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July 27, 2001


The opinion of the court was delivered by: Motley, J.


Plaintiff, a female employee of defendant, filed this Title VII complaint on February 3, 1999, pleading quid pro quo and hostile work environment sexual harassment pursuant to 24 U.S.C. § 2000e, et seq. and New York State Human Rights Law, Executive Law § 290 et seq.*fn1 The case was assigned to court-ordered mediation on September 27, 1999. However, the mediation was not successful. On April 7, 2000 defendant filed the instant motion for summary judgment. At a hearing held on December 7, 2006, this court heard arguments on the motion.

For the reasons set forth below, defendant's motion for summary judgment is DENIED.


The following facts, unless otherwise noted, are undisputed:

Plaintiff worked for defendant as an assembly-line worker from July 30, 1968 until October 9, 1998, over 30 years. Plaintiff claims that a supervisor, Herman Rivera, asked her out in February of 1988. They dated consensually until plaintiff terminated the relationship in 1991 upon learning that Rivera was dating another woman. By December of 1991, Rivera had been promoted to a management position and was plaintiffs supervisor.

In December 1992, Rivera, now married, requested that plaintiff resume their former sexual relationship. Plaintiff objected to Rivera's advances and Rivera threatened to fire her if she did not comply. Plaintiff claims that Rivera repeatedly forced plaintiff to have sex on and off company property and made lewd and embarrassing statements about plaintiff in the presence of others at the workplace until she terminated the relationship. Rivera continued to regularly force plaintiff to have sex with him until about December 1997, when plaintiff informed Rivera that she would no longer have sex with him. For the purposes of summary judgment defendant does not dispute plaintiffs allegations of sexual encounters with Rivera or that they constituted unlawful sexual harassment.

Plaintiff has presented evidence which, viewed in its most favorable light, shows that after she ended the sexual relationship with Rivera in 1997, Rivera and other supervisors began a campaign to retaliate against her. This campaign included accusations about the quality of plaintiff's work, attempts to interfere with plaintiffs use of accrued leave and/or vacation time to care for her child, continued use and tolerance of lewd and embarrassing comments and behavior directed at plaintiff, no increase in wages and exposure to harmful substances at work.

On October 2, 1998, defendant's supervisors, including Rivera, broke into plaintiffs work locker and fired her, purportedly on the basis of documents they found there. Defendant claims that plaintiff was ultimately fired because her direct supervisor, Alex Zavaleta, suspected that plaintiff might have some old product blueprints in her possession. Zavaleta needed the blueprints and asked plaintiff for them several times over the course of several days. Defendant claims that plaintiff denied having the documents. Plaintiff said she could not check her locker because she had forgotten the combination. Plaintiff states that she asked Zavaleta to get the locker combination for her because she did dot remember it. Without alerting plaintiff, Zavaleta asked two supervisors (but not Rivera) to break open plaintiff's locker. The supervisors did so. Defendant claims the two supervisors found the blueprints in plaintiff's locker, did not remove them and informed Zavaleta.

Zavaleta then asked Rivera, who was not present at the original opening of plaintiff's locker, to remove the blueprints from plaintiff's locker. According to plaintiff, Rivera then called her into his office and informed her that they had found the papers in her locker. Frank A. DeBlanco, defendant's Director of Operations, fired plaintiff later that day, purportedly on the basis of plaintiff's failure to produce the blueprints as well as the fact that plaintiff received five disciplinary warnings throughout the period from 1993-1998 regarding lateness and aggressive behavior. Plaintiff does not deny that Zavaleta had been requesting the blueprints. However, plaintiff claims she was never shown the documents and contests the allegation that any documents justifying termination were in her locker.

Defendant does not deny that Rivera and plaintiff were engaged in a sexual relationship. Rivera admitted the sexual relationship (claiming it was consensual) during the course of discovery of the instant case. Defendant fired Rivera on November 24, 1999 and, in a letter dated December 10, 1999, offered plaintiff reinstatement including preservation of her seniority and backpay. The offer did not require plaintiff to drop her case against the company. Plaintiff has not accepted this offer but maintains that she has not rejected it either. Rather, plaintiff maintains that she is merely considering the offer.


I. Summary Judgment Standard

The standard for summary judgment is that "[u]ncertainty as to the true state of any material fact defeats the motion." Gibson v. Am. Broad. Corp., 892 F.2d 1128, 1132 (2d Cir. 1989). The movant must demonstrate the absence of a genuine issue of material fact.*fn2 If the movant carries this burden, the burden then shifts to the non-moving party to produce concrete evidence sufficient to establish a genuine unresolved issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Dister v. Contimental Group. Inc., 859 F.2d 1 108, 1-114 (2d Cir. 1988). The court then must view the facts in the light most favorable to the non-movant and give that party the benefit of all reasonable inferences from the evidence that can be drawn in that party's favor. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). The court neither weighs evidence nor resolves material factual issues but only determines whether, after adequate discovery, any such issues remain unresolved because a reasonable factfinder could decide for either party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986);Gibson, 892, F.2d at 1132. However, neither conclusory statements, conjecture, nor speculation suffice to defeat summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

II. Substantive Title VII Principles

Title VII forbids an I employer from discharging or discriminating against any individual, with respect to conditions of employment, on the basis of gender. An individual alleging gender discrimination may proceed under either or both of two theories: direct (or "quid pro quo") discrimination and "hostile workplace environment". See Leibovitz v. New York City Transit Authority, 252 F.3d 179, 188 (2d Cir. 2001). Plaintiff in this case pleads both quid pro quo and hostile workplace environment harassment. To establish a prima facie case of employment discrimination under either theory, "a plaintiff must show, inter alia, that she was subjected to ...

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