The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court, on consent to my jurisdiction, is the defendant's motion for summary judgment. For the reasons set forth herein, the motion is granted in part and denied in part. The hostile work environment claim is dismissed, the retaliation claim will go to trial, and the issue of mitigation of damages will be determined at trial.
The plaintiff, Wendy Urban, commenced this action on September 22, 2008 pursuant to Title VII and the New York Human Rights Law, alleging a hostile work environment caused by co-employee, non-party Christopher Hoffman and supervisor, non-party Mark Kilkuskie*fn1 at the gym run by defendant Capital Fitness ("Capital")*fn2 where they all worked. Urban alleges that she reported Hoffman's alleged inappropriate behavior to her supervisors at Capital, and nothing was done. She further alleges that, as a result of her complaints, she was subjected to retaliatory treatment by non-party Mark Kilkuskie, the gym's General Manager,and was ultimately terminated from her employment in retaliation. See Complaint, DE. On February 13, 2009, the parties consented to my jurisdiction. DE. On August 3, 2010, the instant, fully briefed motion was filed with the court. DE- DE.
The facts relevant to this motion are taken from the parties' Rule 56.1 Statement (DE[23-1]) and Counterstatement (DE[23-2]) and the evidentiary citations therein. Facts not relevant to the motion are not included. Urban was employed at the gym run by defendant Capital as a spa manager supervising approximately 25 employees, starting around August 15, 2006 and ending in July 2007. Rule 56.1 Stmts., ¶¶1, 12-14. During most or all of the term of her employment, Christopher Hoffman was the Operations Manager of the gym, and Mark Kilkuskie was the General Manager. Def. 56.1 ¶¶39 &42. Capital states that non-party Dennis Pierro, who sent Urban a letter relevant to her claim of retaliatory termination, has been a vice-president of Capital for approximately 14 years, handling corporate insurance, real estate and human resource issues. Def. 56.1 ¶¶17-19. Urban disputes his title and job responsibilities. Pl. 56.1 ¶¶17-19. Urban admits that she never told Pierro that she was having problems with Chris Hoffman or Mark Kilkuskie, whose behavior she complains of in this lawsuit, although she says that is immaterial to her claims because she complained about those men to her direct supervisor, Jamee Taylor. 56.1 Stmts. ¶¶28-30.
Urban spoke with Jamee Taylor frequently by phone and Taylor visited the gym where Urban worked every few weeks. 56.1 Stmts. ¶¶35 & 36. In November 2006, Urban told Taylor that employee Michelle O'Brien had told Urban that Chris Hoffman, the gym's operations manager, made a comment about O'Brien's body. Capital states that Taylor reported the complaint to either Kathleen Wade or Andy Braun, while Urban states that Taylor reported it to Wade, not Braun. 56.1 Stmts. ¶37. Urban maintains that she complained frequently to Taylor about Hoffman's behavior, including claims that he leered at female employees and touched them inappropriately, and recounts numerous second hand complaints from other women to her about Hoffman. Capital states that no employee complained about Hoffman's leering or touching. Def. 56.1 ¶¶61 & 62. Urban also recounts numerous instances of Kilkuskie's cursing, and complained to Taylor about it. 56.1 Stmts. ¶71. In her Complaint, Urban alleges that, after she reported the O'Brien complaint to Taylor in November 2006, retaliatory behavior by Kilkuskie began, including cursing at her and her staff, telling her she would not get back money she spent on work supplies, disparaging her comments at meetings, and informing other employees that she was "so fucking done" at Capital. DE, Compl. ¶18.
The parties present widely conflicting versions of how Urban came to be terminated from her employment with Capital. Urban alleges that she had a meeting with Kathie Wade on July 26, at which Wade questioned whether Urban had gotten permission for a particular promotion involving discounts to customers. Urban said that Kilkuskie had approved the promotion when she asked his permission by saying: "I don't give a shit what the fuck you do, just make the fucking numbers." DE, Ex. B, Urban Dep. Tr.138:9-24. Kilkuskie told Wade, however, that he had not approved it, which Wade reported back to Urban. Urban maintains that the retaliatory treatment and harassment that had started back in November broke her down and that she started to cry and said she would take the rest of the day off. Urban Tr. 142:12-20. Urban testified that she called her supervisor, Taylor, to tell her that she was taking the day off and that Taylor told her not to worry, that she would talk to Wade and to Kelly Cartwright, Capital's Customer Service Representative. Urban Tr. 144:22-149:12. At her deposition, Taylor testified that she did not talk to Urban on that day, that she was on vacation with her cell phone turned off. DE, Ex. D, Taylor Dep. Tr., 59:17-64:7. Taylor testified that she did speak to Urban a few days later, when Urban called her. Taylor Tr. 64:10.
Urban reports that, after she left that day, she told Kelly Cartwright about all of her complaints of sexual harassment and how she felt her job was threatened. She alleges that Ms. Cartwright told her to take a leave of absence while the issues were being worked out. Compl. ¶19. Cartwright agrees that Urban reported numerous complaints to her, but does not state that she told Urban to take a leave of absence, but instead told her that Urban herself had to call Dennis Pierro. Cartwright also testified that she told Pierro about Urban's complaints. DE, Ex. H, 45:21-50:16; 51:22-56:25. Urban says that she had every intention of returning to her job, and that, while on leave she tried to contact Cartwright for a status report, but did not hear back from her. Id. ¶20. She reports that she was terminated on August 2, 2007, when Capital sent her a letter signed by Dennis Pierro stating:
Starting immediately you are banned from entering our club and are banned from calling or personally contacting our clubs, any employees, agents or any other company location other than in writing. Any infraction of this demand will be meet [sic] with a request of [sic] the Police Department to arrest you for such infractions. Should your slanderous remarks continue against our employees we will initiate immediate legal action against you.
Capital maintains that Urban left work early on the day that she spoke to Wade, and that Kilkuskie called Pierro to tell him that Urban had "walked out" and did not return to work. Capital states that both Wade and Steven Kramer, Urban's assistant, told Jamee Taylor that Urban had quit. Urban disputes that. 56.1 Stmts. ¶¶80 & 81. Capital further reports that within a few days after Urban left early, Taylor told Pierro that she thought Urban had left because she could not take the pressure of having to produce. Def. 56.1¶85. Capital also maintains that Steven Kramer called Pierro to say that Urban was calling him at work and that other employees complained that Urban asked them to make statements that were untrue. Capital characterizes the alleged phone calls as harassing. Kilkuskie testified that two employees, Joe Casanova and Darrel Nagel, told him that Urban had called them asking for help to build a case against Capital. Id. ¶91. Urban disputes these allegations. Pierro testified that he spoke to a gym member who said that Urban had contacted him to "get him on her side." The member had gone to the gym's front desk to complain that Urban had contacted him. Id. ¶96-97. Urban lists alleged discrepancies in defense witnesses' testimony about these facts. Pl. 56.1 Stmt. ¶86. Pierro says that he decided to send the August 2 letter after learning of the alleged phone calls by Urban to employees and a member, and that he did not know about her complaints regarding sexual harassment at that time. A complaint to the EEOC and this lawsuit ensued.
Summary Judgment Standards
Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). At this stage, the burden of proof is on the moving party to show that there is no genuine issue of material fact. Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). A genuine issue ...