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December 29, 1999


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


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

I. Background

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 Cir. 1999).

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

II. Discussion

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 ...

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