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September 3, 1998

CAROLINE PONTICELLI, Plaintiff, against ZURICH AMERICAN INSURANCE GROUP, ZURICH AMERICAN INSURANCE COMPANY, EVAN CALLAS, CHARLES HERBERT and ROBERT FISHMAN, individually and in their capacities as officers of Zurich Insurance Company, Defendants.

The opinion of the court was delivered by: SWEET


 Sweet, D.J.

 In this action alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000(e) et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "HRL"), defendants Zurich Insurance Company ("Zurich") - sued as "Zurich American Insurance Group" and "Zurich American Insurance Company" - Evan Callas ("Callas"), Charles Herbert ("Herbert"), and Robert Fishman ("Fishman") (collectively, the "Defendants") have moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P. Additionally, plaintiff Caroline Ponticelli ("Ponticelli") has cross-moved for partial summary judgment.

 For the reasons set forth below, Defendants' motion will be granted in part and denied in part, and Ponticelli's cross-motion will be denied. Specifically, Defendants' motion for summary judgment will be granted as to Ponticelli's 42 U.S.C. 1983 claim, the gender-based discrimination claim (to the extent it is alleged), her retaliation claim, and the claim for intentional infliction of emotional distress, and the motion will be denied as to the hostile work environment claim. The claims against Callas, Herbert, and Fishman (collectively, "the individual defendants") under Title VII will be dismissed. The claims against the individual defendants under the HRL will be dismissed without prejudice.


 Ponticelli is a resident of Kings County, New York. She was hired by Zurich on April 10, 1995, in the capacity of underwriting assistant in its offices at One Liberty Plaza, New York.

 Zurich maintains an office at One Liberty Plaza in the city, county, and state of New York and is licensed to do business in New York State.

 Evan Callas was, at the time relevant to this action, Assistant Vice President of Zurich.

 Herbert was, at the time relevant to this action, Vice President of Human Resources and the person designated by Zurich to receive and investigate claims of sexual harassment.

 Fishman was, at the time relevant to this action, Senior Vice President of Zurich, in charge of the Professional Liability Department.

 Prior Proceedings

 Ponticelli filed the complaint (the "Complaint") in this action on December 3, 1996. The Complaint alleges (1) that Ponticelli has been denied her rights under the Fifth and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983; (2) that she has been denied equal terms and conditions of employment and equal employment opportunity on the basis of sex in violation of Title VII; (3) that Defendants violated the HRL § 296(1)(a) by constructively discharging and otherwise discriminating against her because of her gender; (4) that Defendants violated the HRL § 296(7) by discharging and otherwise retaliating against Ponticelli because of her opposition to the unlawful employment practices of Zurich; and (5) that Defendants willfully and maliciously inflicted mental and emotional distress upon her.

 Defendants made the instant motion for summary judgment on March 17, 1998. Ponticelli filed her cross-motion for partial summary judgment on May 18, 1998. Oral argument was heard on June 3, 1998, at which time the motions were deemed fully submitted.

 The Facts

 The alleged discrimination underlying this action occurred in a series of incidents, the facts of which are in substantial dispute. All material allegations relating to Ponticelli's claims are gleaned from the Complaint and the deposition of Ponticelli, as well as testimony by Fishman and Herbert.

 I. Ponticelli's Job Duties and Work Conditions

 From April 10, 1995, to March 19, 1996, Ponticelli was employed by Zurich. She was hired as a technical assistant in Zurich's Professional Liability Department. The head of the department was Fishman. Reporting to Fishman was Callas, an Assistant Vice President for miscellaneous professional liability lines. Ponticelli reported to Callas, who was responsible for directing and overseeing her work. Ponticelli was responsible for logging in submissions, reviewing claims on discontinued policies, and training other technical assistants. According to Ponticelli, she did "everything." As she was not an underwriter, however, she did not have the authority to renew policies. Rather, after logging in a submission - i.e., an application for insurance - it was her responsibility to find out who should review it. Ponticelli testified in deposition that there were many times when no one would accept the policy, so even though she was not an underwriter, she would make the decision whether to issue or decline it on her own.

 On her first day of work at Zurich, Ponticelli was assigned to the cubicle of her predecessor. The desk drawers and outside of the desk were piled high with unfinished paperwork. Letters of complaint and telephone complaints from brokers were received by her and referred to her. Ponticelli found stale premium checks left in her desk drawer by her predecessor. Ponticelli found herself "running very fast," in a relatively new professional liability unit which was in a "start-up" mode. It was understaffed with a concealed backlog. Although Ponticelli was without training, she applied herself to Fishman's expectations of doing "lots of different things" and being "able to solve issues and problems."

 From the beginning Ponticelli worked between 50 to 70 hours a week. She did not take a lunch hour because she had too much work to do, and she worked weekends. Callas never told her to stay late, but Ponticelli felt that she had to put in late hours to complete her work. Ponticelli told Herbert that she was not eating lunch, and he told her to take a lunch break. According to Ponticelli, none of the male managers in her unit did much work. Instead, they sat in Callas's office and fooled around for about 90% of every day and went out and drank alcohol at noon.

 Callas reprimanded Ponticelli about her inadequate work performance, about work not being done on time, and about work not being completed properly. Ponticelli asserts that Callas would call her into his office, yell at her for getting him into trouble and for betraying him, and tell her she had a big mouth. When Ponticelli advised Fishman of Callas's yelling, he told her that Callas scared him in the same way and that it was hard to deal with him because of his threatening and violent behavioral tendencies.

 Ponticelli brought to Fishman's attention the extent of the policy issuance backlog that had developed under her predecessor. In response, Fishman assigned a male underwriting assistant from another department to help Ponticelli.

 Sometime late in the summer of 1995, Ponticelli was diagnosed with carpal tunnel syndrome. Although Ponticelli claims she reported her diagnosis to individuals at work, she never provided anyone at Zurich with a doctor's note.

 Ponticelli maintained a contemporaneous diary of incidents at work. In it, under the date of September 5, 1995, Ponticelli recorded that Callas called her into his office, closed the door, and told her that she was not performing adequately and in a reasonable time frame. He also told her that she put in too much overtime. Callas told her not to assist others, not to speak with anyone, or to make small talk. According to Ponticelli, Callas called her "stupid" and "foolish" for talking to other technical assistants. When she explained that Fishman had asked her to train them, Callas reminded her that she worked for him and not for Fishman. Ponticelli admits that her job performance was suffering. She insists it was because she had to help other people and do work for everyone in the department. Supervisors were coming to her with work, and she felt that she could not say no to them even though most of the groups in the professional liability department had their own technical support personnel.

 The record indicates that Fishman received numerous complaints about Ponticelli's work. As Ponticelli's replacement, Donna Sylvester, had no problem accomplishing the given tasks, Callas concluded that Ponticelli performed "quite poorly" since she made the same mistakes repeatedly, had trouble prioritizing her work, and failed to pay attention to her given tasks.

 II. Ponticelli's Sexual Harassment Allegations

 It is not altogether clear whose improper conduct Ponticelli wishes to impute to Zurich. Ponticelli claims generally that she was subjected to sexual harassment by Callas, Noel Jamison ("Jamison"), a Senior Underwriter for whom she also performed work, and Herbert. Ponticelli states that Callas made repeated comments about her body, clothes, hair, and fingernails, made sexual advances towards her, laughed at her, and made fun of her. Indeed, Ponticelli testified that almost everything that Callas said or did was a sexual advance. Ponticelli also thought that Jamison wanted to have a sexual relationship with her, although he never invited Ponticelli to have sex with him. Ponticelli also observed various men at Zurich looking at and commenting about other women in the office.

 On May 15, 1995, Ponticelli went out to lunch with Callas and Jamison. She was uncomfortable, she claims, because they wanted to discuss the physical appearance of a female attorney Ponticelli knew from her previous employment at St. Paul Reinsurance Company. When Callas asked Ponticelli how she met her husband, Ponticelli felt that he was implying that she had slept with her husband to get a job. When Ponticelli asked Callas if that was what he was asking, he rolled his eyes and made smacking noises with his lips, which Ponticelli described as locker room noises. In addition, Ponticelli felt as if they were "coming on to her" and flirting because they were talking about women in terms of sexuality. Two weeks later, Ponticelli asked Callas about a policy form, and he replied that "we use a broad form, like you." Ponticelli thought this was flirtatious.

 Callas never asked Ponticelli out directly. He asked her to go to lunch a few times and told her she was welcome at his home in New Jersey, which he shared with his wife and four children. Ponticelli asserts that she had one business lunch and two personal lunches with Callas during her employment at Zurich. At one of the personal lunches, Callas questioned her about former boyfriends. At another, he asked her why she did not have any children.

 On June 29, 1995, one of the underwriters organized an after-work social event at the Tall Ships Restaurant at the World Trade Center. Throughout the evening, Ponticelli testified that Callas and Jamison were staring at the women's chests. She states that they made indirect comments about her chest but does not remember what exactly they said. At one point, according to Ponticelli's diary, she saw Callas and Jamison grab another female employee by her arms, shoulders, and jacket sleeves. The employee looked at Ponticelli and said to Jamison, "You're scaring me." Callas and Jamison asked the woman how much she weighed and made other comments while staring at her chest and Ponticelli's chest. At that point, while Ponticelli attempted to walk away, Callas blocked her and asked where she was going. He was drunk and boasted to Ponticelli that he had put someone in the hospital once, that he was sensitive, and that he had a bad temper.

 Anxious to get away from Callas, she called her husband who was on his way to have dinner with clients nearby. He asked Ponticelli to wait so they could travel home together. She returned to the party and went out to eat with seven or eight women from the office and Callas. After dinner, according to Ponticelli, Callas suggested that he take her to her home in Brooklyn via the company car service. Because he was her supervisor, Ponticelli felt compelled to go with him. Callas asked her if there was any crime in her neighborhood and offered to see Ponticelli upstairs to her apartment. She said no. According to Ponticelli, Callas then became hostile and unpleasant. She did not report anything about the evening to anyone at Zurich.

 Ponticelli testified that Jamison looked at her chest, looked her up and down, and told her that she dressed well. He also said that his wife would not mind if he had affairs as long as he did not tell her about them. She had dinner with Jamison several times. He asked her questions about her personal life and questions of a sexual nature. Jamison sometimes commented that she seemed to be in a bad mood or "on the rag" or uptight, and told her that she needed to "get laid." At one dinner, Jamison asked Ponticelli about her relationship with her husband and told her about his relationship with his wife. He told her that he was bored sexually and did not believe that marriage had to be a monogamous relationship. At another dinner, which was primarily about business, they discussed the possibility of Ponticelli resigning from Zurich.

 As for Callas, Ponticelli claims that he called her a slut and a stupid, air head, miserable childless person. He also told her that she had working horse hands and made comments about her stockings, clothes, and makeup. He implied that her lipstick was the color of a nipple. Ponticelli recalls that Callas called her a "f ing bitch," told her he did not have to "put up with this sh ," and said "f you" on a number of occasions. He interrupted her and yelled at her in front of others and repeated what she said in a mocking way. He called her the "big hurt." According to Ponticelli, Callas cursed or insulted her in this manner more than once, but she cannot remember if it happened more than five times.

 Callas said that he could see her nipples through her blouse. Callas called her breasts "jugs" and "hooters." Callas walked down the hall close behind Ponticelli and said something about the way she wiggled. Callas stated that her "rear end" was big, that it shook when she walked, and that she butted her behind in where it did not belong. She never told anyone at Zurich about any of these comments.

 Callas would also tell Ponticelli if he thought she looked nice or if he did not like her suit. He told her when her stockings wrinkled at her ankles. On occasion, he told her that her clothes were too tight, and once he asked her why she did not wear shorter skirts. He also asked where she got her jewelry. While Ponticelli mentioned these remarks to some of the other technical assistants, she never mentioned them to anyone else at Zurich.

 Callas told Ponticelli he liked her legs and the way she walked. He also asked her why she sat with her legs crossed. She does not recall whether she complained to anyone regarding these comments.

 In September 1995, Ponticelli was seated at her desk in her cubicle at 5:30 in the afternoon. A small object sailed by her head, narrowly missing her. It was a rubber stamp thrown by Callas who had borrowed it from Ponticelli earlier in the day. She turned her head to see Callas crouched down in front of her, blocking the doorway. He leaned his left arm on one of the arms of Ponticelli's chair, and in his right hand he held a draft of a document that she had left for him to review. He asked her, "What is this sh ?" Ponticelli said she would fix it, and Callas responded "fix this" while grabbing his crotch. She asked Callas what she had done wrong, and he said that she was a stupid idiot and a slut. Callas was close enough that she could smell alcohol on his breath. She ducked under his arm and ran out of the cubicle.

 According to Ponticelli, Callas's treatment of Ponticelli became worse once it became clear to him that Ponticelli was not going to succumb to alleged pressure for a sexual relationship. She contends that he would threaten her job by telling her that her review was coming up and that she was not going to do well on it. In fact, no review was given. Defendants claim that the threatening of her job was because of her poor work performance.

 After Ponticelli was transferred to another department (discussed below), she told Callas that she did not want to continue to work with him. He said, "I'd rather talk about you." He proceeded to ask her the color of her pubic hair and if she had ever had anal sex. "He said something about the doggy position, he asked me if I had ever done that position, and he said something about that he had never gotten to know me, and he asked me what bra size I wore and what my clothing size was." (Ponticelli Dep. at 402.) She never reported the incident to anyone at Zurich.

 III. Ponticelli's Complaints to Fishman and Herbert

 Herbert was the Senior Human Resource Manager at Zurich during the term of Ponticelli's employment there. He was designated to receive and investigate complaints of sexual harassment. In 1995 there was a sexual harassment policy in effect at Zurich. Herbert also attended a May 15, 1995, "Respectful Work Place Seminar" held in New York City for managers at Zurich. Herbert stated that the substance of the seminar related to employer sensitivity of sexual harassment in the workplace.

 After the incident in which Callas blocked her in her cubicle in September 1995, Ponticelli went to Herbert's office. She informed him that the work hours and conditions at Zurich were causing her pain, that she was not eating lunch, and that she had been diagnosed with carpal tunnel syndrome. She also briefly told Herbert about the incident in her cubicle. He expressed sympathy and told Ponticelli that he knew "they" were giving her a hard time. He was surprised about the cubicle incident and spoke to Ponticelli about the atmosphere in the office. It was then that he told her to take her lunch hour.

 Herbert's notes of the interview reflect that Ponticelli made the following comments: that this was a "female slave camp," and that she "was fearful of being there." Ponticelli also complained about the hostility, sexism, and the use of words like "pee pee," and that "they do not treat women like adults or humans."

 Ponticelli also told Herbert about Jamison. She does not recall if she told Herbert that Jamison asked her questions of a sexual nature. In this meeting, Ponticelli asserts that Herbert asked if Jamison had ever dragged her to a motel by her hair, because she was beautiful and he would hate to think that Jamison made her sleep with him. She told Herbert that she did not have a sexual relationship with Jamison, and Herbert said that he thought there was nothing wrong with having a consensual sexual relationship with someone at work, that he did not have a happy marriage, and that he thought the office was a good place to meet people. Ponticelli spoke with Herbert for one hour. Herbert did not tell Fishman about this meeting until after Ponticelli's termination.

 It was unclear to Herbert whether she was complaining about sexual harassment. He contacted Zurich's in-house counsel and they decided that Herbert would investigate to ensure that Ponticelli was paid for all of the overtime she was working and to explore further Ponticelli's statement that Jamison had forced her to go to dinner. On October 19, 1995, Herbert again met with Ponticelli to discuss her concerns. His notes show that she said she was somewhat better and had been very tired when they last spoke. She was aware that Zurich was hiring additional staff and stated that that would make things better. She also clarified that Jamison did not physically force her to go to dinner, but that he was persistent after she had said no a few times. While Jamison had questioned her about personal things, she clarified that these questions were not sexual. Ponticelli stated to Herbert that she felt much better after their last meeting and that she knew that Herbert cared. Based on this subsequent meeting, Herbert concluded that it appeared as if Ponticelli's issues were being addressed by the hiring of an additional person, and he told her to come back to him if that did not alleviate the situation.

 In December 1995, Ponticelli met with Fishman and asked to be transferred. She advised him that she was afraid of Callas. According to Fishman, she said nothing about sexual harassment. Ponticelli testified that she asked for the transfer out of Callas's department because she felt that she was given too much work for one person. In response, Fishman agreed to transfer her to Jim Gray's department, Human Resources Professional Liability, which also reported to Fishman.

 Callas sent Ponticelli an e-mail wishing her well and indicating that her replacement would be starting on January 8, 1996, and that Ponticelli should train her for the first week and should act in a consultancy role after the transfer occurred. Ponticelli was also told that she would continue to be responsible for the Allstate and CARE programs, one of which already was terminated and the other of which was a canceled, meaning there would be little work involved. Ponticelli, however, submits that the programs would consume all of her time. When Ponticelli went to discuss this with Callas, he inquired if she had had anal sex and whether she had ever been in a "doggy position."

 Ponticelli then sent an e-mail to Callas refusing to have anything further to do with him. She stated that she would train the new technical assistant but would not act as consultant after the first week. She further declined to accept responsibility for the two programs. In response to this e-mail, Ponticelli contends that Callas pushed her into a filing cabinet. She claims she remembers that she had bruises on her body, although she is not sure what side of her body was bruised. She did not see a doctor for her injuries and did not report this incident to anyone at Zurich.

 Fishman asked to speak with Ponticelli about her refusal to perform the transitional duties. Ponticelli again told Fishman of her fear of Callas and his abuse toward her. She did not tell him about any specific incidents. Fishman testified that the only complaint she lodged with him about Callas was that she was physically afraid of him.

 IV. Ponticelli's Departure from Zurich

 On March 19, 1996, Fishman called Ponticelli to his officer and told her that things were not working out. He discussed with her errors she was making in her work and showed her documents that he said contained forged signatures. Fishman testified that Joanne Roldan ("Roldan"), a Zurich employee who was licenced to serve as an insurance broker, complained to him that somebody had forged her signature to documents that required a licensed broker's signature. The forgeries were on documents associated with the business that Ponticelli was responsible for processing. Upon Fishman's statement to Ponticelli that he believed that she had forged Roldan's signature, she denied it. Ponticelli admitted that she was the only underwriting technician in the human resources professional liability group at Zurich at the time the document was processed but stated that she did not know if she had been responsible for processing the document in question. It was then that Fishman fired her.

 On September 6, 1996, Ponticelli filed charges with the Equal Employment Opportunity Commission (the "EEOC") against Zurich and the individual defendants. On September 9, 1996, the EEOC issued a right to sue letter with reference to Ponticelli's Complaint, and this action was filed 90 days of the issuance of the letter.


 I. Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ. of N.Y., 894 F. Supp. 750, 757 (S.D.N.Y. 1995) (citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) and Celotex Corp. V. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting)). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).

 In addition to the foregoing standards, the Second Circuit has held that additional considerations must be taken into account when deciding whether summary judgment should issue in an employment discrimination action. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994); see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's documents, a trial court must be particularly cautious about granting summary judgment when the employer's intent is at issue. Affidavits and depositions must be scrutinized for circumstantial evidence which, if believed, would show discrimination. Gallo, 22 F.3d at 1224.

 II. Defendants' Motion for Summary Judgment on Ponticelli's First Cause of Action for Violation of 42 U.S.C. § 1983 Is Granted Because Ponticelli Cannot Allege State Action

 Section 1983 of Title 42 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .

 42 U.S.C.A. § 1983 (West Supp. 1997). The constitutional sections creating the substantive rights in this case are the Fifth and Fourteenth Amendments. Ponticelli alleges that she was denied her rights under those Amendments by Defendants on the basis of her sex. Because the Amendments are directed at the States, they can be violated only by "state action" and not by the conduct of a private actor. "Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Section § 1983's "under color of law" requirement is treated "'as the same thing' as the 'state action'" requirement under the Constitution. Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966)).

 To prevail in this § 1983 action, Ponticelli must show (1) that Defendants deprived her of a right secured by the Constitution or laws of the United States and (2) that, in doing so, Defendants acted under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978). The question in this case is whether the actions of the Defendants could be ...

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