Kaytor v. Electric Boat Corp.

• Decision Date: 29 June 2010
• Docket Number: Docket No. 09-1859-cv.
• Parties: Sharon KAYTOR, Plaintiff-Appellant,v.ELECTRIC BOAT CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

609 F.3d 537

Sharon KAYTOR, Plaintiff-Appellant,v.ELECTRIC BOAT CORPORATION, Defendant-Appellee.

Docket No. 09-1859-cv.

United States Court of Appeals Second Circuit.

Argued: Jan. 13, 2010.

Decided: June 29, 2010.

Cynthia R. Jennings, Windsor, CT, for Plaintiff-Appellant.

Michael Clarkson, Boston, MA (Robert P. Joy, Morgan, Brown & Joy, Boston, MA, on the brief), for Defendant-Appellee.

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

Before: KEARSE, CABRANES, and HALL, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Sharon Kaytor appeals from a judgment of the United States District Court for the District of Connecticut, Dominic J. Squatrito Judge, dismissing her complaint alleging principally that defendant Electric Boat Corp. (“Electric Boat” or the “Company”), her former employer, discriminated against her on the basis of gender by maintaining a hostile work environment and retaliated against her for complaining about sexual harassment by her supervisor, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and state law. The district court granted summary judgment dismissing the complaint, concluding inter alia, that Kaytor failed to adduce evidence that would permit inferences that the incidents of which she complained were sufficiently pervasive or severe to create a hostile work environment, were gender-related, or were retaliation for her protests against sexual harassment. On appeal, Kaytor contends that summary judgment was inappropriate because there were genuine issues of material fact to be tried as to each of her claims. For the reasons that follow, we agree that summary judgment was inappropriate with respect to Kaytor's claims of hostile work environment and with respect to one aspect of her claims of retaliation, and we remand for further proceedings with respect to those claims. As to Kaytor's other claims, we affirm the judgment of dismissal.

I. BACKGROUND

Electric Boat designs and builds nuclear submarines for the United States Navy in Groton, Connecticut. Kaytor worked at Electric Boat from 1973 until her employment was terminated by the Company in January 2007. Her claims of gender discrimination center on her treatment by Daniel J. McCarthy, one of the managers in the engineering department, from 2004 through April 2005. The following description, taken largely from Kaytor's deposition testimony in the present action (“Kaytor Dep.”) and from, to an extent, Electric Boat's Investigative Report dated July 21, 2005 (“EB Report” or “Report”), with respect to Kaytor's complaints about McCarthy, sets out the evidence in the light most favorable to Kaytor as the party against whom summary judgment was granted.

A. The Events Involving McCarthy

From 1998 until late January 2007 Kaytor was an administrative assistant in Electric Boat's engineering department, and from 1998 until mid-May 2005 she was secretary to McCarthy. His branch of the department included several dozen engineers, whose work was overseen by six supervisors who reported to him. Kaytor testified that her job with McCarthy included ordering supplies for the entire engineering department, which included 400-500 engineers. ( See Kaytor Dep. 17.) This entailed some degree of discretion. McCarthy would give her a budget and have her determine, based on her knowledge and experience, what should be ordered; Kaytor would send McCarthy information as to whatever she was ordering, and he would routinely approve. ( See id. at 16-17.) Kaytor testified that during the first several years in which she worked directly for McCarthy, their relationship was suitably businesslike. ( See id. at 176.)

In 2004 and 2005, however, McCarthy was “having problems,” going through a divorce ( id. at 183; see id. at 181, 242; EB Report at 13), and seemed to undergo a change of character ( see Kaytor Dep. 181-83, 241). Although he never touched Kaytor in a violent or sexual way, never asked her for sex, and never asked her out on a date ( see id. at 192), in 2004 McCarthy began making inappropriate comments to her and engaging in sexually suggestive behavior. Although he frequently made fun of women, especially of their weight, and made comments about their bodies ( see id. at 226), McCarthy paid Kaytor compliments on her clothing ( see id. at 245) and told her she looked good for a woman her age ( see EB Report at 10). Some of his comments were not in and of themselves offensive, but on many occasions Kaytor perceived McCarthy to be staring at her body and leering at her ( see Kaytor Dep. 245-46); she testified that her reaction was to “ignore the look” ( id. at 246). On one occasion, McCarthy entered Kaytor's office and complimented her on two scarves that were lying on her desk. He then picked them up, “brought them to his nose and he sa[id], ‘Umm, they smell like you.’ ” ( Id. at 204.) McCarthy then approached Kaytor more closely, apparently smelling her hair; Kaytor became nervous, turned her back, and started typing until McCarthy departed. ( See id.)

Kaytor testified that she believes McCarthy “had designs” on her and that “when things did not go his way, the relationship became sour and he would make many off-colored comments to me,” such as stating “you have a flat ass.” (Kaytor Dep. 176; see also id. at 255 (“I believe Mr. McCarthy was very bitter because I would not associate with him outside the workplace or fall for his advances.”).) McCarthy's initial “flat ass” comment, which he promptly repeated, came “out of the blue” while Kaytor was talking to one of the supervisors: “All of a sudden out of the blue Mr. McCarthy yells out at the top of his lungs and everybody could hear, you have a flat ass.” ( Id. at 179-80.)

McCarthy also threatened Kaytor with physical harm ( see Kaytor Dep. 186-87) and often wished her dead, saying “I'd like to see you in your coffin” ( id. at 177). On at least six occasions, McCarthy said he wanted to “choke” Kaytor. ( E.g., id. at 186-87.) Coworkers who overheard these comments would come up to Kaytor and say, “ ‘Do you realize what he's saying, Sharon? You should start thinking about taking it more seriously.’ ” ( Id. at 187.) Kaytor testified that, instead, she “would brush it off time and time again.” ( Id. at 186.) Kaytor did not complain to the Company's human resources department (“HR”) about the choking comments but did complain to her union counselor, who told her to “ ‘cut [McCarthy] some slack’ ” because he was “going through a divorce”; so she kept “brushing it off thinking he doesn't mean it.... But the more he kept saying it, [she] became a little bit nervous.” ( Id. at 191.) Kaytor testified that on one occasion, McCarthy “called me into his office ... and he said out of the blue, ‘I wish you were retired.’ And I said, ‘Why?’ And he said, ‘So I could come to your home and choke you.’ ” ( Id. at 188.)

Kaytor also described an incident in which she had informed McCarthy that she needed to leave the office at a certain time for a doctor's appointment, and she and some of her female coworkers had discussed that she was to have her annual checkup with her gynecologist. McCarthy apparently overheard that discussion; and as Kaytor was leaving, walking down the hallway, McCarthy yelled, in the presence of several coworkers, “ ‘You are going where every man wants to be.’ ” (Kaytor Dep. 177, 206-07.) On another occasion, McCarthy “stated that [Kaytor] was spreading [her] legs for the doctor.” ( Id. at 177.)

Kaytor complained about some of these events to her union representative; but until April 2005, she had not complained to Electric Boat's higher management. In early 2005, Kaytor had told McCarthy that if he did not cease his comments she was going to report his remarks to a Company vice president; in response, McCarthy got a “horrid look on his face and he said ‘I'll kill you.’ ” (Kaytor Dep. 241-42.) “[S]cared to death” by this response, Kaytor “went back to [her] office” and said to herself, “ ‘Oh boy, I better never do that.’ ” ( Id. at 242.)

The incident that finally led Kaytor to complain to Electric Boat's higher management occurred in late April 2005, on “Administrative Assistant's Day.” It was a custom in the Company's engineering department for supervisors to recognize that day by giving their administrative assistants or secretaries gifts. In the years prior to 2005, McCarthy had given Kaytor nice flowers or gifts of $100 or $200. ( See Kaytor Dep. 210, 221.) On April 27, 2005, McCarthy gave Kaytor an unattractive potted bush and a card that Kaytor believed were intended to be “derogatory and sexual.” ( Id. at 225.) The handwritten message on the card read, “I wish you the best and thank you for your help this past year. The plant is/can be planted outside and I hope bring [s] you pleasure in the years ahead.” (Kaytor Dep. Exhibit 37 (emphases in original).) Kaytor found the card offensive because of the nature of the plant ( see Kaytor Dep. 221): The plant was a variety of Salix commonly known as a pussy willow.

B. The Company's Response to Kaytor's Protest

“[A]fter the pussy willow incident,” Kaytor “couldn't take any more.” (Kaytor Dep. 185.) She complained to the Company's ombudsperson; and, within a week or two of the incident (a delay “because [she] was scared” ( id. at 186)), she complained about McCarthy to HR. The pussy willow bush was apparently the talk of the office. Kaytor testified that an HR employee, Cheryl Stergio, told her that “people were talking about it throughout the plant” ( id. at 280), and that Stergio said “coming in to work,” and just walking down the hall, “she could hear people talking about what McCarthy did...