DeWitt v. Lieberman

• Decision Date: 13 January 1999
• Docket Number: No. 97 CIV. 4651(SAS).,97 CIV. 4651(SAS).
• Citation: 48 F.Supp.2d 280
• Parties: Olive B. DeWITT, Plaintiff, v. Joel B. LIEBERMAN, New York State Housing Finance Agency, and the Parks Group, Defendants.
• Court: U.S. District Court — Southern District of New York

48 F.Supp.2d 280

Olive B. DeWITT, Plaintiff, v. Joel B. LIEBERMAN, New York State Housing Finance Agency, and the Parks Group, Defendants.

No. 97 CIV. 4651(SAS).

United States District Court, S.D. New York.

January 13, 1999.

COPYRIGHT MATERIAL OMITTED

Olive DeWitt, Bronx, pro se.

Jeffrey D. Ullman, Ullman, Furhman, Platt & Koy, Morristown, NJ, for Defendant Joel Lieberman.

Lois M. Traub, Hitsman, Hoffman & O'Reilly, Elmsford, for Defendant New York State Housing Finance Agency.

Andrew M. Bernstein, Jacobowitz, Garfinkel & Lesman, New York, for Defendant The Parks Group, Inc.

OPINION & ORDER

SCHEINDLIN, District Judge.

This is a pro se action for sexual harassment and employment discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, § 8-107. The federal claims against defendant New York State Housing Finance Agency ("HFA") consist of quid pro quo and hostile work environment. The only federal claim against defendant The Parks Group, Inc. ("Parks") is one of retaliation. There are no federal claims against defendant Joel B. Lieberman ("Lieberman").¹ All defendants are also being sued under the HRL and the NYCHRL. Defendants have moved separately for summary judgment on all claims. For the reasons set forth below, defendants' motions are granted in part and denied in part.

I. Factual Background

Olive B. DeWitt ("plaintiff" or "DeWitt") responded to an advertisement placed by Parks in the New York Times on Sunday August 20, 1995 for a permanent secretarial position. Affidavit in Support of Motion for Summary Judgment, sworn to by Jeffrey D. Ullman, attorney for defendant Lieberman, on October 30, 1998 ("Ullman. Aff."), Exh. D (Statement by Marie Parks). She was interviewed by Marie Parks, the president of Parks, and her typing and word processing skills were then tested. Id., Exh. C at 32-34 (Deposition of Marie Parks). Although plaintiff's abilities were not adequate for the advertised position, she appeared qualified for other temporary positions. Id. at 5, 8.

In early September 1995, DeWitt was assigned as a temporary legal secretary to defendant HFA in response to Lieberman's request for a replacement for another temporary worker who was going on vacation. Id., Exh. D. According to Marie Parks, she arranged the assignment with DeWitt explaining to her that it would be for approximately two weeks. Id.; see also Exh. C at 52-53. Although Ms. Parks discussed with plaintiff the possibility that other positions of a more permanent nature might become available at HFA in the future, she clearly informed plaintiff that the only position she was presently able to offer her consisted of a two week assignment that would end on September 22, 1995, when the temporary worker she was replacing would return from vacation. Id.

Plaintiff's assignment at HFA's legal department began on September 11, 1995. Ullman Aff., Exh. A at 57 (Deposition of Olive DeWitt). Plaintiff was informed that Lieberman would be providing her with her work assignments. Id. at 58. Plaintiff was also told of the department's structure and hierarchy. Affirmation in Support of Motion for Summary Judgment, sworn to by Lois M. Traub, attorney for HFA, on October 30, 1998, ("Traub Aff.") Exh. A at 82 (Deposition of Olive DeWitt). Lieberman was an Assistant Counsel in the department; his immediate supervisor was Joy Willig ("Willig"), an Associate Counsel; Willig reported to Michael White, a Deputy Counsel; who, in turn, reported to HFA's General Counsel, Manuel Mendez. Affirmation in Support of Summary Judgment, sworn to by Michael D. White, HFA's Deputy Counsel, on October 29, 1998 ("White Aff."), ¶¶ 3-4. During plaintiff's initial orientation on September 11, 1995, Willig informed her that she was to "report any problems [she] had to Caroline Telfer [Mingo]," Willig's secretary. Ullman Aff, Exh. B at M-7 (Temporary Employees Basic Guidelines for Legal Division Procedures). As plaintiff testified at deposition:

Q: The first day that you started your assignment, who did you report to?

A: I was told to report to Caroline, T-e-l-f-e-r I believe is her name. If I had any problems, I was to tell her. If I needed anything, I was to tell her.

Q: Who told you that?

A: Joy Willig. She said, "I am Mr. Lieberman's supervisor and I am assigning Caroline Telfer to you as your supervisor. If you need anything, you are to go to her. If you have any problems, you are to go to her."

Ullman Aff. Exh. A at 81-82.

Plaintiff alleges that Lieberman sexually harassed her in a series of incidents occurring between Tuesday, September 12, 1995 and Tuesday, September 19, 1995. DeWitt alleges that on September 13, 1995, Lieberman offered her a banana in an offensive manner but she nonetheless accepted and ate a piece of it. Traub Aff., Exh. J at 3 (Report on Investigation Respecting Allegations Made by Olive DeWitt Concerning Conduct of Joel B. Lieberman, dated October 19, 1995); see also Supplemental Affirmation in Support of Reply Memorandum for Summary Judgement, sworn to by Lois M. Traub on December 2, 1998 ("Traub Supp. Aff."), Exh. A at 534-35 (Deposition of Olive DeWitt). Although various accounts of an incident involving plaintiff's jacket have been provided by plaintiff, the most egregious version has Lieberman pestering DeWitt for several days, starting on September 12, 1995, to remove her jacket saying something to the effect, "If I could see your breasts then I could put to rest certain feelings I have." Traub Aff., Exh. J at 4; see also Traub Supp. Aff. Exh. A at 534. Then there is the private meeting held in Lieberman's office on September 14, 1995 with Lieberman and DeWitt. Traub Aff, Exh. J at 4. Plaintiff alleges that at that meeting, which lasted over two hours, there was further talk about her not wearing her jacket and about her breasts. Id. In addition, Lieberman allegedly raised the subject of a relationship with DeWitt stating that she could work at HFA permanently if their relationship could "ripen." Id. at 5; see also Traub Aff., Exh. K at 2 (Supplemental Report on Investigation Respecting Allegations Made by Olive DeWitt Concerning Conduct of Joel B. Lieberman, dated November 15, 1996); Ullman Aff., Exh. E at 2 (Exit Questionnaire of Parks Austrian Temporaries, Inc., an affiliate of Parks).² According to plaintiff, at one point during the meeting Lieberman placed his hands in his pockets and touched his penis. Traub Aff., Exh. J at 5. While grabbing his groin area and lunging it forward, Lieberman allegedly stated, "I am overwhelmed by your sensuality, if I could just see the outline of your breasts, I could put these feelings to rest,..." Affidavit in Opposition to the Lieberman Motion for Summary Judgment, sworn to by Olive B. DeWitt on November 23, 1998 ("DeWitt Aff. — Lieberman"), Exh. 6 at 4 (Misdemeanor Criminal Complaint filed by Olive DeWitt). DeWitt also alleges that between September 15, 1995 and September 19, 1995, Lieberman called her at home to pursue a relationship or affair with her stating that he wanted to come over to her house. Id.

Plaintiff also alleges more serious incidents of sexual abuse. On September 15, 1995, DeWitt claims that in a back stairwell at HFA, Lieberman grabbed at her blouse causing his right hand to reach under her blouse and touch her left breast. Id. at 3. Again, on September 19, 1995, while inside Lieberman's car, plaintiff observed Lieberman grab at her blouse in the bra area trying to undo a button and causing his right hand to touch her left breast. Id. That same day, about a half hour later, while Lieberman's car was parked under the 59th Street bridge in Manhattan, Lieberman again allegedly tried to undo a button and in so doing touched DeWitt's left breast. Id. at 3-4. While still parked at that location, Lieberman allegedly grabbed plaintiff's left hand and pushed it down on his pants over his penis while putting pressure on and refusing to release plaintiff's hand. Id. at 4. Needless to say, Lieberman denies these latter allegations. Traub Aff., Exh. K at 3-4.

Despite these allegedly harrowing experiences, plaintiff made no complaint to anyone in a supervisory/managerial position at HFA until well after the end of her assignment. Ullman Aff, Exh. A at 741. Although plaintiff spoke to Ms. Parks nearly twenty times during the first several days of her assignment, she never once claimed that Lieberman had harassed her or behaved in any way that was even remotely inappropriate or sexually aggressive. Id. at 712-13. According to Ms. Parks, plaintiff expressed great satisfaction with the assignment and Lieberman. Ullman Aff., Exh. C at 40. Plaintiff alleges that on September 12, 1995, she told Caroline Telfer Mingo that Lieberman was "fresh" because he suggested that she might be more comfortable if she removed her suit jacket. Ullman Aff., Exh. A at 506-07. Plaintiff claims that Ms. Mingo told her, "That's what he does. Don't pay him any mind." Id.

Plaintiff alleges that she reported Lieberman's behavior with regard to her jacket to Pat Wyatt, secretary to General Counsel Manuel Mendez, in an attempt to speak to either Mr. Mendez or Mr. White on the last day of her employment with HFA. Traub Aff., Exh. J at 7. Ms. Wyatt reportedly told DeWitt that Mr. Mendez could not see her that day. Id. Plaintiff interpreted Ms. Wyatt's response as somehow protecting the General Counsel. Id. Ms. Wyatt claims to have suggested that plaintiff wait but despite this suggestion plaintiff left at 5:00 p.m. without speaking to anyone. Id. Plaintiff further states that she approached a member of HFA's personnel department, Marlene Robinson, Ullman Aff., Exh. A at 440, during the second week of her assignment. She claims that she refrained from making a full report of her ordeal with Lieberman because she somehow "sensed" that...