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April 12, 1985

HEUBLEIN, INC., et al., Defendants

The opinion of the court was delivered by: STEWART

STEWART, District Judge:

The amended complaint in this action alleges a Title VII claim against Heublein, Inc. and a tort claim for intentional infliction of emotional distress under New York law against defendants Berger, Holmes and Vogel. Jurisdiction of the latter is based on diversity. Other tort claims were dismissed before trial.

Trial on both causes of action concurrently were held in January. The Title VII claims was tried to the Court; the tort claim was presented to a jury. Hereinafter is set forth our findings of fact and conclusions of law as to the Title VII claim, as well as our rulings on post-trial motions by defendants attacking the verdict in plaintiff's favor.

 Plaintiff was employed by defendant Heublein as a sales representative in December 1976. Heublein is engaged in the business of manufacturing, importing and and selling wines and liquors in New York and elsewhere. Her duties were to promote the sales of Heublein by working with independent distributors or wholesalers of Heublein products and by calling on and servicing retail accounts, including liquor stores, restaurants and bars. She replaced another female sales representative who had resigned shortly before plaintiff was hired.

 Initially, she was assigned to a training program by Harvey Bronstein, then a supervisor in the metropolitan New York area. During the month of December, she was assigned to various orientation projects in the office. In January 1977, Bronstein assigned her to be trained in the field (specifically, in Queens, her prospective territory) by Sidney Berger, an experienced sales representative. Berger is an outgoing, gregarious type who tells off-color jokes and describes himself as a "label-grabber". He is married and has several children. Plaintiff, on the other hand, has a much more reserved personality; on the surface, she is quiet and sometimes anxious in manner but at the same time appears to have substantial determination and ambition beneath the surface.

 Plaintiff and Berger did not work well together. She resented his mannerisms and Berger became impatient with her apparent failure to appreciate his efforts to teach her appropriate sales techniques. During this portion of her training period, Berger and plaintiff customarily drove in his car to visit various customers and wholesalers, so that plaintiff could observe Berger in action using his own sales approach. Plaintiff testified that on occasion Berger engaged in sexual harassment of her by telling off-color jokes, by touching her knee and should, and by trying on one or two occasions to kiss her. Although Berger denies any such conduct, we think itno unlikely that he did tell sexual jokes and that on occasion he touched her knee and shoulder, all of which plaintiff found objectionable. We do not accept her testimony that he tried to or did kiss her. Berger's conduct, to which plaintiff objects, was not in our view engaged in to sexually harass her. Rather, it appears that he behavior towards plaintiff was only a reflection of his bumptious personality.

 In any even, plaintiff and Berger each complained to Bronstein about the other's conduct and in mid-February 1977, he summoned them both to his office and terminated the training relationship. Thereafter, plaintiff completed her training with other sales representatives and began to perform her duties as a sales representative. *fn1" Significantly, plaintiff on cross-examination admitted that she did not contend that she was sexually harrassed by Berger or any other Heublein employee after February 1977. She claims, however, that thereafter in retaliation for her complaints about Berger's conduct she was subjected to various discriminatory acts. Theses were initiated, she contends, by Berger and also by Bronstein, who allegedly accused her of provoking Berger. Bronstein, however, denies this and he also denies that plaintiff referred to any sexual harassment by Berger in her complaint to him of Berger's training methods. Nor, in fact, does plaintiff's letter to the union (see n.1) refer to any sexual harassment.

 The alleged acts of retaliation included the following:

 1. Kagel, who was in charge of distributing sales promotion material (such as T-shirts imprinted with brand advertising and the like), failed to provide her with the same amount of such material as that furnished to other sales representatives. This, she claims, adversely affected her relations with customers.

 One of plaintiff's witnesses, Cogen (also a sales representative) testified in general terms that plaintiff did not receive equal treatment on promotion material. However, for a good part of plaintiff's tenure with Heublein, Cogen served an area different from that of plaintiff and so had limited opportunities to observe her performance or the actual distribution of sales material to sales representatives. Moreover, another sales representative (Daniels) who testified for plaintiff, testified that to his knowledge every sales representative had equal access to point-of-sale material and he was not aware that plaintiff had ever been denied such access. Kagel testified that he had never intentionally distributed sales material in a discriminatory manner to plaintiff; we found his testimony to be credible.

 We find that the evidence does not support plaintiff's general, unparticularized claim of discrimination with respect to the distribution of promotional, point-of-sale material.

 2. Plaintiff complains that Kagel borrowed bottles of liquor from one or two retailers served by plaintiff, that he thereafter failed to pay for this liquor and that as a result her relations with these retailers were damaged. Kagel testified that he borrowed wine for business purposes on a few occasions from a liquor store in Flushing and that he always reimbursed the owner of the liquor store. We accept Kagel's testimony; we fail to see here any evidence of retaliation.

 3. Plaintiff complains that she was transferred from one distributor to another more often than other sales representatives and that this affected adversely her ability to develop productive customer relationships. There is, however, little or no support in the record for this complaint or that any transfers were made for discriminatory or other improper reasons. As discussed further below, plaintiff was shifted in November 1980 from the distributor Major (to whom she had been assigned in the summer of 1979) to the distributor Alpine, but this was done at the request of Major. Accordingly, we find no evidence of retaliation or discrimination to support this charge.

 4. Plaintiff further complains that she was referred to by other employees, including Berger and Bronstein, in demeaning terms. Berger, she claims, told others she was a "dyke" (which the witness Daniels confirmed) and Bronstein referred to her as a "bitch". Berger and Bronstein deny that they did so. Plaintiff also complains that at a general sales meeting she was introduced as "Mr. Buddle". Kagel testified that, although he did not recall having done so, it might have happened. It was his custom in introducing sales representatives at such a meeting to quickly go down a list of names referring to each as "Mr. So-and-So". He testified that he never intentionally referred to plaintiff as "Mr. Buddle" and we ...

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