The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
This is an action for employment discrimination pursuant to
Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq., and New York Human Rights Law
("NYHRL"), New York Executive Law § 290 et seq. Now before the
Court is defendant's motion (# 19) for summary judgment. For the
reasons that follow, the application is granted.
Except where indicated below, the following facts are
undisputed. Plaintiff Kathleen Reissner ("Reissner") was employed
as an instructor in the training department at defendants' Ginna
Nuclear Power Plant until November 28, 2001. From late 1998 until
approximately June 2002, Andrew Harhay ("Harhay") was the head of
Training Accreditation, and Reissner reported directly to him.
Harhay aff. ¶ 2. Reissner was an instructor responsible for
training individuals regarding plant safety and access, radiation
protection, and general policies and procedures applying to all
persons requiring access to the power plant. This was known as
General Employee Training or GET. From late 1997 or late
1998*fn1 to the end of 2000, Reissner was responsible for
teaching a co-employee in the training department, June Anderson
("Anderson"), about the technical material which formed the
foundation of the GET program. From the point at which Reissner and Anderson first started working together in 1997 or
1998, Reissner states that Anderson sexually harassed her.
During 1999 and 2000, Reissner occasionally complained that
Anderson was not learning the material fast enough and that the
training process was taking longer than Reissner had planned. In
that regard, Reissner voiced complaints periodically to the
Training Department management that Anderson was learning slowly,
that she "didn't get it" and that Reissner did not feel Anderson
would make a good instructor. Rick Watts ("Watts"), the Training
Department manager, and Harhay periodically reviewed Anderson's
training under Reissner, and determined that Anderson was making
progress, although more slowly than expected. They concluded that
Anderson simply needed more time to assimilate the requisite
technical information and decided to extend the time line for
Anderson to become an instructor.
Reissner also alleges that Watts failed or refused to
acknowledge the problems Reissner says she was experiencing
regarding Anderson's performance and Anderson's alleged sexual
harassment, and that Watts insisted that Reissner continue to
work even more closely with Anderson. These allegations are made
without references to evidentiary proof in admissible form as
required by local rule,*fn2 and will be disregarded.
Reissner described her first recollection of what she alleges
was sexually harassing behavior by Anderson towards her, which
she recalled occurred in the fall of 1997, around Christmas time. She stated, "I was at my desk and
[Anderson] was asking for some help sitting next to me and
started putting her hand on my leg and rubbing my leg." Reissner
dep. at 45. Reissner asked Anderson not touch her, to which
Anderson responded that she meant nothing by it, and stopped.
Reissner did not report the incident. Id. Asked about the next
incident of sexual harassment she recalled, Reissner stated:
Many of the conversations that we would have, when we
did have a conversation, she would continuously stare
at my breasts. I asked her not to do that. . . . She
would say she's not. . . . And other times during our
working relationship, again if we were she was
always very close to me, very, very close and it made
me very uncomfortable and I asked her not to be that
close to me.
Reissner dep. at 45 46. Asked again what the next specific
incident of sexual harassment was, Reissner stated that it was
Anderson's calling her "babe" and "hon" when Reissner had asked
her not to do so. Id. Reissner stated that despite having told
Anderson not to call her either "babe" or "hon," Anderson
continued to do so and when Reissner again asked her to stop,
Anderson repeated that she meant nothing by it.
Reissner related that Anderson's touching, using the terms
"babe" and "hon," and staring at her breasts, gave her the
feeling that Anderson wanted more than just a conversation.
Id. at 47-48. Reissner stated that she has heard Anderson call
other people "babe," but has not specifically heard her call
other people "hon." When asked if she had ever seen anyone
touched by Anderson, Reissner replied, "I can't recall who, but,
yes, I've seen her touch people, but she's a very close person."
Reissner dep. at 48. When asked to explain what she meant by the
term "close person," Reissner stated, "I would say that the
distance that she needs between someone is a lot less than the
distance that I need from someone." Reissner dep. at 48. Reissner also
expressed her opinion that she believed Anderson was a lesbian
and the actions described above were sexual overtures. Reissner's
belief, she testified at her deposition, was based upon,
[j]ust different conversations that I had had with
her, that she had talked to me about. . . . She was
asking things in general like do you how do you
know if you prefer men over women sexually. . . . And
just her actions towards me. . . . Her sexual
orientation was a topic of conversation throughout
the training center. . . . I listened to some of
those conversations and participated in some.
Reissner dep. at 48-49.
Reissner also alleges that Anderson asked her about Reissner's
sex life on several occasions. At her own deposition, Anderson
denied being a lesbian. Anderson dep. at 75-77. In fact, Anderson
stated, "I am heterosexual." Id. at 76. When asked if she had
had sexual relations with women, Anderson replied that she had
not. Id. Anderson also denied expressing an interest in
Reissner's sexual relationships, and denied having asking
Reissner about her sexual relations with her husband
Reissner contends that any verbal confrontations she had with
Anderson were based solely upon Anderson's alleged sexual
harassment "and the undisputed inability of . . . Anderson to
understand and deliver appropriately the training materials she
was assigned." Plaintiff's Statement Undisputed Facts ¶ 9. On
September 23, 2000, Reissner verbally attacked Anderson regarding
the quality of Anderson's work and Reissner's perception that
Anderson frequently made errors in delivery of training
information. Miller aff. ¶ 7. Reissner also threatened to slap
Anderson during this conversation, and told her that none of the
other instructors thought that Anderson should be in the classroom. Reissner finished by saying to Anderson that
Reissner's children could learn faster than Anderson. Reissner
dep. at 58. Anderson put her hand on Reissner's arm during part
of that conversation, but Reissner did not think that Anderson
meant it in a sexual way at that time. The conversation upset
Anderson and she reported to department management and submitted
a written statement regarding what occurred.
On September 25, 2000, Harhay met with Reissner for
approximately two hours and counseled her regarding her conduct
towards Anderson. Reissner admitted that the confrontation
detailed above had taken place and admitted that her conduct was
inappropriate and unacceptable. During the meeting, Reissner
agreed that she crossed the line and did not act professionally
in her interactions with Anderson. Harhay counseled her that her
behavior toward Anderson was unacceptable and could not continue,
and he told her that EAP*fn3 counseling was available to
help her work through her issues.
During this counseling session, Reissner said that she had been
frustrated for some time regarding Anderson's lack of ability to
grasp the various technical issues in the training program.
Harhay realized that Reissner was having difficulty helping
Anderson become a successful instructor, and believed that
Reissner did not understand Anderson learned in a different
fashion from Reissner. Harhay knew from evaluations that Anderson
was actually progressing, so he instructed Reissner to send
Anderson to him with any issues Reissner felt she was unable to
communicate and he would try a different approach. Reissner
agreed to continue her mentoring of Anderson. On September 27, 2000, Reissner returned to Harhay and said
that she thought further about their discussion of the 25th, and
decided that she could not continue to instruct Anderson and
wanted to be relieved of that assignment in order to eliminate
her frustration. Harhay advised Reissner that they would need to
find a way to allow Reissner to alleviate her frustration, while
still allowing Anderson to develop to her full capabilities.
On October 27, 2000, Reissner questioned Harhay about why she
had not received overtime pay for some time she worked that month
during a plant outage. Although Reissner was an exempt employee,
she was entitled to a certain amount of overtime pay for extra
work during plant outages and other special events. Harhay
investigated the matter, determined that Reissner had been
properly paid, and advised her of that later in the day.
Reissnerr responding by becoming belligerent with Harhay, stating
very loudly that she was not going to work anymore "freaking"
overtime ever again if she did not get the additional pay, and
that if she was asked to stay late or come in early, she would
refuse and explain that she was refusing because management did
not appreciate her. She then left Harhay's office and slammed the
door, saying that she was "tired of June [Anderson], tired of
Rick [Watts] and tired of you." Harhay aff. ¶ 7.
On another occasion, during a meeting with Harhay concerning
the training program, Reissner referred to Anderson in anger as a
"fat lesbian." Harhay responded by admonishing Reissner that
personal characterizations were inappropriate and unproductive
and should not continue. Subsequently in November 2000, after
being informed by Harhay of Reissner's unacceptable behavior
towards Anderson and that Reissner had become aggressive with him regarding overtime and
other issues, Watts counseled Reissner. Watts advised Reissner
that her continued aggressive and abusive conduct had to stop,
and that her personal characterizations and insulting comments to
Anderson were inappropriate in the workplace and could not
On February 15, 2001, during her performance evaluation by
Harhay, Reissner shouted abuse and personal insults at Harhay,
within the hearing of others in the department. Reissner shouted
at Harhay that he was the "biggest fucking loser she'd ever
worked for" and that if he got hurt tomorrow, she would not care.
Harhay dep. at 20. Harhay asked Reissner to return to her cubicle
and calm down, and notified Watts, who called Senior Human
Resources Consultant Cynthia Miller ("Miller"), asking her to
participate in a meeting with Reissner. Watts and Miller met with
Reissner that same day. At this meeting, Reissner was asked about
what occurred with Harhay. Reissner admitted that her conduct
towards Harhay was inappropriate, but she remained belligerent
and unapologetic. Watts ordered her to leave the facility, and
Reissner drove to the plant access gate and went into the
guardhouse, as if to enter the nuclear facility.*fn4
As a result of her behavior toward Harhay, Watts and Miller,
Reissner was suspended for three days and given a final warning,
which she acknowledged and admitted. Reissner remained out of
work on medical leave pending certification by defendants'
physician that she was fit for duty.
Reissner returned to work on March 19, 2001. After her return,
Reissner and Anderson had minimal contact with each other.
Reissner dep. at 259. Anderson had been put under the mentorship of another employee, Sandy Smith, a
former instructor agreeable to helping her continue to learn the
material for the GET program. Meanwhile, Reissner had been
redirected into a ...