because of their age.

Dauer described a similar experience with bucket truck assignments. Dauer worked at Pierce's Road Garage from 1995 until July 2001, when she was transferred to the Union Avenue Garage along with co-worker Danny Piperato. Both Dauer and Piperato took their permanently-assigned trucks with them. Upon Dauer's arrival at the Union Avenue Garage, Hinspeter gave her truck to a male worker with more seniority while allowing Piperato to keep his truck at the expense of more senior males. Dauer further recalled that many of her requests for a temporary bucket truck were denied in favor of less senior male workers.

Pucino stated that Hinspeter and Moore often reprimanded her for behavior that was commonplace, and unremarked upon, among the men. For example, although there was no company policy against using public bathrooms and male co-workers openly used them while out in the field, Hinspeter and Moore reprimanded Pucino for being “off the job” on occasions when she used public facilities. Pucino preferred public bathrooms because the bathrooms where she worked were unisex, generally dirty, and also lacked doors or other security to prevent men from walking in. Dauer also attested to the bad conditions of Verizon's unisex bathrooms. Dauer stated that, while working at Pierce's, she became aware of the “off the job” reprimands Pucino had received for using public bathrooms. Fearing similar discipline, Dauer began to document her own travel time to bathrooms in Verizon offices several miles from where she worked, which were segregated by sex.

As another example of discriminatory discipline, Pucino testified that Hinspeter and Moore had reprimanded her for stopping at a store for a cold drink, even though it was commonplace for male workers to do the same on hot days. The foremen then implemented a new policy prohibiting such stops and openly blamed Pucino for that policy.

Finally, Pucino stated that Hinspeter and Moore subjected her to harsher, more public criticism than male co-workers. Hinspeter “constantly” called Pucino a “bitch” and “stupid” and also would tell her to “go fuck herself.” And while male workers were usually criticized privately for their mistakes, Pucino's affidavit claimed that Hinspeter and Moore had repeatedly singled her out for intense and often public criticism.

There was evidentiary corroboration of these claims. Gregory Irvin, a union shop steward who observed the workplace, said that Hinspeter would insult male co-workers by calling them “just as productive as [Pucino].” Irvin further said that “Hinspeter singled [Pucino] out for rougher, longer and more vicious treatment than anyone else.” Burton stated that Hinspeter and Moore “constantly” watched Pucino, “far in excess” of their supervision of any male coworker in the same work group. Dauer, for her part, testified that Hinspeter subjected her to much the same treatment. For example, Hinspeter reprimanded her for spending too much time on a “no-access” job even though her male co-workers spent the same amount of time on that job without receiving any criticism.

The public criticism of Pucino persisted even after she filed a complaint with Verizon's internal Equal Employment Opportunity (“EEO”) Hotline. Moore publicly announced to the Union Avenue Garage that Pucino had filed the complaint with the internal EEO Hotline. He then told workers that, because of Pucino's EEO complaint, they are going to come into our garage, take over our garage. Every word is going to be scrutinized. You are going to be followed, and the garage will never be the same.” Two days later, someone in the Union Avenue Garage placed a large dead snake in Pucino's work truck.

b) Procedural History

Pucino and Dauer filed Equal Employment Opportunity...

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