Summary
requiring plaintiff to file written report to obtain bereavement leave not an adverse employment action
Summary of this case from Joseph v. New York City Department of CorrectionsOpinion
No. 98-CV-0516E(Sr)
December 1, 2000
Jonathan G. Johnsen, Esq., c/o Lipsitz, Green, Fahringer, Roll, Salisbury Cambria, Buffalo, NY, ATTORNEYS FOR THE PLAINTIFF.
Attica Central — Julie Lewis, Esq., c/o Harris, Beach Wilcox, Rochester, NY; Taylor — Lawrence J. Andolina, Esq., c/o Trevett, Lenweaver Salzer, P.C., Rochester, NY, ATTORNEYS FOR THE DEFENDANT.
MEMORANDUN and ORDER
Plaintiff commenced this action August 18, 1998 claiming violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17 ("Title VII") and Section 296 of New York's Executive Law alleging that she had been discriminated and retaliated against because of her sex. Plaintiff also brings various state law tort claims. Jurisdiction is premised on 28 U.S.C. § 1331, 1343, 1367 and 42 U.S.C. § 2000(e). Presently before this Court are motions by defendants Attica Central School District ("Attica Central") and Taylor for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons that follow such motions will be granted in part and denied in part.
"[B]ecause] New York courts require the same standard of proof for claims brought under section 296 *** as for those brought under Title VII, *** [this Court] can analyze these claims in tandem." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). However, it should be noted that, insofar as any Title VII claims have been alleged against Taylor, such claims must fail. Title VII applies only to employers. See Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995). Under New York's Human Rights Law — Article 15 (Sections 290 through 301) of its Executive Law —, it is unlawful "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so." Section 296(6). The Second Circuit Court of Appeals has interpreted this provision to mean that an employee may be sued individually if he "actually participates in the conduct giving rise to a discrimination claim." Tomka, at 1317.
The following facts are drawn from the parties' submissions and all justifiable inferences are drawn therefrom in plaintiff's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Plaintiff was hired by Attica Central as a cleaner on or about July 1, 1996. Attica Central April 7, 2000 Statement 2; Hahn Response to Attica Central 2. At that time defendant Taylor was employed by Attica Central as a custodian. Attica Central April 7, 2000 Statement 3; Hahn Response to Attica Central 3. Plaintiff testified that, shortly thereafter — during the early part of August 1996 —, Taylor approached her, "touched [her] buttocks" and requested that she perform fellatio on him. Hahn Dep. at 24. Plaintiff testified that she reported this behavior to her supervisor, Jim Ewert, sometime in the middle of August but did not explicitly request that Ewert resolve the matter. Id. at 27-28. Plaintiff further testified that, nonetheless, Ewert promised to speak to Taylor about the incident. Id. at 27.
Plaintiff testified that, after she had spoken to Ewert and from about the middle of August 1996 to the beginning of September 1996, Taylor again had approached her a number of times in an unwelcome manner and, at least on one occasion, placed his hands on her breasts. Id. at 30, 296. Plaintiff testified that she brought such actions to the attention of Ewert "around September 2nd." Id. at 31. Plaintiff also testified that she brought such behavior to the attention of Lois Pilc who was her union steward. Id. at 34-36; Pilc Aff. 5. In regard to such touching, however, plaintiff testified that she could not remember the date of any specific occasion. Hahn Dep. At 296.
On or about October 9, 1996 a further "incident" involving plaintiff and Taylor occurred at Attica Central wherein Taylor allegedly approached plaintiff and grabbed her crotch. Attica Central April 7, 2000 Statement 4; Hahn Response to Attica Central 4; Taylor April 6, 2000 Statement 7; Pilc Aff. 7. Plaintiff immediately thereafter sought to complain to Ewert but, Ewert being unavailable, purportedly spoke with Edward Kirby, Attica Central's business manager, about Taylor's behavior. Hahn Dep. at 44. Pilc, who allegedly had observed the October 9 incident, also approached Linda Smith, Assistant Principal at the Attica Central Middle School, and informed her of the incident. Pilc Aff. 12; April 6, 2000 Smith Aff. 6. Smith provided Pilc with a copy of Attica Central's sexual harassment policy along the the form necessary for plaintiff to file a formal complaint. Pilc Aff. 7; April 6, 2000 Smith Aff. 7. Hahn alleges that she completed the necessary paperwork and submitted her sexual harassment claim for consideration but, for reasons not altogether clear, Attica Central claims not to have any record of such a completed sexual harassment form. Hahn Response to Attica Central 5; Hahn Dep. at 79.
During December 1996 plaintiff again made a complaint against Taylor of sexual harassment and spoke directly with Ewert. Attica Central April 7, 2000 Statement 9; Hahn Response to Attica Central 6. Ewert also spoke with Taylor about plaintiff's allegations and "warned" him not to engage in similar behavior in the future. Attica Central April 7, 2000 Statement 8; Hahn Response to Attica Central 8; Taylor April 6, 2000 9. About the same time as her December 1996 complaint, Ewert instituted a "pilot inspection program "whereby school custodians inspected the work of cleaners, including plaintiff's work. Attica Central April 7, 2000 Statement 13; Hahn Response to Attica Central 13. These inspections were conducted by Joane Forsha and Taylor. Attica Central April 7, 2000 Statement 14; Hahn Response to Attica Central 14. Insofar as such inspections pertain to plaintiff, the assessments of Forsha and Taylor were admittedly similar. Attica Central April 7, 2000 Statement 15; Hahn Response to Attica Central 15.
Between December 1996 and August 1997, ten incidents allegedly occurred involving plaintiff and Taylor at Attica Central. Taylor April 6, 2000 Statement 12; Hahn Dep. at 101. Plaintiff apparently did not, however, inform any supervisor of such incidents. Taylor April 6, 2000 Statement 13. It was only after the appointment of a new superintendent, Joseph Rosetti, in August 1997 that plaintiff renewed her allegations of sexual harassment directly to Rosetti. Attica Central April 7, 2000 Statement 22, 24; Hahn Response to Attica Central 22-24. Rosetti then instructed Smith to investigate plaintiff's allegations of sexual harassment by Taylor and, upon the completion thereof, Smith submitted a report dated September 11, 1997 recommending, inter alia, that plaintiff and Taylor not work together absent the presence of some third party and that "it become the practice of the district" for all new employees to be given a copy of Attica Central's sexual harassment policy "before the first day of work" and be trained in the prevention of sexual harassment within seven days thereof. Attica Central April 7, 2000 Statement 29, 30; Hahn Response to Attica Central 29, 30; Smith April 6, 2000 Aff. Ex. B (sexual harassment report).
From the date of Smith's report to February 1998, there appears to have been no other specific incidents of sexual harassment occurring between plaintiff and Taylor. Taylor April 6, 2000 28. Nonetheless, plaintiff filed a criminal complaint February 12, 1998 with the Attica Police Department charging Taylor with Third Degree Sexual Abuse and First Degree Harassment for the incident which occurred October 9, 1996. Attica Central April 7, 2000 Statement 31; Hahn Response to Attica Central 31; Taylor April 6, 2000 Statement 31. On February 13, 1998 plaintiff went on medical leave from Attica Central claiming emotional distress based upon the continuing sexual harassment by Taylor and retaliation by Attica Central. Attica Central April 7, 2000 Statement 32; Hahn Response to Attica Central 32; Taylor April 6, 2000 32. During such leave, plaintiff purportedly informed her treating psychologist that she planned on "quitting" her job at Attica Central. Attica Central April 7, 2000 Statement 34; Taylor April 6, 2000 Statement 33; but see Hahn Dep. at 287 (plaintiff stating that she didn't "recall telling" her treating psychologist about any intention to quit work). Plaintiff argues, however, that her eventual "quitting" was involuntary, inasmuch as she was subjected to "constant harassment by Defendant Taylor" and Attica Central "would take no action to stop Defendant Taylor's behaviors." Hahn Response to Attica Central 34. Nonetheless, the parties are in agreement that plaintiff was never "officially" terminated from Attica Central. Attica Central April 7, 2000 Statement 35; Hahn Response to Attica Central 35; Taylor April 6, 2000 Statement 34.
Summary judgment "shall be rendered forthwith" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCvP 56(c). A factual dispute is material f its resolution "might affect the outcome of the suit under the governing law" and is genuine if it reasonably could be resolved in favor of any party. Anderson, at 248. Evidence submitted by the non-moving party is to be believed and all justifiable inferences are to be drawn in such party's favor. Anderson, at 255. Summary judgment shall be entered against a party bearing the burden of proof at trial if the existence of any element essential to such party's case is not established. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As the nonmovant, plaintiff cannot can defeat a summary judgment motion "by relying on the allegations in [her] pleading *** on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996); see also FRCvp 56(e) ("[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party *** must set forth specific facts showing that there is a genuine issue for trial"). Nonetheless, where an action turns on the intent of a party as employment discrimination claims often do — Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994) —, and "[b]ecause employers rarely leave a paper trial — or `smoking gun' — attesting to a discriminatory intent," this Court must take special care not to make "determinations [that] are, generally speaking, most competently and appropriately made by the trier of fact." Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990). This heightened deference does not mean that this Court should abstain from granting summary judgment where a nonmovant has not satisfied the usual requirements of summary judgment because the "salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Insofar as plaintiff seeks to assert various state law tort claims against Attica Central for the acts of an employee, her claims are limited by the doctrine of respondeat superior. By definition, this doctrine renders Attica Central vicariously liable for the torts committed by its employees acting within the scope of their employment. In this regard, intentional acts of an employee will be deemed to be within the scope of employment if the "general type of conduct may have been reasonably expected." Patterson v. Khan, 659 N.Y So.2d 90 (2d Dep't 1997). Nonetheless, Attica Central will not be "liable for torts committed by an employee for personal motives unrelated to the furtherance of [Attica Central's] business." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). Additionally, "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). Consequently and inasmuch as the alleged sexual misconduct of Taylor was not precipitated by any explicit direction of Attica Central or has not been argued to have been foreseeable within the meaning of respondeat superior — thus falling "outside of the employment relationship" Taylor has with Attica Central — this Court must dismiss the vicarious liability state law tort claims against such defendant. Ibid.
Title VII provides, in relevant part, that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, [or] color ***." 42 U.S.C. § 2000e-2(a). Title VII claims are reviewed under the framework promulgated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. In order to show discriminatory treatment, "plaintiff must [first] establish a prima facie case of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., — U.S. — 120 S.Ct. 2097, 2106 (2000).
Insofar as plaintiff's allegations are premised on a hostile work environment, a prima facie case must demonstrate that (1) she is a member of a protected group, (2) she was the subject of unwelcome advances, (3) the harassment was based upon her sex and (4) the harassment affected a term, condition or privilege of her employment. See Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993). To satisfy the fourth element, moreover, plaintiff must establish that her "`workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (quoting Harris Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Conduct sufficient to create a hostile work environment is that which "a reasonable person would find hostile or abusive." Harris, at 21. "Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Id. at 21-22. An isolated episode of harassment will generally not suffice to demonstrate a hostile work environment, unless the incident was "extraordinarily severe." See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Absent extraordinary severity, plaintiff must show that a "series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Ibid. Moreover, "[t]here is neither a threshold `magic number' of harassing incidents that gives rise, without more, to liability as a matter of law nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson v. New York State Dept. of Corr Ser., 180 F.3d 426, 439 (2d Cir. 1999) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (2d Cir. 1993)). "Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances." Cruz, at 570. The Supreme Court has indicated that some factors germane to such analysis are the frequency of the discriminatory conduct, such conduct's severity, whether such conduct is physically threatening or humiliating, or a mere offensive utterance, and whether such conduct unreasonably interferes with plaintiff's work performance. Harris, at 23.
Once a prima facie case has been established, defendants have the burden of articulating a "legitimate, nondiscriminatory reason" for the adverse employment action. Ibid. If defendants carry this burden, plaintiff must present evidence which proves "by a preponderance of the evidence that the legitimate reasons offered by the [defendants] were not [their] true reasons, but were a pretext for discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, plaintiff need not prove the falsity of the proffered reasons but rather only demonstrate that defendants' "explanation is unworthy of credence." Reeves, at 2106 (citing Burdine, at 256).
It should be noted that it is Attica Central's position that plaintiff cannot meet even her aforementioned prima facie burden. It is also pertinent to note that, inasmuch as plaintiff seeks to hold Attica Central liable for the alleged harassment by Taylor, plaintiff must demonstrate "a specific basis *** for imputing [to Attica Central] the conduct that created the hostile environment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)). If the harasser is a supervisor, Attica Central is presumed liable. Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). "When a `co-employee' — as distinct from a supervisor — is alleged to have engaged in harassing activity, the "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.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (quoting Tomka, at 1305). Further, an employer may avoid liability for conduct alleged against a supervisor by demonstrating, as an affirmative defense, that the employer exercised reasonable care to prevent and promptly correct any sexual harassment by the supervisor and that the employee unreasonably failed to avail herself of any corrective or preventative opportunities provided by the employer or otherwise to avoid harm. Burlington, at 765. Such defense, however, is not available where "the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Faragher, at 808.
Preliminarily, the undersigned notes that the record conspicuously lacks any proof that Taylor acted as plaintiff's supervisor and the fact that Taylor may have inspected plaintiff's work is unavailing. Plaintiff's reliance on E.E.0.C. v. Horizons Hotel Corp., 831 F. Supp. 10 (D.P.R. 1993), is unavailing. Therein, it was found that the defendant could be liable for quid pro quo sexual harassment where a non-supervisory employee was given "de facto" influence over the plaintiff's discharge. Id. at 14. It was expressly noted therein that the plaintiff's "retention as an employee ultimately rested on [such non-supervisory individual's] characterization of her performance Ibid. Turning to the case at hand, there has been no showing of any such influence. In short, whether Taylor's acts of harassment — if such existed — will be imputed to Attica Central is dependent upon whether Attica Central did not provide a reasonable avenue complaint or it knew of Taylor's purported harassment and did nothing about it. Relatedly and inasmuch as plaintiff has never demonstrated that she suffered a "tangible employment action [that] resulted from a refusal to submit to a supervisor's sexual demands," any claim of quid pro quo sexual harassment must also fail. Ellerth, at 763.
Insofar as plaintiff alleges that she has presented a prima facie hostile work environment claim based on her sex, this Court agrees. Plaintiff is clearly a member of a class protected by Title VII. Defendants' arguments to the contrary, she has also adequately alleged that Taylor's actions were unwelcome and that such were precipitated by her sex. In this regard, a contrary decision would necessarily require this Court to impermissibly weigh a party's credibility, inasmuch as the question of whether or not Taylor's conduct was unwelcome would require the undersigned to weigh — and credit — the differences that exist between two very different perspectives of the atmosphere in which plaintiff was employed and in the manner that plaintiff responded thereto. For example, Attica Central argues that plaintiff's "actions toward her co-workers reveal that she was a willing and frequent participant in the conduct at issue." Attica Central June 17, 2000 Mem. of Law at 16; see also Taylor Mem. of Law at 4 (alleging that plaintiff "regularly participated in the sexual joking and sexual innuendo that occurred between the male and female employees"). However, plaintiff has testified and introduced credible evidence traversing such position. See Glor Dep. at 13 (Attica Central employee stating that she never saw plaintiff participate in "sexual joking or teasing"); Knouse Dep. at 15 (Attica Central employee stating that he did not remember plaintiff wearing "tight" or "provocative" clothing). Further and insofar as defendants argue that plaintiff has not met the fourth element of her burden — i.e., that such environment was subjectively and objectively hostile —, the undersigned notes that the totality of the circumstances weighs in favor of a finding that such has been satisfied. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (noting that where the plaintiff "could recall the exact dates and circumstances of only a few incidents of harassment," a jury could still "reasonably find pervasive harassment, even in the absence of specific details about each incident"). Indeed, the October 9, 1996 incident alone appears sufficiently severe, in and of itself, to have altered the conditions of her working environment.
Finally, Taylor's argument that plaintiff has failed to "meet her burden of proving that Attica Central did not have a reasonable avenue available for sexual harassment complaints or that Attica Central knew of the alleged continuous conduct, but did nothing about it" is unavailing. Taylor April 5, 2000 Mem. of Law at 11. As submitted, there are genuine issues of fact which exist in the record as to either prong of such affirmative defense. Firstly, plaintiff has testified that she did not know of Attica Central's sexual harassment policy until after such purported harassment had begun and then only after the October 9, 1996 incident had occurred. Secondly and if plaintiff's testimony is believed to be credible, an investigation of the October 9, 1996 incident occurred only after several months had passed and then only after plaintiff had lodged a number of complaints. Consequently, it is beyond the purview of this Court to determine whether plaintiff has met her burden of showing that Attica Central did not have a reasonable avenue available for sexual harassment complaints or that Attica Central knew of the alleged continuous conduct and did nothing about it.
Title VII also states that a "[i]t shall be an unlawful employment practice for an employer to discriminate against any of [its] employees or applicants for employment *** because [she] has opposed any practice made an unlawful employment practice by this title, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. 2000e-3(a). To establish a prima facie case, plaintiff must show that she took part in an activity protected by Title VII, that Attica Central was aware of the activity that plaintiff suffered an adverse employment action and that there is a causal link between the protected activity and the adverse action. Tomka, at 1308. If plaintiff can make out a prima facie case, her claim is then analyzed according to the aforementioned McDonnell Douglas burden-shifting analysis. Sumner v. United States Postal Serv., 899 F.2d 203, 208 (2d Cir. 1990).
Defendants argue that plaintiff's retaliation claims must be dismissed because she cannot show that an adverse employment action was taken against her after the lodging of her sexual harassment claims. Taylor also indicates that, to the extent that she appears to be pressing a claim for constructive discharge, plaintiff has similarly not carried her respective burden. While not explicitly set forth in plaintiff's memorandum of law plaintiff principally argues that retaliation is evidenced by the introduction of the inspection program at her place of employment because of her complaints of sexual harassment, by her being reprimanded for leaving work without permission and by her being asked to produce written verification of a familial relationship after plaintiff took bereavement leave. See, e.g., Compl. ¶¶ 23-28; Plaintiff's June 5, 2000 Mem. of Law at 9-10. Plaintiff's testimony, however does not support such assertions.
"Title VII does not "define adverse employment action solely in terms of job termination or reduced wages and benefits, and *** less flagrant reprisals by employers may indeed be adverse.'" Richardson, at 446 (quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)). A "plaintiff may suffer an `adverse employment action' if she endures a "materially adverse change in the terms and conditions of employment.'" Ibid. (citing Torres, at 640). Nonetheless, plaintiff has still failed to introduce any evidence of an adverse employment action taken against her. Firstly, plaintiff has testified that she was never denied income or salary, raises or benefits while employed at Attica Central. See Hahn Dep. at 287-290. Secondly, plaintiff's claim that the pilot inspection program was retalitory is belied by her admission that all cleaners in her workplace were subject to such inspection. Id. at 174. Indeed, plaintiff's testimony with regard to such plainly reveals the conclusory premise underlying this particular claim:
"Q: How is it that you were treated differently from these other cleaners if everyone was subject to them and everyone was subject to them being done by Roger Taylor and Joanne Forsha?
"A: Let me think on that one. As I said, I feel that I was being treated unfair by the, you know unconclusion [sic] that I found in my unit, that I did not agree with what was wrote on these inspections, on my inspection. I did not read anyone else's inspection to say how does mine compare to you. It wasn't a comparison contest. I evaluated myself in this area where they — where I felt they found me to be unconclusive." Hahn Dep. at 176.
Plaintiff's feelings aside, the fact that there is nothing in the record substantiating her "evaluation" of her work vis-a-vis other cleaners is fatal to such claim — i.e., without such comparison, a determination of whether her treatment under such program was retalitory is impossible. Thirdly, insofar as plaintiff claims that she suffered retaliation by being reprimanded for leaving work without permission, she has admitted that she had left work without permission "on at least one occasion" and that, where "validated," a subsequent warning would not be retaliation. Hahn Dep. at 256. In light of such revelation, her opinion as to the purported retalitory basis for the issuance of such warning remains purely speculative. Relatedly, plaintiff has not shown how such warning led to a materially adverse change in the terms and conditions of her employment. Fourthly, insofar as plaintiff claims that it was retalitory for Attica Central to request written verification of a familial relationship after plaintiff took bereavement leave, plaintiff has not shown how such request led to a materially adverse change in the terms and conditions of her employment. Indeed, plaintiff also admits that, in light of the fact that she was unrelated to the deceased and did not qualify for bereavement leave, Attica Central's actions were "appropriate." Hahn Dep. at 259-262.
To establish a claim for constructive discharge, Attica Central must have deliberately made plaintiff's "working conditions so intolerable that [she] is forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 E2d 322, 325 (2d Cir. 1983) (citing Young v. Southwestern Savings and Loan Assoc., 509 F.2d 140, 144 (5th Cir. 1975)). "[D]ifficult or unpleasant" working conditions are not sufficient to sustain a claim of constructive discharge. Ibid. Alicea Rosado v. Garcia Santiago, 562, F.2d 114, 119 (1st Cir. 1977). Moreover, "a constructive discharge cannot be proven merely by evidence that [plaintiff] disagreed with [Attica Central's] criticisms of the quality of [her] work, or did not receive a raise, or preferred not to continue working for [Attica Central]." Spence Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993). As applied to the instant matter and under this standard, there appears to be some question as to whether plaintiff's working conditions were so intolerable that a similarly situated reasonable person would have felt compelled to resign. Drawing all justifiable inferences in favor of plaintiff, it simply cannot at this point be said that Taylor's behavior did not create such an intolerable environment and that his behavior was not "deliberately" maintained by Attica Central through its alleged "knowing" inaction.
Accordingly, it is hereby ORDERED that plaintiff's state law tort claims against Attica Central are dismissed, that any Title VII claims made against Taylor are dismissed, that any claims which seek to impute the conduct of Taylor to Attica Central based on some supervisory position are dismissed, that any quid pro quo sexual harassment claims are dismissed, that plaintiff's retaliation claims are dismissed and that defendants' motion is otherwise denied.