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Hsueh v. The New York State Department of Financial Services

United States District Court, S.D. New York

August 24, 2017


          OPINION & ORDER


         Plaintiff Tiffany Hsueh brings this action against her employer, Defendant New York State Department of Financial Services (the "DFS"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), [1] and against her former co-worker, Defendant Abraham Guevara, pursuant to New York City Human Rights Law, N.Y.C. Admin. Code § 1801 et seq. She claims that Guevara sexually harassed her and discriminated against her based on her gender, and that his conduct created a hostile work environment that is properly imputed to the DFS. The DFS and Guevara each move, pursuant to Fed.R.Civ.P. 56, for summary judgment on all claims against them, and Guevara further asserts that if the Court grants summary judgment in favor of the DFS, it should decline to exercise supplemental jurisdiction over Hsueh's state4aw claims against him.

         The Court grants the DFS's motion because Hsueh has failed to establish that Guevara's conduct created a hostile work environment, and, moreover, there is no way to impute his conduct to the DFS. The Court declines to exercise supplemental jurisdiction over Hsueh's state-law claims and accordingly dismisses Hsueh's claims against Guevara without prejudice.


         The relevant facts set forth below are either undisputed or, if disputed, viewed in the light most favorable to Hsueh.[2]

         Plaintiff Hsueh and Defendant Guevara worked together at the DFS. Hsueh has worked as an Insurance Examiner in the DFS's Property Bureau's Company Regulatory Unit ("CRU") No. 5 since September 2012. DFS's Local Rule 56.1 Statement ("DFS 56.1") ¶¶ 7-8, Dkt. 92. From the time of Hsueh's appointment until his retirement in September 2014, Guevara worked in a different CRU; he was the Supervising Insurance Examiner of the Property Bureau's CRU No. 3. Id. ¶ 11. Because Hsueh and Guevara worked in different units, Guevara had no supervisory authority over Hsueh's employment. Id. ¶ 13. Hsueh's supervisors have included Marc Allen, the former Principal Insurance Examiner of CRU No. 5, and Jody Wald, the former Supervising Insurance Examiner of CRU No. 5 and Allen's direct superior. Id. ¶¶ 9-10. Additionally, Rolf Kaumann was Deputy Chief Examiner of the Property Bureau and indirectly supervised both Hsueh and Guevara. Id. ¶ 12.

         On July 3, 2014, Hsueh first reported to a supervisor that she was having problems with Guevara. DFS 56.1 ¶ 16. She met with Allen and informed him that she and Guevara had become friends and would go to lunch together sometimes. Id. ¶¶ 16-17. She explained, however, that during a recent lunch, Guevara stood too close to her on an escalator, pressed himself against her, breathed into her ear, and kissed her on the cheek. Id. ¶ 17; Pl. Local Rule 56.1 Statement in Opposition to DFS's Local Rule 56.1 Statement ("Pl. Opp. to DFS 56.1") ¶ 17, Dkt. 95. Further, she informed Allen that Guevara had been calling her and had left her a voicemail. Id. Nevertheless, Hsueh told Allen that she did not want to "file a full formal investigation" and only wanted Guevara to be instructed to leave her alone. See Def 56.1 ¶ 19; Pl. Opp. to DFS 56.1 ¶ 19. Allen felt someone more senior should speak with Guevara; he explained to Hsueh that he would report what Hsueh had told him to Wald. Def. 56.1 ¶ 20.

         The office was closed the following day for the 4th of July holiday, and both Wald and Guevara were out of the office on vacation the following week. Id. ¶ 21. While Guevara was out on vacation, he called Hsueh's office phone six times and left a voicemail stating: "Hello, it's me, Abe. I called to say hi. And hear your voice. Okay, I'll call back later. Goodbye." Pl. Opp. to DFS 56.1 ¶ 22. Hsueh played the voicemail for Allen on July 9, 2014. Id. ¶ 23. On July 11, 2014, Allen texted Wald, who was on a cruise at the time, to discuss "an explosive and dangerous personnel issue." DFS 56.1 ¶ 24; Frank Decl. Ex. G, Dkt. 108-8. On July 13, 2014, after finishing his cruise, Wald called Allen, and they discussed the problems Hsueh was having with Guevara and what Hsueh wanted done about it. DFS 56.1 ¶¶ 25, 27; Allen Decl. ¶ 12, Dkt. 86; Wald Decl. ¶ 8, Dkt. 87. Wald then called Kaumann later the same day and relayed to Kaumann what Allen had told him. See DFS. 56.1 ¶¶ 28, 30. On July 14, 2014, Wald informed Allen that Kaumann would meet with Guevara that morning. Id. ¶ 31.

         Kaumann spoke with Guevara as soon as Guevara arrived at the office on July 14, 2014. Id. ¶ 33. Kaumann asked Guevara if he had called Hsueh while on vacation and told him that Hsueh had complained about his calls. Pl. Opp. to DFS 56.1 ¶ 33; Guevara Dep. 32-35, Apr. 29, 2016, Dkt. 108-1. Guevara told Kaumann that he would not call or talk with Hsueh anymore; Kaumann did not tell Guevara to stop speaking to Hsueh. Guevara Dep. 36-39. Kaumann then told Allen about his meeting with Guevara. DFS 56.1 ¶ 34.

         Later on July 14, 2014, Allen met with Hsueh and told her that Kaumann had directed Guevara to not contact her further. Id. ¶ 36. Allen also informed Hsueh that she had the right to file a complaint against Guevara with Human Resources, and Hsueh replied that at that time, she did not want to involve Human Resources or file a complaint; she wanted to "wait and see" before taking further action. Id.

         On July 15, 2014, Guevara called Hsueh's phone, but she did not answer; Guevara claims the call was accidental. Id. ¶ 40; Guevara Dep. 81-82. Hsueh did not report the missed call to her supervisors. DFS 56.1 ¶ 40. On July 16, 2014, Wald returned from vacation and met with Hsueh. Id. ¶ 41. They discussed that Hsueh had already talked with Allen, and Wald informed Hsueh of her right to file a complaint with Human Resources against Guevara. Id. Hsueh responded that she did not want to report the situation to Human Resources. Id.

         Hsueh and Guevara had no further contact until August 5, 2014, when he tried to talk to Hsueh in the hallway, while she was walking to the bathroom. Id. ¶ 43. Hsueh refused to speak to Guevara, and this was the last time the two spoke. Id. ¶¶ 43-44. After this incident, Hsueh wrote an email to Allen and Wald informing them that Guevara had tried to speak with her. Id. ¶ 45. Wald was on an out-of-state assignment from August 4 through August 6, 2014. Id. ¶ 46. On August 7, 2014, Allen and Wald met with Hsueh to discuss her encounter with Guevara. Id. Wald told Hsueh that he would direct Guevara to stop contacting her, and Wald and Allen reminded Hsueh of her right to file a Human Resources complaint against Guevara. Id. Hsueh indicated she would involve Human Resources if Guevara contacted her again. Id.

         Wald was unable to speak to Guevara on August 7, 2014 before Guevara left for the day. Id. ¶ 47. The next day (Friday, August 8, 2014) was the DFS's annual picnic on Governor's Island, and Wald was again unable to speak to Guevara. Id. ¶¶ 47-48. During the picnic, Guevara followed Hsueh around, then sat two seats away from her on the return ferry. Hsueh Dep. 106-11, Apr. 20, 2016, Dkt. 108-2. Guevara "seemed to want a private moment alone to speak with [her.]" Id. 111.

         On Monday, August 11, 2014, Hsueh met with Allison Clavery, the DFS's Affirmative Action Officer, to make a sexual harassment complaint against Guevara. DFS 56.1 ¶¶ 52-53. During the meeting, Hsueh described her interactions with Guevara over the last two years. Id. ¶ 53; Pl. Opp. to DFS ¶ 53. Clavery provided Hsueh with an internal complaint form and requested that Hsueh complete and return it as soon as possible. DFS 56.1 ¶ 55. After the meeting, Clavery notified the DFS's Labor Relations Officer, Scott Gollop, of the complaint and commenced her investigation. Id. ¶¶ 56-57. She contacted five potential witnesses Hsueh had identified and requested each witness schedule an interview and send Clavery any relevant documents and communications. Id. ¶ 57. On August 13, 2014, Hsueh submitted a completed DFS complaint form to Clavery and included a list of her interactions with Guevara and supporting photographs. Id. ¶ 59.

         Hsueh stated in her complaint that Guevara had "been giving [her] candy, pastries, drinks, fruit, popcorn and dropping by [her] cubicle for the 2 years [she'd] known him. The going out to lunch started around the time [she] got married Jan 2014. Then he started escalating the compliments and staring. In May and June it got really, really uncomfortable and the incident in July was the final straw[.] That's when [she] knew he wanted a physical relationship." Clavery Decl. Ex. B at 2, Dkt. 90. Her list attached to the complaint identified specific examples of the interactions, such as Guevara calling Hsueh "Miss. Beautiful" and asking Hsueh to send him a picture of her from her cell phone. Id. at 3-4.

         On August 15, 2014, Gollop met with Guevara and informed him that he was being placed on administrative leave effective immediately. DFS 56.1 ¶ 63. This was because the complaint against Guevara involved an element of "touching." Id. ¶ 62. Gollop instructed Guevara not to return to the DFS's premises until further notified. Id. ¶ 63. A DFS Fraud Investigator escorted Guevara out of the office, and Guevara's building pass was disabled. Id. ΒΆ 65. Gollop notified the building's security desk that Guevara was prohibited from the ...

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