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May 16, 2005.

TINA CZERW, Plaintiff,

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' workspace
• Excessive personal phone calls
• Intraoffice non-business related e-mails
• Web surfing/instant messaging
• Unacceptable language and/or treatment of fellow employees
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 acquaintances,
[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 Club.
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 employment.*fn2 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 ...

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