United States District Court, N.D. New York
JESSE C. ROSE, ESQ., EDWARD J. KENNEDY, ESQ., PHILLIPS & ASSOCIATES, ATTORNEYS AT LAW, PLLC, New York, New York, Attorneys for Plaintiff.
ROBERT F. JULIAN, ESQ., OFFICE OF ROBERT F. JULIAN, P.C., Utica, New York, Attorneys for Defendant, Nirvana Spring Water N.Y. Inc.
RICHARD PERTZ, ESQ., PERTZ & PERTZ, PLLC, Remsen, New York, Attorneys for Defendant, Mansur Rafizadeh.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On March 19, 2013, Plaintiff commenced this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law ("NYSHRL"). See Dkt. No. 1. Plaintiff's complaint contains the following causes of action: (1) Title VII hostile work environment; (2) Title VII retaliation; (3) NYSHRL discrimination; (4) NYSHRL retaliation; and (5) common law assault. See generally id.
Currently before the Court are Defendants' motions for summary judgment. See Dkt. Nos. 38 & 39.
Defendant Nirvana Spring Water N.Y. Inc. ("Nirvana") is a drinking water bottling company with its principal place of business in Forestport, New York. See Dkt. No. 53 at ¶ 1. It employs roughly 130 people. See id. Mozafar Rafizadeh, age sixty-one, is the company's CEO and is in charge of the operations of the company. See id. Defendant Mansur Rafizadeh, his eighty-three-year-old brother, serves as the chairman of the board of directors. See id. Both men are immigrants to this country, having permanently left their native Iran following the revolution of 1979. See id. Plaintiff Cherie Mealus was an employee at Nirvana from June 2004 through March 2005. See id. at ¶ 2. She was rehired in March of 2008, laid off in the winter of 2009 and rehired in March of 2009. See id. With various interruptions, Plaintiff worked at Nirvana from then until February 8, 2012, for the most part assisting in laboratory testing of the water to ensure its quality. See id.
Plaintiff sent several emails to Defendant Mansur Rafizadeh and other Nirvana employees during her employment. In an email dated October 28, 2011, Plaintiff asked Defendant Mansur Rafizadeh for a raise and indicated that, although she "like[s] working here and love[s] the job[, ]" she would be forced to look for other employment if she is not given a raise. See Dkt. No. 38-6 at 2. In another email dated January 5, 2012, Plaintiff expressed her belief that she deserved to be placed on the day shift and stated that she, "unlike most people here, like my job here." Id. at 5.
On January 19, 2012, Barrett Paving Materials, Inc. received an application for employment from Plaintiff. See Dkt. No. 53 at ¶ 5. On February 3, 2012, Plaintiff advised her supervisor that she had obtained employment at Barrett Paving and would be leaving her job at Nirvana as of February 17, 2012. See id. The job at Barrett Paving would carry better pay and a benefits package. See id. On February 6, 2012, Plaintiff advised her supervisor Jeanie Hellinger that she had to go for drug testing for her job at Barrett Paving the next day, February 7, and would have to leave work early for the test. See id. Plaintiff left work on February 7 at approximately 12:30 p.m. and Barrett Paving documented that she took a drug test that day. See id.
Plaintiff sent a Facebook message to Tiffany Hylla, the person who was hired by Nirvana to replace her early in the morning of February 8, 2012. See Dkt. No. 38-19 at 17. In that message, Plaintiff offered to come in for a few hours during the week to assist in training Ms. Hylla. See id. In response to a comment by Ms. Hylla that "Mansur seems to be an Interesting Character, " Plaintiff responded as follows:
Mansur is VERY interesting to say the least. He has some very interesting stories to tell once you get to know him better. I think you will like it there, I loved the job itself but some of the other bullshit I didnt care for but there is good and bad with every job I guess.... Also I will be done at Barrett at 3:30 in the afternoon, I might see if they want me to come up a couple days and work with you for a few hours to make sure you are totally comfortable with it. [T]he one problem they have is they rush people's training and I don't want to see that happen to you.
On February 8, 2012, in the early afternoon, Plaintiff received a telephone call from Barrett Paving, informing her that they would not be hiring her after all. See id. at ¶ 7. Plaintiff would later explain the withdrawal of the employment offer in a Facebook message to a former Barrett Paving employee with whom she had spoken after the interview: "You fuckin trouble making bitch... u told the other clerk how much I was gonna be making even tho I wasn't sure what the rate was for sure... now they aren't hiring me because of you... fuck you you dumb fuckin bitch... go to hell!!!!" See id. Plaintiff confirmed this description of events in a different Facebook exchange, in which she demonstrated substantial agitation: "oh she is a fuckin cunt... its because of her i dont have that job. she told the other girl how much i was going to be making and then it got back to the office and they said it was a breech of confidentiality... missy did it, not me... Fuck that bitch." Id.
Defendants contend that, according to a supervisor at Nirvana, Jeanie Hellinger, when Plaintiff heard that Barrett Paving would not be hiring her after all, Plaintiff went to Ms. Hellinger, distraught, and said that she did not know what she was going to do. See Dkt. No. 38 (Defendants' Statement of Material Facts) at ¶ 8. Ms. Hellinger told Plaintiff that the job had already been filled. See id. Defendants also assert that Ms. "Hellinger told Plaintiff that Plaintiff could call Mansur directly, but that the decision on her replacement had been made: Plaintiff had given her notice, Nirvana had accepted, and had started training someone else." Id. According to Ms. Hellinger, Plaintiff responded "I know, I know, " then went next door to the office to call Mansur Rafizadeh. See id. at ¶ 9. Ms. Hellinger claims that Plaintiff returned after about five minutes "screaming, cursing, slamming the door, collecting her belongings." See id. Ms. Hellinger claims that Plaintiff stated "I've been here and they're giving my job to another girl.'" Id.
In her deposition, Plaintiff stated that, after she was informed that her employment offer from Barrett Paving had been revoked, she did not inquire about keeping her position at Nirvana. See Dkt. No. 38-3 at 155-56. Further, Plaintiff contends that, after she returned from lunch on February 8, 2012, Defendant Mansur Rafizadeh screamed at her regarding a book that she left on a counter. See id. at 148-50. Plaintiff claims that Mansur Rafizadeh called her a "bum" and "lazy, " and claims that no one else was present during this interaction. See id. at 150. Thereafter, Plaintiff alleges that she went to the bathroom, vomited, and then was "forced to quit" her job with Nirvana. See id. at 150-51.
According to Defendants, that evening, Plaintiff exchanged Facebook messages with the person whom she blamed for the loss of her job opportunity with Barrett Paving, "and the topic of sexual harassment appeared for the first time in Plaintiff's private correspondence[.]" Dkt. No. 38 at ¶ 11; Dkt. No. 53 at ¶ 11. Later on in the evening of February 8, Plaintiff began composing an email to Defendants which took her "hours to write." Dkt. No. 38-3 at 161. Plaintiff began the email by recapping her impression of how she left her employment: "Mansur let me go today after almost 5 years of dedicated service. He kept a girl that has been there 1 day instead." Dkt. No. 38-2 at 2. Plaintiff then indicated that she had a "few issues that need[ed] to be addressed" and listed "a few examples of personal harassment and sexual harassment by Mansur." Id. The examples provided are as follows:
-Mansur asked me if I like to "suck it"
-Mansur rubbed my arm and shoulder and "accidently" rubbed the side of my breast. He says accident but I know it wasnt. He touched inappropriately many times
-Mansur asked me to a meeting at the house... told me to go to his bedroom and while there he told me to lay on the bed so he could push on my stomach while I was breathing, he said he wanted to teach me how to breathe... who asks employees to lay on their bed!!!
-Mansur insinuated that if I didnt quit smoking that I would be out of a job
-Mansur looked me up and down in a very gross disgusting sexual way on many many occasions, making me feel very uncomfortable
-Mansur called me stupid on several occasions, called me dumb and lazy as well
-Mansur told me a very inappropriate joke about a guy putting a cigar up his ass and liking it, making me feel very uncomfortable
-While riding in a vehicle with Mansur he all of a sudden reached over and touched my stomach, saying he wanted to see how deep I breathe, very inappropriate way to be with an employee[.]
Dkt. No. 38-2 at 2-3. After providing these examples, Plaintiff indicates in her email that she has "times, dates and instances all wrote down from the day it started" and that she has "2 other past employees that are all ready and willing to come forward as well." Id. at 3. Although Plaintiff indicates in the email that she has consulted with an attorney who is ready to proceed with a sexual harassment suit against Defendants, during her deposition Plaintiff admitted that ...