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CURRIE v. KOWALEWSKI

January 28, 1994

DORIS A. CURRIE, Plaintiff,
v.
MARVIN M. KOWALEWSKI, d b a UNITEC, Defendant.



The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. Introduction.

 The plaintiff, Doris A. Currie, filed her complaint in this action on April 2, 1991, pursuant to Title VII, 42 U.S.C. 2000e & c, alleging that the defendant, Marvin M. Kowalewski, sexually harassed her during the course of her employment at Unitec. In his answer filed on April 25, 1991, the defendant denied the material allegations in plaintiff's complaint.

 Following a two day nonjury trial, the plaintiff's complaint was dismissed, Currie v. Kowalewski, 810 F. Supp. 31 (N.D.N.Y. 1993), upon a holding that even accepting her testimony to be true, it did not create an abusive work environment. Id. at 35; Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). On appeal, the Second Circuit disagreed, vacated the judgment of dismissal, and remanded for further proceedings. Currie v. Kowalewski, 14 F.3d 590, 1993 U.S. App. LEXIS 34272 (2d Cir. 1993). The parties have submitted post appeal memoranda.

 The following are the findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil procedure.

 II. FINDINGS OF FACT.

 At the trial, plaintiff was the sole witness in her own behalf. Defendant and two of his employees, Czeslawa "Jesse" Piasecki and Helina Malinowski testified for the defense.

 In 1989, the plaintiff was employed by the Sitrin Nursing Home, Upper Tilden Avenue, New Hartford, New York, as a nurses' aid. (T. 16) *fn1" The defendant was the sole owner and operator of a company known as Unitec, located at 34 Main Street, Whitesboro, New York. The company presently manufactures and assembles electronic score keeping equipment for sporting events.

 The defendant, who has a Ph.D. from Kent State University, started Unitec about 1967 in Ohio, originally for the production of both fencing equipment and learning devices for school children. (T. 168) After moving to New York, he was an assistant professor at Kirkland College, Hamilton, New York, from 1974 to 1978; during which time he ran Unitec on a part-time basis. (Id.) Defendant then turned his full attention to Unitec after Kirkland College was closed in 1978. (T. 169-70) The company at that time was located in the basement of his home. As the business grew it moved to its present location in 1984. In 1989-90, Unitec employed thirteen people.

 In July 1989, the plaintiff was hired by the defendant to supervise five assembly line employees. (T. 23) She had no prior supervisory experience, although she did have a high school diploma, and some technical training in machine operation, and had worked as a laborer for the Bendix Corporation. (T. 86, 88-89) Plaintiff was hired following a two week trial period in which she worked at Unitec for approximately one hour per day in order to acclimate herself to the business and vice versa. (T. 41, 84-85, 176) She started at $ 6.00 per hour and received raises to $ 6.50 per hour on August 31, 1989; $ 7.00 per hour on November 6, 1989; and $ 7.50 per hour on June 25, 1990. (T. 43, 46-47)

 Defendant hired the plaintiff because she came to him with a very good recommendation. (T. 175) He gave her the three raises during the course of her employment, despite the fact that she was having some problems with her job. His target was to get her up to $ 8.00 per hour as soon as possible. (T. 177)

 It is the plaintiff's contention that starting in August 1989, she was subjected to various acts of sexual harassment by the defendant which finally caused her to quit her job on August 6, 1990. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on or about September 24, 1990, and, after the passage of 180 days without action, plaintiff requested and received a "right to sue" letter. The defendant denies any acts of sexual harassment or the creation of a hostile work environment.

 In August 1989, during the course of a silkscreening operation, there was some casual banter between the defendant and other female employees about having his baby. (T. 24) He directly asked employees Jesse Piasecki and Helina Malinowski whether they would have his baby. (T. 94) He told them that he wanted to have a son. (Id.) He also asked the plaintiff if she would have his baby. In response, she replied that she did not appreciate these comments or suggestions; although she thought at first he was joking with the other employees whom he knew well. (T. 24-26) Approximately one month later there was a second similar type of conversation in the presence of other employees about having his baby, and plaintiff again told him that she did not appreciate this type of humor. (T. 26) These were the only two occasions when there was talk about having his baby, although there were other conversation about a "Unitec baby" born to Jesse Piasecki. (T. 275-76)

 Several weeks later, defendant began to have physical contacts with plaintiff which she described as "full body hugs." (T. 28-29) These were face-to-face embraces which were mostly in the presence of other employees. *fn2" Each time she would push him off and tell him to keep his hands off of her. (T. 29, 120) He would explain that he did not mean anything by it, or that he was old enough to be her father. (T. 121) She received twenty to thirty of these "full body hugs" during the course of the year she worked for the defendant. (T. 119) She reprimanded the defendant on each occasion; once she even threatened to break his bones if he did it again. (T. 31) On another occasion he came up behind plaintiff and ran an object up the side of her "butt". (T. 30, 122) She told him, "You keep your stinking hands off me." (T. 30) Again he told her she had nothing to worry about because he was old enough to be her father. (Id.) On one other occasion, in the presence of other employees, when she asked him if he needed anything else upon completion of an assignment, he replied, "Yes, sex." (T. 33) She took this remark seriously and not as a joke. (T. 34) On July 17, 1990, in private, he came up to her and said, "It's a beautiful day to have sex, isn't it?" (T. 48) Plaintiff walked out of the room.

 On still another occasion, plaintiff was bending over in the spray room, *fn3" and the defendant came up behind her with a can of spray paint. When she turned around, defendant said he was "Going to spray you in the butt, but I knew you'd knock me out." (T. 31) Plaintiff said he was "absolutely right." (Id.) At one time, Jesse Piasecki asked plaintiff if she and the defendant were lovers. (T. 77) On a few occasions defendant invited her out to lunch or to go on boat rides ...


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