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Verizon Employee Alleges Hostile Work Environment

Pucino v. Verizon Communications, Inc., Case No. 09-1306 (C.A. 2, Aug. 13, 2010)

Appeal from a judgment of the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge) granting defendant’s motion for summary judgment dismissing appellant’s hostile work environment claim. We vacate and remand.

Joan Pucino appeals from Judge Gardephes grant of summary judgment dismissing her claim that Verizon Communications, Inc., maintained a hostile working environment at the garage where she was employed. We vacate and remand.

BACKGROUND

a) Factual Background

Given that this appeal is from a grant of summary judgment, we view the evidence in the light most favorable to appellant. See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). Our recitation of the facts, therefore, is simply a description of the evidence appellant proffered in opposition to the motion for summary judgment.

Pucino began working for Verizon’s predecessor company in 1982, at first as a long-distance operator and then, from 1991 until the end of 2002, as a field technician in Newburgh, New York. Field technicians install and repair telecommunications cable. Pucino worked at Pierce’s Road Garage from 1991 to 1995 and was then transferred to the Union Avenue Garage, where she worked until her retirement in December 2002. The Union Avenue Garage employed anywhere from sixty to one-hundred-and-ten field technicians at a time during this period, but never more than five of them were women at any one time.
 

 

Judge(s): Winter, Raggi, and Livingston
Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Employment
 
Circuit Court Judge(s)
Debra Livingston
Reena Raggi
Ralph Winter, Jr.

 
Trial Court Judge(s)
Paul Gardephe

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Stephen Bergstein Bergstein & Ullrich, LLP
Helen Ullrich Bergstein & Ullrich, LLP

 
Defendant Lawyer(s) Defendant Law Firm(s)
Stephen Kinnaird Paul Hastings LLP
Christopher Reilly Paul Hastings LLP
Carla Walworth Paul Hastings LLP

 
Amicus Lawyer(s) Amicus Law Firm(s)
Gail Coleman United States Equal Employment Opportunity Commission
Lorraine Davis United States Equal Employment Opportunity Commission
James Lee United States Equal Employment Opportunity Commission
Carolyn Wheeler United States Equal Employment Opportunity Commission

 

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Click the maroon box above for a formatted PDF of the decision.
16 support an inference that the conduct in question was gender- 1 women. it surely is the case that use of that word in many 20 was employed. we vacate and remand. 5 discussion 17 element, a plaintiff need not show that her hostile working 14 sex-neutral on their face were in fact discriminatory." alfano, 15 294 f.3d at 378. a plaintiff may rely on incidents of sex-based 16 was corroborated by other witnesses, including dauer, burton, and 17 based. we disagree. while "purely conclusory allegations of 7 justin hinspeter and kevin moore served as foremen at the 20 998 (2d cir. 1985), pucino has proffered detailed evidence that 13 13 defendant-appellee. 7 commonplace for male workers to do the same on hot days. the 16 could find that hinspeter's "constant" use of the word over 16 performance." harris, 510 u.s. at 23. in establishing this 2 2. objective & subjective hostility 21 conditions. see terry v. ashcroft, 336 f.3d 128, 148-49 (2d cir. plaintiffs alleging discrimination based on sex must also3 9 11 makes it possible to reach overhead telecommunications wires. 24 worse shape than those assigned to less senior males and that 23 because of gender animus."). 2 dauer did not appeal. pucino appeals only from the grant of 11 that was provided male co-workers. verizon has proffered no 20 "just as productive as [pucino]." irvin further said that 15 affidavit claimed that hinspeter and moore had repeatedly singled 13 united states equal employment 15 gender in the provision or denial of tools and the use of bucket 2 taken out of service because of their age. 16 trucks. there was similar evidence with regard to access to 22 2003); see also brennan, 192 f.3d at 318 ("[a] plaintiff must 18 and reflected hostility to women. see eeoc v. pvnf, l.l.c., 487 4 plaintiff's] general allegations of constant abuse, which were 1 (holding that a rational jury could infer that facially-neutral 23 beyond work assignments, pucino stated that, on many 17 out in the field, hinspeter and moore reprimanded pucino for 2 work location even though it was common practice to allow 8 62, 75 (2d cir. 2001) (crediting testimony in support of a 15 foremen made permanent and temporary bucket truck assignments to 15 insisted that pucino first call one of them when she needed 20 combination of these elements, to have altered her working 7 piperato took their permanently-assigned trucks with them. upon 24 consistent with this opinion. 8 plaintiff-appellant, 32 york. field technicians install and repair telecommunications 17 there was evidentiary corroboration of these claims. 12 inference that such conduct was gender-based could be drawn by a 6 harassment, even in the absence of specific details about each 2 (internal citation omitted). and again, in addressing this 17 restrooms, and the verbal abuse affected most of the major 13 for the foremen's conduct. 16 her out for intense and often public criticism. 7 cir. 2007) ("[a] gender-specific term of abuse, such as `son of a 17 pucino and dauer filed equal employment opportunity 10 piperato to keep his truck at the expense of more senior males. 24 the "off the job" reprimands pucino had received for using public provide "a specific basis . . . for imputing the objectionable 4 involving the two foremen were in fact gender-based. "there is 09-1306-cv 13 also would tell her to "go fuck herself." and while male workers 7 18 judgment dismissing her claim that verizon communications, inc., 7 incident." id.; see also holtz v. rockefeller & co., 258 f.3d 3 defendant-appellee. 17 threatened burton with discipline because he had asked pucino to 11 pucino's eeo complaint, "they are going to come into our garage, 2 19 accordingly, we hold that a rational juror could find the 5 technicians at a time during this period, but never more than 1 cable. pucino worked at pierce's road garage from 1991 to 1995 8 4 applying these standards, we conclude that pucino has 2 id. at 631. in discussing the district court's grant of summary 7 pucino offered evidence showing that both hinspeter and 5 little question that incidents that are facially sex-neutral may 4 limit our inquiry to that claim. 3 several sexually-derogatory statements). 15 evidence upon which pucino relies is simply too conclusory to 8 simply too conclusory and lacking in concrete particulars to 6 work properly. 20 warned burton to stay away from pucino, saying that pucino was 22 that were sex-based. in that regard, pucino and the eeoc suggest 4 denied the same request from her moments earlier. denial of 3 for spending too much time on a "no-access" job even though her 3 from where she worked, which were segregated by sex. 16 tools, the use of a bucket truck, the issues as to use of 8 trucks even though she was eligible for them under company 6 create an abusive working environment." harris, 510 u.s. at 21 20 allow a trier of fact to find disparate treatment based on 16 men based on seniority. pucino stated that foremen at both 14 opportunity commission. 9 some not." alfano, 294 f.3d at 375. here, even if incidents, 12 the alleged abuse occurred "constantly" or "frequently." 21 was available to help but then, in pucino's presence, would grant 5 docket no. 09-1306-cv 6 amounted to nothing more than minor annoyances and 21 pervasive to alter the conditions of her employment. 3 summary judgment on her hostile workplace claim. we therefore 4 3 we turn now to whether a rational juror could find that the 22 a male worker's request for help. hinspeter told pucino to "get 8 foremen then implemented a new policy prohibiting such stops and 15 b e f o r e: winter, raggi, and livingston, circuit judges. we review discrimination claims brought under the nyshrl2 19 the two filed suit on july 8, 2003 alleging gender discrimination 16 winter, circuit judge: 11 routinely assigned her work that was less desirable than the work 22 "sufficiently severe or pervasive to alter the conditions of the 14 ----------------------------------------------------------------- 19 with regard to the conclusions of pucino's evidence as to 23 hinspeter and moore "constantly" watched pucino, "far in excess" 20 indisputably gender-related remarks, and tolerated the use of the 13 "construe the facts in the light most favorable to the non-moving 6 "we review a district court's grant of summary judgment de 4 as another example of discriminatory discipline, pucino 12 1999). relevant circumstances include: "the frequency of the 29 pucino began working for verizon's predecessor company in 10 presence of women in the workplace,'" raniola, 243 f.3d at 621 7 joan pucino, 5 offered sufficient evidence to allow a trier of fact to find that 6 overtime work, even though such work was usually assigned equally 13 alone in parts of newburgh considered unsafe. men were never 17 joan pucino appeals from judge gardephe's grant of summary 15 19 pucino preferred public bathrooms because the bathrooms where she 12 18 aspects of pucino's employment. 4 meaning or that its usage need not be viewed in context. see 8 two of pucino's co-workers corroborated pucino's account of 7 the verizon foremen routinely denied pucino access to bucket 14 for behavior that was commonplace, and unremarked upon, among the 16 appeal from a judgment of the united states district court 25 see beyer v. cnty. of nassau, 524 f.3d 160, 163 (2d cir. 2008). 13 out of the union avenue garage. robert burton, a male coworker pucino v. verizon communications 20 deny pucino's requests for assistance on the ground that no one 21 find that hinspeter and moore engaged in verbal attacks on pucino 4 (argued: december 4, 2009 decided: august 13, 2010) 19 f.3d 790, 799 (10th cir. 2007) ("[defendant] frequently made 19 maintained a hostile working environment at the garage where she 6 294 f.3d 365, 378 (2d cir. 2002); raniola v. bratton, 243 f.3d conduct of the two verizon foremen to it. 11 5 confirmed by her coworkers, it could reasonably find pervasive 10 such as the denial of overtime, did not directly amount to 17 irvin. we thus conclude that pucino's evidence was sufficient to 1 pucino also stated that hinspeter would routinely change her 12 washington, d.c., for amicus curiae pucino and dauer. the district court issued a separate order 12 servs., inc., 523 u.s. 75, 80 (1998)), or by offering "some 5 testified that hinspeter and moore had reprimanded her for 13 torres precedent. she has described the nature of the alleged 560, 565 n.1 (2d cir. 2000). 14 notwithstanding the above analysis, verizon argues that the 14 same." two days later, someone in the union avenue garage placed 9 materials on file, and any affidavits show that there is no 12 evidence suggesting a legitimate non-discriminatory explanation 10 plaintiffs, 31 until the end of 2002, as a field technician in newburgh, new 16 b) procedural history 19 up to monitor her work. on several occasions, hinspeter would 17 pierce's road garage and union avenue garage would frequently 3 inference that the other complained-of instances of abuse 21 martinex, and bob wilkens received bucket truck assignments even 14 assigned to work alone in those areas. hinspeter and moore also 1 bathrooms. fearing similar discipline, dauer began to document 6 stopping at a store for a cold drink, even though it was 23 dauer stated that, while working at pierce's, she became aware of 12 judgment about the word's use. we therefore reject a rule that 4 they could become familiar with it. on at least ten occasions, 15 having said that, we also have no doubt that such a trier 8 moore subjected women to disparately harsh working conditions. 5 until july 2001, when she was transferred to the union avenue 10 based on her sex.") (internal citation omitted). we also see no 18 help him out on a project where the use of a second worker was 11 her to harsher, more public criticism than male co-workers. 11 it." brennan v. metro. opera ass'n, 192 f.3d 310, 318 (2d cir. 22 ullrich, on the brief), bergstein & 14 party and must resolve all ambiguities and draw all reasonable 1 dauer, for her part, testified that hinspeter subjected her to 14 abuse in some detail. although she omitted specifics as to the 21 "hinspeter singled [pucino] out for rougher, longer and more 15 pucino's working conditions. work assignments, the provision of 19 said that hinspeter would insult male co-workers by calling them 21 recount each and every instance of abuse to show pervasiveness. 4 male co-workers spent the same amount of time on that job without 24 of their supervision of any male coworker in the same work group. 8 bitch,' need not imply hostility based on the abused person's sex 22 burton worked with pucino. 5 20 the frequency of the abuse, a plaintiff, to prevail, need not 23 stated that the few trucks she did receive were older and in 2 and was then transferred to the union avenue garage, where she 27 reilly & stephen b. kinnaird on the 4 336 f.3d at 148-49. 19 sufficiently severe or sufficiently pervasive, or a sufficient 4 assignments. dauer worked at pierce's road garage from 1995 20 in violation of 42 u.s.c. 2000e ("title vii") and the new york 23 witnessed such conduct. for that reason, we conclude that pucino 22 though she had more seniority than any of them. pucino also 10 18 gregory irvin, a union shop steward who observed the workplace, 22 in torres v. pisano, 116 f.3d 625 (2d cir. 1997), a plaintiff 7 (internal quotation marks omitted). the relevant inquiry focuses 2 specifically recalled one occasion when hinspeter granted andy 9 will be considered hostile if a reasonable person would have 1 the very tools that he had just told her were unavailable. she 23 given that this appeal is from a grant of summary judgment, 1 united states court of appeals 5 hinspeter skipped over her when it was her turn to receive 7 davis, acing associate general 2 walker llp, new york, new york, for 22 conclusion 11 employment opportunity commission, 11 frequency of the abuse simply by stating in her affidavit that 23 we therefore vacate and remand for further proceedings 14 use, and reach much higher. because of their desirability, the 4 21 other security to prevent men from walking in. dauer also 20 pucino also offered evidence sufficient to allow a trier to 28 for summary judgment. 12 assigned to male workers. pucino was frequently assigned to work 9 union avenue garage that pucino had filed the complaint with the 22 vicious treatment than anyone else." burton stated that 11 newburgh alone even though men never had to work there alone. 21 gender, resulting in a hostile working environment that was 2 1. "based on sex" 19 suffice to avoid summary judgment, meiri v. dacon, 759 f.2d 989, 9 openly blamed pucino for that policy. 13 trier because hinspeter and moore were behind them. 1 we also conclude that the combination of disparate treatment 15 a large dead snake in pucino's work truck. 16 assistance on a job, while the two foremen allowed male workers 9 hostile work environment claim that plaintiff was "constantly" or 8 union avenue garage between 1995 and 2001. foremen were 10 for monitoring the quality of that work. hinspeter and moore 21 "trouble." he thereafter questioned burton closely whenever 24 plaintiff-appellant. 4 gender-based conduct in question was "sufficiently severe or 10 in particular, it argues that pucino cannot establish the 9 policy. a bucket truck is a large pick-up truck equipped with an 5 kriss v. sprint commc'ns co., 58 f.3d 1276, 1281 (8th cir. 1995); 16 abuse to show that other ostensibly sex-neutral conduct was, in 17 for the southern district of new york (paul g. gardephe, judge) 1 has proffered evidence sufficient to show gender-based discrimination. 6 sometimes be used to establish a course of sex-based 3 in assessing the "totality of the circumstances" offered to 14 were usually criticized privately for their mistakes, pucino's 6 deputy general counsel; lorraine c. 10 dauer stated that hinspeter also sent her into two-man areas of 1 (internal quotation marks omitted).2 18 trier of fact to conclude there was an attempt to force female 16 quotation marks omitted). 3 dauer described a similar experience with bucket truck 11 v. 12 dauer received such assignments about once a week while working 9 any more than saying `she is a bad worker' need imply hostility 23 victim's employment and create an abusive working environment 21 word `bitch' to describe [plaintiff]. under these circumstances, 12 56(c)(2). in deciding whether the district court erred, we must 1 even these trucks were soon given away to other workers or else 9 assistant general counsel on the 9 these included the disparate assignment of work in dangerous 20 treatment of pucino to be sufficiently severe or sufficiently 3 use of the word "bitch" always and in every context has that 7 discrimination -- for example, where the same individual is 30 1982, at first as a long-distance operator and then, from 1991 22 attested to the bad conditions of verizon's unisex bathrooms. 5 pervasive to alter the conditions of the victim's employment and 25 2 much the same treatment. for example, hinspeter reprimanded her 3 embler's request for a "b tool" (used to open boxes) when he had 15 and moore harass pucino when she requested assistance on 18 being "off the job" on occasions when she used public facilities. 11 (alteration in original) (quoting oncale v. sundowner offshore 4 prove a hostile work environment, a fact-finder may consider only 13 with large ladders -- because the trucks are safer, easier to 21 state human rights law, new york executive law 296 ("nyshrl").1 12 take over our garage. every word is going to be scrutinized. 6 the public criticism of pucino persisted even after she 24 concerted' to be considered pervasive, or that a single episode 22 workers differently, including the accounts of others who 24 epithet that its use implies as a matter of law hostility toward 2 contexts reflects such hostility. however, we cannot say that 24 that she `lost count' - but that she could recall the exact 23 testified that a supervisor "constantly harassed her - so often 3 august term, 2009 10 "daily" made the victim of wanted physical contact); brennan, 192 24 occasions, hinspeter would grant her male co-workers access to 2 and gender-based verbal abuse here can support a further 18 pucino's requests for help when she called and would instead show 18 environment was both severe and pervasive; only that it was 19 appellant's hostile work environment claim. we vacate and 5 tools made it difficult, if not impossible, for her to perform her according to the same standards that we apply to title vii 3 question, we consider the totality of circumstances. see terry, 12 hinspeter "constantly" called pucino a "bitch" and "stupid" and 8 counsel; carolyn l. wheeler, 17 fact, sex-based. see raniola, 243 f.3d at 621-22; see also 26 our recitation of the facts, therefore, is simply a description 5 the district court concluded that the challenged conduct 15 12 bucket truck were denied in favor of less senior male workers. 7 inconveniences. verizon once again argues that the record is 5 gail s. coleman (james l. lee, 24 we view the evidence in the light most favorable to appellant. 16 19 environment claim requires her to proffer sufficient evidence to 23 lost" and to "go kill herself" on occasions when she pointed out 3 technicians to work continuously in one area of the city so that 21 hinspeter and moore treated similarly-situated male and female 14 hostility to be drawn from its use. 15 men. for example, although there was no company policy against 17 to call directly to dispatch for help. the foremen often refused 20 worked were unisex, generally dirty, and also lacked doors or 4 garage employed anywhere from sixty to one-hundred-and-ten field discrimination claims. see cruz v. coach stores, inc., 202 f.3d 5 abusive conduct proven to be "based on sex." alfano v. costello, 11 dauer further recalled that many of her requests for a temporary 8 accused of multiple acts of harassment, some overtly sexual and 22 a) factual background 19 employees to use restrooms that had no locks. 11 entitled to judgment as a matter of law." fed. r. civ. p. granting summary judgment to verizon on cole's claims and, like 18 howley v. town of stratford, 217 f.3d 141, 156 (2d cir. 2000) 10 genuine issue as to any material fact and that the movant is 9 avoid summary judgment on the question of objective hostility. 20 specifically recalled that co-workers ted saltershack, paul 19 seniority over the male co-workers who received them. she conduct to the employer." alfano, 294 f.3d at 373. verizon does 17 a) title vii hostile work environment claim 24 this inconsistency in treatment. 9 debora cole and maryanne dauer, 19 routine and never questioned by the foremen. hinspeter even 9 hinspeter's behavior with respect to work assignments. maryanne 10 enclosed platform attached to a mechanical arm that, when lifted, 10 found it to be so and if the plaintiff subjectively so perceived 11 need to worry that a trier of fact cannot make the appropriate 13 pucino stated that hinspeter and moore often reprimanded her 16 assignments that were routinely "two-man" jobs. hinspeter once 10 areas and the refusal to provide assistance to female workers 18 granting defendant's motion for summary judgment dismissing 2 her own travel time to bathrooms in verizon offices several miles 7 to all field technicians on a rolling basis. 10 finally, pucino stated that hinspeter and moore subjected 1 is `severe enough' to establish a hostile working environment.") 13 circumstantial or other basis for inferring that incidents 13 would automatically command an inference of gender-based 8 appropriate only if "the pleadings, the discovery and disclosure 14 threatening or humiliating, or a mere offensive utterance; and 6 five of them were women at any one time. 13 you are going to be followed, and the garage will never be the 23 ullrich llp, chester, new york, for 15 date and circumstances of each instance of abuse, her testimony 8 on both objective and subjective hostility: "a work environment 18 allow a trier to find pervasiveness. 14 in the union avenue garage, stated that he had observed hinspeter 22 we think a jury should decide whether these comments were made 23 still prove that the incidents were `sufficiently continuous and 21 background 8 in such sex-specific and derogatory terms . . . [as] to make it 6 15 whether it unreasonably interferes with an employee's work not dispute that pucino could impute the alleged objectionable 16 using public bathrooms and male co-workers openly used them while 8 dauer's arrival at the union avenue garage, hinspeter gave her 14 12 list of specific acts"). pucino's evidence fits within the 1 brief), paul, hastings, janofsky & 6 garage along with co-worker danny piperato. both dauer and 11 f.3d at 318 (explaining that "[a] plaintiff need not present a 8 opportunity ("eeo") hotline. moore publicly announced to the 18 commission ("eeoc") charges against verizon on march 30, 2001 and 23 that the word "bitch" is such an intensely degrading sexual 7 filed a complaint with verizon's internal equal employment 24 . . . ." harris v. forklift sys., inc., 510 u.s. 17, 21 (1993) 26 carla r. walworth (christopher 3 9 clear that the harasser is motivated by general hostility to the 20 remand. 5 receiving any criticism. 9 responsible for assigning work and equipment to technicians and 18 in the present procedural context, pucino's hostile work 7 610, 621 (2d cir. 2001). this may be proven by "`harass[ment]3 14 a trier of fact could also find disparate treatment based on 10 brief), united states equal 6 the alleged abuse was indeed sex-based. 27 of the evidence appellant proffered in opposition to the motion 3 judgment, we explained that "if a jury were to credit [the 18 deny her requests for a bucket truck notwithstanding her 3 worked until her retirement in december 2002. the union avenue 12 verizon communications, inc., 14 the harassment and abuse was sufficiently severe to alter 15 inferences against the movant." beyer, 524 f.3d at 163 (internal 6 see also yuknis v. first student, inc., 481 f.3d 552, 555 (7th 11 disparate treatment when considered alone in isolation, an 12 field technicians prefer bucket trucks to the alternative -- vans 1 the district court granted verizon's motion for summary judgment. 17 several years in the context of the present record was sex-based 7 novo." see beyer, 524 f.3d at 163. summary judgment is 18 discrimination" that are devoid of "concrete particulars" do not 21 stephen bergstein (helen g. 2 for the second circuit 13 we disagree. we believe that a trier might easily find that 17 public restrooms by male and female employees that would allow a 9 truck to a male worker with more seniority while allowing 1 dates and circumstances of only a few incidents of harassment." 6 ----------------------------------------------------------------- 2 abuse was sex-based because perpetrator had previously made 10 internal eeo hotline. he then told workers that, because of debora cole, another female coworker, filed suit with1 13 discriminatory conduct; its severity; whether it is physically dauer, cole has not appealed.


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