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June 30, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Doris Roman ("plaintiff" or "Roman"), who was fired from her job with Defendant Cornell University ("Cornell"), commenced the instant litigation against Cornell and her supervisor, Defendant Claude Poux ("Poux"), alleging causes of action for violations of her civil rights (42 U.S.C. § 1981), discrimination (42 U.S.C. § 2000e, et seq.; N.Y.EXEC.LAW § 296 (the "Human Rights Law" or "HRL")), and state law claims for breach of contract, negligent failure to supervise, failure to investigate, and the intentional infliction of emotional distress. Currently before the Court are defendants' motion to dismiss the Complaint pursuant to FED.R.CIV.P. 12(c), or, in the alternative, for summary judgment pursuant to FED.R.CIV.P. 56, and plaintiff's cross-motion for summary judgment.


Cornell operates a College of Engineering (the "College"). Within the College, Cornell has established the Engineering Minority Programs Office ("EMPO"). The purpose of EMPO is to recruit and retain minority students in the College. At all times relevant hereto, Poux, an African American male, was the director of the EMPO.

In December 1993, Cornell posted an opening for the position of Assistant Director of the EMPO. After conducting a nationwide search, on August 1, 1994, Cornell hired plaintiff, a Hispanic female, as the Assistant Director of the EMPO. The decision to hire plaintiff was made jointly by John Hopcroft ("Hopcroft"), Dean of the College; Mark Spiro ("Spiro"), Associate Dean for Administration of the College; Gerald Rehkugler ("Rehkugler"), Associate Dean for Undergraduate Programs and Student Services; Deborah Cox ("Cox"), then-director of the College's Human Resources department; and Poux. See Def.Ex. E; Mar. 30, 1998 Roman Dep., at 84-99; Cox.Aff., at ¶ 3, Def.Ex. F. Poux signed the actual letter offering plaintiff the position and copied it to Cox, Hopcroft, Rehkulger, and Donna Lawton. Plaintiff worked under the direct supervision of Poux.

At the beginning of her employment at the EMPO, plaintiff had a non-work related incident with Sonja Baylor ("Baylor"), an African-American female, who was then working as an administrative assistant in the EMPO. Baylor had sublet her apartment to plaintiff, and a dispute ensued over extermination costs. Although the source of this incident was not work-related, it affected plaintiff's working relationship with Baylor. See Oct. 19, 1998 Roman Dep., at 92-93. Apparently, Baylor also was unhappy with the change in office structure, which included the addition of plaintiff. Thus, there were some tensions between plaintiff and Baylor from the beginning.

In October or November 1994, relationships in the EMPO began to further deteriorate. Plaintiff had regular meetings with Cox to discuss job-related concerns and, in particular, issues relating to communications (or the lack thereof) within the EMPO. Plaintiff felt that there were inadequate policies governing the EMPO's operations and that she was frequently excluded from certain office communications. During these meetings, Cox discussed plaintiff's difficulties in meeting certain job responsibilities, including writing reports and grant proposals. Cox also counseled plaintiff on the inappropriateness of using profanity in the office and in electronic mail ("e-mail") messages.

Cox reported her displeasure with the use of profanity in the office to Poux, who expressed similar concern. The EMPO staff frequently used profanity in the office. In one instance, Baylor used vulgar language with Poux. As a result, on October 28, 1994, Poux sent an e-mail to the EMPO staff (plaintiff, Baylor, and Ann Hendricks ("Hendricks")) which read, in part, as follows:

  I have been concerned about the level of
  professional behavior in empo, and am taking this
  opportunity to remind everyone of some pretty
  basic ground rules for interaction:
  1. Obscene gestures, particularly when directed at
  an individual, are strictly prohibited.
  2. Obscene language, especially when directed at
  an individual, is absolutely unacceptable.
  This is a serious issue. If there are infractions
  . . . disciplinary action, as appropriate, will be

Def.Ex. L.

On November 11, 1994, Baylor and Hendricks complained to Cox that plaintiff had an emotional outburst in the office, used vulgar language, and threatened them with the loss of their jobs (the "November 11 incident"). This incident was the result of plaintiff having purchased a briefcase with the expectation that the EMPO would pay for it, and her being informed that the EMPO could not pay for the briefcase due to budgetary reasons and that plaintiff would have to return the briefcase. Plaintiff admitted that an incident occurred, but denied its severity claiming that "[m]y tone and maybe choice of words may have been misinterpreted[,] . . . [and that] I do not use that kind of language in a professional environment." Def.Ex. T. According to Cox, plaintiff went to Cox's office on November 14, 1994 and admitted that she had lost her temper and used inappropriate language. Cox Aff., at 9.

By mid-November, the College's administration became concerned over plaintiff's behavior and considered terminating her. See Cox Aff., at ¶¶ 11, 14; Def.Ex. N. Specifically, the College felt that plaintiff was attempting to undermine Poux's authority as director of the EMPO. On November 15, 1994, Spiro sent an e-mail to Cox stating:

  I think it important that we [ ] modify [Roman's]
  behavior because I'm concerned that she is
  undermining [Poux's] leadership. [Roman] must
  increasingly come to understand that we firmly and
  unequivocally support Poux. Second, she needs to
  see that her success at Cornell is dependent on
  his evaluation of her work and his support. She
  needs to bring workplace problems to him (not us)
  and to resolve them with him. I leave the details
  to you but I believe that is the type of behavior
  modification needed here.

Def.Ex. N.

Later that day, Cox drafted an e-mail message to Spiro stating:

  I met with [Roman] . . . and told her that she
  needed to deal directly with Poux. She confessed
  that she had threatened the staff. . . . I told
  her that her behavior was inexcusable — that it
  represented a lack of respect for people and also
  an abuse of her power as an Assistant Director. I
  also told her that I was receiving feedback that
  she was undermining Poux and negatively
  representing the EMPO program and the university. I
  told her that her success at Cornell depended on
  her positive support of all three. . . . If she
  couldn't do that she shouldn't work here.

Id. Spiro responded to Cox writing "[m]y view at this point is that [Roman] probably should be outplaced because of her deteriorating relationship with the staff and because it increasingly appears that she cannot do the work." Id.

After the November 11 incident, Cox learned from Baylor and Hendricks that there had been other incidents of inappropriate conduct by plaintiff. Because the College was contemplating terminating plaintiff, Baylor and Hendricks were asked to document their recollection of any such incidents. See Def.Exs. BB, CC, and DD; Cox Aff., at ¶ 11.

On November 15, 1994, Baylor sent an e-mail to Poux documenting her recollection of several incidents when plaintiff allegedly acted in an inappropriate manner. See Def.Ex. O. Baylor's e-mail reported several incidents regarding plaintiff, including: plaintiff speaking negatively about Poux's ability to supervise and manage the EMPO, plaintiff stating at a staff meeting that Gloria Guilford was engaging in sexual relations with Hopcroft to be promoted, plaintiff admitting to falsifying her resume, and plaintiff permitting a student to use the EMPO fax machine in contravention to office policy.

On November 18, 1994, Poux issued a disciplinary warning to plaintiff regarding the November 11, 1994 incident. The letter read as follows:

  On the morning of Friday, November 11, 1994, in
  the EMPO suite, you threatened staff members Sonja
  Baylor, Ann Hendricks and me (in absentia) with
  our jobs, and then hurled numerous invectives and
  expletives at Sonja and Ann. Further, you
  indicated to them in no uncertain terms that you
  were going against my direction to you to return
  the briefcase that you purchased with the
  following statement: "I am not returning that
  fucking bag. . . ."
  This behavior is totally and completely
  unprofessional and unacceptable. Insubordination,
  threatening and abusive behavior, be it physical,
  verbal, and/or psychological, as well as repeated
  prevarication about individuals, will not be
  tolerated under any circumstances.
  This is an official University warning to you that
  if there are ever displays of such behavior again,
  further disciplinary action, including the
  possibility of termination, will result.
  I recommend that you seek assistance in remedying
  this situation.

Def.Ex. P. In late November or early December, Poux reported to Cox and Spiro that he had contacted an acquaintance, the Dean of Students at Rennselaer Polytechnical Institute ("RPI"), regarding plaintiff. Plaintiff had previously been employed by RPI. According to Poux, his acquaintance stated that, in the last two years of her employment, plaintiff "was withdrawn and secretive, . . . became uncooperative and argumentative, and engaged in the `back-biting and undermining' other staff" and her supervisor. See Def.Ex. Q.

On November 10, 1994, the EMPO adopted a policy prohibiting students from using the office fax machine, except in an extreme emergency and provided the student paid a fee. See Baylor Aff., at Ex. B. Shortly after the fax machine policy was implemented, an incident occurred regarding a student's use of the EMPO fax machine. Alberto Lazaro ("Lazaro"), who was fluent in English and Spanish, went to the EMPO office to use the fax machine to transmit a document relating to a job. Lazaro was informed by the receptionist in English that students were not permitted to use the fax machine. Lazaro then complained to plaintiff in Spanish. Plaintiff then informed the receptionist in English that Lazaro could send the fax or that plaintiff would send the fax for him.

Baylor and Hendricks, who do not speak Spanish, complained to Poux that plaintiff was speaking Spanish in the outer office area of the EMPO for the purpose of excluding them. See Baylor Dep., at 83. Poux relayed this incident to Cox and Hopcroft. Hopcroft and Cox advised that Poux should direct plaintiff not to carry on extended conversations in a foreign language for the purpose of excluding others. See Pl.Rule 7.1(a)(3) Statement, at 3; Hopcroft Dep., at 28.

On November 29, 1994, Poux discussed several issues with plaintiff. The conversation was memorialized in a memorandum from Poux to plaintiff that read:

  As we discussed in a 1 P.M. meeting today, you
  understand and are aware of

  the following concerns with respect to your
  presence in EMPO:
  1. Having extended conversations in Spanish in the
  presence of individuals who do not understand
  Spanish is inappropriate and inconsiderate and
  will cease immediately.
  2. Instructing students to have meetings in EMPO
  with no staff is unacceptable and against Office
  Policy; it will not happen again.
  3. Informing students about personnel difficulties
  pertaining to the office is completely
  unacceptable, and will not be tolerated.

Def.Ex. S.

On November 30, 1994, plaintiff sent an e-mail to Cox stating:

  I need to see you at your earliest convenience for
  I have received another warning letter from my
  supervisor and at this point given this letter and
  other incidents in the office, I am coming to the
  conclusion that I may be PERCEIVING HARASSMENT!!

Pl.Ex. F (emphasis in original).

On December 6, 1994, plaintiff sent a letter to Poux regarding the warnings she received on November 18 and November 29. Plaintiff expressed her dissatisfaction with "the lack of appropriate communications, and cooperation in EMPO . . . [and] the gossip mill [in the EMPO office]." Def.Ex. T. Plaintiff denied using inappropriate language in the office, stating that "I can understand how I could have been misinterpreted, especially since my tone was very stern." Id. Plaintiff also denied having been insubordinate, threatening, or abusive. Plaintiff continued to state that she had never been apprised before that her speaking Spanish was a problem and that she thought she made a professional decision to permit the students to use the EMPO office with no staff present, despite any EMPO policy. Finally, plaintiff denied having informed students about personnel difficulties in the EMPO.

Poux responded to plaintiff by letter dated December 13, 1994, advising her that he would process her letter as a formal grievance.

On December 12, 1994, Baylor sent Cox an e-mail regarding a telephone call from Greg Nelson ("Nelson"), a College alumnus who was then working for Exxon and who was chairman of the College's Industrial Advisory Council ("IAC"). The e-mail stated as follows:

  One of our largest corporate supporters, Greg
  Nelson, IAC Chair, just called me to get
  clarification on what is going on in the office.
  When I asked him what he was talking about he told
  me that [Roman] had called him last week and told
  him that [Poux] had fired everyone in the office
  and that he was getting ready to fire her. I told
  him that was not the case and I encouraged him to
  speak directly to [Poux]. . . . He also told me
  that [Roman] had ask [sic] him to write a letter
  to the Dean indicating that she was the only ...

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