O'Connor v. Davis

• Decision Date: 19 September 1997
• Docket Number: No. 728,728
• Citation: 126 F.3d 112
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1561, 121 Ed. Law Rep. 517 Bridget O'CONNOR, Plaintiff-Appellant, v. James DAVIS, Dr., Rockland Psychiatric Center, and State of New York, Defendants-Appellees. Docket 96-7769.
• Court: U.S. Court of Appeals — Second Circuit

Page 112

126 F.3d 112

74 Fair Empl.Prac.Cas. (BNA) 1561, 121 Ed. Law

Rep. 517

Bridget O'CONNOR, Plaintiff-Appellant, v. James DAVIS, Dr., Rockland Psychiatric Center, and State of New York, Defendants-Appellees.

No. 728 Docket 96-7769.

United States Court of Appeals Second Circuit.

Argued Jan. 29, 1997.

Decided Sept. 19, 1997.

Craig T. Dickinson, White Plains, NY (Jonathan Lovett, Lovett & Gould, White Plains, NY, on the brief), for Plaintiff-Appellant.

Janine M. Spinnato, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General, New York City, Thomas D. Hughes, Assistant Attorney General, New York City, on the brief), for Defendants-Appellees.

Before: WALKER, PARKER, and HEANEY ^*, Circuit Judges.

WALKER, Circuit Judge:

Plaintiff-appellant Bridget O'Connor ("O'Connor") appeals from the May 23, 1996, judgment of the United States District Court for the Southern District of New York (Brieant, J.) granting the summary judgment motion of defendants-appellees Rockland Psychiatric Center ("Rockland") and the State of New York and dismissing O'Connor's sexual harassment claims, which were brought pursuant to both Title VII of the Civil Rights Act of 1964, § 706(e), as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and Title IX of Education Amendments of 1972, § 901(a), as amended, 20 U.S.C. §§ 1681, et seq. ("Title IX"). For the following reasons, we affirm.

BACKGROUND

While enrolled as a student at Marymount College ("Marymount"), a private Catholic college located in Tarrytown, New York, Bridget O'Connor majored in social work. As a component of her major, O'Connor was required during her senior year to perform 200 hours of field work at one of several Marymount-approved organizations which, in the past, had included schools, daycare centers, community organizations, correctional facilities, and social service agencies. Marymount arranged for O'Connor to be placed for her senior-year internship with Rockland, a hospital for the mentally disabled operated by New York State. Because this internship was considered to be "work study" for financial aid purposes, O'Connor received, through Marymount, federal work study funds for the time she spent performing her volunteer work with Rockland.

O'Connor's internship with Rockland began on September 20, 1994. The hours O'Connor worked were flexible, although she generally chose to work on Mondays and Wednesdays from approximately 8:00 a.m. to 4:30 p.m. because that schedule did not conflict with her regular Marymount classes. O'Connor regularly attended morning staff meetings with Rockland employees and other volunteers, met with the patients assigned to her both one-on-one and in groups. She then documented the results of these patient sessions in "process recordings" which were given first to her Rockland supervisor, Lisa Punzone ("Punzone"), and then to faculty at Marymount.

Dr. James Davis ("Davis") worked as a licensed psychiatrist at Rockland. Approximately two days after O'Connor began her internship, Davis referred to O'Connor, in her presence, as "Miss Sexual Harassment"--a term Davis later explained was intended, as a compliment, to convey the idea that O'Connor was physically attractive and, as such, was likely to be the object of sexual harassment. O'Connor promptly complained about Davis's comment to Punzone, who explained that Davis made similar comments to her, and that O'Connor should try her best to ignore him.

Not only did Davis continue to address O'Connor as "Miss Sexual Harassment," he added to his repertoire of inappropriate sexual remarks. For instance, on one Monday morning, Davis told O'Connor that she O'Connor was apparently not Davis's only target; he also commented regularly on the physical appearance of a number of women employed at Rockland, and directed sexual jokes and sexually suggestive noises at them--particularly, as Davis put it, on occasions when he thought the women "looked very well that day." Davis also made "jokes" about female patients--suggesting in one instance that a women patient would benefit from sterilization and, on another occasion, when considering a woman patient who was an incest victim, stating: "the family that plays together stays together."

                looked tired, and that she and her boyfriend must have had "a good time" the night before.  On another occasion, Davis pointed to a picture in a newspaper of a woman dressed only in underwear and announced that O'Connor was the woman photographed.  He also suggested to O'Connor (and other women present) that they should participate in an "orgy."   Finally, on yet another occasion, Davis told O'Connor to remove her clothing in preparation for a meeting with him;  he explained, "Don't you always take your clothes off before you go in the doctor's office?"
                

Although O'Connor reported a good deal of this conduct to Punzone, Punzone did not report any of O'Connor's complaints to James Wagner, her own supervisor, until January of 1995. And when Wagner learned of O'Connor's encounters with Davis, he, like Punzone, did nothing to remedy the situation.

Also in January of 1995, O'Connor complained to Virginia Kaiser, Marymount's social work field instructor, who in turn brought Davis's conduct to the attention of Madeline Connolly, Rockland's director of social work. Connolly then notified Wilbur T. Aldridge, Rockland's affirmative action administrator, who thereafter investigated O'Connor's complaint.

Finally, at some point in January of 1995, O'Connor left Rockland; however, Marymount arranged for her to complete her internship at another facility.

In March of 1995, O'Connor filed the instant action against Marymount, Rockland, the State of New York, and various Marymount and Rockland employees, alleging, inter alia, sexual harassment in violation of Title VII, 42 U.S.C. § 2000e, et seq., and Title IX, 20 U.S.C. §§ 1681, et seq. The action was eventually discontinued against Marymount, Punzone, Wagner, Connolly, and Davis himself. The remaining defendants (Rockland and New York State) moved for summary judgment on several grounds. First, they argued that the plaintiff's Title VII claim should be dismissed because O'Connor was not an "employee" of Rockland within the meaning of Title VII. Second, the defendants argued that the Title IX claim should be dismissed because Rockland was not an "educational institution" as set forth in Title IX. Finally, the defendants argued that O'Connor failed to establish a prima facie case of sexual harassment.

In an opinion and order dated May 20, 1996, the district court granted the defendants' summary judgment motion, agreeing that O'Connor was not an "employee" under Title VII and that Rockland was not an "educational institution" under Title IX. ¹ Because of this disposition, the district court did not reach the defendants' assertion that O'Connor failed to establish a prima facie case of sexual harassment.

DISCUSSION

Summary judgment may not be granted unless the court determines that there are no genuine issues of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Because summary judgment was granted against O'Connor, we consider all of the evidence in the light most favorable to her. See Kracunas v. Iona College, 119 F.3d 80, 82-83 (2d Cir.1997).

I. Title VII

O'Connor's first argument on appeal is that the district court improperly concluded that she was not a Rockland employee within the meaning of Title VII. She argues that although she worked at Rockland as an unpaid intern, she nevertheless satisfies the common-law agency definition of "employee." We disagree.

The definition of the term "employee" provided in Title VII is circular: the Act states only that an "employee" is an "individual employed by an employer." 42 U.S.C. § 2000e(f); see also EEOC v. Johnson & Higgins, 91 F.3d 1529, 1538 (2d Cir.1996). However, it is well established that when Congress uses the term "employee" without defining it with precision, courts should presume that Congress had in mind "the conventional master-servant relationship as understood by the common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 2172-73, 104 L.Ed.2d 811 (1989)); see also Walters v. Metropolitan Educ. Enters., Inc., --- U.S. ----, ----, 117 S.Ct. 660, 666, 136 L.Ed.2d 644 (1997); Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993).

In most cases where an attempt has been made to discern the contours of the "conventional master-servant relationship," it has been because a court has been asked to consider whether, under a particular statute, a party is an employee or an independent contractor. See, e.g., Reid, 490 U.S. at 739-40, 109 S.Ct. at 2172-73 (considering the Copyright Act of 1976, 17 U.S.C. § 101); Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992) (considering ERISA, 29 U.S.C. § 1132(a)); Alford v. United States, 116 F.3d 334, 337-38 (8th Cir.1997) (considering 26 U.S.C. § 62(a)(1) of the Internal Revenue Code); Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.1997) (considering Title VII); Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 232 (2d Cir.1995) (considering ERISA). In this context, the Supreme Court has outlined the following factors, culled from the Restatement of Agency, see Reid, 490 U.S. at 752 n. 31, 109 S.Ct. at 2179 n. 31, and from caselaw, as relevant to the inquiry:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source...