The opinion of the court was delivered by: Hon. Norman A. Mordue, D.J.
MEMORANDUM-DECISION AND ORDER
In this action under Title VII, 42 U.S.C. § 2000e-1, et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101, et seq.,*fn1 plaintiff alleges that while employed by defendant Precision Systems Mfg., Inc. ("PSMI") she was subjected to discriminatory terms and conditions of employment on the basis of her sex and disability, including suffering retaliation for having opposed what she reasonably believed to be discrimination. Her claims are primarily based on the alleged conduct of Vincent Foriero, President and 20% shareholder of PSMI at the times in issue, and, beginning in October 1998, plaintiff's direct supervisor.
Presently before the Court are two motions: (1) a motion by defendant J.G.B. Enterprises, Inc. ("JGB") (Dkt. No. 48) for summary judgment; and (2) a motion by PSMI (Dkt. No. 59) for summary judgment. On February 16, 2006, this Court granted the motion by PSMI (Dkt. No. 67) to strike Exhibit A to plaintiff's affidavit in opposition to PSMI's summary judgment motion and adjourned PSMI's time to reply. The Court has now received PSMI's reply papers on the summary judgment motion (Dkt. No. 76). For the reasons set forth below, the Court denies JGB's summary judgment motion and grants PSMI's motion only insofar as it seeks dismissal of plaintiff's claims under the Americans with Disabilities Act.
Summary Judgment Standard
A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the Court, viewing the evidence in the light most favorable to the nonmovant and drawing all reasonable inferences in the nonmovant's favor, determines that the movant has satisfied this burden, the burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed issue of material fact requiring a trial. See Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). If the nonmovant fails to carry this burden, summary judgment is appropriate. See Celotex, 477 U.S. at 323.
PSMI's Motion for Summary Judgment
Sexual harassment and/or hostile work environment -- generally PSMI's first contention in support of summary judgment is that, as a matter of law, plaintiff was not subjected to sexual harassment and/or a hostile work environment at PSMI. In order to establish a violation of Title VII by an employer under a theory of quid pro quo sexual harassment, "a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment." Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). To establish a violation of Title VII under a hostile work environment theory, a plaintiff must show that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and that a specific basis exists for imputing to the employer the conduct that created the hostile environment. See Richardson v. New York State Dep't of Corr. Serv., 180 F .3d 426, 436 (2d Cir. 1999).
Briefly, based on plaintiff's affidavit and deposition testimony, plaintiff's allegations are as follows. At all relevant times, time, plaintiff was a divorced mother of two young children. She had been employed since 1988 by Precision Systems, Inc., PSMI's predecessor. In 1998, Precision Systems, Inc. was purchased by Jay Bernhardt, who became 80% owner of PSMI, and Vincent Foreiro, who became 20% owner. They retained the employees of Precision Systems, Inc., including plaintiff, who was then an office manager, and Carol Hornstein, who became PSMI's Human Resources Manager. Foriero became President of PSMI. Initially, plaintiff's direct supervisor in PSMI was Rick Lis, Operations Manager.
In April 1998, Foriero and Hornstein offered plaintiff a raise and a promotion to Materials Manager. Plaintiff states that she accepted on the condition that she would be trained for the additional responsibilities. According to plaintiff, beginning in the summer of 1998 and until he terminated her on February 27, 1999, Foriero attempted to insinuate himself into her personal life and to use his supervisory status over her as a way of controlling her. For example, on one Saturday in August 1998, she was working alone and he came to the office, apparently drunk, and stated that she needed to change her standards and her friends. He said that to move up in PSMI she needed to have a different way of thinking. He tried to hug and kiss her. Plaintiff states that on this and all other occasions, she made it clear to Foriero that his attentions were unwelcome.
According to plaintiff, in September 1998, Foriero began to speak of grooming plaintiff for the position of Operations Manager and on one occasion, in his office, he again attempted to hug and kiss her. In October 1998, PSMI's Operations Manager Rick Lis left the company and plaintiff came under Foriero's direct supervision. During the next few months, Foriero repeatedly intruded into plaintiff's personal life. For example, in late October, as plaintiff was leaving a lunchtime Halloween party at her son's day care center, she saw Foriero in his car parked near her car in the day care parking lot. On the same day, he told her she was the most important thing in his life. Throughout this time period he bought gifts for her and her children. He repeatedly told her that to move up in PSMI she should be free from "outside influences" and should commit herself to work, her children and religion.
Plaintiff further alleges that in November 1998 Foriero became angry when he learned that she had a boyfriend. He repeatedly criticized her for having outside influences and made personal remarks such as stating that she should not have a boyfriend and that he just wanted to make her and her children happy. He also repeatedly complimented her.
Plaintiff avers that in December 1998, after learning that plaintiff was wearing a watch given to her by her boyfriend and not the watch Foriero had given her, Foriero told her she "was never going to make it" in the company and that he "would not be able to groom her properly for the Operations Manager position." He continued to ask plaintiff about her personal life, to comment on her dress and jewelry, to make other inappropriate personal remarks and to telephone her at home. When she was in the office he would criticize her ...