Bennett v. Progressive Corp., 00-CV-0286.
| Decision Date | 26 September 2002 |
| Docket Number | No. 00-CV-0286.,00-CV-0286. |
| Citation | 225 F.Supp.2d 190 |
| Parties | Janet Schrader BENNETT, Plaintiff, v. The PROGRESSIVE CORPORATION, Progressive Casualty Insurance Company, Larry Mitchell, John Barbagallo, and Michael Beney, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Law Offices of Harry R. Hayes, Albany, New York, for plaintiff, Harry Hayes, of counsel.
Hancock & Estabrook, LLP, Syracuse, New York, for defendant Larry Mitchell, Michael J. Sciotti, of counsel.
Bond, Schoeneck & King, LLP, Syracuse, New York, for defendants The Progressive Corporation, Progressive Casualty Insurance Company, John Barbagallo and Michael Beney, Louis D. Dilorenzo, Gretchen White, of counsel.
Plaintiff Janet Schrader Bennett ("plaintiff") brought suit against defendants, The Progressive Corporation ("Progressive"), Progressive Casualty Insurance Company ("Progressive"),1 Larry Mitchell ("Mitchell"), Michael Beney ("Beney"), and John Barbagallo ("Barbagallo"), alleging in her Amended Complaint ten causes of action.
In plaintiff's first cause of action, she alleges, as against all of the above defendants, that the actions of Mitchell, her supervisor, including his unwelcome sexual advances, requests for sexual favors, unwanted touching, hugging and kissing of plaintiff, retaliatory actions against plaintiff on occasions when plaintiff attempted to ignore his unwanted advances, threats to plaintiff about reporting his behavior, and his forcing and coercing plaintiff against her will to engage in sexual intercourse, constitute the creation of a hostile work environment and discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. §§ 2000e et seq.
In plaintiff's second cause of action, she alleges, as against all of the above defendants, that the actions of Mitchell, using his position as plaintiff's supervisor to retaliate against plaintiff when plaintiff attempted to ignore his unwelcome sexual advances while ceasing and desisting such retaliatory conduct when plaintiff did not resist such sexual advances, constitute quid quo pro sexual harassment and discrimination on the basis of sex in violation of Title VII.
In plaintiff's third cause of action, she alleges, as against all defendants, she was discharged in retaliation for lodging a sexual harassment complaint against Mitchell, in violation of Title VII, 42 U.S.C. §§ 2000e-3(a).
In plaintiff's fourth cause of action, she alleges, as against all defendants, that the actions of Mitchell, her supervisor, including his unwelcome sexual advances, requests for sexual favors, unwanted touching, hugging and kissing of plaintiff, retaliatory actions against plaintiff on occasions when plaintiff attempted to ignore his unwanted advances, threats to plaintiff about reporting his behavior, and his forcing and coercing plaintiff against her will to engage in sexual intercourse, constitute the creation of a hostile work environment and discrimination on the basis of sex in violation of New York Human Rights Law ("NYHRL"), N.Y.Exec. Law §§ 290 et seq.
In plaintiff's fifth cause of action, she alleges, as against all defendants, that the actions of Mitchell, using his position as plaintiff's supervisor to retaliate against plaintiff when plaintiff attempted to ignore his unwelcome sexual advances while ceasing and desisting such retaliatory conduct when plaintiff did not resist such sexual advances, constitute quid quo pro sexual harassment and discrimination on the basis of sex in violation of NYHRL.
In plaintiff's sixth cause of action, she alleges, as against all defendants, she was discharged in retaliation for lodging a sexual harassment complaint against Mitchell, in violation of NYHRL, N.Y.Exec.Law § 296(3-a)(c).
In plaintiff's seventh cause of action, she alleges, as against defendants Mitchell, Beney, and Barbagallo personally, that the actions of Mitchell, in committing the above acts, and the actions of Beney and Barbagallo, as superiors to Mitchell, in conducting an ineffective sexual harassment investigation and in unlawfully terminating plaintiff's employment, constitute aiding and abetting a NYHRL violation pursuant to N.Y.Exec.Law § 296(6).
In plaintiff's eighth cause of action, she alleges, as against all defendants, that the conduct of Mitchell, Beney, and Barbagallo amounts to intentional infliction of emotional distress in violation of New York State law.
In plaintiff's ninth cause of action, she alleges, as against Progressive only, she worked in excess of forty hours a week during her employment, and has received no overtime compensation, in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 207(e).
In plaintiff's tenth cause of action, she alleges, as against Progressive only, she worked in excess of forty hours a week during her employment, and has received no overtime compensation, in violation of Section 663 of New York Labor Law.
Plaintiff has stipulated to the dismissal of all causes of action against Mitchell, Beney, and Barbagallo, with the exception of the seventh cause of action, for aiding and abetting a violation of NYHRL.2 (Stipulation and Order, Docket nos. 30, 16). Plaintiff has also stipulated to the dismissal of the eighth cause of action, for intentional infliction of emotional distress, as against all defendants. (Stipulation and Order, Docket nos. 16, 14).
All defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Oral argument was heard on July 26, 2002 in Albany, New York, and decision on the motions was reserved.
Taken in the light most favorable to plaintiff, the following comprise the facts necessary to deciding this motion.
In January of 1997, plaintiff was hired as a claims representative in the Albany, New York office of Progressive. Her immediate supervisor in the Albany office was Steven DeHart. During plaintiff's first few weeks of employment, she received training and a "training box" containing materials designed to familiarize employees with company procedure and to give them other information Progressive deems relevant. Progressive contends that contained in such boxes are copies of "The Progressive Way," a manual on policies. Included in "The Progressive Way" is an anti-sexual harassment policy, as well as an "open door policy" and a section informing employees of an "alertline" they can call if they have a grievance against another employee or supervisor. Neither the "open door policy" nor the "alertline" are specifically tailored to solely apply to sexual harassment, and "The Progressive Way" contains no specific complaint procedure dealing with only sexual harassment.
Plaintiff claims she did not receive a copy of "The Progressive Way." Her supervisor does not recall giving her or seeing her with a copy of the document, nor does he recall anyone else giving her a copy. Plaintiff was given two tests during the training period, but it is unclear what material was tested. She did know there existed a general reference source in the Albany office entitled "The Progressive Way," but believed it contained benefits information. Although plaintiff was aware of Progressive's human resources department, she was not aware of the company sexual harassment policy.
In September of 1997, plaintiff was offered a transfer to a claims representative position in Progressive's Utica office. She accepted and in November of 1997 began working in Utica. There is some amount of dispute as to plaintiff's duties as a claims representative. According to plaintiff, since Progressive's main business function in its Utica office was to process claims, and since claims representatives were not permitted to create and sell actual insurance policies, her duties largely comprised of processing claims under automobile insurance policies. Progressive, on the other hand, describes plaintiff's position as encompassing a broad range of activities, including making determinations as to whether insurance coverage applies to claims, making decisions whether or not to investigate accidents, investigating liabilities of accidents, evaluating accident injuries and damages, negotiating settlements of claims with the claimant and his or her attorney, deciding whether to investigate potential fraud and conducting such investigations, handling the salvaging of vehicles, and "even ... acting on behalf of Progressive at trial." (The Progressive Defendants' Statement of Undisputed Facts, at 12, ¶ 47).
Plaintiff's supervisor in the Utica office was Larry Mitchell. Mitchell's supervisor was Michael Beney, who worked for Progressive out of Syracuse. Mitchell and Beney were close personal friends. Beney was also a friend of Mitchell's wife, and served as an usher in Mitchell's wedding. Beney's superior was John Barbagallo, the regional general manager for Progressive's central New York operations.
Sometime after plaintiff transferred, she perceived the running and operation of the Utica office to be far inferior to that of the Albany office. Because of this, she even considered returning to Albany. Nevertheless, she remained and made suggestions to Mitchell about how to improve the efficiency of the office, and she claims some changes were in fact made. She began to work long hours to aid in the implementation of the changes, sometimes staying in the office until 9:00 in the evening with Mitchell. Other employees in the Utica office were less than fond of the negative comparisons between offices, and became hostile to plaintiff. Plaintiff has described the atmosphere in the office to be a "terrible working environment." (Depo. of J. Bennett, at 357). Concerned over co-worker hostility towards her, plaintiff looked to Mitchell for protection, who she believed...
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