Glover v. Jones

Decision Date24 September 2007
Docket NumberNo. 05-CV-6124 (CJS).,05-CV-6124 (CJS).
Citation522 F.Supp.2d 496
PartiesGlenda GLOVER, Plaintiff, v. Tracy Wynell JONES, d/b/a TW Jones Development, and Marvin K. Maye, Defendants.
CourtU.S. District Court — Western District of New York

Christina A. Agola, Esq., Rochester, NY, for Plaintiff.

David G. Brock, Esq., William Chen, Esq., Jaeckle Fleischmann & Mugel, LLP, Buffalo, NY, for defendant Tracy Wynell Jones d/b/a TW Jones Development.

Robert M. Shaddock, Esq., Hiscock & Barclay LLP, Rochester, NY, for defendant Marvin K. Maye.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This is an action to recover damages for sexual harassment in the housing context, pursuant to the Fair Housing Act of 1968 ("FHA") as amended, 42 U.S.C. § 3601 et seq., and the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. Now before the Court are the following applications: 1) defendant Marvin Maye's ("Maye") motion [# 45] for summary judgment; and 2) defendant Tracy Wynell Jones's ("Jones") motion [#49] for the same relief. For the reasons that follow, Maye's application is denied in its entirety, and Jones' application is granted in part and denied in part.

BACKGROUND

Unless otherwise noted, the following are the facts of this case viewed in the light most favorable to Plaintiff. At all relevant times, Jones owned the rental property involved in this lawsuit, 50 Paige Street in the City of Rochester. Jones operated her property rental business as a sole proprietor, under the assumed name "T.W. Jones Development." Jones employed Maye as a Property Manager, and granted him the authority to rent and manage the property.1 (Jones Dep. 12, 14, 16; Maye Dep. 8, 10-11; Defendants' Answer ¶ 1) Jones' involvement with the property was limited to collecting rent checks and paying bills. (Jones Dep. 19) Maye, on the other hand, dealt directly with tenants, negotiated leases, set rents, and made repairs. (Jones Dep. 20, 22) There was no written employment agreement between Jones and Maye, nor did Jones have any type of personnel policies. (Jones Dep. 22) In fact, Jones did not exercise any control over Maye's day-to-day management of her properties.2 Nevertheless, Jones and Maye admit that an agency relationship existed between them.3

In or about October 2002, Plaintiff contacted Maye about renting 50 Paige Street, since Maye had indicated to her that he owned the property. Maye showed Plaintiff the apartment and gave her a rental application. Plaintiff initially decided not to apply for the apartment, because she did not want to pay for a background and security check, and because she lacked the necessary funds to pay the requested security deposit. However, Maye told Plaintiff that because "he enjoyed her company," and "wanted her to have the house," he would dispense with the background and security check, and would allow her to pay the security deposit over time. Maye also purchased appliances for Plaintiff, with the understanding that she would repay him for some of the appliances.

Plaintiff signed a lease agreement in or about October 2002, which required her to pay monthly rent of $675.00. The lease identified the lessor as TW Jones Development. However, Plaintiff believed at all times that Maye was the owner and landlord of the property, and she had no contact with Jones at any time during the period that she leased the premises. (Glover Dep. 17-18)

Plaintiff alleges that Maye made sexual advances toward her, both before and after she became a tenant. For example, she states that before she signed the lease, Maye told her that he "couldn't wait for her to move in so he could spend more time with her," that he "wanted to make mad passionate love to her." (Glover Dep. 39) Plaintiff claims that she was "disgusted" by these comments, but explains that, "it wasn't to a point where I was scared. I thought at that time he was just — I was a single female, he was looking for a play so I kind of blew him off a lot, but I never felt threatened or intimidated by him." (Id. at 38-39) After Plaintiff moved into the apartment, Maye stopped by, uninvited, on several occasions. (Id. at 48, 51) Plaintiff alleges that on these occasions, Maye asked for hugs and put his arm around her. (Id. at 63-64) Plaintiff further indicates that Maye may have touched her breast on one of these uninvited visits. She also states that, on more than one occasion, Maye pressed his body against her, and that one time, she could feel that he had an erection. Plaintiff also contends that twice Maye kissed her on the mouth and placed his tongue in her mouth. (Id. at 57-63) The last physical contact between Plaintiff and Maye occurred in 2003.

Eventually, Maye stopped visiting the apartment. However, he began driving by the location frequently (Glover Dep. at 48) and calling Plaintiff on the telephone. For example, in January 2003, Maye called Plaintiff repeatedly and asked her to take an out-of-town trip with him. (Id. at 55) In February 2003, Maye invited Plaintiff to take a trip with him, and told her that he "had to have her" and wanted to "make her his woman." (Id. at 79) Plaintiff declined these invitations and eventually "stopped taking [Maye's] phone calls altogether." (Id. at 55) Subsequently, there passed "almost a year" in which Plaintiff and Maye had no conversations or contact of any kind. (Glover Dep. 98)

In or about August 2004, Maye asked Plaintiff to bake him a lemon meringue pie, in exchange for $40. Maye indicates that he did so only because she had told him that she needed money, and that rather than simply giving her the money, he had proposed to pay her for baking the pie. Plaintiff agreed to bake the pie, and accompanied Maye to the store in his truck to buy the ingredients for the pie. (Glover Dep. 94-97) Plaintiff did not feel threatened in Maye's presence or see any problem with baking him a pie, because "so much time had passed" since he had made unwanted advances toward her. (Id. at 96) Plaintiff also "knew [that Maye] wouldn't do anything to physically hurt [her]." (Id.) Additionally, Plaintiff was "trying to be a little more agreeable" towards Maye, since she knew that she "was coming up for a lease renewal," and wanted "to see where [Maye's] mind was at." (Id. at 98)

A few days after Plaintiff baked the pie, Maye telephoned her and asked her to accompany him on an out of town trip, so that he could "make love to [her]." (Id. at 99) Plaintiff refused the invitation. Days later, Maye notified Plaintiff that he was increasing her rent $20 per month, from $675 to $695, effective October 1, 2004. However, Plaintiff's lease term did not actually end until October 31, 2004, and Maye states that he meant to indicate that the increase would take effect on November 1st. (Id. at 152) In any event, the proposed $20 rent increase was the first in two years.

Plaintiff, who was already behind in paying her August and September rent,4 could not afford Maye's announced rent increase, and she sent him a letter containing a counter-proposal.5 When Maye did not respond, Plaintiff sent him a notice on the last day of the rental term, October 31, 2004, indicating that she would vacate the premises in 30 days. (Id. at 176) Plaintiff did not pay rent for November, and instead indicated that she wanted Maye to deduct November's rent from her security deposit.

On or about November 15, 2004, Maye and TW Jones Development commenced eviction proceedings against Plaintiff in Rochester City Court. The complaint in the eviction proceeding sought rent for both October and November, in addition to late fees and court costs. On the scheduled court date, the parties reached a settlement agreement, whereby Defendants agreed that they would keep Plaintiff's security deposit as payment for rent, and Plaintiff agreed that she would vacate the premises on November 26, 2004. Upon the parties' consent, Rochester City Court issued a warrant of eviction, effective November 26, 2007.6

Plaintiff commenced the subject action on March 22, 2005, alleging violations of the FHA and NYHRL. Specifically, Plaintiff contends that Maye subjected her to both hostile environment and quid pro quo discrimination. Jones and Maye, then represented by the same attorney, filed an answer to the complaint, which contained no affirmative defenses. (See, Docket [#3] ) As already mentioned, however, Jones' and Maye's answer admitted the existence of an agency relationship between them.7

On March 12, 2007, Maye filed his summary judgment motion, arguing that: 1) any alleged acts of harassment occurring prior to March 22, 2003 are barred by the statute of limitations; 2) Plaintiff is collaterally estopped from attempting to prove that her eviction was unlawful; and 3) the alleged sexual harassment was not sufficiently severe or pervasive to be actionable. The same day, Jones filed her motion for summary judgment [# 49], claiming that: 1) she cannot be held vicariously liable for Maye's actions under the FHA, because she is an individual, there was no agency relationship between her and Maye, and Maye's actions were not within the scope of his employment; 2) she cannot be held vicariously liable under the NYHRL, because she did not condone or acquiesce in the alleged harassment; 3) the alleged harassment is either time barred or fails to constitute actionable discrimination; and 4) Plaintiff is barred, by res judicata, from challenging the lawfulness of the eviction. The motions were briefed and counsel appeared before the undersigned for oral argument on July 19, 2007. The Court has thoroughly considered the parties' submissions and the arguments of counsel.

DISCUSSION
Summary Judgment Standard

The summary judgment standard is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is...

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