Dortz v. City of New York
| Citation | 904 F. Supp. 127 |
| Decision Date | 05 October 1995 |
| Docket Number | No. 92 Civ. 9202 (PKL).,92 Civ. 9202 (PKL). |
| Parties | Cynthia DORTZ, Plaintiff, v. The CITY OF NEW YORK, New York City Health and Hospitals Corporation, Mt. Sinai Hospital, and Elmhurst Hospital, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Janice Goodman, Loren Gesinsky, New York City, for plaintiff.
David L. Lock, Assistant Corporation Counsel, The City of New York Law Department, New York City, for defendants.
Defendants have submitted objections to the Report and Recommendation (the "Report") prepared by the Honorable Theodore H. Katz, United States Magistrate Judge, pursuant to the referral of this Court. The Court has reviewed Judge Katz's Report, and made a de novo determination, as required by 28 U.S.C. ? 636(b)(1), that Judge Katz's exhaustive, well-reasoned Report is legally correct and proper. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980) (). In addition, the Court has considered defendants' objections and finds them to be without merit. The Court therefore adopts the Report in its entirety.
Accordingly, for the reasons stated by Judge Katz in the Report, defendants' motion for summary judgment is HEREBY GRANTED with respect to Plaintiff's retaliation claim involving the Elmhurst Hospital Human Resources Department, and is HEREBY DENIED in all other respects.
SO ORDERED.
REPORT AND RECOMMENDATION
This employment discrimination action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e-5, and ? 296 of the New York State Human Rights Law ("HRL"), was referred to me by your Order of Reference for general pre-trial supervision and disposition of substantive motions, in accordance with 28 U.S.C. ? 636(b)(1)(A) and (B). Plaintiff alleges that Defendants discriminated against her on the basis of her gender by engaging in sexual harassment, and retaliated against her for participating in activity protected under Title VII and HRL ? 296. Pre-trial discovery has been completed and Defendants have moved for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. For the reasons set forth below, I recommend that the Defendants' motion be denied in all respects, except as to Plaintiff's retaliation claim involving the Elmhurst Hospital Human Resources Department.
Cynthia Dortz, a certified social worker, was employed by the New York City Health and Hospitals Corporation ("HHC") as Assistant Director of Social Work Services in the Alcohol Treatment Program ("ATP") at Elmhurst Hospital Center. Dortz had worked in the ATP since 1972 as a supervisor of social work, prior to being promoted to the position of Assistant Director in 1983. (Dortz Aff. ?? 1-2.)
Elmhurst is operated by HHC, a public benefit corporation established pursuant to state law. See N.Y.Unconsol.Law ?? 7381, et seq. Under an affiliation agreement, Mt. Sinai School of Medicine of the City University of New York ("Sinai"), an educational corporation chartered by the New York State Board of Regents, generally provides for the delivery of medical services at Elmhurst. (Defs.Exs. D and E.)
As of July of 1990, the ATP operated under the auspices of Elmhurst's Department of Psychiatry. (Deposition Transcript of Dr. Ann Marie Sullivan, dated July 29, 1993 "Sullivan Depo.", at 22.) Dr. Sullivan, a Sinai employee, was the Director of the Department. (Sullivan Depo. at 7.) Plaintiff's direct supervisor was Dr. Lawrence Cuzzi, also a Sinai employee, who was Director of Social Work Services for Elmhurst. " "
On October 29, 1990, Dr. Robert Levengood, a psychiatrist and Sinai employee, commenced employment at Elmhurst as Medical Director of the Division of Chemical Dependence Services, which is part of the Department of Psychiatry. (Defendants' 3(g) Statement, dated January 14, 1994 "Defs. 3(g)", ? 8; Sullivan Depo. at 74.) Levengood was responsible for the clinical, medical, and psychiatric components of the Division of Chemical Dependence Services, including the ATP. (Defs.Ex. G.) Levengood reported directly to Sullivan. (Defs.Ex. G.) By virtue of his position, Levengood was required to collaborate with Dortz and communicate with her to ensure the efficient functioning of the ATP. (Deposition Transcript of Pedro Velez, Executive Director of Elmhurst, dated September 23, 1993 "Velez Depo.", at 55.) According to Dortz, Levengood had supervisory control over her work.
The incidents giving rise to Dortz' sexual harassment claim began shortly after Levengood commenced his employment. They were subsequently documented in memoranda by Plaintiff and five members of her staff in December of 1990 and January of 1991, all of which are annexed as exhibits to this motion. See Defs.Exs. J-P.
From the inception of Levengood's employment, he was critical of Dortz and procedures in the ATP, and shunned Dortz' repeated efforts to reach out to him. In particular, Joyce Richardson, a certified social worker whom Dortz supervised, reported that on November 13, 1990, Levengood asked "if something happens to Cynthia, would you want her job?" (Defs.Ex. O.) When Levengood and Dortz had their first meeting alone, on November 15, 1990, Levengood stated to Dortz, "This could develop into a sado-masochistic relationship, but I am not going to let it happen." (Defs.Ex. P; Dortz Aff. ? 10.) At a meeting with the ATP staff several days later, Levengood stated, "quality assurance is looked at by you folks around here like venereal warts." (Defs.Ex. P.) At one point, Levengood stated, in response to a question from Dortz: "You talk like my children when they give me reasons why something can't be done." (Dortz Aff. ? 10.)
According to Marge Heller, an ATP counselor whom Dortz supervised, later that month Levengood commented to her, "Cynthia probably wears black leather on weekends, with a black leather mask!" (Defs.Ex. M.) During the last week of November or early December, in the presence of Joseph Grabarnick, an ATP staff member, Al Brockway, an ATP counselor who was supervised by Dortz, and Marge Heller, Levengood grabbed his stomach as if in pain, and stated, "ugh, ugh, this is Cynthia sticking pins in her voodoo doll." Then he turned to Susan Kleinrock (another ATP staff member) and said "you know what I mean." (Defs.Exs. J, K, M, and P.) On another occasion, Levengood said to Joseph Grabarnick, "It's like your hands are tied, bend over and let me fuck you up the ass." (Defs.Ex. K.)
On December 6, 1990, Levengood shouted at Dortz, at a meeting with other ATP staff members, (Defs.Ex. P; Dortz Aff. ? 11.) Approximately one week later, Penny Laitin, the ATP staff supervisor of the vocational program, told Dortz that Levengood was "badmouthing" her with members of her staff. (Defs.Ex. P; Dortz Aff. ? 13.) Laitin said that Levengood was telling the staff of his fantasy of Dortz in black leather. (Defs.Ex. P; Dortz Aff. ? 13.) She informed Dortz that Levengood stated that he (Dortz Ex. P; Dortz Aff. ? 13.)
According to Al Brockway, Levengood called Dortz a "frustrated bitch" on numerous occasions. (Defs.Ex. N.) For example, on December 1, 1990, Levengood called Dortz "the frustrated bitch social work supervisor and that she had better shape up or else...." (Id.) The following week, Levengood engaged in conversation that Brockway described as "sexually explicit" and included derogatory remarks that "took on the atmosphere of a stag party," some of which were directed against Dortz, including "Cynthia Dortz is queer, asexual, needs a good fucking, but I wouldn't touch her with someone else's dick ... she's probably a lesbian!" (Id.)1
On December 14, 1990, after Plaintiff reported these incidents to Dr. Cuzzi, he held a meeting attended by 10 or 11 members of the ATP social work staff. (Defs.Ex. H; Dortz Aff. ?? 16-17.) The staff members corroborated Dortz' complaints and expressed concerns about Levengood's conduct, particularly that comments about Dortz made them feel personally and professionally uncomfortable. (Defs.Ex. H; Dortz Aff. ? 17.) Cuzzi requested that those with personal knowledge communicate their concerns in writing, which was done by five members of the ATP staff. (Defs.Exs. J-O.)
Cuzzi testified at his deposition that, soon after having learned about Plaintiff's concerns, he reported the allegations to the following people: Judith Alvarez, the EEO Officer at Elmhurst charged with the responsibility of investigating allegations of discrimination;2 Fred Horan, the Elmhurst Senior Administrator responsible for the functioning of the ATP; and, Gary O'Gwyn, Elmhurst's Chief Operating Officer. In addition, he later reported the allegations to Dr. Gary Rosenberg, Chair of the Social Work Department at Sinai. (Cuzzi Depo. II at 183-185, 201, 291-292.) Despite HHC policy requiring that the EEO officer investigate any reports of sexual harassment (see Deposition of Judith Alvarez, dated September 15, 1993 "Alvarez Depo.", at 29-30), none of the above individuals participated in any investigation of the charges until they received notification of Dortz' EEOC...
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