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November 17, 1999


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


Plaintiffs Gwenda Lewis and Kathleen M. Corke bring this action against defendants Triborough Bridge and Tunnel Authority ("TBTA"), Peter Senesi, and Michael Chin. Plaintiffs allege that they were sexually harassed and subsequently retaliated against when they complained, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("HRL"). In addition, Lewis claims that she was discriminated against on the basis of her race. Both plaintiffs also state claims against TBTA for negligent employment, retention, and supervision of its employees. Defendants TBTA and Senesi have moved for summary judgment on various grounds.

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 here.

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. at 2.

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.

Senesi's reputation at the TBTA was evidently rather infamous. In his deposition, he admitted to viewing pornographic tapes while he was on duty at the Whitestone Bridge. See Senesi Dep. at 21. According to one employee, Senesi was known as "the porno king of Whitestone Bridge," presumably because "it was common knowledge that he would sell or bring in videotapes to the facility." Verton Dep. at 87. On November 15, 1990, Senesi received a written reprimand from the TBTA for describing black temporary BTO's as "cockroaches." See Saxe Affirm., Exh. 7. Defendants argue that Senesi's alleged comments concerning female TBTA employees were merely his personal views and did not in any way influence his response to plaintiffs' complaints. See Def. Mem. at 17-18.

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 ...

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