The opinion of the court was delivered by: Leisure, District Judge.
This Court referred the matter to the Honorable James C.
Francis, IV, United States Magistrate Judge. On December 10,
1998, Judge Francis issued a Report and Recommendation (the
"Report") advising this Court, inter alia, to deny TBTA's
motion for partial summary judgment and to grant Senesi's motion
for summary judgment. Plaintiffs have objected to Part B of this
Report, which recommends dismissing all claims against Senesi in
his individual capacity.*fn1 For the following reasons, the
Court declines to accept Part B to the extent it recommends
dismissing plaintiffs' "aiding and abetting" claims against
Senesi individually. Accordingly, defendants' motion for partial
summary judgment is granted in part and denied in part.
The substantive facts and procedural history of this action
have been set forth in greater detail in Judge Francis's Report
and Recommendation of December 10, 1998. See Report at 2-6. As
such, only those facts necessary for the determination of the
instant motion with respect to defendant Senesi are included
Plaintiffs Lewis and Corke are employed by defendant TBTA as
toll collectors at the Manhattan Plaza of the Triborough Bridge
in New York City. Defendant Peter Senesi is the General Manager
of the Triborough Bridge. During 1994, Corke made various
complaints to her supervisors regarding sexually harassment by
employees of Allside Service Corporation, a company hired by the
TBTA to provide cleaning services. See Corke Dep. at 58-62,
77-80, 110-13. Specifically, in August and October 1994, Corke
complained that Allside employees were entering the women's
locker room while female employees, including Corke, were
changing. See id. at 77-80; Chang Decl., Exh. D & E. She also
claimed that Allside employees were leering at her and would
crowd the entrance to the locker room, forcing her to "run the
gauntlet" and brush up against them. See Corke Dep. at 59-62.
Her supervisors, however, assured her that the problem had been
addressed See Chang Decl., Exh. D.
Although there was a period of approximately one year in which
there were no incidents involving improper entry into the women's
locker room, on or about November 20, 1995, Corke reported that
the Allside cleaners were again entering the locker room while
women were changing. See Corke Dep. at 102-04, 118-19. She
complained directly to Senesi on November 23, 1995. See id. at
120. She also voiced her complaints about harassment to Richard
Smith, TBTA's Chief Equal Employment Opportunity Officer, on
December 1, 1995. See id. at 119.
On December 4, 1995, Senesi called Corke at home and
interrogated her about who had made a complaint to Smith. See
Corke Dep. at 141-42. She acknowledged that it was she. See id.
at 142. Corke has testified that Senesi appeared not at all
concerned about the problems with Allside, but rather was annoyed
that she had made the complaint. See id. at 141-42.
Three days later, Senesi inspected the women's locker room,
accompanied by the
TBTA Operations Manager, a maintenance supervisor, and a union
representative.*fn2 See Chang Decl. at Ex. L & M; Corke Dep.
at 128-29. During that inspection, Senesi purportedly referred to
the female bridge and tunnel officers ("BTO's") as "cunts" and
allegedly stated, "We've got the biggest bunch of fucking
crybabies here." Lopez Dep. at 36; see also Corke Dep. at
129-30. He also was heard to remark that "[b]oss man don't want
no women with tiny hinnies [sic] on this job." Lopez Dep. at 36;
see also Corke Dep. at 130.*fn3 Defendants maintain that these
statements have been taken out of context. See Def. Rep. Mem.
According to Corke, instead of addressing the problem of sexual
harassment, notices were posted that day advising employees that,
pursuant to Mr. Senesi's instructions, the cleaners would have
access to the women's locker room from 1:00 to 1:30 P.M. See
id. at 120-22; Chang Decl., Exh. K. Senesi later ordered that a
sign be posted at the entrance to the locker room to designate
when Allside employees were cleaning. See Corke Dep. at 137-38;
Chang Decl., Exh. T. Despite numerous complaints over a period of
two years, the incidents of alleged sexual harassment continued.
See Corke Dep. at 134, 146, 151, 164, 175, 177-78, 188-89;
Madeira Dep. at 15-16.
The allegations by plaintiff Lewis are similar to Corke's
contentions. Lewis also complained about Allside employees
improperly entering the locker room while she was changing, see
Lewis Dep. at 117-18, and blocking her access to the locker room,
see id. at 122-24. In addition, Lewis testified that Senesi
once telephoned her while she was at her lane assignment and
berated her for complaining to Smith about harassment and
discrimination. See Lewis Dep. at 149-50. Lewis maintains that
Senesi ignored her complaints about harassment by defendant
Michael Chin,*fn4 dismissing his conduct as merely disciplinary,
not discriminatory, behavior. See id. at 109. On one occasion,
when Lewis became ill because of ventilation problems in her
booth, Senesi revealed her medical problem to other employees and
made comments suggesting that because Lewis was female, she
"didn't realize [whether] the ventilation system was working or
not." Id. at 111. He also allegedly asked her union delegate,
in referring to the plaintiffs' complaints, if "he was afraid of
getting raped like the females are." Id. at 110. These
incidents, Lewis asserts, revealed that Senesi "considered [her]
complaints about Allside . . . to be frivolous." Id.
In their memorandum of law accompanying their motion for
summary judgment, defendants insist that Senesi investigated all
claims of sexual harassment by Allside and consistently acted
"professionally" in his investigation. Def. Mem. at 17-18. In his
deposition, however, Senesi testified that he "was not aware that
there was an investigation" relating to allegations of sexual
harassment by Corke. Senesi Dep. at 55. According to Senesi, the
complaints about Allside related only to issues of cleanliness
and scheduling. See id. at 56-57. Regarding allegations of
harassment, he asserted that the instant lawsuit was the "first
time [he] heard anything of that nature." Id. at 56.
However, TBTA Operations Superintendent Peter Venturella
testified that he received several complaints from plaintiffs
regarding Allside employees leering at women and improperly
entering the locker room, and stated that he forwarded such
complaints to Senesi. See Venturella Dep. at 28-34. BTO
Benevolent Association Union officer Neil Verton and TBTA
Sergeant Dick Lopez also testified that they had personally
communicated plaintiffs' complaints to Senesi. See Verton Dep.
at 82-83; Lopez Dep. at 18-19. Furthermore, Smith testified that
he had discussed plaintiffs' complaints about Allside with Senesi
prior to Senesi's investigation, and that Senesi had told him
that the complaints had alleged sexual harassment. See Smith
Dep. at 32-33. Smith maintained ...