678 F.3d 166 (2nd Cir. 2012), 10-1410-cv, Redd v. New York Div. of Parole

Docket Nº:10-1410-cv.
Citation:678 F.3d 166
Opinion Judge:KEARSE, Circuit Judge:
Party Name:Fedie R. REDD, Plaintiff-Appellant, v. NEW YORK State DIVISION OF PAROLE, Defendant-Appellee.
Attorney:Maia Goodell, New York, N.Y. (Vladeck, Waldman, Elias & Engelhard, New York, New York, on the brief), for Plaintiff-Appellant. Laura R. Johnson, Assistant Solicitor General, New York, N.Y. (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, B...
Judge Panel:Before: KEARSE, WALKER, and RAGGI, Circuit Judges.
Case Date:May 04, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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678 F.3d 166 (2nd Cir. 2012)

Fedie R. REDD, Plaintiff-Appellant,

v.

NEW YORK State DIVISION OF PAROLE, Defendant-Appellee.

No. 10-1410-cv.

United States Court of Appeals, Second Circuit.

May 4, 2012

Argued: Nov. 15, 2011.

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[Copyrighted Material Omitted]

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Maia Goodell, New York, N.Y. (Vladeck, Waldman, Elias & Engelhard, New York, New York, on the brief), for Plaintiff-Appellant.

Laura R. Johnson, Assistant Solicitor General, New York, N.Y. (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, New York, NY, on the brief), for Defendant-Appellee.

Before: KEARSE, WALKER, and RAGGI, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Fedie R. Redd appeals from a judgment of the United States District Court for the Eastern District of New York, Nicholas G. Garaufis, Judge, dismissing her complaint alleging disparate treatment on the basis of race and gender, retaliation, and sexual harassment by her employer, defendant New York State (" State" ) Division of Parole (" Division" or " Parole Division" ), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ). The district court granted the Division's motion for summary judgment dismissing the complaint, ruling, as to the sexual harassment claim, that the alleged touchings of Redd's breasts by a female Division supervisor were minor and incidental, were episodic, may have been accidental, and did not occur because of Redd's sex. On appeal, Redd contends that the supervisor's touchings were sufficiently abusive to support her hostile work environment claim and that summary judgment was inappropriate because there were genuine issues of fact to be tried. We agree that summary judgment dismissing the hostile work environment claim was inappropriate, and we vacate so much of the judgment as dismissed that claim and remand for further proceedings.

I. BACKGROUND

Redd, who represented herself throughout the proceedings in the district court, has been employed as a parole officer (or " PO" ) by the Division since April 1990. She complained on a number of occasions that she, inter alia, was denied transfers to offices closer to home, where she resided

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with her three young daughters; was subjected to racially discriminatory treatment and discipline; was subjected to retaliation for making complaints; and was subjected to sexual harassment. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission (" EEOC" ), she commenced the present action to pursue those complaints. On this appeal, however, she pursues only her claim of a hostile work environment due to sexual harassment by a Division supervisor. To the extent pertinent to that claim, the record, taken in the light most favorable to Redd as the party against whom summary judgment was granted, includes the following.

A. Redd's Complaints of Sexual Harassment

In 2005, Redd worked in a Parole Division office in Queens, New York (the " Queens I Office" ); her immediate supervisor was Senior Parole Officer Clifford Crawford. Beginning in February 2005, Area Supervisor Sarah Washington was transferred into the Queens I Office and headed that office. The principal focus of Redd's sexual harassment claim is that on three occasions between mid-April and mid-September 2005, Washington made sexual advances to her, touching Redd's breasts.

In her verified pro se administrative complaint filed with the State's Division of Human Rights, Redd alleged that

[o]n April 19, 2005, June 16, 2005, and September 15, 2005, Ms. Washington ... sexually harassed me by brushing up against my breast while I was sitting at the computer, and she rubbed my hand. Ms. Washington never apologized to me for touching me, and I backed away from her to refuse her advances.

(Verified Administrative Complaint ¶ 7.) In her pro se complaint in the present action (" Complaint" ), to which she attached a copy of her verified administrative complaint, Redd alleged that she " ha[d] been subjected to homosexual advances" (Complaint ¶ 8). Redd described the three 2005 incidents in her deposition. She testified that on April 19, she was in Washington's office reviewing a transfer list, when Washington " brushed up against [Redd's] breasts." (Deposition of Fedie R. Redd (" Redd Dep." ) at 142.) Redd testified that she was so " totally thrown off" by this that she spilled water all over the transfer list. ( Id. ) Redd testified that the second incident occurred on June 16, when she and another parole officer were talking in a hallway. Washington " came up and she touched my breasts and rubbed up against it again in front of this parole officer." ( Id. )

Redd testified that, as a result of these incidents, in which Washington " had brushed against my breast and felt my breasts," she was uncomfortable around Washington. (Redd Dep. 141.) Washington was not Redd's immediate supervisor, but she repeatedly called Redd into her office. ( See, e.g., id. at 145.) Redd complained to her own supervisor and attempted to avoid going into Washington's office; but as Washington was in charge of the entire Queens I Office, Redd had no alternative but to go to Washington's office when summoned. When asked whether she had complained to Washington about the touching, Redd testified,

I avoided Ms. Washington at all costs and she knew I was avoiding her but she continued to call me into her office. I talked to my supervisor about it. She just continued to call me into her office and she was the area supervisor and what she said went....

( Id. )

Redd testified that on September 15, Washington " rubbed up against my

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breasts again." (Redd Dep. 142.) Redd, at the time, was sitting at a computer in a secretarial area attempting to input information using a new procedure. Washington, without Redd's having asked for her help, went over to Redd, " reached over and touched and brushed up against [Redd's] breast." ( Id. at 143.)

Washington, in her deposition taken by Redd, testified in pertinent part as follows:

Q. Were you present at the [Queens I Office] work location ... on 4/19/05, 6/16/05 and 9/15/05?

A. I believe so.

Q. On those days, did you have physical contact with me?

A. I don't understand what you mean by physical contact.

Q. Did you touch me in any inappropriate manner?

A. What does inappropriate manner mean?

Q. Put your hands on me?

A. No.

(Deposition of Sarah [E.] Washington (" Washington Dep." ) at 6.)

Redd testified in her deposition that she had complained about Washington's sexual touchings to Jose Burgos, the Parole Division's Director of Human Resources, but that no action was taken. ( See Redd Dep. 144-45.) Burgos, when his deposition was taken by Redd, testified that he did not recall that Redd had ever filed a complaint about Washington " directly" with the Division. (Deposition of Jose A. Burgos (" Burgos Dep." ) at 51); however, he appeared to recall that Redd had in fact complained to him that she had been sexually harassed by Washington. In testifying about a disciplinary suspension of Redd on September 16, 2005, and her reinstatement in 2006 as ordered by an arbitrator, Burgos stated that the decision as to whether Redd would be allowed to return to work absent a ruling by the arbitrator was a decision in which there would have been input from Washington. Redd asked:

Q. Even if she was sexually harassing me?

A. I have no evidence that she was sexually harassing you.

Q. Didn't I put in the complaint, did I not complain about her sexually harassing me?

A. My recollection is that you complained that Ms. Washington bumped you and that you viewed that as— bumped you as she passed you, and you viewed that as sexual harassment.

Q. I didn't put in the complaint that she bumped me. I put in the complaint that she felt my breast on three different occasions. Did you investigate that?

A. I don't have a recollection of you filing that complaint directly with the Division of Parole.

( Id. at 50-51 (emphases added).)

Parole Division Regional Director James Dress acknowledged that it would be " inappropriate" for a supervisor to " sexually harass[an employee] by feeling their breast three times." (Deposition of James Dress at 49.)

B. The Parole Division's Motion for Summary Judgment

The Parole Division moved for summary judgment dismissing Redd's complaint and submitted, inter alia, affirmations by Washington and Burgos. Washington's affirmation, given " to supplement [her] deposition taken by the pro se plaintiff Fedie R. Redd," stated:

As I testified in my deposition, on April 19, June 16, and September 15, 2005, I believe I was on duty at the Queens I ... Office, and I did not touch PO Redd in any inappropriate manner. Nor did

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I sexually harass or make any other inappropriate physical contact with PO Redd on any other date.

(Undated Affirmation of Sarah E. Washington (" Washington Aff." ) ¶ ¶ 1, 6 (emphases added).) Burgos's affirmation " to supplement [his] deposition taken by the pro se plaintiff Fedie R. Redd," stated:

As I testified in my deposition, I did not recall ever having received any written sexual harassment complaint by PO Redd against Area Supervisor Washington. In addition, at the time of PO Redd's 2005 suspension, I was not aware of having previously received any written sexual harassment complaints from PO Redd against Washington....

(Affirmation of Jose A. Burgos dated March 22, 2009 (" Burgos Aff." ), ¶ ¶ 1, 9 (emphases added).)

The Division, in its statement pursuant to Local Rule 56.1 (" Rule 56.1 Statement" ) as to the facts that it contended were...

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