The opinion of the court was delivered by: Scheindlin, District Judge.
This is a pro se action for sexual harassment and employment
discrimination brought under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq., the New York State Human
Rights Law ("HRL"), N.Y. Exec. Law § 296, and the New York City
Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, § 8-107. The
federal claims against defendant New York State Housing Finance
Agency ("HFA") consist of quid pro quo and hostile work
environment. The only federal claim against defendant The Parks
Group, Inc. ("Parks") is one of retaliation. There are no federal
claims against defendant Joel B. Lieberman ("Lieberman").*fn1
All defendants are also being sued under the HRL and the NYCHRL.
Defendants have moved separately for summary judgment on all
claims. For the reasons set forth below, defendants' motions are
granted in part and denied in part.
Olive B. DeWitt ("plaintiff" or "DeWitt") responded to an
advertisement placed by Parks in the New York Times on Sunday
August 20, 1995 for a permanent secretarial position. Affidavit
in Support of Motion for Summary Judgment, sworn to by Jeffrey D.
Ullman, attorney for defendant Lieberman, on October 30, 1998
("Ullman. Aff."), Exh. D (Statement by Marie Parks). She was
interviewed by Marie Parks, the president of Parks, and her
typing and word processing skills were then tested. Id., Exh. C
at 32-34 (Deposition of Marie Parks). Although plaintiff's
abilities were not adequate for the advertised position, she
appeared qualified for other temporary positions. Id. at 5, 8.
In early September 1995, DeWitt was assigned as a temporary
legal secretary to defendant HFA in response to Lieberman's
request for a replacement for another temporary worker who was
going on vacation. Id., Exh. D. According to Marie Parks, she
arranged the assignment with DeWitt explaining to her that it
would be for approximately two weeks. Id.; see also Exh. C at
52-53. Although Ms. Parks discussed with plaintiff the
possibility that other positions of a more permanent nature might
become available at HFA in the future, she clearly informed
plaintiff that the only position she was presently able to offer
her consisted of a two week assignment that would end on
September 22, 1995, when the temporary worker she was replacing
would return from vacation. Id.
Plaintiff's assignment at HFA's legal department began on
September 11, 1995. Ullman Aff., Exh. A at 57 (Deposition of
Olive DeWitt). Plaintiff was informed that Lieberman would be
providing her with her work assignments. Id. at 58. Plaintiff
was also told of the department's structure and hierarchy.
Affirmation in Support of Motion for Summary Judgment, sworn to
by Lois M. Traub, attorney for HFA, on October 30, 1998, ("Traub
Aff.") Exh. A at 82 (Deposition of Olive DeWitt). Lieberman was
an Assistant Counsel in the department; his immediate supervisor
was Joy Willig ("Willig"), an Associate Counsel; Willig reported
to Michael White, a Deputy Counsel; who, in turn, reported to
HFA's General Counsel, Manuel Mendez. Affirmation in Support of
Summary Judgment, sworn to by Michael D. White, HFA's Deputy
Counsel, on October 29, 1998 ("White Aff."), ¶¶ 3-4. During
plaintiff's initial orientation on September 11, 1995, Willig
informed her that she was to "report any problems [she] had to
Caroline Telfer [Mingo]," Willig's secretary. Ullman Aff, Exh. B
at M-7 (Temporary Employees Basic Guidelines for Legal Division
Procedures). As plaintiff testified at deposition:
Q: The first day that you started your assignment,
who did you report to?
A: I was told to report to Caroline, T-e-l-f-e-r I
believe is her name. If I had any problems, I was to
tell her. If I needed anything, I was to tell her.
A: Joy Willig. She said, "I am Mr. Lieberman's
supervisor and I am assigning Caroline Telfer to you
as your supervisor. If you need anything, you are to
go to her. If you have any problems, you are to go to
Ullman Aff. Exh. A at 81-82.
Plaintiff alleges that Lieberman sexually harassed her in a
series of incidents occurring between Tuesday, September 12, 1995
and Tuesday, September 19, 1995. DeWitt alleges that on September
13, 1995, Lieberman offered her a banana in an offensive manner
but she nonetheless accepted and ate a piece of it. Traub Aff.,
Exh. J at 3 (Report on Investigation Respecting Allegations Made
by Olive DeWitt Concerning Conduct of Joel B. Lieberman, dated
October 19, 1995); see also Supplemental Affirmation in Support
of Reply Memorandum for Summary Judgement, sworn to by Lois M.
Traub on December 2, 1998 ("Traub Supp. Aff."), Exh. A at 534-35
(Deposition of Olive DeWitt). Although various accounts of an
incident involving plaintiff's jacket have been provided by
plaintiff, the most egregious version has Lieberman pestering
DeWitt for several days, starting on September 12, 1995, to
remove her jacket saying something to the effect, "If I could see
your breasts then I could put to rest certain feelings I have."
Traub Aff., Exh. J at 4; see also Traub Supp. Aff. Exh. A at
534. Then there is the private meeting held in Lieberman's office
on September 14, 1995 with Lieberman and DeWitt. Traub Aff, Exh.
J at 4. Plaintiff alleges that at that meeting, which lasted over
two hours, there was further talk about her not wearing her
jacket and about her breasts. Id. In addition, Lieberman
allegedly raised the subject of a relationship with DeWitt
stating that she could work at HFA permanently if their
relationship could "ripen." Id. at 5; see also Traub Aff.,
Exh. K at 2 (Supplemental Report on Investigation Respecting
Allegations Made by Olive DeWitt Concerning Conduct of Joel B.
Lieberman, dated November 15, 1996); Ullman Aff., Exh. E at 2
(Exit Questionnaire of Parks Austrian Temporaries, Inc., an
affiliate of Parks).*fn2 According to plaintiff, at one point
during the meeting Lieberman placed his hands in his pockets and
touched his penis. Traub Aff., Exh. J at 5. While grabbing his
groin area and lunging it forward, Lieberman allegedly stated, "I
am overwhelmed by your sensuality, if I could just see the
outline of your breasts, I could put these feelings to rest, . .
." Affidavit in Opposition to the Lieberman Motion for Summary
Judgment, sworn to by Olive B. DeWitt on November 23, 1998
("DeWitt Aff. — Lieberman"), Exh. 6 at 4 (Misdemeanor Criminal
Complaint filed by Olive DeWitt). DeWitt also alleges that
between September 15, 1995 and September 19, 1995, Lieberman
called her at home to pursue a relationship or affair with her
stating that he wanted to come over to her house. Id.
Plaintiff also alleges more serious incidents of sexual abuse.
On September 15, 1995, DeWitt claims that in a back stairwell at
HFA, Lieberman grabbed at her blouse causing his right hand to
reach under her blouse and touch her left breast. Id. at 3.
Again, on September 19, 1995, while inside Lieberman's car,
plaintiff observed Lieberman grab at her blouse in
the bra area trying to undo a button and causing his right hand
to touch her left breast. Id. That same day, about a half hour
later, while Lieberman's car was parked under the 59th Street
bridge in Manhattan, Lieberman again allegedly tried to undo a
button and in so doing touched DeWitt's left breast. Id. at
3-4. While still parked at that location, Lieberman allegedly
grabbed plaintiff's left hand and pushed it down on his pants
over his penis while putting pressure on and refusing to release
plaintiff's hand. Id. at 4. Needless to say, Lieberman denies
these latter allegations. Traub Aff., Exh. K at 3-4.
Despite these allegedly harrowing experiences, plaintiff made
no complaint to anyone in a supervisory/managerial position at
HFA until well after the end of her assignment. Ullman Aff, Exh.
A at 741. Although plaintiff spoke to Ms. Parks nearly twenty
times during the first several days of her assignment, she never
once claimed that Lieberman had harassed her or behaved in any
way that was even remotely inappropriate or sexually aggressive.
Id. at 712-13. According to Ms. Parks, plaintiff expressed
great satisfaction with the assignment and Lieberman. Ullman
Aff., Exh. C at 40. Plaintiff alleges that on September 12, 1995,
she told Caroline Telfer Mingo that Lieberman was "fresh" because
he suggested that she might be more comfortable if she removed
her suit jacket. Ullman Aff., Exh. A at 506-07. Plaintiff claims
that Ms. Mingo told her, "That's what he does. Don't pay him any
Plaintiff alleges that she reported Lieberman's behavior with
regard to her jacket to Pat Wyatt, secretary to General Counsel
Manuel Mendez, in an attempt to speak to either Mr. Mendez or Mr.
White on the last day of her employment with HFA. Traub Aff.,
Exh. J at 7. Ms. Wyatt reportedly told DeWitt that Mr. Mendez
could not see her that day. Id. Plaintiff interpreted Ms.
Wyatt's response as somehow protecting the General Counsel. Id.
Ms. Wyatt claims to have suggested that plaintiff wait but
despite this suggestion plaintiff left at 5:00 p.m. without
speaking to anyone. Id. Plaintiff further states that she
approached a member of HFA's personnel department, Marlene
Robinson, Ullman Aff., Exh. A at 440, during the second week of
her assignment. She claims that she refrained from making a full
report of her ordeal with Lieberman because she somehow "sensed"
that Ms. Robinson would have been indifferent to her plight.
Id. at 126-29. Instead, plaintiff merely inquired of Ms.
Robinson as to whether there were openings at HFA to which she
might transfer at the conclusion of her assignment. Id. at 127
or 436-40. Informed that she would have to prepare and submit an
application for employment, plaintiff obtained the requisite
forms but said nothing about being victimized by Lieberman.*fn3
Id. at 127 or 436-40.
Plaintiff alleges that Ms. Parks intentionally refused to place
her in another assignment in the two weeks following her
assignment at HFA because of her intention of bringing a criminal
proceeding against Lieberman.*fn4 Affidavit in Support of Motion
for Summary Judgment, sworn to by Andrew Bernstein, attorney for
Parks, on October 30, 1998 ("Bernstein Aff."), Exh. D at 874.
However, plaintiff has admitted that within that two-week period,
she sought and obtained employment with another agency. Id.
Plaintiff has also described specific efforts by Ms. Parks within
that two-week period that simply did not result in an assignment.
Id. at 870-71. There were also discussions concerning a
tutorial software that would have provided plaintiff with a
particular type of training. Id. at 871-72.
On September 27, 1995, Michael Dalley, HFA's personnel
director, received a voicemail message from plaintiff which he
responded to immediately. Dalley Aff., ¶ 21. In his conversation
with plaintiff, she made a brief statement characterizing
Lieberman's request to open her jacket as an act of sexual
aggression. Id. An investigation of plaintiff's allegations
commenced on September 29, 1995, the first day that Lieberman,
Mr. White and Mr. Dalley could meet. Id. at ¶ 22. Mr. White and
Mr. Dalley interviewed Lieberman, HFA employees and
non-employees, including DeWitt, on two occasions to ensure the
veracity and completeness of their statements. Id. at ¶ 23. Mr.
Dalley then submitted a comprehensive written report dated
October 19, 1995 to Stephen J. Hunt, HFA's president, concerning
the allegations leveled at Lieberman by DeWitt. Id. at ¶ 24;
see also Traub Aff., Exh. J. That report addressed the
following four incidents of alleged harassment: the banana
offering; the comments about plaintiff's jacket; the extended
meeting between Lieberman and DeWitt; and a phone call from
Lieberman to DeWitt. Traub Aff., Exh. J at 3-5. Mr. Dalley
concluded that upon the facts ascertained by his investigation,
no disciplinary action against Lieberman for sexual harassment
was warranted. Id. at 9. However, as a result of Dalley's
investigation, Lieberman was admonished for his unprofessional
conduct as follows:
1. The unprofessional conduct on your part for which
you received admonishment from the counsel in October
of 1995 consisted of having spent an extended period
of time during working hours in your office with a
temporary legal secretary with the door closed and
discussing the possibility of the two of you having a
2. No further disciplinary action was taken.
DeWitt Aff. — Lieberman, Exh. 4.
Then, on November 28, 1995, Dalley received from the Equal
Employment Opportunity Commission ("EEOC") notice and a copy of
charges DeWitt had filed with the EEOC on November 21, 1995.
Dalley Aff., ¶ 25. The new charges included allegations that:
Lieberman physically touched plaintiff in a stairwell in the HFA
building; that Lieberman offered plaintiff a ride to work; that
Lieberman took plaintiff in his car to an isolated area in the
South Bronx; that Lieberman took plaintiff under the 59th Street
Bridge where he forced her to touch his penis; and that plaintiff
had to consent to Lieberman's sexual appetites to keep her job
with HFA. Id. Dalley then conducted a second investigation in
response to these charges which culminated with a comprehensive
supplemental report.*fn5 Id. at ¶ 26; see also Traub Aff.,
Exh. K. Again, he found no additional facts to support a finding
of sexual harassment. Traub. Aff, Exh. K at 4. Although no
disciplinary action was recommended, Dalley did suggest that
HFA's Counsel reinforce with Lieberman that if he had actually
engaged in the conduct alleged by DeWitt, "it might possibly
constitute sexual harassment and would be grounds for his
dismissal." Id. at 4-5. As Lieberman participated in HFA's
sexual harassment prevention training seminar in November of
1994, Dalley saw no need for him to repeat it. Id. at 5.
HFA has maintained a Sexual Harassment Policy since 1981 as
well as detailed discrimination complaint procedures since
approximately 1984. Dalley Aff., ¶ 16; see also Traub Aff.,
Exh. I. A copy of the Sexual Harassment Policy and accompanying
complaint procedures is appended to this Opinion as Exhibit A.
The Sexual Harassment Policy is maintained in the employee
handbook in HFA's personnel office and is readily available to
all individuals. Dalley Aff., ¶ 17. It was in effect in September
1995. Id., ¶ 16. The complaint procedures require that
complaints of harassment be investigated by the Personnel
Director. Id., ¶ 18. Following the investigation, a detailed
report of the sexual harassment complaint must be prepared and
must include recommendations and findings. Id. A report based
on the investigation is required to be issued within sixty days
of the date in which a complaint is made. Id. HFA also engages
in an anti-sexual harassment training program. Id., ¶ 19. In
November 1994, the Center for Women in Government conducted three
days of anti-sexual harassment training which every HFA employee
was required to attend. Id. It is anticipated that formal
anti-sexual harassment training will be repeated for all HFA
employees in 1999. Id.
A. Summary Judgment Standard
Summary judgment is inappropriate unless "the pleadings,
depositions, answers to interrogatories, and admissions of file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-52,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 325-26, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Summary judgment applies no less to Title VII cases and
"is still fully appropriate, indeed mandated, when the evidence
is insufficient to support the non-moving party's case."
Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61-62 (2d Cir.
1998) (citations omitted).
On a motion for summary judgment, the moving party has the
burden of showing the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). A fact is
material if it might affect the outcome of the suit. Catanzaro
v. Weiden, 140 F.3d 91, 93 (2d
Cir. 1998). A district court must discern whether there are any
issues of material fact but not decide them. Gallo v. Prudential
Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d
Cir. 1994). In determining whether there are such issues, the
evidence must be viewed in the light most favorable to the party
opposing the motion, with doubts resolved and all reasonable
inferences drawn against the moving party. Anderson, 477 U.S.
at 255, 106 S.Ct. 2505; Tomka v. Seiler, 66 F.3d 1295, 1304 (2d
Cir. 1995). Summary judgment is inappropriate if there is any
evidence in the record from which a jury could draw a reasonable
inference in favor of the nonmoving party on a material fact.
Catanzaro, 140 F.3d at 93.
Before proceeding to the substantive aspects of plaintiff's
claims, two preliminary matters must be addressed: (1) who is
plaintiff's employer; and (2) Lieberman's status as a supervisor.
With regard to the first issue, HFA and Parks go to great lengths
in disavowing an employment relationship with plaintiff. HFA
points to the fact that plaintiff was paid by Parks and Parks
points to the fact that HFA controlled the conditions of
plaintiff's employment. However, it is this precise bifurcation
that has lead courts to a finding of "joint employment." See,
e.g., Serrano v. 900 5th Avenue Corp., 4 F. Supp.2d 315, 316-17
(S.D.N.Y. 1998) (Title VII definition of employer is
"`sufficiently broad to encompass any party who significantly
affects access of any individual to employment opportunities,
regardless of whether the party may technically be described as
an `employer' . . . at common law'") (quoting Spirt v. Teachers
Ins. & Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982),
vacated on other grounds, 463 U.S. 1223, 103 S.Ct. 3565, 77
L.Ed.2d 1406 (1983)); Amarnare v. Merrill Lynch, Pierce, Fenner
& Smith Inc., 611 F. Supp. 344 (S.D.N.Y. 1984), aff'd without
opinion, 770 F.2d 157 (2d Cir. 1985); King v. Booz-Allen &
Hamilton Inc., 83 Civ. 7420, 1987 WL 11546 (S.D.N.Y. May 21,
1987). In Amarnare, the plaintiff was a temporary worker who
was paid by her temporary employment agency but whose work hours,
work place and work assignments as well as hiring, firing and
supervision were controlled by the employment agency's client,
Merrill Lynch. 611 F. Supp. at 346. There, the court employed the
loaned servant doctrine and held that a "person whose salary is
paid by one entity while [her] services are engaged on a
temporary basis by another is an employee of both entities."
Id. at 349. Accordingly, for purposes of this motion, both HFA
and Parks will be considered plaintiff's employer.
The next question is whether Lieberman should be considered
plaintiff's supervisor for Title VII purposes. Although it is
true that Joy Willig formerly assigned Ms. Mingo as plaintiff's
supervisor, plaintiff received her work assignments from
Lieberman. Moreover, Lieberman was an attorney at HFA while Ms.
Mingo was a secretary. Thus, there is a question of fact as to
whether Lieberman exercised authority over DeWitt tantamount to
that of a supervisor's authority such that he could be considered
her "de facto" supervisor. See Hernandez v. Jackson, Lewis,
Schnitzler & Krupman, 997 F. Supp. 412, 416 (S.D.N.Y. 1998)
(whether defendant, who was not plaintiff's nominal supervisor,
held the power to alter the terms and conditions of her
employment presented a triable issue); Gostanian v. Bendel, 96
Civ. 1781, 1997 WL 214966, at *6 (S.D.N.Y. April 25, 1997) (jury
could reasonably find that defendant, not plaintiff's official
supervisor, exercised de facto authority to affect the terms and
conditions of plaintiff's employment through her influence over
plaintiff's supervisor); Thomas v. Medco, 95 Civ. 8401, 1998 WL
542321, at *10 (S.D.N.Y. Aug.26, 1998) (a quid pro quo claim of
harassment can rest on alleged harasser's authority to influence
an adverse employment decision, if that influence
is so significant that the harasser may be deemed the de facto
decision maker). Drawing all reasonable inferences against the
moving party, Lieberman will be treated as plaintiff's supervisor
for purposes of this motion.
Explicit, or so-called "quid pro quo,"*fn6 sexual harassment
occurs when a supervisor "alters an employee's job conditions or
withholds an economic benefit because the employee refuses to
submit to sexual demands." Carrero v. New York City Housing
Authority, 890 F.2d 569, 577 (2d Cir. 1989) (citations omitted).
Accordingly, "to establish a prima facie case of quid pro quo
harassment, a plaintiff must present evidence that she was
subjected to unwelcome sexual conduct, and that her reaction to
that conduct was then used as the basis for decisions affecting
the compensation, terms, conditions or privileges of her
employment." Karibian v. Columbia University, 14 F.3d 773, 777
(2d Cir. 1994) (citations omitted); see also Kotcher v. Rosa and
Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992)
("employee must establish that she was denied an economic benefit
because of gender or because a sexual advance was made by a
supervisor . . .").
"Because the quid pro quo harasser, by definition, wields the
employer's authority to alter the terms and conditions of
employment — either actually or apparently — the law imposes
strict liability on the employer for quid pro quo harassment."
Karibian, 14 F.3d at 777 (citing Kotcher, 957 F.2d at 62). If
the supervisor possesses no authority to affect the benefits or
privileges of employment, a plaintiff cannot sustain a quid pro
quo claim of sexual harassment. Gostanian, 1997 WL 214966 at
*6; see also Bridges v. Eastman Kodak Co., 822 F. Supp. 1020,
1028 (S.D.N.Y. 1993) ("as a requirement for asserting a quid pro
quo claim, a plaintiff must assert that the supervisor named as a
defendant was given authority by the employer to alter the terms,
conditions and privileges of the plaintiff's employment").
Plaintiff has made out a prima facie case of quid pro quo
harassment by alleging that Lieberman told plaintiff that he
could obtain a permanent position at HFA for her if their
relationship was allowed to "ripen." The question, however, is
whether Lieberman had the apparent authority*fn7 to hold out
this carrot as liability will not attach "`where a victim or
plaintiff could not have reasonably believed that it was within
the supervisor's power to affect the conditions of the
plaintiff's job.'" Savino v. The C.P. Hall Co., 988 F. Supp. 1171,
1185 (N.D.Ill. 1997) (quoting Jansen v. Packaging Corp. of
America, 123 F.3d 490, 500 (7th Cir. 1997)) (Flaum, J.,
concurring); cf. Burlington Indus. Inc. v. Ellerth,
524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (in the unusual
case where there is a false impression that the harasser was a
supervisor, when in fact he was not, the victim's mistaken
conclusion must be a reasonable one).