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January 14, 2000


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


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.

I. Background

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 operations. 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 problem" and 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.

Plaintiff filed an administrative charge with the EEOC in May 1997. See Compl. at ¶ 6. On or about August 14, 1998, Plaintiff received a Right-To-Sue Letter and timely filed her federal Complaint on October 21, 1998. See id. at ¶ 7. Defendant now moves, pursuant to FED.R.CIV.P. 56, to dismiss all claims alleged in the Complaint.

II. Discussion

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 solely ...

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