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 resignation or constructive discharge.
According to Mr. Carter, on June 4, 1990, he appeared at Dr. Foy's own professional office in Peekskill to recover a passbook for the joint savings account containing funds belonging only to him, and that the two engaged in a shouting match before Dr. Foy surrendered the passbook. This incident was off the work premises, not related to his employment at Jan Peek House and, by Mr. Carter's own admission, was instigated by him in the first place. Tr. 82-83.
After this incident in Dr. Foy's professional office, Mr. Carter testified that Dr. Foy harassed him sexually when she attended his graduation from the C.A.C. certification program on June 4, 1990. The alleged sexual harassment by Dr. Foy during the graduation ceremony included her unwelcome attendance at the graduation (after having been invited, with the invitation subsequently withdrawn), her taking pictures and her kissing Mr. Carter when she presented him with a gift and flowers. Mr. Carter characterized this episode as "embarrassing." Tr. at 90. While this may have been embarrassing for Mr. Carter and may demonstrate that Dr. Foy lacked judgment in attending a ceremony to which her prior invitation had been withdrawn, this does not constitute sexual harassment in any sense in connection with the employment relationship. Mr. Carter did not even suggest that this incident had any consequence in the work place.
The next alleged incident of sexual harassment also occurred in June of 1990. Mr. Carter testified, and defendant Foy concedes, that on June 5, 1990 at 10:00 AM, Dr. Foy called Mr. Carter at work and asked him to meet over dinner that evening to reconsider their relationship. After Mr. Carter declined the invitation, Dr. Foy then suggested that he resign from his position at Jan Peek House "as a personal consideration" to her and asked him to take a one week vacation to consider his options. Dr. Foy memorialized this conversation in a memorandum of the same date. Plaintiff's Ex. 16; Tr. 91-94.
Mr. Carter acknowledged during his direct and cross examination that he was assured immediately and directly by Ms. Quinn, the Director of Jan Peek House, and also by the Board of Directors of the corporate defendant, that his job was not in jeopardy. Tr. 99, 212, 339, 343, 400, 402-403; Plaintiff's Ex. No. 25. He was further advised that Jeannie Quinn would act as an intermediary between him and Dr. Foy and that he would no longer have to report directly to Dr. Foy, if that had ever been a requirement of his job.
Mr. Carter could cite no other examples of alleged harassment that occurred during the four month period between June 5, 1990 and October 15, 1990, the date he resigned.
Jeannie Quinn gave two week's notice of her resignation as Director of Jan Peek House, on October 1, 1990, and on the following day the Board caused her to be removed from the premises. Tr. 117-118, 121-122.
By letter dated June 11, 1990, some three and a half months before plaintiff's resignation, (Plaintiff's Ex. No. 18) addressed to the Executive Committee of the Board, Ms. Quinn responds to "the many disparaging remarks about my work performance made by the Board Chairperson [Foy] at our meeting last night" and complains:
"The issue of the personal relationship between Janet and Larry has been a difficult one for me to manage all along as it was for my predecessor. In her zeal to enhance his career, Janet has made many demands of me over the months. At her insistence, I did the paperwork to have our site approved for CAC hours; budget discussions were prolonged because she argued for a higher salary for him; I have had to intervene when Janet bypassed me concerning shelter related issues and addressed her demands/requests to Larry. Limit setting was a tricky issue because there were very blurred, at best, lines between the personal and professional boundaries between the two people.
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