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GUTIERREZ v. HENOCH

March 24, 1998

GLENNYS GUTIERREZ, Plaintiff, against DR. AVRAHAM HENOCH and ANGELO GELPI, Defendants.


The opinion of the court was delivered by: POLLACK

 Judge Milton Pollack

 Senior District Judge

 Plaintiff Glennys Gutierrez ("Gutierrez") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendant Angelo Gelpi ("Gelpi") sexually harassed her and that defendant Dr. Avraham Henoch ("Henoch") is liable for the alleged sexual harassment as Gelpi's employer. In addition, Gutierrez alleges, pursuant to Title VII, that she was terminated by Henoch in retaliation to her complaints of sexual harassment.

 I. Background

 In or about March 1994, Gutierrez was hired by Henoch, a doctor in the general practice of medicine, to serve in his offices as a phlebotomist and medical assistant. Gutierrez is a foreign licensed physician, having graduated from medical school in the Dominican Republic and having become a licensed physician there. She is not licensed to practice medicine in this country. During the time of her employment, Henoch operated three small medical offices in the Bronx and Manhattan. He employed, in addition to Gutierrez, approximately five other medical assistants (some of whom were licensed physician assistants), a few administrative employees and an industrial psychologist, whose function was to manage the organization of the offices.

 Gutierrez alleges that, beginning on or about April 11, 1994 and intermediately thereafter until August 15, 1994, she was subjected to sexually harassing behavior by Gelpi, one of the licensed physician assistants working in Henoch's offices. Initially, according to Gutierrez, Gelpi asked her to take up chores which she rejected, saying that these chores were part of the scope of her employment. In consequence, Gutierrez asserts that she avoided contact with Gelpi and did not communicate with him for several weeks. Gutierrez contends that Gelpi then made unwelcome advances with sexual overtones; that when she rebuffed these unwelcome advances, Gelpi became abusive and threatening; and that he often made lewd gestures and comments towards her. She claims to have kept a diary, but nothing therein carries any notation that she complained to Henoch; indeed the first mention to Henoch of any misconduct of Gelpi was on August 15th, 1994. In a statement filed with the Equal Employment Opportunity Commission ("EEOC"), Gutierrez stated the following:

 
On August 15,...I reported to the [160th street] office. [Gelpi] was there and ultimately we had another encounter. He used foul language and attempted to hit me. The above was witnessed by Laura, who is a secretary, and Bruna, a housekeeper. That same day, I went back to the 151st street office where [Henoch] was located and in the presence of [Ms. Ruth Tejada], told [Henoch] everything that [Gelpi] had been saying and doing to me since the beginning of my employment. I told [Henoch] that [Gelpi] had been sexually harassing me. [Henoch] said he need to speak with [Gelpi].

 Henoch promptly made inquiries around the office and obtained mixed information. Suffice to say, Henoch concluded it might be best to separate the work hours of the two; she to work in the morning part time while Gelpi continued on his afternoon assignment. She was loath to accept that solution and Henoch offered to help her to obtain a job at previous place of employment, a large hospital, with his recommendation. She apparently thought this over and decided, on August 18th, to resign her employment and go elsewhere. Henoch offered to give her severance pay so it would not seem that she was at fault. She accepted either two or four weeks pay.

 On October, 13 1994, Gutierrez filed a written complaint with the EEOC alleging sexual harassment and retaliation claims pursuant to Title VII. After conducting a hearing, in a determination dated February 6, 1995, the EEOC denied Gutierrez's claims and made the following significant findings:

 
There is no evidence to show that [Gutierrez] was subjected to a hostile work environment.
 
The evidence of record does not support [Gutierrez's] claim of sexual harassment. The investigation revealed that [Gutierrez] complained to [Henoch] with respect to sexual harassment by [Gelpi]. The record shows an internal investigation was conducted. [Gelpi] denied that he harassed [Gutierrez] and there was no corroborative evidence to substantiate her allegations, nor was there any evidence that her alleged harasser subjected any other employees to sexual advances. [Gutierrez's] witnesses testified that quite often [Gutierrez] joked with [Gelpi] and they did not observe anything of a sexual nature between them.
 
The evidence does not support [Gutierrez's] contentions that she was retaliated against or discharged because of her allegations of sexual harassment. The evidence shows that prior to [Gutierrez's] complaint she was transferred to Henoch's facility where the alleged sexual harassment took place because of her inability to get along with her co-workers. As a result of her complaint against [Gelpi] she was transferred to another facility where she worked part time. The investigation revealed that [Gutierrez] left on her own volition. The record shows no employee was ever fired from [Henoch's] facilities.

 On May 3, 1994, Gutierrez filed the instant Complaint against both Gelpi and Henoch in which she asserted claims pursuant to Title VII, of sexual harassment and retaliation. The claims asserted against defendant Gelpi were dismissed at trial at the close of Gutierrez's evidence on motion by the defendants and by consent of plaintiff's counsel. Decision on the motion to dismiss ...


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