MEMORANDUM-DECISION & ORDER
Plaintiff Deborah Rizzo-Puccio commenced the instant litigation
pursuant to 42 U.S.C. § 2000e, et seq., and N.Y. EXEC. LAW § 296
alleging that: (1) she was the victim of a hostile work environment based
on her gender; (2) Defendants retaliated against her for engaging in
protected activity; and (3) Defendants violated her due process and
contractually protected rights. Presently before the Court are
Defendants' Motions for Summary Judgment pursuant to FED. R. Civ. P. 56
seeking dismissal of the Complaint in its entirety.
Because this is a motion for summary judgment by Defendants, the
following facts are presented in the light most favorable to Plaintiff.
See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).
Plaintiff was employed by Defendant College Auxiliary Services, Inc.
("CAS") from April 11, 1983 through October 6, 1997 as Bookstore Director
on the State University of New York ("SUNY") New Paltz campus.
A. Plaintiff's Relationship With Supervisor Long
In September 1995, Defendant William F. Long, III ("Long") began
working as Executive Director for CAS. As such, Long was Plaintiff's
In or about early 1996, approximately six months after Long began
working at CAS, Plaintiff contacted James Grant, then President of CAS,
about a problem she was having with the SUNY faculty. Plaintiff prepared
a list for Long believing it to be for information purposes only. Long,
however, distributed the list to the faculty. For whatever reasons, the
list caused incensed faculty members to come to the bookstore. Plaintiff
told Grant that she had a problem with Long distributing the list, that
the distribution had created a problem with the faculty, and asked Grant
for assistance in remedying the situation. At deposition, Plaintiff also
contended that she complained to Grant that Long treated her differently
on account of her gender.
According to Plaintiff, Grant discussed the matter with Long. In
response, Long is alleged to have told Plaintiff that he did not
appreciate her going over his head to Grant and that she should not do
that again. Long made no mention of any allegations of gender-based
discrimination. Plaintiff responded that there was a problem with the
faculty and, because Long was unavailable at the time, she opted to
discuss the problem with his superior, Grant.
In or about June 1997, Plaintiff again complained to Grant about Long.
Plaintiff purportedly told Grant that she was not happy with the way Long
was treating her, that she felt Long was treating her differently because
of her gender, and that she was being treated more harshly than her male
counterparts. Plaintiff specifically advised Grant that Long frequently
was rude to her, that he would hang up on her during telephone
conversations, and that he treated her harshly if she was late to staff
meetings. According to Plaintiff, Long treated her this way at least
At deposition, Plaintiff supplemented the bases for hostile work
environment claim. Plaintiff recounted one incident when Long asked her
for certain information. Plaintiff told Long that she already provided
him with the information, but he insisted that she did not and that she
should send it right away. This apparently upset Plaintiff.
In another instance, Plaintiff told Long about a faculty orientation
meeting to which she was invited. Long inquired why
he was not invited. Long allegedly stated that he was going to go anyway
and hung up the phone.
Plaintiff relayed another incident when Long said something to her in
front of everybody at a staff meeting about being late. According to
Plaintiff, Long never said anything to her male counterparts when they
were late. Plaintiff alleges that, after the meeting, Long telephoned her
and told her that she was habitually late and that she had to be on
Plaintiff also alleges that Long and Andy Angstrom, another CAS
employee, would discuss hunting before staff meeting. Plaintiff
apparently asked them to stop talking about that subject and, in
response, they allegedly laughed.
Finally, Plaintiff alleges that Plaintiff cut her off at a staff
meeting, saying words to the effect of "that will be enough." According
to Plaintiff, other females were similarly treated in a harsh, rude
In late July 1997, Defendant D'Aleo was appointed to succeed Grant as
SUNY's Vice-President of Administration and President of CAS. During the
selection process, Long is purported to have stated to the CAS managers
that he did not think a woman was right for the job.
In or about August 1997, in response to Long's request for a salary
increase, D'Aleo approached Plaintiff and the other unit managers
regarding "Long's performance. Plaintiff allegedly responded that she
felt she worked in a hostile work environment, that she was treated more
harshly than male managers, that she was being treated differently on
account of her gender, and that she was not happy with the way Long
handled the Magnus/Kovacs situation, see discussion infra at 53-54.*fn1
D'Aleo however, did not follow" up on Plaintiff's statements.
B. Alleged Incidents of Sexual Harassment by Bookstore Employees Under
As Bookstore Director, Plaintiff was responsible for supervising
bookstore employees, including Jennifer Magnus ("Magnus"), Michael Kovacs
("Kovacs"), and Amanda Bracero ("Bracero").
Sometime prior to September 1995, Bracero complained to Plaintiff that
Kovacs hugged her and that she did not wish to be hugged. In response,
Plaintiff promptly spoke to both individuals about the incident and told
Kovacs not to hug Bracero. Plaintiff followed-up on the situation to
ensure that there were no further incidents of unwanted touching.
Plaintiff did not prepare any written documentation of this incident.
At deposition, Magnus stated that, in March 1996, Kovacs hugged her,
grabbed her buttocks, and would not let her go. According to Magnus, she
personally reported this incident to Plaintiff. This incident also is
supported by a memorandum prepared by CAS employee Vicky Terwilliger
outlining the incidents of alleged sexual harassment of Magnus by
Kovacs. See discussion infra at 53. Plaintiff, however, denies that she
was ever apprised of this incident.
In November 1996, Magnus complained to Plaintiff that she was having
personality problems with Kovacs and that he was unwilling to work with
her. Plaintiff addressed the matter with Kovacs telling him that he
needed to work with Magnus in a professional manner. According to
Plaintiff, Magnus advised that she was satisfied with the resolution of
the issue. Plaintiff reported this incident to Long.
In or about April 1997, Magnus complained to Plaintiff that Kovacs gave
her a birthday gift consisting of a two-piece lingerie
set*fn2 and a card and stated that she did not feel comfortable
receiving gifts from him. Plaintiff advised Magnus to return the gift to
Kovacs and tell him that she did not feel comfortable receiving gifts
from him. Plaintiff did not discuss this incident with Kovacs, nor did
she report it to Long or otherwise document it.
In August 1997, Nancy Richardson ("Richardson"), a CAS employee,
reported to Plaintiff that Kovacs hugged Magnus against her will.*fn3
Shortly thereafter, Magnus reported that Kovacs hugged her against her
will. Plaintiff talked with Kovacs and told him that he should not engage
in such behavior. Plaintiff also told Magnus that she should report the
incident to Long. After Magnus responded that she did not wish to take
the matter to Long, Plaintiff reported the incident to Long.
At deposition, Magnus stated that Kovacs made constant comments to
her, and otherwise looked and leered at her in a manner that made her
feel uncomfortable. According to Magnus, Kovacs acted toward her in
either an inappropriate sexual or hostile manner almost every day. Other
than that previously discussed, Plaintiff denies having knowledge of such
alleged inappropriate behavior by Kovacs.
In August 1997, a temporary employee, Brenda Stisi, reported to
Plaintiff that Kovacs made an inappropriate statement to her. Kovacs
allegedly told Stisi that if she was not having a good time inside the
bookstore, she should come out and he would show her a good time.
Plaintiff reported this incident to Long.
Also in August 1997, Magnus spoke with Vicky Terwilliger about the
problems she was having with Kovacs. Terwilliger prepared a memorandum
listing Magnus's allegations against Kovacs (the "Terwilliger
memorandum"), and provided it to Long. Long advised Plaintiff that she
should have informed him about all of the complaints made by Magnus about
Kovacs. Plaintiff admitted that she failed to report the birthday gift
Long then investigated Kovacs's conduct towards Magnus. Long met with
Magnus, Richardson, Plaintiff, Harold Kearns, Bruce DuBois, and Kovacs.
Magnus confirmed all the allegations in the Terwilliger memorandum.
Magnus also stated that she had reported the March 1996 incident to
Plaintiff, and that Plaintiff responded by saying that Kovacs should be
kept away from Magnus, and that Magnus should stay out of the storeroom
where Kovacs worked.
Richardson told Long that she witnessed Kovacs act in a sexually
inappropriate manner towards Magnus by hugging her against her will,
looking Magnus "up and down," and making suggestive noises. towards
Magnus. Richardson also stated in her affidavit that she reported
Kovacs's behavior towards Magnus to Plaintiff on several occasions over
an approximate 1 1/2 year period.
DuBois and Kearns advised Long that they had not witnessed any of the
instances listed on the Terwilliger memorandum.
C. Long Terminates Kovacs
On or about August 23, 1997, Long advised Plaintiff that he intended to
terminate Kovacs's employment on account of the allegations of sexual
harassment. Plaintiff urged Long to send Kovacs for counseling or
training on sexual harassment, rather than terminate an employee of eight
Long met with Kovacs who denied the allegations of sexual harassment.
In light of the allegations of sexual harassment, however, Long advised
Kovacs that he would be terminated, but afforded Kovacs
the opportunity to resign instead. Kovacs resigned.
As previously discussed, on or about August 22, 1997, in response to
D'Aleo's investigation into Long's request for a raise, Plaintiff
objected to the way Long handled the Magnus-Kovacs incident and allegedly
also complained that she was being treated differently and in a hostile
manner on account of her gender.
D. Long Terminates Plaintiff
On September 2, 1997, Long drafted a memorandum to Plaintiff that
read, in part, as follows:
This is to notify you that effective December 18, 1997
your employment may terminate with College Auxiliary
Services, Inc. You have the option of submitting your
I will allow reasonable time for you to take time off
You are still expected to perform to my expectations
and, if these expectations are not met, termination
will occur before the above date.
That same day, Long met with Plaintiff and Craig Haight, Director of
Human Resources at SUNY New Paltz. Long handed Plaintiff the memorandum
and told her that, in light of the Magnus-Kovacs situation, she would be
terminated effective December 18. Plaintiff pleaded with Long to
reconsider his decision, claiming that she did not violate any policy and
that she had performed well for the company for fourteen years. Long
refused to change his decision. Haight concurred with Long's decision.
Shortly thereafter, Plaintiff asked D'Aleo to rescind the September 2
letter and reinstate her to her position. D'Aleo declined to do so.
On September 9, 1997, Plaintiff wrote a letter to Long responding to
his September 2 memorandum. Plaintiffs letter read as follows:
I am responding to your Memorandum to me dated
September 2, 1997. . . . Your memo states that, after
14 years on the job, I "may" be terminated on December
18, 1997. The memo is unclear by you as to whether you
have terminated me or not effective December 18,
Regardless of the vagueness of your memo, it is
extremely upsetting to me because it implied that I am
not doing my job properly. This is not so. I have in
the past performed and continue to perform my work
effectively and with distinction.
I have good reason to believe your September 2 memo
and your actions toward me are based on your improper
effort to retaliate against me because of my
appropriate handling and reporting to you about an
alleged sexual harassment matter concerning a female
employee in the Bookstore, and your attitude toward
women which I have observed. I do not intend to let
such improper action and related behavior by you go
I want to maintain a productive professional
relationship with you . . . I therefore ask that you
do not further undermine my efforts by actions such as
your September 2 memo. I further request that you
rescind that memo and have it removed from all files
in which it has been placed.
On or about September 9, 1997, Plaintiff met with Long, DuBois, and
Kearns about Plaintiff's September 9 letter. At that meeting, Long told
Plaintiff that he felt her letter was unprofessional and that he was
unhappy about it.