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CARTER v. CARING FOR THE HOMELESS OF PEEKSKILL

May 20, 1993

LARRY CARTER, Plaintiff,
v.
CARING FOR THE HOMELESS OF PEEKSKILL, INC. and JANET FOY, Defendants.



The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, J.

 In this Title VII action, based on sexual harassment of a male employee by a woman who at relevant times was Chairman of the Board of Directors of the corporate employer, this Court now considers a motion by defendants for judgment in their favor notwithstanding the jury verdict, pursuant to Rule 50(b) F.R. Civ. P. The verdict was for loss of wages (back pay) in the amount of $ 6,100.00, the maximum recoverable under the applicable facts. Liability depends upon a jury finding of constructive discharge. A claim for plaintiff's legal fees in the requested amount of $ 84,000 has been presented for consideration by the Court. See Court Doc. No. 54.

 The conduct complained of occurred prior to November 21, 1991, the date of enactment of Pub. L. 102-166 (The Civil Rights Act of 1991). Although plaintiff is an African American and Dr. Janet Foy is white, the Amended Complaint docketed September 14, 1992 does not invoke 42 U.S.C. § 1981. See Court Doc. No. 35. *fn1"

 The Parties

 At the time of the incidents complained of, plaintiff was receiving a pension from the Veterans Administration based on 100% disability. He is a reformed alcoholic and former substance abuser, divorced with at least one adult child. Defendant, Dr. Janet Foy, is a psychologist practicing in the City of Peekskill, who specializes in marital counseling. She also is divorced with at least one adult child. While the ages of these parties do not appear in the record, both are mature adults.

 Defendant, Caring for the Homeless of Peekskill, Inc., is a Not-for-Profit New York corporation also referred to by its acronym, CHOP, Inc. It was founded by PAPA, another acronym, which stands for "Peekskill Area Pastors Association". Dr. Janet Foy was the non-salaried Chairman of the Board of Directors of CHOP, Inc. a group of approximately twenty community volunteers of various faiths, races and backgrounds brought together by PAPA and the Mayor of Peekskill, all of whom served without pay. Assisted by local service clubs, the officials of the City of Peekskill, and the public, these people were successful in establishing and opening a facility known as the Jan Peek House, *fn2" as a shelter for the homeless of that community.

 Jan Peek House provided food and shelter as well as counseling and peacekeeping functions. It had a full time paid Executive Director, operating under a budget funded primarily by contract payments (approximately $ 250,000.00 per year) from the Westchester County Department of Social Services, and charitable gifts.

 The Facts and Contentions at Trial

 In January 1988, Mr. Larry Carter was employed at Jan Peek House as a part-time Client Care worker, and became a full time Case Manager on May 9, 1988. This promotion was offered by Terri Powers, the salaried Director of Jan Peek House, and was based on the understanding that he would initiate training towards becoming qualified as a "C.A.C." or "Certified Alcohol Counselor", which is a trained counselor in the field of alcohol and substance abuse. See Plaintiff's Exs. 1, 2.

 A consensual sexual relationship developed between Mr. Carter and Dr. Foy in about September 1989. Tr. at 54-55; Plaintiff's Ex. No. 7.

 From the start of his employment, Mr. Carter flourished at Jan Peek House. He served for a brief time as Acting Director of the Jan Peek House in the Fall of 1989, and was granted additional vacation days by the Board of Directors to reward him for this special effort. See Plaintiff's Ex. No. 8. Also, while a full-time paid employee of CHOP, he was allowed to take time off for his C.A.C. course of study. Tr. at 71.

 Throughout the course of his employment at Jan Peek House, Mr. Carter received satisfactory or better performance evaluations. The corporate defendant maintained throughout this litigation that Mr. Carter was an outstanding employee, and was so regarded by his peers and by the Board, and there is no evidence to the contrary. See e.g. Plaintiff Exs. 3, 5, 7; Tr. at 48-49. Dr. Foy wrote a glowing recommendation and personal reference to permit him to enter the C.A.C. training program, as did Terri Powers, the Director of the Jan Peek House until mid or late 1989. Plaintiff's Exs. No. 6, 36. Mr. Carter developed additional skills working at the Jan Peek House. With tuition paid by the Veterans Administration, he successfully completed his C.A.C. accreditation shortly before his resignation dated October 15, 1990, which he claims and the jury found to be the result of a constructive discharge.

 Following the resignation of Terri Powers and after a brief period during which Mr. Carter was Acting Director, the Executive Director of the shelter became Jeannette Quinn (Lardiere). The written job description of Ms. Quinn, approved by the Board of Directors, included the power to hire and fire personnel employed at the shelter. Defendants' Ex. R; Tr. 325-327, 414. Dr. Foy, as Chairman of the Board, had neither statutory nor apparent authority to hire and fire, nor did she purport to exercise such powers, which remained with the entire Board as a matter of New York law, unless expressly delegated. See Weiss v. Opportunities for Cortland County, Inc., 40 A.D.2d 45, 337 N.Y.S.2d 409 (3rd Dept 1972). There is no evidence that this power was ever delegated by the Board to Dr. Foy; indeed, all evidence is to the effect that only Ms. Quinn had the delegated power, and that neither the Board nor Ms. Quinn wished to have Mr. Carter resign, or to discharge him. Section 708 of the Not-for-Profit Corporation Law of New York, with exceptions not material, clearly requires that all such actions of the Board of Directors must be taken at a meeting of the board at which a quorum is present. See N.Y. Not-for-Profit Corporation § 708 (McKinney 1970 & Supp. 1992).

 The path of true love seldom runs smoothly. Mr. Carter testified that he first attempted to "break-off" the relationship with Dr. Foy in November of 1989, and again in December of 1989, because he felt that Dr. Foy was "very controlling and critical" of his participation in support groups and AA. Tr. 72-73. The couple had joint consultations, paid for by plaintiff, with Dr. James W. Walkup in November, 1989, to "identify the issues in their relationship." By plaintiff's own admission, however, Dr. Foy and he continued their tumultuous personal relationship until April or May of 1990. Tr. 72, 75. At this time, Mr. Carter advised Dr. Foy that he wanted to end the relationship, and that he no longer wanted her to attend his son's graduation from medical school or his own graduation from his C.A.C. certification program, to both of which he had previously invited her. Nevertheless, Mr. Carter testified that, in March of 1990, the two opened a joint savings account to save, in part, "for us to get married" and that sometime after their "final" break-up the two met on one or two occasions at her apartment for sex. Tr. at 74, 79, 201, 261-262; Combined Interrogatories, No. 25.

 As examples of the alleged sexual harassment which followed the break-up of the love affair, plaintiff relies only on the following episodes to justify his ...


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