The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Dawn Prystajko ("plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law, claiming that she was subjected to sexual harassment while working for her former employer, defendant Lowe's Home Centers, Inc., ("defendant" and/or "Lowe's"), and that she was fired from her job in retaliation for complaining of sexual harassment. Specifically, plaintiff claims that she was subjected to quid pro quo sexual harassment as a result of being forced to have sexual intercourse with the Administrative Manager, Chris Fox ("Fox") as a condition of her employment. Plaintiff claims she continued to have relations with Fox even after she was hired in order to keep her job, but that after she ended their sexual relationship, and complained to a manager, she was terminated from her employment.
Lowe's contends that plaintiff was terminated for violating company policy, and that discrimination or retaliation played no role in the decision. Lowe's contends that there is no evidence that Fox played a role in the decision to terminate plaintiff's employment, and that plaintiff failed to report the alleged harassment. Lowe's claims that it had no knowledge of the alleged harassment, and therefore, as a matter of law, could not have retaliated against the plaintiff.
Lowe's now moves for summary judgment, arguing that no reasonable jury could find that it discriminated against plaintiff as she claims. For the reasons set forth below, defendant's motion for summary judgment is granted.
Plaintiff Dawn Prystajko completed a Lowe's application for employment, in person, prior to a new store opening in Webster, New York. Fox handed plaintiff an application, which she completed and returned. Fox reviewed plaintiff's application, asked several questions concerning the information on her application and related that he would see what he could do and would give her a call. Later, the Store Manager Scott Lee ("Lee") called plaintiff for an interview.*fn1 Plaintiff was hired by Lowe's for the position of Head Cashier and commenced her employment around mid-November 2003.
Plaintiff testified under oath that she willingly had sexual intercourse with Fox approximately 11 times and did not express any reluctance or objection to Fox to have consensual sexual intercourse during these events.*fn2 With respect to the first alleged sexual interaction, at no time did plaintiff request Fox to stop or refuse his advances. See Ex. 1 pp. 57-58, 66. During the following sexual encounters,*fn3 the only reference to plaintiff's job was once when Fox asked if plaintiff liked her job. See id. p. 97. Further, plaintiff described her interactions with Fox as "always very pleasant." See id. p. 103. In February 2004, however, plaintiff told Fox their relationship was becoming a "little nerve racking ... the weather is getting shitty. I don't want to keep driving from Greece [where she lived] to Henrietta [where the hotel was located], and it's just very awkward at work." See Ex. 1 pp. 100-101, 190.
During the time from November 2003 through February 2004 plaintiff contends that two or three times Fox made a "v" with his fingers, brought the "v" to his chin, and stuck out his tongue to his chin. See Ex. 1 p. 117. In response, plaintiff would "shake [her] head and walk away." See id. Fox made no other gestures towards her and she did not report these gestures to anyone at Lowe's.*fn4 See id. In addition, plaintiff testified that she was not subjected to any unwanted sexual advances or sexual touching. As an example, Fox did not use any offensive or harassing language towards plaintiff in the workplace. He also never touched her in the workplace in the manner that plaintiff found offensive or harassing. Further, Fox never showed her any pictures of objects in the workplace that she found offensive or harassing. See Ex. 1 p. 118. Plaintiff also claims that Peter Szklanka ("Szklanka"), a Zone Manager (but not her direct supervisor) called her on the store walkie-talkie one day and asked her if she was wearing a thong because he could "see the crack of Dawn." See id p. 119. Plaintiff responded, "you're too much" and then hung up on him. See id p. 121.
She also testified that Szklanka said to her "he was getting ready to go back home to Buffalo and wanted to know if [she] would meet him someplace." See id p. 119-120, 124. Although Szklanka did not specifically mention it, plaintiff contends that she interpreted his question to be a request for sex. See id. Plaintiff did not report the incident to Lowe's even though she was aware of Lowe's policies requiring employees to report sexual harassment and providing a number of ways in which to do so. Plaintiff also testified that co-worker Shanny Moreno asked if she would like to go out "for a quickie." See Ex.1 p. 119. She responded and said "get lost" and she "laughed it off." See Ex. 1 p.123.
More generally, plaintiff contends that on two occasions she heard Szklanka make comments such as "oh, look at her" regarding customers and, on two occasions, saw Szklanka "grab his crotch if a pretty customer walked by." See Ex. 1 p. 122. At another time, plaintiff claims she heard Szklanka and Fox say to employee Tina Nowak, "[w]e got better use for that whipped cream" that was in her coffee. See id p. 126. Once again, plaintiff did not report any of these incidents to anyone at Lowe's. Thus, notwithstanding her awareness of Lowe's policies relating to harassment, plaintiff never approached any managers concerning behaviors she now alleges to be sexual harassment, and never reported to anyone at Lowe's that any co-employee or anyone in management had acted in a harassing or offensive manner towards her. See Ex. 1 pp. 129-130.
During the time that plaintiff was engaged in consensual sexual intercourse with Fox, she testified that she received the "easy jobs," the "cake work." See Ex. 1 p. 101. For example, plaintiff explained that she did not have to stand at the store's entrance to watch the security button, and was permitted to answer phone calls and to stay behind a desk. See id. After the sexual intercourse with Fox ceased, plaintiff stated that she began receiving all of the "shitty jobs" and the "bad hours," and that her work schedule changed to include responsibility for the less desirable job of standing by the front door to wait for the alarm button to sound and was "put by the front door when it was cold."*fn5 See id p. 107. However, plaintiff testified that it was part of the job duties of a Head Cashier to stand by the front door and wait for the security alarm to sound. See id p. 111. The job description for Head Cashier even lists the required duties as including "[m]onitoring exit doors for security and loss prevention purposes." See Ex. 7. Moreover, plaintiff never reported to anyone at Lowe's that she thought she was being retaliated against or that her working conditions had changed unfairly. See Ex. 1 pp. 129-130.
In February 2004, after being employed for only three months, plaintiff took a leave of absence from Lowe's for a worker's compensation injury she supposedly suffered while working for a previous employer. See Ex. 1 pp. 26-28. Pursuant to Lowe's policies and procedures concerning her leave of absence, plaintiff was expected to comply with such policies including keeping Lowe's informed with bi-weekly updates of leave status and expected return to work date. See Ex. 3 and Ex. E. Plaintiff's last day of active employment was on February 26, 2004. See Ex. 1 p. 159. Although she did not previously inform Lowe's of her need to take leave, on February 27, 2004 plaintiff gave an administrative assistant a doctor's note excusing her from work from February 27, 2004 until her return-to-work date of March 11, 2004. According to Lowe's company policy, an employee must keep Lowe's properly informed of her status during a medical leave of absence. See Ex. 3.
On April 16, 2004, former Store Human Resources Manager, Susan Holtz ("Holtz") sent plaintiff a letter informing her that Lowe's was trying to contact her regarding her leave status and that Lowe's would need a doctor's note excusing her from work for the time she had been out. See Ex. 1 pp. 164-165; Ex. 3. On the same day, Holtz sent similar letters to three other employees who were out on leave and had not kept Lowe's informed of their leave and return-to-work status. See Ex. 3; Ex. 4 pp. 206-207. According to plaintiff, upon receiving Holtz's April 16 letter, she called the store and informed the administrative assistant that she was supposed to return to work in mid-May and that her doctor filled out the leave of absence forms. See Ex. 1 pp. 167-168. Plaintiff alleged that she had sent a second doctor's note to Holtz excusing her from work within several days of March 11, 2004. See id. Lowe's however has no record of ever receiving the completed form by the physician as required by Lowe's leave policy. See Ex. 3.
Six weeks beyond the original date plaintiff was scheduled to return to work and during which time she failed to keep Lowe's informed of her status as required by Lowe's Leave of Absence Policy, plaintiff was terminated from her employment on April 23, 2004. According to Holtz, she decided to terminate plaintiff because she violated company policy by failing to keep Lowe's informed of her status during her medical leave. See Ex.3. Lowe's contends that plaintiff never complained to Holtz about sexual harassment, and Holtz was not even aware of plaintiff ever complaining to anyone about sexual ...