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August 16, 1995



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, J.

 In this sexual discrimination action, defendants City University of New York ("CUNY") and Dr. Stanford A. Roman, Jr., M.D. ("Roman") (collectively, CUNY and Roman are the "Defendants") move, pursuant to Fed. R. Civ. P. 56, for an order granting summary judgment. For the reasons set forth below, Defendants' motion will be denied in part and granted in part.

 The Parties

 Plaintiff Cherie Burrell ("Burrell") is a resident of Laurelton, New York.

 Defendant CUNY is a public higher education system comprised of several senior and community colleges throughout New York City and its boroughs, including CUNY Medical School/Sophie Davis School of Biomedical Education ("Sophie Davis").

 Defendant Roman is the Dean of Sophie Davis.

 Prior Proceedings

 Burrell filed her complaint in this action on December 2, 1994 and Defendants made the instant motion for summary judgment on March 16, 1995. The motion was argued on June 7, 1995 and was deemed fully submitted at that time.


 All material factual allegations with respect to Burrell's claim for sexual harassment are gleaned from Burrell's complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motion.

 In September of 1990, Burrell *fn1" saw a print advertisement for a position as "Assistant to the Dean" of Sophie Davis. The advertisement sought applicants with "strong interpersonal, verbal and written skills and ability to work with a minimum of supervision," and listed among the position's responsibilities: "compile research and assemble background documents needed for meetings and other activities of the Dean. Coordinate meetings and special events. Prepare, develop, review and edit reports and other written communications for the Dean." The salary was advertised as between $ 28,630 and $ 38,465, depending on experience. Interested candidates were instructed to send a resume and references to Roman.

 In October of 1990, Burrell had an initial interview for the position with Roman. More than a year later, in December of 1991, she received a letter from Defendants informing her that the position was vacant and that, if she was still interested in the job, she should contact the Dean's Office.

 In January of 1992, Burrell and Roman met for another interview, during which Burrell first raised the subject of her eligibility to work in the United States. Burrell told Roman that, although she was not a United States citizen, the Immigration and Naturalization Service ("INS") had issued her an "H-1" visa *fn2" authorizing her to work for her former employer.

 Burrell's H-1 visa was issued by the INS on May 2, 1990 and authorized her to work for AFS Intercultural Programs, Inc. until April 17, 1993. Thus, in order for Burrell to work legally for Defendants, CUNY needed to petition the INS for a transfer of Burrell's visa. When Burrell mentioned her visa status during her second interview with Roman, Roman told her: "No problem, we deal with these all the time," and assured her he would take care of any paperwork necessary to transfer her visa.

 One week after her second interview with Roman, Burrell was hired for the period from January 21, 1992 through June 30, 1992, at an annual salary of $ 35,763. Roman told Burrell she could begin working while the paperwork for her visa transfer was being processed, and Burrell commenced working for Defendants on January 21, 1992. On the first day of her employment, Burrell filled out CUNY's Employment Eligibility Verification Form ("I-9 form"), and submitted the form to Helga Johnson ("Johnson"), a personnel official in the Dean's Office. Burrell's I-9 form indicated that she was an alien authorized to work in the United States under a valid passport and accompanying work authorization documents.

 The next day, Johnson asked Burrell to submit a copy of her greencard for CUNY's files. Surprised that Roman had not informed Johnson about her visa status, Burrell approached Roman and reminded him of the need to prepare a petition for the transfer of her visa. Roman assured Burrell that he would take care of the matter. Several days later, Johnson again requested a copy of Burrell's greencard. Burrell again approached Roman, who said he had spoken about the matter with Eleanor Chin ("Chin"), then Acting Director of Administrative Affairs at Sophie Davis. Roman assured Burrell that Chin would process all paperwork necessary to transfer sponsorship of Burrell's visa.

 Shortly thereafter, Burrell met with Chin to discuss her visa status. At that time, Burrell asked Chin to read a letter from Burrell's former employer outlining the required procedure for transferring sponsorship of her visa to a new employer. Chin read the letter and asked Burrell to bring her passport and visa to Johnson. Burrell presented those documents to Johnson, who made copies for Sophie Davis' files.

 The sexual harassment complained of in this action allegedly began on Burrell's first day of employment. Roman requested Burrell's home telephone number for his private address book. Burrell thought the request odd because Roman had telephoned her at home once before, in order to offer her the job. She informed Roman that her telephone number was unlisted in order to avoid receiving annoying calls. After Roman explained that he did not usually call employees at home except in emergency situations, Burrell gave Roman her number.

 Roman began making comments to Burrell at work, such as: "I like your style," "you are a class act," and "we communicate so well with each other." On noticing a photograph on Burrell's desk, Roman inquired of Burrell whether the individual in the picture was her brother. Burrell informed him that the photograph was of her fiance. Thereafter, Roman made it a habit, when walking past Burrell's desk, to knock the picture over and ask Burrell whether she wanted him to pick it up.

 On February 14, 1992, St. Valentine's Day, Roman had flowers and chocolates delivered to Burrell's home. *fn3" At a meeting with Roman a few days later Burrell said: "I guess I should say 'thank you' for the flowers?" Roman replied "You said that as if you did not appreciate them." Burrell explained that the gift made her very uncomfortable because it might cause tension between her and her fiance, and asked Roman not to send packages to her home in the future. Roman responded: "you should relax; there is nothing wrong with being a little bit vulnerable; there is no reason to always be on the defensive." Approximately two ...

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