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finding that defendant touching plaintiff's shoulders for less than a minute insufficient to claim defendant was homosexual.
Summary of this case from Perry v. SlensbyOpinion
00 Civ. 1275 (KMW) (RLE)
October 7, 2002
Tina C. Kremenezky, Tarrytown, NY, for Plaintiff.
Andrea Green, McGuire, Kehl Nealon, LLP, New York, NY, for Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Thomas Moran ("Moran") filed a complaint pro se on February 22, 2000, against the Fashion Institute of Technology ("FIT") and James DeBarbieri ("DeBarbieri") (collectively, "defendants") alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. On February 8, 2001, Moran, after hiring an attorney, amended his complaint to include a claim against DeBarbieri individually under New York Executive Law § 296(6). On April 3, 2002, defendants filed a motion for summary judgment arguing that: (1) Moran failed to establish a prima facie case of sexual harassment and retaliation; (2) Moran cannot establish that FIT encouraged, condoned or approved the alleged discrimination by DeBarbieri; and (3) Moran's claims of discriminatory acts occurring before February 13, 1998, are time-barred. For the reasons which follow, I respectfully recommend that defendants' motion be GRANTED.
II. BACKGROUND
Moran was employed at FIT from May 1996 until May 1998 as a student account representative in the bursar's office. Defendants' Statement of Material Facts Not in Dispute (Local Rule 56.1), dated March 28, 2002 at ¶ 1. On May 1, 1998, Moran was fired for theft because of a missing $130 payment made on August 20, 1997. Plaintiff's Affirmation in Opposition to Motion for Summary Judgment, dated April 17, 2002, at ¶ 2; Affidavit of Plaintiff Thomas Moran in Opposition to Motion for Summary Judgment, dated April 15, 2002, ("Moran Aff.") at ¶¶ 2, 21. Moran alleges that he was fired in retaliation for complaining about sexual harassment by DeBarbieri.Moran met DeBarbieri in October 1997 when DeBarbieri started working as FIT's bursar. Green Aff. at ¶ 2; Moran Aff. at ¶ 3. From the beginning, Moran got the "distinct impression that [DeBarbieri] was attracted to [him] and wanted [their] relationship to be more than professional." Moran Aff. at ¶ 4. According to Moran, DeBarbieri watched him closely and stared at him wide-eyed; lingered close to his chair and touched his arm and/or shoulder for long periods while speaking to him; complimented his appearance and demeanor; shared his private thoughts and impressions of other bursar office staff; boasted about his authority to run background checks on individuals; and privately let him know that he could arrange for him to get a management level position outside the union contract. Id. at ¶¶ 4, 6, 9. Moran interpreted this behavior — the "excessive attention, sharing of private thought, physical closeness, the touching, the extended eye contact, compliments, and efforts to impress [him] with his importance and power" — as indicators of his sexual interest. Id. at ¶ 5.
In November 1997, Moran and DeBarbieri discovered that a $130 student payment given to Moran in August 1997 was missing. Id. at ¶ 6. According to Moran, DeBarbieri told him "not to worry about it." Id. at ¶ 6. Moran informed the deputy bursar, William Hanauer ("Hanauer"), about the missing money and was told again "not to worry about the situation." Id. at ¶ 9. Hanauer told him that thousands of dollars had been lost before and nothing ever came of it. Id. at ¶ 9.
Later that month, in an interview with DeBarbieri for a full-time position as student account representative, DeBarbieri offered Moran a supervisory position outside the union contract. Id. at ¶ 9; Moran Dep. at 106-07. Because the advancement was beyond what an employee in Moran's position would expect, he "felt that it was offered in a sexual connotation based on [DeBarbieri's] attraction for [him]." Moran Dep. at 107-08; Moran Aff. at ¶ 9. After
the interview, Moran told Hanauer what had transpired and that he thought DeBarbieri made the offer because he liked him. Moran Aff. at ¶ 11; Moran Dep. at 111. Moran says he emphasized the word "like." Moran Aff. at ¶ 11.
On November 24, 1997, Moran was promoted to full-time student account representative. Id. at ¶ 12. According to Moran, DeBarbieri's alleged sexual harassment became even more obvious and embarrassing because he did it in front of his colleagues. Id. at ¶ 13. DeBarbieri approached Moran's window first when he visited the bursar's office; he asked Moran, not his supervisor, questions about office matters; he stood close to Moran's window for long periods of time, touched his arm or shoulder, and bent down to whisper things in his ear. Id. at ¶ 13. Moran maintains that his colleagues and supervisors noticed DeBarbieri's attraction and attention toward him. Id. at ¶ 15. Moran's colleagues ridiculed him by saying, "Jim likes you Tom," and "Jim has the hots for you," and "You can get anything you want from Jim." Id. at ¶ 15. His supervisors, Hanauer, Sharon Dais, and Sue Simmons, "laughed right along." Id. at ¶ 15.
In January 1998, Moran was assigned to work alongside DeBarbieri during spring registration in the school's gym. Id. at ¶ 17. Moran complained to Hanauer because "the assignment meant working long hours directly alongside [DeBarbieri] who, as [Hanauer] well knew, made [him] feel very uncomfortable and threatened." Id. at ¶ 17. Moran worked alongside DeBarbieri for several days in the gym where DeBarbieri hung around him and tried to impress him with his authority. Id. at ¶ 17. After DeBarbieri had an argument with two students, Moran told him he "didn't like him" and he "didn't want him around" and to "leave [him] alone." Id. at ¶ 17. He said, "I'm tired of you being near me and I'm tired of your constant conflicts and you're creating all the problems that you make and I just don't like you and I don't want you near me." Moran Dep. at 134.
According to Moran, DeBarbieri was extremely concerned about the missing $130 in the days that followed. Moran Aff. at ¶ 20. Moran told Hanauer that he thought DeBarbieri's "sudden renewed interest in that issue was prompted by [his] finally rebuffing his attentions the previous evening in the Gym." Id.
Harvey v. Spector ("Spector"), the Treasurer and Vice President for Finance and Operations at FIT, maintains that he recalls being informed by DeBarbieri about the missing money before Christmas 1997, but concedes that FIT's records reveal that DeBarbieri informed him on February 2, 1998. Harvey v. Spector Affidavit in Support of Motion for Summary Judgment, dated March 27, 2002 ("Spector Aff.") at ¶¶ 1, 22 n. 1. Defendants maintain that after DeBarbieri established that the money was missing and there was no credible explanation for its disappearance, Spector made the final decision to fire Moran, effective May 1, 1998. Id. at ¶ 21. Spector says that he waited to fire Moran pending the investigation, which was ultimately completed in February 1998. Id. at ¶ 30.
On December 9, 1998, Moran filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Exhibits to Defendants' Motion for Summary Judgment ("Exh.") 11. On October 22, 1999, the EEOC mailed him a Right to Sue letter. Exh. 12. The instant complaint followed on February 22, 2000. This matter was referred to the undersigned on March 9, 2000.
III. DISCUSSION
A. Timeliness
Defendants argue that Moran's claims of discriminatory acts occurring before February 13, 1998, are time-barred and should be dismissed. Def. Mem. at 22. Moran asserts that these claims fall under the continuing-violation exception because the facts show a continuous practice and policy of sexual harassment beginning in October 1997 and culminating in his retaliatory discharge on May 1, 1998. Pl. Mem. at 24. Moran maintains that these facts are alleged both in his EEOC charge and in the amended complaint, and therefore, they are timely.
Pursuant to 42 U.S.C. § 2000e-5 (e)(1), in order to bring a civil suit under Title VII, a plaintiff must file a charge with the EEOC within 180 days of the alleged discriminatory misconduct. If the charge is first filed with a state or local agency where the state or locality has a law forbidding such conduct, as New York does, plaintiffs time to file a charge with the EEOC is extended to 300 days. Quinn v. Green Tree Credit Corp. , 159 F.3d 759, 765 (2d Cir. 1998). This requirement functions as a statute of limitations because discriminatory incidents not timely charged before the EEOC will be time-barred in district court. Id. ( citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City of New York , 990 F.2d 1397, 1401 (2d Cir. 1993)). The Supreme Court recently held that in hostile work environment cases it does not matter that some of the discriminatory acts are outside of the statutory period. National R.R. Passenger Corp. v. Morgan , 122 S.Ct. 2061, 2074 (2002). "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. However, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 2072.
In the instant case, Moran filed his charge on December 9, 1998, and the EEOC deferred the charge to the State Division of Human Rights. Because some of the alleged acts constituting the hostile work environment are within the statutory period, the Court can consider all of Moran's allegations of a hostile work environment. Id. Moran's quid pro quo claims of sexual harassment, however, are time-barred and therefore cannot be considered by this Court.
B. Summary Judgment Standard
Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the party moving for summary judgment has met its initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to bring forth specific facts to show that there is a material factual question that must be resolved at trial. Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). Additionally, the court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id. at 252; see also Pauling v. Sec'y of Dep't of the Interior , 160 F.3d 133, 136 (2d Cir. 1998). Nevertheless, the party opposing summary judgment "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the adverse party's pleading." Goenaga v. March of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) (citations omitted). Rather, summary judgment must be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 322.
In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any material factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. Chambers v. TRM Copy Ctrs Corp. , 43 F.3d 29, 36-37 (2d Cir. 1994); see also Knight v. United States Fire Ins. Co. , 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). Summary judgment should be granted where no reasonable trier of fact could find in favor of the nonmoving party, H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc. , 879 F.2d 1005, 1011 (2d Cir. 1989), thereby "dispos[ing] of meritless claims before becoming entrenched in a frivolous and costly trial." Donahue v. Windsor Locks Bd. of Fire Comm'rs , 834 F.2d 54, 58 (2d Cir. 1987). Furthermore, when the case involves a claim of discrimination, the court should view the record in its totality, rather than in a piecemeal fashion. Fitzgerald v. Henderson , 251 F.3d 345, 360 (2d Cir. 2001), cert. denied sub nom Potter v. Fitzgerald , 122 S.Ct. 2586 (2002).
C. Hostile Work Environment
1. Standards of Proof
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer[. . .] to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2 (a)(1) (West 1994). Same-sex sexual harassment is actionable as a form of sex discrimination under Title VII where "`members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79-80 (1998) ( quoting Harris v. Forklift Systems, Inc. , 510 U.S. 17, 25 (1993)). The operative inquiry is whether the harassment was "because of [the employee's] sex." Id. at 79.
A plaintiff must establish the following two elements to maintain a claim of hostile work environment: (1) a "`sufficiently severe or pervasive [harassment] to alter the conditions of employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello , 294 F.3d 365, 373 (2d Cir. 2002) ( citing Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). A hostile work environment must be "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton , 524 U.S. 775, 787 (1998). Whether a work environment is sufficiently abusive to be actionable under Title VII depends upon the totality of the circumstances, and includes considerations such as the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. ( quoting Harris, 510 U.S. at 23). See also Alfano, 294 F.3d at 374.
Finally, in same-sex sexual harassment cases, plaintiffs bear one more burden of proof. Normally, to show sex discrimination occurred in male-female or female-male harassment cases, plaintiffs may take advantage of certain inferences which are not available to plaintiffs in a same-sex case. See Ciccotto v. Lcor , 2001 WL 514304*4 (S.D.N.Y. 2001) ( citing Oncale, 523 U.S. at 81). For example, in instances of explicit or implicit sexual proposals or instances of physical conduct, there is a presumption that the conduct occurred because of gender differences. This presumption, however, may not be reasonable in same-sex harassment cases. In those cases, a plaintiff may prevail if he presents: "(1) evidence that the harasser was homosexual and the harassment is motivated by sexual desire; (2) evidence that the harasser is motivated by a hostility to the presence of the victim's sex in the workplace; (3) [or] evidence that the harasser treated males and females differently in a mixed-sex work environment." Id.
2. Same-sex Harassment and Homosexuality
The Court finds that Moran has not met his burden of showing that there is a genuine issue of material fact that DeBarbieri's behavior toward him was because of his sex. Moran has alleged that DeBarbieri's conduct towards him was motivated by sexual desire. He has presented facts demonstrating that DeBarbieri paid a lot of attention to him, stood close to him, touched his arm or shoulder for a minute or less, talked to him about co-workers, and stared at him. Based on his life experiences in social situations, Moran felt that DeBarbieri's actions toward him were sexual, and that DeBarbieri was therefore homosexual. Pl. Mem. at 4; Moran Aff. at ¶ 5. However, Moran has presented no evidence other than his own belief that DeBarbieri was homosexual. He even concedes that he did not know if DeBarbieri was homosexual, nor did he hear of any conversation alleging that DeBarbieri was homosexual. Moran Dep. at 60.
In order to prevail on a same-sex sexual discrimination claim, plaintiffs must present some evidence that the harasser was homosexual. Oncale, 523 U.S. at 80. Courts have uniformly looked for evidence of a harasser's homosexuality in deciding summary judgment motions in cases similar to this. See West v. Mt. Sinai Medical Center , 2002 WL 530984*2 (S.D.N.Y. 2002). The Second Circuit has not addressed the type of proof needed to prove a harasser acted out of homosexuality. However, the Fifth, Ninth and Seventh Circuits have provided some guidance on this issue. See LaDay v. Catalyst Technology, Inc. , 2002 WL 1878750 (5th Cir. 2002); Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001); Shepherd v. Slater Steels Corp. , 168 F.3d 998 (7th Cir. 1999). The Courts look towards two different evidentiary findings for plaintiffs to meet the burden. Plaintiffs must either present (1) evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff' or (2) "proof that the alleged harasser made same-sex sexual advances to others, especially to other employees." LaDay, 2002 WL 1878750. Moran has presented no evidence of DeBarbieri's homosexuality and therefore, no inference can be made to support Moran's contention that DeBarbieri's actions were done out of sexual desire. See, e.g., Id. (evidence that defendant poked plaintiffs anus and was "jealous" of plaintiffs girlfriend gave rise to inference of homosexuality); Shepherd, 168 F.3d at 1009-10 (evidence that defendant "rubbed himself to erection while plaintiff lay on his stomach with cramps, and subsequently threatened to "crawl on top of [plaintiff] and fuck [him] in the ass" gave rise to inference of defendant's homosexuality). Further, Moran has not alleged that DeBarbieri acted out of malice towards males in the work environment nor that DeBarbieri treated males differently from females. Therefore, Moran's same-sex sexual harassment/hostile work environment claims should be dismissed.
Moran alleges that co-workers and supervisors regularly teased him about DeBarbieri's attraction towards him. See Moran Dep. at 95-96. However, while Courts must take "careful consideration of the social context in which particular behavior occurs," Oncale, 523 U.S. at 81, co-worker teasing does not rise to the level of proof necessary to conclude that DeBarbieri was in fact homosexual. See Ciccotto, 2001 WL 514304 at *5.
3. Facially Neutral Conduct
Even if Moran could support his claims that DeBarbieri was homosexual, DeBarbieri's conduct was facially neutral. Moran's claims center around DeBarbieri's actions towards him, in particular, leering, physical closeness and brief touching. However, excessive attention, physical proximity, or touching a person briefly in conversation is not inherently sexual. In Alfano, the Second Circuit dismissed Title VI sexual harassment claims based on facially neutral conduct. The Court observed that facially neutral conduct can be considered in a totality of the circumstances analysis only if "a reasonable fact-finder could conclude that [facially neutral actions] were, in fact, based on sex." Alfano, 294 F.3d at 378. However, the Court went on to state that "this requires some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory." Id. There is no evidence in the record to prove that DeBarbieri's conduct was motivated by sexual desire, nor is there evidence to suggest that DeBarbieri's conduct was motivated by an animus against males in the work place. Therefore, Moran cannot sustain his hostile work environment claims based upon sex-neutral conduct.
4. Lack of Evidence of Hostile Work Environment
Even if Moran demonstrated that DeBarbieri's behavior toward him was because of his sex, no reasonable person would find it hostile or abusive. Faragher, 524 U.S. 787. What Moran maintains is sexual harassment is devoid of the hallmarks of a sexually hostile work environment. The staring, the brief touches on the arm or shoulder when speaking, the talking to him about co-workers and the close proximity when speaking to him do not alter the conditions of employment. Although they were offensive and disturbing to Moran, they cannot be considered severe enough to create an objectively hostile work environment. See, e.g, Ciccotto v. LCOR , 2001 WL 514304, at *5 (S.D.N.Y. 2001); Brennan v. Metro. Opera Ass'n , Inc., 192 F.3d 310, 318-19 (2d Cir. 1999).
While there is no litmus test on the number or severity of incidents to sustain a claim of a hostile work environment, the Second Circuit has recently provided some guidance based on a survey of this circuit and other circuit hostile work environment cases. For example, claims more severe than Moran's have not been found sufficient as a matter of law to alter the terms and conditions of employment. See, e.g., Alfano, 294 F.3d at 378-379 (in a four year period, three incidents of superiors making reference to the way a female employee ate a carrot, a sexually graphic cartoon of plaintiff and disparate disciplinary proceedings); Ouinn, 159 F.3d at 768 (an appreciative comment about plaintiff's buttocks and a deliberate touching of her breasts); Shepherd, 168 F.3d at 872-875 (5th Cir. 1999) (in a two-year period, co-worker made impertinent and intimate observations about plaintiff's anatomy, attempted to look down her shirt, and touched her multiple times); Black v. Zaring Homes , Inc., 104 F.3d 822, 823-824 (6th Cir. 1997) (in a four-month period, repeated sexual jokes and at least five other sexually offensive remarks); Hocevar v. Purdue Frederick Co. , 223 F.3d 721, 735 (8th Cir. 2000) (in a three-year period, several sexually derogatory remarks about women by one or more men, a sexual advance at a company dance, disruption of plaintiff's presentation by talking followed by comment on her legs and a lascivious remark in a group setting by a company official predicting his sexual conquest of three female employees).
Typically, this circuit has found triable issues of fact only when the harassment was of greater frequency or severity than anything Moran has alleged. See, e.g., Raniola v. Bratton , 243 F.3d 610, 621 (2d Cir. 2001) (in a two and a half year period, plaintiff was subject to offensive sex-based remarks, disproportionately burdensome work assignments, workplace sabotage, and one serious public threat of physical harm); Schwapp v. Town of Avon , 118 F.3d 106 (2d Cir. 1997) (in a twenty-month period, ten to twelve instances of explicitly racist conduct, where most of the incidents involved racial jokes and epithets that insulted blacks, Puerto Ricans and people of Middle Eastern origin). In Howley v. Town of Stratford , 217 F.3d 141, 154 (2d Cir. 2000), the Court found a hostile work environment in a firehouse where plaintiff, a female firefighter, was subject to a barrage of sexually explicit and degrading comments in front of subordinates. Subsequently, subordinates refused orders from the female firefighter because of rumors spread about her competence. Id. The Court ruled that "the fomenting of gender-based skepticism as to the competence of a commanding officer [could impair one's] ability to lead in the life-threatening circumstances often faced by firefighters." Id. Moran's allegations do not reach the level of the cases cited. While perhaps annoying and offensive to Moran, DeBarbieri's conduct did not cause a hostile work environment. Accordingly, the Court recommends that defendants' motion for summary judgment be GRANTED on Moran's claim of hostile work environment sexual harassment.
D. Retaliation
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [such employee] has opposed any practice made an unlawful practice by this subchapter[.]" 42 U.S.C. § 2000e-3 (a). Retaliation claims are analyzed in a three-step burden shifting analysis: (1) the plaintiff must establish a prima facie case of retaliation; (2) the defendants must establish a "legitimate, non-retaliatory reason for the complained of action;" and (3) "if the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether [the employer]'s reason was merely a pretext' for retaliation." Quinn, 159 F.3d at 768-69 (citations omitted). In order to establish a prima facie case of retaliation, a plaintiff must show that he "engaged in protected participation or opposition under Title VII, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Fitzgerald, 251 F.3d at 358 ( quoting Sumner v. United States Postal Serv. , 899 F.2d 203, 208-09 (2d Cir. 1990)).
1. Prima Facie Case
In deciding whether or not a plaintiff has made out a prima facie case of retaliation, "[t]he term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination. Cruz v. Coach Stores, Inc. , 202 F.3d 560, 566 (2d Cir. 2000). The employee does not have to demonstrate that the conduct complained about actually violates Title VII, but he must demonstrate a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. Coll. of Physicians Surgeons , 842 F.2d 590, 593 (2d Cir. 1988) (citations omitted). Subjective good faith is not sufficient. Sullivan-Weaver v. New York Power Auth. , 114 F. Supp.2d 240, 243 (S.D.N.Y. 2000) ( citing Manoharan, 842 F.2d at 593). The reasonableness of the employee's belief should be examined "in light of the totality of the circumstances." Galdieri-Ambrosini v. Nat'l Realty Dev. Corp. , 136 F.3d 276, 292 (2d Cir. 1998).
Moran argues that he engaged in a protected activity by complaining repeatedly to Hanauer of DeBarbieri's attentions and then later confronting DeBarbieri. Pl. Mem. at 17. Moran concedes that he did not tell DeBarbieri that he objected to his behavior as quid pro quo sexual harassment, though he maintains that his statements to "stay away" and "leave him alone" had the same meaning and effect on DeBarbieri. Id. at 17. Further, Moran argues that he reasonably believed in "objective good faith" that he had a legitimate claim under Title VII. Id. at 17. Defendants assert that Moran did not complain to DeBarbieri or Hanauer about harassment. Def. Mem. at 16-17. Further, they maintain that "no reasonable person could find that the acts alleged by plaintiff constitute violations of Title VII." Id. at 15.
Moran's retaliation claim fails because he did not engage in a protected activity under Title VII. Moran's "complaints" fall short of the type of activity Title VII was meant to protect. While protected complaints do not necessarily have to be formal, they traditionally are recognized as "making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Cruz, 202 F.3d at 566. ( quoting Sumner, 899 F.2d at 209). The easiest scenario in finding a plaintiff engaged in protected activity is when he or she complains to an administrative body. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (complaint to the EEOC is a protected activity); Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (complaint to EEOC); Quinn, 159 F.3d at 769 (complaint to the New York Division of Human Rights). However, complaints do not have to be made to an administrative body to be protected. See Cifra v. General Electric Company , 252 F.3d 205, 208 (2d Cir. 2001) (complaint to company's human resources department); Wanamaker v. Columbian Rope Company , 108 F.3d 462, 464 (2d Cir. 1997) (complaint to chairman of the board of directors). While courts construe the "protected activity" language liberally, there must be some form of professional indicia of a complaint made against unlawful activity. See Cruz , 202 F.3d at 566 ("[s]lapping one's harasser, even assuming arguendo that [it is done] in response to Title VII-barred harassment, is not a protected activity).
There is nothing in the record to indicate that Moran complained to DeBarbieri about his opposition to an unlawful employment practice." Moran did not tell him to stop sexually harassing him. His complaints of "I'm tired of you being near me and I'm tired of your constant conflicts and you're creating all the problems that you make and I just don't like you and I don't want you near me" are not comments protected by Title VII. Moran Dep. at 134. Further, Moran's complaints to Hanauer were not about sexual harassment. Moran explained to Hanauer that DeBarbieri offered him a job because he liked him. Lastly, Moran concedes that his complaint to Hanauer when he was assigned to work alongside DeBarbieri during registration was not because of harassment. Moran Dep. at 132.
Viewing the evidence in the light most favorable to Moran, the Court finds that no reasonable factfinder could conclude that Moran's complaints were a "protected activity" within the meaning in Title VII. Accordingly, summary judgment should be GRANTED on Moran's retaliation claim.
E. Aiding and Abetting
Moran alleges that DeBarbieri is individually liable under New York Executive Law § 296(6) for aiding and abetting acts made unlawful by the Human Rights Law. Pl. Mem. at 22. A plaintiff must first establish employer liability before prevailing on a claim against a supervisor individually. DeWitt v. Lieberman , 48 F. Supp.2d 280, 293 (S.D.N.Y. 1999) ("There 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 also Lewis v. Triborough Bridge and Tunnel Auth. , 77 F. Supp.2d 376, 382 n. 8 (S.D.N.Y. 1999). Because the Court does not find FIT liable for sexual harassment or retaliation, it need not reach the question of whether DeBarbieri is individually liable as an aider and abetter.
IV. CONCLUSION
For the foregoing reasons, this Court recommends that defendants' motion for summary judgment be GRANTED.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn , 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services , 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).