Malone v. Town of Clarkstown

Background

Victoria Malone, a Town employee who worked in the Highway Department, brought claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and 42 U.S.C. § 1983. She alleged that the Town, Frank DiZenzo, David Salvo, and Robert Klein discriminated against her and retaliated against her because of her sex. The motion addressed in this opinion was filed only by the Town. It sought partial summary judgment on Malone’s retaliation claims against the Town and, as to conduct by former defendant Tucker Connington, her hostile-work-environment claims against the Town.

Malone described alleged harassment and other conduct involving multiple Highway Department employees and supervisors, including Connington, DiZenzo, Salvo, Klein, and Brian Lillo. She also relied on several complaints and grievances as supposed protected activity, including an unsigned 2014 letter concerning Connington, an April 2018 union grievance about missed overtime, a July 2018 written complaint about Lillo, and a February 2019 letter from her attorney alleging retaliation. In 2016, Malone had signed a settlement agreement that released claims against the Town and its employees arising through April 29, 2016.

Summary-judgment standard

The court applied the summary-judgment standard. Summary judgment is appropriate when the record shows no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The court does not decide disputed facts at this stage; it determines whether a reasonable jury could decide for the nonmoving party, viewing the evidence and reasonable inferences in that party’s favor.

Rulings on retaliation claims

The court held that the 2016 settlement agreement barred Malone’s retaliation claim based on Ballard’s 2010 ban on her use of the women’s restroom. The court concluded that the alleged continuing ban concerned an employment condition that arose before April 29, 2016, and therefore fell within the release. That claim was dismissed.

For the remaining Title VII and New York State Human Rights Law retaliation claims, the court held that Malone had not shown enough evidence for most of her theories to proceed. The court ruled that the 2014 union grievance, complaints about O’Connell, complaints about the truck numbered 333, and complaints to union delegate John Luther did not establish protected activity. In general, protected activity requires opposing conduct prohibited by the discrimination laws; complaints about ordinary workplace unfairness, bullying, or harassment without a connection to sex discrimination generally do not qualify.

The court found that Malone had raised factual questions about whether several other complaints were protected activity: the 2014 unsigned letter alleging harassment because she was “the only woman”; the April 5, 2018 grievance invoking anti-discrimination provisions; her verbal complaints about disproportionate cleaning duties; the July 10, 2018 written complaint about Lillo; and her attorney’s February 28, 2019 letter expressly alleging retaliation. But the court found no evidence that the Town knew about Malone’s complaint to coworker Denny Friscoe that Ballard was stalking her, so any retaliation claim based on that complaint was dismissed.

The court dismissed the retaliation claims based on the “Go-Girl” gift from DiZenzo, the alleged assault by Salvo, the transfer to the Town Garage, transfers to less desirable crews or resulting lost overtime, Salvo’s complaint about Malone’s traffic direction, an alleged escalation of the hostile work environment, Lillo’s December 2018 conduct, and Connington’s truck-number-333 incident. The court found variously that the alleged action was not materially adverse, lacked evidence of causation, was supported by a legitimate nondiscriminatory reason that Malone had not shown to be a pretext, or was insufficiently severe to deter a reasonable worker from complaining about discrimination.

The court reached a different conclusion concerning the alleged physical assaults by Klein. It held that such conduct could qualify as a materially adverse action for retaliation purposes. Although the record did not establish exactly when the assaults occurred, the court found that the close timing between Malone’s July 10, 2018 protected complaint and her July 23 interview, during which she apparently reported the assaults, was enough to create a genuine factual dispute about causation. Malone’s Title VII and New York State Human Rights Law retaliation claims against the Town based on Klein’s alleged assaults could therefore proceed.

Hostile-work-environment claims

The court denied the Town’s request for partial summary judgment on Malone’s hostile-work-environment claims based solely on Connington’s truck-number-333 incident. A hostile-work-environment claim requires evidence that discriminatory intimidation, ridicule, or insult was sufficiently severe or pervasive to alter the conditions of employment and create an abusive workplace. The court explained that the claim had to be evaluated in light of the alleged conduct by multiple employees and supervisors, not Connington’s single incident in isolation. Partial summary judgment on that basis was therefore improper, and Malone’s hostile-work-environment claims concerning Connington’s conduct could proceed.

Disposition

Judge Vincent L. Briccetti granted in part and denied in part the Town’s motion for partial summary judgment. Malone’s Title VII and New York State Human Rights Law retaliation claims against the Town based on Klein’s alleged physical assaults may proceed; all other retaliation claims against the Town were dismissed. Malone’s hostile-work-environment claims against the Town concerning Connington’s conduct may also proceed. The court scheduled a case-management conference and directed the Clerk to terminate the motion.