The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq.. Now before the Court is defendant's motion [#23] for summary judgment. For the reasons that follow, the application is granted in part and denied in part.
Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most favorable to the plaintiff. Defendant Industrial Medicine Associates ("IMA") is a professional corporation which provided disability evaluations, independent medical examinations, and other medical services. IMA employed plaintiff Jessica Hernandez ("Plaintiff") as the sole receptionist and as a Spanish-language translator, in IMA's office in Rochester, New York, from May 16, 2002 until September 9, 2004, at which time IMA terminated her employment.
At all relevant times, IMA's Regional Manager was Cathy Toeper ("Toeper"). In that capacity, Toeper managed IMA's offices in Rochester, Buffalo, Jamestown, and Corning, and was the highest-ranking official in the Rochester office. (Toeper Dep. 13-14) Toeper's supervisor was Jeffrey Collett ("Collett"), IMA's Vice President, who worked primarily in another city, and visited IMA's Rochester office on an as-needed basis. In addition to plaintiff and Toeper, IMA employed various office personnel including Toeper's administrative assistant, Elvira Torres ("Torres"), and a medical assistant named Dana Kelly ("Kelly"). IMA also employed a number of medical doctors and psychologists to provide medical services to its clients. It is undisputed that IMA's doctors and psychologists were independent contractors with no supervisory authority over plaintiff.
Plaintiff's work schedule was 8:30 a.m. to 5:00 p.m. Lunch breaks for all employees were supposed to last only 30 minutes, however, Toeper would often allow up to 45 minutes. (Pl. Dep. 13) Toeper would also routinely grant plaintiff and other employees permission to take even longer lunch breaks.
Employees were permitted to use office telephones to make personal telephone calls, but were asked to keep such calls to a minimum. At the start of plaintiff's employment, Toeper was more lenient concerning personal phone use. Subsequently, though, she admonished all of the employees to "lay low" with regard to personal calls, meaning that they should make personal calls only when the office was not busy. (Pl. Dep. 47)
IMA's offices consisted of a waiting room, examination rooms, and offices. Clients and staff entered the waiting room from outside by passing through two doors. During the day, these doors were not locked. However, one of the doors would generally be locked in the evenings once the doctors were finished seeing patients, and then persons wishing to enter the waiting room would have to be "buzzed" in by someone at the receptionist's desk. The waiting room was separated from the rest of the office by a unlocked wooden door beside the reception desk. (Torres Dep. 39-40) Toeper frequently allowed employees to have visitors come through the waiting room and into the inner office space.
At all relevant times, IMA had, as part of its employee handbook, a written anti-discrimination policy which stated, in relevant part:
Any employee with questions or concerns about any type of discrimination in the workplace is encouraged to bring these issues to the attention of his/her immediate supervisor or any officer of the Company. Employees can raise concerns and make reports without fear of reprisal. Anyone found to be engaging in any type of unlawful discrimination will be subject to disciplinary action, up to and including termination of employment.
Def. Ex. F, p. 8. The policy further stated: "All employees are urged to report any behavior in the workplace that they feel constitutes harassment. If you feel this situation exists currently or has existed in the past, please contact your supervisor or the Human Resources Manager. You may also contact Jeff Collett, VP of Operations . . . ." Id. at 51. A few lines later, the policy further stated: "Any supervisor or manager who becomes aware of possible sexual or other unlawful harassment must promptly advise the appropriate person(s) listed above who will handle the matter in a timely and confidential manner." Id. In a separate section of the employee handbook entitled "Employee Relations," the handbook stated that employees who have "a complaint, suggestion, or question about [their] job, working conditions, or the treatment [they] are receiving" should bring their concerns to their supervisor, and that,
[i]f the problem persists, you may put it in writing and present it to the Regional Manager, who will investigate and provide a solution or explanation. It is recommended that you bring the matter to the Vice President of Operations as soon as possible after you believe that your immediate supervisor has failed to resolve the matter.
Id. at 7. Toeper was primarily responsible for implementing the sexual harassment policy in the Rochester office (Collett Dep. 10-11), and in that regard, she had a duty to inform Collett of any sexual harassment that was occurring. (Toeper Dep. 22; Collett Dep. 16)
In or about May 2003, Dr. Zax ("Zax"), a psychologist employed by IMA, began touching plaintiff inappropriately without her consent, and making inappropriate comments to her. As for the touching, plaintiff states that Zax would touch her buttocks and shoulders, grab her waist, and intentionally brush up against her back with his body. As for comments, plaintiff states that Zax would whisper statements of a sexual nature in her ear, such as, "Were you a bad girl last night? Would you be bad with me?"
Plaintiff states that she complained to Toeper about Zax's conduct on three occasions, specifically, in May 2003, October 2003, and December 2003. On two of these occasions, Torres accompanied plaintiff when she complained to Toeper, and confirmed that Zax touched plaintiff and made inappropriate comments. (Pl. Dep. 84-85) Plaintiff contends that, each time she complained, Toeper told her that she would speak to Zax. Plaintiff further states that Toeper told her that Zax had bothered other female employees, that these employees ignored Zax, and that plaintiff should also ignore him. Toeper, however, contends that plaintiff only complained to her about Zax on one occasion, and that plaintiff asked her not to do anything about the situation, because she wanted to handle it herself. Plaintiff denies that she ever asked Toeper to refrain from speaking to Zax.
During the period when Zax was harassing plaintiff, Collett visited the Rochester office on a few occasions. Plaintiff knew that she could complain to Collett about Zax, but she did not do so because she was "scared" and "embarrassed." In that regard, Collett testified that, pursuant to IMA's policies, there was no requirement that plaintiff complain to him if she had already complained to Toeper. (Collett Dep. 18-19) (Noting that IMA employees were free to "approach the individual that they were most comfortable with.")
Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on or about May 19, 2004. In the complaint, plaintiff stated that Zax "persistently touches my butt and has said . . . things such as asking me if I was a bad girl last night." The same day that she filed the EEOC complaint, plaintiff informed IMA's Human Resources department about Zax's harassment. Collett learned of plaintiff's complaint that same day, and immediately contacted plaintiff by telephone. The following day Collett traveled to Rochester and interviewed various staff members, including plaintiff, Zax, Toeper, and Torres, concerning plaintiff's allegations. Collett then issued a letter of reprimand to Zax, indicating that Zax had "demonstrated unprofessional behavior," and on May 26, 2004, Zax issued a letter of apology to plaintiff. No other disciplinary action was taken against Zax. Subsequently, Zax never said or did anything inappropriate to plaintiff. Nonetheless, plaintiff states that she was very uncomfortable working around Zax, and that she "started getting real sick [emotionally]." (Pl. Dep. 99-100)
On May 27, 2004, Toeper sent an e-mail to Collett, advising him that two doctors had complained to her about plaintiff. The first doctor complained that she was attempting to dictate when plaintiff "harassed" her by repeatedly interrupting her and demanding that she see a patient who was waiting. This doctor also indicated that plaintiff made false statements to her about the patient. The second doctor complained about the manner in which plaintiff was scheduling patients. (Toeper Dep. 56; Pl. Exhibits, Vol.II, Ex. O). The following day, the doctor who had felt harassed by plaintiff sent a fax directly to Collet, complaining that plaintiff's behavior the previous day had been "inappropriate" and "aggressive." (Pl. Exhibits, Vol. II, Ex. P). Then on May 28, 2004, plaintiff and another employee, Kelly, argued over the setting on the office thermostat, after which plaintiff went to Toeper's office and complained that Kelly had threatened her. When Toeper told plaintiff to come into her office to discuss the situation, plaintiff began pointing her finger in Toeper's face and yelling that Toeper was not "going to do anything about it." (Pl. Exhibits Vol. II, Ex. R) Plaintiff's raised voice disturbed two doctors, who complained to Toeper. (Id.) One of the doctors also prepared a letter, which was later sent to Collet, stating that plaintiff's behavior toward Toeper had been "embarrassing and non-professional." (Pl. Exhibits Vol. II, Ex. Q; Toeper Dep. 58-59).
A short time later that day, Toeper called Collett on the telephone, and Collett interviewed both plaintiff and Kelly regarding the incident, after which he directed Kelly to apologize to plaintiff and then go home for the day. Collett then continued to speak to plaintiff, at which time he told her that he had received complaints regarding her work habits, and that she needed to work the scheduled hours and stop having visitors and making personal telephone calls. (Pl. Exhibits Vol. II, Ex. R)
Plaintiff left work to go on FMLA leave on or about June 2, 2004, purportedly due to stress over having to work with Dr. Zax. (Pl. Dep. 112-113) Plaintiff was subsequently diagnosed as having depression, anxiety, and post-traumatic stress disorder. (Pl. Dep. 120) Plaintiff's FMLA leave was originally scheduled to expire on July 5, 2004, however, Collett extended the leave to the end of August 2004. (Pl. Dep. 114, 116)
While out on leave, plaintiff filed an amended EEOC complaint, on or about June 7, 2004. In the Amended Complaint, plaintiff stated that, after her initial EEOC complaint, IMA had retaliated against her by subjecting her to "increased scrutiny and discipline." More particularly, she alleged that on May 27, 2004, Collett had warned her "out of nowhere" that he had received complaints about her, and that he admonished her that she needed to work the scheduled work hours and have no private phone calls. The EEOC issued plaintiff a "right to sue" letter on July 24, 2004.
Following her FMLA leave, plaintiff returned to work on August 31, 2004, after which she contends that Toeper excessively monitored her work. Specifically, plaintiff contends that Toeper met with her and reiterated that she needed to come to work on time and keep personal telephone calls to a minimum.*fn1 (Pl. Dep. 43) Plaintiff admits, though, that Toeper also spoke to all of the employees as a group about excessive phone use both before and after plaintiff filed her EEOC complaints. (Pl. Dep. 60)*fn2 On her third day back at work, September 2, 2004, several employees complained to Toeper about plaintiff taking an excessively long lunch break that day. Toeper apparently conveyed this information to Collett, who requested that the employees put their complaints in writing.*fn3
When plaintiff learned, on September 3, 2004, that a written complaint about her had been placed in her personnel file, she asked Toeper to allow her to see the complaint. Toeper denied the request, and told plaintiff that she would have to speak with Collett as to whether or not plaintiff could see the complaint. (Pl. Dep. 123-24) After Toeper left the office for the day, plaintiff called her cell phone, and again asked about the document, to which Toeper responded, "It's in your file." (Id. at 124) Plaintiff then went into Toeper's file cabinet and attempted to locate the complaint. (Id.) When she could not locate the complaint, plaintiff again called Toeper on her cell phone, and told her that she had been looking through her file. Toeper responded by telling plaintiff that she should not have gone into her office. (Id.) On September 7, 2004, plaintiff received a verbal warning from Toeper concerning the incident. (Pl. Dep. 124) Plaintiff, however, denies that she did anything wrong by going through Toeper's files, since other employees also looked in their personnel files. (Pl. Dep. 126) ("We were allowed in her office, though, and we all went in our files.") Notably, plaintiff does not contend that she had Toeper's permission to go into the personnel file. (Id. at 126, 129) Instead, she contends that she had the "right" to go into the file, because Toeper had always given her documents from her file when she had asked for them previously. (Pl. Dep. 128) Moreover, plaintiff admits that IMA's employee handbook indicated that employees were not entitled to have access to their personnel files. (Pl. Dep. 134)
On September 8, 2004, during evening office hours, one of IMA's medical doctors asked plaintiff to come into an examination room and act as an interpreter for a Spanish-speaking patient. When plaintiff attempted to shut the door as per the normal procedure, the doctor asked her to leave the examination ...