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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 ...

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