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United States District Court, Southern District of New York

April 10, 2003


The opinion of the court was delivered by: Gerard Lynch, United States District Judge.


Plaintiff Mary Grace Breeding ("plaintiff' or "Breeding") brings this suit against her former employer, Cendant Corporation ("defendant" or "Cendant"), alleging that it is liable for sexual harassment that she suffered at the hands of her supervisor. Specifically, she alleges that the harassment created a hostile work environment, and that she was constructively discharged, both of which are violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1982) ("Title VII"). Cendant now moves for summary judgment. After careful consideration of the parties' submissions, the motion is granted.


Most of the operative facts surrounding Breeding's claim are undisputed. Breeding began working at Cendant in 1999, as a franchise sales director for one of its subsidiaries. (Compl. ¶ 8.) She worked remotely, covering the sales area to which she was assigned, and would periodically report back to her supervisor, Michael Mancuso, or participate in company-wide conferences. (Breeding Dep. at 49; Compl. ¶ 12.) Plaintiff and Mancuso had a good working relationship during his first four months as her supervisor, but in August 2000, he began making sexual comments to her and about her in a variety of professional situations. (Mancuso Dep. at 50-51.)

The first such comment occurred during a weekly conference call that Mancuso held for the franchise sales employees he supervised. As plaintiff was out of the office on business at the time, she participated in the call from a phone at a truck stop. (Breeding Dep. at 50.) When plaintiff mentioned that she was calling from a truck stop, Mancuso commented, "I hope that you're not in a garter belt, panties and stockings." (Id. at 49; Mancuso Dep. at 52.) Plaintiff did not object to the comment at the time, because it shocked her, and she was embarrassed that several "male colleagues . . . as well as our secretary" had heard the remark. (Breeding Dep. at 50-51.) She also never told Mancuso that she had been offended, apparently because she thought that he ought to know better. (Id. at 54.)

Plaintiff's next run-in with Mancuso took place at an "important" business meeting in Myrtle Beach on January 12, 2001. (Id. at 71-72.) A few days before the meeting, plaintiff suffered second-degree burns to her legs and hands because of a fire in her home. (Compl. ¶ 11.) When she showed up for the meeting in heavy bandages, Mancuso laughed and asked her if she had put the fire out with her knees. (Mancuso Dep. at 56-59.) At that point, Jeff Cunningham, a client attending the meeting, allegedly stated "No, she was having wild sex and got brush burns." (Breeding Dep. at 71.) Mancuso denies that Cunningham made this remark (Mancuso Dep. at 60), although plaintiff alleges that Mancuso reacted to Cunningham's comment by getting down on his knees and saying, "What, were you like this?" (Breeding Dep. at 73). Next, plaintiff testified, Cunningham got down on his hands and knees, and said, "No, she was like this." (Id. at 73-74.) Plaintiff did not immediately react to this exchange, because "it happened so fast" (id. at 71), although she states that, as Mancuso and Cunningham were "laughing hysterically," she began to feel physically ill from pain and anger, and she told Mancuso that she was unwell and needed to go home (id. at 74).

The following week, Cendant held its national sales meeting in New Jersey. Plaintiff arrived at the conference on Tuesday, January 16, after it had already begun. (Id. at 77-78.) Upon her arrival, one of Breeding's colleagues, Tom Ennis, informed her that Mancuso had been repeating the "wild sex" story to various attendees at the conference. (Id. at 84-85.) Ennis had seen Mancuso approach a table of Cendant employees in the lunchroom and ask them if they had seen Breeding's bandages. (Ennis Dep. at 14.) According to Ennis, Mancuso then stated that he had told Breeding that "he thought she got [the injuries] through — and then he indicated with the — crouched down near the table and indicated a sexual position." (Id.) Mancuso denies that this incident took place. (Mancuso Dep. at 61.) Plaintiff never confronted Mancuso about it. (Breeding Dep. at 88.)

The final incident also occurred at the conference, when Breeding and Ennis arrived together for an early morning meeting. (Id. at 101.) Upon their arrival, Mancuso asked them, "What did you two do, sleep together?" (Mancuso Dep. at 64.) Ennis later confronted Mancuso, telling him that he was offended by the comment, at which point Mancuso apologized. (Ennis Dep. at 29.) Once again, plaintiff did not confront Mancuso or report the incident to anyone else. (Breeding Dep. at 101.)

As part of the sales conference, Cendant's human resources department conducted several sexual harassment training sessions, for all employees in attendance. (Brau Decl. ¶ 6.) Plaintiff testified that she was told by other employees that Brien McMahon, Executive Vice President for Real Estate Franchise Sales, joked that employees should get any sexual harassment "out of [their] systems" before the training sessions were held. (Breeding Dep. at 34-35.) Once she arrived at the conference, plaintiff attended at least part of one of the sessions, at which employees were informed that Cendant maintained a zero-tolerance policy, and copies of Cendant's sexual harassment policy were distributed. (Id.; Breeding Dep. at 103.) Plaintiff had known about the policy before the information session. While it is not clear exactly when she learned of it, she testified that she knew of the policy by the January 12 "wild sex" incident. (Breeding Dep. at 75.) After the session, Ennis told Breeding that she should report Mancuso's conduct to Maria Brau, Cendant's Human Resources Director for the Real Estate Franchise Group. (Ennis Dep. at 34.) Plaintiff refused to do so, and also asked Ennis not to report it on her behalf. (Id.)

Cendant's sexual harassment policy, as detailed at the conference, prohibited sexual harassment, including "unwelcome sexual jokes and unwelcome comments about an individual's body or personal life." (Brau Decl. ¶ 3; Fasmann Decl. Ex. 8 at 8.) Any employee who experienced such behavior could report it to his or her manager or the human resources department. (Brau Decl. ¶ 3.) Cendant would then investigate the complaint while attempting to maintain confidentiality, and the policy expressly prohibited any kind of retaliation based on an employee's making a complaint. (Fasman Decl. Ex. 8 at 9.) Upon finding that an employee's allegations were true, Cendant would "remedy the situation and, if appropriate under the circumstances, take disciplinary action up to and including termination." (Id.)

Around the time of the sales conference, Breeding was being recruited to take a position with GMAC Home Services. (Breeding Dep. at 164-65.) She decided to resign on January 18 or 19, after her last run-in with Mancuso and the sexual harassment training session, and accepted GMAC's offer. (Id. at 114.) On February 5, plaintiff submitted a letter of resignation to Brau, in which she stated that she was resigning because of Mancuso's behavior towards her. (Brau Decl. ¶ 7; Fasman Decl. Ex. 17.) Brau testified, and plaintiff does not dispute, that this was the first that Brau — or any other Cendant representative — learned of the alleged harassment. (Brau Decl. ¶ 7.) Upon receiving Breeding's letter, Brau attempted to investigate her allegations by calling plaintiff and informing her that it was Cendant's policy to investigate and remedy allegations of sexual harassment, but plaintiff would not return Brau's calls. (Breeding Dep. at 127-28.) Brau also followed up with a letter to Breeding, in which she stated that "[w]e are more than willing to investigate your concerns, however I need to speak to you directly in order to conduct a thorough investigation." (Fasman Decl. Ex. 23.) Breeding never responded. (Breeding Dep. at 129.)

Instead, in December 2001, Breeding filed this lawsuit against both Mancuso and Cendant, alleging that Mancuso had violated Title VII by sexually harassing her, and that Cendant was vicariously liable for the harassment. (Compl. ¶¶ 18-19.) As defendant Mancuso has been dismissed from the case with plaintiff's consent, Cendant is the only remaining defendant in the case.


Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials," rather she must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Similarly, the non-moving party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, she must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).

I. Hostile Work Environment Sexual Harassment

Plaintiff claims that Mancuso's sexual harassment of her created a hostile working environment. In order to withstand summary judgment on a hostile environment claim, plaintiff must establish that (1) the harassment was so severe as to alter the terms and conditions of her employment, and (2) there is a basis for imputing the harassing conduct to the employer. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). An employer who has notice that an employee is being sexually harassed has a duty to take reasonable steps to eliminate the harassment. Id. Conversely, the employer may avoid vicarious liability by establishing that it took reasonable steps to remedy the problem, and that the harassed employee unreasonably failed to avail herself of the corrective measures provided by the employer. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Here, although a jury could reasonably find that Mancuso's reprehensible and repeated humiliation of Breeding created a hostile working environment, plaintiff's unreasonable and unexplained failure to utilize any of Cendant's remedial measures necessitates summary judgment in favor of Cendant.

A. Hostile Working Environment

In order to establish that Mancuso's behavior created a hostile working environment, plaintiff must establish that the harassment was severe or pervasive enough to create an objectively hostile environment, and that she subjectively perceived the environment to be abusive. Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). In general, "incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive, and "isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. at 374 (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). In determining whether allegations of abusive conduct are sufficient to meet the threshold for an objectively hostile environment, courts examine the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Considering the nature of Mancuso's degrading comments and the public humiliation that they caused, a reasonable factfinder could conclude that plaintiff was subjected to an objectively hostile working environment, and that she subjectively experienced it as abusive.

Plaintiff has testified to four sexually harassing incidents that took place over a five-month period. Only the two incidents involving Mancuso's statements that plaintiff was injured while having "wild sex," and his alleged retelling of that story, are disputed, and defendant appears to discount these incidents in its discussion of whether the comments created a hostile environment. (Def. Mem. at 12-13.) Determining whether or not these events occurred is clearly a question of fact, however, and a jury would be entitled to believe Breeding's account, as well as Ennis's corroboration of it (Ennis Dep. at 14-21), and conclude that all four incidents of abuse occurred as she and Ennis have recounted them.

Breeding has presented evidence from which a jury could find that she subjectively believed that her working environment was abusive, as she has testified to becoming "completely hysterical" after the January 12 "wild sex" incident (Breeding Dep. at 74), and again after hearing that Mancuso had repeated the story (Id. at 76). She also testified that she had become discouraged about her prospects at Cendant (id. at 101), and Ennis testified that Breeding had communicated her distress to him (Ennis Dep. at 10-11).

Defendant argues, however, that Mancuso's comments, taken together, do not provide a basis on which a reasonable factfinder could conclude that plaintiff was subjected to an objectively hostile environment. (Def. Mem. at 12.) While defendant cites a number of cases holding that three or four "offensive comments" made over a period of roughly six months do not constitute pervasive enough abuse to create a hostile working environment, it is not simply the number or frequency of the comments that determines whether they created a hostile environment, but also their nature, effect, and the circumstances in which they were made. Here, Mancuso was Breeding's immediate supervisor, and a factfinder could conclude that his comments were frequent in relation to the limited contact between them, given plaintiff's frequent travel out of the office and the decentralized nature of the company. More importantly, a jury could find that Mancuso made the series of sexual comments in front of Breeding's coworkers and subordinates in professional situations. These were not simply unpleasant encounters between Mancuso and Breeding that made Breeding uncomfortable, but were not witnessed by other employees. Cf. Legnani v. Alitalia Linee Aeree Italiane SpA, No. 95 Civ. 202 (SAS), 1997 WL 642556, at *3 (S.D.N.Y. Oct. 16, 1997) (dismissing sexual harassment claim where coworker made a few sexual comments and obscene gestures, which plaintiff testified were not "severe"). Nor were these simply degrading comments that amounted to "mere offensive utterance[s]." Harris, 510 U.S. at 23; cf. Alfano, 294 F.3d at 379 (finding insufficient evidence of hostile environment where plaintiff was subjected to a few comments that she should not eat carrots because it was "arousing").

Rather, because Mancuso's use of humiliating sexual innuendo invariably took place in otherwise professional situations, the comments could have had the effect — intended or not — of severely undermining her position as a professional, and potentially changing her colleagues' perception of her. Thus, when Mancuso asked plaintiff if she was wearing "a garter belt, panties and stockings" during a business meeting, and acted out her having "wild sex" in front of a client and other colleagues, Mancuso created — or attempted to create — a perception of Breeding as a sex object and a victim, rather than a competent professional and an equal. This is precisely the injury that Title VII seeks to prevent, as the repeated public humiliation of an employee in a sexual manner can undermine that employee's professional position just as surely as a failure to promote or a wrongful termination. Thus, where the harassment took place in front of colleagues and contained an element of professional humiliation or intimations of incompetence, courts generally have found that the harassment was sufficient to create a hostile working environment, regardless of the frequency of the abuse. See, e.g., Harris, 510 U.S. at 19-20 (reversing dismissal of sexual harassment claim where plaintiff was subjected to sexual innuendo and comments that she was a "dumb ass woman" by a male supervisor), on remand, No. 3:89-0557 (JTN), 1994 WL. 792661, at *1 (M.D. Tenn. Nov. 9, 1994) (granting judgment for plaintiff); Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (finding that sexual comments that undermined perception of female firefighter's competence were sufficient to create a hostile environment). A jury could conclude that Mancuso's comments, which were all made in front of Breeding's colleagues and subordinates, and ranged from tasteless to cruel and humiliating, created a hostile working environment.

B. Cendant's Vicarious Liability

Cendant argues that, even assuming that plaintiff can establish that she was subjected to a hostile working environment, it is entitled as a matter of law to the affirmative defense to vicarious liability set forth in Faragher and Ellerth, because it can demonstrate that "(1) it took reasonable steps both to prevent sexual harassment and to remedy the sexually harassing conduct promptly once it was brought to the employer's attention; and (2) the harassed employee unreasonably failed to avail herself of any corrective or preventive opportunities made available by the employer." O'Dell v. Trans World Entertainment Corp., 153 F. Supp.2d 378, 388 (S.D.N.Y. 2001) (citing Faragher, 524 U.S. at 807, and Ellerth, 524 U.S. at 765). Plaintiff has conceded that she failed to use Cendant's sexual harassment policy, and that she did not notify Cendant of the alleged harassment until she resigned. (Breeding Dep. at 54, 88, 101.) Because she has not presented any evidence or testimony from which a reasonable jury could conclude that this failure was reasonable, Cendant cannot be held vicariously liable for Mancuso's conduct.

At the outset, plaintiff appears to argue that the fact that Cendant had a sexual harassment policy, and that she failed to utilize it, is irrelevant, because she should not be obligated to complain about the harassment once it had already occurred. (Pl. Mem. at 4-5.) This argument is contrary to both the law and common sense. Faragher and Ellerth clearly provide that employers may avoid liability for sexual harassment if they maintain a sexual harassment policy that a plaintiff unreasonably failed to use, a holding that is drawn from the straightforward principle that a party should not be subject to vicarious liability if it had no knowledge of the wrongdoing, and no chance to correct or mitigate it. Ellerth, 524 U.S. at 765. The fact that plaintiff had already suffered harm from Mancuso's comments is irrelevant; while Title VII's "primary objective" is "not to provide redress but to avoid harm," a victim of sexual harassment has a duty "to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from violations of the statute." Faragher, 524 U.S. at 806 (internal quotation marks and citations omitted). Contrary to plaintiff's argument, her fulfillment of this duty would have had concrete benefits: assuming that Cendant had taken appropriate corrective measures, Breeding herself would have been vindicated, and she would have been assured that she — and other female employees — would not have to suffer at Mancuso's hands again.

In order to establish that it took reasonable steps to correct the alleged harassment, defendant must show that it had in place a sexual harassment policy that was designed to prevent and correct instances of abuse. Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001). Cendant has presented evidence from which a jury could find that it maintained a sexual harassment policy that allowed employees to report potential harassment to management or human resources with a guarantee of confidentiality, and that promised careful investigation, followed by appropriate remedial action. (Fasman Decl. Ex. 8.) The policy also explicitly prohibited any retaliation based on an employee's complaints. (Id. at 9.) This is sufficient to establish Cendant's reasonable care as a matter of law See, e.g., Leopold, 239 F.3d at 245; Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999).

Plaintiff may rebut this showing by presenting evidence that the policy is ineffective, that she had no notice of the policy, or that defendant failed to follow its own procedures. Leopold, 239 F.3d at 245. Here, plaintiff has conceded that she knew about Cendant's policy by January 2001, when most of the alleged incidents of harassment took place (Breeding Dep. at 75), and that Cendant provided seminars to educate its employees about the policy (id. at 103). Once Cendant's human resources director had notice of the alleged harassment, she notified plaintiff that she wished to investigate the charges, pursuant to the policy, but plaintiff refused to cooperate. (Brau Decl. ¶ 7; Breeding Dep. at 127-29.) Plaintiff has offered no evidence that actions such as Mancuso's were widespread at Cendant, or that Cendant officials ignored complaints of sexual harassment or failed to take corrective actions in appropriate cases. Thus, plaintiff has not presented any evidence from which a rational factfinder could conclude that Cendant's sexual harassment policy was ineffective.

With respect to the second prong of the affirmative defense, once defendant has established that plaintiff failed to make use of its harassment policy, the burden of production shifts to the plaintiff to present evidence as to why she did not use the procedures. Leopold, 239 F.3d at 245. For plaintiff's "reluctance [to report harassment] to preclude the employer's affirmative defense, it must be based on apprehension of what the employer might do"; in other words, plaintiff must have had an objectively credible fear that the employer would not respond or would retaliate. Caridad, 191 F.3d at 295. Thus, plaintiff must produce evidence "to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response to such complaints." Leopold, 239 F.3d at 246. The employer may rely on the absence or inadequacy of plaintiff's proffered evidence in satisfying its ultimate burden of persuasion as to the defense. Id.

Breeding testified to a number of reasons that she did not report each episode of harassment as it occurred, although only those that suggest her fear of retaliation or indifference are relevant to Cendant's entitlement to the affirmative defense.*fn1 She stated that she felt that she might be fired or that her career opportunities might be limited, because "creating any kind of waves [at Cendant] could be a problem." (Breeding Dep. at 60, 123.) She also testified that, after hearing McMahon's comment to the effect that employees should get all their sexual harassment in before the harassment seminar, she felt that upper management condoned sexual harassment. (Id. at 107.) These conclusory statements are not sufficient to allow a reasonable jury to find that plaintiff had a credible fear that Cendant would retaliate against her, or that it would ignore her complaint.

Plaintiff has not presented any evidence that other employees were penalized in any way for complaining about sexual harassment, or that she had any basis for believing that her career might be hurt if she reported Mancuso's conduct. She also has not substantiated her assertion that "creating any kind of waves" could cause retaliation or hurt her opportunities; while she might have had compelling reasons for this subjective belief, without some supporting evidence, her statements to this effect remain merely conclusory allegations. Because specific evidence of fear is necessary, plaintiff's unsupported assertions cannot establish that her fear was credible. Leopold, 239 F.3d at 246; Fierro v. Saks Fifth Ave., 13 F. Supp.2d 481, 492 (S.D.N.Y. 1998) ("[T]o allow an employee to circumvent the reasonable complaint requirements of Faragher and [Ellerth] by making conclusory allegations of feared repercussions[] would effectively eviscerate [the] affirmative defense.").

While plaintiff may have found McMahon's comment offensive, especially given her problems with Mancuso, it alone does not provide a basis on which she reasonably could have concluded that Cendant's sexual harassment policy was ineffective or illusory. Plaintiff has not presented any evidence suggesting that McMahon's comment was reflective of a pervasive attitude within management, or that management systemically discouraged harassment complaints. The fact that the sexual harassment seminar was given by the human resources department, and the policy allowed employees to complain directly to someone in the human resources department rather than in management, reinforces this conclusion; a reasonable person would not have concluded that one manager's attitude would prevent the company's procedures from being effective. O'Dell, 153 F. Supp.2d at 392 (holding that CEO's offensive comments were not evidence that company's policy was ineffective). Plaintiff simply has not proffered any evidence from which a rational factfinder could conclude that her fear was credible, and that her consequent failure to utilize Cendant's complaint procedures was reasonable. Her sexual harassment claim must therefore be dismissed.

II. Constructive Discharge

Plaintiff also alleges that she was forced to resign because of Mancuso's treatment of her. A constructive discharge arises when an employer deliberately makes an employee's working conditions so intolerable that the employee is forced to resign. Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). Plaintiff must show that a reasonable person in her position would have felt compelled to resign, in light of her circumstances as a whole, taking into account positive or constructive elements of the workplace as well as adverse ones. Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996); Stembridge v. City of New York, 88 F. Supp.2d 276, 284-85 (S.D.N.Y. 2000).

The standard for deciding whether the conditions of plaintiff's employment were sufficiently intolerable to support a constructive discharge claim is demanding. See Pena, 702 F.2d at 325. But even assuming the facts here could meet that standard, plaintiff has not proffered evidence from which a reasonable factfinder could conclude that a reasonable person would have felt compelled to resign. Where an employer provides an opportunity for an employee to air her grievances, she must give the employer the chance to respond to them before she resigns. Spence v. Maryland Casualty Co., 995 F.2d 1147, 1157 (2d Cir. 1993) (finding that grievance procedure was an "effective alternative" to resignation); Stembridge, 88 F. Supp.2d at 285 (holding that employee's failure to take advantage of employer's complaint procedure rendered his resignation unreasonable). Because Breeding knew about Cendant's complaint procedures, and her failure to complain about the harassment she suffered was not justified by credible fear, no rational jury could conclude that her resigning without ever notifying Cendant of the harassment was reasonable or compelled by the circumstances.


For the reasons set forth above, defendant's motion for summary judgment is granted.


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