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HERNANDEZ v. JACKSON

February 25, 1998

Sumaira Hernandez, Plaintiff, against Jackson, Lewis, Schnitzler & Krupman, Defendants.


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Before this Court for decision is a motion by Defendant for summary judgment pursuant to Rule 56, Fed. R. Civ. Pro., heard and fully submitted on February 24, 1998. Plaintiff Sumaira Hernandez brought this action against her present employer Defendant Jackson Lewis (hereinafter "Jackson Lewis" or Defendant) pursuant to Title VII, 42 U.S.C. §§ 2000e et seq., and Section 296 et seq. of the New York Human Rights Law (the "NYHRL"), alleging (1) quid pro quo sexual harassment; (2) hostile work environment sexual harassment; (3) unlawful retaliation; and (4) unlawful discrimination on the basis of race and national origin. For the reasons set forth below, the motion is denied.

 Background

 Plaintiff, an Hispanic female from the Dominican Republic, has been employed since 1990 in a data entry capacity by Defendant law firm in its accounting department. There are essentially two alleged wrongdoers in this case. The first is the alleged sexual harasser, Mr. Arnold Mack, an African American billing coordinator in the accounting department. Although Mr. Mack was not Plaintiff's nominal supervisor, Plaintiff contends that he enjoyed de facto supervisory authority over her. The second alleged wrongdoer is Mr. Charles Patterson, also an African American. It is undisputed that Mr. Patterson is comptroller of the accounting department at Jackson Lewis and as such is a designated supervisor of both Mr. Mack and Plaintiff.

 According to Plaintiff, since 1994, Mr. Patterson has accused her unjustifiably of time abuses, and has routinely discriminated against her in favor of her African-American co-workers in distributing prized overtime work assignments. See Complaint P5 and P6. Plaintiff claims that Mr. Mack, who was aware of her problems with Mr. Patterson, "advised [her] that if she would enter into a sexual relationship with him he would, by reason of his long-term relationship with Patterson, obtain overtime work assignments for her and otherwise remedy the oppressive working conditions to which Patterson was subjecting her." Id. at P7.

 The Complaint goes on to allege a paradox: ultimately, Plaintiff acquiesced to Mr. Mack's repeated requests and " involuntarily agreed to provide to Mack sexual favors over the course of several months." Id. at P8 (emphasis added). The specifics of this "involuntary agreement" are as follows. Plaintiff testified that sometime in November of 1994 she agreed to go out with Mr. Mack after work. The two went to a Red Lobster Restaurant located in Co-op city. There, Plaintiff and Mr. Mack each consumed the traditional "two drinks" -- specifically, two Long Island Iced Teas *fn1" -- which always seem to be "recited in testimony arising out of incidents in a bar." See Lee v. Bennett, 927 F. Supp. 97, 99 n.1 (S.D.N.Y. 1996). Thereafter, Plaintiff and Mr. Mack proceeded to a nearby motel, where they engaged in sexual intercourse. See P. Dep. at 95-105 at Def. Exh. B.

 Plaintiff claims that she ended her sexual relationship with Mr. Mack in "February or March" 1995, when it became apparent to her that Mr. Mack would not make the promised efforts on her behalf. Id. at 123 and Complaint at P8. At oral argument, Defendant contended that the sexual relationship ended in December of 1994 or January of 1995. See Transcript. Plaintiff claims that after she terminated her sexual relationship with Mr. Mack, he began a campaign of retaliation against her, by engaging in "intimidating behavior . . . standing in front of her, calling her a bitch, staring at her, laughing at her, and making her feel threatened with regard to her job security." See Complaint at P12; Plaintiff Mem. at 6. Plaintiff alleges that she complained to Mr. Patterson about Mr. Mack on April 4, 1995 and that Mr. Patterson responded by inquiring whether Plaintiff had enjoyed her sexual encounters with Mr. Mack, and not to let it bother her because she might have to do it again. Plaintiff Dep. at 137-139. As may be imagined, Defendant and Mr. Patterson deny that such a conversation took place.

 According to Mr. William A. Schlosser, the Director of Finance and Administration at Jackson Lewis, as part of the Defendant's investigation Ms. Tsamis also looked into the allegation that Mr. Patterson had asked Plaintiff whether she had enjoyed her sexual encounters with Mr. Mack. Mr. Schlosser testified that when Mr. Patterson denied this allegation, Ms. Tsamis "had [Plaintiff] into the room in the hopes that the two of them could jog each others memory and maybe there was a misunderstanding since she was emotionally distraught at the time, sobbing, and maybe she misheard Charlie [Patterson], and maybe the two of them talking through it could understand what exactly was said, which would clarify the potential misunderstanding of the verbiage." Schlosser Dep at 54-56.

 Despite these attempts at "clarification," Plaintiff continued to insist that Mr. Patterson had responded to her complaints inappropriately. Ultimately, Defendant's investigation into Plaintiff's allegations about Mr. Patterson's response also proved inconclusive.

 Plaintiff alleges that Mr. Patterson's persecution of and discrimination against her has continued unabated despite her complaints to Jackson Lewis management. According to Plaintiff, Mr. Patterson has (1) disciplined her unfairly for tardiness and absences, relative to her African American co-workers; (2) denied her overtime assignments and gave her an unfairly low bonus, relative to her African American co-workers; and (3) advised her that she would not receive promotional consideration because of her "thick accent." See Complaint at P12.

 On February 23, 1996, Plaintiff filed a Charge of Discrimination with the EEOC, and on August 27, 1996 the EEOC issued to Plaintiff a Right to Sue Letter. Plaintiff ...


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