The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiff Katrina Dyke brings the instant action against
Defendant Greg McCleave d/b/a Guaranteed Integrity, alleging
sexual harassment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq . . Plaintiff also
asserts pendent state law claims under N.Y.EXEC. LAW § 290 et
seq. and for intentional infliction of emotional distress.
Plaintiff seeks declaratory and injunctive relief, monetary
damages, and attorney's fees. Defendant asserts a counterclaim
for attorney's fees and costs in the sum of $12,000.00, pursuant
to FED.R.CIV.P. 11. Presently before the Court is Defendant's
motion for summary judgment pursuant to FED.R.CIV.P. 56.
Because this is a motion for summary judgment by the defendant,
the following facts are presented in the light most favorable to
the plaintiff. See Brennan v. Metropolitan Opera Ass'n, Inc.,
192 F.3d 310, 316 (2d Cir. 1999); Ertman v. United States,
165 F.3d 204, 206 (2d Cir. 1999).
Plaintiff, a female, was hired by Defendant in June 1996 as a
telemarketer and messenger in Defendant's Ogdensburg, New York
office. Defendant's telemarketing business solicits funds for
fire departments, police departments, and other organizations
located throughout upstate New York. Defendant retained
eighty-percent of the funds collected, and remitted the remaining
twenty-percent to the sponsor organization. Ron Furman was
employed as the manager of Defendant's Ogdensburg office and,
thus, functioned as Plaintiff's direct supervisor. Furman oversaw
the operations of the Ogdensburg office, made all personnel
decisions (e.g., hiring, firing, hourly rates, and work
schedules), and directly interacted with Defendant's clients. In
sum, he was in control of all facets of the Ogdensburg office's
See Deposition of Greg McCleave ("McCleave Dep."), at 30-35.
Furman held himself out as a representative of Guaranteed
Integrity, the name under which Defendant McCleave maintains his
business. See id. at 35. During Plaintiff's employment at
Defendant's Ogdensburg office from June 1996 through August 1996,
Plaintiff alleges that Furman frequently used profanity and
referred to her and other female employees in a derogatory,
gender-based manner. Defendant's Ogdensburg office closed in
August 1996 after its fund raising activities ended.
On or about October 7, 1996, Plaintiff was re-hired by the
Defendant as a telemarketer in Defendant's Massena, New York
office.*fn1 The Massena office was also run by Furman, who made
all personnel decisions, set the wages and work schedules, and
collected pledges made in connection with phone solicitations.
Defendant acknowledges that Furman hired and trained all
employees at the Massena office and managed the office's daily
operations. See McCleave Dep., at 46. During her tenure at the
Massena office, Plaintiff's duties expanded to collecting pledges
and functioning as Furman's personal chauffeur.*fn2 Plaintiff
worked four days a week and her salary was based on the greater
of an hourly rate or a commission based on a percent of the
donations she solicited.
During her employment at Defendant's Massena office, Plaintiff
alleges that Furman repeatedly and intentionally sexually
harassed her. Specifically, Plaintiff contends that Furman
referred to her as a "cunt," "slut," "whore," "lesbian," "dyke,"
"pig," "bitch," "mother-fucker," "stupid cunt," and other
gender-based derogatory names. See Dyke Aff. at 12; Deposition
of Katrina Dyke ("Dyke Dep."), at 22; Affidavit of Bonnie Frary
("Frary Aff."), at ¶¶ 3, 6-7; Affidavit of Jolene Boudell
("Boudell Aff."), at ¶¶ 5-6; Compl. at ¶ 16. Although Furman was
not selective in who he addressed with such language — directing
these and other offensive comments at both male and female
employees at the Massena office — Plaintiff was apparently on the
receiving end of the majority of Furman's profanity.*fn3 See
Boudell Aff. at ¶¶ 5-6. Furman admits that he called Plaintiff
these names on a daily basis, and that Plaintiff referred to him
as a "cocksucker" and "faggot." Deposition of Ronald Furman
("Furman Dep."), at 21. Plaintiff, however, denies calling Furman
these names. Furman also admits that Plaintiff purchased alcohol
for him at various times during the work week and that he
consumed the alcohol in a "Mellow Yellow" soda bottle. See id.
at 22. Defendant was aware of Furman's on-the-job drinking and
characterizes Furman as having "a drinking problem." McCleave
EBT, at 48-51. Defendant also admits that Furman had a "temper
observed Furman using foul language with employees under his
control.*fn4 Id. at 52.
Plaintiff's pleas to Furman to cease his behavior towards her
went unanswered and Furman threatened retaliation against
Plaintiff if she chose to "cross him." See Dyke Aff. at ¶ 14.
This retaliation included threats to burn down her parent's home
and a fear of losing her job. See id. Plaintiff was also told
by Furman that it would be futile to inform the Defendant of her
complaints as "[Defendant] was his best friend and that he was
the best man at the [Defendant's] wedding."*fn5 Id. Plaintiff
communicated Furman's threats towards her to Bonnie Frary, her
co-worker. See id. at ¶ 15; Frary Aff. at ¶ 8. Frary's efforts
to remedy the situation by confronting Furman on Plaintiff's
behalf proved unsuccessful, as Furman told Frary to "fuck off.".
See Frary Aff. at ¶ 8. Plaintiff also contends that Defendant
"was fully aware of Furman's behavior and drinking problems, but
took no actions to prevent him from continuing his sexual
harassments and threats to the [P]lainiff and other employees of
the [D]efendant." Compl. at ¶ 24.
On December 7, 1996, prior to the end of Defendant's fund
raising campaign in Massena and Furman's discharge, Furman laid
off Plaintiff. Before leaving, Plaintiff informed Furman that she
planned to file for unemployment for the period she was
unemployed by Defendant.*fn6 Furman allegedly told Plaintiff
that she would lose her job permanently if she filed for
unemployment and that the company would go bankrupt. Furman
proceeded to give Plaintiff the option of taking $200.00 in lieu
of filing for unemployment. If, however, Plaintiff chose to file
for unemployment, Furman promised to make sure that she would
never receive that money and, moreover, would require Plaintiff
to work one hour a day all through the holiday season. Submitting
to Furman's threats, Plaintiff did not file a claim for
unemployment and did not accept the $200.00 payment offered by
Furman. See Dyke Aff. at ¶ 16.
Defendant, however, disclaims any awareness of Furman's actions
towards Plaintiff and the other employees and contends that he
learned of Furman's profanity and drinking during work hours only
after Bonnie Frary, Plaintiff's co-worker, contacted him in
November 1996. See McCleave Aff. at ¶¶ 4-5; McCleave EBT, at
55. Indeed, Defendant claims that he was first made aware of
Plaintiff's claim of sexual harassment only after receiving a
Notice of Charge from the EEOC around May 1997. See McCleave
Aff. at ¶ 10. In response to complaints made by Defendant's
employees regarding Furman's conduct, Defendant fired Furman
around mid-December 1996. See McCleave Dep., at 58. Soon
thereafter, near the end of December 1996, Defendant closed his
Massena telemarketing operations and Plaintiff never returned to
her position at that office. Following the closing of the Massena
office, Plaintiff again began working for the Defendant in his
Watertown, New York office. That office was managed by Tim LaMay.
Plaintiff's tenure, however, lasted for only one day and since
that time Plaintiff has not worked for the Defendant.
A. Treatment of Defendant's Motion
Although Defendant's Notice of Motion seeks dismissal of all of
Plaintiff's causes of action, see Notice of Motion, at 1
(Docket No. 17), Defendant's Memorandum of Law only addresses
Plaintiff's sexual harassment (hostile work environment) claim
under Title VII. See Def.Mem. of Law at 1-8. Accordingly, the
Court's decision is limited to Plaintiff's prima facie sexual
harassment claim under Title VII and N.Y.EXEC.LAW 290 et seq.,
which is analyzed under the same legal standards as those
applicable to Title VII claims. See Reed v. A.W. Lawrence & Co.,
Inc., 95 F.3d 1170, 1177 (2d Cir. 1996); Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996); Tomka v.
The Seiler Corp., 66 F.3d 1295, 1305 n. 4 (2d Cir. 1995).
However, the analysis under federal and state law differ on the
question of employer liability. See Sowemimo v. D.A.O.R. Sec.,
Inc., 43 F. Supp.2d 477, 485 (S.D.N.Y. 1999); Ponticelli v.
Zurich Am. Ins. Group, 16 F. Supp.2d 414, 427-28 (S.D.N.Y. 1998)
("Claims under the HRL are similar to sexual harassment claims
under Title VII and can be examined identically for summary
judgment purposes, `at least as far as determining whether sexual
harassment has taken place.'") (quoting Seepersad v. D.A.O.R.
Sec., Inc., 1998 WL 474205, at *3 (S.D.N.Y. Aug.12, 1998))
("Employer liability under the [New York State Human Rights Law]
differs from [Title VII] . . . in that under the NYSHRL, `an
employer cannot be held liable for an employee's discriminatory
act unless the employer became a party to it by encouraging,
condoning, or approving it.'") (quoting State Div. of Human
Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687,
496 N.Y.S.2d 411, 487 N.E.2d 268 (1985)). The standards set forth by
the Supreme Court in Faragher v. City of Boca Raton,
524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141
L.Ed.2d 633 (1998) for determining employer liability in sexual
harassment cases "applies only to plaintiff's Title VII claim,
for it is not certain whether New York courts will follow the
Supreme Court in establishing employer liability standards for
sexual harassment under the NYSHRL." Seepersad, 1998 WL 474205,
at *4. Notably, the decisions in Faragher and Burlington
Industries were both decided prior to Plaintiff's initiation of
the instant litigation. Because Defendant's Memorandum of Law