Heskin v. Insite Advertising, Inc.

Full title: KAROLYN HESKIN, Plaintiff, v. INSITE ADVERTISING, INC., BATES ADVERTISING…

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

Date published: Feb 22, 2005

03 Civ. 2508 (GBD)(AJP) (S.D.N.Y. Feb. 22, 2005)

Opinion

03 Civ. 2508 (GBD)(AJP).

February 22, 2005

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable George B. Daniels, United States District Judge:

In this diversity action, plaintiff Karolyn Heskin asserts claims under the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL") and state common law against her former employer, InSite Advertising, Inc., the company that hired InSite, Bates Advertising USA, Inc., d/b/a 141 Communicator ("141"), and a 141 employee, Scott Stern, alleging quid pro quo sexual harassment against all three defendants and also alleging tortious interference with prospective contractual relations against 141 and Stern. (See generally Dkt. No. 1: Compl.) Presently before the Court are defendants' motions for summary judgment. (See Dkt. Nos. 22-28, 31-33, 35-38.)

For the reasons set forth below, InSite's summary judgment motion should be DENIED, 141's summary judgment motion should be GRANTED, and Stern's summary judgment motion should be DENIED on the NYSHRL and NYCHRL aiding and abetting claims and on the tortious interference with prospective contractual relations claim and GRANTED on the direct NYSHRL and NYCHRL claims. Accordingly, the joint pretrial order is due by March 21, 2005, and this case is considered trial ready before Judge Daniels on 24 hours notice thereafter.

FACTS

The Defendants

Defendant Bates Advertising USA, Inc. is an "advertising and marketing communications company," and 141 Communicator is a division of Bates.¹ (Dkt. No. 25: Defs. Rule 56.1 Stmt. ¶ 1; Dkt. No. 33: Heskin Rule 56.1 Stmt. ¶ 1.)² Defendant Scott Stern is a Senior Vice President of 141. (Defs. Heskin Rule 56.1 Stmts. ¶ 3.)

1 141 and Bates will be referred to herein as "141."

2 Even though defendants have filed separate summary judgment motions, they submitted a joint statement of undisputed facts pursuant to Local Rule 56.1. (Dkt. No. 25.)

Defendant InSite Advertising, Inc. is an advertising agency that "places advertisements in bars, restaurants, and nightclubs throughout the country and executes both on-premise and off-premise promotions." (Defs. Heskin Rule 56.1 Stmts. ¶ 11.) OnSite Promotions is a division of InSite and performs event marketing as well as field networking programs.³ (Defs. Heskin Rule 56.1 Stmts. ¶ 12.) Marc Miller is InSite's president and Gregory Leibert is its Chief Operating Officer. (Defs. Heskin Rule 56.1 Stmts. ¶ 13.) Neither Miller nor Leibert are sued in this action. 141 — OnSite Relationship

3 InSite and OnSite will be referred to herein as "OnSite," except in reference to the officers of InSite.

In 2001, 141 entered into an agreement with its client, Brown Williamson Tobacco ("BW"), to "create, manage, and maintain a network of field personnel to provide marketing and promotional services to BW." (Dkt. No. 25: Defs. Rule 56.1 Stmt. ¶ 19; Dkt. No. 33: Heskin Rule 56.1 Stmt. ¶ 19.) That program was called "HoReCa," for "hotels, restaurants and cafes." (Defs. Heskin Rule 56.1 Stmts. ¶ 15.) Its purpose was to establish a "nationwide network to distribute such items as napkins, ashtrays, coasters, etc. with BW's brand names on them to bars, nightclubs, hotels, restaurants and cafes and ensure that the items were being utilized and that the brand names were prominently displayed." (Defs. Heskin Rule 56.1 Stmts. ¶ 15.) The BW-141 HoReCa agreement was to expire on December 31, 2002, unless extended by BW. (Defs. Heskin Rule 56.1 Stmts. ¶ 19; Ex. 8: 11/9/01 BW-141 Letter of Intent ¶ E.)⁴

4 Numbered exhibits are the exhibits to Defendants' Rule 56.1 Statement; lettered exhibits are the exhibits to Heskin's Rule 56.1 Statement.

Pursuant to the BW-141 HoReCa agreement, 141 entered into a "Teaming Agreement" with OnSite for OnSite to "provide the field staff network personnel necessary" for 141's performance under the BW contract, as 141's subcontractor. (Defs. Rule 56.1 Stmt. ¶ 20; Ex. 8: 11/9/01 BW-141 Letter of Intent ¶ C.) Specifically, the 141-OnSite Teaming Agreement provided:

141 shall use OnSite as the primary provider of promotional event marketing services under the BW Contract and LOA [Letter of Agreement], and shall use all commercially reasonable efforts to refer to OnSite all such business. OnSite shall report into the 141 Account Management team on the Client business, and 141 and OnSite shall work jointly, along with Communicator, Inc., [a company affiliated with 141] in determining the content of any proposal or other response to the Client with respect to promotional event marketing services under the BW Contract and LOA; provided, however, that in the event of a disagreement between the parties regarding any such proposal or other response, 141 as the prime contractor shall make a determination as to the content of the proposal or other response.

(Ex. 8: 10/29/01 141-OnSite Teaming Agreement ¶ 3A.) OnSite was responsible for providing "promotional event marketing services in support of 141 in performing the BW Contract and LOA as requested by 141 from time to time." (Ex. 8: 10/29/01 141-OnSite Teaming Agreement ¶ 3B.)

OnSite was responsible to staff and manage its own team to carry out the HoReCa services, providing notice to 141 of any proposed changes in key personnel, and replacing any personnel it deemed necessary with people "of comparable expertise and quality." (Id. ¶ 3C.) The "key personnel" referred to were "Marc Miller," "Local Market Managers, and the Network Director." (Id.)

After the Teaming Agreement was entered into, in addition to the HoReCa program, 141 awarded to OnSite event marketing for BW's "Spades Slam" and "Test Drive" programs and Miller Brewing Company's "Diablo" and "Citrona" programs. (Defs. Heskin Rule 56.1 Stmts. ¶¶ 23, 45; Newman Aff. ¶ 16; Ex. 2: Stern Dep. at 61-62; Ex. 4: Miller Dep. at 44, 50; Ex. 5: Miller Aff. ¶ 15; Heskin Rule 56.1 Stmt. ¶ 115.)

The Teaming Agreement expressly provided that 141 was the "prime contractor" and OnSite was the "subcontractor" or "team member" of the BW Contract. (Ex. 8: 10/29/01 141-OnSite Teaming Agreement ¶ 2A.) Further, the Teaming Agreement was not intended to "constitute, create or give effect to a joint venture, partnership, agency arrangement or formal business entity of any kind." (Id. ¶ 2B.) 141 paid OnSite for its HoReCa services through a monthly retainer funded by BW as part of the BW-141 agreement. (Id. ¶ 4A; Ex. 8: 11/9/01 BW-141 Letter of Intent ¶ F1.)

According to defendants, 141 and OnSite were two separate companies, with no common ownership, bank accounts, or finances. (Defs. Rule 56.1 Stmt. ¶ 22; Ex. 1: Newman Aff. ¶¶ 14-15.) 141 and OnSite each had their own employees, offices, and payroll and, according to defendants, 141 did not exercise control over OnSite's labor relations. (Defs. Rule 56.1 Stmt. ¶ 22; Newman Aff. ¶ 15.) On the other hand, Heskin claims that the 141-OnSite relationship was "more than merely a subcontractor relationship" (Heskin Rule 56.1 Stmt. ¶¶ 20-21) and that the two companies were not wholly separate entities (id. ¶ 22). Instead, according to Heskin, she was told by Marc Miller that OnSite had a "business partnership" with 141 pursuant to which OnSite would "perform event marketing work for 141's clients." (Id. ¶ 142; Ex. D: Heskin Aff. ¶ 28.)⁵ Karolyn Heskin's Role at OnSite

5 Heskin's proof that 141 and OnSite were not separate entities and that 141 controlled certain OnSite employees is that, in or about September 2002, Marc Miller told Heskin that 141 and OnSite would be merging their event marketing business and as a result her immediate OnSite supervisor, Greg Leibert, would report to 141's Stern. (Heskin Rule 56.1 Stmt. ¶ 142; Heskin Aff. ¶ 28.) Also in September 2002, Heskin was told to print up 141 business cards for herself and her staff members and "to hold herself out to clients as a 141 employee." (Heskin Rule 56.1 Stmt. ¶ 144; Ex. G: 9/13 19/02 Stern-Heskin Emails.) Defendants deny or explain this. (Defs. Rule 56.1 Stmt. ¶¶ 142-44; see page ___ below for further discussion of the proposed 141-OnSite merger that never occurred.)

Once the Teaming Agreement was entered into, OnSite began its search for a Network Director, the position created to oversee the local market managers in the HoReCa program. (Dkt. No. 25: Defs. Rule 56.1 Stmt. ¶ 24; Ex. 4: Miller Dep. at 41-42, 45-46; Ex. 5: Miller Aff. ¶ 9; Ex. 8: Teaming Agreement ¶ 3C.) InSite President Marc Miller asked 141's Stern if Stern knew anyone who would be "appropriate for the Network Director position." (Defs. Heskin Rule 56.1 Stmts. ¶ 25; Miller Dep. at 39-40; Ex. 2: Stern Dep. at 54.) Miller wanted to create an organizational structure that 141 would be happy with and he therefore made sure to find out who Stern thought could be a good candidate for Network Director. (Heskin Rule 56.1 Stmt. ¶ 28; Miller Dep. at 39-41.) Stern gave Miller two or three names of possible candidates, including plaintiff Karolyn Heskin. (Defs. Heskin Rule 56.1 Stmts. ¶ 26; Miller Dep. at 40-41, 65; Stern Dep. at 54.) Stern knew Heskin because they previously had worked together at two other companies, at one of which Stern had recommended Heskin for the job. (Defs. Heskin Rule 56.1 Stmts. ¶ 27; Ex. 7: Heskin Dep. at 284-87.) This was the extent of Stern's involvement in OnSite's hiring process. (Defs. Heskin Rule 56.1 Stmts. ¶¶ 28-29.)

Miller contacted Heskin about the position and both Miller and Greg Leibert, InSite's Chief Operating Officer, interviewed Heskin. (Defs. Heskin Rule 56.1 Stmts. ¶ 30; Ex. 7: Heskin Dep. at 17-22.) In mid-October 2001, InSite hired Heskin. (Defs. Rule 56.1 Stmt. ¶ 31; see Heskin Rle 56.1 Stmt. ¶ 31; Miller Dep. at 41; Heskin Dep. at 23; Ex. 9: 10/12/01 Marc Miller Job Offer Email to Heskin.)

It is undisputed that Heskin's salary was funded entirely by the HoReCa Network. (Miller Dep. at 42, 51; Defs. Heskin Rule 56.1 Stmts. ¶ 41; Ex. 2: Stern Dep. at 66-67.) Heskin's starting salary was $90,000 (plus a $15,000 starting bonus), which was "raised" to a salary of $105,000 in November 2002. (Heskin Rule 56.1 Stmt. ¶ 109; Ex. 7: Heskin Dep. a 30-31, 33.)⁶ According to Miller, the original salary ($90,000) had been approved in the HoReCa budget, and the money for the increased salary ($105,000) that Heskin requested had to be approved by BW through 141. (Ex. 4: Miller Dep. at 73.)

6 Defendants deny that Heskin received a raise, asserting that Heskin's original salary was $105,000. (See Dkt. No. 37: InSite Rule 56.1 Response Stmt. ¶ 109; see also Ex. 7: Heskin Dep. at 30, 33.) The offer emails reflected the offer of a "base" salary of $90,000 plus "a $15,000 signing bonus." (Ex. 9: 10/12/01 Miller Email Offer to Heskin.)

OnSite asserts that it hired Heskin as Network Director, which meant her role was to run HoReCa. (Defs. Rule 56.1 Stmt. ¶¶ 31, 40; Miller Dep. at 41-42; Ex. 9: 10/12 15/01 Miller Offer Emails to Heskin.) Heskin's official title was Network Vice President. (Defs. Rule 56.1 Stmt. ¶ 40; Ex. 7: Heskin Dep at 28; Ex. 9: 10/12 15/01 Emails to Heskin.) Miller testified that in his conversations with Heskin prior to hiring her, he spoke about "a possibility that other opportunities could come up" just as the BW opportunity had come up, but that "her responsibility was for her to run the HoReCa Network." (Ex. 4: Miller Dep. at 42.)

Heskin, however, says she was hired "to head OnSite Promotions." (Heskin Rule 56.1 Stmt. ¶ 31.) Heskin says she was not only hired to oversee HoReCa but also to oversee the development and execution of event marketing for other OnSite clients. (Heskin Rule 56.1 Stmt. ¶ 108; Ex. D: Heskin Aff. ¶ 5.) Heskin asserts that she was hired to "build an event marketing business for InSite." (Heskin Rule 56.1 Stmt. ¶ 108; Heskin Aff. ¶ 5.) As to the HoReCa program, Heskin says that although the original HoReCa network did not perform event marketing, she was brought in to develop the program into a "network capable of staging promotional events at the business venues within the network." (Heskin Rule 56.1 Stmt. ¶ 112; Heskin Aff. ¶ 9.)

Defendants and Heskin agree that Heskin worked on certain event marketing programs in addition to her HoReCa responsibilities. (Defs. Heskin Rule 56.1 Stmts. ¶ 43.) Heskin's role in these event-marketing assignments was to hire and manage staff, and oversee the events in order to make sure the client was satisfied. (Defs. Heskin Rule 56.1 Stmts. ¶ 44; Ex. 7: Heskin Dep. at 316.)⁷

7 Defendants claim that these were additional projects that came from 141, and were not part of the position Heskin had been originally hired to direct, but that some of the HoReCa employees were used on these programs and therefore were under Heskin's supervision. (Defs. Rule 56.1 Stmt. ¶ 43; Ex. 7: Heskin Dep. at 278-79; Ex. 6: Leibert Dep. at 47-50; see Miller Aff. ¶ 14.)

The employment forms that Heskin completed upon being hired were InSite forms. (Defs. Heskin Rule 56.1 Stmts. ¶ 33; Ex. 10; Ex. 11: InSite Incentive Stock Option Agreement.) Heskin received her W-2s for 2001 and 2002 from InSite. (Ex. 12: 2001 2002 W-2 Forms.)

Defendants claim that Heskin, along with anyone hired to work on HoReCa, was supervised by InSite only. (Defs. Rule 56.1 Stmt. ¶ 34; Ex. 5: Miller Aff. ¶ 16.) Heskin was supervised first by Miller, then by Leibert. (Defs. Rule 56.1 Stmt. ¶ 34; Ex. 7: Heskin Dep. at 34-35; Ex. 4: Miller Dep. at 79.) Defendants assert that Heskin was "never supervised by 141 personnel." (Defs. Rule 56.1 Stmt. ¶ 34; Ex. 5: Miller Aff. ¶ 12.) Heskin, however, asserts that since most of OnSite's event marketing work was performed for 141's clients, on those programs, she reported to 141's Stern. (Heskin Rule 56.1 Stmt. ¶ 110; Heskin Aff. ¶ 7.) Heskin also asserts that in or about September 2002, Miller told her that OnSite was merging with 141 and that InSite's Leibert, to whom Heskin reported, thereafter would report to Stern at 141. (Heskin Rule 56.1 Stmt. ¶¶ 34-36, 142; Heskin Aff. ¶ 28.)

Heskin's Job Performance

Heskin claims that BW was pleased with her HoReCa work (Heskin Rule 56.1 Stmt. ¶ 114; Ex. A: Miller Dep. at 91-95) and that any criticisms OnSite received were directed at BW's Spades Program, in which she played a lesser role, sharing responsibility with Leibert (Heskin Rule 56.1 Stmt. ¶¶ 46, 115, 118; Dkt. No. 37: InSite Rule 56.1 Response Stmt. ¶ 118; Heskin Aff. ¶ 14). Heskin also asserts that Miller Brewing was happy with the event marketing programs she managed. (Heskin Rule 56.1 Stmt. ¶ 113; Heskin Aff. ¶¶ 10, 11; Miller Dep. at 94-95; Ex. E: 11/26/02 email.) Further, Heskin asserts that prior to the November 15, 2002 Atlanta event described below, she received a previously-agreed upon salary increase from $90,000 to $105,000. (Heskin Rule 56.1 Stmt. ¶ 143; Heskin Aff. ¶ 29.)⁸

8 Defendants argue that this was not a salary increase but just a difference in payment method: in her second year of employment, Heskin received a salary of $105,000 instead of the $90,000 plus $15,000 bonus she had received in her first year of employment. (OnSite Rule 56.1 Response Stmt. ¶ 143; see also page 6 fn.6 above.)

Defendants, on the other hand, claim that beginning in mid-2002, BW and 141 expressed dissatisfaction with OnSite's event marketing work. (Defs. Rule 56.1 Stmt. ¶¶ 46-47; Ex. 2: Stern Dep. at 81-88, 118-19; Ex. 4: Miller Dep. at 110-11; Ex. 1: Newman Aff. ¶¶ 17-20.) In August or September 2002, Stern relayed to Marc Miller BW's desire not to have Heskin attend future HoReCa meetings because BW "didn't appreciate her juvenile responses at this meeting and her lack of understanding" of HoReCa. (Ex. 2: Stern Dep. at 81-84.) Stern also complained to Miller about Heskin's performance at the Diablo program. (Ex. 2: Stern Dept. at 102.) Heskin had been told to identify herself as a "member of the agency" at the Diablo event. (Id.) Instead she identified herself as a member of OnSite and told Miller Brewing she was fully responsible for the Diablo program's development. (Id.) Stern clarified that it was not that Heskin or her team were supposed to claim to be 141 employees, but that there had been a decision for the two companies to present themselves for that night as "the agency" because Miller Brewing had not yet been told that 141 had "outsourced the business" to OnSite. (Id. at 102-03, 105.)

Miller testified that Stern told him in June 2002 that BW was dissatisfied with Heskin's execution of event marketing, specifically Spades, and that Stern recommended something be done to "instill confidence in the client." (Ex. 4: Miller Dep. at 111.) Miller testified that Stern never said that he did not want Heskin to continue to work on any 141 projects. (Id.) Lastly, Stern complained to Miller about Heskin's conduct at the November 15, 2002 Atlanta Spades event. (Ex. 2: Stern Dep. at 106-07;see pages 16-17 below.)

The Future of HoReCa and the 141/OnSite Relationship

In the summer and early fall of 2002, OnSite and 141 discussed a possible merger. (Defs. Heskin Rule 56.1 Stmts. ¶ 49.) Pursuant to these merger discussions, prior to November 4, 2002, Marc Miller created a proposed organizational chart showing who would be a part of the merged company, which he reviewed with 141's Stern. (Defs. Rule 56.1 Stmt. ¶ 50; Ex. 4: Miller Dep. at 126-27; Ex. 2: Stern Dep. at 131-32; Ex. 13: 11/4/02 Stern Email 141/OnSite Organizational Chart.) Not only was Heskin not included on the organizational chart but Stern's email specifically stated: "Please note: K. Heskin will no longer be employed by OnSite under this proposal." (Ex. 13: 11/4/02 Stern Email Org. Chart.) Heskin points out that while defendants use this as proof that the decision to fire her had been made before November 15, 2002, this chart was a proposal for a merger that never occurred. (Heskin Rule 56.1 Stmt. ¶ 50.)

During the late summer of 2002, BW decided not to renew its contract with 141 for the HoReCa program and instead decided to bring it in-house as of January 1, 2003. (Defs. Heskin Rule 56.1 Stmts. ¶ 51.) 141 informed OnSite of this development by October 25, 2002. (Id.) Heskin was informed sometime before November 15, 2002 that OnSite would be losing HoReCa. (Defs. Heskin Rule 56.1 Stmts. ¶ 52; Ex. 7: Heskin Dep. at 67-71.)⁹ Heskin claims that Miller assured her that the loss of HoReCa would not mean the loss of her job at OnSite because there would be other projects for her to work on. (Heskin Rule 56.1 Stmt ¶ 121; Ex. D: Heskin Aff. ¶ 17.) According to Miller, he made the decision to fire Heskin in October 2002 when InSite found out that BW was taking HoReCa in-house, since her salary was being paid by BW. (Defs. Rule 56.1 Stmt. ¶ 98: Ex. 4: Miller Dep. at 102-04.)

9 The rest of the OnSite staff was not told until early December 2002 so as not to hurt morale for the events that needed to be completed by year end. (Defs. Heskin Rule 56.1 Stmts. ¶ 53; Ex. 7: Heskin Dep. at 68; Ex. 4: Miller Dep. at 105; Ex. 15: 10/31/02 Miller to Stern Email.)

During the fall of 2002, 141 decided to bring all of its event marketing in-house as of January 1, 2003, which meant it then would no longer use OnSite's services. (Defs. Rule 56.1 Stmt. ¶ 55; Ex.1: Newman Aff. ¶ 27.) OnSite claims that it determined that if it could not replace the lost business, it would have to lay-off Heskin along with the rest of the HoReCa staff because it would no longer have a source for their salary. (Defs. Rule 56.1 Stmt. ¶ 56; Ex. 5: Miller Aff. ¶ 20.) Heskin adamantly denies these statements, contending that she had been told by Miller that she would continue to head the event marketing business after the 141-OnSite merger, and that Miller's decision to fire her was made after "Stern demanded she be removed from the account," after November 15, 2002. (Heskin Rule 56.1 Stmt. ¶ 55-56, 127-37; Ex. D: Heskin Aff. ¶ 29.) November 15, 2002 and Surrounding Events

During November 2002, OnSite was still involved with the execution of BW's "Spades Slam" program. (Defs. Heskin Rule 56.1 Stmts. ¶ 57; Ex. 3: Stern Aff. ¶ 13.) Heskin was the event manager responsible for the Spades event in Atlanta on November 15, 2002. (Defs. Heskin Rule 56.1 Stmts. ¶ 59.) Stern's responsibility was to evaluate execution of the Spades events, so he attended these events. (Defs. Heskin Rule 56.1 Stmts. ¶ 60.) According to Stern, there were several problems with the Atlanta event that he pointed out to Heskin, who was his contact person for the event. (Defs. Rule 56.1 Stmt. ¶ 59-62; Ex. 2: Stern Dep. at 142-45; Ex. 7: Heskin Dep. at 335-45; Ex. 17: 11/17 18/02 Heskin to Miller Emails.) Heskin acknowledges that there were problems with the event, but claims that they were minor issues which she had already taken steps to rectify with her field manager, that overall the event was a success and that the BW representatives at the event were pleased. (Heskin Rule 56.1 Stmt. ¶¶ 61, 123; Ex. 17: 11/17-18/02 Heskin to Miller Emails; Ex. D: Heskin Aff. ¶ 19.)¹⁰

10 Stern said that when he confronted Heskin with the problems, Heskin was "very defensive, argumentative and not willing to change those issues after [he] pointed them out." (Ex. 2: Stern Dep. at 117.) The BW representatives responsible for the Spades program complained to Stern about the Atlanta event. (Stern Dep. at 118-19.)

Once the event had finished, a BW representative, Phil Huber, persuaded Heskin and Stern to go to a dance club that Huber was considering for a future event. (Defs. Heskin Rule 56.1 Stmts. ¶ 65; Ex. 7: Heskin Dep. at 355.) Heskin, Stern and Huber drank three bottles of champagne and began having fun, enjoying the venue, making friends with people at the club. (Ex. B: Heskin Dep. at 80.) Stern asked Heskin about her boyfriend — why she was going out with him, why they were not engaged yet, and encouraging her to break up with her boyfriend. (Id. at 81-82, 368-69; Heskin Rule 56.1 Stmt. ¶ 66; see Defs. Rule 56.1 Stmt. ¶ 67.) Stern also told Heskin that he was "responsible for [her] career," that he had "brought [her] over" to her last job, and had done the same with her OnSite job and basically, "if it wasn't for [Stern, Heskin] wouldn't be where [she is] today." (Ex. B: Heskin Dep. at 82, 373; see also Heskin Rule 56.1 Stmt. ¶ 66.) Heskin thanked Stern, agreeing that he had had much to do with her career. (Heskin Dep. at 374.) Heskin got the feeling that Stern was interested in her sexually from the discussion of her boyfriend. (Heskin Rule 56.1 Stmt. ¶ 66; Ex. B: Heskin Dep. at 375.) Heskin asserts that "in retrospect, it was clear to [her] that Stern wanted to lay the groundwork for his sexual advance with [his earlier criticisms of the Spades event] and his later statements that he was responsible for her career and job — in essence, he wanted her to know the power he held over her job at OnSite when he made the sexual advance towards her later that night." (Heskin Rule 56.1 Stmt. ¶ 124; Ex. D: Heskin Aff. ¶ 20.)

Stern, Heskin and Huber started dancing together and, initially, Stern did not act inappropriately toward Heskin. (Heskin Rule 56.1 Stmt. ¶ 70; Ex. B: Heskin Dep. at 364-66.) Toward the end of the night Huber left, but Heskin and Stern were having fun and decided to stay. (Heskin Dep. at 81, 366.) They tried to get others to dance with them and Heskin encouraged Stern to dance with some "pretty attractive" girls she spotted on the dance floor. (Heskin Dep. at 81, 378.) Stern came back to Heskin to dance with her. (Heskin Dep. at 81.) As the night grew later, Stern became a little bit more "aggressive" with Heskin, trying to "slow-dance" and "trying to hug, hold and kiss" her. (Heskin Rule 56.1 Stmt. ¶ 66; Ex. B: Heskin Dep. at 81, 366, 377.) At some point, Stern kissed her cheek (id. at 381). Heskin explained that the more "aggressive" dancing meant that Stern was "bumping and grinding" with Heskin, which is a dance style common to "urban music," and others also were dancing in that way. (Ex. B: Heskin Dep. at 379-80.) At no time while at the club did Stern ask Heskin to come back to his hotel with him or make explicitly sexual remarks. (Id. at 378.)

Heskin and Stern stayed at the club until it closed at 4 a.m. (Id. at 382.) As they left the club, Stern continued the "aggressive" "holding," "bumping," "affectionate" behavior towards Heskin. (Heskin Dep. at 385.) Once outside, they found a cab, but since their hotels were in two different directions, Heskin looked for a second cab. (Heskin Rule 56.1 Stmt. ¶ 73; Heskin Dep. at 387.) However, there was no second taxi in sight and Stern talked Heskin into sharing his cab with him. (Heskin Rule 56.1 Stmt. ¶ 73; Heskin Dep. at 387.) Immediately upon entering the cab, Heskin told the cab driver to make two stops, one at her hotel and then a second at Stern's hotel. (Heskin Rule 56.1 Stmt ¶ 73; Heskin Dep. at 388.) During the forty-minute cab ride, Stern tried to convince Heskin to come back to his hotel. (Heskin Rule 56.1 Stmt. ¶ 75; Heskin Dep. at 389-90.) Heskin, in refusing, explained that her boyfriend called her at her hotel room every night and she needed to be there for that call. (Heskin Dep. at 389-90.) Nevertheless, when the cab got to the exit for Heskin's hotel, Stern directed the driver to continue on to Stern's hotel, so they could have "a drink." (Heskin Rule 56.1 Stmt. ¶ 75; Ex. B: Heskin Dep. at 390.) Throughout the ride, Stern "touched her, cuddled her" and might have kissed her cheek, all while "trying to persuade" her to come back to his hotel with him. (Heskin Rule 56.1 Stmt. ¶ 75; Heskin Dep. at 392-93.) By the time they arrived at Stern's hotel, Stern had convinced Heskin to have a drink with him at the hotel bar, since it was a "hot spot." (Heskin Rule 56.1 Stmt. ¶¶ 75-76; Heskin Dep. at 394-96.) Because it was almost 5 a.m., however, the hotel bar was closed. (Heskin Rule 56.1 Stmt. ¶ 76; Heskin Dep. at 396.) Stern suggested that they go up to his room for a drink. (Heskin Rule 56.1 Stmt. ¶ 76; Heskin Dep. at 396-97.) Heskin was "very hesitant to do that," but agreed since she had to use the bathroom. (Heskin Rule 56.1 Stmt. ¶ 76; Heskin Dep. at 396.) In Stern's room, Heskin immediately went to the bathroom and when she emerged, Stern was standing in his bathrobe. (Heskin Rule 56.1 Stmt. ¶ 78; Heskin Dep. at 397.) Heskin testified that at that point she realized that Stern "thought [she] was going to be spending the night," so she reminded him she had to go back to her hotel because she had a boyfriend. (Heskin Dep. at 397-98; Heskin Rule 56.1 Stmt. ¶ 78.) Stern told her: "[Y]ou are spending the night here . . . you are staying at the W [Hotel] with me" and "don't go back to [your hotel], you don't need to call John," her boyfriend. (Heskin Dep. at 399; Heskin Rule 56.1 Stmt. ¶ 78.) Heskin said no, called her boyfriend from her cellphone in Stern's room to tell him she was on her way back to her hotel room, left and took a cab to her own hotel. (Heskin Rule 56.1 Stmt. ¶ 78; Heskin Dep. at 397-402.)

The whole encounter in Stern's hotel room lasted about three minutes. (Defs. Heskin Rule 56.1 Stmts. ¶ 77; Heskin Dep. at 399.) Stern denies all allegedly offensive behavior described by Heskin. (See Defs. Rule 56.1 Stmt. ¶¶ 72, 73, 78, 79.)

The next evening, Saturday, November 16, there was another Spades tournament in New Orleans which Heskin supervised and Stern observed. (Defs. Heskin Rule 56.1 Stmts. ¶ 81; Ex. 7: Heskin Dep. at 416-17.) "Stern was very impressed with the New Orleans event and complimented it as the best he had seen to date." (Defs. Heskin Rule 56.1 Stmts. ¶ 82; Ex. 2: Stern Dep. at 170-71; Ex. 7: Heskin Dep. at 418-19.) Heskin was not feeling well at this event: she felt "drained" and "emotionally distraught." (Ex. 7: Heskin Dep. at 419-20.) After Stern told her and her team that the event was a success, Heskin told Stern that she was not feeling well and wanted to return to her hotel, and Stern arranged to have a limo take her back to her hotel. (Defs. Heskin Rule 56.1 Stmts. ¶ 83; Heskin Dep. at 420.) Heskin and Stern did not talk about the previous evening in Atlanta. (Defs. Heskin Rule 56.1 Stmts. ¶ 83; Heskin Dep. at 420-21.) Heskin testified that Stern seemed "embarrassed" and "standoffish" and was "trying to ignore" her at the New Orleans event. (Heskin Dep. at 421.)

On Sunday, November 17, before leaving New Orleans, Heskin sent an email to Miller acknowledging the problems at the Atlanta Spades event, but she did not mention Stern's sexual harassment. (Defs. Heskin Rule 56.1 Stmts. ¶ 85; Heskin Dep. at 432-33; Ex. 17: 11/17/02 email.) Stern and Heskin saw each other at the airport when they were waiting to board their flight home; they made small talk, but did not speak about what had happened in Atlanta, and Heskin borrowed Stern's cell phone to call her boyfriend. (Defs. Heskin Rule 56.1 Stmts. ¶ 84; Heskin Dep. at 425-29.)

On Sunday evening, Stern had a phone conversation with Marc Miller during which Stern expressed his and BW's concerns about the Atlanta Spades event and Heskin's attitude in particular. (Ex. 2: Stern Dep. at 117-19.) Miller told Stern to speak to Leibert about these issues. (Stern Dep. at 123.) On Monday November 18, Stern pulled Leibert out of a meeting and told him that he was "displeased" with the way OnSite had been handling its event marketing and that OnSite's attention to detail, "and specifically Karolyn Heskin's attention to detail, was lacking" and Stern wanted Leibert to complete the programs. (Defs. Rule 56.1 Stmt. ¶ 86; Ex. 6: Leibert Dep. at 82.) According to Leibert, this was the first time that Stern said he wanted Heskin removed from event marketing programs and Stern used the Atlanta Spades tournament as an example of his dissatisfaction with Heskin's work. (Id. at 82-83.)¹¹ Leibert asked if Heskin should go to the final Spades event in Las Vegas, and Stern said no. (Defs. Rule 56.1 Stmt. ¶ 86; Stern Dep. at 127.) Heskin claims that Stern's conversation with Leibert was based on her rejection of Stern's sexual advances in Atlanta. (Heskin Rule 56.1 Stmt. ¶ 86.)

11 Stern recalled that he told Leibert he no longer wanted Heskin working on the Spades program, but he did not think he said in that conversation that he no longer wanted Heskin working on event marketing. (Ex. 2: Stern Dep. at 126-27.) Rather, based on previous conversations between OnSite management and 141, it was Stern's understanding that Heskin would no longer be working on the event marketing business. (Id. at 127.)

Later that same day, Leibert met with Heskin and told her that she was being removed from the Spades program and that she was going to be working only on the HoReCa network, "the work for which she was hired." (Defs. Rule 56.1 Stmt. ¶ 87.) Leibert also suggested to Heskin, as a "friend," that she should start looking for another job, because he knew that unless OnSite won the business they were pursuing to operate Miller Brewing's field network, there would be no other work for Heskin at OnSite. (Defs. Heskin Rule 56.1 Stmts. ¶ 87; Ex. 6: Leibert Dep. at 79-80; Ex. 4: Miller Dep. at 108.)¹² Heskin claims that Leibert told her that Stern did not trust her anymore and that Stern was upset about "'events'" in Atlanta. (Heskin Rule 56.1 Stmt. ¶ 129; Heskin Aff. ¶ 24.) According to Heskin, this was the first time that anyone had indicated to her that she would be removed from the BW business or that her job was in jeopardy. (Heskin Rule 56.1 Stmt. ¶ 87.) Heskin claims that Miller and Leibert had assured her all along that her job was secure. (Heskin Rule 56.1 Stmt. ¶¶ 87, 130; Heskin Aff. ¶ 25.)

12 Heskin adds that in this conversation with Leibert, in addition to being told she was not going to attend the BW Spades event in Las Vegas, she was told that her two program managers would no longer report to her. (Heskin Rule 56.1 Stmt. ¶¶ 87, 129; Ex. D: Heskin Aff. ¶ 24.)

Heskin submits that she told Leibert during this November 18th meeting that "she knew why Stern was doing this to her," that it was because she had turned down Stern's sexual advances in Atlanta. (Heskin Rule 56.1 Stmt. ¶¶ 87, 131; Heskin Aff. ¶ 26; Ex. B: Heskin Dep. at 80-83, 217.) After her conversation with Leibert, Heskin sent an email to Marc Miller in which she summarized the Atlanta Spades event and responded to Stern's concerns. (Defs. Heskin Rule 56.1 Stmts. ¶ 88; Ex. 7: Heskin Dep. at 219-20; Ex. 17: 11/18/02 Heskin to Miller Leibert email.) Heskin wrote this email in an effort to "save [her] job," as a "rebuttal" to what Stern had told Miller and Leibert about the problems at the Atlanta Spades event. (Defs. Heskin Rule 56.1 Stmts. ¶ 88; Ex. B: Heskin Dep. at 218-19; Ex. 17: 11/18/02 email; see Ex. 7: Heskin Dep. at 445-46.) Heskin did not discuss the sexual harassment in this email; she explained that it was her understanding that Leibert had told Miller about it on that same day. (Ex. B: Heskin Dep. at 217, 220; Ex. 17: 11/18/02 email.)

The next day, November 19, 2002, Heskin personally told Miller about Stern's sexual harassment in Atlanta and followed it up on November 20, 2002 with an email. (Heskin Rule 56.1 Stmt. ¶¶ 89, 132; Ex. D: Heskin Aff. ¶ 27; Ex. 18: 11/20/02 Heskin to Miller Leibert email.)¹³ Heskin recounts that Miller told her there was nothing he could do; within a matter of days Miller told her she would be terminated as of year end. (Heskin Rule 56.1 Stmt. ¶¶ 89, 132; Ex. D: Heskin Aff. ¶ 27.) Defendants, on the other hand, claim that when Heskin and Miller spoke, Miller informed her that she would be taken off of the Spades program, and after Miller received Heskin's November 20 email, he called Heskin and Stern to discuss her allegations. (Defs. Rule 56.1 Stmt. ¶¶ 90-91;see Heskin Rule 56.1 Stmt. ¶¶ 89-91.) Defendants claim that Stern denied the allegations and the two men discussed the fact that Heskin would continue to supervise the HoReCa network. (Defs. Rule 56.1 Stmt. ¶ 91; Ex. 5: Miller Aff. ¶ 23.) However, Stern testified that Miller did not speak to him about Heskin's allegations in the week after the Atlanta event and the first time he learned of Heskin's allegations was when he read her complaint. (Heskin Rule 56.1 Stmt. ¶ 133; Ex. F: Stern Dep. at 185-87; see InSite Response 56.1 Stmt. ¶ 133.)

13 Heskin testified that she also told Christine Rochfort of InSite's human resources department about Stern's sexual harassment. (Ex. D: Heskin Aff. ¶ 24; Ex. 7: Heskin Dep. at 132.) Rochfort denies that Heskin ever made a "formal complaint" to her. (Dkt. No. 36: Minero Aff. Ex. B: Rochfort Aff. ¶ 2.)

Heskin "did not report Stern's alleged sexual advances to anyone at 141." (Defs. Heskin Rule 56.1 Stmts. ¶ 92; see Ex. 7: Heskin Dep. at 131-32.)

Heskin's Termination from OnSite

Heskin claims that a few days after she told Miller about her rejection of Stern's sexual advances, Miller told her she would be terminated as of the end of December. (Heskin Rule 56.1 Stmt. ¶¶ 89, 95, 132; Ex. D: Heskin Aff. ¶ 27.) According to Heskin, she was terminated by OnSite because Stern demanded it after she rejected his sexual advances. (Heskin Rule 56.1 Stmt. ¶ 94.)¹⁴

14 Defendants argue that on or about December 1, 2002, OnSite learned that it would not be working on the Miller Brewing field network, which meant it would have no funding for Heskin's salary and had to fire her. (Defs. Rule 56.1 Stmt. ¶ 94; Ex. 5: Miller Aff. ¶ 21.)

Heskin remained Network Director of HoReCauntil December 31, 2002. (Defs. Rule 56.1 Stmt. ¶ 95; Ex. 7: Heskin Dep. at 86, 242, Ex. 19: 12/11/02 Miller to Heskin email.) After November 18, 2002, Heskin was aware that HoReCa would be finished at the end of the year and therefore began the winding down process, including telling her staff that they would be let go at the end of the year. (Ex. 7: Heskin Dep. 235-36; Heskin Rule 56.1 Stmt. ¶ 122; Ex. D: Heskin Aff. ¶ 18.) On January 1, 2003, with the loss of the HoReCa account, Heskin and nineteen other OnSite employees were fired. (Defs. Rule 56.1 Stmt. ¶ 96; Ex. 4: Miller Dep. at 88, 101-03, 107; Ex. 20: List of Terminated Employees.)

While Heskin claims that OnSite replaced her "within months" of her termination (Heskin Rule 56.1 Stmt. ¶¶ 97, 138-40; Miller Dep. at 88-90; Ex. C: Leibert Dep. at 132-34), OnSite asserts that the newly hired personnel were not replacements for Heskin but rather were hired as part of the new role OnSite would play of creating programs for clients. (Defs. Rule 56.1 Stmt. ¶¶ 97, 99, 103; Ex. 5: Miller Aff. ¶¶ 26, 27, 30; Ex. 4: Miller Dep. at 88.) Miller testified that in 2003, in the absence of 141's role of creating and executing programs for clients, he wanted OnSite to take on that creative role. (Ex. 4: Miller Dep. at 88.) In March 2003, Miller hired a creative director to create programs for which OnSite hoped to win business. (Id.)

ANALYSIS

I. LEGAL PRINCIPLES GOVERNING SEXUAL HARASSMENT CASES ¹⁵ A. Summary Judgment Standards in Employment Discrimination Cases

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986);Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000),cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003); Lang v.Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants.See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . 'to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.¹⁶ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v.DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

16 See also, e.g., Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510 (citation omitted);see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d at 1224.¹⁷ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v.Prudential Residential Servs., Ltd. P'Ship, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v.Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v.HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v.New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹⁸ Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'"Weinstock v. Columbia Univ., 224 F.3d at 41.

17 Accord, e.g., Feingold v. New York, 366 F.3d at 149; Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardoza v. Healthfirst Inc., 210 F. Supp. 2d 224, 227 (S.D.N.Y. 1999); see also, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 40.

18 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

B. Legal Principles Governing Sexual Harassment Actions

Executive Law § 296(1)(a), the New York State Human Rights Law ("NYSHRL"), makes it unlawful for an employer, "because of the . . . sex . . . of any individual . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."¹⁹ Employment discrimination claims brought under the NYSHRL and the NYCHRL are analyzed identically to claims brought under Title VII as far as establishing a sexual harassment claim. E.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 220 n. 11 (2d Cir. 2004) (gender discrimination case: "Because [plaintiff's] employment discrimination claims under state and municipal law are governed by the same standard as her Title VII claims, we need not discuss them separately."); Mack v. Otis Elevator Co., 326 F.3d 116, 122 n. 2 (2d Cir.) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims."),cert. denied, 540 U.S. 1016, 124 S. Ct. 562 (2003); Farias v.Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (discrimination claims under the NYSHRL and NYCHRL "are evaluated using the same analytic framework used in Title VII actions.");²⁰ Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 305 n. 3, 786 N.Y.S.2d at 391 n. 3 ("The standards for recovery under the New York State Human Rights Law (see Executive Law § 296) are the same as the federal standards under [T]itle VII. . . . Thus, . . . 'federal case law in this area also proves helpful to the resolution of this appeal.'"); Mittl v. New York State Div. of Human Rights, 100 N.Y.2d 326, 330, 794 N.Y.S.2d 518, 520 (2003) (Employment Discrimination based on pregnancy: "The standards for establishing unlawful discrimination under section 296 of the Human Rights Law are the same as those governing title VII cases under the Federal Civil Rights Act of 1964."); Aurecchione v.New York State Div. of Human Rights, 98 N.Y.2d 21, 25, 744 N.Y.S.2d 349, 351 (2002) ("We have acknowledged the similarities and attempted to resolve federal and state employment discrimination claims consistently. Because both the Human Rights Law and title VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful to the resolution of this appeal.") (citations omitted); Ferrante v. American Lung Ass' n, 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 28 (1997) (age discrimination case using the McDonnell Douglas burden-shifting approach: "The standards for recovery under section 296 of the Executive Law are in accord with Federal standards under title VII of the Civil Rights Act of 1964."); Walsh v. Covenant House, 244 A.D.2d 214, 215, 664 N.Y.S.2d 282, 283 (1st Dep't 1992).²¹ There are, however, certain differences in employer liability under the NYSHRL/NYCHRL as opposed to Title VII, discussed in Point IV.A below.

19 Plaintiff also brings this suit pursuant to § 8-107 of the City Administrative Code ("NYCHR") which prohibits sexual discrimination using substantially similar language to that of the NYSHRL. Unless otherwise indicated, the NYCHRL and the NYSHRL follow the same analytic framework and therefore are considered identical for purposes of this Report and Recommendation. See, e.g., Weinstock v. Columbia Univ., 224 F. 3d 33, 42 n. 1 (2d Cir. 2000) ("The identical 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."), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003);Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n. 3, 786 N.Y.S.2d 382, 391 n. 3 (2004) ("[T]he human rights provisions of the New York City Administrative Code mirror the provisions of the Executive Law and should therefore be analyzed according to the same standards.").

20 See also, e.g., Borrero v. Collins Bldg. Servs., 01 Civ. 6885, 2002 WL 31415511 at *17 (S.D.N.Y. Oct. 25, 2002);Duviella v. Counseling Serv. of the Eastern Dist. of N.Y., 00 Civ. 2424, 2001 WL 1776158 at *9 (E.D.N.Y. Nov. 20, 2001),aff'd, No. 02-7019, 52 Fed. Appx. 152, 2002 WL 31628509 (2d Cir. Nov. 21, 2002); Dyke v. McCleave, 79 F. Supp. 2d 98, 102 (N.D.N.Y. 2000); Tabachnik v. Jewish Theological Seminary, 03 Civ. 2759, 2004 WL 414826 at *1 n. 2 (S.D.N.Y. Mar. 4, 2004);Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1158 (E.D.N.Y. 2003); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *10 n. 23 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.),aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Viruet v. Citizen Advice Bureau, 01 Civ. 4595, 2002 WL 1880731 at *14 n. 28 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *19 (S.D.N.Y. Apr. 25, 1996) (citing cases),report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

21 In Viruet v. Citizen Advice Bureau, I wrote:

As this Court has pointed out several times, "while the cases . . . employ the same 'federal' analysis to NYCHRL claims, the 'legislative history' of the NYCHRL makes clear that it is to be even more liberally construed than the federal and state anti-discrimination laws." Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *22 n. 38 (S.D.N.Y. July 29, 2002) (Peck, M.J.); accord, e.g., Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (quoting Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *18-19 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.)); Weber v. Parfums Givenchy, Inc., 49 F. Supp. 2d 343, 355 n. 5 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *13-19 n. 10 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); see also Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.) (quoting Burger), cert. denied, 522 U.S. 997, 118 S. Ct. 563 (1997).

Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *14 n. 28. Because the parties have not argued for a different result under the NYCHRL than the NYSHRL, the Court will not pursue the issue any further in this case.

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973).²² Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S. Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S. Ct. at 1094).²³

22 See also, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n. 3, 124 S. Ct. 513, 517 n. 3 (2003); O'Connor v.Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S. Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2746-47 (1993); Mandell v. County of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003); Mario v. PC Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v.New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002);Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000);Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v. Soreona N.A., 534 U.S. 506, 122 S. Ct. 992 (2002); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

23 See also, e.g., Mandell v. County of Suffolk, 316 F.3d at 380; Mario v. PC Food Mkts., Inc., 313 F.3d at 767;Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106; McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S. Ct. at 1824.²⁴ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S. Ct. at 2106.²⁵

24 See also, e.g., Raytheon Co. v. Hernandez, 540 U.S. at 50 n. 3, 124 S. Ct. at 517 n. 3; O'Connor v.Consolidated Coin, 517 U.S. at 310, 116 S. Ct. at 1309; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506-07, 113 S. Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1093-94; Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004); Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Mandell v. County of Suffolk, 316 F.3d at 380; Mario v. PC Food Mkts., Inc., 313 F.3d at 767;Schnabel v. Abramson, 232 F.3d at 88; Weinstock v.Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v.Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v.Rubin, 117 F.3d at 654; Chambers v. TRM, 43 F.3d at 38.

25 See also, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507, 113 S. Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S. Ct. at 1096;Terry v. Ashcroft, 336 F.2d at 144 n. 17; Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106.

If the defendant articulates a non-discriminatory reason, theMcDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S. Ct. at 2106.²⁶ "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S. Ct. at 2106 (quotingTexas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255 n. 10, 101 S. Ct. at 1095 n. 10).

26 See also, e.g., Raytheon Co. v. Hernandez, 124 S. Ct. at 517 n. 3; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 510, 113 S. Ct. at 2749; Texas Dep't of Cmty. Affairs v.Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94; Feingold v.New York, 366 F.3d at 152; Mandell v. County of Suffolk, 316 F.3d at 380-81; Mario v. PC Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it ispermissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S. Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).²⁷

27 See also, e.g., Feingold v. New York, 366 F.3d at 152; Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 534 U.S. 993, 122 S. Ct. 460 (2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. 772 Park Avenue Corp., 00 Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001);Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp. 2d 236, 245 (S.D.N.Y.), reconsideration denied, 156 F. Supp. 2d 270 (S.D.N.Y. May 18, 2001), aff'd in part, appeal dismissed on other grounds, No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Connell v.Consolidated Edison Co., 109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves. ²⁸ II. APPLICATION OF THE McDONNELL-DOUGLAS ANALYSIS TO HESKIN'S CASE A. Prima Facie Case of Quid Pro Quo Sexual Harassment

28 E.g., Molin v. Shapiro, No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003);Silverman v. City of New York, No. 02-9048, 64 Fed. Appx. 799, 801, 2003 WL 1970472 at *1 (2d Cir. Apr. 23, 2003);Tarshis v. Riese Org., No. 02-7570, 66 Fed. Appx. 238, 240, 2003 WL 1600154 at *1-2 (2d Cir. Mar. 27, 2003); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Slatky v. Healthfirst, Inc., 02 Civ. 5182, 2003 WL 22705123 at *6 (S.D.N.Y. Nov. 17, 2003);Kulkarni v. City Univ. of New York, 01 Civ. 10628, 2002 WL 31886639 at *9 (S.D.N.Y. Dec. 27, 2002); Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *12-19; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *12; Weiser v.Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 136 F. Supp. 2d at 249-50; Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000);Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v.Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000), aff'd, No. 00-9531, 51 Fed. Appx. 901, 2002 WL 31664452 (2d Cir. Nov. 20, 2002); Cousins v.Howell Corp., 113 F. Supp. 2d 262, 268-69 (D. Conn. 2000);Ekwegablu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v.Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v.Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp. 2d 234, 251 n. 12 (S.D.N.Y. 2000).

"'[T]o establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment.'" Gallagher v. Delaney, 139 F.3d 338, 346 (2d Cir. 1998) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S. Ct. 2693 (1994)); accord, e.g., Jin v.Metropolitan Life Ins. Co., 310 F.3d 84, 95 (2d Cir. 2002);Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir. 2001),cert. denied, 536 U.S. 922, 122 S. Ct. 2586 (2002); Adeniji v. Administration for Children Servs., 43 F. Supp. 2d 407, 430 (S.D.N.Y. 1999) (Peck, M.J.), aff'd, 201 F.2d 430 (2d Cir. 1999); Pell v. Trustees of Columbia Univ., 97 Civ. 0193, 1998 WL 19989 at *14 (S.D.N.Y. Jan. 21, 1998) (Sotomayor, D.J.).²⁹ As the Supreme Court has reiterated, in order for the unwanted sexual conduct to be actionable, "the conduct must be severe or pervasive." Burlington Indus. Inc. v.Ellerth, 524 U.S. 742, 754, 118 S. Ct. 2257, 2265 (1998).

29 See also, e.g., Gutierrez v. Henoch, 998 F. Supp. 329, 334 (S.D.N.Y. 1998); Gibson v. Jacob K. Javitz Convention Ctr., 95 Civ. 9728, 1998 WL 132796 at *5 (S.D.N.Y. March 23, 1998); EEOC v. National Cleaning Contractors, 90 Civ. 6398, 1997 WL 811494 at *5 (S.D.N.Y. Sept. 2, 1997).

In a "refusal" case — where the plaintiff rejected the alleged sexual advance — "the gravamen of a quid pro quo claim is that a tangible job benefit or privilege is conditioned on an employee's submission to sexual blackmail and that adverse consequences follow from the employee's refusal." Carrero v.New York City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989);see, e.g., Jin v. Metropolitan Life Ins. Co., 310 F.3d at 97; Fitzgerald v. Henderson, 251 F.3d at 356; Karibian v.Columbia Univ., 14 F.3d at 778 ("The relevant inquiry in a quid pro quo case is whether the supervisor has linked tangible job benefits to the acceptance or rejection of sexual advances. It is enough to show that the supervisor used the employee's acceptance or rejection of his advances as the basis for a decision affecting the compensation, terms, conditions or privileges of the employee's job.").³⁰

30 See also, e.g., Adeniji v. Administration for Children Servs., 43 F. Supp. at 430; Gostanian v. Bendel, 96 Civ. 1781, 1997 WL 214966 at *6 (S.D.N.Y. April 25, 1997);Corrigan v. Labrum Doak, 95 Civ. 6471, 1997 WL 76524 at *6 (S.D.N.Y. Feb. 21, 1997).

Considering the evidence in the light most favorable to Heskin as the non-movant, Heskin was subjected to unwanted sexual conduct — Stern was inappropriately affectionate on the dance floor in Atlanta and in the cab back to his hotel, where he invited her to his hotel room at 5 a.m., put on a bathrobe and told Heskin that she would be staying the night. (See pages 13-15 above.) Heskin also testified that InSite President Marc Miller previously had told her on several occasions that she would continue to be employed by OnSite even if OnSite lost the HoReCa business, but that after Miller learned of Heskin's rejection of Stern's advances in Atlanta, within a few days Miller told her that she would be terminated as of the end of the year. (See page 19 above.)

Stern and 141 argue that Heskin is unable to establish a prima facie quid pro quo claim because she cannot show that "Stern was in a position to effect the privileges or conditions of her employment." (Dkt. No. 23: Stern Br. at 15; Dkt. No. 26: 141 Br. at 6.)³¹ Heskin responds:

31 Defendants explicitly or implicitly concede for purposes of this summary judgment motion that Heskin has established the other elements of her prima facie case except causation. (See 141 Br. at 6; Stern Br. at 14-15; Dkt. No. 28: OnSite Br. at 4.)

InSite's argument that it cannot be liable for the sexual harassment of plaintiff by Stern, who was not an employee of InSite, is misplaced. Plaintiff's claim of quid pro quo sexual harassment does not assert liability against InSite for being subjected to Stern's sexual advance in Atlanta, but rather because of InSite's decision to remove Ms. Heskin from the event marketing business and then terminate her employment because of her rejection of Stern's advance. "Quid pro quo" sexual harassment occurs when a supervisor, i.e. Miller, "alters an employee's job conditions or withholds an economic benefit because the employee refuses to submit to sexual demands." Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989) (citations omitted).

(Dkt. No. 32: Heskin Br. at 11.) Heskin thus alleges that Miller was the "supervisor" that should be contemplated under her claim of sexual harassment.

The law of quid pro quo sexual harassment requires that the alleged harasser is the supervisor who affects the conditions of employment. See, e.g., Lange v. Town of Monroe, 213 F. Supp. 2d 411, 423 (S.D.N.Y. 2002) ("[A] quid pro quo harassment claim requires that the harasser be the plaintiff's supervisor."); Hernandez v. Jackson, Lewis, Schnitzler Krupman, 997 F. Supp. 412, 417 (S.D.N.Y. 1998) ("[I]f an alleged harasser possesses no authority to affect the benefits or privileges of the harassed plaintiff's employment, plaintiff cannot sustain a Title VII claim of sexual harassment under thequid pro quo theory.") (citing Carrero v. New York City Housing Auth., 890 F.2d at 579); Rivera v. Edenwald Contracting Co., 93 Civ. 8582, 1996 WL 240003 at *3 (S.D.N.Y. May 9, 1996) ("[B]y its very nature, the plaintiff must show that the 'sexual advance was made by a supervisor.'").

A quid pro quo harassment action can survive, however, if an employee who is not plaintiff's actual supervisor acted as a "de facto supervisor." E.g., DeWitt v. Lieberman, 48 F. Supp. 2d 280, 288-90 (S.D.N.Y. 1999) (issue of fact precluding summary judgment on quid pro quo claim as to whether alleged harasser was plaintiff's de facto supervisor).³² It is undisputed that Heskin was employed by OnSite and hired and fired by Miller. (See pages 6-8, 19 above.) Heskin's response to defendants' claim that "Stern never supervised the individual work of InSite employees" (Dkt. No. 25: Defs. Rule 56.1 Stmt ¶ 36) and that "Stern did not set any of the terms and conditions" of Heskin's employment (id. ¶ 35) is that sometime in September of 2002, Miller told her that OnSite would be merging with 141 and at that point Greg Leibert would begin reporting to Stern, which would mean Heskin would report to Leibert who would report to Stern (Dkt. No. 33: Heskin Rule 56.1 Stmt. ¶¶ 34-36, 142). However, Heskin testified at her deposition that Miller told her the merger would take effect in January 2003 (Dkt. No.: Ex. 7: Heskin Dep. at 280). It is also undisputed that the merger did not materialize, although exactly when Heksin became aware of that fact is unclear. (See page 10 above.)³³

32 See, e.g., Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1156 n. 11 (E.D.N.Y. 2003) (triable issue of fact existed as to whether harasser was plaintiff's de facto supervisor); Adeniji v. Administration for Childrens Servs., 43 F. Supp. 2d 407, 431 n. 10 (S.D.N.Y. 1999) (Peck, M.J.);Thomas v. Medco, 95 Civ. 8401, 1998 WL 542321 at *10-11 (S.D.N.Y. Aug. 26, 1998) ("[A] quid pro quo claim of harassment can rest on an alleged harasser's authority to influence an adverse employment decision, if that influence is so significant that the harasser may be deemed the de facto decisionmaker.");Hernandez v. Jackson, Lewis, Schnitzler Krupman, 997 F. Supp. at 417 (whether alleged harasser was plaintiff's de facto supervisor presented a triable issue); Gostanian v. Bendel, 96 Civ. 1781, 1997 WL 214966 at *6 (S.D.N.Y. Apr. 25, 1997) (worker who possesses the authority to affect the terms and conditions of plaintiff's employment is a de facto supervisor).

33 Even though a quid pro quo sexual harassment claim requires that a supervisor, with authority — de facto or actual — carry out the harassing conduct, it may not be necessary under the case law that the tangible employment action be undertaken by that same supervisor. See Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 204-05 (N.D.N.Y. 2002) (finding material issue of fact as to whether the tangible employment action was plaintiff's termination by superior other than the harassing supervisor); see also Lex K. Larson, Employment Discrimination § 46.07[2][e] (2d ed. 2004) ("Another question concerning the identity of the supervisor is whether a tangible employment action taken by a supervisor other than the supervisor who committed the sexual harassment will preclude the use of theFaragher/Ellerth affirmative defense [applicable in hostile work environment discrimination cases]. At least one court, [in the District of West Virginia], has interpreted Faragher andEllerth to require both acts to have been undertaken by the same person for the affirmative defense to be unavailable. Conversely, if different supervisors were responsible for the harassment and for the employment action, the employer may assert the affirmative defense."). has alleged that Stern recommended her removal and that she was in fact fired because of his recommendation.

The evidence that in this Court's view creates a material issue of fact as to whether Stern can be considered Heskin's de facto supervisor is as follows: Importantly, Stern worked for OnSite's largest client, and in that role had "supervisory" authority over Heskin and the OnSite programs for 141. (See page 8 above.) At the Atlanta Spades event, Stern confronted Heskin with the problems he saw, as a supervisor would. (See page 12 above.) Heskin apparently felt she had to answer to Miller about Stern's complaints, because she emailed Miller the next night with a status report of the weekend's events and on November 18th sent a more detailed email to Miller in an "effort to save [her] job" after Leibert had told her she would no longer be working on the Spades program as a result of Stern's complaints. (See pages 16, 17-18 above.) Heskin also testified that she reported to Stern at the Atlanta event. (Heskin Rule 56.1 Stmt. ¶ 110; Ex. D: Heskin Aff. ¶ 7.) At the New Orleans Spades event, Stern complimented Heskin and the OnSite team on the event, as a supervisor would. (See page 15 above.) Finally, it is undisputed that Stern requested Leibert and Miller to remove Heskin from at least Spades events, if not the entire HoReCa program. (See pages 16-17 above.) And, according to Heskin, Miller fired her a few days after this. (See page 19 above.) Moreover, not only did Heskin know that Stern had recommended her for her OnSite job, Stern reminded her of that fact on the night of November 15th, before making sexual advances: On the night of November 15th, Heskin and Stern discussed how Stern had been instrumental in her career up until that point because he had recommended her for her OnSite job and for a previous job. (See page 13 above.) The evidence produced by Heskin creates a material issue of fact as to whether Stern could be considered Heskin's de facto supervisor.³⁴ Heskin has stated a prima facie claim under the NYSHRL and the NYCHRL at the summary judgment stage.

34 The case law on hostile work environment sexual harassment is helpful in gleaning a definition of a "supervisor" for employment discrimination actions. See Gregory v. Daly, 243 F.3d 687, 698-99 (2d Cir. 2001) (following the Supreme Court decision in Burlington Indus., Inc. v. Ellerton, 524 U.S. 742, 751-52, 118 S. Ct. 2257 (1998), which emphasized that the labels of "quid pro quo" and "hostile work environment" are useful "merely as descriptions of varying workplace conditions that violate Title VII's basic prohibition on sex discrimination in terms or conditions of employment" but are not meant to create separate causes of actions). In determining whether a co-worker is a supervisor which imputes liability to the employer in Title VII actions, and not merely a co-employee, the Second Circuit gives a broad meaning to what constitutes the authority worthy of a supervisor: "It is . . . whether the authority given by the employer to the employee [alleged supervisor] enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates." Mack v.Otis Elevator Co., 326 F.3d 116, 126 (2d Cir. 2003). To explain this definition of supervisor, the Second Circuit in Mack advised that it is broader than having the power "'to hire, fire, demote, promote, transfer, or discipline an employee,'" id. at 126, and is more akin to employees who have the authority to affect the plaintiff's day-to-day work activities. Id. at 126-27 (citing cases). The Second Circuit also was guided by EEOC guidelines which state that a supervisor is either someone with authority to direct the daily activities of an employee or someone with the authority to "'undertake or recommend tangible employment decisions affecting the employee.'" Id. at 127. Here, the facts support Heskin's claim that Stern could, and did, "recommend tangible employment decisions" affecting her, when he requested (and recommended) that she be removed from HoReCa and other event functions, which caused OnSite's Miller to terminate Heskin's job (at least according to Heskin's version of the evidence, which must be accepted for purposes of this summary judgment motion). See, e.g., Bennett v. Progressive Corp., 225 F. Supp. 2d at 206 ("Even if [the harassing defendant or his superior] could not unilaterally terminate [plaintiff], sufficient facts have been alleged that would allow a reasonable jury to conclude that either could recommend her firing, and that such recommendation would be followed."); Hill v. Children's Village, 196 F. Supp. 2d 389, 396 (S.D.N.Y. 2002) (finding that while the harassing supervisor did not have the power to unilaterally fire plaintiff, she was not fired until he recommended such action and noting: "The Supreme Court noted inEllerth that a supervisor need not act alone in making the tangible employment decision — the determination may be subject to review by higher-level supervisors as long as the supervisor obtains the 'imprimatur of the enterprise and use[s] its internal processes.'"). Here, Stern did not have the power to fire Heskin but Heskin.

B. OnSite Has Met The Burden of Articulating a Non-Discriminatory Reason for Heskin's Termination

At the second McDonnell Douglas step (see pages 29-30 above), OnSite proffered evidence that Heskin was terminated (along with other HoReCa employees) because the job for which she had been hired — to run the HoReCa business — had ended when BW took the HoReCa business in-house. (See pages 10-11 above.) Heskin's salary was funded by the HoReCa budget and with the loss of that business, defendants claim there was no money for her salary. (See pages 6, 11 above.) Approximately 19 other OnSite employees were fired at the same time for the same reason. (See page 20 above.)

The Second Circuit and the New York Court of Appeals have held that a reduction in force caused by economic conditions can be an adequate defense to a discriminatory discharge claim. E.g., Meacham v. Knolls Atomic Power Lab., 381 F.3d 56, 74-75 (2d Cir. 2004); James v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir. 2000); Viola v. Philips Med. Sys., 42 F.3d 712, 717-18 (2d Cir. 1994); Maresco v. Evans Chemetics, Div. of W.R. Grace Co., 964 F.2d 106, 111 (2d Cir. 1992); Burger v.Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *13 (S.D.N.Y. April 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.); Laverack Haines, Inc. v. New York State Div. of Human Rights, 88 N.Y.2d 734, 738, 650 N.Y.S.2d 76, 78 (1996). Even during a reduction in force, however, an employer may not dismiss an employee for unlawful discriminatory reasons.Maresco v. Evans Chemetics, Div. of W.R. Grace Co., 964 F.2d at 111; see also, e.g., Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983); Duncan v. New York City Transit Auth., 127 F. Supp. 2d 354, 362 (E.D.N.Y. 2001),aff'd, No. 01-7198, 45 Fed. Appx. 14, 2002 WL 1964401 (2d Cir. Aug. 26, 2002).

OnSite's articulated reasons for firing Heskin are sufficient to meet the burden of production at the second McDonnell Douglas step.

C. Heskin Has Met Her Burden at the Summary Judgment Stage of Showing that Defendants' Non-Discriminatory Reason for Her Termination was Pretextual

At the third McDonnell-Douglas stage, the burden shifts back to Heskin to prove that OnSite's reason for her termination was a pretext for discrimination. Heskin's evidence of pretext is circumstantial. (See Dkt. No. 32: Heskin Br. at 6-10.) Heskin refutes OnSite's claim that the decision to fire her was made before November 15th with her testimony that she had been told that even though OnSite would be losing the HoReCa business at the end of the year, her job would be safe. (See page 11 above.) Heskin asserts that although she was aware that most of her staff would be laid-off as of December 31, 2002, she was told that the lay-off would not include her. (Ex. 7: Heskin Dep. at 235-36; Dkt. No. 33: Heskin Rule 56.1 Stmt. ¶ 122; Ex. D: Heskin Aff. ¶ 18.) Indeed, the emails that defendants produced to show that the decision to terminate Heskin was made pre-November 15th directly show that the HoReCa staff would be laid off, and Heskin was to be informed of this fact, but they do not show that Heskin would be terminated as well. (See Ex. 14.)

Heskin also points to the closeness in time between the harassment and her termination: on the first business day following her spurning Stern's sexual advances in Atlanta, Heskin was told she was being pulled off the remainder of the Spades program, and after she told Miller about Stern's sexual harassment, she was told "within a matter of days" that she would be terminated as of December 31, 2002. (See page 19 above.) Heskin cites (see Heskin Br. at 6-7) to cases holding that temporal proximity between the time of the protected activity and the time of the employer's retaliatory action can be circumstantial evidence of pretext. See, e.g., Cifra v.General Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001); see also, e.g., Taylor v. Potter, 99 Civ. 4941, 2004 WL 1811423 at *20 (S.D.N.Y. Aug. 16, 2004) (Peck, M.J.); Dodson v.CBS Broad. Inc., 02 Civ. 9270, 2004 WL 1336231 at *23 n. 27. *24-25 (S.D.N.Y. Jun. 15, 2004) (Peck, M.J.). While the Second Circuit has recognized that temporal proximity can be valid evidence of retaliation, the parties have not cited and this Court has not found cases addressing whether temporal proximity is evidence of pretext for quid pro quo discrimination. See Carter v. New York, 310 F. Supp. 2d 468, 478 n. 5 (N.D.N.Y. 2004) ("The issue of temporal proximity almost never arises in the context of a quid pro quo claim. Nevertheless, in the context of retaliation claims, courts have repeatedly held that plaintiffs relying solely on temporal proximity to show causation must demonstrate a very close connection, typically on the order of days or weeks, not months, between the protected activity and the alleged retaliation. . . . As a result, Plaintiff's assertion that [supervisor] retaliated against her four months after she refused [his advances] would not meet this standard."). Here, Heskin was informed of her termination during the week following Stern's sexual advances. This Court finds that a reasonable trier of fact could view the closeness in time between Stern's sexual advances in Atlanta, Stern's discussion with Miller and Leibert about his dissatisfaction with Heskin, and when Heskin was told she would be fired as probative evidence that OnSite's reduction in force argument was a pretext for discrimination. See, e.g., Windham v. Time Warner, Inc., 275 F.3d 179, 187, 189-90 (2d Cir. 2001) (Recognizing that the inquiry into whether a reduction in force is a pretext for discrimination is "highly fact specific," material issue of fact existed as to whether the "reduction in force" that defendant claimed was legitimate reason for termination was actually pretext for unlawful discrimination.); Bandhan v. Laboratory Corp. of Am., 234 F. Supp. 2d 313, 318-19 (S.D.N.Y. 2002); Koppenal v. Nepera, Inc. 74 F. Supp. 2d 409, 413-14 (S.D.N.Y. 1999).³⁵

35 Heskin also points to the different explanations given by defendants' witnesses as to why Heskin was terminated as evidence that the reduction-in-force explanation for her termination is false. (Heskin Rule 56.1 Stmt. ¶¶ 133-37; Heskin Br. at 8-10);see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108 (2000).

The Court finds that Heskin has met her burden to show that there is a material issue of fact as to whether OnSite's reason for terminating her was a pretext for quid pro quo sexual discrimination/harassment. The Court now turns to issues specific to each of the three defendants.

III. ONSITE'S SUMMARY JUDGMENT MOTION SHOULD BE DENIED

Defendant OnSite moves for summary judgment on the ground that OnSite cannot be held liable for Stern's acts because his alleged misconduct occurred outside the workplace (Dkt. No. 28: OnSite Br. at 8-9), because Stern was not an OnSite employee (id. at 9),³⁶ and because OnSite did not, as a matter of law, condone Stern's alleged sexual harassment of Heskin (id. at 10-11). In response, Heskin argues that she states a claim of quid pro quo harassment because Miller, InSite's president, made the decision to "take her off the event marketing business with the knowledge that Stern's request [to do so] was based on her rejection of his advances" and that "InSite's top executives have admitted that the decision to terminate Ms. Heskin was based, at least in part, on the request by Stern to remove her from the 141 event marketing work." (Dkt. No. 32: Heskin Br. at 11, emphasis in original.) Heskin further argues that, under the law, "'quid pro quo' sexual harassment occurs when a supervisor, i.e. Miller, 'alters an employee's job conditions or withholds an economic benefit because the employee refuses to submit to sexual demands.'" (Heskin Br. at 11.)

36 OnSite cites Kudatsky v. Galbreath Co., 96 Civ. 2693, 1997 WL 598586 (S.D.N.Y. Sept. 23, 1997), a Title VII case, to support its argument that "employers, generally, cannot be held liable for the sexual harassment of an employee by a non-employee that occurs outside of the workplace." (OnSite Br. at 9.) However, the court in Kudatsky actually denied summary judgment to the defendant employer because it found that "an employer can be liable for the sexual harassment by a non-employee" and that an issue of material fact existed. Kudatsky v. Galbreath Co., 1997 WL 598586 at *5.

A. OnSite Can Be Held Liable for the Sexual Harassment Committed by a Non- Employee

"According to the EEOC Guidelines, '[a]n employer may . . . be held responsible for the acts of non-employees, with respect to sexual harassment in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate or appropriate corrective action.'" Kudatzky v. Galbreath Co., 96 Civ. 2693, 1997 WL 598586 at *4 (S.D.N.Y. Sept. 23, 1997) (quoting 29 C.F.R. § 1604.11(e)); see also, e.g., Little v. Windermere Relocation, Inc., 301 F.3d 958, 968-69 (9th Cir. 2002) (Plaintiff, who handled company's most important corporate client, was raped by client's employee. Summary judgment was denied plaintiff's employer for hostile work environment sexual harassment claim because, even though harasser was not its employee, it not only failed to take remedial action but also fired plaintiff when it learned of the client's misconduct.); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995) (affirming dismissal of dental student's complaint of sex discrimination and harassment by a patient in school dental clinic because "drawing all reasonable inferences in [plaintiff]'s favor, the complaint fails to allege that even [dental school]'s agents knew or should have known of the continued harassment"); McDonald v. B.E. Windows Corp., 01 Civ. 6707, 2003 WL 21012045 at *4 (S.D.N.Y. May 5, 2003) ("Generally, this court has applied the same standard for non-employee harassment as is applied to co-worker harassment, namely, the employer will be liable unless it provided a reasonable avenue for complaint or it was prompt in taking steps reasonably calculated to end the harassment.") (citing cases); Flower v. Mayfair Joint Venture, 95 Civ. 1744, 2000 WL 272187 at *9 (S.D.N.Y. Mar. 13, 2000) ("[I]t is not yet clear in the Second Circuit whether an employer owes a duty to employees subjected to harassment by non-employees. . . . [S]hould the duty in fact exist, it would be no greater than the duty owed in the co-worker harassment cases" which means that an "'employer will generally not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.'"); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *17-18 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) (applying EEOC guideline analysis about non-employees to claim under NYCHRL and Title VII).

To hold OnSite liable for Stern's actions, Heskin would have to "adduce evidence tending to show that [OnSite] either failed to provide a reasonable complaint procedure or that it knew of her harassment (either by co-workers or customers [or other non-employees]) and failed to take any action." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766-67 (2d Cir. 1998),abrogated in part on other grounds by, National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002); see, e.g., Little v. Windermere Relocation, Inc., 301 F.3d at 968; Peries v. New York City Bd. of Educ., 97 CV 7109, 2001 WL 1328921 at *6 (E.D.N.Y. Aug. 6, 2001) (denying defendant's summary judgment motion in hostile work environment case where students were the harassing actors because question was for the jury whether school board "either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action"). "'[W]hile the harasser may not be an employee, the victim is . . . [and] an employer that knows or should know its employee is being harassed in the workplace, regardless of by whom, should take appropriate action.'"Kudatzky v. Galbreath Co., 1997 WL 598586 at *4 (emphasis in original). As the EEOC guidelines instruct, "in determining whether to impose liability the court should consider 'the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.'" Kudatzky v. Galbreath Co., 1997 WL 598586 at *4 (quoting 29 C.F.R. § 1604.11(e)). Claims brought under the NYSHRL and NYCHRL have been examined "in tandem" with Title VII claims on this issue. Quinn v. Green Tree Credit Corp., 159 F.3d at 765; McDonald v. B.E. Windows Corp., 2003 WL 21012045 at *3 n. 1; Viruet v. Citizens Action Bureau, 2002 WL 1880731 at *14, 17-18. Indeed, OnSite concedes that the Green Tree — EEOC guidelines regarding non-employee harassment in the workplace apply to this case. (Dkt. No. 28: OnSite Br. at 8-9.)

Under New York Law, OnSite, as the employer, can only be held liable if it is shown to have encouraged, condoned, or approved of sexual harassment. (See Point IV. A below.) "An employer's calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation." Father Belle Cmty. Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 53, 642 N.Y.S.2d 739, 746 (4th Dep't 1996) (citing state cases), appeal denied, 89 N.Y.2d 809, 655 N.Y.S.2d 889 (1997). "Condonation may be disproved by a showing that the employer reasonably investigated a complaint . . . and took corrective action." Id., 221 A.D.2d at 53-54, 642 N.Y.S.2d at 746. According to Heskin, she informed OnSite of Stern's November 15, 2002 sexual harassment on November 18, when she told Leibert about it, and then again on November 19 and 20, when she informed Miller. (See pages 16-19 above.) Miller testified that upon learning of Heskin's accusations, he spoke with Heskin and Stern in turn, but Stern contradicted Miller, testifying that Miller never spoke to him about Heskin's allegations. (See page 19 above.) A question of material fact exists as to whether OnSite took any steps to address Heskin's allegations. Moreover, Heskin's complaint here is not about the sexual harassment but about her being fired by OnSite, at Stern's request, immediately after she rejected (and reported) Stern's advances. If true, OnSite's action in firing Heskin supported Stern's harassing conduct. Heskin has raised sufficient issues to get to the jury. B. There Exists a Material Issue of Fact Whether Heskin and Stern were at the Worplace When the Sexual Harassment Occurred

OnSite argues, without citing any case, that Heskin and Stern were not in a work environment because they were not in 141 or OnSite offices, but were at a nightclub and Stern's hotel room. (Dkt. No. 28: OnSite Br. at 9.) When sexual harassing acts occur outside the workplace, the plaintiff must identify sufficient facts from which to infer a connection between the misconduct and the employment. Tomka v. Seiler Corp., 66 F.3d 1295, 1306 (2d Cir. 1995) (holding there was a sufficient connection between plaintiff's employment and the sexual assault upon her by her supervisors after a business dinner such that a material issue existed as to whether the rape occurred in the "work environment."); see also, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 135 (2d Cir. 2001) (question of fact existed as to whether plaintiff flight attendants's hotel room was a "work environment" when she was raped by a co-employee while on a lay-over even though she went voluntarily to co-employee's room to have a drink with him), cert. denied, 537 U.S. 824, 123 S. Ct. 110 (2002).

Here, Stern and Heskin were in Atlanta because of a business event. They went to the dance club on November 15th because the client representative, Phil Huber, wanted to go, because he was considering the club for a future business event. (See page 12 above.) While Heskin and Stern voluntarily stayed at the club after the client left, their initial presence at the club was motivated by a desire to please the client. Even though Stern claims Heskin returned voluntarily to his hotel, Heskin claims that she wanted to go back to her hotel but Stern overrode her will. Once in Stern's hotel, Heskin claims she went to Stern's room to use his bathroom and leave. (See page 15 above.) Whether the dance club and Stern's hotel room can be considered within the realm of the "workplace" is a disputed factual issue that cannot be decided on summary judgment, but must be determined by a jury.

The Court also notes that the cases discussed by the parties on this issue are hostile work environment cases. The parties did not cite, and this Court did not find, any quid pro quo case which engaged in an analysis of whether the parties were in the workplace when the harassment occurred. Cf. Boyd v. James S. Hayes Living Health Care Agency, Inc, 671 F. Supp. 1155, 1165 (W.D. Tenn. 1987) (quid pro quo case; court did not address whether sexual advances in supervisor's hotel room during business trip were within the "workplace," apparently assuming that they were). The dearth of case law may be due to the fact that this usually is not an issue for quid pro quo sexual harassment — it is the adverse employment action (here, Heskin's termination) that drives the quid pro quo analysis.

For all these reasons, the Court should deny OnSite's summary judgment motion.

IV. DEFENDANT 141 SHOULD BE GRANTED SUMMARY JUDGMENT ON HESKIN'S CLAIMS UNDER THE NYSHRL AND NYCHRL A. Under New York Law, Liability Cannot be Imputed to 141 For Stern's Conduct

While the Title VII three prong McDonnell-Douglas standards apply under the NYSHRL and NYCHRL to determine whether discrimination (or retaliation) has occurred (see pages 26-27 above), the standards for employer liability under the NYSHRL and NYCHRL differ from the essentially respondeat superior standard under Title VII. Under § 296 of the NYSHRL and § 8-107 of the NYCHRL an "'employer cannot be held liable . . . for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.'" Franklin v. City of New York, 01 Civ. 10574, 2003 WL 21511932 at *8 (S.D.N.Y. July 1, 2003) (quoting State Div. of Human Rights ex rel. Greene v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411, 412 (1985), aff'd, No. 03-7769, 99 Fed. Appx. 315, 2004 WL 1157729 (2d Cir. May 25, 2004); accord, e.g., Jordan v. Cayuga County, No. 5:01 CV 1037, 2004 WL 437459 at *4 (N.D.N.Y. Feb. 9, 2004); DeWitt v.Lieberman, 48 F. Supp. 2d 280, 293 n. 10 (S.D.N.Y. 1999);Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 311, 786 N.Y.S.2d 386, 395 (2004).³⁷ Condonation "contemplates a knowing, after-the-fact forgiveness or acceptance of an offense."State Div. of Human Rights ex rel. Greene v. St. Elizabeth's Hosp., 66 N.Y.2d at 687, 496 N.Y.2d at 412.

37 But see Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1158-59 (E.D.N.Y. 2003) (applying Title VII standard of vicariously imputing liability to employer but recognizing split in district court decisions in this Circuit and that traditional approach by the New York courts is to require employer to have condoned, encouraged or acquiesced in the discriminatory conduct in order to be held liable). Because this is an issue of New York law and the New York state decisions have not applied the Title VII standard, this Court declines to follow Perks.

Heskin does not dispute that she did not report Stern's sexual harassment to anyone at 141. (See page 19 above.) Heskin does not offer any evidence that 141 learned of Stern's misconduct (at least until Heskin's EEOC complaint and this lawsuit). Without any notice of Stern's misconduct, 141 cannot, as a matter of law, be held liable for Stern's sexual harassment of Heskin. See Duviella v. Counseling Serv. of the Eastern Dist. of New York, 00 CV 2424, 2001 WL 1776158 at *16 (E.D.N.Y. 2001) ("'actual notice . . . appears to be required under the HRL.'"),aff'd, No. 02-7019, 52 Fed. Appx. 152, 2002 WL 31628509 (2d Cir. Nov. 21, 2002); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 486 (S.D.N.Y. 1999) (same);DeWitt v. Lieberman, 48 F. Supp. 2d at 294 ("Because plaintiff has offered no proof whatsoever that [employer] encouraged, condoned, or approved of [alleged harasser's] conduct, plaintiff's state and local claims . . . are dismissed.").

141 should be granted summary judgment on Heskin's direct liability claim under the NYSHRL and the NYCHRL.

B. 141 Is Not Liable for Aiding and Abetting Pursuant to NYSHRL § 296(6) ³⁸

38 Heskin does not bring an aiding and abetting claim against 141 under NYCHRL § 8-107(6). (See Dkt. No. 1: Compl. ¶¶ 40-42, "Second Cause of Action.") Even if she had, however, the language of § 8-107(6) is substantially similar to that of NYSHRL § 296(6), courts analyze them using the same standards, and thus the result would be the same under the NYCHRL as it is under the NYSHRL.

Under § 296(6) of the NYSHRL, it "shall be an 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." The statute expressly defines "person" to include "individuals" and "corporations." N.Y. Exec. Law § 292(1); see, e.g., Jews for Jesus, Inc. v.Jewish Cmty. Relations Council of New York, Inc., 968 F.2d 286, 294 (2d Cir. 1992) (recognizing that § 296 "clearly defines the term 'person' to include both 'individuals' and 'corporations.'"). According to the Second Circuit, based on the language of § 296(6), a defendant who "actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [NYS]HRL." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). To "actually participate" in the discrimination, a covered defendant need not itself take part in the primary violation. Lewis v. Triborough Bridge Tunnel Auth., 77 F. Supp. 2d 376, 381 (S.D.N.Y. 1999). However, "if the plaintiff fails to plead any facts suggesting that a defendant displayed any intent to discriminate or was in any way involved in the alleged discriminatory scheme, the defendant may not be held liable under the [NYS]HRL." Id.

Here, there is no evidence to suggest that 141 — as opposed to Stern — demonstrated any intent to sexually harass Heskin or to aid OnSite in firing Heskin as a result of her rejection of Stern's advances. See, e.g., Brice v. Security Operations Sys., Inc., 00 Civ. 2438, 2001 WL 185136 at *4, 7-8 (S.D.N.Y. Feb. 26, 2001) (granting defendant Viacom summary judgment on aiding and abetting claim because plaintiff could not show any purposeful participation by Viacom in the discrimination by her employer, although she worked at Viacom's premises); Sanchez v.Brown, Harris, Stevens, Inc., 234 A.D.2d 170, 170, 651 N.Y.S.2d 477, 478 (1st Dep't 1996) (issue of fact existed as to whether managing agent, even though not plaintiff's employer, aided and abetted the sexual harassment). Summary judgment should be granted to 141 on Heskin's aiding and abetting claim as well. V. STERN'S SUMMARY JUDGMENT MOTION SHOULD BE GRANTED IN PART AND DENIED IN PART ON HESKIN'S NYSHRL AND NYCHRL CLAIMS A. Stern Cannot Be Held Liable as Heskin's Employer Under NYSHRL § 296(1) and NYCHRL § 8-107(1)

Heskin has sued Stern as an "employer" under § 296(1) of the NYSHRL and § 8-107(1) of the NYCHRL.³⁹ (See Compl. ¶¶ 38-39, 43-44 (First and Third Causes of Action.)⁴⁰ The law under the NYSHRL is clear that unless a corporate employee is shown to have any "ownership interest or any power to do more than carry out personnel decisions made by others," the employee cannot be held individually liable under § 296(1) or § 8-107(1).E.g., Patrowich v. Chemical Bank, 63 N.Y.2d 541, 543, 483 N.Y.S.2d 659, 660 (1984) ("A corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on age or sex under New York's Human Rights Law . . . if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others."); see also, e.g., Tomka v.Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (citingPatrowich v. Chemical Bank); Hafez v. Avis Rent A Car Sys. Inc., 242 F.3d 365 (table), 2000 WL 1775508 at *3 (2d Cir. Nov. 29, 2000); Curran v. All Waste Sys., Inc., No. 99-9250, 213 F.3d 625 (table), 2000 WL 639999 at *2 (2d Cir. May 16, 2000); Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1160 (E.D.N.Y. 2003); Farage v.Johnson-McClean Tech., 01 Civ. 4856, 2001 WL 1067824 at *6 (S.D.N.Y. May 29, 2002); Layaou v. Xerox Corp., 298 A.D.2d 921, 922, 748 N.Y.S.2d 85, 85 (4th Dep't 2002); Novak v. Royal Life Ins. Co., 284 A.D.2d 892, 894, 726 N.Y.S.2d 784, 786 (3d Dep't 2001); Brotherson v. Modern Yachts, Inc., 272 A.D.2d 493, 493, 708 N.Y.S.2d 900, 900 (2d Dep't 2000); Trovato v.Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997). Heskin has not proffered any evidence to show that Stern, although a 141 senior vice-president, had an ownership interest in 141 (or OnSite), nor that he had the authority to actually make personnel decisions about OnSite employees on his own.

39 The NYCHRL provides for liability not only of an employer but also for "an employee or agent thereof." N.Y.C. Admin. Code § 8-107(1)(a); see, e.g., Thomas v. New York City Health Hosp. Corp., 02 Civ. 5159, 2004 WL 1962074 at *9 (S.D.N.Y. Sept. 2, 2004). 141 is the only party to address the "agent" issue in its summary judgment brief (see Dkt. No. 26: 141 Br. at 17-18), arguing that 141 cannot be held liable as OnSite's agent. Stern does not address the issue, nor does Heskin. Since Heskin does not allege facts that would support a finding that Stern or 141 were agents of OnSite, summary judgment is granted on that point.

40 While Stern addressed this claim in his summary judgment brief, Heskin failed to reply to Stern's argument on this point.

The Court should grant summary judgment to Stern Heskin's NYSHRL § 296(1) and NYCHRL § 8-107(1) claims.

B. Stern's Summary Judgment Motion Should Be Denied on Heskin's Aiding and Abetting Discrimination Claim

Under the NYSHRL standard for aiding and abetting liability, "[t]here is . . . a requirement that liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor." See DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999) (supervisor who committed the sexual harassment not held liable under § 296(6) because plaintiff could not state a claim of sexual harassment against employer); Sowemimo v. D.A.O.R Sec., Inc., 43 F. Supp. 2d 477, 490-91 (S.D.N.Y. 1999) (plaintiff failed to establish liability against individual defendant's employer thereby eliminating her claims against the individual defendant as an aider and abettor under the NYSHRL).⁴¹

41 There is a split in the state courts post-Tomka as to whether § 296(6) of the NYSHRL provides for individual liability of co-employees. Compare Trovato v. Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656, 657 (2d Dep't 1997) ("We reject the plaintiffs' contention that the individual defendants could be held liable as aiders and abettors pursuant to Executive Law § 296(6). The Legislature and the Court of Appeals have determined that only employers and employee-owners or those with specified authority are subject to employment discrimination suits under the Human Rights Law. To find a coemployee liable as an aider and abettor would ignore statutory and legal authority limiting parties who may be sued for employment discrimination.") (citations omitted); Foley v. Mobil Chem. Co., 170 Misc. 2d 1, 12-13, 647 N.Y.S.2d 374, 381-82 (N.Y.Sup.Ct. Monroe Cty. 1996) (rejecting Tomka approach and instead holding that individual employees cannot be held liable under § 296(6));with Steadman v. Sinclair, 223 A.D.2d 392, 393, 636 N.Y.S.2d 325, 326 (1st Dep't 1996) (holding individual employee liable under § 296(6) as aider and abettor) (citing, inter alia, Tomka).
Indeed, some federal courts have declined to exercise supplemental jurisdiction because of the unsettled state law.See, e.g., Heard v. MTA Metro-North Commuter R.R., 02 Civ. 7565, 2003 WL 222176008 at *5 (S.D.N.Y. 2003) (Declining to exercise supplemental jurisdiction over § 296(6) claim because of the split among district courts on the issue of individual employee liability) (citing cases); Houston v. Fidelity Nat. Fin. Servs., 95 Civ. 7764, 1997 WL 97838 at *10 (S.D.N.Y. Mar. 6, 1997) (Declining to exercise supplemental jurisdiction over plaintiff's NYSHRL claim because of the split in decisions and the fact that the New York Court of Appeals has yet to speak on the matter).
However, because this is a diversity jurisdiction case, this Court cannot decline to exercise jurisdiction, and is bound by the Second Circuit's Tomka decision. See, e.g., Curran v.All Waste Sys. Inc., No. 99-9250, 213 F.3d 625 (table), 2000 WL 639999 (2d Cir. 2000) (recognizing split in state courts post-Tomka but following Tomka nonetheless); Farage v.Johnson-McLean Tech., Inc., 01 Civ. 4856, 2002 WL 1067824 at *6 (S.D.N.Y. May 29, 2002) (split in state courts post-Tomka, but federal courts are bound by Tomka); Duviella v. Counseling Serv. of the Eastern Dist. of New York, 00 Civ. 2424, 2001 WL 1776158 at *17 (E.D.N.Y. Nov. 20, 2001) (recognizing split in state courts but follows the rule as set forth by the Second Circuit in Tomka which is "binding on lower federal courts"),aff'd, No. 02-7019, Fed. Appx. 152, 2002 WL 31628509 (2d Cir. Nov. 21, 2002); Lewis v. Triborough Bridge Tunnel Auth., 77 F. Supp. 2d 376, 380 n. 6 (S.D.N.Y. 1999) (same).

Here, the Court has found that Heskin's claim under NYSHRL § 296(1) and NYCHRL § 8-107(1) against OnSite is sufficient to go to trial. OnSite was Heskin's employer, albeit not Stern's employer. But the accessorial liability provision, NYSHRL § 296(6), does not speak to employer-employees only; rather, it provides that "[i]t shall be an 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." NYSHRL § 296(6) (emphasis added). Indeed, defendant 141 concedes that for there to be aiding and abetting liability, there must be liability as to the plaintiff's employer, here OnSite. (See Dkt. No. 26: 141 Br. at 17.) Taking the facts most favorable to Heskin for purposes of this motion, by making sexual advances to Heskin and then inciting or at least aiding OnSite's firing of Heskin for rejecting his advances, Stern — a "person" although not an OnSite employee — aided and abetted OnSite's principal violation. See, e.g., Dunson v. Tri-Maintenance Contractors, Inc., 171 F. Supp. 2d 103, 114 (E.D.N.Y. 2001) ("Because a claim under § 296(6) may be made against a defendant who has no control or authority over plaintiff, even a defendant that is an independent contractor for the employer may be held liable, as long as there is direct participation in the discriminatory acts.").⁴²

42 Sowemimo v. D.A.O.R. Sec. Inc., 43 F. Supp. 2d at 490-91, held that the individual defendant who had allegedly engaged in racial discrimination against the plaintiff could not be held individually liable as an aider or abettor because plaintiff could not establish the liability of the "employer/principal." The holding in Sowemimo might seem to suggest that because 141 cannot be held liable, Stern cannot be found liable as an aider and abettor. However, in Sowemimo the plaintiff, who was employed by a different company than the individual defendant, could not establish primary liability against anyone for her discrimination claim. Id. at 490-91. Here, Heskin has established a claim of primary liability against OnSite sufficient to avoid summary judgment, and therefore it is not contrary to Sowemimo to find a viable claim against Stern as an individual aider or abettor to OnSite's discrimination. Further, it is noteworthy that one of the state courts that held that § 296(6) does not allow for individual liability for those "directly perpetrating the harassment within the employment relationship" concluded after a "careful analysis of the statutory scheme . . . that the Legislature intended application of the aiders and abettors provision only to 'parties outside the employment relationship who may assist in employment discrimination.'" Foley v. Mobile Chem. Co., 170 Misc. 2d at 12, 647 N.Y.S.2d at 381. Stern as both an individual "outside the employment relationship" and a "direct perpetrator" of the general harassment falls within the scope of § 296(6) aider and abettor liability.

Accordingly, the Court should deny Stern's summary judgment motion on Heskin's aiding and abetting claims under the NYSHRL and NYCHRL.

VI. STERN SHOULD BE DENIED SUMMARY JUDGMENT ON HESKIN'S INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS CLAIM AND 141 SHOULD BE GRANTED SUMMARY JUDGMENT

Heskin's Fifth cause of action asserts a claim against Stern and 141 "for the tort of interference with prospective contractual relations." (Dkt. No. 1: Compl. ¶ 51.)

To state a claim of intentional interference with prospective contractual relations under New York law, a plaintiff must show that "'a contract would have been entered into had it not been for the conduct of the defendant . . . [and] the means employed to induce a termination of the relationship are dishonest, unfair, or in any other way improper.'" CBS Corp. v. Dumsday, 268 A.D.2d 350, 353, 702 N.Y.S.2d 248, 251 (1st Dep't 2000); see also, e.g., State St. Bank Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 171-72 (2d Cir. 2004),petition for cert. filed, 73 U.S.L.W. 3354 (Nov. 30, 2004) (No. 04-75); Lombard v. Booz-Allen Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002); Moscato v. TIE Tech. Inc., 04 Civ. 2487, 2005 WL 146806 at *5 (S.D.N.Y. Jan. 21, 2005) (Daniels, D.J.);Pacheco v. United Med. Assoc., P.C., 305 A.D.2d 711, 712-13, 759 N.Y.S.2d 556, 559 (3d Dep't 2003); Vigoda v. DCA Prods. Plus Inc., 293 A.D.2d 265, 266-67, 741 N.Y.S.2d 20, 23 (1st Dep't 2002). Improper, or "wrongful" means used by a defendant is defined as "'physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure.'" NBT Bancorp Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 624, 641 N.Y.S.2d 581, 586 (1996).⁴³ The New York Court of Appeals has explained, however, that "wrongful means" "do not . . . include persuasion alone although it is knowingly directed at interference with the contract." Id.; see also, e.g., Carvel Corp. v. Noonan, 350 F.3d 6, 19 (2d Cir. 2000),certified question answered, 3 N.Y.3d 182, 785 N.Y.S.2d 359 (2004); Scutti Enter., LLC v. Park Place Entm't Corp., 322 F.3d 211, 216 (2d Cir. 2003); Discover Group, Inc. v. Lexmark Int'l, Inc., 333 F. Supp. 2d 78, 86 (E.D.N.Y. 2004);Finkelstein v. Wachtel, 00 Civ. 2672, 2003 WL 1918309 at *5 (S.D.N.Y. Apr. 21, 2003); Jabbour v. Albany Med. Ctr., 237 A.D.2d 787, 790, 654 N.Y.S.2d 862, 865 (3d Dep't 1997). Further, to amount to "wrongful means," "the defendant's conduct must amount to a crime or an independent tort." Carvel Corp. v.Noonan, 3 N.Y.3d at 190, 785 N.Y.S.2d at 362.

43 The wrongful means requirement, also referred to as a showing of "malice," must be the defendant's sole motivation.Arts4all, Ltd., v. Hancock, 5 A.D.3d 106, 108-09, 773 N.Y.S.2d 348, 352 (1st Dep't 2004); Scalise v. Adler, 267 A.D.2d 295, 296, 700 N.Y.S.2d 49, 51 (2d Dep't 1999) (affirming Supreme Court's dismissal of claim because plaintiff failed to "demonstrate that [defendant] 'acted with the sole purpose of harming the plaintiffs or engaged in any improper or unlawful conduct, a necessary element of a cause of action alleging interference with prospective contractual relations.'").

Where the plaintiff cannot show that defendant's conduct was criminal or independently tortious, the plaintiff cannot recover unless a recognized exception applies. Id. "Such an exception has been recognized where a defendant engages in conduct 'for the sole purpose of inflicting intentional harm on plaintiff.'"Id. (quoting NBT Bancorp, Inc. v. Fleet/Norstar Fin. Group, Inc., 215 A.D.2d 990, 990, 628 N.Y.S.2d 408, 410 (3d Dep't 1995), aff'd, 87 N.Y.2d 614, 641 N.Y.S.2d 581 (1996); accord e.g., Lombard v. Booz-Allen Hamilton, Inc., 280 F.3d at 214; Albert v. Loksen, 239 F.3d 256, 275 (2d Cir. 2001) ("An at-will employee may maintain a tortious interference claim, however, in 'certain limited situations.' To do so, he or she must establish that a 'third party used wrongful means to effect the terminations such as fraud, misrepresentation, or threats, that the means used violated a duty owed by the defendant to the plaintiff, or that the defendant acted with malice.") (citations omitted emphasis added); Nadel v. Play-By-Play Toys Novelties, Inc., 208 F.3d 368, 382 (2d Cir. 2000) ("Under New York law, the elements of a claim for tortious interference with prospective business relations are: (1) business relations with a third party; (2) the defendant's interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship.") (emphasis added).⁴⁴ If the interference complained of is intended in any way to advance the defendant's "self-interest or economic considerations" then the plaintiff's claim will fail unless the means employed include criminal or fraudulent conduct. Allcar Motor Parts Corp. v.Federal-Mogul Corp., 96 Civ. 4419, 1998 WL 671448 at *5 (S.D.N.Y. Sept. 29, 1998).

44 See also, e.g., Moscato v. TIE Tech., Inc., 2005 WL 146806 at *5; Discover Group, Inc. v. Lexmark Int'l, Inc., 333 F. Supp. 2d at 86; Finkelstein v. Wachtel, 2003 WL 1918309 at *5; Missigman v. USI Northeast, Inc., 131 F. Supp. 2d 495, 514 (S.D.N.Y. 2001) (one of the four conditions that must be met to establish a claim for tortious interference with business relations is that "the defendant acts with the sole purpose of harming the plaintiff, or, failing that level of malice, uses dishonest, unfair, or improper means.").

Because OnSite terminated (or failed to renew) Heskin's employment after Heskin rejected Stern's advances and Stern complained to OnSite about Heskin's job performance, a reasonable jury could infer that OnSite fired Heskin at Stern's request or to retain key client 141's good will. But while Stern's sexual harassment of Heskin obviously was improper, there is no evidence Stern used any improper or wrongful means on OnSite — the evidence is, at most, that he "used persuasion alone" to get OnSite to fire Heskin. However, a reasonable jury could infer from the evidence that Stern acted with no purpose but to harm Heskin's relationship with OnSite (because Heskin spurned his sexual advance). See, e.g., Mendoza v.SSC B Lintas, 92 Civ. 0709, 1995 WL 152545 at *8 (S.D.N.Y. Apr. 6, 1995) (Summary judgment denied where plaintiff alleged that former employer tortiously interfered with his prospective business relations when defendant told his present employer, with whom defendant was negotiating to purchase present employer's business, that plaintiff had filed discrimination suit against defendant and if present employer did not fire plaintiff, defendant would discontinue negotiations.); Bernhard v.Dutchess Cmty. Coll., 80 Civ. 4871, 1982 WL 193 at *14 (S.D.N.Y. Feb. 19, 1982) (denying defendant's motion to dismiss where plaintiff alleged defendant gave her poor evaluations because of his prejudice against women and plaintiff's rejection of his sexual advances, noting that if these were defendant's sole reasons for recommending plaintiff's termination, her tortious interference claim could prevail); see also, e.g., Eisert v. Town of Hempstead, 918 F. Supp. 601, 616 (E.D.N.Y. 1996) (question of fact existed where plaintiff claimed violation of First Amendment rights to political association were violated when she was not hired because of her political affiliation and claimed tortious interference with prospective business relations by third party which allegedly promoted its party affiliate to get the job with the sole purpose of harming plaintiff or through wrongful means). Because the jury could find that Stern acted solely for the purpose of harming Heskin, the Court should deny Stern summary judgment on Heskin's fifth cause of action for tortious interference with prospective contractual relations.

With respect to 141, Heskin argues that 141 could be liable for tortious interference under a theory of respondeat superior because of Stern's conduct. (Dkt. No. 32: Heskin Br. at 16.) However, 141 cannot be held responsible under respondeat superior for Stern's actions of and in furtherance of his sexual harassment of Heskin:

"Under New York law, the doctrine of respondeat superior renders an employer vicariously liable for a tort committed by an employee while acting within the scope of his employment." "However, an employer is not liable for torts committed by the employee for personal motives unrelated to the furtherance of the employer's business."

New York courts consistently have held that sexual misconduct and related tortious behavior arise from personal motives and do not further an employer's business, even when committed within the employment context.

Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998) (citations omitted); see Tomka v. Seiler Corp., 66 F.3d 1295, 1317-18 (2d Cir. 1995) ("[E]mployer is not liable for torts committed by the employee for personal motives unrelated to the furtherance of the employer's business."). (See also cases cited at pages 49-50 above.) Since Stern's sexual harassment was not in furtherance of 141's business, 141 cannot be held vicariously liable for Stern's tortious behavior.

The Court should grant summary judgment to 141 but deny summary judgment to Stern on Heskin's tortious interference claim.

CONCLUSION

For the reasons discussed above, the Court should: (1) DENY OnSite's summary judgment motion, (2) GRANT 141 summary judgment dismissing all claims against it, and (3) GRANT Stern summary judgment dismissing Heskin's primary NYSHRL/NYCHRL liability claim but DENY Stern's summary judgment motion as to Heskin's aiding and abetting and tortious interference claims.

SCHEDULING ORDER

The parties are to serve the joint pretrial order, following Judge Daniels' rules, by March 21, 2005. The case will be considered trial ready on 24 hours notice thereafter before Judge Daniels. Should the parties wish a date certain for trial, they can get that if they consent to trial before me (and a jury) pursuant to 28 U.S.C. § 636(c).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

The filing of objections does not extend the time for filing the joint pretrial order.