ROJAS v. ROMAN CATHOLIC DIOCESE OF ROCHESTER

<>ckquote Q. And what did he say or what did you say and what did he say?

A. He said to me that first, he's a priest. And second, that he's going to have lunch with him to talk about it.

Q. Okay. Anything else?

A. No.

Q. And you said to him that the priest is making life miserable for you?

A. Yes.

Q. Did you say anything else?

A. No.

[#53-3] at 3-4. In this regard, although Plaintiff indicated that she made the "miserable" comments in August, as opposed to November, she still did not indicate that she told Grizard that she was being sexually harassed. Later during the deposition, though, Plaintiff added that, also during the August 8^th meeting, she told Grizard that Enyan-Boadu was "touching" her:

Plaintiff indicated initially at the criminal trial that she made such a statement in August 2006, but later recanted that testimony on re-direct.

Q. . . . [D]id you ever tell anybody at that point that you were being sexually assaulted?

A. Bernard. The Diocese knew it.

Q. How did they know?

A. My life was making miserable. I was just crying with them.

Q. But did you ever tell them you were being sexually assaulted?

A. I said that Father Peter was touching me.

Q. Now, you're under oath now. You understand that?

A. Yes.

Q. Are you telling me that you said that Father Peter was touching you —

A. Touching me, yes.

Q. When?

A. I said to Bernard in the meeting on August 8 ^th, "He's making my life miserable."

Q. What else?

A. "And he's touching me."

Q. And that's your testimony?

A. Yes.

Q. Okay. What was his response?

A. He's going to have lunch with him and he's a priest.

[#53-3] at 14-15. Plaintiff also added, for the first time, that at some point prior to September 2006, she told Grizard that she wanted to move her office to the Newman Center at SUNY Brockport, because her life was in danger at Nativity Church from Enyan-Boadu. Pl. Dep. at 173-175. Plaintiff further indicated that she telephoned Grizard on October 30^th, not because of the dispute over the Dia de los Muertos Mass, but because she was being sexually assaulted:

Q. Okay. An was your purpose in calling him [Grizard] that morning to head off a call from Father Peter?

A. No. I going to be sexually assaulted for the third time, for the fourth time. I don't know how many times.

***

Q. Okay. So what did you say [at the meeting]?

A. I was sitting there and I told the two of them — I said this is going to — "This is what is going on, Bernard." And then I accuse Father Peter that he's touching me and kissing me.

Plaintiff's Exhibits, Vol. I, Ex. A at 194-196; see also, id. at 198. Plaintiff further testified that she never indicated that she was quitting her job. Id.

During the deposition, Plaintiff agreed that she failed to attend a meeting with Grizard on November 3, 2006. Plaintiff's Exhibits, Vol. I, Ex. A at 226; [#53-5] at 23-24. She also stated that she skipped meetings with Pedeville and Grizard, on November 6^th and November 7^th respectively, for various reasons, including that her sister was sick, it was supposed to be her day off, and she was emotional. Id. at 226-228, 238-241. It is important to note that it was Plaintiff herself who rescheduled the meeting with Grizard for November 7, 2006, and who asked for the meeting with Pedeville on November 6, 2006. Id. 238-240. However, Plaintiff cancelled both meetings. Id. at 240-241. Most significantly, Plaintiff indicated that she had wanted the meeting with Pedeville to tell her about "the sexual attacks." Id. at 262.

Also during her deposition by DOR's attorney on April 7, 2009, Plaintiff testified concerning her meeting with Grizard and Bauer, and in particular, about her claim that Bauer prevented her from complaining about sexual harassment during the meeting:

I get into the meeting. I didn't know who this woman was physically. I never met her in my life. I didn't know many people of the Diocese. I was working in the third floor and I didn't know all the employees. I didn't know she was Human Resources person. It was this woman there and she ask me if I going to resign and I said no. And I start just crying and said "No. I don't want to resign." And I said in front of Bernard, "I don't want to resign." And then she said to me — and I said "Well, if you are here, I going to tell you about this in the moment." And she put her hand and said "Stop, stop. I'm not here for that. Don't tell me that. Sign this paper." And she want to give me a paper. I was there and I said to Bernard — I said to Bernard and I said to that woman, I said "Do you know what? Mentally, I cannot sign anything. Emotionally, I cannot sign anything. I could not sign anything. What are you asking me to sign? Sign what?"

[#53-4] at 42-43. This testimony, which purports to state exactly what Plaintiff said to Bauer, does not mention Enyan-Boadu or sexual harassment.

Notably, this detailed testimony is contrary to Plaintiff's conclusory statement, in her Amended EEOC Complaint, that she "started to explain to [Bauer] about the hostile environment and work conditions in my work place."

On June 30, 2009, Plaintiff was deposed by Enyan-Boadu's attorney. Plaintiff was asked several questions concerning whether she reported the alleged harassment to the Diocesse. Contrary to her prior deposition testimony, Plaintiff essentially reverted to the testimony that she gave on re-direct at the criminal trial, and indicated that she did not report harassment by Enyan-Boadu prior to October 2006, because she was afraid. Upon further questioning, she testified that she could not recall whether she complained to Grizard about sexual harassment in August 2006:

Q. Following [the alleged harassment by Enyan-Boadu on] July 2 ^nd, 2006, did you report that incident to Mr. Grizard?

***

A. I don't want to take the question out of the context. The context is that Peter Enyan threatened me. He threatened me. How can I report when he threaten me? That's my answer to you, sir.

***

Q. Did you report the incident of July 23 ^rd, 2006 to Mr. Grizard?

A. He threatened me. When he threatened me I couldn't. I couldn't report to Mr. Grizard.

Q. Did you report the incident to the Brockport Police?

A. I did.

***

Q. On August 8, 2006 did you meet with Mr. Grizard at the Diocesan office?

A. I don't recall. I need to see a calendar. I can't — I met with Mr. Grizard on the 30 telling Mr. Grizard that Peter Enyan-Boadu sexually assaulted me. Peter Enyan-Boadu was telling Mr. Grizard telling him [sic] and Peter Enyan said that I'm possessed by demons and that I'm a crazy person. So I had the meeting with Mr. Grizard on October 30 ^th. I spoke with him on the 31 ^st. I talked to Father Jesus on November 1 ^st and Mr. Grizard.

***

Q. On August 8 ^th, 2006 did you meet with Mr. Grizard?

A. I have to clarify that English is my third language and sometimes I don't understand questions and I don't recall the time, sir.

Q. You do not recall meeting with Mr. Grizard on August 8 ^th, 2006 at the Diocesan Office?

A. I don't recall. I have several meetings and I don't recall specific days.

***

Q. All right. And now as you look at this [Deposition Exhibit 13, Plaintiff's performance evaluation] do you recall whether or not you at that time [August 8, 2006] made any complaints to Mr. Grizard about sexual harassment?

A. Attorney Schiano, you ask me the same question in the criminal case and I want to answer same way to you that I make some complaints to Mr. Grizard.

Q. No, I'm —

A. I did.

Q. And I'm talking about this date August 7 ^th or August 8 ^th when you met at the Pastoral Center with Bernard Grizard and I've given you Exhibit 13 — or your attorney has.

A. Yes.

Q. And looking at Exhibit 13 is there any reference in there to any sexual harassment?

A. I don't recall at this time.

Q. Okay. Now, your testimony is you don't recall whether on August 7 or August 8 you complained of any sexual harassment to Mr. Grizard; is that correct?

A. That's correct.

Pl. Exhibits Vol. I, Ex. A at 484-546 (emphasis added). Plaintiff further indicated, during the deposition, that she was not sure who her supervisor was. Id. at 507 ("They never clarify who was my boss. I reported to [Grizard], to Peter Enyan-Boadu, to Father Flores. So who was my boss, sir, I don't know.").

On January 28, 2010, Defendants filed the subject motions for summary judgment [#51][#52]. Enyan-Boadu's motion is made pursuant to FRCP 56, or alternatively, pursuant to FRCP 12(b)(6). Enyan-Boadu demands judgment on the hostile environment claims and retaliation claims under Title VII, since he is not an "employer" under that statute. Enyan-Boadu further contends that he cannot be directly liable under the NYHRL, because he is not an employer, and also contends that he cannot be liable under that statute as an aider and abettor, since Plaintiff cannot establish that DOR committed a primary violation. Additionally, Enyan-Boadu contends that the Court should decline to exercise subject-matter jurisdiction over any remaining state-law claims, and dismiss them pursuant to 28 U.S.C. § 1367(c). Enyan-Boadu does not make any substantive argument regarding the merits of Plaintiff's state-law battery claim against him.

DOR maintains that it cannot be liable for any hostile work environment created by Enyan-Boadu, since he was not Plaintiff's supervisor, since DOR provided Plaintiff with an avenue of complaint which she did not use, and since it had no notice of the alleged harassment until after the fact. DOR also contends that the Court lacks subject-matter jurisdiction over Plaintiff's retaliation claim, pursuant to the "ministerial exception." On this point, DOR maintains that the exception applies, because "the dispute that led to Plaintiff leaving the Diocese had its genesis in a religious matter involving the Day of the Dead liturgy on October 30, 2006." DOR Memo of Law [#54] at 19. Additionally, DOR states that "the reason [it] ended Plaintiff's employment on November 9, 2006 was its belief that she no longer had the ability to serve the ministerial needs of the Hispanic migrant population." Id. According to DOR, "[t]he Court is prohibited from considering whether that reason was false and pretextual because to do so would constitute impermissible entanglement with religious doctrine." Id. (citation and internal quotation marks omitted). Alternatively, DOR argues that Plaintiff cannot establish a prima facie case of retaliation, since she did not engage in protected activity, and since there is no causal connection between any protected activity and the termination of her employment. DOR further indicates that even assuming Plaintiff can demonstrate a prima facie case of retaliation, she cannot show that DOR's reason for terminating her employment was pretextual.

In support of its motion, DOR relies, inter alia, on affidavits from Grizard [#53-6] and Bauer [#53-7]. Grizard's affidavit states, in pertinent part, the following: 1) Plaintiff and Enyan-Boadu each complained about each other to him, concerning problems over the use of the Nativity Church facilities; 2) Plaintiff never told him that Enyan-Boadu was sexually harassing her, and in particular, she never stated that Enyan-Boadu had touched her or kissed her; 3) on October 30, 2006, Plaintiff resigned; 4) Grizard told Plaintiff to think about it overnight, but the following day, October 31, 2006, Plaintiff reiterated that she resigned; 5) on November 1, 2006, Plaintiff indicated again that she resigned, though she later called Grizard and stated that she had not formally resigned because she did not resign in writing; 6) Grizard made an appointment to meet with Plaintiff on November 3, 2006; 7) on November 2, 2006, Plaintiff sent Grizard an email, reiterating that she had not formally resigned, and stating that she hoped he would understand her better after the meeting on November 3^rd; 8) on November 3^rd, Plaintiff called and asked that the meeting be rescheduled, and Grizard rescheduled the meeting or November 7, 2006; 9) on November 5, 2006, Plaintiff failed to attend the Migrant Ministry Mass, which was part of her job duties; 10) on November 6, 2006, Plaintiff cancelled the meeting that she had scheduled with Pedeville; 11) on November 7, 2006, Plaintiff failed to attend her meeting with Grizard, and when Grizard telephoned her, she stated that she had forgotten the time; 12) Plaintiff did not perform any work for DOR after November 2, 2006; 13) on November 9, 2006, Grizard notified Plaintiff that her employment was terminated, and that she would be paid through November 28, 2006; and 14) Grizard did not learn of Plaintiff's accusations against Enyan-Boadu until after Enyan-Boadu was arrested. [#53-6]

Enyan-Boadu did not submit a statement of facts under Local Rule 56.1 or a Memorandum of Law, but instead, relies upon, and incorporates by reference, DOR's submissions.

Grizard testified at his deposition that Enyan-Boadu was not Plaintiff's supervisor. Grizard Dep. at 66.

Bauer states in her affidavit, in pertinent part, the following: 1) Plaintiff was provided with DOR's written policies on sex harassment, and also received training on sexual harassment; 2) on October 31, 2006, Plaintiff told Bauer and Grizard that she resigned; 3) when Bauer told Plaintiff that her resignation would be effective in thirty days, pursuant to DOR's usual policy, Plaintiff indicated that she wanted to work through the end of 2006, and declined to put her resignation in writing; 4) Bauer again asked Plaintiff if she wanted to resign, and Plaintiff stated that she wanted to resign, but that she wanted to work until the end of the year; 5) Grizard told Plaintiff that her last day of work would be November 28, 2006; 6) Plaintiff never indicated that she was being sexually harassed by anyone, and did not mention Enyan-Boadu; 7) on November 2, 2006, Plaintiff sent an email to Pedeville, asking her to schedule a meeting on November 3, 2006; 8) the subject line of Plaintiff's email to Pedeville stated, "Sexual Misconduct Education/Awareness Workshops"; 9) Pedeville was not in her office on November 2^nd, and subsequently scheduled a meeting with Plaintiff on November 6, 2006; 10) Plaintiff did not attend her meeting with Pedeville; 11) Bauer did not learn of Plaintiff's accusations against Enyan-Boadu until after Enyan-Boadu was arrested; 12) following Enyan-Boadu's arrest, Pedeville conducted an investigation, in which Plaintiff declined to participate; and 13) as part of her investigation, Pedeville interviewed Lisa O'Brien, who stated that on November 1, 2006, Plaintiff told her that she had resigned her position, and O'Brien advised Plaintiff that her resignation was not effective if she did not make it in writing.

In opposition to Enyan-Boadu's motion, Plaintiff indicates, at the outset, that she is not asserting claims against him individually under Title VII or NYHRL. Pl. Memo of Law [#61-2] at 3-4 ("Plaintiff has not plead individual liability as against Peter Enyan-Boadu under Title VII or the NYSHRL.") Accordingly, Enyan Boadu is granted summary judgment on all Title VII and NYHRL claims, and the only claim remaining against him is the state-law battery claim. Plaintiff's papers do not address Enyan-Boadu's argument that the Court should decline to exercise supplemental jurisdiction over the state-court battery claim, in the event that all federal claims are dismissed.

Plaintiff contends, though, that the Court should deny Enyan-Boadu's motion, since he has not submitted a separate statement of facts and memo of law. However, Enyan-Boadu has joined in DOR's motion, and adopts DOR papers as his own.

In opposition to DOR's motion, Plaintiff contends that she has established a prima facie case of hostile environment harassment, and that liability for Enyan-Boadu's actions should be imputed to DOR, since Enyan-Boadu had supervisory authority over her, and since DOR had constructive notice of the harassment and failed to take remedial action. Pl. Memo of Law [#60-4] at 8-9. Plaintiff also maintains that her retaliation claim is not barred by the ministerial exception. Additionally, Plaintiff indicates that she has established a prima facie case of retaliation, and that DOR's proffered reason for terminating her employment is pretextual. In support of her opposition, Plaintiff submits, inter alia, her own affidavit. The affidavit states, in pertinent part, the following: 1) Plaintiff graduated summa cum laude from college in Mexico and earned a master's degree in theology in the United States; 2) Plaintiff received sexual harassment training from DOR, though the training "never covered what to do if a priest sexual [sic] harasses an employee"; 3) Grizard "was at least one of [Plaintiff's] supervisors and [she] reported to him most of the time," though she "was never clear on who her boss was"; 4) Plaintiff "complained to [her] supervisor Grizard on numerous occasions of the conduct of Father Peter"; 5) on August 8, 2006, Plaintiff told Grizard, "Father Peter was making [her] life miserable and that something needed to be done"; 6) Plaintiff told people that Enyan-Boadu was angry with her; 7) "On August 8, 2006, I told Grizard, `he's making my life miserable and he's touching me;" 8) at the meeting with Grizard on October 30, 2006, she told Grizard, "Father Peter is touching me and kissing me"; 9) Plaintiff never told Grizard that she resigned; 10) Grizard told Plaintiff to "put everything in writing" to him; 11) on October 31, 2006, Plaintiff "attempted in good faith" to tell Bauer "what my complaints were"; 12) Plaintiff told Grizard that her "life was at risk" at the Nativity parish, but Grizard did not respond; 13) Plaintiff sent an email to Pedeville, asking for a meeting, and never received a response; and 14) Plaintiff cancelled her meetings with Grizard because her sister was sick, she needed a day off, she was crying, and she was upset that Grizard sent out an email telling people that she had resigned.

In her memo of law, Plaintiff attempts to show that she complained about Enyan-Boadu for two years prior to 2006. In that regard, she states: "Here, prior to August 2006, Rojas complained to Grizard for over two years regarding Father Peter. She also complained to Father Mike Hobson and different staff members and Father Jesus. Rojas said: "he's angry with me because I move the basket, he's angry with me becuase I didn't turn off the light, he's angry with me because of the door, he's angry with me for this and this and this." Rojas told Grizard this on several occasions." Pl. Memo of Law at [#60-4] at 22. As discussed further below, such general complaints would not constitute protected activity under Title VII. Also as discussed further below, to the extent that Plaintiff is now attempting to argue that she made complaints of sexual harassment at those times, her argument is contrary to her prior sworn statements and pleadings.

Plaintiff also submits nine other affidavits, which are largely, if not entirely, irrelevant and inadmissible. See, Pl. Exhibits Vol. III. For example, Plaintiff submits an affidavit from Gary Leistman, whose wife used to work with Enyan-Boadu, stating that Enyan-Boadu was mean to his wife. Leistman also offers observations such as, "I believe that Fr. Peter had pity for himself," and, "Over in Fr. Peter's native country, Ghana, women are dominated." Plaintiff also offers an affidavit from Monica Anderson, who states, in pertinent part, "My perception is that Father Enyan-Boadu was insensitive to the Migrant community." Another affidavit, from Jeanne Rivera, states, in pertinent part: "I observed Father Enyan-Boadu treat Ms. Rojas in a demeaning manner while speaking to her about Religious Education. He wasn't even her supervisor and yet he demanded that she ask his permission before she did anything." (emphasis added). Another affidavit, from Kathleen Gilliam, offers this opinion: "I find Ms. Rojas credible because she has the type of personality that a predator can easily take advantage of. Especially one in position of authority at a religious institution." None of the affiants has personal knowledge about whether Plaintiff complained to DOR of sexual harassment.

Like so many of Plaintiff's other averments, this statement is directly contradicted by her prior sworn statements. At her deposition, Plaintiff, when asked if she spoke to Pedeville after November 2, 2006, responded, "Maybe I did. I just don't remember exactly those time, those hours." Pl. Dep. at 229. Later, though, during the deposition, Plaintiff admitted that Pedeville had called her and scheduled an appointment: "Q. Did you schedule a time to meet with Barbarba Pedeville? A. Yes, but she didn't call me immediately. I don't remember what day we schedule the meeting." Pl. Dep. at 239 (emphasis added). The statement is also internally inconsistent with other statements in Plaintiff's affidavit, since at paragraph 101 of the affidavit, she indicates that she rescheduled her meeting with Pedeville. Astonishingly, still later in her affidavit, Plaintiff again attempts to give the impression that Pedeville ignored her, stating, "Pedeville never responded to my November 2, 2006 email regarding the sexual attack." [sic]

On September 23, 2010, counsel for the parties appeared before the undersigned for oral argument.

ANALYSIS

Rule 56

Summary judgment may 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed.R.Civ.P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).

Plaintiff's Sham Evidence Submitted in Opposition to Summary Judgment

At oral argument, the Court reminded the attorney appearing for Ms. Agola's firm of the Rule 11 caution previously given to her in Kleehammer v. Monroe County, No. 09-CV-6177 CJS, ___ F.Supp.2d ___, 2010 WL 3609707 (W.D.N.Y. Sep. 8, 2010).

At the outset, before addressing the merits of the pending motions, the Court must address certain evidence which Plaintiff has submitted. In this regard, the Court is well aware that on summary judgment, it may not resolve issues of credibility. However, this case goes far beyond simple issues of credibility. Rather, upon the entire record, Plaintiff has changed key aspects of her prior version of events, set forth in pleadings, trial testimony, and sworn discovery responses, in an attempt to defeat DOR's summary judgment motion.

The Court in no way suggests that Plaintiff's accusations against Enyan-Boadu are false. That issue is not before the Court.

It is well settled that the party opposing summary judgment may not create a triable issue of fact "merely by submitting an affidavit that disputes his own prior sworn testimony." Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citations omitted). Rather, such affidavits are to be disregarded. Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) (citations omitted).

Similarly, a party cannot attempt to defeat a summary judgment motion by contradicting factual allegations in his complaint. See, Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528-529 (2d Cir. 1985) ("A party's assertion of fact in a pleading is a judicial admission by which it normally is bound throughout the course of the proceeding. Accordingly, the district court properly disregarded Universal's affidavits seeking to controvert its own pleading."); Webadviso v. Bank of America Corp., No. 09 Civ. 5769 (DC), 2010 WL 521117 at *2 (S.D.N.Y. Feb. 16, 2010) ("[Plaintiff] cannot now take a position, in an effort to defeat summary judgment, that so clearly contradicts the allegations of his own complaint."); Healy v. City of New York Dept. of Sanitation, No. 04 Civ. 7344 (DC), 2006 WL 3457702 at *5 (S.D.N.Y. Nov. 22, 2006) ("[Plaintiff] cannot create a genuine issue of material fact by contradicting his statements in prior pleadings and prior sworn testimony with a conclusory statement lacking supporting arguments and facts."); DeSilvis v. National Railroad Passenger Corp., 97 F.Supp.2d 459, 462 (S.D.N.Y. 2000) ("A party opposing summary judgment cannot create a triable issue of fact by submitting an affidavit that denies his previously sworn statements or otherwise contradicts his previous testimony. This is also true of affidavits that contradict the facts within the affiant's pleadings that are within his own realm of personal knowledge.") (citations omitted); Clarke v. JPMorgan Chase Bank, N.A., 2010 WL 1379778 at *14 (S.D.N.Y. Mar. 26, 2010) (Rejecting plaintiff's "last-ditch effort" to avoid summary judgment, court held that "it is well established that a party cannot contradict its own pleading with affidavits.") (citations omitted); Southwick Clothing LLC v. GFT (USA) Corp., No. 99 CV 10452 (GBD), 2004 WL 2914093 at *6 (S.D.N.Y. Dec. 15, 2004) ("Those factual allegations [in plaintiffs' amended complaint] are judicial admissions that bind plaintiffs throughout the course of the litigation. Plaintiffs cannot survive a summary judgment motion by contradicting their own pleadings in an effort to raise a genuine issue of fact. A complaint cannot be amended merely by raising new facts and theories in plaintiffs' opposition papers, and hence such new allegations and claims should not be considered in resolving the motion.") (citations omitted); In re Refco Inc., Securities Litigation, No. 07-MDL 1902 (JSR), Nos. 08 Civ. 3086 (JSR), 08 Civ. 3065 (JSR), 2009 WL 5548666 at *9 (S.D.N.Y. Nov. 16, 2009) ("The allegations . . . have been formally asserted three times, in the original Complaint, in the Amended Complaint and, most recently, in the proposed Second Amended Complaint. Plaintiffs are bound by the assertions made repeatedly in their own pleadings, which now constitute three layers of judicial admissions.") (Report Recommendation of Special Master) (citation omitted).

Moreover, in rare cases, a plaintiff's testimony may be so contradictory and incomplete that it fails to create a genuine issue of material fact:

While it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any "genuine" issues of material fact, without making some assessment of the plaintiff's account. Under these circumstances, the moving party still must meet the difficult burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder could base a verdict in the plaintiff's favor.

Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).

In this case, based on the foregoing applicable principles of law, the Court disregards several of Plaintiff's factual averments submitted in opposition to summary judgment. Specifically, the Court disregards the following contentions by Plaintiff: 1) that Enyan-Boadu was one of her supervisors; 2) that on August 8, 2006, Plaintiff told Grizard that Enyan-Boadu was making her miserable, or that Enyan-Boadu was touching her; 3) that on October 30, 2006, Plaintiff told Grizard that Enyan-Boadu had touched, kissed, or otherwise sexually harassed her; 4) that Plaintiff told Grizard that Enyan-Boadu was sexually harassing her at any time; 5) that Plaintiff told Grizard that she was in danger from Enyan-Boadu at the Nativity parish; and 6) that Pedeville failed to respond to Plaintiff's request for a meeting.

Plaintiff specifically stated, in both her Complaint and Amended Complaint in this action, that Enyan-Boadu was her co-worker, not her supervisor. Moreover, at the criminal trial, Plaintiff had no difficulty in identifying Grizard as her boss. In fact, throughout the entire record, with the exception of her deposition and affidavit submitted in opposition to summary judgment, Plaintiff, without hesitancy, indicates that Grizard is her supervisor. There is evidence that Enyan-Boadu had control over the Nativity parish building, which DOR and Plaintiff had permission to use. However, there is no evidentiary proof in admissible form that Enyan-Boadu exercised any supervisory authority over Plaintiff. Nevertheless, in an attempt to impute liability against DOR for Enyan-Boadu's alleged acts of harassment, Plaintiff now contends that Enyan-Boadu might have been one of her supervisors. This is obviously a sham statement.

Similarly, Plaintiff has apparently now recognized another flaw in her case against DOR: She never gave DOR notice of anything until after the alleged harassment had ceased, and even then, she said only that Enyan-Boadu was making her "miserable." This fact is consistent throughout Plaintiff's pleadings, her trial testimony, and her sworn interrogatory responses. Plaintiff's attempt to now claim that she told Grizard, on August 8^th, that Enyan-Boadu was making her miserable and touching her, and her attempt to claim that she told Grizard, on October 30^th, that Enyan-Boadu was touching her and kissing her, is more sham evidence. Clearly, Plaintiff is adding these allegations in an attempt to impute liability against DOR for the alleged hostile work environment, and to establish that she engaged in protected activity.

The record is clear, however, based on Plaintiff's own pleadings and interrogatory responses, that, at most, she attempted to complain to Grizard and Bauer about Enyan-Boadu on October 30^th and October 31^st. In that regard, on October 30^th, Plaintiff told Grizard only that Enyan-Boadu was making her miserable. And, on October 31^st, Plaintiff made only some vague complaint about her working conditions. Significantly, though, Plaintiff admitted, in her sworn deposition testimony, that she was frustrated following her meetings with Grizard and Bauer, because they did not understand that she was attempting to complain about sexual harassment. See, Pl. Dep. at 219. Plaintiff further admitted that the only reason she scheduled the additional meetings with Grizard and Pedeville, was because she wanted them to understand that Enyan-Boadu had sexually harassed her. Of course, Plaintiff later cancelled those meetings, and never gave Grizard any written statement. Instead, Plaintiff chose to file an EEOC complaint, and to file criminal charges against Enyan-Boadu. However, it is too late now for Plaintiff to claim that she actually told DOR about sexual harassment.

Plaintiff's eleventh-hour contention that she told Grizard that she was in danger from Enyan-Boadu is another example of sham evidence submitted in the hope of defeating summary judgment. On this point, as noted above, Plaintiff testified under oath, at the criminal trial, that she never told Grizard that she was afraid of Enyan-Boadu hurting her. Criminal Trial at 137.

Finally, Plaintiff's contention that Human Resources never responded to her request for a meeting is demonstrably false, and is therefore another blatant example of sham evidence. In that regard, as discussed in detail above, on or about November 2, 2006, Plaintiff sent an email to Pedeville asking for a meeting. Plaintiff admits that Pedeville responded to her, and scheduled a meeting, but Plaintiff cancelled the meeting.

See, Pl. Exhibits Vol. III, Ex. A, Pl. Affidavit at ¶ 86 ("I never received a response from Human Resources."); ¶ 119 ("Pedeville never responded to my November 2, 2006 email regarding the sexual attack." [sic]) (The email subject line referred to sexual harassment training, not a sexual attack)

With these evidentiary rulings in mind, the Court will proceed to consider the merits of Defendants' applications.

DOR's Motion to Dismiss the Retaliation Claim Pursuant to the Ministerial Exception

DOR contends that the Court lacks subject-matter jurisdiction over the retaliation claim, since the Court's examination of the proffered reason why DOR terminated Plaintiff's employment would result in "impermissible entanglement with religious doctrine." The Court disagrees. DOR maintains that Plaintiff resigned, and that DOR set November 28, 2006 as her last day of work. DOR contends that subsequently, Plaintiff failed to appear for work and meetings, which cause DOR to terminate her employment effective November 9, 2006, though it paid her through November 28^th. DOR does not claim that Plaintiff's termination had anything to do with religious doctrine or the inner workings of the Catholic Church. The Court cannot see how its consideration of Plaintiff's retaliation claim will result in any entanglement with religious doctrine. Accordingly, DOR's motion to dismiss the retaliation claim under FRCP 12(b)(1) is denied.

Title VII and the NYHRL

Title VII "makes it unlawful for an employer to discriminate against any individual with respect to the `compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999) (citations omitted), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199 (2nd Cir. 2006).

Generally, "claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII." Torres v. Pisano, 116 F.3d 625, 629, n. 1 (2d Cir. 1997), cert den. 522 U.S. 997 (1997). Consequently, unless otherwise noted, references to Title VII below are also intended to refer to the NYHRL. An exception to this general rule is that individual defendants may be held liable under the NYHRL, but not under Title VII. Specifically, "[u]nlike Title VII, [NY]HRL § 296(6) has been construed by the Second Circuit to impose liability on an individual `defendant who actually participates in the conduct giving rise to a discrimination claim.'" Lewis v. Triborough Bridge and Tunnel Auth., 77 F.Supp.2d 376, 380 (S.D.N.Y. 1999) ( citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Under NYHRL § 296(6), an individual co-worker may be held liable as an aider and abettor, assuming that the employer is found liable under § 296(1). In this regard, the individual defendant, who may have personally committed the discrimination, is not held liable for aiding and abetting his own actions, but instead, is deemed liable for aiding and abetting the primary violation by the employer. Bennett v. Progressive Corp., 225 F.Supp.2d 190, 214 n. 11 (N.D.N.Y. 2002). Another difference between Title VII and the NYHRL is that, "courts have applied a stricter standard under the state and local human rights laws with regard to the imputation of liability to an employer, requiring that the employer encourage, condone, or approve of the conduct." International Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F.Supp.2d 345, 361 (S.D.N.Y. 2007) (citations omitted).

Hostile Environment Discrimination

DOR maintains that it is entitled to summary judgment on Plaintiff's hostile environment claims, and the Court agrees. To establish a hostile work environment claim, a plaintiff must show that

the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered. Proving such a claim involves showing both objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.

In addition, the plaintiff must show that a specific basis exists for imputing the objectionable conduct to the employer. Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory co-workers, an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action. According to two 1998 Supreme Court cases, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), this inquiry differs where the harassment is attributed not to non-supervisory co-workers but to a supervisor with immediate or successively higher authority over the employee. Burlington Indus., 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. In that circumstance, a court looks first to whether the supervisor's behavior culminated in a tangible employment action against the employee. If it did, the employer will, ipso facto, be vicariously liable. If no such tangible employment action is present, however, an employer will still be liable for a hostile work environment created by a supervisor unless the employer successfully establishes an affirmative defense. That defense requires the employer to show that (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Fairbrother v. Morrison, 412 F.3d 39, 48-49 (2d Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199 (2nd Cir. 2006).

On this claim, the only issue is whether DOR may be held liable for the harassment allegedly perpetrated by Enyan-Boadu. For the reasons discussed above, the Court finds that DOR cannot be held liable for any such harassment. At the outset, there is no triable issue of fact as to whether Enyan-Boadu was Plaintiff's supervisor. Clearly, he was not. Plaintiff worked for a different corporation and reported to her own supervisor, Grizard. At most, Plaintiff had to communicate with Enyan-Boadu, regarding use of the Nativity parish and housekeeping issues related to the fact that Plaintiff had an office at the Nativity campus. Although Plaintiff had to comply with Enyan-Boadu's wishes concerning the physical use of the Nativity buildings, she was not under his supervisory authority.

Moreover, Plaintiff has not shown that DOR knew, or should have known, about the alleged harassment by Enyan-Boadu, and failed to take appropriate remedial action. As already discussed, Plaintiff's only complaint was on October 30, 2006, when she told Grizard that Enyan-Boadu was making her miserable. Plaintiff made this comment in the context of a meeting over the dispute between Plaintiff and Enyan-Boadu concerning the Dia de los Muertos celebration. Grizard could not reasonably have understood Plaintiff's comment to be a complaint about sexual harassment. However, even assuming that Grizard could have somehow understood that Plaintiff was complaining of sexual harassment, the harassment had already stopped at that point. Plaintiff does not allege that any further harassment by Enyan-Boadu occurred after October 30, 2006. Moreover, once DOR learned of Plaintiff's sexual harassment allegations, on or after November 10, 2006, it conducted an investigation, and concluded that the allegations were not true. Furthermore, Plaintiff declined to participate in the investigation. Accordingly, liability for any harassment committed by Enyan-Boadu cannot be imputed to DOR.

Even assuming, arguendo, that Enyan-Boadu was Plaintiff's supervisor, DOR would still be entitled to summary judgment on the Title VII claims under the Faragher/Ellerth affirmative defense. In that regard, Enyan-Boadu did not take any tangible employment action against Plaintiff. Additionally, the Court finds as a matter of law, on the entire record, that DOR exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that Plaintiff unreasonably failed to utilize DOR's complaint procedure. In that regard, Plaintiff was aware of DOR's sexual harassment policy, but failed to utilize it. To the extent that Plaintiff now claims that she thought the policy only applied to abuse against children, such a view is not reasonable.

Plaintiff also acted unreasonably in canceling her appointments with Grizard and Pedeville. In that regard, Plaintiff, upon realizing that Grizard did not understand her vague complaints to be about sexual harassment, scheduled further meetings, with Grizard and Pedeville, to clarify her complaints. If such meetings had occurred, it is possible that DOR never would have terminated Plaintiff's employment. See, Grizard Dep. at 114. However, Plaintiff cancelled those meetings, without ever clarifying that she was being harassed. Accordingly, DOR would be entitled to the Faragher/Ellerth affirmative defense. Retaliation

The Court also agrees that DOR is entitled to summary judgment on Plaintiff's retaliation claims. The legal principles for such claims are clear:

"Retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of retaliation by showing: "`(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Jute, 420 F.3d at 173 ( quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001)). The plaintiff's burden in this regard is "de minimis," and "the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive." Id. (internal quotation marks omitted).

If the plaintiff sustains this initial burden, "a presumption of retaliation arises." Id. The defendant must then "articulate a legitimate, non-retaliatory reason for the adverse employment action." Id. If so, "the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action." Id. A plaintiff can sustain this burden by proving that "a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause[;] if the employer was motivated by retaliatory animus, Title VII is violated even if there were objectively valid grounds for the [adverse employment action]." Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).

Hicks v. Baines, 593 F.3d 159, 164-165 (2d Cir. 2010).

It is well settled that "[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). In deciding whether a particular activity amounts to "protected activity," "the employment practices opposed by the plaintiff need not have actually amounted to a violation of Title VII. Rather, the plaintiff must have had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001).

Significantly, for purposes of this case, "implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's [complaint] was directed at conduct prohibited by Title VII." Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 292 (2d Cir. 1998).

To make a prima facie showing of an adverse action, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d at 207 ( quoting Burlington N. Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415 (2006)).

In this case, there is no triable issue of fact as to whether Plaintiff engaged in protected activity. She did not do so. Instead, she merely complained that Enyan-Boadu was "making her miserable." From this vague complaint, DOR could not have reasonably understood that Plaintiff was complaining about conduct prohibited by Title VII. Even Plaintiff admits that, following her meetings with Grizard and Bauer, she did not think that they understood she was complaining about sexual harassment, which is why she scheduled the additional meetings, which she later cancelled.

Even assuming, arguendo, that Plaintiff could establish a prima facie case, DOR has proffered a legitimate non-discriminatory reason for terminating Plaintiff's employment. Namely, DOR maintains that Plaintiff resigned, and that DOR directed that her last day of work would be November 28, 2006. Subsequently, Plaintiff failed to attend work, including the Migrant Ministry Mass on November 5, 2006, and also failed to attend meetings with Grizard and Pedeville. According to DOR, as a result of Plaintiff's behavior, it decided to terminate her employment sooner than anticipated, effective November 9^th. Of course, Plaintiff has steadfastly maintained that she never resigned her position, and the Court assumes this to be true for purposes of this motion. However, Plaintiff does not deny that she failed to attend work or that she cancelled her meetings with Grizard and Pedeville. In any event, at most, Plaintiff creates a triable issue of fact as to whether DOR's proffered reason is false. Plaintiff has still not come forward with any evidence that the termination of her employment was related to protected activity. Consequently, DOR is entitled to summary judgment.

Plaintiff's State-Law Battery Claim

The Court has granted summary judgment to Defendants on all claims except Plaintiff's New York State common-law battery claim. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise jurisdiction over this claim, and dismisses it without prejudice to Plaintiff re-filing it in state court. Plaintiff is advised that the statute of limitations governing her state-law claim will be tolled for a period of thirty days, pursuant to 28 U.S.C. § 1367(d). See, Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998) ("Section 1367(d) ensures that the plaintiff whose supplemental state claim is dismissed has at least thirty days after dismissal to refile in state court.").

CONCLUSION

Defendants' applications [#51][#52] are granted. DOR is granted summary judgment on all claims. Enyan-Boadu is granted summary judgment on all claims, except Plaintiff's Fifth Cause of Action ("Assault Battery under New York Law"). Plaintiff's Fifth Cause of Action is dismissed pursuant to 28 U.S.C. § 1367(c).

SO ORDERED.

Dated: Rochester, New York

October 1, 2010