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April 10, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Plaintiff Michele Shepard brings this case against her former employer, Frontier Communications Services, Inc. ("Frontier") and her former supervisor, Michael Zufall, alleging sexual harassment and retaliatory termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the United States and New York State Constitutions, § 40-c of the New York Civil Rights Law and the New York Executive Law, § 296, et seq. Defendants now move under Federal Rule of Civil Procedure 56 for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted in full.


I. Frontier

Frontier provides integrated communications, including Internet, long distance, local telephone, data, and conferencing, to business customers nationwide. (Defs.Rule 56.1 Stmt. ¶ 1.) While the sales department actually sells the services, numerous departments provide sales support. The client services department is responsible for supporting accounts and approving initial orders. (Id. at ¶ 4.) The engineering department confirms the technical feasibility of orders. (Id. at ¶ 5.) The credit department ensures that a new client has good credit and the provisioning department actually implements the orders. (Id. at ¶ 6.)

Within the sales department, Frontier has two types of General Managers, National Accounts Key Accounts ("NAKA"), and Business. (Id. at ¶ 7.) Frontier hired Michele Shepard as NAKA General Manager in November 1996. (Id. at ¶ 8.) Shepard received a salary and monthly commissions based on estimated revenues out of the Shelton, Connecticut and Elmsford, New York Frontier offices. (Id. at ¶¶ 8-9.) Shepard managed the customer accounts of Frontier's Shelton and Elmsford offices. She essentially co-managed these offices with the General Manager of Business of the Shelton Office, David Gordon, with whom she also lived and had a personal relationship. (Id. at ¶ 11.) Shepard supervised a staff of five or six sales professionals. (Id. at ¶ 13.) Shepard reported to Daniel Boynton, Vice President of Sales for New England, who worked out of the Woburn, Massachusetts office. (Id. at ¶¶ 14-15.) Boynton reported to defendant Michael Zufall, the President of Frontier's Northeast Region. (Id. at ¶ 16.)

Account representatives at Frontier report to General Managers and are responsible for the sale of services. (Id. at ¶ 17.) When account representatives sell services, they complete a sales order called a "Dedicated Service Order" ("DSO"). (Id. at ¶ 18.) Clients commit on a DSO to a monetary amount known as a Monthly Usage Commitment ("MUC"). (Id. at ¶ 19.) Based upon the MUC amount, the account representatives calculate the estimated monthly revenue for each order. (Id. at ¶ 21.)

According to defendants, Shepard was responsible for reviewing the DSO and the former carrier bills provided by a new client in order to ensure the client's credit-worthiness. (Id. at ¶¶ 22-23.) Plaintiff asserts that contrary to defendants' statements, plaintiff did not approve DSO's. Plaintiff states that new sales orders are not the responsibility of client services. According to defendants, after Shepard approved the order, the DSO and accompanying paperwork were forwarded to client services and the engineering department for review and approval. (Id. at ¶ 24.) Upon approval by these departments, a billing account was created. (Id. at ¶ 25.) The order for services remained in a pending status until the credit department reviewed and approved the new client's credit history. (Id. at ¶ 26.) The provisioning department coordinated implementation of the services. (Id. at ¶ 26.)

II. Plaintiff's Allegations of Sexual Harassment

Plaintiff asserts that she was required to attend lunch on company time with Zufall and two other female managers. (Am. Complt. ¶ 15.) On one occasion, in the car on the way to the luncheon, plaintiff states, Zufall "allowed, encouraged and permitted one of the female employees, Rachel Garifo, to grab his leg, put her hands in his lap, and various other overtures." (Id. at ¶ 16.) Plaintiff states that this action made her uncomfortable. (Defs.Rule 56.1 Stmt. ¶ 43.) The tone of the conversation between Garifo and Zufall was not sexual in nature. (Id. at ¶ 44.) It was Garifo's idea to touch Zufall's leg, and despite plaintiffs assertions in the Amended Complaint that Zufall encouraged this conduct, plaintiff testified that Zufall did nothing to encourage Garifo except laugh after his leg was touched. (Pl.Dep. at 102-03, 107.) Immediately after returning to the office from the luncheon, plaintiff reported the leg-touching incident to her supervisor, Boynton. (Id. at 112-13.)

Plaintiff further alleges that Zufall required plaintiff and other employees to drive him to branch offices and accompany him to lunch or dinner. Although plaintiff asserts in her response to Defendants' Rule 56.1 Statement that "[i]t is well accepted that only woman [sic] accompanied Zufall to the offices," she puts forth no evidence to support this statement. Because "mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment," plaintiff's unsupported allegations about Zufall's conduct cannot create a material issue of fact. Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

Plaintiff also alleges, and defendants admit, that on numerous occasions Zufall addressed plaintiff as "princess" and "queen." (Complt. ¶ 18(c); Defs.Rule 56.1 Stmt. ¶ 53.) Plaintiff has testified that she viewed these nicknames as "sexist" rather than "sexual." (Pl.Dep. at 192.) On February 4, 1997, after Zufall asked Shepard to attend a business dinner and Shepard refused, Zufall remarked, "I'm not good enough to go to dinner with." (Defs. Rule 56.1 Stmt. ¶ 56.) On March 18, 1997, after she failed to return his telephone call, plaintiff received an e-mail from Zufall stating "my usefulness must be at an end because you don't even call me back when I call you any more." (Id. at ¶ 58.) Plaintiff reported Zufall's e-mail to Boynton. (Id. at ¶ 61.) Plaintiff has testified that she did not perceive Zufall's e-mail as being sexual in nature. (Pl.Dep. at 185.) Later in March 1997, Shepard again refused Zufall's invitation to a business luncheon. (Defs.Rule 56.1 Stmt. ¶¶ 62-63.) Plaintiff believed that Zufall grew angry when she refused his invitation. (Complt. ¶ 18(i).)

Plaintiff testified during her deposition that Zufall never communicated a desire to date or become involved sexually with plaintiff, nor did Zufall ever touch her in a sexual way. (Pl.Dep. at 191.)

Plaintiff complained to Boynton about Zufall's conduct on numerous occasions. Plaintiff alleges that Boynton told her that if she were his wife, he would be upset. (Pl.Resp.Defs.Rule 56.1 Stmt.*fn1) In late 1996 or early 1997, Boynton called Human Resources to report Zufall, but at plaintiffs request, Boynton did not mention plaintiffs name. (Defs.Rule 56.1 Stmt. ¶ 70.) Boynton told the human resources representative that the employee had not been touched, propositioned, or spoken to with improper language by Zufall. (Id. at ¶¶ 74-75.) The representative told Boynton that nothing significant had occurred. (Id. at ¶ 76.) Boynton called Human Resources a second time after plaintiff was being investigated for improper business procedures. (Id. at ¶ 77.)

III. Investigation of Plaintiff's Business Practices

In June 1997, Tonya Thompson, an account representative that reported to plaintiff, called Zufall. (Id. at ¶ 80.) Thompson alleged that plaintiff was harassing her and had asked her to perform unethical business procedures. Specifically, Thompson alleged that plaintiff had directed her to delete poor credit information from a prior bill provided by a client so that the order would be approved. (Id. at ¶ 81.) Zufall contacted Leslie Tarnacki, employee relations manager, to report Thompson's complaint. (Id. at ¶ 83.) Tarnacki flew to New York from Michigan in order to investigate the charges against plaintiff. Over the course of a full day, Tarnacki conducted an investigation into plaintiff's business activities by interviewing about ten employees. (Id. at ¶ 86.)

Tarnacki's investigation revealed that a number of DSO's under plaintiffs control were improperly altered at her behest and plaintiff had ordered account representatives to exaggerate estimated monthly revenues. (Id. at ¶¶ 90-91.) In addition, Tarnacki learned that plaintiff had misrepresented a client's credit-worthiness in order to obtain approval for a new account. (Id. at ¶ 94.)

In another incident, an existing client requested that calling cards be sent to them within twenty-four hours. (Id. at ¶ 100.) According to Tarnacki's investigation, the order was almost complete when plaintiff had the order pulled in order to create a new account with all new paperwork so she could receive monetary compensation for the additional revenue. (Id. at ¶ 101.) Account representatives also told Tarnacki that plaintiff insisted that they "cut and paste" documents. (Id. at ¶ 104.) Thompson alleged that Shepard directed her to remove an overdue balance from a client's previous bill and move the amount to current charges so that the client would have a better credit rating. (Id. at ¶ 107.) Distraught over plaintiff's alleged unethical business practices, Thompson called Zufall to offer her resignation. (Id. at ¶ 110.)

Tarnacki also discovered that plaintiff had arranged to have two of her relatives hired and assigned to work for Gordon. (Id. at ¶ 111.) This was a violation of Frontier's anti-nepotism policy. (Id.)

After Tarnacki completed her interviews, she and Zufall tentatively decided that Shepard and Gordon should be dismissed. On or about June 23, 1997, Boynton, Tarnacki and Zufall made the final decision to dismiss Shepard and Gordon. (Id. at ¶ 119.)

In response, plaintiff argues that the investigation was improper and biased, but does not deny the allegations of her improper business activity. Plaintiff asserts that "those individuals [that Zufall] chose to be interviewed all had serious personal conflicts with plaintiff." (Pl.Am. Mem. at 22.) Specifically, plaintiff alleges that there was tension between NAKA and General Business. (Id. at 18.) Plaintiff also alleges that Thompson had a drinking problem, was in therapy, and had been reprimanded by plaintiff for her failure to keep appointments. (Pl.Dep. at 300-03.) Zufall testified that he heard accusations that Thompson had a drinking problem and reported it to human resources. (Zufall Dep. at 86-87.) Although other employees, including Thompson, were involved in plaintiffs alleged unethical business practices, only plaintiff was investigated. Further, plaintiff argues that it was Gordon, not plaintiff, who hired her relatives.

IV. Frontier's Sexual Harassment Policy

In 1995, Frontier issued a comprehensive policy to protect its employees from unlawful sexual harassment, discrimination and retaliation. (Defs.Rule 56.1 Stmt. ¶ 28.) The policy outlined the procedure for reporting a complaint of harassment. (Id. at ¶ 29.) Defendants assert that every employee received a copy of Frontier's Personnel Policies and Practices Manual, which included the sexual harassment policy. (Id. at ¶ 30.) Plaintiff argues that she never received a copy of the sexual harassment policy. (Pl.Resp.Defs.Rule 56.1 Stmt.) However, plaintiff testified that the manual sat on her bookshelf during her employment with Frontier. (Pl. Dep. at 231.) Defendants also assert that in March 1997, every Frontier employee received the Human Resources Bulletin outlining an updated sexual harassment policy. (Defs.Rule 56.1 Stmt. ¶ 31.) It is undisputed that plaintiff did not review nor was she aware of the existence of the sexual harassment policy. (Defs.Rule 56.1 Stmt. ¶ 37.) Plaintiff did review the manual for other purposes. (Id. at ¶ 38.)

Further, defendants assert that Frontier conducted periodic training on sexual harassment for supervisors, and as a General Manager, plaintiff was responsible for following and enforcing the policies. (Id. at ¶¶ 33, 35.) However, plaintiff testified that she was not trained with regard to the sexual harassment policy at Frontier. (Pl. Dep. at 233.) Gordon also testified that although he received training on Frontier's sexual harassment policy when he was first hired and was aware that there was a human resources bulletin on sexual harassment, he never received a manual. (Gordon Dep. at 108-09, 152.)

V. The Amended Complaint

Plaintiffs "First Claim" is that "defendants violated plaintiffs rights as guaranteed her by reason of Title VII of the Civil Rights Act of 1964." (Am.Complt. ¶ 28.) This Court will interpret that claim as a sexual harassment claim. Plaintiff's "Second Claim" states that "[u]nder the premise and by defendants' retaliatory conduct, plaintiffs rights as guaranteed her by reason of Title VII of the Civil Rights Act of 1964 have been violated." (Id. at ¶ 30.) Plaintiffs "Third Claim" alleges that "[u]nder the premise, the plaintiff's United States Constitutional Rights have been violated." (Id. at ¶ 32.) Plaintiff's "Fourth Claim" states "[u]nder the premise, the plaintiffs New York State Constitutional Rights have been violated." (Id. at ¶ 34.) Plaintiffs "Fifth Claim" alleges that "defendants' conduct has violated plaintiffs rights pursuant to Section 40-c of the New York State Civil Rights Law and Section 296 et seq. of the New York Executive Law." (Id. at ¶ 35.)


I. Summary Judgment Standard

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. ...

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