The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff has brought this action on behalf of three charging parties under 42 U.S.C. 2000e-5(f)(1) and (3) and 2000e-6 ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. Plaintiff alleges that defendants are liable to the charging parties for sex discrimination based on sexual harassment, constructive discharge and retaliation. The charging parties have intervened and asserted their own individual claims against defendants. Defendants have moved for summary judgment dismissing the complaint. Plaintiff has cross-moved for summary judgment dismissing defendants' affirmative defense.
KarenKim., d/b/a Paul's Big M is a grocery store located in Oswego, New York. The store employs at least 55 employees, but more during the summer months. Defendant Karen Connors has been the owner, officer and director of the company since she and her sister bought it from their father in or about 1999. Defendant Allen Manwaring has been employed by Paul's Big M since 2001 as the store's General Manager. In his capacity as General Manager, defendant Manwaring "r[an] the store." He was also responsible for "all business operations including purchasing, human resources, long and short term planning, financial planning, etc.." Manwaring, along with office manager Marlene Davis and Diane Vickery, hired, fired and disciplined employees. Defendants Connors and Manwaring made decisions about the business "together."*fn1 In addition to their professional relationship within the company, defendants Connors and Manwaring began a personal relationship in March 2001. They became engaged in December 2006 and have a child together.
Plaintiff-intervenor Andrea Bradford began working in the produce department of Paul's Big M in August or September of 2004. According to plaintiff-intervenor Bradford, defendant Manwaring began sexually harassing her in 2005. In May 2005, she alleges that Manwaring "grabbed her nipple" and said "Charlie [referring to a fellow employee] wishes he had these." In another instance, Bradford states Manwaring told her "you look kind of cute in that apron," when it was warm at work and she took her sweatshirt off. Around that same time, Bradford alleges Manwaring told her "You really should wear tighter clothes to work." The next day she alleges he said in front of her co-worker Lori Casler, "I'm glad to see Andrea's wearing tighter clothes."
Plaintiff-intervenor Bradford states that she discussed this incident with Casler who was "not surprised" by defendant inappropriate Manwaring's behavior. Bradford claims that Casler told her that if she "said anything to [defendant] Karen [Connors]" about the incident, she would "not be believed."
Bradford alleges that defendant Manwaring came into the produce room one day, pointed at her breasts and said "Those are nice." Then she asserts defendant Manwaring touched her "bottom private area" and said "That's nice too." According to Bradford, Manwaring told her "You can touch me down there whenever you want, it will be kind of I help you out, you help me out and nobody has to know." Bradford states that there was an incident in 2005 when she was preparing fruit with a large knife. She alleges Manwaring approached her, unzipped his pants and said "You wouldn't cut my dick off?" Bradford states that she said "Yes, I would," and slammed her knife down on her cutting board at which time Manwaring zipped up his pants and left. On one occasion Bradford alleges that Manwaring came into the produce room and said "One of these days, I'm going to pick you right up and F your brains out."
For Christmas in 2006, Bradford asserts that defendant Manwaring gave her several inappropriate gifts including a banana vibrator, a deck of "dirty playing cards," and a box of penis lollipops. In response to the gifts, Bradford said she "laughed embarrassingly" because the gifts were "funny" but also "inappropriate." Nevertheless, she later managed to "consume" the penis lollipops and still has the other gifts in her posssession.*fn2
Sometime in 2007, plaintiff-intervenor Bradford states that Manwaring came up behind her and said "I haven't fucked with you in a long time." When Bradford told him to "Beat it," she said Manwaring responded "I have and I thought of you." Also, in April 2007, when Bradford asked defendant Manwaring to leave early for a doctor's appointment, he asked her if her boyfriend had given her an STD. Bradford alleges that Manwaring told her if she let him "put [his] dick in [her] it would be the cleanest dick [she] ever had."
Plaintiff-intervenor Deborah Haskins started working in the produce department at Paul's Big M in August 2006. She alleges that on three occasions defendant Manwaring "gave her a hug" on the produce floor and "his hand would go down and touch [her] breasts." On one other occasion, Haskins states that defendant Manwaring came up behind her while she was bent over filling a case and grabbed her right breast. At no point during these four startling encounters does she allege she said anything to him nor does she state he said anything to her. Haskins recalls that she and Andrea Bradford making sexual jokes about produce in the store including carrots and potatoes. Andrea Bradford confirmed making sexual jokes when they would find a "potato that was in the shape of - - I don't know - - an upper torso."
Plaintiff-intervenor Judith Goodrich began employment as a cashier at the store in 2003. Sometime in late 2006 or early 2007, she alleges that defendant Manwaring put his arms around her, hugged her and "pushed his groin" into her. Goodrich states that after this occurred she said "Hey," and defendant Manwaring "just stood there and laughed." In a second incident, Goodrich was standing at the hot food case and while she was bent over stirring something, defendant Manwaring came over and once again "pushed his groin" up against her. She also recalled one incident where defendant Manwaring touched her breast though she did not know if it was intentional. Goodrich alleges that one day at work, defendant Manwaring "asked if [she] was a screamer."
According to plaintiff-intervenor Goodrich there was a "joking sexual atmosphere" in the store that she "walked into when [she] went to work there." This atmosphere continued from the time she was first employed until the time she left. According to plaintiff-intervenor Goodrich "most" of the employees of Paul's Big M, including the three plaintiff-intervenors, participated in the sexual joking and humor at the store. Goodrich testified "it was the nature around the store to joke in that way . . . we all joked . . . we all laughed." It is undisputed that at no time prior to May 2007 did any of the three plaintiff-intervenors complain to defendant Karen Connors about defendant Manwaring's alleged sexual harassment. Plaintiff asserts that defendants had no policy for employees to make complaints of sexual harassment. However, Connors alleges that she terminated a contractor after plaintiff-intervenor Bradford complained that he had sexually harassed her. Andrea Bradford asserts that she feared she would lose her job if she complained to Connors about Manwaring. On the other hand, she also testified that she gave Manwaring a hug one day because she and her boyfriend had gotten into an argument.
In May 2007, defendant Manwaring was involved in a serious incident of sexual misconduct with a teenage employee named Kelsey Rose. The record is not clear on the exact facts of what occurred - it is alleged that he "stuck his tongue in her mouth" while she was talking on the phone with her boyfriend although Manwaring asserts it was "accidental." In any event, he was arrested and later plead guilty in the City of Oswego to Harassment in the Second Degree and Forcible Touching. Defendant Manwaring was sentenced to a one year conditional discharge, 100 hours of community service and a fine. When the charges involving Kelsey ...