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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 ...

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