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Maher v. Alliance Mortgage Banking Corp.

September 3, 2009


The opinion of the court was delivered by: Hurley, Senior District Judge



Plaintiff Jessica Maher ("Plaintiff") commenced this employment discrimination action against defendants Alliance Mortgage Banking Corporation*fn1 ("Alliance") and Raymond Agoglia ("Agoglia" or "Defendant") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and New York common law, asserting claims of a hostile work environment and retaliation, as well as common law causes of action for intentional infliction of emotional distress and assault. Presently before the Court is the motion by defendant Agoglia for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons stated below, the motion is granted in part and denied in part.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are construed in the light most favorable to Plaintiff, the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005).

A. Plaintiff's Initial Employment with Alliance

Alliance was a mortgage banking company, located in Levittown, New York, that was in business from 1984 to June 22, 2007.*fn2 (Marcus Aff., filed September 10, 2008 ("Marcus Aff.") at ¶ 2, Ex. A at 6, 9-10.) Defendant began working for Alliance in 1984, first as a loan officer and thereafter as a Sales Manager/Vice President (Id., at 8; ¶ 4; Ex. C at 6-7.) In his position as a Sales Manager/Vice President, Defendant supervised approximately twelve loan officer employees, including Plaintiff's father, Ronald Maher.*fn3 (Id. ¶ 4, Ex. C at 8; (Murray Aff., dated August 25, 2008 ("Murray Aff.") at ¶ 4, Ex. B at 70.)

Plaintiff was employed by Alliance from March 2002 to November 2005. (Marcus Aff. at ¶ 5, Ex. D at 7-8, 121.) Prior to July 2004, while attending high school, Plaintiff worked in the Shirley, New York office for Alliance as a part-time office worker and reported to her father Ronald Maher. (Id., at 8.) After graduating high school in July 2004, Plaintiff was offered and accepted a full time position in the branch accounting department at Alliance's corporate headquarters in Levittown, New York. (Id., at 11-14; Murray Aff. at ¶ 7, Ex. E at ¶ 7.)

In March 2005, Plaintiff reported to the supervisor of the accounting department, Michelle Bello ("Bello"). (Marcus Aff. at ¶ 5, Ex. D at 18-19.) Due to performance issues, Maher was transferred to a data entry position in the bookkeeping department at Alliance's Levittown, New York office in June 2005. (Id. at 23-24.) As part of her new duties, Plaintiff was responsible for covering the receptionist's main desk for one hour each day when the receptionist took her lunch break. (Id. at 16.)

B. Defendant's Alleged Conduct

Plaintiff alleges that beginning in October 2004 through September 2005, the following incidents occurred:

In October 2004,*fn4 Plaintiff attended an Alliance Halloween party dressed as a punk schoolgirl with black fishnet stockings. (Id. at 38-39.) While Plaintiff was walking down the hallway, Defendant approached her and requested that she come into his office, close the door and sit down. (Id. at 39.) Defendant then asked Plaintiff if her stockings were waist-high or thigh-high and also wanted to see how far they went up her leg. (Id.) Plaintiff told him that they were not thigh-highs and he laughed. (Id. at 40.) After leaving his office, Plaintiff told two co-workers, Tammy Kose and Kerry Aozzopardi about the encounter. (Id. at 40-41.)

In February 2005, while hanging Valentine's decorations in the office, Defendant approached Plaintiff from behind and smacked her buttocks three times with a cupped hand while saying, "Hey, hey, hey." (Id. at 46-48.) Plaintiff told him to stop. (Id.) Plaintiff then told a co-worker, Salvatore Guirlanda, about the incident. (Id. at 47-48.)

In April 2005, while Plaintiff was sitting in the reception area, Defendant approached her from behind and rubbed her shoulders and neck. (Id. at 160-61.) She asked him to stop, he refused, she squirmed out of his grip, and he walked away. (Id.)

In May 2005, while Plaintiff was in a co-worker's office, Defendant again approached her from behind and pinched her buttocks. (Id. at 53-56.) When Plaintiff told him to stop, he laughed and inquired whether she would press sexual harassment charges against him if she left Alliance. (Id.) Plaintiff informed him that she would if he did not stop what he was doing. (Id.) Later that afternoon, Plaintiff told a co-worker Jeany about the encounter. (Id. at 56-57.)

In addition, at various times during this period, Defendant questioned Plaintiff about her relationship with her boyfriend and told her that if she was not serious with him, Plaintiff could go on vacation with Agoglia. (Id. at 61-64.) One time, Defendant asked her to go to Greece*fn5 with him. (Id. at 64) When Plaintiff declined his invitation, stating that she could not take off from work, Defendant allegedly told her, "I am Alliance, so you can get off if I say you can get off." Plaintiff told him that she would not go on vacation with him. (Id. at 64.)

In July 2005, while sitting in the reception area, Defendant came towards Plaintiff gesturing his hands as if he were going to grab her breasts. (Id. at 66.) She asked him to stop and reminded him that he had a daughter who was approximately her age. (Id. at 66-67.) He responded by telling her that she knew how to shut him up. (Id.) Later that day, Plaintiff told two co-workers, Tammy and Kerri about the incident. (Id.)

Thereafter, in mid-July 2005, at a fiftieth birthday party for Agoglia which was being held at a restaurant in Manhattan, New York, Plaintiff approached Bello, her supervisor, and informed her of Defendant's behavior towards her. (Compl. ¶ 20; Marcus Aff. at ¶ 5, Ex. D at 71-75). At the party Plaintiff did not go into the details of each incident but told Bello that he had touched her on more than one occasion and had spoken to her in a manner that made her feel uncomfortable. (Id.)

Bello told her to avoid Defendant as much as possible, to tell him to stop, and that she would look into it. (Id.; Marcus Aff. at ¶ 7, Ex. E at ¶ 20) A few days later, on July 18, 2005, Plaintiff again spoke to Bello at the office, repeated the concerns she had about Defendant's conduct and asked her what was going to happen with regard to her complaint about Defendant's actions. (Id. at ¶ 21; Marcus Aff. at ¶ 7, Ex. E at ¶ 21and ¶ 5, Ex. D at 75.) Bello repeated that Plaintiff should avoid him as much as possible. (Id.)

On September 16, 2005, while in the reception area, Defendant walked behind Plaintiff and swatted her buttocks three times with a rolled up bunch of newspapers and said, "It was there. I couldn't help myself." (Marcus Aff. at ¶ 5, Ex. D at 69.) Approximately fifteen minutes later, while lighting a candle by her desk, Defendant came near her and blew in her ear, laughed and then swatted her buttocks. (Compl. at ¶¶ 14-15.)

On another occasion during this period, Defendant approached Plaintiff and told her about a bachelor party he had attended the night before. (Murray Aff. at ¶ 7, Ex. E at ¶ 24.) During that conversation, Defendant allegedly told her that he had seen several hot, naked, blonde women, and he thought that Plaintiff had been one of them. (Id.)

On September 28, 2005,*fn6 while on the telephone with a customer at the main reception desk, Defendant placed an unlit cigar down the front of Plaintiff's blouse, grazing her breast as he did it (the "September 2005 Incident"). (Marcus Aff. at ¶ 5, Ex. D at 108-09.) Then Defendant laughed and told her that he did not smoke anymore and wanted to put the cigar in a place he liked. (Id. at 110.)

C. Factual Background Following the September 2005 Incident

Later that same day, on September 28, 2005, Plaintiff told her father about the September 2005 Incident and Defendant's prior actions. (Id. at 111-12.) Her father telephoned her grandfather, a former police officer, who advised them to report the conduct to the Nassau County Police Department. (Id. at 111-12.) Plaintiff then filed a complaint against Agoglia alleging, inter alia, that he had assaulted her. (Id.)

In addition, Plaintiff wrote to Bello on September 28, 2005, following up on her July 15, 2005 and July 18, 2005 complaints about Defendant's conduct and inquiring into what actions had been taken to end his continued "sexual misconduct" towards her. (Id. at 112-13; Murray Aff. at ¶ 8, Ex. F.) Bello told Plaintiff that she was unaware that Plaintiff had wanted her to speak to anyone about the complaints, and thereafter delivered the letter to Ellen Spaventa, Alliance's Human Resource Director. (Marcus Aff. at ¶ 5, Ex. D at 113-15.) Spaventa met with Plaintiff and discussed her complaints about Defendant. (Id. at 115-16.) Spaventa told her that she would speak to Defendant and that she would make sure Agoglia apologized. (Id. at 116.) Later on September 28, 2005, in the presence of Bello, Defendant told Plaintiff that to the extent he may have offended her, he wanted to apologize. (Id. at 118-19.)

On November 3, 2005, Plaintiff gave notice that she was resigning her employment with Alliance effective November 17, 2005. (Id. at 121.)

The Nassau County Police Department arrested Defendant on November 15, 2005 in connection with Plaintiff's criminal assault claim.*fn7 (Id. at 131-32.) Later that day, Spaventa informed Plaintiff that she was being let go two days early but would be paid for those two days. (Id. at 136-37.) Alliance paid Plaintiff through her last scheduled day of work, November 17, 2007. (Id. at 138.)

D. Procedural Background

In January 2006, Plaintiff filed a charge of employment discrimination with the United States Equal Employment Opportunity Commission ("EEOC") through a joint filing with the New York States Division of Human Rights. Plaintiff was granted a Notice of Right to Sue on August 1, 2006.

Plaintiff commenced the instant action on September 19, 2006. Her Complaint asserts the following claims: (1) violations of Title VII; (2) violations of the NYSHRL; (3) and common law causes of action for ...

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