United States District Court, Northern District of New York
July 31, 2000
JILL L. HASBROUCK, PLAINTIFF,
BANKAMERICA HOUSING SERVICES, INC. A DIVISION OF BANK OF AMERICA FSB AND PHIL TULLGREN, DEFENDANTS.
The opinion of the court was delivered by: McCURN, Senior District Judge.
MEMORANDUM-DECISION AND ORDER INTRODUCTION
Presently before the Court are defendants Bank America ("BA")
and Phil Tullgren's motions for summary judgment. Plaintiff
opposes the motions.
Plaintiff brings suit against defendants pursuant to
42 U.S.C. § 2000e et seq. (Title VII), and New York Executive Law ("HRL")
alleging sexual harassment and discrimination.*fn1 She seeks to
hold defendants liable for offensive behavior purportedly
committed by Tullgren throughout the entire time she was employed
at BA, from late 1994 through 1997, and for her discharge in
1997. The following facts are taken in the light most favorable
In October of 1994, plaintiff was hired as a remarketing
manager of repossessed trailer homes, in BA's Albany, New York
office. She was promoted in early 1995, and given the additional
duties of collection manager. In late 1995, she was again
promoted, this time to be group operations and customer service
manager. In April of 1997, she accepted a transfer to an account
executive position, basically a sales person, with an incentive
compensation plan. Plaintiff claims that this position was a
demotion, but that she took the position to physically get out of
the office and away from her supervisor, Tullgren. In June of
1997, two of plaintiff's accounts were taken away, allegedly as a
result of Tullgren's harassment.*fn3 In late June of 1997,
plaintiff was discharged, allegedly under the pretext of
corporate downsizing. She was the only account executive
discharged; she claims the male account executive retained was
less qualified, and that she was discharged for discriminatory
reasons, including rebuffing Tullgren's harassment.
For the entire time plaintiff was employed by BA, Tullgren was
her immediate supervisor. Plaintiff claims that during this two
and a half year period, Tullgren subjected her to constant and
continuous sexual harassment. This harassment is detailed in
plaintiff's affidavit in opposition and EEOC affidavit. BA and
Tullgren deny that any harassment took place, or that it was
sufficient to state a cause of action for hostile work
The alleged harassment by Tullgren consisted of the following:
a) statements that plaintiff "needed to do whatever
it takes to get the business;"
b) statements that "middle aged women do not
c) requests for plaintiff to wear "short-shorts" or
d) pressure to dress inappropriately, "dress risque"
and act "seductively" in order to obtain business;
e) a request that plaintiff work her magic and act
and dress seductively during the visit of a corporate
f) remarking to plaintiff that he was sure everyone
thought they were sleeping together;
g) his questions regarding her sex life, and
statements that it was his right to know who she was
h) a request to show him her bra; and statement that
to advance, she needed to "show more tit;"
i) informing plaintiff it turned him on when she wore
her hair up;
j) telling another female coworker that "Jill must be
a fantastic fuck;"
k) offensively touching her on a business trip,
including grabbing her and dragging her to a bar,
forcing her to dance with him after she refused,
trying to feel her breast(s) on the dance floor, and
throwing himself across her lap (and other employees,
in a car);
l) swearing at her one time when she refused to go
drinking with him;
m) stroking and fondling her hair; and
n) ordering her to accompany male clients to topless
See Pl.'s Aff. at ¶ 10; EEOC Aff. at ¶¶ 6-8.
From the moment she began at BA, however, plaintiff was
thoroughly familiar with BA's policy against harassment in the
workplace, and several avenues of complaint available to
employees.*fn4 Despite her allegedly ongoing harassment,
plaintiff never complained about her job to anyone — until she
became angry with BA for reassigning one of her accounts to
another account executive, in April of 1997.*fn5 When she called
human resources about her account being taken away, plaintiff
claims she complained of Tullgren's harassment.
Though plaintiff was specifically instructed to put her
complaint in writing, and told the complaint would be
investigated confidentially, she never did so. She admits that
other than the phone call described above, she never reported any
sexual harassment to any BA manager, other than complaining to
Tullgren himself.*fn6 See Pl.'s Dep. at 107-08. Indeed, when
she tried to enlist another female employee of BA to help her
build a case of sexual harassment, that employee recommended
plaintiff complain to BA's human resources office, but plaintiff
told her she would not.
Plaintiff claims that two other accounts were taken from her in
June of 1997, and shortly thereafter, she was fired. She claims
that BA's downsizing decision was pretext for discrimination. She
also now claims, for the first time, that the two accounts taken
from her in June and her discharge were illegal retaliation for
her attempt to complain about Tullgren.*fn7
Finally, plaintiff comes forward, at most, with proof that she
sought to mitigate her damages by seeking a job for three months
after she was fired by BA. She then took a job with another bank,
which she voluntarily left in June of 1998. She has come forward
with no proof, however, that she has sought out alternate
employment since that time period. It is thus clear that at least
since June of 1998, plaintiff has failed to mitigate her damages.
Defendants now move for summary judgment. BA primarily contends
that plaintiff's hostile work environment claim is barred by the
new affirmative defense created by the Supreme Court in
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct.
2257, 141 L.Ed.2d 633 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275,
141 L.Ed.2d 662 (1998). BA alternatively contends that
plaintiff's hostile work environment claim fails because the
conduct alleged was not sufficiently severe and pervasive. Last,
BA argues that plaintiff failed to mitigate her damages, and is
consequently barred from seeking front and back pay.
Tullgren contends that he is not a proper defendant in either a
Title VII or HRL claim. He also agrees with BA that plaintiff's
allegations of harassment, if true, are not sufficient to state a
hostile work environment claim. These arguments are discussed
The principles that govern summary judgment are well
established. Summary judgment is properly granted only when
"there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). When considering a motion for summary
judgment, the court must draw all factual inferences and resolve
all ambiguities in favor of the non-moving party. See Torres v.
Pisano, 116 F.3d 625, 630 (2d Cir. 1997). As the Circuit has
recently emphasized in the employment discrimination context,
"summary judgment may not be granted simply because the court
believes that the plaintiff will be unable to meet his or her
burden of persuasion at trial." Danzer v. Norden Sys., Inc.,
151 F.3d 50, 54 (2d Cir. 1998). Rather, there must be either an
absence of evidence that supports plaintiff's position, see
Norton v. Sam's Club, 145 F.3d 114, 117-20 (2d Cir. 1998), "or
the evidence must be so overwhelmingly titled in one direction
that any contrary finding would constitute clear error."
Danzer, 151 F.3d at 54. With these principles in mind, the
court turns to defendants' motions.
A. Applicability of the Affirmative Defense Under
In contrast to allegations of harassment by co-workers or
customers, employers are subject to vicarious liability "for an
actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee."
Faragher, 524 U.S. at 807, 118 S.Ct. 2275
; accord Richardson
v. New York State Dep't of Corr. Servs., 180 F.3d 426
, 441 (2d
Cir. 1999); Leopold v. Baccarat, Inc., 174 F.3d 261
, 268 n. 5
(2d Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759
767 (2d Cir. 1998). The employer's strict liability for the acts
of its supervisor may be avoided, however, in cases where the
supervisor's harassment did not result in a tangible employment
action taken against the plaintiff-employee. See Faragher, 524
U.S. at 807, 118 S.Ct. 2275
; Caridad v. Metro-North Commuter
R.R., 191 F.3d 283
, 294 (2d Cir. 1999), cert. denied, ___ U.S.
___, 120 S.Ct. 1959, 146 L.Ed.2d 791 (2000); Leopold, 174 F.3d
at 268 n. 5. In Faragher and Burlington, the Supreme Court
set forth the contours of the affirmative defense that an
employer may raise in cases where an employee seeks to hold his
or her employer strictly liable for the acts of the employee's
When no tangible employment action is taken, a
defending employer may raise an affirmative defense
to liability or damages, subject to proof by a
preponderance of the evidence. The defense comprises
two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b)
that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective
opportunities provided by the employer or to avoid
Faragher, 524 U.S. at 808, 118 S.Ct. 2275
; Burlington, 524
U.S. at 765, 118 S.Ct. 2257
As the Supreme Court has emphasized, however, "[n]o affirmative
defense is available  when the supervisor's harassment
culminates in a tangible employment action."
Faragher, 524 U.S. at 808, 118 S.Ct. 2275. Thus, in cases such
as the one presented here, the court must determine at the outset
whether the supervisor's conduct constitutes a tangible
employment action. It is this initial aspect of the defense which
proves fatal to BA's arguments.
As a general rule, a tangible employment action will typically
occur in cases where the supervisor, "acting with the authority
of the company," makes an employment decision that "inflicts
direct economic harm" on the employee. Burlington, 524 U.S. at
762, 118 S.Ct. 2257 (emphasis supplied).
Such tangible employment action includes, inter alia, "a
significant change in [the plaintiff-employee's] employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits." Id. at 761, 118
Based on these factors, the court has little hesitation finding
that Tullgren's removal of two of plaintiff's accounts in June of
1997 would constitute tangible employment action, if true.
Plaintiff's allegations of same, in her complaint, EEOC charge,
and diary*fn8 were ignored by BA in making its initial motion
and arguments. In BA's reply memorandum of law, it summarily
dismisses this issue in less than a single paragraph, despite
plaintiff's allegations in her affidavit in opposition, and
arguments in her memorandum of law. See BA's Reply Mem. of Law
at 7. BA spent voluminous effort showing that the account taken
in April of 1997 was the result of a decision by corporate-higher
ups, breaking Tullgren's link to tangible employment action as to
that account. None of the affidavits BA presented as to the April
account, however, discussed the June accounts. Thus, plaintiff's
allegations as to the June accounts are not just an issue of
fact, but remain unrefuted.
BA's own witnesses testified that plaintiff's position as an
account executive was "typically a much-sought-after job because
it presented greater potential for financial rewards (i.e.,
bonuses and company car allowance)[.]" Stalcup Aff. at ¶ 6.
Accord Turman Aff. at ¶ 5 ("a position . . . which held greater
prospects for financial rewards than her prior position"). As
sales positions had greater financial rewards because of either a
bonus or commission structure, the loss of plaintiff's June
accounts could have had a very real tangible effect on her
earnings. This is exactly the type of tangible employment action
envisioned by the Supreme Court as an exception to the
affirmative defense, as Tullgren may have "inflicted direct
economic harm" upon plaintiff. Burlington, 524 U.S. at 762, 118
S.Ct. 2257. The affirmative defense BA seeks, consequently, is
inappropriate at this juncture.
B. Actionable Hostile Work Environment*fn9
In Harris v. Forklift Systems, 510 U.S. 17, 21-22, 114 S.Ct.
367, 126 L.Ed.2d 295 (1993), the Supreme Court stated that in
order to succeed, a hostile work environment claim must allege
conduct which is so "severe or pervasive" as to create an
"`objectively' hostile or abusive work environment," which the
victim also "subjectively perceive[s] . . . to be abusive."
Richardson, 180 F.3d at 436 (alteration in original) (quoting
Harris, 510 U.S. at 21-22, 114 S.Ct. 367). From this court's
review of the record, there is no dispute that plaintiff viewed
her environment to be hostile and abusive; hence, the question
before the court is whether the environment was "objectively"
hostile. See id. Plaintiff's "allegations should thus be
evaluated to determine whether a reasonable person who is
the target of discrimination would find the working conditions so
severe and pervasive as to alter the terms and conditions of
employment for the worse."*fn10 Id. (citing Harris, 510 U.S.
at 21, 114 S.Ct. 367).
Conduct that is "merely offensive" and "not severe or pervasive
enough to create an objectively hostile or abusive work
environment — an environment that a reasonable person would find
hostile or abusive — is beyond Title VII's purview." Harris,
510 U.S. at 21, 114 S.Ct. 367. Moreover, a plaintiff alleging
sexual harassment must show the hostility was based on membership
in a protected class. See Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 77, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
Thus, to succeed on a claim of sexual harassment, a plaintiff
"must always prove that the conduct at issue was not merely
tinged with offensive sexual connotations, but actually
constituted discrimina[tion] . . . because of . . . sex." Id.
at 81, 118 S.Ct. 998 (alteration and ellipses in original).
The Supreme Court has established a non-exclusive list of
factors relevant to determining whether a given workplace is
permeated with discrimination so severe or pervasive as to
support a Title VII claim. See Harris, 510 U.S. at 23, 114
S.Ct. 367. These include: (1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether the conduct was physically
threatening or humiliating; (4) whether the conduct unreasonably
interfered with plaintiffs work; and (5) what psychological harm,
if any, resulted from the conduct. See id.; Richardson, 180
F.3d at 437.
Defendants claim that the conduct of which plaintiff complains,
if true, "although admittedly unbecoming, fall[s] far below the
`severity' threshold established by the courts." BA's Mem. of Law
Having considered BA's voluminous brief, the court agrees that
it is a close call as to whether plaintiff has alleged conduct
sufficiently severe or pervasive to make out a claim under Title
VII or the HRL. Nonetheless, as noted in Richardson, "[t]here
is neither a threshold `magic number' of harassing incidents that
gives rise, without more, to liability as a matter of law, nor a
number of incidents below which a plaintiff fails as a matter of
law to state a claim." 180 F.3d at 439 (quoting Rodgers v.
Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993)
and citing Harris, 510 U.S. at 22, 114 S.Ct. 367 (hostile work
environment analysis "is not, and by its nature cannot be, a
mathematically precise test")).
Considering just conduct that is timely*fn11 for purposes of
federal liability, plaintiff's allegations may state a claim for
hostile work environment. This includes statements by Tullgren
repeated every week over a two and a half year period that
plaintiff "will have to do what it takes to get the
business"*fn12 and that middle aged
women do not understand men; often exhorting plaintiff to dress
seductively or wear sexy clothes, in order to get business;
commenting to her that he was sure people thought they were
sleeping together; demanding information about her sex life on
multiple occasions;*fn13 trying to feel her breast or breasts,
forcing her to dance, dragging her into a bar, telling her to
"show me your bra," as to advance in the company she must "show
more tit," all on a business trip;*fn14 fondling plaintiff's
hair while she was working; a statement that "it turns me on when
you wear your hair up;" and finally, telling Reardon that "Jill
must be a fantastic fuck."
Under the Harris list of factors, relevant to determining
whether harassment is severe and pervasive, (1) some of the
conduct is allegedly repeated on a weekly basis for two and a
half years; some conduct occurred less often, but has more severe
impact; (2) some of the conduct was arguably severe, such as
trying to touch her breast(s), taking her accounts, or possibly
participating in the decision to fire her; (3) some of the
conduct could be construed as physically threatening, like trying
to touch her breasts, and physically dragging her into a bar and
onto a dance floor; and (4) plaintiff claims that the harassment
affected her work, as she took the account executive position, a
demotion, to get away from Tullgren, and started writing a diary
of the harassment, in part, to manage stress.*fn15 When the
conduct alleged by plaintiff is combined and "considered
cumulatively," Richardson, 180 F.3d at 437, the court concludes
that summary judgment on the hostile work environment claims is
not warranted, as reasonable jurors might disagree as to whether
the conduct alleged is sufficiently severe and pervasive.
C. Tullgren's Motion as to Title VII
Tullgren moves for summary judgment on the Title VII claim,
arguing that he is not a proper defendant. Though the law is
quite clear in the Second Circuit, see Tomka v. Seiler Corp.,
66 F.3d 1295, 1314 (2d Cir. 1995), abrogated on other grounds by
Burlington, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633,
plaintiff argues, fruitlessly, that such individual liability can
be had. See Pl.'s Mem. of Law in Opp'n to Tullgren at 1 (citing
Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (6th Cir.
1992)). This is not the rule in the Second Circuit, and to the
extent that plaintiff argues the Second Circuit is in error, her
quarrel is with the Second Circuit or the Supreme Court-not this
court. Even if this court did believe the Second Circuit was in
error, it would be bound to follow such a holding. See S & R Co.
of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir.
1998) ("A decision of a panel of this Court is binding unless and
until it is overruled by the Court en banc or by the Supreme
Court") (quoting Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.
1995)); Ithaca College v. N.L.R.B., 623 F.2d 224, 228 (2d
Cir. 1980) (Second Circuit decisions are binding on all inferior
courts in this Circuit, despite a court's disagreement).
Plaintiff's claim against Tullgren under Title VII is
D. Tullgren's Motion as to the HRL
Tullgren next argues that the HRL claim against him should be
dismissed because he did not have an ownership interest in BA, or
the authority to fire plaintiff. In Patrowich v. Chemical Bank,
63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984), the
New York Court of Appeals held than an employee may not be sued
individually under the HRL "if he is not shown to have any
ownership interest or any power to do more than carry out
personnel decisions made by others." Id. Accord Tomka, 66 F.3d
at 1317. Though no evidence shows that Tullgren had the authority
to fire plaintiff, or that he had an ownership interest in BA,
questions remain as to whether he had the authority to do more
than carry out personnel decisions of others; indeed, the facts
in this case indicate that he may have taken two accounts from
plaintiff in June of 1997, potentially inflicting economic harm.
Thus, Tullgren remains an appropriate defendant pursuant to
Moreover, he is still a proper defendant under § 296(6) of the
HRL, which states that it is unlawful discriminatory practice
"for any person to aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under this article, or attempt to do
so." N.Y. Exec. Law § 296(6). In interpreting this section of the
statute, the Second Circuit in Tomka distinguished Patrowich
and found that "a defendant who actually participates in the
conduct giving rise to a discrimination claim may be held
personally liable under the HRL." Tomka, 66 F.3d at 1317. The
Appellate Division, First Department, has adopted this
interpretation as well. See Steadman v. Sinclair, 223 A.D.2d 392,
393, 636 N.Y.S.2d 325 (1st Dep't 1996); Peck v. Sony Music
Corp., 221 A.D.2d 157, 158, 632 N.Y.S.2d 963 (1st Dep't
1995).*fn16 Tullgren's motion under the HRL, consequently, is
C. Plaintiff's Failure to Mitigate Her Damages
Finally, BA argues that plaintiff has failed to mitigate her
damages, making summary judgment appropriate on the issues of
front and back pay. Like victims of any tort or breach of
contract, "[v]ictims of employment discrimination are required to
mitigate their damages." Greenway v. Buffalo Hilton Hotel,
143 F.3d 47, 53 (2d Cir. 1998). Accord Clarke v. Frank,
960 F.2d 1146, 1152 (2d Cir. 1992). The "plaintiff in a Title VII case
must attempt to mitigate her damages by using `reasonable
diligence in finding other suitable employment.'" Dailey v.
Societe Generale, 108 F.3d 451, 455 (2d Cir. 1997) (quoting
Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 73
L.Ed.2d 721 (1982)). Accord 42 U.S.C. § 2000e-5(g)(1). A
"plaintiff . . . can not merely look through want ads . . . or
spend an insufficient amount of time and effort looking for work.
A plaintiff must demonstrate that [she] made and is making an
effort that is reasonably calculated to find" a job. Reilly v.
Cisneros, 835 F. Supp. 96, 100 (W.D.N.Y. 1993) aff'd,
44 F.3d 140 (2d Cir. 1995) (citations omitted) (emphasis supplied). The
employer usually has the burden of demonstrating that suitable
work existed for the
plaintiff, and that this former employee failed to use reasonable
effort to find it. See Dailey, 108 F.3d at 456; Clarke, 960
F.2d at 1152. However, "[A]n employer should not be saddled by a
requirement that it show other suitable employment in fact
existed . . . when the employee, who is capable of finding
replacement work, failed to pursue employment at all."
Greenway, 143 F.3d at 54 (emphasis in original) (citing Weaver
v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991) and
Sellers v. Delgado College, 902 F.2d 1189 (5th Cir. 1990)).
In this case, the BA argues that plaintiff has failed to
mitigate her damages at all. It also submits the report of a
vocational expert detailing the number and types of jobs for
which plaintiff was and is qualified. See Rose Aff. Ex. 9.
Despite this evidence, plaintiff comes forward with a
half-hearted argument that she did mitigate her damages, but only
between the time she was fired through June of 1998, more than
two years ago, when she voluntarily resigned from another bank
position. See Pl.'s Aff. at ¶ 19; Pl.'s Mem. of Law at 27. She
attempts to distinguish the case law cited by BA by stating that
her "attempts [at employment] have been anything but apathetic."
Pl.'s Mem. of Law at 27. This may be true as to the period before
June of 1998,*fn17 yet it is undisputed that since then, she has
completely failed to mitigate her damages. Accordingly, summary
judgment is appropriate as to plaintiff's entitlement to front
and back pay after June of 1998.
For the aforementioned reasons, it is hereby:
ORDERED that BA's motion for summary judgment on
plaintiff's hostile work environment claims is
DENIED; and it is further
ORDERED that Tullgren's motion for summary judgment
as to his liability under Title VII is GRANTED; and
it is further
ORDERED that Tullgren's motion for summary judgment
as to his liability under the HRL is DENIED; and it
ORDERED that BA's motion for summary judgment on the
issues of front and back pay is GRANTED as to damages
after June of 1998, and DENIED as to damages prior to
June of 1998; and it is further
ORDERED that this matter will be set down for trial
at a time convenient to the court; the parties will
be notified of the date.
IT IS SO ORDERED.