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February 26, 1998



The opinion of the court was delivered by: SWEET

Sweet, D.J.

 In this sexual discrimination action, defendants City University of New York ("CUNY") and Dr. Stanford A. Roman, Jr., M.D. ("Roman") (collectively, "Defendants") move, pursuant to Fed. R. Civ. P. 56 and Fed. R. Civ. 12(c) for dismissal of all counts in the third amended complaint ("Third Amended Complaint") of plaintiff Cherie Burrell ("Burrell"). For the reasons set forth below, Defendants' motion will be granted in part and denied in part.


 Burrell was born in Barbados and, at all times relevant to this action, was a resident of Laurelton, New York.

 CUNY is a public higher education system comprised of several senior and community colleges throughout New York City and its boroughs, including CUNY Medical School/Sophie Davis School of Biomedical Education ("Sophie Davis").'

 Roman is the Dean of Sophie Davis.

 Prior Proceedings

 Burrell filed her first complaint in this action on December 2, 1994. The complaint alleged that Roman subjected Burrell to various acts of sexual harassment from the outset of her employment at CUNY in January 1992, through May 15, 1992; that Roman unilaterally transferred Burrell and asked her to resign in early June 1992; and that on August 31, 1992, Burrell's employment was terminated in retaliation for her complaining of sexual harassment to the CUNY Affirmative Action Office.

 Defendants moved for summary judgment, and, in an opinion issued on August 17, 1995, summary judgment was granted in part. Burrell v. City University of New York, 894 F. Supp. 750 (S.D.N.Y. 1995) ("Burrell I "). Specifically, Burrell's claim of sexual harassment, asserted under Title VII of the civil Rights Act of 1964, was dismissed as time-barred, because Burrell had not filed a charge with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the last alleged act of harassment. Id. at 759. Burrell's claim for retaliation survived. Id. at 761.

 On April 25, 1995, Defendants moved for dismissal, pursuant to Fed. R. Civ. P. 37(d). The motion was denied. Burrell v. City University of New York, 1996 U.S. Dist. LEXIS 12620, No. 94 Civ. 8711, 1996 WL 494897 (S.D.N.Y. Aug. 30, 1996).

 On December 4, 1997, Defendants brought the instant motion for summary judgment and dismissal on the pleadings. Oral argument was held on December 31, 1997, at which time the Court granted leave from the bench to amend again the complaint (the "Third Amended Complaint"). *fn1" The motion was then deemed fully submitted.


 The facts of this case are fully set forth in Burrell I, 894 F. Supp. at 752-57, familiarity with which is assumed. Only information relevant to the disposition of the instant motion will be set forth herein.

 Burrell was hired by Roman as Assistant to the Dean for the period from January 21, 1992 through June 30, 1992. During her interview for the position, Burrell told Roman that she held an "H-1" visa authorizing her to work for her former employer. *fn2" Roman responded that he would take care of any paperwork necessary to transfer Burrell's visa, and that she could begin working while the paperwork for her visa transfer was being processed. After Burrell began work, Roman told her that he had spoken about the transfer of her visa to Eleanor Chin ("Chin"), the Acting Director of Administrative Affairs at Sophie Davis. Roman assured Burrell that Chin would process all paperwork necessary to transfer sponsorship of Burrell's visa.

 According to Burrell, over the next year Roman made several comments regarding his attraction to Burrell, asked her to dinner, called her at home, sent her expensive gifts and arranged work meetings with her at 4:50 p.m. which lasted until long after the other employees had gone home for the day. Burrell consistently made it clear to Roman that she was not interested in a relationship with him, refused his invitations to dinner, and attempted to return his gifts.

 On April 24, 1992, approximately two months before Burrell's contract was due to expire, Roman offered her a one year renewal contract, which Burrell signed on May 1, 1992. Shortly after Burrell signed the renewal contract, Burrell became openly critical of her work. Two weeks after Burrell signed the renewal contract, Roman gave Burrell a written memorandum criticizing her.

 On May 18, 1992, Burrell went to CUNY's Affirmative Action Office to complain about her experiences with Roman. She was interviewed by Dean Manuel de la Nuez ("de la Nuez") and Gloria Medonne ("Medonne"), the Director and Assistant Director, respectively, of the Affirmative Action Office. Medonne advised Burrell to submit her complaint in writing and to retain an attorney. Medonne also told Burrell that the Affirmative Action Office would conduct an interview with Roman regarding Burrell's complaint. Several days after complaining to the Affirmative Action Office, Roman told Burrell he heard she had visited the building in which the Affirmative Action Office is located and that he "would not let [her] be destructive."

 On May 29, 1992, Roman was interviewed by de la Nuez and Medonne. Medonne's notes of the interview indicate that Roman was asked if he knew why Burrell had made a complaint against him. Roman stated that Burrell's work performance was unacceptable and that his staff had told him she was incompetent. Medonne asked Roman, if that were true, why he had given her such a glowing evaluation and renewed her contract for one year. Roman replied he had been unaware of Burrell's problems at the time he renewed her contract. Roman denied all of Burrell's allegations and told Medonne he had no intention of keeping Burrell in her position any longer. Medonne advised Roman not to fire Burrell and stressed that there could be no retaliation against her for filing a complaint. Roman agreed to look into transferring Burrell to another department while the Affirmative Action Office investigated her complaint.

 During the period after the interviews in the Affirmative Action Office, Roman told Burrell he hadn't realized how dangerous she could be, but said he would "take care of it." Other employees informed Burrell that her desk had been searched in her absence. The access code for Burrell's private voice mail had been changed and the files on her computer had been erased. Roman gave Burrell several memoranda criticizing her performance. Burrell alleges that, on several occasions, Roman and Chin removed office files and subsequently blamed Burrell for misplacing them.

 On June 2, 1992, Roman gave Burrell a memorandum transferring her, effective June 3, to an administrative position in CUNY's Learning Resources Center. Burrell was aware that the position was created specifically for her, outside of the established guidelines for job creation at CUNY and had no line of funding. Burrell believed that she had been unofficially terminated and demoted. The new position required skills different from Burrell's training and background and her previous position.

 Burrell alleges that she suffered many incidents of ongoing harassment in the new position: her new supervisor noted her whereabouts to the extent of following her to the bathroom; her job description was changed four times during the period she worked at the Learning Resources Center; she was given work to do which required skills she did not have; her time sheet was docked by Roman; she was locked out of the Learning Resource Center on several occasions; and she received a death threat on her telephone, which she reported to the police precinct. She also alleges that Roman accused her of impropriety and immoral conduct with men doing business with the Dean's office. This accusation was written in her personnel file and became part of her work record. Burrell asserts that she reported all of the above incidents to the Affirmative Action Office at CUNY, but no further investigation took place after the initial interviews.

 Two weeks after Burrell's transfer, Chin sent a letter dated June 25, 1992 requesting that Burrell provide the personnel department with a copy of her "H-1" petition. Chin noted that Burrell's contract with CUNY had been extended until June 30, 1993, but that CUNY's records indicated that Burrell's eligibility to work would expire on April 17, 1993. Chin sent copies of the letter to Roman, and Stephen Nisbett, ("Nisbett") CUNY's Director of Personnel.

 Burrell responded to Chin's request by letter dated July 20, 1992, in which she reminded Chin that Roman had agreed to sponsor the transfer of her "H-1" visa to CUNY, and that Roman had repeatedly assured her that Chin would be responsible for handling the matter. Burrell also noted that the petition for a visa transfer is a document prepared by the sponsoring employer, not the employee, and therefore, that she could not produce the "H-1" petition Chin had requested. Burrell sent copies of the July 20 letter to Roman and Nisbett.

 On July 23, 1992, Burrell received a valid work permit from the INS, which superseded any need for a visa petition. She so informed CUNY. On July 31, 1992, Nisbett sent Burrell a letter noting that she had failed to provide the "H-1" petition to the personnel office, and that Nisbett was making a decision on Burrell's "status for continued employment" and requested that she make an appointment with him to discuss the matter before August 7, 1992.

 On August 4, 1992, Roman sent a letter to Nisbett denying that he had ever promised to aid in the application for an "H-1" visa, and commenting, "It would be a travesty for an institution like the City University of New York to have to sponsor an individual to work as an administrative assistant given the availability of qualified legal applicants."

 On August 31, 1992, CUNY terminated Burrell. According to Burrell, she was told that her last pay checks were being withheld because she had not returned CUNY property. No indication was given as to what property of CUNY's Burrell was alleged to have in her possession. Burrell received no notification of ERISA/COBRA benefits. Burrell also alleges that her 401(k) plan retirement account was raided without her knowledge or authorization and all funds were removed.

 On May 10, 1993, Burrell filed a complaint with the EEOC, alleging that Roman had sexually harassed her, and asserting that her June 2, 1992 transfer and August 31, 1992 termination were in retaliation for filing a complaint with CUNY's Affirmative Action Office.


 I. Legal Standards

 A. Rule 56 Standard for Summary ...

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