The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
These two actions arise from the same facts and allege
violations of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq. and the New York Human Rights
Law ("NYHRL"), New York Executive Law § 290 et seq. Plaintiff
Tina Czerw ("plaintiff") contends that defendant Ronald Billitier
Electric, Inc. ("Billitier Electric") terminated her employment
after being informed by her former employer, Rochester Linoleum
and Carpet One ("Rochester Linoleum"), that she had sued
Rochester Linoleum for sexual harassment. Now before the Court
are motions for summary judgment by both Billitier Electric [#9]
and Rochester Linoleum [#11]. For the reasons that follow, both
applications are denied.
Unless otherwise noted, the following are the undisputed facts.
Plaintiff was previously employed by Rochester Linoleum, which is
owned and operated by two brothers, Albert Pelusio and David
Pelusio. In or about February 2000, plaintiff voluntarily ceased
working at Rochester Linoleum, after claiming that she had been
the victim of hostile-work environment sexual harassment.
In or about March 2000, plaintiff was hired by Billitier
Electric, which is owned by Ronald Billitier ("Billitier").
Plaintiff alleges that Billitier and the Pelusios are "personal
friends," although she does not state the basis for her knowledge
in this regard. Billitier and the Pelusios, meanwhile, contend
that they are at most acquaintances who belonged to the same
country club. It is undisputed that at all relevant times herein,
Billitier and the Pelusios were members of the same country club.
Plaintiff sued Rochester Linoleum for sexual harassment,
pursuant to Title VII and the New York State Human Rights Law, in this Court on April
23, 2001. Plaintiff continued working for Billitier Electric
while her lawsuit against Rochester Linoleum proceeded. In April
2002, Billitier Electric gave plaintiff a "final warning" as a
result of unacceptable conduct in the work place. According to
Billitier, "[i]n Spring 2002, Ms. Czerw, along with three other
members of Billitier's administrative staff, began having
difficulty working together and focusing on their work."
Billitier Aff. ¶ 8. On April 9, 2002, four of Billitier
Electric's company officers, Billitier, Paul DiPasquale, Rick
Lincourt, and David Pagano ("Pagano"), met with plaintiff and
three other employees of Billitier Electric: Heather Kelly
("Kelly"), Dianne Arazy ("Arazy"), and Trudy Salmon ("Salmon").
At the meeting, plaintiff, Kelly, Arazy, and Salmon were issued
final warnings regarding their misconduct, as described in a memo
which Billitier prepared after the meeting, which states:
Based on my continual observations over the past
several months, final warnings have been issued to
referenced employees for reasons as follows:
Excessive breaks/loitering in other employees'
Excessive personal phone calls
Intraoffice non-business related e-mails
Web surfing/instant messaging
Unacceptable language and/or treatment of fellow
Warnings are considered final due to the numerous
times these employees have been told about the same
issues. Shortly thereafter, a slight improvement
would follow, only to regress.
Billitier Aff., Ex. A. According to Billitier, by the end of
Summer 2002, plaintiff was again exhibiting problem behavior,
namely, she was having a conflict with Kelly, who was her
immediate supervisor. Id. at ¶ 10. Billitier states that on
Friday, August 23, 2002, plaintiff came to him and gave him an ultimatum regarding Kelly:
"She stated that she could no longer work with Heather Kelly and
that either [Kelly] needed to be terminated or else [she] would
quit." Id. at ¶ 12. According to Billitier, plaintiff further
told him that if she saw Kelly "outside of the office," she would
"rip [Kelly's] head off." Id. at ¶ 13.
Later that same day, plaintiff completed a vacation request
form, requesting that she be allowed to take off Monday through
Thursday of the following week as vacation. Plaintiff's request
was granted. Plaintiff intended to used this vacation time to
attend the trial in her case against Rochester Linoleum, which
was scheduled to be held before the undersigned between Monday,
August 26, 2002, and Thursday, August 29, 2002. However, the
vacation request form that plaintiff completed did not indicate
the reason for the request, nor is there any indication in the
current record that she informed anyone at Billitier Electric
that she was going to be attending a trial.
Plaintiff's trial against Rochester Linoleum did in fact
commence on Monday, August 26, 2002, which was also the first
business day following plaintiff's ultimatum to Billitier. That
day, Billitier met with Pagano, Billitier Electric's Chief
Financial Officer, to consider plaintiff's conduct on the
previous Friday. Billitier and Pagno state that, based upon
plaintiff's ultimatum and threat and based upon the fact that she
had already been issued a final warning, they agreed to terminate
her employment when she returned to work on Friday, August 30th.
Both Billitier and Pagano insist that at the time they decided to
terminate plaintiff's employment, they were not aware that
plaintiff had previously worked for Rochester Linoleum, or that
she had sued Rochester Linoleum.
On Thursday August 29, 2002, proofs were closed plaintiff's in
bench trial against Rochester Linoleum. At that time, the Court
indicated that it would issue its decision on September 4, 2002. As discussed earlier, Billitier
and Pagano state that they intended to terminate plaintiff's
employment when she returned from vacation on Friday, August
30th. However, plaintiff did not return to work that day, but
called in sick instead. Plaintiff did not return to work until
Wednesday, September 4, 2002, which, as indicated above, was the
same day that the Court planned to issue its verdict in
connection with plaintiff's bench trial. That morning, plaintiff
called Billitier Electric and informed them that she would be
arriving at work late. Apparently this was so that she could
attend court in the morning to hear the Court's verdict, although
there is no indication that she informed Billitier Electric why
she would arriving late. At the court appearance, this Court
issued its verdict in favor of Rochester Linoleum, and dismissed
plaintiff's action. Later that day, plaintiff returned to work at
Billitier Electric, whereupon she was informed that her
employment there was terminated.
Plaintiff commenced both of the above-captioned actions on
December 5, 2003. The undersigned referred both matters to the
Honorable Jonathan W. Feldman, United States Magistrate Judge,
for all non-dispositive pre-trial matters. Magistrate Judge
Feldman scheduled a Rule 16 scheduling conferences for June 16,
2004, however, on June 9, 2004, defendants' counsel requested
that the scheduling conferences be cancelled, because defendants
wished to file summary judgment motions. Plaintiff did not object
to the requests, and Magistrate Judge Feldman cancelled the
Scheduling Conferences. In addition to the fact that the Rule 16
conferences did not occur, it is undisputed that counsel never
had a conference pursuant to Federal Rule of Civil Procedure
("FRCP") 26(f). As a result, the parties agree that plaintiff has
had no opportunity to conduct discovery in either of the two
cases.*fn1 See, FRCP 26(d) ("[A] party may not seek
discovery from any source before the parties have conferred as
required by Rule 26(f).").
Defendants Billitier Electric and Rochester Linoleulm filed the
subject motions for summary judgment on November 2, 2004, and
November 29, 2004, respectively. In support of its application,
Billitier Electric filed the affidavits of Billitier and Pagano,
each of which states, as discussed above, that plaintiff's
employment at Billitier Electric was terminated for reasons
unrelated to her lawsuit against Rochester Linoleum, and that, at
the time they decided to terminate her, neither was even aware
that she had previously been employed by Rochester Linoleum, let
alone that she had sued Rochester Linoleum. Billitier Electric
also submitted affidavits from the Pelusios. Albert Pelusio
states that while he and his brother and Billitier are
[p]laintiff's allegations that Mr. Billitier and I
are close personal friends is ridiculous. In truth,
we are nothing more than acquaintances.
Several years ago, Mr. Billitier was a member of
Midvale Country Club, a club in which my brother,
David Pelusio, and I are also members. At that time,
we knew him as a fellow member but never socialized
with him in any way.
On September 4, 2002, after [Czerw's] sexual
harassment lawsuit was dismissed by the Court, I
happened to run into Mr. Billitier at Midvale Country
At that time, we had a brief conversation wherein my
brother mentioned to Mr. Billitier that we were happy
to have just received a verdict dismissing a sexual
harassment lawsuit brought against Rochester Linoleum
by a former employee named Tina Czerw. Much to our
surprise, Mr. Billitier revealed to me that Ms.
Czerw, who had been in his employ until that very day, had been terminated due to attendance issues and
an ongoing dispute with another employee.
In light of the fact that the only conversation
relating to Tina Czerw that ever occurred by anyone
associated with either Rochester Linoleum or
Billitier Electric happened after Billiter Electric
had terminated her, there is clearly no possible way
that I or anyone associated with Rochester Linoleum
could have aided or abetted Plaintiff's discharge
from Billitier Electric.
Albert Pelusio Aff. [#12], ¶¶ 8-12. David Pelusio's affidavit
adopts the statements in his brother's affidavit. Rochester
Linoleum submitted the same affidavits from Billitier, Pagano,
and the Pelusios in support of its summary judgment motion.
In response to defendants' motions, plaintiff submitted an
affidavit in which she alleges, though without any factual
support, that the Pelusios retaliated against her by informing
Billitier of her lawsuit against Rochester Linoleulm, and that
Billitier Electric retaliated against her by terminating her
Regarding her request for vacation,
plaintiff states that she requested time off from work "due to a
weeklong court appearance." Czerw Aff. [#22] ¶ 4. In this regard,
plaintiff's affidavit appears carefully worded to suggest that,
at the time she requested the vacation time, she informed
Billitier Electric that she would be attending a trial of some
type. However, her affidavit does not actually say that she
informed Billitier Electric that she would be attending a trial,
nor does her vacation request form say anything regarding the
trial. Plaintiff's affidavit further alleges, upon information
and belief only, that Billitier Electric "found out that the trial [she] was attending concerned the sexual
harassment lawsuit [she] had filed against Rochester Linoleum."
Id. at ¶ 6. Although plaintiff speculates that Billitier was
informed of her lawsuit by the Pelusios prior to September 4,
2002, and that this knowledge caused Billitier to terminate her
employment, she submits no evidentiary proof in admissible form
in support of her conclusions. Moreover, regarding the
termination of her employment, plaintiff does not directly
dispute the version of events related by Billitier or Pagano.
That is, she does not dispute that she was given a final warning
on April 9, 2002, that she gave an ultimatum to Billitier on
August 23, 2002, or that she threatened Kelly, her immediate
supervisor. Instead, plaintiff states:
Even though defendant Billitier Electric admitted
prior to my termination that I was getting along fine
with other employees, they fired me claiming that it
was now not the case.
When I confronted Mr. Ronald Billitier about ...