Rights ("DHR"). Plaintiff received a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") on January 12, 1996.
Plaintiff and Alan Bush filed a Complaint in this Court on February 20, 1996. An Amended Complaint was filed on February 23, 1996. The Amended Complaint alleged causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the New York Human Rights Law, Executive Law § 296. A third cause of action for Mr. Bush's loss of consortium also was alleged.
Defendants filed Answers to the Amended Complaint, and first moved for summary judgment on September 17, 1996. In a Memorandum, Decision and Order dated December 14, 1996, this Court granted defendants' motion in part, dismissing the loss of consortium claim in its entirety
, and the Title VII claims against Sawyer and Rusnak individually. The Court declined to dismiss the HRL claims against Sawyer and Rusnak, finding that supplemental jurisdiction existed.
Defendants now move for summary judgment dismissing the remaining claims. They argue that (1) there is no evidence that plaintiff was subjected to pervasive or severe harassment sufficient to alter the conditions of her employment; (2) that plaintiff's failure to use Raymond's internal complaint procedures requires dismissal of the harassment claims; (3) that Sawyer and Rusnak cannot be held liable individually for harassment under the HRL since they have no ownership interest in the company; and (4) that summary judgment is appropriate at this state since plaintiff is unable to establish disparate treatment based on gender or retaliation.
A. Defendants' Motion for Summary Judgment.
The Court now turns to defendants' motion for summary judgment.
(1) The Standard for Summary Judgment.
Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029, 95 L. Ed. 2d 527, 107 S. Ct. 1955 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
It is with these considerations in mind that the Court addresses defendants' motion for summary judgment.
(2). Hostile Work Environment Sexual Harassment
Defendants argue that plaintiffs' Title VII and HRL claims should be dismissed because no evidence exists that plaintiff was subjected to hostile work environment sexual harassment.
To establish a claim for hostile work environment sexual harassment, plaintiff must show: "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995).
As to the first prong of this analysis, "the plaintiff must first prove that discriminatory harassment occurred with respect to 'terms, conditions, or privileges' of employment, ... though [the plaintiff] need not show that [she] lost any tangible job benefits as a result thereof." Id. Further, "actionable sexual harassment must consist of more than isolated incidents or casual comments that express harassment or hostility." Babcock v. Frank, 783 F. Supp. 800, 808 (S.D.N.Y. 1992). Rather, "the harassment at issue must be 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.'" Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992) (quoting Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). In this regard, "the incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Kotcher, 957 F.2d at 63 (citing Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989)). Moreover, the employee must subjectively perceive the environment to be abusive, and the environment must be one that a reasonable person would find hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). Whether such conduct reaches the level of actionable sexual harassment is determined by the totality of the circumstances. Babcock, 783 F. Supp. 800 at 808 (citing Meritor, 477 U.S. 57 at 69, 106 S. Ct. at 2406-07).
Defendants argue that even if true, Sawyer and Rusnak's "innocuous" conduct does not rise to a sufficiently severe level to be actionable under Title VII. The Court disagrees, and find that plaintiff's allegations raise an issue of fact as to whether her work environment was permeated with severe or pervasive harassment.
Sawyer and Rusnak's alleged remarks, combined over a period of time, could reasonably lead a trier of fact to conclude that plaintiff's work environment was abusive, particularly with respect to Rusnak's vulgar, sexually explicit accusations regarding plaintiff having a sexual relationship with Sawyer. Furthermore, plaintiff alleges that such conduct "began to interfere with [her] job performance as [she] did not want to be left alone with Sawyer for fear that he would make advances toward [her] and began to be very short tempered due to the stress [she] was under." (Pl. Aff. P 8). Plaintiff clearly asserts that the conduct was unwelcome. See Meritor, 477 U.S. at 68.
Moreover, while plaintiff does not specify when or how often the particular comments occurred, she does assert, for example, that Sawyer and Rusnak's remarks occurred on an "almost daily" basis. (Pl. Aff. PP 9, 13); see Harris, 510 U.S. at 22 (noting that in determining whether work environment is hostile, frequency of discriminatory conduct is relevant, and that no single factor is required). While the conduct taken in isolation may not be viewed as severe, its frequency could lead a trier of fact to find that such conduct was abusive, since "'the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.'" Trotta v. Mobil Oil Corp., 788 F. Supp. 1336, 1349 (S.D.N.Y. 1992) (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991). Thus, a reasonable jury could conclude that the cumulative effect of the alleged conduct, ocurring on a daily basis throughout plaintiff's employment, subjected her to a hostile work environment. Ritter v. Medical Arts Center Hosp., 1997 U.S. Dist. LEXIS 1009, 1997 WL 45349, at *6 (S.D.N.Y. 1997). Cf. Erlach v. New York City Bd. of Educ., 1996 WL 705282, at *10 (E.D.N.Y. 1996)("sporadic remarks and actions occurring over a very brief time period are too insignificant and isolated to allow a jury to conclude that a hostile work environment existed").
The inquiry does not end here, however; Sawyer and Rusnak's conduct must be attributable to Raymond in order for Title VII liability to attach. Employer liability for hostile work environment sexual harassment arises in two situations:
[First,] when a supervisor wields the authority delegated to him by an employer either (a) to condition "tangible job benefits" affecting an employee on the employee's acceptance or rejection of the supervisor's sexual demands, or (b) to further the creation of a discriminatorily abusive work environment, the supervisor's conduct is deemed to be that of the employer, and the employer's liability for that conduct is absolute. [Second,] employer liability for a hostile environment created by co-workers, or by a low-level supervisor who does not rely on his supervisory authority in carrying out the harassment, attaches only when the employer has "either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it."