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February 21, 2002


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.


Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended,*fn1 the New York State Human Rights Law (the "NYSHRL"),*fn2 the Americans With Disabilities Act of 1990 (the "ADA"),*fn3 and the common law of New York. Discovery having been completed and a pretrial order filed, the matter is before the Court on defendants' motion for summary judgment dismissing the complaint.

I. Background

The general outline of plaintiff's relationship with defendants Plaza Construction Corporation ("Plaza"), Fisher Brothers ("FB"), and Steven Fisher may be summarized briefly.

Plaza hired Frank as a director of business development in August 1995 at a salary of $50,000 per year, but terminated her in August 1996. She was hired again in January 1998 — Frank says as a result of defendants' pursuit of her and defendants say as a result of Frank's repeated supplications — as an account executive at a salary of $90,000 per year plus bonus. She received a raise in salary to $95,000 in July 1998 and a bonus of $15,000 at the end of the year. She was terminated on July 1, 1999.

Frank asserts the following claims:

• She was subjected to both hostile work environment and quid pro quo sexual harassment.
• She was a victim of gender-based disparate treatment in that she (a) was not made a vice president as allegedly promised when she was rehired in 1998,
(b) was paid less than her male peers, (c) was excluded from certain business meetings and business-related social events attended by male peers, (d) did not receive secretarial assistance comparable to that of her male peers, and (e) was asked to take notes at meetings and otherwise treated in a demeaning fashion in comparison to her male peers.
• She suffered from a "disability" within the meaning of the ADA — dyslexia — but was not afforded reasonable accommodation.
• The complaint alleges that Frank was fired in retaliation for her pursuit of internal complaints of sexual harassment and gender discrimination.*fn4 In the joint pretrial order, she contends that the termination was in retaliation for complaining of gender and disability discrimination and for refusing to comply with Fisher's sexual advances.*fn5 In her papers in opposition to defendants' motion, she asserts only that the firing occurred because "Plaza became suspicious she had retained an attorney regarding the discrimination and sexual harassment she endured at Plaza."*fn6

II. Sexual Harassment

A. Timeliness

Title VII generally requires that one complaining of employment discrimination file a charge with the Equal Employment Opportunity Commission ("EEOC") no later than either 180 300 days, depending on state antidiscrimination law and remedies, of an alleged unlawful employment practice.*fn7 The parties here agree that the date of the last alleged harassment of plaintiff by Fisher was December 18, 1999.*fn8 Defendants maintain that plaintiff filed her EEOC charge on October 28, 1999, more than 300 days later. From this premise, they would have the Court conclude that plaintiff's sexual harassment claims are untimely, irrespective of which period applies.*fn9 The argument, however, is not without its problems.

To begin with, plaintiff's sexual harassment claims do not depend upon Fisher's alleged behavior alone. The complaint and, perhaps, the joint pretrial order both are broader.*fn10 And while plaintiff's papers in opposition to this motion focus almost exclusively on Fisher, they are not strictly so confined. Defendants, however, have trained all their fire on the Fisher allegations and thus have failed to sustain their burden of establishing that there is no genuine issue of material fact concerning plaintiff's contention that a hostile work environment existed, even during the 180 or 300 days immediately preceding the filing of the EEOC complaint.
The second problem is that defendants' premise that the EEOC charge was filed on October 28, 1999 — though entirely understandable given the submission of an affidavit by plaintiff's counsel that so placed the date — has been questioned. In response to the motion, plaintiff came forward with what purported to be a print out from an EEOC database perhaps suggesting that the charge was filed as early as October 12, 1999, less than 300 days after the final Fisher incident. The Court therefore held an evidentiary hearing in an effort to determine the authenticity and admissibility of the document at which two EEOC staff members testified.*fn11 Having heard the evidence, the Court finds that the evidence is sufficient to permit a finding that the document is authentic, that at least two of the three elements of the foundation required to admit it as a business record under Rule 803(6) are satisfied, and that a reasonable trier could find that the charge was filed on October 12, 1999 assuming the document were received in evidence. The question, however, is whether the information concerning the filing date was entered into the database "by, or from information transmitted by, a person with knowledge" of the date of filing, as required by the rule — a question rendered troublesome by a paucity of evidence and the fact that the original charge and any documents relating to it were destroyed in the attack on the World Trade Center.
If anything substantial now turned on the answer to that question, the Court would be obliged to decide it. But that is not the case. For one thing, the statute of limitations with respect to plaintiff's NYSHRL sexual harassment claim is three years,*fn12 so the dismissal of the parallel Title VII claim could eliminate proof of events prior to the statutory period only if the Court were to decline supplemental jurisdiction over the state claim, a course that would be inappropriate unless, perhaps, the entirety of the federal gender discrimination case were dismissed.*fn13 Perhaps even more to the point, it is entirely likely that proof of events prior to the statutory period would be relevant even if plaintiff were entitled to remedies only with respect to events within that period.*fn14
In these circumstances, it would make little sense for the Court to reach out to decide a troublesome issue concerning the admissibility of computer generated records in the wake of the World Trade Center attack, an issue likely to affect any number of other cases, as the decision would be unlikely to have any practical impact on this case. There is no basis for concluding that the NYSHRL claim or so much of the Title VII gender discrimination claim in general or the sexual harassment claim in particular, as the latter relate to the statutory period preceding the filing date of the EEOC charge, is untimely. The overlap of proof between the timely claims and any untimely claim is likely to be complete or nearly so. In consequence, there will be time enough to decide the evidentiary question at trial or in determining relief, should either prove necessary. The Court therefore declines to dismiss the Title VII sexual harassment claims as untimely.*fn15

B. Sufficiency of Quid Pro Quo Sexual Harassment Claim

To make out a claim of quid pro quo sexual harassment, a plaintiff must allege that (1) she was subject to unwelcome sexual conduct or an unwelcome sexual advance, and (2) her reaction to that conduct was used as the basis for an adverse employment action.*fn16 Defendants maintain that plaintiff alleges no adverse employment ...

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