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Welch v. Bill Cram, Inc.

United States District Court, W.D. New York

August 25, 2017





         Christopher L. Welch ("Welch" or "Plaintiff"), represented by counsel, instituted this action against Bill Cram, Inc. ("the Company"), Amy Cram ("Cram"), Stephen Rush[1] ("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.


         The 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 hired.

         While 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"), Cram's son.

         For 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).

         Soon 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 131:1-12).

         On or 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) .

         The 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.


         Plaintiff 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.


         A court "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)).


         I. Title VII Claims

         Title 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).

         A. Claims Against the Individual Defendants

         It is 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.

         B. Title VII Harassment Claims Against the Company

         As the 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, ...

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