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January 24, 1997


The opinion of the court was delivered by: NICKERSON

 NICKERSON, District Judge:

 Plaintiffs Jacqueline Byard (spelled "Bayard" in the caption) and Joanne Spina bring this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiffs say that their supervisor, Ronald Riccitelli, sexually harassed and assaulted them and that their employers, Getty Terminals Corporation (Getty Terminals) and Getty Petroleum Corporation (Getty Petroleum), were responsible for a hostile work environment, and brought discriminatory and retaliatory measures against them.

 Plaintiffs also make claims of violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et. seq., and of assault and intentional infliction of emotional distress under New York common law. Plaintiffs ask for injunctive relief and compensatory and punitive damages.

 Defendants Getty Terminals and Getty Petroleum (collectively "Getty") move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or, in the alternative, for partial summary judgment.


 A. The workplace structure

 The following facts are undisputed. Spina and Byard were clerical workers at Getty's Long Island City Terminal. Spina started in September, 1986, Byard in September, 1987. Their duties included using the computer, answering the telephones, typing, filing, taking gasoline orders, and setting up drivers' delivery schedules.

 Riccitelli was a terminal supervisor at the terminal. James Masone, at one point lead foreman and later assistant terminal superintendent, was Riccitelli's immediate supervisor. Above Masone was John Bohmke, terminal manager for the Long Island City, Mount Vernon and Oceanside terminals, and above Bohmke was Paul Stendardi, Director of Terminals. Stendardi reported directly to Alvin Smith, a Senior Vice President of Getty Petroleum. Smith's immediate supervisor was the Chief Executive Officer of Getty Petroleum, Leo Liebowitz.

 Getty Terminals is a wholly owned subsidiary of Getty Petroleum, and operates the supply, storage and delivery of petroleum products for Getty Petroleum's terminals in the Northeastern United States. Getty Petroleum operates a single Human Resources Department, which handles personnel matters for Getty Petroleum and all of its subsidiaries. During the relevant time period Arthur King was Getty Petroleum's Director of Personnel.

 B. Plaintiffs' claims of harassment

 In her deposition, Spina testified that Riccitelli began to harass her verbally in May or June of 1988 and soon, perhaps as early as July, 1988, started physically to harass her. According to Spina, Riccitelli pinched and grabbed her in various parts, exposed his underwear on his way to the bathroom, and at least once grabbed her hand to try to make her touch his penis.

 Spina testified that in December of 1988, Riccitelli dragged her into the bathroom, pushed her against the wall, and, banging her head, unbuttoned and tried to unzip her pants. Only when she screamed at Riccitelli, Spina claims, did he let her go. Spina testified that Riccitelli told her "if you open your mouth, I will come after you."

 Plaintiffs' amended complaint alleges that Riccitelli began to harass Byard sexually as early as December of 1987. In her deposition, Byard says that Riccitelli grabbed her in various parts, made sexually suggestive comments to her, and lowered his pants in front of her. On February 12, 1989, Byard suffered a stroke at work that partially paralyzed her. Byard testified that while she was thus suffering, Riccitelli helped her to the bathroom, fondled her vagina, and attempted to rape her as he sat her on the toilet.

 There is little agreement as to how often plaintiffs complained to Getty management about Riccitelli. Although plaintiffs' deposition testimony is contradictory on this point, both of them essentially say they complained to Masone, either jointly or individually, about Riccitelli on several occasions, but that the harassment continued.

 Masone remembers only one occasion when plaintiffs made complaints to him. In his deposition, he said that Spina and Byard told him in January, 1989, that Riccitelli had exposed himself and touched their breasts. Masone said that he then spoke with Riccitelli about what Spina and Byard had said and that Riccitelli denied everything.

 Riccitelli testified that he does not recall Masone speaking to him about Byard's or Spina's claims until after Byard's stroke on February 12, 1989.

 In late February, 1989, about two weeks after Byard's stroke, someone sent an anonymous letter to Liebowitz, Getty Petroleum's Chief Executive Officer, alleging extortion, improper employee timekeeping, and sexual harassment at the terminal. As a result of the letter, Arthur King and Paul Stendardi instructed John Bohmke to conduct an investigation.

 On February 28, 1989, Bohmke interviewed Spina, and she told him about Riccitelli's assault of her in December, 1988. Bohmke asked her to prepare a written report about the incident.

 She did so on March 3, 1989, addressing the report "To whom it may concern". She described how she had been sexually harassed repeatedly by Riccitelli, and how she and Byard had complained to Masone, who did not respond, finding their claims difficult to believe. The report said that only after Spina told Masone that Riccitelli had attempted to rape her did he finally take action. The report also stated that other Getty employees, including Jim Geraci and Jorge Figueroa, like Riccitelli terminal supervisors, witnessed his acts of harassment.

 Byard returned to work in late March or early April of 1989, almost two months after her stroke, and met with Bohmke to discuss the anonymous letter and what had happened the day of her stroke.

 On April 11, 1989, Riccitelli's shift was permanently changed so that he would never work at the same time as Byard or Spina. Getty claims this was the day after Byard had met with Bohmke; Byard testified that she thought it was a few weeks after the meeting.

 King, Getty Petroleum's director of personnel, interviewed Spina on May 1, 1989. Six weeks later, on June 20, 1989, he prepared a memorandum for the file which summarized what Spina had said. The summary was for the most part consistent with Spina's written report.

 On May 23, 1989, both Spina and Byard filed sexual harassment complaints with the New York State Human Rights Division. Their complaints were thereafter sent to the Equal Employment Opportunity Commission.

 On May 31, 1989, Spina was fired for allegedly spreading false rumors that Geraci and Masone were smoking marihuana on the job. Spina admits in her deposition that she had little basis for saying this. Three days later she was notified that her discharge had been converted to a temporary suspension and that she could immediately resume her position at Getty Terminals. Spina refused to return to work, saying that even though Riccitelli's shift had been changed, she did not wish to work at the same location as he did. Getty then offered her a comparable position at a different location. She refused.

 For reasons that are unclear, Riccitelli was terminated on June 15, 1989. Byard continued to work at Getty until she was terminated on August 31, 1990.

 Plaintiffs commenced this action on December 22, 1989. At the request of plaintiffs' counsel, the case was placed on the inactive list shortly after its initial filing. The case remained inactive until February, 1994.


 In its motion for summary judgment, Getty argues that: (1) Getty Petroleum was not plaintiffs' "employer" under either Title VII or New York's Human Rights Law; (2) that plaintiffs had a reasonable avenue of complaint and Getty took action to stop the alleged harassment; and (3) plaintiffs cannot demonstrate that Getty retaliated against them. Alternatively, Getty asks for partial summary judgment limiting Byard's backpay damages.

 Getty also asks for summary judgment (a) dismissing plaintiffs' mental anguish claims under New York's Human Rights Law because it says plaintiffs cannot provide evidence of the duration or severity of their mental injuries and (b) dismissing the state law claims for assault and intentional infliction of emotional distress.


 Under Federal Rule of Civil Procedure 56(c) the court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the movants are entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On the motion the court views the record in the light most favorable to the non-movant and resolves all ambiguities and draws all reasonable inferences against the movants. United States v. Diebold, Inc., 369 ...

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