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January 2, 1997

MARION J. AUSFELDT, Plaintiff, against MARVIN T. RUNYON, as Postmaster General of the United States Postal Service Agency; GEORGE COFFEY, Defendants.

The opinion of the court was delivered by: KAHN

 This is an action for employment discrimination brought under 42 U.S.C. § 2000e more commonly known as Title VII. Plaintiff Marion J. Ausfeldt ("Ausfeldt") alleges discrimination on the part of her employer, Marvin T. Runyon ("Runyon") Postmaster General of the United States Postal Service ("Postal Service") and her immediate supervisor, George Coffey ("Coffey"). Plaintiff alleges hostile environment sexual harassment and failure to promote based on retaliation. Plaintiff seeks Two-Million Five-Hundred thousand dollars in compensatory damages, One-Million Five-Hundred thousand dollars in front pay, back pay, and benefits, and Two-Million Five-Hundred thousand dollars in punitive damages as well as attorneys fees and costs.

 Presently before the Court is the defendant's motion to dismiss or, in the alternative, for summary judgment. Also before the Court is defendant's motion to strike the portions of the complaint involving punitive damages and front pay. Oral arguments on this matter were heard on October 4, 1996 in Albany, New York.


 Ausfeldt became an employee of the United States Postal Service ("Postal Service") in 1980 and began working in the Schenectady Post Office in 1981. In 1987, plaintiff received training on Equal Employment Opportunity ("EEO") procedures and policies. In May of 1992, defendant Coffey became the plaintiff's immediate supervisor in the Schenectady Post Office.

 Ausfeldt alleges that when Coffey became her supervisor, she was forced to endure repeated sexual harassment and sex discrimination which continues to the present. Specifically, Ausfeldt contends that Coffey would comment on her clothing in a sexually offensive manner, particularly when she was bending over the mail slots in the office. Ausfeldt also alleges that Coffey would ask highly personal questions about her marital relationship, compared her to a television actress whom he considered a "hot item," would make comments regarding the breast size of other female postal employees in her presence, and would make physical contact with her including placing his hands on her back and pressing his body against hers. Ausfeldt further submits that after declining a lateral position change that Coffey had requested she take, he became more hostile and used sexually explicit language and screamed at her.

 In the Spring of 1994, Ausfeldt voiced her concerns regarding Coffey's behavior to Lisa Lynch, the Employee Assistance Program Coordinator for the Albany District. However, Ausfeldt did not contact an EEO Counselor/Investigator ("Counselor") at that time. In December of 1994, after an alleged altercation with Coffey, Ausfeldt contends that she confided in Mark Vrooman ("Vrooman"), the Senior EEO Complaints Processing Specialist in Albany, New York. At that meeting, Ausfeldt submits that she asked specific questions about the definition of sexual harassment and explained the alleged acts of Coffey. Vrooman allegedly informed her that these events did constitute sexual harassment and that he would attempt to resolve the problems informally through mediation. Plaintiff submits that she never heard anything further from Vrooman and contends that she was not informed that she could file a formal written complaint with the EEOC.

 Ausfeldt engaged in temporary assignments known as details within the Post Office which entailed working at different locations. In July 1994, Ausfeldt had a detail in the Albany District Office. She returned to the Schenectady Office in February of 1995 and stayed there through June.

 In April of 1995, Ausfeldt wrote the Manager of Human Resources, Albany District, asking to be considered noncompetitively for any lateral transfers or a change to a lower paying position outside of the Schenectady Office. Defendant Runyon asserts that there were no positions available to which Ausfeldt could laterally transfer and the only available position at a lower level was filled competitively. Ausfeldt was not chosen for that position.

 In June 1995, Ausfeldt met with Maryrose Behan ("Behan"), the Senior Personnel Services Specialist, regarding promotions and transfers and to discuss the alleged harassment by Coffey. Ausfeldt did not apply for any promotions and did not pursue the formal avenue of contacting an EEO Counselor at that time.

 It is undisputed that On October 5, 1995, Ausfeldt initiated formal contact with an EEO Counselor. Plaintiff alleged that the Schenectady Post Office was a sexually hostile and abusive work environment. On November 13, 1995, Asufeldt filed a formal written administrative complaint.

 As a result of this complaint, the Postal Service began an EEO investigation. After conducting an investigation, defendant Runyon concluded that Ausfeldt had not complained of any actions by Coffey that fell during the 45-day contact period between August 21, 1995 and October 5, 1995 and that Ausfeldt had not been denied any promotion or transfer opportunities during the same period of time. On December 2, 1995, the Postal Service issued a final decision denying the administrative complaint on the grounds that Ausfeldt failed to timely initiate contact with an EEO Counselor. The present action was commenced on February 21, 1996.

 From January 1996 to June of the same year, Ausfeldt was on detail in the West Sand Lake Post Office. Plaintiff contends that despite the fact that she was not physically present at the Schenectady Post Office, she still had contact with Coffey both directly and indirectly. Ausfeldt was scheduled to return to the Schenectady Post Office on July 15, 1996.


 A. Summary Judgment Standard

 Since the Court relied upon matters outside the pleadings in reaching the conclusions set forth, this motion will be treated as one for summary judgment. Fed. R. Civ. P. 12(c). Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 1. Hostile Environment Sexual Harassment Claim

 The Supreme Court described a hostile work environment as a workplace "permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). "Isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with regularity that can reasonably be termed pervasive." Tomka v. Seiler Corp., 66 F.3d 1295, 1306 n.5 (2d Cir. 1995).

 A 'hostile work environment' theory requires that the plaintiff prove not only actionable sex discrimination, but also that the supervisor's actions should be imputed to the employer." Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992). With regard to the first prong of this test, the Second Circuit has explained that a review of the totality of the circumstances determines discrimination's existence. See Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986). A plaintiff must satisfy several elements.

 First, a plaintiff must establish that the "harassment occurred with respect to 'terms, conditions, or privileges' of employment, 42 U.S.C. § 2000e-2(a)(1), though she need not show that she lost any tangible job benefits as a result thereof." Kotcher, 957 F.2d at 62;2. Second, the plaintiff must establish the offensiveness and pervasiveness of the defendant's conduct. Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989); Kotcher, 957 F.2d at 62 ("The harassment at issue must be 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.' [ Vinson, 477 U.S. at 67]"). Third, the plaintiff must establish the repetition and continuousness of the harassing incidents. Kotcher, 957 F.2d at 62 ("isolated acts or occasional episodes will not merit relief"); see also Carrero, 890 F.2d at 577. Finally, the plaintiff must establish that the conduct was unwelcome. Vinson, 477 U.S. at 68.

 These elements, once established, combine to show an abusive work environment. In order to impute the offensive conduct to the employer, the employer must have "provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Kotcher, 957 F.2d at 63; See also Snell, 782 F.2d at 1104. *fn1" Yet, "lack of notice and the existence of complaint procedures do not automatically insulate an employer from liability." Karibian v. Columbia University, 14 F.3d 773, 779 (1994). "At some point . . . the actions of a supervisor at a sufficiently high level in the hierarchy would necessarily be imputed to the company." Kotcher, 957 F.2d at 64. A harasser's supervisory status over the harassed increases the likelihood of employer liability. Id. The Second Circuit noted that:

 Tomka, 66 F.3d at 1305.

 Thus, "an employer is liable for the discriminatorily abusive work environment created by a supervisor 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 780. *fn2"

 a. Timeliness of Complaint

 The EEO regulations provide that aggrieved persons who feel they have been discriminated against must "initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory . . . ." 29 C.F.R. § 1614.105(a)(1). "At the initial counseling session, Counselors must advise individuals of their rights and responsibilities . . . ." 29 C.F.R. § 1614.105(b). The regulations further provide that "the Counselor shall conduct the final interview with the aggrieved person ...

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