Distasio v. Perkin Elmer Corp.
| Decision Date | 27 August 1998 |
| Docket Number | No. 97-7035,97-7035 |
| Citation | 78 Fair Empl.Prac.Cas. (BNA) 531,157 F.3d 55 |
| Parties | 78 Fair Empl.Prac.Cas. (BNA) 531 Marianna DISTASIO, Plaintiff-Appellant, v. PERKIN ELMER CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Neal L. Moskow, Ury & Moskow, L.L.C., (Frederic S. Ury & Vincent M. Marino on the brief) Westport, CT, for Plaintiff-Appellant Marianna Distasio.
Patrick W. Shea, Paul, Hastings, Janofsky & Walker LLP, (John W. Hamlin on the brief) Stamford, CT, for Defendant-Appellee Perkin Elmer Corporation.
BEFORE: OAKES, WALKER, Circuit Judges, REAL *, District Judge.
Plaintiff, Marianna Distasio, appeals from a judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Chief Judge ) granting summary judgment dismissing her sexual harassment claim against the defendant, Perkin Elmer Corporation ("Perkin Elmer"). Distasio claims that she was subject to a hostile work environment because she was sexually harassed by a co-worker for four years, in violation of Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and that she was wrongfully discharged in retaliation for complaining about her hostile work environment.
The district court in granting summary judgment in favor of the defendant reasoned that (1) the four incidents of misconduct that Distasio either reported to her supervisor or that her supervisor independently observed did not establish a hostile work environment as a matter of law under Title VII and (2) the facts did not support a prima facie case for retaliatory discharge. See Distasio v. Perkin Elmer Corp., No. 3:95-CV-323 (AVC), slip op. at 2 (D.Conn. Nov. 27, 1996). On appeal plaintiff contends that the district court incorrectly confined its consideration to the misconduct that Distasio reported to her supervisor, and failed to take into account other unreported incidents of sexual harassment. We agree with Distasio and accordingly we vacate that portion of the judgment and remand for further proceedings. The district court's grant of summary judgment in favor of Perkin Elmer on Distasio's retaliation claim is affirmed.
We review the record at the summary judgment stage in the light most favorable to the non-movant, the plaintiff. Seen from the plaintiff's perspective, the record reveals the following. Distasio, a first-generation Italian immigrant, who was functionally illiterate, was hired by Perkin Elmer as a glass blower on March 8, 1982. She worked in the Special Products Division ("glass shop") with six other people, including Fortunato Santucci, under the supervision of group leader Alfonse Angel.
Plaintiff's working relationship with Santucci was normal until 1989, when, Distasio alleges, Santucci began to verbally and physically harass her. In her complaint, Distasio claims that over the next four years Santucci subjected her to "name calling of a sexually suggestive nature, repeated sexual propositions, exposure of his genitalia, touching of [her] breasts on more than one occasion, and other comments, all of which caused [her] to be uncomfortable, tense, hurt, disgusted, degraded, and otherwise uneasy at her job." She alleges that she was subject to "repeated sexual advances by Fortunato Santucci ... despite [her] express desire that he stop; name calling ..., and other forms of taunting including calling me a 'virgin.' " In an affidavit attached to her complaint Distasio asserts more generally that various members of the 'glass shop' taunted her, called her names, and teased her.
Distasio claims that initially Santucci used to hug her and that she "didn't mind it" until "he started to come [on] a little bit stronger." After she objected to Santucci and he continued, she decided to report Santucci's conduct to Angel. Distasio alleges that Angel learned, from either her reports or his own independent observations, of four specific incidents of unwanted sexual misbehavior by Santucci. In her deposition, Distasio testified that in her first report she told Angel that "[Santucci's] touching me, he likes me more than he should" and that if it did not stop she would be unable to continue working at Perkin Elmer. Distasio claims that Angel replied that she was crazy and that he refused to reprimand Santucci until he witnessed the misconduct himself.
Distasio's second report to Angel concerned an incident in which Santucci touched her feet with his feet when they were sitting The third incident did not involve a report; Angel himself observed Santucci attempt to touch Distasio's chest. Afterwards, according to Distasio, Angel talked to Santucci and then told her that if Santucci touched her again she should tell him.
at the same table in the break room. Distasio complained to Angel, he told her to change tables, and she did.
The final incident Angel was aware of occurred when Angel heard Distasio and Santucci arguing and inquired about what happened. Distasio stated in her deposition that Santucci had propositioned her to have sex with him and said, "Mary, what do you say, it's going to be good." They started to argue, and when Angel heard them fighting he came in and wanted to know what was happening. Distasio testified that she told Angel that Santucci said "he's in love with me." Angel started to leave the room but stopped and said to Distasio, "Don't say nothing, keep in here, because if you say something, you cannot work here no more." Thereafter, Distasio claims that she stopped reporting the harassment to Angel because he had told her not to say anything and threatened that she would lose her job if she did.
Distasio claims that Santucci's conduct continued and that on three separate occasions in 1993 he exposed himself to her, but she did not report it. On the first occasion, Santucci stood at his work bench, next to Distasio's work bench, unzipped his pants, and exposed his genitals. Distasio immediately ran out of the glass shop. On a second occasion Santucci again exposed himself, and Distasio ran away. Finally, on the third occasion, Santucci waited for her in a location where he knew she would return after her break, and when she did, he unzipped his pants and exposed his genitals. As before, Distasio ran away and did not complain to anyone.
The foregoing reported and unreported allegations of harassment occurred prior to the following incident that culminated in Distasio's discharge from Perkin Elmer. On November 11, 1993, Santucci asked Distasio to "cover for him" when he placed a box on a shelf in front of his work bench to shield his activities from the supervisor's view. Distasio removed the box from the shelf, and the acting supervisor came over. Santucci then started calling her names such as "virgin" and said that "she's a woman and because she's a woman she gets away with everything." She further alleges that "[a]ll of [her] co-workers were laughing at this tirade," that she "got very upset," and that Santucci then picked up a special box at her work station and threw it in the air and kicked it.
Distasio, upset by Santucci's actions, at first walked away from the area. But then she returned and struck Santucci in the arm with a glass tube. At her deposition, Distasio testified that she believed Santucci was going to strike her and that she acted in self-defense. After striking Santucci, Distasio walked away and happened to run into Robert Coppola, the Manager of Manufacturing. Coppola asked her what happened. Distasio told him and added Coppola asked Distasio if she wanted to transfer. She responded that she did not, that Angel had left her plenty of work, and that Angel would take care of the problem when he returned on Monday.
On the following day, November 12, 1993, Distasio met to discuss the incident with Coppola, Human Resource Specialist Dorothy Lewis, and Special Products Group Leader Ken Kaufman. At this meeting, Distasio stated the facts surrounding the altercation over the box and the circumstances of her striking Santucci, but she did not mention any prior incidents of unwanted sexual harassment.
On November 15, 1993, Distasio was discharged from Perkin Elmer for violating the company's policy against fighting. Lewis told Distasio that she was not being fired because of her work performance, but because she had struck Santucci and he never touched her during the altercation. During this meeting, Distasio stated that "[Santucci] touch me in my mind and in my heart," but still did not report any specific incidents of prior sexual harassment.
Upon her separation from Perkin Elmer, Distasio was asked to sign various forms. At During the relevant time period, Perkin Elmer had a formal written sexual harassment policy, posted at the glass shop, that defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ..." and directed employees who believe that they have been subject to sexual harassment to report it to a supervisor, the department manager, the Human Resources Department, or the Manager of Corporate Equal Employment Opportunity Programs. After receiving a complaint, the policy required supervisors to:
first, she says, she refused because she did not understand them. She then changed her mind because she trusted Lewis, who was assisting her with the paperwork. Distasio, who, as noted, is functionally illiterate, signed an "employment termination checklist" stating that if there were "facts or extenuating circumstances that have not been taken into consideration in my termination," she would notify the defendant within five business days. Distasio did not communicate further with Perkin Elmer. Instead, she filed a timely complaint with the Equal Employment Opportunity Commission ("EEOC") and the Connecticut Commission on Human Rights and Opportunities pursuant to 42...
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