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BENNETT v. PROGRESSIVE CORP.

September 26, 2002

JANET SCHRADER BENNETT, PLAINTIFF,
V.
THE PROGRESSIVE CORPORATION, PROGRESSIVE CASUALTY INSURANCE COMPANY, LARRY MITCHELL, JOHN BARBAGALLO, AND MICHAEL BENEY, DEFENDANTS.



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

      MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Janet Schrader Bennett ("plaintiff") brought suit against defendants, The Progressive Corporation ("Progressive"), Progressive Casualty Insurance Company ("Progressive"),*fn1 Larry Mitchell ("Mitchell"), Michael Beney ("Beney"), and John Barbagallo ("Barbagallo"), alleging in her Amended Complaint ten causes of action.

In plaintiffs first cause of action, she alleges, as against all of the above defendants, that the actions of Mitchell, her supervisor, including his unwelcome sexual advances, requests for sexual favors, unwanted touching, hugging and kissing of plaintiff, retaliatory actions against plaintiff on occasions when plaintiff attempted to ignore his unwanted advances, threats to plaintiff about reporting his behavior, and his forcing and coercing plaintiff against her will to engage in sexual intercourse, constitute the creation of a hostile work environment and discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. § 2000e et seq.

In plaintiffs second cause of action, she alleges, as against all of the above defendants, that the actions of Mitchell, using his position as plaintiffs supervisor to retaliate against plaintiff when plaintiff attempted to ignore his unwelcome sexual advances while ceasing and desisting such retaliatory conduct when plaintiff did not resist such sexual advances, constitute quid quo pro sexual harassment and discrimination on the basis of sex in violation of Title VII.

In plaintiffs third cause of action, she alleges, as against all defendants, she was discharged in retaliation for lodging a sexual harassment complaint against Mitchell, in violation of Title VII, 42 U.S.C. § 2000e-3(a).

In plaintiffs fourth cause of action, she alleges, as against all defendants, that the actions of Mitchell, her supervisor, including his unwelcome sexual advances, requests for sexual favors, unwanted touching, hugging and kissing of plaintiff, retaliatory actions against plaintiff on occasions when plaintiff attempted to ignore his unwanted advances, threats to plaintiff about reporting his behavior, and his forcing and coercing plaintiff against her will to engage in sexual intercourse, constitute the creation of a hostile work environment and discrimination on the basis of sex in violation of New York Human Rights Law ("NYHRL"), N.Y.Exec. Law §§ 290 et seq.

In plaintiffs fifth cause of action, she alleges, as against all defendants, that the actions of Mitchell, using his position as plaintiffs supervisor to retaliate against plaintiff when plaintiff attempted to ignore his unwelcome sexual advances while ceasing and desisting such retaliatory conduct when plaintiff did not resist such sexual advances, constitute quid quo pro sexual harassment and discrimination on the basis of sex in violation of NYHRL.

In plaintiffs sixth cause of action, she alleges, as against all defendants, she was discharged in retaliation for lodging a sexual harassment complaint against Mitchell, in violation of NYHRL, N.Y.Exec.Law § 296(3-a)(c).

In plaintiffs seventh cause of action, she alleges, as against defendants Mitchell, Beney, and Barbagallo personally, that the actions of Mitchell, in committing the above acts, and the actions of Beney and Barbagallo, as superiors to Mitchell, in conducting an ineffective sexual harassment investigation and in unlawfully terminating plaintiffs employment, constitute aiding and abetting a NYHRL violation pursuant to N.Y.Exec.Law § 296(6).

In plaintiffs eighth cause of action, she alleges, as against all defendants, that the conduct of Mitchell, Beney, and Barbagallo amounts to intentional infliction of emotional distress in violation of New York State law.

In plaintiffs ninth cause of action, she alleges, as against Progressive only, she worked in excess of forty hours a week during her employment, and has received no overtime compensation, in violation of the Fair Labor Standards Act, 29 U.S.C. § 207(e).

In plaintiffs tenth cause of action, she alleges, as against Progressive only, she worked in excess of forty hours a week during her employment, and has received no overtime compensation, in violation of Section 663 of New York Labor Law.

Plaintiff has stipulated to the dismissal of all causes of action against Mitchell, Beney, and Barbagallo, with the exception of the seventh cause of action, for aiding and abetting a violation of NYHRL.*fn2 (Stipulation and Order, Docket nos. 30, 16). Plaintiff has also stipulated to the dismissal of the eighth cause of action, for intentional infliction of emotional distress, as against all defendants. (Stipulation and Order, Docket nos. 16, 14).

All defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument was heard on July 26, 2002 in Albany, New York, and decision on the motions was reserved.

II. FACTUAL BACKGROUND

Taken in the light most favorable to plaintiff, the following comprise the facts necessary to deciding this motion.

In January of 1997, plaintiff was hired as a claims representative in the Albany, New York office of Progressive. Her immediate supervisor in the Albany office was Steven DeHart. During plaintiff's first few weeks of employment, she received training and a "training box" containing materials designed to familiarize employees with company procedure and to give them other information Progressive deems relevant. Progressive contends that contained in such boxes are copies of "The Progressive Way," a manual on policies. Included in "The Progressive Way" is an anti-sexual harassment policy, as well as an "open door policy" and a section informing employees of an "alertline" they can call if they have a grievance against another employee or supervisor. Neither the "open door policy" nor the "alertline" are specifically tailored to solely apply to sexual harassment, and "The Progressive Way" contains no specific complaint procedure dealing with only sexual harassment.

Plaintiff claims she did not receive a copy of "The Progressive Way." Her supervisor does not recall giving her or seeing her with a copy of the document, nor does he recall anyone else giving her a copy. Plaintiff was given two tests during the training period, but it is unclear what material was tested. She did know there existed a general reference source in the Albany office entitled "The Progressive Way," but believed it contained benefits information. Although plaintiff was aware of Progressive's human resources department, she was not aware of the company sexual harassment policy.

In September of 1997, plaintiff was offered a transfer to a claims representative position in Progressive's Utica office. She accepted and in November of 1997 began working in Utica. There is some amount of dispute as to plaintiffs duties as a claims representative. According to plaintiff, since Progressive's main business function in its Utica office was to process claims, and since claims representatives were not permitted to create and sell actual insurance policies, her duties largely comprised of processing claims under automobile insurance policies. Progressive, on the other hand, describes plaintiffs position as encompassing a broad range of activities, including making determinations as to whether insurance coverage applies to claims, making decisions whether or not to investigate accidents, investigating liabilities of accidents, evaluating accident injuries and damages, negotiating settlements of claims with the claimant and his or her attorney, deciding whether to investigate potential fraud and conducting such investigations, handling the salvaging of vehicles, and "even . . . acting on behalf of Progressive at trial." (The Progressive Defendants' Statement of Undisputed Facts, at 12, ¶ 47).

Plaintiffs supervisor in the Utica office was Larry Mitchell. Mitchell's supervisor was Michael Beney, who worked for Progressive out of Syracuse. Mitchell and Beney were close personal friends. Beney was also a friend of Mitchell's wife, and served as an usher in Mitchell's wedding. Beney's superior was John Barbagallo, the regional general manager for Progressive's central New York operations.

Sometime after plaintiff transferred, she perceived the running and operation of the Utica office to be far inferior to that of the Albany office. Because of this, she even considered returning to Albany. Nevertheless, she remained and made suggestions to Mitchell about how to improve the efficiency of the office, and she claims some changes were in fact made. She began to work long hours to aid in the implementation of the changes, sometimes staying in the office until 9:00 in the evening with Mitchell. Other employees in the Utica office were less than fond of the negative comparisons between offices, and became hostile to plaintiff. Plaintiff has described the atmosphere in the office to be a "terrible working environment." (Depo. of J. Bennett, at 357). Concerned over co-worker hostility towards her, plaintiff looked to Mitchell for protection, who she believed shared her business views. Occasionally, Mitchell intervened to stop the hostility.

Within one to two months after plaintiffs transfer to the Utica office, Mitchell began to comment on her appearance, including comments about her looks in general, her clothes, her perfume, and how she looked in particular outfits. Mitchell also began to place his hands on plaintiffs shoulders while she worked at her desk. Largely distressed by the conduct, plaintiff attempted to initially ignore it. This conduct, according to plaintiff, worsened with time. When plaintiff was working late with Mitchell, he initiated conversations with her about his personal life, including his sexual relationship with his wife. She claims he told her his wife was not satisfying him physically. One evening, Mitchell's wife phoned the office, and plaintiff heard Mitchell explain to his wife that he was on the road working with another Progressive employee. Mitchell explained his prevarication by telling plaintiff that she was his wife's "enemy" and that lying about being at the office alone with plaintiff was necessary.

Also during this time period, Mitchell increased plaintiffs work load, and at least some of the work was beyond her training and expertise. This caused plaintiff to continue working late during the week and on the weekends with Mitchell. While still speaking to plaintiff about his difficulties with his wife, Mitchell began to ask plaintiff about her personal life, including questions about her sexual activities and her relationship with her boyfriend. He claimed they had a lot in common.

In February of 1998, around three months after plaintiff transferred to the Utica office, Mitchell arranged to drive plaintiff to a Syracuse salvage yard for training she needed to succeed on an "outside road adjuster" exam that plaintiff was to take in March. Plaintiffs career track at Progressive was to become an outside road adjuster, a position involving significant time outside the office estimating vehicle damage. On the drive back to Utica, Mitchell and plaintiff stopped at a restaurant for dinner. Such meals were not uncommon when traveling in connection with Progressive business. During dinner, Mitchell again without provocation began discussing his personal life with plaintiff. He told plaintiff he was unhappy with his marriage, and that he wanted a relationship with plaintiff beyond that shared by ordinary colleagues.

Though this caused plaintiff more distress, she did nothing. Plaintiffs father was ill, her mother had recently lost her job, and her brother had moved in with her after losing his home. The financial constraints of supporting her family and herself necessitated her keeping the Progressive job. In addition, plaintiff claims knowledge at that time of another instance where Mitchell had personal animosity towards another Progressive employee and increased his work load to such an extent that the employee resigned. Thus, though her family advised her to quit, plaintiff continued to try and ignore Mitchell's behavior.

Plaintiff did, however, try to distance herself from Mitchell. Mitchell responded by making her job less bearable. He would refuse to answer work-related questions she posed, delay projects plaintiff was working on, and cease intervening in intra-office disputes between plaintiff and other employees in the Utica office. When plaintiff narrowed the "distance" between them, he reciprocated by refraining from the above activities, but when she sensed him pursuing the same line of inappropriate conduct, he did not. He began leaving plaintiff sexually suggestive poems at her desk, a practice that continued for some months. Plaintiff was convinced Mitchell would continue this behavior if she resisted his attempts to transform their relationship into a physical one.

Also in early 1998, Mitchell, claiming a desire to talk about work with her, began to pressure plaintiff into taking drives with him during work hours. During these car trips, Mitchell would stop the vehicle and retrieve alcohol from the trunk. If plaintiff resisted his attempts to coerce her into drinking, he would become angry. She would sometimes agree to have a drink, only to pour out the beverage when Mitchell was not watching. Mitchell intimated that he was her "only protection" in the Utica office. This caused plaintiff further distress, and her family and friends began to notice the emotional problems she was having.

Mitchell then began placing telephone calls to plaintiff at home. He would ask plaintiff to take vacation time and spend time with him. Plaintiff considered lodging a complaint to Beney, but did not due to her knowledge of Mitchell's close relationship with Beney, and Mitchell's statement that Beney pushed out Mitchell's predecessor in order to employ Mitchell in the same position. Plaintiff believed that lodging said complaint put her job in jeopardy. As a result, plaintiff submitted to Mitchell's persistent efforts to hug and kiss her in the office.

By June of 1998, Mitchell's behavior had become so unbearable that plaintiff began calling in sick to work just to avoid it, staying home the entire first week of June. Plaintiff claims she told Mitchell that she would be forced to resign if he continued his behavior. She claims he apologized, told her he would cease his efforts, and that a working relationship would be their sole connection. Around this time, plaintiff arrived at work one day to find that Mitchell had made a schedule entry for her to take her father to a doctor's appointment in the afternoon. Mitchell talked her into going for another drive to discuss changes in the office. On the drive there was no work-related discussion, and after stopping at a restaurant for lunch, Mitchell asked plaintiff if she would like to stay in a hotel room with him. She refused. Nonetheless, on the way back to Utica, Mitchell repeatedly asked plaintiff to stay with him in hotels they were passing on the road, again indicating a desire to elevate their relationship. She refused again, citing her relationship with her boyfriend and the recent conclusion of her unfriendly divorce. She pleaded with Mitchell to stop his efforts. This caused her further distress.

She again considered lodging a complaint, but did not for the same reasons as before. Plaintiff did, however, place a phone call to Albany and inquire about a marketing position in the Albany office. Mitchell became aware of this, and informed plaintiff he would help her obtain the position if she agreed to a personal relationship with him. In the meantime, plaintiff became engaged to her boyfriend.

Plaintiff again tried to keep her distance from Mitchell. When she did, he would ignore her in the office when she posed work-related questions. Mitchell had informed plaintiff of his past infidelities, and that the affairs in those cases were never more than physical relationships. Plaintiff believed this to be the case with her, and in the face of Mitchell's continued pressure, and fearful of losing her job, plaintiff finally submitted and had sexual intercourse with Mitchell in early summer of 1998. Though they had sexual intercourse twice, plaintiff stopped the act on the second occasion and left Mitchell in the room. After plaintiffs submission to Mitchell, he became more aggressive. He would grab and kiss her in the office. He was also incensed about plaintiffs engagement to her fiancé, and would make derogatory comments about him to plaintiff. When plaintiffs fiance called, Mitchell would leave the office and return only after everyone but plaintiff remained.

Plaintiff agreed to meet with Mitchell at a restaurant in August of 1998. At this meeting, plaintiff wished to again advise Mitchell that she would report his behavior if he did not stop his efforts at elevating their relationship. When plaintiff arrived at the meeting, it was apparent Mitchell was intoxicated, and plaintiff decided to abort her plan. Plaintiff exited the restaurant and was allegedly attacked by Mitchell's wife.

The following day she was unable to work and called in sick due to stomach problems caused by distress. Mitchell called her and drove by her house. Plaintiff confronted Mitchell outside of the house and begged him to stop, telling him she was on the verge of a nervous breakdown, it was not proper behavior for a manager, that she was soon to be married, and that if he did not cease a complaint would be filed. He tried to calm plaintiff down and then informed her that lodging a complaint would result in her career at Progressive being over because of his relationship with Beney. He informed her he would "spit on her grave" and that he would watch her "go down" without admitting to any wrongdoing.

Plaintiff was fearful of reporting Mitchell's behavior to Beney, so she explained the situation in general terms to a Syracuse office claims representative she met in the course of work. Plaintiff claims this employee, Joanne Weimeier ("Weimeier"), told her that she had heard a rumor of an affair between Mitchell and a "claims assistant" that started before plaintiff worked in Utica. According to plaintiff, Weimeier advised plaintiff against reporting the behavior to Beney, since he and Mitchell were friends, and that she would find someone else for plaintiff to talk to about Mitchell.

Also in August of 1998, after hiring a private Investigator, plaintiff arranged to meet with Mitchell. At the behest of the investigator, plaintiff concealed a tape recorder to capture their conversations. When plaintiff arrived at the restaurant, it was apparent to her Mitchell was intoxicated. He tried to reach under the table and place his hand on plaintiffs leg in an effort to hold her hand. She became upset, began screaming at Mitchell, and exited the restaurant. Mitchell followed her into the parking lot, begging her to return inside. She refused. After Mitchell, in the days ...


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