The opinion of the court was delivered by: Munson, Senior District Judge.
On June 4, 1999, plaintiff filed a complaint claiming gender
and disability based discrimination. He claims to have been
discharged by defendants because of his gender and a mental
disability. Defendants deny these allegations and seek summary
judgment alleging nondiscriminatory reasons for plaintiffs
termination. Plaintiff opposes the motion. For the following
reasons, the court denies defendants' motion for summary
Plaintiff, William Lee, brings this cause of action under
Title VII, 42 U.S.C. § 2000e et seq., the Americans With
Disabilities Act ("ADA"), 42 U.S.C. § 12117(a), the New York
State Human Rights Law ("HRL") and New York Executive Law § §§
296 et seq., claiming discrimination based upon his gender, a
mental disability and retaliation. Specifically, plaintiff
contends that: (1) defendants unlawfully terminated his
employment because of his gender in violation of Title VII and
the HRL; (2) retaliated against him after he complained about
sexual harassment and sexual discrimination in violation of
Title VII and the HRL; (3) unlawfully terminated him because of
his mental handicap in violation of the ADA and the HRL; and (4)
failed to provide a reasonable accommodation for his handicap in
violation of the ADA and the HRL.
To allay these allegedly discriminatory actions, plaintiff
seeks: (1) declaratory judgment stating that defendants' conduct
violated his civil rights; (2); an award of back pay and other
related monetary benefits; (3) an order of reinstatement with
reasonable accommodations for his disability; (4) retroactive
seniority, retirement and other benefits; (5) a $1,000,000.00
award in compensation for his pain, suffering and humiliation;
(6) an award of $500,000.00 for punitive damages; and (7) costs
and attorney's fees.
Defendants, Charles Glessing and the Palantine Nursing Home,
seek summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure. To support this motion, they allege: (1)
legitimate nondiscriminatory reasons for plaintiffs termination;
(2) that plaintiff was not an employee under Title VII and
cannot maintain a discrimination suit; (3) the conduct alleged
does not constitute sexual harassment; (4) the conduct was not
frequent or severe enough to create a hostile work environment;
and (5) that they lacked the requisite knowledge to be liable
for plaintiffs harassment. The court will address these claims
and defenses seriatim.
Plaintiff is a physical therapist formerly employed by the
Palantine Nursing Home. Plaintiff was continuously employed from
May 17, 1995, to February 7, 1997, when he was terminated by Ms.
Teresa Glessing, the facility's Acting Administrator, and Jo Ann
Failing, Director of Nursing. Teresa Glessing and defendant
Charles Glessing were plaintiffs direct supervisors.
After facing months of this abuse, plaintiff asked his
co-workers to stop all sex-based conversation in his presence.
He informed them that such comments made him uncomfortable as
the only male present. Furthermore, plaintiff alleges that his
supervisors were aware of this harassing conversation and his
discomfort as it frequently occurred in their presence. He also
contends that his termination was part and parcel to this
pattern of sexual harassment.
According to plaintiff, defendants terminated him after he was
accused of sexually harassing a female co-worker. Apparently,
plaintiff asked a Ms. Battisti out to dinner on two occasions
without success. After the second attempt, Ms. Battisti
complained about plaintiffs amorous advances to Ms. Failing, who
later spoke to him about his actions. Plaintiff claims to have
been unaware that this meeting was a warning about sexual
harassment. Roughly one month later, plaintiff was again told to
leave Ms. Battisti alone. However, on February 6, 1997, he asked
Ms. Battisti about her "night job." Ms. Battisti reported to
Palantine that plaintiff had accused her of being a prostitute.
The next day, Theresa Glessing and Joanne Failing presented
three written sexual harassment warning notices to plaintiff and
terminated his contract.
Finally, plaintiff questions the basis for his termination
claiming that it occurred without notice and was contrary to
Palantine's sexual harassment policy. He also alleges that he
was treated differently from female employees as none have been
terminated for their harassing behavior.
I. The Legal Standards: Summary Judgment
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). Moreover, Rule 56(c) of the Federal Rules of
Civil Procedure mandates the entry of summary judgment "against
a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Id.
at 247, 106 S.Ct. at 2510. Any ambiguities and inferences drawn
from the facts must be viewed in the light most favorable to the
non-moving party. See Thompson v. Gjivoje, 896 F.2d 716, 720
(2d Cir. 1990). However, an alleged or hypothetical factual
dispute will not defeat a motion for summary judgment. See id.
Instead, the non-moving party must demonstrate that there are
genuine factual issues to be decided by the trier of fact. See
id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). An issue is considered
"genuine . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson, 477
U.S. at 248, 106 S.Ct. at 2510.
Furthermore, a non-moving party may not rest upon mere
conclusory allegations or denials, but must set forth "concrete
particulars" showing the need for a trial. See Connell v.
Consolidated Edison Co. of New York, 109 F. Supp.2d 202, 206
(S.D.N.Y. 2000). Therefore, a non-moving party may not "merely
. . . assert a conclusion without supplying supporting arguments
or facts." See id. (quoting Bell-South Telecommunications, Inc.
v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)) (internal
In the context of employment discrimination cases, summary
judgment is "ordinarily inappropriate" because the allegations
therein require exploration into an employer's motivation and
intent for an employment decision. See Griffin v. Ambika
Corp., 103 F. Supp.2d 297, 306 (S.D.N.Y. 2000) (citing Patrick
v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984)); see also Gallo
v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.
1994). The reason for such judicial caution is that,
"[e]mployers are rarely so cooperative as to include a notation
in the personnel file that the [adverse employment action] is
for a reason expressly forbidden by law." Bickerstaff v. Vassar
College, 196 F.3d 435, 448 (2d Cir. 1999). Yet, summary
judgment can ...