Murray v. Visiting Nurse Services of N.Y.

• Decision Date: 31 October 2007
• Docket Number: No. 05-CV-5462 (RJS)(KNF).,05-CV-5462 (RJS)(KNF).
• Parties: Joseph MURRAY, Plaintiff, v. VISITING NURSE SERVICES OF NEW YORK, and Howard Frey, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 257

528 F.Supp.2d 257

Joseph MURRAY, Plaintiff, v. VISITING NURSE SERVICES OF NEW YORK, and Howard Frey, Defendants.

No. 05-CV-5462 (RJS)(KNF).

United States District Court, S.D. New York.

October 31, 2007.

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Gregory Scolieri, Esq., Rick Ostrove; Esq., and Thomas Anthony Ricotta, Esq., Leeds Morelli & Brown, P.C., Carle Place, NY, for Plaintiff.

John Patrick Keil, Esq., Collazo Carling & Mish LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge.

Plaintiff Joseph Murray ("Murray") brings this action against defendants Visiting Nurse Services of New York ("VNS") and Howard Frey ("Trey"), alleging employment discrimination on the basis of his gender and sexual orientation, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"); the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("CHRL"), N.Y.C. Admin. Code § 8-101 et seq. Specifically, plaintiff asserts that defendants discriminated against him because he was a heterosexual male, and retaliated against him for complaining about the conduct of homosexual male co-workers. Defendants move for summary judgment as against all of plaintiffs claims. For the reasons that follow, defendants' motion is granted as to plaintiffs Title VII claims, and the Court declines to exercise supplemental jurisdiction over the remaining state and city claims.

I. BACKGROUND

A. Plaintiffs Employment

VNS is a certified home healthcare agency that provides in-home healthcare to New York State residents. (Defs.' 56.1 ¶ 1.)¹ Plaintiff began employment at VNS in or around April 2001 in the position of Business. Supervisor for the Manhattan region of VNS'"Acute Care Program." (Id. ¶ 7.)

In July 2001, defendant Frey, VNS' Regional Operations Controller, promoted plaintiff to the position of Field Security Manager in the Manhattan region. (Id. ¶ 9.) In that position, plaintiff supervised, three other Business Supervisors in their management of the mailroom, the medical supply room, and the office supply room, in addition to supervising the escorts and translators in the Manhattan region. (Id. ¶ 10.) Frey served as plaintiffs supervisor at all times subsequent to plaintiff's promotion. (Id. ¶ 14; Pl.'s 56.1 ¶ 14.)

B. Alleged Harassing Conduct

1. Alleged Offensive Comments

Plaintiff alleges that his co-workers made certain comments in the workplace that he, as a heterosexual male, found offensive. (Defs.' 56.1 ¶ 15; Murray Tr. at 32)² Specifically, according to plaintiff, he overheard male coworkers direct the following comments to other employees: "you're a bitch"; "he's on the rag today"; "when are you going to come out of the closet?"; "are you ladies going to the parade?" (Pl.'s 56.1 ¶ 15.) Furthermore, according to plaintiff, he overheard two or three male co-workers refer to one another as "girls," "ladies," and "bitch." (Defs.' ¶ 15; Pl.'s 56.1 ¶ 15.) Plaintiff asserts that he overheard such comments emanating from another office, located approximately "fifteen feet" down the hall from his own office. (Murray Tr. at 36.) None of these comments were directed at plaintiff, either as an individual or when he was present among a group of co-workers. (Defs.' 56.1 ¶¶ 16-17; Pl.'s 56.1 ¶¶ 16-17.)

Plaintiff also asserts that co-workers would occasionally say "good morning ladies" to groups of male co-workers which included plaintiff. (Murray Tr. at 37-38; Defs.' 56.1 ¶ 16; Pl.'s 56.1 ¶ 16.) Plaintiff specifically identified one co-worker, Michael Soccio ("Soccio"), as making the overwhelming majority of these greetings. (Defs.' 56.1 ¶ 19; Pl.'s 56.1 ¶ 19.) Plaintiff characterized Soccio's demeanor when making such comments as follows:

It was like good morning. It was like matter of fact You know, it was like everyday how do you do.

(Murray Tr. at 38.) Notwithstanding plaintiffs characterization of Soccio's demeanor, plaintiff asserts that he found such greetings offensive because he is "not a woman." (Id.)

At some point in early 2003, plaintiff complained to Frey that he was hearing such comments, and that he found them to be offensive (hereinafter, "the 2003 complaint"). (Murray Tr. at 34-35.) According to plaintiff, after he complained to Frey in early 2003, all of the comments subsided for a period of time. (Defs.' 56.1 ¶¶ 19-20; Pl.'s 56.1 ¶¶ 19-20.) However, plaintiff asserts that, after an indeterminate period of time, he once again began to overhear co-workers making such comments to one another, although coworkers no longer directed such comments at groups of co-workers which included plaintiff. (Murray Tr. at 32-33.) Plaintiff did not report to Frey or to VNS' human resources department that he was once again overhearing such comments. (Defs.' 56.1 ¶ 22; Pl.'s 56.1 ¶ 22.)

In any event, it is undisputed that none of the comments were directed individually at plaintiff while he was apart from groups of other co-workers. (Defs.' 56.1 ¶¶ 16-17; Pl.'s 56.1 ¶¶ 16-17; Murray Tr. at 37-38.)

2. The Newspaper Picture

In February 2004, plaintiff observed a group of employees gathered around a newspaper bearing a photograph of President George W. Bush along with the headline "President Bans Gay Marriage." (Defs.' 56.1 ¶ 24; Pl.'s 56.1 ¶ 24.) Plaintiff observed that someone had drawn on the photograph, in pencil, a picture of a penis beneath the President's mouth (hereinafter, the "picture"). (Id.) One co-worker identified Soccio as the person who had drawn the picture. (Id.) Plaintiff did not ask Soccio if he had drawn the picture. (Id.)

Subsequently, plaintiff took the picture, showed it to one of his subordinates, Lin Gecaj ("Gecaj"), made a photocopy, and stored that copy in a safe at his home. (Defs.' 56.1 ¶ 25.) In addition, in March 2004, plaintiff brought the picture to Frey's attention, and indicated that he found it to be "highly offensive" (hereinafter, "the 2004 complaint"). (Id. ¶ 26; Pl.'s 56.1 ¶ 26; Murray Tr. at 64.) Plaintiff did not report the, picture incident to VNS' human resources department, even though he was aware that discrimination complaints should be directed to that department. (Defs.' 56.1 ¶ 27; Pl.'s 56.1 ¶ 27.) However, according to plaintiff, Frey discouraged plaintiff from forwarding the picture to VNS' human resources department by promising that he would address the matter. (Pl.'s 56.1 ¶ 26.) Specifically, it is undisputed that plaintiff asked Frey to take the picture to VNS' human resources department, but that Frey told plaintiff to leave the picture with Frey and that he would take care of the matter. (Frey Tr. at 11; Pl.'s 56.1 ¶ 26.) Frey then placed the picture in a desk drawer and took no action. (Defs.' 56.1 ¶ 26.) A few weeks later, plaintiff visited Frey and asked what Frey had done with the picture. (Id.; Frey Tr. at 11-12.) According to Frey, at the time of plaintiffs second visit, he had "forgotten all about" the picture and, upon being reminded of it by plaintiff, decided that it would be better to "destroy" the picture rather than report it to VNS' human resources department and risk creating tension between plaintiff and Soccio (the individual whom plaintiff believed to have drawn the picture). (Id.; Frey Tr. at 11-12.) Frey eventually threw the picture away. (Defs.' 56. ¶ 26.)

3. Other Alleged Harassing Conduct

Other than the two complaints to Frey described supra, plaintiff did not make any other complaints to anyone at VNS regarding allegedly offensive behavior by coworkers. (Defs.' 56.1 ¶ 28.) However, plaintiff asserts that he experienced two other instances of offensive conduct and/or comments during his employment at VNS.

First, plaintiff asserts that, at some point in or around 2003 or 2004, he observed Frey "adjust himself on two or three occasions in 2003". (Id. at ¶ 29.) Plaintiff asserts that Frey engaged in such conduct on the "office floor," where there were "fifty or sixty" secretaries and other VNS personnel. (Murray Tr. at 92-93.)

Second, plaintiff alleges that a co-worker, Louis Gioe ("Gioe"), pointed to an object on the floor and told plaintiff "to bend over and pick that up and I'll drive you home." (Murray Tr. at 97; Defs.' 56.1 ¶ 30; Pl.'s 56.1 ¶ 30.) Plaintiff asserts that, although he and Gioe "were acquaintances" who "joked around" (Murray Tr. at 126-27), he found the comment to be a "bad joke" and was offended by it. (Pl.'s 56.1 ¶ 30.)

With regard to all of the conduct described supra, plaintiff concedes that his coworkers' allegedly offensive conduct did not affect his job performance. (Defs.' 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.)

C. Plaintiffs Job Performance

In early 2003, the Senior Mail Clerk in VNS' mailroom, Jose Vargas ("Vargas"), filed a complaint with VNS alleging that plaintiff treated Vargas disrespectfully and picked on him. (Defs.' 56.1 ¶ 32; Pl.'s 56.1 ¶ 32.) In addition, at some later point in 2003, certain mailroom employees complained to VNS that plaintiff favored female employees over male employees, and improperly met with female employees behind closed doors. (Defs.' 56.1 ¶ 35.)

Subsequently, in November 2003, certain, mailroom employees complained to VNS that plaintiff had improperly limited the employees' security card access privileges, thus interfering with the employees' ability to deliver mail. (Defs.' 561. ¶ 36.) Upon receiving such complaints, VNS' Regional Administrator of the Manhattan Acute Care Program, Virginia Field ("Field"), ordered plaintiff to restore the necessary security card access privileges to mailroom personnel. (Defs.' 56.1 ¶ 37.) Plaintiff asserts that he originally restricted the mailroom employees' access at the direction of one of his supervisors, and that he returned such privileges to the mailroom employees immediately upon receiving instructions to do so. (Pl.'s 56.1 ¶¶ 35-36.)

In late 2003, VNS' Employee Relations...