issue of the reinstatement. Plaintiff does not deny that defendant's
offer was unconditional or that she received assurances that no further
harassment would be permitted. Therefore, this court now evaluates the
reasonableness of plaintiff's refusal to accept the offer for the
purposes of summary judgment.
The mere fact that defendant has not withdrawn its allegations that
plaintiff was fired for insubordination does not provide a reasonable
basis for plaintiff to refuse defendant's offer of reinstatement. In
making an unconditional offer of reinstatement, the defendant employer is
not obligated to insure the claimant against the possibility that the
defendant might prevail at trial. See Ford, 458 U.S. at 237 n.26
Lightfoot, 110 F.3d at 908. As such, there is no requirement that
defendant withdraw its defense against plaintiffs claims.
Furthermore, this court now finds that the assertions that defendant
still employs friends of the harasser and that returning to work for
defendant would cause her mental anguish are insufficient to excuse
plaintiff's rejection of an offer of reinstatement. See Lightfoot, 110
F.3d at 908 (rejecting claims that plaintiff's rejection of the offer of
reinstatement was reasonable because accepting reinstatement would return
him to a harassing environment); Clarke, 960 F.2d at 1151 (narrowing the
focus of the Ford analysis to only two factors: (1) was the offer
unconditional and (2) did the plaintiff reject the offer).
Defendant's offer of reinstatement was unambiguously unconditional. The
offer went beyond what is required by law to toll an employer's backpay
liability, offering plaintiff retroactive seniority and backpay. See
Ford 458 U.S. at 234 (holding that an offer of retroactive seniority is
not required to toll backpay). Plaintiff has received assurances that no
further harassment will be tolerated if she returns. Plaintiff has
presented no evidence that defendant's assurances are insincere.
Therefore, plaintiff has not raised a genuine issue of material fact as
to whether she would be unreasonable in rejecting defendant's offer.
2. The Rejection of the Offer
To toll backpay liability, an employer must establish not only that it
made an unconditional offer but that plaintiff rejected it. See Clarke,
960 F.2d at 1152. Backpay "accrues until the date that an aggrieved
employee rejects the employer's reinstatement offer." Clarke, 960 F.2d at
1152. As this court has held that a rejection of defendant's
reinstatement offer in this cage would be unreasonable, if plaintiff has
rejected defendant's offer, defendant's backpay liability will be tolled
as of the date of plaintiff's rejection. However, plaintiff has
established a genuine issue of material fact for trial as to whether she
has rejected defendant's offer.
Defendant argued at a hearing on December 7, 2000 that plaintiff had in
fact turned down the offer verbally but refused to do so in writing. It is
undisputed that plaintiff did not accept the reinstatement offer. However,
plaintiff claims that she has not accepted or rejected the offer of
reinstatement. Rather, plaintiff states that she is still considering the
offer. Plaintiff asserts in her affidavit that as defendant has agreed to
hold the offer open, she will not return to work for defendant until she is
assured she will not be subjected to further harassment. This court notes
that, as of the December seventh hearing, counsel for plaintiff stated that
plaintiff was "not accepting at this time an offer of reinstatement."
(Tr. at 24.)
The Second Circuit has noted that "at some point a [plaintiffs] refusal
to accept substantially equivalent employment that is offered terminates
the former employer's back-pay obligation." NLRB v. Hazard 917 F.2d 736,
738 (2d Cir. 1992) (remanding case to NLRB for specific findings to
permit a determination of whether the point had been reached where
plaintiffs insistence on remaining self-employed tolled backpay damages);
see also NLRB v. Arduini Mfg., 394 F.2d 420, 423 (l's Cir. 1968) (holding
that plaintiffs delay of several days in accepting a job offer
demonstrated a lack of reasonable diligence in mitigating damages and
tolled plaintiffs right to backpay). Whether an employee has rejected an
offer of reinstatement is generally a question of fact for trial. See
Clarke, 960 F.2d at 1151. This court finds a genuine issue of material
fact as to whether plaintiff has rejected defendant's offer of
reinstatement. Therefore, this court denies defendant's motion for
summary judgment tolling defendant's backpay liability.
Plaintiff has established issues of material fact as to (1) whether she
was fired in a discriminatory manner, (2) whether she was reasonable in
failing to notify her superiors of Rivera's alleged harassment, (3) whether
Rivera continued to harass her after she terminated the sexual relationship
and (4) whether plaintiff rejected defendant's offer of reinstatement.
For the reasons set forth above, defendant's motion for summary judgment is