United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY, UNITED STATES DISTRICT JUDGE.
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"),  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.
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
relevant facts set forth below are either undisputed or, if
disputed, viewed in the light most favorable to
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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. ¶
65. Gollop notified the building's security desk that
Guevara was prohibited from the ...