United States District Court, W.D. New York
CHRISTOPHER L. WELCH, Plaintiff,
BILL CRAM, INC., STEPHEN RUSH, and AMY CRAM, Defendants.
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.
L. Welch ("Welch" or "Plaintiff"),
represented by counsel, instituted this action against Bill
Cram, Inc. ("the Company"), Amy Cram
("Cram"), Stephen Rush ("Rush")
(collectively, "Defendants"), pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOe,
et seq. ("Title VII"), alleging claims of
discrimination based on sex and gender; retaliation; hostile
work environment; and quid pro quo sexual harassment.
Plaintiff also asserts parallel discrimination and
retaliation claims under New York State Human Rights Law,
N.Y. Exec. Law § 2 96 et seq.
("NYSHRL"), as well as State law claims of assault
and battery. The Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1331.
Company has operated as a new and used automobile dealership
in Seneca Falls, New York, for nearly 50 years. Cram assumed
ownership of the Company in 2012, and is responsible for
interviewing and hiring new employees. Plaintiff was hired by
Cram to work at the Company as a Parts Clerk commencing on
June 9, 2014. Plaintiff was provided with, and signed, a copy
of the Company's Harassment Policy at the time he was
employed at the Company, Plaintiff s duties included
ordering, organizing, sorting, storing, retrieving, and
stocking of automotive parts for use on new and used
vehicles; and performing some local deliveries of automotive
parts. Rush, the Parts Manager at the Company, was
Plaintiff's supervisor on a day-to-day basis. There were
a total of three employees working in the Parts Department
during the time Plaintiff was employed at the Company-Rush,
Plaintiff, and non-party Chris Ritter ("Ritter"),
approximately the first week and a half of his employment,
Plaintiff had no issues with Rush. One day, Rush became upset
when he could not find a part that he believed Plaintiff had
misplaced. Rush threw an oxygen sensor at Plaintiff, hitting
him in the leg. Plaintiff said, "That's not right. .
. You shouldn't do that." (Deposition of Christopher
L. Welch ("Welch Dep.") (Dkt #19-3) at 100:7-9) .
Rush replied, "If you complain, I'll see that you
get fired.") (Id. at 100:12-13).
after this incident, Rush began groping Plaintiff's
buttocks multiple times every day, such as while walking up
stairs. (Welch Dep. at 102:2-6, 19-23; 103-104). Rush also
would touch Plaintiff's shoulders "like [he] was
giving [Plaintiff] a back massage[.]" (Id. at
130). Rush would come up behind Plaintiff and rub his
genitals against Plaintiff's buttocks and back.
(Id. at 109:19-23, 110-111:1-10, 131:22-23-132:1-4).
Plaintiff asked Rush to stop engaging in these behaviors
because they made him uncomfortable; Rush replied that if
Plaintiff complained, Rush would see to it that he was fired.
(Id. at 111:11-23, 131:1-12) . In addition to
physically touching Plaintiff in ways that made Plaintiff
uncomfortable, Rush made comments of a sexual nature to
Plaintiff about female co-workers, customers, and vendors.
(Id. at 108). For instance, Rush commented,
"Wow, look at those boobs, " in regards to a
co-worker who was pregnant (Id. at 117:1-9, 15-23;
118:1-13); mentioned that a female co-worker had a "nice
ass"; said, in regards to a female customer,
"I'd like to get a blowjob from her, . . . she has
nice lips"; and commented that Cram "has a nice
body for her age." (Id. at 114:19-23-115:1-6,
120, 126). Rush constantly referred to male employees at the
Company as "assholes" and "faggots" and
was generally rude to them. (Id. at 104:9-23,
105-106). Rush "would always say if [Plaintiff]
complained, [he]'d get fired." (Id. at
about July 2, 2014, Plaintiff went to Cram and complained
about Rush's behavior and comments, as well as Rush's
threats to terminate him if he complained. Plaintiff
requested to be moved to another department so that he would
not have to interact further with Rush. (Welch Dep. at
141-42) . Cram told Plaintiff she would look into it and get
back to him. (Id. at 147:1-12) .
next day, July 3, 2014, Plaintiff observed Cram and Rush
having a conversation in hushed voices. About five minutes
later, Rush walked over to Plaintiff and said that Cram
wanted to see him in her office. (Welch Dep. at 152) . With
Rush present, Cram informed Plaintiff that it was "not
working out for [him]" and that she was "going to
have to let [him] go." (Id. at 149-50) .
Plaintiff was asked to sign a termination slip and left the
Company immediately afterwards.
filed his Complaint on June 29, 2015. The parties exchanged
discovery and participated in mediation, which was
unsuccessful. Defendants filed their Motion for Summary
Judgment (Dkt #16) on April 28, 2017. After obtaining a
30-day extension, Plaintiff filed his opposition papers (Dkt
#19) on June 28, 2017. Defendants did not file a reply. The
motion was submitted without oral argument on July 12, 2017.
For the reasons discussed herein, Defendants' Motion for
Summary Judgment is denied in part and granted in part.
"shall grant summary judgment" if the movant shows
that "there is no genuine dispute as to any material
fact" and that the movant "is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"In determining whether summary judgment is appropriate,
[the Court] must resolve all ambiguities and draw all
reasonable inferences against the moving party."
Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). "On a motion for
summary judgment, the court '"cannot try issues of
fact; it can only determine whether there are issues to be
tried."'" Ramseur v. Chase Manhattan
Bank, 865 F.2d 460, 465 (2d Cir. 1989) (quoting
Donahue v. Windsor Locks Board of Fire
Commissioners, 834 F.2d 54, 58 (2d Cir. 1987); further
quotation and citations omitted). Thus, the court "is
not to weigh the evidence but is instead required to view the
evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor
of that party, and to eschew credibility assessments."
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d
845, 854 (2d Cir. 1996)).
Title VII Claims
VII prohibits employers from discriminating "against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1). The Second
Circuit "repeatedly noted that 'summary judgment is
ordinarily inappropriate where an individual's intent and
state of mind are implicated.'" Ramseur,
865 F.2d at 465 (quotation and citations omitted). Employment
discrimination cases necessarily turn on the alleged
discriminatory intent of the employer, and employees rarely
are able to produce direct evidence of their employers'
discriminatory intent. See id. at 464-65 ("In
assessing the inferences to be drawn from the circumstances
of the termination, the court must be alert to the fact that
'[e]mployers are rarely so cooperative as to include a
notation in the personnel file' that the firing is for a
reason expressly forbidden by law.") (quotation and
citations omitted; brackets in original). Thus, the absence
of direct or explicit evidence that a challenged personnel
action was motivated by an impermissible reason is not fatal
to a claim of discrimination under Title VII. Id. at
465. Rather, if a plaintiff shows that the employer's
"proffered justification is pretextual[, ]"
id., this is "itself sufficient to support an
inference that the employer intentionally
discriminated." Id. (citations omitted).
Claims Against the Individual Defendants
well settled in the Second Circuit that "Title VII does
not impose liability on individuals[.]" Lore v. City
of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (citations
omitted). This is true even if those individuals exercised
"supervisory control" over the plaintiff. Tomka
v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995),
abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998)
("Ellerth"). Here, Plaintiff indicates in
his Complaint that his Title VII causes of action are
asserted only against the Company and not against individual
defendants Cram and Rush.
Title VII Harassment Claims Against the Company
Second Circuit has explained, "[c]ourts have
traditionally recognized two forms of sexual
harassment:, quid pro quo' harassment and
'hostile work environment' harassment[, ]"
Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57
(2d Cir. 2004) (citation omitted), although these terms do
not appear in the text of Title VII, id. "Quid
pro quo" describes "cases involving a threat which
is carried out[, ]" Ellerth, 524 U.S. at 753,