Joan Pucino v. Verizon Communications, Inc.

Appeal from a judgment of the United States District Court

17 for the Southern District of New York (Paul G. Gardephe, Judge)

18 granting defendant's motion for summary judgment dismissing

19 appellant's hostile work environment claim. We vacate and

20 remand.

21 STEPHEN BERGSTEIN (Helen G.

22 Ullrich, on the brief), Bergstein &

23 Ullrich LLP, Chester, New York, for

24 Plaintiff-Appellant.

25

26 CARLA R. WALWORTH (Christopher

27 Reilly & Stephen B. Kinnaird on the

2

1 brief), Paul, Hastings, Janofsky &

2 Walker LLP, New York, New York, for

3 Defendant-Appellee.

45

GAIL S. COLEMAN (James L. Lee,

6 Deputy General Counsel; Lorraine C.

7 Davis, Acing Associate General

8 Counsel; Carolyn L. Wheeler,

9 Assistant General Counsel on the

10 brief), United States Equal

11 Employment Opportunity Commission,

12 Washington, D.C., for Amicus Curiae

13 United States Equal Employment

14 Opportunity Commission.

15

16 WINTER, Circuit Judge:

17 Joan Pucino appeals from Judge Gardephe's grant of summary

18 judgment dismissing her claim that Verizon Communications, Inc.,

19 maintained a hostile working environment at the garage where she

20 was employed. We vacate and remand.

21 BACKGROUND

22 a) Factual Background

23 Given that this appeal is from a grant of summary judgment,

24 we view the evidence in the light most favorable to appellant.

25 See Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

26 Our recitation of the facts, therefore, is simply a description

27 of the evidence appellant proffered in opposition to the motion

28 for summary judgment.

29 Pucino began working for Verizon's predecessor company in

30 1982, at first as a long-distance operator and then, from 1991

31 until the end of 2002, as a field technician in Newburgh, New

32 York. Field technicians install and repair telecommunications

3

1 cable. Pucino worked at Pierce's Road Garage from 1991 to 1995

2 and was then transferred to the Union Avenue Garage, where she

3 worked until her retirement in December 2002. The Union Avenue

4 Garage employed anywhere from sixty to one-hundred-and-ten field

5 technicians at a time during this period, but never more than

6 five of them were women at any one time.

7 Justin Hinspeter and Kevin Moore served as foremen at the

8 Union Avenue Garage between 1995 and 2001. Foremen were

9 responsible for assigning work and equipment to technicians and

10 for monitoring the quality of that work. Hinspeter and Moore

11 routinely assigned her work that was less desirable than the work

12 assigned to male workers. Pucino was frequently assigned to work

13 alone in parts of Newburgh considered unsafe. Men were never

14 assigned to work alone in those areas. Hinspeter and Moore also

15 insisted that Pucino first call one of them when she needed

16 assistance on a job, while the two foremen allowed male workers

17 to call directly to dispatch for help. The foremen often refused

18 Pucino's requests for help when she called and would instead show

19 up to monitor her work. On several occasions, Hinspeter would

20 deny Pucino's requests for assistance on the ground that no one

21 was available to help but then, in Pucino's presence, would grant

22 a male worker's request for help. Hinspeter told Pucino to "get

23 lost” and to "go kill herself” on occasions when she pointed out

24 this inconsistency in treatment.

4

1 Pucino also stated that Hinspeter would routinely change her

2 work location even though it was common practice to allow

3 technicians to work continuously in one area of the city so that

4 they could become familiar with it. On at least ten occasions,

5 Hinspeter skipped over her when it was her turn to receive

6 overtime work, even though such work was usually assigned equally

7 to all field technicians on a rolling basis.

8 Two of Pucino's co-workers corroborated Pucino's account of

9 Hinspeter's behavior with respect to work assignments. Maryanne

10 Dauer stated that Hinspeter also sent her into two-man areas of

11 Newburgh alone even though men never had to work there alone.

12 Dauer received such assignments about once a week while working

13 out of the Union Avenue Garage. Robert Burton, a male coworker

14 in the Union Avenue Garage, stated that he had observed Hinspeter

15 and Moore harass Pucino when she requested assistance on

16 assignments that were routinely "two-man” jobs. Hinspeter once

17 threatened Burton with discipline because he had asked Pucino to

18 help him out on a project where the use of a second worker was

19 routine and never questioned by the foremen. Hinspeter even

20 warned Burton to stay away from Pucino, saying that Pucino was

21 "trouble.” He thereafter questioned Burton closely whenever

22 Burton worked with Pucino.

23 Beyond work assignments, Pucino stated that, on many

24 occasions, Hinspeter would grant her male co-workers access to

5

1 the very tools that he had just told her were unavailable. She

2 specifically recalled one occasion when Hinspeter granted Andy

3 Embler's request for a "B tool” (used to open boxes) when he had

4 denied the same request from her moments earlier. Denial of

5 tools made it difficult, if not impossible, for her to perform her

6 work properly.

7 The Verizon foremen routinely denied Pucino access to bucket

8 trucks even though she was eligible for them under company

9 policy. A bucket truck is a large pick-up truck equipped with an

10 enclosed platform attached to a mechanical arm that, when lifted,

11 makes it possible to reach overhead telecommunications wires.

12 Field technicians prefer bucket trucks to the alternative -- vans

13 with large ladders -- because the trucks are safer, easier to

14 use, and reach much higher. Because of their desirability, the

15 foremen made permanent and temporary bucket truck assignments to

16 men based on seniority. Pucino stated that foremen at both

17 Pierce's Road Garage and Union Avenue Garage would frequently

18 deny her requests for a bucket truck notwithstanding her

19 seniority over the male co-workers who received them. She

20 specifically recalled that co-workers Ted Saltershack, Paul

21 Martinex, and Bob Wilkens received bucket truck assignments even

22 though she had more seniority than any of them. Pucino also

23 stated that the few trucks she did receive were older and in

24 worse shape than those assigned to less senior males and that

6

1 even these trucks were soon given away to other workers or else

2 taken out of service because of their age.

3 Dauer described a similar experience with bucket truck

4 assignments. Dauer worked at Pierce's Road Garage from 1995

5 until July 2001, when she was transferred to the Union Avenue

6 Garage along with co-worker Danny Piperato. Both Dauer and

7 Piperato took their permanently-assigned trucks with them. Upon

8 Dauer's arrival at the Union Avenue Garage, Hinspeter gave her

9 truck to a male worker with more seniority while allowing

10 Piperato to keep his truck at the expense of more senior males.

11 Dauer further recalled that many of her requests for a temporary

12 bucket truck were denied in favor of less senior male workers.

13 Pucino stated that Hinspeter and Moore often reprimanded her

14 for behavior that was commonplace, and unremarked upon, among the

15 men. For example, although there was no company policy against

16 using public bathrooms and male co-workers openly used them while

17 out in the field, Hinspeter and Moore reprimanded Pucino for

18 being "off the job” on occasions when she used public facilities.

19 Pucino preferred public bathrooms because the bathrooms where she

20 worked were unisex, generally dirty, and also lacked doors or

21 other security to prevent men from walking in. Dauer also

22 attested to the bad conditions of Verizon's unisex bathrooms.

23 Dauer stated that, while working at Pierce's, she became aware of

24 the "off the job” reprimands Pucino had received for using public

7

1 bathrooms. Fearing similar discipline, Dauer began to document

2 her own travel time to bathrooms in Verizon offices several miles

3 from where she worked, which were segregated by sex.

4 As another example of discriminatory discipline, Pucino

5 testified that Hinspeter and Moore had reprimanded her for

6 stopping at a store for a cold drink, even though it was

7 commonplace for male workers to do the same on hot days. The

8 foremen then implemented a new policy prohibiting such stops and

9 openly blamed Pucino for that policy.

10 Finally, Pucino stated that Hinspeter and Moore subjected

11 her to harsher, more public criticism than male co-workers.

12 Hinspeter "constantly” called Pucino a "bitch” and "stupid” and

13 also would tell her to "go fuck herself.” And while male workers

14 were usually criticized privately for their mistakes, Pucino's

15 affidavit claimed that Hinspeter and Moore had repeatedly singled

16 her out for intense and often public criticism.

17 There was evidentiary corroboration of these claims.

18 Gregory Irvin, a union shop steward who observed the workplace,

19 said that Hinspeter would insult male co-workers by calling them

20 "just as productive as [Pucino].” Irvin further said that

21 "Hinspeter singled [Pucino] out for rougher, longer and more

22 vicious treatment than anyone else." Burton stated that

23 Hinspeter and Moore "constantly” watched Pucino, "far in excess”

24 of their supervision of any male coworker in the same work group.

Debora Cole, another female coworker, filed suit with 1

Pucino and Dauer. The district court issued a separate order

granting summary judgment to Verizon on Cole's claims and, like

Dauer, Cole has not appealed.

8

1 Dauer, for her part, testified that Hinspeter subjected her to

2 much the same treatment. For example, Hinspeter reprimanded her

3 for spending too much time on a "no-access” job even though her

4 male co-workers spent the same amount of time on that job without

5 receiving any criticism.

6 The public criticism of Pucino persisted even after she

7 filed a complaint with Verizon's internal Equal Employment

8 Opportunity ("EEO”) Hotline. Moore publicly announced to the

9 Union Avenue Garage that Pucino had filed the complaint with the

10 internal EEO Hotline. He then told workers that, because of

11 Pucino's EEO complaint, "they are going to come into our garage,

12 take over our garage. Every word is going to be scrutinized.

13 You are going to be followed, and the garage will never be the

14 same.” Two days later, someone in the Union Avenue Garage placed

15 a large dead snake in Pucino's work truck.

16 b) Procedural History

17 Pucino and Dauer filed Equal Employment Opportunity

18 Commission ("EEOC”) charges against Verizon on March 30, 2001 and

19 the two filed suit on July 8, 2003 alleging gender discrimination

20 in violation of 42 U.S.C. § 2000e ("Title VII”) and the New York

21 State Human Rights Law, New York Executive Law § 296 ("NYSHRL”). 1

9

1 The district court granted Verizon's motion for summary judgment.

2 Dauer did not appeal. Pucino appeals only from the grant of

3 summary judgment on her hostile workplace claim. We therefore

4 limit our inquiry to that claim.

5 DISCUSSION

6 "We review a district court's grant of summary judgment de

7 novo.” See Beyer, 524 F.3d at 163. Summary judgment is

8 appropriate only if "the pleadings, the discovery and disclosure

9 materials on file, and any affidavits show that there is no

10 genuine issue as to any material fact and that the movant is

11 entitled to judgment as a matter of law.” Fed. R. Civ. P.

12 56(c)(2). In deciding whether the district court erred, we must

13 "construe the facts in the light most favorable to the non-moving

14 party and must resolve all ambiguities and draw all reasonable

15 inferences against the movant.” Beyer, 524 F.3d at 163 (internal

16 quotation marks omitted).

17 a) Title VII Hostile Work Environment Claim

18 In the present procedural context, Pucino's hostile work

19 environment claim requires her to proffer sufficient evidence to

20 allow a trier of fact to find disparate treatment based on

21 gender, resulting in a hostile working environment that was

22 "sufficiently severe or pervasive to alter the conditions of the

23 victim's employment and create an abusive working environment

24 . . . .” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

We review discrimination claims brought under the NYSHRL 2

according to the same standards that we apply to Title VII

discrimination claims. See Cruz v. Coach Stores, Inc., 202 F.3d

560, 565 n.1 (2d Cir. 2000).

Plaintiffs alleging discrimination based on sex must also 3

provide "a specific basis . . . for imputing the objectionable

conduct to the employer.” Alfano, 294 F.3d at 373. Verizon does

not dispute that Pucino could impute the alleged objectionable

conduct of the two Verizon foremen to it.

10

1 (internal quotation marks omitted). 2

2 1. "Based on Sex”

3 In assessing the "totality of the circumstances” offered to

4 prove a hostile work environment, a fact-finder may consider only

5 abusive conduct proven to be "based on sex.” Alfano v. Costello,

6 294 F.3d 365, 378 (2d Cir. 2002); Raniola v. Bratton, 243 F.3d

7 610, 621 (2d Cir. 2001). This may be proven by "'harass[ment] 3

8 in such sex-specific and derogatory terms . . . [as] to make it

9 clear that the harasser is motivated by general hostility to the

10 presence of women in the workplace,'” Raniola, 243 F.3d at 621

11 (alteration in original) (quoting Oncale v. Sundowner Offshore

12 Servs., Inc., 523 U.S. 75, 80 (1998)), or by offering "some

13 circumstantial or other basis for inferring that incidents

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 abuse to show that other ostensibly sex-neutral conduct was, in

17 fact, sex-based. See Raniola, 243 F.3d at 621-22; see also

18 Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 2000)

11

1 (holding that a rational jury could infer that facially-neutral

2 abuse was sex-based because perpetrator had previously made

3 several sexually-derogatory statements).

4 Applying these standards, we conclude that Pucino has

5 offered sufficient evidence to allow a trier of fact to find that

6 the alleged abuse was indeed sex-based.

7 Pucino offered evidence showing that both Hinspeter and

8 Moore subjected women to disparately harsh working conditions.

9 These included the disparate assignment of work in dangerous

10 areas and the refusal to provide assistance to female workers

11 that was provided male co-workers. Verizon has proffered no

12 evidence suggesting a legitimate non-discriminatory explanation

13 for the foremen's conduct.

14 A trier of fact could also find disparate treatment based on

15 gender in the provision or denial of tools and the use of bucket

16 trucks. There was similar evidence with regard to access to

17 public restrooms by male and female employees that would allow a

18 trier of fact to conclude there was an attempt to force female

19 employees to use restrooms that had no locks.

20 Pucino also offered evidence sufficient to allow a trier to

21 find that Hinspeter and Moore engaged in verbal attacks on Pucino

22 that were sex-based. In that regard, Pucino and the EEOC suggest

23 that the word "bitch” is such an intensely degrading sexual

24 epithet that its use implies as a matter of law hostility toward

12

1 women. It surely is the case that use of that word in many

2 contexts reflects such hostility. However, we cannot say that

3 use of the word "bitch” always and in every context has that

4 meaning or that its usage need not be viewed in context. See

5 Kriss v. Sprint Commc'ns Co., 58 F.3d 1276, 1281 (8th Cir. 1995);

6 see also Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th

7 Cir. 2007) ("[A] gender-specific term of abuse, such as 'son of a

8 bitch,' need not imply hostility based on the abused person's sex

9 any more than saying 'she is a bad worker' need imply hostility

10 based on her sex.”) (internal citation omitted). We also see no

11 need to worry that a trier of fact cannot make the appropriate

12 judgment about the word's use. We therefore reject a rule that

13 would automatically command an inference of gender-based

14 hostility to be drawn from its use.

15 Having said that, we also have no doubt that such a trier

16 could find that Hinspeter's "constant” use of the word over

17 several years in the context of the present record was sex-based

18 and reflected hostility to women. See EEOC v. PVNF, L.L.C., 487

19 F.3d 790, 799 (10th Cir. 2007) ("[Defendant] frequently made

20 indisputably gender-related remarks, and tolerated the use of the

21 word 'bitch' to describe [plaintiff]. Under these circumstances,

22 we think a jury should decide whether these comments were made

23 because of gender animus.”).

13

1 We also conclude that the combination of disparate treatment

2 and gender-based verbal abuse here can support a further

3 inference that the other complained-of instances of abuse

4 involving the two foremen were in fact gender-based. "There is

5 little question that incidents that are facially sex-neutral may

6 sometimes be used to establish a course of sex-based

7 discrimination -- for example, where the same individual is

8 accused of multiple acts of harassment, some overtly sexual and

9 some not.” Alfano, 294 F.3d at 375. Here, even if incidents,

10 such as the denial of overtime, did not directly amount to

11 disparate treatment when considered alone in isolation, an

12 inference that such conduct was gender-based could be drawn by a

13 trier because Hinspeter and Moore were behind them.

14 Notwithstanding the above analysis, Verizon argues that the

15 evidence upon which Pucino relies is simply too conclusory to

16 support an inference that the conduct in question was gender-

17 based. We disagree. While "purely conclusory allegations of

18 discrimination” that are devoid of "concrete particulars” do not

19 suffice to avoid summary judgment, Meiri v. Dacon, 759 F.2d 989,

20 998 (2d Cir. 1985), Pucino has proffered detailed evidence that

21 Hinspeter and Moore treated similarly-situated male and female

22 workers differently, including the accounts of others who

23 witnessed such conduct. For that reason, we conclude that Pucino

14

1 has proffered evidence sufficient to show gender-based discrimination.

2 2. Objective & Subjective Hostility

3 We turn now to whether a rational juror could find that the

4 gender-based conduct in question was "sufficiently severe or

5 pervasive to alter the conditions of the victim's employment and

6 create an abusive working environment.” Harris, 510 U.S. at 21

7 (internal quotation marks omitted). The relevant inquiry focuses

8 on both objective and subjective hostility: "A work environment

9 will be considered hostile if a reasonable person would have

10 found it to be so and if the plaintiff subjectively so perceived

11 it.” Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir.

12 1999). Relevant circumstances include: "the frequency of the

13 discriminatory conduct; its severity; whether it is physically

14 threatening or humiliating, or a mere offensive utterance; and

15 whether it unreasonably interferes with an employee's work

16 performance.” Harris, 510 U.S. at 23. In establishing this

17 element, a plaintiff need not show that her hostile working

18 environment was both severe and pervasive; only that it was

19 sufficiently severe or sufficiently pervasive, or a sufficient

20 combination of these elements, to have altered her working

21 conditions. See Terry v. Ashcroft, 336 F.3d 128, 148-49 (2d Cir.

22 2003); see also Brennan, 192 F.3d at 318 ("[A] plaintiff must

23 still prove that the incidents were 'sufficiently continuous and

24 concerted' to be considered pervasive, or that a single episode

15

1 is 'severe enough' to establish a hostile working environment.”)

2 (internal citation omitted). And again, in addressing this

3 question, we consider the totality of circumstances. See Terry,

4 336 F.3d at 148-49.

5 The district court concluded that the challenged conduct

6 amounted to nothing more than minor annoyances and

7 inconveniences. Verizon once again argues that the record is

8 simply too conclusory and lacking in concrete particulars to

9 avoid summary judgment on the question of objective hostility.

10 In particular, it argues that Pucino cannot establish the

11 frequency of the abuse simply by stating in her affidavit that

12 the alleged abuse occurred "constantly” or "frequently.”

13 We disagree. We believe that a trier might easily find that

14 the harassment and abuse was sufficiently severe to alter

15 Pucino's working conditions. Work assignments, the provision of

16 tools, the use of a bucket truck, the issues as to use of

17 restrooms, and the verbal abuse affected most of the major

18 aspects of Pucino's employment.

19 With regard to the conclusions of Pucino's evidence as to

20 the frequency of the abuse, a plaintiff, to prevail, need not

21 recount each and every instance of abuse to show pervasiveness.

22 In Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), a plaintiff

23 testified that a supervisor "constantly harassed her –- so often

24 that she 'lost count' –- but that she could recall the exact

16

1 dates and circumstances of only a few incidents of harassment.”

2 Id. at 631. In discussing the district court's grant of summary

3 judgment, we explained that "If a jury were to credit [the

4 plaintiff's] general allegations of constant abuse, which were

5 confirmed by her coworkers, it could reasonably find pervasive

6 harassment, even in the absence of specific details about each

7 incident.” Id.; see also Holtz v. Rockefeller & Co., 258 F.3d

8 62, 75 (2d Cir. 2001) (crediting testimony in support of a

9 hostile work environment claim that plaintiff was "constantly" or

10 "daily" made the victim of wanted physical contact); Brennan, 192

11 F.3d at 318 (explaining that "[a] plaintiff need not present a

12 list of specific acts”). Pucino's evidence fits within the

13 Torres precedent. She has described the nature of the alleged

14 abuse in some detail. Although she omitted specifics as to the

15 date and circumstances of each instance of abuse, her testimony

16 was corroborated by other witnesses, including Dauer, Burton, and

17 Irvin. We thus conclude that Pucino's evidence was sufficient to

18 allow a trier to find pervasiveness.

19 Accordingly, we hold that a rational juror could find the

20 treatment of Pucino to be sufficiently severe or sufficiently

21 pervasive to alter the conditions of her employment.

We therefore vacate and remand for further proceedings consistent with this opinion.