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Eichler v. American International Group

March 30, 2007


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge


In this action based on diversity of citizenship, plaintiff Mary Eichler ("Eichler") seeks to recover damages against her former employer, defendant American International Group, Inc. ("AIG"), pursuant to state and local antidiscrimination laws. Eichler contends that she was subjected to a sexually-hostile work environment, was further victimized by retaliation after she complained about her situation, and eventually was constructively discharged.*fn1 AIG has now moved for summary judgment on all three claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, that motion is granted and the complaint is dismissed.*fn2

I. Factual Background

Unless otherwise noted, the following facts are either undisputed or set forth in the light most favorable to Eichler.

Eichler became an AIG employee in January 2002, at which time she was assigned to its AI Marine Adjusters Division ("AIMA"). (Eichler Dep. 5, 7). Eichler replaced a Japanese woman named Minoko Mitsumi ("Mitsumi"). (Id. at 22). Her job involved the processing of "blue water" "follow-the-lead" hull insurance claims. (Id. at 12-13). The coverage decisions concerning those claims were made by another carrier, denominated the "lead underwriter." Each claim consequently took her one hour or less to process. (Id. at 13-14, 17; see also Corteselli Dep. at 111) (the lead underwriter would "advis[e] the followers we have now settled the claim for X and your portion of X is X . . . minus one. Please send us your check.")

AIMA's hull department in New York City had only a handful of employees. (Corteselli Dep. 60, 90). Vince Corteselli ("Corteselli") was Eichler's immediate supervisor. (Eichler Dep. 16). Corteselli, in turn, reported to Paul Ferguson, the regional claims manager. (Id.). Ferguson's direct supervisor was Steven Gillen, the president of AIMA. (Id. at 21-22).

Shortly after she was hired, Eichler signed an acknowledgment that she had received an AIG employee handbook dated March 2000. (Eichler Dep. at 9 & Ex. 1).*fn3

That handbook contained two distinct procedures for employee complaints. For problems or complaints relating to areas other than discriminatory harassment, AIG employees were instructed to bring their concerns in the first instance "to the attention of [their] immediate supervisor[s]." (Ex. 2 at 18). In a separate section captioned "Non-Harassment," the handbook defined "sexual harassment," in part, as conduct of a sexual nature which, "if unwelcome and severe or pervasive, creates an intimidating, hostile or offensive working environment, or unreasonably interferes with an employee's work environment." (Id. at 19). Employees who believed that such "discriminatory harassment ha[d] occurred" were instructed to report it "immediately" to "a Human Resources Manager; to Corporate Employee Relations at 72 Wall Street, New York, NY 10270; or [to] the Office of General Counsel at 70 Pine Street, New York, NY 10270." (Id. at 20). The handbook further stated that AIG takes matters of discriminatory harassment very seriously and will conduct a prompt investigation of all complaints and take appropriate action based upon that investigation. Any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination of employment. Absolute confidentiality cannot be guaranteed.

However, every effort will be made to handle all complaints and investigations with as much discretion and confidentiality as circumstances permit. (Id.). The handbook also noted that AIG would "not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to [its] attention, or for participating in an investigation of an alleged act of harassment." (Id.).

Eichler remained an AIMA employee for approximately fourteen months. (See Ex. R). During that time, she frequently was subjected to conduct on the part of Corteselli which she found objectionable. For example, on two separate occasions, when Eichler was in Corteselli's office, he stated to someone over the telephone, in substance, "what do you think I'm doing, sitting here jerking off?" (Eichler Dep. 40, 42). On another occasion, while they both were in Ferguson's office, Corteselli told Eichler to "get off [her] fat ass" and "get out there and go to work." (Id. at 31). Corteselli also frequently told Eichler that she was "stupid" or used the word "fuck" in her presence. (Id. at 27-28, 36). Eichler contends that Corteselli did not make similar statements to men. (Id. at 30, 33).

Some of Corteselli's statements were more overtly gender based. In one instance, Corteselli told Eichler, "You have tits. Just cry. They're not going to do anything." (Id. at 43). He also made extensive comments about her on one occasion while on the telephone, stating to someone unknown:

Hey you want her? I got the new girl. You want her, you can have her . . . . What does she look like? She's all right. She's all right looking.

Does she like it? Of course, she likes it. She's got five kids.

To some man, I don't know. (Id. at 44). On other occasions, Corteselli commented that if he and Eichler were in Iran, he "would be able to stone [her] to death because [she] was a woman." (Id. at 46-48). Although he made statements to this effect "at least a half dozen" times, Eichler did not report them because she did not want people saying, "Look at her, she's the cry-baby. She's doing this." (Id. at 47, 49).

At one point, a friend of Eichler's offered to buy her daughter a pony. After learning this, Corteselli asked Eichler, "Why don't you just marry the guy and just stay home?" (Id. at 44-45). At other times, he made similar comments, asking Eichler, "Why don't you find a husband and go get married[?] Like, get out of here. Don't be in the work force." (Id. at 45). According to Eichler, during one such conversation, when Corteselli suggested that Eichler get married, the following interchange took place:

I said, No. 1, he's one of my best friends. No. 2, I'm not attracted to him in that way . . . . I told him that he was shorter than me, and I felt uncomfortable in that situation. He told me . . . , it's not the size of it, it's the motion in the ocean. My wife is taller than me. She looks kind of like you. (Id.). Eichler was so upset that she responded to Corteselli's comment about "size" being unimportant by saying, "They lied to you," before abruptly leaving the room. (See id.).

Eichler twice complained in writing to supervisory personnel about Corteselli's boorish behavior. On Monday, April 8, 2002, she send Ferguson an email which stated in part:

Morning Paul.

Sorry to have to include you in this at this time. Below is a copy of an email I sent to Vince trying to resolve in a friendly, productive way the situation at hand[.] I will also forward his reply which I find unproductive and in all honesty nasty.

I will do my best to work with Vince but I am asking you to intercede and if necessary help me move to a different position at the first available opportunity as I do not see where there is an opportunity for a constructive work relationship [to] exist based on the reply Vince has given. (Ex. L).*fn4 The email that Eichler had sent to Corteselli the prior Friday acknowledged his dissatisfaction with her work performance, detailed her efforts to accommodate those concerns, and noted that:

It has also been brought to my attention several times recently, by different people[,] how you and I go at it. This has to stop[. A]lthough I do not take it personally, it is [a]ffecting others who are including me as being part of this distraction and this cannot be. (Id.). Eichler also explained to Corteselli that she had resorted to an email "because when I try to talk to you there are times when I find you unreasonable and I am not allowed to speak or if I do I am treated with disrespect."*fn5 (Id.).

In November 2002, Eichler sought to take an extra vacation day to accommodate her Thanksgiving travel plans. (Eichler Dep. 37). When she announced her intentions, Corteselli apparently had a tantrum and cursed at her. (Id. at 38). Shortly thereafter, Eichler sent a letter to Ferguson and Gillen concerning Corteselli's "Continued Verbal/Mental Abuse." (Ex. G). The letter, which took the form of an attachment to an email, was dated November 26, 2002. It stated:

Having had little else on my mind today after Vince Corteselli's outburst repetitively yelling at me to shut the fuck up and get the fuck out of his office when trying to communicate a change in vacation/personal days, I again feel it necessary to document what I find as unacceptable and inappropriate behavior. . . . .

When I arrived this morning Paul had invited me into his office to share in some bite size cheese cakes he brought in for the group. As Vince, Paul and I were together at the time I asked to speak to both Vince and Paul at the same time about what time I would like to take. Vince began to yell, and curse and stormed out of Paul's office before I was able to communicate my needs.

I left Paul's office and went immediately into Vince's to try to talk to him. As soon as I stepped in he started yelling at me and told me to get the fuck out [and] that he was going to treat me with the same respect I treat him with. Quite frankly Vince has made it clear on many occasions since this past spring that I have no value, as far as he is concerned. Respect is not something I have been shown from him. He has even gone as far as telling me how "stupid" I am to want to use the computer systems available to me[;] that it is simply management's way to trap me so they can fire me.

No matter how hard I try or how much I do I am continually put down, criticized and abused by Vince. I have gone out of my way to try to include him in keeping him aware of my work load and even tried to share some humor and lighten our very tense relationship by including him.

Being aware that steps are being taken in approximately January 2003 where I will be training someone on the follow the lead Hull procedures and will be handling primarily cargo claims, it is also my understanding at that time that I will no longer be reporting to Vince[.] I would like to know what can be done to eliminate the abuse that I am being subject to at this time. (Exs. G, N).

Following his receipt of the letter, Gillen spoke with Eichler and told her not to discuss the problem with the Human Resources department at AIG. (Eichler Dep. 66). Despite that admonition, however, Gillen himself emailed a copy of Eichler's letter to Donna Waithe-Byron ("Byron"), an AIG Human Resources department employee. (Ex. N; Byron Dep. 24-25). In his email, Gillen noted that subsequent to this complaint, Vince and Mary met, briefly[,] and have allegedly mended the fence. I have had an informal conversation with Vince with Mr. Ferguson present advising him of the inappropriate nature of his treatment of Mary and that we (Paul and I) would be meeting with him formally this week to discuss the situation. (Ex. N). Byron does not recall taking any steps to follow up on this email. (Byron Dep. 27, 39-40). It also appears that no sanctions were visited upon Corteselli as a consequence of his tirade, other than Ferguson reading him the "riot act." (Ex. M at 1; Corteselli Dep. 180-84). Corteselli apologized to Eichler after Ferguson noted that this "would seem to be appropriate." (Id. at 182).

Although Eichler at first thought that the matter had been resolved, she soon discovered that Corteselli "would not acknowledge [her] presence, would not speak with her and would not meet with her." (Ex. M at 2). Apparently, neither Ferguson nor Gillen told Eichler that her reporting relationship had been changed such that all of her future communications with Corteselli were to take the form of emails. (Id. at 2-3).

On or about February 25, 2003, Eichler notified Ferguson that she wished to resign, but she gave AIG sixty days' notice because she needed to find another job. (Eichler Dep. 95-97; Ex. 10). The following Monday, Eichler rescinded her resignation after meeting with Michael Festo ("Festo"), the AIG Human Resources manager, who promised to conduct an investigation of her allegations. (Eichler Dep. 97-106, 114-16). Festo had directed Eichler to meet with Donna Napotnik ("Napotnik"), one of his ...

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