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October 8, 1999


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


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 supervisor.

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 monthly.

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 time.

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 manner.

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
     Plaintiff's Supervision

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 incident.

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 years.

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
  for interviews.
  You are still expected to perform to my expectations
  and, if these expectations are not met, termination
  will ...

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