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June 11, 1996

JOSEPH AGUGLIARO, Plaintiff, against BROOKS BROTHERS, INC., et al., Defendants.

The opinion of the court was delivered by: CHIN


 In this employment discrimination case, after receiving a complaint of sexual harassment from an employee against a manager, the defendant employer took swift and decisive action. It interviewed both the employee (a 24-year old female stock clerk) and the manager (a 51-year old man), determined that the employee was credible and that the manager was not, and dismissed the manager for "sexually harassing behavior." Seeking to turn the civil rights laws upside down, the manager brought this lawsuit, alleging that he was the victim of age and sex discrimination.

 Before the Court is defendants' motion for summary judgment. The motion is granted and the second amended complaint is dismissed, for no reasonable jury could conclude that defendants' articulated nondiscriminatory reason for discharging plaintiff -- that he sexually harassed a subordinate employee -- was pretextual. Indeed, on the present record, it is clear that plaintiff did engage in inappropriate sexual conduct with a subordinate employee on the premises during business hours. Moreover, even assuming for purposes of this motion that plaintiff did not engage in inappropriate sexual behavior, defendants fired him because they believed in good faith that he had, and plaintiff has presented no evidence to show otherwise. Accordingly, the motion is granted and the complaint is dismissed in all respects.


 A. Prior Proceedings

 This action was commenced on June 13, 1991 by plaintiff Joseph Agugliaro against defendants Brooks Brothers, Inc. ("Brooks Brothers"), Marks & Spencer plc ("Marks & Spencer"), Andrea Ross, Brian Curry, Pilarica R. Pasion (sued herein as Erica Pasion), and Sixto B. Sarmiento, Jr. (sued herein as Jan Sixto Sarmiento). Plaintiff alleged that defendants terminated his employment with Brooks Brothers in violation of the Age Discrimination in Employment Act (the "ADEA"), as amended, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., Section 510 of the Employee Retirement Income Security Act, as amended, 29 U.S.C. § 1140, and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. Plaintiff also asserted common law causes of action for tortious interference with contract and intentional infliction of emotional distress.

 Plaintiff filed an amended complaint on October 16, 1991. In July 1992, Judge Duffy, to whom this case was then assigned, granted defendants' motion to dismiss the amended complaint in part; he also granted plaintiff leave to file a second amended complaint. Plaintiff did so in August 1992.

 The case was reassigned to the undersigned on February 22, 1995. Following the completion of discovery, defendants moved for summary judgment. Defendants' motion was supported by documentary evidence, excerpts from Agugliaro's deposition, and several affidavits that set forth the facts leading up to plaintiff's discharge. In opposing the motion, however, plaintiff submitted no affidavits. Instead, he relied solely on excerpts from his deposition as well as excerpts from depositions of two of the defendants. In reply, defendants submitted additional affidavits and deposition excerpts. The record does not contain a complete transcript of plaintiff's deposition, nor does it contain any affidavit or other sworn statement from plaintiff seriously contesting defendants' version of the events leading to his discharge.

 B. The Facts

1. Defendants' Factual Showing

 Defendants' motion papers demonstrated the following:

 Agugliaro was employed by Brooks Brothers for more than 30 years, the last 20 of which he served as manager of the stock and receiving department at its Madison Avenue store. He was fired on June 18, 1990, at which time he was 51 years old.

 Pasion reported to Ross that Agugliaro, who was one of Pasion's superiors, had engaged in repeated acts of a sexual nature toward her at the Madison Avenue store while it was open for business. She told Ross the following: On three separate occasions, Agugliaro exposed himself to her and forced her to touch his genitals. On each of those occasions, Agugliaro touched her on her breasts and buttocks, and on one of those occasions he pulled her pants down to her knees and fondled her. On three other separate occasions, he followed her into the 9th floor women's restroom. Pasion told Ross that she had not intentionally encouraged Agugliaro's ...

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