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May 22, 2003


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff Eloise Gonzalez ("Gonzalez") brought this action against her former employer, Beth Israel Medical Center ("BIMC"), alleging sexual discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ("Title VII"). Before the Court is BIMC's motion for summary judgment (the "Motion") to dismiss the complaint in its entirety. For the reasons described below, the Motion is granted.


As with many Title VII lawsuits, the case at bar presents a complicated narrative containing certain facts that are undisputed and other facts about which the parties completely disagree. For the sake of clarity, the Court divides the factual recitation into three sections. The first section begins when Gonzalez was originally hired by BIMC and ends when she was first terminated. The second section describes the period after she was terminated and before she was reinstated, and the third encompasses the period between her reinstatement by BIMC and her termination for the second time.


Gonzalez began working at BIMC in January of 1997 as a Medicaid interviewer, a job in which she interviewed and assisted BIMC patients with no health insurance who needed to apply for Medicaid. At that time, she had two supervisors: Antonio Sanchez ("Sanchez") and Jose Cabrera ("Cabrera"). Cabrera, a twenty-three year veteran of BIMC, served as Gonzalez's immediate supervisor, while Sanchez, who had been employed by BIMC for thirty years, supervised both Cabrera and Gonzalez. The two men had worked together in the same unit for fifteen years, but, according to Cabrera, did not socialize outside of work.

Upon commencement of her employment, Gonzalez received information describing two BIMC policies. The first, a tardiness policy (the "Tardiness Policy"), allows BIMC to progressively discipline an employee if she is more than five minutes late without an excuse three times within a two-week period or five times within a year (an "Excessive Lateness"). Under the Tardiness Policy, the first Excessive Lateness results in a verbal warning. After that, each successive Excessive Lateness within a 12-month period results first in a written warning, then a suspension, and finally a discharge.

When Gonzalez began working for BIMC in 1997, employees would write in their arrival times in a looseleaf binder, which was then converted into a word processed document by Deborah Simpson, Sanchez's secretary. It appears that at some point, a punch clock may have been used to the same effect, and then, sometime near the end of Gonzalez's tenure, BIMC converted to the Kronos system ("Kronos"),*fn1 which required employees to "swipe in" with their employee identification card at a magnetic card reading device connected to a computer.

The other policy affecting Gonzalez was BIMC's Anti-Harassment and Anti-Discrimination Policy (the "Harassment Policy"). The Harassment Policy forbids sexual harassment in the BIMC workplace, and provides for a complaint procedure governing the reporting and investigation if allegations of sexual harassment. On January 14, 1997, when she was first hired, Gonzalez received a copy of the BIMC Employee Handbook and a copy of the Harassment Policy, attended an orientation where the Harassment Policy was discussed, and signed a form attesting to her receipt of the policy and her attendance at the orientation.

As Assistant Director of Gonzalez's department, Sanchez had the authority to discipline workers, and eventually could have them fired pursuant to specific union disciplinary procedures. Beginning in her first year of employment, Gonzalez claims that Sanchez made several sexual advances towards her, such as trying to kiss her, touching her and leaving her inappropriate notes. She received the first such note on October 14, 1997. It read:


Good morning precious — smile, for your smile awakens the heart! The day is heavenly only because you have opened your eyes and have joined us mere mortals in this everlasting journey — only your presence makes it tolerable to endure!!!

(Defendant's Exhibit H, attached to Gonzalez Dep.)

According to Gonzalez, over the next two and a half years Sanchez's inappropriate behavior persisted despite her repeated requests for him to stop. Gonzalez asserts that she did not report the harassment under the procedures outlined in the Harassment Policy because she hoped the conduct would end on its own, and because she did not want to lose her job or get Sanchez in trouble and cause him to lose his job, especially because he had a wife and kids. However, Sanchez continued to harass Gonzalez through phone calls, nonconsensual touchings and six more notes, including one that read:

Delicious is a word thats [sic] presented to describe a taste thats [sic] pleasing and fulfilling — no one can understand the true meaning of this word, unless they taste your lovely and appealing perfect TiTis!

(Defendant's Exhibit I, attached to Gonzalez Dep.)

Gonzalez alleges that the other five notes were similar in their level of sexual explicitness, and sometimes were accompanied by gifts. Gonzalez claims to have ripped up these other notes, except for the last one, which she received during an encounter in Sanchez's office in 2000 where he asked Gonzalez to leave the panties she was wearing with him and buy a new pair at a nearby Victoria's Secret lingerie store. The note read:

I believe that Union Square has a store chats [sic] appropriate (V. Secrets) It will be good [sic] walk to let the scents [unreadable]
(Defendant's Exhibit J, attached to Gonzalez Dep.) Gonzalez refused Sanchez's request, and left his office in tears.

During this same two-and-a-half-year period, Gonzalez received several warnings from Cabrera regarding her tardiness. The first, a verbal warning, was allegedly delivered on March 3, 1998 in response to her lateness on four different occasions during the month of January 1998. However, Gonzalez disputes that she ever received such a warning.*fn2 The second warning, a written warning, was delivered on May 11, 1999, and claimed that Gonzalez had been late for 21 days since January 1, 1999 and was not regularly swiping in her card using Kronos. This written warning, which Gonzalez read in the presence of her union delegate but refused to sign, also noted that Gonzalez was issued a verbal warning for lateness on July 7, 1998.

The third warning, delivered as a written warning on June 15, 1999, also accuses Gonzalez of lateness, this time on four different occasions between January 23 and June 12 of 1999. According to the warning, all of these occurrences happened during Gonzalez's weekend assignment.*fn3 Once again, Gonzalez read the document in the presence of her union delegate, but refused to sign it. The fourth warning, delivered on September 27, 1999 as a written warning, alleged that Gonzalez had been late on seven different occasions since her May 11, 1999 warning.*fn4 The warning added that Gonzalez was "being issued a final warning in lieu of suspension." (Defendant's Exhibit K, attached to Gonzalez Dep.) As before, Gonzalez read the warning in the presence of her union delegate, but refused to sign it.

With these series of warnings on her record, Gonzalez was called into Sanchez's office in April of 2000.*fn5 Gonzalez alleges that Sanchez expressed anger that he could not "have" her, and complained about her constant tardiness to work. (Gonzalez Dep. at 112.) Gonzalez claims that Sanchez then told her that because she had been late eight times in the past several months, she should resign, or he would fire her. Gonzalez disputed the number of times she had been late, refused to resign, and left the office.

Spurred by Sanchez's threat to fire her, Gonzalez filed a complaint with BIMC's Human Resources department on April 24, 2000. In the complaint, she reported the incidents of Sanchez's sexual advances recited above. Christopher Berner ("Berner"), a labor relations manager for BIMC, was assigned to investigate Gonzalez's allegations. As part of his investigation, Berner interviewed Gonzalez and Sanchez. He also interviewed Audrey Gomez ("Gomez") and Anne Lane, both of whom had worked for Sanchez at one point, and Catherine Dakis ("Dakis"), who was Sanchez's supervisor.

During the investigation, Sanchez admitted to Berner that he had authored the notes referred to above, but insisted that they had been written for himself as part of his hobby of writing poetry. He suggested that Gonzalez may have taken the notes from his ...

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