The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Crystal Ribis, commenced this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), against her former employer, Mike Barnard Chevrolet-Cadillac, Inc. ("Barnard"). Plaintiff alleges that during her employment, she was subjected to sexual harassment and a hostile work environment, and that she was constructively discharged on account of her sex. Both sides have moved for summary judgment.
Barnard is an automobile dealership in Newark, New York. Plaintiff began working for Barnard in September 1999 as a customer "greeter."*fn1
Plaintiff alleges that virtually from the beginning of her employment at Barnard, she was subjected to a hostile work environment. While the complaint and plaintiff's motion papers go into some detail concerning the nature of that environment, the gist of plaintiff's claim is that the atmosphere at Barnard was permeated by sex. Other employees frequently and explicitly spoke, to each other and to plaintiff, about sexual subjects, including sexual comments about female customers and employees, "dirty" jokes, and the details of their own sex lives. Pornography was also often visible on employees' computer screens.
Some of this behavior was directed at plaintiff. In particular, salesperson Rod Faro, in addition to making crude comments to plaintiff about the physical attributes of female customers, asked plaintiff--who Faro knew was married--to go out on a date with him, an invitation which plaintiff declined. Faro also had a habit of touching female employees, and would walk up behind plaintiff and begin rubbing her shoulders and back, despite her repeated demands that he stop.
Pat Riley, who became Sales Manager in 2001, engaged in similar behavior. He would frequently talk explicitly about sex, both in general as well as in specific terms aimed directly at plaintiff. On various occasions, for example, Riley allegedly told plaintiff that he could "grab [her hair] from the back and give it to [her] from the front," that he could "bend [her] over this car and give it to you from behind," that "[i]f [plaintiff] were [his] wife, [her] legs would always be wrapped around [him]," and that plaintiff was "in a bad mood because [her] husband [did]n't give it to [her] right." Plaintiff's Rule 56.1 Statement (Dkt. #29-1) ¶ 94. Riley also made unwelcome physical contact with plaintiff, including touching her shoulders while she was sitting at her desk and rubbing his body against her backside. Id. ¶¶ 95, 109.
Another alleged contributor to the sexual focus of plaintiff's workplace was Diane Barnard Ledbetter, the daughter of owner Mike Barnard. Ledbetter worked as a salesperson during plaintiff's employment at Barnard. Although Ledbetter is not alleged to have directed any sexual comments at plaintiff, plaintiff alleges that Ledbetter frequently spoke openly about sex, including her own sexual behavior and desires, in explicit, crude terms. Ledbetter is also alleged on several occasions to have exposed her breasts (with her bra on) to male employees, such as by pressing her breasts up against the showroom window when male employees were standing outside. Id. ¶¶ 55-60, 127-39.
Plaintiff alleges that she complained about these matters both to the employees involved and to her supervisors, but to no avail. Pursuant to Barnard's sexual-harassment policy, which was set forth in Barnard's employee handbook, see Plaintiff's Ex. R, plaintiff allegedly complained to various managers at Barnard, as well as to Mike Barnard, but they did nothing to stop the offensive behavior. Sometimes they would tell her that they would take care of the problem, but nothing would be done. At other times, according to plaintiff, she was positively discouraged from making such complaints. Aside from the fact that some of the managers themselves engaged in such behavior, on one occasion plaintiff complained to General Manager Frank Moscato about comments that Sales Manager Tom Carpenter had been making about plaintiff's breasts. Moscato allegedly replied that plaintiff should "cut [Moscato] some slack," adding, "I'm not here to deal with all this." Dkt. #29-1 ¶ 171.
By the end of 2001, plaintiff had decided to quit her job at Barnard due to the constant sexual harassment. She "was convinced to stay," however, when Moscato offered her a pay raise, and promised plaintiff that she would be made a salesperson and that Riley would be fired. Id. ¶ 154; Plaintiff's Deposition (Dkt. #44 Ex. S) at 74. Plaintiff was given a sales position in early 2002, and Riley was transferred that year to a different office. Id. ¶¶ 156, 158. Riley was replaced as Sales Manager by Tom Carpenter, but he also made frequent, crude sexual comments to plaintiff directly or in her presence.
Plaintiff again decided to leave Barnard and began looking for another job. When she was offered a job at a nearby dealership, Piehler Motors ("Piehler"), plaintiff accepted, but after she told Carpenter that she was leaving Barnard to take a job at Piehler, the offer from Piehler was "mysteriously withdrawn." Id. ¶ 175.
Plaintiff filed this action on October 7, 2003. The complaint asserts three causes of action. The first alleges a claim under Title VII and the New York State Human Rights Law, Exec. L. § 296, based on plaintiff's allegation that she was subjected to a hostile work environment at Barnard. The second and third causes of action allege claims under New York law for intentional infliction of emotional distress and negligent supervision respectively. Plaintiff seeks compensatory and punitive damages and attorney's fees.
I. Summary Judgment in Discrimination Cases
When deciding a motion for summary judgment, a court's responsibility is to determine whether there are issues to be tried. Duse v. International Bus. Machs. Corp., 252 F.3d 151, 158 (2d Cir. 2001). Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.' ... An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The fact that this case involves a claim of discrimination renders these general principles no less applicable. The Supreme Court has "reiterated that trial courts should not 'treat discrimination differently from other ultimate questions of fact.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, see Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988), "the salutary purposes of summary judgment--avoiding protracted, expensive and harassing trials--apply no less to discrimination cases than to ... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (observing that "[t]he summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion").
II. Allegations not Contained in Plaintiff's Administrative Complaint
As a threshold matter, defendant contends that the Court should disregard certain allegations that plaintiff makes in her moving papers that are not contained in, or contradict the allegations in, her administrative complaint that she filed with the New York State Division of Human Rights ("SDHR complaint") and the complaint in this action ("civil complaint"). In particular, defendant contends that whereas the SDHR and civil complaints only allege that plaintiff complained to four individuals--General Manager Bill Kinney, Moscato, Manager Steve Corey and Carpenter, plaintiff now alleges that she also complained about sexual harassment to certain other high-ranking individuals at Barnard, including Mike Barnard and Comptroller Barb Furgeson. Similarly, defendant asserts that plaintiff's interrogatory responses in this action allege that her harassers included Ledbetter and Moscato, who were not so identified in plaintiff's SDHR or civil complaint.
Defendant also notes that in her interrogatory responses in this action, plaintiff alleged that she was retaliated against by losing a job opportunity at Piehler, an allegation that is not found in either the SDHR or civil complaint. In addition, whereas the civil complaint alleges that after plaintiff complained about Faro to Kinney, "Kinney reprimanded Faro and all sexual advances by Faro toward Plaintiff ceased," Complaint ¶ 13, plaintiff now alleges that after plaintiff complained to Kinney, "Kinney spoke to Faro and the behavior did stop for a short time," but that within a month Faro began touching plaintiff again, and that his offensive behavior toward plaintiff continued "periodically, for the entire time Plaintiff worked for Defendant ... ." Dkt. #23 Ex. 13 at 14.
Plaintiff concedes that the allegations set forth in her motion papers are "more detailed" than those contained in her SDHR and civil complaints, see Plaintiff's Mem. of Law (Dkt. #37) at 3. She contends, however, that there are legitimate explanations for this, and that the Court should not disregard this evidence.
In particular, with respect to the allegations about Kinney and Faro, plaintiff testified at her deposition that when she signed the SDHR complaint--which also alleges that "all sexual advances toward [plaintiff] by Rod Faro ended" after Kinney spoke to Faro about plaintiff's complaints about Faro, see Dkt. #23-3 ¶ 11--she "didn't realize the importance of every little detail," and that it was only after she spoke to her attorney in this action that she realized "how important every little detail was." Dkt. #24-3 at 21. Plaintiff also states that "Ms. Ribis may have erred in her complaint" when she said that Faro's touching of plaintiff stopped after Kinney reprimanded him, and that ...