The opinion of the court was delivered by: Charles J. Siragusa United States District Jusdge
This is an action alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("NYSHRL"), Executive Law § 296. Now before the Court is Defendant's Motion for Summary Judgment (Docket No. [#15]). The application is denied.
Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Plaintiff. Defendant Cannon Industries, Inc. ("Cannon Industries") is a metal manufacturing company in Rochester, New York.*fn1 Defendant Jack Cannon ("Cannon") has been the Chief Executive Officer ("CEO") of Cannon Industries for twenty-five years, and is also the sole shareholder. Cannon's son, Reggie Cannon, is President of Cannon Industries.
In 2007, Cannon Industries hired Plaintiff as a part-time customer service employee, at a rate of $10 per hour. In early 2008, Cannon hired Plaintiff as his Senior Executive Administrative Assistant, at a rate of $14 per hour. In December 2008, Cannon increased Plaintiff's pay to an annual salary of $36,500.00. In her position as Cannon's administrative assistant, Plaintiff was never the subject of any written negative performance review or disciplinary action. On or about May 22, 2009, Cannon removed Plaintiff as his administrative assistant, and transferred her to a position in customer service, with the same pay and benefits.
On or about May 26, 2009, Plaintiff filed a sex discrimination complaint with the New York State Division of Human Rights ("NYSDHR"), in which she alleged that she was "getting blamed for problems [and] yelled at daily," because she had refused to have sex with Cannon. Clemens Decl. Ex A. In that regard, she stated that in March 2008, Cannon told her that he "wanted to make love to her." She further alleged that Cannon "continuously made comments about sex," and had "tapped [her] on [her] butt and tried to kiss [her] more than once." Id.
On February 28, 2011, Plaintiff commenced this action, asserting claims for hostile environment discrimination and retaliation, based on Cannon's "requests for sex," "inappropriate touching of the Plaintiff on her posterior," and "his myriad*fn2 attempts" to kiss her.
Generally, Plaintiff's version of events is that in or about March 2008, Cannon invited her to meet with him at a hotel bar, ostensibly to discuss upcoming trade shows and her job responsibilities regarding those shows. Plaintiff maintains that, during the meeting, Cannon told her, "I want to make love to you." Plaintiff politely stated that she was not interested in that, and Cannon reportedly responded, "I'll break you down." Plaintiff indicates that subsequently, while she and another employee were on a business trip with Cannon, she was retrieving her phone from Cannon's hotel room, where it was being charged, and he asked her if she was "sure" she wanted to leave his room. Plaintiff interpreted the question as a sexual advance, which she declined.
Plaintiff also alleges that Cannon acted inappropriately toward her at the office, by attempting to kiss her, and by touching or "tapping" her "butt." She also maintains that Cannon made remarks about her appearance, and told her that she should dress more like certain other female employees at Cannon Industries. Plaintiff contends that in the Spring of 2009, Cannon became increasingly critical of her job performance, which she attributed to him being upset at her for declining his sexual advances.
As a result, on May 19, 2009, Plaintiff complained to Cannon Industries' Human Resources Officer, Cheryl Leadbeter, about Cannon's behavior. That same day she sent an email to Cannon, indicating that she believed he was mistreating her because she refused to have sex with him. Still later that day, Cannon, who was leaving for a two-day business trip, told Plaintiff that he and she were not getting along, and that he wanted to transfer her to a customer service position, and that she needed to tell him whether she would agree to that when he returned from his trip.*fn3 On May 22, 2009, Plaintiff confronted Cannon in his office, and secretly tape recorded the conversation, though large parts of the tape are inaudible. Subsequent to that conversation, Plaintiff again complained to Leadbeter, after which Leadbeter and Cannon transferred Plaintiff to a customer service position, having the same pay and benefits, where she would have little or no contact with Cannon.
Plaintiff denies that she ever asked Leadbeter to transfer her to another position, but it is abundantly clear, from the transcript of the taped conversation, that Plaintiff was willing to be transferred to a sales position within the company, where she would not have to interact with Cannon. See, e.g., Pl. Appx. Vol. 1 at pp. 12, 14, 17-18. Plaintiff nevertheless alleges that the transfer was retaliatory, because the new position provided fewer chances for promotion and raises. She also contends that after the transfer, she was unfairly reprimanded on a few occasions, and excluded from some staff events.
Plaintiff was deposed as part of pretrial discovery in this action. At deposition, Plaintiff's recollection was vague on a number of points. For example, Plaintiff stated that, apart from the two alleged sexual advances, she could not recall any specific harassing comments that Cannon made to her. Pl. Dep. at 26, 29-30. Plaintiff indicated that Cannon harassed her at the office "once a day," and when asked to explain, stated: "If I would go in his office to give him something, if he was sitting at his -- the front table, sometimes he would tap my butt when I would go to leave. Sometimes he would make comments about the way my clothes fit on me." Id. at 32. Plaintiff further testified that Cannon tried to kiss her "once or twice," though she could not remember when. Id. at 102. As for the alleged comments about her clothes, she could not specifically recall any such comment. Id. at 32-33. Later in her testimony, Plaintiff stated: "Every day he would either make a comment about my clothes or tap me on my butt[.]" Id. at 33. Plaintiff stated that despite the alleged harassment, she and Cannon got along well, until shortly prior to May 2009, when Cannon began getting irritated with her, and complaining about problems that were not her fault. Id. at 34-37. Plaintiff indicated, though, that she could not recall any of the problems about which Cannon yelled at her. Id. at 99. Plaintiff stated that when she confronted Cannon on May 22, 2009, he admitted saying that he wanted to make love to her and "tapping" her on the but "once or twice," but generally denied her accusations, and accused her of "coming on to him first." Id. at 46-47. Plaintiff testified that after she was transferred to customer service, she was "written up" for infractions, such as talking on her cell phone, on a handful of occasions. Id. at 48-51, 74-75. She also testified that after being transferred she had not received a pay raise in two years. Id. at 52-53. Finally, Plaintiff testified that during the year she worked as Cannon's assistant, she was never reprimanded for the type of infractions for which she was written up in customer service. Id. at 109, 112.
Cannon offers a much different version of events. Cannon denied ever telling Plaintiff that he wanted to make love with her, or asking her if she wanted to stay in his hotel room.
Cannon Dep. at p. 39. Cannon also denied that he ever made comments or compliments to Plaintiff about her body, or that he ever touched her in a sexual manner. Cannon Dep. at pp. 56, 80-81. In addition, Cannon denied that Plaintiff complained to him about harassment or inappropriate comments. Cannon Dep. at p. 62. Cannon testified that Plaintiff's job performance was deficient, and that he had decided to transfer her to another position prior to the incidents in May 2009. Specifically, he stated that in late 2008, Cannon Industries was in the process of updating the company's job descriptions, and that as part of that process, in March 2009, Plaintiff gave him a written explanation for why she believed that he was preventing her from performing certain duties listed in her job description. For example, she indicated that although she was supposed to be able to schedule Cannon's appointments, he often overrode her scheduling decisions. Cannon testified that he perceived Plaintiff's comments in this regard as being disrespectful toward him, and as evincing her inability or unwillingness to do the job. Cannon Dep. at pp. 49-50. Cannon stated that he directed Leadbetter to find someone to replace Plaintiff as his administrative assistant, and that Leadbetter ...