The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Plaintiff Suzanne M. Burns filed this lawsuit against her employer, the County of Schenectady ("County"), and two County employees, Donald R. Mennillo and Kathleen Flanagan Heap, claiming, among other things, gender discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-2, and New York Human Rights Law § 290 et seq. Defendants have filed a motion for summary judgment. Following review of defendants' motion, brief in support thereof, Burns' response, and the record on the matter, the court denies, in part, and grants, in part, defendants' motion.
The following relevant facts are undisputed. Burns is a female who at all times relevant was employed by the County as a Computer Aide. (See Complaint at ¶ 12, Dkt. No. 1.) Donald Mennillo was also employed by the County as a Deputy Director of the Department of Information Services. (Id. at ¶ 13.) Kathleen Flanagan Heap was employed as the County's Personnel Administrator. (Id. at ¶ 14) Burns claims that during the period of September 2001 to May 2004, she was sexually harassed by Mennillo. Among the acts Burns claims Mennillo commited are: stroking her hair, rubbing up against her, leering at her body, blowing kisses at her and waiting for her outside the ladies' restroom. (Id. at ¶ 16.) As a result of this harassment, Burns took several leaves of absence from work due to the stress created by Mennillo's actions. (Id. at ¶¶ 19-20.) Burns filed an internal complaint with the County and, at the conclusion of an investigation by the County, Mennillo was cleared of the charges. (Id. at ¶¶ 20 and 27.) Burns testified that during the hearing before the Committee that was investigating her allegations, she learned that her employment status with the County was modified from "permanent" to "temporary." (See Burns' Deposition at pp. 55-64, Dkt. No. 38; EX. D-1.)
Burns filed two complaints with the Equal Opportunity Employment Commission ("EEOC"). One complaint was filed on December 10, 2004, claiming sexual harassment and the other complaint was filed on June 8, 2005, claiming retaliation. (See Complaint at ¶ 5, Dkt. No. 1.) The record indicates the EEOC issued a Notice of Right to Sue on May 14, 2007. (See Exhibit List to Burn's Affidavit, Dkt. No. 42-3.) On July 31, 2007, Burns filed this action against defendants claiming, among other things, gender-based discrimination that created a hostile work environment and retaliation. Defendants have moved for summary judgment.
To defeat a summary judgment motion, the nonmoving party must show sufficient evidence to create a genuine issue of material fact. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the party must present sufficient evidence to permit a reasonable juror to find in its favor, but the nonmoving party cannot simply rely on unsupported allegations in attempting to survive a summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
II. Hostile Work Environment Claims Against the County
"A hostile work environment claim requires a showing  that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment, and  that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks and citations omitted). "The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered," Id., and that the harassment occurred because of her race, age, or sex. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (stating that sexual harassment is actionable under Title VII).
"This test has objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Alfano, 294 F.3d at 374 (internal quotation marks omitted). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.... Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. (internal quotation marks and citations omitted). Nevertheless, "it is well settled in this Circuit that even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." Id. "In short, a plaintiff alleging a hostile work environment must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her work environment." Id. (internal quotations marks omitted).
In addition, as stated above, the plaintiff must show that a specific basis exists for imputing the objectionable conduct to the employer.
"Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action." Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004). This inquiry differs where the harassment is attributed to a supervisor. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In such case, the "court looks first to whether the supervisor's behavior culminated in a tangible employment action against the employee." Petrosino, 385 F.3d at 225 (quoting Burlington Indus., 524 U.S. at 765) (alterations omitted). If no such tangible employment action is present, however, an employer will still be liable for a hostile work environment created by a supervisor unless the employer successfully establishes an affirmative defense. Id. That defense requires the employer to ...