Sclafani v. Pc Richard & Son

• Decision Date: 09 November 2009
• Docket Number: No. 07-CV-3767 (JFB)(ARL).,07-CV-3767 (JFB)(ARL).
• Citation: 668 F.Supp.2d 423
• Parties: Lisa SCLAFANI, Plaintiff, v. PC RICHARD & SON, Li Corp., Joe Van Glahn (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Frank Riccardo (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Bonni Richard (sued in her individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Steve Huff (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), and Jerry Piscopo Jr. (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Defendants.
• Court: U.S. District Court — Eastern District of New York

668 F.Supp.2d 423

Lisa SCLAFANI, Plaintiff, v. PC RICHARD & SON, Li Corp., Joe Van Glahn (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Frank Riccardo (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Bonni Richard (sued in her individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Steve Huff (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), and Jerry Piscopo Jr. (sued in his individual capacity pursuant to N.Y. Executive Law § 290 et seq.), Defendants.

No. 07-CV-3767 (JFB)(ARL).

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

November 9, 2009.

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Scott Michael Mishkin, PC, by John Nicolas Forte, Islandia, NY, for Plaintiff.

Jackson Lewis LLP, Melville, NY, Kaufman Dolowich Voluck & Gonzo LLP, Woodbury, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Lisa Sclafani ("plaintiff" or "Sclafani") brought this action on September 10, 2007 against defendants PC Richard & Son ("PCR"), Joe Van Glahn ("Van Glahn"), Frank Riccardo ("Riccardo"), Bonni Richard ("Rondinello"), Steve Huff ("Huff"),¹ and Jerry Piscopo Jr. ("Piscopo"), alleging that defendants discriminated against her on the basis of gender during her employment at PCR by subjecting her to a hostile work environment, retaliated against her for complaining about same, discriminated against her on the basis of disability, retaliated against her for requesting a reasonable accommodation of her disability, and are liable for an assault and battery committed by Piscopo. Against PCR, plaintiff asserts claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, New York Executive Law § 290 et seq. ("NYSHRL"), and the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. ("ADA"). Plaintiff also sues the individual defendants based on the same alleged conduct pursuant to the NYSHRL, New York Executive Law § 296(6). Finally, plaintiff brings a New York assault and battery claim against Piscopo, and against PCR for that tort under a theory of vicarious liability.

Defendants now move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are granted in part and denied in part.

I. BACKGROUND

A. Facts

The facts relevant to the instant motion are set forth in the Discussion section infra. They are taken from the parties' depositions, affidavits, exhibits, and from the parties' respective Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 (2d Cir.2005).

B. Procedural History

Plaintiff filed this action on September 10, 2007. PCR and the manager defendants answered on December 5, 2007, and Piscopo answered on January 15, 2008. On June 22, 2009, all defendants filed the instant motions for summary judgment. Plaintiff submitted her opposition on July 22, 2009. Defendants submitted their replies on August 3, 2009. Oral argument was held on September 18, 2009. Defendants submitted a letter on September 21, 2009, in order to address a case discussed during oral argument. Although plaintiffs objected on September 23, 2009 to the Court's consideration of defendants' letter, the Court has considered that letter and all other submissions of the parties.

II. STANDARD OF REVIEW

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted). The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:

We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").

Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir.2006) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.2001)).

III. DISCUSSION

Plaintiff alleges, under Title VII and the NYSHRL, that defendants subjected her to a hostile work environment on the basis of her gender, and further took retaliatory action against her when she complained about the harassment.² Plaintiff also alleges, under the ADA and the NYSHRL, that defendants discriminated against her on the basis of disability and retaliated against her for requesting a reasonable accommodation of her disability. Finally, plaintiff brings an assault and battery claim against Piscopo and, under a vicarious liability theory, against PCR for that tort. The Court examines each claim in turn.

A. Sex Discrimination and Retaliation Claims³

1. Hostile Work Environment Claim

Plaintiff claims that defendants subjected her to a hostile work environment. Defendants contend that summary judgment is warranted on this claim because, even if the jury credited plaintiff's evidence with respect to these allegations, no rational jury could find that the alleged hostile work environment was attributable to plaintiff's gender. Defendants also argue that plaintiff did not subjectively believe her work environment was hostile. As set forth below, the Court disagrees and concludes, after a careful review of the evidence in the record and drawing all reasonable inferences in plaintiff's favor, that there are genuine issues of fact that preclude summary judgment on whether plaintiff was subjected to a hostile work environment based upon her gender and whether plaintiff subjectively believed her work environment was hostile.

a. Legal Standard

In order to prevail on a hostile work environment claim, a plaintiff must satisfy two elements: "`(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.'" Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.2003) (quoting Richardson v. N.Y. State Dept. of Correctional Service, 180 F.3d 426, 436 (2d Cir.1999)); accord Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir.2003); Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.2000).

With respect to the first element, which determines whether or not a hostile work environment can be established, the Second Circuit has held that there is no "magic" threshold number of harassing incidents that is required as a matter of law. See Richardson, 180 F.3d at 439. Rather, a hostile work environment is determined by "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably...