Van Zant v. KLM Royal Dutch Airlines

• Decision Date: 28 March 1996
• Docket Number: No. 72,D,72
• Citation: 80 F.3d 708
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 562, 68 Empl. Prac. Dec. P 44,006 KAREN VAN ZANT, Plaintiff-Appellant, v. KLM ROYAL DUTCH AIRLINES; and Kenneth Hasan King, Defendants-Appellees. ocket 95-7032.
• Court: U.S. Court of Appeals — Second Circuit

Page 708

80 F.3d 708

70 Fair Empl.Prac.Cas. (BNA) 562,

68 Empl. Prac. Dec. P 44,006

KAREN VAN ZANT, Plaintiff-Appellant, v. KLM ROYAL DUTCH AIRLINES; and Kenneth Hasan King,

Defendants-Appellees.

No. 72, Docket 95-7032.

United States Court of Appeals,

Second Circuit.

Argued Sept. 7, 1995.

Decided March 28, 1996.

L. Kevin Sheridan, New York City (Philip J. Dinhofer, Jesse C. Sable, Sable, Gold & Dinhofer, New York City, of counsel), for Plaintiff-Appellant.

Michael J. Dimattia, New York City (Judith A. Hagley, Ross & Hardies, New York City, of counsel), for Defendants-Appellees.

Before: KEARSE, JACOBS, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Karen Van Zant appeals from the district court's grant of summary judgment in favor of her former employer, KLM Royal Dutch Airlines ("KLM"), dismissing her complaint, which alleged unlawful sex discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and under New York's Human Rights Law, N.Y. Exec. Law § 290 et seq. Van Zant's complaint alleged that KLM fostered a hostile work environment arising from her sexual harassment by a co-worker and then retaliated against her for complaining. The district court (Constance Baker Motley, Judge ) found (1) that Van Zant's federal cause of action, in major part, occurred prior to October 9, 1991, and was therefore time barred under the rules governing Title VII litigation, and (2) that she had in any event failed to show that there was a genuine issue for trial. We agree with the district court on both points and therefore affirm the judgment below.

Background

Because summary judgment was granted against Van Zant, we consider the evidence in the light most favorable to her. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir.1995). Van Zant began work for KLM at its Elmsford, New York, office in August 1987, and in June 1988 was transferred to the cargo division, where she became a junior accountant. Her early performance reviews were generally positive. In 1990, she applied for a promotion to become a cargo accounting supervisor, but the job went instead to a co-worker, Emily Browne, who became Van Zant's immediate supervisor. In June 1991, Van Zant and other colleagues were upgraded to senior accountants.

I. Harassment/Hostile Work Environment

Around the end of 1989, KLM hired Hasan King as a mailroom clerk. This job required him to move about the company's facility delivering mail and packages. King had a penchant for socializing and for making inappropriate comments and gestures to female employees. According to Van Zant, King started flirting with her in late 1990, and became more aggressive during the summer of 1991, making lewd sexual remarks to her. Van Zant's supervisor, Browne, was apparently aware of King's behavior toward her, but Van Zant did not ask Browne to take action and none was taken.

On Saturday, August 24, 1991, Van Zant came into the office on her own time to work on a project that was to be evaluated as part of her application for promotion. Early in the afternoon, King made a vulgar pass at Van Zant and exposed himself to her. The first thing Monday morning, August 26, Van Zant told her supervisor Browne what had happened. Browne took the complaint seriously and reported the incident to Terry Mulchahey, KLM's personnel director. In response, within a day and a half, Mulchahey questioned Van Zant, another employee with whom Van Zant had spoken immediately after the incident, and King.

The next day, August 27, 1991, Mulchahey informed Van Zant that King had denied exposing himself and that it would be necessary to hold a grievance committee meeting to resolve the contradiction.

On August 28, apparently frustrated that KLM had not yet taken action against King, Van Zant and Browne went to see Gene Jones, a company vice-president. At this meeting, according to Van Zant, the following occurred: Jones expressed skepticism about Van Zant's charges and said that women often lie about being raped. Mulchahey, who was also at the meeting, advised them that King had complained that a grievance committee hearing would be unfair to him because he had seen Van Zant and Browne conferring with one of the grievance committee members. Accordingly, Mulchahey said the grievance committee would not be convened at that time. Mulchahey then informed Van Zant that KLM could not keep King away from her work area, presumably because his duties included delivering the mail. Van Zant then said that she would go to the police; Jones expressed doubt that she would be believed because it was one person's word against another.

The next day, August 29, Van Zant filed a complaint with the police. The same day, Mulchahey delivered a letter of reprimand to King. The letter stated in part:

You have acknowledged to me that on Saturday, August 24, 1991, you approached [Van Zant] in her work area and began making romantic suggestions and issuing social invitations to her. She refused these approaches and asked you to go away and leave her alone. You persisted in your approach. In addition, [Van Zant] alleges that you became very graphic in your language and suggestions, and that you exposed yourself to her. You deny that you exposed yourself. The matter of whether or not you exposed yourself ... is currently the subject of a criminal complaint. KLM reserves the right to take further action in this matter pending the outcome of those proceedings.

Whatever the outcome of the criminal matter, you have admitted conduct which is unacceptable to KLM. [Van Zant] had asked you to stop and leave her alone: it is clear from this that your attentions toward her were unwanted, and she found your behavior offensive and intimidating. Such conduct is completely unacceptable to KLM and will not be tolerated. In the future, you are to conduct yourself in a manner which is absolutely correct and proper. You are to keep your contact with [Van Zant] to the minimum required for you to successfully meet the requirements of your position and such contact shall be limited to strictly business matters.

In your dealings with all KLMers, you should avoid any unwanted behavior or conversation that others may find hostile, offensive, or intimidating. Any further complaints regarding your conduct and behavior will be investigated and further disciplinary action, up to and possibly including termination of employment, will be taken if warranted.

On August 30, Van Zant returned to work with a court order of protection directed against King. Mulchahey gave her a copy of the letter of reprimand he had delivered to King.

As a result of the investigation growing out of Van Zant's complaint to the police, KLM soon learned that King had a prior criminal record, which he had failed to disclose in his job application to KLM. The company therefore fired King on September 5, 1991.

In January 1992, King pled guilty to criminal charges resulting from the August 24th exposure incident. In court that day, Van Zant saw Mulchahey shake King's hand and wish him well.

II. Retaliation

In September 1991, shortly after King left KLM, Van Zant was denied the promotion she had been working for that summer. KLM gave the position to an outsider and sent Van Zant a letter explaining that it did not think she had the requisite skills for the job. Two other KLM employees who had sought the position were also rejected.

Around this time, according to Van Zant, Browne--who had been quite supportive throughout the King incident--became "short and nasty" and would yell at her during meetings. Van Zant acknowledged that Browne yelled at others as well.

In spring 1992, Van Zant received her first evaluation in her position as senior accountant. The evaluation was poor. Along with other newly promoted employees, she was denied a salary increase and placed on probation pending improvement of her "sub-standard" performance.

On August 4, 1992, Van Zant filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging KLM with employment discrimination and sexual harassment. The EEOC gave Van Zant a "right to sue" letter to commence this action on March 11, 1993, which she did within 90 days of receipt of the letter.

One day in March 1993, Van Zant saw King outside the KLM building, and then in July of that year she saw him near her work area in the building. On the latter date, Van Zant became upset and was given the day off by Browne. The following week, KLM offered Van Zant a paid, voluntary leave of absence. According to Van Zant, Browne told her that this leave was to last until the conclusion of her litigation against KLM. However, the letter formally granting the leave made clear that it was subject to review by KLM.

On November 12, 1993, after Van Zant had been on leave for three months, Mulchahey phoned her and asked her to come to his office to discuss her leave and her return to work. She refused and told Mulchahey that all communications should be through their attorneys. On November 23, 1993, Mulchahey sent her a telegram again asking that she come in to discuss her situation, and he sent a letter by overnight mail on November 24th reiterating that request. Van Zant did not respond and did not to report to work. As a result, KLM terminated her employment on November 30, 1993.

Discussion

I. Title VII

We agree with Judge Motley that Van Zant's Title VII cause of action is, in major part, time barred. Title VII requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. See 42 U.S.C. § 2000e-5(e); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir.1992). This statutory requirement is analogous to a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 1133, ...