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SUSKO v. ROMANO'S MACARONI GRILL

May 8, 2001

KAREN M. SUSKO, PLAINTIFF,
v.
ROMANO'S MACARONI GRILL, DEFENDANT.



The opinion of the court was delivered by: Platt, District Judge.

MEMORANDUM AND ORDER

Defendant Romano's Macaroni Grill ("Romano's") moves for partial summary judgment pursuant to Rule 56 of the Federal Rules of Procedure. For the following reasons, the motion is denied.

BACKGROUND

From July 17, 1996 until May 14, 1997, Plaintiff Karen M. Susko was employed by Romano's as a baker/chef or as a baker/cook at its restaurant in Westbury, New York.

At the commencement of her employment, Susko received an employee orientation handbook which contained the company's sexual harassment policy. The policy provided, among other things, that an employee who believed she was being harassed should, if possible, confront the harasser and inform him to stop. The policy also indicated that the victim should report the incident to her manager, her Area Director, or the Human Resources Representative. Susko testified that she read and was aware of this policy.

Allegedly, in October 1996, Susko, who had recently been involved in a car accident, was retrieving produce from a walkin refrigerator when Daniel Fabrizio, a fellow chef and co-worker, entered the refrigerator, asked Susko what had happened to her, touched her lower back, and advised her to visit a chiropractor. Susko did not report this incident because she thought Fabrizio was merely attempting to help.

In December 1996, a few days before Christmas, Fabrizio allegedly attempted to kiss and hug Susko, while wishing her a Merry Christmas. The parties dispute whether Fabrizio attempted to kiss Susko on the mouth or on the cheek. Susko did not report this incident to anyone.

In the beginning of March 1997, Fabrizio allegedly squeezed Susko's hip/waste area and patted her behind, when Susko walked past him. Subsequently, Fabrizio allegedly squeezed her side again and threatened to hit her numerous times.

On March 9, 1997, Susko reported these incidents and the October and December incidents to Paul Filiberto, her immediate supervisor who said, "it will be taken care of and not to worry about it any more." (Susko Aff. at ¶ 4.) Regional Chef Antonio Mattina was present when Susko told Filiberto about Fabrizio's actions. Following this complaint, Paul Filiberto and Thomas Coronato, the General Manager, met with Fabrizio and informed him that there had been a complaint made against him involving sexual harassment, that sexual harassment was a terminable offense, and that he could not engage in this kind of conduct again.

On March 15, 1997, Fabrizio again squeezed Susko's side and threatened physical violence. The incident, which was witnessed by a fellow employee, Rhonda Sullivan, was again reported to Paul Filiberto, who allegedly warned Fabrizio about his conduct and told Fabrizio to apologize. Fabrizio allegedly did not apologize. The incident was also reported to the General Manager, Thomas Coronato.

On March 16, 1997, Susko felt someone squeeze her side. Although she did not see Fabrizio touch her, Susko noticed Fabrizio walking away from her after the incident. Allegedly, she immediately reported the incident to Filiberto.

Susko claims that Romano's failed to take action for several days, prompting Susko to report the incidents to her Area Director, Bill Lettier on March 21, 1997. On that same day, Mr. Lettier responded by holding a meeting with Susko, Coronato, and Filiberto. Lettier also interviewed Rhonda Sullivan, the witness, and, later that day, he fired Fabrizio. On May 14, 1997, Susko was terminated.

On or about December 11, 1997, the plaintiff filed a complaint with the United States Equal Opportunity Commission, alleging that Romano's violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000(e) et seq. ("Title VII"). She filed this complaint in this Court on November 4, 1999, alleging that Romano's was liable for sexual harassment and retaliation under Title VII. She seeks a declaratory judgment that the defendant has violated Title VII, a permanent injunction directing the defendant to employ her ...


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