evidence may be found in support of the non-moving party's case. When no rational jury could find in favor of the non-moving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. Id.
B. Sexual Harassment Under Title VII
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of an individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). There are two forms of sexual harassment that violate Title VII -- "quid pro quo" and "hostile work environment" harassment. Tomka v. Seiler Corporation, 66 F.3d 1295, 1305 (2d Cir. 1995). A quid pro quo case exists when a plaintiff presents evidence that she was subjected to unwelcome sexual conduct, and that her reaction to that conduct was then used as a basis for decisions affecting her compensation, terms, conditions, or privileges of her employment. Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir.), cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994). A hostile work environment case, on the other hand, requires a showing that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Id. at 779 (citations and quotation marks omitted). Because DiLaurenzio proceeds on only a hostile work environment theory in this case, I consider only whether there is a genuine issue of material fact as to whether this form of sex discrimination occurred at Atlantic and, if so, whether it can be imputed to Atlantic.
1. The Severity Or Pervasiveness Of The Sexual Harassment
Atlantic first argues for summary judgment on the ground that even if DiLaurenzio's allegations are regarded as true, Dove's alleged conduct was not sufficiently severe or pervasive to constitute sexual harassment under Title VII.
Determining whether the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment requires an evaluation of all the circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). Such circumstances may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or merely offensive, and whether it unreasonably interferes with the employee's work performance. 114 S. Ct. at 371. The incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989). Finally, the environment must be objectively hostile or abusive -- one that a reasonable person would find hostile or abusive -- and the victim must subjectively perceive the environment to be abusive. Harris, 114 S. Ct. at 370. This is not a precise test. It leaves the determination of whether there is "hostility" or "abuse" in the workplace in the hands of juries, and provides them with little guidance in making it. Id. at 372 (Scalia, J., concurring). As a result, it is the sort of issue that is often not susceptible of summary resolution.
I find that DiLaurenzio's allegations, supported in her affidavit and the depositions of her co-worker, Miguelina Fanas, create a genuine issue of material fact as to whether DiLaurenzio was subjected to a hostile work environment. She alleges not only vulgar and sexually suggestive comments by Dove to the clerks, such as openly comparing the breast sizes of female employees and suggesting that DiLaurenzio have sex with him, but also that Dove regularly touched, held, and massaged DiLaurenzio and other clerks in a sexually offensive fashion. DiLaurenzio states that Dove's abuse often drove her to tears and that she was forced to exit the office as a result. Finally, DiLaurenzio does not allege episodic acts by Dove; she has presented evidence that Dove regularly made these offensive comments and touchings.
These allegations are sufficiently severe and pervasive to create a genuine issue of fact as to whether Dove subjected DiLaurenzio to a hostile work environment. See, e.g., Harris, 114 S. Ct. at 369 (finding a hostile work environment where a supervisor insulted employee because of her gender, called her a "dumb ass woman," suggested that she accompany him to a Holiday Inn to negotiate her raise, and invited employee and other female employees to get coins from his front pants pocket); Kotcher v. Rosa & Sullivan Appliance Center, 957 F.2d 59, 61 (2d Cir. 1992) (finding a hostile work environment where a supervisor pretended to masturbate behind an employee's back and suggested that her sales were due to her "bodily equipment"); Carrero, 890 F.2d at 578 (finding hostile work environment where a supervisor fondled a female employee's knee, kissed her neck, and attempted to kiss her lips); Fernot v. Crafts Inn, Inc., 895 F. Supp. 668, 675 (D. Vt. 1995) (finding a hostile work environment where a supervisor hugged and grabbed employee, stared at her breasts, and commented that her legs went all the way to her neck).
2. The Imputation Of Dove's Conduct To Atlantic
Atlantic next argues that even if Dove's alleged treatment of DiLaurenzio was severe and pervasive enough to constitute a sexually hostile work environment, Atlantic is not liable for his conduct because it had provided a reasonable avenue for complaint by DiLaurenzio and, as DiLaurenzio admits, had no actual knowledge of the alleged harassment. I do not reach this question, however, because DiLaurenzio proceeds on the theory that Dove used his supervisory authority to further the hostile work environment, and I find that there is a genuine issue of material fact on that issue. See Karibian, 14 F.3d 773, 780.
Even where a work environment is found to be sufficiently severe or pervasive to be abusive, a plaintiff must establish that the conduct which created the hostile environment should be imputed to the employer. Tomka, 66 F.3d at 1305 (citations and internal quotation marks omitted). The determination is guided by common law principles of agency. Id. If a plaintiff's supervisor is the alleged harasser, an employer will be liable if the supervisor uses his actual or apparent authority to further the harassment, or if he was otherwise aided in accomplishing the harassment by the existence of the agency relationship. Karibian, 14 F.3d at 779. A supervisor's use of actual or apparent authority is shown where the employee alleges facts which establish a nexus between the supervisory authority and the harassment. Tomka, 66 F.3d at 1306 (where a supervisor used his authority to convene a business dinner where he fostered excessive drinking by paying for the drinks with a company credit card, company could be liable for rape of plaintiff which followed).
Here, there is no dispute that Dove was the supervisor of the Atlantic scheduling clerks, including DiLaurenzio. Dove had the authority to hire and fire clerks, schedule their work hours, determine work assignments, and grant pay raises. By the defendant's own admission, Dove was responsible for hiring DiLaurenzio, evaluating her job performance, and determining which days and hours she worked and whether she received days off. Moreover, Dove was responsible for granting DiLaurenzio pay raises. Finally, Dove had the authority to fire DiLaurenzio. Therefore, it is clear that Atlantic delegated to Dove supervisory authority over DiLaurenzio.
When viewed in accordance with the standards applicable to summary judgment motions, DiLaurenzio's allegations create a genuine issue of material fact as to whether Dove used his authority to further the hostile work environment. First, she claims that Dove had his employees make numerous harassing telephone calls to her home on days she was ill, purporting to be confirming that she was actually at home. Second, DiLaurenzio alleges that because Dove was in a position to terminate her and her co-workers, she did not report Dove's conduct to his supervisor for fear of being terminated by him. Third, because Dove supervised all of the clerks, he was able to roam freely through the office, talking to and touching the female employees without having to answer to any other Atlantic employee at the office. Finally, DiLaurenzio alleges that Dove actually threatened DiLaurenzio and her co-workers, stating that he would bring about retaliatory harm if they were to bring a sexual harassment suit against him. If these allegations are taken as true and all inferences are drawn in favor of DiLaurenzio, a rational jury could conclude that Dove was aided in accomplishing his harassment by the existence of his supervisory relationship.
In addition, while DiLaurenzio does not assert a theory of quid pro quo sexual harassment, conduct which renders an employer liable under a quid pro quo theory may also result in employer liability when that conduct becomes so severe and pervasive as to create a hostile work environment. Karibian, 14 F.3d at 781. Here, DiLaurenzio claims that after Dove began his sexual advances and she snubbed him, she was subjected to unfavorable treatment by him. For instance, she alleges that shortly after Dove's conduct began, he scheduled her to work on weekends when she was entitled to have these days off. Based on DiLaurenzio's allegations, a rational jury could conclude that Dove invoked his supervisory authority to retaliate against DiLaurenzio because she would not join in his lewd conversations or succumb to his sexual advances and then used his authority to threaten harm if she pursued a harassment claim against him. If proved, these facts could sustain a hostile work environment claim. See id. at 779 (where a supervisor capitalizes upon his authority to alter the employee's work schedule, give promotions and raises, and fire employees in order to force the employee to endure a sexual relationship, the supervisor has abused that delegated authority).
Because Atlantic has failed to show that there is no genuine issue of material fact as to whether Dove's conduct can be imputed to Atlantic, its motion for summary judgment on this ground is denied.
For the foregoing reasons, the defendant's motion for summary judgment is denied.
JOHN GLEESON, U.S.D.J.
Dated: May 29, 1996
Brooklyn, New York