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July 29, 1994



The opinion of the court was delivered by: FOSCHIO


 This matter was referred to the undersigned by the Hon. Richard J. Arcara on March 17, 1992 for report and recommendation on dispositive motions. On May 22, 1992, the parties filed a consent to proceed before the undersigned on dispositive motions. This matter is presently before the court on Defendant's motion for summary judgment, dated December 16, 1992.


 Plaintiff, Mary Lou Stetka, initially filed a prose action on September 3, 1991 raising a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for sex discrimination. Upon retaining counsel, an amended complaint was filed by Plaintiff on March 12, 1992, asserting claims under Title VII, and the New York State Human Rights Law, Executive Law § 296, alleging that she was discriminated against and subjected to harassment because of her sex. Defendant, a New York State corporation, filed its answer to the amended complaint on April 10, 1992.

 On December 16, 1992, Defendant filed a motion for summary judgment, or, alternatively, for dismissal of the pendent New York State claim, and to strike claims for punitive and compensatory damages, and to strike the jury demand. Plaintiff responded to Defendant's motion on February 12, 1993. Defendant submitted a reply to Plaintiff's response on February 23, 1993.

 Oral argument on the motion was heard on February 25, 1993. A supplemental memorandum of law was thereafter filed by Defendant on March 19, 1993. Plaintiff responded by letter on March 25, 1993.

 For the reasons as set forth below, Defendant's motion for summary judgment is GRANTED. Defendant's motion to dismiss the pendent state claim for a violation of the New York State Human Rights Law is also GRANTED. Defendant's alternative motions to strike Plaintiff's demand for a jury trial and for compensatory damages, and to strike Plaintiff's demand for punitive damages are deemed moot.


 In the fall of 1987, Plaintiff, a substitute teacher in the Orchard Park, New York school system, decided to become a real estate agent. (S. 6-7). *fn1" Plaintiff went to the Hunt Real Estate office in Orchard Park, asking to speak with the manager, and spoke with Janice Finaldi regarding a real estate career. (S. 10-11). Thereafter, Plaintiff took a real estate licensing course in the fall of 1987, and then attended Hunt's six-week training program in February, 1988. (S. 11-12). Plaintiff began working in the Hunt Real Estate Orchard Park office as a licensed real estate agent in late February, 1988. (S. 12).

 In September, 1988, an individual named Eric Bowen became associated with the Orchard Park Hunt Real Estate office as a real estate agent. (S. 49-50). Bowen then became the Director of Developmental Services with Hunt, a salaried position, which involved developing business for Hunt with builders and developers in the Western New York area. (S. 60-61); (H. 16). *fn2" Bowen also continued working as an independent sales agent. (S. 61-62).

 In the spring of 1989, Bowen told Plaintiff about some condominiums that he was listing in Chautauqua, and asked Plaintiff if she wanted to see them. (S. 51). As Plaintiff had a client who was interested in a vacation home, Plaintiff agreed to look at the condominiums. (S. 51-52). Plaintiff and Bowen drove to Chautauqua in the late afternoon, an approximate one hour drive from Orchard Park, and toured the various condominiums. (S. 56-57). After stopping for dinner, they drove back to the office in Orchard Park. (S. 58-60). During the drive, Bowen joked in a sexual manner about his preference to engage in wild sex with multiple partners, a conversation Plaintiff did not respond to. (S. 58-59).

 Following the trip to Chautauqua, Plaintiff stated that she began to see Bowen frequently at the office, and that he continually asked her to go out with him. (S. 70). Bowen also asked her to spend a weekend in Chautauqua, an invitation Plaintiff declined. (S. 70). Bowen repeatedly asked to go out with Plaintiff throughout the summer and fall of 1989, (S. 70-71), but Plaintiff did not accept as she believed that Bowen had a serious girlfriend. (S. 72). During that time, Bowen did not refer any developmental services business to Plaintiff. (S. 73).

 In early December, 1989, Plaintiff agreed to go to out to dinner with Bowen. (S. 73, 75). Plaintiff met Bowen at the restaurant of the Holiday Inn in Hamburg, New York on a Wednesday evening. (S. 76). Shortly after arriving at the restaurant, Bowen told Plaintiff that he had forgotten his wallet, and asked Plaintiff to accompany him back to his home so that he could pick up the wallet. (S. 77-78). Plaintiff went to Bowen's home, where Bowen poured a glass of wine for each of them. (S. 83). Plaintiff and Bowen sat by a fire and talked about both personal and business items. (S. 83). Plaintiff stayed at Bowen's home for a couple of hours, during which the conversation between them became very strained. (S. 87-88). According to Plaintiff, Bowen asked her to view videotapes of a sexual nature, and requested that she have sexual relations with him and another woman. See Amended Complaint, at p. 4, P 21. ...

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