The opinion of the court was delivered by: Robert L. Carter, District Judge
On November 13, 2006, plaintiffs Areopi Rhea Stathatos, Lonette Hopewell and Kia Frasier (all together, "plaintiffs") brought this action against defendants Gala Resources, LLC ("Gala"); Carnegie Capital Corporation; Aaron Ziegelman ("Ziegelman"); Marjorie Ziegelman; Amy Ziegelman Avital; Jane Ziegelman Coe; Alan Haberman; Linda Haberman; Howard Haberman; Robert Goldenberg; Linda Funding, LLC; Benjamin Funding Corporation; Claudia Funding Corporation; Millpond Funding, LLC; Haberman & Goldenberg, LLP; and the Ziegelman Foundation (all together, "defendants"), asserting illegal termination, hostile environment and retaliation claims under Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. Sec 2000e et seq. ("Title VII"), and New York's Executive Law § 290 et seq. (the "HRL"). They also alleged claims of defamation, tortious interference, and intentional infliction of emotional distress.
Plaintiffs have withdrawn their claims against Marjorie Ziegelman, Amy Ziegelman Avital, Jane Ziegelman Coe, and Linda Haberman.
The remaining defendants now move for summary judgment pursuant to Rule 56, F. R. CIV. P., on plaintiffs' hostile environment, illegal termination and retaliation claims. Defendants also move for summary judgment on Stathatos's and Hopewell's intentional infliction of emotional distress claims.
For purposes of this motion the facts are construed in the light most favorable to plaintiffs because they oppose summary judgment.
Gala loans money to real estate investors and developers and operates in an intensely competitive commercial environment. Ziegelman and Alan Haberman are Gala's senior founders and owners. Howard Haberman and Robert Goldenberg are attorneys at the firm. Gala hired Stathatos in February, 1996 to perform a variety of bookkeeping tasks. Her responsibilities steadily expanded, as did her access to confidential and proprietary business information.
Beginning in 2002, Stathatos engaged in a series of acquisitions to acquire title to real estate, for which she received financing from Northern Funding, a competing real estate lender founded by two former Gala employees. The principals at Gala and Northern funding had a tense relationship, so Stathatos did not tell anyone at Gala about those deals. When Ziegelman and Alan Haberman learned of them, they fired her, in November, 2004.
Lonette Hopewell, an African-American woman, started working at Gala in August, 2000 to perform administrative duties. She became pregnant, so Gala hired Kia Frasier, also an African-American woman, on October 18, 2004, with the expectation that she would cover for Hopewell until her return from maternity leave. Frasier had no expectation of continued employment by Gala beyond then.
Following Stathatos's termination, Alan Haberman told Hopewell and Frasier that Stathatos had been doing business with a competitor and to cease communicating with her on pain of termination. On December 20, 2004, both were fired, purportedly for faxing their resumes to Stathatos.
Plaintiffs tell of tenures punctuated by casual, unblushing bigotry.
Stathatos describes sexist incidents primarily involving ribald behavior by Ziegelman and Alan Haberman. In the late 1990s Ziegelman offered Stathatos breast shaped candy while saying "lick it, don't bite it" (Fernandez Aff., Ex. A 107). In summer 2004, Ziegelman grabbed Stathatos's buttocks and said, "nice" (id. at 360), which made Stathatos "very upset" (id.). On unspecified occasions Ziegelman boasted about his Viagra induced sexual prowess (id. at 363). In 2003 or 2004 Ziegelman "check[ed] out [her] ass" (id. at 461). In 2002 or 2003 Alan Haberman told her that she had "dimples in [her] ass" (id. at 462). Over the course of several months she was exposed to pornographic pictures when she was forced to purge a colleague's computer of pornographic website residue (id. at 420-23). She complained to Alan Haberman and Howard Haberman about the problem, but says that "nothing ever happened" (id. at 427). Ziegelman and Alan Haberman "constantly" openly speculated about Stathatos's and her mother's sex life and accused both of sleeping with competitors (id. at 378). On unspecified occasions Alan Haberman made sexually tinged comments about Greeks "doing things backwards," which Stathatos alleges referred to a sexual position (Pl.'s Counterstatement of Material Facts 9). On a number of unspecified occasions Alan Haberman made her uncomfortable by hugging her while saying "Oh baby" (Fernandez Aff., Ex. A 504-05). She also complains of puerile callousness. During an office holiday party in 2002 or 2003 a Gala client became aggressive toward Stathatos and "grabbed" (id. at 471) her repeatedly, and "chas[ed her] all night" (id. at 472). She approached Alan Haberman for help, asked that he "get him off of me" (id.). He teased her instead: "He likes you . . . he wants to date you" (id. at 471). She alleges that "all the guys were joking around, [saying,] 'oh, why don't you date him? Why don't you go out with him?'" (id. at 474-75). She testified that "[it] bothered [her] a lot that no one stopped it when I asked for help" (id. at 475).
Stathatos also recounts instances of racism. Ziegelman once said "blacks are so dumb" and conjectured about "blacks going into arrears" (Pl.'s Counterstatement of Material Facts 7). She alleges that Ziegelman once derided a Puerto Rican woman for "being too black" (Fernandez Aff., Ex. A 327). Alan Haberman told her that "Ziegelman doesn't want anybody black in the front" (id. at 328). Alan Haberman also complained that his secretary's hair was kinky (id. at 326).
Hopewell alleges several instances of unwanted touching, including unspecified times when Alan Haberman rubbed her on the arms (Fernandez Aff., Ex. C 89), and one undated occasion when he rubbed her back (id. at 90). She told him that it made her uncomfortable and he never did it again (id.). In 2003 or 2004, while passing a male colleague in a narrow hallway, he rubbed his pelvic area against her buttocks twice. She complained to Alan Haberman about it, who told her that it would never happen again. (id. 42-43). She heard Alan Haberman refer to the women in the office as "honey" (id. 75). On an unspecified date Ziegelman offered her also breast shaped lollipops while commenting, "you don't bite them, you lick them" (id. at 103). On an unspecified date Ziegelman showed her a magazine depicting naked and half-naked women and "said something to the effect of, Isn't she hot?" (id. at 127). On unspecified occasions Alan Haberman compared the breast sizes of the women in the office, and commented about the breast sizes of women who visited the office (id. at 84); commented about the length of women's skirts, sometimes suggesting that they "should wear shorter skirts" (id. at 86); and talked openly about wanting to have sex with his personal trainer (id. at 88). Hopewell also depicts a racially charged atmosphere. On an unspecified date Ziegelman or Alan Haberman (she cannot remember which) told her to stop covering for the designated receptionist whenever the receptionist was away because, she claims, they wanted someone "more presentable" at the front desk (id. at 30); from that point forward, if the front needed coverage, she would answer the phone from her desk in the back (id. at 32). On an unspecified date Ziegelman offered her a piece of banana in a manner she thought played on racist associations (id. at 97-99). Alan Haberman once referred to a broker's girlfriend as "[t]he little black girl" (id. at 54). She also alleges that Gala's policy excluding children from the office was discriminatorily applied. In 2002 or 2003 she was specifically asked not to bring her toddler to the office, while Ziegelman's and Alan Haberman's grandchildren, and Robert Goldenberg's daughter, who are white, were allowed to visit (id. at 49-51).
Frasier also depicts a sexually and racially charged atmosphere at Gala. On an unspecified date in 2004 she saw Alan Haberman compare underwear with a female colleague, going so far as to pull up his shirt to reveal the trim of his silk boxer shorts (Fernandez Aff., Ex. B 19). On an unspecified date in 2004 she overheard him ask Stathathos about "getting laid last night" (id. at 21) and accuse Stathatos of sleeping with a competitor (id. at 22). On an unspecified date in 2004 she overheard references to a co-worker as a "porn star" (id. at 20).
On an unspecified date in 2004 Frasier heard Alan Haberman refer to Hopewell as "the pregnant black girl" (Decl. of David Cohen, Ex. C 53). She also recounts a 2004 banana incident also involving Ziegelman*fn1 , who "opened up the banana and peeled it down and turned around and said, 'hey, ladies, would you like a piece of my banana" and then turned back around to [Alan Haberman and some other men] and they all started laughing" (Fernandez Aff., Ex. B 13). She believes that the gesture amounted to Ziegelman "trying to call [her] a monkey" (id. at 15).
On the afternoon November 24, 2004, Frasier's daughter visited the office following a half day of school. Her daughter sat in the front office as other, white children played in the area. Ziegelman asked that Frasier's daughter be moved to increasingly secluded areas, while he allowed the other children to remain in the front. Frasier became upset about her daughter's treatment (Decl. of David Cohen, Ex. C 48-52).
Plaintiffs also complain that Gala's sign-in sheet policy evinced sexist attitudes. In late 2004, Gala started using sign-in sheets to track the attendance of hourly clerical staffers. Plaintiffs fell under this policy, as did several other female employees. Benjamin Paskesz was the only male employee to fall under the policy. But Paskesz flouted the policy with impunity, refusing to sign in and out. Stathatos perceived discrimination, which bothered her so much that she, along with Hopewell and Frasier, refused to abide by the policy, in protest. Stathatos complained to Alan Haberman about the discriminatory application of the policy and ultimately threatened to quit over the matter. Alan Haberman became "very pissed off" (Decl. of David Cohen, Ex. A 241) and said to her just before she was fired, "If you guys don't sign in, I'm going to fire all of you" (id.). Stathatos was terminated approximately one month later.
I. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." F. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "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). In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Id. at 255. It is often difficult to apply summary judgment analysis in employment discrimination cases because they necessarily turn on the intent of the alleged discriminator, and plaintiffs will rarely uncover direct evidence of discriminatory intent. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989). Nonetheless, a plaintiff must produce some evidence from which a reasonable inference of discrimination can be drawn. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). For a plaintiff to survive a motion for summary judgment in a discrimination case, "she must offer 'concrete particulars' to substantiate her claim." Duprey v. Prudential Ins. Co. of America, 910 F.Supp. 879, 883 (N.D.N.Y. 1996) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
II. Claims against Benjamin Funding Corp.; Claudia Funding Corp.; Linda Funding, LLC; Haberman & Goldenberg, LLP; Millpond Funding, LLC; and the Ziegelman Foundation
Defendants move to dismiss plaintiffs' claims against Benjamin Funding Corp.; Claudia Funding Corp.; Linda Funding, LLC; Haberman & Goldenberg, LLP; Millpond Funding, LLC; and the Ziegelman Foundation. Defendants argue that none exercised dominion or control over Gala, and none played a direct role in any event allegedly giving rise to this complaint. Plaintiffs have not addressed these claims in their opposition papers, so they are deemed abandoned.
III. Title VII and HRL Claims
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. Sec 2000e-2(a)(1). The HRL provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice . . . for an employer . . . because of an individual's . . .race [or] . . . sex . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. EXEC. L. § 296(1)(a). "We treat Title VII and [HRL] ...