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Polito v. Tri-Wire Engineering Solution

March 19, 2010


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


Plaintiff Cindi Polito ("Plaintiff") filed the present action against Tri-Wire Engineering Solution, Inc. ("Tri-Wire"), Raymond Paris ("Paris"), Mark Spiers ("Spiers"), Greg Connolly ("Connolly"), and John Marsh ("Marsh") (collectively, "Defendants") alleging that she was discriminated against based on her gender pursuant to the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"), and the Suffolk County Human Rights Law, Laws of Suffolk County, New York, Part III § 89-13 ("SCHRL"); that she was subjected to a hostile work environment based on sex pursuant to the NYSHRL and the NYCHRL; that Defendants failed to notify her of her eligibility to continue health insurance coverage in violation of the Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161 et seq. ("COBRA"); and that Tri-Wire was negligent in retaining and supervising defendants Spiers and Connolly as employees. Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For reasons stated below, their motion is granted in part and denied in part.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

Plaintiff was employed by Tri-Wire as a dispatcher in its Suffolk County office located in Ronkonkoma, New York from March 3, 2003 to October 7, 2005. According to Plaintiff, she worked under a number of different supervisors at different times, including defendants Spiers and Connolly, until August 2004 when Paris was hired as Operations Manager of the Suffolk County office and became Plaintiff's direct supervisor. (Pl.'s Dep at 71-72, 93-94, 169-71.) Paris remained in that position through Plaintiff's termination date.

Plaintiff was promoted to the position of dispatch manager sometime in 2004. After her promotion, Plaintiff claims that she was informed by Marie Wade ("Wade"), TriWire's Human Resources Manager, Marsh, and Paris on eight separate occasions that she would be trained to work on a new electronic billing system. (Polito Aff., dated Dec. 30, 2008 ("Pl.'s Aff.") ¶ 9; Pl.'s Dep. at 112.) As dispatch manager, Plaintiff was responsible for supervising two to three dispatchers in the Ronkonkoma office, including Jennifer Martin ("Martin"). (See Pl.'s Aff. ¶ 8; Marsh Dep. at 11.)

Plaintiff became pregnant in April 2005 and notified Tri-Wire of her pregnancy. She was informed that her job would remain available for her upon her return from maternity leave. Plaintiff contends that after she notified Tri-Wire of her pregnancy, the responsibility to learn and work with the new electronic billing system was assigned to Martin, who began training on the new system.*fn1 (Pl.'s Aff. ¶ 11; Pl.'s Dep. at 115.)

Plaintiff's Altercation with Martin and Plaintiff's Termination

Plaintiff claims that on Friday, October 7, 2005, she and Martin had a verbal argument during which Martin said to Plaintiff, "if you weren't pregnant, I'd kick your... ass." (Polito Aff. ¶ 26.)*fn2 Because Plaintiff allegedly felt physically threatened, she reported the incident to Paris, her immediate supervisor, and to Marsh, her manager. (Polito Dep. at 149, 198; Marsh Dep. at 32.) Plaintiff also filed a police report about the incident with the Suffolk County Police Department. (Pl.'s Ex. G.) Upon Paris's return to the office in the afternoon, he met with Plaintiff and Martin in his office. The parties disagree about what happened next.

According to Defendants, Plaintiff called Marsh after the altercation and Marsh told her he would call Paris and have him report to the office immediately to see what was happening. (Marsh Dep. at 32-33.) Paris later met with both women who were "out of control." He told them to go home and "report back to work" on their next regularly scheduled day. (Paris Dep. at 28, 34.) Martin's next scheduled workday was the following day, Saturday, at which time Martin reported to work and spoke to Paris. (Id. at 13, 29.) Plaintiff's next scheduled workday was the following Monday. Unlike Martin, Plaintiff did not report to work. Paris claims that the first time he heard from Plaintiff was Tuesday morning when he retrieved a telephone message left by Plaintiff the previous evening saying that she could not report to work on Tuesday because she had a doctor's appointment. (Id. at 33-34, 45.)

According to Plaintiff, she and Martin were sent home on Friday without any further instructions. Specifically, Plaintiff claims that Paris chastised both women for their behavior and stated: "Both of you leave." (Pl.'s Dep. at 184.) Later that day, Plaintiff called Marsh, general manager of Tri-Wire's main office in Massachusetts, to discuss what happened. (Id. at 188.) At her deposition, Plaintiff explained that she was friends with Marsh, who spent a lot of time in the Suffolk County office, and if she had any problems she "figured that he would take care of them." (Id. at 87-88.)

According to Plaintiff, Marsh told her that "somebody needs to get fired" and that he would call her back. (Id. at 188.) Marsh also told her he would speak with Paris and assured Plaintiff that she "was safe coming back to work."*fn3 (Id. at 197.) Although Plaintiff left Marsh several messages at work and on his cell phone over the weekend, Marsh did not return Plaintiff's calls. (Id. at 188, 360.) Plaintiff also left Paris two telephone messages over the weekend but Paris did not call her back as well. (Id. at 193; Polito Aff. ¶ 31.) Plaintiff submits copies of phone records reflecting the telephone calls she placed to both Paris and Marsh. (See Pl.'s Ex. H.)

Plaintiff claims that she called Paris on Monday morning at 9:00 a.m and he told her he would call her back after he spoke to Marsh. (Pl.'s Dep. at 195.) In general, Plaintiff was required to report to work at 9:30 a.m. (Id. at 345.) After not hearing from Paris, Plaintiff called Paris back at 10:00 a.m. and Paris told her "don't bother coming in." (Id. at 194-95; Polito Aff. ¶ 32.) Plaintiff tried to explain to Paris that she did not report to work because she waiting to receive instructions from Marsh. (Pl.'s Dep. at 197.)

Thereafter, Paris sent Plaintiff an undated letter which provides as follows:

You were requested to report to work on Monday October 10, 2005. Since you have chosen not to respond to this request you have left TriWire Engineering Solutions Inc. No chose [sic] but to terminate your employment with us. Your Employment has been terminated as of October[] 10, 2005. (Pl.'s Ex I.) Also in the record is a "Departing Employee Form" which provides the following description of the events leading up to Plaintiff's termination:

[Plaintiff] had an argument with another employee on Friday October 7, 2005. [Plaintiff] and that employee were sent home. [Plaintiff] did not show up for work on Monday October 10, 2005. [Plaintiff] then called and was told she must come to work today or she will be terminated. She never came into work. [Plaintiff] did not show up for work Tuesday October 11, 2005, she left a message on the night machine saying she had a doctor's appointment. She never called back after that. [Plaintiff] was sent a termination letter.


Defendants maintain that Plaintiff's termination was due to her "job abandonment" following her altercation with Martin. (Aff. of Raymond W. Paris, dated Nov. 13, 2008, at 18.) Because, as opposed to Plaintiff, Martin reported to work on her next scheduled workday, Martin was not terminated. Rather, Martin was issued an "Employee Warning" on Monday, October 10, 2005 which provides as follows: "[Martin] had an argument with [Plaintiff]. The argument became heated. [Martin] was sent home with a warning. She was told to report back to work tomorrow." (See Pl.'s Ex. K.) The Employee Warning lists "1st Offense, 2nd Offense, 3rd Offense [and] 4th Offense." (Id.) "1st Offense" is circled. (Id.)

Tri-Wire's Progressive Disciplinary Process

Tri-Wire maintained a "Progressive Discipline" policy. (Pl.'s Ex. J.) The policy provides that Tri-Wire has "the right to terminate employment at will, with or without cause or advance notice" and that use of its progressive discipline was discretionary. (Id.) The policy further provides that disciplinary action "may be any of the following four steps: 1) verbal warning, 2) written warning, 3) suspension with or without pay, or 4) termination of employment." (Id.) The policy indicates that one or more steps can be by-passed, but that the steps will normally follow in the given progression. (Id.) However, "[i]n very serious situations, some types of employee problems may justify either a suspension, or, in extreme situations, termination of employment, without going through the usual progressive discipline steps." (Id.) Plaintiff's Claims of Hostile Work Environment

Plaintiff claims that throughout the course of her employment, she was sexually harassed by defendants Connolly and Spiers. For example, she testified that Connolly told her that she "look[ed] sexy with [her] glasses on," that she "[had] a nice ass," that she had "a better body than the girls in the office," and that she "was a beautiful pregnant woman," and that these comments made her feel very uncomfortable. (Polito Dep. at 263-66.) Plaintiff also testified that Spiers was "very touchy-feely" and would "grab" her and the other females in the office. (Id. at 281.)

Tri-Wire's Employee Handbook provides that if an employee is experiencing or witnessing sexual harassment at work, they are to "report it immediately to [his or her] supervisor. If [the] supervisor is unavailable or [the employee] believe[s] it would be inappropriate to discuss it with [his or her] supervisor, [the employee] should contact the President or any other member of management." (Defs.' Ex. I at 345-46.) Although Plaintiff never once filed a written complaint regarding any sexual harassment,*fn4 Plaintiff claims that she orally complained to her superiors about the behavior immediately after each occurrence. Plaintiff claims that no remedial action was taken after she complained. (Pl.'s Dep. at479-80.)

Plaintiff's COBRA Claim

Plaintiff claims that upon her termination from employment, Defendants failed to notify her, as required by COBRA, that she was eligible to continue her health insurance coverage through Defendants. Defendants disagree and contend that Tri-Wire's Human Resources department mailed Plaintiff a letter notifying her of her COBRA rights.

The Complaint and the Present Motion

The Complaint as originally filed asserted ten causes of action against Defendants. By stipulation dated March 11, 2008, Plaintiff voluntarily withdrew her Second, Third, and Fifth Causes of Action with prejudice. This stipulation was So Ordered by the Court on March 31, 2008. The remaining claims are as follows: (1) the First Cause of Action alleging a violation of COBRA; (2) the Fourth Cause of Action alleging hostile work environment based on sexual harassment in violation of the NYSHRL and the NYCHRL; (3) the Sixth Cause of Action alleging gender discrimination based on pregnancy in violation of the NYSHRL; (4) the Seventh Cause of Action alleging gender discrimination based on pregnancy in violation of the NYCHRL; (5) the Eighth Cause of Action alleging aiding and abetting gender discrimination in violation of the NYSHRL; (6) the Ninth Cause of Action alleging gender discrimination based on pregnancy in violation of the SCHRL; and (7) the Tenth Cause of Action alleging negligent supervision and retention. No federal discrimination claims are filed. Defendants move for summary judgment on all claims. For the reasons stated below, Defendants' motion is granted in part and denied in part.


I. Motion for Summary Judgment - Legal Standards

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, ...

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