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Vickiann Notaro and Stephanie Lem v. Fossil Industries

October 29, 2011


The opinion of the court was delivered by: Spatt, District Judge.


The Plaintiffs in this case, Vickiann Notaro and Stephanie Lem, filed an action against Fossil Industries, Inc. and Steven Bianco, asserting that the Defendants created a hostile work environment in the Plaintiffs' workplace, which resulted in constructive discharge of the Plaintiffs. In addition, the Plaintiffs assert that the Defendants retaliated against the Plaintiffs for complaining about the presence of the hostile work environment. The Defendant Fossil has now moved for summary judgment dismissing all of the Plaintiffs' causes of actions. For the reasons set forth below, summary judgment for the Defendant is denied with respect to the Plaintiffs' hostile work environment and constructive discharge claims, and granted with respect to the Plaintiffs' retaliation claims.


The following factual allegations are taken from the Plaintiffs' complaint and the Local Civil Rule 56.1 statements filed by the parties.

On July 25, 2005 and August 5, 2005, the Plaintiffs Vickiann Notaro and Stephanie Lem were hired by Fossil Industries, Inc. ("Fossil"), respectively, as Project Managers. Fossil is a company that manufactures signs and graphics. The office has approximately twenty employees. Defendant Steven Bianco was Print Manager at the same location as the Plaintiffs. Jody Hessel worked in the same department as Bianco and was Art Department Manager. Although Notaro and Lem state that they believed Bianco to be in a supervisory role at the company, the Defendants maintain that Bianco held no supervisory authority over the Plaintiffs. Rather, Steve Melisi, the Vice President of Operations, was the immediate supervisor of Notaro, Lem, and Bianco. Howard DeCesare is the President of Fossil.

During the course of the Plaintiffs' employment, Notaro and Lem claim that Bianco continually and abusively harassed the Plaintiffs by utilizing sexually charged language. The parties agree that outbursts of profanities occurred, and that they weren't always necessarily directed at the Plaintiffs. However, the parties disagree about the nature of these incidents. The Plaintiffs claim that on a regular basis, Bianco would throw and punch things in the office and would curse solely at Lem and Notaro. On the other hand, the Defendant characterizes the environment of one that was merely fast paced and tense, and states that Bianco's use of profanities and abusive language was due to his inability to handle pressure well and his general obnoxious personality.

Based upon the nearly identical complaint letters filed with the Equal Employment Opportunity Office ("EEOC") by the Plaintiffs in June 2006, there appears to be at least five specific instances of Bianco's alleged sexual harassment at issue. First, in response to a request to work overtime by Notaro, Bianco said "You and Howard de Cesare [the company's President] can suck my d---." Lem claims that Bianco used this phrase on more than one occasion while simultaneously putting his hands on his genitals, though the Defendant counters this assertion. Second, on April 26, 2006, Bianco walked past an office space occupied by the two Plaintiffs, punched a window and yelled, "You two can go f--- yourselves." Neither Plaintiff felt that this outburst was sexually motivated, but did find the words to be offensive and sexually charged. Third, again in April 2006, Bianco threw a metal pipe at the wall of a lunch room while it was occupied. The Plaintiffs acknowledge that it was not directed at them and neither Plaintiff was present in the room where the pipe was thrown. Fourth, on May 4, 2006, Lem witnessed an angry outburst by Bianco about an outside vendor where he used profanities related to the vendor and her sexual preferences. Lem acknowledged that Bianco's outburst was not directed at her. Fifth, on May 23, 2006, Lem spoke with Hessel regarding some work that needed to be done and Hessel told her "No! Forget it, I'm not F---ing doing it, No, get someone else to F---ing do it, I'm putting my foot down, No!" Lem acknowledged that Hessel was not sexually propositioning her.

The Plaintiffs claim that throughout their employment at Fossil, they complained vigorously and repeatedly to the vice president, Melisi, and that Bianco's behavior was an ongoing issue. However, the two executives deny that they knew anything about the conduct, despite the Plaintiffs' contention that the facility is small and that all actions are within hearing distance. The only time that the Defendant maintains it was notified about an incident was the one that took place on April 26, 2006. In that situation, DeCesare immediately took action to address it and reprimanded Bianco for his behavior. DeCesare offered at that time to terminate Bianco, but the Plaintiffs did not encourage that he do so.

On or about April 28, 2006, Notaro claims she was constructively discharged from her employment at Fossil. Similarly, on or about May 23, 2006, Lem claims she was constructively discharged. Both Plaintiffs then submitted letters to the EEOC on June 12, 2006.

On February 18, 2009, the EEOC issued a Notice of Right to Sue to each of the Plaintiffs. Thereafter, on May 12, 2009, the Plaintiffs commenced the present action against Fossil and Bianco, claiming violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 290 et seq., and New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. Bianco has not yet appeared in this action.

On September 27, 2011, the Defendant Fossil filed a motion for summary judgment on the grounds that (1) Bianco's conduct did not rise to the level of an actionable claim for sexual harassment; (2) there can be no vicarious liability for Fossil because Bianco was a co-employee rather than a supervisor; (3) the Plaintiffs cannot establish a claim for constructive discharge; and (4) the Plaintiffs cannot establish a claim for retaliation as a matter of law.


A. Legal Standard on a Motion for Summary Judgment

It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).

Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is appropriate when the moving party can show that "little or no evidence may be ...

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