United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE
Isis Kenney brings this action under Title VII of the Civil
Rights Act of 1964 (“Title VII”), alleging
defendants created a hostile work environment, engaged in
quid pro quo sexual harassment, and that plaintiff
was constructively discharged.
the Court is defendants' motion for summary judgment.
reasons set forth below, defendants' motion is GRANTED IN
PART and DENIED IN PART.
Court has subject matter jurisdiction under 28 U.S.C. §
parties have submitted briefs, statements of fact
(“SOF”), and affirmations (“Aff.”) or
declarations (“Decl.”) with supporting exhibits,
which reflect the following factual background.
on November 27, 2014, plaintiff worked for the New York State
Office of Children and Family Services (“OCFS”)
as a Per Diem Youth Division Aide (“YDA”) at the
Red Hook Residential Center (“Red Hook”), a
“non-secure residential facility for youths operated by
OCFS located in Red Hook, New York.” (Defs.' SOF
Lucky was the Assistant Facility Director at Red Hook, and
Bernard Smith was the Facility Director. On any given day,
plaintiff worked under one of two Administrators on Duty
(“AOD”), depending on her shift. One of these
AODs was Leon Davis.
Hook, plaintiff primarily worked in the Central Services Unit
(“CSU”), which is a “windowed, enclosed
room located near the main entrance.” (Defs.' SOF
¶ 28). Her tasks included answering the phone,
performing security checks on visitors, storing
employees' keys and electronic devices, monitoring
surveillance cameras, “reporting on the movements of
residents within the facility, ” (id. ¶
29), and doing “perimeter checks.” (Pl.'s SOF
November 27 to December 31, 2014, plaintiff worked a total of
sixteen shifts with Davis at Red Hook.
testified that from the third day or so of her employment at
OCFS, Davis began to tell her about his personal life, such
as “complaining . . . about instances that were going
on between him and the mothers of his children.”
(Sussman Aff. Ex. 1 (“Kenney Dep.”) at 95). Soon
thereafter, Davis began telling plaintiff “what he
wanted and what he was looking for.” (Id.).
beginning in the second or third week of plaintiff's
employment, Davis allegedly began more explicitly to sexually
harass plaintiff. In particular, plaintiff alleges:
• Davis told her “he liked [her] . . . because
[she] reminded him of a stripper and that [she] had the goods
. . . the top, and the bottom.” (Kenney Dep. at 95-96).
• He asked plaintiff “to stand up so that he could
wand [her] with the metal detector.” (Id. at
• He took plaintiff to a room in the basement of Red
Hook, during what Davis told plaintiff would be a
“brief tour of the facility, ” and although he
“did not physically touch” plaintiff, he did
“com[e] very close, ” and told plaintiff
“there were no cameras” in the room.
• He asked plaintiff if she thought about him over the
weekend, and told her “several times that [she] was
going to get him in trouble.” (Id. at 97).
• He “would not stop coming to [her] office”
and “[h]e would hang out there all day.”
• He “mad[e] a lot of . . . sexual, inappropriate
terms and express[ed] himself inappropriately toward”
• He told plaintiff she was “beautiful, ”
“his type, ” that he felt “a
connection” with plaintiff, and that she was “the
kind of woman he would want to introduce to his mom.”
(Id. at 112).
• He gave her his cell phone number unsolicited. (Barkan
Decl. Ex. J at 4).
alleges Davis's behavior “made [her] feel extremely
uncomfortable” and that she told Davis “on
numerous occasions that he needed to control himself and . .
. have boundaries.” (Id. at 97).
December 2014 or early January 2015, plaintiff had an
“in-depth conversation” with Lucky regarding
Davis's conduct. (Kenney Dep. at 137). In response, Lucky
told plaintiff that “Mr. Davis was wrong and that Mr.
Davis did not have any boundaries.” (Id. at
January 5 to 23, 2015, plaintiff attended a full-time
off-site training session for new OCFS employees. During this
period, she did not work at Red Hook or have contact with
plaintiff was at the off-site training, the locks to the CSU
room were changed. However, no other action was taken as a
result of plaintiff's conversation with Lucky.
January 27, 2015, plaintiff returned to working at Red Hook,
and she worked with Davis. Plaintiff alleges on that day,
Davis instructed her to start conducting “bed
checks” (Kenney Dep. at 137) and cleaning the facility
(id. at 91), which had not previously been part of
plaintiff's assigned duties. Plaintiff says that when she
asked Davis details about how to perform bed checks, he
yelled at her and told her she was being insubordinate.
January 28, 2015, plaintiff met with Facility Director Smith
and Smith's supervisor, Facility Manager Beverly
Sowersby. Plaintiff told Smith and Sowersby about Davis's
conduct toward her. The same day, Sowersby reported
plaintiff's allegations to OCFS's Office of Equal
Opportunity and Diversity Development (“EODD”).
January 29, 2015, Davis was assigned to “duty at home-a
form of administrative leave.” (Defs.' SOF ¶
45). He was escorted out of Red Hook during his shift the
January 29, 2015, through June 12, 2015, while Davis was on
administrative leave, plaintiff continued to work at Red
this period, the EODD conducted an investigation into
plaintiff's allegations. In an eight-page report dated
June 12, 2015, the EODD noted that plaintiff's complaints
against Davis were “concerning, ” and that
plaintiff “appeared sincere and truthful in her
statements alleging that [Davis]'s behavior toward her on
multiple occasions made her feel uncomfortable and that
supervisory boundaries were being crossed by” Davis.
(Barkan Decl., Ex. J (“EODD Report”) at 8).
Nevertheless, the report found plaintiff's allegations
“could not be substantiated by [the]
investigation” and recommended no disciplinary action
be taken against Davis. (Id.). However, the report
did recommend that “the program area consider providing
[Davis] with supervisory guidance to reinforce appropriate
boundaries with colleagues and subordinates, ” and that
“management may wish to consider temporarily assigning
an alternate supervisor” to ...