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March 31, 1998


The opinion of the court was delivered by: SIRAGUSA



 This is an action in which the plaintiffs are suing their employer for "hostile environment" sexual harassment by a co-worker under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000-e(2)(a)(1), negligence and respondeat superior vicarious liability. In addition, plaintiff Schiraldi alleges that she was wrongfully terminated in retaliation for reporting the alleged sexual harassment. The complaint also alleges intentional torts as against defendant Tyrone Blackwell. *fn1" Before the Court is an application by defendants AMPCO System Parking, ABM Industries Inc. and Jay Essene for summary judgment, as well as a cross-motion for summary judgment by the plaintiffs. For the reasons that follow, the defendants' motion for summary judgment is granted and the plaintiffs' motion for summary judgment is denied.


 Both plaintiffs are white females who were employed as cashiers at a parking facility run by AMPCO System Parking at Buffalo International Airport. Tyrone Blackwell is a black male who was employed by AMPCO as a maintenance worker and occasionally as a cashier. Blackwell, Schiraldi and Buscaglia were all co-workers, none of whom occupied a supervisory position with respect to the others. The cashiers at AMPCO's parking lots work in booths at the exits of the lots. In addition to his duties as a cashier, Blackwell would occasionally enter booths occupied by other cashiers in order to perform various maintenance tasks. Both plaintiffs contend that Blackwell sexually harassed them, and that AMPCO knew or should have known of the harassment, but failed to take adequate steps both to prevent the harassment and to discipline Blackwell.

 AMPCO had a sexual harassment policy in place at all times referred to herein. Both Schiraldi and Buscaglia admit that they were given a copy of the company's sexual harassment policy when they were hired. That sexual harassment policy states in relevant part:

Any employee who is subjected to sexual harassment or intimidation is strongly urged and encouraged to promptly bring such harassment or intimidation to the attention of any member of management. All such complaints will be treated in the strictest of confidence and will be promptly investigated.

 Both Schiraldi and Buscaglia were also members of the Teamsters Union, Local 264. The collective bargaining agreement between AMPCO and the Teamsters contained a nondiscrimination clause that stated in relevant part:

In accordance with applicable law, the Employer and the Union agree not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual's ... sex."

 The collective bargaining agreement also contained a four-step grievance procedure. The first three steps provided procedures for the employer and the union to work together to resolve any grievance. The fourth and final grievance step allowed the union to seek arbitration in any case where the employer and the union could not agree.

 Henrietta Schiraldi was hired as a cashier on February 1, 1994. On December 23, 1994, Schiraldi alleges that Blackwell, who was working as a cashier in an adjoining booth, unexpectedly came into her booth and demanded that she give him thirty dollars. When she refused, Blackwell attempted to remove money from her cash drawer. Then Blackwell grabbed her from behind and rubbed his penis against her buttocks. *fn2" Schiraldi states that this went on for several minutes, after which she freed herself, grabbed Blackwell by the collar of his coat, and pushed him out of the booth. She claims that Blackwell came back a few minutes later asking for a Christmas present that Schiraldi had for him as well as some food. Although Schiraldi gave him the gift and the food, Blackwell called her "white trash" and "a white scumbag." Later that day, Schiraldi talked to her manager, Victor Windom, but told him only that Blackwell had been in her booth and that she thought he had stolen one dollar out of her cash drawer. She states that the following day, December 24, 1995, she told assistant manager Jay Essene that Blackwell "wouldn't leave me alone" and "called me names." She did not tell Essene what names Blackwell had called her.

 On March 22, 1995, Schiraldi alleges that Blackwell called her a "slut," a "whore," and a "fat pig." She states that she immediately told Jay Essene that Blackwell was calling her names and that she wanted it stopped. The next day, she reported the name-calling incident to Windom. On March 25, 1995, she filed a grievance with the union which included her account of the events that allegedly occurred on December 23, 1994. When Windom was first informed of the allegations, he stated that he did not think Blackwell would engage in such behavior. *fn3" The company and the union held a meeting on or about March 31, 1995. Present at that meeting were Schiraldi, Blackwell, Windom, union business agent Dan Gale, union steward Barbara Sponholz and union steward Presley Walker. At the meeting, Schiraldi repeated her allegations, but Blackwell denied them. Sponholz then interjected that Blackwell had also made a sexual remark to her, which she had never reported. This was apparently corroborated by another employee. At her deposition, Sponholz testified that as of the date of this meeting, apart from Blackwell's comment to her which she never reported, and apart from Shiraldi's allegations made on March 25, 1995, she did not know of any other incident where Blackwell had engaged in sexual harassment. At the close of the meeting, Windom told Blackwell to stay away from Schiraldi *fn4" and said that the company would investigate the allegations.

 Windom contacted the company's corporate headquarters in Los Angeles and informed them of Schiraldi's allegations. Windom did not tell corporate headquarters about Sponholz's allegation, although it is unclear whether or not this was at Sponholz's request. *fn5" A representative from AMPCO's corporate headquarters then conducted an investigation, which consisted of reviewing Windom's notes, examining time-marked tapes from the cashier's booths where Schiraldi and Blackwell were working on December 23, 1994, and talking by telephone with an employee who came to relieve Schiraldi immediately after the alleged incident. That employee, Daryl Shipp, stated that when he arrived at Schiraldi's booth minutes after the alleged assault, he did not notice anything unusual about Schiraldi's demeanor. The company noted that there were no prior allegations of sexual harassment against Blackwell, that there were no witnesses to the alleged event, that the documentary evidence contradicted her claim, and that Shiraldi waited months to make her complaint. AMPCO then concluded that it could not substantiate Schiraldi's allegation. On April 12, 1995, the company sent a letter to union business agent Gale informing him that no disciplinary action would be taken against Blackwell. That letter stated in relevant part:

After thoroughly evaluating our records and interviewing the appropriate people, we have found the allegations highly unlikely. We have found no indication of wrong doing [sic], ...

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