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United States District Court, W.D. New York

April 22, 2004.


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 continue.

  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 project involving the development of computer-based training, which occupied most of her time.

  Watts informed Reissner that she would be unable to apply for another position within the company until after the first of the year. During follow-up meetings with Watts in May 2001, Reissner made specific allegations regarding actions by Anderson that she said made her feel uncomfortable. Reissner stated that Anderson called her "babe" and "hon" and picked lint off of her on occasion. Reissner told Watts that Anderson drove down Reissner's street and that Anderson stood uncomfortably close to her in conversation.

  Anderson was questioned (the date is not revealed in the parties' statements) regarding all of these allegations. She denied driving down Reissner's street, and stated that she was unaware that her other personal habits were offensive to Reissner, but that she would stop those behaviors. Reissner, meanwhile, provided the names of six other female employees whom she alleged had had similar experiences with Anderson. Each of these employees was interviewed either by Miller or by Miller's supervisor, Charles Cookson ("Cookson"). As a result of these interviews, defendants were unable to confirm that any harassing behaviors had occurred. None of the employees interviewed felt there was any sexual intent in Anderson's conduct towards them. One employee, Caryn Griffis, stated that she thought Anderson was just "trying to be one of the crowd." Another, Carol Cario, recalled an incident in which Anderson touched her to remove lint, but expressly declined to describe the conduct as "sexual" in nature. Another employee, Beth Bacon, stated that Anderson had called her "babe" in the past and that she did not think it was offensive. Still another employee interviewed, Julie Mancuso, said that she thought Anderson was abrupt or rude at times, but that she never witnessed any of the behaviors Reissner described. Anderson admitted to (and promised to stop) calling Reissner "babe" or "hon," and agreed to be conscious of the personal space issue when dealing with Reissner. The investigation revealed no basis upon which to discipline Anderson.

  On June 7, 2001, Anderson alleged that Reissner made a threatening statement to her. When questioned, Reissner denied making the statement. There were no other witnesses. The allegation was, from management's point of view, unsubstantiated and no disciplinary action was taken. Reissner went out on medical leave for approximately one month after being questioned regarding Anderson's allegation.

  Reissner returned to work on July 13, 2001 at which time she continued to work on the computer-based training project and maintained little or no contact with Anderson. On July 31, 2001, Reissner went on medical leave again and did not return until August 24, 2001. At her deposition, Reissner stated, "[a]fter I returned back from my first medical leave, the time that [Anderson] and I actually spent together for the first time was actually decreased. . . . From the time I came back after that first medical leave to the time that I was terminated our interaction was little." Reissner dep. at 219. In October 2000, Reissner started taking medication for panic and anxiety attacks and her counselor (who is not identified by name or title) advised her to limit her time with Anderson as much as possible. Reissner dep. at 62. In the fall of 2001, Although both Reissner and Anderson had been instructed to avoid each other, Anderson reported two more instances in which she alleged Reissner either physically intimidated her, or made unnecessary physical contact. Reissner was questioned about each of these incidents, which she denied, and because the allegations could not be substantiated, management took no disciplinary action.

  On October 19, 2001, Harhay and Watts had separate meetings with both Reissner and Anderson to explain that professional behavior was expected. Both parties were directed to stay away from each other, and warned that if any "game of intimidation" was being played, it needed to stop immediately, or the next substantiated charge would result in discipline or termination. During the meeting Reissner experienced what she recalled as a "panic attack." Reissner's behavior as to the "panic attack," was so aberrant, that when she was physically able, management directed her to go home. As to Anderson, Harhay, Watts and Miller met with her later that day and told her that any unprofessional conduct would no longer be tolerated, and that she and Reissner were to make every effort to avoid each other and otherwise maintain a professional demeanor. Anderson was upset, but indicated that she understood. She related that she was very frustrated with the situation.

  On Monday morning, October 22, 2001, at approximately 7:30 a.m., Reissner was again rude and insubordinate to Harhay, when he had occasion to say "hi" to her. She responded to him in a belligerent and unprofessional tone and said that she did not want him speaking to her, and that he was standing too close. Harhay reported the incident to Watts, who determined that based on the aberrant behavior she displayed the previous Friday, and all of her previous insubordinate conduct, Reissner would be sent home immediately.

  Over the next thirty days, management evaluated Reissner's performance and attitude. They determined that she had failed to adhere to the terms of her final warning, which required professional and respectful behavior toward her co-workers and her supervisors. Management's position was that Reissner's behavior had violated defendants' policies regarding workplace conduct, that she had been counseled numerous times, and that she had been placed on a "final warning" regarding her rudeness and insubordinate behavior. Reissner's department managers, Watts and Harhay, in consultation with Human Resources, determined that Reissner's failure to improve her attitude and approach to dealing with co-workers and supervisors justified her dismissal, and she was terminated as of November 28, 2001.

  After her termination, Reissner filed a Charge of discrimination with the Equal Employment Opportunity Commission alleging that she had been sexually harassed by Anderson, and that she had been terminated in retaliation for reporting the sexual harassment. Defendants responded by setting forth the foregoing events and indicating that it was Reissner's own conduct towards her co-workers and superiors which caused her termination. Upon Reissner's request, the EEOC issued her a right to sue letter and Reissner commenced this action on July 1, 2002.

  In the lawsuit, Reissner contends that Anderson continually touched her legs when the two sat down together and that Anderson constantly touched her arms when they stood near each other. In support of this claim, Reissner cites to her own deposition transcript at page 64. Both parties have included excerpts from a clean deposition transcript of Reissner; however, neither party has included page 64. Therefore, the Court will disregard this allegation.

  Reissner also alleges that her complaints to management fell on deaf ears. In support of that claim, she cites to page 87 of her deposition transcript. The questions and answers on that page concern an allegation by Reissner that Anderson had been stalking her. Page 86, however, contains Reissner's allegations that she told Watts, during a November meeting (the year is not specified in this portion of transcript), that she was uncomfortable with Anderson, but that Watts did not really say anything in response, except to ask if Reissner thought Anderson was a lesbian. Reissner responds that she did think so. Reissner dep. at 86. Reissner also stated during her deposition testimony that she was not sure of the time frame, but there was one point when she was meeting with Watts, Miller and Harhay "probably a couple, two, three times a week discussing issues between [Anderson] and I [sic] and that's when I asked for a neutral person [to be present at the meetings with her]." Reissner dep. at 117. The deposition transcript at this point does not contain any explaination of whether defendants' policy allowed a neutral person to attend company personnel meetings. Reissner also cites to her deposition testimony in which she stated,

[t]ypically, whenever I was in the meeting with any one of those individuals [Cookson, Miller, Watts, or Harhay], it was on a negative note from my part. I'm doing my job, and Andy [Harhay] would usually walk up to me, tap me on the shoulder and say, "We need to see you in the conference room right now," and I'd say, "About what?" and, "We'll tell you when we get there."
Reissner dep. at 262. Reissner contends that she told these individuals at almost every meeting that Anderson made her feel uncomfortable by "looking at [her] breasts, talking, calling [her] `Baby' [sic] and `hon,' standing too close to [her], [and] wanting to touch [her]." Reissner dep. at 263. Reissner also talked about a meeting that occurred on June 8, 2001, in which Miller and Watts called her to a classroom. There they informed her Anderson had reported that on the previous day, Reissner had threatened Anderson in the hallway. They wanted to know if it was true. They also said, before Reissner could respond, that if it was true, she would be terminated. Reissner dep. at 263. She informed them that it was not true and was not terminated. Id.

  Finally, plaintiff related the details of her termination. She stated that she walked into Cookson's office, that both Cookson and Watts were there,

and they told me I would be terminated immediately. . . . They asked me if I had any questions, and I just had the same question I had the whole time, is why is all of this happening, why did it go so far, and why was I never asked what my side of the story ever was. And both [Cookson] and [Watts] looked at me and didn't make any comments.
And I said, "Rick, why, why didn't you ever ask me what happened? Why didn't you ever ask me my side of the story?" And Rick's reply was he didn't have to. So we said goodbye and I left.
Reissner dep. at 294.


  Federal Rule of Civil Procedure 56

  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). Title VII and the New York Human Rights Law

  Title VII "makes it unlawful for an employer to discriminate against any individual with respect to the `compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Richardson v. New York State Department of Correctional Services, 180 F.3d 426, 436 (2d Cir. 1999) (citations omitted). The NYHRL similarly provides that

[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of the . . . sex . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
N.Y. Executive Law § 296(a). The analysis of claims under the NYHRL parallels that of claims under Title VII, 42 U.S.C. § 2000e et seq. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (Citations omitted).*fn5

  Hostile Work Environment Claim

  Reissner's complaint is not broken into distinct causes of action. However, from the body of the complaint, it appears she is raising two claims: (1) hostile work environment (Complaint ¶ 10); and (2) retaliation (Complaint ¶ 20). Those two claims are summarized as follows:

From approximately October 1997 through November 28, 2001, the date of my termination, I was subjected to repeated acts of sexual harassment by [Anderson], a female co-worker which were pervasive and which permeated my work environment making a hostile work environment in every sense of the word [sic]. Rather than assisting me, it is my contention that [defendants] made matters much worse for me by essentially retaliating against me because of my complaints about [Anderson] and my management.
Complaint ¶¶ 10 & 20 (emphasis in original removed).

  Defendants argue that plaintiff cannot demonstrate a prima facie case of hostile environment discrimination, because, in a case involving allegations of same-sex harassment, she has failed to prove that any harassment was "because of" sex. To survive a motion for summary judgment involving a hostile work environment claim, a plaintiff


must elicit evidence from which a reasonable trier of fact could conclude (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.
Mack v. Otis Elevator Co., 326 F.3d at 122 (Citation and internal quotation marks omitted). As the Second Circuit held in Brown v. Henderson:

  It is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through such concrete deprivations as being fired or being denied a promotion, is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998). In determining whether an employee has been discriminated against "because of such individual's . . . sex," 42 U.S.C. § 2000e-2(a)(1) (emphasis added), the courts have consistently emphasized that the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of different groups within the workplace. See Connecticut v. Teal, 457 U.S. 440, 453-54 (1982) ("The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole."); City of Los Angeles, Dep't of Water and Power v. Manhart, 435 U.S. 702, 708, 55 L.Ed.2d 657, 98 So. Ct. 1370 (1978). Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). In the case of same-sex harassment, such as is alleged here, a plaintiff has three evidentiary avenues available to prove a prima facie case of same-sex harassment:


Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimination . . . because of . . . sex."
Oncale v. Sundowner Offshore Servs., 523 U.S. at 80-81 (emphasis added). Reissner has failed to prove a prima facie case of a sexually hostile work environment on all three fronts possible.

  First, she has not shown that Anderson was a homosexual. Clearly the material facts on this issue are not in dispute. Reissner assumed Anderson was homosexual from her acts (touching, staring at her breasts, etc.) and from office gossip. Anderson has unequivocally denied being homosexual, denied ever having sexual relations with other women, and affirmatively stated that her sexual orientation was heterosexual. The record contains no "credible evidence that the harasser was homosexual." Oncale, 523 U.S. at 80. The case of Moran v. Fashion Inst. of Tech., No. 00 Civ. 1275 (KMW) (RLE), 2002 WL 31288272, 2002 U.S. Dist. LEXIS 19387 (S.D.N.Y. Oct. 7, 2002) is instructive on this point. In that case, the district court found that the plaintiff, Moran


has presented no evidence of DeBarbieri's homosexuality and therefore, no inference can be made to support Moran's contention that DeBarbieri's actions were done out of sexual desire. See, e.g., [La Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002)] (evidence that defendant poked plaintiff's anus and was "jealous" of plaintiff's girlfriend gave rise to inference of homosexuality); Shepherd [v. Slater Steels Corp.], 168 F.3d 998 168 F.3d [998] at 1009-10 [7th Cir. 1999] (evidence that defendant "rubbed himself to erection while plaintiff lay on his stomach with cramps, and subsequently threatened to "crawl on top of [plaintiff] and fuck [him] in the ass" gave rise to inference of defendant's homosexuality). Further, Moran has not alleged that DeBarbieri acted out of malice towards males in the work environment nor that DeBarbieri treated males differently from females. Therefore, Moran's same-sex sexual harassment/hostile work environment claims should be dismissed.
Moran, 2002 U.S. Dist. LEXIS 19387, at *17. In addition, the case of West v. Mt. Sinai Med. Center, also illustrates the lack of credible proof in this case that Anderson is homosexual. Based on the following facts, the district court found that the plaintiff had failed to prove a prima facie case of sexual harassment:
Plaintiff alleges that during the duration of her employment she was the victim of repeated unwanted sexual advances by Dr. Shriver. Though Dr. Shriver never directly propositioned plaintiff, plaintiff alleges that Dr. Shriver often did nice things for her, such as offer to buy her yogurt, bring her leftover plates of food, and allow her to eat at her desk even though other employees were not permitted to do so. According to plaintiff, Dr. Shriver also occasionally asked her about her weekend plans and sat close to her when others were not around. Plaintiff interpreted these gestures as sexual advances.
West v. Mt. Sinai Med. Ctr., No. 00 Civ. 6191 (CBM), 2002 WL 31288272, *6, 2002 U.S. Dist. LEXIS 6123, *1-*2 (S.D.N.Y. Apr. 9, 2002). Anderson's conduct here was similar to the doctor's conduct in West — at best, ambiguous. It is not, however, sufficient to find that she was a homosexual. Thus, Reissner cannot avail herself of the inference of discrimination open to her if credible evidence showed that Anderson was homosexual.

  Second, the record contains no evidence that Anderson harassed Reissner "in such sex-specific and derogatory terms . . . as to make it clear that [Anderson was] motivated by general hostility to the presence of women in the workplace." Oncale, 523 U.S. at 80. Thus, she cannot prevail on this theory.

  Finally, the record shows that Anderson treated men and women similarly with regard to touching, and only Reissner assumed that Anderson's touching was sexual in nature. Consequently, Reissner has failed to prove a prima facie case on the third avenue open to her under Oncale.

  Even if Reissner had been able to show she was subjected to same-sex sexual harassment by a co-worker, she must then demonstrate that liability should be imputed to the employer. The standard here varies depending upon whether the harasser was a co-worker or a supervisor, and if a supervisor, whether or not he or she took any adverse employment action against the plaintiff. Where the harassment was caused by a non-supervisory co-worker, "the burden falls to the plaintiff to prove that the employer did not take reasonable steps to address the situation." Bartniak v. Cushman & Wakefield, Inc., 223 F. Supp.2d 524, 529 (S.D.N.Y. 2002) (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1180 (2d Cir. 1996); see also, 29 C.F.R. § 1604.11(d). Thus, a plaintiff, to prevail, must demonstrate that the employer was itself negligent in permitting the harassment to occur or to continue. See, Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63-64 (2d Cir. 1998) ("[W]hen the harassment is attributable to a co-worker, rather than a supervisor . . . the employer will be held liable only for its own negligence. Therefore, [a defendant] will only be liable if [a plaintiff] can demonstrate that the [defendant] company either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.") (citations and internal quotations omitted); see also Mack v. Otis Elevator Co., 326 F.3d at 123 ("Employers are not . . . vicariously liable for hostile work environment created by a mere co-worker of the victim.").

  Here, Reissner asserts that she complained to management that Anderson was sexually harassing her and stalking her by driving by Reissner's house during off-hours and on weekends, and then confronting Reissner with personal information she could only have obtained by driving by Reissner's house. Pl.'s Counter Statement of Material Facts in Dispute ¶ 4. In support of that assertion, Reissner refers to her notes and to several pages of her deposition testimony. However, Reissner's testimony and prior notes confuse the issue considerably.

  During her pretrial deposition, Reissner expressed her belief that she and Jim Knoor ("Knoor"), Harhay's predecessor, had discussed what Reissner found objectionable about Anderson's behavior towards her. Reissner dep. at 50. However, contradicting this belief are Reissner's notes and the fact that she also testified that Harhay did not become her supervisor until 2000. Id., Exhibits E, F and G of the Appendix to Defendant's Statement of Undisputed Facts. As to her notes, they indicate that from October 1997, Anderson started to learn GET content to become a GET instructor. Ex. E at 1. The notes also address the incident between Reissner and Harhay that occurred on February 15, 2001, and additionally purport to include "a simplified timeline of events that had occurred prior to the February 15th incident and also incidents that have occurred since then." Ex. E at 1. The notes indicate that Reissner spoke with certain individuals about "this situation looking for guidance and direction." The individuals listed are: Harhay; Watts; Ginna vice president Joe Widay; and Bob Mecredy, whose position is not identified. Ex. E at 1. The notes, contrary to her counsel's position at oral argument, do not support her contention that she first reported Anderson's behavior to Knoor, Harhay's predecessor. The first mention in that "timeline" of any sexual harassment is not until September 2000, which is well after the time that Harhay succeeded Knoor as Reissner's supervisor.

  In addition, Reissner, in her deposition testimony, stated that she first reported Anderson's alleged sexual harassment "to my supervisor. . . . Andy Harhay." Reissner dep. at 50. Harhay, testifying at a pretrial deposition, related that the difficulties between Anderson and Reissner came to his attention sometime in early to mid-2000. Harhay dep. at 17. However, the complaint by Reissner that he described did not involve allegations about Anderson's behavior:

My recollection is that [the issues, concerns, problems with respect to June Anderson] were primarily Cathy [Reissner] feeling that June [Anderson] should be picking up materials more quickly than she was. Cathy's [Reissner's] feeling that June [Anderson] was asking the same type of questions to [sic] her over and over. I think that is initially the types of concerns that Cathy [Reissner] had.
Harhay dep. at 17-18. It was not until a February 15, 2001 performance review meeting between Harhay and Reissner, that Harhay testified he first learned of other concerns Reissner had about Anderson. He stated, in response to questioning:
Q. And at that time [February 15, 2001], she first identified a concern other than the one you have told me about so far?
A. Well, that is the time when I know that she — to me at least it was a concern because in the — she called June Anderson a name and it was derogatory. Q. What was the name she called her?
A. A big ass lesbian.
Harhay dep. at 18. Reissner has indicated that when she complained to the training department managers, they either turned a deaf ear, laughed and ridiculed her, disciplined her, or, in one case, "tried to blame either me or a male co-employee, Sam Poulton, of being responsible for the sexual harassment when such was not true." Complaint ¶¶ 12 & 21.

  As the district court in Moran remarked, conduct that is annoying or offensive is not actionable under Title VII. Here, Reissner has failed to show that her "workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . her work environment." Mack, 326 F.3d at 122. However, even assuming for the sake of argument that Reissner has met this requirement, the evidentiary proof in admissible form does not show that defendants either provided no reasonable avenue for complaint, or knew of the harassment but did nothing about it. The evidentiary proof in admissible form shows that Reissner made her first complaint about Anderson's alleged sexual harassment to Harhay, her supervisor from late 1998 until June 2002. When Reissner complained to Harhay, he took prompt, decisive action to investigate the complaint and resolve the issue. Reissner's unsupported, nonspecific recollection, contradicted by her own notes, of having discussed this issue with Harhay's predecessor does not amount to evidentiary proof in admissible form, sufficient to show that management did nothing in response to her complaints. See Woodward v. City of Worland, 977 F.2d 1392, 1398-99 (10th Cir. 1992) ("The vague, non-time-specific, and conclusory allegations that were made against the Supervisors were not sufficient to put at issue whether the Supervisors' conduct violated clearly established rights. . . . To the contrary, when Molina finally did complain to the Supervisors about sexual harassment, the response of the Supervisors was prompt, unequivocal, and effective.") (citation omitted).

  Since this is not a case of supervisory harassment, in that Reissner and Anderson were co-employees, "the employer will be liable only if it is negligent, that is, if it either `provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'" Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 441 (2d Cir. 1999) (quoting Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (citation omitted); Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992). Defendants have successfully shown that Reissner will be unable to meet her burden in this respect with regard to the allegation that she informed management, through Knoor, and management did nothing to resolve the problem.

  Moreover, after Reissner returned to work on March 19, 2001, she 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 instructor material for the GET program. Management assigned Reissner to a computer-based training project, which minimized her contacts with Anderson and occupied most of Reissner's time. Defendants have shown through evidentiary proof in admissible form that they took reasonable steps to separate the women and minimize their contacts. The Court finds Reissner's reliance on the Court of Appeals' decision in Tomka v. Seiler, 66 F.3d 1295, 1309 (2d Cir. 1995), to support her contention that summary judgment should be denied, misplaced. More specifically, Reissner maintains that a material question of fact exists concerning defendants' failure to take prompt or remedial action, and affirmatively taking action to make Reissner suffer more (moving her office closer to Anderson's). However, Tomka offers no support to Reissner, since in that case, the harassers were the plaintiff's supervisors, and thus, by operation of law, their conduct was imputed to the employer. In that regard, the Second Circuit concluded, "[i]n short, Tomka has created a series of reasonable inferences that Lucey [her supervisor] used his apparent authority to convene the dinner and encourage the drinking which enabled the defendants to rape Tomka. If the fact finder credits these inferences, a sufficient nexus between the assaults and Seiler would be established for liability purposes." Tomka, 66 F.3d at 1307. Here the evidentiary proof in admissible form shows that defendants' management provided an avenue for Reissner to complain, investigated her complaints, and found them to be without merit. There is no evidence that management failed to provide an avenue of complaint, or ignored Reissner's complaints once made. Consequently, Anderson's alleged harassing acts cannot be imputed to defendants.

  Retaliation Claim

  In order to prove retaliation, the Court must analyze such claim under the familiar three-part burden shifting analysis first set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Tomka, 66 F.3d at 1308. Moreover, "the burden that must be met by an employment discrimination plaintiff to survive a summary judgment motion `at the prima facie stage is de minimis'." Id. (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)) (other citations omitted).

  From the holding in Tomka, it is clear that even though Reissner may not have had a legitimate complaint about same-sex sexual harassment, she was, in fact, engaged in a protected activity when she complained about Anderson's behavior that she perceived to be sexually harassing. See Kotcher v. Rosa and Sullivan Appliance, 957 F.2d 59, 65 (2d Cir. 1992) (internal complaints to company management about sexual harassment constitute protected activity). It is, of course, well settled that filing a formal complaint is not a requirement of engaging in protected activity. Id. Therefore, Reissner has met the first prong of proving a retaliation claim against defendants.

  Reissner has also met the second McDonnell-Douglas prong. Termination is obviously an adverse employment action.

  As to the third McDonnell-Douglas prong, the Court of Appeals in Tomka stated, "[t]he issue is thus whether Tomka has alleged sufficient facts to enable a fact finder to infer a causal connection between Tomka's complaints and Seiler's actions on February 17 [discontinuing Tomka's salary and placing her employment on inactive status]." Tomka, 66 F.3d at 1308. The Second Circuit, reversing the district court, held that Tomka had provided sufficient evidence on this point. Unlike Tomka, however, the evidence here is insufficient to raise a fact issue as to whether defendants' proffered reason was merely a pretext for terminating her. Cf. Tomka, 66 F.3d 1295. Reissner's evidentiary proof in admissible form does not support her contention that there is a causal connection between Reissner's complaints against Anderson and Reissner's subsequent termination.

  During her February 15, 2001 performance evaluation by Harhay, Reissner shouted abuse and personal insults at him within the hearing of others in the department. Watts and Miller met with Reissner that same day and asked her about what occurred with Harhay. Reissner admitted to them that her conduct towards Harhay was inappropriate, but she remained belligerent*fn6 and unapologetic. Watts ordered her to leave the facility, and Reissner drove to the plant access gate, but evidently did not leave the facility. 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.

  Subsequently, on Monday morning, October 22, 2001, Reissner was again insubordinate to Harhay when he greeted her in the company lunch room. In a belligerent and unprofessional tone, she told Harhay that she did not want him speaking to her, and that he was standing too close. Harhay aff. ¶ 29. Harhay reported this to Watts, who decided that based on her previous insubordinate conduct, Reissner would be sent home immediately. Over the next thirty days, management evaluated Reissner's performance and attitude. A determination was made that she had failed to adhere to the terms of the her final warning, which mandated professional and respectful behavior toward her co-workers and her supervisors. It was the position of management that Reissner's conduct had violated defendants' workplace policies. Further, since she had been counseled numerous times, and placed on a "final warning" regarding her unacceptable behavior, Reissner's supervisors, Watts and Harhay, in consultation with Human Resources, determined that Reissner's failure to improve her attitude and approach, as directed, justified her termination.

  Unlike the plaintiff in Tomka, Reissner was given several opportunities to conform her workplace behavior to the requirements of the department in which she worked. Undisputed is that even after her three-day suspension and final warning in February 2001, Reissner continued to act in an unprofessional and unacceptable manner. The October 2001 insubordinate conduct towards her supervisor did not result in her immediate termination. Defendants allowed her another thirty days after that to conform to acceptable standards of behavior, which she failed to do. From "final warning" to ultimate termination, over nine months passed, and from her October 22, 2001 belligerence until termination, another month passed. Under the circumstances present here, it is clear that no causal connection exists between Reissner's engagement in a protected activity and her termination by defendants. CONCLUSION

  For all of the foregoing reasons, defendant's motion for summary judgment (# 19) is granted in all respects, and the case is dismissed.


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