The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Stacey Lamar, alleges that defendant The Institute For Family Health ("IFH") discriminated against her based on her gender in violation of 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff also alleges a state law claim for battery against defendant Dr. John McAndrew ("McAndrew") and IFH under the theory of respondeat superior.*fn1 Presently before the Court are defendants' motions (Dkt. Nos. 21 and 23) pursuant to Fed. R. Civ. P. 56 seeking summary judgment and dismissal of plaintiff's amended complaint.*fn2
In 1998, the Mid-Hudson Family Health Institute ("Mid-Hudson") maintained an Obstetrics/Gynecological office within Kingston Hospital referred to as the Specialty Care Center ("SCC"). In 1998, McAndrew was employed by Mid-Hudson at the SCC as a Doctor of Obstetrics and Gynecology. In 2003, plaintiff was hired by Mid-Hudson as a part time nurse-midwife and worked at another Mid-Hudson facility in Hyde Park. At some point prior to June 2004, plaintiff began working part time at the SCC.In June 2006, plaintiff became a full time Mid-Hudson employee at the SCC.
On February 1, 2007, IFH agreed to purchase Mid-Hudson's assets. IFH implemented a new administrative structure which included Dr. Neil Calman as Chief Executive Officer, Dr. Robert Schiller as Vice President, and Nicole Nurse as Vice President of Clinical Affairs. Dr. Walter Woodley was previously employed by Mid-Hudson as the Medical Director of the Kingston Family Practice Center. IFH promoted Dr. Woodley to Regional Director of the Upstate Region and Dr. Woodley became McAndrew's supervisor. At the relevant time, Anne Barnhartwas the Director of Medical Staff Affairs and Credentialing. Ms. Barnhart was responsible for overseeing the scheduling of providers for call, office and hospital rounding and gave the final approval for all time off to those providers.
On February 23, 2007, Dr. Calman wrote a letter to plaintiff and offered plaintiff a full-time position as a Certified Nurse Midwife at the SCC at Kingston Hospital. Plaintiff was advised that she would report to, "Medical Director, Specialty Care Center of Kingston". At approximately the same time, IFH offered McAndrew the full time position of Obstetrician/Gynecologist and Medical Director of the SCC. McAndrew supervised plaintiff with respect to the medical services provided. McAndrew did not have the authority to hire or fire personnel, he was not responsible for determining salary or benefits and he did not make employee schedules.
In July 2007, IFH created an Employee Handbook. Within the handbook, a section entitled "Conditions of Employment" with subsection, "Protected Class Harassment Policy and Complaint Procedure" provided:
If you believe you have been subjected to or witnessed protected class harassment you must report this to any supervisory employee or the Human Resources Team immediately. The Human Resources Team is also available to provide information to employees about the Institute's policy on protected class harassment and the complaint process.
A confidential, anonymous Hotline is available for employees who wish to register a complaint under this policy anonymously. Use of this Hotline should be restricted to those employees who wish to remain anonymous.
On September 21, 2007, plaintiff signed an acknowledgment averring that she read the Employee Handbook and understood the contents. McAndrew also acknowledged that he received the Handbook.Currently, plaintiff is employed by defendant as a Registered Nurse Midwife but has been on disability leave since January 27, 2009.
Plaintiff's Personal and Professional Relationship with McAndrew
From June 2004 until December 2004, plaintiff and McAndrew engaged in an extramarital affair. After the affair ended, the parties remained close, spoke daily and had lunch together nearly every Tuesday. From 2006 through 2008, plaintiff would "routinely" give McAndrew a hug and a kiss if she hadn't seen him for a few days. The kisses were "on the lips" and the hugs were "spontaneous" and never forced by McAndrew.
Plaintiff claims that she had a good working relationship with McAndrew until October 2006 when he became "jealous" and began monitoring her leave time. Plaintiff claims that McAndrew was jealous that plaintiff took a vacation with her husband and made inappropriate comments. In the complaint, plaintiff alleges that in December 2006, McAndrew stored two handguns and some pornographic pictures in plaintiff's credenza without plaintiff's knowledge. McAndrew denies this allegation. In Spring or Summer 2007, plaintiff claims that she began to feel intimidated and fearful of McAndrew because of the gun incident. Plaintiff claims that McAndrew made comments regarding her husband's desire to buy her a diamond ring. Specifically, plaintiff claims that McAndrew wanted to accompany plaintiff to the jewelry store. In May 2007, plaintiff underwent breast augmentation surgery and claims that McAndrew demanded to see her breasts. Plaintiff claims she reluctantly agreed and revealed her partially bandaged breasts. Plaintiff also claims she allowed McAndrew to feel her breasts. During this time, plaintiff also claims that defendant would linger in the locker room while she was changing to watch her undress. In November 2007, McAndrew had bi-lateral hip surgery and called plaintiff to help him perform a fecal disimpactation, a medical procedure which she had previously performed as a nurse. Plaintiff agreed to assist McAndrew but told him the next day that she was uncomfortable performing the procedure as she had not performed it in years and that she was angry because McAndrew's fiancee was present during the procedure. In April 2008, plaintiff attended a conference in San Antonio, Texas. Plaintiff claims that McAndrew suggested that he join plaintiff for the weekend and plaintiff declined. During the summer of 2008, plaintiff claims that McAndrew made derogatory statements to her regarding her use of personal time such that plaintiff failed to take off necessary time to address medical problems.
On the morning of October 16, 2008, plaintiff and McAndrew had a discussion about a conference that McAndrew was planning to attend in December in New York City. Plaintiff suggested that they meet for dinner. Plaintiff claims that she had just taken two days off to vacation with her husband in Maine and that McAndrew as jealous. Later that day, plaintiff and McAndrew had an argument about plaintiff's excessive time off. The argument was "loud" and plaintiff testified that McAndrew yelled and screamed that she had taken "40 f'ing days off" and that she was "acting like a high school girl". Plaintiff testified that after the argument, McAndrew approached her and said, "I guess this means you are not going to want to come to New York". After that argument, plaintiff believed that McAndrew was concerned with her taking time off to be with other people, "[b]ut if I take time off with him, it's okay".
On December 11, 2008, McAndrew entered plaintiff's office prior to leaving for the day. Plaintiff "knew instinctually" that McAndrew wanted to hug her so plaintiff stood up from her desk, walked around the desk and opened her arms to embrace McAndrew. McAndrew did not verbally ask plaintiff to hug him. McAndrew hugged plaintiff and plaintiff claims he told her that she smelled good. The hug lasted thirty seconds during which plaintiff had her arms around McAndrew's shoulders. Plaintiff claims that McAndrew reached down and briefly squeezed her buttocks. Plaintiff never told McAndrew to stop hugging her and McAndrew did not, in any way, force plaintiff to participate in the hug.
On December 12, 2008, plaintiff voluntarily went to New York City to meet McAndrew and one of his colleagues for dinner. Plaintiff met McAndrew at his hotel and accompanied him to his room to see the view. While plaintiff was looking out the window, McAndrew stood up behind her and McAndrew's stomach pressed against her back.
In the late afternoon or early evening on October 16, 2008, plaintiff called Dr. Robert Schiller on his cell phone. Dr. Schiller received the call while driving with Dr. Calman. Dr. Schiller testified that plaintiff, "told me that she was concerned about something related to her employment" and said, "there was an urgency to it". Plaintiff testified as follows:
Q. What did he say to you and what did you say to him during the conversation?
A. I asked, you know, am I speaking with Dr. Schiller and he said yes, and I told him who I was and I asked him if he had already left New Paltz. They were in New Paltz for whatever meeting they had set up because I really wanted to speak with him and was hoping to catch him before he headed back to the city, and he explained that he and Dr. Calman were already en route home and he asked what was the problem, you know, did I want to speaking with him on the phone, and I told him that I really didn't feel comfortable speaking on the phone. I really needed to see him personally to have a conversation, at which point I do believe I got choked up because I was just pent up with a combination of emotions and was crying and he asked what was the matter, and I said I really can't discuss this over the phone, it's not appropriate, and I said, you know, I will speak to you, if it's more convenient I will come to New York to see you to speak to you if that, you know, doesn't put you out. I just needed to schedule a meeting as soon as possible and he said he would call me the next day by noon, and that was that pretty much.
Plaintiff further testified:
Q. During any of the conversation with Dr. Schiller, did you indicate in any way your complaint related to Dr. McAndrew?
A. I did not talk about John's name on the phone, no.
Q. Did you indicate in any way that you were calling regarding a complaint of harassment or discrimination?
A. I told him I didn't want to discuss the essence of what I had to talk about over the phone.
Dr. Schiller offered to speak with plaintiff over the telephone but plaintiff, "didn't feel it was appropriate conversation to have over the phone". Dr. Schiller did not return plaintiff's telephone call.
In October 2008, plaintiff also complained to Ms. Barnhart that McAndrew was, "giving her a hard time about taking time off". Plaintiff did not use the term "sexually harassing" to describe McAndrew's behavior. Plaintiff did not tell Ms. Barnhart about her prior romantic relationship with McAndrew.
On November 11, 2008, plaintiff injured her hand during the course of her employment. On December 16, 2008, plaintiff re-injured her hand while tending to a patient in labor. On December 18, 2008, plaintiff advised Ms. Barnhart that she was cleared to return to work but stated that she was "concerned about returning to work because she anticipated that Dr. McAndrew's reaction to her having been off for several weeks would be negative".
On December 20, 2008, plaintiff spoke with Dr. Woodley regarding McAndrew's monitoring of her time off. Plaintiff did not tell Dr. Woodley that she believed McAndrew was jealous nor did she tell him of their prior romantic relationship. Plaintiff testified that Dr. Woodley told her that he would speak with McAndrew and "get back to [her] at some point".
On January 5, 2009, plaintiff contacted Ms. Barnhart because she was nervous about how McAndrew was going to respond to her time off. Later that day, plaintiff spoke with Dr. Woodley. Plaintiff testified:
A. . . . I think he told me that he had a conversation with Dr. McAndrew privately and Dr. McAndrew didn't see a problem, and I explained to him that I needed to discuss issues with him that Dr. McAndrew wouldn't address or openly admit to and I would really like to have a conversation with Dr. Woodley personally, as soon as possible, and he told me that he would like to include Dr. McAndrew, and I told him that I didn't feel I could speak openly in front of Dr. McAndrew. And he said then he would like to have human resources, and I said that was fine, and he said he would arrange it and get back to me.
During that conversation, plaintiff did not indicate that the issues were related to sexual harassment.
On January 26, 2009, Dr. Stephen Hermele, plaintiff's psychiatrist, prepared a letter addressed to plaintiff that provided:
As to the consequences of the injury to your left hand and its subsequent exacerbation, you have experienced significant anxiety which by itself has made it increasingly difficult for you to function at work. The hostile work environment you have complained of has compounded your difficulties to the point where you can no longer function at work due to marked worsening of your anxiety. Accordingly I have advised you to suspend your professional efforts until further notice.
I trust this note will be adequate for your needs.
On January 27, 2009, plaintiff gave Dr. Hermele's note to Ms. Barnhart. IFH's Response to Plaintiff's January 2009 Complaint Within three days of receipt of Dr. Hermele's note, Dr. Calman retained Anthony Shaw, an independent consultant with significant experience in Human Resource matters, to investigate plaintiff's allegations. On January 30, 2009, Mr. Shaw contacted plaintiff and asked her to draft a letter detailing her allegations. On February 12, 2009, plaintiff's counsel responded to Mr. Shaw and provided details of McAndrew's alleged harassment and included the EAS Questionnaire submitted to the U.S. Equal ...