Ponticelli v. Zurich American Ins. Group
| Decision Date | 03 September 1998 |
| Docket Number | No. 96 Civ. 9095 (RWS).,96 Civ. 9095 (RWS). |
| Citation | 16 F.Supp.2d 414 |
| Parties | Caroline PONTICELLI, Plaintiff, v. ZURICH AMERICAN INSURANCE GROUP, Zurich American Insurance Company, Evan Callas, Charles Herbert and Robert Fishman, individually and in their capacities as officers of Zurich Insurance Company, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Mary D. Dorman, New York City, for Plaintiff.
Vedder, Price, Kaufman, Kammholz & Day, New York City (Alan M. Koral, Neil A. Capobianco, of counsel), for Defendants.
In this action alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "HRL"), defendants Zurich Insurance Company ("Zurich") — sued as "Zurich American Insurance Group" and "Zurich American Insurance Company" — Evan Callas ("Callas"), Charles Herbert ("Herbert"), and Robert Fishman ("Fishman") (collectively, the "Defendants") have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Additionally, plaintiff Caroline Ponticelli ("Ponticelli") has cross-moved for partial summary judgment.
For the reasons set forth below, Defendants' motion will be granted in part and denied in part, and Ponticelli's cross-motion will be denied. Specifically, Defendants' motion for summary judgment will be granted as to Ponticelli's 42 U.S.C. § 1983 claim, the gender-based discrimination claim (to the extent it is alleged), her retaliation claim, and the claim for intentional infliction of emotional distress, and the motion will be denied as to the hostile work environment claim. The claims against Callas, Herbert, and Fishman (collectively, "the individual defendants") under Title VII will be dismissed. The claims against the individual defendants under the HRL will be dismissed without prejudice.
Ponticelli is a resident of Kings County, New York. She was hired by Zurich on April 10, 1995, in the capacity of underwriting assistant in its offices at One Liberty Plaza, New York.
Zurich maintains an office at One Liberty Plaza in the city, county, and state of New York and is licensed to do business in New York State.
Evan Callas was, at the time relevant to this action, Assistant Vice President of Zurich.
Herbert was, at the time relevant to this action, Vice President of Human Resources and the person designated by Zurich to receive and investigate claims of sexual harassment.
Fishman was, at the time relevant to this action, Senior Vice President of Zurich, in charge of the Professional Liability Department.
Ponticelli filed the complaint (the "Complaint") in this action on December 3, 1996. The Complaint alleges (1) that Ponticelli has been denied her rights under the Fifth and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983; (2) that she has been denied equal terms and conditions of employment and equal employment opportunity on the basis of sex in violation of Title VII; (3) that Defendants violated the HRL § 296(1)(a) by constructively discharging and otherwise discriminating against her because of her gender; (4) that Defendants violated the HRL § 296(7) by discharging and otherwise retaliating against Ponticelli because of her opposition to the unlawful employment practices of Zurich; and (5) that Defendants willfully and maliciously inflicted mental and emotional distress upon her.
Defendants made the instant motion for summary judgment on March 17, 1998. Ponticelli filed her cross-motion for partial summary judgment on May 18, 1998. Oral argument was heard on June 3, 1998, at which time the motions were deemed fully submitted.
The alleged discrimination underlying this action occurred in a series of incidents, the facts of which are in substantial dispute. All material allegations relating to Ponticelli's claims are gleaned from the Complaint and the deposition of Ponticelli, as well as testimony by Fishman and Herbert.
From April 10, 1995, to March 19, 1996, Ponticelli was employed by Zurich. She was hired as a technical assistant in Zurich's Professional Liability Department. The head of the department was Fishman. Reporting to Fishman was Callas, an Assistant Vice President for miscellaneous professional liability lines. Ponticelli reported to Callas, who was responsible for directing and overseeing her work. Ponticelli was responsible for logging in submissions, reviewing claims on discontinued policies, and training other technical assistants. According to Ponticelli, she did "everything." As she was not an underwriter, however, she did not have the authority to renew policies. Rather, after logging in a submission — i.e., an application for insurance — it was her responsibility to find out who should review it. Ponticelli testified in deposition that there were many times when no one would accept the policy, so even though she was not an underwriter, she would make the decision whether to issue or decline it on her own.
On her first day of work at Zurich, Ponticelli was assigned to the cubicle of her predecessor. The desk drawers and outside of the desk were piled high with unfinished paperwork. Letters of complaint and telephone complaints from brokers were received by her and referred to her. Ponticelli found stale premium checks left in her desk drawer by her predecessor. Ponticelli found herself "running very fast," in a relatively new professional liability unit which was in a "startup" mode. It was understaffed with a concealed backlog. Although Ponticelli was without training, she applied herself to Fishman's expectations of doing "lots of different things" and being "able to solve issues and problems."
From the beginning Ponticelli worked between 50 to 70 hours a week. She did not take a lunch hour because she had too much work to do, and she worked weekends. Callas never told her to stay late, but Ponticelli felt that she had to put in late hours to complete her work. Ponticelli told Herbert that she was not eating lunch, and he told her to take a lunch break. According to Ponticelli, none of the male managers in her unit did much work. Instead, they sat in Callas's office and fooled around for about 90% of every day and went out and drank alcohol at noon.
Callas reprimanded Ponticelli about her inadequate work performance, about work not being done on time, and about work not being completed properly. Ponticelli asserts that Callas would call her into his office, yell at her for getting him into trouble and for betraying him, and tell her she had a big mouth. When Ponticelli advised Fishman of Callas's yelling, he told her that Callas scared him in the same way and that it was hard to deal with him because of his threatening and violent behavioral tendencies.
Ponticelli brought to Fishman's attention the extent of the policy issuance backlog that had developed under her predecessor. In response, Fishman assigned a male underwriting assistant from another department to help Ponticelli.
Sometime late in the summer of 1995, Ponticelli was diagnosed with carpal tunnel syndrome. Although Ponticelli claims she reported her diagnosis to individuals at work, she never provided anyone at Zurich with a doctor's note.
Ponticelli maintained a contemporaneous diary of incidents at work. In it, under the date of September 5, 1995, Ponticelli recorded that Callas called her into his office, closed the door, and told her that she was not performing adequately and in a reasonable time frame. He also told her that she put in too much overtime. Callas told her not to assist others, not to speak with anyone, or to make small talk. According to Ponticelli, Callas called her "stupid" and "foolish" for talking to other technical assistants. When she explained that Fishman had asked her to train them, Callas reminded her that she worked for him and not for Fishman. Ponticelli admits that her job performance was suffering. She insists it was because she had to help other people and do work for everyone in the department. Supervisors were coming to her with work, and she felt that she could not say no to them even though most of the groups in the professional liability department had their own technical support personnel.
The record indicates that Fishman received numerous complaints about Ponticelli's work. As Ponticelli's replacement, Donna Sylvester, had no problem accomplishing the given tasks, Callas concluded that Ponticelli performed "quite poorly" since she made the same mistakes repeatedly, had trouble prioritizing her work, and failed to pay attention to her given tasks.
It is not altogether clear whose improper conduct Ponticelli wishes to impute to Zurich. Ponticelli claims generally that she was subjected to sexual harassment by Callas, Noel Jamison ("Jamison"), a Senior Underwriter for whom she also performed work, and Herbert. Ponticelli states that Callas made repeated comments about her body, clothes, hair, and fingernails, made sexual advances towards her, laughed at her, and made fun of her. Indeed, Ponticelli testified that almost everything that Callas said or did was a sexual advance. Ponticelli also thought that Jamison wanted to have a sexual relationship with her, although he never invited Ponticelli to have sex with him. Ponticelli also observed various men at Zurich looking at and commenting about other women in the office.
On May 15, 1995, Ponticelli went out to lunch with Callas and Jamison. She was uncomfortable, she claims, because they wanted to discuss the physical appearance of a female attorney Ponticelli knew from her previous employment at St. Paul Reinsurance...
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