Plaintiff Carole Duviella ("Duviella") is a former employee of defendant Counseling Service of the Eastern District of New York ("CSEDNY"). Following her termination, Duviella commenced this action alleging sexual harassment and retaliation against CSEDNY and David Reeves ("Reeves") in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., ("NYCHRL"). The defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons that follow, the motion is granted.

BACKGROUND

The facts presented by the parties are substantially undisputed; however, where disputes do in fact arise, the Court will draw all reasonable inferences in favor of the plaintiff, as the Court is obligated to do when reviewing a motion for summary judgment. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (when reviewing a motion pursuant to Fed.R.Civ.P. 56 the facts must be viewed in the light most favorable to the party opposing the motion). CSEDNY is a private, non-profit organization that provides treatment for chemically dependent people. (See Affidavit of Paul Ruchames ("Ruchames Aff.") ¶ 2.) CSEDNY maintains sites throughout the New York metropolitan area, of which two are located in Jamaica in Queens County and Hempstead in Nassau County. (Id.)

Plaintiff's Employment in CSEDNY's Queens Office

From September 1996 to May 1997, Duviella worked as an intern at the CSEDNY's Queens office while she was a student of New York University's Social Work program. (See Affidavit of Randy Frankel ("Frankel Aft") ¶ 2.) On May 12, 1997, Duviella was hired as a temporary part-time substance abuse therapist at the Queens office. (Id. ¶ 3.) Duviella was informed when she was hired that if CSEDNY had any trouble with it's ability to obtain funding, her employment would be modified. (See hiring letter, dated May 12, 1997, attached to Frankel Aff. as Ex. A.) Duviella was first supervised by Randy Frankel ("Frankel"), the Site Director for the Queens office, and then by Sharon Lovich ("Lovich"). (Id. ¶¶ 1, 4.) In July 1998, Lovich expressed criticism of Duviella' s group counseling skills, (see evaluation written by Lovich, attached to Frankel Aff. as Ex. C.), after which Duviella requested that Frankel become her supervisor again; Frankel denied the request and Lovich remained Duviella's immediate supervisor. (See Frankel Aff. ¶ 4.) On July 12, 1998, Frankel informed Duviella that CSEDNY was "in a state of flux," and that her goal was to hire more full-time workers and decrease the number of part-time workers because full-time workers were more efficient. (Id. ¶ 5, Frankel letter to Duviella, dated July 12, 1998, attached to Frankel Aff. as Ex. B.) Frankel told Duviella that, when and if the restructuring occurred, Duviella would be welcome to apply for the new positions. (Id.)

Duviella does not deny that Lovich supervised her at the Queens office, but asserts that Lovich's title as a supervisor was in contravention of the Rules and Regulations of the National Association of Social Workers because Lovich did not have at least three years of post-MSW supervised experience in providing psychotherapy. (See Pl. Rule 56.1 Counter Statement ¶ 11; Affidavit of Carole Duviella ("Duviella Aff.") ¶ 39.)

CSEDNY's Employee Manual and Sexual Harassment Policy

On August 27, 1997, while working at the Queens office, Duviella received a copy of CSEDNY's Employee Manual. (See Def. Rule 56.1 Statement ¶¶ 27, 28; Employee Manual and "Acknowledgment and Receipt" of manual signed by Duviella, attached to Ruchames Aff. as Ex. A.) The Employee Manual includes a section on CSEDNY's sexual harassment policy and complaint procedures. (See Employee Manual at 6-12 to 6-14.) The sexual harassment policy identifies portions of the Equal Employment Opportunity Commission's ("EEOC") guidelines concerning what constitutes "unlawful sexual harassment." (Id. at 6-12.) In addition, the policy provides the following complaint procedures:

A staff member who becomes aware of, or even suspects, an incident of sexual harassment must report it to his or her supervisor or another management representative with whom he or she feels comfortable. Once management is made aware that such harassment may exist, it is obligated by law to take prompt and appropriate action.

. . .

Any staff member who feels that he or she has been the victim of sexual harassment should contact his/her supervisor, Site Director or Executive Director. This report can be oral or written, but a written and signed statement of the complaint must be submitted by the complainant before an investigation can proceed.

(Id. at 6-12 to 6-14.)

Plaintiff's Employment at CSEDNY's Hempstead Office

Between March 12, 1998 and October 1, 1998, Duviella worked as a temporary part-time substance abuse therapist at the Rapid Employment Directions Initiative ("REDI") program located at CSEDNY's Hempstead office. (See Def. Rule 56.1 Statement ¶ 16.) David Reeves is the former Administrative Director of the REDI. (See Ruchames ¶ 5; letter confirmation of Reeve's director position, dated August 30, 1997, attached to Affidavit of Joan M. Gilbride ("Gilbride Aff.") as Ex. G.) Reeves was supervised by Vilma Stade, the Site Director of the Hempstead office, and Paul Ruchames, CSEDNY's Executive Director. (See Def. Rule 56.1 Statement ¶¶ 15, 19; Gilbride Aff. Ex. G.)

According to the defendants, Reeves had no ownership interest in CSEDNY, (see Def. Rule 56.1 Statement ¶ 20), and had no formal authority to hire and fire employees or change an employee's compensation without first consulting with Stade and/or Ruchames, (see Reeves Dep. at 90-91, 103, 105, attached to Gilbride Aff. as Ex. C.) Duviella asserts, however, that Reeves told her that he did have the authority to hire and fire employees, that he in fact hired Duviella immediately following her interview, and that he had control over another substance abuse therapist's salary. (See Duviella Aff. ¶¶ 5, 14.)

When Duviella was hired at the Hempstead office, she was told that her position would be temporary until June 30, 1998, and that any extension was contingent upon her performance and the REDI program's funding. (See hiring letter, dated Mar. 11, 1998, attached to Gilbride Aff. as Ex. D.) On June 30, 1998, Reeves informed Duviella that her position would be extended through July 31, 1998 when a final budgetary determination was expected, but that no guarantees beyond that point could be made. (See memo from Reeves, dated June 30, 1998, attached to Gilbride Aff. as Ex. E.) At the end of that time, Duviella received another letter from Reeves, explaining that Duviella's position would be extended through August 31, 1998, but that a decision regarding a permanent position, and a possible increase in hours and responsibility were directly linked to the pending budget. (See memo from Reeves, dated July 20, 1998, attached to Gilbride Aff. as Ex. F.)

Plaintiff's Allegations of Sexual Harassment

Duviella alleges that she was sexually harassed by Reeves during her employment at the Hempstead office, which occurred most often after 5:00 p.m. when Reeves and Duviella were the only employees still at work. (See Compl. ¶¶ 20, 21, attached to Gilbride Aff. as Ex. A.) Specifically, she alleges that Reeves repeatedly asked her to engage in sexual intercourse and other sexual acts in his office and elsewhere; Reeves asked her to go on vacation with him; Reeves told her that he had an "open" marriage and that his wife would allow him to have an affair with Duviella; Reeves showed her pictures of him with another woman who he claimed was not his wife; Reeves later claimed his marriage was troubled; Reeves often suggested that he and Duviella have children together; Reeves often commented on Duviella's appearance and asked her to wear shorter skirts; and, on or about June 16, 1998, Reeves stated to Duviella, "I'm not well endowed but if you sit on my face I could do a pretty good job between your legs with my tongue." After this last comment, Reeves stuck out his tongue to demonstrate what he had just described, and then asked Duviella if she was willing to "swallow." When Duviella told Reeves that she would not engage in such a discussion, Reeves "violently grabbed" Duviella by the wrist to force her to stay. The next day, Reeves called Duviella at home and stated, "I won't touch you again until you give me permission; and you will." (Id. ¶ 21.) Duviella alleges that she told Reeves that she found his advances offensive and requested that he stop, but Reeves ignored her requests and the sexual harassment continued unabated. (Id. ¶ 22.) She also alleges that, as result of Reeve's conduct, she refused to continue working evenings at the Hempstead office. (Id. ¶ 26.)

Plaintiff Notifies CSEDNY About the Sexual Harassment

On October 1, 1998, Duviella sent both Frankel and Reeves a two page letter facsimile, offering her resignation from the Hempstead office, and including an allegation that Reeves sexually harassed her and that this was the main reason for her resignation. (See letter, dated Oct. 1, 1998, attached to Frankel Aff. as Ex. G.) Prior to sending this letter, Duviella had never complained to anyone at CSEDNY about the sexual harassment, as evidenced by her letter, in which she stated, "I have never told you the main reason I wanted to quit. . . ." see also Frankel Aff. ¶ 7; Ruchames Aff. ¶ 8; Duviella Aff. at 184-85.) However, Duviella maintains that she tried to tell Frankel about the sexual harassment on four separate occasions prior to October 1, 1998, but that she was brushed off by Frankel before she was able to discuss her allegations. (See Pl. Rule 56.1 Counter Statement ¶ 42.) Duviella alleges that sometime in April 1998 Duviella told Frankel that Reeves "was not the person he appeared to be" and that she "was uncomfortable working with David." (See Duviella Dep. at 126.) She alleges that Frankel then raised up her hand and stated, "don't tell me. I don't want to know. I have my own problems." (Id. at 126-27.) The second time she spoke to Frankel was in the summer of 1998, when she told Frankel that she was "having problems with Reeves" and that she was quitting her job at the Hempstead office. (Id. at 165-68.) Duviella also stated, "I'm having the same type of problems you didn't want to know about." (Id.) Frankel allegedly told Duviella that she "had to be political," and that she did not "want to create problems because of negative consequences that could result later on." (Id.) Frankel then stated, "this is a good job" and "it pays $19.00 an hour"; "there are hardly any jobs out there. Please don't quit." (Id.) In mid September of 1998, Duviella again approached Frankel and told her that she "wasn't getting along with [Reeves]," and that Reeves would not let her change her work schedule. (Id. at 173-74.) The fourth and final time Duviella spoke to Frankel was on September 30, 1998 when she made the following "general comments" — Reeves had "no scruples"; he "was not an honest person"; he lied easily; and he acted "inappropriately." (Id. at 184.) While the defendants do not dispute the truthfulness of Duviella's allegations, they do not concede that Duviella's intention during these conversations was to tell Frankel about the alleged sexual harassment.

CSEDNY's Investigation Into Sexual Harassment Allegations

On October 1, 1998, after receiving Duviella' s letter, Frankel left a message on Duviella's answering machine requesting that she call her back to discuss her allegations. (See Frankel Aff. ¶ 8.) Duviella called Frankel back the next day, and Frankel encouraged Duviella to discuss her allegations with Ruchames, CSEDNY's Executive Director. (Id.) After phoning Duviella, Frankel also called Ruchames to tell him about Duviella's allegations against Reeves. (Id. ¶ 9; Ruchames Aff. ¶ 8; investigation notes, dated Oct. 1, 1998, attached to Ruchames Aff. as Ex. C.) However, Ruchames had already read a copy of the letter, which he had received from Reeves a short while before. (See Ruchames Aff. ¶ 8.) Ruchames told Frankel that Reeves had adamantly denied all of the allegations of sexual harassment in Duviella's letter. (Id. Frankel Aff. ¶ 9.)

On October 1, 1998, Ruchames began his own investigation of Duviella's complaint by speaking to Reeves, and the two Site Directors of the Hempstead and Queens offices, Stade and Frankel. (See Ruchames Aff. ¶ 9; investigation notes at 9, attached as Ex. C.) On October 2, 1998, Ruchames spoke to Duviella on the phone for approximately forty minutes about her allegations against Reeves, and set up a formal meeting for October 7, 1998. (See Ruchames Aff. ¶ 10; investigation notes at 11, attached as Ex. C; letter to Frankel confirming Oct. 7, 1998 meeting, attached as Ex. D.) However, on October 6, 1998, Duviella canceled the meeting because she believed that Ruchames was only concerned about discouraging her from pursuing her claims. (See Duviella Aff. ¶ 25; investigation notes at 13, attached to Ruchames Aff. as Ex. C.) Ruchames followed up by sending Duviella a letter in which he urged her to reconsider her decision not to meet with him, and that he would accommodate any date that was convenient to her. (See letter, dated Oct. 7, 1998, attached to Rumaches Aff. as Ex. D.) He further stated that CSEDNY "takes her allegation of sexual harassment very seriously," that he was "committed to carefully, thoroughly and expeditiously investigating [her] allegation," and that meeting with her in-person would "greatly enhance [his] ability to fairly complete the investigation and recommend appropriate action." (Id.) Ruchames also stated that CSEDNY "does not and will not tolerate any retaliation against [her]." (Id.)

Duviella alleges that, during their initial telephone conversation, Ruchames told Duviella that he would respect her wishes if she decided not to pursue the sexual harassment complaint any further. (See Duviella Aff. ¶ 24.) Other than this statement, Duviella does not further explain why she believed that Ruchames was not "interested in conducting an objective and sincere investigation." (Id. ¶ 25.) While she alleges that Ruchames repeated his statement during their telephone conversation on October 6, 1998, and again at her office on October 7, 1998, these later statements can not support her initial belief about Ruchames's intentions because they occurred after she canceled the October 7, 1998 meeting. In addition, Duviella doe not dispute that she canceled the October 7th meeting, however, she alleges that Ruchames came to her office in Queens for some other reason and that she spoke to him about her allegations for nearly two hours. (Id. ¶ 25.)

Duviella agreed to reschedule the meeting for October 13, 1998; however, Duviella again canceled the meeting. (See Ruchames Aff. ¶ 12; Duviella Dep. at 216.) Again, Ruchames followed up in writing, and urged Duviella to reconsider her decision not to meet with him, and informed her that she could bring her attorney if she wished. (See letter to Duviella, dated Oct. 16, 1998, attached to Ruchames Aff. as Ex. E.) Apparently, the meeting was never rescheduled, and Ruchames concluded his investigation on or about November 3, 1998. (See Ruchames Aff. ¶ 13.)

Duviella alleges that she canceled this second meeting because she had already spoken to Ruchames for approximately two hours on October 7, 1998 when he came to her office on another matter. (See Pl. Rule 56.1 Counter Statement.) She does not explain however why she initially agreed after October 7, 1998 to schedule the second meeting in the first place.

Over the course of the investigation, Ruchames met with Reeves, Frankel, Stade, and Julie Zaslov, the co-ordinator of the REDI program. (See investigation notes, attached to Ruchames Aff. as Ex. C). Ruchames also met with Emily Gardner and Andelina Rodriguez, two of Duviella's co-workers at the Hempstead office. (Id.) In addition to not being able to corroborate Duviella's allegations, Gardner stated that she perceived Duviella and Reeves to be friendly co-workers, and Rodriguez stated that she was "shocked" to hear about the allegations. (Id. at 25, 29.) Ruchames recorded over 40 pages of handwritten notes as part of his investigation, and reported his findings to Ben LoCasto, Chairperson for CSEDNY's Board of Directors. (See Ruchames Aff. ¶ 14; letter to LoCasto, dated Nov. 3, 1998, attached to Ruchames Aff. as Ex. F.) As part of his findings, Ruchames reported Duviella's allegations of Reeves's inappropriate sexual behavior towards her, and that she felt pressure to do Reeves's work for him and to become sexually involved with him. (See Ruchames Aff. Ex F.) He also reported that there were no witnesses to the harassment, and that Reeves denied the allegations and offered potential motivations for why Duviella might lie. (Id.) Ruchames concluded that he could not substantiate Duviella's allegations of sexual harassment nor could he substantiate Reeves's denial. (Id.)

Duviella suggests that a trier of fact could find that Ruchames's investigation was a sham based on the fact that she told Ruchamies that Reeves had acted inappropriately with other women, and Ruchames never asked for the names of these individuals or tried to interview them as part of his investigation. (See Pl. Rule 56 Counter Statement ¶ 53). This Court does not see how Ruchames's alleged failure to pursue these other individuals renders the investigation a sham. Duviella does not allege that she was precluded in any way from giving Ruchames the names of these individuals or that she in fact told Ruchames the names of these individuals and Ruchames still failed to interview them.
Duviella also argues that the investigation was somehow suspect based on the fact that Ruchames discarded the notes he jotted down after each interview. (See Mem. in Opp'n at 19 n. 19; see also Ruchames Dep. at 118.) However, Ruchames explained that he threw out his shorthand notes based on confidentiality concerns, and then rewrote his notes as part of his formal investigation and report. (See Ruchames Dep. at 118.) Ruchames's notes provided detailed descriptions of every interview he conducted, as well as his own thoughts and conclusions based on the various responses he received. His notes also included both criticisms and compliments of Reeves.) Having reviewed Ruchames's notes consisting of over 40 handwritten pages, this Court can not conclude that the fact that Ruchames discarded his preliminary thoughts creates a triable issue regarding the integrity of his investigation.

On November 4, 1998, upon Ruchames' s recommendation, LoCosto wrote to Duviella and Reeves, notifying them that CSEDNY would not conclude one way or the other whether sexual harassment had occurred. (See letters to Duviella and Reeves, dated Nov. 4, 1998, attached to Ruchames Aff. as Exs. G and H.) LoCosto also advised Duviella that, although no finding could be made on her claim, CSEDNY would protect her and any employee against unlawful harassment and reprisal, and that any future instance of harassment should be reported. (See Ruchames Aff. Ex. G.) LoCasto advised Reeves that, although the truth of the claim had not been determined, CSEDNY's employees were expected to comply with CSEDNY's policy against sexual harassment and non-retaliation, and that he should review the applicable sections located in the Employee Manual. (See Ruchames Aff. Ex. H.)

After receiving LoCosto's letter, Duviella finally agreed to meet with Ruchames, but demanded that Frankel and Stade be present at the meeting. (See Ruchames Aff. ¶ 16.) The meeting took place on December 2, 1998 at the Queens office with Frankel present and Stade available through speaker phone. (Id.) At the meeting, Duviella made several allegations against Reeves regarding his job performance in addition to allegations of sexual harassment. (Id. ¶ 17.) Ruchames then met with Reeves on December 8, 1998. (Id.) After the meeting, Ruchames concluded that, while he still could not substantiate the allegations of sexual harassment, his investigation revealed that certain of Reeves's actions constituted insubordination. (Id.) Consequently, Reeves was demoted to the role of substance abuse therapist and his salary was decreased to reflect the lower level of responsibility. (See letter of demotion, dated Dec. 22, 1998, attached to Ruchames Aff. as Ex. I.) Reeves left CSEDNY on June 21, 1999 based on a confidential mutually agreed upon termination. (See Reeves Dep. at 183, attached to Gilbride Aff. as Ex. C.)

CSEDNY's Escalating Financial Problems and Reorganization

In 1998, CSEDNY's fiscal problems caused several delays in payroll and accounts payable. (See Ruchames Aff. ¶ 19.) One of CSEDNY's governmental funding sources, the New York State Office of Alcoholism and Substance Abuse ("OASAS"), demanded a fiscal recovery plan before it would continue to provide funding. (Id. ¶ 20; letter sent to OASAS in response to request, attached to Ruchames Aff. as Ex. M.) After establishing a fiscal committee to address CSEDNY's growing financial problems, CSEDNY implemented its fiscal recovery plan in 1998 to reduce costs and increase operating income. (See Ruchames Aff. ¶ 19; letter to board of directors' fiscal committee, dated Oct. 22, 1998, attached to Ruchames Aff. as Ex. L.) The plan called for a reduction of staff and office expenses in CSEDNY's Hempstead and Brooklyn offices. (See Ruchames Aff. ¶ 20.)

To assist in the recovery effort, CSEDNY hired certified public accountants to audit CSEDNY's finances for the years ending in December 1998 and December 1999. (Id. ¶¶ 21, 22.) The 1998 auditor's report concluded that CSEDNY's liabilities exceeded its assets, ending the year with a $63,089 deficit, and CSEDNY had lost over $200,000 in revenue as compared to 1997. (See 1998 accountant's report, attached to Ruchames Aff. as Ex. N.) Additionally, in 1998, CSEDNY had no endowment fund or capital reserve to fall back on to manage its cash-flow needs. (See Ruchames Aff. ¶ 21.) In 1999, the auditor's report revealed that CSEDNY's net assets had only grown to $16,150 from a negative $135,354 at the beginning of that year. (Id. ¶ 22; 1999 accountant's report, attached to Ruchames Aff. as Ex. O.)

From 1998 through 1999, CSEDNY regularly informed staff members of its financial troubles in an employee newsletter called "The Communicator of the Counseling Service of EDNY," and during regularly scheduled staff meetings. (See Ruchames Aff. ¶ 18; newsletters, attached to Ruchames Aff. as Ex. K.) Duviella received the newsletter and was present during some of the staff meetings where Frankel discussed CSEDNY's fiscal problems. (See Duviella Dep. at 110-11.) She also admitted that she had concerns about CSEDNY's budget and its ability to obtain funding. (Id. at 112.)

In 1998, in response to CSEDNY's fiscal troubles, group therapy sessions became the focus of treatment because it was a more efficient use of staff time. (See Ruchames Aff. ¶ 23; newsletter, volume 4 no. 8, attached to Ruchames Aff. as Ex. K.) In addition, at the Queens office, all part-time staff hours were cut; Duviella's hours were decreased from ten to seven hours a week in December 1998. (See Frankel Aff. ¶ 13; interoffice memo, dated Dec. 15, 1998, attached to Frankel Aff. as Ex. H.) In addition, Frankel voluntarily reduced her own salary, (see Frankel Aff. ¶ 20), eliminated a stress management class, and reduced clerical staff hours, (id. ¶ 13.)

In further efforts to deal with CSEDNY's fiscal problems, in 1999, CSEDNY reorganized staff positions and restructured CSEDNY policies, for example, by removing the seniority and "layoffs and recalls" sections of the Employee Manual. (See notice to employees, dated Mar. 16, 1999, attached to Duviella Aff. as Ex. C.) Frankel also restructured the staff positions at the Queens office by eliminating several part-time positions, and creating one full-time position, a twenty-hour part-time position, and a six-hour part time position. (See Frankel Aff. ¶ 16; change in staff memo, dated Mar. 21, 1999, attached to Frankel Aff. as Ex. J.) The twenty-hour position required experience in conducting parenting and/or vocational groups, and the six-hour position required experience and proficiency in running psycho-educational and process groups. (Id.) Duviella and two other part-time employees, Donald Decker and Theresa Villani, applied for the two part-time positions. (Id. ¶ 15; Duviella' s request for employment interview, attached to Frankel Aff. as Ex. K.) As part of the application process, Frankel observed each applicant facilitate a group therapy session. (See Frankel Aff. ¶ 16.) Frankel concluded that Decker and Villani were more qualified than Duviella based on her observations and her knowledge of the applicants' prior job experiences. (Id.) On May 13, 1999, Frankel notified Duviella that she had hired Decker for the twenty-hour position and Villani for the six-hour position. (Id. ¶ 16; letter to Decker, attached to Frankel Aff. as Ex. L; notice to Duviella of discharge from Queens office, attached to Frankel Aff. as Ex. M.) Duviella's last day of work at the Queens office was June 9, 1999. (Id.)

Frankel had written a memorandum to Duviella earlier that year in which she discussed, inter alia, Duviella's weaknesses concerning her group therapy skills. (See memo from Frankel to Duviella, dated July 18, 1998, discussing strengths and weaknesses of job performance, attached to Frankel Aff. as Ex. D.) Frankel alleges that she considered this factor as part of her decision not to hire Duviella. (See Frankel Aff. ¶ 16.)

After Duviella had applied for the part-time positions but before the positions had been filled, Frankel had informed Duviella about other available part-time positions in the Brooklyn and Hempstead REDI programs. (See Frankel Aff. ¶ 17; memo to Duviella, dated Apr. 19, 1999, attached to Frankel Aff. as Ex. N.) Duviella did not apply for any of these positions because she did not want to work in Brooklyn or with Reeves in the Hempstead office. (See Pl. Rule 56.1 Counter Statement ¶ 137, 142.) After being notified that she did not get either part-time position in the Queens office, Frankel nevertheless encouraged Duviella to apply for yet another part-time substance abuse therapist position in Brooklyn. (See Frankel Aff. ¶ 19; notice of discharge from Queens office, attached to Frankel Aff. as Ex. M.). However, Duviella did not apply for the position. (See Frankel ¶ 19.) By the end of June of 1999, several part-time employees, in addition to Duviella, were laid off in the Queens office, including Lourdes Rolon, Camille Norman, Vilma Stade, and Tom Campo. (Id. ¶ 18.)

Duviella contends that, despite CSEDNY's budgetary concerns, a new part-time substance abuse therapist position was created at the Queens office for Ava Caldwell, who had been on disciplinary leave at the time of the reorganization. (See Mem. in Opp'n at 7.) Defendants assert that Caldwell was on medical leave, not disciplinary probation, and that CSEDNY was obligated to reinstate Caldwell in April 1999 under the Family Medical Leave Act ("FMLA"). (See Defs. Reply Br. at 10.) Defendants further contend that Caldwell was "excellent at leading group therapy sessions and CSEDNY needed group leaders." (Id.)

Duviella filed a timely charge of discrimination with the EEOC, and received a right-to-sue letter on February 3, 2000. (See Compl. ¶ 4.) Duviella also served a copy of her federal complaint on the New York City Commission of Human Rights and the New York City Corporation Counsel. (Id. ¶ 5.)

In her complaint, Duviella alleges that she was sexually harassed repeatedly by Reeves while she worked at the Hempstead office creating a hostile work environment, that Ruchames's investigation and conclusion that no sexual harassment occurred was a sham, and that her "layoff" in June of 1999 was in retaliation for her complaint of sexual harassment. (Id. ¶¶ 21, 33, 34.)

The defendants move for summary judgment, arguing that there is no genuine issue of material fact and that judgment in favor of the defendants should be granted as a matter of law. Specifically, the defendants argue that Duviella's city human rights law claims must be dismissed because none of the alleged harassment occurred within the city limits. They argue that the Title VII and state human rights law claims of harassment must be dismissed against CSEDNY because it exercised reasonable care in preventing and correcting the alleged sexually harassing behavior and Duviella unreasonably failed to take advantage of preventative opportunities provided by the employer. Moreover, they argue that the Title VII claim against Reeves must be dismissed because there is no individual liability under Title VII. With respect to the state human rights law claim against Reeves, the defendants urge the Court to follow New York State law, as opposed to Second Circuit law, which, they argue, does not permit individual liability under the NYSHRL. Alternatively, the defendants argue that the Court should decline to exercise its supplemental jurisdiction over the state and city law claims. Finally, the defendants argue that the federal and state law retaliation claims should be dismissed because Duviella cannot show a causal connection between her "layoff" in June of 1999 and her October 1, 1998 complaint, nor can she establish that CSEDNY's fiscal reason for her termination was merely a pretext for retaliation.

Duviella concedes that there is no individual liability under Title VII and voluntarily withdraws her Title VII claims of sexual harassment and retaliation against Reeves. (See Mem. in Opp'n at 24 n. 8.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories. and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Grady v. Affiliated Central. Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether the movant has met this burden, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion.Lopez v. S.B. Thomas. Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citingUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Although courts should be particularly cautious about granting summary judgment in employment discrimination cases when intent is at issue, see Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994);Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp.2d 414, 425 (S.D.N.Y. 1998), "summary judgment may be appropriate even in the fact-intensive context of discrimination cases," Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Thus, to defeat a motion for summary judgment, "a plaintiff must provide more than conclusory allegations of discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 119 (2d Cir. 1997).

II. Sexual Harassment Claim Against CSEDNY Under Title VII NYSHRL, and NYCHRL

Title VII provides that "[i]t shall be an unlawful employment practice for an employer. . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's. . . sex. . . ." 42 U.S.C. § 2000e-2(a). One form of gender discrimination prohibited by Title VII is sexual harassment that results in a "hostile or abusive work environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To prevail on a hostile work environment claim under Title VII, a plaintiff is required to show "(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Van Zant v. K.L.M. Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (quotation marks and citation omitted).

At least as far as determining whether a plaintiff was subject to a hostile work environment, claims against an employer under the state and city human rights laws are similar to those made under Title VII, and therefore can be analyzed under the same standard for summary judgment purposes. See McCoy v. City of N.Y., 131 F. Supp.2d 363, 370 (E.D.N.Y. 2001) ("Because New York courts require the same standard of proof for claims brought under the Human Rights Law as for those claims brought under Title VII, these claims may be analyzed in tandem.") (internal citation omitted); Sowemimo v. D.A.O.R. Security. Inc., 43 F. Supp.2d 477, 484 (S.D.N.Y. 1999) ("At least as far as determining whether objectionable actions constitute actionable sexual harassment, claims made under the New York State Human Rights Law . . . and the New York City Human Rights Law . . . are similar to those made under Title VII, and can be examined identically for summary judgment purposes.").

NYSHRL, in pertinent part, makes it unlawful for an employer "because of the . . . sex . . . of any individual . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(1)(a). NYCHRL provides, in pertinent part, that "[i]t shall be unlawful discriminatory practice: (a) for an employer or an employee . . . because of the actual or perceived . . . gender . . . of any person . . . to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a). The Court will assume for purposes of this summary judgment motion that Duviella has alleged facts sufficient to show that the actions complained of occurred in the city of New York, and will review her city human rights law claims accordingly.

A. Hostile Work Environment

A hostile work environment exists "when the workplace is permeated with discriminatory intimidation, ridicule and insult, that is `sufficiently severe to alter the conditions of the victim's employment.'" Torres v. Pisano, 116 F.3d 625, 630-31 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The conduct in question must be both objectively and subjectively offensive. Meritor Savings Bank, 477 U.S. at 67. The objective test is whether a reasonable person would find the work environment hostile or abusive, and the subjective test is whether the victim herself perceived the environment to be hostile or abusive Id.; Sowemimo, 43 F. Supp. 2d at 484. The harassing conduct must be more than episodic; it must be "sufficiently continuous and concerted" in order to be considered pervasive. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (citations omitted); Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989). However, a single incident may be sufficiently pervasive if it "sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment."Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (citation omitted). Factors to be considered in determining a hostile work environment claim are the frequency and severity of the conduct; whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interfered with an employee's work performance. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998) (citations omitted). In general, the question of whether the harassing conduct creates a hostile work environment is usually best left to the trier of fact. Ponticelli, 16 F. Supp. 2d at 429 (citations omitted).

Duviella argues that a genuine issue of fact exists as to whether she was subjected to a hostile work environment based upon her gender. (See Mem. in Opp'n at 10.) While the defendants do not technically concede that Duviella has established a hostile work environment, they focus their entire argument on whether liability can be imputed to the employer. (See Mem. of Law at 10 n. 4, 11-19.) In her complaint, Duviella alleges repeated acts of verbal sexual harassment by Reeves over the course of six and a half months. (See Compl. ¶ 21.) She describes one exceptionally offensive incident, which resulted in Reeves physically grabbing her, and then phoning her at home to say that he would not touch her again until she let him. (Id.) Based on these wholly unopposed allegations, the Court is driven to conclude that Duviella has established a sufficiently severe and pervasive hostile work environment in satisfaction of the first element of the claim to withstand this motion for summary judgment.

B. Whether the Unlawful Discriminatory Conduct May Be Imputed to CSEDNY

A plaintiff pursuing a hostile work environment claim must also establish a basis on which to hold an employer liable for the conduct of its employees. See O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 387 (S.D.N.Y. 2001). Under Title VII, an employer is presumptively liable for all acts of harassment perpetrated by an employee's supervisor, but the employer can avoid liability if it can prove that: "(1) the employer exercised reasonable care to prevent and promptly correct any harassment by such a supervisor, and (2) the employee unreasonably failed to avail [her]self of any corrective or preventative opportunities provided by the employer or to avoid harm otherwise." Quinn, 159 F.3d at 767 (citations omitted). This two-prong affirmative defense to employer liability was established by the Supreme Court in two seminal Title VII cases,Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1988). In order to avoid liability, an employer must establish both elements of the affirmative defense by a preponderance of the evidence. Ellerth, 524 U.S. at 765.

New York courts have not yet determined whether they will follow the Ellerth/Faragher standard regarding employer liability. See, e.g., Vitale v. Rosina Food Prod., Inc., 727 N.Y.S.2d 215, 219, 283 A.D.2d 141, 145 (4th Dep't 2001) (declining to decide whether affirmative defense applies under state human rights law). For this reason, several district courts continue to analyze state and city human rights law claims under pre-Ellerth/Faragher law. See, e.g., Sowemimo, 43 F. Supp. 2d at 485 (applying pre-Ellerth/Faragher law to state law claims); Ponticelli, 16 F. Supp. 2 d at 432-33 (same); Seepersad v. D.A.O.R. Sec., Inc., No. 97-CV-2086, 1998 WL 474205, at *4 (S.D.N.Y. Aug. 12, 1998) (same). Accordingly, this Court, too, will analyze Duviella's state and city law claims under pre-Ellerth/Faragher law, and her Title VII claims under the Ellerth/Faragher standard.

1. CSEDNY's Liability Under Title VII a) First Prong of Ellerth/Faragher Affirmative Defense

Under the first prong of the Ellerth/Faragher affirmative defense — whether CSEDNY exercised reasonable care in preventing and correcting the alleged sexually harassing behavior — Duviella argues that three issues of fact exist such that summary judgment would be premature at this time. First, she argues that an issue of fact exists as to whether Frankel ignored Duviella's efforts to notify her prior to October 1, 1998 of the sexual harassment; second, whether CSEDNY's anti-harassment policy requiring written notice before an investigation will begin violates the law; and third, after Duviella put her complaints in writing, whether the investigation conducted by Ruchames was insufficient and illegitimate.

In establishing the Ellerth/Faragher affirmative defense, the Supreme Court was mindful of Title VII's basic policy to encourage "forethought by employers." Ellerth 524 U.S. at 765. Accordingly, the Court held that "[w]hile proof that an employer had promulgated an antiharassment [ sic] policy with complaint procedures [was] not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense." Id. The Second Circuit elaborated on this point by holding that, "[a]lthough not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of th[e] defense." Caridad, 191 F.3d at 295 (citation omitted). Thus, many district courts have held that the first prong of the affirmative defense has been satisfied when evidence exists that the employer had an anti-harassment policy in place that was readily available to the complainant. See, e.g., DeWitt v. Lieberman, 48 F. Supp.2d 280, 291 (S.D.N.Y. 1999); Donovan v. Big Supermarkets, Inc., No. 98-CV-2842, 1999 WL 615100, at *6 (S.D.N.Y. Aug. 12, 1999);Fierro v. Saks Fifth Ave., 13 F. Supp.2d 481, 491 (S.D.N.Y. 1998); Scone v. Tandy Corp., 9 F. Supp.2d 773, 778 (W.D. Ky. 1998).

In this case, CSEDNY had an anti-harassment policy and complaint procedures which it distributed to its employees. (See Employee Manual, attached to Ruchames Aff. as Ex. A.) Duviella does not dispute that she received the Employee Manual and was aware of the CSEDNY's sexual harassment policy and complaint procedures. (Id., "Acknowledgment and Receipt" of manual at last page.) Duviella argues, however, that Frankel failed to take preventive measures after she became aware that Duviella was having problems with Reeves based on the four conversations she had with Duviella prior to October 1, 1998. She also argues that an issue of act exists as to whether CSEDNY's sexual harassment complaint procedures requiring a written statement before an investigation could begin was in violation of the law. In support of these points, Duviella relies primarily on Brightman v. St. Vincent's Hospital., No. 98-CV-3931, 2000 WL 977889 (S.D.N.Y. Jul. 14, 2000). There, the plaintiff also raised claims of hostile work environment and retaliation. Brightman, however, is distinguishable from the present case on several counts. In Brightman, the plaintiff had complained to various employees at the hospital where she worked about another employee's inappropriate conduct, without ever invoking the term "sexual harassment." Id. at *3, The plaintiff stated that every time she attempted to complain to a supervisor, she was either "ushered" out of the office or the meeting ended "prematurely." Id. at * 1. While on its face, those facts seem similar to the facts in this case, the Brightman court did not analyze those factual allegations with respect to whether the employer was liable for the discrimination. Rather, the Brightman court only determined that an issue of fact existed as to the plaintiff's hostile work environment claim and never reached the issue of employer liability. Id. at *2-3. The court's analysis of the plaintiff's allegations that she tried to tell her employer of the sexual harassment is found solely in its discussion of plaintiff s retaliation claim. In reviewing that claim, the court found that the plaintiff had satisfied the first element of the claim — that she had engaged in a protected activity that was known to the employer — based on the fact that, while she never used the term "sexual harassment," she had told various supervisors about "all of Shaw's actions from June to October 1996." Id. at *3.

The Brightman court's holding as to the retaliation claim does not persuade this Court that Duviella has shown that a genuine issue of fact exists with respect to the first prong of the Ellerth/Faragher affirmative defense. First, the Court again notes that the Brightman court was not analyzing employer liability, but, rather, whether the employer retaliated against the plaintiff after she complained of sexual harassment. Second, and more importantly, even assuming that the analysis in a prima facie case of retaliation has persuasive effect on a court's analysis of employer liability in a hostile work environment claim, theBrightman court's holding clearly relies on the fact that the plaintiff had complained of the specific acts of her harasser, despite the fact that she never called it "sexual harassment." Duviella has not alleged that she ever told Frankel or anyone at CSEDNY about the specific acts of sexual harassment, but only that she was having problems with Reeves.

Duviella also cites to Ramos v. City of N.Y., No. 96-CV-3783, 1997 WL 410493, at *3 (S.D.N.Y. Jul. 22, 1997), another retaliation case, in support of her claim. However, even the Ramos court declined to hold that the plaintiff had sufficiently notified his employer of the discrimination to satisfy the "protected activity" element of the claim, because he had only told his employer that he was being treated unfairly, not that his unfair treatment was caused by his being a member of a protected class. Id. at *3 Thus, even retaliation cases require some level of specificity before a court will find that a plaintiff has sufficiently complained of discrimination.

Here, the defendants do not dispute that Duviella made comments to Frankel about Reeves on four occasions prior to October 1, 1998. However, Duviella's restatement of what she said to Frankel clearly indicates that she never, in fact, complained of sexual harassment or provided any details of the specific conduct she alleges to have occurred. (See Duviella Dep. at 126-27, 165-68, 173-74, 184.) Moreover, Duviella even states in her letter of resignation that she never told Frankel before that time the real reason for why she was quitting. (See letter, attached to Frankel Aff. as Ex. G.) Based on these facts, this Court is confident that no reasonable jury would find otherwise, and summary judgment will be granted with respect to that claim.

Second, Duviella argues that a material question of fact exists as to the lawfulness of CSEDNY's complaint procedures which requires that a complaint be in writing before an investigation will proceed. In support of her claim, Duviella again relies on Brightman, and other retaliation cases, which have found that employees have engaged in a "protected activity" regardless of whether a formal charge or informal protest of discrimination to management is made. (See Mem. in Opp'n at 16 (citingBrightman, 2000 WL 977889, at *2; Sumner v. United States Postal Serv., 899 F.2d 203, 206 (2d Cir. 1990); Ramos, 1997 WL 410493, at *3)).

CSEDNY's complaint procedures allow an employee who believes she or he is being sexually harassed to complain of the alleged harassment to a supervisor, a Site Director, or the Executive Director, either orally in writing. (See Employee Manual at 6-12, 6-13.) By allowing complainants to notify various personnel orally, CSEDNY's policy does not limit or in any way deter an employee from complaining of sexual harassment. In fact, the policy encourages employees to tell a supervisor or anyone in management "with whom he or she feels comfortable." (Id. at 6-13.) The policy only requires a written and signed statement before CSEDNY can commence an investigation. (Id.) The retaliation cases, cited by the plaintiff, do not discuss employer complaint procedures for handling sexual harassment claims. Nor does this Court's reading of the cases suggest that CSEDNY's procedures are in any way unlawful. Moreover, this Court is not aware of any cases which have found a complaint procedure that requires a written statement before the commencement of an investigation to be an ineffective procedure.

Third, Duviella argues that, once she did complain in writing, Ruchames's investigation was inadequate and illegitimate because rather than correcting the discriminatory conduct, he "covered up the discriminatory conduct." (See Mem. in Opp'n at 17.) Therefore, she claims that Ruchames's investigation was ineffective. In support of her contention, Duviella argues that Ruchames's conclusion that he could not determine one way or the other whether the sexual harassment allegations were true was incredulous in light of the fact that he had found that Reeves had lied with respect to other aspects of the investigation. For example, during the investigation, Reeves told Ruchames that he was never really alone with Duviella, but records revealed that they frequently worked alone together in the evenings, and Ruchames even wrote in his investigations notes that Reeves was "trying to mislead [him]," on this point. (See investigation notes at 23, 35, attached to Ruchames Aff. as Ex. C.) Other instances where Ruchames found that Reeves was being untruthful concerned his use of profanity at work; the fact that he lied about letting other employees, including Duviella, complete the drafting of treatment plans and discharge summaries which was in violation of CSEDNY policy; stating that Duviella stopped working on Tuesday nights in June because she began attending classes, when the classes actually did not start until the following October; and, at first, only admitting that he called Duviella at home on two occasions when photographs of Duviella's caller id box revealed that Reeves had called more than two times. (See Ruchames Dep. 156-57, 186-87, 193-95, 197-199.)

Despite these issues of credibility, Ruchames reported that he was unable to conclude one way or the other whether any sexual harassment occurred. (See Ruchames Aff. ¶ 14.; letter to LoCosto, attached as Ex. F.) Ruchames stated that he was unable to make a conclusive finding, in part, based on the multiple reasons provided by Reeves for why Duviella would be motivated to lie about the sexual harassment; Duviella's failure to meet with Ruchames which would have enabled him to better assess the parties' credibility; and the fact that there were no witnesses to the alleged harassment. Thus, being left with a he/said, she/said situation, Ruchames was left weighing the credibility of Duviella and Reeves, in the absence of any corroborating evidence.

The exact inquiry for this Court in determining whether CSEDNY has satisfied the first prong of the Ellerth/Faragher test is whether CSEDNY provided a reasonable avenue of complaint for Duviella to air her grievances, and whether CSEDNY properly investigated those grievances.See Galarza v. Am. Home Assurance Co., 99 F. Supp.2d 251, 255 (E.D.N.Y. 2000); Brownell v. Roadway Package Sys., Inc, 185 F.R.D. 19, 25 (N.D.N.Y. 1999) (stating that once an employer defends itself "by relying upon the reasonableness of its response to the victim's allegations, the adequacy of the employer's investigation becomes critical to the issue of liability").

First, the Court notes that the fact that Duvuella did not complain of the sexual harassment until the day she quit her job did not permit CSEDNY the opportunity to prevent or correct the harassing conduct while it was occurring. See Mukaida v. Haw., 159 F. Supp.2d 1211, 1232 (D. Haw. 2001) (finding summary judgment proper on Ellerth/Faragher affirmative defense because plaintiff, having complained after the harassment ended, never gave the employer an opportunity to prevent the harassment). Despite this fact, however, when Duviella did report the alleged harassment, CSEDNY promptly commenced an investigation of the charges.

Moreover, CSEDNY's investigation was not ineffective. Upon first learning of the harassment on October 1, 1998, Frankel immediately contacted Duviella to discuss her allegations against Reeves, and Ruchames began his formal investigation. During the investigation, Ruchames interviewed Reeves on multiple occasions, as well as Duviella's supervisors and other co-workers. While never actually refuting Duviella's allegations, none of her supervisors or co-workers could confirm or corroborate Duviella's story. In fact, a few stated that they were shocked to hear about the allegations. (See investigation notes at 26, 28, attached to Ruchames Aff. as Ex. C.) Ruchames tried to meet with Duviella in-person on at least two occasions, and even offered that she bring her attorney to the meeting. However, Duviella canceled both meetings despite the fact that Ruchames assured her that CSEDNY took her complaints seriously and would not tolerate any retaliation. (See Ruchames Aff. Exs. D, E.) Duviella asserts that she canceled the meetings with Ruchames because she thought that Ruchames was biased and had already determined that Reeves was telling the truth. (See Duviella Aff. ¶¶ 22, 23, 25). Even if Duviella's belief was reasonable, it does not create a genuine issue of fact as to whether CSEDNY performed a proper investigation of the charges. See Galarza, 99 F. Supp. 2d at 256 (holding that plaintiff's reluctance to meet with employer during investigation may have been reasonable but does not create genuine issue of fact as to whether employer has met its burden under first prong of Ellerth/Faragher affirmative defense). The fact remains that Duviella failed to comply with Ruchames's persistent requests to meet with him as part of his investigation. Such refusal does not now entitle Duviella to challenge the results of the investigation. See O'Dell, 153 F. Supp. 2d at 389 ("Having refused to cooperate with [the employer's] investigation, thereby undermining its legitimacy, plaintiff cannot now claim that defendant's investigation and sexual harassment procedures were ineffective."); see also Roark v. Walker Mfg. Co., No. 95-CV-235, 1996 WL 663134, at *14 (N.D. Ind. Sept. 4, 1996) (plaintiff's disagreement with employer's investigation and conclusion that sexual harassment did not occur did not create issue of fact regarding first prong of Ellerth/Faragher defense because there was no dispute about adequacy of investigation or employer's response to complaints).

Thus, this Court finds that there is no genuine issue of fact with respect to the legitimacy of Ruchames's investigation, and CSEDNY has satisfied its burden under the first prong of the Ellerth/Faragher affirmative defense.

b) Second Prong of Ellerth/Faragher Affirmative Defense

Under the second prong of the affirmative defense, the defendant must show that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. The Second Circuit has employed a burden shifting analysis in determining whether an employee unreasonably failed to avail herself of complaint procedures. First, the employer has the burden of showing that the plaintiff failed to utilize employer complaint procedures. See Leopold, 230 F.3d at 246. The burden then shifts to the employee to show why she did not make use of those procedures. Id. An employee's "credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint" satisfies the employee's burden. Caridad, 191 F.3d at 295. To establish that the employee's fear was credible, there must be evidence that shows that the employer ignored or resisted similar complaints or has taken adverse actions against other employees in response to those complaints. Leopold, 239 F.3d at 246;Odell, 153 F. Supp. 2d at 390.

It is undisputed that if Duviella complained to anyone before she resigned from the Hempstead office, she complained only to Frankel and not to another supervisor, co-worker, or executive director. Having already determined that there is no genuine issue of fact with respect to whether Duviella actually notified Frankel of the alleged sexual harassment during these preliminary conversations, the Court finds that Duviella failed to avail herself of the complaint procedures before resigning. This conclusion is further supported by the fact that, had Duviella been concerned that her complaints were being ignored, she could have talked to other people, such as her other supervisor at the Hempstead office, Sharon Lovich, the Hempstead Site Director, Vilma Stade, or CSEDNY's Executive Director, Ruchames. Furthermore, after Duviella did complain of the sexual harassment on October 1, 1998, she refused to participate in the investigation. Thus, CSEDNY has satisfied its initial burden of production.

The burden then shifts to Duviella to come forward with evidence of why she did not avail herself of CSEDNY's procedures. Duviella asserts that she did not complain to Ruchames because she believed that he was "Reeves's protectorate" and therefore Reeves would be immune from charges of harassment. (See Mem. in Opp'n at 23.) She further asserts that Reeves told her that Ruchames was his "good friend" and his "favorite"; Ruchames allowed Reeves to berate Stade causing her to cry; and Ruchames allowed Reeves to "push clients through what amounted to a revolving door of drug treatment at CSEDNY." (Id. at 22 Duviella Dep. at 130, 198-01.) Even drawing all reasonable inferences in favor of Duviella, she has failed to show that she had a "credible fear" of an adverse employment action. At most, she feared that she would not be taken seriously in light of Ruchames alleged favoritism of Reeves. However, CSEDNY's sexual harassment policy does not require that a complainant talk to any one person in particular, or that a complaint must be made to the Executive Director. Thus, Duviella could have spoken to either Lovich or Stade, and Duviella provides no explanation whatsoever for not doing so. Additionally, Duviella has not presented any evidence indicating that CSEDNY ignored or resisted similar complaints or took adverse actions against other employees in response to similar complaints. See Leopold, 239 F.3d at 246. Moreover, when Duviella finally did complain, Reeves was disciplined by Ruchames and demoted, albeit for insubordination, and, therefore, Duviella cannot show that Ruchames did not take her comments seriously. For these reasons, the Court does not find that a reasonable jury would conclude that Duviella reasonably availed herself of any preventative or corrective opportunities.

Because there is no genuine issue of material fact as to whether CSEDNY has satisfied both prongs of the Ellerth/Faragher affirmative defense, CSEDNY is entitled to judgment as a matter of law on Duviella's Title VII hostile work environment claim.

2. CSEDNY's Liability Under NYSHRL and NYCHRL

As the standards for employer liability is practically the same under the human rights law and under pre-Ellerth/Faragher law, this Court will analyze the state and city law claims under the pre-Ellerth/Faragher standard.

In order to establish a prima facie case of employer liability when the harassment was perpetrated by a supervisor, the Second Circuit required a Title VII plaintiff to show: (a) the supervisor was at a sufficiently high level in the company; or (b) the supervisor used his or her actual or apparent authority to further the harassment, or was otherwise aided in accomplishing the harassment by the existence of the agency relationship; (c) the employer provided no reasonable avenue for complaint; or (d) the employer knew (or should have known) of the harassment but unreasonably failed to stop it. Sowemino, 43 F. Supp. 2d at 486 (citing Torres, 116 F.3d at 634 (citations omitted)). The analysis of NYSHRL and NYCHRL claims differs from the Torres analysis in that "an employer cannot be held liable for an employee's discriminatory acts [under state and city law] unless the employer became a party to it by encouraging, condoning, or approving it." Ponticelli, 16 F. Supp. 2d at 433 (quoting State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687, 487 N.E.2d 268, 269, 496 N.Y.S.2d 411, 412 (1995) (additional quotations omitted)).

An employer's calculated inaction in response to discriminatory conduct may, as readily as affirmative action, indicate condonation. An employer may disprove this condonation by a showing that the employer reasonably investigated a complaint of discriminatory conduct and took corrective action. Thus, employer liability under the HRL is very similar to the fourth prong of the Torres test, except that actual notice, rather than constructive notice, appears to be required under the HRL.

Id. at 433 (internal citations omitted); accord Sowemimo, 43 F. Supp. 2d at 486.

Duviella did not provide CSEDNY with actual notice until she faxed Frankel a letter of resignation on October 1, 1998, which included allegations of sexual harassment against Reeves. Therefore, under this stricter test, there is no question that CSEDNY was only obligated to respond to the charges after October 1, 1998. Once CSEDNY received Duviella's complaint, it immediately begin its investigation into the charges. Therefore, this Court must conclude as a matter of law that CSEDNY is entitled to summary judgment as there are no genuine issues of material fact as to whether CSEDNY condoned the discriminatory conduct by failing to investigate the charges.

III. Sexual Harassment Claims Against Reeves Under NYSHRL and NYCHRL

The defendants contend that the sexual harassment claims against Reeves under the state and city human rights laws must be dismissed as a matter of law because Reeves does not have an ownership interest in CSEDNY or any power to do more than carry out personnel decisions made by others, and, therefore, Reeves is not an "employer" within the meaning of New York Executive Law § 296(1) (See Mem. of Law at 19-20 (citingPatrowich v. Chemical Bank, 63 N.Y.2d 541, 541, 473 N.E.2d 11, 12, 483 N.Y.S.2d 659, 660 (1984) (holding that, in general, individuals may not be liable under the state human rights law)). In her opposition memorandum, Duviella does not challenge this contention, but argues that Reeves may be liable as an aider or abettor pursuant to Section 296(6). (See Mem. in Opp'n at 24-29.) Because Patrowich does not speak of "aider and abettor" liability or Section 296(6), Patrowich is inapposite to Duviella's claim. See Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F. Supp.2d 39, 65 (N.D.N.Y. 1999) ("Patrowich . . . offers little support for defendants argument because it neither considered nor cited the subdivision six aider and abettor language.").

See supra, n. 11.

New York Executive Law § 296(6) provides, "[i]t shall be unlawful discriminatory practice for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. Exec. Law § 296(6).

Duviella is not prejudiced by her failure to include the exact aider and abettor provisions of the NYSHRL in her complaint, because she alleges facts sufficient enough to sustain a claim under Section 296(6).See Hicks v. IBM, 44 F. Supp.2d 593, 600 n. 4 (S.D.N.Y. 1999) (citations omitted).

While some New York courts have refused to apply the aider and abettor language to expose individual employees to liability because "to do so would unduly broaden the scope of the HRL," Petrosky, 72 F. Supp. 2d at 65, the Second Circuit in Tomka v. Seiler Corp., expressly held that, unlike Title VII, New York State Human Rights Law § 296(6) imposes liability on individual employees under the aider and abettor provision of the statute, 66 F.3d 1295, 1317 (2d Cir. 1995). The Tomka Court held that a "defendant who actually participates in the conduct giving rise to the discrimination claim" may be personally liable under the NYSHRL. Id. Other New York courts have applied the Tomka rational, thereby creating a split in the New York courts over whether an individual may be liable under the aider and abettor provision of the state's human rights law.

See, e.g., Trovato v. Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) (rejecting Tomka); Foley v. Mobil Chem. Co., 170 Misc.2d 1, 11, 647 N.Y.S.2d 374, 380-81 (Sup.Ct. 1996) (same).

See, e.g., Murphy v. ERA United Reality, 251 A.D.2d 469, 472-73, 674 N.Y.S.2d 415, 417-18 (2d Dep't 1998) (affirming denial of summary judgment on claims that co-employees aided and abetted discrimination by their employer); Peck v. Sony Music Corp., 221 A.D.2d 157, 158, 632 N.Y.S.2d 963, 963 (1st Dep't 1995) (holding that Section 296(6) permits individual liability for one who aids and abets discriminatory conduct).

The defendants here would like this Court to follow the New York courts which have declined to follow Tomka, arguing that the state courts are in a better position to evaluate the applicability of a state statute. (See Mem. of Law at 20, 32-34.) However, because Tomka is the current law in this Circuit and therefore binding on lower federal courts, see Kojak v. Jenkins, No. 98-CV-4412, 1999 WL 244098, at *7 (S.D.N.Y. Apr. 26, 1999), this Court will follow the majority of federal cases which have held that Tomka is controlling. See, e.g., Petrosky, 72 F. Supp. 2d at 65; Salvatore v. KLM, No. 98-CV-2450, 1999 WL 796172, at *8 (S.D.N.Y. Sept. 30, 1999); Oliver v. Gen. Nutrition Ctr., No. 97-CV-6800, 1999 WL 435208, at *3 (S.D.N.Y. June 25, 1999); Kojak, 1999 WL 244098, at *6-7;Sowemimo, 43 F. Supp. 2d at 487; Bascomb v. Smith Barney Inc., No. 96-CV-8747, 1999 WL 20853, at *5 (S.D.N.Y. Jan. 15, 1999); Dewitt, 48 F. Supp. 2d at 293. Moreover, this Court rejects the defendants' request for the additional reason that the New York Court of Appeals has not yet decided the precise issue of aider and abettor liability under the NYSHRL. See Hicks, 44 F. Supp. 2d at 599 ("The New York Court of Appeals has yet to address the issue [of aider and abettor liability] with a definitive ruling.")

Alternatively, the defendants suggest that the Court should decline to exercise supplemental jurisdiction over Duviella's state law claims, which would permit the issue of aider and abettor liability to be resolved in the state court. (See Mem. of Law at 32-35 (citingPonticelli, 16 F. Supp. 2d at 439-40)). In Ponticelli, the Court denied summary judgment with respect to the federal claims, and therefore declined to exercise supplemental jurisdiction on the state human rights law claims against the individual defendant, because of the split among the New York courts and the risk of confusion on liability and remedies.Ponticelli, 16 F. Supp. 2d at 440. However, in light of the Second Circuit's express holding in Tomka, the majority of courts have reviewed the state law claims. See supra at n. 14. Given the strong interest for resolving related claims in one proceeding, and the non-existent risk of jury confusion in this case because no federal claims will be left for a jury's review, the Court rejects the defendants request, and exercises its supplemental jurisdiction to review the state and city claims.

Here, Duviella alleges that Reeves was the sole perpetrator of the sexual harassment; therefore, he may be liable under the NYSHRL for "actually participat[ing]" in the discriminatory conduct. Tomka, 6 F.3d at 1317. Relying on Hicks, the defendants argue that Reeves cannot be liable because "the primary actor cannot be an aider and abettor of his own actions." 44 F. Supp. 2 d at 600. But see Salvatore, 1999 WL 796172, at *8 (refusing to dismiss the section 296(6) claim against the individual defendant for the reason that the "defendant was the sole. . . employee alleged to have engaged in the discriminatory conduct").

Without having to reach the question of whether the primary actor of the discrimination can be liable under the aider and abettor provision of the human rights law, this Court must dismiss Duviella's claim in any event because she can not establish liability against CSEDNY. Under New York law, "liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor." DeWitt, 48 F. Supp. 2d at 293 (citingMurphy, 674 N.Y.S. 2d at 417)). Because this Court has determined that there is no genuine issue of material fact with respect to CSEDNY's liability for the sexual harassment allegedly caused by Reeves, Duviella cannot prevail on her state law claim against Reeves. See Sowemimo, 43 F. Supp. 2d at 490 (granting summary judgment on state law claim against perpetrator of racial comments because liability not found against employer). Therefore, the state law claim must be dismissed. IV. Retaliation Claim

Because the wording of the provisions regarding aider and abettor liability in the NYCHRL and the NYSHRL are identical, the Court's discussion of the NYSHRL claim and the dismissal thereof, applies with equal force to Duviella's NYCHRL claim. See DeWitt, 48 F. Supp. 2d at 293 n. 10 (dismissing NYSHRL and NYCHRL claims because the wording of the two aider and abettor provisions are identical). Accordingly, the NYCHRL claim is also dismissed.

Title VII prohibits an employer from retaliating against an employee for participation in proceedings aimed to combat discrimination. See 42 U.S.C. § 2000e-3(a). retaliation claims are tested under the three-step burden shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Reed, 95 F.3d at 1177;Tomka, 66 F.3d at 1308. The plaintiff has the initial burden to make out a prima facie case of retaliation. Tomka, 66 F.3d at 1308. To establish a prima facie case of retaliation, a plaintiff must establish that: (1) she engaged in a statutorily protected activity; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took an adverse employment action against the plaintiff and (iv) a causal connection exists between the plaintiff's protected activity and the adverse employment action. Simmons v. N.Y.C. Health Hosp. Corp., No. 99-CV-3 181, 2001 WL 483675, at *7 (E.D.N.Y. Mar. 30, 2001) (citingCosgrove v. Sears Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993)).

As noted above, the same standards apply to employment discrimination claims brought under Title VII, New York Executive Law § 296, and the Administrative Code of the City of New York. See Torres, 116 F.3d at 629 n. 1; Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Jalal v. Columbia Univ., 4 F. Supp.2d 224, 232 n. 10 (S.D.N Y 1998). Accordingly, plaintiff's retaliation claims under the state and city human rights laws and Title VII are analyzed together.See McCoy, 131 F. Supp. 2d at 370 (analyzing state, city, and federal retaliation claims under same standard).

After plaintiff makes out a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. If the employer meets this burden, the plaintiff must adduce evidence "sufficient to raise a fact issue" as to whether the employer's reason was "merely a pretext" for impermissible retaliation. Tomka, 66 F.3d at 1309; Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998) (applying burden shifting rules in the context of motion for summary judgment).

Duviella has satisfied the first and second elements of the prima facie case because she complained of sexual harassment to Frankel in writing on October 1, 1998. This act constitutes a protected activity that was known to the employer. See McCoy, 131 F. Supp. 2d at 375 (citing Tomka, 66 F.3d at 1308 and Kotcher, 957 F.2d at 65) (internal complaints to company management about sexual harassment constitute protected activity). Duviella has also satisfied the third element of the prima facie case in that her termination in June of 1999 constitutes an adverse employment action. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (stating that termination from employment is a "materially adverse" change which constitutes an adverse employment action).

Because Duviella specifically complained of the harassment in writing, it is not necessary to determine whether Duviella's non-specific complaints to Frankel about Reeves prior to October 1st also constitute protected activities known to the employer.

Duviella' s claim loses bite however with respect to the fourth element of the prima facie case, which requires the plaintiff to show that a causal connection exists between the protected activity and the adverse employment action. "A causal connection can be demonstrated indirectly by showing that the protected activity was followed closely in time by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Stephens v. State Univ. of N.Y. at Buffalo, 11 F. Supp.2d 242, 250 (W.D.N.Y. 1998) (citing DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)).

Here, Duviella's discharge did not follow closely in time to when she engaged in a protected activity, as it occurred more than eight months after she complained of the sexual harassment. Moreover, Duviella does not allege or provide any evidence of disparate treatment of fellow employees engaging in similar conduct, or any direct evidence of retaliatory animus directed against her by the defendants. Instead, Duviella claims that CSEDNY concocted a scheme to get rid of her, starting with the elimination of the seniority provision in the Employee Manual in March of 1999, to reorganizing the staff positions at the Queens office, to denying her any of the new part-time staff positions, and culminating in her layoff in June of 1999. Drawing all inferences in favor of the plaintiff, this Court will assume based on these allegations that Duviella has established a causal connection and therefore has made out her prima facie case of retaliatory discharge.

The burden then shifts to the defendants to show a legitimate non-discriminatory reason for the discharge. See, Tomka, 66 F.3d at 1308. Defendants have satisfied their burden by alleging that CSEDNY terminated Duviella because of serious financial problems in the organization. In response, Duviella argues that the CSEDNY's alleged budgetary crisis was merely a pretext for her termination. In support of her contention, Duviella alleges that genuine issues of fact exist as to whether: (1) the removal of the seniority provision was really a means to avoid keeping her as an employee; (2) the reorganization of staff positions at the Queens office was really designed to get rid of Duviella because the plan created two part-time positions instead of one; (3) Frankel's wavering on why Villani was chosen for one of the part-time staff positions shows that Frankel's real motivation was to get rid of Duviella even though Duviella was more qualified; (4) and CSEDNY's rehiring of Ava Caldwell after her disciplinary leave shows that the organization did not want to keep Duviella on staft (See Mem. in Opp'n at 32-38.)

The defendants have provided ample objective evidence showing that CSEDNY was experiencing serious financial difficulties in 1998 and 1999. (See Ruchames Aff. and Exs. attached thereto.) In addition, the defendants have shown that CSEDNY consistently apprised employees, including Duviella, of the organization's budgetary concerns. (See Ruchames Aff. Ex. K, L, N, O) Duviella was told when she was first hired in the Queens office that her position could be modified as a result of CSEDNY's funding, and she was informed on three separate occasions that her job at the Hempstead office was contingent on her performance and CSEDNY's funding. (See Frankel Aff. Ex. A; Gilbride Aff. Exs. C, D, F.)

Duviella's assertion that the elimination of the seniority clause and implementation of a recovery and reorganization plan to handle CSEDNY's financial concerns was merely a pretext for discrimination is not persuasive. CSEDNY took these steps in March of 1999, more than five months after Duviella complained of sexual harassment. If CSEDNY's true intention was to terminate Duviella in retaliation for these complaints, it seems that it would not have waited more than five months to begin its "scheme" to oust her from the organization. The fact remains that Duviella resigned from her position at the Hempstead office, and stayed on as a part-time therapist at CSEDNY's Queen's office for more than eight months before her eventual layoff.

Moreover, while Duviella argues that she was denied both part-time positions in the Queens office despite her better qualifications, the only reason she offers for this proposition is the fact that she speaks Spanish. She does not claim however that the ability to speak Spanish was a necessary skill for leading CSEDNY groups nor does she allege that Villani and Decker did not have this skill. Furthermore, Duviella urges the Court to question Frankel's motivation for hiring Villani based on Frankel's inconsistent responses in her deposition testimony regarding the reason why Villani was hired. Duviella bases her argument on the following colloquy:

Q: Did [Villani] have more experience than Ms. Duviella?

A: She did it better.

Q: That was not my question. Did she have more experience?

A: Yes.

Q: How much more experience did she have?

A: She worked in another agency that did educational groups, so I can't answer how much more experience. Our agency [sic] she had less actual time in, but she had prior experience at running groups.

Q: Do you recall what agency she gained that experience?

A: No.

Q: And you don't know how much experience she gained at that prior agency?

A: No.

Q: How do you know she had experience in psycho-educational groups at the prior agency?

A: I believe it really didn't matter because when I observed her, she led it well, she led the group well.

Q: You testified that she had prior experience doing those types of groups.

A: I don't think that that is that relevant. You can have experience for twenty years but not be good at something.

Q: I want to concentrate right now on who you believe had more experience. My question to you is, how do you know she had more experience in psycho-educational groups?

A: I don't know.

(Frankel Dep. at 146-47.)

Although Duviella argues that Frankel's responses create a genuine issue of material fact as to Frankel's motivation for hiring Villani instead of Duviella, the Court does not agree. Based on the above colloquy, it is clear that Frankel hired Villani instead of Duviella, at least in part, based on her observations of the applicant's ability to facilitate group therapy sessions. Frankel maintained this position throughout her deposition. (Id.; see also Frankel Aff. ¶¶ 16-17.) This Court also disagrees with Duviella's interpretation of the above testimony. It is not clear whether Frankel controverted her initial statement that Villani had more prior experience or whether she simply could not explain why she had this belief. In any event, even if Frankel had changed her testimony, this isolated incident does not create a genuine issue for trial. The defendants have come forward with substantial evidence that the organization had to restructure its staff positions to deal with its financial crisis. Duviella was in no way deterred from applying for these new positions. In fact, even after she was not offered either position in the Queens office, she was still encouraged to apply for other positions in the organization. Thus, Duviella has failed to show that Frankel's motivations for hiring Villani were suspect.

Moreover, Duviella testified at her own deposition that she did not have the required parenting group skills that were necessary for the six-hour position. (See Duviella Dep. at 246-47.)

Duviella does not challenge Frankel's hiring of Decker for the twenty-hour position.

Finally, the defendants explain that Caldwell was reinstated to her old position because CSEDNY was obligated to do so under the FMLA. They also contend that CSEDNY needed group therapy leaders and Caldwell was "excellent" at leading groups. (See Defs. Reply Br. at 10.)Thus, the defendants have offered a legitimate non-discriminatory reason for rehiring Caldwell, and Duviella has not shown that this decision was merely a pretext for discrimination.

For the Court to deny summary judgment on Duviella's retaliation claim, it would have to assume that a jury would find that CSEDNY concocted a scheme over the course of several months for the purposes of terminating Duviella. This scheme would include distributing false memorandum about CSEDNY's fiscal problems, eliminating provisions in its Employee Manual unnecessarily, fabricating a reorganization of staff positions, and voluntarily reducing one supervisor's salary, all for the goal of getting rid of Duviella. No reasonable jury could conclude that such a plan was created for this purpose, and therefore summary judgment must be granted on Duviella's retaliatory discharge claim.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted, and Duviella's claims are dismissed in their entirety.

Duviella v. Counseling Service of the E.D. of New York

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Duviella v. Counseling Service of the E.D. of New York

Duviella v. Counseling Service of the E.D. of New York

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Duviella v. Counseling Service of the E.D. of New York

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Duviella v. Counseling Service of the E.D. of New York

Duviella v. Counseling Service of the E.D. of New York

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