The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiff Thomas Gabriele, Jr. brings the instant action
against defendants Cole National Corporation d/b/a Things
Remembered ("Cole National"); Things Remembered, Inc. ("Things
Remembered"); and James Leone, alleging sexual harassment in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and N.Y. EXEC. LAW § 290 et seq. Plaintiff
seeks monetary damages. Presently before the Court is Defendant
Cole National's motion to dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary
judgment pursuant to FED. R. CIV. P. 56.*fn1
Because this is a motion for summary judgment by the defendant,
the following facts are presented in the light most favorable to
plaintiff. See Ertman v. United States, 165 F.3d 204, 206 (2d
Plaintiff, a male, was hired by defendant Things Remembered in
August 1996 as a sales associate in the Things Remembered store
in the Rotterdam Square Mall in Rotterdam, New York. The
Rotterdam, New York store is one of approximately 800 chain gift
stores owned and operated by Cole National.*fn2 Plaintiff
received positive performance evaluations and numerous awards in
his position as a sales associate.
On or about January 1997, Plaintiff was asked to cover a shift
at the Things Remembered store located in the Colonie Center Mall
in Albany, New York. The manager of the Colonie Center store was
Defendant James Leone. Plaintiff alleges that Leone, an "admitted
homosexual," sexually harassed him by "staring at [him] and
touching [him] in passing." Amended Compl. at ¶ 17. Plaintiff
also alleges that Leone told him that he "would only let people
who were attractive work in the [Colonie Center] store, and that
he would let [P]laintiff work in the store because he was
attractive." Id. Upon returning to work at the Rotterdam Square
Mall store, Plaintiff informed his manager, Barbara Armstrong, of
Leone's alleged sexual advances and that because of Leone's
conduct, he would not cover future shifts at the Colonie Center
store. Armstrong apparently informed Plaintiff that Leone was
gay and that he liked Plaintiff. See id. at ¶ 18.
On or around February 1997, some one-month later, Leone was
transferred to the Rotterdam Square Mall store as an Assistant
Manager. Shortly thereafter, Plaintiff alleges that Leone
sexually harassed him by: (1) using offensive sexual language and
conversation, including making obscene comments about Leone's sex
life; (2) describing how gay males flirt with each other and
repeatedly exhibiting such conduct towards Plaintiff; (3)
describing, in detail, how gay men have sex with each other; (4)
touching Plaintiff on his shoulders and back without his
permission; (5) scheduling Plaintiff's work shifts to coincide
with Leone's work shifts; (6) making sexual advances towards
Plaintiff, which included standing close to him, staring at him,
and singing love songs to him; (7) requesting that Plaintiff
accompany Leone to parties; (8) repeatedly commenting about
Plaintiff's appearance and how attractive Plaintiff was; (9)
becoming increasingly angry and abusive after Plaintiff showed a
lack of interest in Leone's weight loss; and (10) following
Plaintiff around the store if Plaintiff attempted to avoid
Leone's advances. See id. at ¶ 19. Plaintiff alleges that after
he refused Leone's advances, Leone became "abusive and hostile
towards [him]" and demeaned Plaintiff by: (1) demanding that
Plaintiff vacuum the floors and polish all the silverware in the
store; (2) threatening to "kick Plaintiff's ass"; (3) repeatedly
threatening to fire him; (4) telling other employees that
Plaintiff was not performing well and that he would fire
Plaintiff if management permitted him to do so; (5) calling
Plaintiff a "dirtbag" and changing his computer password to
"dirt"; (6) repeatedly demanding that Plaintiff perform menial
tasks and threatening to fire him if he refused; and (7) berating
and humiliating Plaintiff in front of customers without cause.
See id. at ¶ 21. Plaintiff alleges that his complaints to
management at the Rotterdam Square Mall regarding Leone's actions
were unanswered, thereby "creating a hostile working environment
condoned by [D]efendant Things Remembered," id. at 20, which
intimidated plaintiff and made him fearful of losing his job,
see id. at ¶ 22. Plaintiff ultimately left his position on May
11, 1997, asserting a claim of constructive discharge, which is
the basis for Plaintiff's hostile work environment claim. See
id. at ¶ 14. On February 12, 1999, Plaintiff received a
Right-To-Sue Letter*fn3 and timely filed his federal Complaint
on May 3, 1999. Defendant Cole National now moves, pursuant to
FED. R. CIV. P. 12(b)(6) or, in the alternative, FED. R. CIV. P.
56, to dismiss all claims alleged against Cole National d/b/a
Things Remembered in the Amended Complaint.*fn4
A. The Standard for Summary Judgment
The standard for summary judgment is well-settled. Under FED.
R. CIV. P. 56(c), if
there is no genuine issue as to any material fact, the moving
party is entitled to a judgment as a matter of law "[w]here the
record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party." Matsushita Electrical Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); see also Chertkova v. Connecticut Gen. Life
Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). The moving party bears
the initial burden of "informing the . . . court of the basis for
its motion, and identifying those portions of `the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any,' which it believes demonstrate
the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986) (quoting FED. R. CIV. P. 56(c)). The initial burden is to
demonstrate "that there is an absence of evidence to support the
nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden, the non-moving party
must come forward with specific facts showing that there is a
genuine issue for trial. See Celotex Corp., 477 U.S. at 322,
106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348.
A dispute regarding a material fact is genuine if a reasonable
jury could return a verdict for the non-moving party; that is,
whether the non-movant's case, if proved at trial, would be
sufficient to survive a motion for judgment as a matter of law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reasonable minds,
however, could not differ as to the import of the evidence, then
summary judgment is proper. See Bryant v. Maffucci,
923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152,
116 L.Ed.2d 117 (1991).
Although the trial court must resolve all ambiguities and draw
all inferences in favor of that party against whom summary
judgment is sought, Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New
York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied,
484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be
defeated by a non-movant who raises merely a "metaphysical doubt"
concerning the facts or who only offers conjecture or surmise.
Delaware & Hudson Railway Co. v. Consolidated Rail Corp.,
902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111
S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475
U.S. at 586, 106 S.Ct. 1348); see also Western World Ins. Co. v.
Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the
non-moving party's opposition may not rest on mere allegations or
denials of the moving party's pleading, but "must set forth
specific facts showing that there is a genuine issue for trial."
FED. R. CIV. P. 56(e).
Although the Court is mindful that "summary judgment is
ordinarily inappropriate where an individual's intent and state
of mind are implicated," Meiri v. Dacon, 759 F.2d 989, 998 (2d
Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74
(1985), it is clear that "conclusory allegations of [sexual
harassment] are insufficient to satisfy the requirements of ...