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DEWITT v. LIEBERMAN

January 13, 1999

OLIVE B. DEWITT, PLAINTIFF,
v.
JOEL B. LIEBERMAN, NEW YORK STATE HOUSING FINANCE AGENCY, AND THE PARKS GROUP, DEFENDANTS.



The opinion of the court was delivered by: Scheindlin, District Judge.

  OPINION & ORDER

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.

I. Factual Background

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.

Q: Who told you that?

  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
  her."

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.

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 mind." Id.

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
  relationship.

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.

II. DISCUSSION

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).

B. Claims Against HFA

1. Quid Pro Quo

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).

Here, plaintiff acknowledged that she went to HFA's personnel department during the second week of her assignment and picked up an employment application by which she learned of the civil service requirements for employment. In particular, plaintiff admits that the employment application she read said something about a test. However, plaintiff only learned of these requirements after Lieberman's alleged offer of permanent employment. Whether plaintiff was reasonable in believing that Lieberman had the apparent authority to do what he allegedly promised, i.e., a permanent position, is a question best left for a jury. See Gutierrez v. Henoch, 998 F. Supp. 329 (S.D.N.Y. 1998) (quid pro quo claim dismissed after a bench trial ...


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