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HERNANDEZ v. CUNNINGHAM

February 6, 1996

GIGI SHANES HERNANDEZ, Plaintiff, against LAWRENCE CUNNINGHAM, individually and in his capacity as Employment Counselor, CLYDE R. JONES, individually and his capacity as Acting Director of the Westchester County Office of Employment and Training, JOHN ZAKIAN, individually and in his capacity as an Assistant to the County Executive, JOANNE M. CLEMONTONI, individually and in her capacity as Accountant and the County of Westchester, Defendant.


The opinion of the court was delivered by: PARKER

 MEMORANDUM DECISION AND ORDER

 This action for the violation of civil rights under 42 U.S.C. § 2000-e et. seq. is before the Court on Defendants' motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Defendants' motion is granted.

 FACTS

 The following facts are alleged in the complaint: In late 1993, Lawrence Cunningham, an employment counselor at the Westchester County Office of Employment and Training ("OET"), thrust his fists in the face of plaintiff Gigi Shanes Hernandez ("Shanes") also an employment counselor at OET *fn1" When Shanes requested that he stop, Cunningham responded that he regularly did the same thing to his wife. Shanes discussed the incident with Joanne Clemontoni, who told her that Cunningham was a "walking time bomb". Clemontoni took no remedial action.

 During the course of the next seven weeks, Cunningham repeated this same conduct, Shanes reported the incidents, and Clemontoni did nothing. During that time, Shanes learned that Clementoni was aware that Cunningham had behaved similarly with other female employees but that she failed to act in those cases. In January 1994, Cunningham, without warning, approached Shanes from behind and "grabbed her skin through her clothing at waist level and pinched her so hard that she suffered severe pain." Shanes reported the incident to Clementoni who, again, failed to take remedial action. Instead, Clementoni directed Shanes and Cunningham to take a gender based harassment seminar together. Shanes looked to the Employees Assistance Program ("EAP") for advice; they told her to take remedial action at the County's Office for Women. Clementoni learned that Shanes was speaking with the EAP and told Shanes's co-workers that Shanes had instituted a lawsuit against Cunningham. As a result, the staff began to abuse plaintiff. Cunningham apparently continued to frighten plaintiff; one time he banged the wall which divided his and Shanes's offices. When Shanes reported the incident to Clementoni and later Clyde R. Jones ("Jones"), acting director of the OET, nothing was done.

 During some point in early 1994, Jones and Clementoni, for the first time, told Shanes that she was the "wrong person" for the position of employment coordinator. On March 15, 1994, Jones summoned Shanes to his office and showed her both a letter of termination and a letter of resignation and instructed Shanes to accept one or the other. Shanes protested that her job performance had been good and refused to accept either resignation or termination. Jones told Shanes that she would be out of a job by March 18, 1994. That day, Shanes went to the County's Office of Affirmative Action to file a sexual harassment complaint. The program specialist, Martin Zeifman, stalled Shanes from filing the complaint for a week.

 However, as soon as the union representative left the OET offices, Jones handed Shanes a letter of termination, effective March 18, 1994. John Zakian, Assistant to the County Executive, aware of the hostile work environment, expressly approved the termination. That day, Clementoni told Shanes that she was fired for complaining about the sexual harassment and the County's failure to take remedial action.

 On March 17, at the meeting with Shanes, Jones and Wittenberg, Wittenberg directed that the termination letter be held in abeyance until the completion of the affirmative action investigation. For the next eight months, Shanes's employment status with the County remained "terminated" with the effective date of the termination stayed.

 On April 7, 1994, Shanes filed a complaint with the Equal Employment Opportunity Commission ("the "EEOC"), charging Jones, Clementoni, Cunningham, and the County with discrimination pursuant to Title VII, 42 U.S.C. § 2000e et. seq. *fn2" After Shanes filed her EEOC complaint, defendants refused to associate or communicate with her, made her the subject of false disciplinary complaints, threatened her, denied her emergency leave time, and refused to allow her to take a previously approved vacation.

 On June 7, 1994 Shanes commenced an action in this Court pursuant to 42 U.S.C. § 1983 on the grounds of defendants' retaliating against her EEOC complaint (Shanes I). Throughout Shanes I, defendants perpetuated a work environment hostile to Shanes. They forbid Shanes from performing any job duties, separated her from the other OET offices, and accused her of being a "problem," ransacked her office and threatened her life. In November, 1994, Shanes resigned. That month, Shanes prevailed in Shanes I and was awarded damages. On May 27, 1995, just after she received her right to sue letter, Shanes brought this action pursuant to Title VII, 42 U.S.C. 2000 et seq.

 DISCUSSION

 1. Motion to Dismiss ...


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